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Defensive voting and split tickets.

datePosted on 14:31, May 3rd, 2016 by Pablo

As part of the ongoing effort to clarify some aspects of the US elections this year, this post focuses on two tactics: defensive voting and ticket splitting. Some readers may already be familiar with both concepts, but for those who are not, here is brief outline of what they involve.

Defensive Voting.

Defensive voting is the act of voting against someone by casting a ballot for their opponent not out of loyalty or agreement with the position of the opponent, but out of fear of the possibility of the disliked candidate winning. This may be due to a number of reasons but is usually based on a lesser evil approach: In order to prevent a greater evil from occurring in the form of a detestable candidate being elected, voters choose whatever alternative candidate is available who stands a chance of preventing the “bad guy” from prevailing. The idea is simply to prevent an unpalatable candidate from electoral victory even if the alternative is not entirely palatable either. There may be variations on this approach, such as voting for a clearly marginal candidate in order to help sideline a legitimate opponent, but the basic premise for such tactical voting is prevention, blocking or denial, not support, affirmation or promotion.

This is another reason why the US presidential race is so interesting. Polls show that Donald Trump and Hillary Clinton are the most detested front-running candidates in US presidential history. Ted Cruz is equally loathed across the political spectrum. That means that more than the vote of their supporters, what will decide the outcome in November is who has the largest defensive voter turnout against them. A micro version of this scenario will play out at both major party conventions, since the “anyone but Trump” Republican factions and the Bernie Sanders supporters in the Democratic Party will, at least initially, vote against the front runners as much because of their dislike of them as out of support for their own candidates.

Depending on what happens at the conventions, in November it is entirely possible that some if not many Republican voters will vote for Clinton (should she win the nomination) or an independent candidate rather than Trump. Likewise, Sander’s supporters, if he does not win the nomination and receives no policy concessions in the Clinton platform, could well turn to a third party candidate such as that of the US Green Party. That could seriously tighten the race and perhaps even lead to a Trump victory, which from the standpoint of many progressives would simply help sharpen the contradictions in the US political system and lay the foundations for more significant change down the road (I refuse to use the term “revolutionary” because unlike Sanders and his supporters I have a full understanding of what social revolutions entail, and that does not include participating in deeply institutionalised electoral processes).

If the presidential race comes down to Clinton versus Trump or Cruz, then the deciding factor will be who has the most votes cast against them rather than for them. Given the intensity of negative feelings towards all of this motley crew, it could lead to a record turnout on both sides of the political divide and give previously non-committed Independent voters, particularly those who were not able to vote in closed primaries, a decisive role in the election.

Ticket splitting.

Those familiar with MMP understand this concept well. The  “split ticks” versus “two ticks” phenomenon is simple to grasp: you can either vote for a party and a candidate from that party in a general election (giving “two ticks” to the party vote and that party’s candidate from your electoral district), or you can split your party vote from your member vote (say, by voting for Labour in the party vote and a Green candidate in the member vote).

This type of voting is unusual in the US. Political parties tend to discourage so-called vote splitting because in most elections whole slates are presented as a ticket by the party to voters, for offices ranging from president to the local dog catcher. Even though voters, in practice, do split their votes among national, state and local offices, at the national level the US electoral system largely operates in binary, either/or fashion. That makes it a rare day when parties urge their supporters to split their national-level votes.

This year that day has come. Some in the GOP leadership are floating the idea that, should Trump win the party nomination, people should split their votes in the presidential race from their votes “down ticket,” that is, for other elective offices. The GOP has very real reason to be concerned that a Trump defeat could trickle down through the Senate, House of Representatives, Governorships and even important mayoral races. With that in mind, they are asking their supporters to vote Republican down ticket even if they do not vote for Trump (and in fact many in the GOP are urging voters to vote for anyone but Trump). As mentioned in my previous post, a shift in six Senate seats restores a Democratic majority to it. In the House the shift will have to be much larger but even one that decreases the Republican majority close to or below the 2/3 mark needed for passage of legislation can be devastating for GOP prospects during the next congressional term. With several prominent Republican politicians tainted by their endorsement of Trump (such as New Jersey governor Chris Christie), the chances of his dragging the entire party down with him are considered to be very possible. Thus the open calls for vote splitting on the part of some in the Republican leadership.

On the Democratic side there is less interest in vote splitting although Sander’s supporters are urging him to run as an independent if he loses the Democratic nomination for president. Should he do so, then his supporters will engage in vote splitting as well, voting for him rather than Clinton but voting for Democratic candidates down ticket. That will be what tightens the presidential race, as barring unforeseen circumstances Sanders can only act as a spoiler in the campaign for the White House. This is the most likely reason why the Clinton camp will be inclined to offer him significant policy concessions at the convention, which not only will mollify his supporters but also could help increase their defensive vote against Trump.

The Outlook.

Of course, in no small part because she is a female in a country that still has issues when it comes to gender and higher office, Clinton may have more defensive votes cast against her than those cast against Trump or Cruz. In that case the stage will be set for the mother of all federal government meltdowns once either Republican candidate assumes office, since whoever it is will very possibly be fighting Congressional Republicans as well as the Democrats from his perch in the Oval Office, to say nothing of many state an local authorities. But given those who have been scapegoated by Trump and Cruz’s neo-medieval social outlook, framed against the demographics of the country, the more likely scenario is that defensive minded voters turn out in droves, many of them splitting their tickets on the conservative side,  and Clinton rides to victory, perhaps in a landslide.

In the meantime, let’s get back to our popcorn and beverages and watch the circus/trainwreaks primaries continue to unfold.

Some details about the US election campaign.

datePosted on 14:45, April 22nd, 2016 by Pablo

Coverage of the US election in NZ is pretty bad. The local media pundits are shallow at best and take their lead from US cable news services. The best analyses are either reprints or canned footage from US media outlets or in local political blogs (save the rabid frothing on certain reactionary outlets).

Since I get to vote in the elections I follow them pretty closely. Also, having been  based in the US for the twenty years prior to my arrival in NZ, I have practical experience with them, to including voting in 6 states. Because the coverage in NZ is sketchy on certain key details and because it follows the crude narrative of the Yank media, I figured I would offer a short primer on some key details leading up to the Republican and Democratic conventions in a few months.

Open versus closed primaries. 

Primary elections are held in all 50 states and US territories during presidential election years in order to award delegates to candidates pursuing the presidential nomination of their respective parties. The amount of delegates is based upon the number of registered members of a party in a given state, divided among the number of congressional districts in that state. In some states the awarding of delegates is a winner take all affair, while in others it is proportional to the number of votes each candidate receives out of the total number of people voting in a party’s’ primary. In some states there are caucuses instead of primaries, which are more consultative and informal than elections and offer greater leeway in delegate selection and commitment to candidates. Of course, like so much else in US elections, there is a fair bit of gerrymandering and dubious exchanges involved in delegate apportionment, but the general principle is as outlined.

In “closed” primaries only registered supporters of a given party may vote in that party’s primary. That forces voters to declare a preference in advance of the primary. The time frame for registering a party preference in order to be eligible to vote varies from state to state. For example, in Florida, where I am registered to vote, a person must register at least 60 days before the primary election. In New York the registration deadline is six months before the primary election date.

In closed primaries independent voters must either declare a party preference by the official registration deadline or else they are excluded from voting in the primary. This is important because the majority (40 percent) of US voters declare themselves to be Independents (the Democrats and GOP get around 29 percent and 27 percent of all registered voters). The motive for holding closed primaries is twofold: to suppress the vote in order to eliminate uncertainties on election day (since most independents either do not or cannot vote in party primaries); and to thereby allow the most committed party supporters to determine who the winning candidate will be. Although much attention has been directed at Trump and Sander’s complaints about the delegate selection process and inability of independents to vote, respectively, the hard fact is that both the Democratic Party and GOP try to control the primary voting process via closed elections in most states. The Democratic and Republican National Committees co-ordinate (some would say conspire) with state and local party officials to add just enough opaqueness to the process so that electoral uncertainty is limited while the appearance of free and fair elections is maintained.

In “open” primaries voters do not have to register prior to the election date. They can simply declare a party preference on election day or shortly before the election, the walk into the voting station with the voting papers of the party they have chosen. The only requirement for voting is that they show proof of residence in a given state. This allows independent voters to often have a decisive impact on the outcome and leads to greater amounts of strategic voting. For instance, when I lived in Virginia and later in Arizona, which were open primary states during the times I lived there, I would often vote in the Republican primary in order to vote for the most troglodyte candidate on the ballot. My hope was that in doing so I would help said candidate win the nomination because he (it was always a he) was unelectable in the general election. Unfortunately that did not always happen, but you get the general idea.

“Open” primaries are often a better indication of general election outcomes because they are less dominated by internal party logics and less “controllable” by party bosses. Conversely, “closed” primaries tend to reflect better the desires of committed party voters, something that may or may not be translatable into general election victories.

