Accusations that the NZDF may have been spying on journalist Jon Stephenson during or after he was in Afghanistan researching what turned into a series of very critical stories about the actuality of SAS operations in support of the elite Afghan counter-terrorism Crisis Response Unit (CRU) have sparked both public outrage and government backlash. Numerous media entities and civil libertarians have protested the alleged spying as an infringement on press freedom, with the story now picked up by the US press because Mr. Stephenson was working for a US based news service when the spying supposedly occurred, and the spying may have been carried out by US agencies.
It is early days yet in the development of the story, but there are numerous angles that if explored could lead to a can of worms being opened on the NZDF and NZ government as well as the US administration. More immediately, if what has been made public so far is accurate then there are some NZ-focused issues to ponder, which can be broadly divided into matters of short and long-term consequence.
The specific accusation is that NZDF obtained meta-data about Mr. Stephenson’s phone records from US intelligence sources while he was in Kabul. This meta-data included the phone numbers of those he contacted or who called him while in theater, which could be “mined” and subject to network analysis in order to create signal maps and flow charts of the patterns of communication between them as well as with Mr. Stephenson (what have been called signals meta-data “trees”).
Implicit in the original story by Nicky Hager is the possibility that the content of Mr. Stephenson’s conversations and possibly his emails were accessed by the NZDF, or at least by foreign partners who then shared that information with the NZDF.
This is the short aspect of the story. Mr. Hager believes that Mr. Stephenson was subject to an NSA signals trolling scheme akin to that done by the PRISM program, and that the NZDF may have requested that Mr. Stephenson be surveilled by the NSA as a result of Stephenson’s investigation but also because the NZDF could not spy on him directly. However, since the SIS and GCSB had officers on the ground in Kabul and shared workspace with NSA and CIA personnel, the possibility was raised that they were somehow involved in the electronic monitoring of Mr. Stephenson, either has initiators or recipients of the NSA meta-data mining of his communications.
This may or may not prove true. The government and NZDF flatly deny that any spying, whether by the NSA, GCSB or NZDF, was done on Mr. Stephenson. Mr. Hager claims to have evidence that NZDF personnel obtained Mr. Stephenson’s telephone meta-data (presumably he has at least been shown that data by the NZDF personnel who are his sources).
One of these versions is apparently false, although there may be a twist to the story that bridges the veracity gap between them.
Since Mr. Stephenson was in a declared conflict zone in which a multinational military coalition was engaged, he was inevitably subject to military intelligence collection. Military organizations and their various service branches maintain human and signals intelligence collection units that focus on tactical aspects of the conflict zone. That would, at a minimum, include canvassing local telephone and email networks for information on potential threats and contextual background. Such collection is designed to facilitate “actionable” intelligence: information that can be used to influence the political environment as well as the kinetic operations that occur within it.
It is possible that Mr. Stephenson’s phone records were collected by an ISAF military signals intelligence unit. It probably was that of a US military unit. That unit may have identified Mr. Stephenson as a New Zealander and passed his information on to one of the intelligence shops located at Bagram Air Force base or elsewhere for sharing with the NZDF as a professional courtesy and a “head’s up” on who Mr. Stephenson was involved with.
If this is true, then Mr. Hager’s NSA/PRISM/GCSB/NZDF spying scenario is wrong. However, the issue does not end there. The big questions are whether the NZDF requested that an allied military signals intelligence unit spy on Mr. Stephenson, or if not, what it did with the information about Mr. Stephenson volunteered to it by its ally.
If the latter is the case, then it is possible that the NZDF took no action because it either considered the information marginal to its intelligence concerns or improper for it to receive and use. That in turn could have led to the destruction of that meta-data after it was received.
On the other hand, if the NZDF requested said information about Mr. Stephenson from a military intelligence partner, that would make any subsequent meta-data record destruction an attempt to eliminate evidence of that request or the use to which the data-mining was put.
It should be noted that such spying in conflict zones is usual and to be expected by anyone operating with them, journalists and non-journalists alike. Moreover, it is perfectly legal as well as reasonable for the NZDF to share information with its military intelligence partners, even if it includes information about unaffiliated NZ citizens operating in conflict zones in which the NZDF is deployed. Thus it would not have been unlawful for the NZDF to obtain Mr. Stephenson’s electronic meta-data whether it initiated its collection or merely received the results.
This extends to its use of the SIS or GCSB to assist in said collection, since the SIS is empowered to spy on NZ citizens and the GCSB was working in a foreign theater in which Mr. Stephenson was working for a “foreign entity” (McClatchy New Service), therefore making him a legitimate target under the 2003 GCSB Act. Whether one or both of these agencies was involved in the spying on Mr. Stephenson, should it have occurred, the eavesdropping could legally be conducted without warrant, again owing to situational circumstance.
However, just because something is legal does not make it right. This is where the long of the story comes into play.
Mr. Hager also revealed the existence of an NZDF operations manual, apparently drafted in 2003 and revised in 2005, that included at least “certain investigative journalists” along with hackers, foreign spy agencies, ideological extremists, disloyal employees, interest groups, and criminal organizations in the category of “subversive” threats (although it remains unclear as to when that particular passage was added to the text and who authored and authorized it). The definition of subversion was stretched to include those whose activities could undermine public morale or confidence in the government and NZDF. This included “political” activities deemed inimical to the NZDF image or reputation.
Whether it was included in the original version or added some time later (perhaps very recently), that definition of subversive threats is astounding. The language used borrows directly from the lexicon of the Pinochet dictatorship and Argentine Junta. It completely ignores the concept of press freedom in a democracy, which is premised on the autonomous separation of the media and the military as institutions. It lumps in so-defined subversive threats with physical threats to operational security in the field. That makes those identified as subversives enemies rather than adversaries, which allows them to be treated accordingly.
The wording of the passage about subversive threats in this manual says more about those who drafted it and the NZDF leadership that allowed it to become doctrine than it does about any real threat posed by journalists to the NZDF or government. Being embarrassed by critical reporting is not akin to being shot at. Even if written in the fevered years immediately after 9/11, the authors of that passage (and presumably others in the manual) display an authoritarian, anti-democratic mindset that is fundamentally inimical to democratic civil-military relations and, for that matter, democratic military professionalism.
Chris Trotter has noted that the NZDF, as a military organization, is authoritarian in nature and thus inherently un-, if not anti-democratic. I respect his view but disagree to an extent. Virtually all social organizations are hierarchical in nature–families, churches, private firms, unions, schools, bureaucracies, political parties and yes, the armed forces, police and intelligence agencies. That makes the egalitarian bases of democratic political society unlike virtually all other forms of social organization.
In other words, we are socialized in a hierarchical world and it is democracy as a political form that is the unnatural outlier.
Even so, although hierarchy can and often does tend towards authoritarianism, in democracies social organizations that are hierarchically constructed bow to the egalitarian meta-logic that posits that in their political interactions they are bound by notions of mutual respect, independence, corporate autonomy and non-interference. That is, they practice at a meta-level what they do not at the macro or micro-levels: in their interactions with each other groups forgo the hierarchical disposition that characterizes their internal governance.
