Archive for ‘Democracy’ Category

Apologies in advance for the hyperbole but once I got on a roll it was impossible to stop.

 

I got bagged last week by some who knew me and read my post about Andrew Little and Labour as I appeared to them (and not all of them would fit into the mold of Left or Liberal) as a closet or crypto sympathizer for National and John Key and all they stand for.

This of course would be far from the truth, as on the political spectrum, I consider myself a fascist anarchist and in no way supportive of National. But as I said last week I am no fan of Labour but some took my last post as a clear vote for the Senor Key and Co. So to keep the karmic balance this post will peel away the blue on National corpse and see what lies underneath (I was planning to write about the security services in NZ but c’est la vie).

The difference between my analysis of Labour and National is that while my focus on Labour was on the failures of the party over the failures of individuals, National is the opposite it’s the failures of individuals that dominates the party and has done so for over a decade now.

To start John Key has been very successful as a politician, so successful in fact that it would be easier to call National the “John Key Party” than refer to them as National. But Keys success as Politician has come at a cost, to both himself and the John Key Party.

Firstly Keys success as politician does not translate well into actual leadership, legacy or being remembered as PM. The multitude of screw ups, gaffs, scandals, dodgy behavior, greedy and corrupt behavior by Keys minions is legion which shows that despite his high polling he has been unable to keep his employees from running amok when his eyes are not directly on them.

This is because that Key has his own version of the Fuhrerprinzip (leadership principle) in play here. He may not have started out as the dictator of National but as the success of the party rests entirely on his ongoing popularity it’s become his show and his show only and much like other dictators Key keeps those under him busy squabbling for power so that they don’t have time to unite against him or do too much damage.

Unfortunately political golems that comprise the party, such as the reptilian Judith Collins, failed Wagnerian/Faustian Jerry Brownlee and power hungry Steven Joyce, feature regularly in the press but rarely for good reasons.

Collins misdeeds are numerous and not even worth mentioning here except that it’s clear that Key brought her back into cabinet after the scandal of Dirty Politics and who she was dining with in China under the old adage of ‘keep your friends close and your enemies closer’. The smiling assassin wants to see the blade coming and by keeping Collins on a short leash and continuing to utilize her attack dog qualities he keeps her occupied and not with no further time to plot his overthrow, as had been rumored.

Brownlee also has been a useful tool to Key as flak catcher for the growing disquiet around the Christchurch Rebuild (nepotism, shoddy work practices and questionable dealings) but Brownlee is really known for little but his escapades in the media where he tried to start a war with Finland, Flouted Civil Aviation Authority rules and has demonstrated that his mouth is not connected to his brain. Also his placement as Minister of Defense, while seeming important, is actually a demotion to a backwater government department as a way of keeping him busy and out of trouble (much in the same vein that Murray Mcully’s appointment to the Foreign Affairs kept him out of the way by keeping him out of the country as much as possible) with all those “important” meetings overseas.

Meanwhile Steven Joyce oversaw his Frankenstein creation of MBIE (among other misdeeds), cobbling together disparate ministries and sections of government into an unholy (and unworkable) creation, staffed at senior levels with barely competent DCEs and then jammed into a chicken coop of a building complete with opulent surrounds at taxpayer expense. It was a power grab pure and simple and much in the vein of the SS in Germany capturing police and security functions under the banner of “centralization” but it’s become a bloated sagging beast with a toxic work culture and extremely high union membership.

But it’s not only the senior ministers that have appeared in the media as creatures that you’d rather not sit next to on the bus. Arron Gilmore will be forever remembered as for his arrogant outburst regarding who he was in regards to his membership in the John Key Party and current troubles with Todd Barclay’s staff show that the newer members of the party won’t be lax when it comes to acting like they are to the manor born.

And these are just examples that I am pulling off the top of my head. There are so many more that it does seem at times that the New Zealand political press are running a concerted campaign to discredit the Senor Key Party by publishing only the bad news but the truth is that the behavior of the members of the party has long been grossly out of touch with expected standards of decency and behavior. The short lived political career of Pansy Wong springs to mind or the highly inappropriate behavior of Maurice Williamson in calling the police when a rich “friend” was in trouble for are just a few more that freely spring to mind.

But there is a method to my madness in cataloging these examples of nether-spawn here and it’s to place the popularity of Key in clear contrast to the Party (and its dismal inhabitants) he fronts.

Key is the Golden Boy, popular in the polls and able to appear in public during daylight hours. But the shadow he casts is long and dark and it’s in the darkness that things grow and thrive, things which cannot go into the light lest they die from exposure.

This is a tale of horror and dark deeds, of human sacrifice and blood, of a pact with demons, a deal with the devil.

Our tale begins in 1999, after nine years in government (and the last three at the behest of Winston Peters) Jenny Shipley (now being sued as a former director of Mainzeal) steered the party onto the rocks of Defeat and Helen Clark led Labour into power. Nationals performance in 1999 was dismal but was nothing to the beating it got in 2002 (20%; it’s lowest ever election result and a nadir even lower than anything achieved by Labour at the polls).

