Questions of the day.

datePosted on 13:46, March 10th, 2016 by Pablo

It seems that a fair share of people are concerned about the Intelligence Review Committee’s recommendation that the GCSB be allowed to spy on the private communications of NZ citizens and residents, most often with a warrant adhering to a three tiered process that requires the signature of the Attorney General and Judicial Commissioner for the most intrusive searches of private individual’s communications and, under highly exceptional circumstances (involving the combination of imminent threat and the need for immediate real time information), accessing private individual’s communications without a warrant.

This essentially codifies what is already being done in practice under the GCSB’s “assist” role whereby it can offer its technological capabilities under warrant to other government agencies when asked and can engage in warrantless spying on NZ citizens and residents if they reside abroad or work for or are associated with foreign-based entities like NGO’s, IO’s embassies, corporations, charities and CSO’s. Remember: this is targeted eavesdropping and signals intercepts, not mass (meta-) data collection or mass surveillance. The argument goes, and I tend to agree in part with it, that the NZ threat environment has become increasingly “glocal” or “intermestic,” meaning that the boundaries between global or international affairs and domestic and local concerns are increasingly blurred thanks to advances in telecommunications, transportation and economic transaction. Hence the need for targeted GCSB involvement in matters of domestic espionage when warranted.

In any event my first question is this: why, if people are concerned about the publicly-debated legal extension of the GCSB’s de facto “assist” role, are they not concerned about the use of military assets (specifically, the deployment of light armoured vehicles, a helicopter and troops) to assist the police in the Kawerau police shooting and siege? After all, the use in a police operation of combat designed equipment and soldiers trained and equipped  for external combat would seem to be stretching the proper, legally defined role of the NZDF even if we consider its civil defense responsibilities (which, if I am not mistaken, would only apply to armed intervention in instances of civil war or insurrectionist  (read: Maori) upheaval). Should there not be a clear separation of NZDF missions and police matters delineated in law? Pardon my ignorance, but is there? Is there a legally outlined “assist” role for the NZDF in armed confrontations like this latest incident and the Napier siege of a few years ago? Or is the operational relationship between the NZDF and Police more ad hoc, informal and circumstantial in nature?

Then there is the suggestion by Michael Cullen that future Intelligence Reviews could consider merging the GCSB and SIS. This would be akin to merging the NZDF and NZ Police. So my next question is: would we ever consider merging the NZDF and Police? If not, why would we consider merging a signals intelligence collection agency with a human intelligence collection agency?

There is more to ask. Most of what the GCSB does is foreign intelligence collection on behalf of the 5 eyes network. The domestic side of its targeted spying is relatively small in comparison and again, done in service of or in concert with domestic agencies such as the SIS and Police, most often under warrant or given the exceptions listed above. Otherwise and for all intents and purposes, the GCSB is a branch of the 5 Eyes on NZ soil, not a fully independent or autonomous NZ spy agency. Think of the amount of money that the GCSB receives from 5 Eyes, amounts that are believed to be well in excess of its NZ government-provided budgetary allocations (the exact figures are classified so are what is known as “black” allocations under he “reciprocity agreement” that binds the GCSB to the rest of the 5 Eyes partners). Think of the highly sensitive technologies it employs. When the GCSB was first established, was the equipment and personnel used completely Kiwi in nature? Is the equipment used today completely Kiwi in nature and are the people manning the listening posts at Waihopai and Tangimoana today all NZ citizens?

Given the network resources at its disposal, were the GCSB to merge with the SIS it is possible that the latter would be subject to institutional “capture” by the former. That would mean that the intelligence priorities and requirements of 5 Eyes could come to dominate the human intelligence priorities of the SIS. I am not sure that is a good thing. And if we consider that the separation of powers concept that is at the core of democratic practice should institutionally extend beyond the tripartite structure at the apex of the state apparatus (executive, legislature, judiciary), then centralising the most intrusive spying powers of the state in one agency answerable almost exclusively to the executive branch seems to be antithetical to that premise.

It could  be the case that the possibility of a merger is being floated so that the SIS and GCSB can concentrate on external espionage and counter-espionage, with the domestic intelligence function reverting wholly to the police (who already have their own intelligence units). But even then the GCSB will continue to have a role in domestic signals collection, so the result of the merger would mainly impact the focus and organisation of the SIS.

I was fortunate to have a private audience with the Review Committee. From what I have read in the report so far, much of what I recommended was ignored. Even so, I do believe that the committee tried to balance civil liberties with security requirements and take what is a hodgepodge of disparate intelligence legislation and craft a uniform legal framework in which the iNZ intelligence community can conduct its operations. Heck, they even have recommendations about the legal cover given to undercover agents, both in terms of the process of assuming false identities as well as in terms of their immunity from liability when discharging their undercover tasks (apparently no such legal cover exists at the moment or is patchy at best).

