Yesterday, this column compared events in Egypt to the Tiananmen Square massacre in 1989 and – spookily – there is now an image to drive that comparison home. This picture of an Egyptian woman facing up to an armoured bulldozer is very much in the spirit of the famous encounter between a lone Chinese demonstrator and a column of tanks in Beijing, one of history’s most astonishing examples of human defiance of tyranny.
Washington has denounced the killings of civilians, but has not suspended the military aid that bankrolls the murderous Egyptian Army and the security forces and related private militia thugs. Typical. Two and a half years ago, the US supported the demonstrators trying to topple Hosni Mubarak, but then supported the Mubarak clone put up to replace him. When that failed, the US supported free elections, but opposed the Muslim Brotherhood’s role in them. Then when Mohammed Morsi won, it called on all to support democracy, but then tried to get behind the demonstrations aimed at toppling Egypt’s first freely elected President; and when the brief experiment in democracy ended in an Army takeover, the US denounced that too, but carefully stopped short of calling it a coup because that status would require it to cut off military aid to the people who had just overthrown democracy. Now we have the US hand-wringing over the slaughter – but no verdict of “massacre” so that military aid can continue, shorn of a couple of token cancellations of joint military exercises.
The end result? Washington is now hated and reviled by all sides in this conflict. The Muslim Brotherhood see it as colluding in its downfall and arming the soldiers who are killing its followers and jailing its leaders ; the secularists blame the US for its alleged leveraging of the Brotherhood into power in the first place ; and the Egyptian Army blame the US for meddling with their God-given right to dictate the country’s affairs by any means it chooses. Great job, Obama!
On a different tack altogether, this month’s Werewolf carries a story about the SR-71 Blackbird, arguably the best designed aircraft the world has ever seen. Well, here’s what is arguably the worst: the new and very expensive F-35 which ironically is made by the same company – Lockheed. And if aeroplanes seem to you like Boys Own stuff…that’s a good call. But this brilliant story that traces just how the F-35 project went so disastrously wrong is a fascinating example of a design process compromised from the outset by the baggage of history (in this case, by Marine combat experiences in WWII) to a point where the Marines felt compelled to inject a set of contradictory performance requirements that, as the article says, have left the F-35 as the jack of all trades and the master of none. A flying brick, some say. Right now, and one trillion dollars later, the US has placed all of its future air superiority eggs in this one basket case of a plane, one that is already demonstrably inferior to its existing Russian and Chinese counterparts, much less the ones coming down the pike. (Hilariously, the Chinese plane seems to be a F-35 clone, the plans for which were stolen during a cyber-attack, and shorn by the Chinese of its worst design features. The copy is superior.)
Yet classically, too much money and status has now been invested in the F-35 for anyone involved to back up, and back out. Which is a pretty interesting example of bureaucratic inertia in the face of impending disaster. When a design project goes wrong at a trillion dollar level, the F-35 is the kind of outcome you get.
Over on Werewolf, the cover story Nanny National has drawn criticisms that need to be addressed. Nice to receive feedback from Graeme Edgeler in particular, who is always worth reading. It would be even nicer if he had given his criticisms a little bit more context. Meaning: I still can’t tell whether, despite his criticisms of the piece (more about them below) he agrees with the article’s thesis and conclusion, or not. That thesis (and conclusion) was that over the course of the past five years, the Key government has supported/enacted many more morally judgmental Big Government intrusions on civil liberties (via measures that have lacked public assent) than the widely reviled ‘Helengrad’ administration did over its entire nine years in office. As things currently stand, while Graeme says that my article is “important” and raises issues of “concern” he then focuses exclusively on what he claims to be its failings and gives me a right old rap over the knuckles in the final sentence. But hang on. Does he think the alleged failings invalidate the overall thesis – or not? I’m genuinely curious. I hope his reticence on that point was not due to his realization that the points he has tried to make are virtually irrelevant to the main business at hand.
One reason I say so is that in order to get to the criticisms he raises, Graeme has had to drive steadily past the examples I gave of the GCSB Bill that proposes a system of mass surveillance, the TICS Bill that violates Internet privacy and installs the GCSB as the overseer of Net security and telecommunications, the State Surveillance Act (enough said) and the Social Security Act that imposes an intrusive discriminatory system on beneficiaries. Not to mention the limits placed on dissent and freedom of expression when it comes to protest at sea, the proposed narrowing of the grounds for resource consent challenges under the RMA, the enforced reductions in workplace rights and bargaining ability, the increased ousting of judicial review, the increased resort to parliamentary urgency, the increased resort to Henry VIII powers to amend legislation, the ramming through of the asset sales programme, the extensive violations of BORA and UN human rights conventions noted with alarm by the Law Society in its submission to the UN.
Personally, I feel that by the time Graeme parks his analysis at the points he chooses to contest, the “Nanny National” thesis is such a proven case that even if ALL the subsequent criticisms he made were valid (which I strongly dispute) it would not make the slightest bit of difference to the validity of the article – the vast bulk of which seems to be beyond dispute, and is certainly not disputed by him. (Nice though, to have the Law Society in agreement on so many points.) I’d love Graeme to put down his red pencil and tell us more about that “concern” he says he shares. Do we have any grounds in common? We may never know, though.
