Archive for ‘Democracy’ Category

I was invited by the nice folk at sustainnews.co.nz to contribute a short essay related to sustainable economics from my perspective as a geopolitical and strategic analysis consultant. The essay wound up  making the connection between political risk and sustainable enterprise, and more importantly, the relationship between sustainable enterprise and democracy. You are welcome to view it here.

Seditious stupidity.

datePosted on 07:58, February 23rd, 2016 by Pablo

To state the obvious, things have gotten pretty crazy in the US this election year. The GOP presidential campaign is a clown car driven by Donald Trump that has a trunk full of gun worshiping liars, opportunists, neophytes, xenophobes, war mongerers, ignoramuses and bigots (except, perhaps, Kasich). The GOP Senate majority are threatening to not even hold hearings on the replacement for the recently deceased and unlamented Antonin Scalia, he of the view that corporations are citizens and contraception is bad because sperm is precious. But to get a real sense of how bonkers the right side of the US political table has become one need go no further than this. I urge readers to peruse the comment thread and other posts on that site in order to get a full idea of the lunacy at play. My favourite comment from that particular thread is that Obama has removed US flags from the White House and replaced them with “Muslim Curtains” (presumably to match the prayer rugs he has installed), but there is much more in that vein. More recently I watched an interview with a white middle aged woman at a confederate flag rally in South Carolina the day before the GOP primary held there. Her answer as to why she was voting for Trump is mint: She is voting for him, she said, “because he is a self-made man and he says why I think.”  Ah, to be a fly on the wall at her dinner table conversations…the stupid must be very strong there.

Views such as those espoused by that woman and on that reactionary thread would be laughable except for the fact that a) about 15-20 percent of US citizens apparently hold them; and b) the GOP controls both chambers in Congress and believes that catering to the lunatic base can win them the presidential election. After all, as Trump himself has said in the past, Republican voters tend to be stupid so that is the party to affiliate with if one wants to hold elective office. The fear and paranoia of the stupid and deranged is palpable–and politically bankable.

The real trouble, though, is that not only is this voting minority stupid or crazy, but they are also seditious, as are their representatives in Congress.

Longer term readers may recall my writing in 2009 about the disloyal opposition in the US. The bottom line is that disloyal oppositions in democracies are those that focus on thwarting anything the government does in order to bring about its collapse. This is what happened to  Allende in Chile and if Senate Leader Mitch McConnell (R-KY) had his way, this would have been the fate of Obama during his first four years in office (McConnell famously said after Obama’s election that it was his duty to see that Obama become a one term president). From then until today, both Senate and House Republicans have engaged in a pattern of systematic “obstructionism” (as the Democrats quaintly call it) in an effort to stymie every policy initiative advanced by the White House. Fortunately, they have largely failed, although the cost in terms of political gridlock, brinkmanship and federal government closures has been high.

The stupid is also strong in the Republican National Committee, which got suckered into allowing Trump to run for president under the GOP banner even though he had only recently joined the party (in 2009) and had a history of non-conservative views on matters of social policy such as abortion (he was openly pro-choice until 2011). The RNC thought that it could bring Trump to heel and instead what they now have is a rogue candidate who has pulled the entire campaign into tea bagger land and who can win the nomination outright or force a brokered convention in which his ideas on matter of policy will become part of the nominee’s platform even if he is not that person. Worse yet, his candidacy could well irretrievably fracture the GOP into establishment and tea bagger camps, leading to either a split and emergence of a third rightwing party or the destruction of the GOP as a viable political organisation for years to come.

So not only are a significant minority of US voters patently stupid or crazy, but a fair bunch of the GOP representatives are as well if we accept that the definition of stupidity or insanity is doing the same unsuccessful or desperate thing over and over again. But there is something more sinister at play as well, and that is the seditious nature of the disloyal opposition mustered by the GOP, its media accomplices and the variegated assortment of nut cases who are the target of their appeals.

Broadly defined, sedition is any act that encourages rebellion or undermines the lawful authority of a State. That includes any action that foments discontent, disorder or which incites resistance, revolt or subversion against duly constituted authority or government. Although the concept is broad and has been the subject to a number of interpretations (the general rule being that it is more broadly defined in authoritarian states and more narrowly defined in democratic states), in the US sedition is  rather narrowly defined (as “seditious conspiracy’) and sits with treason and subversive actives in 18 US Code Chapter 115.

The reason why the actions of the rightwing disloyal media and GOP opposition are seditious is that they actively encourage resistance to the lawful authority of the Obama administration and federal agencies charged with enforcing laws under it, and actively conspire to undermine the Obama administration at every opportunity. This can range from acts such as the occupation of an Oregon national bird sanctuary by armed militiamen (covered explicitly in 18 US section 2384 on seditious conspiracy, which includes “by force to seize, take, or possess any property of the United States contrary to the authority thereof,” punishable by jail terms of 10-20 years), to refusing to hold Senate hearings on judicial nominees in a timely fashion as the Constitution prescribes.

The gamut between the two poles runs wide, as evidenced in the lunatic thread linked above, but the intention of those engaged in all of these acts of disloyal opposition are clearly seditious in nature. Add to that the regular interpretative abuse of the 2nd amendment by the NRA, gun manufacturers and gun fetishists, and the tilt towards armed defiance is near complete (and in some cases has been completed, as the Oregon standoff and conclusion demonstrates). No wonder that the federal government has moved carefully when dealing with armed rightwing groups since Waco and Ruby Ridge, less the seditious narrative become a self-fulfilling prophecy.

For all the insanity now on display, the real craziness will begin after November’s election. If Hillary or The Bern wins, it is very possible that rightwing seditious speech will turn into actual seditious conspiracy, aided and abetted by conservative media and politicians. The threat of violence cannot be discounted. On the other hand, if Trump or Cruz win, there is the real possibility of protests, demonstrations and even riots in many areas in which those targeted and scapegoated by these candidates are located. They may not be the fully auto, full metal jacket resistance of the right-wingers, but these protests are bound to be (low level if wide scale) violent as well. So the real action will begin after the election, barring the possibility that Kasich or Rubio win the nomination and presidency (in which case most Democratic supporters are likely to adopt a “wait and see” attitude). My hunch is that things will get ugly come Inauguration Day.

