New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 16 April 2015
Piercing the Veil: Executive Detention
W. JOHN HOPKINS*
A number of the foregoing articles have emphasised the marked increase in the use of executive detention that has occurred in the years following the events of September 11th 2001. These measures allow for the detention of an individual or group for an indefinite period, on the orders of the executive branch without the individual being found guilty of, or in most cases even being charged with, a specific criminal offence.
In the post 9/11 era non-citizens, who are perceived by the state as a potential threat, have commonly been targets of such policies. In the United Kingdom, the Anti-Terrorism Crime and Security Act 2001 was rushed through Parliament in December 2001. Part 4 of this Act allowed the deportation of non-British national terrorist suspects to third countries, and their detention while they awaited such deportation. In practice, this Immigration measure' led to the indefinite detention of individuals, without trial or charge. It created a `three walled prison' as the inmates were theoretically free to leave the United Kingdom at any time. In fact the prison (Belmarsh in London) was very real. The men involved were opponents of military regimes who had already fled from their countries of origin. They would face imprisonment, torture or execution if they returned.
In response to the decision of A and Others', the government has recently replaced the controversial Part 4 of the Anti-Terrorism Crime and Security Act 2001 with the Prevention
Dr. W. John Hopkins, Law School, University of Waikato, Hamilton,
A and Others v SoS Home Dept  UKHL 56
240 Yearbook of New Zealand Jurisprudence Vol 8.1
of Terrorism Act 2005.2 This has ended the use of three walled prisons for non-citizens and replaced it with 'control orders' applicable to all. In effect this is milder form of executive detention.' These orders are issued by the Home Secretary to restrict various freedoms of any individual through a variety of methods ranging from control of communications to house arrest.
In the United States, over 1,000 non-citizens were subject to arbitrary detention in the weeks and months following September 11th using a variety of methods. Most of these, so called 'special interest' detainees, were again detained on immigration grounds, although the reason was clearly suspicion of terrorism. Under new immigration rules issued on September 20th 2001, the Immigration and Nationality Services could detain individuals, `...in the event of an emergency or other extraordinary circumstance,' for 'an additional reasonable period of time.'4 The FBI too detained individuals on the novel ground that they were 'material witnesses'. In both cases few charges were eventually brought against the detainees and most of these were minor.5 These measures are in addition to the network of detention facilities used to detain 'unlawful combatants' centred on the Guantanamo Bay Naval Base, Cuba.6
These measures attracted heavy criticism, particularly from civil liberties groups and legal academics. As every undergraduate knows, executive detention of this kind is
For further details on the use of control orders see: http://security.homeoffice.gov.uk/counter-terrorism-strategy/ legislation/pta/
8 CFR 287, INS No. 2171-01
An overview of these events is found in the submission of Human Rights Watch to Committee on the Elimination of Racial Discrimination. A copy of the submission can be found here: http://hrw.org/english/docs/2004/03/25/globa18227.htm
contrary to any notion of the 'Rule of Law'. Individuals should only have their liberty denied for breaches of law, not on the basis of a suspicion of the executive branch. The general acceptance of this component of the Rule of Law is confirmed by the prevalence of statements barring such practices, except in exceptional circumstances, in constitutional documents across the globe.'
In fact although the protection of individuals from arbitrary detention is one of the earliest principles of the Common Law and arguably the basis upon which the whole edifice of the Rule of Law is founded, its use is far from exceptional. Faced with a crisis, this principle has been honoured largely in the breach and far from being the last resort is in the words of the UK's Senior Law Lord Is almost the first right to be curtailed' .8
It should perhaps not surprise us that, faced with a perceived crisis, democratic executives will resort to such practices. Although the individuals who comprise these bodies are likely to be well aware of the dangers inherent in such practices, it is human nature to have faith in one's own ability to use dangerous weapons responsibly. It is other people who can't handle them and in any case the end will justify the means. The executive is a body charged with getting things done, and they cannot be overly blamed for reaching for all the tools at their disposal.
