The review of the Terrorism Suppression Act is most welcome. The Greens support it because around the world anti-terrorism legislation has been subject to much criticism.
Such legislation was also discussed in a major report commissioned by the Secretary-General of the United Nations, Kofi Annan, and delivered to him on 2 December. This was called the High-level Panel on Threats, Challenges and Change. The panel said it had received widespread feedback that, in its words:
“The current war on terrorism has in some instances corroded the very values that terrorists target – human rights and the rule of law.”
We have had a reinforcement of that judgment with more and more reports of mistreatment and torture by American personnel at Guantanamo Bay, and both American and British forces in Iraq. We have had our own shameful episode with regard to Ahmed Zaoui, who was imprisoned without charge for 2 years but now, thankfully, is out of prison.
A big problem with the anti-terrorism legislation since September 11 is that those who have been most keen to drive it through have been themselves guilty of terrorist acts.
We need only look at how the United States forces have operated in Iraq. The devastation of Fallujah by American bombs and missiles was clearly terrorism. American forces knew that most of those killed would be civilians, yet they went ahead. They wanted to teach the people of Falluhah a lesson – that supporting the resistance carried a heavy price and that if they do not let US troops occupy their cities, they risk the destruction of their cities. This was a replay of United States policy in Vietnam four decades ago. Members might remember a US general proclaiming that he had to destroy a Vietnamese village in order to save it.
Unfortunately, because America is the superpower it gets off too lightly when it engages in what could be called State terrorism. So also do some of its allies. Let us look at what has happened over the past week, following revelations that an Israeli diplomat was expelled from Australia and the press was reporting the expulsion had something to do with the attempt by Israel’s Mossad spy agency to fraudulently obtain New Zealand passports. It is rather odd that our Minister of Foreign Affairs and Trade said that he was not going to investigate this matter on our behalf, even though two Mossad agents had been jailed for this fraud and there was evidence that this particular Mossad operation against New Zealand had been run out of Australia.
The relevance to this review of the Terrorism Suppression Act is that this Mossad operation was the only potentially terrorism-linked operation in New Zealand since the bombing of the Rainbow Warrior in 1985. Israel has used false passports to engage in state terrorism in the past. In 1997 one of its operatives used a false Canadian passport in an attempt to assassinate a Palestinian leader, Khalid Meshaal in the Jordanian capital, Oman. Has Mossad been designated a terrorist organisation under our Terrorism Suppression Act? No. This Act does not accommodate such State terrorism.
Matters would be even worse if the Israeli newspaper Haaretz were correct in saying that our Security Intelligence Service has a relationship with Mossad and that Mossad was pressuring it to sweep the passport fraud under the table. I do not believe that our SIS would have played ball with Mossad in those circumstances, but it may well be that the SIS and its Australian partner, the Australian Security Intelligence Organisation, were not looking out for Mossad terrorism. One of the jailed Mossad agents, Eli Cara, was able to run a dummy tourism company in Australia, north of Sydney, and to travel between New Zealand and Australia 24 times in 2 to 3 years without detection.
One of the main concerns expressed by submitter after submitter when the terrorism suppression legislation went through the Foreign Affairs, Defence and Trade Committee before it was enacted was that the definition in the legislation of a terrorist or a person who is helping a terrorist is too broad.
The definition could potentially cover visitors to New Zealand from liberation movements overseas, or people in New Zealand who support those movements. It could even cover New Zealanders engaged in non-violent domestic protests or strikes, if their actions were deemed to disrupt infrastructure facilities in a manner that endangered human life – because, according to the definition in the Act, there does not have to be an intention to endanger human life.
The definition of terrorism provided by the high-Ievel panel reporting to Kofi Annan at least has the virtue of being restricted to acts “intended to cause death or serious bodily harm to civilians or non-combatants”. It gets away from the problematic reference to simply disrupting infrastructure that is in our Terrorism Suppression Act.
Another problem with the designation of terrorist organisations is that it is a political process under the authority of the Prime Minister. We have seen how this type of political designation process can go wrong, in the case of Ahmed Zaoui. The Government put him in jail as a high security risk, but 2 years later it came up empty-handed when the Supreme Court asked it for evidence as to why he should not be given bail. Now he is free.
The people currently designated as terrorists under our Act are essentially those whose names have been provided by UN agencies. The high-Ievel panel reporting to the UN has expressed concern that this process is not adequate. One of the panel’s recommendations is:
“The Al-Qaeda and Taliban Sanctions Committee should institute a process for reviewing the cases of individuals and institutions claiming to have been wrongly placed or retained on its watch lists.”
There is no proper judicial process whereby those labelled as terrorists by the UN committees have the right to contest that designation, either before or after the event.
New Zealanders are being affected by the very large so-called terrorist watch list operated by the United States. Last year a New Zealander, Mohammad Abbas, had his money transfer from New Zealand to his family in India delayed for a month because his name matched that of a person on the huge US watch list.
At least under New Zealand’s Terrorism Suppression Act there is recourse to a court after an individual or group has been designated as a terrorist. But this process is flawed, as is illustrated, again, by the Zaoui case. Mr Zaoui has been handicapped by the Government claiming that it has classified information on him – infomation that he has not been allowed to see in 2 years.
The Terrorism Suppression Act allows for a similar withholding of crucial information in court proceedings following the terrorist designation, on the basis that this information is classified. In the US, Britain, Australia, and New Zealand alleged terrorists have not been allowed a proper judicial process to clear their names. The Supreme Court in America, the law lords in Britain, and the courts in New Zealand are, bit by bit, trying to overcome unjust anti-terrorism administrative procedures and re-establish proper judicial oversight.
Last December the British law lords brought down a landmark ruling that the Government was acting illegally by indefinitely detaining foreigners suspected of terrorism without charging or trying to charge them. The process was labelled a violation of European human rights laws. One of the judges, Lord Leonard Hoffman, said:
“The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.”
And it is for this Parliament too.
That is why this review process is so important. As Lord Rodger said in the law lords’ judgment:
“There is also a danger that, by its very nature, a concern for national security may bring forth measures that are not objectively justified. Sometimes, of course, as with the Reichstag fire, national security can be used as a pretext for repressive measures that are really taken for other reasons.”