Gordon Campbell on the Dotcom emails

Back in 2010 at least, the email trail recently released to David Fisher of the NZ Herald shows that the Immigration Service had found an interesting niche in business migrants: people who (a) have $10 million or more spare change to invest in this country who also (b) have their allegedly “criminal” business activities under investigation by the FBI. I don’t know how big this pool of business class quasi-fugitives is, but New Zealand may well have cornered the market. Seriously, it’s hard to see how someone under active FBI/NZ Police investigation could possibly pass the “good character” test required for business migrants to be granted residency here. If you want to hear someone try valiantly to square that circle, have a listen to this Checkpoint interview last night between RNZ’s Mary Wilson and Immigration Service CEO Nigel Bickle.

The Dotcom residency decision fails any number of sniff tests. To repeat: if the FBI and NZ Police are known to be planning an operation against an applicant “because of his criminal dealings” (as one email puts it) how could said applicant have possibly earned a pass mark on the “good character” test? Especially when the email trail also repeatedly describes Dotcom as “quite a bad but wealthy man.” Moreover, if the Dotcom millions have been derived from the very same Megaupload operation known to be driving the FBI/NZ Police Joint OP, wouldn’t that suggest that the investment millions were in jeopardy, and that this country was unlikely to ever reap lasting economic benefits from his presence? Wouldn’t the proposed Joint Op cast a significant shadow over the gains that the business migrant scheme was set up to foster? Even a bright seven year old could see why Dotcom’s application for residency should not have been approved.

Yet it was, regardless. Why, then, was it approved? Here we get into the realm of the “INZ being under political pressure” to approve Dotcom’s application. Given the basic illogic of the approval, the OIA emails lend support to the theory that Dotcom was being granted residency here at the urging of the American government and its corporate lobbyists in Hollywood – so that he could then be extradited to the US for prosecution, via the joint operation that was being mooted at the time of the residency approval. Keep in mind that the emails about Dotcom were flying back and forth during the very same fortnight in 2010 that Prime Minister was meeting with top Warners executives about The Hobbit.

Oh sure, that could sounds like a conspiracy theory. This very thesis was, in fact, formally raised by Dotcom’s lawyers as part of their court actions earlier this year, when Dotcom was seeking access to evidence relevant to his extradition hearing originally scheduled for July 2014. Arguably, the email evidence should have disclosed long ago. The failure to do so flies in the face of the “good faith and candour” that is an essential element in the extradition process.

With that in mind, the mega – question this week would have to be: why weren’t these latest emails from 2010 given to the Dotcom defence team during the disclosure process, well in advance of the original extradition hearing date? They seem extremely relevant to the court actions already decided against Dotcom by the courts. That would include the recent High Court decision by Judge Nevin Dawson, who recently denied an application by the Dotcom team for further documentary evidence for the allegations against him.

Dotcom had asked for documents held by the Security Intelligence Service (SIS), Immigration New Zealand, Police, Customs, Corrections and the Government Communications Security Bureau (GCSB). Dawson found there was “no reasonable basis” for granting the application for the documents. Some of Dawson’s comments now make quite ironic reading in the light of the emails just released.

“It…would involve an extensive amount of time and resources to satisfy,” Dawson reasoned, “with a very low likelihood of it producing evidence relevant to the extradition hearing.” (Well, it might have turned up the INZ/SIS emails, for starters.) In his released judgement, Dawson was sharply critical of the conspiracy theories being advanced by the Dotcom team. Paras 47-49 are worth quoting, given what we now know about the references in the emails to “political pressure” on INZ to approve a residency application that – on its apparent merits – should never have been granted. In Judge Dawson’s opinion, the timing involved was (a) just a co-incidence and (b) the pressure to reach a decision on the residency application was possibly triggered by Dotcom himself. For example:

[47] To date, there is no evidence of any nexus between the Prime Minister’s meeting with the CEO of Warner Bros with Mr Dotcom’s residency applications other than the coincidence of the times of events pointed to by him. There is also an alternate explanation that could be advanced. Mr Dotcom had become impatient over what he perceived as delays with his residency application and informed INZ that his application could be withdrawn if it was not granted by 1 November 2010. The residency application was granted on 30 October 2010. It is feasible that INZ granted the residency application of a high net-worth person who was pressuring them for a decision.

To say the least, this reasoning now looks shaky. We now know that some in INZ felt under political pressure – not pressure from Dotcom – to approve this application, and that one of the contextual factors was the proposed joint FBI/NZ Police operation. There is no mention in the October 2010 email trail of a looming threat of an application withdrawal from Dotcom. This email evidence should have been available to the Dotcom team, and put before Judge Dawson’s court. The Crown has to explain why its disclosure procedures were lacking this plainly relevant (and some would say, compelling) bloc of email information. Judge Dawson went on:

[48]The respondents need to prove some nexus between Mr Dotcom being granted residency and his claim of untoward political pressure being placed upon immigration officials to grant his residency other than hypothesised coincidence. In addition, they would need to show links between the INZ, NZSIS, the Prime Minister, the CEO of Warner Bros and the Applicant [the US government, my brackets] which showed the Applicant’s involvement in the actions of the New Zealand agencies. They would then need to show some illegal action by the Applicant indicating there was an abuse of process that would lead this court to provide some sanction against the Applicant in this case. To date they have not done so. Nor has it been shown that INZ and the NZSIS were acting as agencies for the Applicant at this time.”

