Secret inquiry under fire
‘‘The ultimate objective is to get to the truth.’’ Sir Terence Arnold made this commitment as he opened the only session of his Operation Burnham inquiry so far held in public.
After hearing arguments on whether proceedings should be held in secret, Arnold and his co-chair Sir Geoffrey Palmer retreated behind closed doors. And that is where they have stayed.
The inquiry was due to finish in April. Allegations about three SAS raids in 2010 in Tirgiran Valley, Afghanistan, had been swirling since at least 2014.
Nicky Hager and Jon Stephenson’s Hit & Run book in 2017 alleged six civilians died and 15 were injured, and the events were later covered up by the military.
New Zealand’s Defence Force has a reputation for arrogance and side-stepping scrutiny. It responded to the journalists’ findings with more evasion.
There was relief when the Government last April announced an inquiry. Other countries have carried out public inquiries into the overseas activities of their armed forces, but this was to be New Zealand’s first.
But, from almost the moment it was launched, the inquiry seemed weighted in favour of the Defence Force.
Attorney-General David Parker told a press conference that US military footage suggested armed individuals were present in the village at the time of the raids.
Announcing the inquiry, the country’s top legal officer went out of his way to contradict the book.
He later explained his remarks: ‘‘I thought amongst the allegations that were swirling around it was unfair to the Defence Forces for that not to be in the public now.’’
Defence Force chiefs were permitted to divert $2 million of their budget to set up a special unit to respond to the process. That matches the entire budget to run the investigation, although the chairs have now asked for more funding and time. The unit has 11 staff, and top QC Paul Radich is representing the Defence Force (at $546 an hour). Hager is representing himself, and human rights lawyer Deborah Manning has been forced to ask the inquiry to help with villagers’ costs.
Almost immediately, the Defence Force began pushing hard to keep evidence – and key personnel – secret. The chairs were in an invidious position – trying to balance public interest with national security.
The military chiefs were given a generous 10 months to hand over relevant documents. They missed that February deadline, saying they’ve found more paperwork.
A special team ensures classified details are not revealed. The chairs have no choice but to abide by government protocols on sensitive material, especially that shared with overseas agencies. Everything that can be declassified will be made available to the other participants, the chairs say.
SAS soldiers and their commanders will keep their anonymity. Interested parties will only see summaries of their evidence.
None of the other core participants will be allowed to watch the testimony of Defence Force witnesses, question them, or test their recall. By contrast, Hager says his request to have his sources treated with sensitivity was treated with irritation.
Eventually, Hager was ordered to hand over their details. He says his witnesses have now walked away from the inquiry, disillusioned with the way they were treated.
Stephenson and the inquiry are still in discussion about sources.
Arnold and Palmer say they will hear evidence in private from the authors.
It’s also unclear how – and where – the villagers of Khak Khuday Dad and Naik will be heard.
Manning is representing the injured villagers and relatives of the deceased and mounted a powerful request for proceedings to be held in the open in November.
She argued the process was focused on the reputation of the Defence Force and not the ‘‘right to life’’ obligations New Zealand had towards the victims.
Those international obligations mean states must investigate unresolved killings, especially where their agents may have been involved. But her arguments were dismissed.
On behalf of the villagers, Manning began legal proceedings in 2017. Those were put on hold to allow the inquiry to play out.
To subdue criticism about the secrecy, the chairs agreed to hold three public hearings.
But they amount to little more than a sort of ‘‘open day’’.
They’re set down to cover very general subjects (such as the history of the conflict). The accounts of the night-time attack offered by the Defence Force and the villagers differ wildly. The truth is likely to be found somewhere in the middle.
It will be hard for the chairs to get to the heart of that truth if they hear only from one side.