Paul Buchanan: Postscript on Operation 8

The dust has largely settled after the police whirlwind that was Operation 8. Yet some questions remain about the operation itself, and there are political repercussions that need addressing.

With regards to the way in which Operation 8 was planned and conducted, questions remain about the catalyst or precipitant. The Prime Minister and Leader of the Opposition stated that they were informed of the operation one week before the raids took place, yet Police Commissioner Broad claims to have ordered the action in response to information he received less than 48 hours before the raids commenced. It is possible that a general brief to the political leadership could be followed by a contingent tactical response, so the discrepancy can be reconciled. But the interrogatory remains as to what, exactly, precipitated the police action, and when, precisely, did the Prime Minister, as Minister of Security and Intelligence, know that a counter-terrorist operation was underway?

On the same note, questions must be asked as to what role the Combined Threat Assessment Group (CTAG) played in this affair. CTAG is a senior level interagency group responsible to the Minister of Security and Intelligence that draws on the resources and perspectives of MFAT, Treasury, Immigration, Defense, the Police, SIS, GCSB and External Assessments Bureau (EAB) to conduct national-level threat assessments and security risk analysis. Although primarily focused on the international security environment and the externally derived threats coming from it, CTAG is also responsible for internal threat assessment and for coordinating the response to potential terrorism in New Zealand. Security risk assessments generally focus on worst-case scenarios, both in terms of the threat as well as the fallout from countering it. Such scenarios involve the political, cultural, economic and security implications of armed intervention. CTAG presumably brings together designated liaison officers to trouble-shoot and brainstorm the nature of threats, the sequence of possible events and range of plausible outcomes when countering them, capitalizing on the heterogeneous perspectives they bring to the table. This would be particularly important in the case of Operation 8 given the first invocation of anti-terrorist legislation against domestic targets rather than the foreign entities that are the priority interest. Given that, was the CTAG involved in the decision to launch Operation 8, and if so, at what stage of the game? It would be of serious concern if the police had acted on their own accord without consulting CTAG. It would be of even worse concern if they did.

Surveillance was conducted by means of a hub and spoke network analysis in order to establish a terrorist conspiracy wheel. The police bugged the communications of one mentally unhinged individual with anti-social tendencies and a compulsion to boast. They then ran through the list of people he communicated with, tapped into their phones and computers, zeroed in on political activists, ran cross-searches on their contacts, and used human and technical intelligence collection to confirm their collective presence in the Ureweras at various points in time over the last twelve months. Infiltrators—there is speculation that police counter-narcotics undercover agents or SAS troops using the opportunity to do some reconnaissance exercising—monitored the comings and goings from a handful of what were locally known as hunting camps or cannabis patch guard posts, deploying video surveillance technology to record the presence of those who stayed at them. The electronic dragnet, authorized by warrants issued under the Terrorism Suppression Act, identified a core of six people who supposedly combined violent anti-status quo rhetoric with a penchant for firearms and explosives. The others were considered incidental to the main plotting of the purported hardcore. Human intelligence collection confirmed the bush connection between both groups, although it remains to be seen if it can confirm that all received training in military firearms operation and guerrilla warfare tactics.

For the Solicitor-General, the evidence wheel was too rickety to sustain charges of a terrorist conspiracy. There was no legal traction, to say nothing of political mileage to be gained from prosecution on terrorism charges against this particular group of people. It would be hard to find a jury that would convict them of terrorism-related offenses, and that would have negative political consequences for the government. Evidence collected under warrants issued under provisions of the TSA will be largely inadmissible in court when the accused face charges under the Firearms Act. Perhaps that is why snippets of the communications intercepts were leaked to the media “in the public interest,” although the real motives (and sources) for the leaks are probably a bit more varied.

