Monthly Archives: October 2015

Confronting executive branch excess.

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Recent court victories by Jane Kelsey and Jon Stephenson have vindicated those who have long complained about the culture of excess that permeates the National government’s cabinet. Excess and abuse of authority preceded the current government but this one has taken the practice to art form. It has resulted in allegations of corruption and behaviour such as that outlined in Nicky Hager’s Dirty Politics, and it has compromised the integrity of the DPMC, GCSB, NZDF, Ombudsman and SIS in doing so. If it did not openly encourage, at a minimum it facilitated managerial excess in agencies “overseen” by a variety of ministerial portfolios. The combination of ministerial and managerial excess–executive excess, to re-coin the phrase–is malignant in a liberal democracy.

Apparently the courts, or perhaps better said, two High Court judges, have caught on to the problem. Although the reasoning of the judge that forced the Stephenson settlement has not been made public, the judge in the Kelsey versus Groser case made abundantly clear that the “unlawful” behaviour exhibited by Groser and his staff included the Office of the Ombudsman as well as abuse of process. Likewise, the settlement of the Stephenson case involved not only a payment but a retraction and statement of regret by the NZDF as an institution, rather than by the command officer who was the subject of the defamation lawsuit. That suggests that more than one individual and branch of government may have had a hand in slandering Mr. Stephenson. Yet no independent review of their actions has been done.

There are other instances where the independence and integrity of reviewing agencies have come into question. Think of the Police Complaints Authority and the skepticism with which its findings are held. Think of past findings (such as during the Zaoui case) by the Inspector General of Intelligence and Security. Think of the way Crown Law has behaved in several high profile politically charged cases. Although adjustments have been made to some oversight agencies like the IGSI and not all oversight agencies are uniformly compromised, there appears to be a necrosis spreading across the system of institutional checks and balances in Aotearoa.

Those who regularly submit Official Information Act (OIA) requests will already know that the process is routinely abused, especially but not exclusively by security services. Delays beyond the mandated time frame for response are common. Censoring of material prior to release is common. So is the Ombudsman’s practice of upholding decisions to withhold or censor material on broadly defined national security grounds. Cynics might say that is a case of one hand washing the other. Others might go further and say that the problem is systemic rather than random and occasional. However skepticism is voiced, there is a sense that when it comes to the Ombudsman and other oversight agencies, they are more about whitewashing than honest scrutiny.

This again raises the issue of politically neutral, independent and transparent oversight. I have written a fair bit on the need for independent oversight of intelligence agencies above and beyond the Inspector General of Intelligence and Security, Commissioner of Warrants and current Select Committee on Intelligence and Security. I have not written about the problems with the Office of the Ombudsman and treatment of OIAs. But it should be clear by now that when it comes to democratic oversight of executive departments and those that lead them, New Zealand is hollow at its core.

Readers may recall that I have written about horizontal and vertical accountability in the democratic state. This academic concept finds real meaning in this case. Beyond the problem of vertical accountability in a country where electoral preferences are the subject of poll-driven media manipulation by government PR agents, elite cronyism is the norm and where civil society organisations are weak in the face of that, there is a serious lack of horizontal accountability in New Zealand. Agencies such as the Ombudsman that are entrusted with overseeing the behaviour of politicians and senior state managers  are seemingly subordinate (or at least submissive) to them. With some notable exceptions, when it comes to executive excess even the courts appear to have become as much instruments as they are arbiters of government policy and behaviour.

The first question that has to be asked is when does ministerial skirting or manipulation of the rules rise to the level of criminal offence? Is the complicity of more than one government entity (say, MFAT and the Ombudsman) in circumventing or obstructing OIA requests a trigger for a criminal investigation?  If not, what is? If so, who prosecutes the offence given current institutional arrangements?

There are a number of reviews and investigations of government agencies already underway. There are Royal Commissions on matters of policy. Private prosecutions are possible. Constitutional experts may know the answer, but I wonder if there also is an overarching investigatory body or process with legal authority that can look into the system of institutional (horizontal)  accountability and oversight mechanisms currently operative in the country. I ask because from where I sit the system looks broken.

Another dog and pony show.

