Counterterrorism, back to the future.

Recently I was approached by a major media platform to help them develop story lines and questions on some terrorism related topics. These focused on the SIS Report of the Internal Review conducted in the wake of the March 15 terrorist attacks and news that a younger generation of extremists are being radicalised on-line. I ended up spending an entire afternoon talking and corresponding with two reporters and a producer about possible leads, only to find out that my research and work (about four hours worth) would not be compensated and instead would be used to frame interviews with and guide questions to others.

In my opinion, this is not acceptable. Sure, there are plenty of people who will jump at the chance to have their faces on TV or voices on radio for free. There are those in salaried positions who can afford to offer free commentary as a sidebar to their “real” jobs. But that is not me. I am not an academic who can share expertise as a form of community outreach that looks good on my performance reviews. I am not a member of a interest group that may have a cause to promote. I am not a charity. I am a political risk and strategic analysis consultant, which means that I have to earn a living based on my supposed expertise in various fields, which I use to engage in targeted research and analysis based on client interests and needs. When I get called by someone asking for advice or comment, I take it as a professional call, not a courtesy. In this instance I should have known better but I decided to help out anyway and in the end was reminded that wasting four hours of my time on a subject that is not billable is just that–a waste of time and energy.

Think of it this way: if someone has a plumbing problem that s/he cannot fix on their own, they call a plumber. Do they expect the plumber to do the fix for free? If not, then why, lacking in-house expertise, would a media outlet call a subject expert and ask him to stop his own work, address their subject of interest, help them develop story lines or questions for interviews about that subject, offer the possibility of appearing in person to explain the topic, but then take his responses, cancel the interview and act surprised when payment is mentioned? Beyond the matter of compensation for services rendered, there are issues of journalistic ethics at play as well.

In any event, I decided to collect the analyses that I worked on and organise them into a blog post. The first part deals with the SIS Internal Review. The second part address the issue of younger people being radicalised on-line, in particular the impact of gaming on extremist recruitment and radicalisation.

I. The Immediate Past.

The SIS released a heavily redacted version of the internal review of its systems and processes in the lead up to the March 15 terrorist attacks in Christchurch. The Review, whose Executive Summary was released last year, parallels that of the Royal Commission of Inquiry (RCI) into the Christchurch attacks but is limited to the SIS itself. Unsurprisingly, there is much commonality and overlap between the two Reports, which also share the attribute of not holding any agency or individual to account for anything–be it acts of commission or omission–that happened in the lead-up to the attacks. Apparently everything worked as it was supposed to given the operational parameters then in place, but the operational parameters were disoriented. There were no institutional failures because all systems worked fine. It was just that the institutional gaze was fixed in such a way that the attacks could not have been prevented.

The findings are as we already know: the components of the SIS worked as they were supposed to under the pre-March 15 system but the system as a whole was set up and focused in a way that made impossible detection and prevention of an attack of the sort carried out in Christchurch (by a self-radicalised lone wolf from the ideological right-wing). It recommends various reforms and overhauls, including more emphasis on strategic analysis because the SIS was/is too focused on immediate operational (monitoring and collection) tasks given the then identified and established agency priorities. This prevents the SIS from seeing more long-term, broader and “weak signal” threats emerging before they materialise, including those emanating from domestic rather than distant shores. For an agency that has domestic human espionage as one of its three main areas of responsibility (along with counter-espionage and foreign human espionage) that is a telling admission. In fact it is worth some serious inter-textual analysis because sometimes what is left unsaid is worth more than what is said.

The Report specifically says that there was a lack of information and data sharing with other agencies, particularly the Police. The SIS and Police both have domestic counter-terrorism and intelligence gathering functions but they apparently do not coordinate operations or share information and data (in fact, the SIS is not able to access 2 of 9 government data bases, both of those under the control of the Police). In stating that, the SIS implies that the Police might have known about or had the Christchurch killer on its radarscope during the course of its investigations, but its emphasis on “criminality” rather than ideology and the siloed nature of its intelligence operations meant that anything it might have known about the killer and other violent white supremacists was kept to itself. The SIS goes on to say that even with better data and intelligence sharing they still might not have been able to connect the dots enough to detect and prevent the terrorist from acting, but the implication is two fold: other agencies with more contacts “on the ground” might/could have known about him if their priorities were different; when it came to counter-terrorism, even after eight years of white extremist mass murders dating back to the Norway killings in 2011 and repeated warnings about the rising use of the internet as a conduit for radicalisation of all types (be it jihadist or white supremacist), the NZ security apparatus discounted, ignored or simply did not care to invest more than rhetorical resources on the non-jihadist menace emerging from within.

The Report also recommends that the SIS increase its proactive role in identifying and preventing threats, especially so-called “weak signal” or low-level rumblings that could eventuate into real dangers. As a “leads-based” monitoring and collection (as opposed to enforcement) agency under the pre-March 15 “business model,” it acted reactively to known threats within the assessment parameters of the day. That means that it did not look, much less think outside of the box or look over the immediate and accepted (status quo) threat horizon when it came to the domestic threat landscape. In other words, it saw what it wanted to see and ignored what it did not want to see or hear (such as the repeated warning by Islamic organisations they they were being targeted for individual and collective harassment, including violent threats and assaults) based on the threat scenario assumptions in vogue after 9/11.

