It seems a lifetime ago, but Helen Clark came to power in 1999 armed with a fresh new vision for Defence, based on Derek Quigley’s “ Defence Beyond 2000” document. In brief, that new framework envisaged a New Zealand stance that would be less subservient to our traditional allies, the US, the UK, and Australia. From now on, New Zealand would no longer automatically buy into their defence priorities and force configurations, but would steer more of its own course, using the UN for guidance.

Looking ahead, the Quigley paper found there were no rational grounds for assuming this country faced a military threat in the foreseeable future. As a consequence, we would invest in a flexible, Army focussed fighting force to be deployed primarily within UN missions, and not at the virtual beck and call of our old allies.

Even after 9/11, Clark stuck to her er, guns. So we did not help to invade and occupy Iraq. Afghanistan yes, but that had a far stronger UN mandate. Not Iraq not even though our old mates were in there.

Defence survived the shock. It kept up its Washington/Canberra networks, and has patiently waited for a change in government. In the meantime, while our Defence forces may not have been able to go out and play with their old pals, they did get a lot of new toys to play with at home. In fact, Defence has had its entire wish-list of weapons programmes fulfilled by this centre-left government – beyond its wildest dreams, and more comprehensively than any other government sector. It even got the brand new Defence building it never really expected, or needed.

Alas, Clark’s independent foreign policy and defence vision has not extended into the security and intelligence area. Here, it has been business as always. Just like David Lange, Clark has been a willing captive of the spooks. Even though we didn’t go into Iraq, our security services have acted as if we did.

Meaning : on the security and intelligence front, we have responded as if we face exactly the same threat from Muslim terrorists as do our old allies. Read the recent SIS annual reports and it is like a time warp - the ruling mindset has transitioned from the Cold War menace to the terrorist threat without skipping a beat. We are being urged to stand firm with our traditional allies – and not, for instance, expose the information that they have supplied to scrutiny in our law courts - no matter what damage that may does to civil liberties, and the laws of evidence.

The old Cold War language of ‘not pulling our weight’ has become the new lingo of “ not being a soft touch’ or ‘making sure we don’t become a safe haven.’ The posture of acquiescence though, is exactly the same - and our security allies have done their best to promote the need for it. On security matters, we are now a very long way from the rational threat assessment that Quigley was promoting, only eight years ago.

The Ahmed Zaoui review is taking place under this security overhang of ‘old alliance’ thinking. If he’s given a fair and open trial, allowed to see the evidence for the allegations against him or heaven forbid, is ultimately allowed to stay here – so the argument goes - our allies would think we’re a soft touch, and might shut off the taps of security information. Far better to skew his rights to a fair trial than risk having that outcome.

Ironic, really – the war in Iraq was based on shoddy security information and has bred more terrorism, and that now apparently requires us to put even more faith in security information. I think that’s called a downward spiral. Personally, I don’t think it is good reason to sacrifice our rights to habeas corpus, or to the right to confront all the evidence. These were rights won for us by previous generations after centuries of struggle against the arbitrary rule of kings and tyrants. New Zealand is not a terrorist target, and it is not in OUR interests to behave as if we are.

It also seems doubly ironic – given her devotion to the UN in other respects - that the Clark government’s treatment of Zaoui has run aground on UN conventions. It has been the UN Refugee Convention and Convention Against Torture that have given Zaoui his best tools of defence against arbitrary deportation. In future, those UN conventions will also inhibit the ability of Immigration Minister David Cunliffe to deport Zaoui back to Algeria, should the security risk certificate be confirmed later this year.

Given the current state of Algeria, the only way that could legally happen would be if the Clark government took a leaf from Tony Blair’s book – and chose to rely on a so called ‘diplomatic assurance’ from Algeria, that Zaoui would not be tortured or killed if returned there. In reality, that would violate both the UN conventions cited above – which categorically forbid returning refugees at risk of forture and execution - and would damage our international reputation.

Sweden found out a few years ago that diplomatic assurances are unforceable and worthless – but too late, and only after it helped to render a couple of prisoners back to Egypt, where torture occurred regardless of the prior promises. Not that such concerns may faze a Labour caucus that will be frightened from now on, of giving Winston Peters any excuse to throw a major tantrum, and trigger an early election.

It is particularly easy to despair when Michael Cullen can get up in the House – as he did yesterday - and deliver the same old inaccurate rant against Zaoui and his false passport, while attacking Zaoui’s lawyers to boot.