However, the executive does not operate alone and its will, in the liberal west, is balanced by a judiciary that is charged with defending the Rule of Law. Such a defence need not bar such measures from being undertaken, indeed even in
7 To name but a few; Article 5 of the European Convention on Human
Rights, Article 9 of the International Covenant of Civil and Political Rights, The Fifth Amendment to the United States Constitution, Chapter 39 of the Magna Carta 1215 and the New Zealand Bill of Rights Act 1990, sections 22, 23 and 27(1).
Bingham T, Personal Freedom and the Dilemma of Democracies, ICLQ vol
52, October 2003 pp842.
242 Yearbook of New Zealand Jurisprudence Vol 8.1
peacetime such measures are deemed acceptable,' but only if, to use the famous words of K.C. Davis, they are suitably structured, confined and checked.' Consistently, however, the judiciary has abdicated from undertaking this role when executive detention is utilised in times of national emergency, particularly when foreign nationals are involved. Such judicial deference has left the executive not only with the power to imprison the individuals concerned, but to do so without needing to adhere to the requirements of natural justice.
The question that faces the judiciary and the population at large is a difficult one. The executive claims that such powers are necessary to defend the state in times of crisis. If this is true then surely it is correct for the judges to defer to the executive's decision in these exceptional cases, Davis's arguments notwithstanding. However, if due deference is shown then the executive's case can never be properly checked. The reasons for such detentions will often remain secret and will never be challenged before an independent tribunal. It is therefore only with the aid of history's 20/20 vision that the case for executive detention can be judged. When such measures have been used in the past, and the judiciary has deferred in their use, has history judged them necessary and effective?
A BRIEF HISTORY OF EXECUTIVE DETENTION
Both the United States and the UK", despite a commonly held belief to the contrary, have a long history of using this
9 Detention of individuals with mental illness or for police questioning,
Davis KC, Discretionary Justice, 1969, Greenwood Press, Westport,
New Zealand has a record of excessive, unchecked, executive power (see for example the Public Safety Conservation Act 1932, repealed in 1987) but this has generally not be used to allow executive detention. The view of the New Zealand courts on executive detention has generally mirrored those of the United Kingdom, at
`odious practice' whenever the state is perceived to be under threat.' The responses to September 11th merely reflect a continuation of the trend.
There are too many instances to mention in this short article, so two representative periods must suffice. Possibly the most famous/infamous example of executive detention in the United States' recent past occurred in the aftermath of another foreign sponsored attack on the United States. In February 1942, Presidential Decree 9066 was enacted to authorise the creation of military areas,
`...from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.' 13
This decree, and associate legislation, was used to detain over 100,000 American citizens of Japanese descent, without charge, until January 1945." Through a series of Military Orders, aimed first at individuals and then at the entire Japanese-American population in parts of the western United States, mass 'evacuations' of American citizens to 'relocation centres' were organised.
In two test cases, Fred Korematse and Gordon Hirabayashil6 failed to overturn exclusion orders. The Supreme Court refused to question the reasons for the orders, instead deferring to the military authorities to make such decisions on
least until recently. See Joseph P, Constitutional and Administrative Law
in New Zealand (2nd ed), Brookers, Wellington, 2001,
Churchill W, The Second World War, vol II Cassell, 1949, p627 as
quoted by Bingham T, op cit. p841
13 Presidential Decree 9066
Personal Justice Denied: The Report of the Commission on Wartime
Relocation and Internment of Civilians: Part I, US Government Printing
15 Korematsu v United States,  USSC 43; 323 U. S. 214 (1944)
Hirabayashi v United States,  USSC 134; 320 U.S. 81 (1943)
244 Yearbook of New Zealand Jurisprudence Vol 8.1
the basis of necessity:7 In the words of the 1982 Congressional Inquiry which investigated the episode:
The Court did not undertake any careful review of the facts of the situation on the West Coast in early 1942. It avoided this task by choosing to give great deference to the military judgment on which the decision was based. This approach of deferring to the military judgment rather than looking closely at the record which the government had been able to pull together was the only plausible course for the Court to follow if it were to conclude that exclusion was constitutionally permissible. If the Court had looked hard, it would have found that there was nothing there - no facts particularly within military competence which could be rationally related to the extraordinary action taken.
