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About that “Deep State.”

datePosted on 06:57, March 22nd, 2017 by Pablo

One of the distressing things about the ascendance of a worldwide politically retro (aka “alt-“) Right is the role played by conspiracy theories, alternative narratives and ideological appropriation. The so-called alt-Right, which is not just a US phenomenon but was instrumental in Trump’s electoral victory, basically adopted many of the maxims of the postmodern and conspiratorial Left when espousing a political, social and economically white Christian nationalist agenda. This as true in Poland as it is in the UK, Australia or the US. Realizing that in an age of social media the promotion of alternative “news” once exclusively purveyed by tabloids like the National Inquirer and gossip magazines can now have real weight in political and social debates, the alt-Right drew upon the Left in order to make its pitch. Using a steady stream of Left originated conspiracies such as the assassination of JFK and 9/11 being “inside jobs” and the moon landing never happening to push a counter-hegemonic agenda, the alt-Right introduced its own version of the proper order and the reasons why it was under siege  (assuming that one accepts that liberal hegemony based on principles of fairness and equality has increasingly been the norm in recent times, something the proponents of the alt-Right clearly believe even if a comparative examination of global political culture paints a very different picture).

To the use of Left conspiracy theories as a basis for re-imagining an alternative Right reality is added appropriation of the worst of post-modern theory: that there is no such thing as “objective” truth or rationality, that everything is subjective, contextual or inter-textual, and that all views are equally valid. This latter school of thought, with its rejection of Enlightment reasoning, would have us believe that a rationality that defends and legitimizes foot binding and clitoral excision is equal to feminism, to say nothing of giving equal weight to rejections of larger theorizations about universal human rights, medicinal science and practice, climate science, psychology, market behavior and political participation. This is particularly seen in the field of sub-altern studies, where the “noble savage” premise is as condescending as it is strong, to say nothing of just plain wrong.

It is one thing to give voice to the dispossessed. It is another, less honourable thing to give equal interpretative weight to the voice of socio-cultural relativity, subjectivity and “alternality” when it comes to matters of truth, objectivity and factual evidence. Because that is what has allowed the alt-Right to turn things on its head: victims become oppressors, fair becomes foul, white becomes black, and truth becomes fiction. “Facts” do not matter, just feelings and opinions do.

This is not a revelation. The alt-Right appropriation of Left generated absurdism has philosophically entrenched roots. Like National Socialism, the theoretical foundations of the alt-Right may be shallow at best, but as been pointed out elsewhere, the alt-Right is about whinging and being mean, not about being analytically deep, correct or corrective.

The point is not to criticize post-modernists, whose original cadre enriched social thought. Instead, the concern here is with how the focus on social relativity, subjectivity and victimization has been combined with conspiracy mongering in an alt-Right worldview where the propagation of “fake news” and “alternative facts” is the new normal.

That brings us to the subject of the so-called “Deep State.” Like many conspiracy theories, it has a grain of truth in it, but the original truth has now been conceptually stretched to the point of distortion.

The concept of Deep State refers to an unelected, politically unaccountable permanent national security bureaucracy involving key actors in the military, intelligence, national police, economic and broader internal security communities. Civilian and uniformed personnel are involved and often collude with organized crime and/or business interests in what amounts to a marriage of convenience when it comes to steering the ship of state. Administrations and even regimes may come and go, but the Deep State remains.

The original notion of the Deep State was associated with authoritarian regimes or countries with histories of fragile electoral rule alternating with episodes of dictatorship. Praetorian military and intelligence services constituted the core of the Deep State, which was charged with ensuring that vital national interests and orientations were maintained regardless of the vicissitudes of politicians, strongmen or the voting public.

The initial take on the Deep State purportedly came from Turkey, where part of the Kemalist legacy was a permanent bureaucracy inherited from his reign that was tasked with perpetuating his secular-nationalist political legacy. It has been associated with countries with histories of political instability like Argentina and Pakistan, where shadowy forces are believed to operate unchecked by elected authorities and who, in fact, are suspected of manipulating political institutions and processes for their own ends. And it has been associated with countries with long authoritarian cultures and traditions that currently operate under electoral veneers, such as Russia. The common denominator is that the Deep State not only serves as a shadow government but more importantly as the guarantor of certain vested interests—economic, geopolitical, social and ideological—regardless of the public face of governance.

In the conspiratorial view the Deep State is subversive of consolidated democracies. It is also part of international capitalist/imperialist networks often dominated by Zionists and others who wish to usurp the “real” will of the people. It has its hands in all facets of governance and yet is invisible to the electorate and unaccountable to those they install in office.

That is exactly what Steve Bannon and his co-religionists are preaching from the White House. They claim that a Deep State populated by Obama/Clinton supporters is operating to undermine the Trump presidency by promoting uncertainty, doubt and mischief with selective leaks and “fake news.” These views are echoed in Left-leaning outlets like Salon and The Intercept, where numerous stories make reference to the nefarious machinations of the US Deep State at home and abroad. Many in the US and elsewhere have taken them at their word.

The truth is different. Although there is certainly a career civil service and military/intelligence bureaucracy that serves as the permanent staff of the federal state apparatus and which have institutional interests of their own, these do not quite amount to a Deep State. For starters, they do not have the degree of ideological cohesion and shared material stake required to operate undetected over time. They are constrained by laws and regulations governing the federal bureaucracy, to include whistleblowing protections, that make it difficult to set up secret networks within core agencies. They are subject to oversight mechanisms and turf battles that impede inter-agency collusion in pushing a hidden collective agenda of any magnitude. The size and scope of the state apparatus makes improbable that a secret network of bureaucrats could translate undetected their common desires into effective State action. Finally, the vagaries of the political process, with its impact on policy-making and staffing under different administrations (for example, from Reagan to Clinton to W. and Obama), make it difficult for even a small cadre of well-placed idealogues to develop the resource base and operational control required to run a Deep State.

To be sure, intelligence agencies and the military undertake secretive operations that push the envelope of what is legally permissible. Civilian agencies often attempt to whitewash or bury scandals. Cover-ups of official malfeasance is commonplace. Businesses and interest groups collude with state agencies in rent-seeking behavior. But these do not amount to proof of the existence of a Deep State. In fact, one can argue that if there were a Deep State in the US, it would have ensured that Donald Trump was never elected.

What Trump is encountering is the natural blowback occasioned by his attacks on the integrity and purpose of key agencies and his attempts to diminish, replace or dismantle some of them. For example, since the Environmental Protection Agency is charged with doing just that, it should come as no surprise that its staff react with hostility to the appointment of a fossil fuel industry advocate as Director, especially when he doubts climate science and has stated his intention to loosen air, water and land pollution standards while pushing for an overall downsizing of the agency and its budget.