The recommendations also suggest that the SIS work with the Police to promote legislation that criminalises a range of terrorist preparatory activity (say, explosive precursor purchases, weapons and ammunition stockpiling, social media postings etc–all of these based on the Australian counter-terrorism approach) so that the Police and SIS authorities have legal grounds to engage in preventative or pre-emptive actions currently not allowed under the law. This may eventually include designating neo-fascist groups as terrorist entities if advocating or inciting violence is included along with committing violence in future anti-terrorist legislation.

There is a lot more in the report if you read as much between the lines as you do the lines themselves. IP addresses noted but eventually not followed up on that turned out to be those of the killer (making racist comments and buying ammunition in bulk, among other things). Hints at resistance to and obstruction of the former Inspector General’s attempts at tightening oversight, transparency and accountability. Reports of his use of a drone to surveil the mosques, again not followed up on in any significant measure. Prolonged travel to conflict zones amid tourist spots by a resident foreigner with no job. And yet no organisational failures–that is, of people, processes, procedures or perspective–were found. The system worked as it was supposed to. That is troubling.

Seen through cynical eyes, the SIS Report is a way to engage in some polite fence painting and rear-end covering while discretely shifting blame onto the Police (who have yet to issue their Report, if there is any). After all, if all of their systems worked as they were supposed to be and no one is at fault in the SIS for failing to detect and prevent the massacre under the organisational priorities of the day, then the ball must have been dropped by some other agency or the entire domestic security community. The latter would be an admission of institutional incompetence or myopia on grand scale. More pointedly, if we consider that the only other agency with domestic counter-terrorism functions is the Police, then the onus appears to be on them. However, as the RCI Report noted, the Police focus on criminality, not on ideological extremism. That means that, hypothetically speaking, even if they in fact stumbled upon some skinheads talking about attacking a mosque during the course of a drugs investigation, it is possible that they failed to pass on that information to the SIS because a) that was not their operational concern; and b) they were “siloed” in their approach to information and data sharing in any event. As for other agencies helping the SIS detect extremists in a partnership role (say, Immigration) they too were siloed and silent when it came to this particular type of terrorist threat.

The major take-aways from the Report are the failure of the SIS to be proactive and failure to two-way information share with other domestic security agencies under a individual and collective “business” model that simply was not cognisant of, much less focused on emerging threats from the extremist Right even eight years and dozens of right-wing mass murder events subsequent to the 2011 attacks in Norway (which were the inspiration for all of the white supremacist mass murders that followed, including March 15). Left unknown are all of the redacted parts of the report (other than the killer’s hidden name) and who, exactly, the “independent” reviewer was (I may have overlooked this so if anyone can point me to his or her identity that would be helpful).

II. The Immediate Future.

Recent assessments by the Australian Security Intelligence Organisation (ASIO) and various European intelligence shops point to the growing trend of young people, including teenagers, becoming radicalised on-line. What used to be problem with regard to would-be jihadists appears to now have morphed into a problem of white supremacy and/or neo-Nazi ideology. The bottom line is that the issue of younger (mostly male) people being inclined towards ideological extremism and/or recruited into extremist groups is very real. But there is a good and a bad side to the phenomenon.

On the bad side, younger people are being desensitised and drawn into using violence as a means of conflict resolution via an increasingly sophisticated and interactive gaming world. Virtual reality (VR) interactive games not only involve multiple players but increasingly contain highly sophisticated graphics of combat and other violent scenes, many very dark in nature (including grotesque violence against women). Players can choose their villians and heros, putting themselves in one camp or the other in highly realistic real-time action scenarios that are often as ideological as they are gory. All of this can be done as if in person. One can be a modern Crusader slaughtering jihadists or vice versa. One can be a US Gi wiping out Japanese troops in WW2. One can be a torturer, prison guard, mass murderer or violent criminal targeting women of color. One can be the Christchurch terrorist streaming his murders to a live audience. And so forth–the range of violence and characters is limited only by the player’s and game creator’s imaginations. To this can be added violent pornography, again often with explicit misogynistic imagery.

Advances in personal telecommunications technologies–mobile phones, apps, etc.–have made it easier for younger people to access all aspects of the internet. While they are a feature of modern life and a symbol of the conveniences afforded to modern societies, they also bring with them readily accessible pathways into the darkness of violence and hate. In the measure younger people are afforded access to these instruments and recognizing the tremendous benefits that they bring, avoidance of or exposure to the dark side of the web is now a feature of teenage life. Add in the natural attraction of realistic games in virtual settings, and the stage is set for youth radicalisation via gaming even in places where they are not subject to socio-economic deprivation and political oppression.

It can be argued that people attracted to highly realistic and hyper-violent on-line gaming and porn already exhibit psychopathic and sociopathic personality traits. We are not talking about FIFA2020-style sports games here. We are talking about mayhem and degradation. These types of forums now attract millions of players, some of whom may be working off stress but others who may be descending into dark violent fantasies. That includes so-called “Incels,” as in “involuntarily celibate:” men who cannot find or hold physical relationships with women and who in many instances believe themselves to be too pure or righteous to pay for sex. This leaves them very sexually frustrated and very angry, often violently so. More generally, abuse of female players is a well-known pathology in the gaming community. On VR interactive gaming platforms people with these tendencies and/or other anger issues intersect and engage with racists, bigots, violent psychopaths, animal abusers and assorted other degenerates, leading to what we might call a “nexus of hate.” It is there where white supremacist recruiters, as was the case with jihadists before them, are now regularly launching their appeals to increasingly younger audiences.

