Posted on 14:49, March 29th, 2016 by Pablo
I have had a professional interest in torture since my days doing human rights work in Latin America. As part of that work I talked to victims as well as perpetrators of state terrorism and subsequently wrote professionally about its usage in Argentina. Later on I consorted with members of the US counter-intelligence community who were responsible for interrogations of suspected spies and other bad people. They helped me understand the difference between coercive (as opposed to passive or sympathetic) interrogations and torture. The combination of experiences made clear to me that torture is more about punishment and collective deterrence through fear than it is about timely and sensitive information-gathering.
When the US started using its “enhanced interrogation techniques” after 9/11, descending into the medieval weirdness of Abu Ghraib and camp X-Ray at Guantanamo Bay, I tried to make sense of it.
In recent years the US Congress and the CIA have conducted investigations into the enhanced interrogation program. The bottom line is twofold: enhanced interrogations did not work any better than “normal” interrogations in extracting valuable information from terrorism suspects; and the justifications for using them was specious and deceptive at best. The best way of garnering valuable intelligence, as it turns out, is through a combination of timely signals collections working in concert with old fashion human intelligence gathering on the ground.
Now along comes Donald Trump claiming that not only does torture work but that he would “do worse” to suspects than water boarding in order to extract information from them. By now it should be clear that he is a blithering idiot on foreign relations, military affairs, intelligence operations, and pretty much everything else when it comes to public policy, to say nothing of being a serial liar with the purest case of narcissistic personality disorder seen since Narcissus himself (and were it that he could only suffer the same fate).
Heck, he makes Al Gore’s claim about inventing the internet look like a child’s fib in comparison!
In any event, Trump is dangerously wrong.
In an interview with a NZ business publication, this is what I had to say bout Trump’s remarks.
I wrote a short opinion piece in the Herald outlining some of my thoughts about the Brussels terrorist attacks. Unless the root causes of the problem are addressed, there will be no end to them. Even if they overlap in the form of foreign fighters, those root causes primarily reside in the disaffection and alienation produced by socio-economic and cultural grievances at home rather than in the conflicts of the Middle East. The solution is to be proactive as well as reactive to the threat posed by domestic radicalisation, and that involves social reform as well as better human intelligence collection in the communities from which home-grown jihadists emerge.
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.
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.
As readers may be aware I am delighted by the Trump candidacy because it is destroying the Republican Party and will pave the way for an epic defeat in the November general elections. Not only will the GOP lose the presidential race because none of its candidates will be able to muster the votes needed to overcome the Democratic advantage (be it Hillary or Bernie who lead the ticket). It could well lose control of Congress on the negative coattails of the presidential race (the entire House and 1/3 of the Senate are up for grabs, with the Democrats needing to win 4-5 current Republican seats in order to gain control of the Senate). It does not matter if Trump is the GOP presidential candidate or if he or another Republican go independent in the wake of the convention, which itself promises to be a bloodbath. The vast majority of swing voters and independents, who tend to vote on the Left in any event, will be galvanised to vote against whatever the Republicans have to offer, Trump in particular. For all his bluster about bringing out new voters on the Republican side, what he really has done is bring out new voters on both sides–most of whom are against him. As a result, the GOP is doomed and could well split into Tea bagger/populist and “moderate” right parties in the wake of what is looming as an electoral catastrophe of historical proportions.
A tipping point has been reached this week with the escalation of protests against Trump at his rallies and the retaliatory violence of his supporters and campaign staff and security against those who dare confront him on his xenophobic bigotry and inflammatory rhetoric (and one has to ask why local law enforcement and the Secret Service act as his praetorian guard when removing peaceful protesters at his behest. After all, they are not in his employ and are not legally authorised to detain, handcuff and arrest people exercising their right to protest in public spaces just because he wants them forcibly removed).
The cancellation of a Chicago rally because of protests will only encourage more of them, and they will be increasingly large and organised in nature. That in turn will enrage Trump, who does not have the good sense (or even basic ability) to moderate his venom, which will bring out the full nut case element in his support base (which has already started to appear more and more frequently). Unfortunately, it is now a very real possibility that someone will be killed or seriously injured at a Trump rally, and the perpetrators will be his supporters, not his opponents.
When that happens, the wheels will come off the Trump political cart.