Another important thing to remember is not so much the percentages of the vote won by each candidate but the total number of votes registered for each party in a given primary. For example, in the recent “closed” New York primary the total GOP vote was around 800,000 whereas the Democratic vote was close to 1.8 million (that is, more than double the Republican vote). In conservative rural states such as those of the Midwest and South (the so-called red states), the numbers for each party are reversed (and much lower in aggregate). So a candidate winning by huge margins in party primaries that have significantly fewer voters than the opposition is no sure bet to go on and win a general election.

It is useful to keep this statistic in mind when projecting out to the general election. For example, it does not matter if Trump wins 80 percent of the GOP vote in a primary in which the GOP receives less than half of the total number of votes than that received by the Democratic Party candidates because come general election day his numbers will have to bolstered by a huge amount of independent votes (who are allowed to vote in general elections for whomever they prefer). Since most Independents tend to vote Democratic in general elections, that means that not only will he have to have a historic turn out by Republican voters in his favour (again, at just 27 percent of the general electorate), but he will also have to overcome a deeply rooted historic Independent voting trend if he is to win. That is a big ask.

Brokered or Contested Conventions.

Most national party conventions in US presidential election years are more a coronation than a nomination. Usually the preferred candidate has the winning threshold of delegate numbers pretty much in hand by May or early June, so the conventions (which are always held in July or early August in order to be able to dedicate at least three months to the national campaign) are mere formalities that have become increasingly garish and circus-like in recent years. Long on style and short on substance, these uncontested conventions are designed to show party unity and promote patriotic appeal in the eyes of uncommitted voters.

“Brokered” or “contested” conventions are a whole other kettle of fish. In these type of conventions no candidate has the winning number of delegates on the day the convention opens. That leads to a series of ballots amongst delegates until one candidate emerges with a 50 percent plus one vote majority. The first ballot is a so-called “loyalty” ballot in which delegates vote for whom they are pledged to (the saying is that you vote for the person who brought you to the big dance). Since the first ballot only serves to confirm the lack of a delegate majority by any candidate, then a subsequent round of balloting occurs until a majority candidate is decided upon. That is where things get interesting because after the first loyalty ballot delegates are released from their pledges and can support whomever they think has the best chance of winning the general election (or at least presumably that is the logic at play. It is entirely possible that some delegates may play to lose by selecting an unelectable presidential candidate in order to eliminate him or her from party politics after the defeat).

Balloting continues until a candidate is selected. That not only brings intra-party conflicts out into the open. It also is where the backroom deals in smoke-filled rooms, the backstabbing, horse trading and sausage-making all come into play. It is an ugly process that often leads the winning candidate battered and bruised rather than sanctified, which in turns leads to a weakened position heading into the general election–something the opposing party candidate will pounce on.

If I recall correctly, the last brokered convention was in 1979, when Ted Kennedy challenged sitting president Jimmy Carter at the Democratic convention. Carter won the party nomination, only to be trounced by Ronald Reagan in the general election. As people noted at the time, if an incumbent president could be challenged at his own party convention, why should voters think that he was worth re-electing?

Brokered or contested elections are bad news for the parties in question. That is why both the Democratic National Committee (DNC) and the Republican National Committee (RNC) are doing everything they can to derail the campaigns of the two “outsiders” in the race, Sanders and Trump. Remember that Bernie Sanders has never been a Democrat. From his days as mayor of Burlington, Vermont to his Senate career, he ran and served as an Independent until the time he entered the Democratic presidential nomination campaign. The DNC fears and loathes him, a sentiment made worse by the fact that he has derailed what was supposed to be Hillary Clinton’s inevitable and uncontested  march to the presidency. Now, the path to coronation is not so certain. Clinton needs to win 66 percent of the remaining delegates in order to secure the nomination. With states like California, Oregon, Maryland and Pennsylvania still in play, that task is not going to be easy. Even if she does win enough delegates to secure the nomination before the convention (and the selection of special interest group “super delegates” was designed to ensure that), she will have to make concessions to Sanders’ policy platform if she is to retain the support of his followers (who otherwise will not vote for her even if they fear a Trump or Cruz presidency). This complicates things for her as well as for her largest patrons, since Bernie has his sights firmly focused on Wall Street and other corporate lobbies like Big Phrama that have donated massively to her campaign. And if Clinton does not secure 66 percent of the remaining delegates, then a contested convention is in her future.

As for Trump, well, he is the fly in the RNC ointment. If he gets the necessary amount of delegates by the time of the convention, then the GOP will be forced by their own rules to award him the nomination. If that happens there is some talk of the GOP running an “independent” candidate against him so as to distance their brand from his name in an election that they expect to lose.

If Trump does not secure the necessary number of delegates before the convention, then a brokered convention is likely. The RNC both fears and wants that to happen. Fears, because it most likely will lead to defeat in November. Wants, because it could be the only way to prevent Trump from winning the nomination. If the convention is brokered or contested it is probable that Trump will be denied the nomination in favour of a “compromise” candidate even if he has the most delegate votes in the first round of balloting.  If so, it is likely that he will not go quietly and may mount his own “independent” campaign. Either way, the GOP is doomed in the general election because whoever runs an independent campaign on the Right will divide conservative voters and forfeit the chance of success against Hillary (with or without Bernie’s supporters).

Trump displays his lack of political understanding when he rails about delegate selection and how the person who gets the most GOP votes nation-wide should win the nomination. He fails to understand that, as with the Electoral College and the Senate, delegate selection is specifically designed to put the brakes on demagogic or populist appeals and mass influence over party politics. Moreover, he claims that even if he comes up short (say, by a hundred or less delegates out of the 1237 needed to win the nomination), as the leader in pledged delegates entering the convention he should be given the nomination much in the way a conceded putt is given in golf.

In doing so  he evidences exactly the disdain for institutional rules and procedures that the party elite is most concerned about. His rhetoric has already trashed many GOP sacred cows, so his push to circumvent or change its convention rules is seen as a major step towards the party’s demise (at least in its present form). Add to that his ignorance of even the most elementary notions of separation of powers and Executive Authority, and you have a GOP disaster-in-chief in the making. Heck, Trump as president (or Cruz for that matter) could well make Dubya Bush look positively Churchillian in comparison. Hence the RNC desire to snuff him out, and the only way to do so short of assassination is to force a brokered convention or run an “independent” candidate against him even if it ensures a loss in November.

 Campaign Financing.

I will not get into the intricacies of US campaign financing laws save for a couple of items. Individual contributions to candidates are limited but contributions to so-called Political Action Committees (PACs and Super PACs) are not. Under US electoral law corporations and lobbying groups are considered to be the same as individuals (i.e. there is no ceiling on contributions to PACs). PACs have been created as a way to circumvent the limitations on contributions to candidates and often serve as thinly disguised fronts for individual campaigns. Most of the money used to buy advertising, pay campaign staff and conduct the street level, grassroots get-out-the-vote work is channeled through PACs.

However, there is a twist. Before the national conventions, the DNC and RNC are prohibited from donating money to the campaigns of individual presidential candidates. Conversely, individual candidates can fund raise for themselves but not for others. This is an important detail because much fund-raising done by candidates like Hillary Clinton is done to channel money to so-called “coattail” candidates, that is, people in her party running for non-presidential offices who can benefit from the trickle down effect of her star power. Remember that in a presidential election year it is not just the presidency that is at stake. The entire House of Representatives (elected every two years) and one third of the Senate (elected every six years) are up for grabs as well, as are host of state and local offices.  This year 34 Senate seats are being contested and a shift in six seats would restore a Democratic majority, something that is almost as important to a Democratic presidency as is the person who holds it.

Therein lies the rub. None of the candidates are legally allowed to hold coattail fund-raisers and neither of the party national committees can help fund their candidacies until the nomination is secured. The Sanders campaign has cried foul after Hillary mentioned that her fund-raising was designed not just for herself but for other candidates, but the DNC has dismissed her slip of the tongue as inconsequential. In any event the practical solution to campaign financing is to channel all funds through PACs, which can then be instructed to finance campaigns for political offices up and down the ballot.

This is where, again, Bernie and The Donald have problems. The DNC and RNC are clearly channeling PAC money away from them and towards their rivals. Their own fund-raising efforts are focused on themselves without coattail-inducing support. Bernie has raised millions in small donations from individuals and some (mostly union) money, but is virtually devoid of serious PAC support. Trump is self-funded and it is debatable as to whether the RNC will reverse itself and direct money towards him in the event he secures the GOP nomination. If it does not, even his millions may not be enough to counter a well-financed, PAC-driven Democratic campaign with coattail effect, or even an “independent” GOP campaign focused more on securing the non-presidential positions on the ballot rather than the presidency.

