A matter of insubordination and contempt.

datePosted on 14:00, December 22nd, 2017 by Pablo

In her latest annual report, Inspector General of Intelligence and Security (IGIS) Cheryl Gwyn detailed that the NZSIS unlawfully collected Customs data on thousands of travellers from 1997-2016. This bulk collection was not done under warrant and was instead done on industrial scale: anyone who passed through New Zealand ports of entry during this time period can assume that their personal data was “harvested” by the New Zealand Security Intelligence Service (NZSIS) for its own purposes. Current NZSIS Director Rebecca Kitteridge defended the practice as a necessary part of fighting terrorism (which presumes that SIS concern with terrorism started in 1997 if her claim is correct) and maintains that legal advice at the time made the SIS believe that the practice of bulk collection was lawful. Think about that–warrantless indiscriminate collection of the personal information about thousands of people was deemed, if we are to believe the Director, lawful by the best in-house legal minds within the NZSIS. This happened even though the NZSIS Act was revised several times during the time in which the unlawful bulk collection occurred, so it is clear that when it came to warrantless access of traveler’s personal information, be they citizens, visitors, immigrants or officials, the senior staff in the agency thought that it was fair game–or at least thought that they could get away with it. One gets the impression that this is the same legal team that thought it was lawful for the GCSB to spy on Kim Dotcom after he gained permanent residency–a practice clearly prohibited in the GCSB Act in force at the time of the illegal wire-tapping. Perhaps it is time for these legal geniuses to step down.

IGIS Gwyn also noted that the NZSIS refused to cooperate, impeded and/or raised obstacles to her search for primary documents related to the unlawful monitoring of travellers as well as on other issues. Let’s be clear on this: New Zealand’s primary human intelligence agency deliberately impeded the work of the main oversight officer to which it is responsible. This, in spite of legal requirements to do so. The answer to this contempt for their statutory obligations may rest in the fact that under the current SIS Act the maximum penalty levied on the NZSIS for unlawful acts (of which obstruction is one) is NZ$5000–payable by the agency, not the individuals who authorised the unlawful acts or who refused to cooperate with the IG’s requests.

Although I find it very hard to believe, let us assume that SIS managers who authorised the mass tapping of Customs data were doing so in good faith while under the impression that the practice was lawful. If that is the case, they should be reprimanded and counselled on their statutory obligations. But those who obstructed or impeded the IGIS’s work need to be fired. In fact, if they are not, then Director Kitteridge needs to either resign or herself be dismissed. That task falls to Andrew Little, the Minister responsible for Intelligence and Security. Yet, although he has made some noises to the effect that he expects the agency to comply with IGIS requests, he has made no moves to punish those responsible for this blatant disregard for and defiance of the intelligence oversight process.

It is now abundantly clear that even though the IGIS is better funded and staffed and has better powers of proactive as well as post facto investigative authority (ostensibly including the powers of legal compulsion) than her predecessors, her office remains effectively marginal, if not subordinate to the bureaucratic logics internal to the agencies she oversees. These logics are founded on a deliberate opaqueness when it comes to transparency and statutory compliance and a deeply ingrained disregard for external advice, scrutiny or oversight. The old boys club will do as it sees fit to do regardless of the arrows slung by nosy outsiders. They are the gatekeepers and guardians of the secrets, and it is they who decide what is proper and what is not when it comes to legality and oversight adherence. Perhaps in this particular case the SIS managers do not like Ms. Gwyn or her somewhat unconventional career path on the way to becoming IGIS, but even if that is true their personal feelings have no place impeding the effective discharge of her duties.

The problem of ineffectual oversight of the NZ intelligence community (NZIC) highlighted by the IGIS’s frustrations with SIS obstructionism is rooted in a bureaucratic culture of impunity within the SIS and GCSB and in the lack of strong parliamentary oversight. The Select Committee on Intelligence and Security (SCIS) remains a highly partisan paper tiger devoid of real compulsion or enforcement authority. For their part ministers responsible for intelligence and security such as Andrew Little are all to often reluctant to confront spies about their excesses, when not prone to “bureaucratic capture” by them (a situation where an ostensible overseer becomes captivated by the logics and rationales of  subordinates with specialised expertise in a given policy field, leading to a lack of critical appraisal and independent review of actions taken in that field). Some of this may be due to the history of politicization that surrounds the SIS, which often appears to serve the government of the day rather than the common interest (in which case Mr. Little’s soft response has a politically opportunistic basis). But most of the oversight failures when it comes to the NZIC is grounded in the lack of effective and enforceable legal authority granted to the IGIS and the SCIS.