Although I was disappointed that much of what I recommended to the committee did not appear in the final report, I am satisfied that their recommendations are a step forward in terms of transparency, accountability and oversight. I realise that this sentiment is not shared by many observers (for example, Nicky Hager was scathing in his appraisal of the report), but to them the questions I posed above are worth considering. To wit: If you are comfortable with the military getting involved in domestic law enforcement in exceptional (yet apparently regular) circumstances, then what is the problem with the GCSB getting more publicly involved in domestic espionage in similar circumstances?

There is much more to discuss about the Report and I may well do so as I wade through it. For the moment, here is a good critical appraisal worth reading.

 

17 Responses to “Questions of the day.”

  1. […] And, Dr Paul Buchanan’s polemic on KiwiPolitico.com: Questions of the Day. […]

  2. Daniel on March 11th, 2016 at 07:05

    I have yet to fully read the report but I will say that apart from this just seeming like a farce this sounds like a demotion of the SIS in the order of things to me. I wonder if any of the dead wood will be put out on the street with this review and “centralization” of services and functions? Also if combining the GCSB and SIS why not roll the NAB in as well?

    Finally I too was a bit surprised to see military vehicles used in the recent siege. It struck me as overkill.

  3. Pablo on March 11th, 2016 at 08:00

    Daniel:

    The GCSB and SIS are collection agencies. The NAB is an assessment agency that is the end user of the different “products” produced by the GCSB, SIS and other intel shops.

    The SIS will remain separate and intact after this review. It remains to be seen if future reviews recommend a merger, in which case you may well be right about its demotion.

  4. Daniel on March 11th, 2016 at 14:31

    True the NAB is the “thinking” end of the process but that in itself is not to stop getting them all under one roof.

    Given the current fervor for restructuring/change management in govt its probably high time that the spooks got a look in.

    On a basic guess, if you combined all the main intel arms you could probably cut staff between 30% to 40% (some in admin and more mundane function but also in duplicated reporting lines in management), make huge saving in property and material and maybe get a more coherent security service out of the deal.

    The only caveat to the mechanics of the process would be a full and complete purge of all dead wood and a full rationalization of service and function.

    Any of the old guard left behind (and in this case I will declare bias and say that in my eyes anyone with a military intel, foreign intel or “gliding on” background would be considered dead wood due to the obvious “ideological issues”), in what would have to be for the obvious security reasons a siloed and NTK environment, would simply dig back in and create fiefdoms and therefore start the rot all over again.

    There could be some “exciting” opportunities in the future for ex security service staff now “on the market”.

    I say this as someone who has been through the change management process and lead more than one of them.

    I do have in my mind the little cautionary voice reminding me of how things like this have gone in the past. The CIA was originally supposed to a “centralization of services” and the more recent DNI was also in a similar vein (be it more directive) so I put this forward are more hypothesis than a likely outcome.

    But on the flip side, NZ does not have a competing mass of intel arms so technically such a rationalization would not create a toothless beast.

    What would worry me was that given how eager we are to stay in the “big boys club” how easy it would be for a newly formed NZ intel agency to be captured and beholden to five eyes interests. I wonder if Cullen took such things into account?

  5. Pablo on March 11th, 2016 at 14:46

    Actually, the GCSB, SIS and NAB are all located in Pipitea House, which was purpose built as a secure site. There was a push after a 2010 review to improve efficiencies and that was one of the recommendations–centralise the major players in one building. The others had to do with bringing in fresh blood and perspectives but I am not sure that has progressed quite as they would have liked. What is clear is that there is bureaucratic resistance to change, evident in the failure of the GCSB to deliver its compliance report (stemming from the Kitteridge Report) on time (it was due last June and still has not ben delivered.

    If you look in the KP archives you will find the post I wrote about my meeting with Cullen and Reddy and my recommendations to them. They do not appear to have taken them on board, but then again organisational change was not part of the remit for this Review.

  6. Daniel on March 14th, 2016 at 07:09

    The irony of all this is that a genuine organisational change would actually make these agencies better and more effective. It appears to be resisted because of the usual reasons.

    While I do think having them in one building can help foster a single identity, I was more referring to one management/control structure when I mentioned “under one roof”.

    If you have ever shared a space with another organisation you will know how they can be sitting on the other side of the partition but actually be a million miles away.

    I do remember your earlier post about the Cullen/Reddy report and I think you summed it up with the word “Whitewash”.

  7. Pablo on March 14th, 2016 at 12:52

    Daniel:

    Given who was on the committee, there was bound to be a bias in favour of institutional continuity and incremental reform. That is basically what we got in their report. What was interesting was the concerns of the agencies under review were so strongly reflected in it, to the point that the concerns of outsiders (organisations as well as people like me) were subordinated to them. Perhaps future reviews will strike a different balance.

