Gordon Campbell: Ahmed Zaoui – The Final Chapter?

In any other circumstances, the face saving rationale that has been concocted to enable the SIS to rationalise its backdown on the Ahmed Zaoui case would be infuriating, but hey, winners can afford to be generous.

However the claim in the NZ Herald that Ahmed Zaoui has provided the CIA with information on his former colleagues – notably Anwar Haddam, who is now freely living within the US – is a sign of what lengths the SIS is still prepared to go to in order to besmirch Zaoui’s name, even as the SIS collapses its case and slinks towards the exit.

In reality, Anwar Haddam has never hidden the fact that he, Mohammed Said and Abderezzak Redjam were the three FIS leaders who had sought to build a bridge between the FIS and the more militant GIA during the 1993-95 period.

Said and Redjam paid for this attempt with their lives. Nothing that Zaoui could say now in 2007 about Haddam could possibly help the CIA. Any conversation in 2007 about Haddam between Zaoui and the SIS would almost certainly have been related to the SIS’ own misguided attempt to link Zaoui to Haddam, Said and Redjam as extremists, in order to bolster their case.

Such a tutorial for the SIS was all part of teaching them the basic facts of recent Algerian political history, which they have been chronically inept at understanding. End of story. Zaoui is not, and has never been an extremist or a CIA informer. What was news to the dum-dums at the SIS in 2007 about the Said/Redjam affair, would hardly be of value to the CIA today, which has rather more pressing things on its mind.

Finally, finally…Zaoui can enjoy the freedom and sense of personal safety he has not known since 1992. How does it feel to stop running for your life, after you’ve been doing it for 15 years? Can you really lay your head down and convince yourself this state of chronic fear and dislocation that has become your life is finally over ? Probably not…it is likely to take months or even years for Zaoui to feel that he and his family are not only safe, but are free to openly plan a life together, again.

Which is why Zaoui signed off on the documents – including the absurd agreement to let the SIS know if he meets any bad guys in future - that enabled the SIS to back down with a modicum of dignity. Sure, why not - if that’s what it takes. At least the new SIS chief Warren Tucker was capable of reaching out to seek a solution, showing a flexibility well beyond his predecessor, Richard Woods.

No more bail, no more curfew, no more legal hoops to jump though. Something like normality beckons. For Zaoui to do anything other than proceed with optimism would be to concede that the generals have won, and that their coup really has sent his life spiralling off course forever, beyond redemption. Such negativity would be unlike him. He once said to me – in his last week in jail, while utterly exhausted – that he saw himself like a battery that could be re-charged, and that he has always felt confident of his capacity for renewal.

None of which will be easy. Zaoui’s entire moral framework is based on the search for true reconciliation – and not on the bogus kind of deals that are about securing temporary political advantage. Zaoui now has to work out such a reconciliation for himself. It is not as if he can just pick up the pieces of the person he was when he almost accidentally became involved in politics in 1991, and got swept into exile. Like Algeria itself,

Zaoui has been through a nightmare and emerged into a place with familiar contours but which is basically unknown territory. He now has to engage with New Zealand in earnest – and we similarly will need to understand and accept where much of his heart and inclinations will always be.

In the light of such momentous emotions, does it really matter that yesterday’s excuses by the SIS made no more sense than their entire case to date ? As they head ingloriously for the exit, is it worth picking apart their attempts to save face ? I mean, who really wants to kick the SIS when its down?

Well, now you put it like that…it is certainly worth a few parting words. Especially when Winston Peters is trotting out the same tired and incorrect claims : that Zaoui jumped the queue, that he entered New Zealand illegally, that he used false documents etc etc. Once again, lets get this straight : there was no queue. No queue exists when people are applying for political asylum and Zaoui followed the procedures to a T.

He declared who he was the moment he landed at Auckland airport and he identified the FIS political movement to which he belonged. He did not enter New Zealand illegally – he applied for political asylum under the rules of the UN Refugee Convention that New Zealand ( and one presumes, even New Zealand First) claims to recognise.

That same UN convention has always acknowledged that refugees travel on false passports out of necessity, and the UN has stipulated that they should not be penalised for doing so. Peters is a lawyer : he knows these things yet keeps playing to his bigoted constituency rather than properly serving the office he holds. Truly, if any potential migrant now thinks that New Zealand is a soft touch for illegal immigrants it will be mainly because our Foreign Minister is telling them so.

Peters is one thing, the SIS something else. Essentially, the whole SIS ‘He was a threat then, but he’s not a threat now’ argument is a crock. At best, that argument might (barely) justify issuing a security risk certificate in late March, 2003. Within a few months though, the main planks of the same rationale that SIS chief Warren Tucker cited yesterday – the convictions in Europe, the associations with people advocating an armed response to the Algerian coup etc etc – had been exposed as flimsily based, and unable to serve as a conclusion about Zaoui posing a future risk. Yesterday, the SIS all but conceded the RSAA had got it right.