Then several strange things happened but to sum it up simply the party was taken over/bought out in aggressive coup by right-wing interests fronted by Don Brash and the Business Roundtable (Now known as the New Zealand Initiative in an attempt to re-brand its tarnished image). Bill English (possibly the last real link to National of the past times) was sacrificed publicly and painfully on the altar of political convenience and John Key entered the party (or if rumors are to be believed he was aggressively recruited due to his wealth and connections).

Weather Brash had sold his soul to get the leadership or was a patsy may never be known but it’s around this time that the remaining country elements of the party were being cleared out and put off to pasture (no pun intended). Dark words and incantations had been whispered and evil things summoned and now the life that flowed through the party was no human blood but a mix of money, religion and spin.

Shortly after Brash self-destructed in an orgy of greasy stories about his sex life and revelations from Nicky Hagar’s Hollow Men showed that the party was not only beholden to larger business interests but also rapidly becoming a vehicle for money and religion in ways that mirror the strange nexus of religion and power in US evangelicals. Stepping into the breach in 2006 at this time was John Key and the party’s fortunes mysteriously began to rise (to be fair Brash’s infamous Orewa speech had helped to raise the party’s fortunes but his own personal culpability was still poison to the party).

And rise they have but only in relation to Keys personal popularity and when he falls the party will fall with him.

By listing only some of the stains found on the scaly carcass of the party it’s clear that the John Key Party is not only wholly corrupt but incapable of behaving in any manner that requires honesty, decency or integrity and that without the magic of John Key National would have either self-destructed (ala Labour with endless power struggles and coup attempts) or faded into electoral irrelevance by now.

So what’s the plan in the post Key environment for the misanthropes of National? Which of the shambling horrors currently prowling the halls of the Beehive would the average Kiwi voter go for?

The first (and only) name that springs to my mind is Simon Powers. He was being groomed for the role by being chief whip and had the looks, and ability to speak without putting his foot in his mouth but Powers left after two terms (perhaps sensing the poison in the chalice being offered to him) for greener pastures (Run Simon, run!).

Other than that it’s difficult if not impossible to imagine anyone of the current crop of National MPs now sitting at the top level being able to either lead the party without its descending into a hellish power struggle or elicit any positive reaction in the polls to the grotesque suggestion that they may be likable or have any human feelings (or perhaps are even human). Further with the junior ranks either imploding due to swollen hubris or simply because so many National MPs (like Labour’s middle and bottom tiers) are just seat fillers, cautious drones taking their nice salary and doing little for their electorates, no voter in their right mind would be ticking their name on the ballot form either.

A clear example of this hideous electoral dislocation is Winston Peter’s astounding win in the Northland by-election. In what was supposed to be a safe National seat (until Mike Sabine was found to be under investigation by the Police for Assault in another instance of reprehensible behavior) Winston took his traveling medicine show out on the hustings and reaped the spoils of Nationals arrogance and terrible treatment of the electorate.

And if your still reading at this point you may be getting the picture. National is a party that is on life support and that life support is John Key. As soon as he leaves or no longer has the magic touch in the polls the party will be a shambling corpse, an undead husk full of nothing but vile waste and human maggots.

No one is going to vote for Judith Collins, Jerry Brownlee or any of the others grim specters as leader or as PM and the desperate reliance on dirty tricks and heavily manufactured (official and unofficial) spin has left the party desperately hyping and protecting its one and only political life line, John Key.

But zombie parties do not die, they have to be killed and the question is who will do the killing? Vernon Small pointed out in today’s media that John Keys current position in the wake of Panama Papers (the usual Key safe, clean and neat statements) is effectively “handing a cudgel” to the opposition. But who will swing it? Who has the strength?

The Greens and NZ First most certainly have the will but not the strength to really kill National. Labour has the strength but is unable to get its house in order and remains timidly cowering in the corner (in the tradition of many classic horror movies) paralyzed with fear while the beast runs amok among other victims.

Possibly in combination could these three, like some sort of political transforming robot, combine their powers to take out National but that is unlikely (an issue to be explored at a later date) and the odds that come November 2017 we will either see John Key lead his party into a fourth term or a Coalition Government with Labour, NZ First and the Greens in uneasy coexistence are high.

If National is defeated in 2017 then it’s the end of Key, he won’t hang around and will go off to reap the rewards promised by his backers way back in 2002. If National makes a fourth term then all bets are off and Key will rule as long as his popularity lasts.

And that is the final key (no pun intended) to the puzzle, his popularity. As Phil F pointed out in the comments to my last post (and is echoed by the folks over at Redline Blog), a large section of the New Zealand electorate has been docile and passive in the face of the Machiavellian antics of Key and Co.

Voter apathy in the wake of endless scandals by the National party and John Key means that where acts which would have people out in the streets or at least an uproar in other countries have been met with large doses of indifference and ignorance, which are fuel for the polling engine that drives Team Key. Part of the blame lies with the mainstream media but the other with the general public themselves (again fodder for future posts) and it’s rapidly becomes a chicken or egg argument in determining which causes which.