Whatever the outcome I am glad for one thing: better than I watch events unfold from here rather than there.

Too Clever.

datePosted on 15:59, February 11th, 2016 by Pablo

The TPPA signing came and went, as did the nation-wide protests against it. I did not think that the government was going to be swayed from publicly commemorating what it considers to be the crown jewel of its trade-dominated foreign policy, but I had hoped that the numbers turning out to protest would add up to more than 100,000. At least that way the government could be put on notice that a sizeable portion of the electorate were unhappy about the surrender of sovereignty to corporate interests enshrined in the 6000 page text. Alas, the numbers assembled came nowhere close.

One interesting sidebar was the decision to stage a parallel protest at the Sky City complex  rather than join with the larger protest march down Queen Street. The specific objective of the Sky City protest was ostensibly to use so-called non-violent direct action (NVDA) and other acts of civil disobedience to block the streets surrounding the gambling complex. In the build up to signing (and protest) day the leaders of the two rival demonstrations publicly debated and largely disagreed on the merits of each. The Queen Street march organisers were concerned that any pushing and shoving at Sky City would feed into the government’s narrative that the matter was a law and order issue (following reports that the police had conducted riot control refresher training and door knocked activists warning them about the consequences of unruly acts). The leaders of the Sky City blockade argued that peaceful marches were simply ineffectual and were ignored by policy-makers. As it turns out, both were right.

The Sky City protesters, some of whom showed up in helmets and assorted face coverings, were forcibly prevented by the Police from effectively shutting down access to and from the venue and surrounding areas. The activists responded by engaging in a series of rolling blockades of major intersections, including the Cook Street on-ramp leading to the Harbour Bridge and Northern Motorway. This continued well after the signing ceremony was over and while the Queen Street march was still in progress. That had the effect of causing gridlock in the Auckland CBD.

Coincidentally or not, there was a bus strike that day. Although Auckland Council allowed its employees to work from home, many other entities did not. That meant that people who normally used buses to get to work had to use alternative transportation, including cars. That added to the number of cars on Auckland inner city roads at the time of the rolling blockades. Needless to say, motorists were not happy with the seemingly random temporary road closures in and around the CBD.

That is why things got too clever. As a tactical response to the police thwarting of the initial action, the move to rolling blockades was ingenious. But that bit of tactical ingenuity superseded the strategic objective, which was to draw attention to the extent of TPPA opposition. In fact, it appeared that the Sky City activists were trying to outdo each other in their attempts to make a point, but in doing so lost sight of the original point they were trying to make. After all, blocking people from leaving the city after the signing ceremony was over was not going to win over hearts and minds when it comes to opposing the TPPA. Plus, it displayed a callous disregard for the motorists affected. What if someone was rushing to a hospital to be with their badly injured child or terminally ill parent? What about those who needed to get to work on time so as to not be docked pay? What about cabbies and delivery people who earn their livings from their vehicles? None of this seems to have factored into the blockader’s minds. Instead, they seemed intent on proving to each other how committed they were to causing disruption regardless of consequence to others.

I have seen this before in other places, most recently in Greece, where anarchists and Trotskyites (in particular but not exclusively) infiltrate peaceful protests and engage in acts of violence in order to provoke what are known as “police riots” (a situation where isolated assaults on individual police officers eventually causes them to collectively lash out indiscriminately at protesters). Fortunately, NZ does not have the type of violent activist whose interest is in causing a police riot. Unfortunately, it has activists who seemingly are more interested in establishing and maintaining their street credentials as “radicals” or “militants” than using protest and civil disobedience as an effective counter-hegemonic tool. So what ended up happening was that the Sky City protestors were portrayed by the corporate media and authorities as anti-social misfits with no regard for others while the Queen Street march was briefly acknowledged, then forgotten.

On a more positive note, Jane Kelsey has to be congratulated for almost single-handedly re-defnining the terms of the debate about TPPA and keeping it in the public eye. As someone who walks the walk as well as talk the talk, she was one of the leaders of the Queen Street march and has comported herself with grace and dignity in the face of vicious smears by government officials and right wing pundits lacking half the integrity she has. I disagree about the concerns she and others have raised about secrecy during the negotiations, in part because I know from my reading and practical experience while working for the US government that all diplomatic negotiations, especially those that are complex and multi-state in nature, are conducted privately and only revealed (if at all) to the public upon completion of negotiations (if and when they are).

For example, the NZ public did not get to see the terms of the Wellington and Washington Agreements restoring NZ as a first-tier security partner of the US until after they were signed, and even today most of their content has been ignored by the press and no protests have occurred over the fact that such sensitive binding security arrangements were decided without public consultation. More specifically with regards to the TPPA, no public consultations were held in any of the 12 signatory states, and in the non-democratic regimes governing some of those states the full details have still not been released. Even so, I do think that it was a good opposition ploy to harp about “secrecy” as it simply does not smell right to those not versed in inter-state negotiations. In any event, what Ms. Kelsey did was exactly what public intellectuals should be doing more often–informing and influencing public opinion for the common good rather than in pursuit of financial or political favour.

I would suggest that opponents of the TPPA focus their attention on the Maori Party and its MPs. The Green Party’s opposition to TPPA is principled, NZ First’s opposition is in line with its economic nationalism and the Labour Party’s opposition is clearly tactical and opportunistic (at least among some of its leaders). So the question is how to wrestle votes away from the government side of the aisle when it comes to ratification. Peter Dunne and David Seymour are not going to be swayed to change sides, but the Maori Party are in a bit of an electoral predicament if they chose to once again side with the economic neo-colonialists in the National government.

For all the sitting down in the middle of public roadways, it may turn out that old fashioned hardball politicking may be the key to successfully stymying ratification of the TPPA in its present form.

