Revealed: Documents too secret to be seen - but now the inquiry into the NZSAS raid says they should be public

NZSAS troopers leaving a Chinook helicopter in Afghanistan. Photo / Supplied

New documents show NZDF received intelligence saying civilians were killed just days after the 2010 NZSAS raid which is now subject to a government inquiry.

The details are part of an extraordinary document dump previously blocked by NZDF with support from the Office of the Ombudsman.

The documents have emerged as the inquiry prepares for public hearings this week at which lawyers for the Afghan villagers - those people directly affected by the raid - will not appear. The lawyers representing the villagers had pulled out of the hearing after complaints sufficient funding is not available to properly represent their interests.

The inquiry into the NZSAS raid in Afghanistan in August 2010 was sparked by the Hit & Run book's claims six civilians were killed and 15 others wounded.

It is now producing large tracts of previously classified records after an independent review of the material by experts working for the inquiry into the raid.

The documents were released after a security classification review of the documents and NZDF's insistence that much of it was too secret to make public.

The objections had previously received support from the Office of the Ombudsman, which accepted NZDF's objections that releasing the documents could place NZDF lives at risk in future operations.

The details have seen post-operation reports revealed, the release of intelligence summaries and details of the "rules of engagement" for the operation - the rules of warfare to which the NZSAS was bound.

The documents also show the NZSAS focused on the issue of civilian casualties in the aftermath of the raid.

The "operation summary", filed immediately after the attack took place, stated there had been 13 insurgents killed and no civilian casualties. "All women and children were protected throughout," it said.

But days later, updated reports include lists of casualties which could only have been civilian.

At that stage, NZSAS papers were stating Taliban insurgents had been killed along with "a small number of civilians, most likely family members". It added the reports were unconfirmed reports from intelligence sources.

Fatima, 3, was said to be a civilian casualty of the NZSAS raid in 2010. Photo / Supplied

Another "intelligence summary report" following the raid summarised public reporting suggesting up to 40 "innocent" people had been killed by air forces. It was described as a "greatly exaggerated" battle-damage assessment prompted by Taliban support, although went on to concede possible civilian casualties.

There was also a focus in trying to ascertain the truth of the reports of civilian casualties - and potential responses - as NZSAS staff met with others involved in Operation Burnham and US military representatives.

An August 25 email showed discussion about possible compensation for civilians who had been killed. The email stated "a payment may not necessarily mean an acknowledgement of fault" but could be a counter-insurgency strategy "to do the right thing if the facts are unclear".

It stated the NZSAS taskforce had worked to establish the facts behind the claims and who might be responsible since the operation.

An August 26 2010 email from an NZSAS trooper - apparently a senior NCO - to his commanders reflected an anxiety over the possibility the ground forces had killed civilians.

It referred to US video footage of the air strikes being "good news" for the NZSAS and its Afghan ground force partners. "It has to date verified that our actions were correct and in accordance with the threat presented."

It stated possible civilian casualties had occurred "in potential accident impact of rounds" on a specific house from air support. Initial inquiries - not yet verified - said civilian casualties would be "collateral and unintended".

The NZSAS trooper said: "I have to say that today has felt for the OC and I like a large weight has been lifted. We have both been personally feeling the weight of potential [civilian casualties] by TF821 [the NZSAS and Afghan troops] and now having review the tapes, we are both reassured that TF81 actions throughout the operation were of the highest calibre."

The finding didn't mean there were no civilians killed, he added, but if they did occur it was due to Apache gunship "weapon problems" and not "incorrect application of force".

"This called for a quiet whisky and I can tell you it never tasted so good. I will sleep well tonight."

A memo from lawyers acting for the Crown says the documents "should not be taken as a complete and verified representation of the facts of Operation Burnham".

NZDF personnel on patrol in Bamiyan faced a heightened threat following the NZSAS raid. Photo / Supplied

The possibility of civilian casualties was explicitly and publicly ruled out by former National MP Wayne Mapp, who was defence minister at the time of the raid. Mapp and Prime Minister John Key had been told in December 2010 there was no chance there were any civilian casualties.

The inquiry into the NZSAS raid, and associated operations, is due to hear evidence on Wednesday and Thursday this week.

When it meets, though, the villagers who were affected by the raid will not be represented after complaints from their lawyers of insufficient funding to prepare.

Lawyer for the villagers, Deborah Manning, said funding to allow about 50 hours of preparation had been made available and it wasn't enough given the legal research required. The funding also failed to account for the logistical reality of dealing with clients spread through inaccessible areas experiencing extreme weather and requiring allowances for language and communication difficulties.

Manning said the Department of Internal Affairs, meant to be handling administration for the inquiry, originally had no systems in place to deal with applications for funding.

It had since been slow to develop systems and it hadn't accounted for the actual costs involved.

"It has been an exhausting and frustrating and distressing process to be involved with as counsel. I'm very concerned, not just for this inquiry but other inquiries set up with vulnerable participants."

Lawyer for the Afghan villagers, Deborah Manning. Photo / Doug Sherring

A spokesman for the inquiry said enough funding had been made available. The inquiry had previously ruled it did not need to hear directly from the villagers because they had been quoted in the book, Hit & Run.

Information from the DIA, released to the Herald, shows it did not have a process established to handle requests for funding. It developed a draft process in November 2018 and was continuing to refine its systems.

The new documents released by the inquiry summarised the success of the mission, which was considered to have degraded the ability of local fights to attack New Zealand troops at the Bamiyan provincial reconstruction team.

It also showed intelligence summaries showing the main targets had escaped and one leader had - at funerals for those who had died - been filmed promising retaliation. The intelligence reporting showed around 400 people attending funerals for the dead.

A summary of Taliban capabilities following the raid said insurgent opposition was still well-equipped and capable of mounting further attacks, including "revenge" missions which could include suicide bombers

In a document entitled "threat considerations", it carried a warning the "backlash" from locals could lead to an increase in the numbers of "low-level volunteer fighters". The likely targets were the PRT and Afghan National Police checkpoints.

The documents also confirm reporting by the NZ Herald after the book was released which placed an AC-130 Spectre gunship above the battle.

NZSAS sources told the Herald the aircraft's presence was notable because it was the first time since Vietnam the regiment had gone into battle under covering fire from a 105mm howitzer - usually a ground-based artillery weapon. In the case of the AC-130, it had been fitted into a transport aircraft, along with other weaponry, to produce devastating ground fire.