So to end what has again been a long post (I do apologize for the length) it’s worth summing things up. National is a dead party walking as soon as it no longer has John key to prop it up (be it in person or popularity); it’s filled with corrupt individuals and backed by larger business interest for said interests. Its policy is a mild brand of conservatism, watered down to enable it to hold the middle ground and engineered in-line with failed and discredited Neo-liberal principles.

This is a party fighting a holding action to enable those who currently benefit from 30 years of rapacious public policy to consolidate their gains and maintain their lifestyles. The fact that National is literally rotting away before the nations eyes and lead by a necromancer king has yet to generate the fear and loathing that it should in this climate of change shows that we are either under Keys spell or things will remain as they are until history does the job for us and removes the horror for us.

In times like this a heroine or hero is required, or the peoples will must be manifest, both of which have their dangers but it’s clear that the beehive is now more akin to Dracula’s castle looming over the peasant village below and at nights dark and monstrous shapes can be seen  in the windows.

Kiss her you fool! Andrew Little, Labour and the TPPA

datePosted on 07:50, March 31st, 2016 by E.A.

Thanks to Pablo and the crew for letting me post here and apologies for the length. All opinions are entirely mine and my controllers. :)

Around Waitangi day this year it appeared if Labour had final nailed its colors to the mast in terms of where it stood with the TPPA by stating that it would not sign the TPPA if it were in government*. This was swiftly corrected the following day by Andrew Little stating that while Labour opposed several aspects of the deal it would not pull out of it.

Also at this time several Labour MPs (Phil Goff and David Shearer) broke ranks and came out in support of the TPPA. Goff was allowed to do this (under the pretext of his previously being trade minister) while Shearer was not and subsequently censured for his actions.

In the months leading up to Waitangi day as the TPPA furor built to a head and was then sideswiped by the flag debate both concerned members of the electorate and political press were wondering aloud where exactly the party stood in the issue. More than one commentator had pondered where Labour really lay on the issue and how its failure to make clear its position was hurting the party not to mention that it was losing a golden opportunity to get some traction in the polls on an issue which seemed well suited to a low polling party desperate to climb out of the opinion funk into which it had sunk.

To be fair, Labour and Little have clarified their position after Waitangi and made it clear that while Labour is the “party of free trade” they oppose the aspects of the TPPA which infringe on the sovereignty of the Government to make law in NZ without being beholden to offshore and corporate interests. Some of these had been echoed on the parties own website previously but a party website is hardly the forum to get the message out and its message in the public space on the issue had either been low key or just not getting any traction in the media due to statements lacking substance when compared to the rhetorical bedrock of the Greens and NZ first.

All of this makes sense in a spin doctor sort of way but there is an eerie disquiet around the party and its future in the face of the coming general election, its leadership issues, fall in standing in parliament, ongoing poor polling, the lingering stench of distrust that stretches all the way back to 1984 and the current inability of the party to clearly establish its position as the leader of the opposition.

To be clear, if National wins the 2017 election it will be the first time since Keith Holyoake that any party will govern for 12 years straight and at this time the election is Nationals to loose not Labours to win.

Despite the rising tides of sex toys, mud and vitriol being thrown and dumped on National MPs, John Key remains high in the polling as preferred Prime Minister and the party has based its electoral strategy on playing the PM personality card as strong as possible; going so far as to have Keys grinning mug on all electoral candidates billboards as if it was him and not the actual candidate that people were voting for, which of course was the strategy all along.

Nationals brain trust, despite its inability to stop living in the 90’s, was shrewd enough to realize that no one was going to vote for either the aging party hacks; which have infested the party like a persistent fungus and have dragged the party down time and again in various scandals and corrupt activities; or the flock of pimply faced geeks turgidly swollen with their own arrogance and self-importance without a clear and direct linkage to its one ace in the hole: John Key and his high polling popularity.

This has been Nationals game since Key took over in 2007 and is the only game the party now knows how to play. It’s been fantastically successful for both Key and the party and brought them back from the brink of political oblivion after the Brash Coup and religious/money infiltration in the early 2000s but its success is tied directly to Key’s popularity and the day his polling fails to make the nut is the day that the seat of power is up for grabs.

And this is the problem for both Little and Labour. It became clear after Helen Clark left for greener pastures that leadership in the Labour was not in abundance. As the cavalcade of neutered Clarkites came and went in succession before Little took the job clearly illustrated.

First in the wake of Helen there was the ever smiling Phil Goff, like some grinning Labour doppelganger to Nationals Lockwood Smith, Goff and his ever present smile led the party into the post Clark world and lost the 2011 election due both to his own inability to fight Key on popularity but also due to that ever present factor in New Zealand politics: third term arrogance. Labour after nine years in power had done what many third term governments do, simply forgotten how things work and acted like pompous douche bags (to be fair under Clark it was probably toe the line or get the cut and tuck but none the less) and their loss in 08 was echoed again in 2011.

Then the knives came out and in scenes familiar to those who were watching NZ politics in the late 80’s, the pretenders to the throne made their plays.

Next there was David Shearer, touted as Mr International he failed to make his mark on the electorate and his “sense” of his colleagues was ill judged as less than a year after getting the job the rumours were already swirling about leadership challenges and before he could celebrate the second anniversary of being in the role, and with an election approaching, he was deposed and another David stepped up.

