Video imagery from an Apache helicopter gunship shows armed men leaving a house in the village. Photo / Supplied
COMMENT: Citizens can expect to find out more about what our elite NZSAS do in their name as a result of the Inquiry into Operation Burnham.
For decades they have operated in almost complete secrecy.
No more.
Two sets of information made public in the past month have blown away the cloud of obfuscation which has surrounded the unit since it was formed in the 1950s.
It has come about as a result of the inquiry into allegations made in the book Hit & Run, which alleged war crimes, civilian deaths and a beating dished out to a captive.
The main focus of the book was the August 2010 raid into Baghlan province in Afghanistan, said by journalists Nicky Hager and Jon Stephenson to be a revenge mission for the death of a New Zealand soldier.
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They claimed it led to six dead and 15 wounded, largely through Apache gunships shooting up a village of civilians with high-explosive cannon fire.
The first set of astonishing information is now available on the Inquiry website, allowing anyone interested to study the operational planning for the mission, to read the intelligence reports and details (if not the actual wording) of the closely-guarded Rules of Engagement. There is internal legal advice, testimony from NZSAS troopers about aspects of the raid and post-operation reviews of what happened.
It is detailed and most pages have "Secret" stamped across the top with a line ruled right through the word.
Secret no more.
The inquiry's security advisers have cleared hundreds of pages for publication, about two years after the NZ Defence Force rejected Official Information Act requests for it to be provided. NZDF's position was one which found support from Chief Ombudsman Peter Boshier, whose job it is to consider whether public agencies have good grounds to refuse OIA requests.
NZDF had claimed (and Boshier accepted) the detailed documents would threaten the security of our troops and would upset the United States by releasing classified military information of a joint operation.
The inquiry's security advisers, Ben Keith and David Johnstone, have had access to the same classified information NZDF and Boshier withheld from the public - and then judged a great deal of material safe to release.
Both have perspective on security matters. Keith is a former Deputy Inspector-General of Intelligence and Security and would be familiar with New Zealand's greatest secrets. Johnstone is a senior lawyer who has represented the Crown in cases which require a security clearance, and the utmost discretion and judgment.
The second release of information was the video footage from those Apache gunships said to have killed civilians, and from the Spectre gunship circling above the battlefield.
It was this footage NZDF had shown to select politicians in private screenings, using it to bolster its argument no inquiry was required. They seemed to say, if you watched the video, which they could ably narrate, then it was clear no inquiry was needed.
But it also said the video was too secret to be released publicly, because doing so would upset the US and it would likely lead to it not sharing secret information with New Zealand.
In this, Boshier had also accepted NZDF's reasons for withholding it from public view, after being provided with a letter from the US chairman of the Joint Chiefs of Staff, General Dunford, saying the release of the video footage "could reasonably be expected to cause serious damage to United States national interests".
Then Hager, using the US version of the Official Information Act, asked for and received chunks of exactly that video - and a detailed investigation report into the alleged civilian casualties which NZDF had never before mentioned.
How astonishing it must have been for NZDF. It had to make successive requests to the US to be allowed to show the footage to the public, been told it couldn't, and then Hager - who is not popular with high command - pops up with it and holds a press conference.
The US Embassy, NZDF and the Office of the Ombudsmen have all talked of "legal proceedings" resulting in the release of the information. NZDF went further and said a "court order" was involved, as if some legal compulsion forced United States Central Command to hand it over.
The court file - which has been examined by the Herald - has no court order in it. Rather, the lodging of proceedings seems to be a standard manoeuvre in the US to nudge along agencies ignoring (or going slow on) Freedom Of Information Act requests.
Talk of "legal proceedings" starts to look like a fig leaf under close study. Questions should be asked by Minister of Defence Ron Mark as to how Hager got "secret" video out of one of our closest defence allies when his top brass couldn't.
So, what do we take from this?
Both information dumps should set a new standard for those seeking information from NZDF.
It isn't uncommon for our military to claim operational security and excessive risk as a reason to refuse to supply information.
The high level of disclosure provided by the Inquiry sets a new standard. If this is the type of information which can be safely released, then why can't we know more about what our troops did in Afghanistan? Or anywhere else they were posted?
The release should raise questions about NZDF's current and past benchmarking of what constitutes a risk to its people, and New Zealand's relationship with allies.
Anyone who has sent an OIA to NZDF will tell you any detail, no matter what, seems to be surrendered begrudgingly.
In the battle to keep its secrets close, NZDF is a formidable warfighting machine.
When it comes to telling the public what it is doing, it shouldn't be. And the real test is not the constant stream of disclosures from its proficient public relations team, but the stories which aren't so easy to tell. Like what happened in that valley in August 2010.
The military in any democracy relies on social licence - the broad sense of public approval for it to be carrying out the actions it does. When it is said their actions are done in our name, that's what it means.
So when our troopers are on a hillside in Afghanistan with malfunctioning communications watching Apache gunships they requested using faulty weapons to shoot up a village, there is the tacit understanding those actions are being undertaken on behalf of New Zealand.