This is important because the NZDF field manual that Mr. Hager exposed and whose existence is now confirmed by the government displays an authoritarian mindset and operational perspective that transcends the necessary hierarchy of NZDF organization. The NZDF is not inherently authoritarian because it is hierarchical in nature, but because, if the spying allegations are correct in light of the manual’s language about threats requiring military countering, its leadership displays an authoritarian disposition when it comes to things it finds objectionable, including pesky reporters (I shall leave aside Mr. Trotter’s remarks about military allegiance to the Queen rather than government or citizenry, although I take his point as to where its loyalty is directed and the impact that has on its transparency and adherence to democratic norms).
In sum: Consider what the manual says with regards to subversive threats in light of the well-publicized NZDF attacks on Mr. Stephenson’s professional and personal integrity that resulted in the defamation trial recently concluded (attacks that could well fit within the “counter-intelligence operations” recommended in the manual). Add in the claims by Mr. Stephenson that a senior military officer uttered death threats against him (the subject of a police complaint in 2011 that was not actioned). Factor in the NZDF admission in the defamation trial that it tracked Mr. Stephenson’s movements along with the possibility that the NZDF did acquire and utilize Mr. Stephenson’s telephone communications records in a capacity other than to detect tactical threats to units in theater. Further include Mr. Hager’s findings in his book Other Peoples Wars, in which the NZDF was seen to disregard government instructions regarding its conduct in foreign theaters and collaborated extensively with US intelligence (both military and civilian) in places like Bamiyan in spite of its repeated denials that it was doing anything other than building schools and roads in that province.
The conclusion? In light of this sequence of events it is very possible that the NZDF has systematically operated in an unprofessional and anti-democratic fashion for at least a decade, and particularly with regard to Mr. Stephenson.
This is a serious matter because it gives the impression that the NZDF has gone rogue (assuming that the governments of the day were, in fact, unaware of the language in the field manual or of the alleged spying). Rectifying this institutional anomaly is important. How to do so is critical.
It is not enough to blame the previous government and retired NZDF commanders for the manual, then excise the offending passage while maintaining that no NZDF records of spying on Mr. Stephenson exist. Instead, the NZDF leadership during this time period needs to be held accountable for allowing anti-democratic attitudes and practices to take root within it and, if need be, action needs to be taken against those who authorized the language of the manual and/or the spying if it happened. Only that way can confidence in NZDF accountability and commitment to democratic principles be restored.
In order for any of this to happen, yet another inquiry needs to be launched. Given the debates about the GCSB and TICS Bills and ongoing concerns about Police and SIS behaviour, that says something about the state of New Zealand’s security community at the moment.
Posted on 15:58, July 25th, 2013 by Pablo
This weekend there will be national protests against the National government bills amending the 2003 GCSB and 2004 TICS Acts. Although the protests have garnered broad support across the political spectrum, they are likely to turn into generic rant fests against capitalism, imperialism, colonialism, and assorted other maladies rooted in the war-mongering Zionist 9/11 insider white corporate propertied Trilateralist patriarchy rather than a focused argument against the extension of the GCSB’s domestic spying powers. That is because the organizers, in Auckland at least, are the usual suspects seen at pretty much every protest, and who have agendas that supersede concerns about espionage.
The dress code will largely be black, with Vendetta masks optional.
In a way it is natural for the so-called rent a mob to take charge of the anti-GCSB protests. After all, they have the organizational capability, collective commitment and personal experience in doing such things, so who can blame them if they attach a few other grievances to the major subject of the protest? Who else can pull together major rallies on short notice, including the logistics of using public spaces, channeling marchers, making banners, supplying audio equipment and providing speakers? Most of those who have comparable skills are not exactly the types who would want to be part of such a “progressive” demonstration, and certainly would not want to be associated with the organizers of these protests (I am thinking of church and conservative groups here).
Having said that, this post is about what is likely to be a very effective National strategy for getting its proposed reforms passed in spite of the groundswell of opposition to them. It works like this:
National introduced reforms that grossly expand the GCSB’s powers of domestic espionage, using changes to the TCIS Act and the need for “infrastructure protection” as part of that new charter. It threw in some very minor cosmetic changes using the Kitteridge Report as a point of reference. It went for the overreach, proposing to allow, with cabinet approval, the GCSB to spy on behalf of agencies that have nothing to do with national security as well as conduct warrantless espionage on foreign entities and persons, to include NZ citizens employed by foreign firms and agencies (be they diplomatic missions, NGOs or private firms). It demands that telcos provide apriori backdoor access to their cable infrastructure for the purposes of both targeted and meta-data mining.
There is much more but this is the gist: it no only retroactively legalizes the illegal spying done on Kim Dotcom. It extends the scope of that type of spying much further. And as before, all of the domestic data collected under the new Acts can and likely will be shared with foreign intelligence partners, particularly those grouped in the 5 Eyes network.
National knew that Labour and the Greens will oppose the Bills for political and principled reasons, respectively, but does not care because it knew that it only had to win over Winston Peters or Peter Dunne to secure passage of the legislation. Since both of these one man shows are political opportunists at best, a few bones thrown their way in exchange for minor concessions was seen to do the trick.
As it turns out, Dunne leapt/caved first. In exchange for more cosmetic changes in oversight and reporting (none of which fundamentally alter the way in which the NZ intelligence community operates or the scope of its operations), the setting of a 2015 date for a general review of the NZ intelligence community and one significant backdown (the removal of cabinet authorization for GCSB assistance to agencies other than the Police, SIS and NZDF, which will now have to be authorized via legislation), Dunne has pledged his vote for the Bills. They can now pass essentially intact.
A brief aside: It would have been worth considering allowing the GCSB to render assistance by charter to agencies such as Customs and Immigration as well as the SIS, Police and Defense because they clearly have a national security role. Moreover, it may not be widely understood but the GCSB offers more than equipment and technicians to its counterparts. It has linguists, interpreters, engineers and other specialists in its ranks who can be of use to domestic security agencies on a case by case basis. The Dunne concessions do not address the how, why and when of any of this.
Getting back to the main theme, National knows that by pushing a maximalist line with regard to the expansion of GCSB powers it could accept something moderately less without discernible harm to its overall intent. Besides Dunne’s and Peters’ venality, it relies on generalized public apathy regarding the issue (although it must have been surprised by the extent of opposition that eventuated, especially from high-profile groups and persons), and it knows that it can dismiss any opposition as naive, politically motivated or both (which John Key has now done, and which this week’s protests will confirm in the minds of those supportive of or undecided about the proposed changes).
National also knows that should there be change of government in 2014, it is unlikely that a Labour/Green coalition will have intelligence community reform as a priority. If its modern history is any indication Labour will be quite comfortable with the amended legislation. Recall that it was under the 5th Labour government that most of the dubious GCSB spying on 88 NZ citizens and residents was done, and Labour will be able to use the revamped GCSB powers for its own purposes should it feel the need to. It is naive to believe that different governments do not have different intelligence priorities, something that is manifest in intelligence agency tasking.
One only needs to think of the role of the SIS in the Zaoui case and the suspected role of both the SIS and GCSB in the Urewera case to understand the concept as well as Labour’s disposition when it comes to such things. With National the shift in intelligence priorities is seen in its focus on commercial relations, to include patent and copyright issues that have little to do with national security but all to do with alliance relationships. Either way, governments call the shots when it come to intelligence priorities.
