Archive for ‘Intelligence and Security’ Category
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.
I was a replacement panelist invited by the New Zealand Institute of International Affairs to join a discussion in Wellington on the Iranian nuclear agreement. It was a a pleasant event that addressed the pros and cons of the deal. I was impressed with some of the speakers, particularly Dr. Parsi from Lund University (speaking via Skype). I was less impressed with the Israeli discussant and the statements (not question) by an official from the Iranian embassy who was in the audience. All in all, it was an engaging affair and I encourage the Institute to continue with such public outreach efforts.
I spoke a bit about how the deal can be viewed on two analytic levels: as a First Image (interstate) issue and as a Second Image (domestic sources of foreign policy) matter. I mentioned that a way to conceptualise the agreement is as part of a “nested game” (to use a game theoretic term): the deal is part of a series of interlocked interactions (or “games’) that can be seen much as those iconic Russian dolls are (one inside the other) or as building blocks towards a larger whole. I noted that the core of the agreement was to exchange trade for recognition and security–in other words, Iran gets more trade and recognition of its legitimate interests and stature as a regional power by putting the brakes on its nuclear weapons development program with an eye to cancelling the weapons program altogether should the agreement prove beneficial for all sides. They main lever is another trade-off: dropping of international sanctions against Iran in exchange for a rigorous international (IAEA-managed) inspections regime.
For those who are not familiar with the agreement, it is not a bilateral US-Iran affair although they are the major players in it. Instead, the treaty was negotiated by the P5+ 1 parties and Iran, the P5+1 being the permanent UN Security Council members (the US, UK, France, China and Russia) plus Germany. For those interested in the details of the deal, the official US government position is outlined here (which includes the text of the full Agreement itself). A US translation of the Iranian interpretation can be found here. The fact that the P5 agreed to the deal is remarkable given their history of disagreement and subterfuge on matters of international security.
There was an interesting sidebar about “breakout time” introduced by the Israeli, who waxed hysterical about the apocalyptic implications of the deal. Dr Parsi noted that “breakout” refers to the time needed to enrich uranium to weapons grade, in response to the Israeli claim that the deal gave the Iranians a breakout potential of one year. Prior to the deal, that enrichment breakout threshold was two weeks. The point is that “breakout” time refers to the time needed to begin enriching uranium to weapons grade rather than the time needed to build a bomb.
Dr. Parsi noted that “breaking out” on enrichment is not the same as putting nukes on missiles. I said nothing at the time but here I actually know a bit without being a nuclear scientist ( I studied nuclear strategy under one of the original strategists behind the nuclear bombing of Japan and so-called MAD theory. He grappled with the moral dilemmas involved in front of me and my student cohort at the University of Chicago (home of the Manhattan Project) and later changed his mind with regard to MAD). The notion that Iran can start enriching uranium or reprocessing plutonium to weapons grade in a short period of time and then quickly build a missile launched nuclear warhead is simply mistaken.
From a technical viewpoint beyond the specifics of Iran’s enrichment and reprocessing programs, the problem of weaponising nuclear material is simple. Unlike the multi-ton “dumb” bombs that were dropped on Hiroshima or Nagasaki using concentrated high explosives as triggers focused on the nuclear material, the bulk of testing then and now consists of reducing the nuclear payload to a size that can be carried in the nose cone of an (increasingly small and light) intermediate range or intercontinental missile (IRBM or ICBM). The smaller the size of the delivery vehicle, the better its chances of avoiding surface to air or air to air interception. Given that requirement and the need for accuracy, nuclear payloads share very tight space with guidance systems. All of which is to say that given the weight constraints on a high velocity long range projectile, the “bomb” has to be miniaturised for maximum bang for the buck. Doing so requires downsizing the trigger mechanism from focused high explosives to something else. Laser triggers are one option. There are others. All of them are off limits to the Iranians irrespective of the deal. So not only is the fear of “breakthrough” unfounded and exaggerated for political purposes, but the real concern regarding mounting nukes on missiles is subject to both contractual and non-contractual enforcement.
