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On the need for intelligence accountability and oversight reform.

datePosted on 09:50, October 10th, 2012 by Pablo

One thing has become clear after the revelations of multiple New Zealand intelligence agency failures, malfeasance and incompetence over the past few years. That is what happens when there is no effective oversight on, or accountability by those agencies. As things stand the Prime Minster is the sole oversight on New Zealand’s intelligence community. The parliamentary intelligence and security committee is a toothless wonder that gets semi-regular general briefings on intelligence matters (at a rate of less than once a month), and the inspector general (IG) of intelligence–the person who is supposed to independently investigate the actions of the intelligence community–is currently a geriatric former judge who has the equivalent of a .5 full time employee and whose office and resources are provided by the agencies he is supposed to independently assess. His predecessor, another retired judge, resigned under a cloud brought about by the Ahmed Zaoui political asylum  case, where the Security Intelligence Services (SIS)  was shown to have clearly manipulated analysis of intelligence flows derived from foreign partners and the IG demonstrated bias in favor of  the SIS version  of events prior to releasing his findings.

Add to that the fact that the IG has limited powers of investigation and a parliamentary committee that cannot be told about operational matters and has no powers to subpoena or authority to force testimony under oath, and what you have is a recipe for institutional “stretch:” the tendency of institutions to exceed and play loose with the rules, laws and regulations governing their charter in the absence of effective oversight and accountability. That has become glaring apparent in recent weeks.

The problem is somewhat mitigated when the Prime Minister is a hands-on type of manager who is knowledgeable about intelligence matters, to include methods of collection and analysis. Although it raises the possibility of PM misuse of intelligence flows for political purposes, it does have the merit of forcing intelligence officials to be accountable to someone. However, if the PM is disinterested, ignorant or laissez-faire in managerial approach to intelligence matters, then the possibility of intelligence agency institutional stretch becomes quite real, as we have now seen.

Given the revelations about the GCSB and prior instances of SIS “stretch,” the time is now perfect for a reform of the intelligence oversight apparatus. Although the PM can and should remain as the minister for intelligence and security, the parliamentary committee needs to be granted effective and binding oversight authority that includes powers to investigate operational issues and force intelligence agency officials of all ranks  to respond under oath to questions about the how, when and why of specific intelligence matters. Likewise, the Inspector General’s position needs to be expanded into a three person panel that includes a mix of people with experience in handling sensitive information and knowledge of how intelligence collection and analysis works, and who answer to and are resourced by parliament rather than the PM and SIS, respectively.

Unchecked executive oversight of intelligence agencies is prone to what might be called the authoritarian tendency (by which elected executives assume quasi-dictatorial powers of managerial control), and is in fact the mark of many authoritarian regimes. This avoids the system of checks and balances that is not only a hallmark of democratic political systems, but of their institutional component as well. The issue, as the intelligence community well knows, is about triangulation: there needs to be at least three independent (if overlapped) sources of critical institutional scrutiny for information or oversight to be validated (which are manifest in policy or administrative decisions).

That system of institutional checks and balances is what provides oversight and promotes accountability within public bureaucracies as a whole. Such accountability is horizontal–between different public agencies such as the judiciary and security apparatus–as well as vertical (where public agencies answer to political authorities separated into legislative and executive components). The institutionalized oversight aggregate mitigates against public agency stretch and political manipulation.

Having one individual, whatever his or her persuasion with regard to issues of intelligence collection, analysis and political impact (something driven by the political context of the moment, including  the relationship between government and opposition and the  personal and partisan implications of any given decision regarding security and intelligence) is, in a democracy, antithetical. In mature democracies policy decisions are not individualized; they are institutionalized and subject to effective oversight.

This is simply a matter of democratic good practice. Effective, independent oversight not only keeps intelligence agencies honest and prevents institutional stretch. It reassure the voting public that the larger common interest, rather than narrow political, diplomatic or corporate concerns, are served by the intelligence and security agencies charged with defending the commonweal.

6 Responses to “On the need for intelligence accountability and oversight reform.”

  1. Chris on October 12th, 2012 at 09:07

    You make some excellent points, thank you.

    I do disagree with your support for the convention here in New Zealand that the Prime Minister should be responsible for the Intelligence and Security portfolio. I am unaware of any other first-world democracy where the head of the government is also the Minister responsible for intelligence and security. Historically it is usually only in dictatorships that the head of Government also assumes control of the security department.

    Indeed when Robert Muldoon was Prime Minister and Minister of the SIS in the early 1980’s he abused his position for political gain by releasing the names of some 30 “subversives” that the SIS had compiled for him, who were somehow linked to the Labour Party.

    In Australia, the Attorney-General is always responsible for the security departments, and in the UK I think it is the Home Secretary, and in Canada it is the Minister for Public Safety.

