Posts Tagged ‘Democracy’
Posted on 17:08, November 19th, 2013 by Pablo
It is the 150th anniversary of the Gettysburg Address and Jim Mora at RNZ remembered it. He invited me on to the Panel segment to discuss its relevance today with a person who is well informed and one who is less so but strongly opinionated. The segment occupies the first 10 minutes or so of the audio feature and I come in at about the 4:20 mark.
Over at 36th Parallel Assessments I explore some of the dynamics that are and will be key factors in the political transition to free and open elections in Fiji scheduled for mid 2014. Unique circumstances in Fiji notwithstanding, the success of a transition from military-bureaucratic authoritarianism to freely elected government (if not democracy) hinges on some key factors, particularly the interplay between regime and opposition hard- and soft-liners. The essay explains how and why.
The merit of a proposition can be judged by the strength of the argument in support or defense of it. In the case of the proposed changes to the GCSB and TICS Acts, the government’s argument has basically reduced to claims that terrorists will strike if the bills do not pass, perhaps even using weapons of mass destruction. More than an argument in favor of the bills, it is a sign of desperation on the part of a government unwilling to level with the public on its real intent.
To begin with, counter-terrorism is a very small part of what intelligence agencies do. Ninety percent of intelligence collection and analysis, to include its sub-set of electronic espionage and counterespionage, is focused on traditional corporate, diplomatic and military intelligence gathering. That is true for the Five Eyes/Echelon signals intelligence network and even more so for countries that are not on the front lines of the so-called War on Terrorism.
Yet countering “terrorism” has become the buzz word used by politicians to justify the expansion of the security apparatus in all its forms, to include the militarization of police functions and extension of powers of search and surveillance. It is the fig leaf that covers a multitude of sins perpetrated by the state in the name of national security.
This is an important point because as nasty as it is, terrorism is not an existential threat to any established state, much less a consolidated democracy. Viewed objectively, it can be properly seen is a crime of violence most often carried out as an irregular warfare tactic for ideological reasons. In the hands of non-state actors it is a weapon of the militarily weak that cannot be used regularly and systematically against a broad array of targets in the face of state enforced counter-measures. Although impossible to eliminate in its entirety, especially in its small cell or lone wolf application, this type of terrorism (i.e. in John Key’s airport bomb hypothetical) is a type of criminal violence best handled by the police using the intelligence made available by human as well as signals and technical intelligence agencies.
That may or may not involve electronic eavesdropping of a targeted sort. What is not needed to counter terrorism is blanket adoption of draconian security laws that restrict individual and collective freedoms, including the right to privacy. Oppressing the majority out of fear of an extremist few is counter-productive for no other reason than doing so plays into the hands of the aggressor.
In any event New Zealand is not on the front line of the War on Terrorism. Its threat environment is different than that of Australia, the UK and the US. It is more akin to (yet less than) that of Canada, and it is telling that Canada has resisted moves to closely align its domestic intelligence gathering powers with that of its Northern Hemisphere partners. The Canadians well understand the hierarchy of threats confronting them, and in light of that have shied away from the type of legislation currently being proposed in New Zealand.
If anything, the Canadian government knows that closer public alignment with the US and UK on security issues invites greater risk of attack from those engaged in armed conflict with them. It also understands that what irregular threats exist for Canada, they are more likely to be internal and related to domestic policy issues than external in origin or manifestation. New Zealand is similar in both regards.
What this means is that the specter of terrorism raised by John Key is a dark chimera that has little connection to New Zealand’s real threats, but which is used to defend the passing of security legislation that is more appropriate for the threat environment in Pakistan or Yemen than that of the South Pacific.
