Aziz Choudry Wins Case Against SISOut Of Court Settlement; Damages; Government Apology
- Murray Horton
Watchdog 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 NZ 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.
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 (see Watchdog 91 for full details of this decision, including Justice Thomas' dissenting opinion. Ed.).
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. 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 (interestingly, a remarkably similar hoax bomb was inadvertently left lying around at Auckland Airport in the 1999 pre-APEC Leaders Summit buildup and caused a major security scare).
"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 know how hard it usually is to get any coverage of intelligence matters. 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.
New SIS Laws: New SIS Boss
In the wake of the Choudry case, the Government (with unanimous support from Labour) has rushed through two new laws amending the SIS legislation (see Watchdogs 90 & 91 for details. Ed.). The SIS Amendment Act (No. 2) 1999 came into effect in September. One new feature is the creation of a Commissioner of Security Warrants, who will jointly issue domestic interception warrants with the Minister in Charge of the SIS (who retains sole responsibility for issuing "foreign" warrants). The first Commissioner is Sir John Jeffries, a retired High Court judge (the law stipulates that they are the only people allowed to hold the job) and former Police Complaints Authority. For the first time in its 44 year history, the SIS will have to provide an annual report to Parliament (as opposed to its current 200 word annual non-statement). Bruce Slane, the Privacy Commissioner, welcomed the recommendations. And the contentious section on "foreign-influenced" organisations adversely affecting NZ's "economic or international wellbeing" has been changed to specify that such groups would need to be "clandestine or deceptive".
But these minor changes are far from satisfactory. Cath Wallace, of the umbrella group ECO (Environment and Conservation Organisations), asked: "What about a Greenpeace protest unfurling a banner on a building?... It's very unclear what they are trying to protect New Zealand against; it's absurd to use covert agencies. They are trying to catch people who are not doing anything illegal" (NZ Herald, 27/7/99; "Changes fail to allay SIS fears").
Aziz Choudry is not impressed: "Having read the latest version of the bill, it's clear the SIS has not been reined in by any of the recent legislative amendments. Quite the opposite - these law changes are designed to expand, not limit, the powers of the SIS. Try as she might to reassure people that critics of APEC will not be subject to SIS snooping, Jenny Shipley cannot hide the fact that both amendment bills have been rushed through explicitly in order to legitimate further SIS break-ins before September's Leaders Summit. And it was the Prime Minister herself, and various National, Labour, and ACT MPs who first linked the perceived need to legalise SIS break-ins to APEC in Parliamentary debates and in the media, not me, GATT Watchdog, the APEC Monitoring Group or our allies. When the APEC circus ends, the law will remain - with the SIS above the law.
"The tweaking of the definition of `security' to distinguish between perceived `domestic' and `foreign' or `foreign-influenced' threats does nothing to tighten up the controversial `economic and international wellbeing' wording which many organisations have roundly condemned. Who knows what or who will be deemed to fit this new category? And who will oversee the SIS and its Minister, who will retain sole authority for issuing `foreign' warrants? Governments have often justified security crackdowns against domestic dissenters on the basis of spurious claims of foreign control or influence. Who will scrutinise the activities of the SIS in this regard? The Minister and the SIS repeatedly say `trust us'. Why should we?
"The supposed statutory checks and balances on the SIS did not work as soon as they were put to the test shortly after their 1996 revamp. Nothing in the legislative amendments makes them work now. They are a fiction.They remain non-existent.
"The Inspector-General of Intelligence and Security was unwilling or unable even to admit the involvement of the Service in his report on the bungled 1996 operation (the break-in at Aziz's house. Ed). It took legal action to get an admission from the Crown that it was indeed the SIS - and that the entry was illegal. That someone has to take legal action against the SIS to get this far is positive proof that the Inspector-General's office is toothless and the oversight mechanisms fundamentally flawed (the current Inspector-General, retired High Court judge, Laurie Greig, has been reappointed to a further three year term. Ed.).
"I think that Privacy Commissioner, Bruce Slane, overstates the significance of the suggested reporting requirements which, if accepted would require fuller annual reports to be tabled by the SIS. All things considered, this is a very minor concession. Its value is more symbolic than substantive - and doesn't apply to `foreign warrants' in any case
"This revised bill does not address concerns about the SIS's role in surveilling people and organisations engaged in lawful political activities. Along with its companion amendment, it is a further affront to basic civil and political rights and another step down the road of criminalising dissent" (26/7/99, personal press release).
And the SIS has a new boss. Lieutenant-General Don McIver has retired, and been replaced by senior diplomat Richard Woods. His background is international trade and economics, with sensitive diplomatic postings having included Ambassador to Tehran during the 1980's Iran/Iraq War; Ambassador to Paris in 1995, during the crisis generated by France's resumption of Pacific nuclear testing; and 1990s Ambassador to Moscow. He is the first diplomat to head the SIS - of the four previous Directors, three were from the Army (Gilbert, Smith, McIver), and one was a judge (Molineaux). "I had always thought the SIS had a very important role. Its traditional role of protecting New Zealand from espionage and sabotage and terrorism is obviously important. But it has been extended to include making a contribution to New Zealand's international and economic wellbeing. I have spent a fair bit of my career concerned with that second area. I thought my experience might be relevant and that's what's been decided" (Press, 17/7/99). There's also a change at the top of the much bigger Government Communications Security Bureau, NZ's electronic spying agency, which operates the Waihopai and Tangimoana spybases - Warren Tucker becomes the new Director, replacing Ray Parker. The future direction of our spies, and who they will be targeting, is fairly obvious by the appointment of a spyboss with a background in trade. As the Sunday Star Times editorialised: "This (the new spymaster) is certainly an improvement on the usual military hard-hats. But the SIS culture remains the same, and it is doubtful a retired bureaucrat can change it - even if he wanted to" (29/8/99; "Useful humiliation for our SIS spies").
Out with the old enemies and in with the new enemies! Once again though, the "enemy" seems to be us.
Foreign Control Watchdog, P O Box 2258, Christchurch, New Zealand/Aotearoa. December 1999.
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