My general view is that the agreement is worth doing. Other speakers and I commented on the downside, which mostly involves the reaction of Israel and the Sunni Arab oligarchies as well as domestic opponents in Iran and the US. I noted that there are disloyal hardliners in both the US and Iran that have potential veto power over the deal in the future should governments change, and that it was imperative for the soft liners or pragmatists to accrue tangible benefits from the deal in order to resist the sabotage efforts of hardliners who have vested interests in keeping tensions alive between the two countries. I made the point that Iran is more akin to Cuba than North Korea, and can be brought into the community of nations so long as it was recognised as a regional power with legitimate interests.
Speaker’s times were very limited (7 minutes each), so I was unable to fully address what I had intended to say. So let me do so here.
The lifting of sanctions on Iran as part of the quid pro quo at the heart of the deal opens a window of trade opportunity for New Zealand exporters and importers (more so the former than the latter). Coincidentally, Foreign Minster Murray McCully has announced that in a few weeks he will be leading a trade mission over to Iran to discuss those opportunities. This is in advance of the implementation of the accord (which goes into effect at the start of next year) and is, as far as I can tell, the first official Western government led trade mission to Iran in the wake of the signing of the agreement.
But let us be clear on what that mission needs to entail. Although Iran’s human rights record needs to be mentioned, however pro forma by McCully, to his Iranian counterparts, the point that must be emphasised is that New Zealand’s opening of trade relations with Iran is absolutely, explicitly contingent upon Iran adhering to its part of the bargain. Should Iran in any way shape or form renege on the letter or the spirit of the agreement and the inspections regime that it authorises, then McCully needs to make clear that New Zealand will terminate or at least suspend until Iran complies all imports and exports to the Persian giant.
I say this because under McCully and Tim Groser MFAT has turned into the Ministry for Trade with Anyone for Trade’s sake. Human rights and non-proliferation are not part of the Groser/McCully negotiating agenda. But in this instance both need to be and the latter has to be. The profit margins of New Zealand exporters and importers and the tax revenues derived thereof must not and cannot supersede New Zealand’s commitment to upholding the terms of this non-proliferation agreement in the event of violations. Those involve re-imposing sanctions, and the bottom line of private interests must not come before the commitment to non-proliferation, especially given New Zealand’s long held diplomatic stance on the matter.
McCully also needs to explain to New Zealand importers and exporters that any contracts they let in Iran are contingent and externally enforceable. That is, they are contingent on Iranian compliance with the inspections regime and the overall thrust of the Agreement (which is to reduce the prospect of weaponising its nuclear program); and they are subject to outright cancellation or suspension by the New Zealand government under penalty of law in the event Iran reneges or violates its side of the bargain. There are opportunity costs and risks involved, and these need to be outlined to interested parties in advance of the mission.
From announcements so far, it does not appear that the National government is interested in making such demands of the Iranians or its market partners. Instead, it appears that it is opportunistically jumping to the head of the cue of potential trade partners and will let the private sector lead the charge into trading with Iran. That is curious because McCully speaks of “not getting offside” with the P5+1, but the very fact that he mentions the possibility of “getting offside” indicates that he and his MFAT minions are considering the costs and benefits of doing so.
The Iran deal hinges on two things: verification and enforcement. There are instruments in place to verify that Iran is upholding its part of the deal. The sanctions will begin to be lifted on January 1, 2016. But it is enforcement of the terms that is the most uncertain aspect of the Agreement. If New Zealand does not explicitly tie its renewed trade with Iran to the latter’s compliance with the terms and be prepared to halt trade with Iran in the event that it does not comply, then it will begin the slippery slope of undermining the deal. For a Security Council member that depends more on reputation than power for its influence, and which has a past record of leadership on non-proliferation, that is a hypocritical and ultimately vulnerable position to be in.
Well, it was bound to happen. After all the hemming and hawing and the kerfuffle that led to the announcement that New Zealand was sending 143 troops to Iraq as trainers and their force protection, the Prime Minister has now said the he would consider eventually sending to Syria a Provincial Reconstruction Team (PRT) such as those previously deployed in Afghanistan. He said as well that he was open to the idea of deploying NZSAS in Syria as target selectors for anti-Daesh air-strikes. So much for his previous ironclad assurances that the training mission was the extent to which the NZDF would get involved in the anti-Daesh fight.
