Gordon Campbell on the same-sex marriage vote, and the current Dotcom law case

Since politics is so often about the perpetuation of privilege, we should all celebrate the times when Parliament gets something right. The passage of Louisa Wall’s same sex marriage Bill last night was one such occasion. It is a victory in practical terms for those now able to marry, and is also important symbolically, in ending a form of discrimination based on sexual orientation. The fact that the overwhelming numbers in support of the Bill were partly the product of cross-party teamwork (by the Greens’ Kevin Hague and National’s Tau Henare) was also worth applauding. It would be nice to think that MPs will now collaborate in the same way to combat other personal and social evils, such as child poverty. Don’t hold your breath.

There will be some – even among those who support Wall’s legislation – who will question how significant a victory this has been. Marriage is a conservative institution that carries a lot of unwelcome historical baggage, primarily to do with ownership and male privilege. On the other hand, that conservatism is what makes this advance seem significant. By opening up such an institution to gay couples, this can only help to erode marriage’s negative aspects of entitlement. (Presumably, gay couples in the 21st century will not be interested in merely mimicking the ceremonial trappings of marriage, and its less desirable features.) And the simple fact that marriage is such a foundation stone of society is a big part of what gives the concept of gay marriage its symbolic power.

Of course it is this leveling, normalizing aspect of the gay marriage law that most concerns the likes of the Catholic Church. Yet the negative comments on RNZ this morning by Patrick Dunn, the Catholic bishop of Auckland mainly served to underline just how impossible it is for the Catholic Church nowadays to engage credibly on any issue of public morality, in the wake of the child abuse scandals. Dunn’s argument – such as it was – appeared to rest on the premise that marriage had for centuries been seen as only between a man and a woman, in cultures the world around.

That sounds depressingly familiar, doesn’t it? An injustice, unchallenged for centuries and occurring across cultural boundaries gets treated by the Catholic Church hierarchy as thereby normal, and somehow justified. Well, just because it has always been that way doesn’t make it right – whether it be child abuse, slavery, or social discrimination based on sexual orientation and identity.

Dotcom’s Property, Done Properly
This morning in the High Court in Auckland, the Dotcom defence team will begin replying to the arguments put forward by the Crown earlier this week. At issue is Dotcom’s access to property seized during the joint Police/FBI raid on his mansion, a raid carried out via what the High Court ruled last year to have been an invalid search warrant. Furthermore, some of this illegally seized material was then copied and sent off to the US prosecution team.

This week’s legal clash is largely one for Dotcom trainspotters, but it touches on important underlying issues. The “remedy” being sought by the Dotcom team in this legal action is not financial damages, but the return of their property, or cloned copies of it. The Crown response this week was to freely admit the flaws in the search warrant – they could hardly do otherwise – but to split the seized evidence into three groupings (a) the stuff scooped up during the raid that has no bearing at all on the criminal conspiracy/copyright case against Dotcom. Presumably, the return of this material is not a problem (b) the stuff in a grey area that may or may not be relevant and (c) the stuff central to the case.

Essentially, what the Crown tried to do this week was to beat a dignified retreat, while conceding as little as possible. Chief High Court Judge Helen Winkelmann was urged by the Crown to restrict any remedy that she might have in mind to merely the (b) materials in the grey area, and to continue to deny Dotcom access to the crucial (c) case elements. Moreover, in the Crown’s view, almost everything can still potentially fall into the “crucial” category. Dotcom’s own home entertainment system for instance, the Crown argued, might conceivably contain evidence that he had improperly accessed the contentious material on Megaupload.

Anyone concerned about the recent Search and Surveillance legislation would have found the Crown’s line of argument to be hair-raising. It went like this: yes, the search warrant was flawed, but the arrest warrant kind of, sort of, indicated what the search was about so no real harm done. What harm was done really, the Crown argued, by the gap between what was done and what should have been done? Judge Winkelmann was advised by the Crown to restrict her “remedies” to the gap between perfect Police practice and the actual Police practice on the day– and furthermore, she was invited to assess that gap in the light of the subsequent Search and Surveillance legislation, in whose terms any transgressions by the Police on January 20, 2012 might not seem unduly excessive.

To her credit, Winklemann didn’t seem to be buying this attempt to drive a bulldozer through the authority of the courts on such matters, and the powers that are meant to be circumscribed by court-issued search warrants. (She also seemed unimpressed by the weight the Court was putting on the Royal Timber case as precedent.) We will see this morning how Paul Davison QC makes his attack on the Crown’s “near enough = good enough = no real harm done = so, no major remedy needed” line of argument.

In a wider context, everyone should be concerned at this demonstration of the links between Police/security service screw-ups and subsequent legislation. In the Zaoui case, the systemic flaws that created the mistakes made by the SIS were not addressed in the subsequent Immigration Act rewrite – most of the effort went into making such mistakes harder to detect and expose in future. Similarly, in this Dotcom action, the Police made significant mistakes in terms of the rules of the day – but the Crown is citing the subsequent Search and Surveillance legislation with its expansion of Police search powers in order to retroactively minimize the extent of the wrong done to Dotcom, and to limit the remedies available to him. It is a really outrageous way of pulling yourself up by your own legislative bootstraps – and as Stephen Colbert once said, pulling yourself up by your own bootstraps is a really painful thing to watch.

In sum, the outcome to watch out for is not whether Dotcom gets some stuff returned, but whether he gets it all – or clones of it all – back. If he is to mount a defence in a timely fashion, he needs it all back, and right now. Especially given that in the extradition context, the Court of Appeal decided on March 1st 2013 to effectively allow the US to get away with presenting merely a summary of allegations, and not much at all in the way of actual evidence or any details of the interpretive leaps of logic in the circumstantial case they are mounting. (BTW, leave has been sought by Team Dotcom to contest that Court of Appeal ruling, in the Supreme Court.)

Mindful of the timetable – an extradition hearing in August which the Dotcom process is supposed to meet, Judge Winkelmann could well give a speedy response on this particular issue. For the Crown, this one is a damage limitation exercise. For them, a remedy restricted to just the “grey area” items would count as a victory.

Footnote: The US is asking us to extradite Dotcom. For a taste of how the US behaves when other countries try to extradite someone from their soil – in this case someone apparently responsible for the killings of at least 67 people – this example is instructive. For the best part of a decade, the US has repeatedly refused to return the fugitive former President of Bolivia to face justice. Here are the details:

During his second term, Sánchez de Lozada sought to export Bolivian natural gas to the United States and Mexico through a pipeline to Chilean ports before violent political protests forced him to resign and flee the country in October 2003. His address in court documents is in Chevy Chase, Md., a D.C. suburb. As many as 67 people died after protesters — mostly poor, indigenous Bolivians — clashed with security forces. Hundreds more were injured, according to press accounts and a lawsuit filed in U.S. District Court on behalf of 10 Bolivian families.

In 2011, a handful of former military officials and ministers who had not left Bolivia were tried and sent to prison for charges related to the bloodshed. Bolivia sought to try Sánchez de Lozada during that trial as well, but could not do so while he remained abroad. Sánchez de Lozada was sued in U.S. federal court in 2007 and accused of committing “crimes against humanity,” including employing “violence to quell widespread popular criticism of his policies.” The case has been dismissed by the U.S. Court of Appeals for the 11th Circuit…

Ah, but Dotcom has to be extradited by New Zealand to face US justice. The same US justice system that ensures Sanchez de Lozada can remain free. Too bad for the Bolivians. And too bad Dotcom has no friends in the natural gas industry.