Hamstrung from the start?

datePosted on 09:47, May 30th, 2019 by Pablo

The Royal Commission of Inquiry into the Christchurch terrorist attacks has begun its work. This represents an extraordinary moment in which to examine the mechanics of the event, i.e., how it was planned and prepared, who may have been involved beyond the perpetrator, the timeline that led him to the Masjid Al Noor and Linwood Islamic Centre on that fateful afternoon on the Ides of March, and who dropped the ball when it came to preventing the attacks.

The inquiry represents an opportunity to uncover the systemic, institutional and individual errors that together combined to produce a catastrophic intelligence failure on the part of New Zealand’s security authorities—not just the Police but the dedicated agencies that together make up the larger New Zealand domestic security community. These include the SIS and GCSB as lead intelligence agencies but also intelligence “shops” in places like Customs and Immigration, all of whom failed to see or ignored warning signs in the accused’s movements in and out of the country during the last five years and who may have been organizationally blind to or dismissive of the threat that he represented to New Zealand society.

The inquiry is needed because the Christchurch terrorist attacks represent the worst act of ideologically-motivated non-state violence in New Zealand’s history. March 15 was not a normal day in Aotearoa and it should not serve as a baseline for a “new normal” in the country. A fully transparent and in-depth investigation into the acts of commission and omission that contributed to its terrible success should be of utmost priority.

The two commissioners, Sir William Young and Jacqui Caine, a former High Court Justice and diplomat, respectively, have seven months in which to conduct the investigation and return their findings. These will include the details of what they uncover as well as recommendations for remedies and future action. Their terms of reference include provisions for consultation with the NZ Muslim community and others who have a civil society stakeholder’s interest in the inquiry. The scope of the inquiry is broad, and includes examination of all potential contributors to the chain of events leading up to March 15.

However, there are causes for concern that suggest that the Commission’s work might be hamstrung from the beginning

First, there is the short time frame. Seven months is an inadequate period in which to conduct a thorough investigation into all of the contributing factors. That is complicated by the accused terrorist’s trial being held concurrently with the inquiry, with the Crown’s case overlapping with and mirroring the work of the Commission. Rather than separating the inquiry’s two investigative streams—one focused on the killer’s actions prior to the attacks using evidence from the trial and the other focused on broader factors that contributed to the successful execution of the attack—the inquiry will have to do both simultaneously while the trial runs in parallel (and perhaps beyond the December 10 deadline for the Commission to present its report). Assuming that the Commission will not be sharing evidence with the Crown while the trial is underway, this could limit the scope of the its work.

The second concern is the lack of intelligence-related experience and limited powers of the Commissioners in a context of official secrecy. Although well-respected in their fields, neither Sir William or Ms. Caine have experience with intelligence collection and analysis. They undoubtably have been consumers or evaluators of intelligence reporting in past roles and they certainly are able to keep secrets. But that may not be enough to resist push-back or “bureaucratic capture” by the agencies they are charged with investigating. This is facilitated by the Terms of Reference and its Minute One (“Procedures for gathering Information and Evidence”), which outline why most of the Commission’s work will be done in private on national security grounds. This is permitted by Section 15 of the Inquiries Act 2013 and justified by Clause 10(3) of the Terms of Reference and Section 202 of the Intelligence and Security Act 2017.

The agencies that have been granted secrecy include the SIS, GCSB, Police, Customs, MBIE, DPMC, Justice, MFAT and the Inspector General of Intelligence and Security. No foreign derived information will be revealed in public. A blanket ban has been placed on identification of employees of these agencies whose names turn up in the investigation. In practice, that means that there will be no public accountability for those who may have contributed to the attacks via incompetence, bias or myopia. More broadly, the move to secrecy means that whatever skeletons are uncovered will remain buried away from public view.

The Commissioners do not have powers of compulsion or the ability to veto an agency’s decision to withhold classified materials. That leaves them at the mercy of those they are investigating when it it comes to access to sensitive data, even if what is “sensitive” about the data is not related to national security but to the reputations and orientation of individuals and institutions.

