New Zealand's national security could be on the line if too much top secret information is laid bare, the Hit & Run inquiry heard today.
The second day of a hearing - to set the rules on how highly-classified information and confidential sources can be used in the inquiry - has seen the Crown and the New Zealand Defence Force make submissions on how they want sensitive information handled.
It's yielded a high-stakes warning that if too much classified information is made public - in order to get the truth over allegations six innocent civilians were killed as part of a 2010 NZSAS raid in Afghanistan - it could damage New Zealand's international relations, ability to share intelligence and jeopardise national security.
Specifically, the lawyer representing the Crown, Aaron Martin, suggested too much transparency in uncovering the facts could undermine the work and relationships of the New Zealand Security Intelligence Service (NZSIS) and our spy agency, the Government Communications Security Bureau (GCSB).
"New Zealand's foreign partnerships are a central part of the ability of agencies to perform in their functions effectively, including in the interests of New Zealand's national security," Martin said.
"For every intelligence report the NZSIS provides to a foreign partner it receives 170 international reports. Similarly, for every report the GCSB makes available to its partners it receives access to 99 in return.
"I think the key point being we gain significant value from these co-operation arrangements."
The submission of the New Zealand Defence Force, represented by Paul Radich QC, alluded to how the NZDF believes it has been characterised as trying to contain details about what happened in the SAS raid.
Radich insisted the NZDF is committed to being as transparent as possible over the Afghan mission dubbed Operation Burnham and open justice is fundamental.
"The NZDF does not for a moment say... that the NZDF is looking for some sort of closed process. That is not the case at all. It has never been and it certainly won't be," Radich said.
But, he added, NZDF also has a responsibility to protect a range of interests on behalf of the nation and vulnerable individuals.
"You must equally take into account the risk of prejudice, need to ascertain the facts properly, to not prejudice security and economic interests, privacy interests are paramount, they're also equally applicable," he said.
As context, Radich's submission detailed how Willie Apiata's usefulness to the SAS was compromised after he was awarded the Victoria Cross, because of the public profile it attracted.
Radich also expanded on a development which emerged yesterday. In the submission of prominent Human Rights barrister Deborah Manning, who is representing former residents of the villages of Naik and Khak Khuday Dad in Afghanistan, it was declared that the NZDF has now identified 17,400 documents relevant to the inquiry, after originally only identifying 2000.
Manning said that the NZDF had examined and catalogued 1600 of those and only 324 of those have been provided to the inquiry.
Today, Radich said the most important documents are the ones already provided and that the others are being worked through and will be supplied by early next year.
"NZDF does give the inquiry an assurance that everything will be finished from its point of view, document-wise, by the end of February," he said.
The inquiry has been triggered by the book Hit & Run, co-authored by investigative journalists Nicky Hager and Jon Stephenson.
Released last year, the book made a number of allegations about what happened during the SAS raid. Primarily, it alleges war crimes, claiming Kiwi forces were involved with the death of six civilians and the injury of 15 others.
NZDF denies the allegations, saying the operation resulted in the death of nine insurgents.
The hearing began yesterday with the lawyer helping with the inquiry, Kristy McDonald QC, making reference to the huge amount of detail involved.
"This inquiry is likely to be the most complex ever held in New Zealand," McDonald said.
Yesterday's submissions included Manning and Hager calling for all evidence to be made available to key claimants, such as them.
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