Of Security Risk Certificates and Human Rights

In a few weeks the New Zealand Supreme Court will hear arguments as to whether the Inspector General of the SIS must take into account Ahmed Zaoui’s human rights when considering the validity of the security risk certificate issued against him in March 2003. The hearing comes on a government appeal of an earlier High Court decision that human rights considerations must factor in the Inspector General’s review and decision, and represents the latest in a seemingly interminable series of reviews of adverse court decisions against the Crown in the Zaoui case.

Zaoui’s lawyers have been brilliant in their persistent and thorough demolition of the government’s case against the would-be refugee. In adding human rights to the Inspector General’s charter they have made it even more difficult for the government to satisfy all of the criteria required to declare Mr. Zaoui persona non grata. There are simply too many legal balls to juggle for the government to make its case, particularly when it refuses to divulge the ostensibly secret information it holds against Mr. Zaoui. But that is the reason why the Supreme Court must allow the appeal and rule against considerations of human rights when the Inspector General makes his review of the security risk certificate issued against Mr. Zaoui.

Adding human rights considerations to a review of the security risk certificate confuses the issue and does not challenge the original—nor, for that matter subsequent—basis upon which it has been upheld. Instead it adds another diversionary layer of argument to an already complicated case that begs for clarity of definition on what, exactly, constitutes a security risk to Aotearoa.

To be sure, Mr. Zaoui has reason to fear for his safety should he be deported back to Algeria, or to a country that in turn would return him to the hands of those who have sentenced him to death. Equally true is that his human rights and civil liberties were abused during his two-year incarceration without charge, with months of solitary confinement and confirmed instances of psychological and physical abuse by prison guards. By any moral standard such treatment is more than just a violation of natural law: it is just plain wrong. It represents a “Guantanamo-isation” of the approach towards Muslim asylum-seekers, and emulates Australia in its treatment of those who seek sanctuary on these shores. That these abuses happened here is why many New Zealanders otherwise not too keen on Mr. Zaoui’s religious or political beliefs have rallied to his cause. But none of this is germane to the issue, which boils down to one simple question: is Ahmed Zaoui an imminent threat to this country or not?

That should be the sole criteria upon which the validity of the security risk certificate is evaluated. The original rationale was dismissed by the Refugee Status Appeal Authority when it granted him refugee status, and subsequent add-on and replacement criteria--which have now moved the goalposts for his continued classification as a risk from a) his being a physical threat to New Zealand to b) his continued presence inviting a threat to New Zealand to c) his presence hurting New Zealand’s international reputation--have been rubbished by the various courts that have weighed the merits of the case.

Clarity of threat should be the basis upon which the security risk certificate is measured: to wit, the degree of clear and present danger posed by an individual to the New Zealand community. Said danger is not mythical, hypothetical, potential or to reputation; it must be imminent and real.

By all standards, the government has failed to make its case against Mr. Zaoui. The SIS refuses to issue a declassified summary of the secret allegations made against him (something that is standard practice in most Western intelligence services), and instead has rehashed the original (and discredited) information along with additional irrelevant material (such as the ludicrous claim that Zaoui made a terrorist “casing” video during his trip through Southeast Asia on his way to New Zealand). Instead the government has engaged in a campaign of obstructionism, misinformation, and outright lying (not always in unison) about the case, including personal attacks on Zaoui’s lawyers and others who have pointed out the myriad errors and abuses of power that have characterized the process since the day he arrived at Auckland airport.

The decision to classify Mr. Zaoui as a security risk came not from the SIS acting on its own, but in consultation with the Prime Minister’s office (contrary to her claims to be “out of the loop” of SIS decisions, which makes one wonder what she does as Minister of Security). That is because the SIS is a policy-implementation agency, not a policy-making agency. Intelligence policy is made in the Prime Minister’s cabinet, and all decisions of import are exclusively its responsibility. SIS Director-General Richard Woods may be the front man in the government campaign against Mr. Zaoui, but he is (to his credit as a loyal and distinguished public servant), just the public foil of his political masters. They, not he, are responsible for Mr. Zaoui’s fate.

It is also clear that intelligence vetting in New Zealand is heavily politicized according to the government’s agenda of the moment, rather than objective considerations about national security. Politisation of intelligence is a dangerous thing, as the machinations leading to the invasion of Iraq have shown. In its handling of the Zaoui case the government has played loose with the truth at the expense of one decent man caught in perilous exile precisely because of the moderation of his views (and from a country where political moderation is a virtue seldom recognized or tolerated).

None of this has to do with Ahmed Zaoui’s human rights. His case can, and should, stand and fall on the issue of risk, pure and simple. If he is found to be a provable risk—something that is highly improbable given that the government itself now admits that he is not—then at the time the security risk certificate is upheld his human rights should be taken into consideration when pondering the options of his refoulment. That is the job of the Immigration Minister, who will simply duck quack orders issued by the Prime Minister. But at least the issue of clear and present danger will have been addressed, if not revealed.

To bring the issue of human rights into the consideration of risk deviates from the central question, which is whether the SIS and other government agencies acted professionally and competently when issuing the first security risk certificate in the nation’s history. If the Court denies the appeal and mandates the consideration of human rights in the Inspector General’s review, it is very possible that we will never get an answer to that question. Then again, given the historical record of the Inspector General of the SIS, absent human rights concerns in the review we might get a whitewash. In that light, perhaps the lawyers have a valid point in wanting to add as many requirements to the Inspector’s General’s review of the security risk certificate as is legally possible. But the real issue in the Zaoui case is one of actual and imminent threat in the determination of risks to national security, not his human rights. The Supreme Court would be wise to take note of that.

[ By Paul G. Buchanan ] Paul G. Buchanan is the Director of the Working Group on Alternative Security Perspectives at the University of Auckland. He was previously the Regional Policy Analyst for the Inter-American Region and co-team leader of the Cuba Task Force in the Office of the US Secretary of Defense (OSD-ISA-IA), as well as consultant to the CIA and several other US security agencies.

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