Enter David Cunliffe, and then exit David Cunliffe. At no point was his position ever secured and his mark on the party was to lead it to a hideous beating at the polls in 2014. A beating that almost broke the party in the public’s eyes and gave both the Greens and NZ-First a shot of vitamins; making them more credible parties (by giving them room to grow) and helping to set up the Greens eventual usurping the role as moral leader of the opposition and Winston’s win in Northland (although it was Little’s age comment about Peters that seemed to really rile the electorate).

The key theme in all three of these “leaders” was the depressing air of abject impotence about them and all the reek of failure by men who truly know they are not worth the crown but will stake a claim none the less.

Then came Andrew Little, obviously hoping that the “three times a charm” magic of Clark would be bestowed upon him as it had her, after the dingbats antics of Palmer and Moore had been allowed to soil the top floor (and in Palmers case the balcony with his teenage saxophone solos) of the Beehive with their greedy dreams of power. Just as Shearer and Cunliffe had done their dash now it was time for the “real leader” to step up.

So the question that has yet to be answered is this. Is Little going to lead the party in the manner of Helen Clark or Norman Kirk or will he simper away and eventually be rolled by others with more ambition than him?

Up to this point; under Goff, Shearer and Cunliffe; Labour has tried to fight Key on his turf and at his game; ie personal popularity, the cult of personality and in the mold of US style leadership campaigning rather than promoting a broad social vision or attempting to energize the electorate, which were catalysts for both labour under Kirk and Lange.

And this is where the obtuse responses to things like the TPPA are going to hurt Labour. It’s not the issue itself in many cases that counts but a clear and unambiguous position to whatever the issue is which shows the party as a genuine party of the opposition and not a craven bunch of eunuchs waiting to see which way the wind is blowing before taking a position. In these areas NZ First and the Greens have consistently taken up the slack left but Labours tepidity by clearly stating their position on an issue.

In recent weeks there have been signs that someone has realized that ‘boring = stupid’, as the release of ‘10 big ideas’ about the future of work has shown. It’s not just a step in the right direction but an also indication that there is nothing to lose by floating out ideas, concepts or plans which are not just new and interesting but clearly in opposition to the staid, boring, innately conservative and business as usual approach that is the hallmark of the National government (in fact it’s all National knows but that’s a discussion for another time). Whoever is behind this approach clearly is not a victim of Clark’s neutering.

But is this Little’s doing? Is he behind this? In his time in the role, just over a year now, it’s clear that Andrew Little does not want to repeat the mistakes of his predecessors but it’s also clear that his current mode of politics is simply to play it safe, close the doors and wait for the Government to make a mistake, a wholly reactionary approach to politics and not one that is likely to endear itself to the electorate, nor one that will reap any serious dividends while the Teflon on Key is still in effect and the innately conservative approach of his party does not offer up many opportunities to strike. And even when opportunities have presented themselves (such as the TPPA, Serco, refugees or even things like the Canterbury Rebuild) Little has played it safe and stuck with comments which do little to give any indication that he would have done different or actually shows any passion on any issue.

In part this is because of the process by how Little came into the top job in the Labour party and how the cabal of professional politicians, which occupy much of the upper ranks of the party, don’t want him, never wanted him and would happily see him out and replaced by one of their own.

To start, the rise of Andrew Little to leader of the party came through the strange electoral mechanics of the Labour party itself (40% caucus, 40% party and 20% union). The close race between Andrew Little and Grant Robertson showed that when it came down to the wire it was the 20% of the union vote which gave Little the job and not any hearty support from those he sits in cabinet with.

Relics of the Clark years like Goff, Dyson, Mallard, Shearer, Cunliffe, Cosgrove, King and Parker show there is a core of hardened professional politicos who have less to do with representing their electorate and more with ensuring they remain in paid employment as their options outside the safe confines of politics are dim (for those thinking I’m picking on Labour here don’t worry National is in a worse state with its dead wood but again that’s for another day and they at least have the magic of John Key to keep them in their day jobs).

It’s safe to say that not all of these long term politicians are fans of Andrew Little in his role as leader, a fair few didn’t vote for him or want him there (Grant Robertson swept the caucus and the party votes in the leadership election and it was only the vote spread for the other candidates in the first round (Parker and Mahuta) and the 20% union vote which allowed Little to pull ahead in the second and third rounds).

And this is where it gets all Game of Thrones for Andrew Little, complete with incest, violence, sex and lashings of intrigue. He must fear the knives which are all glinting out there, just waiting for his exposed back, hidden behind friendly smiles and handshakes at the party meetings. It’s clear that this fear of making a mistake is part of the reason why he has spent the last year doing little to lead the party on the attack and plenty of time trying to consolidate his position. But again to go back to an earlier point; the coming election is Nationals to loose not Labours to win. Labour is going to need more than a spiffy training montage set to 80s synth rock to make the grade come the main event. Plucky underdog it is not!

