THE COVERT STATE MUST NOT BE SEVERELY EMBARRASSED! PART 1

Government Sues Domebusters & Changes Law To Rule Out Their Defence

Peace Researcher 42 – November 2011

 

- Murray Horton

 

Since 2008 Peace Researcher has covered, in great detail, the wonderful saga of the Waihopai Domebusters aka Adrian Leason, Father Peter Murnane and Sam Land, the three Ploughshares activists who, on April 30, 2008, deflated the giant radome covering (and concealing) one of the satellite interception dishes at the Waihopai spybase in Marlborough. From Day One the Anti-Bases Campaign has actively supported these three brave men, particularly during their eight day jury trial in the Wellington District Court in March 2010, which resulted in their acquittal on all charges. We continue to support them and we’re proud that all three of them are ABC members (indeed, one was a Committee member during the several months he spent in Christchurch a few years back); all three of them, plus large numbers of their families and supporters, have taken part in our Waihopai protests; Peter Murnane was the featured speaker at our latest one, in January 2011, attracting considerable media attention in the process (not to mention becoming the focal point of a small counter-protest by pro-base locals).


Successful Claim Of Right Defence


Two of their three grounds of defence in their March 2010 trial were ruled inadmissible but the third one – claim of right – was allowed. To quote from the summing up by Judge SM Harrop: “This case has obviously drawn attention to some very large controversial and emotive issues on the international stage. I want to emphasise that, although you’re entitled to take all of the evidence into account that you’ve heard, you must only do so in a way that’s relevant to issues you have to decide…Some examples of questions you are not being asked to determine or answer, either in the course of your deliberations or delivering of verdicts, and by which you mustn’t be distracted, are: Is it a good thing or a bad thing that the Waihopai Communication Base exists in New Zealand? Is the level of Government oversight on behalf of the New Zealand public effective and appropriate? Is, or was, the war in Iraq lawful or a good thing or a bad thing? Is torture, rendition and the use of depleted uranium justified in the ‘War on Terror’? How many points out of ten should we give the United States government for its conduct in relation to the war in Iraq? Now, I could go on, but I trust those examples emphasise my point.


“…You need to bear in mind however, in considering your decision, whether the belief was actually held that it need not be based on reasonable grounds as I have mentioned. However, if you find, having considered all the evidence that there were reasonable grounds for the particular accused you’re considering to believe the actions were lawful, or would be excused as justified on some legal basis, then you should take those into account in determining whether or not the belief in lawfulness was actually held by that accused. Now the definition of claim of right in our Crimes Act requires that the accused believes that the act is lawful. It is not, therefore, enough for an accused to believe that the action may be held lawful, that it ought to be held lawful, or that he hopes or expects it will be held lawful. There must be a belief that, if prosecuted, the accused would be acquitted…”


“…Some of you may be thinking to yourselves, well, if we don’t find these accused guilty then it’s going to provide some sort of licence for anarchy and others may think they can go out and damage property, then turn around and say, well, we thought it was lawful, we’ve got a good excuse and we shouldn’t be convicted. You must not think in that kind of way. Your sole concern is with this case, nothing beyond it. You mustn’t be influenced by anything beyond the evidence you’ve heard and you must concern yourself only with the questions that I’ve directed you to consider. So, in short, if you’re not satisfied beyond reasonable doubt that the Crown has excluded claim of right, then you must acquit. It’s your duty to do so in that event and you mustn’t shy away from that duty for some extraneous reason such as the one I’ve mentioned…”.


That was the crux of the case – the Domebusters believed that they had a claim of right, as defined by the Crimes Act; they believed that their actions were lawful and that they should therefore be acquitted. All three of them made that point repeatedly in their evidence. The jury only took two hours to accept the defence case and acquit all three of them of all charges. It was a triumph of common sense. In fact, the only thing that the Domebusters are guilty of is taking Christianity seriously and living their faith, rather than just going to Mass once a week (or at Easter and Christmas). Uproar ensued, led by the deliberately uninformed mainstream media (which had only covered the first and final days of an eight day trial, thus missing the entire defence evidence).


