Archive for ‘NZ Security’ Category
From time to time I am invited to give public presentations on subjects within my areas of interest. Depending on the topic I sometimes offer ideas for the audience to consider. At a think tank gathering last year I offered the suggestion that parliament should consider the proposition that New Zealand be the first country to publicly and formally renounce the use of lethal drones at home and abroad. I pointed out that although security conservatives and military commanders would oppose the move because it limited NZDF (and perhaps in the future NZ Police) tactical options, it was worth debating on moral and legal as well as practical grounds given New Zealand’s unique political culture and international standing. Since 90 percent of what military drones do is non-lethal and the NZDF does not have a lethal drone capability as of yet, it seems worth a try.
That proposition went nowhere. Some left leaning commentators supported the motion (most notably No Right Turn and one of the authors at The Standard). But no a single political party, to include the Greens, Mana and the Internet Party, adopted it as a policy proposition and it was never brought up in parliament.
This year I was at another event that featured academicians, students, policy practitioners, journalists and diplomats (foreign and Kiwi) discussing New Zealand’s past, present and future foreign policy. I was matched with a representative of the New Zealand intelligence community and a security academic on a panel that addressed intelligence issues, specifically, New Zealand’s intelligence role in foreign policy.
As part of the discussion I suggested that Edward Snowden had done us a favour by exposing the extent to which NZ is a fully integrated member of the 5 Eyes signals intelligence network. The reason is that with the revelations that have come from the documents that he passed on to journalists, New Zealand has an opportunity to re-negotiate some of the terms of its participation in 5 Eyes. I noted that withdrawal from 5 Eyes was not an option–I said that it was like trying to leave the mafia. But the specific terms of what the GCSB does for 5 Eyes could be discussed given that New Zealand is by far the most vulnerable of the 5 Eyes partners to retaliation from the countries that it targets as part of the division of labour within Echelon. I specifically mentioned that NZ might broach the subject of reducing its role in spying on China given how trade dependent NZ is on the Asian giant.
A couple of journalists in the room ran stories on the suggestion and the PM was asked about it at his weekly press conference. He rejected it out of hand and said that NZ would not modify its intelligence operations because of trade considerations because what it did in was in the national interest.
The Snowden documents suggest otherwise, but that argument can be left for another moment.
Let me explain why NZ has an opportunity to re-negotiate the terms of its agreement with the Anglophone powers even though it cannot withdraw from 5 Eyes entirely.
If NZ were to withdraw from 5 Eyes it would lose the substantial benefits, unique to a small country, that it accrues from being in an alliance with four bigger partners with global reach. The flow of intelligence within 5 Eyes is very much reciprocal but what NZ receives is far more than what it delivers to the network. It is tasked with using shared technological means located on or operated from NZ soil (including its diplomatic missions) to target specific entities of common interest to the larger partners, and in exchange it receives global as well as more NZ-specific intelligence from those partners.
That is just one reason why withdrawal is unlikely. But think of the consequences if NZ unilaterally decided to opt out of Echelon. It is in possession of some of the most advanced signals interception technologies on the planet. The GCSB knows the processes, procedures, means, methods and protocols of the entire network. Fear that this knowledge and technologies (say, for example, X-Keyscore and Prism) could fall into hostile hands will inevitably prompt a negative response from NZ’s erstwhile intelligence allies, and that response will not be confined to the field of intelligence (I am aware of reports that some of the technologies and methods mentioned in the Snowden documents have been decrypted by Russian and Chinese intelligence but am not sure as to what extent this may have occurred).
Were NZ to try and establish an alternative signals intelligence network with other powers, the remaining 5 Eyes countries would likely move beyond defensive measures and into the field of offensive intelligence operations against NZ. In other words, the exit costs will be too high given the uncertain benefits received in the event of withdrawal.
That being said, the GCSB is integral to 5 Eyes operations. The partners cannot afford to alienate NZ on issues that are critical to NZ but marginal or less costly to them. Although they never thought that their operations would be exposed in the measure that they have, the 5 Eyes partners are now acutely aware, thanks to Snowden, that they rise and fall together when it comes to exposing how they go about signals intelligence acquisition and who they target. They can therefore ill afford to call NZ’s bluff on a matter that is of critical importance to the latter.
I would argue that bilateral trade with China is one such matter. Even if they have a pretty good idea of what the GCSB does for Echelon, public revelation of NZ having a lead role in spying on the Chinese at home and abroad will force the PRC to retaliate in some fashion, even if just to save face as an emerging great power with super power pretensions. It must show that it should not be disrespected and meddled in by small states no matter who those states are allied with. The means by which it can reach out and touch NZ in a bad way are myriad and not confined to diplomatic or economic relations.
The only reason that it would not do so is if it has counter-intelligence access to GCSB operations and wants to keep those “backdoor” channels open in spite of the publication of specifics about NZ espionage against it.
If NZ were to say to its partners that given its vulnerability to Chinese utu the GCSB would prefer not to take a major role in spying on the PRC, it is possible that the other partners will listen and consider the request. The GCSB can still spy on South Pacific, Latin American and other nations that do not have much leverage over it, as well as the UN, various NGOs and private firms as it is doing now. But it would give a pass to spying, at least in a major way outside of NZ territory, on the Chinese.