The only answer to this culture of insubordination and contempt within the NZIC, in this case specifically the SIS, is to hold individuals legally accountable for their actions. For example, rather than levy paltry fines on the SIS for its unlawful activities, the fines should be increased 20 fold and levied against the individuals who either knowingly ordered the illegal project(s) and/or who deliberately obstructed, concealed, tampered with or otherwise impeded the IGIS investigation into their activities. Likewise, the SCIS needs to become a dedicated organ of Parliament with its own professional staff and dedicated funding so that it can be come an independent research and investigatory arm answerable but not subordinate to the government of the day. The political appointments at the top could remain as stands (five members, the PM and two members nominated by him/her plus the Leader of the Opposition and his/her one nominee). Or it could be revised to include leaders of parties who reach a significant electoral threshold (say, ten percent of the popular vote). Either way, the SCIS should be provided powers of compulsion under oath, arrest and other means of legal enforcement of its oversight mandate so that the NZIC understands that it answers to the people of Aotearoa via elected officials as well as the IGIS, not the other way around.

The new Labour government has a golden opportunity to promote effective reform of the NZIC armed with the justification provided by Gwyn’s report on the SIS. Much like rot, there is a culture of contempt as well as impunity amongst at least some senior staffers in the NZIC that needs to be extirpated and replaced by those who understand that in a democracy it is not the spies who determine what is lawful and what is not (or for that matter, what is secret and what is not), but instead it is the specialized oversight agencies entrusted by the people and grounded in law (such as when it comes to definitions of national security threats) who do so. But for that to be the case, the oversight agencies and mechanisms need teeth, and it is exactly that which continues to be missing from the current oversight scheme.

5 Responses to “A matter of insubordination and contempt.”

  1. Chris on December 22nd, 2017 at 21:13

    Have you considered the impact of modifying the legislation so that the Minister becomes financially / criminally liable if the NZIC does not achieve a clean audit? CEOs and Boards got really interested in compliance when they became liable as PCBUs with Health and Safety in the Workplace.

  2. Pablo on December 23rd, 2017 at 07:31

    Good point Chris. It may require some tweaking when it comes to fixing responsibility for unlawful acts, especially when they are historical nature and given the compartmentalised nature of many “dark” operations. But even holding middle managers liable for excesses would be a good start, and that should be replicated up the chain of command. My suggestion would be to make those who give orders criminally and financially liable for illegal actions taken under their watch.

  3. Geoff Fischer on December 24th, 2017 at 12:09

    Security services are wont to regard themselves as being above the law, and from a practical point of view they are, at least in New Zealand, because a private prosecution is the only way to bring them to account, and a private prosecutor will normally find it exceedingly difficult to obtain the necessary evidence.
    Having said that I don’t worry greatly about security services using unlawful means to gain intelligence.
    The more serious problem is when they seek to determine state security and foreign policy, engage in public propaganda to promote their policies, and take punitive action against dissenters.
    On 11 December the Financial Times told us that the New Zealand security services were in the business of formulating foreign and security policy in this country, and are also promoting public propaganda campaigns to advance their own particular political agenda.
    There are a couple of reasons why this enhanced and extended political role for the security services is not a good thing. First, because it undermines the democratic process by taking political power and authority out of the hands of elected representatives. Second, because it leads to a decline in the quality of intelligence. Quality intelligence only comes from a disinterested mind. It is not consistent with the process or the mindset within which policy is formulated and promoted to the public.
    So the actions exposed by the “Financial Times” will do double harm to a regime which has clearly lost its way.
    After matters reached this point in Chile, the security intelligence service was dis-established by its government. If Jacinda Ardern and Andrew Little want New Zealand democracy to survive into the next decade they should take the same decisive action.

  4. AVR on December 24th, 2017 at 16:56

    From what I’ve heard & read the SIS is less interested in serving the government of the day than it is in serving the politicians who best align with their beliefs (mainly pro-American, NZ would be beset by spies/terrorists if not for the SIS, communism is evil, in no particular order). Andrew Little might not be confronting them to avoid a series of leaks against his government.

  5. Concerned Citizen on December 27th, 2017 at 12:15

    After I read the article I remembered one of Kim Dotcom’s favorite tweets about the five eyes. Every line of his tweet is touched on in this article.

    5 Lies of the 5 Eyes
    ——————–
    We spy to keep you safe
    We spy to prevent terror
    We are the good guys
    We don’t spy on you
    What we do is legal

    However Kim’s tweet sounds innocent compared to hints in the article about the SIS getting involved in politics resulting in the government being reluctant to confront them over wrongdoing.

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