Now THAT would be clever.

 

The Impunity Files, Police Edition: Trolling for Rawshark.

datePosted on 08:37, December 15th, 2015 by Pablo

By now it is well known that in their effort to find the source of the information upon which Nicky Hager’s book Dirty Politics was based, the NZ Police searched and seized computers, phones and personal records from Mr. Hager’s home. They also intimidated Mr. Hager’s daughter (who was home at the time) by forcing her to dress in front of an officer and relinquish her personal computer. In addition, they asked a number of service providers to give them access to Mr. Hager’s personal details without a warrant or production order. Most of the service providers refused or asked for a warrant but at least one, the financial corporation Westpac, gave up eight month’s worth of Mr. Hager’s transaction records without asking the Police for a legal instrument compelling them to do so.

News of this caused a brief furore amongst civil libertarians, privacy advocates, some journalists and a few business people. But as with much that the Police does that is borderline in terms of legality, the issue soon dropped from the public eye. Few if any follow ups have been published and for all intents and purposes the Police have emerged unscathed from yet another episode of operating with impunity and contempt for the law.

I have had opportunity to review Police documentation regarding the case released under Discovery (79 pages in total). Readers are invited to read the full dossier released by the High Court over at Scoop, which also has an interesting newspaper story detailing the genesis of the investigation into Mr. Hager.

Much in the Police documents is redacted but there is plenty to consider nevertheless. In the spirit of public interest journalism (although I am not a journalist by training, inclination or employment), I have decided to add a bit more to the public domain on this case. As it turns out, the Police did more than ask various service providers to give them access to Mr. Hager’s private information, and they got things rolling just before and then accelerated  the investigation very quickly after a complaint was laid about the source of the material from which Dirty Politics was constructed (the infamous or heroic hacker known as Rawshark, depending on how you view things).

On August 22, 2014, amid the sequels to the publication of Dirty Politics and the speculation as to the identity of the hacker who accessed the information from a notorious right-wing blogger that detailed his unsavoury connections to government officials and corporate interests, Rawshark tweeted what most observers saw as a satirical or diversionary tweet saying that s/he was on vacation in Vanuatu. Rather than take it with a grain of salt, and after the blogger formally complained on August 25, 2014, the NZ Police fired up their investigative resources and on September 18, 2014 a detective constable by the name of Rachelle (I shall leave her last name out), who was assigned to the case by a superior named Simon (again, I shall leave his surname out for the moment), telephoned Immigration New Zealand (INZ) for information on all NZ residents and citizens who had traveled to Vanuatu around that time.

I should note that this very same detective Simon was the police officer who made the “enquiry” of Westpac about Mr. Hager’s financial details on September 24, 2014. In the days that followed the Police were able to obtain detailed information on Mr. Hager’s property holdings from Wellington City Council as well as full details of his Westpac bank accounts and credit cards. Although some of this information was available through the Council web site, on at least one occasion detective constable Rachelle was able to obtain information directly from the Council without a warrant or production order (this information is available on pages 25-26  of the Discovery documents that I have read. (KEB Vol 4 Part 1C file pages 1468-69).

One has to wonder what relevance Mr. Hager’s property valuations and rate payments have with regard to the search for Rawshark. If the figures were obtained for a future asset seizure in the event Mr. Hager is found guilty of a crime, we have to remember that he has not been charged, much less convicted of any such thing. A search for aspects of his worth with an eye to future seizure implies a presumption of guilt on the  part of the Police before any charges have been laid against Mr. Hager. To say the least, that is a perversion of natural justice.

During the September 18, 2014 conversation with detective constable Rachelle, a female senior INZ officer replied that it would be difficult to compile a list of all New Zealanders who traveled to Vanuatu during the referenced time period because INZ only had data on those who traveled directly to Vanuatu from NZ and did not hold information on those who may have stopped off elsewhere (such as Fiji) on their way to the holiday destination. She sent the Police an OIA form to fill out (which was completed and returned that day) in order to assist the INZ side of the investigation. A day later, on September 19, 2014, she emailed detective constable Rachelle and wrote that there was nothing more that INZ could do “on their end” and suggested that the Police “might want to try Customs.”

That was a good tip.  Detective constable Rachelle noted then that she would speak to someone at Customs who was working on organised crime to find out the best source for that information. On September 23, 2014, after approaching NZ Customs, the NZ Police received from them spreadsheets containing the names of 2500 NZ citizens or residents who travelled directly from NZ to Vanuatu in the two weeks prior and after August 22, 2014. The spreadsheets were then sent to an officer Nichola (again, no last name needs to be published at this time) “at intel to see what plan we can come with in relation to analysing this information.”

The passenger information was presumably sourced from Air Vanuatu and/or Air New Zealand, who code share the three weekly flights between Auckland and Port Villa. No warrant or production order was issued for the release of this information, and it is unclear as to who and how Air Vanuatu and/or Air New Zealand were approached, or whether they were approached directly at all. This information is detailed on pages 70-71 (KEB Vol 4 Part 1C file pages 1525-26) of the Police documents released under Discovery in the case Mr. Hager has brought against them.

It is unclear whether the Police ever came up with a plan to analyse the personal information of the 2500 NZ citizens and residents that flew to Vanuatu from NZ in the two weeks before and after August 22, 2014. What is clear is that it was done, at a minimum, in violation of the Privacy Act because the data was obtained without a warrant or production order. Moreover, it is not clear what was ultimately done with the information about the 2500 people whose details were obtained by the Police. Was it analysed? Did any of it lead to further inquiries or action? Was it stored? Was it destroyed? Was some records kept and others not? The bottom line is that this information was obtained based upon a “courtesy” request, not a lawful order, and was part of a trolling exercise that began before a complaint was laid and not as a result of specific or precise information related to the Hager investigation. Both procedurally and substantively, obtaining this travel-related data of 2500 NZ citizens and residents was unlawful.

