Archive for ‘Public services’ Category
The Snowden revelations have brought to the fore the issue of oversight and accountability on the part of intelligence agencies in democracies. In this analytic brief I outline ideal type principles and practicalities of democratic intelligence oversight. The idea is to offer a conceptual basis for understanding how democratic intelligence oversight should work with an eye to promoting practical reforms to that end.
As much as anybody I enjoy sports and competition, so much so that I enjoy watching top level competition in sports that I am unfamiliar with. I have therefore enjoyed watching the America’s Cup racing, not so much because of the nationality of the teams but because of the boat design, speed, tactics and seamanship involved. In fact, I am poorly placed to get worked up on patriotic grounds because as readers of my earlier post on liminality may remember, I have allegiances to several countries and divided loyalties as a result. Moreover, I believe patriotism to be the last (and best) refuge of political scoundrels so I endeavour to resist its emotional pull wherever I happen to be living.
In this America’s Cup series I am cheering for Team New Zealand because I know that it means a lot to New Zealand and very little to the US. Other than rugby, Kiwis tend to adopt a “David versus Goliath” approach to international team sports. They are not alone in this small country syndrome, as I have pointed out previously with regard to Uruguay and team sports other than soccer. But in New Zealand that syndrome extends beyond sports, including into the international political and economic arenas.
With regard to the America’s Cup, here in NZ there is live blow by blow coverage of every meter of every race, whereas in the US it is not being covered live anywhere except on boutique cable boating channels. Here it is front page news in every newspaper and news broadcast. In the US it barely rates a header in the sports section of big city newspapers, including that of the race venue San Francisco. Heck, in Texas high school football (the helmeted version) gets more coverage on a weekend than the America’s Cup has had in a year!
In the US most people do not give a darn that Larry Ellison indulges a billionaire fancy with a crew that includes only one American. Here people want to name their first born sons after Dean Barker. They also want that turncoat, traitorous preferably ex-kiwi Russell Coutts strung from the lanyard because he dared to work for the competition. In other words, Kiwis are heavily invested in the outcome whereas in the US they are not.
Or are Kiwis that heavily invested? From what I gather from video coverage of people watching the race live on television on the Auckland waterfront, there is hardly a brown face in the mix. The same goes for those Kiwis who have traveled to the America’s Cup Village in San Francisco. Pure pakeha pulsation throughout.
So where are the non-Pakeha kiwis when it comes to this race? Are they just not into sailing? If so, why not? Why is something that is so heavily promoted by the media and advertisers as a nationalistic rallying point having so little impact on non-Pakeha communities?
I ask because the New Zealand taxpayers have put $38 million into Team Emirates for this race series (both Labour and National support the expenditure). So whether or not they are emotionally invested in the racing, Kiwis are financially invested in it. The public expenditure was justified on grounds that the economic benefits to NZ of a future Cup defense in the event of a win would justify the investment (since winners get to name the venue for the next race). The narrow investment now is said to bring greater and broader future returns.
Besides the fact that no public consultation preceded the allocation of taxpayer money to Team Emirates, the issue of benefits is thorny. Even if Auckland benefits from hosting a future defense of the Cup (and that would mostly go temporarily to hoteliers, restaurants, bars and other service sector providers), what about the rest of the country? Other than Auckland based niche industries like boat-building and sail-making and a few high-end tourist locations and ventures, is it true that the country as a whole will benefit from the tax revenues generated by increased economic activity in Auckland? Do we really expect to believe that places like Ruatoki and Twizel will see direct benefit from an America’s Cup defense in Auckland?
It should be noted that Team Oracle USA received no public funds for its Cup defense, and that the redevelopment of the Embarcadero in San Francisco was a majority private venture that has not yielded the economic dividends to the city that were originally tabled by way of justification for holding the race there. So the “future benefits” argument is contentious at best, especially if drawn over the long-term. Yet spending public money on the challenge is seen as in the long-term NZ national interest.
Put another way, why is it that NZ taxpayers coughed up money for a yacht race campaign that not all New Zealanders care about and which relatively few New Zealanders will benefit from in the form of future uncertain economic returns in the event of a successful challenge this year? Since hosting the Cup defense will undoubtably include allocations of more taxpayer dollars to infrastructure and venue development, is this an appropriate use of public money? Given that the food in schools program receives just $10 million a year, could it not be argued that government priorities are a bit out of whack when it comes to long-term investment in the nation’s future?
Leftist conspiracy types will claim that the government subsidy for a small appeal elitist sport is designed to benefit its rich and upper middle class business supporters, nothing more. I would hope not, but then again I come back to the question of who in New Zealand is truly supporting the Cup challenge. Is the America’s Cup for the few or for the many? In the US it is for the few by the few, but here in NZ the issue appears a bit more complicated.
Anyway, I could be entirely wrong in my read and certainly do not have a good handle on the extent of support for the America’s Cup outside of what I have seen and heard in the media. Readers are welcome to ponder and comment on the issue.