No Appeal Possible


Only a couple of weeks later, in early April 2010, the Solicitor-General was forced to publicly state the obvious and declare that the Crown would not, indeed could not, appeal the verdict, as there was nothing legally wrong with the defence case, the judge’s summing up or the jury’s verdict. But he said that the Government would look into whether the claim of right law needed to be reviewed and would also consider making a civil damages claim against Adrian, Peter and Sam for the damage they had inflicted on the dome. ABC responded with a press release (“Cost Of Damage To Waihopai Dome Is Peanuts Compared To Hundreds Of Millions Of Taxpayers’ Dollars Wasted On Spybase”, 8/4/10).


“Sanity has briefly broken out with the Government’s announcement that the Crown will not, indeed cannot, appeal the acquittal of the Waihopai Domebusters. This simply recognises the reality that the jury, judge and defence got it right and that the verdict was the only one possible. But the Government has to save face, not only with those in New Zealand baying for the Domebusters’ blood, but also with the shadowy big brothers of the American-led spybase network who will be both angry and humiliated by both the hilarious dome deflation at this ‘high security’ base, and by the total acquittal of the three guys who did it. So the Government is looking at changing the law to rule out that particular defence in similar circumstances (the typical reaction of the schoolyard bully – if you lose the game, change the rules). And it is considering suing the Domebusters for the damage they inflicted on the dome. Quite apart from the fact that this vindictive and desperate action will be akin to getting blood out of a stone, it is a financial sideshow.


“The real question to be considered here is why have hundreds of millions of taxpayers’ dollars been wasted on this spybase in the 23 years since it was announced? The GCSB budget for the year ending June 09 (the latest available) was $49.368 million*. The Government always refuses to say what is the cost of actually running Waihopai, but it obviously consumes a great chunk of the GCSB’s annual budget. Indeed the (then) Director, Sir Bruce Ferguson, says: ‘Significant investment occurred in particular at the Bureau’s satellite facility at Waihopai’ in the GCSB’s 2008/09 Annual Report (grandiosely subtitled ‘Mastery of Cyberspace for the Security of New Zealand’; rather ironic coming from the same outfit that couldn’t ensure its own security from three guys with sickles and bolt cutters). *See Warren Thomson’s article, below, for the latest GCSB budget figures. Ed.


“And the figures get worse. By examining the annual budgets for the GCSB during the 23 years of the base’s life (and budgets were not published for years on end in some periods), we arrive at an educated guess that well over $500 million has been spent on the GCSB during that time, with a great chunk of that obviously going to the Waihopai spy base. What a bloody waste of money. Half a billion dollars would do some serious good in terms of health, education and social services, instead of being wasted on an outfit running what is, in all but name, an outpost of US intelligence being paid for by NZ taxpayers. This is the real financial damage inflicted by Waihopai. Hey Uncle Sam, when are you going to reimburse us the half a billion we’ve given you? If the Government is so keen to recover the costs of the Domebusters’ damage, send the bill to the Yanks – it’s their base, and they have plenty of money for wars and spying.


“There is one innocent victim in all of this – the neighbouring farmer whose fence was cut by the Domebusters to gain access to the spybase. He has invoiced them for the $200 and they have said they will pay it. Good on them for acknowledging that he shouldn’t be left out of pocket simply because he is saddled with a spybase for a neighbour. But as for the rest of it, the Government is digging itself into a bigger hole and should simply cut its losses and walk away from what has become a total debacle for itself, our spies and their foreign big brothers. And if the Government really wants to save face with the people who actually pay the bills for Waihopai, it should shut the place down immediately”.


Don’t Like The Verdict? Just Change The Law


The announcement that there would be no appeal, but a possible law review and a civil damages suit, set off another media frenzy accompanied by “revelations” of how much money and assets the three Domebusters have (answer: not much. My favourite was a TVNZ News reporter asking Adi Leason to empty his wallet and turn out his pockets to show how much he had on him, when interviewed whilst working on his farm. I would have told her to piss off but he obliged, proving that he had bugger all wealth upon his person). Throughout the whole firestorm of outrage by the media, politicians and sections of the public, the Domebusters remained staunch. They said that they would welcome being sued as another court case would keep the public spotlight firmly fixed on the Waihopai spybase. And the fact is that this case has generated the greatest amount of media coverage, political comment and public awareness ever about the issue.