The Korematsu judgment, perhaps due to it being heard at a time when the threat from Japan was on the wane, did include significant and famous dissent from Justice Murphy. His view, which appears to have shifted dramatically in the year since Hirabayashi was uncompromising;
This exclusion of 'all persons of Japanese ancestry, both alien and non-alien,' from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over 'the very brink of constitutional power' and falls into the ugly abyss of racism.
Despite the opposition of Murphy and his colleague Jackson, the result was the same. The other judges refused to consider the flawed justifications Murphy referred too as deference was required to the executive in these matters. The reasons for the exclusions and internments were not to be questioned by the judicial branch.
In the 1980s, public pressure and a Congressional Investigation led to a re-opening of the cases. Korematsu had
17 This was not always the response of the US courts. In 1943 struck down the imposition of Martial Law in Hawaii in case of Duncan v. Kahanamoku,  USSC 40; 327 U. S. 304
his conviction quashed in 1984 with Hirabayashi following suite in 1987.18 The reasons were that in both cases, the government had supplied false and misleading information to the courts as well as withholding evidence. These discoveries seem to confirm the danger of granting too much discretion to the executive branch but the overturning of the judgments did not change the legal position. The principle of Korematsu still has limited legal relevance in the United States.
The 1982 Congressional Inquiry led to the total discrediting of the policy. We now know that the authorities were aware that there was no threat from the Japanese American community and that these decrees were enacted largely in response to political pressure. Bigotry not military necessity was the driver behind these measures.' On the basis of this President Reagan apologised on behalf of the United States government to the victims of these decrees in 1988 and a reparations scheme was established.
The views of one Japanese-American solider who served in the European theatre sums up the irony of the situation:
I only wish I could get those bigots, those hate mongers - those super patriots here to see what Hell war is. Here in the front we're respected as fellow Americans fighting for the same cause and we're proud as hell to be in there pitching - doing our share of the work. My only hope is that I'll be able to go back just to see if it's all worthwhile.20
The United Kingdom's war time record on internment has also led to criticism, although not on the scale seen in the
Korematsu v United States 584 F Supp 1406 (1984), Hirabayashi v
United States  USCA9 1771; 828 F 2d 591 (9th Cir 1987)
Personal Justice Denied: The Report of the Commission on Wartime Relocation and Internment of Civilians: Part I, US Government Printing Office, 1982
246 Yearbook of New Zealand Jurisprudence Vol 8.1
United States. Nevertheless, the unwillingness of the United Kingdom's judiciary to question the executives' reasoning was again a feature of this period. In the leading case of the time, application for Habeas Corpus was rejected on the grounds that the order was valid on its face. It was not the judiciary's place to review the reasons for the executive's power of detention when those reasons refer to national security.'
Although the extreme judicial deference shown in Liversidge was overruled in 1980, deference has continued to be a feature of the judiciary's response in the UK.22 Executive detention was regularly used over the centuries by the UK government in its attempts to subdue Irish nationalism. Most recently, in 1971, the Northern Irish government introduced detention without trial for 'terrorist suspects' under the Civil Authorities (Special Powers) Act. Over the next four years over 1,981 individuals were detained, for varying periods of time, many for over two years. The vast majority of these were released without any charge. The interment policy is now widely regarded as a total disaster. Large numbers of the people interned were wrongly identified, and police brutality was commonplace. Perhaps the most damning figure is that although the Loyalist Paramilitaries had begun the round of troubles, which sparked internment in the 1970s, only 107 detainees were held on this basis. The prejudices of the security forces, the vast majority of whom came from the Protestant community informed who was and who was not, a suspect. The UK as a whole was to pay a high price for the folly of its devolved government in 1971. The internment policy of the 1970s drove many Nationalists into the waiting arms of the Provisional IRA.