Better to do that than to get started on the subject of host venue race time limits being enforced in low wind conditions on a day when a overwhelming match-winning victory by the challengers was in sight!
Now that the Kitteridge and Neazor reports have been tabled, discussion can more fully proceed to the issue of intelligence oversight. The government has proposed bolstering resources for the Inspector General of Intelligence, and adding a Deputy Inspector General to what until now has been a one man shop. That is a step in the right direction, but it falls very short of the mark when it comes to robust, independent intelligence oversight mechanisms. Here I outline one way of achieving them.
Currently the IG is dependent on the NZSIS and GCSB for resources and cooperation and answers to the Prime Minister. That puts him at the interface between politics and operational matters in a chain of responsibility, which reduces his freedom of action.
The IG’s office should be strengthened in terms of staff and moved to become an agency of parliamentary services. It will answer to the Parliamentary Committee on Security and Intelligence, although its staff and funding source will be independent of the Committee. The Committee will have powers of compulsion under oath that allow it to force intelligence managers to release operational details or classified information to it upon request. It would meet at least once a month and receive scheduled classified briefs from the directors of the SIS and GCSB as well as senior managers in the DPMC handling intelligence flows. At any time the Committee would be able to order the appearance in special session of officials from the Police, Customs, Immigration, Treasury and other agencies that employ intelligence collection and analysis services.
All of this would require that the staff of the committee as well as that of the IG have security clearances akin to those of personnel employed by the agencies being overseen. That will require background checks and security vetting of staff. Members of the Committee would be required to sign secrecy oaths under penalty of law.
The transition from the current ineffectual oversight mechanisms to something more effective will take time and money. It will therefore be resisted not only by the agencies being overseen (who naturally will be discomfited by increased scrutiny from agencies unattached to the Prime Minister). It will also be opposed by political sectors focused on cost-cutting, quick results, or maintaining the current system because of the weight of institutional legacies and/or advantages it gives governments when it comes to the interpretation and implementation of intelligence priorities. But it is certainly worth doing.
The time is opportune for change. The sequels to the Dotcom case have exposed serious problems in the political management of intelligence issues as well as deficiencies in the conduct of intelligence operations. The government has proposed significant changes to the 2003 GCSB Act, particularly section 14, that will have the effect of strengthening the GCSB’s powers of internal (domestic) surveillance at the behest of other agencies–foreign and domestic. The justification for this rests on the increasingly transnationalized nature of security threats, whereby the intersection of local and international crime, foreign corporate and political espionage, irregular warfare networks and non-state actors makes much more difficult precise definition of what constitutes a domestic as opposed to foreign intelligence concern. These are grey area phenomena, and the response cannot be given in black and white.
I agree that the security threat environment has changed and is much more “glocal” or “intermestic.” I agree that it requires statutory revision in order to better account for the changing nature of intelligence operations under such conditions. What I am proposing here is a parallel revamp of oversight mechanisms that promote more independence, transparency, accountability and compliance at a time when the scope of intelligence agency authority is being redefined and expanded well beyond traditional espionage operations.
The issue is worth debating and therefore should be the subject of a larger inquiry such as proposed by Labour and the Greens. If nothing else the Kitteridge and Neazor reports can be used as the starting point for a more thorough discussion of the role, functions and purview of NZ intelligence agencies given the changed nature of the threat environment and the equally compelling need to maintain a better measure of democratic accountability than has heretofore been seen.
Although I always knew that “hope and change” was a rhetorical chimera rather than a realizable objective, and understand full well that the US presidency is a strait jacket on the ambitions of those who occupy its office, I am one of those who have been disappointed by the Obama administration on several counts.
I fully understand that he inherited a mess and has done well to dig out from under it, particularly with regard to revitalizing the economy and disengaging from two unpopular wars. With some caveats, I support the drone campaign against al-Qaeda. I support his health care reforms, his support for gay marriage and his efforts to promote renewable energy. I support his measured endorsement of the Arab Spring coupled with his cautious approach to intervention in Libya and Syria, where he has used multilateral mechanisms to justify and undertake armed intervention against despotic regimes (US intervention being mostly covert, with the difference that in Libya there was a no-fly zone enforced by NATO whereas in Syria there is not thanks to Russian opposition).
But I am disappointed in other ways. The failure to close the detention facility at the Guantanamo Bay Marine and Naval base, and the failure to put those detained there on trial in US federal courts because of local political opposition, are foremost amongst them. Now, more egregious problems have surfaced.
It turns out that after the attacks on the US consulate in Benghazi, Libya, on September 11, 2012, the administration removed from its “talking points” for press briefings and interviews the facts that the attack was conducted by al-Qaeda affiliates (and were not a spontaneous response to an anti-Islamic on-line video, as was claimed), that repeated requests for security reinforcement at the consulate before the attacks were denied in spite of warnings about imminent threats, and then military assets were withheld during the incident (which lasted eight hours).
The public deception was out of proportion to the overall impact of the attack. Whether or not al-Qaeda affiliates conducted it, serious questions about the lack of security were bound to be raised. The White House appears to have panicked under campaign pressure about the significance of the date of the attack and who was attacking (a purely symbolic matter), compounding the real issue of State Department responsibility for the security failures involved.