Point being though, the RSAA released its thorough analysis of the Zaoui case on August 1st, 2003 – and the SIS and its cheerleaders within the Clark Cabinet faced a clear option at that point. They could either accept the RSAA ruling that Zaoui was a genuine refugee and act accordingly – or try to shore up their original rush to judgment.

To her lasting discredit, the then Immigration Minister Lianne Dalziel came out swinging in the wake of the RSAA report and – doubtless on instructions from her political master - cast the Government in opposition to the RSAA, and to Zaoui. The SIS, which was then under the leadership of Richard Woods, our Francophile former New Zealand ambassador to Paris, needed no further encouragement.

Thanks largely to Dalziel and Clark, Zaoui was put through years of unnecessary grief, and the New Zealand taxpayer put to a lot of unnecessary expense for the next four years.

That is what is so infuriating about the ‘he was a risk then’ argument. Four years ago, the RSAA had comprehensively sunk any SIS case that was based to any large extent upon the European convictions. In addition, the SIS knew that none of the European countries had ever sought to have this alleged ‘security risk’ extradited, that none of Zaoui’s fellow FIS leaders were in prison, and that one ( Samir Bennegadi) held a security clearance to work in a nuclear facility in Sydney.

They knew that almost all of Zaoui’s former co-defendants were living freely in Europe, where these allegedly heinous crimes had been committed. They could also see that Zaoui relied upon a young female lawyer, which would be anathema to a true fundamentalist. They knew back then that Zaoui was not a terrorist, never alleged him to be one, and had carefully targeted him under the non-terrorist provisions of the Immigration Act.

Par for the course. Throughout, there is no sign the SIS ever responded to the evidence about Zaoui in a balanced fashion. It completely ignored for instance, Zaoui’s peacemaking efforts at the Rome Platform in 1994. What it chose to do was fight its corner, regardless. From the very outset, the Zaoui case became an issue of bureaucratic pride for the SIS and for successive Immigration Ministers. The truth was incidental. There were bureaucratic empires that stood to lose face.

Behind the scenes, the SIS were never sure of their ‘ he was a risk back then’ grounds, even back in 2003. They never felt confident they could win the case back then on its merits. That is why the SIS and the Government panicked in late December 2003 and sent cables to embassies overseas urging our diplomats to beseech the authorities in France, Belgium and Switzerland to forward any dirt they could find on Zaoui, and any arguments that might serve to tarnish the RSAA case.

They even cited relevant paragraphs of the RSAA decision that such countries might help to discredit. After months, the French could barely muster a couple of paragraphs in response – a clear reflection of the minimal risk they felt Zaoui actually posed. So even in 2003, the SIS was clutching for straws, as further indicated by its claims that Zaoui’s patently incompetent travel footage ‘looked suspiciously like a casing video. ‘

You want one further telling indication that this ‘ he was a risk then’ argument is bogus ?

At the time it issued the certificate, the SIS had only 15 files of evidence on Zaoui, but by the time it got to the July 2007 review hearings, it had amassed almost 60 files. Leave aside the fact that almost half of those files never even mentioned Zaoui by name. The point is, the SIS amassed the vast bulk of its ‘evidence’ against Zaoui well after it had issued the certificate. It was not – and never had been - confident it could win its case on its original evidence.

Rather, the SIS initially thought it could get away with winging it, because it believed it could rely on the way the deck was stacked in its favour. It had good reason for that confidence. In October 2003, the previous Inspector-General Laurie Greig had ruled that the Zaoui team had no right to even a summary of the SIS allegations against him. It was only when the Zaoui team fought and won the right to such a summary in December 2003 that the SIS and Government realised they were going to have to front up in earnest, and that when they panicked. Those first diplomatic cables mentioned above were sent out on the next working day after the Crown lost the High Court decision. Shortly afterwards they also lost Greig, their hitherto compliant Inspector-General.

In similar vein, the Crown Law Office fought successfully in court for the right of the SIS to add to and change the evidentiary basis for issuing the certificate. The Zaoui team had argued that the SIS was shifting the goalposts by doing so. In sum, you get the picture…the SIS case was crap in 2003, and it was crap in 2007 as well. Rarely has so much time and money been spent by so many for so long, for so little effect. The final formulation of the SIS case was simply blown apart by the Zaoui team’s evidence in July.