Labour and the Greens will have reversing other National policy reforms as the first order of business, be it the Holidays Act, aspects of the Employment Relations Act, issues connected with Health, Education, WINZ beneficiaries, public sector employment, economic use of public lands, etc. That list has far more immediate domestic political impact than revisiting the GCSB and TCIS Acts, especially if the expanded powers granted the GCSB are used with a modicum of discretion and selectivity.
Should Labour and the Greens assume government in 2014, they are saddled with running the 2015 general inquiry about the NZ intelligence community. That will take public time and political capital, which leaves less of each for the promotion of other initiatives. This could leave a Labour/Green government spread thin when it comes to imposing legislative and policy agendas, especially when considering that the partner’s priorities do not universally coincide in the first place (less so when other minority parties are involved). That could undermine the stability of the coalition, wreak their overlapped policy platforms, make for internecine conflict and set the stage for a National return to government in 2017.
Barring some unexpected reversal of fortune in the next few weeks, when it comes to domestic espionage and the GCSB’s expanded role in it, what we have here is a done deal. The Bills will pass. There will be more spies amongst us.
National’s short-term political logic looks to have proven correct, so far. Time will tell if its longer-term strategy will pay off as well.
A while back I wrote a series of posts on deconstructing democracy in which I noted that this form of rule ultimately rests on the consent of the majority, and that consent is not given once, forever, but instead is the contingent outcome of repeated conflict resolution efforts made at the political, social and economic levels. Because they are contingent, the three dimensions of consent are the subject of regular re-negotiation leading to collective compromises, the terms of which serve as the threshold of consent to which the majority must agree if democracy is to be consolidated and maintained over time.
The need for majority contingent consent in order to successfully reproduce democracy as both a political and social construct leads to self-limiting, incremental gains approaches on the part of groups and factions. The strategy is to advance sectoral fortunes via institutional means that ameliorate open conflict and facilitate the type of material and political compromises that reproduce mass contingent consent over time. Self-limiting and incremental gains approaches to realizing collective and individual interests are used in pursuit of mutual second best outcomes whereby all groups accept that attempts to maximize unilateral opportunities leads to collectively sub-optimal outcomes for the society at large.
Ideological and redistributive conflicts are denatured by the pursuit of the mutual second best, which in turn facilitates the achievement of material and political compromises that are reproducible over time. When that occurs, contingent compromises on matters of material and political interest frame public expectations of what are reasonable demands and achievable objectives on and by governments of the day.
That is why democracies are replete with calls for ideological moderation and centrist voting, and why they utilize institutions such as collective bargaining and compulsory arbitration when it comes to sectoral conflict.
In another series of posts I noted the problems inherent in transitional dynamics, which are the processes by which political regime change occurs. I wrote the posts early in the advent of the so-called Arab Spring, and I noted that bottom up transitions are not always revolutionary nor do they lead to democracy, and that top down transitions are more likely to result in negotiated and relatively peaceful devolution of political authority even if these too are not always, or even likely to be democratic. For those who may remember, I repeated the view that the interplay between opposition moderates and militants and regime hardliners and soft liners would most significantly influence the immediate outcome of a given transition, and that there would likely be a purgative phase following the transitional moment in which adherents of the old regime would be ostracized or victimized by supporters of the new one (if not the new regime itself). The latter is particularly true for countries with no historical experience with democratic forms of rule.
Needless to say, the Arab Spring and its sequels have tested these propositions and added a few new chapters to the regime transitions literature. But what continues to get relative short shrift, and which is a topic pertinent to any form of government that relies on majority support for its continuance in power, is the subject of managing expectations.
Achieving and maintaining the threshold of contingent majority consent requires management of public expectations of what is reasonable in terms of demands and what is achievable given the socio-economic and political context of the times. Resource availability, trade dependency, labor force skill base, nature of political representation and a host of other factors influence what are considered to be “reasonable” demands and “achievable” goals at any given point in time.
If individuals and groups concur on what is generally reasonable and achievable, mass contingent consent based upon self-limiting and incremental gains strategies leading to mutual second best outcomes is possible. Sectoral agreement on specific issues does not have to be uniform or absolute, and instead is the subject of institutionalized conflict resolution mechanisms involving debate and negotiation.
In democracies the key element in determining what is reasonable and achievable in a particular historical moment is government framing of the issues that condition individual and group approaches to making demands on political authority. Issue framing not only allows the government of the day to define the terms of debate about the specifics on which reasonable demands and achievable objectives are construed. It also allows the government to manage popular expectations as to what is and is not reasonable or achievable.
I mention this because one major problem for nascent regimes in the Middle East and elsewhere is and has been managing popular expectations of what can be delivered by a sudden move to electoral rule. “Democracy” means a lot of things to a lot of people, from unfettered freedom of expression to free blue jeans and TV sets. Many envision democracy as being a panoply of rights unencumbered by responsibility, to include the need for tolerance of others whose views, persuasion or traits are not congruent with one’s preferred world view.
The rush away from authoritarianism also has a tendency to encourage demagogic promise-making on the part of political contenders that has little relation to (or bearing on) what can be reasonably demanded on or achieved by the new regime. The syndrome is compounded when the incoming elite has little knowledge of, much less training or skills in the complexities of macroeconomic management, social policy, international diplomacy and trade or a myriad of other areas of government responsibility. Sometimes the best opposition leaders are the least qualified to govern.
The combination sets up the scenario of failed expectations: new political regimes based on popular support often fail to adequately manage expectations so as to give themselves time to learn the intricacies of their position and to establish priorities as to what can be reasonably demanded and achieved. Popular demands for short-term remedies and immediate material gains outweigh the regime’s capacity to deliver on what was promised, much less what was implicitly expected at the moment of transition. That produces a withdrawal of mass consent and a reversion to first-best or maximalist group strategies that lead to non-institutionalized mass collective conflict. This has been evident in Egypt and, with some significant differences in terms of the specifics of what is being debated and the intensity with which it is being contested, is also apparent in Turkey.
In established democracies the issue of managing expectations has roots not so much in what is immediately promised but in what has been historically delivered. The longer and more deeply embedded the concepts of reasonable and achievable are in the public consciousness, the more difficult it is to significantly alter downwards the threshold of mass contingent consent. Should democratic governments move to redraw the concepts of reasonable and achievable in order to downgrade or reduce the combined threshold of consent, the more likely it will be the non-institutionalized collective conflict will result. That has been the case in Greece and Spain.
In light of all of this, the National government in New Zealand has a challenge on its hands. Since the late 1990s the move to narrow the definition of citizenship rights and entitlements (the subject of yet another earlier post) has responded to incrementally applied corporate logics on the subject of collective demands in market driven climates of fiscal austerity in which reduction in state-provided public goods is seen as a basic requisite for economic competitiveness. The objective is to diminish public expectations of what is reasonably achievable and what can be reasonably demanded in a small open market economy.
The effort to reforge collective identities, at least with regards to public expectations of what is reasonable and achievable, has been largely successful. That has help lower the threshold of mass contingent consent in contemporary Aotearoa to levels that more closely approximate those of Asia than those of Europe or the Americas, and which are a far cry from those that existed before Rogernomics was imposed.
