Jon Stephenson’s Eyes Wide Shut probe needs official investigative scrutiny

Evening Report's editor Selwyn Manning and Dr Paul Buchanan of 36th Parallel Assessments analyse the successful lawsuit by independent journalist Jon Stephenson against the New Zealand Defence Force and the reporting around his Afghanistan investigations that now need follow-up.

EVENING REPORT EDITORIAL: Earlier this month news broke about a defamation settlement in the case of journalist Jon Stephenson v New Zealand Defence Force.

But after a week had passed with statements issued by both Jon Stephenson and NZDF we are none the wiser why the government reacted so aggressively to shut down the claims in Stephenson’s Metro investigation Eyes Wide Shut back in 2011.

On October 8, 2015, I spoke about this issue on Radio New Zealand’s The Panel with Jim Mora and Lisa Scott.

When Jon Stephenson’s "Eyes Wide Shut" investigation was published by Metro editor Simon Wilson, the Defence Force and the Prime Minister attacked the journalist’s credibility. They challenged several aspects of the article, including direct quotations and references citing an Afghan commander in Kabul.

The Defence Force and the Prime Minister caused doubt over whether Jon Stephenson had indeed interviewed this person for the investigative article.

Now, after a costly court battle, the Defence Force has accepted that Stephenson did in fact gain entry to the base and had interviewed the CRU commander. It has settled with Jon Stephenson after spending more than $600,000 on court and legal costs.

The Prime Minister however will not be drawn on this issue. Back in 2011, he said: “I’ve got no reason for the NZDF to be lying, and I’ve found [Mr Stephenson] myself personally not to be credible.”

Now that Jon Stephenson’s credibility has been restored, we are left with a long list of unanswered questions – questions that relate to whether New Zealand’s SAS soldiers were in fact ordered to hand over Afghan citizens to US personnel knowing that they would likely be tortured.

At this juncture, we do not know what became of these people. Are they still alive? Have they been repatriated to their homeland? What were their ages and gender? Were they innocent? Were they tortured?

Does the New Zealand government accept that New Zealand’s SAS soldiers did in fact hand over people to those known to use torture?

If so, who issued that order?

Why did the government initiate a shoot-the-messenger stance?

The allegations within "Eyes Wide Shut" and other investigative articles by Jon Stephenson remain hanging in time. If they are true they suggest New Zealand was party to a war crime, party to a breach of the Geneva Convention.

New Zealanders deserve an official investigation, without political interference, into this disturbing issue. Both Labour and National ought to do the right thing and agree to initiate an independent inquiry.

Unanswered questions about the Jon Stephenson v NZ Defence Force Case

ANALYSIS: Although it has been shamefully underreported by major media outlets in NZ, war correspondent Jon Stephenson has won his defamation case against the New Zealand Defence Force by forcing a settlement that involves significant compensation and an admission by the military that its defamatory statements about Stephenson were indeed untrue.

It remains to be seen if the Prime Minister John Key will do the same, since he opined at the time the controversy erupted over Stephenson’s internationally recognised article “Eyes Wide Shut” in Metro Magazine (May 2011) that Stephenson was, to paraphrase closely, “unstable” as well as “unreliable".

That has been proven to be false. Let us be clear: Jon Stephenson may be driven, but unlike his main accusers when it comes to reporting on the NZDF he is by no means unreliable or a liar.

I wrote the following as a comment over at The Standard but feel that it is worth sharing here:

“I suspect that we have only seen the tip of the iceberg when it comes to the unethical behaviour of the NZDF and political leadership in this affair. Remember that there is a MoD involved and the respective ministers then and now (Coleman and Brownlee). There are more officers involved than retired generals Rhys Jones and Jerry Mateparae, some who currently hold senior positions within the NZDF. There is the behaviour of Crown Law to consider. There is the slander on Jon’s character uttered by the PM.

I can only hope that the terms of the settlement do not prevent Jon from publishing more details of his case, including the way in which the legal process unfolded, the obstacles to discovery encountered, and the extra-curriculars surrounding them.

