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Waihopi Plowshares verdict and GCSB – 2010

Blog comment to Indymedia press release.     March 2010

Submitted by Richard Keller.

The Government Communications Security Bureau(GCSB) will have become nervous after the action of the Waihopai Plowshares in deflating one of the concealing domes of the communications satellite dishes in the Waihopai valley near Blenheim in April of 2008.   This brought the case into the public eye in the court case in Wellington just concluded yesterday (Wednesday 17th), while the GCSB is always desirous (indeed desperate) to keep out of the public eye. 

The acquittal verdict also has put pressure on the GCSB to respond, though as of Thursday they have said they will not be commenting “today”.  But I think the GCSB and the security state in general will see opportunities come out of this case as well as difficulties.

As I saw the arguments unfold the last few days of the trial, the case was actually decided on a narrow legal point which only barely allowed the larger issues to penetrate.   The defendants legal position was a “claim of right” under New Zealand law that what they did was lawful because they were helping prevent a larger crime, namely the killing, maiming, torturing, etc of innocent civilians in Iraq and other places.

However, the judge specifically and simply ruled that this was incorrect, that they did not, have recourse to this defense under New Zealand law.  He gave no explanation  in the court when I was present as to why he ruled that way, and I doubt that the jury heard any such explanation, as it seemed the judge simply wanted to say that that was irrelevant to the guilt or innocence of the defendants.

What the judge ruled, and did explain at some length and repeat, was that the primary legal issue in the case was what was the defendants belief, at the time of the actions they were accused of, about the lawfulness of those actions under New Zealand law.  New Zealand law does allow that a defendant’s belief in the lawfulness of their actions is enough to prove innocence.

It was here that the defendants testimony of their knowledge of the operations of the spy base and the horrendous uses of communications information taken at Waihopai by the National Security Agency (NSA) in Washington DC, USA, their long history of involvement in social justice issues, and the strength of the character witnesses presented in their behalf, came into play.   The prosecution made a lame case in trying to say the defendants did not believe they were acting lawfully.  It was convincing to the jury that because of all this, that the defendants did in fact believe, though erroneously, that what they did to the dome would be considered lawful under New Zealand law today.

To me this seems a very narrow point of law.  The more important issue is the higher law of protecting humanity over protecting “plastic” as defendant  Adrian Leeson put it in his post trial interview on TV3.   New Zealand law ought to allow “claim of right” defense in these circumstances I think.   New Zealand organizations and individuals interested in social justice issues, issues of war and peace, should, and are now, making strong statements in favour of that.

But the GCSB and the security state will take some comfort from the fact that the judge ruled in this case that the “claim of right” defense does not apply in cases such as this.  They will be able to say that now that the case has come to court those considering similar actions of non-violent civil disobedience will know that their actions would not be legal under New Zealand law and that conviction would be assured.

Furthermore they may consult with their lackies in this ACT (supposedly National) government to try to change the law so that a sincere belief in one’s innocence under the law, at least in instances such as this involving “national security”, is no protection against guilt in a court of law.

What would be their chances?  Given there is no strong prospect of an alternative government returning in the foreseeable future, they will have time to work it through.  How would the public of New Zealand respond to such an attempt?  I don’t know, but just to note the Stuff poll today asked the question, “Should the ‘greater good defence’ used by the Waihopai 3 be acceptable in NZ courts?”    The response a bit ago when I looked was a ratio of 3-1 ‘No’.  The GCSB and the security state may be encouraged by this.

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