In the short, gut based analysis of the situation it appears that Labour, like the current crop of republicans in the US, would rather harm its own chances of election rather than let “that Little bastard” have the job of PM. The only difference is Little is nowhere on Par with Trump.

But Andrew Little is also not Norman Kirk (an innately popular politician who lead Labour through two loosing elections as leader before winning the third on a combination of his own personal appeal but also by building the party up as the answer to a stagnant National under 12 years of Holyoake). Little’s popularity is low and the prospect of facing him off against a still popular Key is akin to throwing kangaroo meat into a lion enclosure. Nor does Little have the luxury of losing two elections before winning it in the third. The day after electoral defeat in 2017 is the day that he will start hearing more than one blade being sharpened.

Little can perform in the house but this is as far as any strategy of playing Key at his own game (that of popularity/personality) is going to work as in the general media he comes across as a concerned vaguely liberal uncle. Not a sandal wearing tree hugger but a quiet, responsible person who has never kicked out the jams in his entire life and who certainly would not mug for a selfie, pee in the shower or dislocate his jaw while deep throating a hot dog.

In fact while Andrew Little is certainly not a man in the mould of Norman Kirk he could take a leaf out of Kirks playbook in regards to how he and Labour won the 72 election. Kirk went in with a new platform, a new manifesto of change and better things ahead and swept the field, winning a margin of 23 seats and a mandate to make NZ anew. And this was after two previous losses to National in 69 and 66. The situation is not exactly the same but the parallels are significant.

Of course it is not so easy under MMP to pull off such a feat but the current state of Labour at this time shows no indication of even moving in this direction (its 10 steps as the noted exception). Perhaps there is a grand strategy hidden away behind closed doors, just waiting for the right moment to put it into operation. If so then it could be a long wait as politics, like romance favours the bold, not the plodding and the mood of the NZ electorate is like that of a crowd watching a romantic comedy where the male lead can’t get up the nerve to make the first move and the audience is yelling “Kiss her you fool!”.

That’s right, like having kids, there is no special time to do it and Andrew Little has a fair few seeds to sow between now and November 2017. Labour will not take any future election alone unless there is some firebrand, walking talking Jesus figure hiding away who can better Key in the selfie mugging, showering peeing and hot dog fellatio stakes (in fact the only current contender in this area for the golden hot dog would be Winston Peters, but Peters would never stoop to going down on a processed meat product). This means that while it’s not simply enough to roll out a new plan for NZ Labour also must get the Greens and NZ First to buy in as well (or more likely accept some of their policy ideas into their own intellectual portfolio).

So while the TPPA remains a missed opportunity and the flag debate is done and dusted there is still time for Little and Labour to step up their game and take it to the hoop. If they don’t Key will rule for 12 years as PM, the lizard people will finally take over and Labour may as well just give up the ghost.

Labour can’t fight Key in the personality stakes and can’t remain inert and neutral in the face of Keys capture of the middle voter NZ (all 37% of them). As I have said before now is the time for Hail Mary’s and wild new ideas. If Little has looked at the mood of many western states across the globe he may have noticed the polarization of voters and the rise of those promising a change to the squalid BS of the established order.

While Andrew Little is no Jeremy Corbin or Bernie Sanders he doesn’t have to be to win over NZ. What he needs are some new ideas, some new faces, the courage to take the issues to the electorate and the humility to not treat the required coalition partners like serfs under a feudal lord (as Labour has been known to do). Labour may lose come 2017 but they certainly won’t win playing their current style.

 

Notes:

1)       I swear I saw this article come up online on Waitangi Weekend but subsequent searches have failed to locate it since, it could have been an overeager journalist but the fact that it was followed a day later about Labours party retreat and Little allowing Goff to walk on the issue seems to me that it was something said in haste and then rapidly backed away from.

I have had a professional interest in torture since my days doing human rights work in Latin America. As part of that work I talked to victims as well as perpetrators of state terrorism and subsequently wrote professionally about its usage in Argentina. Later on I consorted with members of the US counter-intelligence community who were responsible for interrogations of suspected spies and other bad people. They helped me understand the difference between coercive (as opposed to passive or sympathetic) interrogations and torture. The combination of experiences made clear to me that torture is more about punishment and collective deterrence through fear than it is about timely and sensitive information-gathering.

When the US started using its “enhanced interrogation techniques” after 9/11, descending into the medieval weirdness of Abu Ghraib and camp X-Ray at Guantanamo Bay, I tried to make sense of it.

In recent years the US Congress and the CIA have conducted investigations into the enhanced interrogation program. The bottom line is twofold: enhanced interrogations did not work any better than “normal” interrogations in extracting valuable information from terrorism suspects; and the justifications for using them was specious and deceptive at best. The best way of garnering valuable intelligence, as it turns out, is through a combination of timely signals collections working in concert with old fashion human intelligence gathering on the ground.

Now along comes Donald Trump claiming that not only does torture work but that he would “do worse” to suspects than water boarding in order to extract information from them. By now it should be clear that he is a blithering idiot on foreign relations, military affairs, intelligence operations, and pretty much everything else when it comes to public policy, to say nothing of being a serial liar with the purest case of narcissistic personality disorder seen since Narcissus himself (and were it that he could only suffer the same fate).

