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A question of focus.

datePosted on 10:12, August 1st, 2019 by Pablo

More complaints have been aired about the Royal Commission of Inquiry (RCICh) into the Christchurch terrorist attacks. These have centred on the perception that the RBICh has not paid enough attention to the Muslim community who were the targets of the attacks and the sole victims of them. Even though the Terms of Reference for the RCICh specified that it would establish liaison ties with representatives of the NZ Muslim community, many are unhappy with the way in which those have been put into effect. This is in spite of an initial outreach to the community via the Christchurch Muslim Liasion Group and then formation of a Muslim Community Reference Group (MCRG, via the RCICh’s Head of Community Engagement) that is scheduled to begin work this month.

The main objection appears to be that the Muslim community, as victims of the attacks, are not the central focus of the inquiry and therefore feel marginalised by the process even if organisations like the Islamic Women’s Council of New Zealand (IWCNZ) and Federation of Islamic Associations of New Zealand (FIANZ), as well as several prominent Muslims, have been consulted. This is a delicate and thorny concern that is difficult to resolve. What follows is an explanation of why that is so.

The terms of reference for the RCICh specify that it must do two things: determine how the killer planned, prepared and executed the attacks; and what state agencies did and did not do in the lead-up to the attacks that enabled or could have prevented them from happening. The relevant sections of the terms of reference are here (sections 2-4 of the Terms of Reference):

Purpose of inquiry and matter of public importance

The matter of public importance that the inquiry is directed to examine is—

(a) what relevant State sector agencies knew about the activities of the individual who has been charged with offences in relation to the 15 March 2019 attack on the Al-Noor Mosque and the Linwood Islamic Centre in Christchurch, before that attack; and
(b) what actions (if any) relevant State sector agencies took in light of that knowledge; and
(c) whether there were any additional measures that relevant State sector agencies could have taken to prevent the attack; and
(d) what additional measures should be taken by relevant State sector agencies to prevent such attacks in the future.
Scope of inquiry

In order to achieve its purpose, the inquiry must inquire into—

(a) the individual’s activities before the attack, including—
(i) relevant information from his time in Australia; and
(ii) his arrival and residence in New Zealand; and
(iii) his travel within New Zealand, and internationally; and
(iv) how he obtained a gun licence, weapons, and ammunition; and
(v) his use of social media and other online media; and
(vi) his connections with others, whether in New Zealand or internationally; and
(b) what relevant State sector agencies knew about this individual and his activities before the attack, what actions (if any) they took in light of that knowledge, and whether there were any additional measures that the agencies could have taken to prevent the attack; and
(c) whether there were any impediments to relevant State sector agencies gathering or sharing information relevant to the attack, or acting on such information, including legislative impediments; and 
(d) whether there was any inappropriate concentration of, or priority setting for, counter-terrorism resources by relevant State sector agencies prior to the attack.
Matters upon which findings are sought

The inquiry must report its findings on the following matters:

(a) whether there was any information provided or otherwise available to relevant State sector agencies that could or should have alerted them to the attack and, if such information was provided or otherwise available, how the agencies responded to any such information, and whether that response was appropriate; and
(b) the interaction amongst relevant State sector agencies, including whether there was any failure in information sharing between the relevant agencies; and
(c) whether relevant State sector agencies failed to anticipate or plan for the attack due to an inappropriate concentration of counter-terrorism resources or priorities on other terrorism threats; and
(d) whether any relevant State sector agency failed to meet required standards or was otherwise at fault, whether in whole or in part; and
(e) any other matters relevant to the purpose of the inquiry, to the extent necessary to provide a complete report.

As readers will observe, there is no specific mention of a Muslim-as-a-community focus, much less a victim-centred one. Instead, attention is on the killer and the State, with recommendations deriving from the above investigation lines focused on how state agencies can work better towards preventing such a thing happening in the future. The role of the MCRG is seen by the RCICh in that light–as witnesses adding to the testimonial trail about events leading up to the attacks.

This clearly is not the reasoning of those who think that the Muslim community should be placed front and centre in the RCICh’s concerns. It was never the intention of the RCICh to make them the centrepiece, and the announcement of the terms of reference and first minute issued by the RCICh noted that the MCRG was an advisory body only, limited in numbers, with members selected by the RCICh and therefore not entirely representative of the community as a whole. At that point people had the option of agreeing to accept invitations or not.

The top-down selection process by which the MCRG was constituted was bound to raise concerns about co-optation, and the unspecified limited number of group members reinforced the notion that the MCRG is going to be used as window dressing on a potential whitewash. On the other hand, given the demographic heterogeneity of NZ’s Muslim population and the political and personal rivalries that go with exercising collective representation for this type of membership, a bottom-up MCRG selection process in which a larger number of Muslim communities are represented would have been too time-consuming to organise and hold given the six month window that the RCICh has in which to prepare and present its report (due December 10).

Because a nation-wide leadership selection process involving all organised Muslim communities cannot happen given the time constraints, as national peak associations it seems reasonable that leaders of FIANZ and IWCNZ would participate in the MCRG. Perhaps recognised leaders of the mosques that were attacked will participate, along with representatives of Muslim regional or city organisations. The importance is that numbers of representatives remain manageable and that internecine rivalries are avoided in the discharge of their responsibilities as members of the MCRG.

I am not privy as to who is in the MCRG but can only hope that they are a representative cross-section of the Islamic community in Aotearoa.

Returning to the issue of focus, it was never contemplated that the RCICh would address issues of victim compensation or other post-event consequences. The main role of the MCRG is to provide testimony about how Muslim community security concerns were managed (some would say ignored) by State agencies (particularly but not limited to the Police and SIS), in the lead-up to March 15. There clearly is much to be said here and the MCRG would be well served to bring forth compelling witness accounts of the impact that the post-9/11 social and political milieu has had on them, both in the security realm as well as elsewhere in NZ society.

I have no doubt that some interesting light can be shed by the MCRG on how NZ security agencies handled complaints about threats to members of the Islamic community and their organisations, and I am willing to bet that the complaints and requests for assistance have been more numerous than what has been publicly acknowledged by NZ authorities and the mass media. I also believe that the Muslim community can speak at considerable length about the disproportionate official scrutiny that they have endured after 9/11 even though no Muslim has been charged, much less convicted of committing an act of ideological-driven violence in NZ before or since (with official scrutiny extending to acts of intimidation, extensive infiltration of mosques and sowing of distrust within targeted groups by the extensive use of informants).

Both of these backstories will be invaluable for the RCICh’s investigation into if and how, whether by acts of omission or commission, State agencies contributed to the multi-dimensional lapses–systemic, institutional and individual–that together constituted the collective “intelligence failure” that enabled the commission of this mass atrocity.

All of this assumes that the Inquiry will be conducted honestly, thoroughly and without a hidden intention to cover-up or whitewash. Some are skeptical that the process will lead to a full and truthful account of what happened. I beg to differ, at least in part. Having spoken to the RCICh myself, I can only say that those involved in conducting the inquiry acknowledge the limitations of their charter but appear committed to finding the truth and understand that their reputations would be poorly served if they were to do otherwise. I hope that I am not proven wrong.

