Nicky Hager attacks Defence Force for making the inquiry about reputation
Wednesday, 21 November 2018
Hit and Run author Nicky Hager has launched a stinging attack on the Defence Force for a 'petty' approach to an inquiry into controversial SAS raids.
Hager says Defence Force staff believe the investigation is about clearing their name - and protecting the organisation's reputation rather than the deaths of six Afghan civilians in 2010.
'Let me be clear, the book is about what happened to innocent people when those villages were attacked. It is about civilian injuries, death and trauma and the bizarre unwillingness to go back and give medical aid and support… it is about what happened to innocents and the New Zealand responsibility to do something about that,' he told the inquiry on Wednesday.
The Defence Force 'narrative' - released in a submission to the inquiry last week - reframes the issue, he argued.
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'As if that will wash away the issue of civilian casualties…Are they suggesting the parents in fact made up a little child called Fatima who died in her mother's eyes?'
He was referring to the death of a three-year old girl, detailed in the book he co-authored with journalist Jon Stephenson.
Hager is challenging the arguments of NZDF and other government agencies who believe the inquiry should be held behind closed doors.
He argues the Defence Force is selectively using material - such as video footage shot from a US military helicopter to ' justify its version of events' in screenings to offficials and others.
But it has refused to release the material to Hager and Stephenson, or allow it to be made public, claiming US counterparts have refused permission. This was 'a worrying pattern' and 'unacceptable.'
'I submit that a fair process means that either everyone has the same access to sources like this to check and analyse evidence, or they should not be used at all,' he said.
Hager believes the information can be released, and pointed to an German inquiry which was able to gain access to US military cockpit audio. 'If the German inquiry was able to get this material, then so should New Zealand be able to.'
He presented other previously secret documents that had been used in other overseas investigations into military conduct.
Hager also said Defence Force will demand to keep the 'attack' rules of engagement - who they can kill and attack - secret.
But he found the document on a NATO website on Tuesday evening.
Classified material - and that held by overseas military and NATO is at the heart of a two-day public hearing into whether the rest of the inquiry hearings should be held in secret.
The Wellington-based inquiry is testing events described in the Hit and Run book, and the death of the six civilians including three-year Fatima.
Earlier, Deborah Manning, lawyer for the Afghan villagers, revealed the Defence Force has given up just 324 documents out of more than 17,400 relating to the raids.
She said she learned overnight about the scale of documentation yet to be disclosed to the inquiry.
Of the 17,400 items deemed relevant, the Defence Force has catalogued and processed around 9 per cent, or 1600. Only 324 have so far been provided to the inquiry.
Previous advice, received from the Ministry of Foreign Affairs in July said there were more than 2000 items of classified information . 'That is quite a difference in number,' she said.
'I am at a total loss as to what is happening in this process with regard to the provision of information by NZDF.'
She urged the inquiry chairs to ask 'searching questions' of the Defence Force about when the material would be disclosed. 'By the current rate of progress by NZDF that seems it may be may years away potentially.'
She argued: 'The provision of this information and the transparency of this information, the metadata even, is directly relevant to the matters we are trying to discuss.'
It could be a large amount is email traffic, with duplication, but there is no 'visibility,' she said.
She said villagers caught up in SAS Afghan raids will take legal action to compel the US Defence Force to hand over classified information.
Their lawyers believe there are around 480 items relevant to a Government inquiry into the 2010 military operations.
They asked for all information relating to Operation Burnham to be released under US Free of Information laws in April 2017, but have not received a response.
Manning, who is assisted by Simon Lamain, told the inquiry they are preparing to use the courts to get the information. She opened her submissions with a greeting sent by the former residents of Khak khuday Dad and Naik to the inquiry.
They said: 'salam ay lakyum' or peace be upon you.
Manning said the proceedings should not lose focus of the people who were affected by Operation Burnham in 2010.
SECRECY DEBATED
Earlier, Hit and Run inquiry chair Sir Terence Arnold said the 'ultimate objective is to get to the truth' as the Government inquiry began hearing arguments about whether proceedings should be held in secret.
Government agencies are worried disclosure could compromise security and international relations.
The inquiry is examining claims in Hit and Run, by investigative journalists Nicky Hager and Jon Stephenson. The book detailed three raids by SAS soldiers in 2010 in Tirgiran Valley. The authors said six civilians died and 15 were injured, and the events were later covered up by the military.
The villagers and the authors believe the inquiry should follow a largely open process, with public hearings and an adversarial approach, as in the court system.
Arnold and co-chair Sir Geoffrey Palmer, the inquiry chairs, have already issued a minute observing that classified material and evidence, and the participation of vulnerable witnesses mean that the inquiry cannot be fully open to the public.
Their minute says there is a risk they may not get to 'the heart of the matter' if full confidentiality is not offered to some witnesses.
The inquiry has appointed Ben Keith, the former Deputy Inspector-General of Security and Intelligence, to undertake a review of the classified information. He will also prepare summaries of classified information.
Participants have filed written submissions on the process. But the chairs wanted the arguments to be aired in public this week.
The chairs 'accept their decisions are fundamental to the success of the inquiry', Arnold said.
It would also assist in assist public understanding. 'We think it is important the public have an understanding of the competing considerations that affect the decisions we make,' he said.
Counsel assisting the inquiry Kristy McDonald QC said the inquiry was 'likely to be the most complex ever held in New Zealand'.
It will involve events which happened a decade ago in a country on the other side of the world, she said.
The inquiry should be as 'open as possible' to ensure it is rigorous and thorough. But she added: 'It is also essential to recognise the risk of public harm that can come through the inappropriate disclosure of sensitive information.'
The disclosure of highly sensitive classified information could harm national security and international relations.
Vulnerable witnessess, like Afghan nationals and whistle-blowers may need protection, she said.
'Those considerations strongly favour closed evidence sessions. On the other hand, if the process adopted is unduly private and secret, it could affect public confidence in the outcome.'
Much of the material relevant to the inquiry has high-level security classifications. She says some was created by overseas governments or is subject to international obligations.
McDonald noted that in overseas inquiries into military operations 'one common experience … is the tendency to over-classify, or to resist reclassification or de-classification where it is warranted'.
She also pointed to the confidential sources used by Hager and Stephenson, many of who are serving or ex-military and security service personnel.
'They are likely to have concerns about their reputation, careers and livelihoods, should their identity become public,' she said. 'Anonymity may well be a requirement if these people are to come forward.'
She said similar considerations apply to whistle-blowers. 'The process adopted needs to provide them with the confidence they can come forward and be frank with the inquiry about what they know.'
McDonald also noted that the inquiry must avoid unnecessary delay or cost to the public. Having both public and private hearings could also lead to an incomplete public picture of the evidence.
The inquiry, established in April, is expected to take a year.
It is examining three operations. Objective Burnham took place on August 21 to August 22, 2010. Objective Nova was a return operation to the Tigiran Valley on October 2 to October 3, 2010. The transfer of insurgent leader Qari Miraj by the SAS to the Afghan National Directorate of Security is also under scrutiny.
It is also considering the Defence Force treatment of reports of civilian casualties, and the rules of engagement.
Hearings continue through Wednesday and Thursday and transcripts are expected to be published online next week.