Analysis: Context For The Arrests Of 15 Oct 2007

The Solicitor-General’s decision

On the 29th of Oct, police asked the Solicitor General to consider authorising prosecution of 12 individuals under the TSA 2002. The Solicitor General, Dr David Collins QC, released a media statement on nov 8 2007 (http://img.scoop.co.nz/media/pdfs/0711/SolGenTerror.pdf

The key points are these:

He does not authorise the prosecution under TSA because he thinks “at this stage there is insufficient evidence to establish to the very high standard required that a group or entity was planning or preparing to commit a terrorist act as defined in the legislation” (paragraph 10).

But, he says that this is not a criticism of the police and that they have acted entirely appropriately in referring the evidence to him (paragraph 11). He does not explain in what sense the referring of the evidence to him was “entirely appropriate”. For example, does it mean the evidence was of very serious activity that was just shy of the definition of terrorism under TSA 2002? Or does it only mean that, since some warrants were sought under the TSA, it is appropriate that the evidence was referred to him? If it’s the latter, this says nothing about the quality or nature of the evidence itself and is a merely procedural ‘appropriateness’.

He adds that he is very satisfied that police had sufficient and proper basis for investigating the activities in question under the TSA (paragraph 7). He does not clarify what it is to have a ‘sufficient and proper basis for investigating’ under an Act.

He says that police have successfully brought an end to what were very disturbing activities (paragraph 12). This tells us nothing about what the disturbing activities were, why they were disturbing or whether the police brought the activities to an end in a legitimate manner.

The SG says that the TSA 2002 legislation is “unnecessarily complex, incoherent and as a result almost impossible to apply to the domestic circumstances observed by the police in this case” (paragraph 8). In saying this, the SG is not saying that the TSA is a bad law, one that we should not have. The SG was asked only to consider whether the Police had admissible and reliable evidence strong enough to make a prima facie case, and whether the evidence could possibly enable a conviction beyond reasonable doubt. It was not his place to comment on whether the law is a good one. So, in this quote, all he seems to be saying is that the wording of the clauses of the Act makes it hard to interpret the Act. This is not a criticism of the Act in the sense that he thinks we should not have a law criminalizing terrorism. It is only a criticism of the way the Act is worded.

What does the Terrorism Suppression Act 2002 say about terrorism?

The Terrorism Suppression Act 2002 (TSA) can be found at http://www.legislation.govt.nz/browse_vw.asp?content-set=pal_statutes&jump=a2002-034

Section 5 of the Act defines terrorism. Terrorist acts include some acts defined in various international conventions (the conventions are mentioned in the Schedules attached to the TSA). But these matters relating to international terrorism are not relevant to the arrests of 15 Oct 2007. Here is the relevant part, found in sections 5(2) and 5(3).

An act is a terrorist act
IF IT:
5(2) is carried out for the purpose of advancing an ideological, political, or religious cause, and with the following intention: either (a) to induce terror in a civilian population; or (b) to unduly compel or to force a government or an international organisation to do or abstain from doing any act.
AND IT:
5(3) is intended to cause one or more of (a) to (e) below. (a) the death of, or other serious bodily injury to, 1 or more persons (other than a person carrying out the act). (b) a serious risk to the health or safety of a population (c) destruction of, or serious damage to, property of great value or importance, or major economic loss, or major environmental damage, if likely to result in 1 or more outcomes specified in paragraphs (a), (b), and (d). (d) serious interference with, or serious disruption to, an infrastructure facility, if likely to endanger human life. (e) introduction or release of a disease-bearing organism, if likely to devastate the national economy of a country.

Does the TSA criminalise protest?

It is simplistic and false to say the TSA ‘criminalises protest’. Granted, the Act says that part of the definition of a terrorist act is that it was carried out for the purpose of advancing an ideological, political, or religious cause, with the intention to unduly compel or to force a government or an international organisation to do or abstain from doing any act. But that’s only part of it. It also says that a terrorist act MUST intend to cause one or more of the harms (a) to (e) listed in section 5(3).

In Section 5(5), the Act explicitly clarifies that “To avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that the person—

(a)is carrying out an act for a purpose, or with an intention, specified in subsection (2) [which talks about the purpose and intention of the act]; or

(b)intends to cause an outcome specified in subsection (3) [which talks about the intent to cause the harms (a) to (e) listed above].”