Assuming that the process is honest, the two lines of investigation–of the killer’s actions and of state agencies’ roles in the lead up to the attacks–will establish the chain of causality that led to the murderous victimisation of over 100 people and their families. Once responsibility for what happened is established and lines of accountability (if any) determined within the State sector, then the easier it will be for those representing the victims of the March 15 domestic terrorist attack to demand redress from Crown entities whose negligence, incompetence or prejudice enabled in one way or another the commission of the event. To try and do otherwise within the confines of the RCICh confuses the process because it misplaces its immediate emphasis (which is supposed to be on the perpetrator, accomplices and potential enablers, including agents of the State) and detracts from its primary focus (which is to establish the how’s and why’s that led to the success of the attacks).

In other words, focus on the Muslim community as victims rather than as primary witnesses within the RCICh puts the inquisitorial cart before the horse and clouds the inquiry with concerns best addressed after its conclusion.

Torture works.

datePosted on 15:55, July 1st, 2019 by Pablo

I have been working my way through a 47,000 document tranche of declassified US government communications related to Argentina and the “Dirty War” of 1976-83. I grew up in Argentina in the period leading up to the March 24, 1976 coup d’état that ushered in the so-called “Process of National Reorganisation,” the euphemism that the military junta used to justify its actions. That was the period when I was politically socialised and which has marked my approach to politics ever since.

I also do so because I did human rights work in Argentina in the early 1980s and wrote a Ph.D. dissertation on the Argentine state that required repeated primary source field research in the country throughout that decade. Those trips afforded me the opportunity to complement my human rights work with documentary and interview data that, while tangental to the dissertation, were central to my interest in what happened to people I knew who were caught up in the “Process.” I continued this interest as a sidebar to my academic work and official obligations while serving in and with US government agencies in the late 80s and early to mid 1990s. Even so, I did not have the time or authority to access what has emerged in this tranche of documents.

The documents (known as “cables” in diplomatic parlance) come from the CIA, FBI, State Department, Department of Defense and other agencies such as the Commerce Department that had involvement in Argentine issues during that period. The quality of the reporting and analysis is surprisingly good and the tone often brutally frank. Even so, thousands of pages in the declassified tranche are redacted or completely blank, attesting to ongoing sensitivity of some of the subjects being discussed. On a more personal level, the documents reveal the names of people that I knew while growing up, both embassy officials as well as private businessmen, school officials and missionaries (they were all men) who were fathers of kids that I went to school with and who either wrote the cables in question or served as informants to the embassy.

One of the most disturbing aspects of the reporting is the constant references to the Argentine security forces use of murder and torture. Time and time again the cables detail how torture was used to extract information and confessions, often followed by the murder of prisoners. The cables report things such as corpse disposal techniques improving after scores of bodies were discovered in public places with clear signs of torture and execution-style bullet wounds (among others, the “disposal-via-plane” method–where prisoners were sedated, loaded onto Air Force planes and dumped over the South Atlantic away from shore–was perfected after weighed-down bodies surfaced in the River Plate and many others were identified on land even though efforts had been made to destroy any possibility of identification). They note that many of the dead were said to have been killed in armed confrontations with security forces that never happened, and that many of those killed were students, unionists, academics, journalists, politicians and others unconnected to the various guerrilla groups (Montoneros and Ejercito Revolucionario del Pueblo or ERP, primarily) that were operating at the time.

The more I read the more I began to question a long held belief of mine: that torture does not work as an interrogation method, but instead is simply a cruel form of punishment. Readers may remember that, following on earlier academic and policy writing on the subject, I blogged here at KP about how torture does not work. But as I read the horrific descriptions of the methods used by the Argentine inquisitors and what happened as a result, and even though I had interviewed a few torture survivors during my human rights work, it dawned on me that I was wrong. Torture does, in fact, work as a means of extracting time sensitive tactical as well as strategic information from victims. Allow me to explain.

Torture only works in specific circumstances. Where it does not work is in democracies with strong institutions and the rule of law. Take, for example, the US torture program known as “enhanced interrogation.” This was an extension of coercive interrogation techniques that US military counter-intelligence officers developed by adapting a blueprint provided by the Survival, Evasion, Resistance and Escape (SERE) programs operated by the US military for personnel at high risk of capture in hostile territory. Those programs emulated the unpleasantness of foreign interrogations (say, by North Vietnamese) so that those going through the SERE programs would have the mental and physical ability to cope without breaking.

After 9/11 the CIA decided to turn SERE on its head and use it as a basis for enhanced interrogation of suspected jihadists. That in turn led to its use by the US military against jihadists and insurgents in places like Iraq and Afghanistan. Supervised by psychologists and medical doctors, techniques like water-boarding, exposure to extreme temperatures, sleep deprivation, painful binding by ropes, simulated executions and threatened electric shocks (where captives were hooked up by wires to car batteries or wall power outlets), simulated attacks by military working dogs (reportedly suggested by Israeli intelligence because of Arabs’ aversion to dogs) and sexual degradation were used by interrogators to try and extract both real-time and broad picture information from prisoners. The pictures that emerged from the Iraqi prison at Abu Ghraib–where US Army military police went rogue because of the environment created by their commanders–alerted the world to the fact that the US was routinely employing torture as an interrogation method, something that also occurred at detention facilities at Baghram Military Air Base in Kabul and in at the detention centre (Camp X Ray) operated by US Marines at the US Naval base at Guantanamo Bay, Cuba. This stopped when the Obama administration took office.

There were limits to what the US torturers would do. Deaths, rapes and other atrocities did occur but the overall thrust of US torture programs was to avoid such “excesses” and to remain within the broadly defined limits of US military codes of justice and the laws of war. It can be argued whether that in fact happened, but the point is that the US military, the CIA and the US government all wanted to give at least the appearance of norm adherence and legal cover. This forced the interrogators to engage in self-limiting strategies when it came to the treatment of prisoners, even if the boundaries of that self-limitation were broad. They were constrained by both the institutional and legal apparatus under which they operated and perhaps by their internalisation of cultural mores and norms regarding acceptability and limits to what can be done in defence of the State’s interests.

Whatever the reason for the relative self-limitation of the US torturers, the end result is that, rightwing apologist’s bluster to the contrary, limited “actionable” intelligence was obtained via the enhanced interrogation program (this was detailed in the Congressional Report on the matter).

Bottom line? Torture does not work when practiced by agents of modern democratic states with strong institutions and laws and a concern for human rights and civil liberties even when dealing with foreign enemies.

No such thing happened during the “Dirty War.” There were no limits set on what interrogators could do to prisoners other than what their consciences dictated. Moreover, the torturers were required to observe each other’s work, to include murdering people, so as to cement the bonds of group complicity (presumably in the hope of securing group silence in future years). The barbarity unleashed on suspects was medieval, modern and mind-bending in its depravity. The interrogators used flame, electricity, water, blunt, bladed and teethed tools, surgical instruments, pneumatic machines, vices and industrial presses. They removed body parts without anaesthesia for no medical purpose. They made captives perform grossly degrading acts and penetrated them with an assortment objects. They raped and sodomized both men and women alike and used animals to do so as well. They mutilated, tortured and murdered children, spouses, siblings, parents and grandparents in front of prisoners. There was simply nothing they would or could not do in pursuit of a confession and/or information about others. Worse yet, many of these evil beings still walk amongst us, either in exile or still in Argentina in spite of the various trials of officials implicated in the atrocities of the Dirty War.