In summation, once you strip away the dog and pony show aspects of the US election campaign, what you get is a contest run by two major parties that are authoritarian and hierarchical at their core, where both attempt to control voting outcomes from above rather than below, and which use electoral frameworks, convention rules and circuitous campaign financing to achieve that end. In that regard, the prospects for victory in November clearly lay on the Democratic side, whereas the prospects for an open party rupture is patently evident in the GOP.

Let the circuses conventions begin!

 

Latin 101: Quod licet Iovi, non licet bovi

datePosted on 12:13, April 12th, 2016 by E.A.

I am in the middle of writing up a post on the only true rock star of NZ politics but given the growing furor/scandal around the Panama Papers that’s sucking in politicians and governments around the world, including our own safe little tax haven/shelter in NZ, this particular piece of Latin sprang to mind recently and keeps on echoing as I read about various politicians trying to dodge difficult questions about their taxes.

It means “Gods may do what cattle may not”.

Readers may note that just rolls off the tongue when said (or chanted) and could make a nice placard for any planned protests.

The sentiment though is one displayed by elites around the world time and time again and just reinforces the need for greater scrutiny and fairness of the tax system in NZ (and elsewhere). Sadly while John Key has caved to pressure to allow “independent” review of our Tax system, he has not taken the David Cameron like step of disclosing his full taxes.

I’m not going to say much more but its nice to see Andrew Little and Labour trying to make hay with this one but Little has also tempered that by announcing a coming party retreat in Dunedin to work on policy/strategy etc and that the main focus will still be job/economy/housing/education (read same old stuff).

If Labour has any moxie they will be taking this, and any other related issues, to the limit as this is the perfect stick to beat Key and Co with unless Labour has its own tax baggage hidden away.

I wonder….

Something Fundamentally Wrong.

datePosted on 14:36, March 18th, 2016 by Pablo

In last Monday’s press briefing, the Prime Minister took my name in vain. Responding to questions from a reporter I had talked to, he said that my concerns about the apparent illegality of undercover intelligence operations were “fundamentally wrong.” Instead, he said that although intelligence agencies could not break laws (tell that to Kim Dotcom), they might require “different laws.”

I beg to differ.

Before delving deeper, let’s address the PM’s remark about the need for “different laws” governing undercover intelligence operations. What does he mean by “different?” Is he proposing that there be one set of laws for regular citizens and another set of laws governing undercover intelligence work? How does that sit with the “equal rights under the law” premise that is at the heart of democratic jurisprudence? And if there is no provision for “different laws” governing undercover intelligence operations today, then what is there in extant law that makes otherwise illegal acts legal? How often and under what circumstances are these illegal-but-legal acts allowed and are they only allowed or legal under warrant? Something tells me that the answers to the last two questions are “frequently and routine” and “no” respectively.

The question about undercover intelligence operations was raised because during the course of conversations with a couple of reporters about the Intelligence Review in general, I pointed out that the most interesting items were buried at the back of the report. Reporters tend to read the executive summaries of official government documents but seldom have the time or inclination to read through 179 pages of dense prose and legal jargon.

But since I have the time and inclination, I did. Plus, in my former life as a US government official I actually helped draft such reports so know that the best way of reading them is from back to front. That way one can get to the meat of the report, often found in annexes, before wading through the fluff.

I should point out that my overall take on the report is this: given who was on the Review committee, the report was inevitably going to have a bias towards institutional continuity and incrementalism with regard to reforms. That is indeed what happened. The report reflects as much if not more of the spy agencies’ concerns than it does that of external parties or stakeholders like the civil society organisations and individuals that were consulted by the Committee. The result is bound to be disappointing to those who wanted a major overhaul of the intelligence community or wanted parts of it disbanded altogether, such as the Greens, but to my mind it is a small but acceptable step towards greater transparency and accountability in the NZ intelligence community and its main collection agencies, the GCSB and SIS.

Even so, there are several problematic areas in the report that are worth considering, and here I will focus on the undercover operations that the PM thinks I have interpreted so fundamentally wrong. Rather than present my views without context, here are (cut and pasted) the recommendations regarding undercover operations as listed in the Report:

163 Annex C: Full list of recommendations (abridged).

Cover for operations and employees

78.The legislation should explicitly provide for the Agencies to obtain, create and use any identification information necessary for the purpose of maintaining the secret nature of their authorised activities. This should include the ability to create cover for anyone authorised to undertake activity for the Agencies.

79. “Identity information” should include anything that could be used to establish identity – such as credit cards and shell companies in additional to traditional forms of identification (such as passports and driver licences).

80. The Agencies should also have the ability to obtain, create and use identification information necessary to keep the identity of their employees confidential.

81. The use of these powers should be covered by a tier 3 authorisation (policy statement) to ensure they are exercised only where necessary and proportionate.

82. There should be corresponding immunities from civil and criminal liability for reasonable acts done in good faith to create or maintain cover as part of an authorised operation or to keep the fact of a person’s employment with the NZSIS or GCSB secret.

Immunities.

83. These powers and immunities should be incorporated through general provisions in the legislation governing the Agencies, rather than by inserting specific exceptions in other legislation as is currently the case.

84. The same immunities should apply to both agencies, in line with our recommendations that the Agencies share functions and an authorisation regime.

85. Immunities should also apply to anyone required to assist the Agencies, such as telecommunications companies, or to human sources or agents acting at the Agencies’ request or direction.

86. The legislation should provide that no person should be subject to criminal liability for acts carried out in good faith and in a reasonable manner that are necessary to give effect to a tier 1 or tier 2 authorisation.

87. Employees of the Agencies should also have immunity from criminal liability for acts carried out in good faith, in a reasonable manner and in accordance with the purposes of the Act to obtain a tier 1 or tier 2 authorisation.

88. The immunities for employees of the Agencies should also extend to any relevant minor offences or infringements that may need to be committed in the course of investigations carried out under a tier 3 authorisation (such as breaches of road user rules).

89. Employees of the Agencies and any person acting at the request or direction of the Agencies should be protected from civil liability for acts or omissions in good faith in the pursuance or intended pursuance of the Agencies’ duties, functions or powers. This is the same protection as is provided to public sector employees under the State Sector Act 1988.

90. Where the GCSB or NZSIS is assisting another agency to perform its functions, any immunities that apply to the agency being assisted should also apply to the GCSB and/or NZSIS.

 

Readers can form their own conclusions about what these recommendations imply. But here are some thoughts. It appears that undercover operations conducted by the SIS (and to a lesser extent the GCSB) do not have specific legal cover as things currently stand. There are no provisions in the SIS or GCSB Acts that explicitly refer to a legal framework under which otherwise criminal acts undertaken by undercover intelligence agents may occur. That means, in effect, that until now undercover intelligence operations are essentially illegal except for the fact that they are conducted by agents of the State at its behest under exceptions to existing legislation (outside of the GCSB and SIS Acts or even the State Sector Act). But even then there is apparently nothing in the law that explicitly authorises undercover intelligence operations that otherwise would be criminal acts (say, burglary, forgery or credit fraud). Yet the recommendations speak directly to such acts so clearly they have been happening.

The problem is not just that SIS agents have no specific legal cover for what they do covertly, something that individually places them at considerable risk in the event that they are caught or detected. There also are no specific provisions on what they cannot do. Where is the line drawn as to what is permissible when acting as an undercover agent of the State. Murder? Arson? Extortion? Blackmail? Kidnapping? Credit card fraud? Money laundering? Burglary? Home invasions? Tail-gating? (I include this because recommendation 88 specifically mentions breaches of road user rules). If an agent is recklessly tail-gating a surveillance target and wrecks while doing so, killing or injuring passerby, is that agent immune from prosecution or liability because s/he was in the service of the State?

These questions are not frivolous. From my personal experience, I know that among other things covert or undercover agents are taught how to pick locks and conduct “traceless” break-ins and burglaries (they are even provided with the tools to do so). Cyber-hacking to install malware or to steal sensitive information is a stock in trade of signals intelligence agencies. Clandestine surveillance of all sorts is the bread and butter of most human intelligence agencies. The CIA has its own lethal drone program and paramilitary branch, as do several other spy agencies. The Mossad is, among many other things, a brutally efficient assassination machine. So where does one draw the line when it comes to otherwise criminal acts carried out by intelligence agents of the NZ state?

The recommendations repeatedly speak about acting in “good faith.” But how is “good faith” defined? The SIS agents who broke into activist Aziz Chowdry’s home in 1996 were probably acting in “good faith” when they committed what otherwise would be a crime, but how is it that stealing documents from activists is justified on national security grounds? Moreover, the person who caught the SIS agents in the act of breaking and entering, David Small, had his home raided, ostensibly to search for bomb-making materials, by the Police a week later, after making the initial complaint (he was able to record the SIS get away car’s registration plate number, which was traced back to an SIS front company). How was the raid on Dr. Small done in “good faith” and at whose behest? The government was eventually forced to settle with Mr. Chowdry for a six figure amount and, worse yet, forced to apologise to him for the break in (you can read a summary of the case here).

