Suggestions for the Intelligence Review Committee.

datePosted on 14:40, August 27th, 2015 by Pablo

Readers will know that I expressed my unhappiness with the composition of the Intelligence Review committee and my belief that, save some cosmetic changes, a whitewash of the NZ intelligence community (NZIC) could be in the offing. Although I spoke with several people who were making public submissions to the committee (the deadline for which has passed), I decided not to waste my time given the press of other business and likely futility of doing so.

To my surprise, a month or so ago I was invited to speak privately with the committee, which for those who do not know consists of Sir Michael Cullen and Dame Patsy Reddy. The terms of reference for the committee are quite narrow on the face of it but I took the view that they can be interpreted more broadly in the context of the Review. The two major terms of reference focus on whether the legislative frameworks governing the New Zealand Intelligence Committee (NZIC, and GCSB and NZSIS in particular) “are well placed to protect New Zealand’s current future national security, while protecting individual rights; (and)..whether the current oversight arrangements provide sufficient safeguards at an operational, judicial and political level to ensure that the GCSB and NZSIS act lawfully and maintain public confidence.”

More specific matters subject to the Review include whether the 2014 Foreign Fighters Act should be extended or modified before its March 31 2017 expiry date; and whether the definition of ‘private communication’ in the GCSB legislation is satisfactory.

I decided that I would accept the opportunity to speak with Sir Michael and Dame Patsy in spite of my reservations about the Review process. Without going into the details of the meeting, here is some of what I outlined to them.

I started off by noting that much of the commentary about the NZIC was mistaken in its classification of the GCSB as the “foreign” spy agency and the NZSIS as the “domestic” spy agency. I pointed out that the proper classification was that the GCSB is the signals and technical intelligence agency (SIGINT and TECHINT in the parlance) and that the NZIS is the human intelligence agency (HUMINT). Both have domestic as well as foreign espionage roles, although these needed to be explicitly detailed in law and circumscribed as much as possible when it came to the domestic side of the fence.

I continued by stating that the Countering Foreign Terrorist Fighters Act needs to be abolished. People who commit violent crimes abroad, particularly war crimes and crimes against humanity, can be detained and/or charged under criminal law and extradited to face justice in the jurisdictions in which the crimes were committed. If that is not possible they can be tried by the International Court of Justice in The Hague. This is true whether they are identified as individuals or as members of a group that commits atrocities. So long as there is evidence of involvement in criminal acts, there currently are means of ensuring they face justice without politicising the cause.

I said no to the idea of revoking their passports to prevent their return and noted that the presumption of innocence should apply to returning fighters who are not implicated in atrocities even if they were involved in foreign conflicts. I also noted that according to Western intelligence estimates, less than 50 percent of those who travel to fight with ISIS return alive, and of those the vast majority are too traumatised to consider committing acts of violence on home soil.

We had a lengthy discussion on what constitutes a “private communication.” The 2014 GCSB Act states that it  anything a person could reasonably expect to be public in nature, say a Twitter or Facebook posting or even email on providers such as Google or Yahoo that data mine their clients information for advertising purposes (all of which is voluntarily agreed to by clients under the terms of service, which is what they are required to tick off on before setting up an account). I feel that definition is too vague, broad and permissive when it comes to GCSB powers of electronic surveillance. My bottom line is that a private electronic communication is akin to a dinner table conversation: that which a person has a reasonable expectation will not be repeated or listened to by people outside of the immediate context in which it was made.  I noted that personal data mining for advertising purposes was a bit different than the State doing so for security purposes–especially when it does so without consent (since I doubt many people ticked a box allowing the GCSB or other intelligence agencies to monitor their private communications).

If the authorities cannot read our snail mail letters without a warrant or consent, I do not believe that they can read our electronic mail without such either. That still leaves the issue of meta-data and bulk collection, but as I have written before, I do not believe that the latter is equivalent to mass surveillance for technical as well as legal reasons.