Beyond the personal tragedies of those victimised, this is the saddest part: The torturer’s methods worked. Time and time again the US cables document Argentine security officials stating that prisoners identified other members of political resistance groups after “hard” interrogations. Time and time again the cables detailed how one by one “terrorist” cells were dismantled thanks to information gleaned from such interrogations. From the time the military took power on March 24, 1976 to the time of the Soccer World Cup held in Argentina in June-July 1978, tens of thousands of people vanished (some into exile) and levels of political violence declined from an average of half a dozen murders a day to near zero. Both urban and rural guerrilla groups were decimated and thousands of people disappeared. By the time the World Cup started under the watchful eyes of the junta and celebrity guests like Henry Kissinger, Argentina was once again at peace, even if it was the peace of the dead.

Two things stand out for me. First, why did the victims give up the names of comrades, friends, acquaintances and family rather than just accept the fact that they were going to die? Surely they must have known that they and the people tortured in front of them would not make it out alive, so why give the torturers what they wanted? All I can think is that while many people broke because of the physical horrors inflicted on them and hoped to escape death in their moment of agony, an equal number broke because they wanted to save the lives of their loved ones even if they knew that they would die and their loved ones or others would likely die anyway. Between desperation and pain, it seems that the captive’s minds searched for futile hope in the midst of darkness.

The second standout point is what made the torturers do what they did? There certainly was both individual and collective psychopathic behaviour involved (such as in the case of the infamous “Angel of Death” Lt. Carlos Astiz, later captured by the British in the first confrontation of the Falklands/Malvinas War), but it also appears that to reach the state of mind that they operated in they had to believe that a) democracy and human rights were useless concepts; b) the rule of law was no longer viable as a social construct; c) ideological enemies were sub-human; d) they were part of a greater good; e) morality was relative and the ends justified the means; f) they were inured to violence given the ongoing and escalating social conflict of the previous decade; g) they had impunity, both present and future; h) their cause was existential (in this case defence of the Catholic, capitalist, heterosexual, patriarchal and white-dominant parameters of Argentine society).

Which is to say, when unconstrained by democratic norms and (at least concern about) the rule of law, torture works. It works because once there is no limit to what torturers can do, their victims have only one–even if futile– hope to save themselves or others, and that is to talk. The democratic “variant” of torture simply cannot enter this realm unless the very values that underpin democratic socialisation are absent in the interrogator.

That explains why I was wrong about the utility of torture. I used to think that torture persisted because it was useful as a punishment that reminded potential victims of the costs of engaging in specific courses of action and thereby deterred them from doing so. I also thought that it involved sadistic pleasure on the part of desensitized socio- or pyschopathic perpetrators.

Now I believe that, along with both of these motives, torture persists throughout history because it is a useful interrogation method under specific conditions where democratic norms, values, institutions and legal codes do not apply. Since democracies have historically been a minority among world governance structures, this can explain the wide-spread use of torture to this day.

I am belabouring the obvious.

I will not go into how the Catholic Church and several democracies were active supporters of the Argentine dictatorship (including the US until Jimmy Carter was elected, and then after he was replaced by Ronald Reagan). Nor will I delve into how civil wars often see more atrocities committed than in foreign wars. What I will note is that when democracies begin to be corroded from within and respect for institutions and laws and basic norms about civility begin to be supplanted by partisanship, opportunism and treachery, then the slide into darkness has begun.

Perhaps that is what happened to the Bush 43 administration, and which may be happening now under Trump. Perhaps it is what led the French to go feral when trying to cling on to their colonial possessions in the 1950s and 1960s.

Whatever the case there is one more thing to ponder. If a liberal democracy like New Zealand had anything to do with the extraordinary rendition and black site programs that the US ran as conduits into and locations for its “enhanced interrogation” efforts, then merely having strong institutions and respect for the rule of law is not enough to guard against complicity in torture when fear of “the other,” bureaucratic opportunism and security partner pressure is involved. That is a major reason why I am interested in reading the Inspector General of Intelligence and Security’s (still delayed) report on whether New Zealand had anything to do with that part of the US “war on terrorism.”

A fraught inquiry.

datePosted on 16:21, June 20th, 2019 by Pablo

The inquiry into whether the SAS acted illegally during a nighttime raid on a suspected insurgent’s hideout in Afghanistan in 2010 (code named Operation Burnham), which resulted in six civilian deaths and serious wounds to 15 others, is slowly coming apart. This is unfortunate because the NZDF, which has allocated NZ $8 million to its representation at the inquiry, looks likely to be let off the hook even though the inquiry has revealed a pattern of lying, deception and cover up on its part. The issue transcends the actions of the SAS and allied forces on the ground and moves into the behaviour of the NZDF chain of command in Afghanistan and NZ after the first reports of civilian casualties came to light. Unfortunately, it now seems that will be whitewashed into oblivion.

So far the Inquiry (chaired by Sir Geoffrey Palmer and Sir Terence Arnold) has revealed that contrary to NZDF statements, civilians were known to be killed from the beginning and that at least some of them were “MAMs” (military aged males) who were unarmed. It also revealed that, again contrary to earlier NZDF reports, a US AC-130 gunship was involved in the operation and hit targets as they fled the villages in which the operation was conducted. Some of these may have been women and children, although the NZDF changed the identification of civilians to possible “INS” (insurgents) once the raid became a matter of public attention. The after-action reports demonstrate that little difference was given to suspected INS and MAMs when calling in air strikes, and that the AC-130, which is a rather blunt instrument when used on people out on open terrain, was the primary instrument of death. Only one person was killed by an SAS trooper, that being a hapless unarmed shepard who stumbled towards a SAS sniper position providing cover from a ridge line above the villages.

The NZDF’s (unnecessary, in my opinion) deception and cover up will largely remain lost because of two things: there secrecy in which the Inquiry has been shrouded; and the tactics of some of those who brought the matter to public attention. Let me explain.

The Inquiry was set up as a result of the allegations in a 2017 book by Jon Stephenson and Nicky Hager titled “Hit and Run.” The book followed a series of magazine stories by Mr. Stephenson about the SAS in Afghanistan and the Operation Burnham raid. Mr. Stephenson did almost all of the field research and original writing that went into the book, with Mr Hager joining later in order to add weight to the venture and bring it to quick publication in an election year. Although Mr. Hager got first author treatment on the cover page and in the media, the truth is that Mr. Stephenson was responsible for the majority of what was written in it.

As can be expected given their different roles in the project, the authors differed on some key issues, including the use of non-military maps to illustrate the location of the targeted villages and the tone of some of the language used to describe the SAS’s actions (which have been described by some as “war crimes” committed in revenge for the death of a NZDF soldier weeks earlier). One bone of contention was whether in fact any Taliban associated with the deadly attack on the NZDF land convoy were present in the village of Naik. That matters because the NZDF said that there were and that justified the raid. As it turns out, Mr. Stephenson subsequently reported that indeed, two Taliban commanders–the objectives of the “kill or capture” SAS-led mission–were present in the village but left before the raid commenced. However, the book claim is that no insurgents were present, apparently because none were found by the SAS in the targeted villages and Mr. Stephenson had not yet been able to secure interviews with the escaped Taliban commanders before the dateline for publication. The discrepancy does not invalidate the many other claims in the book but points to differences in journalistic approach between the two Hit and Run authors–differences that, along with other errors in the book (such as location errors on the maps used in the book), the NZDF and its supporters have been quick to seize upon.