Even so, there is a limit to the downgrading of the threshold of consent and National appears to be approaching it. Be it the non-response to the Pike River or Rena disasters, the third world response to the Christchurch earthquake, the passing of legislation under urgency, the attempts to intimidate the media on both large and small issues (such as the Tea Cup affair or the personal denigration of Jon Stephenson because of his critical writing about the NZDF in Afghanistan), the focus on maximizing trade opportunities rather than affordable domestic consumption, the penchant for secrecy rather than transparency in policy-making, or even the arrogance and indifference of the PM when it comes to important questions about his leadership (epitomized by his repeated brain fades and his holidaying in the US rather than attending the funeral of NZ war dead), the combined effect may be that there comes a point where he and his government can no longer manage public expectations with a smile and a wave.
I am not sure when it will come or what that tipping point may be precipitated by, but it seems that we are well down the path towards a public withdrawal of consent to this government. It certainly will not look like the events in Athens, Cairo, Istanbul or Madrid, and the opposition may not have the ability to capitalize on the moment of opportunity provided it by public repudiation of the narrow definition of what is reasonable, achievable and expected of government, but it seems to me that the debased threshold of mass contingent consent has reached its limits in New Zealand.
The question is whether, should it eventuate, the withdrawal of consent in New Zealand will be confined to “manageable” institutional channels focused on specific aspects of the three dimensions on which it is given, or whether it will evolve into something more.
The Parliamentary Select Committee hearings on the Bills to amend the 2003 GCSB Act and 2004 Telecommunications (Interception Capability and Security) Act have begun this week. There is much interest in the hearings not only because of the content of the Bills under consideration, but also because they are open to the public. The cast of characters scheduled to present is as colorful as it is deep: Kim Dotcom, the CTU, the Law Society, Internet NZ and several telecommunications firms are among those representing.
Even so, some of the public discussion surrounding the proposed reforms has been stunningly stupid. In recent weeks the Herald featured two editorials supporting the proposed changes. The first claimed that the changes would help prevent a Boston Bombing scenario (a claim that the Prime Minister has parroted; Winston Peters prefers to use the train station bombing hypothetical). That ignores the fact that US intelligence agencies could not do so even with their massive meta data-mining schemes and a tip from Russian authorities. Nor could they prevent the Fort Hood massacre even though the perpetrator was in regular email contact with an al-Qaeda leader in Yemen prior to the shooting.
Worse yet, the Prime Minister and others such as this editorial writer make it seem as if counter-terrorism is the primary function of intelligence operations. It is not. Traditional inter-state espionage, no matter what the technologies used, remain the major part of intelligence work. The counter-terrorism angle provides a convenient fig leaf for the expansion of intelligence networks and the scope of their authority, but in reality occupies a relatively small amount of intelligence resources and attention. This is particularly true for countries that are not on the front lines of the so-called “war on terrorism.”
The second editorial, by a supposed former intelligence officer, claimed that those who oppose the Bill are scaremongers and uninformed, even though the Law Society, Internet NZ and several other professional groups have registered their opposition on legal as well as technical grounds. The author also asserted that because civil servants drafted the proposed changes, we should accept them in good faith. Yeah right.
I beg to differ. There is clearly a need to “tidy up” the legal framework governing GCSB activities on home soil because under the current Act the role of the GCSB in domestic espionage is murky. But civil libertarians and privacy rights activists have legitimate reason to oppose the GCSB Bill in its present form.
The Bill expands the terms and conditions under which the GCSB can engage in domestic espionage, including reasons that have nothing to do with national security and for agencies unrelated to it. Those responsible for issuing the warrants under which the GCSB would “assist” domestic agencies would be those who currently do so, in a cross-signed fashion in the case of spying on New Zealand citizens and residents. If the targeted entity falls under the foreign intelligence collection mandate of the GCSB (which targets “foreign entities,” in New Zealand, including private firms as well as diplomatic missions), warrantless intercepts can be authorized even if they extend to New Zealanders.
In light of past excesses and mistakes it is evident that leaving warrant issuance to the Prime Minister and a retired judge (the Commissioner for Security Warrants) is pure folly even when done in combination. These are the individuals who were on watch during the Dotcom raid and, in the case of the Prime Minister, claimed ignorance after the fact as to how and why the GCSB became unlawfully involved in it.
The definition of threat to national security under which the GCSB would act is too nebulous and broad to prevent mission creep into common law enforcement and encroachments on individual and group privacy. For example, under the proposed legislation the GCSB could assist the Department of Primary Industries to spy on environmental activists on behalf of fishing, logging or mining interests if their protests were deemed injurious to the economic well-being of the nation, which can be construed as a threat to national security under current definition of the term.
The oversight mechanisms proposed by the Kitteridge Report are a veneer on what currently exists. Even if bolstered by a Deputy and some additional clerical staff and funding, the Inspector General of Intelligence and Security is simply too dependent and too powerless to effectively serve as the overseer of the New Zealand intelligence community. Absent effective independent oversight such as that which could come by making the Inspector General’s office a Department of Parliament responsible to a Parliamentary Committee with powers of compulsion under oath, the room for unaccountable manipulation of intelligence flows and analysis remains great.
The Telecommunications (Interception Capability and Security) BIll that accompanies the GCSB Bill is more draconian than similar legislation under the US Patriot Act. It compels telecommunications companies to provide access to their source and encryption codes (that is, provide warrantless access before the fact to private accounts when no threats are evident). It authorizes GCSB espionage operations without the consent of affected private entities as part of its “information assurance and cyber assurance” function, which is designed to safeguard a broadly defined information infrastructure consisting all forms of telecommunications emissions, systems and networks. In other words, one way or another the GCSB would have the ability to surreptitiously monitor all New Zealand based telecommunications regardless of whether or not they involved clear threats to national security.
Since New Zealand is not a major target of inter-state cyber espionage or in the so-called war on terrorism, that is an overreach. India, Brazil, Italy, Spain, Canada, Germany and many other democracies who arguably are much more at risk for espionage and terrorism do not have such legislation. In most the separation of foreign and domestic espionage is made quite clear in law, with the latter carried out mostly by the Police, national gendarmes or local investigative agencies with help from foreign-focused intelligence agencies only in the most exceptional circumstances (even then, agencies like Interpol exist as the first line of recourse used to facilitate international crime investigations).
What is the problem in requesting voluntary telecommunications company cooperation with national security investigations, particularly when they are clearly focused on clear and present threats? What telecommunications provider would refuse such a request, especially if issued under warrant specifying the reasons? If such a system works for the countries mentioned above, why can it not work here?
The official presumption in the T(ICS) bill that telecommunications firms need to be compelled rather than be allowed to voluntarily cooperate with intelligence agencies on matters of national security says more about the disposition of the government than it does about that of the firms involved.
By expanding the GCSB’s domestic “assistance” role in two capacities (information assurance and cyber security to public and private entities as well as technical assistance to sister agencies), the proposed changes run the risk of deviating it from its main foreign signals intelligence and counter-cyber espionage efforts. It will add a further burden to it’s already stretched staff of analysts, engineers, linguists and cryptographers. Since increased funding and recruitment are circumscribed by the present climate of fiscal austerity, it does not appear likely that resources for the GCSB will be increased commiserate with the increase in its domestic assistance authority.
Interestingly, the GCSB and T(ICS) Bills were proposed soon after issuance of the Kitteridge Report on the GCSB, which was driven by the unlawful electronic monitoring of Kim Dotcom and associates by that agency. Given the level of detail in the Bills, that suggests that they were drafted before Ms. Kitteridge’s findings and recommendations were finalized. This contradicts the government’s claim that the Bills came in response to the findings of that report.