OK, now for the claimed errors – and I’ll start where he does, with his challenge to my use of the “legal puppet” term. This was not personal abuse of Chris Finlayson. To me, the term “legal puppet” refers to a systemic fault whereby an Attorney – General delivers a string of reports that find proposed legislation inconsistent with BORA and with UN conventions that we have signed, but then (a) the government to which he belongs regularly ignores this stuff and (b) the A-G, in his role as a dutiful caucus member, votes for the legislation anyway. I do have a problem with the shabby treatment afforded to human rights within the A-G’s BORA reporting process and so does the Law Society (and they propose some interesting ways of beefing up the process) but Graeme ? Not so much, it would seem.
Instead, Graeme says: “No reason is given as to why the Attorney-General is the Government’s “legal puppet”, and I would have thought that the fact Chris Finlayson is making so many reports suggests he probably isn’t a puppet. “That, to say the least, is very odd reasoning. Because so many reports are given – and so many are demonstrably ignored – this somehow proves the A-G’s role isn’t that of a legal puppet? Oh my.
Sorry, but that is laughable. Graeme wants examples? They’re legion, starting with examples given in my article – the negative BORA reports on the prisoner’s right to vote Bill, and on the ousting of judicial review with respect to the remuneration of family carers. Graeme appears to be unaware of the section in the Law Society submission to the UN that (a) treats this as a chronic systemic problem with respect to New Zealand’s approach to human rights and (b) suggests ways in which the A-G’s reporting system can be given some teeth.
What else? Allegedly, on occasions I supposedly treat a Bill as an Act, or an Act as a Bill – and in one or two instances, do not distinguish what began life as a private members Bill from a government initiative. Sheesh. Remember when (and why) Sue Bradford’s initial S59 private members Bill would routinely be called a Greens Bill? Yes, in some contexts, the distinction matters; in other contexts (like this one) not so much. As a general rule, I take the Catholic Church approach to sins of intention. (If you signal an intent, that’s a sin.) That’s why the song and dance he makes about my citing of the Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill as being indicative of the Key government’s mindset strikes me as peculiar. In his opinion, listing this Bill as a concern is “laughable” because…oh, it’s only a Bill at this point. (True, he concedes, it’s a National MP’s Bill but still…) And “it also hasn’t been passed.” Then follows some sarcasm about how there should have been a clue to that effect in the use of the word “Bill.”
Frankly, I struggle to see that this is an argument being made in good faith. Is he suggesting we need to wait until a law is passed before we express a concern about its implications? I disagree. Especially when engaged in an assessment of its relevance to an article about authoritarian attitudes and tendencies. If he wants to maintain this line of reasoning, Graeme should have a bone to pick with the Law Society as well, since it cited this Bill – in terms similar to mine – in its submission to the UN. Who’s the outlier here?
Moving right along, he takes issue with my citing the Parole (Extended Supervision Orders) Amendment Act 2009. Yet hold on: he concedes that this does extend the Parole Board powers (presumably in the way I depicted) but says it’s really only an amendment to legislation passed by Labour in 2003. Yes, but it is the extensions Graeme, that are problematic, despite your re-assurance that these extensions were “not in a way beyond that which was originally intended.” Oh, so that’s alright then? Even if it was correct to say that Labour was the genesis of the measures in question, isn’t it significant – and isn’t National culpable – for the fact that it chose to pick these particular measures up and adopt them as its own? Ultimately, we may have to agree to disagree on this one. I take comfort from the fact that again the Law Society saw fit to cite this legislation as a matter of concern in its UN Report. Again, it is Graeme who is the outlier here.
Nice that he agrees with me that the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 deserves to be ranked on my list but – allegedly – I am “seriously wrong” in my comments on this Act. Let me just, as an aside, add a word on process. On these minor examples in my article, I devoted one sentence – two sentences at most – to summarising the problematic aspects of complex statutes. Even so, I still had a 10,000 word initial draft. Readability became an issue. Mindful of the risks of compression, I crosschecked my statutes lists and my summaries, with those of the Law Society. I regret that I said “every prisoner” being denied the vote, and welcome his listing of the exceptions. That said, I question whether these exceptions – much less his related quibble about how this Bill had its origins as a private member’s Bill “ seriously” affect any of the conclusions I drew. Ultimately, this law was voted for along strict party lines. And what is still “seriously” the problem is that the Act in question remains a constitutional issue that puts New Zealand out of step – as my article said – with court rulings in Canada, South Africa and the European Court. Which again presumably is why it made the Law Society list of legislation of concern. But we’re agreed on that, aren’t we Graeme? So your “seriously wrong” claims in this case turn out on closer examination to be once again just the petty quibbles of a legal pedant – right?
I could go on, but it is shooting fish in a barrel. It has been an interesting exercise though, to revisit the original article and to see what I think are its flaws. With the benefit of hindsight, I wish I had been harder on the track record of Labour, whose own authoritarian impulses extended beyond shower heads and light bulbs and were manifested in the anti-terrorism laws in particular. Some of the most draconian aspects of the Immigration Act eventually passed by National were also born under Labour, and seemed to have been motivated partly as payback to ensure that any future Ahmed Zaouis would not be able to prove their bona fides.
That said, this doesn’t alter one iota of the central thesis – which has been that under National, a whole new and virulent strain of highly intrusive, ideologically driven laws and procedures that extend the powers of Big Government and entrench corporate power have been put in play. And without anything like the same expressions of outrage from the media or the public as we saw directed at Helengrad. I hope Graeme Edgeler shares my concern about that, and it’s been no fun arguing with him in public. For a long time I’ve benefitted from his legal insights. People like him and Andrew Geddis are to be treasured for the public role they perform. And as Imam Shafi’i once said, the purpose of debate is not to win the debate. It is to see truth emerge from the other side.