The book came out, a furore ensued, the NZDF pretty much denied everything, then slowly began to correct its narrative and admit to much of what was written, and an Inquiry was eventually launched once the Labour-led government was installed (the previous National government refused to launch an inquiry and accepted the NZDF version of events).

The scope of the Inquiry was initially narrowly construed: determine what happened and whether the SAS and its Afghan and US partners contravened the laws of war. This is what led to the near-blanket extension of secrecy to the evidence and testimony given before it, as multiple agencies such as the GCSB and SIS had some involvement in the affair, SAS personnel are normally given anonymity during official investigations, and sources, methods, tactics and the names of individuals could be compromised if transparency was faithfully observed. This has led to disappointment in some quarters and increased tension between the Inquiry leaders and the accusers over the lack of transparency.

The bottom line is that whatever the legitimacy for the rationale behind keeping much of the Inquiry secret, its primary focus was always about the how Operation Burnham unfolded as a combat event. Questions about NZDF post-event misrepresentation could only be addressed once the facts on the ground were established.

I am ignorant of the exact timing of their entrance (perhaps even from the onset), but at some point the much celebrated team of Deborah Manning, Rodney Harrison QC and Richard McCleod (of Ahmed Zaoui fame) were invited to represent the victims of the raid in the Inquiry. It was at that point that things began to fall apart. The reason is that adding the villager’s perspective into the mix at the same time as responsibility was being determined muddled the Inquiry by stretching its terms of reference. Again, the original scope of the Inquiry was to determine what happened, whether illegal acts were committed and to attribute responsibility if so. Once that was established then the issue of reparations, compensation and other forms of victim redress could be discussed because it would be clearly established how they were victimised.

This is an important distinction. It is appropriate for the villagers to testify as witnesses. It is another thing to have them testify as victims. The former seeks to uncover other points of view on what was a chaotic nighttime operation. The latter presupposes culpability and concentrates on the matter of redress. Yet, judging from the legal team’s statements, it is this second matter that appears to be the focus of the villager’s representation in the Inquiry.

Under such conditions allowing villager legal representation to sit alongside the book authors who made the claims against the NZDF in the first instance is akin to putting the cart before the horse. To phrase it in political science terms, it is a case of methodological inversion because the focus on the villagers-as-victims selects on the dependent variable (the situation after the raid) rather than on the independent and intervening variables leading to the outcome (the reasons for and conduct of the raid). Put even another way: Yes, we know that innocent people died and were wounded in the raid and that the NZDF attempted to cover it up. But the question is whether they were killed unlawfully, and if so, by who, exactly? It is only when those questions are answered that discussion of what to do by way of redress can begin.

Unhappy with the proceedings, the villager’s legal team has quit the Inquiry (there is much talk about the villagers being disillusioned with the Inquiry but one has to wonder how much agency did they have and how conversant with the proceedings were they given the fact that they are largely illiterate peasants living in remote valleys 14,000 kilometres away from where the Inquiry is being conducted). Now Mr. Stephenson has publicly revealed that, based on interviews with them, two Taliban commanders were in Naik after all. That is problematic because it contradicts the villager’s original testimony as claimed in the book (which stated that no Taliban were present in the villages before the raid) and Mr. Hager’s supporting remarks to the Inquiry (which Mr. Stepehnson apparently contradicted in his testimony to the Inquiry months ago, where he left open the possibility that Taliban were present in the village before the raid but which he did not confirm publicly until recently). This still leaves a lot yet to be determined but certainly gives the impression that all is not well on the accuser’s side of the table.

I believe that the thrust of the book is correct even if mistakes were made on details and the language in it is a bit strong at times. Although controversial, Mr. Hager’s previous writing on matters of NZ security and intelligence have largely been proven correct. I have a ton of respect for Ms. Manning and Mr. Stephenson in particular, both of whom I know socially. I also believe that the SAS are very professional and are not prone to killing people for the sport of it. What I do not have much regard for is military superiors using secrecy and public relations to spin stories that evade the truth and which serve to shirk responsibility when things go wrong.

Alas, the NZDF brass may prevail in this instance. Most of those in leadership positions at the time Operation Burnham was conducted have moved on to other pastures and would not face punitive sanctions in any event. A few middle ranking soldiers might be called to account but it is doubtful that anything career threatening will happen to them. The soldiers who conducted the raid are very unlikely to be found to have committed illegal acts given the fog of war in difficult circumstances (I say this having read a number of the after-action summaries provided to the Inquiry).

Perhaps I am wrong and the Inquiry will find that the NZDF falsified documents and mislead the civilian leadership of the moment as to what actually occurred that night (one should recall then Defense Minister Wayne Mapp’s statements immediately following the raid versus later, once the book was published and he was revealed as a source for it). In that case perhaps some heads will roll. But I find that prospect unlikely.

What I do find likely is that, undermined by competing agendas amongst the principles involved in confronting the NZDF and shrouded by the mantle of secrecy afforded to it by the Inquiry, the military will pay no price even in the event that mistakes were made and innocents hurt as a result of them. I hope to be proven wrong and stand to be corrected if any of the above analysis is faulty, but at this juncture I think that in more ways than one the NZDF may well have dodged a bullet.

Media Link: The March 15 aftermath.

datePosted on 17:03, June 7th, 2019 by Pablo

I was interviewed as part of an Al Jazeera documentary on the aftermath of the March 15 terrorist attacks in Christchurch. The program is well worth watching because it addresses subjects that most of the NZ media do not want to wrestle with.

You can find it here.

Hamstrung from the start?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Launching into trouble?

datePosted on 14:03, May 7th, 2019 by Pablo

On May 5 the NZ-US joint venture company Rocket Lab successfully completed a night-time launch of its Electron booster carrying three US Air Force small satellites (smallsats) named Harbinger, SPARC-1 and Falcon ODE. The STP-27RD mission is part of the DoD Space test program run by the US Air Force Space Command’s Space and Missile Systems Center in collaboration with the Defence Innovation Unit as part of its Rapid Agile Launch Initiative (RALI). Funding for the launch came from Department of Defence (DoD) Other Transaction authority to award service contracts to non-traditional commercial small launch companies. The latter is interesting because it is not a line item category in the DoD budget but instead falls into the discretionary funds allocations category usually associated with the Defence Advanced Research Projects Agency (DARPA).

In its second commercial launch from Launch Complex 1 on the Mahia Peninsula, the booster safely deposited its 180 kilogram payload into an orbit 500 kilometres (310 miles) above earth at an inclination of 40 degrees to the equator. It is also the second launch with a military payload. Harbinger is a US Army sponsored commercial smallsat developed by York Space Systems that will perform tasks that demonstrate its ability to meet US Army Space capability requirements (however vague they may be defined in public, but which are technically specific in nature). The Falcon Orbital Debris Experiment (Falcon ODE), sponsored by the US Air Force Academy, evaluates ground based tracking of space objects. The Space Plug and Play Architecture Research CubeSat-1 (SPARC-1) is a joint Swedish-US experiment testing avionics miniaturisation, software defined radio systems and space situational awareness.