If the Act does not criminalise protest, what’s wrong with it?

One of the fears about the Act is that the clauses about ‘…for the purpose of advancing an ideological, political, or religious cause’ and ‘…with the intention to unduly compel or to force a government or an international organisation to do or abstain from doing any act’ can be abused by police/courts/government (perhaps ultimately by the politically motivated individuals who have greatest influence over those institutions) to target political groups who are working for progressive changes which are against the interests of those in power. I consider this a reasonable fear.

The harms listed in (a) to (e) of section 5(3) are the real causes of concern, but they are crimes independently of the TSA. So given this reasonable fear and the fact that the genuine crimes are already crimes under other acts, I don’t see why the TSA should remain in our law book as it is. Some parts of the Act

Is the state trying to suppress dissent?

I’m sure that to some degree or another various people in the government and police are alarmed about progressive activists in the country and would like them to disappear or to paint them in a bad light – that’s just part of politics and part of the fact that the ones with most power in the country have certain interests which they want to defend. This is just a general claim about politics. But that general claim is a far cry from pointing to the particular arrests of 15 Oct 2007 and claiming that they are a planned exercise to clamp down on dissent.

Whether and in what ways the TSA is used to clamp down on protest depends partly on how a court interprets the Act. The SG has not allowed charges to be filed under the TSA. So, for the moment, we won’t know how the courts would interpret the Act.

But there are other ways that the Act can be a tool for politically motivated targeting of certain groups even if no charges are filed under the Act. It is possible that the mere fact of carrying out raids in this way and targeting activists may discourage some people from being politically active. More likely, many people in the wider public may now have a poorer image of activists in the Maori sovereignty, environmental and peace causes, may see the causes as potentially violent and may be less willing to listen to or seriously consider their arguments.

The arrests were carried out in a media-grabbing and resource intensive way. Unless it can be shown that this was necessary, there is, at the very least, possible misuse of resources by the police and (perhaps unintentional) scaremongering. It’s not cool for public servants to unnecessarily act in a way that makes the public afraid. Those who are made afraid are primarily those who witness the raids themselves, but also – and in a different way – the general population. It takes considerable resources in terms of time and money to coordinate raids reportedly involving more than 300 police personnel across the country. We must demand to know why it wasn’t sufficient to calmly and quietly arrest the relevant people for firearms charges instead of using up a lot of taxpayer resources to coordinate a nation-wide, media attention grabbing stunt. The foreseeable possibility even of unintentional scaremongering ought to be considered by police when they are planning action.

Heavy handed tactics like the lock-down on the town of Ruatoki and like the reports of police ordering people out of their cars to photograph them obviously scare the people subjected to this treatment and unless there is public justification of why these measures were necessary, police should be held accountable.

There is also scare-mongering through possible breaches of ‘sub judice’, which occur when a matter yet to be proven or disproven in Court are discussed or stated as fact in public. The point of ‘sub judice’ is to ensure potential members of a jury are not influenced by misinformation or unproven statements asserted as fact. Prime Minister Helen Clark herself has made potentially sub judice comments (http://www.scoop.co.nz/stories/PA0710/S00558.htm ). Potential breaches of sub judice should also be investigated independently of their effect on chilling dissent.

We can also wonder whether the police really needed to obtain search warrants under the TSA. Evidence obtained under a search warrant for one crime may not be admissible in court proceedings regarding an unrelated crime. So, if the police thought they might file charges under the TSA, it would make sense to seek search warrants under the TSA too. The issue is whether the investigation really was serious enough for the police to reasonably expect charges under the TSA or whether the investigation never warranted these expectations and the police were unreasonably eager to use the TSA. We are in no position to assess this as we do not have access to the evidence gathered by the police.

As more information comes out, we will hopefully be in a position to judge whether the police used unnecessarily intimidating tactics, whether the surveillance of activists is legal and whether it is justified even if it is legal.

Possible chilling effects on dissent from non-police sources

While the main concern for many may be whether the state (through its police) is trying to paint political dissent in a bad light, chilling effects on dissent may be due to non-police sources too.

The media has been emphasising the ‘terrorism’ phrase and repeating things like the arrested individuals are connected to Maori sovereignty, environmental and peace groups even though, as yet, we have no reason to think that those political connections have any relevance to the charges of firearm possession.