Dr. Small also received compensation for “unreasonable search.” If we accept that an apology implies recognition of wrong doing and that “unreasonable searches” may be part of the SIS repertoire, then how and where does “good faith” come into the picture? Add to that events such as SIS break-ins at Auckland University in the late 1990s (if I am not mistaken Jane Kelsey’s office was a target), and one gets the idea that the SIS engages in otherwise illegal acts not so much for national security reasons but because it simply can under a de facto “good faith” immunity clause. So the effect of the current recommendations would be to codify what is already informal usage and practice.

The issue of “good faith” extends beyond New Zealand’s borders. Inspector General of Intelligence and Security Cheryl Gwyn is currently investigating whether the SIS was complicit in the CIA extraordinary rendition and black site program. For those unaware of these, the program involved kidnapping or detaining suspected Islamic extremists and “rendering” them to clandestine detention centres in a number of countries (Poland, Thailand and Egypt, among others). There they were subject to euphemistically labeled “enhanced” interrogation techniques (some of which are more properly classified as torture). Although some of those “rendered” by this program turned up in Guantanamo Bay or in prisons operated by US allies, many others have never been seen again. All of this was conducted off the books and outside of legal guarantees or protections for the detainees.

Assuming that Ms. Gwyn does find that in fact the SIS knew about or was complicit in the extraordinary rendition/black site program in contravention of NZ commitments to international conventions against torture and arbitrary detention, can the SIS turn around and claim that it was doing so in “good faith?” Is “good faith” nothing more than a get out of jail card for the intelligence services?

The bottom line is two-fold. First, undercover intelligence operations to date have been conducted under very porous and somewhat dubious legal cover that allows a multitude of operational sins to occur under what seems to be a wink and nod agreement with other agencies such as the police and Crown.

Secondly, the recommendations in the report about legal cover for undercover intelligence operations are very vague and broad, which allows the possibility for agents to go “rogue” so long as they can claim that they are acting in “good faith.” Neither is acceptable in a liberal democracy.

I agree that a comprehensive legal framework is needed governing the circumstances and permissible activities conducted during undercover intelligence operations. But this framework has to specify as much what is not permissible as what is, and has to ensure clear lines of responsibility as well as authorisation before and during the conduct of said operations. Otherwise we run the risk of allowing State-sanctioned criminal enterprise to masquerade as intelligence gathering.

Questions of the day.

datePosted on 13:46, March 10th, 2016 by Pablo

It seems that a fair share of people are concerned about the Intelligence Review Committee’s recommendation that the GCSB be allowed to spy on the private communications of NZ citizens and residents, most often with a warrant adhering to a three tiered process that requires the signature of the Attorney General and Judicial Commissioner for the most intrusive searches of private individual’s communications and, under highly exceptional circumstances (involving the combination of imminent threat and the need for immediate real time information), accessing private individual’s communications without a warrant.

This essentially codifies what is already being done in practice under the GCSB’s “assist” role whereby it can offer its technological capabilities under warrant to other government agencies when asked and can engage in warrantless spying on NZ citizens and residents if they reside abroad or work for or are associated with foreign-based entities like NGO’s, IO’s embassies, corporations, charities and CSO’s. Remember: this is targeted eavesdropping and signals intercepts, not mass (meta-) data collection or mass surveillance. The argument goes, and I tend to agree in part with it, that the NZ threat environment has become increasingly “glocal” or “intermestic,” meaning that the boundaries between global or international affairs and domestic and local concerns are increasingly blurred thanks to advances in telecommunications, transportation and economic transaction. Hence the need for targeted GCSB involvement in matters of domestic espionage when warranted.

In any event my first question is this: why, if people are concerned about the publicly-debated legal extension of the GCSB’s de facto “assist” role, are they not concerned about the use of military assets (specifically, the deployment of light armoured vehicles, a helicopter and troops) to assist the police in the Kawerau police shooting and siege? After all, the use in a police operation of combat designed equipment and soldiers trained and equipped  for external combat would seem to be stretching the proper, legally defined role of the NZDF even if we consider its civil defense responsibilities (which, if I am not mistaken, would only apply to armed intervention in instances of civil war or insurrectionist  (read: Maori) upheaval). Should there not be a clear separation of NZDF missions and police matters delineated in law? Pardon my ignorance, but is there? Is there a legally outlined “assist” role for the NZDF in armed confrontations like this latest incident and the Napier siege of a few years ago? Or is the operational relationship between the NZDF and Police more ad hoc, informal and circumstantial in nature?

Then there is the suggestion by Michael Cullen that future Intelligence Reviews could consider merging the GCSB and SIS. This would be akin to merging the NZDF and NZ Police. So my next question is: would we ever consider merging the NZDF and Police? If not, why would we consider merging a signals intelligence collection agency with a human intelligence collection agency?

There is more to ask. Most of what the GCSB does is foreign intelligence collection on behalf of the 5 eyes network. The domestic side of its targeted spying is relatively small in comparison and again, done in service of or in concert with domestic agencies such as the SIS and Police, most often under warrant or given the exceptions listed above. Otherwise and for all intents and purposes, the GCSB is a branch of the 5 Eyes on NZ soil, not a fully independent or autonomous NZ spy agency. Think of the amount of money that the GCSB receives from 5 Eyes, amounts that are believed to be well in excess of its NZ government-provided budgetary allocations (the exact figures are classified so are what is known as “black” allocations under he “reciprocity agreement” that binds the GCSB to the rest of the 5 Eyes partners). Think of the highly sensitive technologies it employs. When the GCSB was first established, was the equipment and personnel used completely Kiwi in nature? Is the equipment used today completely Kiwi in nature and are the people manning the listening posts at Waihopai and Tangimoana today all NZ citizens?

Given the network resources at its disposal, were the GCSB to merge with the SIS it is possible that the latter would be subject to institutional “capture” by the former. That would mean that the intelligence priorities and requirements of 5 Eyes could come to dominate the human intelligence priorities of the SIS. I am not sure that is a good thing. And if we consider that the separation of powers concept that is at the core of democratic practice should institutionally extend beyond the tripartite structure at the apex of the state apparatus (executive, legislature, judiciary), then centralising the most intrusive spying powers of the state in one agency answerable almost exclusively to the executive branch seems to be antithetical to that premise.

It could  be the case that the possibility of a merger is being floated so that the SIS and GCSB can concentrate on external espionage and counter-espionage, with the domestic intelligence function reverting wholly to the police (who already have their own intelligence units). But even then the GCSB will continue to have a role in domestic signals collection, so the result of the merger would mainly impact the focus and organisation of the SIS.

I was fortunate to have a private audience with the Review Committee. From what I have read in the report so far, much of what I recommended was ignored. Even so, I do believe that the committee tried to balance civil liberties with security requirements and take what is a hodgepodge of disparate intelligence legislation and craft a uniform legal framework in which the iNZ intelligence community can conduct its operations. Heck, they even have recommendations about the legal cover given to undercover agents, both in terms of the process of assuming false identities as well as in terms of their immunity from liability when discharging their undercover tasks (apparently no such legal cover exists at the moment or is patchy at best).

Although I was disappointed that much of what I recommended to the committee did not appear in the final report, I am satisfied that their recommendations are a step forward in terms of transparency, accountability and oversight. I realise that this sentiment is not shared by many observers (for example, Nicky Hager was scathing in his appraisal of the report), but to them the questions I posed above are worth considering. To wit: If you are comfortable with the military getting involved in domestic law enforcement in exceptional (yet apparently regular) circumstances, then what is the problem with the GCSB getting more publicly involved in domestic espionage in similar circumstances?

There is much more to discuss about the Report and I may well do so as I wade through it. For the moment, here is a good critical appraisal worth reading.

 

Seditious stupidity.

datePosted on 07:58, February 23rd, 2016 by Pablo

To state the obvious, things have gotten pretty crazy in the US this election year. The GOP presidential campaign is a clown car driven by Donald Trump that has a trunk full of gun worshiping liars, opportunists, neophytes, xenophobes, war mongerers, ignoramuses and bigots (except, perhaps, Kasich). The GOP Senate majority are threatening to not even hold hearings on the replacement for the recently deceased and unlamented Antonin Scalia, he of the view that corporations are citizens and contraception is bad because sperm is precious. But to get a real sense of how bonkers the right side of the US political table has become one need go no further than this. I urge readers to peruse the comment thread and other posts on that site in order to get a full idea of the lunacy at play. My favourite comment from that particular thread is that Obama has removed US flags from the White House and replaced them with “Muslim Curtains” (presumably to match the prayer rugs he has installed), but there is much more in that vein. More recently I watched an interview with a white middle aged woman at a confederate flag rally in South Carolina the day before the GOP primary held there. Her answer as to why she was voting for Trump is mint: She is voting for him, she said, “because he is a self-made man and he says why I think.”  Ah, to be a fly on the wall at her dinner table conversations…the stupid must be very strong there.

