Feature
Watching the watchers
by Gordon Campbell
The SIS Inspector-General is supposed to be our eyes and ears in monitoring the super-secret intelligence agency, but how well is he balancing the rights and civil liberties of individuals – such as Ahmed Zaoui – against the needs of national security?
In deciding the fate of Algerian refugee Ahmed Zaoui, the government has put its eggs in one basket – namely, the ongoing review of the SIS evidence against Zaoui being conducted by the SIS Inspector-General Laurie Greig. A lot is riding on his shoulders. The Inspector-General is the only official with the power to scrutinise all the SIS classified evidence. Yet, as Greig explains to me in an interview conducted in his Mt Victoria townhouse, his post is only a part-time job. He has no staff to help keep him abreast of terrorism and immigration issues around the world, and that’s fine by him. “It’s me, I’m it,” he says. “It’s for me to decide what to do, and what I need.”
A retired High Court judge, Greig was 67 when the post of Inspector-General was created in 1996. Last December, he was re-appointed to his third consecutive three-year term. Softly spoken and somewhat hesitant in manner, Greig seems older than his 74 years.
In his seven years on the job, Greig has only once upheld a complaint against the SIS, that being over someone barred access to confidential information due to minor convictions. On every other occasion, Greig has found in favour of the security services. When the SIS burgled the home of anti-globalisation activist Aziz Choudry, Greig declared these actions and procedures had been “lawful, reasonable and justified”. Later, the Court of Appeal ruled that the SIS actions in the Choudry case were, in fact, illegal. The law was changed retrospectively, to legalise such intrusions.
As things stand, Greig is barely halfway through his task of scrutinising the Zaoui case. On October 6, he issued his interim decision. Primarily, this ruling refused the Zaoui defence team any access to an adequate summary of the classified evidence. Greig also held that the task of weighing the likelihood of Zaoui’s torture and execution (if deported) was something for Immigration Minister Lianne Dalziel to consider at her discretion, and not his concern. His report would merely assess whether the SIS had correctly issued the certificate that has deemed Zaoui a threat to national security.
So, in that sense, his review is akin to a doctor’s second opinion – traversing the same grounds as the SIS Director of Security? “Right, right. That’s right.” So is there anything in the law that makes it mandatory for the Immigration Minister to consider Zaoui’s human rights? “Well, I … probably. Yes. I think so. Because our adherence to these human rights conventions against torture … the prohibition against someone being sent back to be killed is … I imagine she has to consider that.”
Trouble is, I suggest, Dalziel could say that she’s relying on the Inspector-General to weigh those issues, and the Inspector-General could say that it’s up to her to consider them – and as they circle behind each other, Zaoui’s human rights could fall through the cracks. What in the law ensures that wouldn’t happen?
“Oh, I don’t think there’s anything to be sure that wouldn’t happen,” Greig replies almost jauntily. He hands the ball firmly back to Dalziel. “The wider issues? Yes, she’s not bound [by my report]. I don’t bind her to say ‘Out’. Because she’s got three days to decide [after Greig delivers his findings]. If that wasn’t the case, then she wouldn’t have a decision. I’d be making my decision and it would be ‘outski’ on the next plane. The minister, the executive, really do have to make the decision.”
Surely, the wider human rights issues have to be weighed within his own work as well? Just as Treaty of Waitangi issues are embedded at every level and process of government, isn’t it mandatory that the human rights considerations be embedded within the Inspector-General’s report?
Maybe, maybe not. “The Canadians, in their jurisdiction,” Greig replies obliquely, “have talked about the need for there being a real danger [of torture or execution] … Now it seems to me,” he says, groping for words, “that possibly having the background of what’s going to happen … must be perhaps weighed.” Uh-huh. But under our law as currently constituted, Zaoui’s human rights are not something the Inspector-General or the Director of Security need to consider? “Yes, I’m sure that’s right.”
The High Court may beg to differ, come December. Zaoui’s lawyers are taking court action to gain more access to an adequate summary of the alleged evidence that the SIS has levelled against him. In addition, they will be seeking a ruling as to who – Greig, Dalziel or both – must consider the human rights dimension of Zaoui’s fate, both now and if his deportation arises. Clearly, Dalziel cannot continue to pretend that the Inspector-General’s report will resolve the Zaoui case.
There are more immediate problems. As the law stands, Greig has to weigh whether the classified SIS evidence against Zaoui is “credible and relevant”. Yet when the Immigration Amendment Bill was being framed in 1998, the original wording proposed that SIS evidence must meet the higher standard of being “accurate and reliable”. Why was “accurate and reliable” a hurdle too high for the SIS to meet? Is it too much to expect that they get it right?
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