When there's a resistance to disclosing those details, it erodes that social licence. Disclosure, understanding and possible restitution - if required - enhances it.
It also adds a genuine and modern framework for that licence. It means support for our military doesn't come from memories of a beach in Turkey, or a field in France, or a mountain in Italy. It doesn't come from wars gone by, and generations past.
It comes here, and now.
There should also be questions - and some introspection - at the Office of the Ombudsmen over its support of NZDF's position.
The inquiry had the luxury of considering the "public interest" when releasing the material. The Chief Ombudsman wasn't able to do so because NZDF relied on a section of the law which is an absolute test, and no public interest considerations are allowed.
But where NZDF took what appears to be, largely, a blanket approach, Keith and Johnstone appear to have considered each part of the information and considered the risk. Some information withheld was publicly known, they said, and could be made public because people could find it online, in "official publications, court and inquiry decisions".
A reflection on every piece of information now released by the inquiry must raise a question over the decision to support NZDF withholding each, individual, piece of information.
Keith and Johnstone, for the inquiry, weren't at all glib in their decisions to clear the information for release. They held back on releasing material for many of the reasons NZDF originally cited - and the Chief Ombudsman supported - including details of operational matters which may give an adversary advantage and damage to foreign relations.
Justifications about time passing and so on may have some validity with Keith and Johnstone telling the inquiry information which couldn't be released earlier is now able to be made public. It seems unlikely the year since the Chief Ombudsman's final decision supporting NZDF has made a difference. The NZSAS were out of Afghanistan by April 2018 and the difference of eight years versus nine years since the raid can surely matter little.
With all this information, are there any answers?
Yes, but mainly about the conduct of the inquiry. Its decision at the outset to hold hearings in secret appeared to throw a comfort blanket across NZDF and a shroud over transparency.
The release of such large amounts of information is a successful, although not complete, counter. We know more today, as a result of this inquiry, than we ever did about what the NZSAS does at an operational, and legal, level.
Massey University's Dr Rhys Ball - who is a lecturer at the Centre for Defence and Security Studies - was amazed by the contents of the successive tranches of information coming out.
Ask for a comparable example, and he points to publication of patrol reports and other operational details relating to the NZSAS deployment to Borneo in mid-1960s. The details were released in the mid-2000s.
That's 40 years later, which illustrates just how extraordinary it is to have all this information released.
Ball has expertise in this area. The former NZ Security Intelligence Service officer used that previous information release - and other details - to write a detailed, engaging thesis on NZSAS deployments in South Vietnam and Borneo, finding a foundation of excellence led to "today's highly skilled and enviable New Zealand Special Forces".
Having cast an eye over the new information released, he says: "I don't think there's anything in that material that gives me cause for concern or makes me think there's operational SOPS [standard operating procedures] that have been compromised.
"A lot of that is common knowledge now. It's demonstrated the world isn't going to end if this information is available."
Rather than answers, we still have questions.
We might know how NZDF's bungled communication around the original inquiry led to headquarters being misinformed about whether there were civilian casualties.
We don't know why it allowed its minister, Dr Wayne Mapp, to go on television and deny, utterly, there were civilian casualties or for that likely inaccurate statement to stand unchallenged.
We now know there was a United States investigation into potential civilian casualties. We also know an Apache gunship crew edited its tape - apparently to save space - so as to remove one of its pilots warning about "people, huddled by the building" and how "at least one is female", shortly before a faulty gun system sent 30mm high explosive cannon fire into its roof.
We don't know why NZDF never mentioned this.
There are also questions for Hager and Stephenson. The information released adds weight to some of their allegations, but has shifted the ground from beneath others.
If there's an obvious example, the Inquiry into Operation Burnham is named for an operation which never existed. There was an "Objective Burnham", which was the name given to one of the individuals targeted by the NZSAS. And yet, the book refers to "Operation Burnham" throughout.
And the suggestion there were no armed insurgents in the village was always a stretch. The clear imagery of someone toting a rocket propelled grenade launcher out of one of the houses seems to have dispelled that.
Hager says it's hard to find the truth about "really well hidden things". "You won't find everything and you won't get everything right. We did the best we could, trying to look over the brick wall of secrecy."
The argument, essentially, is we only know about the likely civilian casualties and an alleged coverup because Hit & Run was published, and so the cost of a few errors is worth the information we have gained.
But the book had a particular cost on those who serve because it also alleged the raid was motivated by revenge, and in seeking vengeance, our troops left in their wake dead civilians, including a 3-year-old girl named Fatima.
We don't know yet if it was true, or not. And if not true, we don't know whether the knowledge we have gained was worth the cost.
For those in uniform, allegations of revenge and wanton destruction were sick-making. The claims are so contrary to the values NZDF tries and (mainly) succeeds in passing on to every young man or woman who joins the air force, army or navy.
The inquiry report should give enough information to judge whether Hager and Stephenson's greater cause - exposure of the raid - balanced out the damning impact its harshest allegations had.
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