Similarly, the intelligence community (IC) has not reacted well to Trump’s accusations that it is incompetent and acts like “Nazis” when it comes to the subject of Russian interference in the US elections. It finds problematic that Trump has his own non-vetted “intelligence” group led by Bannon that now has access to the combined product of the IC via the daily briefs to the president and the NSC.

The armed services have been attacked as well, with Trump saying that he “knows more” than the generals, that they are incompetent and that the US military is in disrepair. He uses the Joint Chiefs of Staff as props in political theatre events such as his first address to Congress. He says that he has a plan to defeat terrorism but then demands that a plan be drawn immediately by the very generals he has derided.

The list of aggrieved agencies is long (pity the Department of Education!) and the depth of bureaucratic resentment is deep. But bureaucratic pushback is not synonymous for or evidence of a Deep State at work. To claim otherwise is simply to indulge in a form of post-modern conspiracy theory, even if the claim comes out of the West Wing.

It is ironic that we have some on the Left to thank for that.

I shall leave for another time discussion of whether there is a Deep State in New Zealand. What is true is that the New Zealand intelligence community has a degree of operational autonomy and history of non-accountability that could allow for the formation of a cabal of intelligence “insiders” who carry on as they please. This is especially true given the absence of parliamentary and ministerial oversight, paucity of public interest, ignorance of security matters on the part of MPs and the  traditional weakness of review mechanisms such as the Inspector General of Security and Intelligence. To some extent, the same is true for the NZDF and the Police. The question is whether this has resulted in bureaucratic capture by these agencies of their ostensible political and judicial overseers, or has it led to the formation of a Deep State within the state bureaucracy.

The answer, it would seem, is a matter of perspective.

Where to draw the line?

datePosted on 12:02, February 19th, 2017 by Pablo

Here are some thoughts for readers.

It is reported that former US Sen Scott Brown (R-MA) has been nominated by the Trump administration to be US ambassador to New Zealand. Besides a record that includes being a centrefold model, party to a sexual harassment lawsuit, and an undistinguished US Senator after a career in local politics in his home state, Mr. Brown is on record as saying that he supports the use of water boarding and other forms of torture. This is of particular note because Mr. Brown is a lawyer who served in the Massachusetts National Guard as a Judge Advocate General’s (JAG) officer, that is, as part of the Army legal system. He should therefore presumably be familiar with Jus in Bello, Jus ad Bellum and other international conventions that, among other things, prohibit the use of torture in war and peacetime.

NZ is a signatory to the Geneva Convention, which prohibits torture (as a war crime). It also supports the International Court of Justice, which prosecutes war crimes and crimes against humanity (which include torture).

Every country has the right to refuse to accept the credentials of foreign ambassador-designates.

So the question is: as a responsible member of the international community and a strong supporter of the rule of international law, should NZ refuse to accept Scott Brown as the incoming US ambassador? Or should it adopt a policy of diplomatic necessity and cast a blind eye on Mr. Brown’s support for state-sanctioned criminal acts in order to curry favour with the Trump administration?

And, as a sidebar: Inspector General of Security and Intelligence Cheryl Gwyn is currently undertaking a lengthy investigation into whether NZ, via the SIS and/or NZDF, was involved in the extraordinary rendition and black site programs run by the US under the Bush 43 administration (which involved the extrajudicial kidnapping and secret detention without charge of suspected Islamicists, several of whom wound up dead as a result of their treatment while in captivity). These  programs included the use of water boarding and other forms of torture as supposed interrogation techniques at the US military prison in Guantanamo Bay (Camp Xray) as well as a network of black sites around the world (not all of whom have been identified yet and which it is possible Ms. Gwyn’s investigation might shed light on). Given this background, will the decision on Mr. Brown’s acceptability as the US ambassador be indicative of what we can expect from the government when it comes to her findings?

I would love to hear your opinions.

Foxes in the hen house.

datePosted on 12:44, January 31st, 2017 by Pablo

Here is a thought. Among all the wretched news coming out of the US this past week, two somewhat lesser items struck me. One was that Trump’s son-in-law was granted a high level security clearance, and the other was that former Brietbart boss, white supremacist and pro-Russian provocateur Steve Bannon has been given a Principal’s seat on the National Security Council, displacing both the Director of National Intelligence and the Chairman of the Joint Chefs of Staff (who now attend on an “as needed” basis).

During the time I spent in the US security apparatus I held several levels of clearance, working my way up to the fairly high Top Secret/Secret Compartmentalized Information (TS/SCI) level. The scrutiny I received in order to get that clearance was pretty intrusive and lengthy: polygraph and drug tests, background checks run by the DIA that included interviews with college friends, my former wife, work colleagues at various places and even neighbours, and an FBI background check. The process took about 10-12 months.

Bannon and Jared Kushner will be privy to sensitive information well above my ultimate pay category, and yet the latter was granted a clearance in a month and the former, for all we know, has yet to receive one. I know that elected political officials do not have to undergo the sort of background checks that I did (something that is always troublesome when congressional testimony is given behind closed doors to congresspeople who are known to have serious skeletons in their closets that make them liable to blackmail). But political appointees as well as career civil servants and military personnel must have those checks done before assuming the jobs in which they handle highly sensitive information. Mistakes have recently been made in security vetting due to outsourcing (Edward Snowden) and people can grow disenchanted and violate their oaths (Chelsea Manning), but for the most part the security vetting process allows the government some degree of confidence that the person being scrutinised cannot be blackmailed, is not financially vulnerable, is not addicted, criminally violent, mentally ill, etc.

So my questions are these: Has Steve Bannon undergone any security vetting, particularly given his background and links? Why did Mr. Kushner receive an expedited clearance rather than a thorough one? There are other individuals in the Trump White House who also have access to this type of information without full security vetting (including a Brietbart editor), but for the moment I wonder about those two fellows.

This is more than a matter of personal curiosity. Given Trump’s attacks on the military and intelligence leadership and the ongoing questions about his relationship with Russia in the wake of official claims that Russia sought to influence the US presidential election in his favour, these sort of moves could set the stage for a constitutional crisis in civil-military/intelligence relations. After all, if Bannon is talking to the Russians and Kushner is pillow whispering to Ivanka about policy matters that impact on the family businesses, why would the intelligence community and military brass feel comfortable with them receiving full classified briefs on such matters? Would it not be advisable for the security community to withhold highly sensitive information from them and direct that information to others such as NSC advisor Gen (ret.) Mike Flynn (also of some very suspect ties) on an “Eyes Only” basis? Or should they just give full briefs and let the chips fall where they may?

