Posts Tagged ‘Royal Commission of Inquiry’

When the blind lead the blind.

datePosted on 08:28, December 15th, 2020 by Pablo

The Royal Commission of Inquiry (RCI) Report on the Christchurch terrorist attacks has been released and the verdict is mixed. Some are pleased that systemic failures were identified and acknowledged while others are disappointed that no single person or agency was held to account for those failures. The Muslim community, although given a prominent place in the RCI investigations and Report and offered direct apologies by the Prime Minister and heads of Police and the Security Intelligence Service (SIS), remains unsatisfied with the outcome even if it accepts the recommendations that derive from the Report (as does the government).

Under its terms of reference, the RCI investigation was very broad and very shallow. Because of its scope it eventually had to be extended a year beyond its original six month mandate and have its budget doubled. It was broad in the sense that it had to address the terrorist and his activities, the impact his actions had on the targeted community, the actions and inaction of State security agencies (not just those involved in counter-terrorism (CT) efforts) that contributed to the event and a host of extraneous factors considered relevant to the investigation (for example, European and US experiences with rightwing terrorism).

It was shallow in the sense that, even though it could have availed itself of powers of compulsion under oath under the Inquiries Act, it chose not to. Instead, the RCI engaged in a self-limiting investigatory approach where it was dependent on the voluntary cooperation of State entities and officials when it came to evidence provision and testimony. Because of concerns about national security, no government officials (other than agency heads) identified during the course of the investigation were publicly named and their testimony is to remain sealed for thirty years. Although available to security authorities, the terrorist’s evidence is permanently suppressed in order to avoid copy-cat behaviour. 

One view is that this was done to encourage honesty and candor on the part of witnesses with potential liability exposure, but it also meant that in terms of transparency and public accountability, the RCI was hamstrung from the start. A more cynical view has it that this covers up culpability and whitewashes the truth while absolving the guilty.

Others have written about the before and after-effects of the attacks on New Zealand’s Muslim community as well as the history of local white supremacists and rightwing extremists. The work of the RCI has been amply scrutinised. The Report itself has been dissected at length. Given that, here the focus is on the institutional deficiencies within the New Zealand Intelligence Community (NZIC) that were uncovered by the RCI.

If one phrase sums up the Royal Commission of Inquiry’s Report on the Christchurch terrorist attacks, it is “systemic failure.” The failure was institutional and individual, within and across New Zealand’s borders and involved errors of commission and omission.

The most salient finding is that there was a pervasive obsession with Islamic extremists within the NZ Counter-Terrorism community dating to 9/11. This myopic focus was shared by collection (operational) agencies, analytic agencies, oversight and coordination agencies, foreign partners, the governments and most politicians of the day. The media and the public, while largely unconcerned about the possibility of domestic terrorism, accepted the official line that after 9/11 and given events in the Middle East, Islamic extremism was the most likely threat to the Kiwi way of life.

The problem with this perspective is its lack of grounding in fact. Before and after 9/11, no Muslim has been charged, much less convicted of any act of ideologically-motivated violence in Aotearoa. A couple of people have been arrested and imprisoned for possessing jihadist materials, a few have been detained for objectionable social media posts, some have been sent into de-radicalisation diversion programs and some have had their passports cancelled based upon fears that they would travel to the Middle East to join ISIS or al-Qaeda. Two have been killed in drone strikes in the Middle East and one is languishing in a Syrian opposition jail. Back at home, at any given time, 30-35 people are monitored by the intelligence services because of their perceived jihadist sympathies. They may be inclined towards violence but as of yet none have decisively acted on their impulses. When it comes to contemplating acts of terrorist violence on NZ soil, would-be jihadists have been relatively few and far between, and all talk and no lethal action.

During the same timeframe, right-wing extremism world-wide grew bolder in terms of violent acts and larger in terms of numbers, starting with the mass murders perpetrated by Anders Breivik in Oslo in 2011 and accelerating after 2015 with murderous attacks in places like the US, UK and Germany as Daesh was defeated in Iraq and Syria and refugee flows increased from the Middle East and Northern Africa into Europe. On-line white supremacist forums proliferated, as did the number of self-radicalised “lone wolves” who populated discussion groups focused on who, when and how to commit violence against Muslims, Jews, immigrants, gays, Arabs, Africans, and other perceived undesirables.

Groups like Atomwaffen Division, English Defense League, Proud Boys and Boogaloo Bois moved from their keyboards to the streets. NZ was not immune to this phenomenon, with groups such as the Dominion Movement, Northern Front, National Front, White Defense League, New Order, Right Wing Resistance, and more recent off-shoots like Western Guard and European Students Association waxing and waning before becoming more visible and vitriolic over the last ten years (other violently-inclined groups have formed after March 15, including Action Zealandia). 

This suggests that post-2011 NZ counter-terrorism (CT) threat assessments should have incorporated the rising global trend of irregular right-wing violence. Yet in the period 2010-2019 right-wing extremism was mentioned only a handful of times in CT reports, most in reference to terrorist attacks overseas. When and where the possibility of a right-wing terrorist attack in NZ was mentioned, such as in a 2011 Combined Threat Assessment Group (CTAG) report that the Oslo attack was a model for copycats and that New Zealand’s firearms regimes allowed for the legal purchase of military-style weapons with that intent, it was ignored by other agencies. Bureaucratic rivalries may have contributed to that.