By then the damage to the GOP “brand” will have been irretrievably done. But what I find just as wonderful is that Brand Trump itself is now irreversibly damaged as well. However illusory, it used to represent luxury, opulence, quality, style and the excess that comes with success. It had global recognition. It was synonymous with capitalist high rolling, only in part because of his obsession with casinos.
In the wake of this presidential campaign, that image has been replaced by something less illusory and much darker. “Trump” is now synonymous with racism, xenophobia, buffoonery, demagoguery, narcism, sociopathy, chauvinism, misogyny, war-mongering, bullying, cheating, lying, senseless violence, stupidity–the list goes on. Whatever people may have done by way of word association with the name Trump in the past, my bet is that the first thing that now comes to mind when his name is mentioned is some of the negative terms mentioned above. In fact, the word Trump may well become an adjective or verb, as in “that old white dude went all Trump on me when I said that Obama was not a Kenyan,” or “that reactionary fool is just plain Trumped in the head.” It could even be used as a noun, for example, as in “Trumpster:” n.: an idiot, fool, dolt, ignoramus, numbskull, someone who is gullible, slow on the uptake, blindly naive or prejudiced in the extreme.
His tarnished brand may survive in the US, perhaps in red neck resort destinations like the Florida panhandle and the coastal Deep South and/or parts of Appalachia. But many Americans, and not just “ethnic” Americans or Democrats, will shun his products, services and anything with his name on it. There may be boycotts and protests organised against them. And with the possible exception of Putin’s Russia (given the mutual admiration society he runs with Trump), as a global brand it is finished. Think of the Arabs, Latin Americans, Asians and even Europeans that Trump has scapegoated and insulted. Any current or potential Trump business partner or investor now has to wonder if they will be tainted by association with him and whether their business will suffer as a result. Given daily revelations of his less than salubrious past business dealings, profound dishonesty and myriad failures that have ruined others much more than it has hurt him,what foreign governments other than those of tinpot dictators are going to want a bar of him as an investment partner? Even better, increased scrutiny of his business dealings may well result in criminal charges being laid against him, which will only add to the tarnish on the brand.
The hard fact is that the Trump campaign will prove deleterious for Trump business holdings, which explains why his managerial minions, “the best people” in his words, are currently in the process of putting legal and PR distance on him. The trouble for them, however, remains embedded in that ubiquitous name.
This is the silver lining in the Trump cloud. Not only has he exposed the ugly side of US politics. He has exposed himself and his illusory brand in doing so. He is taking the GOP down along with him, and neither it or his brand will survive the fall intact.
That is truly a good thing.
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.
Posted on 15:25, March 8th, 2016 by Pablo
I was invited by the nice folk at sustainnews.co.nz to contribute a short essay related to sustainable economics from my perspective as a geopolitical and strategic analysis consultant. The essay wound up making the connection between political risk and sustainable enterprise, and more importantly, the relationship between sustainable enterprise and democracy. You are welcome to view it here.
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.
The TPPA signing came and went, as did the nation-wide protests against it. I did not think that the government was going to be swayed from publicly commemorating what it considers to be the crown jewel of its trade-dominated foreign policy, but I had hoped that the numbers turning out to protest would add up to more than 100,000. At least that way the government could be put on notice that a sizeable portion of the electorate were unhappy about the surrender of sovereignty to corporate interests enshrined in the 6000 page text. Alas, the numbers assembled came nowhere close.
One interesting sidebar was the decision to stage a parallel protest at the Sky City complex rather than join with the larger protest march down Queen Street. The specific objective of the Sky City protest was ostensibly to use so-called non-violent direct action (NVDA) and other acts of civil disobedience to block the streets surrounding the gambling complex. In the build up to signing (and protest) day the leaders of the two rival demonstrations publicly debated and largely disagreed on the merits of each. The Queen Street march organisers were concerned that any pushing and shoving at Sky City would feed into the government’s narrative that the matter was a law and order issue (following reports that the police had conducted riot control refresher training and door knocked activists warning them about the consequences of unruly acts). The leaders of the Sky City blockade argued that peaceful marches were simply ineffectual and were ignored by policy-makers. As it turns out, both were right.
