Posts Tagged ‘Security’
Here are some thoughts for readers.
It is reported that former US Sen Scott Brown (R-MA) has been nominated by the Trump administration to be US ambassador to New Zealand. Besides a record that includes being a centrefold model, party to a sexual harassment lawsuit, and an undistinguished US Senator after a career in local politics in his home state, Mr. Brown is on record as saying that he supports the use of water boarding and other forms of torture. This is of particular note because Mr. Brown is a lawyer who served in the Massachusetts National Guard as a Judge Advocate General’s (JAG) officer, that is, as part of the Army legal system. He should therefore presumably be familiar with Jus in Bello, Jus ad Bellum and other international conventions that, among other things, prohibit the use of torture in war and peacetime.
NZ is a signatory to the Geneva Convention, which prohibits torture (as a war crime). It also supports the International Court of Justice, which prosecutes war crimes and crimes against humanity (which include torture).
Every country has the right to refuse to accept the credentials of foreign ambassador-designates.
So the question is: as a responsible member of the international community and a strong supporter of the rule of international law, should NZ refuse to accept Scott Brown as the incoming US ambassador? Or should it adopt a policy of diplomatic necessity and cast a blind eye on Mr. Brown’s support for state-sanctioned criminal acts in order to curry favour with the Trump administration?
And, as a sidebar: Inspector General of Security and Intelligence Cheryl Gwyn is currently undertaking a lengthy investigation into whether NZ, via the SIS and/or NZDF, was involved in the extraordinary rendition and black site programs run by the US under the Bush 43 administration (which involved the extrajudicial kidnapping and secret detention without charge of suspected Islamicists, several of whom wound up dead as a result of their treatment while in captivity). These programs included the use of water boarding and other forms of torture as supposed interrogation techniques at the US military prison in Guantanamo Bay (Camp Xray) as well as a network of black sites around the world (not all of whom have been identified yet and which it is possible Ms. Gwyn’s investigation might shed light on). Given this background, will the decision on Mr. Brown’s acceptability as the US ambassador be indicative of what we can expect from the government when it comes to her findings?
I would love to hear your opinions.
Here is a thought. Among all the wretched news coming out of the US this past week, two somewhat lesser items struck me. One was that Trump’s son-in-law was granted a high level security clearance, and the other was that former Brietbart boss, white supremacist and pro-Russian provocateur Steve Bannon has been given a Principal’s seat on the National Security Council, displacing both the Director of National Intelligence and the Chairman of the Joint Chefs of Staff (who now attend on an “as needed” basis).
During the time I spent in the US security apparatus I held several levels of clearance, working my way up to the fairly high Top Secret/Secret Compartmentalized Information (TS/SCI) level. The scrutiny I received in order to get that clearance was pretty intrusive and lengthy: polygraph and drug tests, background checks run by the DIA that included interviews with college friends, my former wife, work colleagues at various places and even neighbours, and an FBI background check. The process took about 10-12 months.
Bannon and Jared Kushner will be privy to sensitive information well above my ultimate pay category, and yet the latter was granted a clearance in a month and the former, for all we know, has yet to receive one. I know that elected political officials do not have to undergo the sort of background checks that I did (something that is always troublesome when congressional testimony is given behind closed doors to congresspeople who are known to have serious skeletons in their closets that make them liable to blackmail). But political appointees as well as career civil servants and military personnel must have those checks done before assuming the jobs in which they handle highly sensitive information. Mistakes have recently been made in security vetting due to outsourcing (Edward Snowden) and people can grow disenchanted and violate their oaths (Chelsea Manning), but for the most part the security vetting process allows the government some degree of confidence that the person being scrutinised cannot be blackmailed, is not financially vulnerable, is not addicted, criminally violent, mentally ill, etc.