The organization of the NZIC and the business model used by front line collection agencies made detection of non-Islamicist terrorist threats difficult. Collection agencies like the NZSIS and NZ Police operate on a “lead-based” and “customer” focused business model, in which the agencies react to tips about suspicious behaviour and frame their operations and analyses according to the perceived needs of their sponsors and patrons—primarily the government and foreign partners. The decentralised and siloed nature of the NZIC is another contributing factor to the failure to detect terrorist plots, whereby the alphabet soup of intelligence shops in areas like Customs, Immigration, MBIE and coordinating and analytic agencies like CTAG, the National Assessments Bureau (NAB), Security and Intelligence Board (SIB), Counter-Terrorism Coordination Committee (CTCC) and a number of others compartamentalise and narrowly share classified information on a “need to know” basis.

There are no strong hierarchies in the chains of command linking the functionally-differentiated agencies within the NZIC, with various intelligence units answering to different ministers and seldom to each other. This led to duplication of functions and tunnel vision within the community. Although the NAB ostensibly serves as the lead agency in the decentralised NZIC organizational pyramid, vertical as well as horizontal accountability between NZIC members was and is limited.

Then there was the issue of emphasis. In terms of overall organizational focus, domestic terrorism was a secondary concern for the NZ security community in the decade prior to the Christchurch attacks. Only 20 mentions of domestic terrorism were made during that period. The bulk of those referred to home-grown and returning jihadists.

The dysfunctional organizational arrangement and myopic mindset was compounded by the fact that there is little proactive or “over the horizon,” futures-forecasting strategic analysis within the NZIC’s component parts. Under extant funding models and given the security orientation of political masters and foreign partners, there was little incentive for intelligence shops to expend resources on discerning distant threats via strategic analysis or convincing political funders that the CT focus needed to be expanded in light of an emerging global right-wing extremist movement that uses the internet as a recruiting, radicalisation and irregular warfare tutorial platform.

This was obviously short-sighted and (still) leads to institutional lag when confronting the threat environment (whereby agencies play steep learning curve catch-up because their focus is on the last and not the next major threat). It also violates the basic professional requirement that threat landscapes be divided according to an objectively-determined differentiation between possible, probable, proximate, immediate and imminent threats upon which preventive measures can be predicated.

The Report repeatedly references Police and SIS complaints that they were under-resourced during the decade prior to the attacks, something that contributed to their inability to monitor right-wing extremism. The SIS reported that it had 225 personnel in 2013-14, of which 35-50 percent were engaged in security vetting and the rest in domestic and foreign espionage and counter-espionage functions, with only 4.5 full time equivalent staff dedicated to terrorism investigations. By 2019 the total staff had increased to 328 full time equivalents but the functional distribution remained the same. During the same period the SIS budget increased 245 percent, from $33,751,000 in 2007-08 to $82,843,000 in 2018-19. This does not include at least one dedicated cash injection of over $175 million provided by the National government in 2016-17 to the NZIC and excludes any “black budget” expenditures (most intelligence agencies carry off-the-books “black budgets” for particularly sensitive operations).

The nearly $50 million operational budget increase and 100 staff added during the half decade leading to the attacks was not reflected in SIS CT operations, so the question begs as to whether it was not so much the lack of resources that impeded improvement in that operational area but a maldistribution of resources within it that contributed to the SIS failure to detect the threat emerging from the extremist Right. After all, it dedicated between a third and half of its staff to vetting security clearance applications. Assuming that clerical staff occupy five-ten percent of personnel numbers, then the amount of people dedicated to domestic espionage (including CT), foreign espionage and counter-espionage within the SIS is remarkably low for a front-line intelligence agency. The political priority given to counter-terrorism efforts by governments during the years after 9/11 and emergence of ISIS in Europe make it hard to fathom that only 4.5 equivalent full time staff were dedicated to CT efforts in 2014, and that the same distribution of personnel continued even with the 50 percent increase in staff by mid-2019.

The NZ Police also claim to have struggled with resources for intelligence work in general and CT work in particular. Citing shortfalls, the Police stopped investigating right-wing extremism in 2014 and no reports on the subject were issued until 2019 (after the attacks). The intelligence wings of the Police were said to be lightly staffed and spread over a number of issue areas that went well beyond CT concerns. Both the National Security Group (NSG)  and Security and Intelligence Group (SITG) claimed to not have enough resources to engage in the type of strategic intelligence assessments that would have made early detection of right-wing extremists easier. In 2010 the National Intelligence Centre employed 53 staff out of a total complement of 11,890, then 63 in 2012 and 52 in 2013 with similar total numbers, while in 2018 “International and National Security” functions employed 357 out of 12,467 staff (organizational changes made for different staffing statistic categories in Annual Reports after 2017). 

Even with the changes in statistics measurements that incorporated other liaison and analysis duties, it is clear that staffing of Police intelligence operations remained fairly constant and even rose slightly towards the end of the period covered by the RCI Report. It was therefore not a major impediment to CT operations per se. Instead, it appears that the allocations of resources within the intelligence branch were directed to areas other than CT, again, consistently throughout the years and paralleling the operational priorities of the SIS. Funding for additional CT staff at the national level was approved in 2018, but the problem remained that, to quote the Report, the “New Zealand Police had generally viewed right-wing extremism as more of a public order issue than a potential terrorist threat” (Part 8, Section 6.5 paragraph 30).