In a world in which threats are increasingly “intermestic” or “glocal” in nature and in which the boundary between national law enforcement and international security is increasingly blurred, there is reason to adjust the legislative apparatus governing the role, scope and functions of the New Zealand intelligence community, including its international commitments. At present the GCSB and sister agencies appear rudderless, unsure of who and what purpose they serve, much less how they should prioritize their essential responsibilities.
This is why a full inquiry into the New Zealand intelligence community is needed before any reforms are made to its legal architecture, especially given that the last review of New Zealand intelligence operations occurred in the 1970s.
The inquiry could well start with exploring what New Zealand’s threat environment consists of now and in the near to medium future, including proximate and distant threats of a physical (environmental and epidemiological), economic, military, diplomatic and criminal nature. It could then turn to outlining the specific meaning of “national security” in light of these threats (with the balance between minimalist and expansive definitions of national security needing to be debated and precisely defined).
It might consider how current policy decisions or orientations can set the stage for the emergence or facilitation of future threats (such as by trying to play off trade and security relations with competing great powers as a form of hedging or strategic balancing act). Having done that, it could proceed to review the way in which the intelligence community operates so as to offer prescriptions for its better tailoring to the threat environment extant and foreseeable.
Much has happened since the last intelligence review, both in terms of the nature of national security threats as well as the technologies they employ and those used to counter them. It is therefore prudent to pause and review how New Zealand intelligence operations are conducted rather than rush to pass legislation that retroactively exculpates past unlawful behavior by the GCSB while expanding the reach of those who authorized it.
A short version of this essay appeared in the New Zealand Herald on July 2, 2013 under the title “GCSB bill going too far too fast.”
Withdrawal from Echelon: a realistic watershed moment in intelligence reform or Left political posturing?
Posted on 15:34, June 20th, 2013 by Pablo
In light of the attention brought to matters of intelligence collection and analysis in recent months, it is entirely reasonable for the Greens and Labour to demand a fill inquiry into the organization, role and functions of the New Zealand intelligence community, including its responsibilities and obligations in international intelligence networks such as Echelon/5 Eyes and other less publicized arrangements. As the Kitteridge Report noted with regard to the GCSB and what the Zaoui case demonstrated in the case of the SIS, there were or are serious deficiencies in both agencies. These are as much if not more managerial than operational, but the truth is that a review of the entire intelligence community is overdue in light of the changing realities of intelligence gathering in the 21st century.
That is why the National government’s attempt to pass reforms to the 2003 GCSB Act that extend its domestic powers and scope of authority, coupled with the proposed Telecommunications (Interception Capability and Security) Bill that would, among other things, force telecommunications firms to provide backdoor access to their source and encryption codes, needs to be delayed until such time a proper inquiry into the entire espionage complex is undertaken. Without full understanding of areas of strength and weakness in the system, it is impossible to knowledgeably address the proposed reforms in the way signals intelligence is gathered and used in and by New Zealand, much less how it should be balanced against rights to privacy and institutional accountability.
As part of the calls for the inquiry, some on the Left have proposed that a review of New Zealand’s participation in Echelon be undertaken. Some have gone so far to say that it could become another watershed moment such as that surrounding the 1985 non-nuclear declaration. Presumably the watershed would be occasioned by a withdrawal from Echelon.
As much as I think that a review of New Zealand’s role in Echelon is welcome, especially in light of the Kim Dotcom case and recent revelations about mass scale meta-data mining by the US National Security Agency (and the meta-data mining by the GCSB revealed by the Kitteridge Report), I think that it would be absolute folly to withdraw from Echelon. Changes in the terms and conditions of New Zealand’s participation in Echelon may be warranted, but a full withdrawal from the signals intelligence-sharing community composed of the US, UK, Australia, Canada and NZ seems foolish.
I will not reiterate here the early warning, big picture and deep insight benefits that NZ accrues from being an Echelon partner. What I will note is that it has been a partner in Echelon for more than three decades, and as such shares some of the most guarded secrets, both historical and contemporary, of the Anglophone intelligence community. This includes methods, technologies, locations and sources for signals intelligence collection as well as the content of specific subjects of interest.
The Echelon partners will take a very dim view of these secrets suddenly becoming insecure as a result of a NZ withdrawal from Echelon. No matter what assurances may be given or what phased devolution of responsibilities is proposed, they are bound to fret about classified Echelon information falling into hostile hands as a result of that decision. That will likely prompt a full scope defensive counter-response to minimize the possibility of damaging or sensitive material falling into the “wrong” hands.
That response will far outweigh the diplomatic estrangement caused by the non-nuclear declaration (which ultimately amounted to a freeze on bilateral military-to-military contacts but which did not alter intelligence sharing or diplomatic relations in any significant measure). The negative consequences of withdrawal from Echelon will be felt in the intelligence arena, but will also be felt economically, militarily, and most definitely cyber-electronically, and will not just come from the other 5 Eyes partners.
Under a Labour/Green government that decides to withdraw from Echelon, New Zealand might seek to hedge its bets by establishing intelligence sharing ties with the People’s Republic of China or Russia. The first would complement the economic re-orientation towards the PRC in recent years, whereas the latter would cultivate relations with a long-term and now resurgent Western adversary (which is now in the process of re-deploying submarines to the South Pacific for the first time in over 20 years). Either move would show a clear commitment to diplomatic re-alignment away from traditional partners and towards Eurasia, something that would nicely complement the primary geographic focus of NZ’s trade-oriented foreign policy (we should remember that NZ is in the early stages of negotiations with Russia on a “free” trade agreement).
For both Russia and the PRC, gaining access to Echelon data would be invaluable even if the remaining 4 Eyes are forced to completely overhaul their systems in order to limit the damage caused by a NZ “flip.” In fact, the repercussions from such an act might force NZ to seek the security protection of either great power. One assumes that for this to happen the NZ public will be comfortable with the shift in alignment.
It is less probable that other Western nations such as France or Germany would want to jeopardize their relations with the Echelon community by entering into an alternative signals intelligence-sharing arrangement with NZ. Perhaps rising powers such as India, South Africa or Brazil might want to take advantage of the window of opportunity, but that also seems unlikely.
That is why I believe that the speculation about an inquiry into the intelligence community resulting in a “watershed” NZ withdrawal from Echelon is poorly considered. Escaping international commitments of any sort is fraught in many ways, and in order to do so the benefits of reneging must clearly outweigh the costs. The decision must enjoy broad support and be politically sustainable at home as well as abroad.
In that light, the benefits of a withdrawal from Echelon are uncertain and the downside of withdrawing from such a long-term and highly sensitive international security commitment is too great and too obvious for such talk to be anything but ignorant or Labour/Green posturing in the build up to next year’s elections. If that is the case, it undermines the Labour/Green bid to have a full inquiry into NZ intelligence community reform because there will be little support outside of select party factions for a move to withdraw from Echelon, and any reform initiatives that include that possibility will not be taken seriously.
It would therefore seem best for the Greens (in particular) and Labour to stifle such speculation from within their ranks in order for their calls for a full inquiry into the NZ intelligence community be given due consideration. That still leaves much room for review, but has a better chance of garnering broad-based support than by continuing to entertain thoughts about watershed moments.