So my questions are these: Has Steve Bannon undergone any security vetting, particularly given his background and links? Why did Mr. Kushner receive an expedited clearance rather than a thorough one? There are other individuals in the Trump White House who also have access to this type of information without full security vetting (including a Brietbart editor), but for the moment I wonder about those two fellows.
This is more than a matter of personal curiosity. Given Trump’s attacks on the military and intelligence leadership and the ongoing questions about his relationship with Russia in the wake of official claims that Russia sought to influence the US presidential election in his favour, these sort of moves could set the stage for a constitutional crisis in civil-military/intelligence relations. After all, if Bannon is talking to the Russians and Kushner is pillow whispering to Ivanka about policy matters that impact on the family businesses, why would the intelligence community and military brass feel comfortable with them receiving full classified briefs on such matters? Would it not be advisable for the security community to withhold highly sensitive information from them and direct that information to others such as NSC advisor Gen (ret.) Mike Flynn (also of some very suspect ties) on an “Eyes Only” basis? Or should they just give full briefs and let the chips fall where they may?
Neither option is a good choice, but one has potentially catastrophic consequences while the other undermines the foundations of elected civilian supremacy over the military and intelligence communities.
There are lessons here for New Zealand. The NZSIS is responsible for security vetting of people who will handle sensitive classified information, but its record is mixed in this regard. In 2010 it was revealed that Stephen Wilce, the head of the Defence Technology Agency (DTA), the scientific arm of the NZDF, was a serial fraudster and liar who among other things claimed to have been a member of the 1988 UK bobsled team and a former Royal marine who had worked for MI5 and MI6 in the UK and who had invented the guidance system for the Polaris (submarine launched and nuclear tipped) missile (you can find the NZDF Court of Inquiry Report on Mr Wilke here).
Mr. Wilce was recruited by Momentum Consulting (which was paid $25,000 for the job), a firm that included among its directors and executives National Party stalwarts Jenny Shipley and Michelle Boag. Momentum was supposed to have confirmed Mr. Wilce’s bonafides and the NZSIS was supposed to do his security vetting before granting him a high level clearance, but none of that happened. It was not until Mr. Wilce had been in the DTA job for five years that a whistleblower outed him.
In recent years the SIS has reported that security vetting takes up more and more of its time and resources, to the detriment of its domestic intelligence, foreign intelligence and counter-espionage activities. Delays in obtaining clearances are commonplace and pressures to expedite them are strong. That was exactly the situation that led to Edward Snowden being granted a high level security clearance. As it turns out, the firm that was contracted to do his security vetting by the NSA simply rubber stamped the clearance authorisation because it was swamped with such work.
Employees of New Zealand’s intelligence community and military personnel certainly undergo serious security vetting before they can be trusted to handle classified information. Perhaps, like the US, elected officials are exempt from the requirement, but what about parliamentary staffers and those employed in the DPMC? Given the revelations in the Dirty Politics book, can we be assured that the likes of Jason Ede and Phil de Joux (or even Roy Ferguson and Sir Maarten Wevers) have been vetted properly? Is everyone who is privy to classified material treated the same as military and intelligence personnel and subjected to a thorough security vetting process? Is outsourcing recruitment of people to sensitive positions still the norm? If so, is that outsourcing going to politically connected firms or is there now in place some objective standard of applicant vetting rigour that needs to be met?
I ask these questions because if anything, New Zealand appears to have a much looser government administrative system that does the US. Shoulder-tapping, “who-you-knows,” nepotism, cronyism, old boy networking–perhaps it is a small country thing but it seems to me that such practices occur fairly frequently when it comes to high level civil service positions (to say nothing of the private sector). If that is so, then it is fair to ask if these practices override the good sense need for security vetting of those involved with intelligence and military matters.
I stand to be corrected if wrong in this appraisal, but the issue still remains as to who with access to sensitive intelligence and security information outside of NZ intelligence and military officers undergo the type of security vetting that I underwent back in the US and which Messrs. Bannon and Kushner managed to avoid.
