What about Fatima?

She is one focus point for lawyer Deborah Manning, amid claim and counterclaim over an NZSAS raid in Afghanistan in 2010.

The controversial book Hit & Run claimed the 3-year-old girl was killed during an attack which killed five other people and left 15 wounded.

Not true, says the NZ Defence Force. It has maintained nine insurgents were killed, and Hit & Run's claim is an awful slur on those who serve.


What of Fatima? Manning asks, how could a 3-year-old be an insurgent? And if she can't be an insurgent, what of the others killed in the raid?

Today will see the beginning of hearings into the NZSAS raid called Operation Burnham.

It offers the prospect of a genuine examination of one aspect of New Zealand's actions in Afghanistan.

Read more: NZ Defence Force claims 105 errors in Hit & Run

Our country dedicated military personnel to Afghanistan for 15 years at a cost of 10 lives and around $350m.

In all that time, there has been no public examination or inquiry into what we did or how we did it - or even if it was worth it.

The inquiry has the opportunity to enlighten the public or keep it in the dark, which is largely the focus of the first two days of hearings.

The establishment has presented a united front - intelligence agencies, foreign affairs and our military have expressed strong concern about an open inquiry, saying too much of what will be discussed is secret.


They say the evidence should only be heard or seen by the inquiry heads, Sir Geoffrey Palmer and Sir Terence Arnold, who appear to have largely taken on establishment concerns in producing a proposed plan for running the inquiry.

The work of the SAS

In a preliminary view, they wrote "we accept the need to hold public hearings where possible, to preserve public confidence in the inquiry".

However the plan details showed so much of the documentation was classified it was unlikely it could be produced publicly, or even shared with the villagers' lawyers, or Hager, or Stephenson. Likewise testimony, which would be taken secretly by the inquiry heads with transcripts redacted or withheld depending on how secret the information was.

Even the way in which the NZSAS operated was considered secret and needed protection, as if libraries and the internet were not filled with content specific to how special forces worked.

Others claim this is untenable. Manning is insistent the inquiry "should be as public as possible". Submissions from Hager and Stephenson give some acceptance of the need for some classification while pushing for greater openness.

Under the proposed rules, says Hager, the "claimed need to protect classified information would come to dominate the process". It would become a reason for a "closed and unfair process".

"Stated bluntly, what is proposed is a process that best suits NZDF. It would not provide the necessary scrutiny of NZDF's actions that are the subject of the Inquiry.

"I would feel very uncomfortable taking part in such an unequal process."

It's early brinkmanship in a drama in which all involved have much on the line.

Competing claims

Authors Nicky Hager, left, and Jon Stephenson during the launch of their book, Hit & Run, at Unity Books in Wellington last year. Herald / file photo
Authors Nicky Hager, left, and Jon Stephenson during the launch of their book, Hit & Run, at Unity Books in Wellington last year. Herald / file photo

The opposing narratives have little in common.

Even the place where the raids took place remains a point of argument, with NZDF calling it Tirgiran village while the authors and villagers' lawyers refer to the villages of Khak Khuday Dad and Naik villages.

Hager and Stephenson wrote of an aerial assault on homes, houses being torched and innocent civilians being shot dead by an NZSAS sniper.

NZDF says no homes were targeted, no houses were torched and the only people killed were insurgents.

It's high stakes, says University of Canterbury associate professor Donald Matheson, who studies journalism and has researched modern war reporting.

"There's a lot at stake for the journalists involved, and journalism, and there's a lot at stake for Defence and for the intelligence world."

Hit & Run filled a void in knowledge about what New Zealand had done in Afghanistan.

"There's been very little information about much of the military activity and on some of the policy."

Hager's detailed Other People's Wars book, published in 2010, contained more information about New Zealand's role in Afghanistan and Iraq than all media to that point. Stephenson, in submissions, is described as having 17 years experience "investigating New Zealand's role in Afghanistan".

A secret war

Matheson said without such reporting - particularly Stephenson's personal visits to Afghanistan - "you get a really thin version of what's going on".

"That's not necessarily because people are hiding things. The military is just not in the information sharing business.

"That book has arisen in the context of suppression of information by defence. It feels to me there was a strategy of withholding information."