In my view, such a position would not prevent the GCSB (and SIS) from conducting counter-intelligence operations against Chinese espionage at home and abroad. Even if they know about these defensive measures the Chinese will likely not make an issue of them given that they instigated the back and forth. Where I would draw the line is on offensive operations against Chinese targets, especially when at the behest of the larger partners.
I am not surprised that John Key has no interest in this proposition. To do so requires political courage and a commitment to putting NZ national interests first. Neither is in his repertoire. Plus, even if he were to think about the dilemma posed by NZ’s increasingly counter-poised trade and security interests, any renegotiation along the lines I have posed would be done quietly and not publicly announced, much less at a press Q&A. But I doubt the latter is the case.
In any event, this is a potential moment of opportunity to redefine the terms and conditions of NZ’s involvement in 5 Eyes, however implausible that may seem at first glance. There is a supposed review of the NZ intelligence community now underway that could serve as a sounding board for opinions on the suggestion, and I am happy to add my two cents to the discussion should that be deemed worthwhile.
News that Chinese hackers obtained personal details of 4 million US federal employees dating to 1985, following on the heels of similar attacks on the customer records of private insurance companies and retirement funds as well as the internal email networks of the US State Department and White House, demonstrate that a guerrilla cyber-war is underway. Although it will not replace traditional warfare any time soon, this is the new face of war for several reasons.
First, it does not involve physical conflict using kinetic weapons, which removes direct bloodletting from the equation. Second, it can target critical infrastructure (power grids, water supplies) as well as the command, control, communications, computing and intelligence (C4I) capabilities of adversaries. Third, it can be masked so that perpetrators can claim a measure of plausible deniability or at least intellectual distance from the action. Fourth, it can be used for tactical and strategic purposes and the pursuit of short or long-term objectives.
Much like military drones, cyberwar is here to stay.
The war is not one sided: Russian hackers have penetrated Pentagon email networks and the 5 Eyes signals intelligence alliance has dedicated hacking cells working 24/7 on targets of opportunity. Many other nations also indulge in the practice as far as their technological capabilities allow them. To these can be added a host of non-state actors—Wikileaks, Anonymous, ISIS, among others—who have also developed the capability to engage in electronic espionage, sabotage, data capture and theft.
With the most recent revelations about the hacks on the US Office of Personnel Management (OPM) archival records (which include personal details of active and retired federal employees as well as identities of those who have had or hold security clearances, perhaps including myself given my prior employment by the Department of Defense) an evolution in cyber warfare is now evident.
Previously, most state-sanctioned cyber attacks were so-called “front door” attacks on government or corporate mainframes, servers and networks. The interest was in surreptitiously obtaining sensitive data or installing surveillance devices in order to engage in ongoing monitoring of targeted entities. “Back door” probes and attacks were the province of non-state actors, especially criminal organisations, seeking to obtain private information of individuals and groups for fraudulent use. However, the recent attacks have been of the “back door” variety yet purportedly state sanctioned, and the Snowden leaks have revealed that 5 Eyes targets the personal communications of government officials, diplomats, military officials and corporate managers as a matter of course.
The move to state-sponsored “back door” hacks is ominous. Accessing data about current and retired government employees can be used to blackmail those suffering personal liabilities (debt, infidelity) in order to obtain sensitive information about government processes, procedures, protocols and policy. It can target active and former intelligence and military officials and others with access to classified information. It can target former public officials that have moved to the private sector, particularly in fields of strategic or commercial importance. Likewise, obtaining sensitive personal data of employees working in private firms opens the door to similar exploitation for illicit commercial gain.
Advances in consumer telecommunications have made cyber hacking easier. Smart phones and their applications are considered to be the most vulnerable to hacking. Because many people store an enormous amount of personal data on these devices, and because they often mix work and personal business on them, they represent an enticing entry point when targeted. Yet even knowing this millions of consumers continue to pack their lives into electronic devices, treating them more as secure bank vaults rather than as windows on their deepest secrets. Not surprisingly, both state and non-state actors have embarked on concerted efforts to penetrate mobile networks and hand-held devices. Encryption, while a useful defense against less capable hackers, only slows down but does not stop the probes of technologically sophisticated hackers such as those in the employ of a number of states.
The bottom line is this: the smaller the telecommunications market, the easier it is for cyber hackers to successfully place backdoor “bugs” into the network and targets within it, especially if government and corporate resources are directed towards defending against “front door” attacks. On the bright side, it is easier to defend against attacks in a smaller market if governments, firms, service providers and consumers work to provide a common defense against both “front door” and “back door” hacking.
The implications for New Zealand are significant.
In this new battleground physical distance cannot insulate New Zealand from foreign attack because cyber-war knows no territorial boundaries. New Zealand provides an inviting target because not only is an integral and active member of Western espionage networks, it also has proprietary technologies and intellectual property in strategic sectors of its trade-dependent economy (including niche defense-related firms) that are of interest to others. Because New Zealand’s corporate, academic and public service elites are relatively small and the overlap between them quite extensive, hacks on their personal data are a valuable tool of those who wish to use them for untoward purposes.