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Prime Minister John Key did a whirlwind trip to Iraq to confer with its Prime Minister and President and visit the NZDF personnel stationed at Camp Taji, 25 kilometres north of Baghdad. The trip was supposedly secret yet he took an entourage of 40, including selected members of major NZ media outlets. He stayed overnight at Camp Taji in between duststorms, fog, and assorted other travel contretemps that lengthened the journey.

The coverage from the invited media was breathless and fawning. It was mostly about the travel delays. It was a mix of reporter’s lament and “hey I am here!”. Save the protocolar press releases, nothing, as in zero, was reported by the NZ media about John Key’s meetings with the Iraqi government, AKA the people that ostensibly have sovereign control over the land in which the NZDF operates at their formal request. That much was announced by the National government four months after NZ agreed to the military terms of its joining the anti-Daesh coalition.

What passed for reportage about the NZDF mission was basically regurgitated NZDF press releases extolling the virtues of the NZDF trainers, the difference that they made and the successes they were having in training Iraqi troops. PM Key was featured at length in audio and video clips talking about his sense of personal responsibility for the troops and his commitment to their cause.

Taking it all in, my gag reflex was forced into overdrive. If I were vulgar I would label those covering the visit as “useful fools.” If I were nasty I would simply call them “tools.”

Whatever morale boosting the visit may have occasioned amongst the NZDF troops, this was a PR exercise/photo op/sound bite exercise of the first and crassest order. Let me explain why.

“Secret” trips by Western political dignitaries to troops in conflict zones usually do not involve a pack of media figures tailing along. That is because real morale boosting is about the troops, not the dignitary’s image back home. Troops like to be appreciated by their political leaders, and that can be done without media fanfare. In fact, most troops prefer the appreciation to be given in private and not in the glare of cameras (and in fact, NZDF personnel other than Defense Chief Tim Keating were not identified in the reportage of the visit). Bringing media along turns the exercise into a circus side show that is more about the dignitary than the troops. And so it was on this occasion.

The media coverage of the trip was not of the “embedded” type. Embedded journalism, which has many problems associated with it, is the practice of placing journalists for extended periods of time in military units. This was no such instance. Instead, it was a government funded junket for a select few media types.

The coverage was boot-lickingly atrocious. Beyond the vapid commentary about dust storms, aborted plane flights and chopper rides, the description of the NZDF focused on the harsh terrain, nasty weather and the need for security. TV viewers were treated to images of Iraqis running around pointing weapons and kicking doors and were told by Iraqi officers via translators that the trainees were determined to fight for their country and fellow citizens. John Key spoke of how awful the place was and how two years was all that he was prepared to keep the NZDF there (the first rotation of NZDF troops is about to leave Taji and be replaced by a new cadre. The composition of future cadres may not necessarily resemble the first one, where 16 trainers are protected by a couple of platoons of infantry along with medical and intelligence personnel).

Although all of the coverage was vacuous, that of a print reporter from Wellington takes the cake for most ignorantly obsequious. Among other gems, she claimed more than once in her reports that the PM as well as herself where outfitted in “full body armour.”  Photos of the visit suggest otherwise, since Key is seen on base in a flak jacket, shirt, pants and a baseball cap. Most of the military personnel around him were dressed in basic uniforms with no armour or helmets, save Iraqi recruits running drills and his personal protection force (30 “non-deployed” SAS soldiers, which is a bit of overkill when it comes to that sort of thing and makes one wonder from where they were sourced since 30 is a significant chunk of the unit). There is even one photo of Key walking along with some guy in a suit.

According to this particular reporter, her “full body armour” consisted of a flak jacket and a helmet. I reckon that she needs to be briefed on what being fully body armoured entails. And the guy in the suit may want to consider his status if everyone but him in the entourage were given helmets and flak jackets.

The entire gaggle of NZ media regurgitated the line that the NZDF was making a difference and the training was a success. This, after a day at the base and, judging from the tone of their reports, never talking independently with anyone on it (the NZ  media were accompanied by “minders” at all times).

We are told that 2000 Iraqis have been trained and returned to the front lines and that the mission has been a success. My question is how do we know what success is in this context?’ The NZDF states that Iraqi troops are trained in six week blocks in groups of battalion size. Assuming that the figure of 2000 is correct, that means that over the 5 months of NZDF training at Taji there have been 3 light battalions of 500 troops trained and sent to the front, with a fourth group soon to graduate before the original NZDF deployment ends.