What is interesting about his statement is that he has the order of engagement reversed. For the PRT (which deploy about the same number of personnel as those currently stationed in Iraq) to be tasked in Syria Daesh will have to be pushed out of it, or at least significant portions of it. Even then, the mission will be difficult as the experience in Bamiyan attests (six of the nine NZDF combat dead came from the Bamiyan PRT, and Bamiyan was considered one of the safer Afghan provinces). However, for an eventual PRT deployment in Syria to happen, the conflict against Daesh will have to be ramped up exponentially, which is something the European members of the coalition and Australia are currently in the process of doing. The UK has started to use lethal drones against Daesh targets (primarily British citizens), and the French and Australians have decided to increase the number of air strikes they will fly against Daesh in Syria as well as Iraq.
Part of the air battle against Daesh in both Iraq and Syria is the use of UK, Australian and US special forces as target finders. US Army special forces are now fighting alongside Kurdish peshmerga in northern Syria, and it is widely believed that UK and Australian SAS are doing a bit more than just finding targets for air strikes, to include nighttime raids on Daesh facilities and troop formations in Iraq as well as Syria.
The New Zealand government denies that the NZSAS is in the conflict theatre, but it would be naive to take that assertion at face value given the close working ties between the NZSAS and the afore-mentioned special operators already there. If for no other reason, that scenario is possible because deploying of SAS assets in Syria in any role requires a fair bit of lead-in time, something that has now grown short as the migrant crisis deepens. There is some urgency to finding a front and back-end solution to the crisis: addressing the refugee flows on the back-end in Europe but upping the ante on the front-end (the Syrian/Iraqi conflict zone) so as to stop the refugee flows from continuing.
That is going to take some doing. The Iraq armed forces are no closer to re-taking Ramadi than they were before the NZDF “advisors” arrived in May. The oil refinery town of Baiji, north of Camp Taji where the NZDF troops are stationed, is still surrounded by Daesh fighters and at risk of falling to them. Mosul remains in Daesh hands. In Syria the Russians have decided to put skin into the game by sending the 1000-strong 810th Marine Brigade to Latakia (where Russia maintains an electronics signals intercept station) while reinforcing its naval base at Tartus. US intelligence has reported hearing Russian voices on Syrian armoured communications, which is not surprising given that Russian crews fought in Syrian tanks in the 1967 and 1973 wars with Israel.
Russian involvement should be seen as a potentially positive development as it has indicated that it is open to joining the coalition against Daesh. It differs on the question of what to do with Assad, but the hard fact is that no solution to the Syrian civil war will come without Russia at the negotiating table (and Iran, for that matter). Sending combat troops to bolster Assad gives the Russians increased leverage as well as a greater stake than what they already have (which is considerable given that over 100,000 Russian citizens live in Syria and the Assad regime is its closest ally in the Middle East). Most importantly, it takes pressure off the West to solely shoulder the burden of rolling back Daesh. With the Russians and Iranian-backed shiia militias (including Hezbollah) on board in both Syria and Iraq and air strikes on Syria added to the coalition target list, a simultaneous pincer movement on Daesh in Iraq and Daesh in Syria can begin. Cutting off cross-border re-supply routes will be a priority and once that is accomplished, the squeeze can be placed on places like Mosul and Raqqa (the de facto capital of the Islamic State).
There is much more to the scenario and it will inevitably be ugly. Turkey is now involved but spending more time trying to kill Kurdish PKK fighters than those of Daesh (and the PKK obliges the Turks by turning its guns on Turkish targets) That will have to change, or at least Turkey’s security priorities will have to be reversed–Daesh first and then the PKK. Iran and the West will need to find an accommodation with regard to the former’s armed proxies in Iraq and Syria (something that has tacitly occurred in Iraq between Coalition forces and the al-Sadr Brigades). Other European and Middle Eastern nations will have to increase their military contributions to the fight. But it is clear that there is movement in these regards.
It appears that the refugee crisis has been the tipping point for that to occur, which is why the front- and back-end solution set is now being addressed and why John Key is being asked about what NZ proposes to do on both ends. If his recent waffling about the NZDF role is anything to go by, the process of mission creep could soon be underway and may well have started already.
Posted 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.