The rest of Warren Tucker’s explanation seems equally as flimsy. Zaoui met other activists in Europe? Well, his country had just been taken over in a bloody military coup. Zaoui was the FIS spokesperson in Europe. Inevitably he would have contact with some people who thought armed struggle was a feasible response, given that democracy had just been tried and overthrown - and while thousands of Algerians were being massacred in the aftermath. Such contacts say next to nothing about Zaoui’s own political agenda.

We could go on. Zaoui became ‘more candid’ this year and gave the SIS fresh information ? Oh really. What was it exactly, that they forgot to ask him until July-August 2007 that made such a compelling difference? Or – more likely – was this episode just one more concocted excuse by the SIS to justify their exit strategy?

Finally, on the candour front : Zaoui had spent eleven days on the witness stand at the RSAA, answering all their questions. If the SIS had any queries about Zaoui’s associates that they wanted clarified, why didn’t they ask him before ?

The real turning point was the July hearings. During those proceedings, the arguments presented by the Zaoui team overwhelmed the SIS’ own flimsily structured case. All the years that Deborah Manning had spent compiling an exhaustive and clearly paced account of the events and the various splinter groups within Algeria and Europe during the past 15 years, came to fruition.

Under questioning by Manning and Rodney Harrison QC, witnesses such as Professor George Joffe and former Colonel Mohammed Samraoui presented an alternative, pacific narrative of Zaoui’s actions and beliefs, including his fidelity to the inclusive marriage of Islam and democracy advocated by one of Zaoui’s chief mentors, the Algerian moderate, Malek Bennabi.

At crunch, this account proved far more plausible than the strained narrative put forward by the SIS – which relied heavily on the ‘he knew someone who knew someone who knew someone that knew Bin Laden’ degrees of separation. Throughout their own chronology of the 90s, the SIS depicted Zaoui as an oppositionist aligned to the extremists. These alleged stepping stones simply did not stand up to analysis. Partly because – and in contradiction of the onus upon them – the SIS account had relied on distorting or simply ignoring all of the mass of contradictory evidence that went in Zaoui’s favour.

The Government portrayed itself as a passive spectator to the legal process. In fact, the Immigration Minister always had the power at any time to call a halt to the farce, and withdraw the certificate. The Government chose to fight right to the bitter end and denigrate Zaoui, his lawyers and the RSAA at every opportunity in the House, and outside it.

So now Zaoui is free. The UNHCR has several times asked New Zealand to allow his family to be re-united here, since they are UN refugees in their own right. Zaoui’s family is currently a woman centred family in valid fear of political persecution and with minimal support where they are, and it includes a special needs child. Far from jumping any queue, the Zaoui family meet almost all of the priority criteria of our UN refugee quota. There seems no reason now why the Zaoui family should not be part of our next UN refugee intake. Accountability is an elusive concept. Far from being a soft touch, New Zealand elected to imprison a genuine political refugee fleeing for his life from a blood-soaked and illegal military regime. It imposed further suffering on him, and on his family for four years.

Surely then, the SIS cannot be allowed to go on their merry way, unchecked. It not only made one mistake – it kept on making one gaffe after another. Think about the initial bungled processing of Zaoui at the airport and during the first few weeks of his arrival period. Think of the credulous farrago of Internet based evidence they presented to the RSAA review, their bizarre analysis of the travel video, the fabled lost then found again ( but with bits missing) interview video that they only belatedly revealed to the Inspector-General conducting the review of the case. Think of their failure to get their case together in time for the mid 2006 review, due entirely to their incompetence at following High Court instructions – a delay that put the review back for a further year. All in the service of a case against Zaoui that fell apart when exposed to the first rays of daylight.

In any other country, the security services responsible for such a litany of failure would be roasted under parliamentary or Congressional scrutiny. However, we have no genuine oversight mechanisms for our security services.

As Green Party MP Keith Locke recently found out through a parliamentary written question, the committee delegated to do this job has met for a grand total of two hours and 38 minutes since the 2005 election. The Government now needs to be dragged – kicking and screaming - to initiate a proper parliamentary select committee process with powers to hold the security service chiefs to account, to summon them to testify and to investigate their actions.

In short, we should be moving to create the same sort of oversight mechanisms that exist in Canada, the United Kingdom and the United States. Basic competence is at issue. The RSAA, in a matter of months, achieved what the SIS failed to manage in four years – and guess which organisation is now about to be scrapped by the Clark government?

In passing on this point, it was pathetic yesterday to see the media reporting on how unique it was for the SIS to hold a press conference, and offer up an explanation. No one queried why it should be such standard practice for the SIS to be beyond public accountability, or why it should be allowed to dictate that it would not answer any questions about the claims it was presenting. Tucker’s performance was like something off the Colbert Report – he was the Decider, the media was there to write it down. Failure should not be earning the SIS such a badge of entitlement.