There is no mention in the Report of whether Police intelligence received information about violent right-wing extremists during the course of undercover operations targeting criminal gang activities such as drugs or weapons dealing (so-called “street crimes”). Yet, although no information on right-wing extremists was reported at the national level after 2014, “(w)e (the RCI) were also provided examples from the National Security Investigations Team of leads related to right-wing extremism that met the risk threshold and were pursued.” (Part 8, Section 6.5 paragraph 36). In other words, there were leads coming from somewhere about right-wing extremists and they were pursued, but nothing more is known about them (at least as far as the public record is concerned).

The “lack of interest” problem regarding right-wing extremism was compounded by the fact that tactical intelligence leads are mostly developed by each Police District, and during the time period in which the killer was planning and preparing apparently no leads on violent right-wing extremists were developed by the intelligence shops based in Dunedin and Christchurch, much less elsewhere. Instead, at both the district and national levels, in terms of strategic as well as tactical assessments, the NZ Police focused CT efforts on detecting and disrupting the plans of Islamicists (and had some success with that).

Even so, the NZ Police did allocate intelligence resources to monitoring some non-Islamicist groups. During the period covered by the Review, which came in the wake of the infamous Urewera Raids, the Police followed intelligence leads and conducted operations against environmental, animal rights and anti-1080 activists along with the ‘normal” business of providing intelligence for non-ideologically motivated criminal investigations. This is worth noting because terrorism involving lethal mass attacks is most likely to be ideologically rather than criminally motivated (following the logic that criminal activity is a form of commercial rather than advocacy enterprise and public violence is generally bad for business). Amongst ideological activists in NZ, environmental and other Leftist groups are less prone to supporting terrorism to advance their goals than either aspiring jihadists or right-wing extremists (including so-called “eco-fascists” involved in anti-1080 campaigns). And yet they received more attention from the intelligence services than neo-Nazis did, and CT efforts remained focused on would-be jihadists.

It was therefore not just a lack of resources allocated to CT efforts within the Police, SIS and other agencies that impeded the detection of right-wing terrorist threats. Instead, it was the lack of priority given to them that contributed to the systemic intelligence failure. Intelligence work done by the Police and the SIS involve at their core human intelligence collection. That essentially means boots on and ears to the ground, which in turn is an issue of trained staff dedicated to the task on the one hand, and objective threat recognition on the other. In spite of the evolving threat landscape in the decade prior to the Christchurch attacks, CT staffing numbers remained small and steady, with low emphasis placed on non-Islamicist threats. When they were, the objects of scrutiny were not from the extremist Right.

The GCSB was exonerated of any culpability in enabling the attacks. That is because, according to the Report, it basically serves as a foreign signals intelligence agency and only engages in domestic espionage when tasked to do so under warrant by a NZ partner agency. In the decade before March 15 it was never tasked by the SIS, Police or other security agencies to monitor right-wing extremists.

Although it exposes the disorganization and biases of the NZ intelligence apparatus when it came to CT prior to March 15, the Report claims that these systemic failures did not contribute to the attacks because the killer’s operational security made discovering him a matter of “chance.” That, in spite of reports about his peculiar behaviour at a gun club, his social media rants and use of IP addresses associated with extremist views and weapons purchases, his drone surveillance of the al-Noor mosque and his stockpiling of military-style weapons and ammunition (which are attributed to deficiencies of the firearms licensing regime and failures by vetting authorities to discharge their duties properly). The dots were there to be connected but, according to the RCI, only by chance could they have been.

That has the makings of a Tui ad.

What is clear is that foreign intelligence partners and domestic intelligence agencies saw right-wing extremism as a low priority local law enforcement issue, not a pressing national security threat. In spite of some brief warnings and occasional mentions, the NZ Police and SIS did not see violent right-wing extremism as posing an imminent danger to society and other frontline agencies did not screen for it in their threat assessments. Instead, the security community prioritized the domestic aspects of  the so-called “War on Terror” (sic). Local politicians supported and funded that approach, which was generally given low priority because domestic terrorism was, in spite of the anti-jihadist fear-mongering of the Key government, a secondary concern in the NZIC collective assessment  of NZ’s threat landscape.

With the overall likelihood of domestic terrorism downplayed and jihadist threats over-emphasized within potential domestic terrorism scenarios, when it came to local right-wing terrorism the NZIC was not just looking the wrong way—it was not looking at all. Instead, for political and operational reasons the CT focus could and would not see terrorist threats beyond those rooted in Islam. Even though the domestic terrorist threat landscape changed in the years after 9/11, the NZIC was disinclined to move beyond threat assessment parameters that supported the anti-jihadist narrative. That is why the it failed to see the danger coming from the extreme Right.

More than “chance,” it was these institutional deficiencies, both in outlook and organization, that wound up costing people’s lives.

An earlier version of this essay was published in The Spinoff, December 15, 2020.

