‘We have a crisis of justice in NZ’
Lawyer representing villagers caught up in raid by NZSAS soldiers tells of frustration, reports David Fisher
Deborah Manning works at her kitchen table. Myriad papers and folders and legal minutiae are stacked where breakfast is eaten.
It’s legal flotsam washed up from the 2010 New Zealand Special Air Service (NZSAS) raid alleged to have left six Afghan villagers dead and 15 others wounded.
This is where 3-year-old Fatima, allegedly killed during the raid, finds her voice.
For much of the time since the NZSAS raid allegations, the battle to have it heard has come from Manning.
Until yesterday, she had attempted to do so through the Inquiry into Operation Burnham — so-called for the raid’s code-named objective.
That process, she says, has failed.
“There’s no doubt Fatima was an innocent,” says Manning. “That’s what this case is about. Why does it have to be this hard?”
There’s strain and tiredness in her voice. Exhaustion?
“Yes,” she admits. “It’s only my sheer stubbornness that I continue. But there are days . . . I wonder whether I should continue because of the toll it takes on myself, my health, my family and my staff.”
On one side is Manning and drip-fed — apparently inadequate — payments at the inquiry’s discretion. There are hundreds of hours of unpaid work. Last year there was a seven-month gap before she was paid some money in November, then nothing since.
On the other side is the Defence Force’s $2 million to pay for its investigators, lawyers and researchers.
“It’s got to the point where it’s just not tenable,” says Manning. “I have a revolving mortgage so I lean on that. And I cross my fingers and hope we get something.”
It’s a grim place for a human rights lawyer recognisable for the high-profile fight against the internment and persecution of Algerian refugee Ahmed Zaoui more than a decade ago.
It took years of bloodyminded stubbornness and faith in the law to cut through the obfuscation and stonewalling of the intelligence agencies who claimed her client was a terrorist.
And here she is again, Manning and a handful of similarly inclined lawyers against the world, the establishment, the secretive world of spies and the War on Terror.
The journey to this point began with the book Hit & Run by Nicky Hager and Jon Stephenson. It detailed Operation Burnham, a 2010 NZSAS raid into Taliban territory to hunt down people launching attacks against NZDF soldiers in neighbouring Bamiyan province.
The book detailed the planning and execution of the raid — Defence (NZDF) says it has 105 errors — and how United States air support left villagers dead and wounded.
NZDF, in contrast, says nine insurgents were killed. It also concedes civilians may have been killed, after years of letting former Defence Minister Wayne Mapp’s assertion to the contrary stand.
Manning was drawn into the case after an approach by the book’s authors. Knowing her track record in humanitarian cases, they told her the villagers — some of whom had been interviewed for the book — needed a lawyer. Would she take it on?
“One of the reasons I took this case on was my ethical belief we are all equal to each other,” says Manning.
“Do I want to live in a country that could be responsible for the death of a little girl and not own up to it?”
Calls for an inquiry under the National Government went unheard so Manning lodged a case on behalf of the villagers with the High Court.
When the incoming LabourNZ First Government said it would hold an inquiry, the case was pulled as a show of “good faith”.
That good faith is gone with the lodging yesterday of papers in the High Court seeking a ruling that inquiry heads Sir Geoffrey Palmer and former Supreme Court judge Sir Terence Arnold were wrong when they refused to conduct a “right to life” examination.
Manning says domestic and international law demands such an inquiry and, without it, her clients have been cut out of the evidence and information loop. “In my view, this should be a process centred on those affected by Operation Burnham, those who were injured or killed.”
It effectively withdrew her clients from the inquiry.
On funding, the Department of Internal Affairs appeared to concede it had got it wrong.
“There is very limited precedent under the act for granting funds for legal assistance, and we are working on improving our processes,” a spokeswoman said. In total, $156,730 has been granted for legal assistance in the year since the inquiry’s launch.
Manning received $50,000 after seven months of no pay, with the money shared between five lawyers.
Hundreds of hours of work have gone unpaid for 21 named and signed up clients who, since the 2010 attack, have scattered, leaving ruined homes and a village which became a war zone, she says.
“They have no funds. They are impoverished. Our clients are below the poverty level. “It’s a compelling case. “These villagers are very clear about what happened to them on that night. This village had been there for hundreds of years. In a night, their lives were destroyed.”
A spare room, door slightly ajar, reveals stacks of cardboard boxes threatening to spill files to the wooden floor. A knock at the door signals a law student turning up to work at the kitchen table alongside Manning. In Wellington, NZDF pays Paul Radich, QC, $546 an hour.
“We have a crisis in New Zealand for access to justice. It is a known crisis,” she says.
Similar sentiments have been increasingly voiced in speeches by superior court judges over the past decade, including the incoming Chief Justice Helen Winkelmann.
“This is not a situation of worrying about lawyers — it’s worrying about clients who need lawyers,” Manning says.