Neither option is a good choice, but one has potentially catastrophic consequences while the other undermines the foundations of elected civilian supremacy over the military and intelligence communities.

 

There are lessons here for New Zealand. The NZSIS is responsible for security vetting of people who will handle sensitive classified information, but its record is mixed in this regard. In 2010 it was revealed that Stephen Wilce, the head of the Defence Technology Agency (DTA), the scientific arm of the NZDF, was a serial fraudster and liar who among other things claimed to have been a member of the 1988 UK bobsled team and a former Royal marine who had worked for MI5 and MI6 in the UK and who had invented the guidance system for the Polaris (submarine launched and nuclear tipped) missile (you can find the NZDF Court of Inquiry Report on Mr Wilke here).

Mr. Wilce was recruited by Momentum Consulting (which was paid $25,000 for the job), a firm that included among its directors and executives National Party stalwarts Jenny Shipley and Michelle Boag. Momentum was supposed to have confirmed Mr. Wilce’s bonafides and the NZSIS was supposed to do his security vetting before granting him a high level clearance, but none of that happened. It was not until Mr. Wilce had been in the DTA job for five years that a whistleblower outed him.

In recent years the SIS has reported that security vetting takes up more and more of its time and resources, to the detriment of its domestic intelligence, foreign intelligence and counter-espionage activities. Delays in obtaining clearances are commonplace and pressures to expedite them are strong. That was exactly the situation that led to Edward Snowden being granted a high level security clearance. As it turns out, the firm that was contracted to do his security vetting by the NSA simply rubber stamped the clearance authorisation because it was swamped with such work.

Employees of New Zealand’s intelligence community and military personnel certainly undergo serious security vetting before they can be trusted to handle classified information. Perhaps, like the US, elected officials are exempt from the requirement, but what about parliamentary staffers and those employed in the DPMC? Given the revelations in the Dirty Politics book, can we be assured that the likes of Jason Ede and Phil de Joux (or even Roy Ferguson and Sir Maarten Wevers) have been vetted properly? Is everyone who is privy to classified material treated the same as military and intelligence personnel and subjected to a thorough security vetting process? Is outsourcing recruitment of people to sensitive positions still the norm? If so, is that outsourcing going to politically connected firms or is there now in place some objective standard of applicant vetting rigour that needs to be met?

I ask these questions because if anything, New Zealand appears to have a much looser government administrative system that does the US. Shoulder-tapping, “who-you-knows,” nepotism, cronyism, old boy networking–perhaps it is a small country thing but it seems to me that such practices occur fairly frequently when it comes to high level civil service positions (to say nothing of the private sector). If that is so, then it is fair to ask if these practices override the good sense need for security vetting of those involved with intelligence and military matters.

I stand to be corrected if wrong in this appraisal, but the issue still remains as to who with access to sensitive intelligence and security information outside of NZ intelligence and military officers undergo the type of security vetting that I underwent back in the US and which Messrs. Bannon and Kushner managed to avoid.

Put another way and stripped of the US baggage: are there Bannons and Kushner facsimiles in our midst?

What Domestic Terrorism Threat?

datePosted on 15:44, November 5th, 2016 by Pablo

Last week the government released its National Security System Handbook.  The NSS is a national emergency response system headed by a committee chaired by the Prime Minister that is convened to address serious threats to the security of New Zealand and New Zealanders. It includes officials from various security and intelligence agencies as well as others where and when pertinent depending on the nature of the risk event.

On page 24 of the document examples of events that triggered convening of the NSS are given. Included among them are the 1080 milk powder poison threat, potential consequences of Ebola and Zika outbreaks, the 2010 and 2011 Christchurh earthquakes and the 2011 Rena maritime disaster. Nestled among these and listed separately is the line “(t)hreat of a domestic terrorism incident.” While the other examples are all a matter of pubic record, the domestic terrorism threat is not.

The government refuses to release details of this domestic terrorism threat. That is disappointing for several reasons.

Two years ago the government raised the terrorism threat warning level from “very low” to “low,” citing the international threat environment in which New Zealand is located. Given that the NSS Handbook has been in existence for only two years, the domestic terrorism threat mentioned in the NSS Handbook could have  happened after the threat warning level was raised. But even if it occurred before the Handbook was written, this was supposedly a concrete terrorism threat on New Zealand soil, not something of a general nature, so it is curious that the threat level was not raised to “moderate” or “medium” given the possibility of larger networks involved, existence of copy cats or emulators, or of other plots in the making (simply because it would be hard to predict that the threat in questions was a one-off). Again, this was supposedly a real threat–presumably a physical plot of some sort–rather than social media ranting or otherwise hollow venting by some disgruntled nutter.

As far as I can tell, no one has been arrested, charged, tried or convicted of a domestic terrorism plot in recent years. A couple of individuals were jailed this year for possessing offensive materials in the form of violent jihadist videos, but they were not charged with terrorism offences and were unlikely to require an NSS meeting in response to them. The same is true for the wanna-be jihadists who were prevented from traveling to the Middle East to join Daesh–there would be no need for an NSS meeting over a matter of passport control. There have been a few individuals who have pledged loyalty and support for Daesh on social media, but that does not rise to the level of threat required to trigger convening the NSS. The Urewera case does not seem to apply because both the 5th Labour government and the current National government maintain that its was solely a Police operation that resulted in no terrorism charges being laid.

A domestic terrorism threat of a magnitude that requires triggering of NSS protocols would not involve cyber-esionage, crime or warfare. It would be something that was real and imminent, or at least in the process of becoming so.

Thus the questions beg: If this domestic terrorism threat was real, what became of it? Was it thwarted? What became of the suspect(s)? Did the authorities act so early that they could not obtain evidence that could justify laying charges in court? Are those suspects still in the country or were they passing through? If the suspects are still in the country, are they moving about freely or is there some form of monitoring of them? Should not the public be advised of their presence?

The last point matters because one would think that the government could use this domestic terrorism threat to reinforce and justify its attempts to expand the powers of search and surveillance in various security related Acts. It would reassure the public of the need for more vigilance as well as the competence of the State when it comes to detecting and thwarting terrorist plots.

One can fully understand that the intelligence community would be reluctant to reveal the sources and methods by which this threat was detected and responded to. But surely some detail could be provided that does not compromise the intelligence gathering process but which could point to the specifics of the threat. Unless New Zealand uses secret terrorism courts or is involved in black site or rendition programs, it should not be too difficult for the government to provide a public summary of the facts surrounding the case listed as an example in the NSS Handbook.

