Highly secret documentation which the NZ Defence Force says can't be released publicly in an inquiry into a NZSAS raid is available on a Nato website, says journalist Nicky Hager.

Hager, who co-write the book which led to the inquiry, said evidence of the sort needed to ensure public confidence had been disclosed in comparative inquiries abroad or could be found on the internet.

"It's a very important principle to remember when people say a document is secret. It is out there somewhere in the world.

"We are hiding it only from ourselves."


The claims were made on the first day of hearings into the 2010 NZSAS raid in Afghanistan which the Hit & Run book claimed killed six civilians and wounded 15 others.

NZDF rejects the claim, saying nine insurgents were killed although concedes it is possible some civilians died as a result of a faulty weapon system on a US Apache helicopter gunship.

The inquiry was set up in April after Attorney General David Parker said it was necessary so "the public to have confidence in the NZDF".

The first day's hearing was intended to hear views on how closed the inquiry should be and saw repeated challenges to intelligence and military establishment concerns about classified information.

Hager said the inquiry had to be sceptical of simply accepting claims of national security and secrecy.

As an example, he said the Rules of Engagement governing the NZSAS conduct and legal expectations when it went into Tirgiran Valley to carry out the raid.

It was one set of documentation which NZDF considered too secret to be released.

NZSAS troops leave a Chinook helicopter in Afghanistan. Photo / Supplied
NZSAS troops leave a Chinook helicopter in Afghanistan. Photo / Supplied

"Rules of Engagement are going to be one of the important issues here. I have various copies of New Zealand Rules of Engagement from different periods.


He said comparative inquiries in other countries showed large amounts of information which NZDF considered to be secret had actually been made public without apparent harm.

He specifically pointed to a German inquiry which had successfully sought and published cockpit recordings of US aircraft carrying out attacks on Afghan civilians. He also pointed to intelligence reports which had been supplied to UK inquiries.

"If we can't check and scrutinise key evidence then the inquiry will be compromised."

Hager said the video recordings which NZDF has claimed would "exonerate" its actions had to be made public and raised questions over how much effort had gone into getting the United States to release it.

In all cases, NZDF said it followed the Rules of Engagement and acted within the Law of Armed Conflict. Photo / Supplied
In all cases, NZDF said it followed the Rules of Engagement and acted within the Law of Armed Conflict. Photo / Supplied

He said the video should be released publicly and be subject to rigorous analysis.

It's a view which contrasts with NZDF's position it wants the information out but is bound by security objections put forward by the United States.

Details about the process of the inquiry also emerged, revealing NZDF continued to sit on the vast bulk of information which would be needed to get to the truth of what happened during the raid.

Deborah Manning, who is representing those who lived in the Afghan valley where the raid took place, said the inquiry needed to ask "searching questions" of the NZDF over the slow progress it was making.

Manning said just 324 documents of a total 17,000 relevant documents had been made available - about 2 per cent.

Of the 17,000 relevant documents, NZDF had only categorised 1600, she said.

She said it was a small amount of documentation to make its way to the inquiry, which had been operating since April.

Former Chief of Defence, Lieutenant General Tim Keating, who rejected Hit & Run's portrayal of the NZSAS raid. Photo / Mark Mitchell
Former Chief of Defence, Lieutenant General Tim Keating, who rejected Hit & Run's portrayal of the NZSAS raid. Photo / Mark Mitchell

The extraordinary and historic nature of the inquiry into a controversial NZSAS raid was laid bare amidst concerns over the release of classified and secret information.

Those secrets meant it was an inquiry like to be "one of the most complex in New Zealand's history", said Kristy McDonald QC, whose role was to help dig out and report the truth behind the raid commonly known as Operation Burnham.

"While other countries have undertaken public inquiries into the activities of their armed forces while in service overseas, this is the first in New Zealand to do so as far as we are aware."

The intent was to get to the truth, said Sir Terence Arnold QC, former Supreme Court judge, introducing himself and former Prime Minister Sir Geoffrey Palmer as the chairmen who would consider and weigh evidence in the inquiry.

Along with the knighted chairmen and McDonald were those with a specific interest in what had happened.

On one side of the equation was Hager, representing himself, and lawyers representing Stephenson. Deborah Manning, who famously represented asylum seeker Ahmed Zaoui, was there for the Afghan villagers.

They have sought greater openness while also seeking protection for the identities of journalistic sources and the villagers.

NZDF troops in Bamiyan. Photo / Supplied
NZDF troops in Bamiyan. Photo / Supplied

On the other, there were lawyers for the Crown - there for diplomatic and intelligence interests - and separate lawyers for the NZ Defence Force.

The intelligence agencies, NZDF and the supporting government establishment have pushed for almost complete secrecy on the basis of protecting classified information associated with the raid.

There were also those whose interest fell neither one way or the other. There was Bruce Gray QC, who was representing former Defence Minister Wayne Mapp - a pivotal player at the time later revealed as a source for the book who held nagging doubts over what had occurred.

And there was Bell Gully partner Alan Ringwood, who was there for the nation's media, with submissions pushing for as much openness as possible.

The opening of the inquiry revealed it was misnamed. Its official title is Inquiry into Operation Burnham, yet submissions revealed there never was an "operation" called "Burnham.

Instead, there was an "Objective Burnham" - one specific individual who was the target of the NZSAS on the night of August 22 in 2010.

There were two other objectives - in total, three men had been identified as the insurgents responsible for attacks on New Zealand and other coalition forces.