David Fisher explores the debate on the need for transparency in the Afghanistan hearings. Photo / File
David Fisher explores the debate on the need for transparency in the Afghanistan hearings. Photo / File

NZDF is famously obstructive when it comes to media. When it held a transparency conference last year, it invited just one journalist.

Yet NZDF originally cleared Operation Burnham for public release. In December 2010, the then-Chief of Defence Lieutenant General Sir Jerry Mateparae told then-Prime Minister Sir John Key and then-Defence Minister Wayne Mapp the government was free to talk about the raid.

He sent a detailed memo, spelling out what had been declassified including "allegations were made that up to 20 civilians had been killed by aerial bombardment and 20 houses destroyed by fire".

The investigation at the time found there was "no way that civilian casualties could have occurred".

For whatever reason - possibly the airing of the allegations - the government did not discuss the NZSAS operation, even as it signed off medals for those who participated.

Then four months later, Mapp was ambushed about the raid during a television interview, during which he reiterated what he had been told - no civilians died. It is only years later NZDF concedes some civilians may have been killed, although says it has video evidence (which is secret) showing only armed insurgents outside buildings.

Let lie for seven years, the actual story of what happened and why remained untold. Eventually, enough strands combined to become Hit & Run, built on anonymous sources and leaked documents.

If Key and Mapp had revealed the raid in 2010, would the book ever have been written? Would there be an inquiry?

A test for transparency

It's a decision which has led from Taliban-controlled Afghanistan to the dungeon level of the Wellington High Court where at 10am today two of New Zealand's most experienced and careful legal minds will decide whether to draw, or draw back, the curtain on the NZSAS.

The secrecy with which the inquiry may be conducted was envisioned by Attorney General David Parker when creating the Terms of Reference for the inquiry.

The government, which came to power aiming to be the most open and transparent ever, spelled out the possibility for evidence and hearings to be secret.

While the principle of "open justice" sits prominently in the Inquiries Act, it allows boundaries to be drawn.

In this case, it includes keeping information secret to protect the security of New Zealand and protecting confidences shared by other countries, such as the secret drone video which NZDF has said would "exonerate" the NZSAS if made public.

Fatima is one focus point for lawyer Deborah Manning amid the claims over an NZSAS raid in Afghanistan.
Fatima is one focus point for lawyer Deborah Manning amid the claims over an NZSAS raid in Afghanistan.

Also appearing before the inquiry is much of the nation's media, pushing for greater openness. Those media include the publisher of the Herald and sibling papers, NZ Media & Entertainment, along with Radio NZ, TVNZ, Mediaworks, Stuff and Bauer Media.

Media Freedom Committee chairwoman Miriyana Alexander said the Hutton inquiry in the United Kingdom, which examined the path to war in Iraq, showed sensitive national security issues could be heard by an inquiry which remained largely open and public.

Initially planned as secret by the British government, it bowed to pressure and ran an almost entirely open process.

The principles at stake

Alexander, who is Premium Content Editor for NZME, said secret hearings would undermine public confidence in the process.

"These are the most serious of allegations against New Zealand's armed forces, and given the significant public interest, it is vital they are examined in public.

"The fundamental principle of open justice means this hearing should not be behind closed courtroom doors.

"It should be in the open, allowing New Zealanders to judge the matter for themselves. A secret hearing serves no justice."

Defence Force talk of a video which would "exonerate" the NZSAS doesn't faze Manning. She's been here before with Ahmed Zaoui and NZSIS cliams of video he had taken apparently "casing" targets. The so-called "oil installation" which caused security fears was the camera panning across a petrol station.

Her clients in this case say they were not insurgents, or that there were any insurgents present. They say they were civilians - a farmer, a teacher, a child.

Eight years on from the raid, they are spread across a war torn country. "They are displaced. They are living in uncertain conditions. They are living with the consequences of grief and injury and loss."

She maintains contact by phone, and through the process has witnessed a growing appreciation of the system of justice in which their lives have now been caught.

At the very least, there remains a building damaged by - according to the NZDF narrative - a malfunctioning gun sight. There has been no restitution for this. As Manning understands it, all the damage to homes the villagers attribute to NZDF would cost no more than $50,000.

What they truly want, though, is acknowledgement of what happened.

This can only really come through an open and public inquiry, says Manning. That's where the truth can be found.