New Zealand public agencies and private firms have been relatively slow to react to the threat of cyber warfare. The data they hold on their employees, managers, policy elites and general population is an inviting “back door” for determined hackers seeking to exploit vulnerabilities in New Zealand’s cyber networks. Since many Kiwis are lax about separating their work and private electronic correspondence and records, the potential to access sensitive personal information is high.
New Zealand has been the subject of numerous “front door” cyber attacks and probes on public and private agencies, including an attack by Chinese-based hackers on the NIWA supercomputer carried out in concert with a similar attack by the same source on the supercomputer run by the US National Oceanographic and Atmospheric Administration (NIWA’s US counterpart). New Zealanders have been the targets of numerous “back door” intrusions such as phishing and other scams perpetrated by fraudsters and conmen. Yet successive governments have been slow to recognize the new threat advancing towards it in the cyber-sphere, only recently creating dedicated cyber security cells within the intelligence community and just last year amending the GCSB Act to address vulnerabilities in domestic internet security. But it still may not be enough.
Until New Zealand resolves the problem of institutional lag (that is, the time gap between the emergence of a technologically-driven threat and an institutional response on the part of those agencies responsible for defending against it), there is reason to be concerned for the security of private data stored in it. After all, in the age of cyberwar there is no such thing as a benign strategic environment.
I had the opportunity some time go to be interviewed by the one of the director/producers of the documentary “Operation 8″ for a forthcoming film about the GCSB and its role in the 5 Eyes signal intelligence network. These good people are part of the grassroots network that attempts to keep those in power accountable to the folk they supposedly serve, and while I may not agree with them on a number of issues I have no doubts about their sincerity, commitment and interest in the common good.
In order to finish the new documentary, titled “The 5th Eye,” there is a crowdsourcing effort underway that is well worth supporting. The details are here. Besides information about donating, there is a short video trailer included on the page as well as updates and other valuable information. By all means check it out and help this film on its way to fruition.
If you support truly independent film-making in Aotearoa, this is an excellent opportunity to not only talk the talk, but to walk the walk.
Posted on 10:16, May 14th, 2015 by Pablo
So, it turns out that the much vaunted review of New Zealand’s intelligence community is going to undertaken by Michael Cullen and corporate lawyer Patricia Reddy. Both are consummate Wellington insiders and Ms. Reddy has no apparent experience in dealing with intelligence matters. She is, however, the Chair of the NZ Film Commission and sits on a number of boards so obviously must be the best person suited for the job. For his part Mr. Cullen has been a Deputy Prime Minister and sat on the Parliamentary Intelligence and Security Committee that among other things did nothing when Ahmed Zaoui was falsely accused of and detained for being a supposed terrorist by the SIS. It is clear he knows how bread is buttered.
The terms of reference for the review cover two main areas: the legislative framework governing NZ intelligence agencies; and the mechanisms responsible for overseeing them.
I have serious doubts that as constituted this review panel will do little more than maintain the status quo on both agenda items. I believe that the review panel should have incorporated more people, including people from outside the Wellington “beltway” and some drawn from overseas. As things stand the review has all the makings of yet another exercise in whitewashing under the guise of critical scrutiny. I hope not, but am not holding my breath in any event.
I outline my thoughts in this Radio New Zealand interview.
For those interested in the terms of reference of the “review,” they can be found here.
So the Herald on Sunday published an article by a business lecturer from some obscure university in the UK (now apparently visiting at Auckland University) in which she claims that NZ is a “sitting duck” for an attack on a shopping mall (I will not link to the article because the fool does not deserve any more attention). She compares the NZ terrorism risk level to that of the US, UK an Australia and says that we should emulate them when it comes to mall security, to include bag and ID checks before entering. The Herald on Sunday then followed up the same day with an editorial and a couple of other articles hyping the terrorist threat in NZ.
I will not go over the levels of idiocy marshalled up in this sorry excuse for reportage. Instead I will rephrase a comment I left over at The Standard:
“ …(T)he lecturer who penned the scare-mongering hysterical piece has no demonstrable experience with terrorism or counter-terrorism, much less the broader geopolitical and ideological context. She makes a false comparison with the US and UK, acting as if the threat environment here is equivalent to those of these countries and Australia, and states that NZ should emulate them when it comes to mall security. That is simply not true.
Moreover, just because al-Shabbab carried out one successful mall attack in Kenya and called for others in the US, UK and Canada does not mean that they have the capability of doing so anywhere else. In reality, those calls have gone unheeded and security authorities in those states have not appreciably increased their warnings about attacks on malls as a result.
Let us be clear: no mall in the US (and the UK as far as I know) requires bag and ID checks in order to go shopping. So the claim that they do is a lie. I mean, really. Can you imagine the reaction of the average US citizen to being asked to produce an ID before being allowed into Walmart or any one of the thousands of malls that exist in the US? Heck, they might pull out a firearm and say that their name is Smith and Wesson!
Anyway, the costs of of engaging enhanced security measures will be prohibitive for many businesses and even if adopted will be passed on to the consumers, which in turn could drive away customers in an age when they can shop on line. So it is not going to happen. The use of CCTV, coordination with local security authorities and hiring of private security guards suffices in the US and UK, so it surely can suffice here.
