Aziz Choudry Wins Case Against SIS
Out Of Court Settlement; Damages; Government Apology
Murray Horton (taken from Peace Researcher 19/20, November/December 1999)
Peace Researcher has been following this story since it first started, back in 1996, and we’re pleased to report that we have some good news to report, a rare victory in fact. Aziz Choudry has won his case. The Government has settled it out of court; has paid him damages (the amount of which, as part of the settlement, remains confidential in perpetuity); paid his legal costs; and, most significantly, begrudgingly apologised to him.
To refresh your memories, let’s recap the events. In July 1996 Security Intelligence Service (SIS) agents were caught breaking into the Christchurch home of GATT* Watchdog’s Aziz Choudry, during activities to counter the Asia Pacific Economic Cooperation (APEC) Trade Minister’s Meeting. Aziz sued the Crown for $300,000 and the first preliminary legal questions came before the Christchurch High Court, in 1998. It was at that point that the SIS admitted that it was their agents, but claimed that the break-in was legal, as they were authorised by an interception warrant. (*GATT= General Agreement on Tariffs and Trade, now called the World Trade Organisation, and headed by New Zealand’s very own Mike Moore).
In August 1998, Justice Panckhurst ruled that he was not prepared to accept a blanket defence of “national security” as good enough reason to withhold from Aziz a large number of documents (including the interception warrant) needed to pursue his civil damages claim against the Crown. Panckhurst had specifically rejected a certificate signed by Jenny Shipley, Minister in Charge of the SIS (it’s always the Prime Minister) asserting immunity from producing the documents. Panckhurst ruled that he wanted to inspect the documents for himself, at the SIS’s Christchurch office, before ruling on their release. The Crown appealed. In December 1998, the Court of Appeal ruled that Shipley be given until February 1999 to produce an amended certificate with more details on why the documents should be withheld; then it would rule on whether or not they should be released. The judges were quite scathing in their opinion of the Crown case. Justice Thomas said: “The Courts today are not prepared to be awestruck by the `mantra’ of national security”. The amended certificate was duly produced, along with 20 of the disputed 70 SIS documents (released in full or part) and was the subject of a further Court of Appeal hearing, in April 1999. Once again, decision was reserved.
Court of Appeal Backs Down
That decision was delivered in July 1999 and it was a major climbdown by the Court. By a four to one majority, it ruled that judges have no place in matters of “national security”, and that Shipley’s certificate stating the documents needed to be withheld for unspecified reasons of “national security” must be respected, and Shipley herself trusted. The Court accepted that there is an unspecified “ongoing operation” that would be jeopardised (now, isn’t that intriguing?) and that allowing inspection of the documents would endanger the SIS’s operational relationship with the Police and other State agencies, such as the Land Transport Safety Authority. The minority decision, by Justice Thomas, was scathing:
“Like any citizen, Mr Choudry is entitled to access to the Courts. He has a right to bring a claim based on an alleged infringement of the law on the part of the defendant. In exercising that right he has the same expectation of receiving justice in a court of law as any other litigant. But to the extent that he is not able to achieve full and proper discovery he is disadvantaged and his right of access to the Courts is correspondingly impaired. He will not be able to obtain the justice to which he is entitled and which other litigants routinely receive. The public interest in the fair and effective administration of justice is not, therefore, an empty slogan. It reflects the rights of every citizen, including Mr Choudry...
“The Prime Minister is the Minister in charge of, and responsible for, the Service. She is not independent of the Service in the sense that Parliament and the Courts are independent of it. Further, as I have previously observed, it is to be realistically appreciated that the certificate is initially prepared by senior officers of the Service who, by virtue of the very nature of their work and their own conscientious performance of their task, may be over-zealous in their perception of the secrecy which is required. Nor, by virtue of the secrecy which attaches to the Service’s advice, can the Minister in charge look elsewhere for assistance or verification. The Minister is very much dependent on the Service.
“It should not be overlooked that the Service is a covert intelligence agency. It is by definition not an open organisation accustomed to outside scrutiny. It will not welcome that scrutiny. Its officers are by virtue of their occupation practised in the art of deception. The Service, as with any covert intelligence agency, will strive under the cloak of secrecy to protect this country from perceived subversive interests and hostile forces. There is no reason to suspect that its officers will not believe, perhaps passionately, in the importance of their task or that they will be anything other than assiduous in carrying it out. Once it is accepted that the trust necessary to accept the certificate on its face is in reality a trust reposed in or embracing the covert intelligence agency itself, the manifestation of such abiding judicial trust seems strangely out of place...