Otherwise, the government leaves itself open to skepticism on that particular claim.

Media Link: The French are back, and in a big way.

datePosted on 18:39, September 14th, 2016 by Pablo

I spent some time talking with a Radio New Zealand reporter, who I must say is very well versed in the politics of the region, reflecting on the de facto admission of France into the Pacific Island Forum. Unlike the usual media sound bites, he gave me some room to reflect.

Why do the Greens hate the Squirrels so much?

datePosted on 12:24, August 19th, 2016 by E.A.

I get taking a stand on principles but…

So the Intelligence and Security Bill has passed its first reading in Parliament with a majority supporting it (106 votes to 15) and now goes back to select committee for further work.

The two parties who did not vote for it were the Greens and Peter Dunne (United Future).

For myself, I have read the Cullen/Reddy report that spawned the bill (170 pages), the bill itself and the all-important Regulatory Impact Statement (70 pages), followed the progress of the bill as it moved through the various layers of government and related agencies as well as talked with several of those who will be directly affected by it, should it go through, and it’s a rare day that I find myself in genuine agreement with John Key and the Government on a matter such as this.

Historically I have not been a fan of the Squirrels (one of the unofficial names used in Wellington for the intelligence services in general*), not because I do not believe they have a function in New Zealand but because my dealings with them though my current and previous work inside government has been a relatively vexing process and due to the fact that I don’t believe that these agencies remain fit for purpose in the modern world (I am an advocate of intelligence reform).  Also because there is something about a high security clearance that often makes people inflate their own self-importance simply due to having said high security clearance and these agencies output seeming to have less to do with the actual security of NZ and more to do with supporting US hegemony though the Five Eyes agreement (also known as the “Anglo Saxon white peoples business empire protection club”).

Don’t get me wrong, I have several good friends and acquaintances in the squirrels, and there are many smart and dedicated souls slaving away for the greater good whose work will never be acknowledged but most of these agencies should have been shut down and replaced with something new and better a long time ago (something the report mentioned but was outside the scope of the report itself).

Unfortunately the mystique of intelligence work, as detailed by Victor Marchetti and John D. Marks in The CIA and the cult of Intelligence (and many other books**), is something that remains by virtue of people being dazzled by the idea of such work being something like a James Bond movie or by the fallacy that because something is a secret it therefore makes it special and those people that handle such material are therefore also special.

In the end the work is the same as that in many government departments but with a blanket of secrecy draped over it. Squirrels go to work, sit at desks, write reports and do many of the same things that other civil servants do. Much of the work is as mundane as that of other bureaucrats in government because they are bureaucrats also.

It’s also an atmosphere which can include a preference for ex-military intelligence personnel over talented staff already in house and a club like atmosphere in senior management characterized by the most venal examples of patch protectionism*** I have ever seen.

In my previous work the easy answer to dealing with squirrelly issues was to work around it rather than try and get them to do anything about it and it is worth relating the mechanics of such an issue to give readers an idea of how bloody obstinate these agencies can be to change or doing anything about problems or issues that exist simply because it would highlight their own failings.

In my previous role in government, my small team dealt with one of the squirrel agencies on a regular basis as part of our work processing and assessing risk cases. The process went something like this: We got a case, we assessed the case for risk using our standard measures and if certain criteria were met we then sent the case off to the appropriate section of the squirrels for comment (sometimes more than one). We then waited for that comment to come back and once it did we would complete the process and make a decision in regards to the case and the identified risk.

The problem was that once we sent the file off to the nutty clubhouse for comment it was the equivalent to throwing the file into a black hole or some sort of temporal vortex.

Once it went in there was no reliable way to predict when it was going to come out, it could be a few days, a week, a month, several months, six months, a year or in the most drawn out instances, well over a year and attempts to find out what was going on were usually met with the blank wall of secrecy.

And when I took over the team I soon found that the black hole was a real problem for our work simply because we did not know when a case was going to come out of the black hole and hence we could end up with half of the files in our cabinets waiting for the Squirrel Nutkin seal of approval and our workflow slowing down and often grinding to a halt while we waited for a result.

So being a solutions not problems sort of person I spent several months politely trying to get the fury rodents responsible for the black hole to give some time frame or indication of what was going on and soon found out that my counterparts on the other side were as over worked as much as myself and they themselves were beholden to processes much larger which were dictated to them by bigger rodents several pay grades above theirs (or my) own.

So I got my manager to arrange a meeting with their manager and we put forward a simple business case to improve the process by putting in place some simple workarounds in the form of queue streams (high and low priority) and more effective communications to enable the Stygian depth of the hole to slightly less opaque.

It was a sound proposal, would have required almost no extra effort by themselves (as we would have done most of the grunt work) and had demonstrable benefits for both parties. There was no risk of information leakage or any security being breached. All we were doing was fixing the mechanics of a process that was clearly broken.

But did squirrel management accept even one smidgen of our proposal? Noooooo, they did not and their reasons for refusing the proposal? They did not have any, they simply refused to do anything or say anything further on the matter.

So in the end I re-organised the entire process at our end to speed up all work before and after we flung the file into the back hole and made sure that our management were well aware of why time frames for files were dragging out so we could point to us having done all we could when the inevitable complaints came rolling in about “the status on these 23 files being on hold for more than six months”.

Sadly if this was an isolated example I would not be writing about it here but it’s not; time and again myself and others I have spoken with have had nothing but praise for the hard working individuals inside the shadow tailed services and lots of scorn and derision for their senior management and their archaic and byzantine practices simply because its “secret”.

And if my previous example is a bit too esoteric for the reader let me give a much clearer and more concrete example of the problem: Security Clearances.

For many people who work in government a security clearance (confidential, secret, top secret, top secret special, super- top secret, Umbra, grey alien etc) is a standard requirement for their job and these clearances range across government departments, many of which people might not imagine would need one (The Ministry of Education being a good example).

Unfortunately the process of getting a security clearance is often loooooong and sloooow which means that most people will start their jobs without the clearance the job description says they need. Now this is not an issue in itself because many clearances (such as a low level Confidential) have a minimal risk or exposure associated to them that the choice has been made to get the person into the role and proceed towards the clearance in due time. A reasonable workaround in such circumstances.

In other cases all manner of people have been in roles with all manner of documents and information with all manner of security levels passing across their desk and not a security clearance to their name in sight.

My favorite example of this is a previous manager I knew who handled a range of sensitive material but who never had the appropriate security clearance until her last week on the job and it was believed this was given to her only so it could be said that she had held the appropriate clearance rather than actually having been genuinely vetted. Nothing more than a box ticking exercise.