I attended the Auckland public meeting on the Intelligence Review organised by the NZ Council on Civil Liberties and a coalition of activist groups under the “Get Smart” banner. The idea was to encourage the public to join in submitting a “People’s Review” of the NZ intelligence community that would go beyond the rather narrow terms of reference of the formal Review undertaken by Michael Cullen and Patsy Reddy. The meeting was held in a inner suburb library hall at 6:30 on a Thursday night. It had the makings of a stirring call to popular participation and civic action.
Counting myself, a total of ten people showed up to listen to the speakers and debate issues relevant to the Review. The speakers spoke about the evils and sins of the CIA, GCSB and SIS at home and abroad, about the dangers of recent expansions of spy agencies powers and related legislation such as the hastily passed foreign fighters bill, and about the patently bogus questions asked on the public submission forms for the Review (such as asking if people felt that the government should protect them from terrorism). But truth be told, the empty hall echoed with the sound of apathy. Not so much from those of us who attended and spoke, but from those who did not.
In any event it was a pretty dreary and dispiriting affair. Nowhere to be seen were those who championed Kim Dotcom’s “Moment of Truth” or the voluminous clouds of conspiracy-mongering that went with it. From what I could tell, there was no one from UNITE, MANA, Internet Party, GPJA or any other activist group other than the Communist League. The usual assortment of Left pundits and party progressives, from the bombastic to the erudite, were nowhere to be seen. It was so bad, even Penny Bright did not show up.
I was told that meetings in Christchurch and Wellington were better attended, but from the looks of the Auckland gathering the issue of how, why and when the NZ intelligence community does what it does is no longer of import to local chattering classes, much less the fair minded among them.
I sure hope that I am wrong. I suggested at the meeting that a two pronged approach to the Review needed to be undertaken. On the one hand, the broad questioning of the intelligence community outlined in the terms of the People’s Review is necessary for framing the larger counter-narrative to the official lines spun upon us about the value and benefits of NZ’s intelligence operations. On the other hand, detailed, sophisticated and technical submissions sharply focused on the terms of reference are needed to prevent Cullen and Reddy from claiming that no practicable or actionable information was obtained from the submissions. I offered some thoughts on the need for better intelligence oversight mechanisms and how they could pave the way for further reforms of the intelligence community and legal frameworks governing it.
My comments were preceded by those of a fellow who spoke of spying on Maori at TVNZ. I was followed by a fellow from the Communist League. At that point it was time to take my 18 year old cousin in law back to dinner because even his eyes were rolling in the back of his head.
If this meeting is symptomatic of the state of the NZ Left, then it is well and truly screwed. Or perhaps it is just a Jafa thing.
Posted on 12:03, July 15th, 2015 by Pablo
I have been working on a long term project that focuses on intelligence networks in the South Pacific. A number of off-shoots have stemmed from the central concern (mapping intelligence communities and alliances), including strands dedicated to the NZ intelligence community and the problems of threat assessments in general. In this piece I outline three undervalued concepts in the study of foreign policy and offer some observations as to the causes of Western intelligence failures to adequately adjust, forecast and assess the evolving post Cold War threat environment.
From time to time I am invited to give public presentations on subjects within my areas of interest. Depending on the topic I sometimes offer ideas for the audience to consider. At a think tank gathering last year I offered the suggestion that parliament should consider the proposition that New Zealand be the first country to publicly and formally renounce the use of lethal drones at home and abroad. I pointed out that although security conservatives and military commanders would oppose the move because it limited NZDF (and perhaps in the future NZ Police) tactical options, it was worth debating on moral and legal as well as practical grounds given New Zealand’s unique political culture and international standing. Since 90 percent of what military drones do is non-lethal and the NZDF does not have a lethal drone capability as of yet, it seems worth a try.
That proposition went nowhere. Some left leaning commentators supported the motion (most notably No Right Turn and one of the authors at The Standard). But no a single political party, to include the Greens, Mana and the Internet Party, adopted it as a policy proposition and it was never brought up in parliament.
This year I was at another event that featured academicians, students, policy practitioners, journalists and diplomats (foreign and Kiwi) discussing New Zealand’s past, present and future foreign policy. I was matched with a representative of the New Zealand intelligence community and a security academic on a panel that addressed intelligence issues, specifically, New Zealand’s intelligence role in foreign policy.