Ready to be let down.

datePosted on 15:32, November 30th, 2020 by Pablo

The Royal Commission of Inquiry (RCI) on the Christchurch terrorist attacks has tabled its report with the Governor General and Minister of Internal Affairs. The Report will be introduced to parliament and released to the public before Christmas. In the lead up to its release the office of the Department of Prime Minister and Cabinet consulted with a number of people, myself included, on how to go about managing the release. My advice was for the heads of the security agencies mentioned in the Report–the SIS and Police in particular–to front-foot the release because there was much skepticism that the Report would be anything but a whitewash and cover up. I mentioned that if systemic, institutional as well as individual failures, biases and blindness were not mentioned then the Report would be seen as exactly that. Other people suggested deeper engagement with immigrant ethnic groups, Maori, and being as transparent as possible.

Alas, the latter does not look like it will happen if early word about the Report is true. Remember, by its terms of reference the Report’s public findings and recommendations will not identify government officials mentioned in it. Nor will it contain information that is deemed sensitive on national security grounds. So, along with other limitations that I mentioned in an earlier post about it, the RCI was hamstrung from the start.

To be sure, I have not read either the findings or the recommendations so can do nothing other than speculate about them. But what I have read so far is this: the evidence from the killer as to how he planned the attack will be suppressed forever because it constitutes a “how to” primer for murderous copy-cats that identifies exploitable holes, flaws and deficiencies in NZ’s counter-terrorism defences and the advantages and opportunities presented to him by the wider context in which he planned and prepared the attacks. Moreover, the names of government officials mentioned in the Report will not only be redacted from the public version, but will be suppressed for thirty years, again on national security grounds.

Already, word has leaked that the Report will note how the firearms purchase and vetting regime failed in this instance due to legal loopholes and human folly. This was always going to be an easy way out for the State because after the attacks the government immediately pushed through law reforms governing certain types of firearms such as those used during the massacres (now being challenged by rightwing parties and groups), while blaming officers on the low end of the Police totem pole for not properly doing firearms license background checks absolves the higher-ups of any complicity in the matter. Nothing about systemic or institutional biases, failures or blindness is to be found in that sort of blame game.

Needless to say, some are not happy with these developments. Both the Federation of Islamic Associations of New Zealand (FIANZ) and Islamic Women’s Council of New Zealand (IWCNZ) have expressed serious concerns about the suppression order’s impact on issues of transparency and accountability by the agencies and individuals whose actions or inaction may have contributed to the events of March 15, 2019. This is notable because the RCI remit specified that the views of the NZ Muslim community should be given great consideration, to the point that a special Muslim Reference Group was set up to advise the Commission (although its advice was non-binding on the RCI).

Now, in the wake of the news about the selective long-term suppression of findings, both FIANZ and IWCNZ have released their submissions to the RCI. These include lengthy expositions about the myriad ways in which the Muslim community has been stigmatised, harassed, surveilled, vilified and attacked since 9/11 in the NZ media and society, and about how government agencies were indifferent at best and hostile at worst to the community as a whole, systematically ignoring the community’s very specific details of hate-based violence directed at them and repeated appeals for help. These submissions noted the government’s focus on Muslims as potential jihadis, including so-called “jihadi brides” and the infiltration of their houses of worship and community activity centres by agents of the State.

The submissions were extensive and well-documented, using everything from international to local human rights legislation and witness testimonies to provide proof that the global “War on Terror” had a very real, disproportionate and negative impact on NZ Muslims regardless of their affinity for extremism (it should be noted that no Muslim has been charged, much less convicted of an ideologically-motivated act of violence in NZ before or after 9/11. Two individuals have been jailed for having jihadist literature, a couple of converts have been killed in drone strikes abroad and the bumbling Pakeha jihadist remains imprisoned in Syria).

Meanwhile white supremacists in NZ organised, recruited, trained and encouraged each other on line, including threats against local Muslims. Yet they apparently were either not considered to be sufficient enough of a threat to warrant closer official scrutiny, or the security community had other priorities, or, as has been said repeatedly by various sources, the killer “flew under the radar” in the build up to the attacks because he had no association with local neo-Nazi communities (oh, and he was Australian). He had no enablers, no accomplices, no acquaintances–no one at all who, in spite of his travels to conflict zones and expressed hatreds, had a clue of what he was planning to do. There was no warning.

Yeah, right.

That NZ’s two leading Muslim organisations have now come out with what were originally non-public submissions detailing what in retrospect were obvious alarm bells is an indictment of the RCI and proof that fears of a whitewash may turn out to be justified.

Others are not as pessimistic. Some believe that the RCI will recommend throwing what amounts to “blood” money at the victims, their families and the Muslim community in general while engaging in a “whole of government approach” (the new bureaucratic buzzphrase, apparently) to the problem of ethnic, religious and/or race-based extremism and violence in Aotearoa. Some think that although names and evidence will be suppressed, behind closed doors action will be taken to hold decision-makers to account. There is a belief that the RCI will in fact fulfil its duty and detail the systemic and institutional failures that contributed by commission omission to the attacks. I am not so sure.

It could be that the pre-public release of selected aspects of the Report is being done by officials to prepare the ground for its full release (by lowering expectations from the non-Muslim community), or has been done by someone on the inside who is not happy with the Report. Either way, it has set up a situation where the truth will be obscured by official shading of what can be publicly known.