And again this is not an isolated incident; I have seen and herd all manner of similar stories from others in government. Much of it is due to limited staff and massive workloads so vetting has to be prioritized but still clearances don’t get given in the right circumstances.

So it’s with these thoughts in mind that I find myself reading through the Cullen/Reddy report and nodding in agreement with much it recommends and then continuing to nod my head when the government decides to take on most of these proposals with the new bill.

Will the new bill fix the technical problems noted above? No it won’t but as the report notes there is a serious fracture in the rules and regulations the various agencies use and how they work together and by having one system for both (as the new bill only really affects the SIS and GCSB with the NAB tabbed in on the side and does not affect the Police or the scoundrels in DDIS at all) with tighter rules for warrants things will actually improve all round by virtue of clarity around the rules and unification of output.

I won’t be going into the bill much further here as I intend to discuss it in greater detail in another post after it has been though a few select committees and the current issues have been worked out.

What I want to look at today is why the Greens are so opposed to the intelligence services in general and I have used my examples of some of the genuine issues with the squirrelly systems to illustrate that changes are needed but it seems that the Greens are not opposing the bill for any practical reasons.

The truth is that the Greens are opposed to the squirrels and their activities mostly on principle AND by having been subject to the intense scrutiny and machinations by sections of the squirrels in the past (and possibly even today). Such treatment would have left a rather bad feeling which is all fine and dandy but a rather strange position in this case because there are genuine issues with the squirrels which this bill could fix and it appears that the Greens are being blinded by principles rather than seeing the situation for what it is, in short principles before pragmatism.

As I noted in my Green Party post a few months back no other party in parliament would have had the level of monitoring and infiltration, in modern times, than the Greens. In the Cold War it would have been Labour and there are stories about party members (including Norm Kirk before he became PM) being watched, monitored and bugged by the SIS which when compared to the known behaviors of similar services elsewhere (MI5 in England) are more than likely to be true.

Also the traditional position of such parties is to oppose expanding the powers of the security apparatus so no surprises there. But if the Right has an ideological blind spot when it comes to social policy and viewing people and society as nothing more than crude inputs for their half-baked economic models then the Left often fails to see the very real Hobbsian argument for a strong state actor and that security is a key aspect of such a state. Hoping that we can all just get along or wishing to impose some sort of communal security arrangement ignores that security risks are real and few if any nations are immune.

So is it just really personal and the Greens can’t see that the bill might actually reign in the behavior of the squirrels rather than letting them of the leash leading to a wholesale expansion of their power (ie spying on Kiwis)?

Certainly if this rather testy exchange between Metirei Turei and IG Christopher Finlayson is to be believed, as while Finlayson has all the personality and people skills of prison camp commandant this would be one of those rare times where I can see that Turei’s questions are just point scoring and grandstanding rather than genuinely about the bill and Finlayson’s frustration and droning out the same answer again and again are entirely justified.

Then again, we expect our Green party candidates to hold and believe certain ideological positions just as much as we would expect National party members to be all for the Neo-Liberal death march to prosperity for the ultra-wealthy at the expense of all others; and the ideological position of the Greens is defiantly opposed to the intelligence services.

Which leaves me in a curious position as I usually like the policies of the Greens, ideology or not, and I myself do have issue with much of the structure and behavior of the security services in NZ but after having picked over the bill and related documents I see that the recommendations of the report are in generally sound (centralization of rules, tighter oversight and protections and clearer definitions) albeit with the need (as identified by Labour) to tighten up some of the details in the select committee process (clearer definition of “National Security” and around the levels of warrant/safeguard etc).

But that’s the details, the bill in and of itself will actually do a lot to bring the services around and in line as well as make them fully part of the public service (and subject to all that being in the public service means) but for some reason the Greens are not going to go for it and for once I find myself onside with John Key and National and genuinely wondering why the Greens hate the squirrels so much?

For those with the time I recommend reading the report (it’s very easy to read and was deliberately written that way as well as defining the issues in clear and simple terms) along with the related documents.

I do get that there are probably deeper concerns if you dug into the Greens on this issue but that’s not how it’s coming out in the media and their website also has little to say beyond their opposition to the bill and such matters.

If the Greens oppose the Squirrels for personal reasons I get that and also I support their being back on the ISC (Intelligence and Security Committee) despite Key’s protestations that their opposition makes it pointless to be there (I believe a dissenting opinion is a useful thing to guide the discussion not matter how contrary) but their voting against it, while a principled stand, really does little and ignores the opportunity that the bill presents to fix part of the problem they are moaning about.

But i didnt listen

 

*-So called after a 1960’s cartoon about a squirrel that was also a spy (here)

**-Decent Interval, The Big Breach and Spy Catcher being some other good works which highlight these issues.

***-As seen by myself and related to me through friends and acquaintances inside the wire. For whatever reasons such behavior seems to occur a lot more in the intelligence, risk and compliance spaces than elsewhere in government.

No Hard Feelings?

datePosted on 15:47, August 2nd, 2016 by Pablo

Sources in the US Navy have revealed that it will send an Arleigh Burke class guided missile destroyer to the RNZN 75th anniversary celebrations in November. The details of the participating ship have been sent to the New Zealand government but have not yet been released. However, I have it on good information that the ship will likely be the USS William P. Lawrence (DDG110). It is part of Pacific based Destroyer Squadron 21 and home ported at Naval Station San Diego. It is a relatively new ship, having been launched in 2009, christened in 2010 and entered into service in 2013.

Arleigh Burke class destroyers are gas turbine propelled and under peacetime conditions carry no nuclear munitions. So whether it is the USS Lawrence or a sister ship, the requirement that the visiting US grey hull be neither nuclear propelled or armed will have been met.

If indeed it is the ship being sent, the USS Lawrence has an interesting recent history. In May 2016 it participated in the freedom of navigation exercises the US Navy conducted in and around the Fiery Cross Reef in the disputed territories of the South China Sea that China has been building a reclaimed island upon. It has also conducted anti-poaching patrols and fisheries inspections in the Western Pacific in conjunction with local and regional fisheries agencies as well as the US Coast Guard, and undertook a recent port of call in Suva, Fiji. It most recently participated in the 30-nation Rim of the Pacific (RIMPAC) exercises off of Hawai’i. In its present deployment it serves as something akin to a regional USN “guard ship” for the Southwestern Pacific. It even has its own Facebook page.