  8. Idiot/Savant on March 15th, 2016 at 11:44

    Should there are not be a clear separation of NZDF missions and police matters delineated in law? Pardon my ignorance, but is there? Is there a legally outlined “assist” role for the NZDF in armed confrontations like this latest incident and the Napier siege of a few years ago

    There is: s9 of the Defence Act 1990:

    http://www.legislation.govt.nz/act/public/1990/0028/latest/DLM205887.html?search=ta_act_D_ac%40ainf%40anif_an%40bn%40rn_200_a&p=1

  9. Daniel on March 15th, 2016 at 11:52

    This is interesting as it was reported in the papers that NZDF personnel were helping to provide security for the TPPA roadshow.

  10. Pablo on March 15th, 2016 at 13:02

    Thanks I/S (and for helping me spot the typo).

    That looks like a pretty broad mandate for the NZDF to intervene domestically, with force if deemed necessary. Given that, it is no surprise that domestic espionage powers have grown.

    The question is: where was the opposition to the NZDF domestic role when the Act was passed? Or was that more bipartisan consensus?

    That part of the Act may be worth re-visiting with an eye towards narrowing it.

  11. Kabull on March 15th, 2016 at 16:21

    I’m sure the LAVs were provided to assist the Police at Kawerau only to provide protection for police officers in the event a ‘raid’ on the house was necessary. That was the only reason they were used in Napier. I really doubt there was any consideration given to using the LAVs offensively.

  12. Korakys on March 15th, 2016 at 16:28

    Not my favoured option, but why not fold the GCSB into the military (they already have their own HUMINT section) and fold the SIS into the police.

    I mean how useful is SIGINT and the like to domestic surveillance anyway?

  13. Pablo on March 15th, 2016 at 16:47

    Kabull:

    I thought the same thing but got to wondering about the ROE regarding the use of the NZDF for domestic purposes. I/S has kindly provided the pertinent section of the authorising Act in his comment above. Too broad, in my mind.

    Korakys:

    Short answer: the GCSB does a host of things that are non-military. Bringing them into the NZDF fold makes them subject to jus in bello and a military chain of command, which they are now excluded from. No government wants to self-limit in that way, to say nothing of the agency involved.

    The SIS has no law enforcement powers, whereas the cops are the lead domestic law enforcement agency. Folding them into the Police has the effect of “militarising” them–para-police death squads, anyone?–so it is best to separate and constrain what they can and cannot do. Plus the cops have their own intel shops, and those communicate with the SIS on a daily basis. Best for them to focus on different things.

  14. Geoff Fischer on March 18th, 2016 at 10:34

    It was obvious when the LAVs were purchased that they would have very little application in conflict zones where they are vulnerable to even quite crudely constructed IEDs.
    Their only useful purpose is in the civil sphere, in quelling or containing dissent. So the Kawerau incident is a case of the vehicles being fit for purpose, and used as originally intended.

  15. Matt on April 4th, 2016 at 14:31

    Pablo, if you read carefully the section that I/S provided, you will see that NZDF is limited to being nothing more than disciplined bodies on the ground without express ministerial permission which must be reported to Parliament. They have broad scope to *help*, but very, very narrow scope to exercise their particular, err, talents. In practice, the use of the military for forceful termination of an event has only once come close to actually happening: Aramoana, where the SAS were stood-by but the ATS resolved the situation before military intervention was required.

    The police use NZDF helicopters frequently, for tactical operations and for SAR. The alternative to the deployment of the LAVs would be the purchase of Bear Cats, or similar, which I think would be even worse. The LAVs will not be carrying ammunition, and the soldiers therein will not be armed; unless, of course, the SAS or Commandos have been activated in accordance with the law because the STG cannot bring a situation under control.

    Why does it bother you so that the military can provide broad assistance to civilian powers? Do you get twitchy about the use of National Guard units in disasters? Coz that’s the analog.

  16. Pablo on April 4th, 2016 at 14:48

    Thanks Matt, for the clarification. I did take note of I/S’s link and am glad to see that there is legal cover on the NZDF “assist” role when it comes to Police matters.

    My reason for bringing up the analogy is that I see the GCSB domestic “assist” role in similar terms so long as it is strictly defined and limited by law.

  17. Geoff Fischer on April 4th, 2016 at 15:10

    New Zealand is not the United States. Conquest, military occupation and confiscation are still fresh in memory, the British Head of State remains Head of State of New Zealand and nationalist sentiment is perpetually in conflict with the authority of the state. Those who were present at Maungapohatu last Saturday for the 100th anniversary of the arrest of Rua Kenana and the killing of Toko will have been left in no doubt that domestic military operations are a sensitive issue in this country. and not only for Tuhoe. Tainui, Te Arawa, Ngati Porou, Tuwharetoa and Whakatohea were also present and Rangiriri, Orakau, Pukehinahia and Waerenga-a-hiku were just some of the historical clashes recalled on the marae atea. So the New Zealand government is well advised to keep a low military profile. “No booted feet in the Urewera” means no LAVs, and that rule should extend throughout the back country of the upper North Island.

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