The thing that has struck me about the current Dunne based fuss is the number of times I end up saying “I just don’t know what I should think …”
1) Should Dunne have released the email content he received?
I started off thinking “it depends if they were sent in a professional or personal capacity”. If he had emails from a school principal talking about the effects on current special education funding on workloads, I feel like they should be released. If he had emails from the same principal about her frustrations with the RMA process and the townhouses being built which will shade out her garden, then they shouldn’t be released without her permission. Similarly, I think, if they are in a professional capacity but contain personal information about either the writer or, even more so, they should be withheld (for example principal talking about the effects on a particular student).
Then… does it matter that the emails were from a journalist? … I think so … both because she should have been more aware than most people who email a Minister about how the system works (so should have less expectation of privacy perhaps) and also because we rely on journalists to make things open which would otherwise be hidden from us (so, perhaps, should have more expectation of discretion).
So… I dunno :)
2) Couldn’t he have released the contents to David Henry based on an agreement that Henry wouldn’t further release them…
I think no. If the issue is privacy then no, showing them to Henry is unfair on the individual’s privacy. We’ve all seen situations in which a secret was told to “just one other person”, causing distress to the person whose secret it actually was.
On the other hand … if we’re talking about protecting how journalism needs to work to serve the public rather than protecting privacy … still probably no. The whole point of the Henry report was to find out how the leak occurred, if Vance wanted to contribute to that discussion (to rule out Dunne, for example) she is free to do that by releasing her emails – it is not up to Dunne to make that choice for her.
3) Should we be discussing Dunne’s motivations?
I think yes … but a little less salacious glee would be nice, and some care of other people’s privacy is required. Dunne is a public figure, who has admitted to doing a foolish thing in his public role – discussing the why is a reasonable thing. But … there is a point at which is just becomes prurience or schadenfreude. There is also a point at which is crosses a line into delving into other people’s lives way more than can be justified if we’re only interested in why one man did a foolish thing.
4) Should Vance’s role in all of this be up for discussion?
Um… no idea :) Discussing how journalists get their information seems up for discussion, unevidenced discussions of her personal life and ethics not so much. But… and this I am sure of … if someone wants her role to be up for discussion they should explicitly raise it “Vance did this thing here, and it is good/bad/ethical/unethical/whatever”, the problem at the moment is that no-one is actually saying that, they’re just all saying things about someone else and in passing accusing her of something left grey and unable to be responded to.
5) Is there a thread of sexism in here that we should be aware of?
I think so. When Peters says “there’s no fool like an old fool” he is explicitly calling on a stereotype about older men – and we can discuss whether it’s fair or accurate or relevant. But he is also implicitly reinforcing a stereotype about pretty young women who use their feminine wiles to further their careers – and we don’t seem to have room to debate that. I think that young women, working in politics, journalism, or anywhere else, could live without any more reinforcement of the view that it is blindingly obviously and completely normal they use sex to get ahead.
I am somewhat amused by the attacks on Martyn Bradbury over his consultant relationship with Mana while running a leftwing blog. From what I gather Bomber has been pretty upfront about his association with leftist organizations (without having to go into the particulars), and even if his advertorial work on behalf of a certain medical service provider was on the margins of ethical, he is certainly no different than many other pundits attempting to earn a crust.
The blogging right (and some journalists) seem to be going after Bomber for two reasons. One is that, for rightwing bloggers the Lusk/Slater revelations needed a diversion, or at least a modicum of balance. Bomber has made plenty of enemies on the right (and some on the left), so he is an easy target. That is particularly so for point number two: his consultancy fees for Mana are ultimately paid for by the NZ taxpayer. The right blogosphere has all but choked on that thought and some have suggested a conflict of interest on Bomber’s part.
I really do not see what is the big deal. Some rightwing bloggers undoubtably consult for public agencies and political parties. Some are every open about their arrangements, and some are not. So what? Various people are trotted out in the media to give their opinions as supposed experts about political issues. Some of these people have financial relationships with political entities and some of them blog. This may or may not be known to the produces and interviewers, and the talking heads may or may not reveal their associations. Again, so what? Can their views not be judged on the merits rather than on who they may be shilling for or what they write on blogs? And if they are selling a particular line in the media, is it not the job of the interviewers to call them on it?
Blogging can generate revenue for a fortunate few, but most blog for free. Many blog under their own names, but some, like us here, use pseudonyms (in our case pretty obvious ones). Sponsored blogging obviously toes an editorial line (less so in the case of ad-derived revenues, since ads are placed on blogs more due to a blog’s popularity than its content). Sponsor-free blogging provides a forum for expression unbeholden to client relationships or employer dictates. Even so, bloggers tend to understand the limits to what they can say in their posts. In the KP experience as a sponsor-free blog by design, members of the blogging collective have taken a hiatus or desisted from blogging about topics connected to their work when potential conflicts are discernible. It is simply prudent and common sense to do so.
Consulting is about offering informed advice and opinion for a fee. In my post-academic life I have found that many people seek advice or opinion, but few want to pay for it. Most seem to think that there is no research or work involved in developing the expertise required to give said advice. They think that their areas of interest are naturally those of the prospective advisor.They forget that it is they who are doing the asking for a service they are unable to provide for themselves.
Think of it this way: if you cannot do the electrical work when installing lighting in your home or business, you pay an electrician to do so. So why would you call a “terrorism expert” and ask him to give his views on a given terrorist event for free? Why would you ask a political risk advisor or strategic analyst to provide expert advice or opinion for free?
That is why fee-paying clients are highly valued by consultants, whether the latter blog or not. It also ensures that consultants who blog are keenly attuned to client requirements in and outside the service provision relationship that binds them together.
That advice given to a client may or may not be congruent with what a consultant cum blogger writes on a blog. The client may or may not know of the consultant’s blogging activities, but regardless the relationship is based on something other than the content of the blog. If the client decides that the content of the blog is not acceptable for some reason, the consultancy contract will not be renewed. Since consultancies operate on a retainer, hourly or service project fee basis, there is latitude in the contractual terms, which may or may not include prohibitions or editorial constraints on blogging content that is deemed inimical to the client’s reputation or goals.
People may disagree with Bomber’s views on political matters to the point of questioning his credibility, and many might wonder why anyone would pay for Bomber’s advice. His advice may be intuitive rather than “expert.” In my opinion, his views on politics have been wrong from time to time. So what?
The issue of credibility and paying for advice is between the client and Bomber, and in Mana’s case, the party seems content with the arrangement. There is no conflict of interest. There is no hidden agenda. That is the end of the story. As a private contractor Bomber does not have to reveal anything about his consulting relationships, much less on his blog or in his other media work. In this he is no different from Brian Edwards, Bill Ralston or others who give privileged (and private) advice to clients in parallel with their public writing and commentating. Again, this is no big deal.
In the end, this episode strikes me as a rightwing beat up that is designed to deflect attention away from National’s internal divisions by targeting a convenient leftwing object of contempt. In other words, it is all about politics rather than professional ethics. That seems natural, because if it were the other way around and the shoe was on the other foot, some of those leading the charge against Bomber would not have a leg to stand on.
Coverage of the murder of a British soldier in London and a subsequent stabbing of a French soldier in Paris by presumably Muslim extremists demonstrates how governments and some media outlets misuse the term “terrorism.”