“There is an apparent inconsistency between the majority’s deprecation of the competence of Judges to assess the sensitivity of the documents and the trust placed in the Minister in Charge of the Service to do the same. Apparently, the nuances and intuitive deductions which form part of the specialist capability required for covert intelligence operations are beyond Judges but will be quickly assimilated by the Minister in charge of the Service. Certainly, the Minister working with the senior officers of the Service may seek and obtain more advice and information relating to particular documents, but it is advice and information emanating from within the Service itself. It is not difficult to perceive that in reality the Minister in charge will be close to and heavily dependent on the Service, and that this closeness and dependency will necessarily impair the objectivity which he or she can bring to bear in assessing the sensitivity of particular documents
“To illustrate this point reference may be made to the prosecution brought under s1 of the Official Secrets Act 1911 in the United Kingdom in 1977 known as “the ABC case” (in this case, ABC stood for the three defendants - Aubrey, Berry, Campbell. I was living in London at the time and attended several sessions of the 1978 trial at the Old Bailey. It was very much the cause celebre of its day. ABC - the Anti-Bases Campaign - hosted Duncan Campbell in NZ, in 1996/97. He is a world expert on intelligence matters. MH.). The Attorney-General at the time was persuaded by MI5 (British internal security and intelligence agency. Ed.) to authorise the prosecution against three defendants. Notwithstanding that it became known that the security service had secretly vetted the jury, the trial proceeded. It became a farce (emphasis added. Ed). Documents which security service witnesses claimed would, if disclosed, be a danger to national security were shown to be public knowledge, at times the publication having been authorised by MI5 itself. The prosecution under s1 was discontinued. Two defendants were given conditional discharges and one a suspended sentence in respect of the much less serious offences under s2 of the Act. Editorials called for the Attorney-General to resign or, at least, to explain why he had authorised an oppressive prosecution. The terms of his explanation are telling in their relevance to the present point. He said:
“I personally and critically questioned those who made the damage assessment … How could any responsible Attorney General ignore the unanimous views presented to me that evidence of both the material collected by Campbell [one of the defendants] and the information imparted by Berry [another defendant] could do damage ranging from serious to exceptionally grave to the national security?” (Emphasis added). (See Geoffrey Robertson, The Justice Game (Vintage – 1999) Chap. 5, pp 104-134; the above quotation is at p 133)...
"The casualty will be the administration of justice and public confidence in the legal system to ensure that public interest immunity is constrained by law. Judicial inspection may be an imperfect process but having regard to the nature of a covert security service, it is the only system available to hold the Service accountable. If the courts are not prepared to perform this supervisory function, the decisions of the Service to claim immunity will go unchecked...”
The implications of this decision are alarming. The APEC Monitoring Group, which organised the activities to counter all the APEC meetings held in New Zealand throughout 1999, said:
"This judgement is particularly disturbing coming as it does in the year New Zealand hosts the APEC forum. The Government has already shown its willingness to break the law when it comes to opponents of APEC and its free trade agenda. Given the extreme measures the Government has been willing to employ to avoid explaining the activities of the SIS during the 1996 APEC Trade Ministers’ Meeting, any assurance given that opponents of APEC in 1999 will have their right to dissent protected and respected can only be treated with suspicion and contempt... If, as this judgement seems to suggest, Jenny Shipley and the SIS are totally unaccountable to Parliament, the judiciary and the New Zealand public, then we should be afraid, be very afraid" (press release, 6/7/99).
Even the New Zealand Herald editorially attacked the Court’s decision: “Times and circumstances are changing, and with them the demand for greater accountability of elected representatives. We look to the courts to help to ensure that the Executive knows it is not immune from independent scrutiny. In deciding to accept at face value - its own words - the Prime Minister’s latest security certificate, the Court of Appeal has disappointed those expectations” (8/7/99; “Court in awe again”). The headline in a regular legal column in the Herald said it all: “Who will hold PM accountable if Appeal Court will not?” (23/7/99; Passing judgement; Steven Price). The Independent also attacked it editorially: “Suppose this case had been heard in Washington, not Wellington and the burglars had been ex-CIA men, not SIS men, and the break-in had occurred at the Watergate complex, not Choudry’s house. What would our judges have done with the Nixon tapes? Who ordered the illegal break-in? Might this information be contained in the documents Shipley wants to keep secret? Anyone valuing our civil liberties would sleep a lot better if Justice Thomas’s dissenting view had prevailed” (14/7/99; “Appeal Court abdicates its role as democratic watchdog”; Warren Berryman).