So that’s where things stood when PR last reported this case. But, in fairly short order, the State set out to prove that there is no limit to its vindictiveness or willingness to make a fool of itself, particularly when the covert State has been so severely embarrassed. The Government did go ahead with the review of the law and in November 2010 the claim of right defence which the Domebusters had successfully used was ruled out when its definition was changed in the Crimes Act. From now on defendants will have to satisfy a property right test to invoke the claim of right defence, but will not be able to use a reasonableness test – meaning that defendants will have to prove that they own or possess the property in question. Justice Minister Simon Power said: “Adding a property right criterion means the defence will be available only to defendants who believed they have a proprietary or possessory right in the property involved. As the law stands, defendants charged with certain property offences can use the defence if they genuinely believe their actions are lawful. But it’s clear the defence was not intended to be used to excuse people who take or damage property who are not claiming a personal property right, as in the Waihopai case” (NZ Herald, 4/11/10, “Test added to ‘claim of right’ defence”, Derek Cheng). Keith Locke, the Green MP and veteran Waihopai activist, pointed out the obvious, namely that it was dangerous to change the law because the Government disagreed with a court verdict.


Nor was the now abolished claim of right defence some obscure or recent legal technicality. Amidst the bellows of media and political rage immediately following the Domebusters’ acquittal, there were some voices of sanity. For example, the Queen’s Counsel who regularly dispenses legal advice on National Radio’s Nine To Noon pointed out that, every day in the courts, the Police invoke the claim of right to justify actions that they had believed to be lawful, and that the courts invariably upheld those claims. Indeed, he said that the Police are the biggest beneficiaries of that law. Furthermore, that the defence of “the greater good” had been unapologetically cited by none other than former British Prime Minister, Tony Blair, in his January 2010 testimony to the Chilcot Public Inquiry into Britain’s role in the 2003 invasion of Iraq. Blair said that he acknowledged that the US/UK invasion did not have United Nations’ approval and that it had killed a lot of innocent civilians – but that he considered it justified by the greater good of overthrowing Saddam Hussein, and that he would do it again if the circumstances warranted. As the NZ QC told the radio audience, if it’s good enough for Tony Blair to claim that defence, surely it’s good enough for the Domebusters? So a major plank of the law, dating back centuries, has been scrapped because the covert State and its political mouthpieces didn’t get the verdict it expected, and because that verdict set a precedent too horrifying to be contemplated or allowed by the powers that be. So, if the law doesn’t serve the interest of those in power, well, the obvious answer is to change the law, isn’t it?


Pies And Beer Cost Money, You Know


The second prong of the covert State’s revenge was to file a $1,229,289.32 civil damages claim against the three Domebusters personally. And there was no limit to the pettiness. “The bulk of the cost of the repairs was for the deflated ‘teflon-impregnated glass fibre enclosure’ or ‘radome’. The cost to produce, complete and install one of those, including $24,612.05 in ‘additional charges-delays’ was $1,144,774.41.But the Crown is also seeking $54 for the cost of hiring coffee mugs, $256.38 for the cost of beer and juice for radome staff, another $62.93 for savouries for those staff, and $30.38 for pies and other drinks. There was also several hundred dollars being sought for tool and safety gear hire, while hire costs for a large and small crane came to $81,438. The Crown is seeking to have the costs split equally between the three men….” (NZPA, 8/10/10, “Costs of beer and pies sought after spy base attack”). ABC semi-seriously discussed having a stunt involving delivering (possibly with some velocity) pies and/or beer to the Waihopai spybase or maybe to the GCSB’s gleaming new Wellington headquarters. Jeez, we nearly felt sorry enough for the hard up spies to have a whip around if they’re struggling to pay for pies and beer.