After 9/11 “terrorism,” and its subset “Islamic terrorism,” became the favoured terms used to describe most types of politically motivated violence. That serves the purposes of government security agencies, many of which have expanded their powers of arrest and detention without charge, warrantless search and surveillance and legal scope of authority under the rubric of anti-terrorism legislation passed in the wake of 9/11. New Zealand is no exception in this regard, and the current proposal to amend the GCSB ACT 2003 is a continuation of that trend.
Branding political violence as terrorism allows the state to ignore standard notions of civil liberties and rights under the law because of the “special” nature of the terrorist threat. It justifies the profiling of entire communities of people who share basic traits or affinities with terrorist suspects. It fuels the growth of private and public security agencies focused on thwarting unconventional attacks at the same time that it militarizes domestic security, expands intelligence networks and re-focuses the strategic orientation of the military itself. It plays on fear and uncertainty for purposes unrelated to the actual threat posed by terrorism.
For the uncritical media, labeling all acts of political violence as terrorism feeds on sensationalism in pursuit of profit. Some lump all political violence done by designated “others” (most recently, Muslims) as terrorist acts in order to promote specific political agendas. Thus the attack on the US consulate in Benghazi, which was a standard guerilla operation against a symbol of US power, is portrayed by mainstream US outlets as a terrorist assault on American existential values rather than as a low-level threat against a defended compound that was ignored prior to its materializing.
Others reproduce government narratives about terrorism without deconstructing ulterior motives. This symbiotically serves both sides but leaves the truth somewhere in between. It is therefore worth distinguishing between political violence in general, and hate crimes and terrorism in particular.
Political violence is that which is done for political or ideological reasons. It may be due to grievance, fear, opportunism, or latent tensions based on long-standing differences. It may act as a precipitant or catalyst for broader violence by igniting sectarian conflicts. There are many reasons for and many types of political violence. Not all are terrorism.
Regicide is the killing of kings (in this day and age Game of Thrones fans are the most familiar with the concept). Political fratricide is the killing of partisans by their colleagues (some of which can be done symbolically, as recent New Zealand Labour Party ructions have shown). Homicidal attacks on presidents, premiers, prime ministers and politicians of all stripes are political murders by virtue of the victim’s status as much as the perpetrator’s motives. Lethal riots and clashes between political factions are mass political violence. None of these are terrorism.
Hate crimes are crimes committed out of loathing and contempt. They are rooted in fear, ignorance and frustration or prejudice grounded in historical enmity, political conflict or cultural difference. Although they may have symbolic purpose, they are often acts of desperation and usually are highly personalized or individualistic in nature.
Terrorism is an act of symbolic violence against civilians, often in mass settings. It attempts to raise the political costs of pursuing a given policy line by undermining the will of the subject population supporting it. The objective is to impose the political will of the perpetrator by fomenting a pervasive feeling of dread and uncertainty in the subject population that renders them paralyzed in terms of response, and to reassure adherents that through such acts ideological goals can be achieved against powerful enemies.
The target is different than the subject and is chosen precisely because of the symbolism inherent in its selection. Thus the World Trade Center and Pentagon were chosen as targets by al-Qaeda because of their symbolism and the impact the attacks would have on the will of the US government and people. The attacks also sought to demonstrate to the Muslim ummah that armed resistance to Western secularism was possible. Whether or not terrorism actually accomplishes its goals (the record is mixed), the rationale of terrorism focuses on the erosion of will in a subject entity so as to undermine support for a particular stance or position on a contentious issue.
Terrorism has been used as a tactic in warfare, by States against their own people, by criminal groups, and by non-state actors. The majority of modern terrorist acts have been perpetrated by states in and out of warfare. Criminal organizations regularly terrorize individuals and communities as a form of intimidation. In this era terrorism is most often associated with non-state actors espousing anti-status quo views based upon ideological grounds.
The murder of the British soldier was a politically motivated hate crime. Two disgruntled British born Muslims (one a convert), apparently backed by a few others, committed a homicide in broad daylight because they are unhappy with British foreign policy in Muslim lands. They may also have had personal motives and grievances. Yet the Cameron government called the murder “terrorism-related,” convened an emergency meeting of its most senior anti-terrorism group, placed all security services on increased alert, and spoke of possible copycat killings.
Commentators have suggested that this represents a new phase of Islamic terrorism, whereby terrorists are home grown, grassroots, self-radicalized and decentralized small groups or “lone wolf” (individual) operators such as those involved in the Boston Marathon bombings or Fort Hood shootings.
That may be true, as the campaign against al-Qaeda has made prohibitive its ability to carry out large-scale attacks such as 9/11 or the Madrid train bombings by eliminating those who have the capability to undertake them. In response, al-Qaeda has morphed into an irregular warfare network that seeks to pursue low-level operations in the West while taking advantage of the instability in North and Sub-Saharan Africa caused by regime collapse or state failure in order to secure territorial and political gains.
The change of tactics against Western targets is a sign of desperation and futility. Such low-level acts of violence pose no existential threat to the subject populations and governments. Few have the potential to involve mass casualties in numbers that would undermine the collective will. Even if carried out repeatedly, it is arguable whether they can achieve the objective of changing the overall thrust of Western policy vis a vis Islam (less arguable is the suggestion that, in fact, al-Qaeda operations did alter the thrust of Western approaches to Islam). In other words, whether they were initially successful or not, al-Qaeda’s tactics in the West have been reduced from ideologically-based, mass-targeted terrorism to low level hate crimes.
The contrast in government approach and media coverage is remarkable when the violence is meted out against rather than by Muslims. In early May a Muslim shop keeper was hacked to death with a machete in Birmingham. CCTV caught a Caucasian suspect leaving the scene and the police labeled the murder as a hate crime. In the aftermath of the soldier’s murder there has been an upsurge in violence against British Muslims, all of which has been treated as hate crimes. Likewise, in the US targeted violence against Muslims is officially viewed as hate crimes, but Muslim violence is most often framed as terrorist-inspired.
There is certainly overlap between terrorism and politically motivated hate crimes in some instances, but the preponderance of low-level acts of politically motivated violence is the latter even if the perpetrators are Muslim. That is more so now that al-Qaeda has been decimated.
That means that such acts of political violence should be treated by the justice system as common crimes rather than as special events. Terrorism is properly understood as a criminal conspiracy to commit mass murder for ideological reasons. Hate crimes are independent acts of individual or small group violence done for ascriptive reasons. Criminal justices systems already address both.
It also means that there is no genuine justification for creating a separate body of legislation specifically designed to counter terrorism as a special sort of political violence, much less justify the intrusions on civil liberties and individual rights that such legislation entails. Whereas the large scale attacks of 9/11, Madrid, London and Bali appeared to justify in the minds of some a war-like approach by Western states to the political violence known as Islamic terrorism, that is no longer true if it ever was.
The conflation of hate crimes and terrorism serves the purposes of the perpetrators as well as the security agencies that confront them. It serves the self-interest of the corporate media, which publicizes the messages of both sides in order to generate revenue. What is not served is the common good brought about by informed consideration of the causes and effects of different types of political violence, as well as the remedies for them.
