There is a right to public protest in a democracy but there isn’t a right to damage property, public or private, in order to dramatise that protest. The 2008 decision by the Wellington District Court to acquit the ‘Waihopai Three’ on charges of burglary and intentional damage (on grounds of justification) was an absurdity and the Government is quite right to attempt to make that point by bringing a civil action for damages. The fact that some of those concerned appear to have limited means is not a reason for not proceeding with this action, although it may be a reason not to expect a financial return appropriate to the likely costs. There is an important point of principle here. It is simply obnoxious to public policy that this kind of deliberate damage can be seen as acceptable, provided that there is a claim, however vague, of moral right.
The fact that civil prosecution will provide a further opportunity for the defendants, and (particularly, perhaps, Peter Murnane) to promote their views, is also not a reason to eschew such action. In fact, this is an argument that cuts both ways. Prosecution will also provide a chance to further scrutinise the sort of naïve pacifism that Murnane et al are peddling. As is so often the case, this goes with an unreflective anti-Americanism that has its roots in the communist propaganda of the Cold War years.
The argument that appears to have been accepted at the earlier trial was that the harm that was caused by the actions of the three was justified by a moral ‘good’, in this case the identification of the evil consequences of the operation of the Waihopai electronic interception station. This is the, so-called, ‘claim of right’. The problem with this line of argument is that the connection between the operations of the Blenheim facility and supposed historical harms to persons in Iraq, or Afghanistan (or Kosovo, countering genocide?) is a very tenuous one. (It is not as if there was, say, a burning building and Father Murnane, or Messrs Leason or Land, broke down a door, or smashed a very expensive plate-glass window in order to contribute to the rescue of someone trapped inside.)
To be sure the Blenheim intercepts do contribute to the intelligence inputs of the five partners in the long-standing UKUSA arrangement (Australia, Britain, Canada, New Zealand and the United States) of which they are a part. They thus may have been relevant to the American intervention in Iraq (in 2003) and Afghanistan; as well as the United Nations-sponsored operations in Iraq in 1991 (The Gulf War). They also may have been relevant to our own intervention in East Timor in 1999 and may be contributing to present operations in the so-called ‘war on terror’. Speaking generally, nations do not act prudently unless their security activities are based on the best intelligence they can get and, for the five parties concerned, Waihopai, is potentially a significant contributor.
That is the general situation but the specifics (given the fact that we don’t know what particular intelligence is gleaned at a particular site and to what purpose it is put) are different again. Even if we think that some of the casualties in, say, Iraq were unjustifiable, or, indeed, that the whole invasion was unjustifiable (which I don’t) it is hard to link any specific harms to intelligence product from the Waihopai base. The most that might be said is that we don’t approve of intelligence gathering activities at all, or that we don’t approve of anything that America does (which might be quite close to the position of the Waihopai Three).
There is something else. In the case of political protest, the mere fact that a political claim of right is made does not change the fact that laws have been broken. Ghandi, who (so-to-speak), ‘wrote the book’ on civil disobedience, is quite clear on this. Those who deliberately break the law in the course of their political activism are liable for the consequences and they should face them. That is why Civil Disobedience is ‘civil’; it is generally respectful of the law of the land. On this reading, the Waihopai Three should have pleaded guilty in Blenheim and they should plead guilty now. Given that they haven’t, it is right that the Government pursue them for the costs of their irresponsible and antisocial activities.