Given that Rawshark appears to be a pretty savvy hacker who knows how to cover his/her tracks, it is arguable that any of the 2500 people whose privacy was violated by Customs and the Police (and perhaps Air Vanuatu and/or Air New Zealand) had anything to do with obtaining the material for Dirty Politics. Beyond the issue of what was done with their personal information, the question is whether they have been told by any of these agencies about their records being accessed. After all, they have nothing to fear if they have nothing to hide, so it would seem natural that the Police and/or the other entities involved in the privacy breach would let the 2500 travellers know that their private records are safe. That is important because these records could well be more than passport details and could include ticket purchase location details, credit card information etc. At this point we do not know the full extent of the Police handling of this private information, but the privacy breach is a pretty big one in any event so the duty to inform those affected is great.

Published information is that the senior officer in charge of the investigation into Rawshark is Assistant Commissioner Malcolm Burgess. It appears that Mr. Burgess was contacted by email by the rightwing blogger on August 19, 2014 and immediately assigned the matter to the National Criminal Investigation Group (see the NZ Herald article on November 14, 2015 by David Fisher). That is odd because at the time no formal complaint had been made–that did not happen until August 25, 2014. In fact, it appears that an investigative plan of action was drawn up before the blogger made his formal complaint, then quickly put into action once he did.

In any case, perhaps Mr. Burgess is a “hand’s off” manager who did not know what those under him were doing, particularly detective Simon. But it would be interesting to see how he feels about the way the information on Vanuatu travellers was accessed given that it appears to have shed no light on Rawshark’s identity and seems to have violated the Privacy Act. In other words, it looks like it was a useless and illegal fishing expedition, which should be a concern for him as the senior office in charge.

I understand the importance of chasing all leads and avenues of inquiry in criminal investigations. I understand the notion of professional courtesy amongst security agencies. I understand the utility of informal agreements between government offices. I understand that institutional cultures may see legal requirement more as a challenge rather than as an obligation. I understand that sometimes investigatory overkill in one case is needed to serve as a deterrent to others who might seek to pursue similar courses of action.

But I also know, from both my academic writing on democratic governance and my professional experience while working in security branches of the US government, that at its institutional core democracy is about self-limitation and the universal rule of law, to which can be added the bureaucratic axion “CYA.” Yet when it comes to the NZ Police in this case and others, it seems that an institutional culture of impunity far outweighs respect for the self-limitations imposed by law when it comes to decision-making on matters of policy and operations.

Perhaps the Privacy Commissioner and other civil rights groups might want to take another look into this case because it is not just Mr. Hager who has had his rights violated by the Police investigation into Rawshark’s identity (in what to my mind is more a case of journalistic intimidation rather than a legitimate investigation into criminal wrong-doing). As much as I would like to believe that the Independent Police Conduct Authority (IPCA) would seize the opportunity to examine the particulars that I have outlined, its track record suggests otherwise.

One thing is certain: there are 2500 people in NZ who got a lot more than they bargained for when they booked direct flights to Vanuatu in the middle of last year.

The US has a mass murder problem, not a terrorism problem.

datePosted on 15:50, December 6th, 2015 by Pablo

The latest spate of mass murder in the US has again demonstrated the hypocrisy and bigotry of right-wingers on the subject. When the murderers are white Christians such as the Colorado Planned Parenthood assassin or the  Charleston South Carolina church gunman, the Right speaks of them being “unstable” or psychopathic. Yet when Muslims commit acts of mass violence such as that in San Bernadino, it is always considered by the Right to be an act of terrorism.

We need to cut through the BS and see things for what they are: not all mass murders are terroristic in nature. In fact, given the easy access to firearms, mass murder is as American as apple pie and almost as common. In most cases it matters less what drives US perpetrators to murder than it is their unique yet common ability to make a statement by murdering in numbers.

Let’s begin with the definition of “problem.” A problem is something pernicious that is persistent, continual and hard to resolve, counter or ameliorate.

Mass murders can be serial, sequential or simultaneous in nature depending on the perpetrator’s intent and capabilities. Most mass murders are motivated by personal reasons–revenge, alienation, stress, and yes, mental illness. The term “going postal” was coined in the US because of the propensity for workplace conflicts to lead to mass bloodshed. In fewer numbers of mass murder cases the killers express support for or involvement in political or ideological causes, such as the Colorado, San Bernadino and South Carolina events mentioned above.  In a fair number of cases personal and political motivations combine into mass murderous intent. In many cases mentally ill people adopt extremist causes as an interpretation of their plight and justification for their murderous intent. The Sydney cafe siege instigator is a case in point. Whatever the motivation, what all the US killers share is their ability to kill in numbers. Given its frequency, that is a particularly American way of death.

We need to be clear that not all politically motivated killing is terrorism. The murder of US presidents, public officials and political activists of various stripes was and is not terroristic in nature. On the either hand, the murder of blacks and civil rights workers by the Klu Klux Klan was clearly terroristic in nature because it was designed to do much more the physically eliminate the victims. Although they were all politically motivated one can argue that the Charleston killings were not terroristic but the Colorado and San Bernadino murders were. The Boston marathon bombing was terroristic, but was the bombing of the Oklahoma City federal building by Timothy McVeigh also terroristic in nature or was it just a case of lethal lashing out by a disgruntled loser? What about today’s London tube stabber and the Palestinians who kill Israelis with knives? Are they really terrorists or just lashing out in murderous anger? Could not the same be said for all of the events mentioned here?

Terrorism has a target, subject and object. The target is the immediate victims of an act of politically motivated lethal violence, the subject is the larger body politic, and the object is to influence both the general public and decision makers to bend to the will of the perpetrators. This can be done by getting the latter to desist from doing something (say, joining in a foreign conflict) or by getting them to overreact in order to exacerbate tensions or contradictions within the subject society itself. Not all mass murders extend beyond the target, and even then most are not driven by a desire to shape the will of decision-makers or public at large. If we review the cases mentioned earlier, how many of them properly fall into the category of terrorism?