    Whoever is the New Zealand Prime Minister, is a constantly busy person, and that means the level of oversight and control over any portfolio they have, is always going to problematic.

    Also, because the PM is often away from Wellington it means that the SIS and GCSB then have to deal with the Deputy PM on urgent matters (like interception warrants), or even the number three in Cabinet if the Deputy PM is away too, and that gives rise to all sorts of opportunities for the intelligence agencies to abuse the absence of the permanent minister (just look how Bill English signed a Ministerial certificate when Key was in the USA and Key was never told about it on his return – it begs the question why did GCSB not disclose to the PM when they next met him that they had got English to sign a Ministerial gagging certificate?).

    This is why someone other than the PM of the day should be in charge of GCSB and the SIS – the very nature of these agencies work requires a Minister who is more available, and one who is going to have more time to devote to proper oversight of these secretive agencies. Maybe we should follow Australia’s lead, and have the Attorney-General be the responsible Minister.

    With respect to the Inspector General. The law requires that the position be filled by a retired High Court Judge, so a geriatric pensioner is always going to hold the role. I think this is dangerous as someone in their twilight years, and for whom the position is a bit of extra pin-money, is not likely to have the inclination or ability to properly monitor two Government agencies. On TV3 last night they interviewed the Inspector General on the ‘phone and he could not even recall three major cases he investigated last year. So what hope is there for the public to have confidence in the person holding the position when their memory is fading?

    I have not researched it, but I think in Australia the Inspector General is a small office and certainly the current head is a career public servant, still with a working life ahead of her. This is the sort of appointee we need here, and a less senior Minister in charge than the Prime Minister.

  2. Pablo on October 12th, 2012 at 10:01

    Excellent points Chris, and upon reflection in light of them I agree that the Minister of Security and Intelligence should be someone other than the PM. In fact, I believe that there should be a separate portfolio for the job, as it requires a person’s full attention to detail. That person would obviously have to pass polygraph tests and other security vetting and be sworn to secrecy (as happens in most other mature democracies) rather than be just some run-of-the-mill partisan hack being thrown a bone. That may complicate the selection process but that is also precisely why strict vetting and prior experience is needed (remember the case of Mr. Wilce, the former head of Defence technology)?

    I think that the IG role should be left to a panel of independent experts. That is because they are charged with investigating things, usually matters of legality and propriety on the part of the intelligence services. That means that political and bureaucratic pressures can be placed on one person, whereas having three independent minded and knowledgeable people can mitigate against undue influence on any one of them. The panel could be selected by the major political parties or coalitions and as I said, answer to and be funded by parliament. Finding an independent panel acceptable to all major political players might be hard but again, it helps insure the integrity of the IG role.

    These are major reforms to be sure, but in light on the ongoing debacles of intelligence they are absolutely necessary (yesterday Mr. Key laughingly said that he did not know who the Canadian spy was that caused the most serious breach of Echelon intelligence in its existence, about which there was a top secret meeting in Wellington a few weeks after he was arrested that involved all of the Echelon partners and news of which has been in the media for the past nine months).

    Thanks for the good food for thought.

  3. Chris on October 12th, 2012 at 10:53

    I think your suggestion of having three independently appointed experts is a good one, to counter undue influence on a single appointee. I imagine also, that the Inspector General probably deals exclusively with the CEO’s of GCSB and SIS, rather than walking the corridors talking to staff.

    I bet the current appointee has never just turned up unannounced at GCSB and said “I am now going to walk about and talk to whoever I come across, and I don’t want any management escorting me”. That should be in his job description.

    If the Inspector General is only having contact with the heads of GCSB and SIS, and not the wider staff, then those organisations effectively have complete control over what he knows and learns about the agencies over which he has oversight.

    The problem is who would be suitable to be on the expert panel? Both GCSB and SIS have been pretty much dominated (and headed) by the military since they came into existence so it might be best avoid a panel comprising ex military employees or Foreign Affairs. One thought that comes to mind is perhaps respected former politicians? (if there are any!)

    Finally, on a related matter I am surprised that the main-stream media, when it learned that GCSB had been assisting the Police on the Dotcom case, that no-one has questioned why was GCSB providing assistance at all. The GCSB were specifically set up to collect signals intelligence against foreign governments, not to assist the Police with their investigations, let alone assisting a foreign police agency like the FBI. I wonder if the NSA assisted the FBI with the case? That would be interesting to know!

    Also, the NZ Police can apply for interception warrants anyway so why did they approach GCSB? Maybe it’s because the Police have to convince a Judge before a warrant is issued. GCSB don’t have this “obstacle”. I suspect the Police sought GCSB assistance because they would not themselves have been able to convince a Judge to sign a warrant for what is simply a foreign copyright infringement case, seeking extradition of a private citizen.