As in previous examples, the British judiciary refused to question the reasons for decisions taken under the Emergency Powers, and instead deferred to the executive and the security
Liversidge V Anderson  UKHL 1;  AC 206
See R v Inland Revenue Commissioners Ex p Rossminster Ltd  UKHL 5;  AC 952
service on these matters.' In all these examples, and there are many more", executive detention proved to be ineffective, ill advised and eventually illegal.' History has proved a very simple truth. Executive detention has huge potential for abuse. The Rule of Law, the concept of the separation of powers and Habeas Corpus exist for a reason. Without these limits executive detention can all too easily become arbitrary detention. Far too often this has proved to be the case. The failure of the judiciary to effectively check executive decision-making allowed this to happen.
EXECUTIVE DETENTION POST 9/11
The present 'crisis' has seen another upsurge of executive detention, this time to fight the 'war on terror'. Once again the main victims of such measures have been non-citizens and again the utility of the measures seems extremely questionable. The weeks and months before the events of 9/11 saw a failure of law enforcement, compounded by inadequate responses on the part of the authorities, not a failure of the law itself. The Congressional Report into events of 9/11 makes this clear.' The introduction of executive detention measures therefore does not seem a rational response to those terrible events. Equally the attacks on London appear to have been launched by previously unknown attackers, yet executive detention has become a key plank of government responses in both countries.
23 McEldowney v Forde (19711 AC 632. This case concerned not executive detention but executive proscription of organizations under the Civil Authorities (Special Powers) Act. The traditional judicial deference was shown.
25 The European Court of Human Rights ruled in 1989
that the executive detentions then in place were contrary to the ECHR. Brogan
v United Kingdom  ECHR 24; (1989) 11 EHRR 117
Final Report of the National Commission on Terrorist Attacks Upon the United States, US Government Printing Office, 2003
In this current round of executive detention measures, governments have again attempted to deflect criticism of their actions by arguing that they are immigration measures and/or they concern national security. The United States has also claimed that, in the case of 'unlawful' combatants that they are military measures.' In all cases, the governments concerned claim they are a matter of policy and balance and thus the courts should give deference to the executive.
However, the attitude of the courts to these measures appears to have shifted significantly since the events of the 1940s and even the 1970s. In the days after September 11th, UK courts were unwilling to question the discretion of the executive once the magic words, 'national security' were uttered. However, the limits of this stance were gradually exposed through a line of cases that began to question the orthodoxy of judicial deference in these matters.' Until 2005 the impact of this was relatively slight and the failure of the judges to turn their fine words into practical remedies led to significant criticism in the academic press.' However, the decision of A & Others showed that at least some of these decisions will now be scrutinised by the judiciary.' The judges declared that the measures utilised by the UK government were discriminatory and disproportionate. This case would appear to mark the end of the deferential approach on the part of the UK judiciary when issues of national security are raised. In the United States too, there is clearly disquiet amongst some members of the judiciary both in relation to the GTMO detainees.' However, the battle, which appears to be being
27 See Wilson R, above
R (on the application of Abbasi) v SoS for Foreign and Commonwealth Affairs  EWCA Civ 1598. See also Steyn J, Guantanamo Bay: The Legal Black Hole, ICLQ, vol 53, January 2004, ppl-15
A &Others v SoS Home Dept  UKHL 56
See for example the contrasting judgments of Judges Leon and Green in Khalid v. Bush, 355 F.Supp.2d 311 (D.D.C. 2005) and re Guantanamo Detainee Cases, 355 F.Supp.2d 433 (D.D.C. 2005)
waged within the United States' system, has yet to produce a clear winner.