This is not unusual: security agencies under the spotlight often resort to a “get out of jail” card in the form of claiming that open discussion of their actions will compromise sources and methods that are vital for ensuring national security. But the truth that needs to be uncovered in this instance does not involve national security secrets but the derelictions, biases or pressures that might have contributed to the failure to detect and prevent the attacks.

Efforts to limit the openness of the inquiry and the accountability of those that are its subjects must be resisted. The Commissioners need to have powers to compel documents, data and answers from those in positions of authority within the NZ security community and they need help from experienced intelligence overseers when doing so. The Inspector General of Intelligence and Security is one such person, assuming that there would be no conflict of interest involved (since the IGIS has no operational role and hence would not have been part of the command chain that failed to detect and prevent the attacks). A panel of experts with the IGIS, an IGIS representative, or another retired official as chair would be a good compromise option between utter secrecy and full transparency.

A third source of concern lies in the staffing and budget allocated to the inquiry. At $8.2 million the allocated budget is adequate only if it goes towards the investigatory aspects of the inquiry and not public relations or administrative expenses. The Department of Internal Affairs is the host agency of the Commission, so it will be its staff that does most of the logistical footwork underpinning its work. Here again the question of expertise and powers afforded investigators remains an open question.

Another potential problem is the nature of the Commission’s victim outreach program, called the Muslim Community Reference Group. Divisions have emerged over who and how many people should be included in this advisory body. Concerns have risen that self-proclaimed community “leaders” are being shoulder tapped for official interlocutor roles without proper consultation with their purported constituents. This may be due to expediency given the time constraints operative, but it also follows a historically “thin” approach to stakeholder consultation by the NZ State, where what passes for outreach has traditionally been more symbolic than substantive.

Either way, the process of establishing the Reference Group augers poorly for the representative transparency or inclusiveness of the process, something that is acknowledged in the Commission’s Minute One. Plus, the relationship between the Reference Group and the investigation streams is unclear at best but, given the veil of secrecy wrapped around the inquiry, is likely to be little to none.

Finally, the scope of external input into the inquiry, while theoretically extensive, appears destined to be limited in nature. Few invitations have been issued to civil society stakeholders to testify before the Commission, no public meetings have been scheduled and no written submissions solicited (although all have been promised). Along with the mantle of secrecy, this will limit the amount of public review and consultation. That skews the investigation in favour of those under scrutiny.

In effect, on paper the terms of reference for the Commission look thorough and broad. In reality, its work could well be stunted at birth. With limited experience and powers on the part of the Commissioners, a lack of pertinent expertise to help them, unrepresentative liaison with the victims, limited budget and staff and statutory permission for the agencies under investigation to restrict public knowledge of their actions, both the transparency of the inquiry and its ability to identify sources of accountability are compromised.

It is therefore incumbent upon the Commissioners to broaden stakeholder participation in the inquiry, strengthen the Commission’s powers of compulsion, and extend the deadline for submission of its report. It is within their powers to do so even if a court challenge to secrecy clauses in the Inquiries and Security and Intelligence Acts is required. The question is, will they? At the moment that prospect looks unlikely.

UPDATE (June 14): The killer has just plead not guilty to 51 counts and denies being the Christchurch terrorist. His trial date is set for May 4 next year and scheduled to last 6-12 weeks. The nearly year-long delay in bringing him to trial means that the Royal Commission will have done its work and issued its report six months prior to the trial. What that means for the execution of justice and the content of the Commission’s report is unclear but at a minimum it removes court testimony under oath from the inquiry. Given what I have outlined above with regards to secrecy and the inability of the Commissioners to compel testimony under oath or the surrendering of classified material, the lack of access to court testimony and evidence weakens the inquiry even further.