I will leave aside the democratic principles at stake, one of which is that you do not restrict the freedom of movement of everyone on the pretext of stopping a potential act of mass violence. And even if you were do do so, who is to say that evil doers would not switch targets to, say, transportation hubs or entertainment districts in downtown areas. Are we going to then go on to lock down every place where people congregate? Lets get real.
In sum, what we got from the Herald was an article that used a false comparison from someone who is clueless but who somehow got interviewed by a rube reporter as if she was an expert in order to justify a call for a hysterical and impractical overreaction, which the Herald then used to write a fear-mongering editorial that contradicts what our own intelligence agencies are saying about the risk of terrorist threats on home soil. Geez. Perhaps hyping up security and sacrifice in the lead-in to the Anzac Day commemorations has something to do with it?
There is only one indisputable fact when it comes to terrorism and NZ. Joining the fight against IS/Daesh increases the threat of terrorist attack on Kiwis and NZ interests, not so much here at home but in the Middle East where IS/Daesh has a broad reach. Although the Gallipoli commemorations will likely not be affected due to the security measures put in place by the Turks (who do not fool around when it comes to security), the risks to individual or small groups of Kiwis in the ME–say, tourists, aid workers, diplomats or business people– are increased as a direct result of NZ involvement in the anti-IS/Daesh coalition. The emphasis should be on their safety, not on that of local malls.
An absolutely wretched effort by the Herald.”
The problem is bigger than the Herald going overboard with its scare-mongering in the build up to the Anzac Day commemorations. Since 9/11 we have seen the emergence of a plethora of security and terrorism “experts” (including a few here in NZ such as the poseur who featured in the Herald article) as well as an entire industry dedicated to “countering” extremism, terrorism and a host of other potential or imaginary threats. Likewise government security agencies have pounced on the spectre of terrorism to justify expansion of their budgets, personnel, powers and scope of search, surveillance and detention.
There is, in effect, an entire terrorism growth industry hard at work conjuring up threats and scenarios not so much as to safeguard their fellow citizens but to enrich themselves via fame, fortune or power. In this they are abetted by a compliant when not reactionary and sensationalist media that does not bother to fact check the claims of many of these fraudulent experts (such as the Fox News contributor Steve Emerson, who falsely claimed that there are non-Muslim “no go” zones in the UK and France, or the charlatan Rohan Gunaratna, who claimed that there were jihadi cells in NZ ten years ago without ever having visited here, and who has now had to pay serious money in damages for defaming a Tamil community group in Canada).
Together, these various branches of the terrorism industry work to mutually profit by promoting fear and distrust while curtailing the rights of the majority in the ostensible interest of securing against the potential harm visited by a purportedly violent domestic minority. And they are selective when they do so: notice that all the hype is about Islamic extremists when in fact a large (if not THE largest) amount of political violence in Western societies, including NZ, is meted out by white, Christian extremists. Yet we do not hear dire warnings about neo-Nazis and white supremacists even though they have a proven track record of politically or racially motivated violent acts.
“Esoteric pineapples,”a commentator on the Standard thread that I made my remarks on, provided this very useful and informative link on the phenomenon. Read it and weep.
It is a sad day that NZ’s leading newspaper stoops to this type of tabloid rubbish. Shame on them. But at least it seems that many of its readers are not taken in by the ruse, which augers slightly better for informed debate on the true nature of the NZ threat environment.
PS: For the record, I do not consider myself to be a terrorism or security expert. I have a background in counter-insurgency, unconventional warfare and strategic analysis among other things, and have written extensively on those and other topics. But I have largely been pigeon-holed in the NZ media as one or the other in spite of my repeated requests to be identified correctly, which is another example of shoddy journalism.
The slow drip feed of classified NSA material taken by Edward Snowden and published by journalists Glen Greenwald, Nicky Hager, David Fisher and others in outlets such as The Intercept and New Zealand Herald caused a stir when first published. Revelations of mass surveillance and bulk collection of telephone and email data of ordinary citizens in the 5 Eyes democracies and detailed accounts of how the NSA and its companion signals intelligence agencies in Australia, Canada, New Zealand and the UK spy on friend and foe alike, including trade partners and the personal telephones of the German prime minister and Indonesian president, caused both popular and diplomatic uproars. In New Zealand the outrage was accentuated by revelations about the illegal GCSB spying on Kim Dotcom and the government’s extension of its spying powers even after it was found to have operated outside its legal charter in other instances as well.
But now it seems that public interest in the issue has faded rather than grown. Revelations that the GCSB spies on Pacific island states such as Fiji, Samoa and Tonga as well as Pacific French territories, followed by news that it spied on candidates for the World Trade Organisation presidency on behalf of Trade Minister Tim Groser (himself a candidate), has been met not with street demonstrations and popular protests but by a collective yawn by the public at large.
Why is this so?