Other loose ends are worth noting. Under the TSA local connections with foreign terrorist groups are outlawed. It is known that at least one of those arrested visited Zapatista-controlled areas of Chiapas, Mexico in the last year. Tame Iti was deported from Fiji just weeks before his arrest and apparently visited Iran (a member of the so-called “axis of evil”) in early 2007. Could it be that these foreign connections influenced the invocation of the TSA to secure surveillance warrants? If so, the judges who issued the warrants demonstrated unfamiliarity with the law, as the TSA refers only to contacts with officially designated (by the UN and traditional security partners) terrorist groups. Tame Iti may have connections with George Speight and other indigenous Fijian coup plotters, but none of them have been designated as international terrorists (or, for that matter, has the authoritarian regime of Commodore Frank Bainimarama). The same is true of the Zapatista movement, which even the Mexican government recognizes as more an indigenous social movement than an irregular army. Iti’s visit to Iran was apparently for business, not terror, and he did not associate with elements of the Revolutionary Guard that the US has tried to brand as a terrorist organisation. Thus even if these international linkages are proven, they do not fall within the purview of the TSA because they were not with officially designated terrorist organizations. Given the recently passed amendment to the TSA that allows the Prime Minister rather than the High Court to designate terrorist groups, it is now easier for the government to target political dissidents under the guise of fighting terrorism, but even that unhealthy temptation cannot be applied retroactively to the people arrested in Operation 8.

The charges under the Firearms Act are also of interest. One individual was charged with being in possession of two .22 caliber cartridges. Reports have it that a handful of firearms were seized in the raid, of which only one had potentially military-type configuration. A couple hundred rounds of ammunition, mostly .22 caliber, were also seized. So far, no AK-47 or modified automatic weapons have been produced by way of evidence against the accused. Nor have the purported “grenade launchers” ostensibly used at the training camps. If that is the level of proof that the police have with regards to Firearms Act violations, their case is on thin ice.

So is the attempt to charge people with violations under the Firearms Act or Misuse of Explosives statutes (codified in the 1957 Explosives Act, 1974 Dangerous Good Act, and 1979 Toxic Substances Act, now all subsumed under the 1996 Hazardous Substances and New Organisms Act (HSNO)). It is alleged that some of the accused were in possession of bottles of kerosene or quantities of jellified petrol. So-called Molotov cocktails—be they based on petrol, kerosene or other combustible liquids--are not firearms or explosives. Firearms are ballistic devices that fire projectiles using inert material as propellants. Explosives are percussive, fragmentation or concussive devices that utilise rapid chemical reactions triggered in a number of ways to cause explosive releases of kinetic energy. Although they can be configured in combination with other materials so that they are effectively made into explosives, in and of themselves Molotov cocktails and homemade “napalm” are technically defined as incendiary devices that do not fall under the scope of either the Firearms Act or any laws dealing with explosives or hazardous materials.

In fact, under Schedule Seven (Part D section 223) of the 1996 HSNO ACT titled “Explosives,” there is no mention of combustible liquid incendiary devices. Even US criminal law excludes Molotov cocktails from the definition of explosive, mainly because the myriad innocent or peaceful uses for combustible liquids makes it near impossible to prove untoward intent prior to actual use for such purposes. Unless the incendiary devices found in the police raids show unmistakable proof of being configured in a way that would cause ballistic, percussive, concussive or fragmentary effect (which would take at least a modest amount of technical acumen), they cannot convincingly be covered under the Firearms, Explosives, Dangerous Good, Toxic Substances or HSNO Acts.

At best the Environmental Risk Management Authority (ERMA) can lay charges against those found with bottles of rag-stuffed petrol under the HSNO Act for improper storage of flammable liquids, but that could prove to be a discriminatory and selective application of the law given the amount of petrol stored in uncertified containers extant around the country. Perhaps the Crimes or Summary Offenses Acts have clauses the prohibit possession of improvised incendiary devices, but the same problems would apply with regard to proving that they were destined for more than common farm or household use. It would therefore seem that from what is known so far about them, even the weapons charges being laid against the so-called Urewera 16/17 are open to challenge.

The police allege that Molotov cocktails were found in a “ready to use” condition. That makes one wonder about the terrorist competence of the accused if such reports are true, since Molotovs are best constructed immediately prior to their use because of their volatility, and storing them around the house, garage or shed is an invitation to self-immolation and a visit from the Fire Brigade.

On a broader plane, the political repercussions of Operation 8 need to be considered. Besides what was mentioned earlier about possible government involvement in the planning and conduct of Operation 8 (so far denied), some interesting ramifications have risen from the event and its immediate sequels.