With regard to legislation, I suggested that the Search and Surveillance Act needs to be narrowed because it has been expanded too much as a result of post 9/11 hysteria. I also suggested that the GCSB Act be reviewed and narrowed with regards to its powers of domestic espionage. Although I have no real problem with its “Assistance” role when it comes to aiding the NZSIS or Police on home soil, and fully understand that the Act needed to be upgraded to cope with cyber espionage, crime and warfare, I believe that its powers of warrantless surveillance on NZ soil are too broad and intrusive. Narrowing the GCSB Act would still allow the GCSB to engage in defensive measures and counter-espionage with or without the help of its sister agencies, but it would prevent it from conducting offensive operations against NZ domestic targets without a warrant.

Most of what I had to say about legislation consisted of a proposal that the NZSIS Act be amended so that it is stripped of its domestic espionage and security vetting functions. Those should be moved to the NZ Police (who need to be resourced accordingly), since the Police already do much domestic spying and background checks. Perhaps even an FBI or MI5-type civilian domestic espionage agency could be created that answers directly to Crown Law if not the Attorney General (fully understanding the political nature of the latter). The reason for this proposal is that as things stand the NZSIS does foreign human intelligence gathering, domestic human intelligence gathering, counter-espionage and security vetting. An agency of 300 people (counting clerical staff) might be able to do one, perhaps two of these tasks adequately, but it simply cannot do all four anywhere close to efficiently or effectively. Since the type of signal and technical intelligence collected by the GCSB and its foreign partners can only paint part of any given intelligence picture, it behooves the NZSIS to complement that with an autonomous human intelligence capability that focuses on areas of foreign policy priority or concern. It is important to know about the context–as in culture, mores, norms, personalities, interests and attendant modes of behaviour–in which signals and technical intelligence is obtained, and that should be done independently by NZ in areas of priority interest (say, the South Pacific).

In terms of oversight I noted the gross inadequacy of the current “arrangements.” I suggested that there  needs to be better parliamentary and judicial oversight of the NZIC, and that this has to be proactive as well as retroactive in nature. If I was running the show I would leave the Inspector General of Intelligence and Security (IG) as the in-house executive branch oversight mechanism, perhaps by re-locating the IG office to Crown Law jurisdiction and out of the immediate control (via resourcing) of the NZIC and Prime Minister’s office (DPMC). I also have little issue with the current state of the Commissioner of Warrants and Minister of Intelligence and Security signing off on warrants.

Yet I spent considerable time explaining how important a division of powers is when it comes to intelligence oversight in order to avoid bureaucratic “capture” by the NZIC. I proposed that a dedicated parliamentary committee on Intelligence and Security be created, as an agency of parliament with its own permanent staff, that would have proactive and retroactive powers of compulsion under oath. This agency would serve as the non-partisan, apolitical support base for the Select Committee on Intelligence and Security comprised of politicians, and that the Select Committee include members from all parties that receive over 5 percent in the previous election distributed proportionally, with the PM serving as the tie-breaking vote.

Both the Select Committee and permanent staff would have the ability to investigate operational matters and scrutinise classified material rather than rely on unclassified summaries provided by the Directors of the GCSB, NZSIS and other intelligence shops like the NAB. This would require them to sign secrecy oaths but so be it–if they want to sit at the table that is the price the politicians will have to pay (the permanent staff of the committee will of course have been security vetted in order to receive clearance to handle classified material). I fully realise that all of this will cost money and encounter bureaucratic and political resistance, but I think it is very important to undertake these reforms in order to prevent the type of NZIC excesses that have brought us to the current moment.

In order to resolve disagreements  and arbitrate disputes between the NZIC, the IG and parliamentary committee on matters of lawful and unlawful NZIC activities, I suggested that an intelligence tribunal or juridical review panel be formed using High Court justices, QCs or other distinguished jurists. This would serve as the court of last recourse and final appeal on all matters pertaining to the legality of NZIC operations.

