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Balancing Civil Liberties, National Security and International Responsibilities

Prepared by John Smith | December 2003

with funding from the sponsors of the Ian Axford New Zealand Fellowship in Public Policy

Before joining the Al-Qaida/Taliban Monitoring Team at the UN, John Smith was a Trial Attorney with the Federal Programs Branch of the Civil Division in the U.S. Department of Justice. His work involves defending the U.S. Government in lawsuits filed in federal courts across the country involving challenges to Government programs, statutes, and/or regulations. He also has been assigned to conduct legal reviews of terrorist designations proposed by the U.S. Departments of State or Treasury.

During his fellowship, John was based at the Ministry of Justice in Wellington. His project was entitled The balancing act of governmental efforts against terrorism financing: curtailing the funding for terrorists while protecting civil liberties.He explored the effects and effectiveness of New Zealand's recent anti-terrorism measures, particularly the Terrorism Suppression Act enacted in October 2002 and predecessor regulations adopted after the September 11, 2001, terrorist attacks in the U.S. His focus was on assessing the impact of these measures on the ability of terrorists to use New Zealand to transfer money for terrorist acts. He also explored the ramifications of such laws on the personal freedoms of New Zealand citizens and non-citizens alike.

Executive Summary

Like many other nations, New Zealand has an extensive history of law-making designed to protect and defend the country, but which may have been abused in prior decades to permit government encroachment upon the rights of the individual. The 1951 Waterfront strikes, the 1981 Springbok Tour, the 1985 bombing of the Rainbow Warrior, and other formative events in this nation's history have taught today's generations a variety of valuable lessons. Depending on one's perspective, the lessons of the past may demonstrate the need to ensure that the government has the requisite authority to deal with emergencies, but others may be more concerned with ensuring that such national power is sufficiently limited in scope to prevent authorities from intruding into the freedom of the individual to protest, strike, and support humanitarian causes worldwide.

The tragedy of September 11, 2001, prompted New Zealand and the community of nations to respond in more significant ways to terrorism and threats of terrorism. Like their counterparts across the globe, New Zealand authorities reacted immediately on the home front - with law enforcement deployment and legislative solutions - to ensure the nation's security against the modern and innovative mechanisms that terrorists can use to wreak havoc on an unsuspecting country and its citizenry. The legislative response initially came in the form of a Terrorism Suppression Act, which evolved over the course of a year from a bill regarded as "draconian" and "horrifying" by some to a statute that juggles the complexities of defining terrorism, designating terrorists, and using classified evidence, on the one hand, with upholding civil liberties, on the other.

Since approval of the Terrorism Suppression Act over a year ago, the Government has been forced to confront an even more difficult and challenging matter: Now that it has the authority to designate terrorists, how does it utilise wisely the power given, to target the Usama bin Ladens and terrorists of today, but not the Nelson Mandelas and freedom-fighters of yesteryear? New Zealand recently finalised development of a thorough and thoughtful internal process for designating terrorists, but - unlike Australia, Canada, the European Union, the UK, and the US, among others - it has yet to implement it to designate any notorious terrorist groups not already mandated by the UN.

September 11 sparked a worldwide governmental grab for new powers to combat the evils of terrorism, which some regard as a laudable and necessary reaction to an extraordinary threat to global peace and security. Others - civil libertarians, academicians, and religious and human rights organisations - characterise the new measures enacted by New Zealand and other nations as violative of the fundamental freedoms of the individual. The pending case of Ahmed Zaoui - refugee, terrorist, or both? - demonstrates that New Zealand's geographic isolation does not render it immune to the complexities wrought by modern terrorism, national security, and personal liberties.

Comparing New Zealand to similar systems around the world, this country has adopted an anti-terrorism regime that effectively balances international demands, national needs, and individual rights. The New Zealand definition of terrorism is narrower than other jurisdictions', thereby all but eliminating the possibility that protesters, strikers, and others could be unnecessarily brought within its laws. Parliament also made difficult, but correct, judgments in permitting the judiciary to deal with classified evidence in assessing terrorist designations and in forbidding mere membership within a terrorist organisation, without more, to constitute a crime.

On the other hand, this nation has yet to utilise its authority to designate non-UN-listed terrorists, as I believe it should, to add its considerable moral and symbolic voice to the international chorus against terrorist violence, wherever it occurs. New Zealand also has implemented a potential loophole within its anti-terrorism laws that could permit individual citizens to challenge the binding judgments of the UN Security Council. Other laws - including outdated censorship provisions antithetical to modern democratic notions - remain on the books and either should be repealed immediately or considered as part of a comprehensive review of anti-terrorism provisions that Parliament is expected to undertake within the next two years.

Overall, New Zealand has done an admirable job in complying with its duties arising from abroad, while listening to the concerns of those here at home. The world is a different place than it was prior to September 11, but New Zealand has ensured, to a large extent, that the fundamental freedoms of its citizens remain intact as this nation and others seek to end the devastating and deadly consequences of terrorist violence.