In recent years cyber espionage has become the predominant form of signals intelligence threat, to include that in New Zealand. The focus of attention of Five Eyes and other signals intelligence agencies is increasingly on fiber optic cables, routers, switches and the computers that use them, as opposed to radio and satellite intercepts (even if the latter remains a priority for Echelon). In pursuit of effective counter-measures, the Echelon partners have developed sophisticated labor-savings software such as PRISM and XKeyscore that filter the first cut on zillions of bytes of electronic data (the so-called meta-data), thereby making it easier for human analysts to target specific communications based upon keywords, phrases and usage patterns.
This mass trawling through personal as well as institutional electronic communications is indeed efficient, and not problematic for countries under non-democratic rule, but poses a problem for liberal democracies where the right to privacy and presumption of innocence go hand-in-hand as the bedrocks of citizenship.
Cyber espionage in New Zealand is mostly but not exclusively perpetrated by foreign state and non-state actors seeking to access sensitive corporate, political and security information. This includes back-door access via personal computers and electronic devices into work computers of targeted sectors. Since New Zealand has the most porous internet security of the Five Eyes partners and because its economic and political decison-making elite is relatively small in comparison, it is considered to be the weak link in the network by adversaries and allies alike.
Be it by groups such as Anonymous or by state agencies such as Chinese military intelligence (and there are many others), it is estimated that New Zealand computer networks are probed dozens of times a year (at least as far as what has been publicly admitted by the government). Thus the interest in increasing the GCSB’s cyber-securty function in order to bolster the defensive aspect of local cyber intelligence (targeted hacking of foreign networks being the offensive side).
The hard fact is that cyber espionage and counter-espionage is the newest and increasingly most pervasive form of spying and is here to stay, so New Zealand has to lift its game in that field of play.
This is the real reason why the Bills have been introduced. The trouble is that they contain a very strong offensive aspect to them, in part owing to the blurred nature of cyber espionage that does not conform easily to the foreign versus domestic dichotomy traditionally used to partition internal from foreign intelligence gathering. Threats now are seen as “glocal” or “intermestic,” and thus offensive cyber intelligence operations are run side-by-side with domestic counter-intelligence (defensive) work. That includes meta data mining on home soil, and the sharing of that data with Echelon partners.
Rather than honestly reveal the true reasons why the amendments to the GCSB and TICS Acts are being proposed, the National government has resorted to the old canard about terrorism. It may be doing so because it is undiplomatic to point out that its second largest trade partner has been accused by New Zealand’s strongest security and intelligence partners of being the source of most cyber attacks on their respective and shared computer networks. It may be doing so because it assumes that most people simply do not care about issues of security and intelligence, and it might be right. But whatever its rationale, its proposals are way over the top given the realities of New Zealand’s position in world affairs and its history as a democratic polity.
There is much more that is wrong with the New Zealand intelligence community–the lack of effective and independent oversight, the political manipulation of intelligence flows, the overly broad definition of national security and threats to it being foremost amongst them. It is therefore not surprising that in the very framing of the debate about the GCSB and TICS Bills, the government has resorted to bluster and fear-mongering rather than outline the real thrust of its changes.
That is a pity. Had it done so it might have been able to reach a compromise on cyber security more appropriate for a small liberal democracy on the periphery of the major conflicts of our times. However, as things stand New Zealand is about to be saddled with a cyber-security apparatus apparatus more similar to that of Singapore than those of Belgium, Norway or Uruguay.
That pretty much says it all about how National views the world.
Selwyn Manning has done a Q&A with three individuals who have different and at times conflicting views of the GCSB and TICS Bills, although all three are critically opposed to the bills in their present form. One is a strategic analyst, one is an internet entrepeneur and one is an IT lawyer. John Key may dismiss them as uninformed, politically motivated or holding some hidden agenda, but their differing takes on the issue may make for some food for thought for KP readers.
The Q&A can be found here.
