The SIS thinks that Jane Kelsey is a threat to national security.

datePosted on 22:52, August 9th, 2009 by Pablo

 I read with interest that the SIS keeps a file on Jane Kelsey, apparently dating back almost 20 years. I am not a close friend of Jane but  know both her academic and activist work as well as some of her arguments with the SIS and Privacy Commission about her file (which will not be released to her, even in redacted form). Jane apparently came to the attention of the SIS because she was part of a Filipino solidarity group in the early 1990s and later because of her anti-APEC and anti-neoliberal activities (both of which have subsequently been vindicated in fact). I admire Jane because she is a person of conviction, and because she is staunch in the face of official intimidation. Deborah Manning is another such person. Were that there be many others of such character in New Zealand, but alas, especially amongst the male population, there are comparatively few in my estimation.

Putting aside the gender implications of Kiwi bullying and cowardice, the bottom line is as follows: the SIS is either lying or stonewalling on what Jane Kelsey’s file contains, and the so-called Privacy Commissioner is either an SIS toady or hopelessly ignorant of the issues at stake. Either way, this is another blow against Kiwi democracy. Truth be told,  the demolition of Kiwi civil liberties–particularly the right to privacy–was accentuated rather than diminished under  the Fifth Labour government, something the Key regime has happily continued.

If Jane Kelsey is a national security threat than I am Osama bin Laden, Anita is Ayman al-Zawahiri and Lew is, well…Lew.  We are all accomplices in critiquing the way NZ governments’ operate. If Jane has a file, then anyone who has voiced a public opinion against the government  could have a file. That is because for the last decade or so, dissent has been incrementally criminalised, and the definition of criminality is left to the government of the moment and its sycophants in the security bureaucracy. Hence anything oppositional can be grounds for snooping. That is how the SIS justifies its existence. Just ask Tame Iti or Valerie Morse.

Remember this small fact: being a pain in the rear of the security apparatus because of one’s vocal criticism of government policy, or being a critic of the SIS or the Police itself, does not constitute a threat to national security per se. If it does, that is all the more reason for the SIS or Police to release the evidence justifying claims that is the case. In Jane Kelsey’s case, her requests for release of her file have been met with bureaucratic obfuscation rather than transparency even though the SIS has all but admitted that nothing she has done constitutes a threat to national security. So, one might ask, why the obstruction on “national security grounds?” Although I have an idea why the SIS and Privacy Commissioner are hiding behind the skirt of “national security,” there are broader issues for civil liberties at stake that are worth considering here.

With that in mind I urge any reader who has expressed a dissonant, much  less dissident voice with regards to the way the NZ government and its security agencies operate, to make an official request for  your files. That is because it turns out the the extent of domestic espionage is far beyond what most Kiwis expect to be reasonable, and the SIS is utterly unaccountable for doing so. By this I mean that any dissident, right or left wing, is a potential target of covert monitoring and thus has a probable reason to make an OIA claim. I do not mean just the fringes of the Left-Right continuum, but anything in between: if you piss off the government of the moment or attack the SIS /Police on ethical or practical grounds, you can well be subject to “investigation” on the grounds that you constitute a threat to national security. It is all justified by the empowering legislation that was passed in  the last 15 years, including clauses that justify spying on New Zealand citizens who constitute “threats to  economic security” (which means that anyone opposed to governmental macroeconomic policy might as well be Osama in the opinion of the SIS). So, because she opposes neoliberalism and the APEC “free trade” doctrine, Jane Kelsey is the economic equivalent of a jihadi as far as the SIS is concerned.

That having been said, ask and you shall not receive. If Jane’s campaign is any indication, these  taxpayer-funded security bludgers feel no need to answer the silly requests of the people who pay their salaries. But should you insist, the SIS can be contacted www.nzsis.govt.nz.

Remember that you have to make an OIA (Official Information Act) request, and you should be as precise as possible when specifying the activities that you consider would have “warranted” SIS opening a file on you (of course, even asking that question could “warrant” the SIS opening a file on you).

Please ask Director Warren Tucker for a personal response in your OIA, and tell him that “Pablo” sent you. He knows who I am.

PS: The post has been updated twice to correct typos and clarify some sentences.