When the Attorney-General can’t even bother to get the basic facts of the Zaoui case right, after so long – lets repeat once again, that the UN Secretary General and UK case law have explicitly said it is quite legal and understandable for asylum seekers to use false passports, and that they should not be penalised for doing so – then the chances of Zaoui getting a fair deal here in New Zealand seem pretty remote. When Michael Cullen is happy to be so hostile, can we really expect David Cunliffe to buck him and the rest of the Cabinet?

In his search for a safe home for himself and his family, Zaoui has missed out on a huge chunk of his childrens’ transition into adolescence and young adulthood. The cost of the case to the taxpayer has been substantial – but overall, has been money well spent. Unwittingly, the Zaoui defence team – Rodney Harrison QC and Deborah Manning – have functioned as a two person Royal Commission, one that has taught our judicial system the hard way, about how the law can try to strike a balance between national sercurity and individual liberty.

What I’m saying is that New Zealand has benefited immensely from the learning curve the Zaoui case has forced upon our judges – who have largely risen to the challenge. That wasn’t always the case. Before they were made to grapple with the Zaoui case, the highest courts in New Zealand used to shrink right away from any active role in seeking a balance between national security and individual rights.

To see how far we’ve come, one has only to look at the second Choudhry ruling in the late 90s, where the entire Court of Appeal bench – with the laudable exception of Ted Thomas in a minority opinion – effectively walked away from the challenge, and ruled that all this security stuff was really something best left to the experts.

The courts don’t do it that sort of thing anymore. Thanks to the Zaoui case, they have begun to engage with international human rights law, and with putting boundaries, and demanding some measure of accountability from our security services. In fact, if you want to feel re-assured about the decision to scrap the Privy Council, try reading the December 2003 High Court decision by Justice Williams, the 2004 Court of Appeal ruling in 2004 and even the mixed bag on offer from the Supreme Court ruling of 2005. These judgements are a journey to maturity. To the point where he courts have now demanded that a very high test of the risk allegedly posed by Zaoui has to be met, if the SIS security risk certificate is to be confirmed.

Much of the spadework for this was done by Justice Suisan Glazebrook, in the brilliant judgement that she wrote on the Zaoui case for the Court of Appeal in 2004. The politicians of course, hate it. Witness the attacks by Helen Clark on both the Refugee Status Appeal Authority’s decision to grant Zaoui refugee status, and by Attorney-General Michael Cullen on the integrity of Zaoui’s lawyers. Par for the course, really. Tony Blair hates the British law lords, too. He took some severe maulings from them his attempts to get away with prolonged detention without charge , and over the use of security information obtained by torture.

To the politicians, the legal barriers to the expansion of the state’s powers of surveillance, search and detention are old hat. Criticism of the security services was absurd, Tony Blair told the UK Sunday Times earlier this year, and judges like Lord Hoffman who opposed the impact on civil liberties of Blair’s tougher rules against terrorism were “ misguided and wrong.” Before his departure from office, Blair tried to put in place sweeping police powers of arbitrary search and questioning unseen in the UK since the the Second World War.

Obviously, to oppose the extension of arbitrary state power is not to deny the fact that terrorism exists. One good alternative is that terrorist acts and conspiracies should be prosecuted under the existing criminal law – and not by scrapping the normal protections for a fair trial altogether. We do not seem headed in an encouraging direction in New Zealand on this point. The SIS put up its hand last weekend to say that it is interested in getting involved in the fight against organised crime – which may signal a greater use of secret evidence in criminal trials.

Already David Cunliffe has signalled his intention to use secret evidence and special advocates – innovations first deployed here in the Zaoui case – as a tool in our immigration processes.

Those trends need to be resisted. Russell Feingold, the only US Senator to vote against the Patriot Act, made the point soon after 9/11, that national security and individual freedom are complimentary notions, not opposed ones : “ We must redouble our vigilance to ensure our security and to prevent further acts of terror. But we must also redouble our vigilance to preserve our values and the basic rights that make us who we are.”

There is no doubt, Feingold said, that if we lived in a police state, it would be easier to catch terrorists. “If we lived in a country that allowed the police to search your home at any time for any reason ; if we lived in a country that allowed the government to open your mail, eavesdrop on your phone conversations, or intercept your email communications ; if we lived in a country that allowed people in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, then the government would no doubt discover and arrest more terrorists.” Problem being : it would also be a country, Feingold concluded, that we would not want to live in. That’s why we need to give Zaoui a fair and open trial – it is for our own good.

Next : the problem with using special advocates

Past Chapters: FULL COVERAGE: Zaoui Case – The Gordon Campbell Series

Disclosure : Gordon Campbell now works as a media officer for the Green Party. He has been writing about the Ahmed Zaoui case since 2003.

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