Monday, November 30, 2015

The raid

Five police officers arrived at the journalist’s house at 7.45 on a Thursday morning. The journalist was in another city that day but they knocked anyway. His daughter was home, and opened the door in her night-gown, thinking it was probably a courier and she would be able to despatch things quickly. It wasn’t. The officers informed her that they had a warrant to search the house. She told them her father was away. They told her they were going to go ahead anyway. We know from court documents that, had nobody been home, they would have forced their way inside.

Not the actual house

I’m going to ask you to forget that the journalist was Nicky Hager. Well, kind of. You need to bear in mind some facts that are specific to this case: for instance, that the crime the Police was investigating with such an investment of manpower and force was relatively minor, but had great media visibility and political reverberations; or that the search came twelve days after the general election that returned the National Party to power; or that Hager wasn’t a suspect, but merely a witness, and that his daughter wasn’t even a witness and had no role in the investigation whatsoever.

All of these things are worth keeping in mind, for they are what makes this case extraordinary. They are reasons that moved me to argue before that the eventual decision by the High Court concerning the legality of the search will have significant implications for our democracy. But we must remind ourselves of the extent in which this case was also quite ordinary. That is to say, of the fact that the Police acted the way they did because it is natural to them; because this is how executive power works, and because – like at Ruatoki in 2007 – it comes with very little cost or likelihood of checks.

And so on that Thursday morning in early October of last year, five police officers entered the journalist’s house, allowed his daughter to call a lawyer – upon her request – and, when she got no answer, commenced the search anyway. When she asked to get dressed by herself in the bathroom, they told her she had to do it in front of a police officer, as if she could have secreted on her person the information they were after. They then proceeded to search her room, rifling through her drawers and her private photo albums: again, as if there was a likelihood that this person, who wasn’t even a witness, might have hidden the information there. They cloned her phone, on which no journalistic privilege could be claimed, copying all her contacts and taking a year’s worth of personal messages, which they planned to review later. This person whose only crime was to live with her father, in the house of a journalist.

Then they seized her laptop – because of course they did – just two weeks before the final papers for her Honour’s degree in History were due. Only after the intercession of one of her father’s lawyers, who had arrived at the scene in the meantime, was she allowed to copy the six files she needed most urgently; she otherwise managed to complete her degree using a borrowed computer and after being granted extensions on two of her course requirements. Her laptop was finally returned 5 months later. Think how you would do without it, and all of the private information you would have accumulated on such a device.

In an affidavit, she describes the ten-hour search as exhausting and upsetting, and lists having to get dressed in front of an officer and the prospect of her private communications being read by the Police as particular causes of distress. While they were searching her room, she felt she had to leave.

Still not the actual house

Then there was her father, the journalist: that is to say, a witness, according to the documents discovered in court, or more precisely an uncooperative witness – who got this designation in spite of the fact that the Police had never sought to speak to him. He was in Auckland on the day of the search, which matters a great deal seeing as his absence would allow the Police to not just seize but search the contents of his house, without him having a chance to claim journalistic privilege on any of the material. He was in Auckland to give two public lectures, so hardly on a secret assignment. I’ll leave it to you, the reader, to speculate whether it was incompetence or malice that led the Police to his house on a day when he was away. But it’s at this point that his daughter being at home becomes a silver lining: for she managed to get hold of her father, and eventually of his lawyers, which managed to protect some (but by no means all) of his privilege. Yet even in this, not the worst of all possible scenarios, the Police seized every document they could find, including materials related to all of the journalist’s current and past investigations, imperilling the confidentiality of countless sources – including sources for investigations on the Police’s own conduct – and effectively destroying his ability to work. To all this we need to add the searches conducted outside of Hager’s home, which involved among other things informing all New Zealand banks that he was being investigated for fraud (he wasn’t), or asking airplane carriers information on all the domestic travel he undertook, as well as the names of the people sitting next to him on those flights.

The combined effect of the two searches – of the journalist and of his daughter – suggests a comparison with the Police raiding the offices of The New Zealand Herald and seizing everyone’s computers and the entirety of the newspaper’s archives. As David Fisher wryly remarks in an affidavit for the Court case, one doubts that the Police would have raided a media organisation had the story originated there, ‘not least because of the resources it could bring to bear to oppose such treatment’. The comparison reminds us that the fourth estate is just that: an estate, that is to say a power which the executive has to reckon with. The independent journalist, while granted the same protections in law, is much more vulnerable, as well as a prime target for political intimidation if need be. Which goes to the heart of this case.

However, if we examine the raid as a discrete series of events, what we are faced with is not an abuse of power, but its ordinary exercise.

The Police planned the raid the way they did because nobody was there to tell them to stop. They found an accommodating judge to sign their warrant because you can always find one of those. They raided the house when the journalist wasn’t there because they could either pretend not to know he was away, or not bother to find out. In any case, they were prepared to break in. Had they broken in, his privilege would have been destroyed, but power needn’t care about that. Power found a way, and it barely needed a motive, to get what it wanted. It knew it could raid first, answer questions later, because the cost of those decisions would be borne by the rest of society.

So when you think of the intrusion and the disruption and the violation that two particular citizens – Nicky Hager and his daughter – have described, think of other investigative journalists, or targeted communities, or political dissenters. Think of the chilling effects not just on confidential sources, but on our collective ability to sustain critical institutions. Think of the cost of going against that power which still so many, too many, view as a benign force.

It is commendable that Hager decided to challenge the raid in Court, and characteristic of his outlook that in doing so he considered those broader issues of justice, beyond the narrow confines of the legal argument. It seems appropriate to give him the last word, from his second affidavit for the case:
The legal issues this presents are for the Court to determine. But from my position, as the person raided, this seems an inherently unjust process. The Police seized my business machines and papers, caused me thousands of dollars of cost, hundreds of hours of work, and months of disruption to my work, threatened the viability of my future work and livelihood, and caused upset to my family, all without considering whether any of this was lawful or justified. I have not committed a crime. I was told by the Police that I am not a suspect. And yet, the Police have turned my life upside down and have delayed any issues about whether the raid should have taken place to be sorted out in Court later. By this point, much damage has already been done.

The Court documents that have been released so far, in redacted form, are available at Scoop here and here. A reminder that Nicky Hager's daughter's name is suppressed so please keep it that way.

Justice Clifford has yet to publish his decision.