25 Responses to “The SIS thinks that Jane Kelsey is a threat to national security.”

  1. Thomas Beagle on August 10th, 2009 at 09:29

    “I admire Jane because she is a person of conviction, and because she is staunch in the face of official intimidation. Deborah Manning is another such person. Were that there be many others of such character in New Zealand, but alas, especially amongst the male population, there are few.”

    Your article would work better without the weird sexist throwaway at the start.

  2. Ag on August 10th, 2009 at 11:04

    To be fair, during the Cold War there were seemingly good reasons for the Intelligence services to keep tabs on people. However, the SIS is an anachronism now, and rather silly I would have thought. I thought the police were the ones infiltrating protest groups these days anyway.

  3. Lew on August 10th, 2009 at 11:20

    Heh, I’m torn over whether to feel slighted or privileged that Pablo gets to be Osama, Anita gets to be Al-Zawahiri, and I just get to be me :)

    L

  4. Pablo on August 10th, 2009 at 11:58

    Tom: The gendered aspect of government critics has been my observation, which is neither sexist or condescending. I just see a disproportionate amount of women fronting anti-status quo campaigns.

    Ag: The SIS has domestic espionage as one of its major duties and dedicates a substantial amount of resources (including human resources) to that end. They overlap with the Police when issues of criminality and national security meet.

    Lew: I tell ya what, you can be Dick Cheney. :-0

  5. Anita on August 10th, 2009 at 12:08

    Pablo,

    My vague memory is that there is evidence on some of the released SIS files of information sourced from Police informers. Do you happen to know how entwined the Police and SIS infiltration and monitoring is and was?

  6. Pablo on August 10th, 2009 at 12:35

    Anita:

    They share information on matters of common concern (lets say for the sake of argument weapons smuggling or intelligence gathering by Asian triads in NZ), but normally their purviews are different.

  7. Matt on August 10th, 2009 at 13:09

    All this domestic monitoring is a waste of resources. It makes the SIS less competent in dealing with real threats, and history shows this. Rainbow Warrior? Zaoui fiasco?

    The charter is too broad, and leaves the service too open to political manipulation. The SIS should be stripped of its power to conduct domestic operations – the police are way better at it anyway.

    If there isn’t enough going on in Fiji and the Solomon Islands to keep them busy, couldn’t they help Graham Henry in some way.

  8. Thomas Beagle on August 10th, 2009 at 13:48

    A little thought experiment: Does anyone think that New Zealand would be less secure if we got rid of the SIS?

  9. Pablo on August 10th, 2009 at 14:04

    Thomas: The SIS has foreign intelligence collection, domestic espionage and counter-intelligence duties. It has a complement of around 160 people, of which 40-50 are clerical. That leaves +/- 120 to do all of the intelligence tasks, and of those at least half will be desk analysts digesting foreign intelligence flows. If domestic espionage were left to the Police (who could liaise with the GCSB and SIS when necessary), the SIS might do better at countering real threats from abroad (say industrial espionage or foreign monitoring of NZ based dissidents). But as it stands is does a little bit of everything, and often not very well. So my short answer is no, NZ would not be appreciably less secure if the SIS were disbanded or reformed.

  10. Anita on August 10th, 2009 at 16:24

    Pablo,

    See, this is where I get confused (one of the many places actually :) isn’t the External Assessment Bureau’s job to look at what’s going on overseas?

    Between what the Police, the EAB and the GCSB do, what is left to only the SIS? (other than zillions of security clearances)

  11. Pablo on August 10th, 2009 at 16:42

    Anta:

    The EAB is a small shop of analysts focused on external matters, not exclusively threat scenarios. They get most of their external intelligence streams from the SIS and GCSB, which means that its information has been filtered and “polished” prior to arrival in the PM’s office. I agree that there is too much overlap and duplication of duties/functions amongst these agencies, to which can be added the CTAG (Combined Threat Assessment Group) that has representatives from all of the above agencies plus MFAT, Immigration, Customs, Treasury, MoD and NZDF (which has its own intelligence wing). CTAG is well worth keeping, and each agency other than the SIS has a fairly narrow purview. The trouble with the SIS is that it is overextended as it is and tends to see threats, including domestic threats, more as an exercise in self-justification than as a real possibility.