Readers will know that I publicly suggested that the US send the USS Mercy, a hospital ship home ported at Pearl Harbour. My reasoning was that the hospital ship could symbolise the humanitarian side of US naval operations (something that is a core mission of the RNZN) and could even do stop-overs in island states on the way to and from Auckland in order to offer check ups and exams, vaccinations and other medical assistance to disadvantaged Pacifika populations. Sending a hospital ship would be good PR for the US Navy and would also help defuse some of the opposition to the visit because it would look pretty silly for an activist flotilla to try and block an unarmed humanitarian vessel when other nation’s gunships received no such hostile welcome.

But no. That would be too much to ask of the US Navy. Instead, what they are sending is a ship of the destroyer class that succeeded the class of which the USS Buchanan (DDG-14) was part. In 1985 the USS Buchanan had pretty much the same role that the USS Lawrence does today. So after all of these years of acrimony, the US Navy has decided to send NZ the same, updated version of the boat that it tried to send in 1985.

Symbolism, much?

A note on the US navy ship visit.

datePosted on 12:51, July 22nd, 2016 by Pablo

So the US has agreed to send a ship to the RNZN 75th anniversary celebrations in November. That means that it has accepted New Zealand’s non-nuclear policy and will send a ship that is neither nuclear armed or propelled. It may have taken 33 years for it to finally loosen up on its “neither confirm or deny” policy when it comes to nukes on board, but the US realises that the geopolitical and strategic environment in which that policy was adopted is long gone and has been replaced by another in which continuing to adhere to it is a matter of hubris that is both churlish and counterproductive. Given the pressing realities of Chinese strategic competition in the Western Pacific and elsewhere, the US needs to consolidate its alliance commitments in the region. If acknowledging New Zealand’s non-nuclear stance is one way of doing so, than any loss of face is well worth it.

Pundits on the NZ Left and Right have claimed that NZ has “won” in its dispute with the US and that it is a great “victory” for the anti-nuclear movement that took to the waters of the Waitemata Harbour three decades ago. Quite frankly, I find the crowing about victory to be infantile because there were many other factors at play and decisions such as this are not a simple matter of win or lose. Moreover, with the Wellington and Washington agreements and RNZN participation in the annual US-led RIMPAC naval exercises, the bilateral military relationship between New Zealand and the US is pretty much back to first-tier partner status regardless of the symbolic stand-off about nukes. Add to that the fact that US nuclear submarines regularly patrol around (and some suggest in) NZ territorial waters, and the reality is that NZ’s non-nuclear status does not impede US naval operations near its shores regardless of what is said in public.

The issue of the US “relenting” is all about context. First off, the strategic environment has changed considerably. It is well known that US surface ships, with the exception of carriers, are all diesel power and as of 1991 have not carried tactical nuclear munitions. Even if resurgent, Russia no longer poses the global nuclear threat to the US that it once did, and although China has emerged as the giant’s rival in the last two decades, it still has limited capacity to project blue water force deep into the Pacific in a measure that would constitute a direct challenge to US maritime interests. However, the Chinese are working hard to address that imbalance, evident in their land reclamation projects in the South China Sea and their overtures to South Pacific island states with regard to naval port visits and fishing rights, something that the US views with concern and which in part motivates Vice President Biden’s whirlwind tour of the region this week. Likewise, the re-establishment of the Russian Pacific Fleet also signals that the era of US maritime supremacy is now subject to contestation, so the US well understands that it needs all of its military allies working off of the same page when it comes to these new challenges. Recognizing the RNZN on its anniversary is one small way of doing so.

More importantly, from the moment President Obama stepped into the Oval Office he made de-nuclearization a cornerstone of his foreign policy. The Iran nuclear deal, the increased sanctions levied on North Korea, the slowing of advanced weapons sales to Pakistan, the repeated attempts to engage in bilateral strategic ballistic missile reductions with Russia–all of these efforts were undertaken as part of Obama’s vision of a safer world. It is therefore completely logical given his commitment to a world without (or at least with lesser amounts of) nuclear weapons, that under his administration the US would relent on the issue of NZ’s non-nuclear policy. In fact, it can be argued that the Obama administration wants to highlight its agreement with the principled commitment to a non-nuclear stance by authorising a US ship visit on a ceremonial occasion with symbolic significance given that several other nuclear powers will be among the 30 odd nations sending naval vessels to the celebrations–including its new competitors.

I have publicly suggested that the US send the USS Mercy, a hospital ship home ported at Pearl Harbour. It would symbolise the humanitarian aspects of naval deployments that the RNZN claims as one of its core missions and would defuse the grounds for opposition of protesters who see US warships as imperialist death platforms. Surprisingly, this suggestion has been ridiculed by some (most on the Right) who say that a ship without guns is not “exciting” and is not a real naval vessel. Given that navies around the world have tenders, tankers, tugs, intelligence collection vessels and assorted other non-combat ships, it strikes me as strange that some people think that the US decision to send a navy ship is a victory for NZ and yet that victory must be confirmed with a warship visit as opposed to something with a non-combat purpose. Given that the NZDF spends much time publicising its non-combat, peacekeeping and humanitarian roles, I would have thought that a visit by a US naval vessel whose purpose was something other than kinetic operations would be perfectly suited for the occasion.

In the end the decision by the US to accept the invitation to send a ship to the RNZN anniversary celebrations was a triumph of good sense over bureaucratic intransigence within the US defense establishment, pushed as much by the president’s commitment to a nuclear weapons-free world as it is by the evolving strategic realities in the Western Pacific Rim that require the US to consolidate its military alliance commitments in the region. Some in NZ may think that it “won” and the US lost with its change of posture, but a simple glance at geopolitical realities suggests that it was not the NZ non-nuclear movement that forced the change so much as it is the influence of much broader factors in a context when haggling about nukes on board is about as relevant to modern naval warfare as is arguing about the relative merits of spinnakers and mainsails.

The failed coup was Turkish democracy’s last stand.

datePosted on 08:24, July 20th, 2016 by Pablo

I have observed with bemusement some of the commentary (including here at KP) that views the failed coup in Turkey as a “victory for democracy.”  As someone who has lived through several coups in Latin America and who has academically studied, professionally written, and worked in developing policy for the US government on issues of comparative civil-military relations (including how to address coups), and who has written at length on the differences between coups d’etat, putsches, revolts and revolutions in the Middle East and elsewhere (some of it here on KP), I find it hard to believe that otherwise sensible commentators (with a notable exception) would think that anything good can come of the coup’s failure. This was not a simple matter of Turkish good guys versus bad guys, and the sequels to the violence will not be pleasant but will be long-lasting.

