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The political logic behind National’s proposed GCSB reforms.

datePosted on 15:58, July 25th, 2013 by Pablo

This weekend there will be national protests against the National government bills amending the 2003 GCSB and 2004 TICS Acts. Although the protests have garnered broad support across the political spectrum, they are likely to turn into generic rant fests against capitalism, imperialism, colonialism, and assorted other maladies rooted in the war-mongering Zionist 9/11 insider white corporate propertied Trilateralist patriarchy rather than a focused argument against the extension of the GCSB’s domestic spying powers. That is because the organizers, in Auckland at least, are the usual suspects seen at pretty much every protest, and who have agendas that supersede concerns about espionage.

The dress code will largely be black, with Vendetta masks optional.

In a way it is natural for the so-called rent a mob to take charge of the anti-GCSB protests. After all, they have the organizational capability, collective commitment and personal experience in doing such things, so who can blame them if they attach a few other grievances to the major subject of the protest? Who else can pull together major rallies on short notice, including the logistics of using public spaces, channeling marchers, making banners, supplying audio equipment and providing speakers? Most of those who have comparable skills are not exactly the types who would want to be part of such a “progressive” demonstration, and certainly would not want to be associated with the organizers of these protests (I am thinking of church and conservative groups here).

Having said that, this post is about what is likely to be a very effective National strategy for getting its proposed reforms passed in spite of the groundswell of opposition to them. It works like this:

National introduced reforms that grossly expand the GCSB’s powers of domestic espionage, using changes to the TCIS Act and the need for “infrastructure protection” as part of that new charter. It threw in some very minor cosmetic changes using the Kitteridge Report as a point of reference. It went for the overreach, proposing to allow, with cabinet approval, the GCSB to spy on behalf of agencies that have nothing to do with national security as well as conduct warrantless espionage on foreign entities and persons, to include NZ citizens employed by foreign firms and agencies (be they diplomatic missions, NGOs or private firms). It demands that telcos provide apriori backdoor access to their cable infrastructure for the purposes of both targeted and meta-data mining.

There is much more but this is the gist: it no only retroactively legalizes the illegal spying done on Kim Dotcom. It extends the scope of that type of spying much further. And as before, all of the domestic data collected under the new Acts can and likely will be shared with foreign intelligence partners, particularly those grouped in the 5 Eyes network.

National knew that Labour and the Greens will oppose the Bills for political and principled reasons, respectively, but does not care because it knew that it only had to win over Winston Peters or Peter Dunne to secure passage of the legislation. Since both of these one man shows are political opportunists at best, a few bones thrown their way in exchange for minor concessions was seen to do the trick.

As it turns out, Dunne leapt/caved first. In exchange for more cosmetic changes in oversight and reporting (none of which fundamentally alter the way in which the NZ intelligence community operates or the scope of its operations), the setting of a 2015 date for a general review of the NZ intelligence community and one significant backdown (the removal of cabinet authorization for GCSB assistance to agencies other than the Police, SIS and NZDF, which will now have to be authorized via legislation), Dunne has pledged his vote for the Bills. They can now pass essentially intact.

A brief aside: It would have been worth considering allowing the GCSB to render assistance by charter to agencies such as Customs and Immigration as well as the SIS, Police and Defense because they clearly have a national security role. Moreover, it may not be widely understood but the GCSB offers more than equipment and technicians to its counterparts. It has linguists, interpreters, engineers and other specialists in its ranks who can be of use to domestic security agencies on a case by case basis. The Dunne concessions do not address the how, why and when of any of this.

Getting back to the main theme, National knows that by pushing a maximalist line with regard to the expansion of GCSB powers it could accept something moderately less without discernible harm to its overall intent. Besides Dunne’s and Peters’ venality, it relies on generalized public apathy regarding the issue (although it must have been surprised by the extent of opposition that eventuated, especially from high-profile groups and persons), and it knows that it can dismiss any opposition as naive, politically motivated or both (which John Key has now done, and which this week’s protests will confirm in the minds of those supportive of or undecided about the proposed changes).