As yet, however, these moves on the part of the judiciary in the US and UK to question the actions of the executive in these matters remain tentative. Still the judiciary does not demand that the full force of natural justice be applied and that reasons be given for detention. For this reason we are still unable to properly assess whether the executive's claims as to the necessity of detaining these individuals are valid. The New Zealand example provides an interesting insight into what happens when the veil of secrecy is stripped away.
NEW ZEALAND'S THREE WALLED PRISON
The New Zealand government's executive detention measures are contained in the Immigration Act 1987 as amended in 1999. Importantly, the New Zealand Act makes no specific attempt to remove the judicial branch from reviewing decisions made under the Act and there are no derogations from New Zealand's international human rights obligations within the act. Indeed the Immigration Act makes specific reference to the Refugees Convention.'
The controversial Part 4A of the New Zealand Immigration Act 1987 created the possibility of 'three walled prisons' in New Zealand for non-nationals believed to be a threat to the security of the state. Under this Part, classified security information can be used by the Security Intelligence Service (SIS) to issue a National Security Risk Certificate (Security Certificate), against an individual who is a 'threat to national security '."
respectively discussed at pages 208 and 209 in Rick Wilson's article in this journal
33 Section 114C
When relied upon by the relevant minister, this certificate is a trump card in the immigration process. All other immigration procedures and appeals are overruled and the individual concerned will be denied residence or refugee status. Importantly, the reasons for the Security Certificate and the evidence upon which it is based are kept secret from both the accused and their legal representatives. They can also be detained while such status is determined or while they await deportation.'
On the basis of the fact that the detainees can return home, it is claimed that such individuals are not being imprisoned. Instead they are merely temporarily detained at their own volition. This is a legal nonsense and such measures can lead to long-term detention for an individual who has fled from persecution. Given that the individual will not return home voluntarily to face torture, that no third country is likely to accept them, and that no court will force their deportation, the practical result is a system of indefinite detention without trial under the guise of immigration law.35
In theory a Security Certificate should only be issued when the nature of the evidence requires secrecy rather than the regular open process with appeal to the High Court." Such reasons are limited to when the public availability of evidence would compromise the ongoing security of the state, damage New Zealand's 'international relations' or 'prejudice the entrusting of information to the government of New Zealand on a basis of confidence by the government of
36 Part 3, 1987 Immigration Act
another country or any agency of such a government, or by any international organisation'.'
The justifications for a Part 4A process being used, rather than the normal refugee procedure, are far less onerous than the reasons of 'national security' required for the Certificate itself. Such justifications could include, for example, embarrassment to the New Zealand government or the security services. The decision as to whether even this low threshold is reached is a matter for the Security Services themselves.
In the regular asylum process, a national security deportation order can be challenged in the High Court, but in a Part 4A case, review is conducted by the Inspector General, the official watchdog of the SIS. 38 Such review will ensure that the Certificates are, in the words of the legislation, 'credible' and `relevant'." This test was reduced from 'accurate and reliable' on the advice of the Inspector General himself.
The consequences of Part 4A mean that the executive can detain and deport non-nationals without judicial scrutiny of the reasons if the Security Services determine that their interests would be jeopardised by such a process. Such non-nationals can potentially be detained for an indefinite length of time on the basis of the secret evidence. The threshold for review of such evidence by the government appointed
37 Part 4A, 1987 Immigration Act
39 Section 114D(1)
Inspector General is only that it is 'credible and relevant'. Rather than the onus being on the SIS to prove that the case reaches the normal thresholds of 'beyond reasonable doubt', or even 'on the balance of probabilities' they must only defend it against the allegation that it is not credible or not relevant, which the detainee must make without having seen the evidence.