In any event, this week the Herald editorial board wrote favourably of the outcome in Turkey. My colleague Kate Nicholls (a comparative politics scholar) and I were disappointed by it and penned a response. It looks like the Herald will not publish the critique, so here it is:

As students of comparative civil-military relations, we were surprised to read the Herald’s July 19 editorial “Coup’s failure hopeful sign for democracy.” Unlike the Herald’s editors we see no positives resulting from the aborted coup. Instead we foresee the death throes of a painstakingly crafted secular, albeit imperfect, democracy, that was the crowning achievement of Kemal Atuturk and which has been under siege since the election of former Istanbul mayor Recep Erdogan to the Prime Ministry in 2003 and Presidency in 2014.

The cornerstones of the Kemalist vision of Turkish democracy were an apolitical professional military, an independent secular judiciary, and a multiparty electoral system characterized by a separation of powers and a system of checks and balances between the executive and legislative branches.  Granted, Ataturk’s nationalism, which bound the country together in the wake of the collapse of the Ottoman Empire, often worked to stifle free speech and repress ethnic minorities, notably the Kurds. Turkish democracy has also always been “guarded”, meaning that the military has on occasion acted as unelected veto-player. Yet since the rise of Erdogan to power 16 years ago, things have gotten incrementally but steadily worse.

Since he assumed office, Erdogan has undermined the judiciary by appointing ideological cronies and firing or arresting independent minded jurists; sacked hundreds of senior military officers and replaced them with loyalists; introduced mandatory Islamic Studies into military curricula; censored, banned and/or arrested non-supplicant media outlets and reporters; rigged electoral rules favour of his own party; and instituted constitutional amendments designed to perpetrate his rule and re-impose Sharia precepts on public institutions (something not seen since the days of the Ottomans). He has enriched himself and his friends by using public construction projects as sources of political patronage and illicit gain. All in all, he has destroyed the promise of a moderate democratic Islamism that brought him to power in the first place. Using populist methods to reaffirm his electoral popularity with the rural and urban poor, Erdogan has been steadily eroding Turkish democracy from within.

Erdogan has also proven himself to be diplomatically incompetent. From a position of stability as the regional power in the Levant, under his guidance Turkey now finds itself at war with adversaries on two borders, estranged from the US, Russia, Egypt and Israel as well as the Gulf Arab states, at odds with Europe over a host of political and economic issues, and confronted by a rising tide of domestic terrorism. His tenure has been ruinous for Turkish aspirations for European Union membership and Turkey’s increasingly unfavorable international reputation was cemented by its loss to New Zealand and Spain in the 2014 elections for a UN Security Council temporary seat for the 2015-17 term.

Erdogan has blamed the coup attempt on the self-exiled cleric Fethullah Gulen, whose power base is to be found amongst the more educated and liberal sectors of Turkish society and whose brand of Islam appears more compatible with the older secular nationalist vision. Whether Gulen was really behind the coup attempt remains to be seen, but there are reasons to suspect the President’s version of the coup’s origins, not least that the plot was very poorly planned and doomed to failure from the outset. For example, the plotters did not grab Erdogan or take over media outlets before announcing the takeover; did not move to censor social media in order to deny Erdogan and his loyalists an alternative communications platform; did not have more than a brigade’s worth of infantry troops (mostly conscripts) trying to control the entire country; and did not have enough armour or aviation on their side to impose emergency rule. As with many failed coups it was led by junior rather than senior officers, although that is because the senior ranks are full of Erdogan loyalists. One thing about modern day coups is that those leading them have a wealth of history to learn from, learning that does not seem to be much in evidence here in spite of Turkey’s history with previous coups and the examples provided by a host of countries elsewhere.

When it comes to the future of Turkish democracy, whether the coup was instigated from Pennsylvania or just a bit closer to the President’s own office is in many ways irrelevant. Erdogan is already using the events of the past week to further purge the military of secularist factions with the arrest of at least 6000 military personnel (including 130 officers), and has broadened the retaliatory sweep by suspending 8000 police officers, 15,000 public educators and 3000 members of the judiciary (all of whom are suspected of being opposed to his Islamicisation project for the Turkish state). He has moved to reintroduce the death penalty—a move which both appeals to baser populist tendencies and will be yet another setback in Turkey’s fifty-year long negotiation over accession to the European Union. None of this is supportive of democracy.

One of the major consequences of all this will be the reconfiguration of the Turkish military as a praetorian guard rather than professional organization. Based on Roman Imperial Guards, praetorian militaries are those that are heavily politicized, intervene in national politics, engage in domestic repression and serve the government of the day rather than the commonweal. Professional militaries, in contrast, are apolitical and non-partisan, focused on external defense and serve the nation as a whole regardless of who is in government.

What prompts a military to move from professional to a praetorian posture is a combination of push (internal) and pull (external) factors. The former include horizontal (between armed services) and vertical (between ranks) cleavages as well as resistance to government interference in military affairs. The latter include government corruption, stalemate, mishandling of security matters or inability to manage threats to national security, civil society pleading for intervention and loss of business confidence.

All of these factors were at play in Turkey’s latest coup. Nearly 300 people died in inter-service clashes. Erdogan loyalists swarmed under-manned and lightly armed soldiers in the streets of Ankara and Istanbul. Seeing that, civilian coup supporters stayed at home. Cynics will note that, in spite of its apparent near-success and the intense violence directed at loyalist-controlled security agencies and parliament, the nature of the undertaking suggested not so much a well-planned and militarily precise operation in defense of democracy as it did an opportunistic manipulation of discontent within military ranks in order to justify a purge of the discontented.

Whether the coup was done as a last ditch defense of the Kemalist democratic legacy or not, the outcome is now clear: Turkey has veered hard towards outright dictatorship with Erdogan as the primary beneficiary. The President’s announcement that he will now “clean all state institutions of the virus” that led to the coup is an ominous sign of things to come.

PS: The Herald was kind enough to publish a short version of the original essay on July 21, 2016.

I was invited to speak at a forum in Wellington on the “Privacy Security Dilemma.” It included a variety of people from government, the private sector, academia and public interest groups. The discussion basically revolved around the issue of whether the quest for security in the current era is increasingly infringing on the right to privacy. There were about 150 people present, a mixture of government servants, students, retirees, academics, foreign officials and a few intelligence officers.

There were some interesting points made, including the view that in order to be free we must be secure in our daily lives (Professor Robert Ayson), that Anglo-Saxon notions of personal identity and privacy do not account for the collective nature of identity and privacy amongst Maori (Professor Karen Coutts), that notions of privacy are contextual rather than universal (Professor Miriam Lips), that in the information age we may know more but are no wiser for it (Professor Ayson), that mass intrusions of privacy in targeted minority groups in the name of security leads to alienation, disaffection and resentment in those groups (Anjum Rahman), and that in the contemporary era physical borders are no impediment to nefarious activities carried out by a variety of state and non-state actors (various).