17 Responses to “Hamstrung from the start?”

  1. Erewhon on May 30th, 2019 at 18:22

    I know we have discussed this before, but when choosing personnel for the committee, given the totally compromised status of the entire NZ intelligence community, is there anybody who has both an objective point of view and experience in intelligence? Drawing exclusively on personnel with intelligence experience would mean drawing them from within the intelligence community, e.g. asking the intelligence community to investigate itself. Which has a predictable ending.

    While the lack of experience of the commissioners is regrettable, I don’t think it is possible to do better in this situation. Inexperienced but objective is better than experienced but complicit.

  2. Kumara Republic on May 30th, 2019 at 19:30

    On a related note, the 1986 Royal Commission on Broadcasting needs to be dusted off and updated for the Internet age.

  3. Pablo on May 30th, 2019 at 19:45

    Erewhon:

    I believe that it is possible to find people who are objective and who have experience/background/knowledge of intelligence matters. I believe that it would have been a good idea to bring in a distinguished retired jurist or two from abroad (or people of that stature as senior members of intel communities). That would give them both neutrality and objectivity when assessing information. As things stand I am afraid that we have the makings of a whitewash. The lowest scapegoat will be found, given a golden handshake in exchange for resignation, nice words will be spoken about the need to review and reform institutional perceptions of the threat landscape, and that will be that. Until the next attack.

  4. Erewhon on May 30th, 2019 at 21:00

    Yes, I recall that you’ve suggested bringing in outside experts before when we’ve discussed this. I think you floated Canada once. There is a nationalist argument against this, although personally I don’t care. But I think intelligence officials from the entire anglophone community are just as complicit as those in NZ. Five Eyes means that in a very real sense the UK, US, Canada, Australia and NZ basically have one big joined-up intelligence agency with regional branches, so asking Canadian officials to investigate New Zealand’s intelligence service is still just an “inside job”.

    But even leaving aside the objectivity argument, just talking about operational failures, Canada hasn’t really had a much better record of stopping these kinds of lone wolf terrorist attacks than New Zealand. Canadian intelligence failed to detect white nationalist terror attacks in 2017 and 2018. The same could be said for any other Anglophone country.

    I am confused by what you mean by a jurist – you mean a judge or a senior lawyer? Isn’t a High Court Judge a jurist? Why would a jurist have knowledge about intelligence affairs?

  5. Pablo on May 31st, 2019 at 08:46

    Erewhon:

    When I say “jurist” I mean someone like an ex FISA Court judge or a Commissioner of Warrants (who tend to be serving or retired senior judges). These exist throughout the liberal democratic world, so I was not necessarily thinking of Canada but of a variety of countries, including the Nordic countries and Norway in particular given its experience with this sort of atrocity. I also think that former Inspectors General of foreign intelligence services could fill the role. There is a network of them in the liberal democratic world and they have regular meetings, so it is possible to find retired IGs who would be willing to serve on an expert panel.

    Using people from outside the Anglophone world is possible because most senior intelligence officials and judges speak English (be they German, French, Belgian or Nordic). I am not as dismissive of the relative autonomy and objectivity of other 5 Eyes partners as you are, in part because they all would be keen to get to the bottom of a big intelligence failure like this one and in part because the GCSB and its counterparts are signals intelligence collectors so will have had little to do with the failures leading to March 15. This is key: the failures were domestic and in human intelligence collection. The GCSB was not tasked to scour social media platforms for NZ based white extremists, and the entire 5 Eyes network did not have a priority hunting white extremists down due to skewed priorities set by senior policy-makers outside of the signals community. I do not think that bringing in people from Anglophone countries will result in an “inside job” focused on whitewashing the affair.

    I am pretty confident that the GCSB will emerge unscathed by the inquiry even if the investigation is conducted honestly. The agencies that will not fare so well will be the Police and SIS. Bringing in foreign experts would be money well spent in order to gain objectivity. But I doubt that will happen.