As part of the discussion I suggested that Edward Snowden had done us a favour by exposing the extent to which NZ is a fully integrated member of the 5 Eyes signals intelligence network. The reason is that with the revelations that have come from the documents that he passed on to journalists, New Zealand has an opportunity to re-negotiate some of the terms of its participation in 5 Eyes. I noted that withdrawal from 5 Eyes was not an option–I said that it was like trying to leave the mafia. But the specific terms of what the GCSB does for 5 Eyes could be discussed given that New Zealand is by far the most vulnerable of the 5 Eyes partners to retaliation from the countries that it targets as part of the division of labour within Echelon. I specifically mentioned that NZ might broach the subject of reducing its role in spying on China given how trade dependent NZ is on the Asian giant.
A couple of journalists in the room ran stories on the suggestion and the PM was asked about it at his weekly press conference. He rejected it out of hand and said that NZ would not modify its intelligence operations because of trade considerations because what it did in was in the national interest.
The Snowden documents suggest otherwise, but that argument can be left for another moment.
Let me explain why NZ has an opportunity to re-negotiate the terms of its agreement with the Anglophone powers even though it cannot withdraw from 5 Eyes entirely.
If NZ were to withdraw from 5 Eyes it would lose the substantial benefits, unique to a small country, that it accrues from being in an alliance with four bigger partners with global reach. The flow of intelligence within 5 Eyes is very much reciprocal but what NZ receives is far more than what it delivers to the network. It is tasked with using shared technological means located on or operated from NZ soil (including its diplomatic missions) to target specific entities of common interest to the larger partners, and in exchange it receives global as well as more NZ-specific intelligence from those partners.
That is just one reason why withdrawal is unlikely. But think of the consequences if NZ unilaterally decided to opt out of Echelon. It is in possession of some of the most advanced signals interception technologies on the planet. The GCSB knows the processes, procedures, means, methods and protocols of the entire network. Fear that this knowledge and technologies (say, for example, X-Keyscore and Prism) could fall into hostile hands will inevitably prompt a negative response from NZ’s erstwhile intelligence allies, and that response will not be confined to the field of intelligence (I am aware of reports that some of the technologies and methods mentioned in the Snowden documents have been decrypted by Russian and Chinese intelligence but am not sure as to what extent this may have occurred).
Were NZ to try and establish an alternative signals intelligence network with other powers, the remaining 5 Eyes countries would likely move beyond defensive measures and into the field of offensive intelligence operations against NZ. In other words, the exit costs will be too high given the uncertain benefits received in the event of withdrawal.
That being said, the GCSB is integral to 5 Eyes operations. The partners cannot afford to alienate NZ on issues that are critical to NZ but marginal or less costly to them. Although they never thought that their operations would be exposed in the measure that they have, the 5 Eyes partners are now acutely aware, thanks to Snowden, that they rise and fall together when it comes to exposing how they go about signals intelligence acquisition and who they target. They can therefore ill afford to call NZ’s bluff on a matter that is of critical importance to the latter.
I would argue that bilateral trade with China is one such matter. Even if they have a pretty good idea of what the GCSB does for Echelon, public revelation of NZ having a lead role in spying on the Chinese at home and abroad will force the PRC to retaliate in some fashion, even if just to save face as an emerging great power with super power pretensions. It must show that it should not be disrespected and meddled in by small states no matter who those states are allied with. The means by which it can reach out and touch NZ in a bad way are myriad and not confined to diplomatic or economic relations.
The only reason that it would not do so is if it has counter-intelligence access to GCSB operations and wants to keep those “backdoor” channels open in spite of the publication of specifics about NZ espionage against it.
If NZ were to say to its partners that given its vulnerability to Chinese utu the GCSB would prefer not to take a major role in spying on the PRC, it is possible that the other partners will listen and consider the request. The GCSB can still spy on South Pacific, Latin American and other nations that do not have much leverage over it, as well as the UN, various NGOs and private firms as it is doing now. But it would give a pass to spying, at least in a major way outside of NZ territory, on the Chinese.