The Sky City protesters, some of whom showed up in helmets and assorted face coverings, were forcibly prevented by the Police from effectively shutting down access to and from the venue and surrounding areas. The activists responded by engaging in a series of rolling blockades of major intersections, including the Cook Street on-ramp leading to the Harbour Bridge and Northern Motorway. This continued well after the signing ceremony was over and while the Queen Street march was still in progress. That had the effect of causing gridlock in the Auckland CBD.
Coincidentally or not, there was a bus strike that day. Although Auckland Council allowed its employees to work from home, many other entities did not. That meant that people who normally used buses to get to work had to use alternative transportation, including cars. That added to the number of cars on Auckland inner city roads at the time of the rolling blockades. Needless to say, motorists were not happy with the seemingly random temporary road closures in and around the CBD.
That is why things got too clever. As a tactical response to the police thwarting of the initial action, the move to rolling blockades was ingenious. But that bit of tactical ingenuity superseded the strategic objective, which was to draw attention to the extent of TPPA opposition. In fact, it appeared that the Sky City activists were trying to outdo each other in their attempts to make a point, but in doing so lost sight of the original point they were trying to make. After all, blocking people from leaving the city after the signing ceremony was over was not going to win over hearts and minds when it comes to opposing the TPPA. Plus, it displayed a callous disregard for the motorists affected. What if someone was rushing to a hospital to be with their badly injured child or terminally ill parent? What about those who needed to get to work on time so as to not be docked pay? What about cabbies and delivery people who earn their livings from their vehicles? None of this seems to have factored into the blockader’s minds. Instead, they seemed intent on proving to each other how committed they were to causing disruption regardless of consequence to others.
I have seen this before in other places, most recently in Greece, where anarchists and Trotskyites (in particular but not exclusively) infiltrate peaceful protests and engage in acts of violence in order to provoke what are known as “police riots” (a situation where isolated assaults on individual police officers eventually causes them to collectively lash out indiscriminately at protesters). Fortunately, NZ does not have the type of violent activist whose interest is in causing a police riot. Unfortunately, it has activists who seemingly are more interested in establishing and maintaining their street credentials as “radicals” or “militants” than using protest and civil disobedience as an effective counter-hegemonic tool. So what ended up happening was that the Sky City protestors were portrayed by the corporate media and authorities as anti-social misfits with no regard for others while the Queen Street march was briefly acknowledged, then forgotten.
On a more positive note, Jane Kelsey has to be congratulated for almost single-handedly re-defnining the terms of the debate about TPPA and keeping it in the public eye. As someone who walks the walk as well as talk the talk, she was one of the leaders of the Queen Street march and has comported herself with grace and dignity in the face of vicious smears by government officials and right wing pundits lacking half the integrity she has. I disagree about the concerns she and others have raised about secrecy during the negotiations, in part because I know from my reading and practical experience while working for the US government that all diplomatic negotiations, especially those that are complex and multi-state in nature, are conducted privately and only revealed (if at all) to the public upon completion of negotiations (if and when they are).
For example, the NZ public did not get to see the terms of the Wellington and Washington Agreements restoring NZ as a first-tier security partner of the US until after they were signed, and even today most of their content has been ignored by the press and no protests have occurred over the fact that such sensitive binding security arrangements were decided without public consultation. More specifically with regards to the TPPA, no public consultations were held in any of the 12 signatory states, and in the non-democratic regimes governing some of those states the full details have still not been released. Even so, I do think that it was a good opposition ploy to harp about “secrecy” as it simply does not smell right to those not versed in inter-state negotiations. In any event, what Ms. Kelsey did was exactly what public intellectuals should be doing more often–informing and influencing public opinion for the common good rather than in pursuit of financial or political favour.
I would suggest that opponents of the TPPA focus their attention on the Maori Party and its MPs. The Green Party’s opposition to TPPA is principled, NZ First’s opposition is in line with its economic nationalism and the Labour Party’s opposition is clearly tactical and opportunistic (at least among some of its leaders). So the question is how to wrestle votes away from the government side of the aisle when it comes to ratification. Peter Dunne and David Seymour are not going to be swayed to change sides, but the Maori Party are in a bit of an electoral predicament if they chose to once again side with the economic neo-colonialists in the National government.
For all the sitting down in the middle of public roadways, it may turn out that old fashioned hardball politicking may be the key to successfully stymying ratification of the TPPA in its present form.
Now THAT would be clever.
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.
Posted on 06:35, January 7th, 2016 by Pablo
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).