  6. Edward Main on May 31st, 2019 at 17:37

    Hola Pablo

    In the commercial sector, when mistakes are made, costs are incurred and consequences ( or blame ) dealt with.

    So why is it in the NZ public sector, government entities can hide behind the veil of secrecy?
    Big mistake! BIG ….. Why not just fess’ up and face the music?

    I think it is better to admit mistakes and give face to the people who are affected. Yes, people will be hauled over the coals but it also gives the opportunity for genuine change

  7. Erewhon on May 31st, 2019 at 18:25

    Hey Pablo, no worries, I just brought up Canada because it is a country you have mentioned in the context of getting expertise without giving the NZ intelligence agencies control over the process.

    I am still confused though – you mentioned a FISA Court Judge, but isn’t the FISA an exclusively American institution? There is certainly no equivalent in New Zealand. You also mentioned the Court of Warrants, but doesn’t the New Zealand High Court have jurisdiction over warrants – so why would a Court of Warrants Judge have intelligence expertise, where a NZ High Court Judge shouldn’t?

    Norway is an interesting proposal but I have the same worry – Norway has experience yes, but at the same time, the Norwegian intelligence services failed to prevent the Utoya attack – a failure even more catastrophic than the failure in Christchurch. So getting people from a failed intelligence service to analyse failures in our own intelligence service, once again, it seems risky?

    Re: the autonomy of the Five Eyes services, this is a whole other discussion and know you are much more familiar with intelligence matters than I am so I will respectfully defer to your opinion.

  8. Edward Main on June 1st, 2019 at 13:52

    Pablo

    Have you specifically been asked to contribute to this
    Royal Commission and will ordinary citizens get the chance to contribute as well?

    In a previous posting and thread I think you mentioned there are approx. 12 security related entities within our government.

    I would like to know what each of those does and how and if they relate to the Christchurch attacks

  9. Pablo on June 2nd, 2019 at 10:19

    Edward:

    I have not been asked to do anything with regard to the inquiry, and there has been no invitation to submit written statements etc. I do not think that all of the NZIC bears responsibility for the intelligence failures, but those that have been identified have been given a fair measure of impunity/immunity with the granting of secrecy to those aspects of the investigation that cover them. Agencies like the NAB and senior level interagency groups like the Combined Threat Assessment Group (CTAG) will undoubtably be included in the investigation (CTAG determines the threat level of the country at any given time). What role they played in the intel failure (if indeed they did) may be something that we never fully find out.

  10. Pablo on June 2nd, 2019 at 10:26

    Erewhon:

    The issue with regards to bringing in foreign experts as an independent set of eyes rests on two things: their familiarity with intel matters derived from prior experience in their own countries; and their having learned hard lessons from intel failures in their own countries. Norway has done some serious soul searching in regard, as has Canada. The post-mortems of their failures and those of the French, Belgians and Germans could be very valuable as insights into what went wrong in NZ (for example, the pathology of selection bias when it comes to threat assessments).

    The FISA Courts are uniquely US in nature but they are just a variation on the theme of using sitting judges in special tribunal. Most liberal democracies have some type of warrants commissioner who resides outside of the intel community but who has to be presented with evidence justifying a particular counter-terrorism initiative. These people might serve as the type of objective external referent I am referring to.

    The very fact that some of the countries mentioned have experience with intelligence failures leading to an atrocity means that the lessons they learned from the experience could be translatable to the NZ experience. We shall see.

  11. Erewhon on June 3rd, 2019 at 10:53

    Thanks for your response Pablo.

    I am still a bit confused though – maybe I am just not taking in your point – but why do you feel that a sitting judge from another country adds something that a sitting judge from NZ doesn’t? Presumably they would have roughly the same level of intelligence experience.

    Does NZ have a warrants commissioner type court? Could a judge be drawn from there in order to provide the magic formula of intelligence expertise without being compromised by involvement with the existing intelligence community and its failures?