It is bad enough that younger generations of (again, mostly male) people are using violent interactive games as a form of entertainment, stress relief and fantasy fulfilment. It is worrisome that the age threshold of these people, as well as those who habitually use extreme porn, appears to be lowering. These forums can be highly addictive for certain personalities, and the obsession can be detrimental to the individual as well as those around him. Some obsessions become political and ideological–fixations on who is to blame for one’s personal ills as well as the world’s problems; and on how to fix them. Now we must factor into account that both jihadists and white supremacists (and others) use interactive gaming as a recruiting device, luring people to be more extreme in their character stereotyping and urging them to carry over their on-line personas into real life. This is, to say the least, not good when imparted on impressionable teenage minds (or anyone else, for that matter, but it is the young who most often get sucked into the vortex). From there it is a short leap onto extremist forums like 4 Chan or 8Chan (and others), and from there the pathways to the dark web and serious planning of violence are just steps away–yet discoverable when one has interactive skills and some coded advice on how to get there. One can only hope that intelligence agencies know how to get there as well.

Like many other social media platforms and content providers, the gaming industry is reluctant to move beyond basic guidelines for usage such as R18 warning labels. It zealously guards the privacy of its customers. Like the porn industry it is an early adopter of new audiovisual technologies, including VR and AI, in the construction of its consumer ranges. That puts it ahead of security-intelligence agencies, which like the old military adage notes, are playing technological catch-up while preparing to fight last century’s wars with mid-century (however updated, such as with 3rd generation warfare) tactics. As I have written in more professional settings, the problem of institutional lag is very real in the NZ intelligence community (see part I above), but also world-wide in specific areas of concern such as on-line right-wing extremism.

The problem of younger people getting radicalised into extremism online and acting violently as a result is indisputably real. Other forms of radicalisation remain (say, in churches or via criminal gangs, drug networks, etc.), but these are increasingly superseded by the on-line process because the latter does not expose the recruiter or recruitee to outside scrutiny. The interaction (or what might be called the dialectic of radicalisation) occurs in a bedroom or a basement rather than a church or a private clubhouse even though the latter remain as physical spaces for the larger community and therefore may include people of more extreme persuasions within them. But physical space is more and more a secondary site for extremist radicalisation and recruitment. Gaming is the most recent but not the only source of on-line radicalisation and recruitment, which also occurs in discussion groups, political fora, video channels, twitter threads and any number of other social media.

The good news is that the young are by and large easier to catch, particularly so with this TikTok/Instagram generation. That is because teens and twenty-somethings like to boast and be recognised as a form of affirmation and self-worth validation. This makes them careless on-line as well as in person, which in turn helps security authorities to distinguish between those who talk and those who act, those who are doers and those who are not, those who are leaders and those who are followers. There are plenty of psychological profiles in the intelligence community with which to develop individual and collective threat assessments from what is canvassed on-line. 

In effect, the younger they get, the more likely ideological extremists will trip up and be discovered because they are psychologically unable to maintain the level of security required to carry out successful irregular warfare operations such as terrorist attacks. This is not 100 percent the case but the odds in favor of their pre-emptive detection by security authorities increases dramatically when compared to say, a 35 year old ex-military veteran with 10 years of service and knowledge of weapons and explosives, a serious grudge against somebody (be it a group or government agency), on-line masking skills, knowledge of basic operational security, tight lips, few friends and a murderous eye on a mall or transportation hub. THAT is a real and palpable threat.

So there is a silver lining in the move towards younger extremists, but only if security authorities are literally on top of their games. Given what the SIS Internal Review discovered, that appears to be far from being the case.

The rot at the top (2).

Thanks to a report from the Acting Inspector General of Intelligence and Security following a complaint by Nicky Hager, we have come to find out that the SIS illegally spied on Mr. Hager on behalf of the NZDF after publication of Hager’s 2011 book, Other People’s Wars. The NZDF justified its request by arguing that it was investigating potential espionage, although it turns out that it was actually looking for the NZDF source of leaks to Mr. Hager. This occurred when John Key was the Minister of Intelligence and Security, Warren Tucker was SIS Director and LTG Rhys Jones was Chief of the NZDF . Did the SIS and NZDF go rogue or were these individuals aware of the spying?

It seems hard to believe that none of these people were unaware of what their subordinates were doing. The NZDF request might have been accepted as a tasking under the partner agency agreement whereby the SIS assists other government agencies when and where needed. But for this to happen the Commissioner of Warrants or the Minister of Intelligence and Security would have to have approved the request. So the question is: did this happen? Was the request, while done through proper channels, truthful in its justification or was the warrant signed under false pretences? Or, did the NZDF and SIS agree to monitor Mr. Hager’s phone records without authorisation from above? If so, who authorised that action? Mr. Tucker and LTG Jones? Some mid level managers in the NZDF and SIS?

It should be noted that this unlawful spying occurred before the Police illegally searched Mr. Hager’s home and accessed his bank and phone records after the publication of his 2014 book, Dirty Politics. Here too we have the question of who, exactly, authorised the intrusion: the Minister of Police? The Police Commissioner? Someone below that rank? A friendly Justice of the Peace? Was the illegal Police access–again, supposedly to find the hacker called Rawshark who leaked to Hager a rightwing attack blogger’s emails and social media communications–a follow up or in any way connected to the previous NZDF/SIS investigation? After all, security agencies share information even after investigations are concluded or cases closed, so it is not inconceivable that the SIS file on Hager was forwarded to the Police once they opened their investigation into Rawshark’s identity. Ironically, the Police ended up with the same result as did the SIS when looking for Hager’s sources: nothing.

