Foreign Affairs Sought Offshore Critique Of RSAA

A series of foreign affairs documents obtained by Scoop reveal the New Zealand government initiated a response from France, Belgium and Switzerland inviting those countries to criticise a judicial Refugee Status Appeals Authority report supporting Ahmed Zaoui.

Official New Zealand foreign affairs documents have been obtained that show the government solicited a critical response from France, Belgium and Switzerland to discredit the RSAA decision favouring Ahmed Zaoui.
Image by Jason Dorday

Ahmed Zaoui is a democratically elected Algerian MP imprisoned without charge in New Zealand (currently for 19 months) due to the Security Intelligence Service (SIS) issuing a security risk certificate against him. The SIS's risk certificate was issued on March 20 2003 and stated that Ahmed Zaoui was a risk to New Zealand's national security.

The Refugee Status Appeals Authority (RSAA) was critical of evidence now believed to support the SIS view that Ahmed Zaoui is a threat to New Zealand’s national security. The evidence supported French and Belgium passport convictions and included being in the company of persons believed to be conspiring to commit an illegal act. Scoop below, presents for the first time evidence that shows the French case was corrupt.

The RSAA is a governmental body led by three senior appointed lawyers who investigated Mr Zaoui's background and convictions levelled against him in France and Belgium. The RSAA deemed on August 1 2003 that Mr Zaoui had sound reason to seek asylum in New Zealand and that he be considered a refugee under New Zealand and international laws.

It followed that New Zealand’s RSAA found the French and Belgium judgements to be "unsafe" - meaning the judgements were of a standard not acceptable if considered under New Zealand law.

The RSAA ruling was damaging to the government’s assertions that Ahmed Zaoui was a risk to New Zealand’s national security. From August 1 2003 until December the government sat silent - that is from a foreign affairs perspective. However, after a High Court judgement of Justice Hugh Williams critical of the government’s handling of judicial process became public on December 19 2003, Ministry of Foreign Affairs and Trade (MFAT) action was kindled.

Documents obtained by Scoop show on December 22 2003, MFAT sent a note to New Zealand's Berlin and Paris embassies stating: "In liaison with (blanked out) are asked to approach host governments as necessary to seek comment on criticism of Belgium, France and Switzerland by the Refugee Status Appeals Authority (RSAA). Comment is needed asap, certainly no later than mid January if at all possible...We wish to ensure that the European authorities concerned have an opportunity to respond to the RSAA's criticism of them. Their responses will be relevant to the Inspector-General's review of the security risk certificate. Their responses will be made public."

The MFAT note was copied to the SIS’s Richard Woods, to the Prime Minister’s Department’s Mark Prebble, to the Immigration Service’s Andrew Lockhart and Graham Buchanan, and to Crown Law.

MFAT Wellington told the offshore posts the exact pages of the RSAA judgement that the Europeans should comment on - Belgium pages 116- 171, Switzerland pages 171-180 and France pages 182-197. MFAT added: “Because the responses will be made public, we would appreciate resulting actual documents on appropriate letterhead.”

Immediately, New Zealand's Ministry of Foreign Affairs and Trade via its Paris and Belgium offices issued a series of communiqués and calls to both the French and Belgium governments’ foreign ministries inviting the two governments to publicly criticise the RSAA – and to be mindful that their responses will be issued to the media.

The MFAT exchanges continued.

New Zealand’s European-based officers replied to MFAT Wellington on December 23: “We discussed this case yesterday with the Belgium Foreign Ministry and they undertook to find out where the matter was being addressed within MFA and other ministries… Today, having discussed the matter further with (name withheld) we have made contact directly with the Cabinet of the Minister of Justice and the Cabinet of the Minister of the Interior…

“In conversation with both Ministers’ offices we were able to reinforce informally the urgency we attach to getting a response from the Belgium authorities. We also sent electronic versions of the RSAA report to the two Ministers’ offices. Both (name withheld) and (name withheld) showed an immediate understanding of the nature of our request and seemed willing to give it early attention,” the MFAT notes stated.

Likewise MFAT’s Paris office sent a note back to Wellington stating: “The QUAI say they should be able to arrange for the Ambassador to meet with the Foreign Ministry legal Affairs (blanked out) in the first week of January 2004 – 6 or 7 most likely. We will send them a copy of the judgement this week. We take it that the key area of interest would be pages 174-189, rather than the comments on French policies towards Algeria in the judgement…” the note stated.

The highlighted pages of interest in the RSAA that MFAT drew to France’s attention specifically criticise France’s judicial process.

Unfortunately for MFAT the French were rather slow to get enthused. Several notes over the following weeks show MFAT hounding the French into making a response.