The currency of terrorism is irrational fear and panic. It has a paralysing or galvanising effect depending on the nature of the subject. But the key to differentiating terrorism is that those who perpetrate it seek to manipulate panic and fear to their advantage. They may not always calculate right and and up losing, but that is their intent.

Taking that criteria, it is clear that the US has a mass murder problem, not a terrorism problem. The answer to that problem lies in effective gun control, to be sure, but also involves backing away from the culture of violence into which US citizens are socialised. That includes reducing the amount of everyday exposure to militarism, jingoism, mindless patriotism and violence glorified in popular culture.

That will be hard to do because violence and the fear that it brings sells, and selling violence and playing on fear makes money for those who know how to manipulate it in order to take advantage of the opportunity. Not only does it sell guns and increases the profits of arms manufacturers big and small. It also sells electronic games, movies, toys (!), television series and any number of other appended industries. It helps further political careers. Violence is exalted, even reified as the preferred method of conflict resolution by a mass media industry fuelled by fear mongering and funded by war-mongerers. There are many vested interests in maintaining a culture of violence in which mass murder thrives. Yet these are not terrorists, by definition.

Rather than confront this thorny issue, the US Right prefer to selectively apply the word “terrorism” to mass murders committed by Muslims whether or not they are inspired or directed by a known irregular warfare group such as Daesh. Daesh knows this and along with al-Qaeda has urged supporters in the US to take advantage of loose gun laws to commit so-called “lone wolf” or small cell attacks on everyday targets. Although it is as much an admission of Daesh and al-Qaeda’s inability to confront established states like the US or France directly, the strategy has the virtue of making the threat of Islamic terrorism in the West seem much bigger than it really is, thereby eliciting the type of response called for by the Right–bans on Muslim immigration, increased surveillance and profiling of Muslims, etc. That serves to increase the alienation between Muslims and non-Muslims in the West, which suits the Daesh narrative about a clash of civilisations to a “T.”

This is not to say that we should disregard the threat of terrorism, Islamic or otherwise. But what it does suggest is that the focus should be on the penchant for mass slaughter in the US regardless of cause. Once that is addressed the real threat of terrorism can be addressed in proper context and without the ideological opportunism that currently drives debates about guns and extremism in the US.

In summary: Mass murders are extraordinarily common in the US when compared to pretty much everywhere else (not just the “developed” world), specifically because US mass murders are carried out by individuals rather than state forces or irregular armed groups or criminal organisations. The overwhelming majority of US mass murders are not motivated by political or ideological beliefs. Of those that are,  few can be properly considered acts of terrorism and should be seen instead as acts of lethal retribution, retaliation, or striking out at society and authority by individuals with personal as well as political grievances.

This does not make them any less dangerous. Yet  it does help clarify the unique US mass murder phenomena in order to more sharply focus the search for preventatives that address root rather than superficial causes as well as strip that search of the normative baggage many pundits, politicians and the general public currently carry into it.

Confronting executive branch excess.

datePosted on 12:16, October 14th, 2015 by Pablo

Recent court victories by Jane Kelsey and Jon Stephenson have vindicated those who have long complained about the culture of excess that permeates the National government’s cabinet. Excess and abuse of authority preceded the current government but this one has taken the practice to art form. It has resulted in allegations of corruption and behaviour such as that outlined in Nicky Hager’s Dirty Politics, and it has compromised the integrity of the DPMC, GCSB, NZDF, Ombudsman and SIS in doing so. If it did not openly encourage, at a minimum it facilitated managerial excess in agencies “overseen” by a variety of ministerial portfolios. The combination of ministerial and managerial excess–executive excess, to re-coin the phrase–is malignant in a liberal democracy.

Apparently the courts, or perhaps better said, two High Court judges, have caught on to the problem. Although the reasoning of the judge that forced the Stephenson settlement has not been made public, the judge in the Kelsey versus Groser case made abundantly clear that the “unlawful” behaviour exhibited by Groser and his staff included the Office of the Ombudsman as well as abuse of process. Likewise, the settlement of the Stephenson case involved not only a payment but a retraction and statement of regret by the NZDF as an institution, rather than by the command officer who was the subject of the defamation lawsuit. That suggests that more than one individual and branch of government may have had a hand in slandering Mr. Stephenson. Yet no independent review of their actions has been done.

There are other instances where the independence and integrity of reviewing agencies have come into question. Think of the Police Complaints Authority and the skepticism with which its findings are held. Think of past findings (such as during the Zaoui case) by the Inspector General of Intelligence and Security. Think of the way Crown Law has behaved in several high profile politically charged cases. Although adjustments have been made to some oversight agencies like the IGSI and not all oversight agencies are uniformly compromised, there appears to be a necrosis spreading across the system of institutional checks and balances in Aotearoa.

Those who regularly submit Official Information Act (OIA) requests will already know that the process is routinely abused, especially but not exclusively by security services. Delays beyond the mandated time frame for response are common. Censoring of material prior to release is common. So is the Ombudsman’s practice of upholding decisions to withhold or censor material on broadly defined national security grounds. Cynics might say that is a case of one hand washing the other. Others might go further and say that the problem is systemic rather than random and occasional. However skepticism is voiced, there is a sense that when it comes to the Ombudsman and other oversight agencies, they are more about whitewashing than honest scrutiny.

This again raises the issue of politically neutral, independent and transparent oversight. I have written a fair bit on the need for independent oversight of intelligence agencies above and beyond the Inspector General of Intelligence and Security, Commissioner of Warrants and current Select Committee on Intelligence and Security. I have not written about the problems with the Office of the Ombudsman and treatment of OIAs. But it should be clear by now that when it comes to democratic oversight of executive departments and those that lead them, New Zealand is hollow at its core.

Readers may recall that I have written about horizontal and vertical accountability in the democratic state. This academic concept finds real meaning in this case. Beyond the problem of vertical accountability in a country where electoral preferences are the subject of poll-driven media manipulation by government PR agents, elite cronyism is the norm and where civil society organisations are weak in the face of that, there is a serious lack of horizontal accountability in New Zealand. Agencies such as the Ombudsman that are entrusted with overseeing the behaviour of politicians and senior state managers  are seemingly subordinate (or at least submissive) to them. With some notable exceptions, when it comes to executive excess even the courts appear to have become as much instruments as they are arbiters of government policy and behaviour.