While not as bad as the W. Bush administration fabricating evidence to justify its rush to war in Iraq, it certainly merits condemnation.
There is more. It turns out the IRS (the federal tax department, for those unfamiliar with it), undertook audits of right-wing political organizations seeking tax-exempt status as non-profit entities. IRS auditors were instructed to use key words and phrases such as “Patriot,” “Tea Party” and other common conservative catch-phrases as the basis for deeper audits of organizations using them. That is against the law, albeit not unusual: the W. Bush administration engaged in the same type of thing.
Most recently it has been revealed that the Department of Justice, led by Attorney General Eric Holder (a recent visitor to NZ), secretly obtained two months of phone records from over 100 Associated Press reporters and staff, to include their home land lines, office and cell phones (in April-May 2012). The purpose was to uncover leaks of classified information about counter-terrorism operations to reporters after AP managers refused to cooperate with government requests to divulge the sources of leaks. That made the phone tapping legal. But there was an option: the government could have subpoenaed those suspected of receiving leaks and forced them to testify under oath as to their sources.
The main reason I am disappointed is that the Obama administration should have been better than this. I never expected the W. Bush (or the Bush 41, Reagan or Nixon administrations) to do anything but lie, cover up, fabricate, intimidate and manipulate in pursuit of their political agendas. They did not disappoint in that regard. But I do expect Democrats in general, and Obama in particular, to behave better in office. They are supposedly the defenders of the common folk, upholders of human rights and civil liberties, purportedly staunch opponents of corporate excess and abuses of privilege.
Republicans inevitably use public office to target domestic opponents and bend the law in favor of the rich and powerful. Democratic administrations are supposed to be better because, among other things, they know the consequences of such manipulation. Yet apparently they are not, even if these events pale in comparison to the crimes and misdemeanors of Republican administrations.
I am not being naive. I spent time working in federal agencies under both Republican and Democratic administrations in the 1980s and 1990s, and the difference in approach to the public trust, at least in the fields that I worked in, were great and palpable. It would seem that the things have changed since then.
Democratic governance often involves the compromise of principles in the pursuit of efficiency or cooperation in policy-making. There are always grey areas in the conduct of national affairs, and there are events and actions where reasons of necessity make secrecy more important than transparency in governance. The actions outlined above are neither.
I still prefer Obama to any of the GOP chumps that rail against him. But as John Stewart makes clear in this funny but scathing (and profane) critique, he and his administration have just stooped closer to their level.
Hence my disappointment.
A recent TVNZ Colmar Brunton poll showed that 32 percent of those surveyed had little or no trust in New Zealand’s intelligence agencies, 32 percent had much or complete trust in those agencies, and 33 percent were lukewarm either way (with 3 percent undecided). That means that 65 percent of respondents were less than strongly trusting of New Zealand’s spies. This is a remarkable degree of public skepticism of intelligence organizations in a democracy.
The Prime Minister has said that the New Zealand intelligence community has to work hard to regain public trust. He is wrong, or is just being politically polite.
Unlike agencies such as the Land Transport Authority, Police, Fire Service, Health Boards, WINZ and Education, which provide direct goods and services to the public and which depend on public trust in order to operate efficiently (notwithstanding the well-known problems afflicting at least some of these “direct provision” agencies), the intelligence community need not concern itself with expressions of public trust. That is because the service that intelligence agencies provide as ostensibly commonweal organizations (i.e. ones that serve the universal public interest), although for the general good in the last instance (at least theoretically), is not provided directly or even openly. Instead, the intelligence agencies answer to the government of the day as the representative of the public will and provide their collection and analysis skills to the government for the national good as defined by their charter and the government’s interpretation of it. They do not need the public’s trust in order to operate efficiently because most of what they do is away from the public eye.
Thus, in the first instance, the trust of the government is what matters for the spies. In this the intelligence community has an advantage because politicians elected into government are generally not conversant with intelligence matters and therefore are susceptible to espionage agency “capture:” the information that the spies provide gives the political elite a privileged window on the world, so they are most often reluctant to critically dispute the view.
More importantly, New Zealand’s intelligence sharing partners must have strong levels of trust in its spies. Without that, New Zealand’s access to allied intelligence sharing may suffer because foreign partners will be reluctant to risk placing sensitive information in the hands of untrustworthy people. The saving grace for New Zealand’s spies is that the years of relationship-building with its intelligence partners could allay the latter’s fears of incompetence or unprofessionalism on the part of the former.