Now that the Kitteridge and Neazor reports have been tabled, discussion can more fully proceed to the issue of intelligence oversight. The government has proposed bolstering resources for the Inspector General of Intelligence, and adding a Deputy Inspector General to what until now has been a one man shop. That is a step in the right direction, but it falls very short of the mark when it comes to robust, independent intelligence oversight mechanisms. Here I outline one way of achieving them.
Currently the IG is dependent on the NZSIS and GCSB for resources and cooperation and answers to the Prime Minister. That puts him at the interface between politics and operational matters in a chain of responsibility, which reduces his freedom of action.
The IG’s office should be strengthened in terms of staff and moved to become an agency of parliamentary services. It will answer to the Parliamentary Committee on Security and Intelligence, although its staff and funding source will be independent of the Committee. The Committee will have powers of compulsion under oath that allow it to force intelligence managers to release operational details or classified information to it upon request. It would meet at least once a month and receive scheduled classified briefs from the directors of the SIS and GCSB as well as senior managers in the DPMC handling intelligence flows. At any time the Committee would be able to order the appearance in special session of officials from the Police, Customs, Immigration, Treasury and other agencies that employ intelligence collection and analysis services.
All of this would require that the staff of the committee as well as that of the IG have security clearances akin to those of personnel employed by the agencies being overseen. That will require background checks and security vetting of staff. Members of the Committee would be required to sign secrecy oaths under penalty of law.
The transition from the current ineffectual oversight mechanisms to something more effective will take time and money. It will therefore be resisted not only by the agencies being overseen (who naturally will be discomfited by increased scrutiny from agencies unattached to the Prime Minister). It will also be opposed by political sectors focused on cost-cutting, quick results, or maintaining the current system because of the weight of institutional legacies and/or advantages it gives governments when it comes to the interpretation and implementation of intelligence priorities. But it is certainly worth doing.
The time is opportune for change. The sequels to the Dotcom case have exposed serious problems in the political management of intelligence issues as well as deficiencies in the conduct of intelligence operations. The government has proposed significant changes to the 2003 GCSB Act, particularly section 14, that will have the effect of strengthening the GCSB’s powers of internal (domestic) surveillance at the behest of other agencies–foreign and domestic. The justification for this rests on the increasingly transnationalized nature of security threats, whereby the intersection of local and international crime, foreign corporate and political espionage, irregular warfare networks and non-state actors makes much more difficult precise definition of what constitutes a domestic as opposed to foreign intelligence concern. These are grey area phenomena, and the response cannot be given in black and white.
I agree that the security threat environment has changed and is much more “glocal” or “intermestic.” I agree that it requires statutory revision in order to better account for the changing nature of intelligence operations under such conditions. What I am proposing here is a parallel revamp of oversight mechanisms that promote more independence, transparency, accountability and compliance at a time when the scope of intelligence agency authority is being redefined and expanded well beyond traditional espionage operations.
The issue is worth debating and therefore should be the subject of a larger inquiry such as proposed by Labour and the Greens. If nothing else the Kitteridge and Neazor reports can be used as the starting point for a more thorough discussion of the role, functions and purview of NZ intelligence agencies given the changed nature of the threat environment and the equally compelling need to maintain a better measure of democratic accountability than has heretofore been seen.
Although I always knew that “hope and change” was a rhetorical chimera rather than a realizable objective, and understand full well that the US presidency is a strait jacket on the ambitions of those who occupy its office, I am one of those who have been disappointed by the Obama administration on several counts.
I fully understand that he inherited a mess and has done well to dig out from under it, particularly with regard to revitalizing the economy and disengaging from two unpopular wars. With some caveats, I support the drone campaign against al-Qaeda. I support his health care reforms, his support for gay marriage and his efforts to promote renewable energy. I support his measured endorsement of the Arab Spring coupled with his cautious approach to intervention in Libya and Syria, where he has used multilateral mechanisms to justify and undertake armed intervention against despotic regimes (US intervention being mostly covert, with the difference that in Libya there was a no-fly zone enforced by NATO whereas in Syria there is not thanks to Russian opposition).
But I am disappointed in other ways. The failure to close the detention facility at the Guantanamo Bay Marine and Naval base, and the failure to put those detained there on trial in US federal courts because of local political opposition, are foremost amongst them. Now, more egregious problems have surfaced.
It turns out that after the attacks on the US consulate in Benghazi, Libya, on September 11, 2012, the administration removed from its “talking points” for press briefings and interviews the facts that the attack was conducted by al-Qaeda affiliates (and were not a spontaneous response to an anti-Islamic on-line video, as was claimed), that repeated requests for security reinforcement at the consulate before the attacks were denied in spite of warnings about imminent threats, and then military assets were withheld during the incident (which lasted eight hours).
The public deception was out of proportion to the overall impact of the attack. Whether or not al-Qaeda affiliates conducted it, serious questions about the lack of security were bound to be raised. The White House appears to have panicked under campaign pressure about the significance of the date of the attack and who was attacking (a purely symbolic matter), compounding the real issue of State Department responsibility for the security failures involved.
While not as bad as the W. Bush administration fabricating evidence to justify its rush to war in Iraq, it certainly merits condemnation.
There is more. It turns out the IRS (the federal tax department, for those unfamiliar with it), undertook audits of right-wing political organizations seeking tax-exempt status as non-profit entities. IRS auditors were instructed to use key words and phrases such as “Patriot,” “Tea Party” and other common conservative catch-phrases as the basis for deeper audits of organizations using them. That is against the law, albeit not unusual: the W. Bush administration engaged in the same type of thing.
Most recently it has been revealed that the Department of Justice, led by Attorney General Eric Holder (a recent visitor to NZ), secretly obtained two months of phone records from over 100 Associated Press reporters and staff, to include their home land lines, office and cell phones (in April-May 2012). The purpose was to uncover leaks of classified information about counter-terrorism operations to reporters after AP managers refused to cooperate with government requests to divulge the sources of leaks. That made the phone tapping legal. But there was an option: the government could have subpoenaed those suspected of receiving leaks and forced them to testify under oath as to their sources.
The main reason I am disappointed is that the Obama administration should have been better than this. I never expected the W. Bush (or the Bush 41, Reagan or Nixon administrations) to do anything but lie, cover up, fabricate, intimidate and manipulate in pursuit of their political agendas. They did not disappoint in that regard. But I do expect Democrats in general, and Obama in particular, to behave better in office. They are supposedly the defenders of the common folk, upholders of human rights and civil liberties, purportedly staunch opponents of corporate excess and abuses of privilege.
Republicans inevitably use public office to target domestic opponents and bend the law in favor of the rich and powerful. Democratic administrations are supposed to be better because, among other things, they know the consequences of such manipulation. Yet apparently they are not, even if these events pale in comparison to the crimes and misdemeanors of Republican administrations.
I am not being naive. I spent time working in federal agencies under both Republican and Democratic administrations in the 1980s and 1990s, and the difference in approach to the public trust, at least in the fields that I worked in, were great and palpable. It would seem that the things have changed since then.
Democratic governance often involves the compromise of principles in the pursuit of efficiency or cooperation in policy-making. There are always grey areas in the conduct of national affairs, and there are events and actions where reasons of necessity make secrecy more important than transparency in governance. The actions outlined above are neither.
I still prefer Obama to any of the GOP chumps that rail against him. But as John Stewart makes clear in this funny but scathing (and profane) critique, he and his administration have just stooped closer to their level.
Hence my disappointment.