It is a pretty admirable task for 16 trainers to accomplish. With a ratio of recruits to trainers of approximately 30:1, that is a lot of contact hours for the trainers. Given that ratio, has there been any burnout amongst the trainers given the cultural differences and widely variant notions of military professionalism between them and the recruits? Have any of the original soldiers sent to Camp Taji in May had to leave, and if so, why? If that is the case, what was the contingency plan?

More broadly, what is “success” when it comes to the training mission? Does success mean that all who entered the training completed the course, or that some significant percentage did? Does it mean that there were no green on blue “incidents?” Does it mean that the recruits came in like rabbits and left like Rambos?

Then there is the issue of post-training success. Has it been confirmed that the troops trained by the NZDF did in fact return to the front and achieve battlefield successes? If so, what were they?

I wonder about that because Mr. Key mentioned that the problem of unreliable Iraqi officers still exists (and those are the officers that presumably will lead the NZDF-trained troops into battle, which begs the question why officer training was not part of the mission). He also admitted that the Iraqi Army has not retaken any of the large towns and cities that Daesh has occupied (like Mosul, Falluja and Ramadi), that the NZDF personnel were restricted to the base because of security concerns and that the road between Taji and Baghdad was impassable by land due to the threat of IEDs and/or Daesh attacks. In light of that, what ARE those freshly trained soldiers doing?

One thing is certain: we will never find out from the press junket crowd because none of them appear to have asked questions to that effect or if they did, they chose not to report the answers. Instead, they seem to have taken the NZDF and Iraqi Army’s word at face value.

I will not comment on the debacle of having the Iraqi Prime Minister’s office publish photos of his meeting with Mr. Key in advance of Key’s secret visit to Taji, in contravention of the security protocols imposed by the NZDF and NZ government. As one wag noted, that was not too bad a security breach so long as Daesh only read the NZ Herald (or presumably watched NZ TV or listened to NZ radio).

In any event what is clear is this. With the complicity of major media outlets, Mr. Key has added troop visits to his pandas and flags repertoire of diversions. In saying so I in no way mean to denigrate the work and sacrifice of the NZDF soldiers at Taji or downplay the difficulty of their mission. Nor do I discount the positive impact his visit has on the NZDF personnel deployed, or the diplomatic and symbolic overtones of it. I simply do not think that the visit was about the troops per se. Instead, I think that the trip was a propaganda exercise that was more about burnishing the PM’s image as well as softening up the NZ public for a possible announcement of future changes to the NZDF mission in Iraq (and Syria).

It is a pity that none of those from the press gallery who were invited to join the PM on his meet-and-greet with the troops thought to wade through the fluff in order to cut to the chase of the matter. On the other hand, perhaps that is precisely why they were chosen.

Imagine if Jon Stephenson had been on that trip. I am willing to bet that not only would his reporting have been very different, but it would have set the tone for the entire group to be a little more serious in their scrutiny of the event. Then again, pigs will fly before such a thing ever happens.

Some questions about the Stephenson case.

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Although it has been shamefully underreported by major media outlets in NZ, war correspondent Jon Stephenson has won his defamation case against the NZDF by forcing a settlement that involves significant compensation and an admission by the military that its defamatory statements about Mr. Stephenson were indeed untrue. It remains to be seen if the Prime Minister will do the same, since he opined at the time the controversy erupted over Mr. Stephenson’s internationally recognised article “Eyes Wide Shut” in Metro Magazine (May 2011) that Mr. Stephenson was, to paraphrase closely, “unstable” as well as “unreliable.” That has been proven to be false and Mr. Key knew at the time he uttered his comments that they were untrue. Let us be clear: Mr. Stephenson may be driven, but unlike his main accusers when it comes to reporting on the NZDF he is by no means unreliable or a liar.

I wrote the following as a comment over at The Standard but feel that it is worth sharing here:

“I suspect that we have only seen the tip of the iceberg when it comes to the unethical behaviour of the NZDF and political leadership in this affair. Remember that there is a MoD involved and the respective ministers then and now (Coleman and Brownlee). There are more officers involved than retired generals Rhys Jones and Mateparae, some who currently hold senior positions within the NZDF. There is the behaviour of Crown Law to consider. There is the slander on Jon’s character uttered by the PM.