It appears that the New Zealand public is weary of the death by a thousand cuts approach used by Mr. Hager and his investigative colleagues. Beyond the usual array of diversions presented by popular culture and media, the reason for this disinterest seems to lie in the fact that the information released to date is seen as trivial, uncontroversial and tediously never-ending. Take for example the reaction to the news that the UK spied on Argentina after the Falklands/Malvinas War and carried on until 2011. Numerous pundits asked whether that is surprising. What is the UK expected to do when Argentina remains hostile to it and has never renounced its territorial claims over the islands? Similarly, others have pointed out that since New Zealand is utterly trade dependent, why not try to advance Mr. Groser’s candidacy for the WTO job using surreptitious as well as diplomatic means? Likewise, is it news that Australia and New Zealand spy on small Pacific neighbours who depend on them for a significant amount of foreign aid and are being courted by the Chinese? Why not given the levels of corruption and intrigue present in the region?
This does not mean that there are no constitutional, diplomatic, security and trade concerns raised by the Snowden leaks coming into the public domain. My belief is that there is much to be alarmed about in the Snowden files and they should serve as a catalyst or window of opportunity for a thorough review of the NZ intelligence community and perhaps even a renegotiation of the terms and conditions of its participation in Anglophone intelligence networks.
But the way in which it has been presented to New Zealand audiences has induced fatigue rather than fervour. Add to that the government’s strategy of obfuscation, denial and attacking the motives, ethics and character of the journalistic messengers, and the result is a jaded public with little interest in spies or what they do and whom they do it to. Cast against a backdrop in which personal data and private information is already bulk accessed by private firms and a host of social media platforms with profit-maximising in mind, the general attitude seems to be one of unconcern about what the guardians of the public interest are doing in that regard. In such a climate the old Nazi refrain “you have nothing to fear if you have nothing to hide” resonates quite well.
Unless Mr. Greenwald, Mr. Hager and their colleagues have bombshells that they have yet to drop, it appears that like Mr. Dotcom’s much-hyped “Moment of Truth” last year, their efforts have fizzled rather than fired. For the sake of their credibility as well as the public good, it is time for them to stand up and deliver something of significance that transcends the Wellington beltway or if not, to walk away.
Should Mr. Hager and company opt to deliver a bombshell, they need to consider one more thing: what good purpose is served by revealing the foreign espionage activities of New Zealand and its closest intelligence partners? Even if it uncovers myriad spying efforts that have nothing to do with national security (and terrorism, that old canard), will it advance the cause of transparency and selectivity in intelligence operations and make some governments more responsive to public concerns about privacy? Will it curtail spying by the 5 Eyes partners or any other nation? Will it encourage whistleblowing on illegal government surveillance? Will it advance New Zealand’s interests in the world or force a reconsideration of its relationship with its security partners?
Or will it simply damage New Zealand’s reputation and relations with the countries that have been spied on? Given that New Zealand is the most vulnerable of the 5 Eyes partners and is, indeed, almost totally trade dependent, the negative consequences of any potential backlash or retaliation by aggrieved states could be significant.
That is why the issue is important. The thrust of the most recent revelations have moved beyond domestic mass surveillance and into the realm of traditional inter-state espionage, which is not confined to the activities of the 5 Eyes partners and is an integral, if unspoken necessary evil of international relations. Given that the focus of the Snowden material is solely on 5 Eyes spying and not on its counterespionage efforts or the intelligence operations of other states, could it not seem to the general public to be a bit one-sided and deliberately injurious to continue to unveil only what NZ and its partners undertake by way of signals intelligence collection (as some in government and supportive of it have insinuated)?
In the end, will ongoing revelations about New Zealand foreign espionage serve the public interest and common good? Or will it have the opposite effect?
And will average Kiwis care either way?
A short version of this essay appeared in the New Zealand Herald, April 10, 2015.
Posted on 08:32, March 15th, 2015 by Pablo
In recent days there have been claims that there has been both more and less spying by New Zealand intelligence agencies. Proponents and opponents of the intelligence community have seized on one or the other claim to argue in favour or against NZ’s involvement in the 5 Eyes signals intelligence network and the expansion of powers awarded the NZ intelligence community under amendments to various security Acts during the past few years. Given that there is a forthcoming parliamentary review of the NZ intelligence community, it is worth cutting to the gist of the issue of “balance” between civil liberties and intelligence operations.
Monitoring and intercept technologies available to signals and technical intelligence agencies today are superior to those of ten years ago, especially in the field of telecommunications. This allows signals and technical intelligence agencies to do much more than was possible before, something that legal frameworks governing signals and technical intelligence collection have had difficulty keeping pace with. It would therefore seemingly defy credulity to claim that that spy agencies are doing less spying now than in the past, especially given what is known about the 5 Eyes network from the Snowden documents currently being introduced into the public domain.
But perhaps there is a way to reconcile the opposing claims. Can spy agencies actually be doing less with more?
The assertion that there is less spying by NZ intelligence agencies now than seven years ago can be reconciled with the recently released GCSB annual report stating otherwise by understanding that under the intelligence community’s interpretation, “mass collection” is not equivalent to “mass surveillance.” Although the 5 Eyes and other national signals intelligence agencies use systems like PRISM to grab as much meta-data as possible as it passes through nodal points, that data has to be mined using systems like XKEYSCORE to obtain collectable information. Bulk “hovering” of all telecommunications in specific geographic or subject areas by agencies like the GCSB still has to be searched and analysed for it to become actionable intelligence. That is where the use of key words and phrases comes in, and these are not just of the usual “jihad” or “al-Qaeda” variety (since the bulk of intelligence collection is not focused on terrorism).