Rocket Lab is a commercial pioneer in Small Lift (SL)/Low Earth Orbit (LEO) booster technologies. Small lift refers to payloads under 500 kilograms and low earth orbit refers to orbits below 1,200 miles. Rocket Lab specialises in boosting payloads of less than 250 kilograms into orbits of 150-300 miles from earth. Smallsats are now broken down into mini-, micro-, nano-, pico- and femto-categories, increasingly in cubesat configurations (with the latter being 4x4x4.5 inch cube units that weigh less than 3 lbs. There are currently more than 900 cubesats deployed in LEOs). The majority of these satellites are used for telecommunications and geospatial mapping. The average cost for a Rocket Lab Electron booster launch is USD$5.7 million, which is very cheap by any comparison, and the company sees future cost reductions when monthly launch schedules give way to biweekly launches from Launch Complex 1 and dedicated facilities operated by NASA in Virginia.

Rocket Lab is touted as a NZ entrepreneurial success story. Indeed it is, although it is now a US based company headquartered in Huntington Beach, USA, with a NZ subsidiary based in Auckland and on the Mahia Peninsula. Most of the capital invested in Rocket Lab now comes from US based funds and companies. The Electron engines are built in Huntington Beach and the launch vehicle assembled in Auckland.

There can be no doubt that Rocket Lab is revolutionising the space industry. But the launch of foreign military satellites by a NZ based company from a launch site on sovereign NZ soil raises some important political, practical and legal questions.

With regard to legal matters, it is worth asking what legal framework is in place governing the use of NZ assets and soil for foreign military satellite launches. Foreign military deployments in NZ are governed by formal agreements, as are NZDF deployments on foreign lands in support of bi-lateral or multilateral missions. Exports of sensitive, dedicated or potential “dual use” (civilian and military) technologies by NZ companies require special export licenses and in some case prohibitions apply to said exports to specific countries. But what is the framework governing foreign military use of NZ-based launchers? As far as I know neither the NZDF or any other government agency have been part of a foreign military satellite launch in NZ, so there is no legal precedent for specifying the terms and conditions governing that activity, much less launches conducted by a NZ-based private firm on behalf of a foreign military partner.

That matters because launches of foreign military non-weaponised payloads, even if they involve signals and technical intelligence gathering technologies, are largely non-controversial and can be covered under the rubric of “scientific research” in any event. But without specific clauses in NZ law prohibiting the launch of foreign military weapons platforms from NZ soil and/or by NZ companies, the field is open for that to happen. With space weapons platforms undergoing the miniaturisation mania that has impacted all aspects of combat from drones to autonomous infantry fighting machines, it is only a matter of when, not if they will be deployed (if they have not been already. India and China have both recently tested satellite killing probes against LEO targets and Russia and USA have long had larger sized offensive hunter-killer satellites tracking each other’s military communications space platforms, even if these are little more than “dumb” bombs that are guided into the target in order to destroy it). So the scene is set for the eventual deployment of space weaponry from NZ territory.

The question is whether there is a legal basis to permit or prohibit foreign military satellites, especially weaponised satellites, being launched from NZ soil with NZ technologies. I am unsure if that is the case one way or another and have heard of no parliamentary or ministerial discussion of the matter. Amid all of the applause for Rocket Lab there has been no pause given to consider the implications of its partnership with a foreign military, albeit a friendly one. If readers know more than I do on the legal governance structure surrounding Rocket Lab’s partnership ventures with the US Defence Department or any other foreign military, please feel free to illuminate me in the comments.

At a political level, it must be asked whether the current government or its predecessor had much input into the decision to accept US military “sponsorship” of smallsat launches using Rocket Lab technologies and facilities in NZ. Was there NZDF and MoD input? Did DPMC and/or cabinet consider the longer-term geopolitical implications of the association, or was the discussion limited to the commercial opportunities presented by it? For a country that works hard to show a commitment to peace and independence in its foreign policy, would not linking US military interests and a NZ-founded company in a dual use venture that uses NZ territory for US power projection in space raise as many concerns as accolades?

There are practical implications to consider. Is Rocket Lab prepared to contract for payload launches with foreign military “sponsors” other than the US? Or have contractual impediments already been put in place to preclude that possibility, or at least preclude the likes of the Chinese, Russians, Iranians, North Koreans and/or others from participating in the opportunity? Is there anything in Rocket Lab’s contracts with the US or other foreign military partners that specifically prohibits weapons platform launches, no matter how small they may be? Absent a law covering that eventuality, it is left to the company to draw the line on who gets to fill the booster nose cones and what gets put in them. Is it fair to ask if Rocket Lab has put any type of restrictions on who it contracts with and what gets loaded onto its military-sponsored payload delivery systems?

If the contract to deliver military payloads is solely and exclusively with the US, then Rocket Lab has painted a target on Launch Complex 1 in the event that the US becomes embroiled in a large-scale conflict with a major power. Even if it allows nations other than the US to launch military payloads on Electron boosters, Rocket Lab has made the Mahia Peninsula a target whether or not weapons satellites are launched from there. After all, the main use of smallsats is for surveillance, tracking, mapping and telecommunications, all of which are essential for the successful prosecution of contemporary wars. So even if smallsats launched from the Mahia Peninsula do not carry weapons on them, the site becomes a potential target.

Put another way: Smallsats are difficult to target once deployed, so space warfare planners in countries that have the ability to do so and are antagonistic to Rocket Lab’s foreign military client/”sponsors” will aim to prevent their deployment from the Mahia Peninsula. That means that they have likely added Launch Complex 1 to their potential target “packages” in the event that great power hostilities break out on Earth or in space. As it turns out, the low cost and quick launch capabilities offered by the Electron booster also make it a great choice for rapidly replacing military satellites of all kinds when lost to hostile action, so prudent military planners will ensure that Rocket Lab’s vehicles do not get off the ground should push come to shove. And given that NZ air space and launch sites are less defended than similar territory in larger countries, the relative ease of launching pre-emptive or follow up strikes on Launch Complex 1 encourages its targeting by adversaries of Rocket Lab’s foreign military partners.

That means, of course, that NZ could be drawn into a land/space war in which it is not a principle but where its soil and facilities is used by one or another party to the hostilities. So the bottom line is this: does NZ have any control over or even say in who and what Rocket Labs gets to work with? Is there any contingency plan in place for the possibility that association with a foreign military in commercial space ventures could lead to the uninvited and untoward intervention of another foreign military power on NZ soil?

Beware the false narrative.

datePosted on 11:19, April 25th, 2019 by Pablo

ISIS and a junior defense minister in the Sri Lankan government have claimed that the terrorist attacks on churches and hotels in the island nation were a response to the white supremacist attack on mosques in Christchurch on March 15. The claims need to be treated with skepticism. Here’s why.

Having been defeated on the battlefields of the Levant, ISIS now urges its followers to return to decentralized terrorist attacks as a form of irregular warfare. It wishes to show continued strength by claiming that it can orchestrate attacks world-wide and that no country can escape its reach. The Easter Sunday terrorist bombings in Sri Lanka fit that narrative.