There are some interesting nuggets to be gleaned from the GCSB’s statement of claim (contained in an affidavit sworn at the Wellington High Court, 30/9/10, by Deputy Director Hugh Wolfensohn). For instance, it includes an e-mail (7/5/08) from Steve Donaldson, the Waihopai Station Engineer, to the French company which manufactured the dome, describing the immediate aftermath of the April 30th, 2008, deflation. “We were faced [by] a dilemma. The radome was draped across the antenna that was not in its stowed position, consequently the full weight of the radome (5.5-6 ton) was exerting pressure on the dish in a manor [sic] that it was not designed to bear. Further, a deflated radome acts like a sail and we do experience wind most days of the year, consequently it meant 5.5-6 tons being driven by wind on a structure that was never designed to bear that load. We concluded that, in a matter of hours, we potentially faced serious and very expensive structural failure or damage to the Satellite Dish due to inclement weather. In conclusion, it was our opinion it was highly likely that the radome was beyond repair and we faced a serious risk of significant and therefore expensive antenna failure or damage. We therefore made the decision to remove the radome using destructive means which we have done…”. This admission by the spies gives full weight to the Domebusters, in their evidence at trial, disputing that theirs was a symbolic action only. They said that deflating the dome had caused real damage to the base and stopped its operations, however temporarily.


GCSB Admits Domes Not There To Keep Dishes From Going Rusty


And in Wolfensohn’s actual affidavit (subsection “Damage assessment by GCSB Waihopai staff”, paragraph 26) he states what ABC et al have always said (which is the bleeding obvious, actually) but which the GCSB has always publicly denied: “In addition, with the antenna exposed, the satellite against which it was targeted at any one time could be identified accurately by a well-informed observer, which would compromise operational security”. In the immediate aftermath of the 2008 deflation, Bruce Ferguson, the then GCSB Director, had some success in peddling the nonsense that the function of the domes is to keep the dishes weatherproof. After a few days of this the media obviously thought: “Wait a minute, our TV network has got a bloody great satellite dish on the roof of our Auckland HQ and it doesn’t need a dome over it to stop it going rusty. And, come to think of it, what about the hundreds of thousands of Sky TV dishes on houses throughout the country. None of them seem to require little white domes to enable them to function properly”. The function of the domes is one of the things that instantly identifies Waihopai as a spybase (the Government has never attempted a cover story for it). They are there purely and simply to conceal from public and media view the direction in which the dish is pointing, from which can be deduced what satellites are being spied upon. Wolfensohn’s affidavit marks the GCSB’s official confirmation of that fact. That satellite dish being involuntarily exposed for several months did enable “a well-informed observer” (namely Nicky Hager, who literally wrote the book on the GCSB and Waihopai – “Secret Power”, 1996) to work out which satellites it was targeting on a given day (in July 2009 – see Nicky’s article “What Does Waihopai Spy On? Asian Civilian Telecommunications Satellites, For Starters”, in PR 40, July 2010, http://www.converge.org.nz/abc/pr40-195.htm).


A March 2011 date was set for the civil damages claim hearing, in the Wellington High Court. However Mother Earth intervened, as she has been doing continuously in Christchurch since September 2010. Adi Leason is represented, as he was in the March 2010 criminal trial, by Christchurch lawyer Mike Knowles. The catastrophic February 22nd 2011 earthquake brought down the ceiling of Mike’s office onto his head and destroyed the beautiful, historic old Canterbury Provincial Chambers in which it was located (that remains, ruined, inside the cordoned Christchurch central city). Mike was lucky to escape serious injury or death but emerged from the rubble unscathed. He was able to secure an adjournment of the hearing on the perfectly reasonable grounds that he, along with the rest of Christchurch’s population, was confronted with massive disruption to his life and work (he couldn’t access his files, including for this case) caused by a natural disaster unprecedented in New Zealand’s recorded history. Not only was his workplace destroyed but, like tens of thousands of others, his home was also damaged, meaning that he and his wife had to move out for several weeks while it was repaired and Mike had to run his law practice from a motel (he’s now working from home, as are many of his Christchurch legal colleagues).


The new date for the hearing was set for one day in August 2011 and this one went ahead. The Attorney-General, on behalf of the GCSB, was seeking a summary judgment, meaning that the court would accept that the facts of the case were not in dispute and that, having avoided any trial or substantive evidence having to be presented, the court could confine itself solely to deciding if the State was entitled to be awarded damages against the Domebusters. The covert State had learnt from the humiliating defeat it had suffered in the criminal trial – there would be no jury, no evidence about what the GCSB or Waihopai does (the defence introduced plenty of that in the criminal trial; the prosecution avoided the subject and the GCSB conspicuously stayed away from the whole event); as far as the prosecution was concerned this would be solely to determine that the Domebusters were liable for damages. Once again the court was packed with supporters of the Domebusters, who had spent the previous week in Wellington solidarity activities, including fasting.