National also knows that should there be change of government in 2014, it is unlikely that a Labour/Green coalition will have intelligence community reform as a priority. If its modern history is any indication Labour will be quite comfortable with the amended legislation. Recall that it was under the 5th Labour government that most of the dubious GCSB spying on 88 NZ citizens and residents was done, and Labour will be able to use the revamped GCSB powers for its own purposes should it feel the need to. It is naive to believe that different governments do not have different intelligence priorities, something that is manifest in intelligence agency tasking.

One only needs to think of the role of the SIS in the Zaoui case and the suspected role of both the SIS and GCSB in the Urewera case to understand the concept as well as Labour’s disposition when it comes to such things. With National the shift in intelligence priorities is seen in its focus on commercial relations, to include patent and copyright issues that have little to do with national security but all to do with alliance relationships. Either way, governments call the shots when it come to intelligence priorities.

Labour and the Greens will have reversing other National policy reforms as the first order of business, be it the Holidays Act, aspects of the Employment Relations Act, issues connected with Health, Education, WINZ beneficiaries, public sector employment, economic use of public lands, etc. That list has far more immediate domestic political impact than revisiting the GCSB and TCIS Acts, especially if the expanded powers granted the GCSB are used with a modicum of discretion and selectivity.

Should Labour and the Greens assume government in 2014, they are saddled with running the 2015 general inquiry about the NZ intelligence community. That will take public time and political capital, which leaves less of each for the promotion of other initiatives. This could leave a Labour/Green government spread thin when it comes to imposing legislative and policy agendas, especially when considering that the partner’s priorities do not universally coincide in the first place (less so when other minority parties are involved). That could undermine the stability of the coalition, wreak their overlapped policy platforms, make for internecine conflict and set the stage for a National return to government in 2017.

Barring some unexpected reversal of fortune in the next few weeks, when it comes to domestic espionage and the GCSB’s expanded role in it, what we have here is a done deal. The Bills will pass. There will be more spies amongst us.

National’s short-term political logic looks to have proven correct, so far. Time will tell if its longer-term strategy will pay off as well.

11 Responses to “The political logic behind National’s proposed GCSB reforms.”

  1. Chris Waugh on July 26th, 2013 at 12:14

    Ah, this is a much healthier comment thread than that on the Managing Expectations post.

    My problem, Pablo, lies here:

    “especially if the expanded powers granted the GCSB are used with a modicum of discretion and selectivity.”

    Can we trust them to exercise their new powers with discretion and selectivity? If we can trust them, should we? I tend to think that government agencies, especially those involved in law enforcement and security, should have very tight restrictions on their powers and should be very closely monitored to ensure they don’t abuse those powers, not on the assumption that they’re staffed by Bad People, but because history is littered with examples of the bad things that happen when security forces get loose. I don’t see anywhere near enough oversight in this GCSB Bill, but I do see plenty of scope for abuse.

    This is an example of one of many things – ever more heavily armed police, expansions of powers, an ever more obvious authoritarian streak in this current government, and more – that suggest to me a trend toward small-f fascism by stealth. If we’re not careful we might find ourselves very uncomfortable with the state our grandchildren inherit.

    On the plus side, it was amusing to read in today’s Herald that 52% of people believe Kim Dotcom and only 34% believe John Key of their respective claims as to whether or not Key knew about Dotcom before his arrest. It’s also comforting to see the wide range of opposition to the GCSB and TICS Bills, including establishment types like the Law Commission. Perhaps this will become big enough an issue that a hypothetical future Labour-Green coalition will have to fix it up.

    Still, as you point out, Labour’s record doesn’t inspire confidence.

  2. Pablo on July 26th, 2013 at 13:21

    I agree Chris, on both counts. This thread is bound to be better than the last one. Between that dude from Thailand (who looks to be the habitual troll known as Paul Scott, apparently on holiday) and Hugh, it was doomed pretty much from the get-go.

    You are also right that security and intelligence agencies need to be on a tight leash. I have argued for this and for the need for independent intelligence oversight for well over a decade, so it is both amusing and welcome to see others now jumping on that bandwagon. I was a lonely voice for a long time.

    When I wrote about GCSB discretion and selectivity under the new legislation I was referring not so much to how the GCSB might choose to exercise its new found powers but to Labour’s reaction to things being done quietly rather than egregiously.

    Today Shearer said that if Labour wins next year the Act will be repealed and replaced, but only after the inquiry is held and recommendations are made as a result of it. That means the any legislative change would not occur before late 2015 at the earliest, by which time many things will have happened (including a leadership change) that could impinge on Labour’s approach to the issue.

