Villagers argue for 'transparency' in Afghan raid inquiry, while govt agencies want it held in secret

Wednesday, 31 October 2018

Former residents of Afghan villages allegedly raided by the New Zealand Defence Force say an inquiry into the raid should be held in public.

Their submissions into the inquiry process, along with those lodged by government agencies and the media, were released on Wednesday.

The Attorney General David Parker gave the go-ahead to launch an inquiry in April into claims contained in the book Hit & Run, written by investigative journalists Nicky Hager and Jon Stephenson.

The book details an SAS raid in August 2010 in Tirgiran Valley, Afghanistan. The authors say six civilians – including a 3-year-old girl – were killed and 15 injured. They also allege the raid was covered up by the military.

READ MORE:

*** Defence Force unit to fight Hit and Run claims

* Author Jon Stephenson pleased with inquiry, but queries Govt 'muddying waters'

* Defence Force admits book's location right, but denies civilian casualties

* Chief Ombudsman backs NZDF's refusal to release information about Operation Burnham**

The Defence Force refutes the claims, and the former chief, Lieutenant General Tim Keating, has said Operation Burnham was 'lawfully carried out, with clear rules of engagement'.

The inquiry will be led by former Supreme Court Judge Sir Terence Arnold and former prime minister Sir Geoffrey Palmer. The inquiry heads have previously said they are likely to hold much of the hearing behind closed doors.

The Defence Force and other Government agencies also want the hearing held in private.

In a minute released last month, the inquiry heads said some of the people, such as Afghan villagers, were vulnerable.

They also noted many of the documents from Government agencies were classified and some of them were controlled by foreign powers, including international organisations such as NATO.

'The Inquiry notes that it has already been approached by people who say they have relevant information, but who want assurances of confidentiality before they are prepared to speak to us or give evidence,' the minute said.

The inquiry was also looking at taking an inquisitorial and investigative approach, rather than operating under an adversarial format where lawyers represent the various parties, lead witnesses and cross-examine.

The inquiry heads had not yet made a full and final decision and had invited the parties to attend a hearing. A date had not yet been scheduled.

THE FORMER RESIDENTS OF KHAK KHUDAY DAD AND NAIK

Counsel for the residents submitted the inquiry should be held in public, arguing that transparency and public access were 'key to conducting an effective and independent investigation'.

The residents argued for open justice, saying the general public had the right to be informed and aware of proceedings.

'This is necessary in order to maintain public confidence in the inquiry.'

THE NEW ZEALAND DEFENCE FORCE

The Defence Force argued that the inquiry process should not be fully open to the public.

It said that would ensure that witnesses provided all the information they had and that classified documents were protected.

The defence force also noted that the identity of SAS troops had always been protected, and holding the inquiry out of the public eye would allow that practice to continue.

NICKY HAGER

The veteran journalist said holding an inquiry behind closed doors would not produce a fair and accurate result.

He asked the inquiry to have an independent person assess the classified documents and then decide whether they should remain classified.

He said he would not participate in the inquiry if it was held behind closed doors as he did not want to legitimise such a process.

JON STEPHENSON

The journalist and author said all documents should be made available to the parties signing non-disclosure agreements.

For top secret material, counsel could get security clearance or special advocates with security clearance could be appointed by the inquiry to review the material.

THE GOVERNMENT COMMUNICATIONS SECURITY BUREAU, THE NEW ZEALAND SECURITY INTELLIGENCE SERVICE, AND THE MINISTRY OF FOREIGN AFFAIRS AND TRADE

The material held by the Government agencies that fell within the terms of reference of the inquiry would be supplied to the inquiry, the agencies said.

When it came to classified documents controlled by foreign governments and agencies such as Nato, the security services would seek to get permission to release them to the inquiry.

THE MEDIA

Media organisations, including Stuff, argued for open justice in their submissions..

The media argued that the matter was in the public interest and the inquiry would impact on the public reputation of the defence force.

The organisations said they were seeking to report as much of the evidence as possible as well as identify who was giving the evidence and to what extent the evidence was being contested.

The Defence Force and other Government agencies want the inquiry into a military raid on an Afghanistan village held behind closed doors.