It would be wrong, of course, to suggest that such unchecked discretionary power necessarily leads to arbitrariness. However, the only example we have of its use suggests that, once again, when too much unchecked discretion lies in the hands of the executive, bad things happen.
THE ZAOUI AFFAIR
On the 4th December 2002, Ahmed Zaoui, an Algerian opposition politician, stepped off a plane at Auckland airport. Upon landing, he made his way to the first official he came across and stated that he wished to claim asylum in New Zealand. Immigration officials recorded the request at 11 am.
On 30th January of 2003 a Refugee Status Officer rejected Mr. Zaoui's claim for asylum under the 1987 Immigration Act. Zaoui appealed to the Refugee Status Appeals Authority (RSAA) but on March 20th the Director of the Security Intelligence Services issued New Zealand's first Security Certificate under Part 4A of the 1987 Immigration Act.
Three days later, the Minister for immigration indicated an intention to rely upon the certificate making the decision of the RSAA legally irrelevant. Nevertheless, if the RSAA rejected Zaoui's application for asylum the Security Certificate would be unnecessary and it was agreed by both sides that Zaoui's appeal to the Inspector General should be delayed until the results of the RSAA ruling were known.
On the 1St August 2003 the RSAA released its ruling and a detailed report on the Zaoui application. Not only did it
overturn the decision of the RSO but, in doing so, it went far beyond the minimum requirements of its remit and presented a detailed analysis of the case against Zaoui's asylum application.
THE PUBLIC EVIDENCE
The report of the RSAA uncovered an astonishing list of mistakes and amateurism on the part of government agencies.' These are too numerous to mention here but it is worth bring the reader's attention to some of them. These dated back to 4th December 2004 when Zaoui first declared his intention to seek asylum in NZ.
The crucial 'interview' in which Zaoui apparently confessed to terrorist activities took placed in a busy customs hall. The Customs Officer undertook the interview in English (which Zaoui was not fluent in), without the aid of an interpreter, while he searched Mr. Zaoui's bags. The RSAA's investigations into what happened during this 'interview' evoke less the image of James Bond and more that of Laurel and Hardy.
The customs official (who was new to his post) had, prior to `interviewing' Zaoui, contacted the Customs Anti-Terrorism Unit, as he believed Mr. Zaoui fitted the profile of a potential terrorist. The duty officer advised him to ask Zaoui three crucial questions. Firstly, whether he was a member of the GIA (a violent Algerian terrorist organisation), secondly whether the GIA had aided him to get to New Zealand and thirdly whether his passport had any GIA emblems in it. The customs officer (referred to as AB in the report) diligently wrote down the questions, memorised them and then, presumably while humming the theme tune of Mission Impossible, 'destroyed' them. On his own initiative he then
40 Refugee Status Appeals Authority New Zealand; Refugee Appeal No. 74540, 1 August 2003. The full report can be accessed from the Human Rights Foundation of New Zealand website: www.humanrights.co.nz
contacted the SIS. We have no record of what the SIS said at this point but it is clear from the evidence of AB (who had no idea who the GIA were) that they did not enlighten him on the complexities of the situation that now faced him.
The 'interview' then commenced and the key question was asked. Was Zaoui a member of the GIA? The Customs Official Z recorded that he had answered in the affirmative. This response was entered in Z's Standard Information Report (completed by AB from memory and notes the next morning). It was this report that led to Interpol Wellington informing its offices worldwide on 5th December of the detention of Zaoui. The statement relating to this was uncompromising 'he is a member of the Armed Islamic Group which is known by the French acronym G.I.A.' The report and the admission that it contained was used by the police in deciding to detain Zaoui in solitary confinement in a maximum security facility. The only elements to the 'threat assessments' were the confession and the fact that Zaoui was the subject of Algerian arrest warrants.