The truth is otherwise. The Sri Lankan attacks may have taken inspiration, and perhaps even logistical support from ISIS but planning and preparation began well before March 15. It is true that ISIS called for retaliatory attacks after the Christchurch attacks, and it could well be possible that March 15 was a precipitant event for the Sri Lankan bombings. But there was and is a larger and yet more local picture in play.

The Easter Sunday bombings occurred against a backdrop of rising violence against both Muslims and Christians in Sri Lanka by Buddhist militants, something that has accentuated in the last year and is the underlying motive for the attacks. These were not random or foreign in origin, but represent a violent response by one oppressed minority using terrorism against another minority and tourists in order to make a sharp point to the constitutionally empowered majority that it sees as increasingly oppressive in nature (70 percent of Sri Lankans practice Buddhism, which is the official religion of the country and which has constitutionally protected privileges). Christians were the targets because they were left unprotected by an indifferent or incompetent government, while tourists were attacked because the country depends on them for hard currency revenues. Neither targeted group were the real subject of the attacks, nor was the objective of the attacks strictly about them.

Operationally speaking, the effort to engage in coordinated, simultaneous attacks against multiple soft targets using significant quantities of explosives and involving at least 7 suicide bombers requires months of target surveillance, stockpiling and concealment of bomb-making ingredients, manufacture of human-portable bombs, coordination and communication between perpetrators and accomplices and logistical support in at least three cities, all under the veil of secrecy. Whether or not Christchurch served as a precipitant or ISIS called for revenge attacks in its wake, the making of the Easter Sunday plot was long in the works well before the white supremacist gunman walked into the Masjid al Noor.

Simply put, the Easter Sunday bombings simply could not have been put together in the month after the Christchurch attacks. Moreover, the Sri Lankan security services were warned several times before March 15 that Muslim extremists were preparing to launch attacks, followed by specific information two weeks ago that Catholic churches were being targeted on Easter. The complexity of the attacks and the repeated warnings of them strongly suggests that ISIS’s claims are opportunistic rather than truthful.

Likewise, the uncorroborated claim by a Sri Lankan junior minister that Christchurch was the reason for the Easter Sunday atrocities appears to be reckless attempt to deflect attention away from the gross negligence that led to the intelligence “failure” that facilitated them. In an atmosphere of rising ethnic and religious tensions, the Sri Lankan government received repeated and specific warnings about the impending attacks and yet did nothing. It did not increase security around churches and hotels and did not seek to preemptively arrest suspects on various extremist watch lists. Instead, rendered by partisan infighting and weighed down by incompetence, the security forces cast a negligent eye on what was going to happen. That may be because the attacks can serve as an excuse to crack down on the Muslim community, something Buddhist hard-liners have been seeking for some time. Whatever the reason, it was not an intelligence “failure” that facilitated the attacks. The security services knew, or at least were warned about what was going to happen. They either could not or chose not to act.

In truth, ISIS and some Sri Lankan government interests converged in making Christchurch part of the narrative. Falsely claiming that the Easter Sunday attacks were revenge for Christchurch makes it seem as if they are part of a larger struggle in which Sri Lanka is a pawn. The reality is more simple: the attacks were a local Islamist response to increased ethno-religious conflict in Sri Lanka in recent years, which itself is part of a larger struggle within South Asia between Buddhists, Hindus and Muslims as their lines of division continue to harden.

Therein lies the danger of the false narrative embedded in the ISIS and minister’s claims about Christchurch. They feed into the “clash of civilizations” argument put forward by ideological extremists that the world is in the midst of an cultural and religious conflict in which only one side can win. Subscribing to this argument justifies so-called “tit for tat” responses, whereby an attack by one side leads to an attack by the other, creating a cycle of violence that is designed to spiral into an existential confrontation between antithetical “others.” Although the vast majority of religionists the world over are non-violent and tolerant of other beliefs, this is the apocalyptic vision that extremists want to propagate.

The antidote to this is to place responsibility where it belongs and to not buy into false opportunistic narratives about revenge-based existential conflict. Sometimes the blame for atrocities lies closer to home, both in terms of root causes and inadequate responses.

An earlier version of this essay appeared on the Radio New Zealand web site (rnz.co.nz) on April 25, 2019.

About that silly Mr. Bridges.

datePosted on 15:53, March 26th, 2019 by Pablo

In the wake of the Christchurch terrorist attacks, Simon Bridges wants to expand the powers available to the NZ security community when it comes to search and surveillance. He apparently believes that resurrecting “Project Speargun,” a 5 Eyes/GCSB 2013 effort to place a meta-data mining probe into the Southern Cross fiber optical cable connecting NZ to the world (via LA), would have prevented the attacks. He seems to not realize that Project Speargun was not fully abandoned but superseded by newer technologies, and that it would not have prevented the domestic terrorism attack in any event because it was foreign focused and used algorithms to reflect the concerns of NZ’s 5 Eyes partners (which were not focused on violent white supremacism).

He seems to think that the cyber-security program Cortex (designed to protect NZ firms and government agencies from hacking attacks) was somehow linked to Project Speargun (as some sort of inner-outer perimeter system). Yet the two are completely separate projects. As Leader of the Opposition Mr. Bridges sits on the Intelligence and Security Committee and gets regular briefs from the SIS and GCSB Directors, so the confusion and attempt to resurrect Project Speargun reflects a fundamental disconnect.

It also seems odd that a leader of a center-right party founded in part on classic liberal principles in defense of the right to privacy and the primacy of civil liberties would decide that there is political mileage to be gained by calling for more intrusive State powers at the expense of individual rights. Cynical opportunism, perhaps?

I was interviewed by RNZ about his comments. My observations are here.

After doing the interview and listening to Mr. Bridges remarks once again, it seems to me that he is a special piece of work. So I decided that the best thing I could do was honor him with a tweet from the consulting firm (which among other things does political leadership analysis). Here it is:

“When it comes to Simon Bridges calling for enhanced powers for NZ spy agencies, he is like a guy who says that he needs a telescope because his binoculars don’t work well enough, only to find out that the lens caps are still on the binoculars.”

Owning It (updated).

datePosted on 12:00, March 21st, 2019 by Pablo

Earlier versions of this essay were published by Radio New Zealand and Australian Outlook.

The terrorist attack on two Christchurch mosques, which resulted in the deaths of fifty people and injuries to dozens of others, is a watershed moment in New Zealand history. In the days, months and years ahead much soul-searching will be conducted about the social and political factors that contributed to the massacre. Here the focus is on two: the spread of hate speech via social media; and the intelligence failures that may have contributed to the event.

With the proliferation of social media platforms during the last decade there has been a steady increase in their use by extremist groups. Be it Wahabbist and Salafists calling for jihad, 9/11 conspiracy theorists or white supremacists, social media has given them global reach in a measure never seen before. This allows extremists in disparate parts of the world to instantly communicate and reinforce their views without having to be in physical contact. They can even plot acts of violence using encrypted platforms and the so-called “Dark Web.” This was the case with the Christchurch gunman, who went on extremist platforms in real time to announce his intentions shortly before he began his attack, then live streamed it on Facebook. As the massacre unfolded from the killer’s perspective (he was wearing a popular sporting camera on his chest), hundreds of people cheered him on (and later debated the merits of the action. See, e.g., here).