The first question that has to be asked is when does ministerial skirting or manipulation of the rules rise to the level of criminal offence? Is the complicity of more than one government entity (say, MFAT and the Ombudsman) in circumventing or obstructing OIA requests a trigger for a criminal investigation?  If not, what is? If so, who prosecutes the offence given current institutional arrangements?

There are a number of reviews and investigations of government agencies already underway. There are Royal Commissions on matters of policy. Private prosecutions are possible. Constitutional experts may know the answer, but I wonder if there also is an overarching investigatory body or process with legal authority that can look into the system of institutional (horizontal)  accountability and oversight mechanisms currently operative in the country. I ask because from where I sit the system looks broken.

Some questions about the Stephenson case.

datePosted on 13:53, October 3rd, 2015 by Pablo

Although it has been shamefully underreported by major media outlets in NZ, war correspondent Jon Stephenson has won his defamation case against the NZDF by forcing a settlement that involves significant compensation and an admission by the military that its defamatory statements about Mr. Stephenson were indeed untrue. It remains to be seen if the Prime Minister will do the same, since he opined at the time the controversy erupted over Mr. Stephenson’s internationally recognised article “Eyes Wide Shut” in Metro Magazine (May 2011) that Mr. Stephenson was, to paraphrase closely, “unstable” as well as “unreliable.” That has been proven to be false and Mr. Key knew at the time he uttered his comments that they were untrue. Let us be clear: Mr. Stephenson may be driven, but unlike his main accusers when it comes to reporting on the NZDF he is by no means unreliable or a liar.

I wrote the following as a comment over at The Standard but feel that it is worth sharing here:

“I suspect that we have only seen the tip of the iceberg when it comes to the unethical behaviour of the NZDF and political leadership in this affair. Remember that there is a MoD involved and the respective ministers then and now (Coleman and Brownlee). There are more officers involved than retired generals Rhys Jones and Mateparae, some who currently hold senior positions within the NZDF. There is the behaviour of Crown Law to consider. There is the slander on Jon’s character uttered by the PM.

I can only hope that the terms of the settlement do not prevent Jon from publishing more details of his case, including the way in which the legal process unfolded, the obstacles to discovery encountered, and the extra-curriculars surrounding them.

Whatever happens, for once in a long time one of the genuine good guys won. Were it that other members of the press corps (Nicky Hager excepted) had the integrity and courage exhibited by Jon both in the field as well as on the home front.

Kia kaha Jon!”

Beyond what I have written above, there are some other questions that arise from this saga.

For example, in 2013 Nicky Hager revealed that the NZDF electronically spied on Mr. Stephenson in 2012 using NSA, GCSB and SIS assets while he was in Afghanistan. At the same time an internal Defense manual was leaked to the media that identified “certain investigative journalists” as hostile subversion threats requiring counteraction because they might obtain politically sensitive information (one does not have to have much imagination in order to figure out who they are referring to). In parallel, reports emerged that NZDF officials were sharing their views of Mr. Stephenson with Afghan counterparts, referring to him in the same derogatory terms and implying that his work was traitorous or treasonous.

Taken together, both the spying on Mr. Stephenson and the characterisation of him passed on to NZDF Afghan allies can be seen as a means of counteracting his reporting. But if so, what national security threat did he really pose? Is politically sensitive information necessarily a threat to national security or is merely a threat to the political actors being reported on? Is intimidation part of what the NZDF considers to be proper counteraction when it comes to journalists plying their trade in a war zone? And since any counteraction or counter-intelligence operations had to be cleared and authorised by the NZDF and political leadership, were both of the types used against Mr. Stephenson authorised by then NZDF Chief Lieutenant General Richard Rhys Jones and/or Mr. Key? They deny doing so but if that is true, who did and how was it passed down the chain of command to the field commanders in Afghanistan (because, at a minimum, the order to “counter” Mr. Stephenson could be construed as illegal and therefore challengeable–but it never was).

Leaving aside the legitimate role of independent journalism in a democracy in holding policy makers–including military leaders–to account, what does it say about the NZDF that it sees such work as subversive? More alarmingly, if the reports are true, what exactly did the NZDF leadership hope to accomplish by telling Afghans, while Mr. Stephenson was in Afghanistan, that he was a threat to them?

Then there is the issue of the lie. General Rhys Jones claimed that, contrary to what was written in his story, Mr. Stephenson never visited the base in which the Crisis Response Unit (to which NZ SAS were attached) was located and did not talk to its commander. That was a direct challenge to Mr. Stephenson’s journalistic integrity. Mr. Stephenson sued for defamation and during the first trial (which bizarrely ended in a hung jury) the NZDF and Rhys Jones himself admitted that Mr. Stephenson’s version was true.

So why didn’t the trial stop right there? The moment the truth of Mr. Stephenson’s story was admitted by Rhys Jones, it was supposed to be game, set and match to the journalist. But instead the Crown spent hundreds of thousands of taxpayer dollars continuing to litigate in that trial and then the follow-up court process that was ended by the recently announced settlement. Why so?

The answer to the last questions seems to be that, like in the Zaoui and Urewera 18 case, the Crown prefers to bleed its adversaries emotionally and financially even when it knows that it can not win. This death by a thousand cuts approach, courtesy of the taxpayers largesse, is as unethical as it is cynical and undermines the belief that justice in New Zealand is blind and universal.

There are many other questions that need to be answered about the treatment of Mr. Stephenson. Is it true that media outlets were pressured to not accept his work on penalty of getting the cold shoulder from the government? Did NZDF officials physically threaten Mr. Stephenson in New Zealand? Did the intelligence services spy on Mr. Stephenson above and beyond what was reported by Mr. Hager, both at home and abroad, and are they doing so now, and on what grounds if so? Did NZDF and/or MoD and/or PMDC and/or Crown Law officials conspire, either solely or together,  to cover up, obstruct, alter, destroy or otherwise impede the release of evidence to Mr. Stephenson’s lawyers at any point in the legal proceedings?