The bottom line is this. Long term evidence suppression is valid based on national security concerns about revelations involving sources, methods, evidence of capabilities/vulnerabilities and sensitive foreign relationships. Invalid reasons for suppressing names and evidence involve efforts at face-saving, whitewashing or cover ups of individual and/or institutional malpractice, incompetence, bias, blindness or negligence.

From what has been released so far, there is reason to presume that the Report will tilt more towards the latter than the former, and as a result New Zealand will have missed its moment of opportunity to address and remedy what were the “whole of government” failures that contributed to the darkest day in its modern history. Instead, it might well turn out to be the official equivalent of a lump of Xmas coal delivered to the cause of official transparency and accountability.

That would be a shame.

An indictment by another name.

datePosted on 16:11, August 5th, 2020 by Pablo

After I noticed that my name had been taken yet again in vain by my friendly antagonist Tom Hunter over at No Minister, I went over to see what the fuss was about. Nothing much, but then I discovered a post about the Operation Burnham Inquiry by Psycho Milt. I made a comment (now several comments) in response, then decided to edit the original comment, add a few things and make it a short post here that outlines what to me is the bottom line of that report. Here it is:

As the old saying goes, “the original sin was bad, but the cover up was worse.” Had the NZDF simply come out after the 2010 engagement and said that there were civilian casualties resultant from the “fog of war” in a nighttime SAS operation designed to kill or capture people responsible for attacks on NZDF patrols in Bamiyan that resulted in several NZDF deaths, I bet that the majority of the NZ public would have accepted that war sucks and bad things inadvertently happen. Then, when Jon Stephenson’s first story on Operation Burnham came out it would not have caused such a stir because there would not have been a glaring gap between his account and that of the NZDF (Nicky Hagar got involved later and took primary credit for the book “Hit and Run” although most of it was researched and written by Stephenson–-Hagar never set foot in Afghanistan).

Although the Royal Commission (RC) sugar-coated it, the report is absolutely damning of the SAS and Army leaders of the time (and not the troops on the ground that night, although issues regarding the TAC (Tactical Air Controller) and SAS mission commander’s understanding of the Rules of Engagement (ROE) were not addressed in the public version of the report). The testimony of several officers taken under oath was labeled as not credible by the Commissioners. The RC Report states that no institutional cover-up was at play, but that is laughable in light of what it says about the testimony of most of the senior officials involved. In other words, this was an institutional cover-up by another name, and the name given to the process instead of coverup or whitewash was shoddy records-keeping and miscommunication on top of bad memories. This pushes the onus of responsibility onto individuals rather than the military as an institution. And for those individuals, I guess “incompetent” is a better mark on one’s service record than “liar.”

How those records were lost or mislaid, and whether those bad memories were a product of in-group cohesion or contempt for the process is a matter of conjecture. What is not is that civilians were killed and at least one suspect handed over to Afghan forces to be tortured, both breaches that under international law must be investigated. What is now known is that the possibility of casualties and the transfer of a Taliban suspect to ADF units known for torture was known immediately by the NZDF chain of command and NZ intelligence services attached to them, yet until late in the Inquiry, the NZDF admitted to neither. There is much more by way of deceitful and devious NZDF behaviour, but let’s just come out and say that uniformed officers lied to their civilian superiors for years after the operation and then some lied under oath at the Inquiry. The National government at the time Operation Burnham took place and in the years immediately afterwards may not have wanted to hear the truth in any event and so accepted what they were (not) told by the NZDF brass at face value, but the RC was keen to hear the unvarnished details.

It took them several years and $NZ 7 million of taxpayer money to find out. It remains to be seen what the Labour government will do with the RC Report’s findings and recommendations, but one thing is certain: it going to wait until well after the election to do anything. And there is one other irony in all of this. At the same time that the NZDF was engaged in its campaign of obfuscation and deflection regarding the events of 2010, Transparency International gave it very hight marks for command integrity, transparency and accountability. These marks were the average of scores provided by a select group of specifically chosen “experts” on defense and security. I know because I was one of them and I pointedly gave low marks when it came to exactly these three criteria, so can only assume that my scores were discounted when calculating the overall average. But who gave them such high across-the-board scores if it mine were not included, and what were they thinking?

In any event I urge readers to read Chapters 2 and 12 of the Report, which address issues of civilian control of the military and ministerial accountability to Parliament in a Westminster-style democracy. The RC found that the actions of the NZDF leadership (specifically, misleading, stonewalling, whitewashing and misrepresenting what happened to the civilian political leadership and ministers of the day) wilfully undermined both fundamental democratic principles.

Everything else is gloss.

I do not expect that much will change given the delicacy of the report’s language and the fact that all of those responsible for the worst offences are retired (one only resigned three months ago when the draft report came out and his statements were found to be particularly unbelievable to the point of possible perjury). But it is now on official record that the NZDF has a culture of playing loose with the truth and disrespect for the constitutional principles underpinning its role in society. If implemented, perhaps the recommendation to create an independent Inspector General of Defense may help refocus NZDF attention on those principles. We shall see.

No matter what one may think of Hagar and Stephenson, in the end, minor errors and some hyperbole aside, they were vindicated. That is evident in the Report, which states that the book “Hit and Run” performed a valuable public service by exposing some ugly truths about how the NZDF operates, not so much in the field (although there were some issues identified there as well), but in its interaction with the political class and the larger society which it ostensibly serves.