On the other hand, even long standing relationships can be damaged by breaches of trust. This could well be the case in the wake of the Dotcom scandal, where the case against the internet magnate is crumbling in light of disclosures of illegal warrantless wiretapping by the GCSB (which makes evidence collected by those wiretaps inadmissible). Between the GCSB’s failures to follow its own basic protocols with regards to eavesdropping requests from sister agencies, coupled with the over the top nature of the raids on Dotcom’s residence (which included the presence of armed FBI agents and the detention of women and children by armed police), it is unlikely that any NZ judge will grant the US extradition request. That means time and resources spent by the US and NZ on pursuing the case against Dotcom will be for naught. The GCSB failings are bound to be noted by New Zealand’s intelligence partners, who will wonder about the assurances given by the GCSB and Police (and more than likely the SIS) that their course of action would not be subject to legal challenge or public scrutiny.
The bottom line is one of vertical and horizontal accountability. In democracies, governments are held accountable by the electorate (expressed both individually and collectively). That is the vertical dimension of accountability. Under that government, public agencies are accountable to each other via a system of checks and balances. That is the horizontal dimension of democratic accountability, which is used to cultivate the public trust that is key to vertical accountability.
In New Zealand there is very little horizontal accountability between the intelligence community and other parts of government, to include parliament and the judiciary (and perhaps even the executive in specific instances). This makes its agents (to include the GCSB and SIS) even less vertically accountable than in most liberal democracies, where oversight, compliance and accountability mechanisms are much better developed.
As a nation-state New Zealand is also accountable to its diplomatic and security partners. That is another facet of horizontal accountability, writ large. New Zealand’s foreign partners must have trust in its diplomatic, military and espionage agencies in order for their mutual relationships to prosper. So long as they do, domestic trust is of secondary importance. But for that to happen, New Zealand’s intelligence community must be able to deliver on what it promises, which means that it must offer iron-clad guarantees that its activities will not be the subject of contentious public or political debate that can jeopardize ongoing intelligence collection and analysis operations
Thus, on the one hand, the poll results are not as worrisome for the government as may appear at first glance. So long as the New Zealand intelligence community and its component parts have the trust of its allies, then it will suffer no harm as a result of the public loss of faith in it. But should foreign partners come anywhere close to exhibiting the flat bell curve of trust that characterizes the results of the TVNZ survey, then New Zealand could well find itself excluded from at least some of the sensitive intelligence flows that are the ostensible reason for its participation in the Echelon/Five Eyes network, to say nothing of the wider intelligence community of which it is part.
As for the domestic side of the equation: a nation of sheep is led by the sheep dog. The sheep dog is the government, of which intelligence agencies are part. The shepherd is the institutional system of checks and balances that govern intelligence gathering and analysis, to which the government of the moment is subject. Absent such effective oversight, compliance and accountability mechanisms, sheep are always at the mercy of an unrestrained and unaccountable dog.
In the past few weeks coroners have been in the news. The investigations of the disappearance of an emotionally distraught woman at Piha, the Kahui twins murders and the death of a cyclist on Tamaki Drive have seen a surprising, some would say unusual, level of coroner opinion voiced on sensitive issues, some of which verges on editorializing.
For example, in the Piha case the coroner placed some responsibility for the young woman’s death on a couple of good Samaritans who tried to shelter and comfort her for four hours after she asked them not to call the police because she feared that the cops were angry at her. The coroner ignored the actions of seven other people who also interacted with the victim, including those who last saw her alive–naked and delirious talking to a light post–but did nothing and those at the house that she had fled from fearing sexual assault. He also downplayed the gross negligence of the police, who called a taxi rather than send a patrol car in response to the original 111 call from the distressed woman (the taxi driver was clueless and went to Onehunga rather than Piha). The coroner’s bottom line is that civilians should leave the handling of emergencies to professionals even if that means ignoring the wishes of those at risk. The implicit message could well be “do not get involved.”
The coroner in the Kahui twin case basically fingered the father for the murders. Since the father was acquitted of murder by a jury in a well-publicized trial, it will be interesting to see if the case is revived by the Police. The coroner’s verdict is clearly an instigation to do so.
The coroner in the Tamaki Drive cycle death case has suggested that it be mandatory for cyclists to wear high visibility clothing and to ride in cycle lanes where available. However, the cyclist was killed in daylight after swerving to avoid an abruptly opened door from a car parked immediately at the end of an irregularly marked cycle lane, on a notoriously tight corner. He ignored suggestions by bicycle advocates that the Auckland Council’s failure to remove parking along narrow stretches of Tamaki Drive contributed to the accident (which it did two days after the accident), or that the truck that killed her failed to adhere to the 2 meter gap rule (which ostensibly is the distance that should be maintained between cyclists and motor vehicles on roadways and which is in the road code). He reiterated a juries’ verdict that the motorist who opened the door without first looking behind him was not at fault. In effect, he blamed the cyclist for her own death.
I am curious about this. I am not an expert on Coroner’s courts or investigations, but I had thought that they were focused on the facts of the case in order to determine causality via a chain of events or circumstances. In this cases outlined above, the scope appears to have been expanded into opinionating and assigning blame rather than simply recommending improvements and safeguards to avoid similar occurrences. Have I got this understanding wrong or is this unusual?