My sincere hope is that the settlement agreed to by Mr. Stephenson and NZDF does not preclude the former from writing about his experiences with the NZDF, both in Afghanistan and during the trials. Hopefully he will be able to answer some of the questions I have posed above. I say this because something stinks about the way this affair has been handled at the highest levels of government, which is not only a stain on the individuals involved but a direct affront to basic tenets of liberal democracy.

Some thoughts on Syrian refugees.

datePosted on 16:57, September 4th, 2015 by Pablo

I must be getting soft, but the image of the drowned Syrian child haunts me. Perhaps it is because I have a two year old or perhaps I am just getting sentimental and weepy in my advancing age, but it is doing my head in. I am not going to be the same for having seen it.

I say this because I have watched and read the coverage of the crisis for a while now and like so many others have not only wondered why the EU cannot craft a viable humanitarian response, but have also been struck by the nasty attitude of so many commentators here in NZ as well as in Europe, most of them on the Right, when considering the plight of these godforsaken people. So let me outline my thoughts on the matter.

The Syrian civil war is a man-made humanitarian disaster. Had it been a natural disaster with the same human impact, I doubt that the response would be the same as it is today. It no longer matters who started it, who is involved, who is to blame and when it might end. The people who are fleeing the war are non-combatants whose hand has been forced by events beyond their control. Those who say they have a choice to stay or go are either fools or cynics. That is like saying that a person subject to domestic abuse has a choice to stay or go. Or that a person has a choice to stay or go in a fire. Sure, they could stay but is that really an option? Did that Syrian child and his family really have a choice? Did they deserve their fate for having “chosen” to seek refuge in a supposedly safe part of the world? (the mother and two boys, ages 3 and 5 died; the father survived and has returned back to Kobani to bury them).

When people up stakes, leave most of their material possessions behind and bring their children on perilous journeys to foreign lands to which they have no prior ties and which are culturally alien to them, they are not “migrants.” They are refugees fleeing catastrophe. It does not matter if the catastrophe is human or environmental in nature (and in Syria it has been both). The bottom line is that they have undertaken great risk–in fact, they are risking it all–to flee the country of origin because of a calamity that is no fault of their own. They are refugees seeking safe haven wherever they can find it (which means a place that is stable and economically viable), and any attempt to define them otherwise is not only wrong but viciously inhumane.

Many of those leaving are secular Muslims and Christians who have been targeted by either Assad’s forces, Daesh or both. Many are the bulk of the shopkeeping and white collar service classes whose livelihoods have been destroyed by four years of war. The majority are moderate in their beliefs and political orientation, which is why they (or at least the men) have chosen not to fight. Their children have no educational opportunity at home, much less future careers.  They do not seek passage to Europe to establish a caliphate or even Islamise it. To the contrary, they are fleeing exactly that possibility.

For those who say that they should have “chosen” to seek refuge in Gulf or North African Muslim states, be aware of two things: 1) they are refused at the borders; and 2) they are considered undesirables in any event given their relative secularisation and the fact that they are considered second-class Arabs (as are Palestinians) by many Gulf oligarchies (they very same that are funding and arming Daesh). So that possibility simply does not exist.

Refugees do not choose to leave or where to stay. They may have their preferences but they live at the mercy of others. But that is the operative term: mercy. Along with compassion and empathy, that is what distinguishes open societies from closed ones.  And yet Europe has shown itself closed-minded on the issue in spite of the ongoing tragedy unfolding on their beaches and doorsteps.

Unfortunately, in today’s polarised ideological climate those virtues are disappearing in the West. That includes New Zealand, where Islamophobia and the “greed is good” mantras of the so-called neo-liberal elite have combined to encourage xenophobic, “me first”  “f*** them” attitudes in the population. In spite of the fact that as far as I can tell no Syrian has ever done harm to New Zealand (and NZ has a small Syrian expat community), the National Party and its supporters do not want to increase the country’s refugee quota in the face of this humanitarian crisis. It apparently does not matter that NZ’s international reputation as a humane and open society rests in part on its attitude towards refugee issues. Nor does it apparently matter that as part of the UN Security Council, New Zealand has a diplomatic obligation to lead by example. Or that a broad reading of the Responsibility to Protect doctrine suggests that protection be awarded to those fleeing conflict as well as those immediately subject to it.

Say what you will, the Syrian exodus is a true humanitarian crisis. The people fleeing are refugees, not migrants. The world, or at least that part of it that is open and funded on notions of compassion, empathy and mercy, has a duty of care to them. It is therefore imperative, and a matter of pure humanity, for Europe and other open societies to step up and help the refugees as much as possible. We may ask ourselves why China, Russia and other nations do not heed the call of the desperate. But the fact is that it does not matter whether they do or not. The moral imperative is to ourselves as well as to those in need.

That is why it is despicable for the Key-led government to shirk its responsibilities on this matter. We have the room, the facilities and the community to support an increased refugee quota targeted at the displaced Syrians. The people we accept will be vetted and are highly unlikely to be interested in jihad or Islamisizing the country. If we can spend $28 million on a flag referendum and $42 million on a boat race challenge, then surely we can find some (considerably less) money to cover the costs of their assimilation. And who knows, we as well as they might be the better for it.

To not do something is a sorry indictment of what we have become as a society, and for those in the government that refused to act, their collective shame will last long after they have departed. The bottom line is clear: regardless of partisan orientation the time to act is NOW.