Once John Key realized that his efforts to expand state spying powers were not meeting with the usual docile approval on the part of the public, he retreated to his usual habit of spinning alarmist tall tales (The terrorists are here! The terrorists are in Yemen but coming back!) and smearing his detractors. Some time ago it was Jon Stephenson and Nicky Hagar who got the smear treatment over their coverage of NZDF, SIS and GCSB activities in Afghanistan, with Key dismissing them as liars and conspiracy theorists. Now he has threatened the Human Rights Commission because of its opposition to the GCSB and TICS Bills and dismissed the Law Society’s objections as politically motivated.
His comments about the Law Society are revealing, because he has launched a personal attack on Law Society spokesperson Rodney Harrison QC for being part of Ahmed Zaoui’s legal defense team. Here he has outdone himself on the sniveling weasel scale, because he not only makes it appear that Harrison was somehow wrong to help Zaoui defend himself against claims that he was a terrorist, but he smears Zaoui himself in the process.
Let us be very clear: Ahmed Zaoui was never a terrorist, nor did he knowingly associate with terrorists. He was a member of a legitimate Algerian opposition movement in exile who were forced out of their homeland after a military coup that deposed the democratically elected government that they were part of. Because his political activities in exile made host governments in Europe uncomfortable (governments with close ties to the Algerian military regime), he was forced to undergo two politically motivated sham trials in France and Belgium and when that did not stop him from continuing his political work, to involuntarily globe trot in search of security for himself and his family after his residency permits were canceled.
After stints in Burkina Faso and Malaysia, and with the Algerian secret services on his tail, he made his way to New Zealand and requested political asylum. For that he was jailed, held in solitary confinement for nearly a year in a maximum security prison, spent another 14 months in a medium security prison before being granted bail, and in all was forced to undergo five years of legal wrangling before his refugee request was granted (a request that was initially approved by the Refugee Status Appeals Authority in August 2003 but opposed by the SIS). His treatment by the Clark government was abhorrent.
Let us also be clear that the terrorist claims against Zaoui were manufactured by the SIS, sometimes in amateurish fashion (such as the so-called “casing” video that detailed his travels through Southeast Asia before embarking on a plane bound for New Zealand). The director of the SIS at the time, the duplicitous ex-ambassador and self-admitted Francophile Richard Woods, orchestrated a campaign of smears and falsehoods against Zaoui so as to keep in the good graces of the French government, a project that he had begun during his posting to the New Zealand embassy in Paris (as ambassador to France and Algeria) in the mid 1990s. Wanting to look tough on terrorism post 9/11, the Clark government aided and abetted Mr. Wood’s character assassination project, and it is to its everlasting shame that it did so.
In the end, the accusations against Zaoui were thoroughly and systematically discredited by Mr. Harrison and his legal team, and the SIS was forced to rescind the security risk certificate issued against him. In September 2007 he was granted asylum and the following month his wife and four children joined him. He is now a small businessman living with his family in Auckland.
This is why John Key is behaving like a sniveling weasel. In order to garner support for his spying bills he has played on latent anti-Muslim prejudice and fears of terrorism long after the Zaoui case ended to make it appear that Zaoui was guilty of something and that Mr. Harrison was wrong to defend him.
Yet the truth is quite different: Mr. Zaoui was an innocent man wrongly accused for political and diplomatic reasons by the New Zealand authorities of crimes he never committed. Mr Harrison was one of the champions who defended Zaoui against the gross injustice perpetrated against him by the State. Both men displayed integrity and steadfastness of purpose in the face of concerted official duplicity and malice.
If nothing else, Mr. Key’s cynical revision of historical events for scare-mongering purposes, set against the backdrop of SIS dishonesty in the Zaoui case and the GCSB illegal wiretapping of Kim Dotcom, should be added reason why the GCSB and TICS Bills need to be resisted. After all, if this is how the Minister of Intelligence and Security and his agencies operate under current law, what does that say about what they could do with expanded powers?
One thing is certain. Of the three men involved in this story, one cannot be trusted to act with honesty and integrity in the face of adversity. That person is not Ahmed Zaoui or Rodney Harrison, QC.
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.”
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.