Put another way and stripped of the US baggage: are there Bannons and Kushner facsimiles in our midst?
An article in a US magazine about the Senate confirmation hearings of US Secretary of Defense nominee General (ret.) James Mattis struck a chord. The author pointed out that the hearings basically involved patsy questions that were designed to elicit the standard responses about the US having the “greatest” military on earth but (somehow, given that it spends more on the military than the next eight countries combined) needed much more money to counter myriad threats. That allowed Senators to push weapons programs being built in their home states such as the F-35 fighter jet and the next generation of nuclear submarines (all of which Mattis said the US needed and the acquisition of which he supported). The sense one gets from the hearings is that it was a stitch up so long as Mattis threw the usual sops to the usual pork barreling crowd.
No questions were asked of Matthis as to why the US goes to war and why, after being constantly embroiled in wars big and small for a quarter century and currently involved publicly in at least eight conflicts (Iraq, Syria, Libya, Yemen, Afghanistan, Somalia, Nigeria, Sudan), the US has failed to achieve a victory in any of them. What is the point of going to war if the result is inconclusive (Libya), a stalemate (Afghanistan) or a defeat (which Iraq can be considered if one looks at the national and regional situation before and after the US invasion)? Or is the purpose now simply to feed a military-industrial complex that increasingly occupies a vanguard position in the US economy (even more so than when Dwight Eisenhower warned against the dangers of the complex that led him to coin that phrase)?
It seems that the answer is the latter. But it is worth delving into the backdrop to war-mongering for war and profit’s sake.
There are wars of necessity, wars of opportunity and wars of convenience. Justification for war is usually made on the grounds that they are fought defensively for existential purposes, in the face of grave threats to the nation-state. This is the basis of Laws of War (Jus ad Bellum) arguments. Even so, larger powers may engage (“expeditionary”) wars of offensive opportunity or convenience, most often against smaller or weaker states, if they feel that they can produce an outcome that enhances their international position or achieve a specific goal (political, military or economic). The US invasion of Iraq was a war of opportunity, as the neocons leading the US security apparatus thought that they could redraw the post 9/11 political map of the Middle East by removing Saddam and placing, as it was referred to at the time, a land based aircraft carrier full of US troops in between Iran and Syria that would intimidate both of them. Afghanistan may or may not have been a war of necessity. Taliban-controlled Afghanistan itself did not pose an existential threat to the US, but its aiding and abetting of the 9/11 conspirators, to say nothing of the repercussions of the attacks themselves, advised in favour of a strike against the al-Qaeda safe havens located in that country. Then the conflict morphed into something else. Nation-building, peace enforcement, counter-insurgency, regime support–you name it, but all of these renamed conflict justifications have one common theme: no victory or end in sight.
Russia’s incursions into Georgia and the Ukraine were and are wars of opportunity that have allowed it to reinforce its border buffer areas, something that has been a tenet of Russian geopolitical thought dating back to the Czars. Likewise, Russian involvement in Syria is opportunistically designed to defend the Alawite regime (with or without Assad at its helm), protect Russian interests in Syria (including 100,000 Russian citizens as well as the naval base at Tartus), and increase Russian influence throughout the Middle East in the face of US reluctance to commit significant force in Syria during the Obama administration.
China has claimed that any move to deny it possession of the disputed artificial islands it has built on reefs in the South China Sea will be seen as an existential threat leading to a major regional war. Whether a bluff or not, it is clear that China has used the opportunity provided by US reluctance to confront it early in the island-building process as a means of expanding its littoral claims in accordance with the “three island chain” or “string of pearls” maritime strategy it has long promoted but until recently has not been able to implement (and in which the South China Sea is considered to be Chinese territorial waters within the first or innermost island chain).