I must confess that I live near Piha and have some local insight into the circumstances of the young woman’s disappearance. I am also a former recreational, commuter and competitive cyclist who has ridden on numerous occasions on Tamaki Drive (too flat for serious training unless it is a time trial, and only “safe” on early weekend mornings). I do not much care for infanticide regardless of who does it. So perhaps I am reading too much into these coroner’s reports, but from what I have seen it appears that in these cases they were interested in more than establishing the facts of the matter at hand.
The political Right regularly accuses the Left of engaging in social engineering. Be it pushing such unnatural constructs as union and civil rights, health awareness and environmental concerns, the Right claims that the Left is out to control how people behave and even think. For freedom-loving individualists, this is anathema.
Consider my surprise, then, when I saw the Prime Minister saying that one of the reasons for the $2000 dollar “kiwi-first” purchase option with loyalty premium for Mighty River Power shares was to “change the investment psychology” of New Zealanders. It seems Kiwis put money into real estate and bonds, but not the stock market. Mr. Key thinks that his countrymen and women should diversify their portfolios into stocks, and the asset sales option is one way of promoting that. After all, it is not really prudent to have too many eggs in one basket.
I can see his logic. As a money trader and speculator, stock manipulation comes natural to Mr. Key. Sell short, hold, think long…he has the field covered. And truth be told, in a market environment such as NZ’s, it may not be unreasonable to urge people to spread their savings around. Higher rates of savings are traditionally linked to higher standards of living and growth, so by market logic such a move is both collectively and individually optimal.
What I find notable is the PM’s admission that the Mighty River Power stock purchase proposal is a deliberate attempt to alter the way Kiwis think about investment. In other words, it is a social engineering project that proposes to transform the psychological disposition of Kiwis when looking at their investment options.
But if that is the intention, how is that different from campaigns to get people to stop smoking, not drink and drive, use public transport, practice safe sex, license and desex their pets or stop littering? Are these not all examples of what the Right claims is undue interference by government on the rights of individuals to freely choose how to live their lives? Even if one admits that the share purchase option is not compulsory and still a matter of free choice (as are some of the examples just mentioned), is not the intention of the National government and Mr. Key to engage in exactly the type of social engineering–to include psychological indoctrination–that the Right accuses the Left of championing for its nefarious totalitarian purposes? Mr. Key has admitted that there is a social engineering intent to the proposal, so how is that good when other social engineering experiments are considered by the political Right to be bad? Or are some types of social engineering more acceptable to freedom-loving market individualists than others?
If the latter is true, than even the Right has to admit that social engineering projects embarked upon by governments are not always contrary to the small-governance/more market/individual choice principles that ideologically underpin Right thought. And if that is the case, then how can social engineering experiments be totalitarian, collectivist and fundamentally anti-democratic at their core?
Pardon me if I see a little contradiction here…
There is an old rule in politics that states that it is not the original sin that gets politicians in trouble. It is the cover-up or lying about it that does them in. The examples that prove the rule are too numerous to mention and span the globe. This week we have another classic case in point: Shane Jones and his explanation as to why, as Associate Minister of Immigration (the Minister of Immigration at the time, David Cunliffe, had earlier refused to revoke Liu/Yan’s residence visa and for some reason unknown to me was not involved in the granting of citizenship), he ignored expert legal advice and granted a Chinese fraudster expedited citizenship.
According to Jones he did so on humanitarian grounds because he was told by an unnamed Internal Affairs official that the applicant–he of at least three different names and an Interpol warrant out for his arrest–would be executed and his organs harvested if he were sent back to China. Forgive me if I cough. That is up there with Annette King’s claims that no one in the Labour government knew about Operation 8 until the weekend before it began.
Others have already torn Mr. Jone’s supposed rationale to shreds. Beyond the fact that not even the Chinese execute people for common fraud, even if they are members of Falun Gong (a claim supposedly made by but never proven by Mr. Liu/Yan), a legitimate fear of a politically-motivated death sentence would result in an asylum request, not a citizenship application based upon a business visa. Nor would Mr. Liu/Yan speak of traveling back to China with a delegation of Kiwis in order to explore business opportunities in the PRC (as it is claimed he did in his conversations with immigration officials now testifying at his trial on false declaration charges). But according to Shane Jones, not only was he facing certain death but also certain organ harvesting (which raises the question as to how the unnamed Internal Affairs official could know this in advance given that the Chinese do not harvest organs from all executed prisoners because the health of the condemned varies). Put bluntly, Mr. Jones is simply not credible, and unless that unnamed official comes forward to take responsibility for the bogus claims (which Mr. Jones could have ignored), his justification simply does not wash. Add in the fact that Mr. Liu/Yan had donated considerable sums of money to Labour coffers in the lead-in to his citizenship application, and the smell of something fishy permeates the affair.
What is amazing is that when confronted with the evidence presented in court, David Shearer continued to back Mr. Jones and even allowed him to go public with is ridiculous justification. That violates a second rule of politics, which is that when smoke begins to surround a politician on ethical issues his or her party needs to move swiftly to prevent a full-fledged fire from erupting by distancing the tainted one from the party as a whole. By not doing so immediately and only leaving open the possibility of standing Jones down if an investigation proves him guilty of wrong-doing in the Liu/Yan affair, Mr. Shearer has failed the basic test of leadership that involves saving the party from further uncomfortable scrutiny on the issue of campaign financing and political donations.