    The SIS claiming that it cannot release Jane’s file to her because it can compromise national security or NZ international relations is one such example, although by making that admission the SIS has pretty much revealed that it is worried about its sources (both internal and external) being identified in those files even if they are redacted. Given who Jane is and her very public stature as a governmental critic on various policy issues, that in turn narrows the range of sources to an uncomfortable (for the SIS) few. You can take the inference from there…

  12. Anita on August 10th, 2009 at 16:55

    Pablo,

    The creation of the NIC within Police (National Intelligence Centre?) can only make the overlap worse.

    Do you think it would help to strip the security clearances out of the SIS to allow them to focus?

    And yeah, I totally agree about the only way to read the SIS response over Kelsey’s file.

  13. Jim on August 10th, 2009 at 17:07

    The phrase “national security” can be used by the SIS to protect itself from investigation arising from its actions towards other citizens. Those actions, may give rise to defamation and injury claims against it as a consequence of their work.

    The principle of Tort can be used in civil law to recover from injury; financial, material loss and defamation caused through an act or ommision of another. However, the government can exclude itself from the application of this principle. If the government does this, it does not mean that it is acting in the intersets of justice. Only that it is placing part of it’s bureaucracy – in this case, the SIS, beyond the reach of the legal framework as it applies to the citizens, residents and commercial entities of this country .

    When the SIS uses the phrase “national security” to justify its activities, (such as not releasing information on a person, to that person, when requested through the Privacy Act) in some cases, that phrase could be read as “security of the SIS.” Especially when that information could reveal that the activities of the SIS have denigrated and/or diminished the lives of the law abiding peoples of this country.

    One sometimes wonders, if most of the information that the SIS refers to when using the term “National Security” means information that may lead to an investigation of the SIS itself because of the damage they have caused to others in the course of their activities.

  14. Watchdog Watch: Jane Kelsey On Her SIS File…

    “My experience since applying for my SIS file last November reveals two things: there is still no accountability for SIS actions in gathering intelligence on lawful dissent; and the SIS is apparently targeting academic critics of failed free market pol…

  15. Pablo on August 10th, 2009 at 17:10

    Anita,

    I forgot to mention the NIC and CIG within the Police. My view is that security clearance background checks could be done by the police but they too are understaffed and resourced. I would advise stripping the SIS of its domestic intelligence collection duties, let the NIC do the security clearances, and most importantly, strengthen the oversight authority of the Parliamentary Intelligence Oversight Committee, which is now a toothless rubber stamping agency with no statutory authority over the agencies it supposed to oversee. With sharper oversight, perhaps then the SIS will stick to monitoring real threats rather than bolshey academics.

  16. Pablo on August 10th, 2009 at 17:15

    Jim: Excellent point, to which the SIS can then overlap legitimate concerns about revealing sources and methods. Thus the cover-up is complete.

  17. SIS files | Jane Kelsey's webpage on August 10th, 2009 at 20:11

    SIS files…

    The end of the Cold War brought about changes to the nature and justifications for the exercise of state power, with ‘terrorism’ replacing subversion as the primary justification. New Zealand legislation has been regularly amended to expand powers and …

  18. Anita on August 10th, 2009 at 20:13

    Pablo,

    We need a diagram! :)

    Seriously but, a list of the security agencies and offices, along with a rough description of their remit would be a very handy thing!

  19. George Rosenberg on August 11th, 2009 at 08:39

    Pablo’s comment re the Security Commissioner hits the nail on the head. He said:

    “Putting aside the gender implications of Kiwi bullying and cowardice, the bottom line is as follows: the SIS is either lying or stonewalling on what Jane Kelsey’s file contains, and the so-called Privacy Commissioner is either an SIS toady or hopelessly ignorant of the issues at stake. Either way, this is another blow against Kiwi democracy. Truth be told, the demolition of Kiwi civil liberties–particularly the right to privacy–was accentuated rather than diminished under the Fifth Labour government, something the Key regime has happily continued.”

    I have been chasing what has turned out to be a totally trivial document on my SIS fie. The SIS orignally turned me down because of what I think was a genuine misunderstanding of the way in which they are supposed to treat so-called vetting files. I complained to the Commissioner who corrected this misunderstanding. This should have led to the immediate release of the file but the Commissioner said that on reviewing the file he had formed the view that to release it would be prejudicial to the security or defence of NZ or to its international relationships and that it was information provided to NZ on the basis of confidence by another government.