Generally speaking, the syllogism upon which wars are fought goes like this: geopolitical position (including diplomatic, economic and security partnerships)–> threat environment–> strategic orientation–> force composition–> weapons acquisition–> tactical orientation–> force deployment–> operational tempo. Depending on the specific nature of this syllogism, nation-states wage wars of an existential, convenience or opportunistic sort. For example, as a small isolated maritime nation New Zealand should, by virtue of the logic embedded in this syllogism, have a naval dominant defensive force structure that emphasis anti-access/area denial capabilities over its littoral waters and sea lines of communication.
However, in practice the NZDF is an Army dominant force with limited blue water naval projection, no air supremacy component and a special operations branch (the SAS) that mainly serves in overseas expeditionary roles that are unrelated to existential threats to the homeland. The reason is that force composition is not just product of physical defense needs but also of alliance commitments and international politics, something that has seen the NZDF deployed in foreign combat zones that are unrelated to existential threats to the homeland since the end of World War 2.
That returns us to the US and its penchant for continuous war without victory. Regardless of what US politicians say or how “great” its military is, the US is a declining super power transiting from unipolar dominance to great power status in a multipolar world. Yet even when it was the international hegemon it was not clear that it had a full grasp of the need to have strategic coherence before it went to war. For example, for the entire post Cold War period and existing yet to this day, the US claims that it has a “2.5 major regional war” fighting capability (2.5 MRW). That is, it can simultaneously fight two and a half (whatever that means) major regional wars unassisted and prevail in all of them. But the reality is clearly not the case. The US not only cannot fight and prevail in the 2.5 MRW scenario, but it has needed multinational assistance to fight (and still not decisively prevail) in those that it has fought in the last 15 years.
The US makes weapons procurements that are designed to counter a mix of threats without establishing a hierarchy amongst them. The US spends more money on weapons technologies than any other country by a far stretch. In fact, US “defense” spending and the justifications for it are akin to the arguments about the US health system–and the results are similar (high costs tied to corporate manipulation, much technological innovation, excellent high-end delivery systems but less than desired outcomes across the board for the nation as a whole).
US strategic incoherence is rooted in broader disagreements about the thrust of US foreign policy. Realists, neo-realists, neoconservatives and liberal interventionists compete for foreign policy dominance, yet no single school of thought has prevailed since the mid 1980s (idealists and constructivists had a brief moment in the sun under the first Clinton administration but were soon smothered by the weight of international events). Both the political elite as well as the foreign policy and national security bureaucracies are rendered by divisions amongst these competing theoretical camps, something that has made impossible a coherent approach to the application of armed force in foreign theatres (let it be noted that the US foreign policy and strategic approach has largely been guided by liberal interventionist precepts since the Bush 43 administration, but not to the extent that it has coalesced into a comprehensive theoretical framework for the conduct of US international affairs).
That is the crux of the matter. It is not just, as vulgar Marxists would say, that the military-industrial complex dominates US foreign policy because of its neo-imperialist imperative. There is something to that, but the real bottom line is that without a coherent strategic vision that connects the resort to war to the national, as opposed to corporate interest, then the latter will step into the vacuum and prevail in discussions about national security.
Wrap those discussions in nationalist/patriotic rhetoric festooned with flags and military paraphernalia at everything from car dealerships to football games, add incessant rhetoric about valour and sacrifice defending “freedom,” “democracy” or the US “way of life,” push the uncritical veneration of a “hero” or “warrior” military culture, and you have, in the absence of a genuine strategic rationale for going to war, the trumped up (yes, I did go there) reasons for turning the US into an incessant but ineffectual war machine. Glorification of war as a PR exercise over the course of decades and commercially tied to the minutia of American life is the opiate that feeds public delusion that the US should be the world’s laws enforcement agency and can in fact win any war.
The result is that the US increasingly looks and acts like a jumped up version of the former USSR–a steroid-jacked muscleman with deteriorated internal systems having trouble coping with anger management issues. Yet unlike the USSR, which tested its muscles selectively and avoided constant physical engagement in wars of convenience (and still fell), the US is a muscleman that is always looking for trouble. And trouble it has found.