Well before the SG had had a say on whether there was sufficient evidence to allow charges under the TSA and even before the police had petitioned the SG to consider the evidence for possible charges under TSA, the President of the Police Association said (on 16 Oct 2007) that “The major police operation behind yesterday's raids is a reality check for those New Zealanders who dismiss the threat of home-grown terrorism as laughable” (http://www.scoop.co.nz/stories/PO0710/S00233.htm). (Note the Police Association is not the NZ Police itself, but the union to which most members of the NZ Police belong.)

We cannot blame the police or the government for the actions of agents beyond their official control (such as the media and the Police Association). We should hold these agents themselves to account for fanning alarmist flames. But also, we should note that the police bear an indirect responsibility for the irresponsible and sensationalist actions of these agents. As I have already discussed, the media-grabbing coordinated raids of the police and the decision to seek warrants under the TSA have foreseeable consequences that people will be alarmed and that media and public entities will sensationalise the events.

Particularly objectionable are leaks to media (presumably by members of the police) about ‘terrorist training camps’ and ‘threats to the lives of Helen Clark, John Key and George Bush’. These have not appeared in the charges laid against the arrested and so would not have appeared publicly as part of the normal course of reporting on charges. [Indeed, when asked why police weren’t prosecuting the arrested individuals for crimes such as conspiracy to murder, the Police Commissioner revealed on 9 Nov that “Those options were not available to us... The offences under other legislation had not been committed. So conspiracy to commit murder, conspiracy to do those other sorts of things, those offences had not been [committed?] at all” (transcript of audio from a Morning Report interview, mentioned in http://norightturn.blogspot.com/2007/11/no-conspiracy.html Transcript is by Idiot/Savant )]

The fact that these leaks have appeared in the media hints at the possibility of manipulation of public emotions on the part of members of the police (who I presume are the sources of the leaks). While investigation of the sources of the leaks would likely conclude that the sources were lone individuals acting on their own cognizance, the NZ Police still bears some responsibility for the actions of its employees, especially if they have access to sensitive evidence or are making such provocative pronouncements which can instil great fear in the public and prejudice some members of the public against groups ascribing to certain political views.

Speculation about the motives of the police action

The fear-mongering tactics (whose necessity or otherwise we will hopefully be in a position to judge as more evidence is released to the public) are objectionable regardless of the motives of the police. No matter what their motives, they should have foreseen the likely scary effect of their actions. But we can also ask what the motives were, quite independently of these objections.

I am not aware of any information that would lead me to think there was an explicit plan in the government or among police to use the arrests (even if they did not result in charges under the TSA) as a way to scare activists into being less vocal in their activism or to scare the wider population of Aotearoa, or to paint certain political causes in a bad light.

I find it hard to think that this showy action was not carried out with some purpose in mind. I say this because (1) I expect it is hard and expensive to carry out the coordinated raid involving 300 police rather than make low key arrests independently of one another and at different times as resources allow. (2) I would think the police would not repeatedly use terms like terrorism lightly, nor seek search warrants under the TSA lightly and would have a motive for doing so.

What that motive is, if one exists, we can only speculate. It might be to justify budgets of various agencies or task forces either in the police or in the intelligence community which are given the task of keeping tabs on terrorism in Aotearoa. If the agencies find no terrorists over a span of several years, their budgets may well be cut (and jobs lost) if the government thinks anti-terrorism task-forces are unnecessary in Aotearoa. For example, there is a specialist police anti-terror unit which was involved in the surveillance leading to these arrests ( http://stuff.co.nz/4238342a10.html ).

Also, some of the intelligence agencies in the country work closely with intelligence agencies of the USA, UK, Canada and Australia (as part of the ECHELON network). It may be that some individuals in our intelligence agencies feel a pull to ‘do their bit’ in what the US government has labelled the “war on terror” by uncovering potential terrorists. Perhaps these budgetary and other concerns make individuals in the relevant agencies a bit over-eager to identify groups in Aotearoa as terrorists. Perhaps the mere scare of terrorists, even if no charges are filed under the TSA, will keep the issue of terrorism alive in the minds of NZ parliamentarians so that they do not cut budgets.

At the moment, we can only speculate. Hopefully more information will come to light allowing us to make more justifiable conjectures about motives.

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