“Ye Are Many - They Are Few”


Unlike the criminal trial the defendants were under no legal obligation to attend and one of them, Sam Land, didn’t, being too busy with work on his family’s farm in Hokianga. And also unlike the criminal trial ABC was not present at the civil hearing or actively involved with these solidarity activities. See the subsection “A Week Of Solidarity In the Streets Of Wellington” in my article “Vindicated! Waihopai Domebusters Acquitted Of All Charges”, in PR 40, July 2010 http://www.converge.org.nz/abc/pr40-198.htm for a detailed account of that solidarity campaign during the criminal trial, including ABC’s role in it. Once again, this civil court case was a national media event.


The defence lawyers based their case on defence of another (carrying out an action to save life) and ex turpi causa non oritur actio (Latin for "from a dishonourable cause an action does not arise", also known as “the illegality defence”. In this case, no-one can sue if they are operating from a dishonest foundation). “In their submissions, the defence lawyers raised questions about the legality of the existence and operation of the Waihopai spy base, including the fact that it apparently didn't have resource consent and is operating in breach of local government regulations. As well, evidence was presented about the appalling level of human suffering caused by bombing and missile attacks based on ‘evidence’ from ‘signals intelligence’ (such as the communications intercepted at the base), which have resulted in countless civilian casualties, particularly in the US government-led wars on the people of Iraq and Afghanistan. It was a very powerful recital of all that is harmful about war, the reliance on ‘signals intelligence’ for targeting, and the New Zealand government's complicity in both” (e-mail from Peace Movement Aotearoa, 8/8/11).


Domebuster Peter Murnane reported: “The Prosecutor approached his conclusion by saying: If individuals can destroy property because they think the owner might be doing harm, or Government property because they disagree with its policy, then this is the door to anarchy! - or words to that effect. Mike Knowles (who had warning of this line of attack) came up with the poem by Shelley, The Mask of Anarchy*, written when troops of the Crown massacred 40-50 women and children outside Manchester for some peaceful protest. Mike echoed Shelley in pointing out that sometimes it is the Crown (read US govt.) which is guilty of anarchy, and that this is what we were protesting about” (e-mail, 13/8/11). *Percy Bysshe Shelley, the great Romantic poet, wrote “The Mask of Anarchy” in response to the 1819 Peterloo Massacre, near Manchester. It includes the lines:
“Last came Anarchy: he rode
On a white horse, splashed with blood;
He was pale even to the lips,
Like Death in the Apocalypse.


“And he wore a kingly crown;
And in his grasp a sceptre shone;
On his brow this mark I saw -
'I AM GOD, AND KING, AND LAW’”


The poem concludes:


“Rise like Lions after slumber
In unvanquishable number -
Shake your chains to earth like dew
Which in sleep had fallen on you -
Ye are many - they are few”.


Judge Rules For Covert State

 

I’m told that Mike Knowles quoted the poem in court with gusto, whereupon Associate Judge David Gendall rolled his eyes – and reserved his decision. When that 15 page decision was delivered on September 1st, it was a complete victory for the covert State. Gendall said that “although he accepted that the defendants were motivated by genuine beliefs, they were effectively inviting the court to exonerate vigilante action. ‘At one level this might be seen simply as a mask for anarchy (the judge doesn’t seem to have quite got the point of Shelley’s poem, nor got the title right. Ed.). The notion that the court might exonerate vigilante action is highly problematic. To take this approach, as I see it, would inevitably lead to unacceptable precedents being set in a range of areas’. These precedents could include fluoride-causing cancer protesters destroying a city’s water supply with impunity or anti-war protesters destroying New Zealand defence force bases or neighbours burning down a house next door on the suspicion it was a ‘tinnie house’ and thus affecting the lives of children” (Press, 1/9/11, “Waihopai three to appeal”, Shane Cowlishaw).