On March 24 a note was posted to Wellington: “We have been in touch several times with the Legal Affairs department of the French Foreign Ministry to follow up the calls we made in January. Most recently we spoke on 24 March to (name withheld) who advised that the Ministry of Justice is continuing to examine the RSA report. (name withheld) concluded that there would be a written response but he could not be sure at this stage when this might be forthcoming.”

Again on April 5: “Separately, we were in touch again with the French Foreign Ministry legal division, and learned that the French Ministry of Justice has now completed its appraisal of the RSAA report. (name withheld) expected to have a formal response with us later this week. We will send this to you as soon as received.”

The note added it had just received a copy of the SIS’s summary of allegations from MFAT-London and that it proposed to forward this to French authorities.

On April 7 the French Foreign Ministry responded in writing: the French said that while the RSAA analysis was “highly contestable” it considered “detailed observations” on the Zaoui case did not seem necessary. Belgium earlier had issued a statement concluding: “The report from the New Zealand refugee screening and recognition agency shows a definite lack of familiarity with the judicial system in place in Western Europe…” But added: “Association to commit offences and association of criminals are not on the statute book as formal crimes in the UK. These expressions are simply translations of the notion ‘association de malfalteurs’, which is a crime in France and in a number of other EU Member States.”

In other words, Ahmed Zaoui’s Belgium and French convictions were arguably based on he having known others that were in the process of being convicted of being criminals (he not necessarily being aware of any crime) – or put simply the conviction was guilt by association based on shoddy and corrupt intelligence/police investigations.

On February 20 2004 Ahmed Zaoui's lawyers released the SIS's summary of allegations.

Image by Jason Dorday

In early April news broke in New Zealand that France and Belgium were criticising the RSAA. The New Zealand Herald was leaked a diplomatic note expressing Belgium’s criticism. On April 13 Prime Minister Helen Clark said on Newstalk ZB: “The complication is that the Refugee Status Appeals Authority chose for its own reasons to simply dismiss out of hand the French and Belgian convictions.” Weeks later, in answer to questions by Scoop chief reporter Kevin List, Helen Clark admitted she had not read the RSAA report but had been advised on its content.

Further documents obtained by Scoop indeed show the RSAA was correct is considering the French case against Ahmed Zaoui and co-defendants as “unsafe”.

It certainly was corrupt – with crucial evidence having been proved to have been planted by French police and its infamous internal security intelligence service the DST.

French judgement documents obtained by Scoop under the New Zealand Official Information act show charges against co-accused and fellow FIS member Moussa Kraouche were dropped after it was proven that supposed documents supporting terrorism - that police, security police, and DST (French internal intelligence) officers stated were found in Kraouche flat – were indeed photocopies of documents issued by rival terror organisation GIA and others. The photocopies were found to have been made on the police’s own photocopy machine and planted in Kraouche’s flat while he was handcuffed and secured out of sight.

As the French judgement states: “It thus clearly appears the documents held by Kraouche were copies of documents held by the police.”

The GIA communiqué was found to be a copy of a French DST translation. The French Magistrate said: “The attitude and behaviour of the Police Authorities… their intention being to refer Kraouche to the court… In the study of documents found at Kraouche’s home, the DST services who were told of their discovery could not be unaware that the GIA communiqué seized was a copy of a translation made by their own services and they had therefore misled Justice by not advising the Court of the situation revealed.

Such is the substance of evidence provided to the French Court that supposedly demonstrated that Ahmed Zaoui and his fellow FIS members were aligned to the GIA and other armed terror groups. Thus it was that Ahmed Zaoui was convicted in absentia without personally being able to personally challenge the French courts on the sanctity of evidence heard.

A reasonably considered and fair minded New Zealand would no doubt consider the RSAA as being justified in deeming the judgements “unsafe”.

The timing of MFAT’s weird invitation to European countries to criticise a New Zealand judicial body's findings came three days after a critical High Court judgement.

Hugh Williams' judgement indicated the judicial tide had indeed turned against the New Zealand government over the Ahmed Zaoui case.

It is worth noting, poll taken at that time determined that the New Zealand public was also changing its mind on how the government was handling the Ahmed Zaoui case.

In December 2003, the New Zealand Herald reported just over half of those surveyed in August 03 said Ahmed Zaoui should go, whereas only 42 per cent in December were of the same opinion. Women too were far more likely to be sympathetic to Mr Zaoui.

It appeared the public too was becoming sceptical about the substance supposedly held by the New Zealand SIS against Mr Zaoui's background and also tired of the government's apparent hard line of ongoing imprisonment of a legally considered refugee.

It is before this back-drop that the government decided to counter a perceived slide of public confidence on this issue by utilising a co-ordinated and prolonged strategy led by, but not restricted to, its foreign affairs wing to discredit abroad the RSAA and its findings in favour of Mr Zaoui.