The RSAA's view of the 'confession' by Zaoui was uncompromising. It was, they argued, 'inherently improbable' that such a confession was ever made. Zaoui had consistently denied that he was a member of the GIA and opposed its methods. He had even done so two hours previously, when formally applying for asylum in New Zealand. He gave as reasons, both fear of persecution from the Algerian military regime and the GIA' s death sentence against him. Although Zaoui would not be the first terrorist leader to maintain their innocence, the RSAA felt it was highly unlikely that after years of denial Zaoui suddenly decided to come clean and admit his involvement in terrorism to a New Zealand customs official, a mere two hours after claiming that the same organisation wanted to kill him.
The suspicions of the RSAA were confirmed by their own investigation of the circumstances of the confession. According to Mr. Zaoui' s account, he realised the importance of the question about the GIA and that the interviewer had
probably been primed to ask it. It was at this point he asked for an interpreter. From AB's description of events he appears not to have understood the request as it 'never occurred to him' that an interpreter was required. Lacking the interpreter, Zaoui answered the question with the answer 'FIS'. He did so in the Francophone tradition by pronouncing the three letters as a word (to rhyme with peace). AB did not understand, leading Zaoui to use the English tradition of pronouncing the acronym by letter - 'F, I, 5". He did so using the French alphabet. It appears that this resulted in the letters F, I, S being written AB's notebook as 'Yes'.
It also transpired that AB only recorded parts of the interview as he thought he should only record 'Yes' answers. For this reason no record of his denials that the GIA had assisted his arrived into New Zealand were recorded.
The problem that the RSAA identified was that the unsafe nature of the 'confession' and the unsatisfactory nature of the interview was not recognised. As a result, the Customs Service report grew in importance and began to inform or misinform various other aspects of Zaoui's case.
The other main charge in the public arena against Zaoui is the existence of two sets of outstanding convictions from France and Belgium. These could potentially be fatal to his claims for refugee status under 33(2) of the Refugee Convention.' Serious question marks were raised about these convictions in the RSAA report but there is no space to discuss these here. In neither case, however, could they be regarded as serious enough to trigger Article 33(2) of the Refugee Convention, and allow refoulement.
REVIEWING THE SECURITY CERTIFICATE
The Crown did not challenge the decision of the RSAA and instead maintained that Zaoui remained a threat to the state
41 1951 Refugee Convention
on the basis of the secret evidence outlined in the Security Certificate.
The lack of detail in the act allowed the Inspector General to decide his own review procedures. He decided that Zaoui and his lawyers did not need to be made aware of the classified information that was used to justify the certificate and that principles of international human rights law were 'beside the point' when the certificate was reviewed.
As examined more fully in Dr. Breen's article, the denial of reasons for the Security Certificate was rejected by The High Court, which demanded that a summary be provided." This element of the judgment was not appealed and a summary of the reasons for the Security Certificate was provided by the Director of the SIS.
THE SECRET EVIDENCE
The summary of allegations is now publicly available since Mr. Zaoui' s lawyers decided to release it. It is worth examining these in turn.
Six allegations are given followed by a brief statement outlining the reasoning of the Director of Security. The first allegation is not an allegation at all, but merely a statement of the events surrounding Zaoui's arrival in New Zealand. This can be discarded.
The second concerns a videotape, which the SIS claims is a casing video for a bombing campaign. The video is available publicly on the interne and I advise readers to view it and make their own conclusions." It is terrible, and the user clearly has difficulty using the controls. To the admittedly untrained eye it appears to largely show out of focus hawker stalls more than anything that could be regarded as a target.
42 Zaoui v Attorney General [20041 2 NZLR 339
43 The video is available at: www.freezaoui.org.nz
In any case, why would an individual who was applying for asylum bring such a video with him?
The third concerns an interview by the New Zealand SIS in which Zaoui' s answer to an undisclosed question led to a 'security concern'. This could be a serious allegation but is once again suspect given that the interviewer spoke Egyptian Arabic and the conversation with Zaoui often broke down.