Once again, let us remember the iron law of oligarchy that governs all political parties: the first duty of the party is to preserve itself. Individual political fortunes come second. Legalities aside, it is the appearance of unethical behavior on the part of Mr. Jones that is at play here.
What is even more amazing is that this comes on the heels of the John Banks-Kin Dotcom scandal and John Key’s equally egregious mistake in not removing Banks from his ministerial post while the Police investigated whether Banks violated political finance laws in his dealing with Mr. Dotcom. Regardless of whether the press played this sequence of events on purpose, the scenario unfolded as follows: National was on the ropes in the weeks leading up to a dismal budget announcement, beleaguered by policy and personal conflicts and dogged by an increasingly assertive mainstream press. Rather than strike a contrast in approach that would give it the moral high ground that would allow it to score major political points against its weakened rival, Labour’s response to revelations of the dubious ethics of one of its senior members in a past government–dubious ethics that are being aired in court for crikey’s sake–is to bluster and blow more smoke on the matter. Do they never learn?
Just as Mr. Key should have removed Mr. Banks from his ministerial position as soon as his denials and lies about his relationship with Mr. Dotcom were exposed, so Mr. Shearer should have moved quickly to demote Mr. Jones until such a time as an independent investigation exonerated him. Given the passing of a few news cycles and the issue would have faded into the political “bygones be bygones” category. By not doing so Mr. Shearer has allowed the Jones-Liu/Yan relationship to become a distraction away from National’s peccadillos and policy failures. He has, in fact, thrown National a life line in the days before the budget announcement and the decision to demote Banks (who could stay in government but not be a minister pending the resolution of the Police investigation), and I would imagine that the National caucus are high-fiving and back-slapping each other in delight.
Of course there are political calculations in all of this. By-elections are costly, list candidate replacements are unproven or unreliable, internal Party factional disputes run the risk of being aggravated or exposed. National is clearly waiting for the Budget to be announced before moving on Banks. Labour does not want to lose a senior figure who “ticks the boxes” of important internal constituencies. And yes, there is a difference between illegal and unethical activity.
But in putting these calculations ahead of ethical considerations given the appearance of impropriety, both parties have once again shown their contempt for the NZ public. And on this score, Labour’s contempt is much worse. After all, Mr. Banks was just a greasy-palmed private citizen seeking to be mayor when he approached Mr. Dotcom for support. Mr. Jones, on the other hand, was a Minister of State who apparently used his office to bestow special considerations on an individual in exchange for, uh, party “favors.” Both actions were slimy, but it is the official nature of Mr. Jones’s intercession that makes his behavior worse. Which is why he should have been stood down straight away, because rightly or wrongly, it is the attempt to downplay or cover up past impropriety, rather than the potentially unethical or illegal behavior itself, that will cling to the Labour Party long after Mr. Liu/Yan’s case is adjudicated.
Much has been written about the difference between public goods and private goods, including issues of fungibility versus liquidity in the allocation of each (public goods are fungible rather than liquid, private goods can be both. Fungible means that something of worth can only be replaced in-kind, in a largely 1:1 transaction. Non- fungible or liquid means that the item can be exchanged for something else of different worth/value)). Less attention has been devoted to the issue of public and private bads, including the responsibility of the state in addressing each. In light of the disasters that have befallen NZ in the last year, it is worth pondering the latter.
The Pike River mine disaster is an example of a private bad. It was human caused, being the result of bad management decisions and poor safety standards within the mine, and affected its employees and profits. However, its impact on the public good was minimal. Even so, lax mine inspection regulations contributed to the explosion and loss of life, which is a public bad because state inaction facilitated the collective tragedy, and the adverse economic impact of the mine’s closure on the local community is also a public bad because it negatively impacts on the community through no fault of their own. The question is, what role does the state have, other than the policing in the aftermath of the event, in addressing the public bad aspects of the disaster?
The Christchurch earthquakes are clearly a public bad. The combined into a prolonged natural disaster, largely unforeseen. The government mobilised resources to address the aftermath, efforts that are still ongoing. But is there a private bad element to the quake? Did shoddy construction contribute to the loss of life and property? Were regulatory loopholes exploited that exacerbated the impact of the quakes, and if so, what is the state’s role in rectifying those areas in which standards and procedures were skirted. Is it a matter for the industries involved to resolve privately? What happens when private insurers renege on coverage or attempt to minimise payouts? Does the state have a responsibility to cover the difference in the public interest? Or is that purely a private matter?