Although the GCSB may be doing more bulk collection of electronic data, it claims to be analysing proportionately less of what is collected than during the last year of the Fifth Labour government. So it is doing less with more. But a fundamental problem remains when it comes to intercepting telecommunications in democracies.
That problem is that whether it is analysed or not, mass collection of so-called meta-data of everyone’s personal and professional telecommunications presumably violates the democratic right to privacy as well as the presumption of innocence because it is obtained without there being a particular suspicion or specific reason for its collection (much less a warrant for its collection). Bulk intercepts can then be data-mined after the fact using classified search vehicles in order to build a case against individuals or groups.
That runs against basic tenets of democratic jurisprudence. Moreover, indefinite storing of meta-data that has not been analysed but which could be in the future in the event target (and key word) priorities change is something that is the subject of legal argument at this very moment.
There are therefore fundamental principles of democratic governance at stake in the very collection of meta-data, and these cannot be easily set aside just because the threat of terrorism is used as a justification. The issue is constitutional and needs to be resolved before the issue of “balance” can effectively be addressed.
However, for the sake of argument let’s accept that bulk collection is not mass surveillance and that the former is legal. How does one balance civil liberties and security under such circumstances?
The implementation of balance under such conditions starts at the point where data mining begins. What are the key phrases and words that identify targets for closer scrutiny? What are legitimate targets and what are not? Some search terms may be easy to understand and broadly accepted as necessary filters for the acquisition of more precise information about threats. Others might be more controversial and not widely accepted (say, “opposition leader sex life” or “anti-TPPA protest leaders”).
That is where the issue of effective intelligence oversight comes into play and on that score NZ is sorely wanting. There have been some cosmetic changes in the workings of and a slight extension of the powers of the Inspector General of Intelligence and Security, and the process of issuing domestic security warrants made more robust with the participation of the Commissioner of Security Warrants. Yet any honest assessment of the oversight mechanisms of the NZ intelligence community will show that they are inadequate when it comes to providing effective and transparent proactive as well as retroactive oversight and review of our intelligence community’s activities given the range and scope of the latter.
These mechanisms are fewer and less effective than those of most liberal democracies (including our 5 Eyes partners), which means that NZ’s intelligence partners may well ask it to do things that they cannot do themselves due to the restrictions imposed by their own oversight mechanisms. That possibility should be of concern and needs to be addressed. Relying on the good faith of NZ intelligence agencies involved is not enough, especially given their history of playing loose with the rules when it suits them.
Therein lies the core problem with regard to balancing civil liberties and intelligence operations. If there is effective intelligence oversight before the fact (“proactive” in the sense that oversight mechanisms dictate was is permissible data-mining before it occurs) as well as after the fact (“retroactive” in the sense that oversight mechanisms hold intelligence officials to account for their use of bulk collection and data-mining), then balance can be achieved. However, if such effective oversight is lacking–again, both proactive and retroactive in nature–then the “balance” will be skewed heavily in favour of unaccountable intelligence collection and usage. That is not acceptable in a democracy but is in fact the situation at present in New Zealand.
Then there are the issues of how national security is defined and what role intelligence agencies play in its defense, on whose behalf NZ intelligence agencies engage in espionage, and with who the intelligence obtained by human, signals and technical means is shared. This matters because trying to achieve balance between civil liberties and intelligence operations without addressing the larger context in which the latter occur is much like putting the cart before the horse.
Posted on 10:50, March 13th, 2015 by Pablo
EveningReport.nz is a new NZ-based online media outlet that among other valuable things offers in-depth interviews on matters of public interest. As such t is a welcome addition and antidote to corporate media soundbites and frivolities.
I was fortunate to feature in one such interview (there is also one by Nicky Hager), which explores the latest revelations that the GCSB does a heck of a lot of spying on New Zealand’s friends and partners as well as on so-called rogue states, and it does much of this on behalf of the the US and other Five Eyes partners rather than as a matter of national security. The ramifications of the revelations about NZ’s role in 5 Eyes are one subject of the discussion, but there are other items of interest as well.
The discussion, hosted by Selwyn Manning, can be found here.
It turns out that nearly 5 months after getting re-elected, the government has decided on the composition of the Intelligence and Security Committee (ISC). Besides himself as Chair of the ISC, the Prime Minister gets to select two members from the government parties and the Opposition Leader gets to select one member from opposition parties. In both cases the respective Leaders are expected under Section 7 (1) (c,d) of the 1996 Intelligence and Security Committee Act to consult with the other parties on their side of the aisle before selecting the remaining members of the committee. The language of the Act is quite specific: “c) 2 members of the House of Representatives nominated for the purpose by the Prime Minister following consultation with the leader of each party in Government: (d) 1 member of the House of Representatives nominated for the purpose by the Leader of the Opposition, with the agreement of the Prime Minister, following consultation with the leader of each party that is not in Government or in coalition with a Government party.” (1996 ISCA, pp. 6-7).