That is the bottom line.

A question of focus.

datePosted on 10:12, August 1st, 2019 by Pablo

More complaints have been aired about the Royal Commission of Inquiry (RCICh) into the Christchurch terrorist attacks. These have centred on the perception that the RBICh has not paid enough attention to the Muslim community who were the targets of the attacks and the sole victims of them. Even though the Terms of Reference for the RCICh specified that it would establish liaison ties with representatives of the NZ Muslim community, many are unhappy with the way in which those have been put into effect. This is in spite of an initial outreach to the community via the Christchurch Muslim Liasion Group and then formation of a Muslim Community Reference Group (MCRG, via the RCICh’s Head of Community Engagement) that is scheduled to begin work this month.

The main objection appears to be that the Muslim community, as victims of the attacks, are not the central focus of the inquiry and therefore feel marginalised by the process even if organisations like the Islamic Women’s Council of New Zealand (IWCNZ) and Federation of Islamic Associations of New Zealand (FIANZ), as well as several prominent Muslims, have been consulted. This is a delicate and thorny concern that is difficult to resolve. What follows is an explanation of why that is so.

The terms of reference for the RCICh specify that it must do two things: determine how the killer planned, prepared and executed the attacks; and what state agencies did and did not do in the lead-up to the attacks that enabled or could have prevented them from happening. The relevant sections of the terms of reference are here (sections 2-4 of the Terms of Reference):

Purpose of inquiry and matter of public importance

The matter of public importance that the inquiry is directed to examine is—

(a) what relevant State sector agencies knew about the activities of the individual who has been charged with offences in relation to the 15 March 2019 attack on the Al-Noor Mosque and the Linwood Islamic Centre in Christchurch, before that attack; and
(b) what actions (if any) relevant State sector agencies took in light of that knowledge; and
(c) whether there were any additional measures that relevant State sector agencies could have taken to prevent the attack; and
(d) what additional measures should be taken by relevant State sector agencies to prevent such attacks in the future.
Scope of inquiry

In order to achieve its purpose, the inquiry must inquire into—

(a) the individual’s activities before the attack, including—
(i) relevant information from his time in Australia; and
(ii) his arrival and residence in New Zealand; and
(iii) his travel within New Zealand, and internationally; and
(iv) how he obtained a gun licence, weapons, and ammunition; and
(v) his use of social media and other online media; and
(vi) his connections with others, whether in New Zealand or internationally; and
(b) what relevant State sector agencies knew about this individual and his activities before the attack, what actions (if any) they took in light of that knowledge, and whether there were any additional measures that the agencies could have taken to prevent the attack; and
(c) whether there were any impediments to relevant State sector agencies gathering or sharing information relevant to the attack, or acting on such information, including legislative impediments; and 
(d) whether there was any inappropriate concentration of, or priority setting for, counter-terrorism resources by relevant State sector agencies prior to the attack.
Matters upon which findings are sought

The inquiry must report its findings on the following matters:

(a) whether there was any information provided or otherwise available to relevant State sector agencies that could or should have alerted them to the attack and, if such information was provided or otherwise available, how the agencies responded to any such information, and whether that response was appropriate; and
(b) the interaction amongst relevant State sector agencies, including whether there was any failure in information sharing between the relevant agencies; and
(c) whether relevant State sector agencies failed to anticipate or plan for the attack due to an inappropriate concentration of counter-terrorism resources or priorities on other terrorism threats; and
(d) whether any relevant State sector agency failed to meet required standards or was otherwise at fault, whether in whole or in part; and
(e) any other matters relevant to the purpose of the inquiry, to the extent necessary to provide a complete report.

As readers will observe, there is no specific mention of a Muslim-as-a-community focus, much less a victim-centred one. Instead, attention is on the killer and the State, with recommendations deriving from the above investigation lines focused on how state agencies can work better towards preventing such a thing happening in the future. The role of the MCRG is seen by the RCICh in that light–as witnesses adding to the testimonial trail about events leading up to the attacks.

This clearly is not the reasoning of those who think that the Muslim community should be placed front and centre in the RCICh’s concerns. It was never the intention of the RCICh to make them the centrepiece, and the announcement of the terms of reference and first minute issued by the RCICh noted that the MCRG was an advisory body only, limited in numbers, with members selected by the RCICh and therefore not entirely representative of the community as a whole. At that point people had the option of agreeing to accept invitations or not.

The top-down selection process by which the MCRG was constituted was bound to raise concerns about co-optation, and the unspecified limited number of group members reinforced the notion that the MCRG is going to be used as window dressing on a potential whitewash. On the other hand, given the demographic heterogeneity of NZ’s Muslim population and the political and personal rivalries that go with exercising collective representation for this type of membership, a bottom-up MCRG selection process in which a larger number of Muslim communities are represented would have been too time-consuming to organise and hold given the six month window that the RCICh has in which to prepare and present its report (due December 10).

Because a nation-wide leadership selection process involving all organised Muslim communities cannot happen given the time constraints, as national peak associations it seems reasonable that leaders of FIANZ and IWCNZ would participate in the MCRG. Perhaps recognised leaders of the mosques that were attacked will participate, along with representatives of Muslim regional or city organisations. The importance is that numbers of representatives remain manageable and that internecine rivalries are avoided in the discharge of their responsibilities as members of the MCRG.