Heck, he makes Al Gore’s claim about inventing the internet look like a child’s fib in comparison!

In any event, Trump is dangerously wrong.

In an interview with a NZ business publication, this is what I had to say bout Trump’s remarks.

Media Link: Brussels’ heart of darkness.

datePosted on 19:56, March 23rd, 2016 by Pablo

I wrote a short opinion piece in the Herald outlining some of my thoughts about the Brussels terrorist attacks. Unless the root causes of the problem are addressed, there will be no end to them. Even if they overlap in the form of foreign fighters, those root causes primarily reside in the disaffection and alienation produced by socio-economic and cultural grievances at home rather than in the conflicts of the Middle East. The solution is to be proactive as well as reactive to the threat posed by domestic radicalisation, and that involves social reform as well as better human intelligence collection in the communities from which home-grown jihadists emerge.

Something Fundamentally Wrong.

datePosted on 14:36, March 18th, 2016 by Pablo

In last Monday’s press briefing, the Prime Minister took my name in vain. Responding to questions from a reporter I had talked to, he said that my concerns about the apparent illegality of undercover intelligence operations were “fundamentally wrong.” Instead, he said that although intelligence agencies could not break laws (tell that to Kim Dotcom), they might require “different laws.”

I beg to differ.

Before delving deeper, let’s address the PM’s remark about the need for “different laws” governing undercover intelligence operations. What does he mean by “different?” Is he proposing that there be one set of laws for regular citizens and another set of laws governing undercover intelligence work? How does that sit with the “equal rights under the law” premise that is at the heart of democratic jurisprudence? And if there is no provision for “different laws” governing undercover intelligence operations today, then what is there in extant law that makes otherwise illegal acts legal? How often and under what circumstances are these illegal-but-legal acts allowed and are they only allowed or legal under warrant? Something tells me that the answers to the last two questions are “frequently and routine” and “no” respectively.

The question about undercover intelligence operations was raised because during the course of conversations with a couple of reporters about the Intelligence Review in general, I pointed out that the most interesting items were buried at the back of the report. Reporters tend to read the executive summaries of official government documents but seldom have the time or inclination to read through 179 pages of dense prose and legal jargon.

But since I have the time and inclination, I did. Plus, in my former life as a US government official I actually helped draft such reports so know that the best way of reading them is from back to front. That way one can get to the meat of the report, often found in annexes, before wading through the fluff.

I should point out that my overall take on the report is this: given who was on the Review committee, the report was inevitably going to have a bias towards institutional continuity and incrementalism with regard to reforms. That is indeed what happened. The report reflects as much if not more of the spy agencies’ concerns than it does that of external parties or stakeholders like the civil society organisations and individuals that were consulted by the Committee. The result is bound to be disappointing to those who wanted a major overhaul of the intelligence community or wanted parts of it disbanded altogether, such as the Greens, but to my mind it is a small but acceptable step towards greater transparency and accountability in the NZ intelligence community and its main collection agencies, the GCSB and SIS.

Even so, there are several problematic areas in the report that are worth considering, and here I will focus on the undercover operations that the PM thinks I have interpreted so fundamentally wrong. Rather than present my views without context, here are (cut and pasted) the recommendations regarding undercover operations as listed in the Report:

163 Annex C: Full list of recommendations (abridged).

Cover for operations and employees

78.The legislation should explicitly provide for the Agencies to obtain, create and use any identification information necessary for the purpose of maintaining the secret nature of their authorised activities. This should include the ability to create cover for anyone authorised to undertake activity for the Agencies.

79. “Identity information” should include anything that could be used to establish identity – such as credit cards and shell companies in additional to traditional forms of identification (such as passports and driver licences).

80. The Agencies should also have the ability to obtain, create and use identification information necessary to keep the identity of their employees confidential.

81. The use of these powers should be covered by a tier 3 authorisation (policy statement) to ensure they are exercised only where necessary and proportionate.

82. There should be corresponding immunities from civil and criminal liability for reasonable acts done in good faith to create or maintain cover as part of an authorised operation or to keep the fact of a person’s employment with the NZSIS or GCSB secret.

Immunities.

83. These powers and immunities should be incorporated through general provisions in the legislation governing the Agencies, rather than by inserting specific exceptions in other legislation as is currently the case.

84. The same immunities should apply to both agencies, in line with our recommendations that the Agencies share functions and an authorisation regime.

85. Immunities should also apply to anyone required to assist the Agencies, such as telecommunications companies, or to human sources or agents acting at the Agencies’ request or direction.

86. The legislation should provide that no person should be subject to criminal liability for acts carried out in good faith and in a reasonable manner that are necessary to give effect to a tier 1 or tier 2 authorisation.

87. Employees of the Agencies should also have immunity from criminal liability for acts carried out in good faith, in a reasonable manner and in accordance with the purposes of the Act to obtain a tier 1 or tier 2 authorisation.

88. The immunities for employees of the Agencies should also extend to any relevant minor offences or infringements that may need to be committed in the course of investigations carried out under a tier 3 authorisation (such as breaches of road user rules).