Finally, I reiterated my belief that Edward Snowden provided NZ with the opportunity to re-negotiate some of the terms of agreement with its 5 Eyes partners. These will not disrupt the core of the agreement, much less result in NZ’s exit from 5 Eyes. But it could allow NZ to withdraw from conducting front-line offensive intelligence operations against states that have great leverage on it, be it in trade or other areas vital to NZ’s well-being. Thus, for example, NZ could ask to not take the lead in spying on the Chinese in the South Pacific simply because if that were to be made public the Chinese would have to respond even if just to save face (and I believe that the need to respond involves a heck of a lot more than matters of national pride or “honour”). The PRC cannot retaliate to any punishing extent against the other 5 Eye partners given the strategic leverage these have relative to it. But little ‘ole NZ is very vulnerable on that score and could be an easy whipping boy for the Chinese should they want to get the message out that impudent small nations mess with it at their peril.

This re-negotiation does not preclude from NZ doing defensive spying and counter-espionage against any state or non-state actor. But it keeps NZ out of the line of fire of aggrieved large powers should the nature and extent of 5 Eyes espionage continue to be publicly exposed thanks to the Snowden material.

The response of the committee was polite but succinct: the last suggestion was beyond their terms of reference.

 

14 Responses to “Suggestions for the Intelligence Review Committee.”

  1. Korakys on August 27th, 2015 at 21:10

    Pretty reasonable suggestions you have there Pablo. I would only strongly disagree with your point on light-footing around the PRC. The great powers are the only nations that we really have good reason to spy on. Should we only spy on nations that don’t have significant leverage over us? Doesn’t make much sense to me.

    As for my own ideal system I would a single Department of Intelligence with 3 divisions sorted by type and not geography (GEOINT/IMINT, SIGINT and other tech stuff, and HUMINT). Each division could be further broken down into specialised groups like so:
    GeoNZ: Civil land and ocean and Military [I don’t have much knowledge in this area].
    SIS: Vetting (working with police), foreign (working with the Army’s HUMINT group and MFAT), domestic (with police) and counter-espionage (with MFAT).
    GCSB: Military section; Embassy section; Internet security section; Cable, HF and satellite tapping section.

    At the top I think the AG would be the best minister to be dual-hatted with this new department, the PM would be the worst of course. A parliamentary committee should go alongside this with, lets say, the PM, AG, LotO, and 1 additional member from each of the 4 largest parties in parliament – that makes 7 total.

    Limit the 3 directors to a max of only one being an ex-military officer at a time.

    Keep the Inspector-General, but give them a wikileaks-style encrypted, anonymous dropbox so concerned intel workers can dob in their own agencies before things get bad enough that they go to journalists. Also the IG should have free-reign to personally go into any saferoom at any time and read any document, that part seems obvious.

    An Intelligence Court with pre-cleared judges ready to be called on [has any appellate judge ever failed a clearance?] seems a good idea.

    My main point is divide intel workers by speciality, not jurisdiction (domestic/foreign, civil/military). The police, military, embassies, Waihopai, Chorus, LINZ, etc can all act as collection points that each group can access as permitted/required. The management and some analysis of the data is centralised, but the collection is not. The law surely doesn’t allow this, but laws can be changed.

  2. Pablo on August 28th, 2015 at 07:56

    Korakys:

    Although your suggestion has merit I am very wary of putting all intel assets in one house. Here too a division of powers theory needs to apply so as to avoid concentrations of authority in a very small number of senior managers. Otherwise a specialised functional grouping within agencies seems reasonable.

    My suggestion about re-negotiating around the margins of the 5 Eyes agreement is based on NZ exposure should public revelations of its activities continue to emerge. NZ can continue its work in countries and on subjects that do not risk punishing retaliation–the example of spying of Latin American diplomatic cables is one such area, as is spying on North Korea. But, due to the lack of foresight of successive governments, NZ has become too economically dependent on China at the same time that it purportedly has a lead role in spying on it. Although I fully understand the reasons why NZ would want to spy on its largest trading partner (economic as well as military-diplomatically), I fear that it puts NZ in the unenviable position of being made an example should the extent of its operations become public. I have no doubts the PRC has a far idea of what NZ is up to within the 5 Eyes, but it is the publication of its role or operations that will for the PRC hand with regards to a response. And as I said, stepping back from a lead role vis a vis the PRC does not preclude NZ from engaging in counter espionage efforts against it.