I am not privy as to who is in the MCRG but can only hope that they are a representative cross-section of the Islamic community in Aotearoa.

Returning to the issue of focus, it was never contemplated that the RCICh would address issues of victim compensation or other post-event consequences. The main role of the MCRG is to provide testimony about how Muslim community security concerns were managed (some would say ignored) by State agencies (particularly but not limited to the Police and SIS), in the lead-up to March 15. There clearly is much to be said here and the MCRG would be well served to bring forth compelling witness accounts of the impact that the post-9/11 social and political milieu has had on them, both in the security realm as well as elsewhere in NZ society.

I have no doubt that some interesting light can be shed by the MCRG on how NZ security agencies handled complaints about threats to members of the Islamic community and their organisations, and I am willing to bet that the complaints and requests for assistance have been more numerous than what has been publicly acknowledged by NZ authorities and the mass media. I also believe that the Muslim community can speak at considerable length about the disproportionate official scrutiny that they have endured after 9/11 even though no Muslim has been charged, much less convicted of committing an act of ideological-driven violence in NZ before or since (with official scrutiny extending to acts of intimidation, extensive infiltration of mosques and sowing of distrust within targeted groups by the extensive use of informants).

Both of these backstories will be invaluable for the RCICh’s investigation into if and how, whether by acts of omission or commission, State agencies contributed to the multi-dimensional lapses–systemic, institutional and individual–that together constituted the collective “intelligence failure” that enabled the commission of this mass atrocity.

All of this assumes that the Inquiry will be conducted honestly, thoroughly and without a hidden intention to cover-up or whitewash. Some are skeptical that the process will lead to a full and truthful account of what happened. I beg to differ, at least in part. Having spoken to the RCICh myself, I can only say that those involved in conducting the inquiry acknowledge the limitations of their charter but appear committed to finding the truth and understand that their reputations would be poorly served if they were to do otherwise. I hope that I am not proven wrong.

Assuming that the process is honest, the two lines of investigation–of the killer’s actions and of state agencies’ roles in the lead up to the attacks–will establish the chain of causality that led to the murderous victimisation of over 100 people and their families. Once responsibility for what happened is established and lines of accountability (if any) determined within the State sector, then the easier it will be for those representing the victims of the March 15 domestic terrorist attack to demand redress from Crown entities whose negligence, incompetence or prejudice enabled in one way or another the commission of the event. To try and do otherwise within the confines of the RCICh confuses the process because it misplaces its immediate emphasis (which is supposed to be on the perpetrator, accomplices and potential enablers, including agents of the State) and detracts from its primary focus (which is to establish the how’s and why’s that led to the success of the attacks).

In other words, focus on the Muslim community as victims rather than as primary witnesses within the RCICh puts the inquisitorial cart before the horse and clouds the inquiry with concerns best addressed after its conclusion.

Hamstrung from the start?

datePosted on 09:47, May 30th, 2019 by Pablo

The Royal Commission of Inquiry into the Christchurch terrorist attacks has begun its work. This represents an extraordinary moment in which to examine the mechanics of the event, i.e., how it was planned and prepared, who may have been involved beyond the perpetrator, the timeline that led him to the Masjid Al Noor and Linwood Islamic Centre on that fateful afternoon on the Ides of March, and who dropped the ball when it came to preventing the attacks.

The inquiry represents an opportunity to uncover the systemic, institutional and individual errors that together combined to produce a catastrophic intelligence failure on the part of New Zealand’s security authorities—not just the Police but the dedicated agencies that together make up the larger New Zealand domestic security community. These include the SIS and GCSB as lead intelligence agencies but also intelligence “shops” in places like Customs and Immigration, all of whom failed to see or ignored warning signs in the accused’s movements in and out of the country during the last five years and who may have been organizationally blind to or dismissive of the threat that he represented to New Zealand society.

The inquiry is needed because the Christchurch terrorist attacks represent the worst act of ideologically-motivated non-state violence in New Zealand’s history. March 15 was not a normal day in Aotearoa and it should not serve as a baseline for a “new normal” in the country. A fully transparent and in-depth investigation into the acts of commission and omission that contributed to its terrible success should be of utmost priority.

The two commissioners, Sir William Young and Jacqui Caine, a former High Court Justice and diplomat, respectively, have seven months in which to conduct the investigation and return their findings. These will include the details of what they uncover as well as recommendations for remedies and future action. Their terms of reference include provisions for consultation with the NZ Muslim community and others who have a civil society stakeholder’s interest in the inquiry. The scope of the inquiry is broad, and includes examination of all potential contributors to the chain of events leading up to March 15.

However, there are causes for concern that suggest that the Commission’s work might be hamstrung from the beginning

First, there is the short time frame. Seven months is an inadequate period in which to conduct a thorough investigation into all of the contributing factors. That is complicated by the accused terrorist’s trial being held concurrently with the inquiry, with the Crown’s case overlapping with and mirroring the work of the Commission. Rather than separating the inquiry’s two investigative streams—one focused on the killer’s actions prior to the attacks using evidence from the trial and the other focused on broader factors that contributed to the successful execution of the attack—the inquiry will have to do both simultaneously while the trial runs in parallel (and perhaps beyond the December 10 deadline for the Commission to present its report). Assuming that the Commission will not be sharing evidence with the Crown while the trial is underway, this could limit the scope of the its work.