89. Employees of the Agencies and any person acting at the request or direction of the Agencies should be protected from civil liability for acts or omissions in good faith in the pursuance or intended pursuance of the Agencies’ duties, functions or powers. This is the same protection as is provided to public sector employees under the State Sector Act 1988.

90. Where the GCSB or NZSIS is assisting another agency to perform its functions, any immunities that apply to the agency being assisted should also apply to the GCSB and/or NZSIS.

 

Readers can form their own conclusions about what these recommendations imply. But here are some thoughts. It appears that undercover operations conducted by the SIS (and to a lesser extent the GCSB) do not have specific legal cover as things currently stand. There are no provisions in the SIS or GCSB Acts that explicitly refer to a legal framework under which otherwise criminal acts undertaken by undercover intelligence agents may occur. That means, in effect, that until now undercover intelligence operations are essentially illegal except for the fact that they are conducted by agents of the State at its behest under exceptions to existing legislation (outside of the GCSB and SIS Acts or even the State Sector Act). But even then there is apparently nothing in the law that explicitly authorises undercover intelligence operations that otherwise would be criminal acts (say, burglary, forgery or credit fraud). Yet the recommendations speak directly to such acts so clearly they have been happening.

The problem is not just that SIS agents have no specific legal cover for what they do covertly, something that individually places them at considerable risk in the event that they are caught or detected. There also are no specific provisions on what they cannot do. Where is the line drawn as to what is permissible when acting as an undercover agent of the State. Murder? Arson? Extortion? Blackmail? Kidnapping? Credit card fraud? Money laundering? Burglary? Home invasions? Tail-gating? (I include this because recommendation 88 specifically mentions breaches of road user rules). If an agent is recklessly tail-gating a surveillance target and wrecks while doing so, killing or injuring passerby, is that agent immune from prosecution or liability because s/he was in the service of the State?

These questions are not frivolous. From my personal experience, I know that among other things covert or undercover agents are taught how to pick locks and conduct “traceless” break-ins and burglaries (they are even provided with the tools to do so). Cyber-hacking to install malware or to steal sensitive information is a stock in trade of signals intelligence agencies. Clandestine surveillance of all sorts is the bread and butter of most human intelligence agencies. The CIA has its own lethal drone program and paramilitary branch, as do several other spy agencies. The Mossad is, among many other things, a brutally efficient assassination machine. So where does one draw the line when it comes to otherwise criminal acts carried out by intelligence agents of the NZ state?

The recommendations repeatedly speak about acting in “good faith.” But how is “good faith” defined? The SIS agents who broke into activist Aziz Chowdry’s home in 1996 were probably acting in “good faith” when they committed what otherwise would be a crime, but how is it that stealing documents from activists is justified on national security grounds? Moreover, the person who caught the SIS agents in the act of breaking and entering, David Small, had his home raided, ostensibly to search for bomb-making materials, by the Police a week later, after making the initial complaint (he was able to record the SIS get away car’s registration plate number, which was traced back to an SIS front company). How was the raid on Dr. Small done in “good faith” and at whose behest? The government was eventually forced to settle with Mr. Chowdry for a six figure amount and, worse yet, forced to apologise to him for the break in (you can read a summary of the case here).

Dr. Small also received compensation for “unreasonable search.” If we accept that an apology implies recognition of wrong doing and that “unreasonable searches” may be part of the SIS repertoire, then how and where does “good faith” come into the picture? Add to that events such as SIS break-ins at Auckland University in the late 1990s (if I am not mistaken Jane Kelsey’s office was a target), and one gets the idea that the SIS engages in otherwise illegal acts not so much for national security reasons but because it simply can under a de facto “good faith” immunity clause. So the effect of the current recommendations would be to codify what is already informal usage and practice.

The issue of “good faith” extends beyond New Zealand’s borders. Inspector General of Intelligence and Security Cheryl Gwyn is currently investigating whether the SIS was complicit in the CIA extraordinary rendition and black site program. For those unaware of these, the program involved kidnapping or detaining suspected Islamic extremists and “rendering” them to clandestine detention centres in a number of countries (Poland, Thailand and Egypt, among others). There they were subject to euphemistically labeled “enhanced” interrogation techniques (some of which are more properly classified as torture). Although some of those “rendered” by this program turned up in Guantanamo Bay or in prisons operated by US allies, many others have never been seen again. All of this was conducted off the books and outside of legal guarantees or protections for the detainees.

Assuming that Ms. Gwyn does find that in fact the SIS knew about or was complicit in the extraordinary rendition/black site program in contravention of NZ commitments to international conventions against torture and arbitrary detention, can the SIS turn around and claim that it was doing so in “good faith?” Is “good faith” nothing more than a get out of jail card for the intelligence services?

The bottom line is two-fold. First, undercover intelligence operations to date have been conducted under very porous and somewhat dubious legal cover that allows a multitude of operational sins to occur under what seems to be a wink and nod agreement with other agencies such as the police and Crown.

Secondly, the recommendations in the report about legal cover for undercover intelligence operations are very vague and broad, which allows the possibility for agents to go “rogue” so long as they can claim that they are acting in “good faith.” Neither is acceptable in a liberal democracy.