    Re: Other countries failures providing insight, I wonder. Of course there has been a lot of soul searching etc, but I wonder if it has produced results? Talking of Canada, they have had multiple far right shootings – each time they have tried to address their intelligence failings – but despite their attempts at remedying intelligence failures, the far right attacks have continued to come. So I am not really sure that Canada offers a guide for best practice. Maybe the Canadian learnings from 2017 will prove effective in a way that the similar attempts at learning in the 2000s and 2010s didn’t. But it’s very much an open question.

  12. Erewhon on June 3rd, 2019 at 10:56

    Actually Pablo – speaking of intelligence oversight, I believe you mentioned earlier that you serve on a “civilian” committee that provides oversight into the NZ intelligence community. I forget how long you have been serving, but I wonder, did the committee ever discuss the failures that resulted in Christchurch, e.g. failure to sufficiently monitor and take action against far right groups prior to their staging attacks?

  13. Pablo on June 3rd, 2019 at 12:04

    Erewhon:

    I think that my preference for a foreign interlocutor stems from the fact that in such a small country like NZ, the degree of separation problem is pretty acute, especially in the security community. So it is hard to find someone without connections to those being investigated. Hence my thought that someone with comparable experience overseas could be more objective when participating in the inquiry. NZ does in fact have a Commissioner of Security Warrants, indeed a retired judge, so someone who has held a similar role abroad might work.

    I am a member of the Reference Group that advises the Inspector General of Intelligence and Security. We are advisory only and do not handle classified material. We meet 3-4 times a year to discuss general matters of intelligence oversight and accountability. The last time we met was this past summer. At no time have we discussed white supremacists, although a fair amount of discussion has been devoted to how the Muslim community feels about being the object of suspicion and scrutiny by the intelligence services.

  14. Görkem on June 3rd, 2019 at 19:03

    I guess the fact that you were not asked to discuss white supremacists is just another sign of the failure by the professional intelligence agencies to consider them a problem. Sadly not surprising.

    The size dynamic is a very interesting one – again I wonder about the Norwegian example. Norway has a population that is almost exactly the same size as New Zealand, so would presumably have the same problem with the degree of separation problem. But as far as I am aware it did not call on any external assistance in its post-Utoya review process. I wonder how they managed to overcome this problem successfully? Or did they call on foreign expertise? Obviously I am not as knowledgable about the Norwegian intelligence community as yourself, so maybe my query is just a result of my ignorance.

    I must have misunderstood your initial post – I didn’t realise you were calling for foreign interlocutors in the first place. I thought your problem with William Young was a lack of intelligence experience first and foremost, and that you would theoretically accept a New Zealand official who had the requisite intelligence experience. But it seems you meant that Young has the minimum level of intelligence experience but isn’t objective enough. I need to learn to read your posts more closely before commenting. Sorry about that, and thanks for your patience with my intellectual fumblings!

  15. Pablo on June 4th, 2019 at 09:21

    Gorkem/Erewhon:

    My concerns about Justice Young and Ms. Caine were strictly due to their not having much knowledge of intel operations and the possibility that could be subject to so-called bureaucratic capture by the agencies under investigation. Initially I was not thinking that foreign experts might be needed, but once I saw the extensive use of secrecy provisions in the Inquires and Security and Intelligence Acts to cloak the investigation in a shroud of secrecy, I began to think of how best to avoid a whitewash. that is where the foreign angle came from. Again, even of other similarly sized or liberal democratic countries have not used foreign experts in their post-mortems after terrorist attacks, I think that the knowledge gained from those reviews could be useful for NZ.

    The IGIS Reference Group does not address intel agency threat assessments. Instead, it looks at issues connected with oversight, including legal mandates, use of warrants, scope of authority, treatment of private data and other privacy concerns etc. It should therefore not be surprising that it has never discussed white supremacists because they simply did not figure in any action in which questions of oversight were raised.