    I am disappointed that no one has seriously brought up the issue of removing intelligence oversight to Parliament as I have outlined in recent months, something that indicates to me that most political parties will accept half measures rather than a full review of and change in how the intelligence community works and is held accountable.

    Interestingly, David Cunliff sat in the front row of the Mt. Albert anti-GCSB Bill meeting last night and rose to give an impassioned (some might say contrived) speech condemning the Bills while the other two Davids–Parker and Shearer–stood silently in the back of the hall. Hone was there of course, and the usual people got up to make speeches along the lines I mention in my first paragraph above rather than ask questions. The retired judge who MC’d the affair (who I thought was quite good), worked hard to try and stifle them but eventually worked in concert with jane Kelsey and some Sikh fellow to cut them off. ‘Twas a pity because the speech makers outnumbered the questioners, and one of the latter was a young teen who keenness outweighed his comprehension of the matters at hand.

    All in all the meeting came off as I expected that it would, and gives a hint as to what to expect on Saturday.

  3. Chris Waugh on July 26th, 2013 at 15:20

    I would love to see this inquiry happen, it would be great to have these issues properly debated in public. But yes, can we trust Labour? How much can the Greens realistically hope to achieve?

    I suppose Labour could continue the self-destruction and the Greens continue to mainstream themselves until the Greens take over as the major centre-left party, but next year would seem to be a bit too soon for that to happen.

    I noticed the Herald’s comment on the placement of the Davids. Your comment has me wondering what, if anything, this may portend.

    As for “a young teen who keenness outweighed his comprehension of the matters at hand”, I suppose we all have to start somewhere. Let’s hope that as he involves himself in the issues he manages to acquire an education.

  4. Pablo on July 26th, 2013 at 16:11

    Yeah, it was good for the kid to have a go but he was the first to be selected in the Q&A session and it seemed like his being chosen was a sop of some sort or perhaps an icebreaker. From my perspective Cunliff was clearly posturing while the other two were just there to be seen (as were a whole gaggle of lefties of various persuasions).

    There was also an interesting scene after the session ended where Dotcom’s security prevented some individuals from getting close to him. They had clearly scoped out who they thought might be unhinged and made certain to keep those folk off the stage. Some of those targeted are habitués at such events.

    If Cunliff rolls Shearer before the election, then perhaps Labour will embrace the review and repeal of the reformed GCSB and TICS Acts. But as I said in the post, that will expend a lot of energy that could be devoted elsewhere to good effect, and may not find the favour of a future Labour caucus in pursuing such a move at the expense of other priorities. If the Greens poll well in the election and get a significant presence in government, then perhaps the review and repeal movement will gain strength.

    But there again, we are talking two or more years before anything concrete will happen, and by that time institutional entrenchment and ongoing operations/investigations etc. will make it more difficult to reverse what was initiated under the new legislation. Add to that the inevitable intra-party and coalition ructions, and the chances of repeal under a Labour-led government are less than certain.

  5. Hugh on July 28th, 2013 at 15:18

    I think the chance of a reform under a hypothetical Labour/Green government is particularly low. The security services are just the kind of issue that would allow the Greens and Labour to satisfy their respective activist bases that they are not in thrall to one another. Labour would make some cosmetic tweaks, claim it’s fine now, and accuse the Greens of being extremists, while the Greens would propose a sweeping reform but have no clear electoral path to getting it through. (Except, as Chris says, replacing Labour as the main party of the left, which I find very unlikely, -especially- when they’re in coalition with Labour)

  6. Pablo on July 28th, 2013 at 15:37

    The hard fact is that there is hypocrisy in Labour’s stance, and their opposition to the Bills is more about political opportunism than principle. As I said in the post, Labour has a poor track record on these matters, having pushed the 2003 GCSB Act, 2004 TICS Act, the 2006 Counter-Terrorism Act and the Search and Surveillance Bill that become the 2012 S&S Act (I may have the dates of the last two slightly off). The Greens are principled in their opposition but then again they want to do away with the GCSB entirely and withdraw from Echelon/5 Eyes, which I see as impractical at best.