Ultimately, the main lesson of the Zaoui affair is that the SIS case crumbled the moment it was exposed to anything like normal legal challenge. Fairly typical.Throughout the Zaoui affair, the courts served the public extremely well - and especially in those areas where the security services and the Government had so patently failed Zaoui, and the public. Down the years, the hits by the courts just kept on coming.

From the groundbreaking 2003 ruling by Justice Williams in the High Court, to the later High Court judgement against the previous Inspector-General, to the TVNZ free speech decision, to the decisions on Zaoui’s bail, to the Susan Glazebrook majority opinion in the Court of Appeal in 2004 to the ( somewhat less impressive) Supreme Court ruling in 2005…the courts became fully engaged with the issues at stake, and headed bravely into virgin territory. This time round, it rose to the kind of challenges it had run away from during the second Choudhry case in the late1990s, where it had simply genuflected to SIS expertise and pronounced itself incapable of useful comment. This time, the courts took the skeletal processes outlined in the legislation and fleshed them out sensibly and thoroughly – thus saving New Zealand from some of the literal ( and absurd) conclusions about the relevant tests of the security evidence that had been previously reached in Canada. It eventually devised a very high test for the SIS to meet, within the context of the review..

To the SIS and Crown Law Office, it must have seemed as if the courts were gradually building a higher and higher hurdle for them to climb. Indeed they were. One key part of the test that the courts posed to the SIS was to confront the FUTURE risk posed to New Zealand if Zaoui were allowed to stay here. Unable to show convincingly that Zaoui had been a bad guy in the past, the SIS had no prospect of credibly depicting him as a risk going forwards. No wonder the SIS finally threw in the towel.

In passing, the role that the courts have played in the Zaoui case should re-assure anyone still worried about the abolition of the Privy Council. The ability is here – on the bench, and in front of it. To the widespread indifference of their profession, the Zaoui team headed by Rodney Harrison QC – and Deborah Manning in particular – worked on a shoestring, grappled with huge constitutional issues and won hands down. At every stage, they managed to bring to the courtroom battles a far more reliable, thorough and better argued account of Zaoui’s relevant history than the combined forces of the SIS and Crown Law Office could muster.

Outside the courtroom, it was also no contest. The Zaoui lawyers outfought and out-thought the SIS and Government at every turn. If last night was a good night for Zaoui….it was an especially bad night for Michael Cullen, whose bitterness about the Zaoui case has verged on obsession.

The lessons for the future seem pretty obvious. The SIS need to be made more accountable both in general, and on the specifics of their work and priorities. Secret evidence cannot be allowed to form the core of such cases, unchallenged.

So far, the Government has kept Immigration Minister David Cunliffe well hidden, and let the SIS front the humiliating backdown. It has not wanted the Zaoui fiasco to taint the progress of its new Immigration Bill. For instance, the Government has signalled that it intends to persist with and expand its use of the special advocate system, within the new Immigration Bill. Well, at the very least, it will have to incorporate the changes envisaged by the UK Parliament in recent months, and with more changes to come in October. These include finding ways for the special advocates to speak with the appellant AFTER the classified evidence has been seen by the special advocate. Currently, New Zealand is importing a legal process from the UK without incorporating the changes that the UK now recognise they need to make, to even partly meet the requirements of natural justice. In this and other ways, the new Immigration Bill processes lag far behind best practice overseas.

First and foremost, Cunliffe has to drop the highly dangerous plans he has within his new Immigration Bill to expand the use of secret information. His rewrite of the legislation vastly expands the powers of entry, search and detention held by immigration officers. Most disturbingly, it seeks to increase the use of secret, hearsay evidence well beyond the SIS - and put the power to use secret evidence into the hands of mere immigration bureaucrats, and virtually beyond review by the courts.

These kind of provisions all but guarantee that similar injustices will be done to other Zaouis, in future. All Helen Clark can do now is talk about how the new procedures will shorten the process. She has seemingly chosen to learn nothing from the Zaoui case, and the need it has demonstrated for us to strike a better balance between national security and natural justice rights. A shorter, truncated system that neglects human rights concerns will be a disaster. It will actually force more refugees to turn to the courts again, as their only real protection. If anything, the new legislation will trigger more, and not less litigation in future.

Same fight, new context. Once the celebratory parties for Zaoui are over, we will need to fight the secret evidence provisions ( and much more besides) that are contained in the Immigration Bill. Party hard, but there’s a whole lot more still to do.

Disclosure : Gordon Campbell now
works as a media officer for the Green Party. He has been
writing about the Ahmed Zaoui case since 2003.

ENDS

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