Views such as those espoused by that woman and on that reactionary thread would be laughable except for the fact that a) about 15-20 percent of US citizens apparently hold them; and b) the GOP controls both chambers in Congress and believes that catering to the lunatic base can win them the presidential election. After all, as Trump himself has said in the past, Republican voters tend to be stupid so that is the party to affiliate with if one wants to hold elective office. The fear and paranoia of the stupid and deranged is palpable–and politically bankable.

The real trouble, though, is that not only is this voting minority stupid or crazy, but they are also seditious, as are their representatives in Congress.

Longer term readers may recall my writing in 2009 about the disloyal opposition in the US. The bottom line is that disloyal oppositions in democracies are those that focus on thwarting anything the government does in order to bring about its collapse. This is what happened to  Allende in Chile and if Senate Leader Mitch McConnell (R-KY) had his way, this would have been the fate of Obama during his first four years in office (McConnell famously said after Obama’s election that it was his duty to see that Obama become a one term president). From then until today, both Senate and House Republicans have engaged in a pattern of systematic “obstructionism” (as the Democrats quaintly call it) in an effort to stymie every policy initiative advanced by the White House. Fortunately, they have largely failed, although the cost in terms of political gridlock, brinkmanship and federal government closures has been high.

The stupid is also strong in the Republican National Committee, which got suckered into allowing Trump to run for president under the GOP banner even though he had only recently joined the party (in 2009) and had a history of non-conservative views on matters of social policy such as abortion (he was openly pro-choice until 2011). The RNC thought that it could bring Trump to heel and instead what they now have is a rogue candidate who has pulled the entire campaign into tea bagger land and who can win the nomination outright or force a brokered convention in which his ideas on matter of policy will become part of the nominee’s platform even if he is not that person. Worse yet, his candidacy could well irretrievably fracture the GOP into establishment and tea bagger camps, leading to either a split and emergence of a third rightwing party or the destruction of the GOP as a viable political organisation for years to come.

So not only are a significant minority of US voters patently stupid or crazy, but a fair bunch of the GOP representatives are as well if we accept that the definition of stupidity or insanity is doing the same unsuccessful or desperate thing over and over again. But there is something more sinister at play as well, and that is the seditious nature of the disloyal opposition mustered by the GOP, its media accomplices and the variegated assortment of nut cases who are the target of their appeals.

Broadly defined, sedition is any act that encourages rebellion or undermines the lawful authority of a State. That includes any action that foments discontent, disorder or which incites resistance, revolt or subversion against duly constituted authority or government. Although the concept is broad and has been the subject to a number of interpretations (the general rule being that it is more broadly defined in authoritarian states and more narrowly defined in democratic states), in the US sedition is  rather narrowly defined (as “seditious conspiracy’) and sits with treason and subversive actives in 18 US Code Chapter 115.

The reason why the actions of the rightwing disloyal media and GOP opposition are seditious is that they actively encourage resistance to the lawful authority of the Obama administration and federal agencies charged with enforcing laws under it, and actively conspire to undermine the Obama administration at every opportunity. This can range from acts such as the occupation of an Oregon national bird sanctuary by armed militiamen (covered explicitly in 18 US section 2384 on seditious conspiracy, which includes “by force to seize, take, or possess any property of the United States contrary to the authority thereof,” punishable by jail terms of 10-20 years), to refusing to hold Senate hearings on judicial nominees in a timely fashion as the Constitution prescribes.

The gamut between the two poles runs wide, as evidenced in the lunatic thread linked above, but the intention of those engaged in all of these acts of disloyal opposition are clearly seditious in nature. Add to that the regular interpretative abuse of the 2nd amendment by the NRA, gun manufacturers and gun fetishists, and the tilt towards armed defiance is near complete (and in some cases has been completed, as the Oregon standoff and conclusion demonstrates). No wonder that the federal government has moved carefully when dealing with armed rightwing groups since Waco and Ruby Ridge, less the seditious narrative become a self-fulfilling prophecy.

For all the insanity now on display, the real craziness will begin after November’s election. If Hillary or The Bern wins, it is very possible that rightwing seditious speech will turn into actual seditious conspiracy, aided and abetted by conservative media and politicians. The threat of violence cannot be discounted. On the other hand, if Trump or Cruz win, there is the real possibility of protests, demonstrations and even riots in many areas in which those targeted and scapegoated by these candidates are located. They may not be the fully auto, full metal jacket resistance of the right-wingers, but these protests are bound to be (low level if wide scale) violent as well. So the real action will begin after the election, barring the possibility that Kasich or Rubio win the nomination and presidency (in which case most Democratic supporters are likely to adopt a “wait and see” attitude). My hunch is that things will get ugly come Inauguration Day.

Whatever the outcome I am glad for one thing: better than I watch events unfold from here rather than there.

Fiji’s strategic pivot.

datePosted on 15:13, January 27th, 2016 by Pablo

Last week Fiji took delivery of a shipment of Russian weapons that were “donated” by Russia pursuant to a bilateral Memorandum of Understanding (MOU) signed in February 2015. The Fijians say that the weapons are needed by Fijian peacekeepers in places like the Middle East because what they currently have in their inventory is obsolete. The shipment includes small arms (squad) weapons, two trucks, tear gas, other non-lethal munitions and possibly one or more helicopters. The shipment will formally be unveiled in February in front of a Russian delegation that will include military trainers who will remain in Fiji to instruct Fijian military personnel in their proper usage.

Fijian opposition figures believe that the shipment is illegal because it was not approved by Parliament and that it could be used against domestic opponents of the current, military-backed government. Let me briefly outline the issues.

The shipment is perfectly legal as it is not part of a Treaty that needs parliamentary ratification. Plus, it is a “donation” of military aid so it does not need parliamentary approval.

The opposition is correct to be concerned about the “dual use” potential of the weapons. Squad weapons, tear gas and non-lethal munitions can be used in peacekeeping but can also be used as instruments of crowd control at home. Given the Fijian Military Forces history, that is a very real possibility.

The arms shipment could trigger an arms race with Tonga, which also has a military and is a rival of Fiji. The Tongans are not likely to view the shipment kindly even if it does not specifically include naval equipment. Squad weapons can and are used by navies as a matter of routine, and the introduction of military helicopters into a regional rivalry is bound to cause alarm in the Kingdom.

Although Fijian military inventories may well be obsolete (meaning Vietnam era US weapons), most UN peacekeeping missions are armed by the UN using NATO-standard equipment. That includes small arms and troop carriers used in “blue helmet” operations.  Thus the claim that the Russian arms are needed for peacekeeping is debatable at best.

The MOU with Russia also outlines military educational exchanges. These follow on a similar program with the Chinese military (PLA). The Chinese also have funded and undertaken numerous infrastructure projects such as port dredging and road building that have a parallel “dual use” potential: they can be used for civilian and military purposes alike.

Given the above, it is reasonable to speculate that the Chinese and/or Russians may receive forward basing rights in Fiji in the not to distant future. Under the “Looking North” policy Fiji has clearly pivoted away from its traditional Western patrons (Australia, NZ and the US) and towards others that are less concerned about the status of Fijian democracy (such as it is, and it is not very much). Given these weapons transfers plus bilateral military education and training exercises with China and Russia, the path is cleared for the two countries to use Fiji as a means of projecting (especially maritime) power in the South Pacific. The Chinese are already doing so, with Chinese naval ships doing regular ports of call in Suva. After years of neglect, the Russian Pacific fleet has resumed long-range patrols. So the stage is set for a deepening of military ties with a basing agreement for one or both.

The Chinese and Russians are enjoying some of their best bilateral relations in decades. It is therefore possible that they may be working in coordinated, cooperative or complementary fashion when it comes to their overtures to the Fijians. Both seek tourism opportunities as well as preferential access to fisheries in and around Fijian territorial waters, so their non-military interests converge in that regard, which may limit the regional competition between them.

It is clear that post-election Fiji has moved from a “guarded” democracy in which the military acts as a check on civilian government to a soft authoritarian regime in which the executive branch supersedes and subordinates the legislature and judiciary with military connivance. Instead of going from a “hard” dictatorship to a “hard” democracy, Fiji has moved  from a “hard” dictatorship to a “soft” one (for those who know Spanish and the regime transitions literature, the move was from a “dictadura” to a “dictablanda” rather than to a “democradura”).