The second concern is the lack of intelligence-related experience and limited powers of the Commissioners in a context of official secrecy. Although well-respected in their fields, neither Sir William or Ms. Caine have experience with intelligence collection and analysis. They undoubtably have been consumers or evaluators of intelligence reporting in past roles and they certainly are able to keep secrets. But that may not be enough to resist push-back or “bureaucratic capture” by the agencies they are charged with investigating. This is facilitated by the Terms of Reference and its Minute One (“Procedures for gathering Information and Evidence”), which outline why most of the Commission’s work will be done in private on national security grounds. This is permitted by Section 15 of the Inquiries Act 2013 and justified by Clause 10(3) of the Terms of Reference and Section 202 of the Intelligence and Security Act 2017.

The agencies that have been granted secrecy include the SIS, GCSB, Police, Customs, MBIE, DPMC, Justice, MFAT and the Inspector General of Intelligence and Security. No foreign derived information will be revealed in public. A blanket ban has been placed on identification of employees of these agencies whose names turn up in the investigation. In practice, that means that there will be no public accountability for those who may have contributed to the attacks via incompetence, bias or myopia. More broadly, the move to secrecy means that whatever skeletons are uncovered will remain buried away from public view.

The Commissioners do not have powers of compulsion or the ability to veto an agency’s decision to withhold classified materials. That leaves them at the mercy of those they are investigating when it it comes to access to sensitive data, even if what is “sensitive” about the data is not related to national security but to the reputations and orientation of individuals and institutions.

This is not unusual: security agencies under the spotlight often resort to a “get out of jail” card in the form of claiming that open discussion of their actions will compromise sources and methods that are vital for ensuring national security. But the truth that needs to be uncovered in this instance does not involve national security secrets but the derelictions, biases or pressures that might have contributed to the failure to detect and prevent the attacks.

Efforts to limit the openness of the inquiry and the accountability of those that are its subjects must be resisted. The Commissioners need to have powers to compel documents, data and answers from those in positions of authority within the NZ security community and they need help from experienced intelligence overseers when doing so. The Inspector General of Intelligence and Security is one such person, assuming that there would be no conflict of interest involved (since the IGIS has no operational role and hence would not have been part of the command chain that failed to detect and prevent the attacks). A panel of experts with the IGIS, an IGIS representative, or another retired official as chair would be a good compromise option between utter secrecy and full transparency.

A third source of concern lies in the staffing and budget allocated to the inquiry. At $8.2 million the allocated budget is adequate only if it goes towards the investigatory aspects of the inquiry and not public relations or administrative expenses. The Department of Internal Affairs is the host agency of the Commission, so it will be its staff that does most of the logistical footwork underpinning its work. Here again the question of expertise and powers afforded investigators remains an open question.

Another potential problem is the nature of the Commission’s victim outreach program, called the Muslim Community Reference Group. Divisions have emerged over who and how many people should be included in this advisory body. Concerns have risen that self-proclaimed community “leaders” are being shoulder tapped for official interlocutor roles without proper consultation with their purported constituents. This may be due to expediency given the time constraints operative, but it also follows a historically “thin” approach to stakeholder consultation by the NZ State, where what passes for outreach has traditionally been more symbolic than substantive.

Either way, the process of establishing the Reference Group augers poorly for the representative transparency or inclusiveness of the process, something that is acknowledged in the Commission’s Minute One. Plus, the relationship between the Reference Group and the investigation streams is unclear at best but, given the veil of secrecy wrapped around the inquiry, is likely to be little to none.

Finally, the scope of external input into the inquiry, while theoretically extensive, appears destined to be limited in nature. Few invitations have been issued to civil society stakeholders to testify before the Commission, no public meetings have been scheduled and no written submissions solicited (although all have been promised). Along with the mantle of secrecy, this will limit the amount of public review and consultation. That skews the investigation in favour of those under scrutiny.

In effect, on paper the terms of reference for the Commission look thorough and broad. In reality, its work could well be stunted at birth. With limited experience and powers on the part of the Commissioners, a lack of pertinent expertise to help them, unrepresentative liaison with the victims, limited budget and staff and statutory permission for the agencies under investigation to restrict public knowledge of their actions, both the transparency of the inquiry and its ability to identify sources of accountability are compromised.

It is therefore incumbent upon the Commissioners to broaden stakeholder participation in the inquiry, strengthen the Commission’s powers of compulsion, and extend the deadline for submission of its report. It is within their powers to do so even if a court challenge to secrecy clauses in the Inquiries and Security and Intelligence Acts is required. The question is, will they? At the moment that prospect looks unlikely.

UPDATE (June 14): The killer has just plead not guilty to 51 counts and denies being the Christchurch terrorist. His trial date is set for May 4 next year and scheduled to last 6-12 weeks. The nearly year-long delay in bringing him to trial means that the Royal Commission will have done its work and issued its report six months prior to the trial. What that means for the execution of justice and the content of the Commission’s report is unclear but at a minimum it removes court testimony under oath from the inquiry. Given what I have outlined above with regards to secrecy and the inability of the Commissioners to compel testimony under oath or the surrendering of classified material, the lack of access to court testimony and evidence weakens the inquiry even further.