  3. Quentin Todd on August 28th, 2015 at 08:12

    I thank you for you analysis and thoughts. I am of the opinion that the main area of concern for me at least, is related to QUOTE: ” In terms of oversight I noted the gross inadequacy of the current “arrangements.” I suggested that there needs to be better parliamentary and judicial oversight of the NZIC,… UNQUOTE

    I would be concerned if parliamentarians who are elected to an oversight position, may not be adequately prepared, or insightful enough to take on that role. I would be prefer a National Security Oversight Unit tasked with that role, made up of individuals who know the field, and have enough intellectual punch. it makes me nervous to hear party leaders having a say…are the mature enough, sensible enough?

  4. Daniel on August 28th, 2015 at 08:41

    Lucky You to get to have your say face to face.

    Best suggestion was moving security vetting to someone/somewhere better funded to do it.

    As anyone who has had to wait over a year and a half for a security clearance or has worked in an area where vetting is required to complete work will attest that having the process done quickly and efficently would solve a lot of problems.

    Also, and its a bit hyperbolic and outside the terms of reference I admit, but perhapes it time to ask if the current agencies are the best sutited to do the work they are tasked with or at the least consider purging all the dead wood and outdated organisational frameworks from the SIS and GCSB.

    My only concern about the whole review process is that neither agency is going to willingly accept a restriction on their powers and that politicians are also unlikley to be able to push such things through (hence I am somewhat aligned with your concerns that its all going to be a whitewash).

    The cult of secrecy is strong in these organisations and they will fight any attempt to lessen its powers.

  5. Pablo on August 28th, 2015 at 09:45

    Quentin:

    What I am recommending is a permanent agency of parliament–it could even be called the National Security Oversight Unit–that would underpin the work of the Select Committee. In that capacity it can give expert non-partisan advice to select committee members on intel matters. With that agency in place and expanding the select committee while requiring members to swear secrecy oaths will help “professionalise” their approach to intel matters.

    Daniel:

    Yes, I did feel fortunate to be invited for the private meeting, especially given my many public critiques of the way the NZIC operates.

    I completely agree that there needs to be internal organisational changes and a purge of the deadwood in the NZSIS and GCSB. But also remember that there are now 12 intelligence agencies included in the NZIC. There is certainly going to be internal resistance to change and a diminution of powers of any given agency, but the failures and flaws of the current organisational set up are no longer possible to ignore. Given that there are new Directors of the GCSB (acting) and NZSIS as well as a new IG (all women), perhaps this is the moment where change can be pushed through. I can only hope that the Review is a catalyst for that.

  6. Andrew R on August 31st, 2015 at 07:18

    I still do not understand why SIS and GCSB need to be secret. Compared to, eg, the police. The police is a organisation that is open, albeit it has confidential investigations. That gives the police way more openness in their operations.

    The only reason I can see for the obsessive secrecy is that tgere are a whole lot of fantasists, including politicians, who have read too much James Bond.

  7. Pablo on August 31st, 2015 at 07:34

    Andrew:

    The need for secrecy stems from the nature of the subject materials collected by intel agencies and the means and methods by which they obtain them. Since these involves matters of the State that impinge of the security and reputation of the Nation, governments are loathe to shine the light of transparency too deep into the machinery of espionage or intelligence collection (the latter is not always cloak and dagger type of stuff).

    For example, say a politician in a foreign state was taking “facilitation payments” from the SIS to reveal the content of the negotiations his/her government were having with the PRC on a matter of sensitivity to NZ and its allies. The information provided from the inside would be helpful in developing contingency plans or a counter strategy to the Chinese initiative. The helpful politician could not only report on the proceedings in negotiations but could assist in the placement of listing devices directed towards that end, especially in secure areas that only s/he had access to given his/her political status.