With reference to the High Court judgement, the government also decided to appeal aspects of Hugh Williams' ruling at the Court of Appeal.

In the first instance the perception to be engineered was to present France and Belgium as sound, accurate, and correct in their respective court convictions against Mr Zaoui. And secondly, for France and Belgium to challenge the RSAA on the accuracy of its own findings that criticised in turn the French and Belgium judiciaries. If successful, this would go a long way to plough the ground before the SIS's apparently light allegations reached the public's eyes.

NOTE: Within Hugh Williams' judgement, aspects of which are currently pending a Court of Appeal judgement, it was ordered that the inspector general of intelligence and security should consider Mr Zaoui's human rights when reviewing the security risk certificate and the accuracy of information held by the Security Intelligence Service (SIS) against Mr Zaoui. It also ordered the director of the SIS, Richard Woods, to issue Mr Zaoui and his lawyers a summary of allegations. Until that time, not Ahmed Zaoui, nor his legal team, were permitted to know what allegations the New Zealand government held against him.

The SIS planned to release the Summary of Allegations to Zaoui's lawyers in January. Expecting a public shudder at the lightness of the allegations, the French and Belgium criticisms offered offshore weight to bolster the New Zealand SIS's claims.

In conclusion: On June 28 the Supreme Court of the United States found it was unconstitutional for the executive to detain indefinitely ‘enemy combatants’ at Guantanamo Bay. It appears human rights are again being considered worthy of consideration.

Weeks later Great Britain considered what effect retrospective tinkering of facts by security intelligence agencies - as a prelude to the Iraq invasion - had on tainting the quality of intelligence used to assert influence over public opinion. In the United States the 911 commission’s investigations into its Central Intelligence Agency’s performance in deciphering intelligence and flagging the same to its executive to act upon is damning.

The findings provide a caution to all governments intending to rely on intelligence alone to assert a manipulating influence on a population.

In the Ahmed Zaoui case, it appears New Zealand is overly relying on information provided to it by foreign states that have their own respective national interests of bias and flaws.

In the UK the recent Butler report stressed the limits of security information, a difficulty in assessing it accurately, and a need for cross-checking and corroboration.

So far, that debate would seem to have passed New Zealand by entirely.

Generally in criminal cases, New Zealanders are well aware of instances where officials (namely the Police) have abandoned justice principles to assert influence over an outcome - the Arthur Thomas murder convictions being paramount among them. In that case, evidence was withheld and planted to ensure a conviction of an innocent man. Arthur Thomas spent nine years in prison – as a consequence a double-murder has remained unsolved and a killer was never brought to justice.

Ahmed Zaoui is approaching two years in prison in New Zealand without charge and without recourse to normal rights of judicial recourse, namely it remains that New Zealand law prevents the SIS of disclosing security intelligence information to back its allegations against Mr Zaoui.

Simply put, in Ahmed Zaoui's case, disclosure of evidence has been refused point-blank, and factual reasons for his imprisonment denied ensuring a situation exists that's impossible to challenge.

Scoop investigations show it is now clear the Government and its agents, both official and compliant media, ensured a diplomatic environment was created to discredit the sole governmental body, the RSAA after it challenged the Security Intelligence Service's allegations and New Zealand's right to hold Algerian refugee Ahmed Zaoui indefinitely in prison.

Certainly from the evidence acquired by Scoop, the New Zealand government too is not immune from employing retrospective tinkering tactics to ensure public opinion rallies behind it as it moves to achieve a desired outcome involving the Ahmed Zaoui case.

The New Zealand public's watchdog, charged with ensuring our government and intelligence agencies do not fall prey to such questionable methods, is the Inspector-General of the Intelligence Services (IGIS).

Former High Court judge Paul Neazor, the newly appointed Inspector General, is the only check we have on the reliability of SIS evidence. However, his remains a part time job, with no research staff to help him analyse and corroborate agency acquired evidence put before him.

When announcing Neazor's appointment on April 26 2004 Prime Minister Helen Clark suggested changes were being made to move the Inspector-General's office from the Prime Minister's Department to under the Justice Department's umbrella - this to aid an appreciation of independence.

Helen Clark added Neazor would likely be offered communications and other support not previously made available to his predecessor Laurie Greig.

However, weeks later disturbing arguments were pressed by the Crown, during Court of Appeal proceedings on the Zaoui case. Solicitor-General Terrence Arnold argued that when it comes to the review of the SIS evidence against Ahmed Zaoui, the IGIS should rely on the expertise of the SIS Director Richard woods when assessing all the evidence presented.

Surely this argument defies independence and compromises Neazor's role who is charged to provide the New Zealand Public an assurance that our Security Intelligence Service has got it right in this instance.

Full Coverage: See… Scoop's Ahmed Zaoui case feature…

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