After the Acting IGIS issued her report, the Director General of Security (head of the SIS), Rebecca Kitteridge, issued an apology to Mr. Hager, seven years after the fact. But apologies are not enough. Punitive sanction must be meted, however retroactively, on those who ordered the spying in both the NZDF and SIS as well as those in cabinet who may have been aware of it. Will that ever happen? It is for the current Labor-led government to decide, which means that it needs to seriously think about yet another official Inquiry.

This may seem tedious and burdensome on the taxpayer, but it is now pretty clear that there is a systematic pattern of abuse of authority in the NZ security community. In the last ten years the Police, GCSB, NZDF and SIS have all been found to have committed unlawful acts against NZ citizens and residents. Little to nothing has been done to address, much less correct these institutional excesses, so the opportunity is ripe for a calling to account from those involved. Once the inquiries into Operation Burnham and Christchurch terrorist attacks are finalised and their reports submitted, that can be used as a starting point for a fuller inquiry into what I have previously labeled the “culture of impunity” that pervades the repressive apparatus of the NZ State.

As things stand and unless an investigation is launched into the mechanics of these unlawful and illegal acts, those who ordered the spying are likely to go unpunished. The maximum penalty for the SIS breaking the law is a $5000 fine for the agency, not any individuals employed in it. Key, Jones and Tucker are all retired and unlikely to receive any a posteriori punishment. So unless there is an investigation and subsequent law changes that hold people strongly (and retroactively) accountable for ordering or facilitating illegal acts committed by security agencies, impunity will endure and the institutional foundations of NZ democracy continue to be corroded from within.

The rot at the top.

When military leaders cover up and lie to elected civilian authorities, the foundation of democratic civil-military relations is undermined because it is those authorities who are entrusted to hold the military accountable to the public that they mutually serve. But this is only true if civilian political authorities take their responsibilities seriously and accept that when it comes to military operations the policy buck stops with them.

The same is true for intelligence agencies in democracies. While specific operational details remain within the agencies involved, the general policy guidelines for how they conduct those operations, and the responsibility for them, rests with a) the legal framework governing their activities and b) the elected civilian governments that are their overseers at any given point in time. For both the military and intelligence community, this means exchanging corporate or institutional autonomy-that, is, the ability to set internal standards, practices and objectives free from political interference–in return for submission to civilian political authority on broad matters of policy and accountability.

In recent weeks we have discovered, thanks to the Inspector General of Intelligence and Security’s report on NZ involvement in the CIA-operated extraordinary rendition/black site/torture program, that the NZSIS and GCSB received and supplied information that was directly linked to detainees who were subject to torture by the US and other allies in the coalition fighting al-Qaeda and the Taliban. The directors of these agencies at the time claim that their agencies did not know about the program even though they worked hand-in-glove with the CIA in Afghanistan and elsewhere and even though knowledge of the extraordinary rendition/black site program and the use of torture was in the public domain as early as 2004. From what is described in the IGIS report, it appears that NZ intelligence bosses had their own version of “don’t ask, don’t tell” when it comes to what the US was up to. As Richard Woods, former NZSIS director general, is quoted as saying in the IGIS report (I paraphrase here), “do you really expect us to ask the US directly about such things and risk our relationships with it?”

When confronted about this discrepancy by the IGIS the former directors maintained the high-ranking government ministers of the day were privy to all of the sensitive information regarding NZ’s intelligence relationships and that as agency directors they had no authority to engage in moral, ethical or legal judgements about what their allies were doing even if these actions violated NZ and international law–all while maintaining that they knew nothing about unmarked airplanes, black sites, torture and suspects being captured (including by the SAS) and then “disappeared” into the covert operations labyrinth.

That broaches the question as to whether former directors Richard Woods and Warren Tucker are simply lying (former GCSB chief Bruce Ferguson was a late arrival to the events under investigation and inherited his situation from Tucker) and prefer to put NZ intelligence relationships with the CIA ahead of their supposed duties to the NZ government and nation as a whole. Or, did the governments of the day, led by Helen Clark and John Key, know about the extraordinary rendition/black site/torture program and authorised and covered up NZ participation in it? It should be noted that Barack Obama ended the extraordinary rendition/black site/torture program shortly after he assumed presidential office in January 2009, so the bulk of NZ’s involvement with it happened under the 5th Labour government.

With regards to the NZDF, thanks to the book “Hit and Run” by Jon Stephenson with Nicky Hager and the ensuing Royal Commission of Inquiry into Operation Burnham (the subject of the book), we now know that the military brass did not inform (at best) or mislead (at worst) senior government officials about the possibility of civilian deaths in that mission until news of it became public (again, mostly thanks to the work of Mr. Stephenson in his series on NZSAS activities in Afghanistan). The NZDF story constantly changed as more was revealed, and the Inquiry has now found out that a critical NZDF document recognising the possibility of civilian deaths was “lost” in a secure safe for three years and that a register of who opened and closed that safe during that time frame somehow went undiscovered until this week. Former ministers in the Key government, which was in office when the mission was conducted, maintain that they were unaware of the existence of anything that would contradict the original NZDF version of events, which claimed that only “terrorists” were killed.

That raises a profoundly disturbing possibility whichever way the truth falls in each case. On the one hand, it would appear that senior NZ intelligence and military officials do not inform and in fact cover up controversial operations that occur under their watch. The civilian authorities to whom they ostensibly answer to in the division of labour that constitutes the foundations of democratic civil-military/intelligence relations are deliberately left in the dark. This suggests a level of arrogance and sense of imperiousness that is inimical to democratic governance because there is no regard for personal or institutional accountability embedded in their decision-making. They simply do as they see fit and lie about it afterwards.