The fourth, fifth and sixth reasons concern the convictions in Belgium and France, plus a deportation from Switzerland. Although these are clearly of relevance one must question why they are in the Security Certificate? Surely as publicly available information, assessment of these issues is a matter for the RSAA? It is unclear what the SIS can add to these matters.
The statement concludes with the specific 'reasoning' of the Director of Security which led him to approve a certificate in the case of Ahmed Zaoui. This does not say anything of particular note although a few phrases stand out. The first is an astonishing statement, which appears to bear no relationship to whether or not Zaoui is a danger to New Zealand:
`Mr Zaoui is a foreign person. He has a long record of involvement with foreign persons and foreign organizations including leadership. There is good reason to believe that any future activities he may undertake will be influenced by other foreign persons and/or by foreign organizations.'
Two others perhaps cut to the heart of the matter. The concern of the SIS seems more related to the international image of New Zealand than of any threat to the state.
`If Mr Zaoui, with his public record, were allowed to settle here, that would indicate that New Zealand has a lower level of concern about security than other like countries. That would impact adversely on New
Zealand's reputation with such countries and thus on New Zealand's international well-being.'
`If Mr. Zaoui, or other people attracted to New Zealand by his presence here, were to undertake, facilitate, promote or encourage activities of security concern, either in New Zealand or elsewhere from within New Zealand, the adverse impact on New Zealand's reputation and thus on its international well-being would be compounded.'
The evidence as presented in the certificate is clearly not enough to convict an individual for any crime. It does not even meet the balance of probabilities test to suggest Zaoui is a terrorist. In fact the reasons appear focussed on New Zealand's international reputation, as interpreted by the SIS, rather than the national security concerns that it is expected to contain. This would not have been exposed had the High Court not demanded that the summary of reasons be given.
THE ZAOUI AFFAIR - CONCLUSIONS
The likelihood of Zaoui remaining in New Zealand has been increased by his release from prison on the orders of the Supreme Court. In a final hearing notable for the number of chances the court gave to the crown to come up with reasons for Zaoui's continued detention, the Crown could only repeat those it had provided for the security certificate, which as the Supreme Court pointed out, did not amount to an immediate threat.' Given this outcome it seems unlikely that the crown can seriously argue that an individual who is wandering the streets of Auckland by day poses such a threat that he must be returned to face persecution.' Nevertheless, the Security
Zaoui v The Attorney-General and Ors SC CIV 13/2004 [25 November
Ahmed Zaoui is currently staying at Auckland's St Benedict's Dominican Friars. Although he is free to walk the streets of Auckland during the daytime, he is the subject of a nighttime curfew. Apparently, he might undertake nefarious activities at night (but not during the day?).
Certificate remains in force and we await the outcome of the Appeal to the Inspector General.
So what does the Zaoui case tell us more generally about the use of administrative detention in the post 9/11 world? The decision by the High Court to ignore calls for judicial deference has led to unprecedented public scrutiny of the reasons for the detention and they do not appear strong. One cannot help but conclude that they not only fail to justify such detention but that the New Zealand Security Services and Government Ministers have difficulty making the distinction between the interests of the state and their own.
Decisions on the liberty of individuals are never a matter of policy to be left to bureaucrats or politicians, even when they concern immigration or national security. Executive discretion must always be subject to structure, confinement and checking, particularly when an individual's liberty is at risk. The Unity of Public Law demands that the Rule of Law protects all individuals in all circumstances not just those with the right kind of passport.
However, I end with a cautionary note. It is not the intention of this paper to denigrate the work of the security service, of which the author knows little. There may be evidence that exists which implicates Ahmed Zaoui in activity that threatens the security of New Zealand. However, if this is the case, the requirements of natural justice demand a suitable judicial hearing to establish its veracity on the basis of reasonable doubt. I am not qualified to judge whether Mr. Zaoui is a threat to the security of New Zealand but, on the basis of the evidence discussed above, neither are the Security Services nor their political masters.