  4. Pablo on October 12th, 2012 at 15:04

    The FBI most likely did have contact with the NSA, and the NSA with the GCSB. One explanation is that Dotcom was already being monitored by the NSA at the FBI’s request well before he arrived in NZ. The issues with his business is that his cloud attracted jihadists and organized crime as well as music and video downloaders. Anonymity of uploads and downloads in the cloud impeded US government countermeasures, and his lack of cooperation with US authorities in order to mitigate those concerns is what caused him to fall into the US bad graces.

    Since he lived in Hong Kong prior to gaining residence in NZ, the FBI request to the NSA to begin to electronically monitor Dotcom most likely began during that time. When Dotcom moved to NZ permanently, the responsibility for monitoring him would have shifted to the Echelon partner responsible: the GCSB. Since Dotcom was not granted residency until a month after he arrived, that gave the eavesdropping hand-off legal cover.

    That raises the question as to why the Police got involved. The FBI found a foreign police agency amenable to executing extradition and seizure warrants against a resident foreign national (Hong Kong would have been reluctant to do so for a number of reasons).

    That agency was the NZ Police. NZ Police and GCSB legal advice might have been confused about his residency status during the month after he arrived, but by late December 2010 his status was formalized. Bad legal advice and confusion is said to be the reason the GCSB was engaged by the New Zealand Police to monitor Dotcom in the weeks leading up to his arrest in January 2012.

    But if an NSA request was already in place that had Dotcom being monitored by the GCSB as part of an Echelon agreement on a case that began before Dotcom’s arrival in NZ, then the Police request was superfluous unless it wanted evidence that was not part of the Echelon agreement on monitoring Dotcom. Perhaps the cops thought that the GCSB could expand its monitoring of Dotcom without regard to his residency status because of the prior monitoring abroad and the Echelon handoff to the GCSB once Dotcome moved to NZ.

    I should note that the US government considers intellectual property theft and copyright violations to be a threat to the national security. The Obama administration argues that the damage done to the US economy by these economic crimes undermines the security of the Republic. In a post 9-11 Patriot Act environment, the expansion of the concept of “national security” has eased the way for the overlap of espionage and law enforcements agencies in pursuit of cases against non-state economic actors on national security grounds.

    Thus the GCSB is justified in saying that its monitoring of Dotcom was legal under the terms of the Echelon agreement regardless of the legality of the Police request under NZ law. Since the NZ government shares the US view that copyright and intellectual property crimes are injurious to the national interest, and hence of its security, it would seem commonsensical to agree to the NSA handoff to the GCSB with regard to Dotcom.

    Why the SIS was not given the Police request once Dotcom received residence is a matter of conjecture. The GCSB could have asked the SIS to assume the Police request using GCSB assets. Perhaps the SIS was approached and refused to get involved. Perhaps the need to secure warrants was considered prohibitive by the Police.

  5. Hugh on October 14th, 2012 at 14:21

    I think the main problem is that the people charged with oversight can be independent, or they can be familiar with the intelligence community, but they can’t be both. The only way to get familiarity with the intelligence community is to be part of it. If you appoint people from the civil service or the judicial service or some other worthy but unconnected part of the state apparatus, you’ll get people who struggle to familiarise with all the foibles and particularities of the intelligence world. If you appoint people from inside it, they will of course know how it works and where to supervise, but their impartiality will always be in question because, since the intelligence world is so small, they will be investigating people they knew and worked with for years.

    As for the idea of an independent Minister, I agree that it might be better, but I think the post would end up being combined with others, so the Minister in question might not be able to devote the time you’re envisaging. I’m also not sure about the need for polygraph tests and security vetting. What is the risk factor here, that the person in question might be compromised by foreign intelligence services or organised crime or something like that? Frankly if you think that’s a risk, it should be compulsory for all Cabinet Minister, if not all MPs.

  6. Tiger Mountain on October 14th, 2012 at 14:42

    The more watchers watching the better I say! Previous prime ministers seem to have been almost entranced by admission to the exclusive surveillance club. Another snifter Helen? jolly good then, leave that pesky Zhaoui to us!

    a small correction to Chris post 12.10, 09:07.
    Muldoon’s ‘30 list’ actually named unionists alleged to be members of the pro Soviet Socialist Unity Party NZ. Some were, some were not, but Rob’s game was to taint legitimate union affairs by association with “subversive” organisations, under the SIS Act 1969.

    Muldoon also issued another NZSIS sourced smear list during the ’81 Springbok tour which mainly outed WCL (Workers Communist League) and CPNZ (Communist Party of NZ) members that held leadership positions in anti tour coalitions–MOST (Auckland), COST (Wellington) etc.

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