Go The Donald!

datePosted on 15:25, September 1st, 2015 by Pablo

I am lucky to be able to vote in the US as well as NZ, and very much relish the opportunity in both countries. In the US I am registered as a voter in Florida, which is a closed primary state. “Closed” primary states are those in which a voter has to declare a party preference prior to the primaries in order to vote in them. For years before and after I established a residence in Florida I listed my political affiliation as “Independent,” something that allowed me to choose a primary to vote in the “open” primary states where voting preferences did not have to be declared prior to primary season (they only have to be declared and ticked off on the day at the balloting station). In 2008 I decided to switch my declared affiliation to Democrat so that I could vote in the Florida Democratic Party primary given that not only were Obama and Hillary running for president, but there were races for the US House, Senate and local seats that needed to see Republicans defeated.

This year I am going to switch affiliation to Republican. Why? Because that way I can vote for Donald Trump in the Republican primary in the hope that he makes it to the GOP National Convention next July. It has been a very long time since either major party has had a brokered convention where several candidates are in the running for the presidential nomination, and should The Donald survive until then the craziness will be well and truly on. Since he is totally unqualified to be dog catcher much less president and unelectable in the general election, it is my sincere hope that he hangs in all the way to the convention and either becomes the GOP candidate, determines who is, or runs a third party candidacy after losing out in the convention to one of the others. The only thing better would be for Kanye to join that gaggle of fools and trolls but, alas, he is going to wait until 2020 to run.

Already The Donald has become to the GOP what Miley Cyrus is to pop muzak: a wrecking ball. The Republican National Committee must be choking on their Cohibas (illegal until the recent diplomatic reopening with Cuba) and dying a slow death every time he speaks or when they read the polls. Because let us be clear: Trump appeals to the stupidest, xenophobic, economically illiterate, racist, bigoted, misogynist, white cultural supremacist elements in US society. He follows in a long line of populist demagogues that extends back through Ross Perot to Pat Buchanan, George Wallace and Huey Long.  He may purport to speak unvarnished truth but in fact what he says is most often non-sensical rubbish that fails to address reality much less the intricacies of democratic governance with a division of powers: he is going to “do the deal” with whomever; most Mexicans are rapists and drug dealers; he will “build a wall and make Mexico pay for it” (along 1,900 miles of topographically challenging terrain that includes numerous sensitive ecological zones and wildlife corridors); he will deport “illegals ” and their “anchor babies,”  (all 14 million of them); he will simultaneously confront China, Iran and Russia; he will make the US military “great” again so that no one will “mess” with it (forgetting that the US spends more on defense than the next seven countries combined–US$610 billion or 20 percent of US federal spending and 3.7 percent of GDP–and still has people “messing” with it); he will provide better women’s health care in spite of gutting Planned Parenthood and removing health care for “alien” women because he “cherishes” women in general (ignoring the fact that two of his wives were not citizens when he married them). Everyone in politics but him are incompetent or idiots. His speeches are endless repeats of these and other inane mantras interspersed with self-congratulatory self-praise and personal insults directed at his rivals, all other politicians and anyone who disagrees with him.

The truth is that he has no plan, has no policy agenda, has no friggin’ clue what it is like to deal with the complex issues that confront the US. And that is why the rednecks and dimwits like him. He makes the hard seem easy.

What is great about this is that he is forcing the other GOP candidates to respond to him, and they have stepped up to the plate in predictable style. Among other gems, Ben Carson (the neurosurgeon) says homosexuality is a choice because men go to prison straight and come out gay; Scott Walker just suggested that building a 3,987 mile wall on the Canadian border is worth looking into; Jeb Bush wants to abolish Planned Parenthood and believes that the invasion of Iraq “turned out well;” Ted Cruz and Marco Rubio want walls and deportations even though they are children of recent immigrants who were legally documented after, not before their arrivals. They all claim that the US military and its veterans have been crippled by Obama even though it was Bush 43 who ordered them into two simultaneous wars while cutting back veterans benefits as well as the budget for post-combat trauma rehabilitation. They all claim that ISIS is an Obama invention even though it was Dubya’s purge of Saddam’s army that provided the leadership material for what became ISIS’s fighting forces. They all oppose gun control and climate change science and all support hacking, fracking, drilling and spilling regardless of environmental consequence. They all oppose abortion and gay marriage even if some of their past records indicate otherwise. The list of idiocy goes on but should not surprising given that Rick Perry, Rich Santorum, Mike Huckabee and several snivelling weasels remain in contention.

As things stand now, the GOP primary is a circus. There may not be any juggling or animal acts, but there sure are a lot of clowns, and The Donald is the ringmaster. Even if the number of viable candidates drops to 2 or 3 by the time of the GOP convention, it will be Trump who sets the Right’s narrative for the general election. Yippee!

It looks like the US media has decided to sit back and watch the circus unfold. Fox News tried to undermine him in the first debate that it aired, but his nasty personal attacks on the female panelist only strengthened his support among the troglodyte crowd and has forced Fox to backtrack and give him coverage as the Party favourite. All other outlets are content to watch the train wreck proceed while offering the mediocre tedium that passes for informed analysis by the usual spectrum of pundits. As a result, the GOP favourite, Jeb Bush (or “Mr. Low Energy,” as The Donald calls him) has seen his coverage slip to the sidelines along with the other yokels. Likewise, for all of the Fox News chest beating, Hillary Clinton is getting a general pass by the press because her sins are run of the mill when it comes to DC politics and her campaign is about practicable policy, not theatrics.

The key to the outcome will be seen in January when the first GOP primaries are held. If The Donald does well in them he will be hard to stop. So the RNC has to find a way to do him in either before then or to go all out nuclear on him should he prevail in Iowa or New Hampshire. That is when the questions about his draft dodging, drug use, association with organised crime, commercial racism, trust fund baby status, adultery, academic record embellishment and a host of other peccadilloes and not-so-small sins will find their way into the mainstream media. But even then he may be too big a juggernaut to derail in time for the GOP to coalesce around another candidate who may stand a chance in the general election.

I cannot begin to express how delighted I am to watch this unfold. The Donald may well force the GOP to split into two, with the Tea Baggers on one side and the corporate sponsors on the other.

Either way, he is single-handedly killing the US Right as a unified political force.

For that I have one thing to say: Go The Donald!

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.

 

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