Adi Leason put out a press release on behalf of the Domebusters (1/9/11; “GCSB awarded judgement against Waihopai 3 without full hearing”): “In response to the announcement Otaki school teacher Adrian Leason said ‘Judge Gendall was always going to be under pressure to avoid a full hearing. Clearly the judge has worked hard on his ruling, however early indications suggest that he is in error on several crucial points of law… Mr Leason also expressed disappointment that the GCSB was awarded judgment without having to front up to a full court process. The latest hearing was notable for the absence of any GCSB representatives. Judge Gendall's decision cuts short the legal process by awarding summary judgment to the GSCB without a court considering the defence's arguments, many of which implicate the spybase in human rights abuses and war atrocities as part of the US wars in Iraq in Afghanistan. Mr Leason noted the GCSB's consistent stance of 'neither confirming nor denying', saying ‘few people would want to know every detail of the GCSB's operations, however some level of transparency and accountability is not an unreasonable request given the highly controversial nature of electronic intelligence gathering and its key role in the US-led ‘War on Terror’”.


“The decision to seek summary judgment rather than proceeding to a trial is an understandable compromise between the Government's embarrassment at last year's acquittal and the GCSB's reluctance to be subject to any kind of public scrutiny. It is a novel measure to seek an alternative route to punishment through the civil courts. Documents unveiled by whistleblower Website Wikileaks recently revealed that after the 2006 acquittal of the Irish 'Pitstop Ploughshares' who disarmed a US war plane at the Shannon Airport in the early days of the Iraq war, US officials contemplated suing the peacemakers for damages. US Ambassador to Ireland James Kenny wrote to then US Secretary of State, Condoleezza Rice, in the wake of the acquittal assuring her of Irish government's loyalty to US war efforts ‘in the face of public criticism’, and suggesting a civil suit or similar measure ‘to convey [US] dissatisfaction with the Shannon Five verdict’; but evidently it was not considered worthwhile...”.


Domebusters To Appeal


So what happens now? That decision is not the end of the matter, by any means. The State has won a summary judgment allowing it to seek damages without recourse to a trial. There has to be another hearing, at a date to be set, to determine the amount of those damages. The Attorney-General has announced that the State is seeking the full amount, plus costs. But before that can happen there is the Domebusters’ appeal of the summary judgement. In October 2011 their lawyers filed an appeal to the Court of Appeal and said it is not likely to be heard before March 2012. The Domebusters have repeatedly made it clear that they won’t pay a cent of any damages (even if they had the money to do so, which they don’t); ABC has another Waihopai protest in January 2012; and, of course, the spy base continues doing its ugly work as part of the US-led global warfighting machine. The saga continues.


You can follow the whole story through Peace Researcher. For a very detailed account of their action and its immediate aftermath, see my article “Pop Goes The Spybase! Waihopai Domebusters Severely Embarrass The Covert State” in Peace Researcher 36, August 2008, http://www.converge.org.nz/abc/pr36-165.html. For coverage of the September 2008 depositions hearing in the Blenheim District Court, see PR 37, November 2008, “Waihopai Domebusters: The Police Present Their Case” by Bob Leonard, court reporter for Peace Researcher; http://www.converge.org.nz/abc/pr37-168.htm and “ABC In Blenheim In Solidarity With Domebusters”, by Murray Horton, http://www.converge.org.nz/abc/pr37-168a.htm. Their March 2010 jury trial and acquittal in the Wellington District Court was the subject of several articles in PR 40, July 2010: “Vindicated! Waihopai Domebusters Acquitted Of All Charges”, by Murray Horton, http://www.converge.org.nz/abc/pr40-198.htm; “’Come Help Us, Stop War, Stop More Killing’: Domebusters’ Defence Lawyer’s Closing Address”, by Mike Knowles http://www.converge.org.nz/abc/pr40-196.htm; and “Domebusters’ Trial Suppressed Evidence: Bob Leonard’s ‘Inadmissible’ Defence Affidavit”, http://www.converge.org.nz/abc/pr40-192b.htm.


To contact the Domebusters go to http://ploughshares.org.nz/

 

 

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