Some of this is by constitutional design (since the military bureaucratic regime dictated the current constitution prior to the 2014 elections), while other aspects of the slide back towards dictatorship are de facto rather than de jure (such as the speakers’ order to reduce the amount of days parliament can sit. The speaker is a member of the ruling party yet holds a position that is supposed to be apolitical). Then there are the strict restrictions on press freedom and freedom of political participation to consider. Attacks on the Methodist Church, arrests of civil society activists and claims of coup plotting by expats and local associates contribute to concerns about the state of governmental affairs. Add to that the fact that the first Police Commissioner after the election resigned after military interference in his investigation of police officers implicated in torture, and then was replaced by a military officer (against constitutional guarantees of police and military independence) while the policemen were given military commissions (which insulated them from prosecution thanks to provisions in the 2014 constitution), and one gets the sense that Fiji is now a democracy in name only.

None of this bothers the Russians or the Chinese, both of whom resisted the imposition of sanctions on Fiji after the 2006 coup (to include vetoing UN Security Council resolutions barring Fiji from peacekeeping operations).

All in all, the outlook is two-fold, with one trend a continuation and the other one new. Fiji is once again becoming authoritarian in governance, this time under electoral guise and a facade of constitutionalism. In parallel it has decisively turned away from the West when it comes to its diplomatic and military alignments. This turn is a direct result of the failed sanctions regime imposed on Fiji after the 2006 coup, which was too porous and too shallow to have the impact on Fiji that was hoped for at the time of imposition. The result is a greatly diminished diplomatic influence and leverage on the part of Australia, New Zealand and (to a lesser extent) the US and the rise of China, India and Russia as Fiji’s major diplomatic interlocutors. Factor in Fiji’s disdain for the Pacific Island Forum (PIF) and its continued attempt to fashion the Melanesian Spearhead Group (MSG) as a counter to it, and the makings of a regional transitional moment are clear.

The sum result of this is that the strategic balance in the South Pacific is clearly in flux. Given the US “pivot” to Asia and the reassertion of its security ties with Australia and New Zealand, that is bound to result in increased diplomatic tensions and gamesmanship in the Western Pacific in the years to come.

The US has asked New Zealand to provide special operations troops to the anti-Daesh coalition. The government has said that it will consider the request but both the Prime Minister and the Defence Minister have qualified the response by stating that they do not think that NZ will increase its contribution beyond the company sized infantry training complement currently deployed at Camp Taji outside of Baghdad.

The Ministers’ caution has more to do with domestic political concerns than the practical or diplomatic necessities of the conflict itself. With a thin majority thanks to Winston Peter’s by-election victory in Northland, National cannot risk parliamentary defeat on the issue. But Opposition leader Andrew Little has signaled that Labour is willing to consider sending SAS troops to the fight, so the ground is clearing for authorization of a new phase of the NZDF mission.

This was predictable from the moment the NZDF first deployed to Iraq last May. It was clear then and it is now that training Iraqi soldiers is not enough to turn the tide against Daesh. The training is good and the troops that graduate have improved professional skills, but according to a report prepared by the US Defense Department immediately before Mr. Key travelled to Taji in October for his meet-and-greet photo op with the troops, they were no better in battle than they were before the training mission began.

The problem lies with the Iraqi Army leadership. Iraqi field rank officers are not included in the training program and are unwilling or unable to demonstrate the type of leadership skills under fire that are required to make best use of the training received by their soldiers from the NZDF and its allies.

That is where special operations troops like the NZSAS are useful. Among many other roles they serve as leadership advisors on the battlefield. Because of their exceptional skills and hardened discipline, SAS teams serve as force multipliers by adding tactical acumen, physical resilience and steadfastness of purpose to the fight. They lead by example.

NZ’s major allies already have special operations troops on the ground in Iraq, Libya and Syria. Although all of the nationally-badged SAS units roam the region, the Australian SAS is heavily involved in Iraq (and is present at Camp Taji). Not only do Australian SAS troops serve as forward spotters for RAAF FA-18s undertaking ground attack missions in Iraq. They have fought alongside Iraqi troops attempting to re-take the city of Ramadi, provincial capital of the Sunni heartland that is Anbar Province (119 kilometers from Camp Taji and 90 kilometres from Baghdad). The Australian role is considered to have been essential in the initial re-occupation of Ramadi, in which NZDF trained Iraqi troops participated. US, UK and Canadian special operators are currently conducting advisory, forward targeting, search and destroy and long-range intelligence missions against Daesh in north and western Iraq in conjunction with Kurdish and Iraqi forces. Russian, Iranian and Turkish special operators are on the ground in Iraq and Syria as well, and the contested spaces in which Western special forces are now actively involved in the Middle East extends to Libya, Saharan and Sub-Saharan Africa.

The Anglophone special forces are the allies that the NZSAS trains with regularly and works the closest with when on foreign missions. Like its counterparts, NZSAS tend to spend much time in or near overseas conflict zones whether that is publicized or not, usually following the typical military rotation pattern of threes: a third overseas, a third preparing for deployment, and a third on home duty after deployment. It is fair to assume that their attention when overseas has recently been focused on Iraq, Syria and perhaps other conflict zones in the Middle East.

The PM has hinted as much, stating that the NZSAS could be involved in roles other than combat. Since one of its primary missions is long-range patrol and intelligence gathering (rather than active engagement of the enemy), it could well be that the NZSAS is already playing a part in the targeting of Daesh assets.

With around 130 SAS troops in A and B Squadrons (Air, Boat, Mountain), that leaves a minimum of two troops’ or a platoon sized group (30-40 soldiers excluding officers) available for foreign deployment at any given time. Since the NZSAS operates in squads of 3 to 6 men depending on the nature of the mission (4-5 squads per troop), this leaves plenty of room for tactical flexibility, operational decentralization and role diversification.

Reports dating back to early 2015 already put the NZSAS in theater in small numbers, something the government does not deny. They may not be based in Iraq (which gives the government plausible deniability when asked if there are NZSAS troops on the ground in Iraq), but the main focus of their mission certainly is. Given the logistics involved it would be unusual if the NZSAS has not been working behind the scenes for their eventual participation in more active combat roles beyond what it may already be engaged in.

It will be odd if NZ refuses to send its most elite soldiers when asked for them by its major allies in a UN sanctioned multinational military coalition. Troops like the NZSAS need regular combat experience to sharpen and maintain their skills and they cannot do that at home. Since part of their specialness is versatility in a wide range of combat environments, the NZSAS would be keen to test its troops in the mixed urban/desert, conventional and unconventional battlefields of Iraq, Libya and Syria. The kinetic environment in the fight against Daesh is highly complex and multi-faceted so it stands to reason that our elite soldiers would want exposure to it.

Leaving the NZSAS in NZ is akin to leaving a Bugatti in the garage. Much has been invested in their combat readiness. They are trained to fight autonomously and lead others in combat (such as during the anti-terrorist mission in Afghanistan). To keep their specialist skills they need to experience live hostile fire. It would therefore be counterproductive for them to be idling in Papakura when there is a just cause to be fought against real enemies of humanity who commit atrocities and wreak misery on those they subjugate.

Whether one likes it or not, thanks to the Wellington and Washington Agreements NZ is once again a first tier military partner of the US, standing alongside Australia, Canada and the UK in that regard. Most of NZ’s major diplomatic partners are members of the anti-Daesh coalition and some, like Norway and Denmark, have also contributed special operations troops to it. NZ ‘s major trade partners in the Middle East are part of the coalition. As a temporary member of the UN Security Council, NZ has been vocal in its condemnation of Daesh and in calling for a united diplomatic and military response against it. It consequently has no real option but to accede to the request for the NZSAS to join the fight. It may be mission creep but this was mission creep that was foreseeable (and arguably has been planned for and implemented in spite of the government’s obfuscations).

Critics will say that NZ has no dog in this fight, that it is neo-imperialist foreign intervention on behest of corporate interests that only serves to show how subservient governments like National’s are when it comes to pleasing the US. If so, then there are 59 other countries in that category, to which can be added Iran (and its proxies in Iraq, Syria and Lebanon), Russia and the newly formed (if at this stage only on paper) Sunni Muslim anti-terrorism coalition that includes Malaysia, Indonesia and Pakistan. Critics will also point out that NZ is being selective about when and where it chooses to join foreign military adventures, and they would be right in that regard. But given its military resources, NZ pretty much has to be selective every time that it deploys troops, especially in combat roles. So there is nothing new, unusual or unethical in doing so.

Pacifists will say that the conflict with Daesh cannot be resolved by military means. It is true that military force alone is not sufficient to defeat Daesh, but removing it from the territory it occupies in Iraq, Libya and Syria is essential to that project. Not only is Daesh not prone to negotiating with its adversaries or sitting down with those that it disagrees with in order to settle differences. The very nature of its rule is based on coercion and imposition–of its puritanical values, of its medieval authority, of its rape and sex slave culture and of its harsh discriminatory treatment towards all who are not Sunni Arab men (and even the latter are not immune from its violence). Its removal is therefore justified on humanitarian grounds although disputed opinion polls claim that it enjoys some measure of public support in Anbar Province and Mosul. Yet even if the polls are correct–and that is very much questionable given the environment in which they are conducted–the hard fact is that there is no objective measure to gauge whether Daesh enjoys the informed consent of those that it governs, and until it does its reign is illegitimate because rule without majority consent is tyranny. Add to that the innumerable crimes against humanity Daesh has committed and its exportation and exhortation of terrorism across the globe, and the case against the use of force loses foundation.