Not surprisingly the government has nominated two National MPs, Attorney General Chris Finlayson and Justice Minister Amy Adams, for membership on the ISC. It is not clear if ACT, the Maori Party and United Future were consulted before their selection. What is more surprising is that Andrew Little nominated David Shearer and did not consult with opposition parties before making his selection. While Shearer is a person with considerable international experience and has been a consumer of intelligence (as opposed to a practitioner) during his career, Mr. Little has been neither. In fact, it can be argued that Mr. Little has the least experience of all the proposed members when it comes to issues of intelligence and security, which means that he will have to lean very heavily on Mr. Shearer if he is not not be overmatched within the ISC.
Moreover, in past years Russell Norman, Peter Dunne and Winston Peters have been on the ISC, so the move to re-centralise parliamentary oversight in the two major parties represents a regression away from the democratisation of representation in that oversight role. Since these two parties have been in government during some of the more egregious acts of recent intelligence agency misbehaviour (for example, the Zaoui case, where intelligence was manipulated by the SIS to build a case against him at the behest of or in collusion with the 5th Labour government, and the case of the illegal surveillance of Kim Dotcom and his associates by the GCSB in collusion or at the behest of the US government under National, to say nothing of the ongoing data mining obtained via mass electronic trawling under both governments), this does not portend well for the upcoming review of the New Zealand intelligence community that this ISC is charged with undertaking.
The Greens have expressed their disgust at being excluded and have, righty in my opinion, pointed out that they are the only past members of the ISC that have taken a critical look at the way intelligence is obtained, analysed and used in New Zealand. But that appears to be exactly why they were excluded. According to John Key, Labour’s decision was “the right call” and he “totally supports it.” More tellingly, Mr. Key said the following: “A range of opposition voices from the minor parties could railroad the process. I don’t think the committee was terribly constructive over the last few years, I think it was used less as a way of constructing the right outcomes for legislation, and more as a sort of political battleground” (my emphasis added).
In other words, Russell Norman took his membership on the ISC seriously and did not just follow along and play ball when it came to expanding state powers of search and surveillance under the Search and Surveillance Act of 2012 and GCSB Act of 2014.
That is a very big concern. Mr. Key believes that the “right” outcomes (which have had the effect of expanding state espionage powers while limiting its accountability or the institutional checks imposed on it) need to be produced by the ISC when it comes to the legal framework governing the intelligence community. Those who would oppose such outcomes are not suitable for membership, a view with which Andrew Little seems to agree.
This is so profoundly an undemocratic view on how intelligence oversight should work that I am at a loss for words to explain how it could come from the mouth of a Prime Minister in a liberal democracy and be tacitly seconded by the Leader of the Opposition–unless they have genuine contempt for democracy. That is a trait that W. Bush, Tony Blair and John Howard shared as well, but what does that say about the state of New Zealand democracy?
Mr. Little has given his reason to exclude Metiria Turei of the Greens from ISC membership as being due to the fact the Mr. Norman is stepping down in May and Mr. Little wanted “skills, understanding and experience” in that ISC position. Besides insulting Ms. Turei (who has been in parliament for a fair while and co-Leader of the Greens for 5 years), he also gave the flick to Mr. Peters, presumably because that old dog does not heel too well. As for Mr. Dunne, well, loose lips have sunk his ship when it comes to such matters.
The bottom line is that Mr. Little supports Mr. Key’s undemocratic approach to intelligence oversight. Worse yet, it is these two men who will lead the review of the NZ intelligence community and propose reform to it, presumably in light of the debacles of the last few years and the eventual revelations about NZ espionage derived from the Snowden files.
As I said last year in the built-up to the vote on the GCSB Amendment Act, I doubted very much that for all its rhetorical calls for an honest and thorough review process that led to significant reform, Labour would in fact do very little to change the system as given because when it is in government it pretty much acts very similar to National when it comes to intelligence and security. If anything, the differences between the two parties in this field are more stylistic than substantive.
What I could not have foreseen was that Labour would drop all pretence of bringing a critical mindset to the review and instead join National in a move to limit the amount of internal debate allowable within the ISC at a time when it finally had an important task to undertake (in the form of the intelligence community review).
As a result, no matter how many public submissions are made, or how many experts, interest groups and laypeople appear before the ISC hearings, and how much media coverage is given to them, I fear that the end result will be more of the same: some cosmetic changes along the margins, some organisational shuffles and regroupings in the name of streamlining information flows, reducing waste and eliminating duplication of functions in order to promote bureaucratic efficiency, and very little in the way of real change in the NZ intelligence community, especially in the areas of oversight and accountability.
From now on it is all about going through the motions and giving the appearance of undertaking a serious review within the ISC. For lack of a better word, let’s call this the PRISM approach to intelligence community reform.
We already know that John Key dissembles and misleads, especially on matters of security and intelligence. NZ is soon to put troops into Iraq as part of the effort to roll the Islamic Sate (Isis is an Arabic girl’s name) out of that country. For whatever reason Mr. Key will not admit to this even after the British Foreign Secretary mentioned that the NZ contribution will be a company sized (“100 odd” in his words) detachment.
