Reportedly most (and possibly all) of the Royal Commission investigation into the Christchurch mosque shootings will be closed to the general public and to the media.

Oh sure, come delivery date in December there will be some kind of “public-facing” document containing conclusions and rationales, but there will have been no interim way of scrutinizing the inquiry’s rigour, or how fairly its findings reflect the evidence.

What is it about New Zealand… that the moment something happens involving our defence forces or security services, a blanket of secrecy gets tossed over the proceedings? This only undermines public faith in the competence of the services being exempted from scrutiny. The usual justification is that if any inklings of how the security services do their job were allowed to escape into the public domain, this would provide wrong-doers with a ‘how to’ manual to avoid detection. Hey, if only the security services were that good. On the evidence though, serious jihadis and white supremacists aren’t waiting to discover chinks in the fortress of SIS invincibility before they make their moves.

This should be a no-brainer. By all the available evidence, the SIS imported the priorities of our Five Eyes security partners (jihadi terrorists) into a New Zealand context where they had little or no relevance. In doing so, the SIS missed the real threat. Therefore, the SIS shouldn’t now be allowed to invoke secrecy around the same flows of information whose downstream consequences are what this Royal Commission has been set up to evaluate.

Operation Burnham

We’ve been to this same place of course, in the relatively recent past. In the Zaoui case in the early to mid 2000s, the SIS declared the Algerian refugee to be a threat to our national security – even though a month after it reached that conclusion, a more thorough investigation by the Refugee Status Appeals Authority had provided ample reasons for concluding that the SIS had erred. Largely to save face, the SIS then tried to bend the facts to fit its fanciful interpretation. Crucially, it used secrecy to hide the paucity of this evidence (and its outlandish interpretations of it) until its case eventually collapsed nearly five years later. Arguably, secrecy tends to do more harm than it prevents.

Unfortunately, the Operation Burnham inquiry into the allegations contained in the book Hit & Run has also adopted a default setting of secrecy. So much so – and at such cost to the natural justice rights of the Afghan villagers who bore the brunt of the 2010 raids - that lawyers for the Afghan villagers have sought a High Court judicial review to challenge the level of secrecy that the inquiry has chosen to adopt. As Deborah Manning, the lawyer for the Afghan villagers, has argued:

"This inquiry has skewed, and the skewing is that - we say that the victims of Operation Burnham are our clients [the villagers]. However, the way this inquiry has been operating is that the NZDF are the victims - they're the victims of allegations that have been made in the book and that they need to be able to defend themselves and their public reputation against those allegations…. What's happening is that the starting point is a closed process, rather than an open process with some closed aspects."

The Burnham inquiry is looking into the NZDF role in these raids. A parallel investigation by the Inspecrtor-General of the Security Services is investigating the role of the SIS and GCSB. The rules for the working relationship between the two inquiries can be found here.

Periodically the Burnham inquiry has been issuing documents relevant to its work. In this document for instance, it summarises the publically available, unclassified evidence in order to indicate where it feels the Hit & Run co-authors and the NZDF are in general agreement, and where they remain at loggerheads. One of the declared aims of these summaries is to identify the points where the inquiry subsequently needs to seek evidence from the villagers, to obtain their response to the preliminary findings about what happened during the raids.

In href="https://operationburnham.inquiry.govt.nz/assets/IOB-Files/190429-Minute-No-14-of-Inquiry.pdf" target="_blank">this earlier document, the inquiry outlined its reasoning as to why – largely for reasons of security, feasibility and cost – it would be seeking (a) only limited evidence from the Afghan villagers themselves and (b) then only after the inquiry had reached its preliminary findings, on which (c) merely a few of the villagers would be allowed to comment, and then (d) only about the behaviour of NZ forces. (Given that the US Apache gunships were called in by the NZ command, would the villagers be able to comment on their role? Unclear.) Given the secrecy that pertains elsewhere in the inquiry, it seems wildly ironic that the natural justice rights of the villagers would be partly met, in the inquiry’s view, by the extensive interviews already carried out by the co-authors of Hit & Run. Journalists apparently have a role in creating a public record. Who knew?

Needless to say, secrecy has been selectively applied in the recent past. While edited aerial video footage has been selectively used by the Defence Forces to lobby politicians, access to the relevant video has previously been denied to the lawyers for the co-authors and for the villagers, and to the general public.

Civilians in harms way

Later this week, the public and media will be briefed on such safe topics as the history of Afghanistan, how Kiwi troops came to be deployed there, the SAS command structure and capabilities, the location of the raids, the process for setting the Rules of Engagement and "the checks and balances against the undue exercise of lethal force and the methods used to safeguard civilians."

Despite this attempt to shunt an array of the least controversial subjects into a ‘public’ context and thereby defuse the criticisms over undue secrecy, that last bit should be controversial. Citing the Rules of Engagement and the formal safeguards preventing the undue exercise of lethal force on civilians means very little if they're not being observed in the field, in a combat situation. In this combat situation. A month ago, the New York Times cited a UN mission report on Afghan civilian casualties that revealed foreign and pro-government forces in Afghanistan are currently killing more civilians than the insurgents are.