Re-taking the ground lost to Daesh removes the main areas in which its leadership is located, from which it profits from oil production and where it trains jihadists from all over the world (some of whom return to commit acts of violence in their home countries). That in turn will lessen its appeal to prospective recruits. Thus the first step in rolling back Daesh as a international irregular warfare actor is to win the war of territorial re-occupation in the greater Levant.

The military objective in Iraq is to push Daesh out of Anbar Province and the Nineveh Governorate in which Mosul is located and force it to retreat back into Syria. At that point it can be subjected to a pincer movement in which the European/Arab/Antipodean/North American anti-Daesh coalition presses from the South and East while Russian, Iranian, Turkish and Syrian forces press from the North and West. The endgame will involve four milestones: first the capture of Ramadi, then the re-taking of Falluja, followed by the freeing of Mosul, and finally the seizure of the northern Syrian city of al-Raqqah, the capital of Daesh’s self-proclaimed caliphate.

Arab states will need to contribute more to the fight, including ground forces. Resolving the impasse over what to do with Assad is critical to establishing a united front between his military, Russia’s, Iran’s, Turkey and the anti-Daesh coalition. Both requirements are fraught and need to be the subject of delicate negotiations made all the more complicated by the Saudi-Iranian confrontation occasioned by the Saudi execution of a Shiia cleric. But for the negotiations to advance, much less to succeed, there needs to be battlefield gains against Daesh in Iraq that reverse its march towards Baghdad and which break the strategic stalemate currently in place. Once the prospect of victory over Daesh becomes possible, more countries will feel comfortable putting additional resources into the campaign against it.

There is room to be optimistic in that regard. In 2015 Daesh lost approximately 30-40 percent (+/- 5000 square miles) of the territory that it controlled in Iraq and Syria. Most of these losses were to Kurdish Peshmerga forces working in concert with Western special operations units. Significantly aided by its coalition partners and tribal militias, the Iraq Army has re-taken Tikrit (November) and the oil refinery town of Baiji (October) and is in the process of clearing the last pockets of Daesh resistance in Ramadi. Preparations for the re-taking of Falluja are well underway, and the battle for Mosul–Daesh’s biggest conquest in Iraq–is scheduled to begin within months. Key Daesh supply lines between Iraq and Syria are under near-constant aerial attack. In sum, the tide of Deash victories may not have completely turned but it does appear to have ebbed.

John Key does not do anything out of moral or ethical conviction, much less altruism. Instead he relies on polling and self-interest to drive policy. His polling may be telling him that it is getting politically less difficult to sell the NZSAS deployment to domestic audiences. But even if not, he has in the past ignored public opinion when it suits him (e.g. asset sales and the TPPA). With Labour warming to the idea of an NZSAS deployment, his political risk is reduced considerably regardless of public opinion. It is therefore likely that, weasel words notwithstanding, the train has been set in motion for that to occur.

Once the deployment is announced it is likely that the NZ public will support the decision and wish the troops Godspeed and success in fulfilling their mission. But even if the majority do not, the diplomatic and military pressure to contribute more to the war effort against Daesh will be enough to convince the government that it is in NZ’s best interests to agree to the request. In a non-election year and with Labour support it is also a politically safe thing to do.

What is certain is that the mission will be very dangerous for the troops involved. It will raise NZ’s target profile amongst Islamicists and could invite attack at home. But given the position NZ finds itself in, it is a necessary and ultimately justified thing to do for several reasons, not the least of which is upholding NZ’s reputation as an international actor.

A short version of this essay appears in the New Zealand Herald, January 7, 2016 (the comments are quite entertaining).

The Impunity Files, Police Edition: Trolling for Rawshark.

datePosted on 08:37, December 15th, 2015 by Pablo

By now it is well known that in their effort to find the source of the information upon which Nicky Hager’s book Dirty Politics was based, the NZ Police searched and seized computers, phones and personal records from Mr. Hager’s home. They also intimidated Mr. Hager’s daughter (who was home at the time) by forcing her to dress in front of an officer and relinquish her personal computer. In addition, they asked a number of service providers to give them access to Mr. Hager’s personal details without a warrant or production order. Most of the service providers refused or asked for a warrant but at least one, the financial corporation Westpac, gave up eight month’s worth of Mr. Hager’s transaction records without asking the Police for a legal instrument compelling them to do so.

News of this caused a brief furore amongst civil libertarians, privacy advocates, some journalists and a few business people. But as with much that the Police does that is borderline in terms of legality, the issue soon dropped from the public eye. Few if any follow ups have been published and for all intents and purposes the Police have emerged unscathed from yet another episode of operating with impunity and contempt for the law.

I have had opportunity to review Police documentation regarding the case released under Discovery (79 pages in total). Readers are invited to read the full dossier released by the High Court over at Scoop, which also has an interesting newspaper story detailing the genesis of the investigation into Mr. Hager.

Much in the Police documents is redacted but there is plenty to consider nevertheless. In the spirit of public interest journalism (although I am not a journalist by training, inclination or employment), I have decided to add a bit more to the public domain on this case. As it turns out, the Police did more than ask various service providers to give them access to Mr. Hager’s private information, and they got things rolling just before and then accelerated  the investigation very quickly after a complaint was laid about the source of the material from which Dirty Politics was constructed (the infamous or heroic hacker known as Rawshark, depending on how you view things).

On August 22, 2014, amid the sequels to the publication of Dirty Politics and the speculation as to the identity of the hacker who accessed the information from a notorious right-wing blogger that detailed his unsavoury connections to government officials and corporate interests, Rawshark tweeted what most observers saw as a satirical or diversionary tweet saying that s/he was on vacation in Vanuatu. Rather than take it with a grain of salt, and after the blogger formally complained on August 25, 2014, the NZ Police fired up their investigative resources and on September 18, 2014 a detective constable by the name of Rachelle (I shall leave her last name out), who was assigned to the case by a superior named Simon (again, I shall leave his surname out for the moment), telephoned Immigration New Zealand (INZ) for information on all NZ residents and citizens who had traveled to Vanuatu around that time.

I should note that this very same detective Simon was the police officer who made the “enquiry” of Westpac about Mr. Hager’s financial details on September 24, 2014. In the days that followed the Police were able to obtain detailed information on Mr. Hager’s property holdings from Wellington City Council as well as full details of his Westpac bank accounts and credit cards. Although some of this information was available through the Council web site, on at least one occasion detective constable Rachelle was able to obtain information directly from the Council without a warrant or production order (this information is available on pages 25-26  of the Discovery documents that I have read. (KEB Vol 4 Part 1C file pages 1468-69).

One has to wonder what relevance Mr. Hager’s property valuations and rate payments have with regard to the search for Rawshark. If the figures were obtained for a future asset seizure in the event Mr. Hager is found guilty of a crime, we have to remember that he has not been charged, much less convicted of any such thing. A search for aspects of his worth with an eye to future seizure implies a presumption of guilt on the  part of the Police before any charges have been laid against Mr. Hager. To say the least, that is a perversion of natural justice.

During the September 18, 2014 conversation with detective constable Rachelle, a female senior INZ officer replied that it would be difficult to compile a list of all New Zealanders who traveled to Vanuatu during the referenced time period because INZ only had data on those who traveled directly to Vanuatu from NZ and did not hold information on those who may have stopped off elsewhere (such as Fiji) on their way to the holiday destination. She sent the Police an OIA form to fill out (which was completed and returned that day) in order to assist the INZ side of the investigation. A day later, on September 19, 2014, she emailed detective constable Rachelle and wrote that there was nothing more that INZ could do “on their end” and suggested that the Police “might want to try Customs.”

That was a good tip.  Detective constable Rachelle noted then that she would speak to someone at Customs who was working on organised crime to find out the best source for that information. On September 23, 2014, after approaching NZ Customs, the NZ Police received from them spreadsheets containing the names of 2500 NZ citizens or residents who travelled directly from NZ to Vanuatu in the two weeks prior and after August 22, 2014. The spreadsheets were then sent to an officer Nichola (again, no last name needs to be published at this time) “at intel to see what plan we can come with in relation to analysing this information.”

The passenger information was presumably sourced from Air Vanuatu and/or Air New Zealand, who code share the three weekly flights between Auckland and Port Villa. No warrant or production order was issued for the release of this information, and it is unclear as to who and how Air Vanuatu and/or Air New Zealand were approached, or whether they were approached directly at all. This information is detailed on pages 70-71 (KEB Vol 4 Part 1C file pages 1525-26) of the Police documents released under Discovery in the case Mr. Hager has brought against them.