On the other hand, it is possible that military and intelligence officials respect the concept of civilian political authority and inform governments of the day of everything that they are doing, including when things go wrong or unpleasant compromises are made in the interest of national security. This can be considered to be a variant of the “no surprises” policy in which governments are informed apriori of controversial decisions so as to not be caught off-balance when said decisions become news. If that is the case, then political managers shoulder responsibility for the policy decisions under which the NZ intelligence community and NZDF operate, including taking the blame when things go wrong or uncomfortable facts are revealed about what NZ security forces are doing at home and abroad.

However, it appears that in NZ there is not only a variant of “don’t ask, don’t tell” operating in the intelligence community, but it is attached to a civilian political management approach whose operating premise is “don’t want to know.” That is, civilian political authorities display willful ignorance in an effort to maintain plausible deniability when things go wrong or prove politically fraught. That may be expedient over the short term but abdicates responsibility when it comes to civilian oversight of the military and intelligence community, thereby tacitly encouraging military and spy agency impunity during and after (often lethal) operations.

Coverage of the Royal Commission on Inquiry into Operation Burnham has focused on the supposed incompetence of senior NZDF officers when it came to document security and disclosure. “Incompetence” is the most generous interpretation of what was at play here. “Conspiracy based on deliberate and coordinated lies and misrepresentations authorised from the top” is an alternative interpretation. The questions now are: which of these two interpretations seems more plausible and will anyone be held to real account in any event? Surely, if the government of the day was deliberately lied to or mislead by the NZDF and was not complicit in the coverup, then there is criminal liability involved.

The same goes for the intelligence agency chiefs who say they did not know what their subordinates were doing during the years in which the CIA-operated extraordinary rendition/black site/torture program was running. If they lied to their political masters about what they knew, then there should be consequences for that even if it has taken time to uncover their deception. If the political authorities at the time knew about NZ intelligence community involvement in the program, that should become a matter of public record even if little can be done in terms of retroactively applying punitive sanctions on their behaviour..

Not to put too fine a cynical point on it, but perhaps there is another hand at play in both instances. The IGIS report on NZ involvement with the CIA extraordinary rendition/black site/torture program speaks at length about managerial misadventure in the NZSIS and GCSB and even “naivety” in the discharge of their duties (when was the last time anyone ever heard the word “naive” associated with spy agencies?). The Inquiry into Operation Burnham has heard about “mistakes” and “oversights” on the part of NZDF senior leaders. It would seem that the common denominator in both is incompetence rather than wilful or deliberate circumvention of ethical norms, legal obligations and constitutional responsibilities.

Could it be that “incompetence” is the ultimate “get out of jail” card for public servants found to have failed in the discharge of their basic obligations and responsibilities?

A return to the banality of evil.

When Hannah Arendt wrote about the “banality of evil” in Nazi Germany, she was referring not to the leaders but to the thousands of bureaucrats, soldiers, civil servants, cops, tax collectors and everyday citizens who went along with the Nazi project or simply said that they were “following orders,” “doing their jobs” or being “good citizens.” The Nuremberg trails put paid to those excuses.

Today in the US we have a variant on the theme. It may not quite be holocaust in size, but the forced separation of children from undocumented parents in order to use them as pawns in Drumpf/GOP attempts to extract Democrat concessions on immigration reform (pay for the wall, etc.) is abhorrent nevertheless. And while attention rightfully is focused on Drumpf and his minions, my question is this: who are the people who are enforcing this wretched policy? These are the people who take the evil abstract of forced family separation and turn it into executable action via bureaucratic procedures and regulations (e.g. wearing of surgical gloves when handling detainees, using female agents to process women, providing water and x amount of calories via solid food at regular intervals, etc.). Who are the border patrol, local law enforcement and homeland security agents and private contractors who are doing the actual separation and detention of children in cages? Are they doing this because they agree with Drumpf, are racists themselves or are just plain psychopathic? Or are they going to tell us that they are only following orders and doing their jobs?

Until we make those carrying out this atrocity as personally responsible as Drumpf, Sessions, et.al, we will continue to see the steady undermining of the moral foundations of the Republic. Make no mistake about it: these enforcers of the morally reprehensible are neighbours, friends, family members and church goers who go about their lives as if all was normal. And that is exactly what Arendt was describing. It is the banality of such evil that eventually makes it normal.

Less NZ readers think that it cannot happen here, just hark back to the Police invasion of Nicky Hager’s privacy in search for the elusive “Rawshark” source. You may recall that I wrote a post about how the cops used Customs, Immigration and airline companies to obtain the personal data of thousands of passengers who flew on certain dates between Auckland and a foreign country where the Police suspected Rawshark was vacationing. None of this was done under warrant, but instead, just as in the case the banks that gave up Hager’s financial records so readily, they did so willingly upon request. All of those involved will defend their actions as cooperating with the Police but in fact they were under no obligation to do so without a warrant. But they did.

We now learn that a private security firm has a hand in glove relationship with NZ public agencies in spying on people who pose no threat to national security, and that in fact the private security firm may have business steered to it by a NZ intelligence agency in spite of the obvious–or at least appearance of–conflict of interest. Here as well we have a case of people just doing as they are told without consideration of the ethics or morality about what they are being told to do, some in pursuit of profit and some for reasons known only to them. They are following orders, doing their jobs, chasing leads and tip-offs without consideration of the fact that what may be legally permissible (or at least not outlawed) may not be morally or ethically proper.