    The SIS itself had never stated any of these reasons as the basis of withholding and, on the basis of the finding that their original ground for withholding was wrong in law they obtained permission from the foreign government involved and then released the file to me. In other words they did not consider that the release of the information would prejudice the security or defence of NZ or its international relations. They are right as you will see if you have a look at the file in the following web site http://sites.google.com/site/nzsiscomment/

    It is inconceivable to me that anyone could possibly consider that the release of the information might prejudice NZ’s security defence or international relations. Judge for yourself. It seems the NZSIS agrees, yet the Privacy Commissioner has made this patently wrong judgment.

    I have asked him to review this wrong view but he has refused.

    In relation to other information on my file which is still withheld he has asked me to accept his judgment that its release, too, would prejudice NZ’s security or defence. How can anyone accept his judgment when in the instance which has now been released he must be wrong.

    So this casts some small degree of light on what must be going on in the Privacy Commissioner’s office when he is looking at Jane’s file and no one should be surprised if she does not accept his judgment.

  20. Anita on August 11th, 2009 at 08:51

    Tom/Pablo,

    IMO there is a higher proportion of women doing high profile things in anti status quo movements than in movements (or entrenched structures) supporting the status quo. Sure, there are men in high profile roles in those movements too, but one of the interesting things about progressive movements in NZ is that they’re much more open to women than the existing structures.

  21. George Rosenberg on August 11th, 2009 at 09:09

    I have had a comment that my link does not work – so here are direct links.

    This is the letter from the Privacy Commissioner in which he said he was satisfied that my vetting file if released would (a) prejudice the security or defence of NZ and (b) that it is information provided in confidence by aniother government to the government of NZ.

    http://docs.google.com/fileview?id=0B18XNzeTK9M_MjYzODU5ZTktMzIzMS00MmU0LWEzMDUtNDExMzk2M2NiYWZk&hl=en

    This is the letter from the NZSIS releasing my “vetting file” whose release the Privacy Commissioner described as being likely to prejuidice the security or defence of NZ.

    http://docs.google.com/fileview?id=0B18XNzeTK9M_NTZlZjY3OTgtMDI4ZC00NjdkLThkNTUtNTUxZGYxNzM2OTcy&hl=en

  22. Pablo on August 11th, 2009 at 14:31

    George–much thanks for that, as it is extremely interesting. I am undecided how to read the contrasting documents. Either they are evidence of bureaucratic ineptitude of significant proportions (one hand does not know what the other is doing), or it is a deliberate policy of obfuscation. If it were the latter one would think that both the PC and SIS would coordinate their denials of your request, so I am left with the view that the PC is in fact inept. I also note that your request time frame overlaps with Jane’s. I hope that she reads you comments and documents.

  23. George Rosenberg on August 11th, 2009 at 17:55

    George–much thanks for that, as it is extremely interesting. I am undecided how to read the contrasting documents. Either they are evidence of bureaucratic ineptitude of significant proportions (one hand does not know what the other is doing), or it is a deliberate policy of obfuscation. If it were the latter one would think that both the PC and SIS would coordinate their denials of your request, so I am left with the view that the PC is in fact inept. I also note that your request time frame overlaps with Jane’s. I hope that she reads you comments and documents.

    Pablo – to my mind the reading is very clear:

    PC and SIS are each doing their own jobs but for some reason the PC has an exaggerated view of what might prejudice the security defence or foreign relations of NZ. This view is so exaggerated that there is virtually no chance they will ever overturn an SIS view that the release of something might cause prejudice. One can have no trust at all in their judgment.

    In my case the sequence is as follows:

    1. SIS withhold the vetting report, not relying on any security ground but on the basis that they always withhold vetting reports. This is based on a mis-reading of the law on vetting reports.

    2. I complain to the PC and point out the SIS’s mis-reading.

    3. PC agree the SIS misread the law re vetting but instead of leaving it at this conclude that the release of the vetting report in question would prejudice NZ security, defence and international relations.