  16. Görkem on June 4th, 2019 at 10:14

    Sorry for the name change, I was using an old laptop that had saved my old username. For the record, both usernames are me. (Same email, so I wasn’t trying to hide it).

    Ms Caine I am not so sure about, but what makes you think Justice Young doesn’t have experience of intelligence operations? If a jurist from another country is likely to have sufficient experience, why is a jurist from New Zealand not going to? While bringing in foreign experts might solve other problems, it doesn’t seem to solve the problem of lack of experience – I doubt a Canadian or Norwegian senior judge is going to have experience that a New Zealand senior judge doesn’t.

    I am sorry to rehash the old argument, but for the record, I am equally concerned about bureaucratic capture, but I come at it from a very different perspective. In my experience, bureaucratic capture usually starts with the claim that independent auditors/adjudicators/commissioners must have agency-specific experience. Since people with this experience are either in the bureaucracy or have past experience in the bureaucracy, the claim that professional experience is needed basically mandates a certain level of bureaucratic capture.

    If we took the converse view (not that I am actually advocating it, but as a thought experiment) that commissioners/adjudicators/auditors/investigators must not have any professional experience (be it as lawyers investing the legal system, doctors investigating the health system, or intelligence agents investigating the intelligence system), bureaucratic capture could never happen. Not to say there wouldn’t be other problems, but bureaucratic capture not be one of them.

    Again I am repeating myself but I may as well finish; the problem is that industry-specific expertise (regardless of industry) is never ideologically neutral – the process of obtaining this expertise involves not just learning technical skills or information but also enculturation into a specific worldview and philosophy of governance. Of course this enculturation is not presented as such, but that is the beauty of it. Even those who regard themselves as opposed to the industry-specific consensus may not realise the degree to which they have absorbed its baseline assumptions even if they differ on specific points. What I’ve just said is true for any field that requires technical knowledge, but it is doubly so when the field is small enough that it can be personalised and has an embedded distance, not just from the general public, but even from other government institutions – so it is very much in action when talking about the intelligence sector.

    This is why I feel foreign expertise doesn’t help. This enculturation happens, not just in the NZ intelligence community, but also in its sister communities in the UK, US and Canada, its cousin communities in France, Germany, Norway and Italy, and even its second-cousin communities in Finland and Japan and South Korea. Basically, intelligence professionals from outside NZ have more subconscious institutional loyalty to NZ intelligence professionals than they have to other NZers – probably even moreso than they do to their own countrymen, if not generically, at least in matters of professional ethics.

    We would expect a Norwegian doctor and a NZ doctor to have broadly similar views on medical ethics than either would to a Norwegian or NZ layman. This isn’t controversial or even necessarily a bad thing in and of itself – indeed in a way this is why we require specialised knowledge for these kinds of jobs. It only becomes an issue when the problems that are thrown up in an industry are ideological, not technical.

    If the commission is going to look into technical failures, then perhaps intelligence insight is a necessity. But I think if the commission limits itself to looking into technical matters, it is missing the big picture. What we saw (and what Norway saw, and what Canada saw, and what France saw, and so on and so on) is that our intelligence agencies didn’t just fail to adequately counter the threat, they didn’t even know what the threat was. That is ultimately a question of values and a question about the role of intelligence services in our society more broadly. I don’t want that debate to be restricted to taking place within the intelligence community, and by requiring those who participate in the debate to have a baseline of intelligence expertise, we risk exactly this happening.

    I am not specifically familiar with Canada (perhaps you know more, Pablo) but I do know that whatever attempts to reform they have made in the 2000s and 2010s to stop white supremacist terrorism, it isn’t working. So, maybe we should see what mistakes they made.

  17. Görkem on June 4th, 2019 at 10:16

    As an addendum it is sad to hear that the Reference Group’s scope is quite narrow. I had the impression it had the power to discuss threat assessments in a nonbinding way.

    Perhaps an expansion of the Reference Group’s authority would be something that could be done right away to prevent another Christchurch style attack.

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