Government Admits Blame; Settles Out Of Court
Despite the Court of Appeal setback, Aziz was keen to continue the case. But the legal reality was that, without access to those withheld documents, he could not take it through to a full trial. Nor did he have the $100,000 or so needed to appeal to the Privy Council, in London. The Government had previously offered an out of court settlement (a standard procedure in suits of this kind): Aziz was amenable, so the only remaining question was the amount of damages to be paid. After some haggling, a mutually satisfactory (and substantial) sum was agreed upon. Another standard feature in suits of this kind is that the amount paid will remain confidential in perpetuity, as a part of the settlement. The damages were over and above Aziz’s legal costs - those were also paid by the Government. Plus he got an apology - nothing gracious or heartfelt, simply a statement that the Government apologised to him. This was all publicly announced in August 1999, just before the APEC Leaders’ Summit in Auckland. The Government was eager to get the matter out of the way before the VIPs and world media came to town.
Aziz has no illusions. “This is a victory but I’m unimpressed by the calibre of the apology. The Government is only really sorry that its SIS agents got caught. It has gone to great lengths to cover up its dirty tricks. The case has put a lot of issues about the SIS on the map and shown the Government to be not much better than those countries it likes to point its finger at” (Press, 27/8/99; “Activist gets Govt payout; Victory claimed over SIS”). He also said that “despite countless assurances to the contrary, the SIS had taken unlawful action against people involved in lawful dissent and protest”. Supposed checks and balances on the SIS did not work when they were put to the test in his case. The 1999 legislative amendments had expanded SIS powers, not restricted them...”Mr Choudry said he could have continued to fight the case but felt that he had to `recognise the parameters of the New Zealand legal system’. The money he had received was `small bikkies’ compared to the $10.5 million spent on the SIS each year and the $18 million APEC security was costing, he said”... (ibid).
He told the Dominion (27/8/99): “I’m pleased to have scored what I think is a rare victory over the SIS, given their long history of being unaccountable to either the public or the courts...The break-in occurred when I was involved with organising an alternative conference opposing the APEC Trade Ministers’ meeting. Ironically, the settlement comes as I’m part of a group organising an alternative conference and rally opposed to the (September 1999) APEC Leaders’ Summit”... He had agreed to the out of court settlement because: “Unless you have $100,000 to take a case to the Privy Council, then it’s actually quite difficult for an individual who has relied on the support of people in the community”.
From the moment the Government admitted (as part of its statement of defence) that it was indeed SIS agents who were caught breaking into Aziz’s house, an out of court settlement was a possibility. It became inevitable as soon as the Court of Appeal ruled that the break-in was illegal. Justice Thomas, in his July 1999 Court of Appeal dissenting opinion, said:
“I consider that it should not be overlooked that the entry and search of Mr Choudry’s home which the Service undertook on 13 July 1996, and which is central to his claim, was illegal. This is the effect of the Court’s previous judgment. Consequently, the Service has every reason to be concerned that it will be held liable for damages and that its image will be seriously damaged”.
The Government did not appeal that December 1998 decision, but rushed through new legislation retrospectively legalising all such SIS break-ins - except for the one at Aziz’s house. Thus, it clearly telegraphed its intentions. In fact, it had no option but to settle. Its one day in open court (the 1998 Christchurch High Court hearing, which was only about legal questions) had been an unprecedented and highly unsettling experience for the SIS - the prospect of a full trial, with witnesses to be cross-examined, etc, etc, had to be avoided. There is no suggestion of Aziz having sold out - he was suing for money; he won some money. It was not a case seeking a judicial review of the SIS or suchlike. It was a claim for damages arising from a specific incident, an incident that would have resulted in criminal charges by the police if committed by anybody other than covert agents of the State.
Of course, the case ends with none of us (including Aziz) any the wiser about why the SIS was breaking into his house. That is why the Government settled the case and paid up - to keep the SIS operation shrouded in secrecy. There has been public speculation that the break-in was aimed not at him but at his 1996 Mexican guest, Dr Alejandro Villamar, a speaker at the counter-APEC conference. Other speculation is that it was aimed at Maori activists Mike Smith and Annette Sykes, who were also at the conference. But we’ll never know, not officially anyway.