Yet the emails do go some way to meeting these requirements. They indicate that there was a perceived involvement by The Applicant (i.e. the US government) in the actions of the New Zealand agencies, at the very least via the proposed joint operation with the NZ Police and via the related sense among some INZ staff of “political pressure.” The “sanction” against the Applicant available to the court would be with respect to the existence of reasonable doubts about “the good faith and candour” requirement on the authorities handling this extradition process. Judge Dawson ploughs on:

[49] The Respondents’ applications are based upon Mr Dotcom’s theory which is based upon evidence which has a plausible alternative explanation. They lack any “air of reality” as they rely upon a perceived coincidence. These applications are in the nature of a fishing expedition, made in the hope of flushing out evidence which may be useful to the Respondents. Even if it was successful it is highly unlikely that it would be evidence that might assist the Respondents to counter any of the Applicants’ evidence in the ROC. If evidence of improper political involvement was found, it would not impact upon the extradition hearing.

Really? Wouldn’t it? Not even if there was evidence that the state requesting extradition was using criminal allegations – and the New Zealand legal system – to enable US corporates to pursue redress for actions that under US law, would justify only civil (i.e. non-criminal) proceedings at best, against Dotcom? Civil proceedings that on past US precedent would be likely to fail? To repeat : the battle over extradition next February is going to be waged very much on the grounds of whether the US – and the Crown here – have displayed “good faith and candour” in the grounds for extradition, and the evidence that has been presented to justify it. The emails are relevant – both in themselves, and given their belated appearance in the discovery process. At the very least, the emails will now be relevant to any Dotcom appeal against the High Court decision.

Obviously, the emails have been heavily redacted. It seems essential to natural justice – and to the business of the courts dealing with Dotcom-related issues – that a non-redacted version of those emails is available to the bench. There is a method for doing so. Stuart Grieve QC was appointed as special advocate with respect to sensitive, security related evidence.

Before the extradition hearings, there should be provision made for Grieve to be briefed by the Dotcom team and he should be enabled to examine a non-redacted version of the emails. In line with the normal special advocate role, Grieve can then represent those issues to the court at the extradition hearings in February. What role, if any, does the Crown envisage the special advocate playing in the February extradition process, and will he be given access to – among other things – a non-redacted version of the recently released emails?

As things stand, the New Zealand extradition hearing will rely on what is called the “record of the case” – which is essentially just a mere summary of the US allegations. Rulings in the Court of Appeal and Supreme Court have narrowed the evidence that needs to be presented in order to validate “the record of the case.” As a consequence, our extradition process risks being just a rubber stamp. In their efforts to widen the ambit of the extradition process, it should be emphasised that the Dotcom legal team have not been engaged in a wholesale fishing expedition. During the District Court ruling by Judge David Harvey and the High Court ruling by Judge Helen Winkelman, it was made clear that the evidence being requested was specific and was focussed on acknowledged defects in the record of the case. In her dissenting minority opinion in the Supreme Court Chief Justice Sian Elias made that same point:

Since it is accepted that the record of the case on this view is incomplete, the deficiency must be remedied if the Minister wishes to proceed on it. That conclusion would be sufficient to dispose of the appeal, since the disclosure ordered in my view does not go further than to remedy the deficiency in the record of the case…..Mine is however a minority conclusion in this Court. It is therefore necessary for me to explain why I consider that the court determining eligibility for surrender has inherent power to compel disclosure for the purpose of the fair determination whether a prima facie case of commission of the offence has been established. Such powers in my view clearly extend to documents which are relied on to evidence the commission of the offence, and justify putting the person on trial…

Exactly. As things stand, the US is using the New Zealand legal system as a tool to send someone halfway round the world to face criminal charges without first being able to see the evidence against them. One does not have to like Dotcom to feel deep misgivings about this situation. The email trail is part of the skein of evidence. A non-redacted version of these emails has to be made available to the courts and to the Dotcom defence team, by one means or another. In the meantime, the Crown needs to explain why a redacted version of them wasn’t handed over to Dotcom sooner – given that they could now enable an appeal against some of the court decisions already reached.

Nancy Dupree, R.I.P.
As the Guardian noted a couple of years ago, it is a bit amazing that the tracks below were ever commercially released. They were really just a schoolteacher called Nancy Dupree and her young students singing around a piano, back in late 1969. One of the songs had been written by Ms Dupree about James Brown, after the Godfather of Soul had played a concert in the students’ hometown, Rochester, New York. It is a wonderful example of how an inspiring teacher can bring learning to life. Shortly afterwards though, Dupree lost her teaching job, became a Black Panther and died of leukemia in 1980 at the age of 44, only ten years after these tracks were recorded. As this article about the life of Nancy Dupree relates, she also made a record of her poetry – called “Letter To Young Sisters” – which contains this extract written in the third person, about herself:

“She’s a southerner who did her growing up in Sumter, South Carolina. She graduated three times: from Lincoln High School in Sumter, from Virginia State College in Petersburg, and from Mills College in Oakland, California.

These three graduations convinced her that she was qualified to announce to the world, “Get ready, ’cause here I come!” She came and found out that the world was truly ready … had been ready for a long time … and the wrestling match was on. Wrestling with money, marriage, motherhood, divorce; wrestling with reality…wrestling with life. She looks back and wonders how she survived because she knows now that she was not EVEN ready.

What she has to show for it all is her own personal individual sanity, a child most precious to her, a few worldly possessions, and some poems. You are invited to take the poems, fold them neatly, and tuck them away in the corner of your soul reserved for food.”

Same goes for these tracks.