I can only hope that the terms of the settlement do not prevent Jon from publishing more details of his case, including the way in which the legal process unfolded, the obstacles to discovery encountered, and the extra-curriculars surrounding them.

Whatever happens, for once in a long time one of the genuine good guys won. Were it that other members of the press corps (Nicky Hager excepted) had the integrity and courage exhibited by Jon both in the field as well as on the home front.

Kia kaha Jon!”

Beyond what I have written above, there are some other questions that arise from this saga.

For example, in 2013 Nicky Hager revealed that the NZDF electronically spied on Mr. Stephenson in 2012 using NSA, GCSB and SIS assets while he was in Afghanistan. At the same time an internal Defense manual was leaked to the media that identified “certain investigative journalists” as hostile subversion threats requiring counteraction because they might obtain politically sensitive information (one does not have to have much imagination in order to figure out who they are referring to). In parallel, reports emerged that NZDF officials were sharing their views of Mr. Stephenson with Afghan counterparts, referring to him in the same derogatory terms and implying that his work was traitorous or treasonous.

Taken together, both the spying on Mr. Stephenson and the characterisation of him passed on to NZDF Afghan allies can be seen as a means of counteracting his reporting. But if so, what national security threat did he really pose? Is politically sensitive information necessarily a threat to national security or is merely a threat to the political actors being reported on? Is intimidation part of what the NZDF considers to be proper counteraction when it comes to journalists plying their trade in a war zone? And since any counteraction or counter-intelligence operations had to be cleared and authorised by the NZDF and political leadership, were both of the types used against Mr. Stephenson authorised by then NZDF Chief Lieutenant General Richard Rhys Jones and/or Mr. Key? They deny doing so but if that is true, who did and how was it passed down the chain of command to the field commanders in Afghanistan (because, at a minimum, the order to “counter” Mr. Stephenson could be construed as illegal and therefore challengeable–but it never was).

Leaving aside the legitimate role of independent journalism in a democracy in holding policy makers–including military leaders–to account, what does it say about the NZDF that it sees such work as subversive? More alarmingly, if the reports are true, what exactly did the NZDF leadership hope to accomplish by telling Afghans, while Mr. Stephenson was in Afghanistan, that he was a threat to them?

Then there is the issue of the lie. General Rhys Jones claimed that, contrary to what was written in his story, Mr. Stephenson never visited the base in which the Crisis Response Unit (to which NZ SAS were attached) was located and did not talk to its commander. That was a direct challenge to Mr. Stephenson’s journalistic integrity. Mr. Stephenson sued for defamation and during the first trial (which bizarrely ended in a hung jury) the NZDF and Rhys Jones himself admitted that Mr. Stephenson’s version was true.

So why didn’t the trial stop right there? The moment the truth of Mr. Stephenson’s story was admitted by Rhys Jones, it was supposed to be game, set and match to the journalist. But instead the Crown spent hundreds of thousands of taxpayer dollars continuing to litigate in that trial and then the follow-up court process that was ended by the recently announced settlement. Why so?

The answer to the last questions seems to be that, like in the Zaoui and Urewera 18 case, the Crown prefers to bleed its adversaries emotionally and financially even when it knows that it can not win. This death by a thousand cuts approach, courtesy of the taxpayers largesse, is as unethical as it is cynical and undermines the belief that justice in New Zealand is blind and universal.

There are many other questions that need to be answered about the treatment of Mr. Stephenson. Is it true that media outlets were pressured to not accept his work on penalty of getting the cold shoulder from the government? Did NZDF officials physically threaten Mr. Stephenson in New Zealand? Did the intelligence services spy on Mr. Stephenson above and beyond what was reported by Mr. Hager, both at home and abroad, and are they doing so now, and on what grounds if so? Did NZDF and/or MoD and/or PMDC and/or Crown Law officials conspire, either solely or together,  to cover up, obstruct, alter, destroy or otherwise impede the release of evidence to Mr. Stephenson’s lawyers at any point in the legal proceedings?

My sincere hope is that the settlement agreed to by Mr. Stephenson and NZDF does not preclude the former from writing about his experiences with the NZDF, both in Afghanistan and during the trials. Hopefully he will be able to answer some of the questions I have posed above. I say this because something stinks about the way this affair has been handled at the highest levels of government, which is not only a stain on the individuals involved but a direct affront to basic tenets of liberal democracy.