I agree that a comprehensive legal framework is needed governing the circumstances and permissible activities conducted during undercover intelligence operations. But this framework has to specify as much what is not permissible as what is, and has to ensure clear lines of responsibility as well as authorisation before and during the conduct of said operations. Otherwise we run the risk of allowing State-sanctioned criminal enterprise to masquerade as intelligence gathering.

The destruction of brand Trump.

datePosted on 11:37, March 13th, 2016 by Pablo

As readers may be aware I am delighted by the Trump candidacy because it is destroying the Republican Party and will pave the way for an epic defeat in the November general elections. Not only will the GOP lose the presidential race because none of its candidates will be able to muster the votes needed to overcome the Democratic advantage (be it Hillary or Bernie who lead the ticket). It could well lose control of Congress on the negative coattails of the presidential race (the entire House and 1/3 of the Senate are up for grabs, with the Democrats needing to win 4-5 current Republican seats in order to gain control of the Senate). It does not matter if Trump is the GOP presidential candidate or if he or another Republican go independent in the wake of the convention, which itself promises to be a bloodbath. The vast majority of swing voters and independents, who tend to vote on the Left in any event, will be galvanised to vote against whatever the Republicans have to offer, Trump in particular. For all his bluster about bringing out new voters on the Republican side, what he really has done is bring out new voters on both sides–most of whom are against him. As a result, the GOP is doomed and could well split into Tea bagger/populist and “moderate” right parties in the wake of what is looming as an electoral  catastrophe of historical proportions.

A tipping point has been reached this week with the escalation of protests against Trump at his rallies and the retaliatory violence of his supporters and campaign staff and security against those who dare confront him on his xenophobic bigotry and inflammatory rhetoric (and one has to ask why local law enforcement and the Secret Service act as his praetorian guard when removing peaceful protesters at his behest. After all, they are not in his employ and are not legally authorised to detain, handcuff and arrest people exercising their right to protest in public spaces just because he wants them forcibly removed).

The cancellation of a Chicago rally because of protests will only encourage more of them, and they will be increasingly large and organised in nature. That in turn will enrage Trump, who does not have the good sense (or even basic ability) to moderate his venom, which will bring out the full nut case element in his support base (which has already started to appear more and more frequently). Unfortunately, it is now a very real possibility that someone will be killed or seriously injured at a Trump rally, and the perpetrators will be his supporters, not his opponents.

When that happens, the wheels will come off the Trump political cart.

By then the damage to the GOP “brand” will have been irretrievably done. But what I find just as wonderful is that Brand Trump itself is now irreversibly damaged as well. However illusory, it used to represent luxury, opulence, quality, style and the excess that comes with success. It had global recognition. It was synonymous with capitalist high rolling, only in part because of his obsession with casinos.

In the wake of this presidential campaign, that image has been replaced by something less illusory and much darker. “Trump” is now synonymous with racism, xenophobia, buffoonery, demagoguery, narcism, sociopathy, chauvinism, misogyny, war-mongering, bullying, cheating, lying, senseless violence, stupidity–the list goes on. Whatever people may have done by way of word association with the name Trump in the past, my bet is that the first thing that now comes to mind when his name is mentioned is some of the negative terms mentioned above.  In fact, the word Trump may well become an adjective or verb, as in “that old white dude went all Trump on me when I said that Obama was not a Kenyan,” or “that reactionary fool is just plain Trumped in the head.” It could even be used as a noun, for example, as in “Trumpster:” n.: an idiot, fool, dolt, ignoramus, numbskull, someone who is gullible, slow on the uptake, blindly naive or prejudiced in the extreme.

His tarnished brand may survive in the US, perhaps in red neck resort destinations like the Florida panhandle and the coastal Deep South and/or parts of Appalachia. But many Americans, and not just “ethnic” Americans or Democrats, will shun his products, services and anything with his name on it. There may be boycotts and protests organised against them. And with the possible exception of Putin’s Russia (given the mutual admiration society he runs with Trump), as a global brand it is finished. Think of the Arabs, Latin Americans, Asians and even Europeans that Trump has scapegoated and insulted. Any current or potential Trump business partner or investor now has to wonder if they will be tainted by association with him and whether their business will suffer as a result. Given daily revelations of his less than salubrious past business dealings, profound dishonesty and myriad failures that have ruined others much more than it has hurt him,what foreign governments other than those of tinpot dictators are going to want a bar of him as an investment partner? Even better, increased scrutiny of his business dealings may well result in criminal charges being laid against him, which will only add to the tarnish on the brand.

The hard fact is that the Trump campaign will prove deleterious for Trump business holdings, which explains why his managerial minions, “the best people” in his words,  are currently in the process of putting legal and PR distance on him. The trouble for them, however, remains embedded in that ubiquitous name.

This is the silver lining in the Trump cloud. Not only has he exposed the ugly side of US politics. He has exposed himself and his illusory brand in doing so. He is taking the GOP down along with him, and neither it or his brand will survive the fall intact.

That is truly a good thing.

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.

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