These, in sum, are Kiwi examples of evil gone banal. And there are bound to be others, so perhaps the abomination that it is the Drumpf policy of separating undocumented asylum-seeking families at the southern US border should serve as a reminder to New Zealanders as to the depths to which a nation can plunge if it allows that evil banality to become the new normal.

Something Fundamentally Wrong.

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

I beg to differ.

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

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

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

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

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

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

Cover for operations and employees

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

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

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

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

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

Immunities.

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

Questions of the day.

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.

 

Suggestions for the Intelligence Review Committee.

Readers will know that I expressed my unhappiness with the composition of the Intelligence Review committee and my belief that, save some cosmetic changes, a whitewash of the NZ intelligence community (NZIC) could be in the offing. Although I spoke with several people who were making public submissions to the committee (the deadline for which has passed), I decided not to waste my time given the press of other business and likely futility of doing so.

To my surprise, a month or so ago I was invited to speak privately with the committee, which for those who do not know consists of Sir Michael Cullen and Dame Patsy Reddy. The terms of reference for the committee are quite narrow on the face of it but I took the view that they can be interpreted more broadly in the context of the Review. The two major terms of reference focus on whether the legislative frameworks governing the New Zealand Intelligence Committee (NZIC, and GCSB and NZSIS in particular) “are well placed to protect New Zealand’s current future national security, while protecting individual rights; (and)..whether the current oversight arrangements provide sufficient safeguards at an operational, judicial and political level to ensure that the GCSB and NZSIS act lawfully and maintain public confidence.”

More specific matters subject to the Review include whether the 2014 Foreign Fighters Act should be extended or modified before its March 31 2017 expiry date; and whether the definition of ‘private communication’ in the GCSB legislation is satisfactory.

I decided that I would accept the opportunity to speak with Sir Michael and Dame Patsy in spite of my reservations about the Review process. Without going into the details of the meeting, here is some of what I outlined to them.

I started off by noting that much of the commentary about the NZIC was mistaken in its classification of the GCSB as the “foreign” spy agency and the NZSIS as the “domestic” spy agency. I pointed out that the proper classification was that the GCSB is the signals and technical intelligence agency (SIGINT and TECHINT in the parlance) and that the NZIS is the human intelligence agency (HUMINT). Both have domestic as well as foreign espionage roles, although these needed to be explicitly detailed in law and circumscribed as much as possible when it came to the domestic side of the fence.

I continued by stating that the Countering Foreign Terrorist Fighters Act needs to be abolished. People who commit violent crimes abroad, particularly war crimes and crimes against humanity, can be detained and/or charged under criminal law and extradited to face justice in the jurisdictions in which the crimes were committed. If that is not possible they can be tried by the International Court of Justice in The Hague. This is true whether they are identified as individuals or as members of a group that commits atrocities. So long as there is evidence of involvement in criminal acts, there currently are means of ensuring they face justice without politicising the cause.

I said no to the idea of revoking their passports to prevent their return and noted that the presumption of innocence should apply to returning fighters who are not implicated in atrocities even if they were involved in foreign conflicts. I also noted that according to Western intelligence estimates, less than 50 percent of those who travel to fight with ISIS return alive, and of those the vast majority are too traumatised to consider committing acts of violence on home soil.

We had a lengthy discussion on what constitutes a “private communication.” The 2014 GCSB Act states that it  anything a person could reasonably expect to be public in nature, say a Twitter or Facebook posting or even email on providers such as Google or Yahoo that data mine their clients information for advertising purposes (all of which is voluntarily agreed to by clients under the terms of service, which is what they are required to tick off on before setting up an account). I feel that definition is too vague, broad and permissive when it comes to GCSB powers of electronic surveillance. My bottom line is that a private electronic communication is akin to a dinner table conversation: that which a person has a reasonable expectation will not be repeated or listened to by people outside of the immediate context in which it was made.  I noted that personal data mining for advertising purposes was a bit different than the State doing so for security purposes–especially when it does so without consent (since I doubt many people ticked a box allowing the GCSB or other intelligence agencies to monitor their private communications).

If the authorities cannot read our snail mail letters without a warrant or consent, I do not believe that they can read our electronic mail without such either. That still leaves the issue of meta-data and bulk collection, but as I have written before, I do not believe that the latter is equivalent to mass surveillance for technical as well as legal reasons.

With regard to legislation, I suggested that the Search and Surveillance Act needs to be narrowed because it has been expanded too much as a result of post 9/11 hysteria. I also suggested that the GCSB Act be reviewed and narrowed with regards to its powers of domestic espionage. Although I have no real problem with its “Assistance” role when it comes to aiding the NZSIS or Police on home soil, and fully understand that the Act needed to be upgraded to cope with cyber espionage, crime and warfare, I believe that its powers of warrantless surveillance on NZ soil are too broad and intrusive. Narrowing the GCSB Act would still allow the GCSB to engage in defensive measures and counter-espionage with or without the help of its sister agencies, but it would prevent it from conducting offensive operations against NZ domestic targets without a warrant.