Whatever happens, for once in a long time one of the genuine good guys won. Were it that other members of the press corps (Nicky Hager excepted) had the integrity and courage exhibited by Jon both in the field as well as on the home front.

Kia kaha Jon!”

Beyond what I have written above, there are some other questions that arise from this saga.

For example, in 2013 Nicky Hager revealed that the NZDF electronically spied on Stephenson in 2012 using NSA, GCSB and SIS assets while he was in Afghanistan.

At the same time an internal Defence manual was leaked to the media that identified “certain investigative journalists” as hostile subversion threats requiring counteraction because they might obtain politically sensitive information (one does not have to have much imagination in order to figure out who they are referring to). In parallel, reports emerged that NZDF officials were sharing their views of Mr. Stephenson with Afghan counterparts, referring to him in the same derogatory terms and implying that his work was traitorous or treasonous.

Taken together, both the spying on Stephenson and the characterisation of him passed on to NZDF Afghan allies can be seen as a means of counteracting his reporting.

But if so, what national security threat did he really pose?

Is politically sensitive information necessarily a threat to national security or is merely a threat to the political actors being reported on?

Is intimidation part of what the NZDF considers to be proper counteraction when it comes to journalists plying their trade in a war zone?

And since any counteraction or counter-intelligence operations had to be cleared and authorised by the NZDF and political leadership, were both of the types used against Mr. Stephenson authorised by then NZDF chief Lieutenant-General Richard Rhys Jones and/or John Key?

They deny doing so but if that is true, who did and how was it passed down the chain of command to the field commanders in Afghanistan (because, at a minimum, the order to “counter” Stephenson could be construed as illegal and therefore challengeable–but it never was)?

Leaving aside the legitimate role of independent journalism in a democracy in holding policy makers–including military leaders–to account, what does it say about the NZDF that it sees such work as subversive?

More alarmingly, if the reports are true, what exactly did the NZDF leadership hope to accomplish by telling Afghans, while Mr. Stephenson was in Afghanistan, that he was a threat to them?

Then there is the issue of the lie. General Rhys Jones claimed that, contrary to what was written in his story, Stephenson never visited the base in which the Crisis Response Unit (to which NZ SAS were attached) was located and did not talk to its commander. That was a direct challenge to Stephenson’s journalistic integrity. Stephenson sued for defamation and during the first trial (which bizarrely ended in a hung jury) the NZDF and Rhys Jones himself admitted that Stephenson’s version was true.

So why didn’t the trial stop right there?

The moment the truth of Stephenson’s story was admitted by Rhys Jones, it was supposed to be game, set and match to the journalist.

But instead the Crown spent hundreds of thousands of taxpayer dollars continuing to litigate in that trial and then the follow-up court process that was ended by the recently announced settlement. Why so?

The answer to the last questions seems to be that, like in the Zaoui and Urewera 18 case, the Crown prefers to bleed its adversaries emotionally and financially even when it knows that it cannot win. This death by a thousand cuts approach, courtesy of the taxpayers largesse, is as unethical as it is cynical and undermines the belief that justice in New Zealand is blind and universal.

There are many other questions that need to be answered about the treatment of Stephenson:

- Is it true that media outlets were pressured to not accept his work on penalty of getting the cold shoulder from the government?

- Did NZDF officials physically threaten Stephenson in New Zealand?

- Did the intelligence services spy on Stephenson above and beyond what was reported by Hager, both at home and abroad, and are they doing so now, and on what grounds if so?

- Did NZDF and/or MoD and/or PMDC and/or Crown Law officials conspire, either solely or together,  to cover up, obstruct, alter, destroy or otherwise impede the release of evidence to Stephenson’s lawyers at any point in the legal proceedings?

My sincere hope is that the settlement agreed to by Stephenson and NZDF does not preclude the former from writing about his experiences with the NZDF, both in Afghanistan and during the trials.

Hopefully he will be able to answer some of the questions I have posed above. I say this because something stinks about the way this affair has been handled at the highest levels of government, which is not only a stain on the individuals involved but a direct affront to basic tenets of liberal democracy.