In my view, such a position would not prevent the GCSB (and SIS) from conducting counter-intelligence operations against Chinese espionage at home and abroad. Even if they know about these defensive measures the Chinese will likely not make an issue of them given that they instigated the back and forth. Where I would draw the line is on offensive operations against Chinese targets, especially when at the behest of the larger partners.
I am not surprised that John Key has no interest in this proposition. To do so requires political courage and a commitment to putting NZ national interests first. Neither is in his repertoire. Plus, even if he were to think about the dilemma posed by NZ’s increasingly counter-poised trade and security interests, any renegotiation along the lines I have posed would be done quietly and not publicly announced, much less at a press Q&A. But I doubt the latter is the case.
In any event, this is a potential moment of opportunity to redefine the terms and conditions of NZ’s involvement in 5 Eyes, however implausible that may seem at first glance. There is a supposed review of the NZ intelligence community now underway that could serve as a sounding board for opinions on the suggestion, and I am happy to add my two cents to the discussion should that be deemed worthwhile.
News that Chinese hackers obtained personal details of 4 million US federal employees dating to 1985, following on the heels of similar attacks on the customer records of private insurance companies and retirement funds as well as the internal email networks of the US State Department and White House, demonstrate that a guerrilla cyber-war is underway. Although it will not replace traditional warfare any time soon, this is the new face of war for several reasons.
First, it does not involve physical conflict using kinetic weapons, which removes direct bloodletting from the equation. Second, it can target critical infrastructure (power grids, water supplies) as well as the command, control, communications, computing and intelligence (C4I) capabilities of adversaries. Third, it can be masked so that perpetrators can claim a measure of plausible deniability or at least intellectual distance from the action. Fourth, it can be used for tactical and strategic purposes and the pursuit of short or long-term objectives.
Much like military drones, cyberwar is here to stay.
The war is not one sided: Russian hackers have penetrated Pentagon email networks and the 5 Eyes signals intelligence alliance has dedicated hacking cells working 24/7 on targets of opportunity. Many other nations also indulge in the practice as far as their technological capabilities allow them. To these can be added a host of non-state actors—Wikileaks, Anonymous, ISIS, among others—who have also developed the capability to engage in electronic espionage, sabotage, data capture and theft.
With the most recent revelations about the hacks on the US Office of Personnel Management (OPM) archival records (which include personal details of active and retired federal employees as well as identities of those who have had or hold security clearances, perhaps including myself given my prior employment by the Department of Defense) an evolution in cyber warfare is now evident.
Previously, most state-sanctioned cyber attacks were so-called “front door” attacks on government or corporate mainframes, servers and networks. The interest was in surreptitiously obtaining sensitive data or installing surveillance devices in order to engage in ongoing monitoring of targeted entities. “Back door” probes and attacks were the province of non-state actors, especially criminal organisations, seeking to obtain private information of individuals and groups for fraudulent use. However, the recent attacks have been of the “back door” variety yet purportedly state sanctioned, and the Snowden leaks have revealed that 5 Eyes targets the personal communications of government officials, diplomats, military officials and corporate managers as a matter of course.
The move to state-sponsored “back door” hacks is ominous. Accessing data about current and retired government employees can be used to blackmail those suffering personal liabilities (debt, infidelity) in order to obtain sensitive information about government processes, procedures, protocols and policy. It can target active and former intelligence and military officials and others with access to classified information. It can target former public officials that have moved to the private sector, particularly in fields of strategic or commercial importance. Likewise, obtaining sensitive personal data of employees working in private firms opens the door to similar exploitation for illicit commercial gain.
Advances in consumer telecommunications have made cyber hacking easier. Smart phones and their applications are considered to be the most vulnerable to hacking. Because many people store an enormous amount of personal data on these devices, and because they often mix work and personal business on them, they represent an enticing entry point when targeted. Yet even knowing this millions of consumers continue to pack their lives into electronic devices, treating them more as secure bank vaults rather than as windows on their deepest secrets. Not surprisingly, both state and non-state actors have embarked on concerted efforts to penetrate mobile networks and hand-held devices. Encryption, while a useful defense against less capable hackers, only slows down but does not stop the probes of technologically sophisticated hackers such as those in the employ of a number of states.