Most of what I had to say about legislation consisted of a proposal that the NZSIS Act be amended so that it is stripped of its domestic espionage and security vetting functions. Those should be moved to the NZ Police (who need to be resourced accordingly), since the Police already do much domestic spying and background checks. Perhaps even an FBI or MI5-type civilian domestic espionage agency could be created that answers directly to Crown Law if not the Attorney General (fully understanding the political nature of the latter). The reason for this proposal is that as things stand the NZSIS does foreign human intelligence gathering, domestic human intelligence gathering, counter-espionage and security vetting. An agency of 300 people (counting clerical staff) might be able to do one, perhaps two of these tasks adequately, but it simply cannot do all four anywhere close to efficiently or effectively. Since the type of signal and technical intelligence collected by the GCSB and its foreign partners can only paint part of any given intelligence picture, it behooves the NZSIS to complement that with an autonomous human intelligence capability that focuses on areas of foreign policy priority or concern. It is important to know about the context–as in culture, mores, norms, personalities, interests and attendant modes of behaviour–in which signals and technical intelligence is obtained, and that should be done independently by NZ in areas of priority interest (say, the South Pacific).

In terms of oversight I noted the gross inadequacy of the current “arrangements.” I suggested that there  needs to be better parliamentary and judicial oversight of the NZIC, and that this has to be proactive as well as retroactive in nature. If I was running the show I would leave the Inspector General of Intelligence and Security (IG) as the in-house executive branch oversight mechanism, perhaps by re-locating the IG office to Crown Law jurisdiction and out of the immediate control (via resourcing) of the NZIC and Prime Minister’s office (DPMC). I also have little issue with the current state of the Commissioner of Warrants and Minister of Intelligence and Security signing off on warrants.

Yet I spent considerable time explaining how important a division of powers is when it comes to intelligence oversight in order to avoid bureaucratic “capture” by the NZIC. I proposed that a dedicated parliamentary committee on Intelligence and Security be created, as an agency of parliament with its own permanent staff, that would have proactive and retroactive powers of compulsion under oath. This agency would serve as the non-partisan, apolitical support base for the Select Committee on Intelligence and Security comprised of politicians, and that the Select Committee include members from all parties that receive over 5 percent in the previous election distributed proportionally, with the PM serving as the tie-breaking vote.

Both the Select Committee and permanent staff would have the ability to investigate operational matters and scrutinise classified material rather than rely on unclassified summaries provided by the Directors of the GCSB, NZSIS and other intelligence shops like the NAB. This would require them to sign secrecy oaths but so be it–if they want to sit at the table that is the price the politicians will have to pay (the permanent staff of the committee will of course have been security vetted in order to receive clearance to handle classified material). I fully realise that all of this will cost money and encounter bureaucratic and political resistance, but I think it is very important to undertake these reforms in order to prevent the type of NZIC excesses that have brought us to the current moment.

In order to resolve disagreements  and arbitrate disputes between the NZIC, the IG and parliamentary committee on matters of lawful and unlawful NZIC activities, I suggested that an intelligence tribunal or juridical review panel be formed using High Court justices, QCs or other distinguished jurists. This would serve as the court of last recourse and final appeal on all matters pertaining to the legality of NZIC operations.

Finally, I reiterated my belief that Edward Snowden provided NZ with the opportunity to re-negotiate some of the terms of agreement with its 5 Eyes partners. These will not disrupt the core of the agreement, much less result in NZ’s exit from 5 Eyes. But it could allow NZ to withdraw from conducting front-line offensive intelligence operations against states that have great leverage on it, be it in trade or other areas vital to NZ’s well-being. Thus, for example, NZ could ask to not take the lead in spying on the Chinese in the South Pacific simply because if that were to be made public the Chinese would have to respond even if just to save face (and I believe that the need to respond involves a heck of a lot more than matters of national pride or “honour”). The PRC cannot retaliate to any punishing extent against the other 5 Eye partners given the strategic leverage these have relative to it. But little ‘ole NZ is very vulnerable on that score and could be an easy whipping boy for the Chinese should they want to get the message out that impudent small nations mess with it at their peril.

This re-negotiation does not preclude from NZ doing defensive spying and counter-espionage against any state or non-state actor. But it keeps NZ out of the line of fire of aggrieved large powers should the nature and extent of 5 Eyes espionage continue to be publicly exposed thanks to the Snowden material.

The response of the committee was polite but succinct: the last suggestion was beyond their terms of reference.

 

Media Link: The Slater/SIS/PM’s Office OIA debacle.

Sometimes one has to speak bluntly but honestly about unethical behaviour within the NZ intelligence community. The revelations about the way in which an OIA request from a notorious right wing blogger was handled by the then Director of Security and Intelligence and the office of the Prime Minister in 2011 affords one such opportunity to do so.

Short of taking monetary or personal favours, this is official malfeasance of the first order and is corrosive of the professional integrity of the intelligence community. Shame on all involved.

Improving intelligence oversight.

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.

 

Suspecting the Spies.

Claims by Phil Goff that he was not briefed by Warren Tucker on the SIS Israeli backpacker investigation are remarkable because of what they imply. Not only is he suggesting that Tucker violated his statutory mandate to keep him, as Leader of the Opposition, fully informed of ongoing intelligence matters. His comments also raise the possibility that the SIS filters the information it provides to the Opposition Leader in a way that differs from that given to the government (and in this case provided incomplete information or none at all on a matter of importance). If true, the latter suggests that the SIS serves the government of the day rather than the national security interest at large, and that it “spins” the way it reports on intelligence matters in ways that cater to the government’s political necessities rather than based on objective assessments of the security and threat environment at any given moment. This is a violation of democratic principle.

The current National government would not be the first one to prefer that the SIS “spin” its reporting according to political necessity rather than fact. After all, the SIS did exactly that for the Fifth Labour government in the Zaoui case. Thus Goff’s indignation is a bit rich, although he may have a valid concern that the extent of spin and filtration in his briefs has exceeded the previous norm (recall that Don Brash, then Opposition Leader, said on radio that the case against Zaoui was thin, which suggests that he was getting honest briefings from the SIS at that time).