It is the end of Aziz’s legal action, but not the end of legal action arising from the incident. David Small was the person who actually caught the SIS agents breaking into Aziz’s house. It was he who took down the vital clue of their numberplate (which led to the SIS; the agents have never been named) and reported it to the police - who waved the agents on their way. In the most sinister feature of the whole episode, the police raided the homes of both Aziz and David Small, looking for “bombmaking equipment”, shortly after the foiled SIS break in. A hoax bomb had been left at the Christchurch City Council building. This mysterious episode has never been explained (a remarkably similar hoax bomb disrupted Auckland Airport when it was inadvertently left behind there during a security exercise prior to the 1999 APEC Leaders’ Summit. Coincidence, surely?).
“Dr Small said the (Aziz) settlement gave him immense satisfaction but it was not the end of the matter as far as he was concerned. He was going to court to ask for a judicial review of a police search of his house a week after the SIS break-in of Mr Choudry’s house. Police had a warrant to look for bomb-making equipment but the whole episode smacked of SIS and police complicity after his catching the SIS agents, he said. Dr Small expected the police would have to own up to conducting the search on dodgy information provided by the SIS. `This case vindicates our conclusion that something fishy was going on’, he said” (Press, 27/8/99; “Activist gets Govt payout; Victory claimed over SIS”). In October 1999, David Small filed his claim with the Christchurch High Court, suing the Crown for $300,000 damages, alleging trespass and a breach of his rights under the Bill of Rights.
So, what were these police raids all about? Simple revenge on Aziz and David for having caught the SIS in the act? Or something more serious? Were the SIS agents breaking into Aziz’s house to plant something there that would be “found” in a subsequent police raid? “Bomb-making equipment”, drugs, things to implicate him in terrorist activities. Who planted the highly sophisticated hoax bomb at the City Council building? It was good enough to convince an explosives expert, who had it blown up before being able to pronounce it a fake. This whole thing reeks of a dirty tricks operation, one to discredit and criminalise opponents of the State ideology (free trade and unrestricted foreign investment).
The Sunday Star Times editorialised (29/8/99; “Useful humiliation for our SIS spies”): “They botched the burglary of the anti-APEC protester’s home, again confirming their legendary incompetence. They also confirmed the suspicion their real job is spying on dissidents, not fighting subversives...The new law supposedly tightens the definition of a security threat, saying it is `foreign or foreign-influenced’. This is meaningless and dangerous. Every sentient being in the country is foreign-influenced and none more so than our leaders. These orthodox souls, who arguably and by turn have variously damaged our economy, won’t be persecuted. The people at risk will be dissenters like Choudry”.
For once, congratulations are due to the media. We in the ABC know how hard it is to get any coverage of “our” intelligence agency, the Government Communications Security Bureau (GCSB), which is much bigger than the SIS. Ever since Nicky Hager published his seminal 1996 book “Secret Power”, detailing what the GCSB does, specifically at the Waihopai spybase, it’s had much better coverage overseas than in NZ (most recently, on Australian TV. See elsewhere in this issue for details.Ed.). But no such worries when it comes to the SIS, and specifically the Choudry case. From Day One, it’s been a frontpage lead item in all the papers, plus a major item on TV, and the subject of magazine features. The media dug up a lot of the incriminating dirt in this story. For three years, the bungling SIS and Aziz himself have been a major media event. He became a household name, with his singularly unflattering passport photo scowling from papers up and down the country. Indeed it’s only a matter of time until it’s made into a Hollywood movie - David Small and Aziz can toss up between Arnold Schwarzenegger and Danny De Vito as to who plays them. Just remember, guys - it was me who put out the original press release that (correctly) fingered the SIS. I suggest a cameo role, played by Tom Cruise, would be in order.
More seriously, heartfelt thanks are due to all the individuals and groups that donated the thousands of dollars needed to mount a court case. Even at mates’ rates, lawyers are very expensive, and the legal process is inherently weighted against the poor. I freely confess that I was one of those who doubted the wisdom of taking a court case, considering it far too costly, very risky, a serious drain on time and resources, with an unsatisfactory result the most likely outcome. I was wrong and I’m glad I was. It achieved much more than we could have ever dreamed possible when we set about tackling the secret State three years ago. The spies and their political masters (or should that be the other way around?) have had a most timely boot up the arse.