The Rena shipwreck is most interesting because it clearly combines the two forms of bad. It started out as a private bad caused, apparently, by gross human error. National’s response was predictable: it waited for the parties to the contract of the vessel to negotiate a response. And waited. After four days of calm weather and no private response, a storm blew through and began to break the ship apart, spilling part of its load and fuel from ruptured fuel lines. When leaked oil and containers began to hit Bay of Plenty beaches, the disaster became a public bad, at which time the government belatedly intervened, mostly in a support rather than in a leadership role. This is due to its continued preference for the contracting parties to assume the responsibilities incumbent upon them for having caused a private bad with public ramifications. Meanwhile the environmental impact of the wreck continues to grow, with the costs of the clean up rising and the negative economic impact on local businesses likely to be significant in the measure that the spill is not contained promptly and the clean up process stretches into months.
In other words, a private bad caused a public bad with private bad implications. Since the National government believes in the primacy of the market and private sector, it has left the bulk of the response to the parties involved, and called for volunteerism (another private act) in its approach to cleaning the beaches.
All of this is quite predictable. The quest for privatisation of the public sphere over the last two decades has reduced the concept of public goods and bads while expanding that of private goods and bads. Left to their own devices in a deregulated public space, private actors will minimize costs and increase risks in the pursuit of profitability. Should an accident such as Pike River or Rena occur, the payouts involved are considered to be acceptable given that they will be less than the costs of compliance in a tightly regulated commercial environment. The calculation is that the costs of occasional “one-offs” (which are not) will be less than the costs of ongoing regulatory compliance. In coal mining and shipping, accidents are not occasional happenstances but regular occurrences so the industries involved are have prepared accordingly (by establishing contingency funds for such events). The difference is that when a private bad becomes a public bad, they have limited contractual responsibility in addressing the latter. It is up to the state to recoup the costs of the public side of the bad incurred, which means taxpayers will have to foot the bill for the legal expenses involved in the court cases taken against the private parties responsible. In some cases–Pike River looks to be one–the state will do nothing of the sort because the public bad aspects are considered to be small, incidental, and not worth prosecution.
It appears that in the rush to privatise sight was lost on the potential public bad caused by private bads. Commercial de-regulation in the pursuit of competitiveness and trade ignores the fact that the private parties in contractual relationships with each other are not, by definition, responsible for the public good. As such, the public bad potential of a private bad event is discounted, in part because private parties know that governments will be loathe to charge them the full costs of a public bad response less they be seen as anti-business. In an age when the private sector rules over the public interest, few governments will be courageous enough to incur the wrath of major commercial actors regardless of the latter’s responsibility in causing a public bad.
The problem is compounded by the hollowing out of state regulatory agencies, particularly in their operational capabilities as well as their policy scope. Insufficient regulatory enforcement (such as it is) due to reductions in state regulatory agency workforces, combined with reductions in quick response assets in agencies responsible for disaster relief and mitigation, force the state to contract out the latter in an environment made riskier by de-regulation. Since the skill sets required for disaster relief are often very specialised and limited, given the geographic and logistical difficulties presented by specific scenarios in the time-sensitive context in which the public bad occurs, this places private actors with such skills in a de facto monopoly position over the response in their areas of expertise. This allows them to extract monopoly rather than market rents from the state when contracting such assignments.
The private bad-focused approach can be seen as short-sighted in the measure that de-regulation facilitates private actor irresponsibility, which in turn leads to higher costs for the state in the event that a private bad becomes a public bad. Seen another way, robust state regulation of private industries with potentially injurious public consequences may in fact be more of a cost-savings over the long-run given the inevitability of private sector accidents that negatively impact on the public good.
This is the crux of the matter, and it is the one that should be reflected upon when issues of off-shore drilling, mining, nuclear energy and other private industrial ventures with potentially public bad implications are discussed.
Claims by Phil Goff that he was not briefed by Warren Tucker on the SIS Israeli backpacker investigation are remarkable because of what they imply. Not only is he suggesting that Tucker violated his statutory mandate to keep him, as Leader of the Opposition, fully informed of ongoing intelligence matters. His comments also raise the possibility that the SIS filters the information it provides to the Opposition Leader in a way that differs from that given to the government (and in this case provided incomplete information or none at all on a matter of importance). If true, the latter suggests that the SIS serves the government of the day rather than the national security interest at large, and that it “spins” the way it reports on intelligence matters in ways that cater to the government’s political necessities rather than based on objective assessments of the security and threat environment at any given moment. This is a violation of democratic principle.
The current National government would not be the first one to prefer that the SIS “spin” its reporting according to political necessity rather than fact. After all, the SIS did exactly that for the Fifth Labour government in the Zaoui case. Thus Goff’s indignation is a bit rich, although he may have a valid concern that the extent of spin and filtration in his briefs has exceeded the previous norm (recall that Don Brash, then Opposition Leader, said on radio that the case against Zaoui was thin, which suggests that he was getting honest briefings from the SIS at that time).
This is very troubling. If the SIS is, in fact, playing loose with its statutory obligations vis a vis intelligence briefings for the Opposition leader, it raises serious issues about its organisational accountability and transparency when answering to the elected officials (and public) to which it is responsible and to whom it ostensibly serves. This might not be unexpected in an authoritarian regime but it is absolutely anathema to democratic governance.