The evidence of military preparation is very clear, with an especially selected infantry company training for desert warfare at Waiouru over the past few months and a detachment of SAS soldiers rumored to be already in theatre. The US and other anti-IS coalition partners have announced preparations for a Northern spring offensive against IS, centred around taking back Mosul from the jihadists. The decision to launch the offensive and the division of labor involving participating ground forces was made at the working meeting of coalition military chiefs in Washington DC last October (the chief of the NZDF attended the meeting although at the time Mr. Key said no decision had been made to send troops). Since the NZDF cannot contribute combat aircraft, armour or even heavy lift assets, it is left for the infantry to join the fray, most likely with a fair share of combat medics and engineers.
With his misrepresentations John Key only obscures the real issue. New Zealand has no option but to join the anti-IS coalition (which he has said is the price for being in “the club”) given the international commitments it has already made.
There are three specific reasons why NZ has to join the fight, two practical and one principled.
The practical reasons are simple: First, NZ’s major security allies, the US, UK and Australia, are all involved as are France, Germany and others. After the signing of the Wellington and Washington security agreements, NZ became a first tier security partner of the US, and as is known, it is an integral member of the 5 Eyes signals intelligence network. It therefore cannot renege on its security alliance commitments without a serious loss of credibility and trust from the countries upon which it is most dependent for its own security.
Secondly, most of New Zealand’s primary diplomatic and trading partners, including those in the Middle East, are involved in the anti-IS coalition. Having just secured a UN Security Council temporary seat at a time when the UN has repeatedly issued condemnations of IS, and having campaigned in part on breaking the logjam in the UNSC caused by repeated use of the veto by the 5 permanent members on issues on which they disagree (such as the civil war in Syria), NZ must back up its rhetoric and reinforce its diplomatic and trade relations by committing to the multinational effort to defeat IS. Refusing to do so in the face of requests from these partners jeopardises the non-military relationships with them.
The third reason is a matter of principle and it is surprising that the government has not made more of it as a justification for involvement. After the Rwandan genocide an international doctrine known as the “Responsibility to Protect” (R2P) was agreed by UN convention to prevent future horrors of that sort. It basically states that if a defenceless population is being subject to the depredations of its own government, or if the home government cannot defend the population from the depredations of others, then the international community is compelled to use whatever means, including armed force, to prevent ongoing atrocities from occurring. There can be no doubt that is the situation in parts of Iraq and Syria at the moment. Neither the Assad regime or the Iraqi government can defend minority communities such as Kurds or Yazidis, or even non-compliant Sunnis, from the wrath of IS.
That, more than any other reason, is why NZ must join the fight. As an international good citizen that has signed up to the R2P, NZ is committed in principle to the defense of vulnerable others.
So why have the Greens, NZ First and Labour (or at least Andrew Little) opposed the move?
The Greens are true to form with their pacifist and non-interventionist stance, but they are ignoring the matter of international principle at stake. NZ First is its usual isolationist self, acting blissfully unaware of the interlocking web of international networks and commitments that allow NZ to maintain its standard of living and international reputation (in spite of having Ron Mark to speak to military issues).
Most of all, why has Andrew Little run his mouth about reneging on the NZDF contribution to the anti-IS coalition (which involves formal and time-constrained commitments)? Little has previous form in displaying ignorance of international affairs, but this level of hypocrisy takes the cake. Does he not remember that the 5th Labour government started the rapprochement with the US after 9/11, and that it was the 5th Labour government that initially deceived and misled about the real nature of the SAS role in Afghanistan as well as the true nature of the mission in Southern Iraq (which is widely believed to have involved more than a company of military engineers). Is he not aware that a responsible country does not walk away from the security alliance, diplomatic and trade commitments mentioned above? Did he not consult with Helen Clark, Phil Goff or David Shearer before this brain fart (or did they gave him the rope on which to hang himself)? Does he really believe, or expect the informed public to believe, that on defense, security and intelligence issues Labour in 2015 is really that different from National? If so, it is he, not us, who is deluded.
All this shows is that Labour is still unfit to govern, or at least Little is not. If he does not understand the core principles governing international relations and foreign affairs, or if he chooses to ignore them in favour of scoring cheap political points, then he simply is unsuited to lead NZ before the international community. There is a big difference between being a political party leader and being a statesman. It is clear that John Key is no statesman, but his glib and jocular nature gives him the benefit of international respect so long as he backs up his talk with the appropriate walk. By comparison, Andrew Little comes off as some provincial rube who cannot see further than the nearest bend in the road.
Whether we like it or not–and there are plenty of things not to like about getting involved in what could become another military morass in the Middle East–NZ has an obligation to get involved in the fight against IS. The obligation stems not just from the particular disposition of this National government but from years of carefully crafted international ties under successive governments that give practical as well as principled reasons for involvement. Andrew Little should know that, and the Greens and NZ First need to understand that this is not about belonging to some exclusive “club” but about being a responsible global citizen responding to the multinational call for help in the face of a clear and present danger to the international community. Because if IS is not a clearly identifiable evil, then there is no such thing.
In any event the fight against IS is dangerous but cannot be avoided.