The bottom line is this: the smaller the telecommunications market, the easier it is for cyber hackers to successfully place backdoor “bugs” into the network and targets within it, especially if government and corporate resources are directed towards defending against “front door” attacks. On the bright side, it is easier to defend against attacks in a smaller market if governments, firms, service providers and consumers work to provide a common defense against both “front door” and “back door” hacking.
The implications for New Zealand are significant.
In this new battleground physical distance cannot insulate New Zealand from foreign attack because cyber-war knows no territorial boundaries. New Zealand provides an inviting target because not only is an integral and active member of Western espionage networks, it also has proprietary technologies and intellectual property in strategic sectors of its trade-dependent economy (including niche defense-related firms) that are of interest to others. Because New Zealand’s corporate, academic and public service elites are relatively small and the overlap between them quite extensive, hacks on their personal data are a valuable tool of those who wish to use them for untoward purposes.
New Zealand public agencies and private firms have been relatively slow to react to the threat of cyber warfare. The data they hold on their employees, managers, policy elites and general population is an inviting “back door” for determined hackers seeking to exploit vulnerabilities in New Zealand’s cyber networks. Since many Kiwis are lax about separating their work and private electronic correspondence and records, the potential to access sensitive personal information is high.
New Zealand has been the subject of numerous “front door” cyber attacks and probes on public and private agencies, including an attack by Chinese-based hackers on the NIWA supercomputer carried out in concert with a similar attack by the same source on the supercomputer run by the US National Oceanographic and Atmospheric Administration (NIWA’s US counterpart). New Zealanders have been the targets of numerous “back door” intrusions such as phishing and other scams perpetrated by fraudsters and conmen. Yet successive governments have been slow to recognize the new threat advancing towards it in the cyber-sphere, only recently creating dedicated cyber security cells within the intelligence community and just last year amending the GCSB Act to address vulnerabilities in domestic internet security. But it still may not be enough.
Until New Zealand resolves the problem of institutional lag (that is, the time gap between the emergence of a technologically-driven threat and an institutional response on the part of those agencies responsible for defending against it), there is reason to be concerned for the security of private data stored in it. After all, in the age of cyberwar there is no such thing as a benign strategic environment.
I had the opportunity some time go to be interviewed by the one of the director/producers of the documentary “Operation 8″ for a forthcoming film about the GCSB and its role in the 5 Eyes signal intelligence network. These good people are part of the grassroots network that attempts to keep those in power accountable to the folk they supposedly serve, and while I may not agree with them on a number of issues I have no doubts about their sincerity, commitment and interest in the common good.
In order to finish the new documentary, titled “The 5th Eye,” there is a crowdsourcing effort underway that is well worth supporting. The details are here. Besides information about donating, there is a short video trailer included on the page as well as updates and other valuable information. By all means check it out and help this film on its way to fruition.
If you support truly independent film-making in Aotearoa, this is an excellent opportunity to not only talk the talk, but to walk the walk.
Posted on 10:16, May 14th, 2015 by Pablo
So, it turns out that the much vaunted review of New Zealand’s intelligence community is going to undertaken by Michael Cullen and corporate lawyer Patricia Reddy. Both are consummate Wellington insiders and Ms. Reddy has no apparent experience in dealing with intelligence matters. She is, however, the Chair of the NZ Film Commission and sits on a number of boards so obviously must be the best person suited for the job. For his part Mr. Cullen has been a Deputy Prime Minister and sat on the Parliamentary Intelligence and Security Committee that among other things did nothing when Ahmed Zaoui was falsely accused of and detained for being a supposed terrorist by the SIS. It is clear he knows how bread is buttered.
The terms of reference for the review cover two main areas: the legislative framework governing NZ intelligence agencies; and the mechanisms responsible for overseeing them.
I have serious doubts that as constituted this review panel will do little more than maintain the status quo on both agenda items. I believe that the review panel should have incorporated more people, including people from outside the Wellington “beltway” and some drawn from overseas. As things stand the review has all the makings of yet another exercise in whitewashing under the guise of critical scrutiny. I hope not, but am not holding my breath in any event.
I outline my thoughts in this Radio New Zealand interview.
For those interested in the terms of reference of the “review,” they can be found here.