Intelligence agencies also failed to follow up civilian casualty and torture reports – Inspector-General of Intelligence and Security report released today

A second inquiry into civilian casualties and torture of a prisoner, conducted by the Inspector-General of Intelligence and Security (IGIS), was also released today. The report looks at the actions of the two main New Zealand intelligence agencies, the Security Intelligence Service and the Government Communications Security Bureau, both of which had staff in Afghanistan assisting the NZDF military operations. It is a sister inquiry to the Operation Burnham inquiry.

The IGIS report independently confirms the two main allegations in the book Hit & Run: that there were strong reports of civilian casualties after Operation Burnham that should have been investigated by New Zealand agencies but were not; and that New Zealand authorities handed over a prisoner to the Afghan secret police when there was a high risk he would be tortured, and then did nothing when they learned he had been tortured.

Operation Burnham

The IGIS inquiry found that both the NZSIS and GCSB staff gathered intelligence in preparation for Operation Burnham and then helped assess the casualties and damage in the days afterwards. The inquiry finds, based on intelligence agency records, that “it soon became apparent from intelligence reports that none of the targeted insurgent leaders had been killed in the raid on the village.” (para 34)

The report states: “it is indisputable on the evidence we saw that the reasonable possibility of some civilian casualties was known to the intelligence agencies shortly after Operation Burnham. We found civilian casualties were referenced in a significant volume of intelligence available to them.” (para 36)

In other words, the people responsible for collecting intelligence were well aware of the civilian casualty reports from soon after the NZSAS raid. Moreover, the IGIS report says “We saw evidence
that at least two Wellington [GCSB] team employees were concerned about the deaths of civilians
and raised this with management.” (para 37) But IGIS finds that the agencies took no action on the reports.

The report concludes on civilian casualties:

Both agencies actively supported preparations for Operation Burnham. Afterwards, there was a consistent theme of civilian deaths in the totality of the intelligence they held. In all the circumstances, and given the extent and nature of their involvement, the New Zealand intelligence agencies should have taken a broader and more proactive approach to their role at that point. This means more than accurately reporting the intelligence to interested partners by standard methods. In the Inquiry’s view the NZSIS and the GCSB were especially well placed to ask the following questions in wider Government circles: did the reasonable possibility that plainly innocent civilians were killed in the NZDF led operation, to which they contributed, require any part of the New Zealand Government (as a matter of law or ethics or State sector propriety) to take any further steps? In particular, should anyone “assess” whether civilians have been injured or killed? Should Ministers receive a focussed briefing on the picture of civilian casualties, and/or should legal advice be obtained? (para 50)

Prisoner torture

As with Operation Burnham, the IGIS report finds that the NZSIS and GCSB staff played “a significant role” in the capture of the known insurgent Qari Miraj. An NZSIS officer was involved in decisions to hand over New Zealand prisoners to the Afghan National Directorate of Security (NDS). Two weeks later NZSIS “released a report of a confession made by Miraj... which had been ‘officially passed to NZSIS by a senior NDS Officer’.... Management within the NZSIS and the GCSB raised no questions about the conditions under which the confession report was obtained.”

Reports of torture emerged soon afterwards. “In late February 2011... New Zealand Government officials became aware of information that included an allegation of Miraj’s torture while in NDS custody. The suggestion was that the torture had led to Miraj’s earlier confession.”(para 68) “On 25 February the GCSB recorded this torture allegation in a document which it shared within the New Zealand Government.” (para 69)

Again, the IGIS inquiry “heard evidence from some members of the Wellington team that they were
shocked by the allegation of torture. The Team Leader took immediate steps, on 25 February
2011, to inform senior managers of the allegation.” (para 73) “The GCSB ensured that the record of the torture allegation was shared appropriately with other Government agencies. The Team Leader of the GCSB team additionally took the proper step of drawing the attention of senior management to the report.” (para 80)

But no practical action of any sort was taken. Meanwhile, “The Inquiry found that the NZSIS did not turn its mind to the question whether there was any realistic risk Miraj’s confession was obtained as the result of torture or mistreatment, and if so, whether that led to any subsequent responsibilities, legal or ethical, in the particular circumstances.”(para 87)

“NZSIS receipt of the report from NDS did not trigger any processes within the NZSIS to check whether there was an inherent risk of abuse associated with the confession report. As with the GCSB the organisational response to the confession was the operational consumption of the intelligence it contained.” (para 88)

Instead, the IGIS inquiry found that the NZSIS was encouraging the NDS, “on behalf of the New Zealand Government” (para 90), to continue to detail the prisoner. “In the Inquiry’s view, these facts squarely put a duty on the New Zealand Government, through its relevant officials, to assure itself that there was no real risk that Miraj was being tortured or mistreated. In particular, we are concerned that despite the concerted effort to keep this particular individual in custody, NZSIS did not, either separately or in conjunction with other New Zealand agencies, identify any responsibility to ensure the New Zealand Government understood the conditions of Miraj’s detention and to assess whether they were appropriate in light of New Zealand’s legal obligations.” (para 91)

The IGIS report says: “We conclude that NZSIS simply failed to see for itself the significance of the reported allegation of torture.” (para 96) “The NZSIS should have recognised that it needed to undertake due diligence with respect to the serious risk of mistreatment to Miraj even if NZDF, MFAT and others failed to do so.” (para 102)

Mr Hager thanks the IGIS for all the work it did to investigate these events and then make them available to the public in an unclassified form. “The intelligence agencies of course dislike being criticised, but this report is practical and fair and will help future intelligence staff to do their jobs better. It shows the great value of an independent Inspector-General of Intelligence and Security. It is very important that intelligence agency actions can be reviewed in this way.”

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