That is what is different today when compared to twenty years ago: the threat of decentralized, even autonomous extremist violence has increased commensurate with the emergence of social media outlets that allow them to disseminate their views.

This produces both an echo chamber and megaphone effect: not only do kindred spirits find common space to vent and practice their hate against the perceived “Other,” but more moderate, mainstream outlets begin to pick and emulate some of the language used in them. Language that was once socially unacceptable in most democratic societies has crept into mainstream social discourse, be it about immigrants, minorities, sexual minorities or indigenous groups. Hate speech is increasingly normalized under the mantle of free speech, where the hate-mongerers turn the tables on civil libertarians by claiming that their freedom of expression is being trampled by political correctness gone mad. That in turn has crept into the rhetoric of politics itself, where mainstream politicians and political commentators adopt some of the language and policy positions that once were only championed by a rabid yet marginalized political fringe. One only need to remember the anti-immigrant language of certain politicians and the mysogynist, homophobic and/or xenophobic rantings of assorted radio hosts and television personalities, to say nothing of the comments section of what used to be moderate political blogs, to see how the discursive trend has evolved in New Zealand.

The problem is almost exclusively a democratic one. Authoritarian regimes censor as a matter of course and control the flow of information in their societies, so what can be seen and heard is up to the regime. Unless authorized or condoned by the State, extremists are not given space to air their views in public.

Democratic societies uphold the right to free speech no matter how noxious it may be because it is exactly the unpopular views that need defending. But the principle of free speech never reckoned with the practice of social and mainstream media outlets using business models that are at least in part founded on the idea that there is money to be made in catering to extremist views. If advertising can be sold on extremist sites and offensive speech is protected, then the bottom line advises that it is not for the media conglomerates to determine what is and what is not acceptable social discourse. That is for others to decide.

In other words, the cover of free speech gives media conglomerates the excuse to continue to pursue profit by hosting extremist sites and allowing vile content on their platforms. The more that extremist views are filtered through outlets like Fox News and talk-back radio, the more they tilt public perceptions in a xenophobic, paranoid, fear-driven direction. This is not healthy for democracies.

This is the public policy conundrum. Where to draw the line between free and hate speech? When does offensive speech become dangerous speech? One would think that the answer would be simple in that any calls for violence against others, be it individual or collective in nature, is what separates offensive from hate speech. And yet to this day democracies grapple, increasingly unsteadily, with the question of what constitutes censorable material on-line. In a world where hard core pornography is increasingly available and normalized, it is hard to argue that people expressing ugly views are any worse than what is allowed in the skin trade.

With regard to whether there was an intelligence failure. Obviously there was because the massacre occurred. But the question is whether this was due to policy errors, tactical mistakes, some combination of both or the superb stealth of the bad guy.

At a policy level the question has to be asked if whether the intelligence services and police placed too much emphasis after 9/11 on detecting and preventing home-grown jihadists from emerging to the detriment of focusing on white supremacist groups, of which there are a number in Aotearoa. Given a limited amount of resources, the security community has to prioritize between possible, probable and imminent threats. So what happened that allowed the killer to plan and prepare for two years, amass a small arsenal of weapons, make some improvised explosives and yet still fly under the radar of the authorities? It is known that the security community monitors environmental, animal activist, social justice and Maori sovereignty groups and even works with private investigators as partners when doing so, so why were the white supremacists not given the same level of attention?

Or were they? The best form of intelligence gathering on extremist movements is via informants, sources or infiltration of the group by undercover agents (who can target individuals for monitoring by other means, including cyber intercepts). Perhaps there simply are not enough covert human intelligence agents in New Zealand to undertake the physical monitoring of would-be jihadists, other domestic activists and white supremacists. Perhaps white supremacist groups were in fact being monitored this way or via technical means but that failed to detect the Christchurch gunman.

That begs another question. Was the killer, even if a white supremacist himself, not an associate of groups that were being monitored or infiltrated by the authorities? Could he have maintained such good operational security and worked in absolute secrecy that none of his friends and associates had a clue as to his intentions? Was he the ultimate “lone wolf” who planned and prepared without giving himself away to anyone?

If the latter is the case then no amount of intelligence policy re-orientation or tactical emphasis on white supremacists would have prevented the attack. As the saying goes in the intelligence business, “the public only hears about failures, not successes.”

In his apparent radicalization after he arrived in New Zealand, in his choice of targets in Christchurch and in his ability to exploit domestic gun laws, in the fact that although he was socially active no one knew or ignored his plans, the killer was local. In the inability of local authorities to detect and prevent him from carrying out the attacks, the intelligence failures were local.

It is in this sense that New Zealand must “own” the Christchurch attack.

PS: I have been criticised for initially claiming, before his arrest, that the gunman may have come from Christchurch. Many people, including a prominent music and pro-cannabis blogger, felt that I was “reckless” for doing so, especially after it emerged that the suspect was Australian and lived in Dunedin (on and off since at least 2014). Let me explain why I made that initial error.

Within minutes of the gunfire I received links to the 4Chan and 8Chan platforms in which the shooter announced his intentions and linked to the live stream of his attack. As I read the commentary on the extremist platforms and watched the news over the next hour a source in Christchurch called and said that given his escape and the failure to initially detect and apprehend him (it took an hour to do so), the speculation by those chasing him was that he was a local. I repeated that live on radio as events unfolded, using the qualifier “apparently.” It was a mistake but not a reckless one, and in the larger scheme of things it simply does not matter.

I also made a mistake when I said that the weapon used was likely sourced on the black market from organised crime and may have been a modified hunting weapon with a suppressor on it (that much was clear from the video). As it turns out it was a legally purchased weapon by a licensed gun owner. My bad.

Finally, for thoses who keep on insisting that because the killer is Australian that absolves NZ of any complicity or guilt in the event–get real. Christchurch is the epicentre of South Island white supremacism and for all we know the killer may have chosen his targets not only because the Muslim population is fairly large in that city but also because he could show off to his mates on their home turf. If reports turn out to be true that he had kindred spirits at his gun club, then perhaps he was not as “alone” as is currently believed when planning and preparing for the attacks.

The unwanted jihadist.

datePosted on 11:31, March 6th, 2019 by Pablo

It turns out that Kiwi-born Mark Taylor, known as the so-called “bumbling jihadist” because he left the GPS tracking feature on his phone while he made pro-Daesh videos (including one where he burns his NZ passport and another where he calls for jihadists to stab police and military officers at ANZAC Day celebrations), has surrendered to the Syrian Democratic Forces, a Kurdish peshmerga alliance that is part of the mostly Western military coalition fighting Daesh under the name “Operation Inherent Resolve.”

He was fortunate or smart enough to surrender to the Kurds, who respect the laws of war and Geneva Convention when it comes to captured jihadists, something neither the jihadists themselves or the Syrian Army are in the habit of doing. This means that he can be transferred to other, Western members of the coalition for juridical administration. He is merely being held by the Kurds after he admitted who he was and that he was a member of Daesh. As far as the Kurds are concerned he has committed no specific crimes under their laws (beyond, perhaps, criminal association), so he is taking up space in a cell reserved for more unpleasant characters.