    The best hope for reform–and I have written at some length elsewhere as well as here about what the reforms should involve–is an early inquiry into the NZ intelligence community, moving it up from the proposed 2015 date as a matter of priority. The inquiry needs to invite the widest range of views, from nutter to insider (and there were a few of the former on display at the protests), so as to get a sense of the public desire as well as the practical necessities that need to be addressed.

    Since I do not think that will happen I sadly agree with your assessment.

    Subject for another post is the extremely alarming revelations by Nicky Hager that the NZDF spied on Jon Stephenson using the SIS and perhaps GCSB assets in Afghanistan. More than the proposed Bills being discussed here, the fact that the NZDF took it upon itself–it is unclear whether the PM was involved–to reword the definition of “subversion” so as to be able to equate “certain investigative journalists” with foreign espionage agencies and groups with extremists ideologies as targets of counter-intelligence operations (and for reasons that do not have to do with security threats) runs so deeply against the grain of democratic civil-military relations, military professional integrity, and freedom of the press so as to be utterly corrosive of those concepts.

    If Nicky’s revelations have any merit, this is going to open a whole new, and far more grave, can of worms.

  7. Mike on July 30th, 2013 at 07:29

    The illegal spying of the past is not a reason to change legislation. The speed limits should not be raised just because some people drive too fast.

    Laws allowing Government control are a one-way ratchet – they don’t seem to be undone even after the threat decays.

  8. Pablo on July 30th, 2013 at 09:19

    Mike: Agreed. You are preaching to the choir here.

  9. Steph on August 10th, 2013 at 23:25

    RE: “..they are likely to turn into generic rant fests against capitalism, imperialism, colonialism, and assorted other maladies rooted in the war-mongering Zionist 9/11 insider white corporate propertied Trilateralist patriarchy rather than a focused argument against the extension of the GCSB’s domestic spying powers…”
    You were so wrong about the flavour and content of the speeches at the Auckland protest which I attended. There were very good speeches focussing on what is wrong with the proposed GCSB Bill.
    “..The dress code will largely be black, with Vendetta masks optional..
    Again you were quite wrong. There was an evident cross-section of NZ society there, all colours, dress codes, ages, races.
    All your negative predictions & putting down of the people who organised the anti-GCSB nationwide protests ( Auckland, Wellington, Hamilton, Gisborne, Palmerston North, Nelson, Christchurch, Dunedin and other places..) reveal something about your scathing superior attitudes to other people doing good work. That’s what comes across for me from reading your article.

    Thanks to the Fonterra scandal delaying things in Parliament, the GCSB Bill hasn’t yet passed, It would only take one or two National MPs to decide that their ethical integrity is worth more to them than a career as a National MP, and cross the floor, and the Bill cannot pass. It is totally odious that only one vote of Peter Dunne, could enable this bill.

    I suppose to be consistent, you will be also rubbishing John Campbell’s nationwide campaign to collect the “nations biggest ever petition” closing August 19th, the day before Parliament opens again. If he collected 300,000+ signatures, the Government might just back down, like they have done in response to outraged recreational fishermen over the snapper fishing limits. Here’s hoping.!

  10. Pablo on August 11th, 2013 at 08:58

    Steph: There is such a thing as tongue in cheek writing. Had you read past the first couple of paragraphs you would have noticed that the thrust of the essay began after the piss take.

    The Campbell Live “poll” is an interesting exercise in advocacy journalism. However, there is irony in the poll questionnaire requiring people to supply private information in order for their vote to be counted in a referendum about State domestic spying powers.

    The claim on the form that “(t)his information is private and will NOT be linked to you personally” is quixotic. I am not sure what it means in practice, although I do understand that citizen-initiated referenda need to have names and voting status verified.

    In order for the poll to have valid status as a referendum, by law the information provided in the poll HAS to be linked to an eligible voter, something that is verified by the private details provided on the form being matched against stored electoral roll, identity and residency data.

    That means that in order for the poll to be treated as a referendum, TV3 will have to share this information with the State even though no where on the questionnaire is there a statement to that effect or requesting a person’s consent to do so.

    I guess the saving grace is that people will give up their personal details “voluntarily” in order to vote, and do not mind that type of State scrutiny of their private metadata.

  11. […] do — but doubly hard when your cause gets occupied by the Occupy movement, a point that Pablo made in one of his many excellent posts on this topic […]

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