    This is not as fanciful as you might think, and it is just a small type of scenario that prompts States to err on the side of secrecy rather than openness.

  8. Jim on September 2nd, 2015 at 15:49

    I am a fluent speaker of Mandarin Chinese, learned from living in China for 3 years.

    I am considering applying for a linguist position in the NZ SIS. I was wondering if anyone on this thread would be able to answer the following questions.

    What would the nature of the targets be? Diplomatic communications? locally based Chinese businessmen?

    How active would the Chinese intelligence services be in NZ?

    How much would this position likely to pay and what would the career paths be from this position?

    Would this be an interesting role or would it be mundane translation work?

  9. Pablo on September 2nd, 2015 at 16:12

    Jim:

    NZSIS is a human intelligence agency. Your language skills would be helpful but you would not necessarily have a job as a translator/linguist. Mandarin speakers are needed in both the SIS and GCSB as the PRC is believed to deploy human and signals collectors in and around NZ and as such are priority targets for the NZIC.

    Although I am not privy to the inner workings of the NZSIS I would assume that it would be an interesting career for someone with a live mind and an interest in national security affairs and international relations. The lower end jobs may be a bit mundane but career progression should see more interesting jobs made available.

    Just one thought: my understanding is that the NZSIS is very much a “team player” and group logic sort of place, so free spirits and independent minded people who think out of the box are not welcome. Where you fit will be determined during the recruitment and vetting process.

    Here are some links to consider (if you have not already): http://www.nzsis.govt.nz/careers/intelligence-officers/
    http://www.nzsis.govt.nz/careers/
    http://www.nzsis.govt.nz/careers/employment-criteria-and-processes/

    Here is a site with comparative information on salaries etc. (although geared towards NZDF intel jobs): http://www.careers.govt.nz/jobs/public-order-safety/intelligence-officer/job-opportunities

    Also of interest might be this exchange: https://fyi.org.nz/request/top_secret_special_clearances

    Good luck!

  10. Jim on September 2nd, 2015 at 16:20

    Im still curious as to the likely targets. Why would China dispatch human and signals collectors to NZ and what would be the aim of the collection?

    Im just trying to get an idea of what the subject matter of my work would be and what to expect of it.

  11. Pablo on September 2nd, 2015 at 17:10

    Jim:

    Curiosity and entrepreneurship in research are generally considered to be good attributes for an intel officer. As a pre-employment exercise use them to get a better idea of why and what the Chinese might be interested in given NZ’s role in Western intelligence networks, the presence of dissident Chinese on NZ soil, and the commercial and technological secrets that might be kept here. That is just the domestic side-the SIS also does foreign human intelligence gathering, which is not limited to focusing on the Chinese.

  12. Quentin Todd on September 3rd, 2015 at 07:28

    Jim and Pablo

    Interesting discussion. I tried to get a position with the NAB twice. It is a difficult one, however I know the set requirements for a position that they want,is way too rigid – not fluid enough as you, Pablo, commented
    QUOTE:
    “…so free spirits and independent minded people who think out of the box are not welcome…” UNQUOTE

    Sad as I believe we need more people who CAN think outside the box. The security environment we are operating in is one where lines are being challenged to become more blurred.

  13. Jim on September 4th, 2015 at 09:17

    Ive actually had two failed applications with the NZSIS in my effort to turn my Mandarin into a career. The first time was for an Intelligence Officer, the second time as a Linguist. I’m disappointed as it could have been an interesting career, but the mediocre public sector salary, and what Im guessing is a very conservative organization would have put me off in the long term. Apart from that Im not convinced such agencies actually provide much of a useful service, either to the government or the wider public.

  14. Pablo on September 4th, 2015 at 09:41

    Sorry to hear that Jim. I assume that you had no issues in your past that tripped you up.

    One of the things that needs reform is the organisational culture within the NZIC, most importantly in the NZSIS. The KItteridge Report already mentioned dysfunctionalities in the GCSB, so it could be the case that what was mentioned in that report is just the tip of the iceberg and extends to other agencies as well.

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