As Prime Minister John Key confirms the NZSAS is back in Afghanistan , the official cone of silence now descends and New Zealand exits the real world

For news of our involvement in the war against terror, we now revert to the normal channels: the accidental revelations by allied nations, announcement of awards for brave conduct from the White House or Buckingham Palace, internet blogs from other troops and friends in the field, and any cell phone pictures sent to soft-drink contests by our boys and girls on the battlefront.

The Taliban and Al Qaeda will know more – and more immediately – about the operations of our troops than we will. The blimps among us may say: quite right too. I share their view when secrecy is required to prevent New Zealand troops being endangered in the course of current combat engagements – but not when it comes to issues like the manner in which their prisoners are treated.

Our defence and foreign affairs officials, and the politicians who should be holding them to account, are too fond of withholding all information about New Zealand troops in battle zones on the grounds that its release “would be likely to prejudice the security and defence of New Zealand or the international relations of the Government of New Zealand.”

They seem to live on a different planet or in another time. They do not seem to have read or heard the public reports by allied governments about their inquiries into the actions of troops and intelligence agencies, or of the current assessment being made by the International Criminal Court to determine if participants in Operation Enduring Freedom and the International Security Forces should be prosecuted for war crimes alongside the brutal elements of the Taliban and Al Qaeda.

They obviously have not checked out the internet for a copy of the military technical agreement between the International Security Assistance Forces and the government of Afghanistan as they decide to withhold the New Zealand military technical agreement with Afghanistan .

I am sure you will be delighted to know that an ISAF agreement with the Karzai government of Afghanistan provides ISAF troops – and New Zealand is part of the ISAF mission – with immunity from personal arrest or detention by the government of Afghanistan and that they are at all times “subject to the exclusive jurisdiction of their respective national elements in respect of any criminal or disciplinary offences which may be committed by them on the territory of Afghanistan.”

You will also be pleased that “ISAF and its personnel will not be liable for any damages to civilian or government property caused by any activity in pursuit of the ISAF mission.”

Having heard of the mounting international concern about civilian casualties and the destruction of civilian property in Afghanistan , you will probably not be surprised to know that President Karzai has pledged to re-negotiate this agreement and the parallel agreement his administration signed with the United States .

However, you may not know that the constraints these agreements impose on the government of Afghanistan will probably provide justification for an intervention by the International Criminal Court to determine whether war crimes have been committed against Afghan prisoners taken by international forces during our war against terror in their homeland.

In September 2008, I wrote to the Office of the Ombudsman, requesting an investigation of the Chief of Defence’s decision to withhold information used by New Zealand Defence Force personnel to brief its Minister Phil Goff on the actions taken by the NZSAS officer who had expressed concern about the “robust” treatment administered to his unit’s prisoners during their transfer to American custody.

In December 2008, Ombudsman David McGee told me that he would “incline to the view” that the Chief of Defence was entitled to give me his very abbreviated summary of the information held by NZDF, “because to do otherwise would have prejudiced … the security or defence of New Zealand or the international relations of the Government of New Zealand.

“However, rather than form such an opinion at this stage,” he added, “I consider it would be worthwhile for the NZDF to consult further on the issues raised by your complaint.” Since then, I have waited in vain for the outcome of the NZDF’s further consultation with very unbated breath.

Now the NZSAS is officially back in Afghanistan , the Ombudsman has just advised me that he has confirmed his original view and ceased his investigation.

This does not auger well for another complaint I lodged with his office recently – about the Chief of Defence’s decision to withhold a copy of the standard operating procedures for the treatment of prisoners to be observed by the current deployment of NZSAS soliders to Afghanistan .

I received news that this complaint has been accepted for investigation by the Ombudsman’s office on the same day that the “in the light of present circumstances”/confirmed opinion/ceased investigation letter arrived from Ombudsman McGee. Still, my hopes remain high.

The prime minister confirms that the NZSAS will perform missions tasked by the UN-mandated International Security Assistance Force. The NZDF has already provided me with a copy of the ISAF standard operating procedures for the treatment of prisoners. Our Provincial Reconstruction Team in Bamiyan are required to observe them if they ever take any prisoners. So, there should be no problem in sending me another copy – unless, of course, the NZSAS is operating under a different set of standard operating procedures.

As for the prime minister’s reliance on the verbal assurances he has received about the humane treatment of any prisoners taken by our troops and handed over to the Afghan authorities for detention – as they must be under ISAF standard procedures – well, I’m not convinced that’s a durable or defensible arrangement, in Afghanistan or the International Criminal Court.

I shall keep you informed of progress. Do not bate your breath.