It is hard to see what political gain Phil Goff would achieve by attacking the credibility of a senior public servant such as Warren Tucker. Being an experienced politician, Goff would know that such a move would generate a backlash against him, including from quarters normally sympathetic to his views. Moreover, Goff has a considerable experience with intelligence flows given his previous roles as Minister of Defense and Minister of Foreign Affairs, and a fairly extensive professional history with Tucker himself. So, why did Goff do this? With no electoral advantage to be gained and plenty of downside to consider, why did he feel the need to turn what should have been the subject of a quiet discussion into a public fracas?
I suspect–without any inside knowledge–that his version of events is closer to the truth than that provided by Tucker. I suspect that when Tucker briefed Goff on March 14 as part of their regular monthly briefings he calculated it best not to bring up the Israeli case. The reasons were that Tucker would have noted that Goff was mired in the Darren Hughes affair and given Labour’s reaction to the previous Israeli spy scandal involving passport fraud in 2004, he might use the suspicion of more Israeli skullduggery as a diversion from the Hughes matter (and his handling of it). Since the SIS investigation of the Israelis was concluded by March 6, there was nothing to report other than that suspicions had been raised by the hasty departure of the three surviving Israeli tourists and that these suspicions were unfounded (I shall leave aside for the moment a number of questions that could indicate that there is more to the story than a mistaken suspicion).
Thus, it is possible that Mr. Tucker felt it wise, given National’s commitment to strengthen bilateral ties with Israel (including security ties), to gloss over or omit mention of the investigation during the March 14 meeting. That is not a cardinal sin and does not suggest impropriety so long as Mr. Goff was provided a full intelligence brief in writing. Goff claims that he was not provided such documentation. The SIS admits that there is no transcript of record of the meeting other than Tucker’s briefing notes (that is, the notes prepared before the meeting), something that not only violates standard bureaucratic procedure but also quite possibly the Public Records Act (I find it quite astonishing that the intelligence briefs are done on a one-on-one basis between the Director of Intelligence and the Opposition Leader without a third party transcriber of record, be it a secretary or someone nominated for that role by both parties). I could be wrong of course, but there are enough discrepancies in the SIS version of events to open room for such speculation.
The story gets weirder because the SIS maintains that Mr. Goff was also briefed on the matter on April 6, and then again on July 25 after the story about the Israelis broke in the press. Why the SIS would brief Mr. Goff on the matter on July 25 when it claims it had already briefed him twice is hard to understand unless Goff demanded a “please explain” meeting with Tucker after the revelations. Also hard to understand is why the SIS, under Tucker’s signature, would rapidly declassify its records of the March and April briefings as well as the summary of the investigation in order to provide them to a notorious right wing blogger who is, in fact, criminally convicted of breaching judicial orders regarding matters of privacy (in other words, the big fella is not known for his discretion or diplomacy when it comes to dealing with secrets). Not only is the rapidity with which the Official Information Act request from the blogger was answered quite astounding (5 working days from the request to the answer from Mr. Tucker, with the documents in question declassified the same day as the blogger’s OIA request), but it now seems that other outlets were denied or delayed in having their OIAs on the same matter answered, and that the SIS selectively requested that OIAs be sent to it on the subject couched in very specific language.
If we recall that the leak to the press of the Israeli investigation came from within or close to the SIS itself, and we add to it the normal reticence of spies to engage in public arguments with politicians about their business, and then factor in the selective provision of OIA data to sympathetic outlets, all on top of Mr. Goff’s claims, then we cannot but begin to suspect that the SIS is heavily politicised in what it does, does not operate as a neutral and apolitical source of intelligence flows, and in fact is behaving in ways that are inimical to democratic oversight and control over the national security apparatus. If true, the politicisation of the SIS (or at least its leadership) is a sign of institutional atrophy as well as bias, and worse yet, is a stain on the professionalism and integrity of those who work in the clandestine services. This is kiss of death type of stuff because foreign governments and New Zealand’s intelligence partners will have noted the deeper implications of the row between Goff and Tucker, something that will influence the way in which they approach matters of intelligence sharing with the New Zealand government.
There is much more to the story but let’s just say that this controversy once again raises serious issues about the SIS role, its integrity, and its ability to serve the public in a neutral and objective fashion without political influence or bias. Whatever Mr. Goff’s motivations, his outcry has raised fundamental questions that will not easily be swept away or silenced, and have the potential to drag Prime Minister Key into the fray (because Mr. Key is Minister for Intelligence and Security and thus Mr. Tucker’s nominal “boss,” and if it turns out the SIS has massaged its briefs or played with its documentation after the fact, then Mr. Tucker’s position becomes untenable–and perhaps criminally liable).
I tried to cover some of these points in an interview on TVNZ’s “Breakfast” show, which if nothing else shows that amid the celebrity sightings, gossip-mongering and general inanity of morning television there is still some room for the occasional serious discussion: http://tvnz.co.nz/breakfast-news/paul-buchanan-warns-sis-stoush-5-59-video-4339934/video