This is very troubling. If the SIS is, in fact, playing loose with its statutory obligations vis a vis intelligence briefings for the Opposition leader, it raises serious issues about its organisational accountability and transparency when answering to the elected officials (and public) to which it is responsible and to whom it ostensibly serves. This might not be unexpected in an authoritarian regime but it is absolutely anathema to democratic governance.

It is hard to see what political gain Phil Goff would achieve by attacking the credibility of a senior public servant such as Warren Tucker. Being an experienced politician, Goff would know that such a move would generate a backlash against him, including from quarters normally sympathetic to his views. Moreover, Goff has a considerable experience with intelligence flows given his previous roles as Minister of Defense and Minister of Foreign Affairs, and a fairly extensive professional history with Tucker himself. So, why did Goff do this? With no electoral advantage to be gained and plenty of downside to consider, why did he feel the need to turn what should have been the subject of a quiet discussion into a public fracas?

I suspect–without any inside knowledge–that his version of events is closer to the truth than that provided by Tucker. I suspect that when Tucker briefed Goff on March 14 as part of their regular monthly briefings he calculated it best not to bring up the Israeli case. The reasons were that Tucker would have noted that Goff was mired in the Darren Hughes affair and given Labour’s reaction to the previous Israeli spy scandal involving passport fraud in 2004, he might use the suspicion of more Israeli skullduggery as a diversion from the Hughes matter (and his handling of it). Since the SIS investigation of the Israelis was concluded by March 6, there was nothing to report other than that suspicions had been raised by the hasty departure of the three surviving Israeli tourists and that these suspicions were unfounded (I shall leave aside for the moment a number of questions that could indicate that there is more to the story than a mistaken suspicion).

Thus, it is possible that Mr. Tucker felt it wise, given National’s commitment to strengthen bilateral ties with Israel (including security ties), to gloss over or omit mention of the investigation during the March 14 meeting. That is not a cardinal sin and does not suggest impropriety so long as Mr. Goff was provided a full intelligence brief in writing. Goff claims that he was not provided such documentation. The SIS admits that there is no transcript of record of the meeting other than Tucker’s briefing notes (that is, the notes prepared before the meeting), something that not only violates standard bureaucratic procedure but also quite possibly the Public Records Act (I find it quite astonishing that the intelligence briefs are done on a one-on-one basis between the Director of Intelligence and the Opposition Leader without a third party transcriber of record, be it a secretary or someone nominated for that role by both parties). I could be wrong of course, but there are enough discrepancies in the SIS version of events to open room for such speculation.

The story gets weirder because the SIS maintains that Mr. Goff was also briefed on the matter on April 6, and then again on July 25 after the story about the Israelis broke in the press. Why the SIS would brief Mr. Goff on the matter on July 25 when it claims it had already briefed him twice is hard to understand unless Goff demanded a “please explain” meeting with Tucker after the revelations. Also hard to understand is why the SIS, under Tucker’s signature, would rapidly declassify its records of the March and April briefings as well as the summary of the investigation in order to provide them to a notorious right wing blogger who is, in fact, criminally convicted of breaching judicial orders regarding matters of privacy (in other words, the big fella is not known for his discretion or diplomacy when it comes to dealing with secrets). Not only is the rapidity with which the Official Information Act request from the blogger was answered quite astounding (5 working days from the request to the answer from Mr. Tucker, with the documents in question declassified the same day as the blogger’s OIA request), but it now seems that other outlets were denied or delayed in having their OIAs on the same matter answered, and that the SIS selectively requested that OIAs be sent to it on the subject couched in very specific language.

If we recall that the leak to the press of the Israeli investigation came from within or close to the SIS itself, and we add to it the normal reticence of spies to engage in public arguments with politicians about their business, and then factor in the selective provision of OIA data to sympathetic outlets, all on top of Mr. Goff’s claims, then we cannot but begin to suspect that the SIS is heavily politicised in what it does, does not operate as a neutral and apolitical source of intelligence flows, and in fact is behaving in ways that are inimical to democratic oversight and control over the national security apparatus. If true, the politicisation of the SIS (or at least its leadership) is a sign of institutional atrophy as well as bias, and worse yet, is a stain on the professionalism and integrity of those who work in the clandestine services. This is kiss of death type of stuff because foreign governments and New Zealand’s intelligence partners will have noted the deeper implications of the row between Goff and Tucker, something that will influence the way in which they approach matters of intelligence sharing with the New Zealand government.

There is much more to the story but let’s just say that this controversy once again raises serious issues about the SIS role, its integrity, and its ability to serve the public in a neutral and objective fashion without political influence or bias. Whatever Mr. Goff’s motivations, his outcry has raised fundamental questions that will not easily be swept away or silenced, and have the potential to drag Prime Minister Key into the fray (because Mr. Key is Minister for Intelligence and Security and thus Mr. Tucker’s nominal “boss,” and if it turns out the SIS has massaged its briefs or played with its documentation after the fact, then Mr. Tucker’s position becomes untenable–and perhaps criminally liable).

I tried to cover some of these points in an interview on TVNZ’s “Breakfast” show, which if nothing else shows that amid the celebrity sightings, gossip-mongering and general inanity of morning television there is still some room for the occasional serious discussion: http://tvnz.co.nz/breakfast-news/paul-buchanan-warns-sis-stoush-5-59-video-4339934/video