The issue of whether the police raids were timed to coincide with the debate about the amendments to the TSA or passage of the Electoral Finance Bill
have been much discussed and need not occupy us at length here. It is incongruous that the second reading of the TSA amendment bill was passed on the day the Solicitor General pronounced the original act to be “incoherent,” and that the entire bill was passed a week later supposedly to uphold New Zealand’s international obligations in the face of its failure in the first instance of its use. As things stand, the Law Commission will have an opportunity to review the TSA in order to determine if it should remain on the books, and it may well be more interested in coherency than foreign relations when doing so.

The matter of electoral financing is one of money and voice that has more class rather than security implications. A terrorism scare will not affect the debate on that score. However, should the TSA remain in force, it is conceivable—albeit a stretch at this juncture-- that individuals and groups in violation of the EFB (if passed) could be branded as domestic “terrorists” or “terrorist sympathizers” by the Prime Minister of the day. Ironically, many of those leading the charge against the EFB are also those most ardently in support of the TSA.

Some believe the police undertook the raids in order to divert attention from a series of internal scandals and crime-solving bungles that have diminished confidence in their professionalism and competence. If so, Operation 8 may not improve that perception even though polls show an apparent majority believe that their actions were justified. That may say more about the manufactured climate of fear surrounding the specter of “terrorism” than it does the realities of the situation at hand. Perhaps security agencies in a 9/11 era feel the need to justify their expanded budgets, personnel and purview by taking worst-case approaches to what otherwise would be relatively minor criminal matters. Anti-terrorism legislation in the form of the TSA gives them the tool to do just that.

The raids have seriously strained relations between Tuhoe and the police, and Maori have reason to ask about the way in which their grievances are addressed by the security services. Maori-Pakeha relations have been brought back into the centre stage of political debate, as has Tame Iti’s heretofore marginal sovereignty movement. The political Left has fractured over the incident, activists seeing the arrest of their mates as a brutish act of political intimidation, while more corporately-inclined socialists tending to believe that the Urewera 16/17 are to blame by virtue of the company they kept, the activities they conducted in the bush and the motives they may have had. The party Left—in this case the Greens—have been joined by the Maori Party in challenging the rationale behind the TSA as well as Operation 8, although their specific reasons differ (the Greens have principled opposition to terrorist legislation on human rights and freedom of speech grounds, whereas the Maori party appears to be more opportunistic and selectively ethnic in its opposition).As for the party Right, the National Party and United Future have remained largely silent about the affair , even with regards to the implications for civil liberties it clearly has. New Zealand First welcomes the TSA amendment’s passage and blames the activists for trying to destabilise society. Amongst the right parties, only ACT questioned (on civil rights grounds) the utility of the law and its invocation in the police raids.

The government has distanced itself from the police as the case begins to unravel away from a potential terrorism threat and towards firearms violations by a small group of blowhards and activists. Given the evidence produced so far, it certainly did not need terrorism trials to be conducted during the 2008 election campaign. Early distance on the issue and the subsequent (some might say convenient) refusal to lay charges under the TSA relieved it of that particular political burden. For the other parties, especially National and the Maori Party, the prospects for any potential relationship in a future government may well hinge on how they reposition their responses to the event. The Maori Party emerges as a swing vote strongly influenced by its activist wing, more than off-setting other possible minority coalition partners as a decisive factor in the upcoming balloting. How the two major parties court the Maori vote in light of the raids should make for interesting political theater.

Legal experts and lawyers will benefit from the case, and taxpayer dollars will be poured into a review of the TSA as well as the prosecution of the Urewera 16/17. The accused will suffer financial penalties as they mount legal defenses, and both the political right and left will posture and pose around the issue of domestic terrorism. Meanwhile, those who may be genuinely inclined towards acts of mass political violence in New Zealand will learn the lessons of secrecy and planning in order to escape detection and apprehension. As a result, countervailing domestic terrorist threats may well be more difficult to accomplish in the future for both practical as well as legal reasons stemming from Operation 8, even as concepts of civil liberties and permissible dissent are narrowed in accord with the security interests of foreign powers.

Paul G. Buchanan writes and comments about political issues.

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