Hit and Run action eyes US
Villagers caught up in SAS Afghan raids will take legal action to compel the United States Defence Force to hand over classified information.
Their lawyers believe there are about 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 Freedom of Information laws, in April 2017, but have not received a response.
Deborah Manning, one of the legal team, told the inquiry yesterday they were preparing to use the courts to get the information.
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 six civilians including a 3-yearold girl.
Earlier, Manning revealed the Defence Force had released 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 about 9 per cent, or 1600.
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,’’ Manning 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.
‘‘At the current rate of progress by NZDF, it seems it may be 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.’’
Manning, who is assisted by Simon Lamain, 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 on the people who were affected.
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 have already issued a minute observing that classified material and evidence, and the participation of vulnerable witnesses mean 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.
‘‘We think it is important the public have an understanding of the competing considerations that affect the decisions we make,’’ Arnold said.
Counsel assisting the inquiry Kristy Mcdonald QC said the inquiry was ‘‘likely to be the most complex ever held in New Zealand’’. It would 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 was 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.’’
Vulnerable witnesses, like Afghan nationals and whistleblowers might 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.’’
Mcdonald noted that in overseas inquiries into military operations ‘‘one common experience . . . is the tendency to overclassify, 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 whom 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.’’
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.