    4. SIS accept they misread law on vetting reports but do not agree with PC on prejudice argument and release the report.

    In this way we have had a unique insight into the attitude of the PC who is taking an approach which is at the best identical to the SIS but in this case far more rigid. They find prejudice where the SIS finds none.

    When one thinks about it what possible basis could the PC have for his opinion? He sees only a few SIS files – by definition those where the SIS and the applicant disagree. He has no overall view of what is generally on SIS files. He can have no experience of what might actually endanger security or defence. In other words his opinion is worthless and, in my case, demonstrably wrong. Perhaps he has decided that in the interests of avoiding ever doing anything which might justify criticism that he has actually let something out which would prejudice security or defence, he will let nothing out at all.

    Most people will never know what material the PC saw in order to reach his opinion that there would be prejudice if the material were released. His judgment therefore normally stands unchallenged but we can now see what is actually going on.

    Incidentally you will notice in Jane’s press release that he has another reason for supporting the SIS secrecy on her – the maintenance of the law. This is an argument which the SIS itself never raised against release of any document to me but which the PC added as a reason. In other words, the PC is taking it on himself to find reasons for refusing to release when the SIS does not even advance them. I doubt the legal validity of this last reason but that is another story.

  24. SPC on August 12th, 2009 at 17:58

    One might surmise that the SIS is reliant on Echelon information flows (American surveillance of New Zealanders) and this is not to be diclosed for security reasons.

    This reminds me of police use of surveillance to gather information, then claiming it comes from an to remain unidentified source, – this when using the evidence so gathered to get an official warrant …

    Disclosure – after sending communications to the US embassy opposing the US going not Iraq (after Afghanistan) in late 2001 I was questioned by police in 2002 (they even asked to take a photo for a file they said they were making on me).

  25. Jim on March 1st, 2010 at 14:09

    On this matter it appears that the nature of New Zealands constitutional makeup in legal terms is causing a roadblock in this discussion. This has been pointed out by Pablo :-

    If Jane Kelsey is a national security threat than I am Osama bin Laden, Anita is Ayman al-Zawahiri and Lew is, well…Lew.  We are all accomplices in critiquing the way NZ governments’ operate. If Jane has a file, then anyone who has voiced a public opinion against the government  could have a file. That is because for the last decade or so, dissent has been incrementally criminalised, and the definition of criminality is left to the government of the moment and its sycophants in the security bureaucracy. Hence anything oppositional can be grounds for snooping. That is how the SIS justifies its existence. Just ask Tame Iti or Valerie Morse.

    Most people will never know what material the PC saw in order to reach his opinion that there would be prejudice if the material were released. His judgment therefore normally stands unchallenged but we can now see what is actually going on.

    Incidentally you will notice in Jane’s press release that he has another reason for supporting the SIS secrecy on her – the maintenance of the law. This is an argument which the SIS itself never raised against release of any document to me but which the PC added as a reason. In other words, the PC is taking it on himself to find reasons for refusing to release when the SIS does not even advance them. I doubt the legal validity of this last reason but that is another story.

    It appears that the the PC and the SIS are using the difference between Naturalist legal theory and Positivist legal theory, to corral for themselves, an ethical position, which is undemocratic. The fact that the constitution of New Zealand is distributed within a number of Acts of Parliament makes it difficult for the taxpayer to legally deal with the dichotomy of that ethical form.

    Legal representation is expensive for most New Zealanders. For most people infact! For the taxpayer to persue their case for the release of information on themselves, from the PC and the SIS, seems to be a long, arduous and expensive process. This amounts to a David and Goliath type of struggle between the defence of individual rights, and that of a taxpayer funded coterie; the ethical position being used jointly by the PC and the SIS.

    This seems to be effective against both Jane Kelsey and George. No doubt, that peculiar ethical stance of both the PC (Privacy Commisioner) and the SIS has been affective against others as well. It seems that the word “privacy” is not percieved as a right of individuals, of an age to pay taxes. And be subject to the law!

    At some stage the Law Commission could extract the elements of the New Zealand Constitution and place it in one act of Paliament. This would make Democracy more accessible for the taxpayer and avoid the unpleasant smell of a corrosive ethical postiion when individuals lives are affected by the actions of the Privacy Commissioner and the SIS.

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