We also heard from Michael Cullen and Chris Finlayson. Cullen chaired the recent Intelligence Review and Finlayson is the current Minister of Security and Intelligence. Cullen summarised the main points of the recommendations in the Review and was kind enough to stay for questions after his panel. Finlayson arrived two hours late, failed to acknowledge any of the speakers other than Privacy Commissioner John Edwards (who gave an encouraging talk), read a standard stump speech from notes, and bolted from the room as soon as as he stopped speaking.

Thomas Beagle gave a strong presentation that was almost Nicky Hageresque in its denouncement of government powers of surveillance and control. His most important point, and one that I found compelling, was that the issue is not about the tradeoff between security and privacy but between security and power. He noted that expanded government security authority was more about wielding power over subjects than about simply infringing on privacy. If I understand him correctly, privacy is a commodity in a larger ethical game.

Note that I say commodity rather than prize. “Prize” is largely construed as a reward, gain, victory or the achievement of some other coveted objective, especially in the face of underhanded, dishonest, unscrupulous and often murderous opposition.  However, here privacy is used as a pawn in a larger struggle between the state and its subjects. Although I disagree with his assessment that corporations do not wield power over clients when they amass data on them, his point that the government can and does wield (often retaliatory) power over people through the (mis) use of data collection is sobering at the very least.

When I agreed to join the forum I was not sure exactly what was expected from me. I decided to go for some food for thought about three basic phrases used in the information gathering business, and how the notion of consent is applied to them.

The first phrase is “bulk collection.” Bulk collection is the wholesale acquisition and storage of data for the purposes of subsequent trawling and mining in pursuit of more specific “nuggets” of actionable information. Although signals intelligence agencies such as the GCSB are known for doing this, many private entities such as social media platforms and internet service providers also do so. Whereas signals intelligence agencies may be looking for terrorists and spies in their use of filters such as PRISM and XKEYSCORE, private entities use data mining algorithms for marketing purposes (hence the targeted advertisements on social media).

“Mass surveillance” is the ongoing and undifferentiated monitoring of collective behaviour for the purposes of identifying, targeting and analysing the behaviour of specific individuals or groups. It is not the same thing as bulk collection, if for no other reason than it has a more immediate, real-time application. Mass surveillance is done by a host of public agencies, be it the Police via CCTV coverage of public spaces, transportation authorities’ coverage of roadways, railroads and airports,  local council coverage of recreational facilities and areas, district health board monitoring of hospitals, etc. It is not only public agencies that engage in mass surveillance. Private retail outlets, shopping centres and malls, carparks, stadiums, entertainment venues, clubs, pubs, firms and gated communities all use mass surveillance. We know why they do so, just as we know why public agencies do so (crime prevention being the most common reason), but the salient fact is that they all do it.

“Targeted spying” is the covert or surreptitious observation and monitoring of targeted individuals and groups in order to identify specific activities and behaviours. It can be physical or electronic (i.e. via direct human observation or video/computer/telephone intercepts). Most of this is done by the Police and government intelligence agencies such as the SIS, and most often it is done under warrant (although the restrictions on warrantless spying have been loosened in the post 9/11 era). Yet, it is not only government security and intelligence agencies that undertake targeted spying. Private investigators, credit card agencies, debt collectors, background checking firms and others all use this as a tool of their trades.

What is evident on the face of things is that all of the information gathering activities mentioned here violate not only the right to privacy but also the presumption of innocence, particularly the first two. Information is gathered on a mass scale regardless of whether people are violating the law or, in the case of targeted spying, on the suspicion that they are.

The way governments have addressed concerns about this basic violation of democratic principles is through the warrant system. But what about wholesale data-gathering by private as well as public entities? Who gives them permission to do so, and how?

That is where informed consent comes in. Informed consent of the electorate is considered to be a hallmark of robust or mature democracies. The voting public are aware of and have institutional channels of expression and decision-making influence when it comes to the laws and regulations that govern their communal relations.

But how is that given? As it turns out, in the private sphere it is given by the phrase “terms and conditions.” Be it when we sign up to a social media platform or internet service, or when we park our cars, or when we enter a mall and engage in some retail therapy, or when we take a cab, ride the bus or board a train, there are public notices governing the terms and conditions of use of these services that include giving up the right to privacy in that particular context. It may be hidden in the fine print of an internet provider service agreement, or on a small sticker in the corner of a mall or shop entry, or on the back of a ticket, but in this day and age the use of a service comes attached with it the forfeiture of at least some degree of privacy. As soon as we tick on a box agreeing to the terms or make use of a given service, we consent to that exchange.

One can rightly argue that many people do not read the terms or conditions of service contracts. But that is the point: just as ignorance is no excuse for violation of the law, ignorance of the terms of service does not mean that consent has not been given. But here again, the question is how can this be informed consent? Well, it is not.

That takes us to the public sphere and issues of governance. The reality is that many people are not informed and do not even think that their consent is required for governments to go about their business. This brings up the issue of “implicit,” “implied” or inferred” consent. In Latin American societies the view is that if you do not say no then you implicitly mean yes. In Anglophone cultures the reverse is true: if you do not explicitly say yes than you mean no. But in contemporary Aotearoa, it seems that the Latin view prevails, as the electorate is often uninformed, disinterested, ignorant of and certainly not explicitly consenting to many government policy initiatives, including those in the security field and with regards to basic civil liberties such as the right to privacy and presumption of innocence.

One can argue that in representative democracy consent is given indirectly via electoral processes whereby politicians are elected to exercise the will of the people. Politicians make the laws that govern us all and the people can challenge them in neutral courts. Consent is given indirectly and is contingent on the courts upholding the legality if not legitimacy of policy decisions.

But is that really informed contingent consent? Do we abdicate any say about discrete policy decisions and legislative changes once we elect a government? Or do we broadly do so at regular intervals, say every three years, and then just forget about having another say until the next election cycle? I would think and hope not. And yet, that appears to be the practice in New Zealand.

Therein lies the rub. When it comes to consenting to intrusions on our privacy be they in the private or public sphere, we are more often doing so in implicit rather than informed fashion. Moreover, we tend to give broad consent to governments of the day rather than offer it on a discrete, case by case, policy by policy, law by law basis. And because we do so, both public authorities and private agencies can collect, store, manipulate and exchange our private information at their discretion rather than ours.

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