Intelligence agencies also failed to follow up civilian casualty and torture reports – Inspector-General of Intelligence
and Security report released today
A second inquiry into civilian casualties and torture of a prisoner, conducted by the Inspector-General of Intelligence
and Security (IGIS), was also released today. The report looks at the actions of the two main New Zealand intelligence
agencies, the Security Intelligence Service and the Government Communications Security Bureau, both of which had staff
in Afghanistan assisting the NZDF military operations. It is a sister inquiry to the Operation Burnham inquiry.
The IGIS report independently confirms the two main allegations in the book Hit & Run: that there were strong reports of civilian casualties after Operation Burnham that should have been investigated
by New Zealand agencies but were not; and that New Zealand authorities handed over a prisoner to the Afghan secret
police when there was a high risk he would be tortured, and then did nothing when they learned he had been tortured.
Operation Burnham
The IGIS inquiry found that both the NZSIS and GCSB staff gathered intelligence in preparation for Operation Burnham and
then helped assess the casualties and damage in the days afterwards. The inquiry finds, based on intelligence agency
records, that “it soon became apparent from intelligence reports that none of the targeted insurgent leaders had been
killed in the raid on the village.” (para 34)
The report states: “it is indisputable on the evidence we saw that the reasonable possibility of some civilian casualties was known to the intelligence agencies shortly after Operation Burnham. We found civilian
casualties were referenced in a significant volume of intelligence available to them.” (para 36)
In other words, the people responsible for collecting intelligence were well aware of the civilian casualty reports from
soon after the NZSAS raid. Moreover, the IGIS report says “We saw evidence
that at least two Wellington [GCSB] team employees were concerned about the deaths of civilians
and raised this with management.” (para 37) But IGIS finds that the agencies took no action on the reports.
The report concludes on civilian casualties:
Both agencies actively supported preparations for Operation Burnham. Afterwards, there was a consistent theme of
civilian deaths in the totality of the intelligence they held. In all the circumstances, and given the extent and nature
of their involvement, the New Zealand intelligence agencies should have taken a broader and more proactive approach to
their role at that point. This means more than accurately reporting the intelligence to interested partners by standard
methods. In the Inquiry’s view the NZSIS and the GCSB were especially well placed to ask the following questions in
wider Government circles: did the reasonable possibility that plainly innocent civilians were killed in the NZDF led
operation, to which they contributed, require any part of the New Zealand Government (as a matter of law or ethics or
State sector propriety) to take any further steps? In particular, should anyone “assess” whether civilians have been
injured or killed? Should Ministers receive a focussed briefing on the picture of civilian casualties, and/or should
legal advice be obtained? (para 50)
Prisoner torture
As with Operation Burnham, the IGIS report finds that the NZSIS and GCSB staff played “a significant role” in the
capture of the known insurgent Qari Miraj. An NZSIS officer was involved in decisions to hand over New Zealand prisoners
to the Afghan National Directorate of Security (NDS). Two weeks later NZSIS “released a report of a confession made by
Miraj... which had been ‘officially passed to NZSIS by a senior NDS Officer’.... Management within the NZSIS and the
GCSB raised no questions about the conditions under which the confession report was obtained.”
Reports of torture emerged soon afterwards. “In late February 2011... New Zealand Government officials became aware of
information that included an allegation of Miraj’s torture while in NDS custody. The suggestion was that the torture had
led to Miraj’s earlier confession.”(para 68) “On 25 February the GCSB recorded this torture allegation in a document
which it shared within the New Zealand Government.” (para 69)
Again, the IGIS inquiry “heard evidence from some members of the Wellington team that they were
shocked by the allegation of torture. The Team Leader took immediate steps, on 25 February
2011, to inform senior managers of the allegation.” (para 73) “The GCSB ensured that the record of the torture
allegation was shared appropriately with other Government agencies. The Team Leader of the GCSB team additionally took
the proper step of drawing the attention of senior management to the report.” (para 80)
But no practical action of any sort was taken. Meanwhile, “The Inquiry found that the NZSIS did not turn its mind to the
question whether there was any realistic risk Miraj’s confession was obtained as the result of torture or mistreatment,
and if so, whether that led to any subsequent responsibilities, legal or ethical, in the particular circumstances.”(para
87)
“NZSIS receipt of the report from NDS did not trigger any processes within the NZSIS to check whether there was an
inherent risk of abuse associated with the confession report. As with the GCSB the organisational response to the
confession was the operational consumption of the intelligence it contained.” (para 88)
Instead, the IGIS inquiry found that the NZSIS was encouraging the NDS, “on behalf of the New Zealand Government” (para
90), to continue to detail the prisoner. “In the Inquiry’s view, these facts squarely put a duty on the New Zealand
Government, through its relevant officials, to assure itself that there was no real risk that Miraj was being tortured
or mistreated. In particular, we are concerned that despite the concerted effort to keep this particular individual in
custody, NZSIS did not, either separately or in conjunction with other New Zealand agencies, identify any responsibility
to ensure the New Zealand Government understood the conditions of Miraj’s detention and to assess whether they were
appropriate in light of New Zealand’s legal obligations.” (para 91)
The IGIS report says: “We conclude that NZSIS simply failed to see for itself the significance of the reported
allegation of torture.” (para 96) “The NZSIS should have recognised that it needed to undertake due diligence with
respect to the serious risk of mistreatment to Miraj even if NZDF, MFAT and others failed to do so.” (para 102)
Mr Hager thanks the IGIS for all the work it did to investigate these events and then make them available to the public
in an unclassified form. “The intelligence agencies of course dislike being criticised, but this report is practical and
fair and will help future intelligence staff to do their jobs better. It shows the great value of an independent
Inspector-General of Intelligence and Security. It is very important that intelligence agency actions can be reviewed in
this way.”