For the first time since the United Nations began documenting civilian casualties in Afghanistan a decade ago, more civilians are being killed by Afghan government and American forces than by the Taliban and other insurgents, according to a report on Wednesday. Civilian deaths attributed to pro-government forces rose in the first quarter of this year even as overall civilian casualties dropped to their lowest level in that period since 2013. The United Nations said in its quarterly report that pro-government forces were responsible for 53 percent of civilian deaths…

So… it seems to be the case that pro-government forces are more dangerous than the Taliban to the civilian population despite all those formal checks and balances and avowed safeguards about the use of lethal force, and despite ten years of experience in the supposed minimisation of civilian casualties. This next bit in the NYT story seems particularly relevant, given how the Operation Burnham raids relied on US air support:

When attacked, Afghan forces often call for airstrikes by the American-trained Afghan Air Force to dislodge the enemy. Aerial operations were the third-highest cause of civilian casualties, killing 145 civilians and wounding 83 during the quarter — a 41 percent increase for those type of casualties compared with the same quarter in 2018. The report attributed almost all of those casualties to American airstrikes.

Nor has this pattern of civilian carnage been restricted to Afghanistan. Foreign Policy magazine recently uncovered the civilian casualty toll inflicted two years ago in the liberation of the Islamic State stronghold in Raqqa, Syria. Instead of the low level of civilian casualties claimed originally by the US, an Amnesty International /Airwars investigation found the civilian casualty rate was five times higher:

The United States dramatically underestimated the number of civilians killed in the U.S.-led coalition’s assault on the self-proclaimed capital of the Islamic State two years ago, according to the research of two leading human rights groups. During the four-month campaign to oust the Islamic State from the Syrian city of Raqqa in 2017, some 1,600 civilians died as a result of coalition airstrikes and bombing, Amnesty International and Airwars wrote in a new report. The United States put the civilian death toll in Raqqa at 318, according to a spokesman for the U.S. campaign to defeat the Islamic State.

This wasn’t an isolated example:

The report, drawing on nearly two years of research, also concluded that the U.S.-led coalition was responsible for a significantly higher number of civilian casualties throughout its four-year campaign to destroy the Islamic State caliphate in Syria and Iraq than it had reported.

The U.S. military estimated in February that it unintentionally killed 1,257 civilians in the fighting, which began in 2014. But Donatella Rovera, the Amnesty researcher who led the investigation, estimated that the real number was about 10 times higher. She described the level of destruction in Raqqa as “unparalleled in modern times.”

That being the case, it would seem unwise to be blocking the valid public and media interest in having relatively open access to the inquiries into the Operation Burnham/Christchurch mosque attacks for fear of disrupting a flow of information from foreign allies that (a) seems chronically inaccurate and where (b) those allies seem responsible for the very sort of civilian casualties central to the Burnham inquiry?

In the light of these reports, being subjected to a public recitation of the Rules of Engagement in Afghanistan and the formal assurances about the care taken to avoid civilian casualties looks like a pantomine of care and transparency, disengaged from what is already known about the reality on the ground in Afghanistan, then and now.

On that point BTW, the same UN/UNAMA annual report process also tabulated the rate of civilian casualties in Afghanistan during 2010, around the time when the raids under examination occurred.

While the annual average of Afghan civilians killed by air strikes fell during 2010 as a whole compared to the civilian death rate the year before, the latter half of 2010 had actually seen a steep increase in such deaths. As the UNAMA report for 2010 puts it: “There was a 48 per cent increase in civilian deaths from air strikes in the second half [of] 2010 as compared to the first half of 2010. This is linked to significant increases in the use of air assets in combat in the last half of 2010.”

Interesting. It means that the operations being examined by the Operation Burnham inquiry (on the night of August 21/22 and the Nova return operation in October) took place during this sharp uptick in Afghan civilian casualties associated with air strikes. This trend lends credibility to the account of the SAS/Afghan CRU night raids plus Apache gunship air strikes contained in Hit & Run. At the very least, the figures erode confidence in the formal assurances about the use of lethal force and care supposedly extended to Afghan civilians in the line of fire. Civilian casualties as depicted in the book were increasing elsewhere in the war zones of Afghanistan at the time.

In March 2011, the UNAMA press release made a set of recommendations to the international military forces. Among them:

• Explore viable alternatives to night raids and ensure that all search and seizure/night raids operations are jointly conducted with or led by Afghan National Security Forces, fully respect traditional, cultural and religious practices and comply with the forces’ international legal obligations of proportionality, distinction and precaution.’

• Improve transparency on Special Forces’ operations and publicly accept responsibility where civilian harm has occurred as a result of their actions.

• Issue a directive to ISAF and all US Forces-Afghanistan including Special Operations Forces stressing implementation of NATO non-binding guidelines on compensation and offering practical, detailed procedures for recording casualties, receiving claims, conducting investigations and offering amends in the form of compensation, apologies, condolences and other dignifying gestures….

Obviously, if UNAMA felt impelled to issue such recommendations in March 2011, it was because international military forces were not generally observing them already. Were our forces? Given the secretive way that New Zealand is conducting its inquiry into these particular night raids in 2010, we’ll never know for sure.

Jamila Woods’ legacy issues

You may recall Jamila Woods from that engaging “LSD” track she cut in 2017 with Chance the Rapper, but her new Legacy! Legacy! album marks a further step up. The album consists of songs loosely inspired by a number of black heroes, including Betty Davis, Zora Neale Hurston, Nina Simone etc and here – from a recent live set – is her oblique tribute to the novelist/polemicist James Baldwin:

Also… from a couple of years ago, here’s a lovely live track by Woods about feeling like an alien in inner space, and the related feeling that just because you’re born somewhere, it doesn’t mean you're from there. IMO, and speaking as someone born in Wanganui, that makes a lot of sense…

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