The issue of what to do with him has become a political football in NZ. The PM says that there is little the government can do for him because it has no diplomatic representation in Syria, much less the East Syrian conflict zone. But she then says that as a NZ citizen he is “our responsibility” even if NZ cannot help him where he is. The Deputy Prime Minister/Foreign Minister says good riddance to him, in part because he turned his back on his birth country and in part because he is a bigamist. The Opposition and Right-wingers of all types set to xenophobic baying about his betrayal of his home country, the risk he poses and the amount of taxpayer dollars that would be wasted on his return both in terms of travel as well as monitoring and incarceration of him.

The PM went so far to say that NZ has “no relationship” with “the forces” fighting in Eastern Syria even though it is well known that US, UK, Australian, French and German forces are fighting alongside the Kurds and NZ SAS troops are rumoured to be doing so as well. The NZDF has senior officers on the Joint Task Force staff assigned to Operation Inherent Resolve, so the notion that NZ has “no relationship” to those fighting in Syria (the same forces who drove Daesh out of Mosul and westward into Syria) is disingenuous in the extreme.

What is worse, the Australian journalist who interviewed Taylor in the Kurdish jail claims that Taylor told him that he was interviewed by NZ intelligence officers (presumably SIS) shortly after his capture/surrender in December. If that is true, then the government has not only known for a while about his whereabouts but is claiming no possibility of contact with him even though he has had face-to-face meetings with NZ agents. Be that as it may, I am still of the opinion that he may have some useful intelligence value left in him, as questioning in a Kurdish jail in winter is a bit different than interrogations conducted in a NZ detention centre at any time of year.

Given the amount of dissembling and ignorant ranting going on, I thought that I would clarify some of the issues at stake.

On the matter of whether or not Mr. Taylor has NZ citizenship in light of his renouncing it: Only a State can confer and withdraw citizenship. A person claiming to renounce citizenship without State sanction is just stating intention, not deed. Burning a passport (a token of sovereignty) just prevents one from legal inter-State travel. Citizenship is conferred by birth or by application and only lost when the State withdraws its recognition of it. That has not happened with Mr. Taylor. He remains a NZ citizen.

Under international law undocumented criminal suspects, including terrorists, are to be returned to country of birth if known. If an undocumented suspect is captured in battle or surrenders to an allied belligerent in a recognised conflict, s/he is a POW and must be treated as such. This includes irregular non-State belligerents captured by non-State actors like the SDF working alongside State militaries during an internationally approved (in this case UN-sanctioned) conflict against a common (in this case non-State) foe.

If possible, captured undocumented enemy POWs must be returned to their known country of origin to face justice. They can be kept in allied and home country military custody during transfer. There is no need for consular assistance or travel docs if they remain in military custody, just access to legal advice during process. Conversely, the military can transfer the prisoner to a location where his country of origin has diplomatic representation, whereupon he can be issued emergency travel documents. NZ has representation in both Iraq and Turkey, both of which have ties to the anti-Daesh coalition. It is therefore relatively easy to move Mr. Taylor out of Kurdish custody, into Western military custody and onwards to a location that either has NZ diplomatic representation and /or NZDF presence to whom he can be delivered (think, for example, of moving him from Kurdish-held Eastern Syria to Camp Taji in Iraq).

Should Mr. Taylor be returned to NZ he can be arrested and charged at the border under the Terrorism Suppression Act for being a member of an internationally-designated terrorist entity. To that can be added other charges depending on what he is suspected of having done while with Daesh and the evidence compiled of him doing so. At a minimum he could receive a 6-7 year jail term for aiding and abetting a criminal organization. At a maximum he could he found guilty of war crimes or crimes against humanity if he is found to have participated in atrocities or collective acts of violence against civilians (such as the enslavement of Yaziri women and girls as sex slaves. He has admitted he would have liked to have had a sex slave but could not afford one, so the question remains as to whether he participated in any act of kidnapping or enslavement while in Syria). NZ has legal authority to prosecute its citizens for war crimes and even though it does not have the death penalty (except, apparently, for treason), a guilty verdict on a war crime could result in life imprisonment.

Concerns have been voiced that if he returns home the leniency in the judicial system could see him freed and out on the streets. There is a possibility of this if his defence attorneys ask for psychiatric evaluations that prove that he is not mentally competent to stand trail. He clearly is intellectually sub-par (an uncle of his claims that he suffered brain damage as a toddler during a fit of some sort), and his actions over the years indicate that he may be a bit of a lost soul. Even his co-religionists at the mosque that he worshipped at in Hamilton say that he was more interested in companionship and a sense of belonging than in waging jihad.

If he is released he undoubtably will be monitored closely, not only by the security services but members of his own religious community. In fact, I would not be surprised if he is shunned by the latter because of the disrepute he has brought upon them. So as far as posing an on-going risk to society if he returns and is freed, I would hazard the guess that it would be very low.

The more likely scenario is that he will return in custody, be held on remand during the time he is on trial, be found guilty of terrorism-related crimes and sentenced to a significant period in prison. Some believe that if that happens he will then work to radicalise fellow inmates, as is often a common practice in US and UK jails and which has some precedent in NZ. But the truth is that Mr. Taylor is a follower not a leader and does not have the cunning and agile thought processes that would make him a convincing jailhouse preacher. So here too my reckon is that he will not pose a threat of radicalisation to other inmates. If anything, other inmates will pose a threat to him (think white supremacists, gang members and others who make take a dim view of his citizenship renunciation and embrace of Islam and jihad).

There is question as to whether he has wives and/or children in Syria. That is a humanitarian concern because arguably they are innocents caught up in his mess. If it turns out that he does in fact have family in Syria, the question is then what to do with them? If they have no connection to NZ it is perhaps best for them to return to their hometowns, but that is a question that refugee resettlement and immigration officials will have to address in the event that he is returned to NZ.

The most sorry aspect of this is that the fate of Mr. Taylor has become yet another pawn in the partisan bickering in Wellington. The truth is that the case is straight-forward: he is a NZ citizen and member of a terrorist organisation who was captured by allied forces. His return is mandated by international law. NZ law requires that he be arrested, charged and tried according to provisions in the Terrorism Surpression Act and perhaps other related laws. Anything other than this is an abdication of responsibility by the NZ government and a denial of his democratic rights to a fair trial and legal defence (because even bad guys have legal rights in democracies).

For NZ there is opportunity in this process. Returning him and putting him on trial demonstrates that NZ is a responsible international citizen that assumes the burden of dealing with its own when they misbehave (because let us be clear: membership in Operation Inherent Resolve is not just about contributing to the military campaign against ISIS in the Levant; it is also about accepting responsibility for deciding the fate of coalition member citizens who joined ISIS and lived to tell the tale after capture). It gives the Crown an opportunity to test the TSA after the fiasco of the Urewera 18 case (the so-called “dog’s breakfast” case that saw seven people eventually tried on firearms, not terrorism charges). It shows that NZ is a a nation where the rule of law supersedes political cynicism and popular sentiment. It serves as a cautionary tale and possible deterrent to other home-grown would-be jihadists. And it keeps at least one foreign fighter from returning to Daesh any time soon.

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