It is unclear whether the Police ever came up with a plan to analyse the personal information of the 2500 NZ citizens and residents that flew to Vanuatu from NZ in the two weeks before and after August 22, 2014. What is clear is that it was done, at a minimum, in violation of the Privacy Act because the data was obtained without a warrant or production order. Moreover, it is not clear what was ultimately done with the information about the 2500 people whose details were obtained by the Police. Was it analysed? Did any of it lead to further inquiries or action? Was it stored? Was it destroyed? Was some records kept and others not? The bottom line is that this information was obtained based upon a “courtesy” request, not a lawful order, and was part of a trolling exercise that began before a complaint was laid and not as a result of specific or precise information related to the Hager investigation. Both procedurally and substantively, obtaining this travel-related data of 2500 NZ citizens and residents was unlawful.

Given that Rawshark appears to be a pretty savvy hacker who knows how to cover his/her tracks, it is arguable that any of the 2500 people whose privacy was violated by Customs and the Police (and perhaps Air Vanuatu and/or Air New Zealand) had anything to do with obtaining the material for Dirty Politics. Beyond the issue of what was done with their personal information, the question is whether they have been told by any of these agencies about their records being accessed. After all, they have nothing to fear if they have nothing to hide, so it would seem natural that the Police and/or the other entities involved in the privacy breach would let the 2500 travellers know that their private records are safe. That is important because these records could well be more than passport details and could include ticket purchase location details, credit card information etc. At this point we do not know the full extent of the Police handling of this private information, but the privacy breach is a pretty big one in any event so the duty to inform those affected is great.

Published information is that the senior officer in charge of the investigation into Rawshark is Assistant Commissioner Malcolm Burgess. It appears that Mr. Burgess was contacted by email by the rightwing blogger on August 19, 2014 and immediately assigned the matter to the National Criminal Investigation Group (see the NZ Herald article on November 14, 2015 by David Fisher). That is odd because at the time no formal complaint had been made–that did not happen until August 25, 2014. In fact, it appears that an investigative plan of action was drawn up before the blogger made his formal complaint, then quickly put into action once he did.

In any case, perhaps Mr. Burgess is a “hand’s off” manager who did not know what those under him were doing, particularly detective Simon. But it would be interesting to see how he feels about the way the information on Vanuatu travellers was accessed given that it appears to have shed no light on Rawshark’s identity and seems to have violated the Privacy Act. In other words, it looks like it was a useless and illegal fishing expedition, which should be a concern for him as the senior office in charge.

I understand the importance of chasing all leads and avenues of inquiry in criminal investigations. I understand the notion of professional courtesy amongst security agencies. I understand the utility of informal agreements between government offices. I understand that institutional cultures may see legal requirement more as a challenge rather than as an obligation. I understand that sometimes investigatory overkill in one case is needed to serve as a deterrent to others who might seek to pursue similar courses of action.

But I also know, from both my academic writing on democratic governance and my professional experience while working in security branches of the US government, that at its institutional core democracy is about self-limitation and the universal rule of law, to which can be added the bureaucratic axion “CYA.” Yet when it comes to the NZ Police in this case and others, it seems that an institutional culture of impunity far outweighs respect for the self-limitations imposed by law when it comes to decision-making on matters of policy and operations.

Perhaps the Privacy Commissioner and other civil rights groups might want to take another look into this case because it is not just Mr. Hager who has had his rights violated by the Police investigation into Rawshark’s identity (in what to my mind is more a case of journalistic intimidation rather than a legitimate investigation into criminal wrong-doing). As much as I would like to believe that the Independent Police Conduct Authority (IPCA) would seize the opportunity to examine the particulars that I have outlined, its track record suggests otherwise.

One thing is certain: there are 2500 people in NZ who got a lot more than they bargained for when they booked direct flights to Vanuatu in the middle of last year.

Threat Distortion as Fear Manipulation.

datePosted on 12:40, December 9th, 2015 by Pablo

The Directors of the GCSB (Acting) and SIS appeared before the Parliamentary Select Committee on Intelligence and Security (SCIS) to deliver their respective annual reports. Those reports include national threat assessments. I was not at the meeting but here is what I gleaned from the media coverage of the event:

Did the SIS Director focus on the hundreds of gang members who see violence as a way of life, to include sexual assaults, drug dealing, gun running, property crime and assorted acts of physical mayhem that result in death and injury and whose collective behaviour intimidate and terrorise sectors of the communities in which they inhabit?  Answer: No.

Did the SIS Director mention the dozens of white supremacists with track records of violence against minorities and who openly call for a race war and ethnic cleansing in NZ? Answer: No.

Did the SIS Director address the infiltration of transnational organised crime into NZ and its use of business fronts, corruption, extortion, and intimidation to extend its reach in NZ and beyond? Answer: No.

Did the Director comment on the presence of foreign espionage networks in NZ seeking to obtain sensitive corporate, diplomatic, political and security information. Answer: No.

Instead, according to the media coverage, the Director focused her remarks on the handful of NZ women who are believed to have left the country in order to join Daesh in Syria and Iraq. The Director was not sure if they left to marry or to fight (or both), and wondered about the effect the experience may have on them should they decide to return. That is interesting since few of the foreign women who have left to marry into or fight with Daesh return to their homelands, most being killed in conflict zones or while trying to escape the not-so-paradisical life of a Daesh concubine. The lucky few who have managed to get back to their homelands have not committed any acts of violence after their return.

Perhaps Director Kitteridge wanted to capitalise on the recent mass shooting in the US where one of the perpetrators was a so-called “jihadi bride” in order to focus public attention on the potential threat such women pose to NZ. But the woman in San Bernadino did not surreptitiously travel to a conflict zone, marry a Daesh fighter, then return to her homeland. Instead, she was a citizen of one US ally (Pakistan) and came from another (Saudi Arabia), who appears to have deliberately married a US citizen with the explicit intent of gaining entry to the US in order to carry out acts of politically motivated violence. Similarly, the woman who was an accomplice to the Paris mass murderers had never been to Syria and was unmarried. Neither is in any way comparable to NZ women marrying quickly and heading off to the Middle East.

That these women–again, less than a dozen by the Director’s own admission–chose to do so is certainly a tragedy for their families. It is also a small social problem in that it shows the depth of alienation and desperation of some women in NZ who see life with Daesh as a better alternative to life in Aotearoa. It can be considered to be a mental health issue because, to put it bluntly, one has to be a bit unhinged to think that life under Daesh in the killing grounds of al-Raqqa and elsewhere is an attractive proposition.

One thing is even clearer: it is not a pressing national security issue and should not have been the focus of the Director’s remarks or of the press coverage given to them.

So why so much attention given to the subject? Is this not public fear-manipulation via threat distortion? Was it the Director who was playing this game or was it the media doing so in their coverage of her remarks? Again, I was not there and only saw the coverage, but either way someone IS playing games when it comes to national threat assessments.

There is one more oddity about the mention of NZ “jihadi brides.” Western women who have travelled to join Daesh are known to be more likely than male foreign fighters to try and maintain contact with their families and/or friends back at home. They are known to be more likely than men to use social media applications as well as cell phones to communicate from Daesh-controlled territory (which speaks to the strategic, tactical and technological limitations of Daesh). This makes them a highly exploitable resource for intelligence agencies seeking to establish their locations, track their movements and those of their associates as well as get a sense of life under Daesh.

So why on earth would the Director jeopardize the ability of the SIS and GCSB to do so by publicly outing the fact that these women are being “monitored” as much as possible? This is especially perplexing given that these women are undoubtably included in the 30-40 people that the Director and PM have already said are being watched because of their Daesh sympathies, so there was no compelling reason to provide a gender breakdown of the approximately one in four who are female and who may have decided to travel in order to join Daesh.

A cynic would say that the comments by both Director Kitteridge and Acting GCSB Director Una Jagose were designed to prepare public sentiment for forthcoming security legislation allowing more intrusive powers of surveillance. The PM has now repeated his concerns about the “dark web” and spoken of the problems of decoding encrypted terrorist communications. So perhaps the stage is being set for that.

We must remember that the technologies involved in encryption and decryption, including the temporary “snapshot” encrypted communications that Western security authorities claim that terrorists are now using, all originate from military and intelligence agencies themselves. Thus the cycle of encryption/decryption, much like the previous cycles of code-making and code-breaking, has been well in progress for some time and will continue to be so for the foreseeable future. In this cycle it is security agencies who have the lead, not private sector application manufacturers.

In any event, jihadi brides are unlikely to be at the leading edge of this cycle so using them, however obliquely, as the foil for extending communications security legislation is a bridge too far.

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