The strategically incoherent yet endless resort to war in pursuit of profit is one major reason for the US decline. I shall address others in a post to follow.
The RNZN is celebrating its 75 anniversary through this upcoming weekend, with 18 foreign warships attending the events. There will be fleet review on Saturday and an open house on the ships on Sunday. An exhibition of international naval history will be open throughout the week on the Auckland waterfront.
For the first time in three decades the US is sending a warship to NZ waters as part of the event. In doing so the US acknowledges and accepts NZ’s non-nuclear stance and the NZ government confirms that it can verify that the ship is non-nuclear propelled and armed via independent means (and quiet diplomacy). The ship in question is the USS Sampson, an Arleigh Burke class destroyer. Other nuclear powers represented at the celebration are China and India (and France and UK in lesser capacity), as well as a host of regional navies including Australia, Indonesia, Japan and several Pacific Island states. Ships from Singapore, South Korea and Canada will also participate.
The NZ Defense Industry Association is running its annual Forum concurrently with the RNZN celebrations. It gives NZ defense-oriented businesses an opportunity to take advantage of the presence of foreign military commanders in order to hawk their wares as well as exploit the opportunities provided by the NZ$20 billion in capability upgrades announced by the MoD/NZDF for the next fifteen years. Needless say, the combination of events has elicited opposition from a variety of groups.
Protestors have already blocked the venue of the defense industry meetings and more protests are scheduled for the next four days, including a flotilla on Saturday when the fleet will be on review in the Waitemata Harbour. Interestingly, some moron posing as a National MP suggested that the Terrorism Supression Act be amended to include protest flotillas as “terrorists” because they might terrorise the crews of the warships by accidentally getting run over by them. So much for intelligent representation but who knows, maybe someone at the defense industry Forum will have a marketable idea about non-lethal anti-dinghy defences that are designed to deal with such contingencies.
There seems to be several different elements in the protests. There are pacifists who are against the presence of warships of any sort as well as those who profit from the misery of war. There are those who are against the so-called “death merchants” but who do not necessarily object to naval forces (perhaps seeing them as a necessary evil). There are those who are anti-nuclear. There are those who are anti-imperialist. There are those who support indigenous sovereignty. There are those who are anti-American. There is some overlap between these factions but the core appears to be focused on two things: the defense industry Forum and the presence of the USS Sampson as symbolic of conjoined war-mongering evils.
Although one can not really argue against being opposed to “death merchants,” the reality is that like the tip of an iceberg, weapons manufacturers are a relatively small percentage of those exhibiting at the Forum (although major weapons providers like Lockheed Martin are major sponsors of it). Most of the NZ defense industry are logistics and support providers who often also have civilian branches to their businesses (for example, drone manufacturers, navigational technology suppliers and search and rescue equipment providers). At worst, one might consider them “enablers” rather than direct purveyors of instruments of death. Be that as it may, it is understandable why pacifists are opposed to the Forum. Simplistic, naive and righteous, but understandable.
The issue of the warships is a bit more complex. Although there are plenty of pacifists who are opposed to the entire notion of celebrating naval forces, many of the protestors appear to be more focused on protesting the presence of a US warship. This includes some of the ostensibly anti-nuclear types, who seem to have given a pass to the Chinese and Indians while focusing on the US boat. The same is true of the anti-imperialist crowd, who also are concentrating their attentions of the USS Sampson but seem unconcerned about the neo-imperialist ventures of other countries represented, to say nothing of the unhappy histories of places like Indonesia or Chile (whose visiting training ship Esmeralda was used as a prison for political prisoners during the Pinochet era). So that basically means that much of the protesters are anti-American more than anything else.
That stance has been made a bit harder to justify now that the USS Sampson has been diverted to do earthquake relief duties in Kaikura. After all, it is hard not to look silly when the focus of your protests is on a ship that is involved in humanitarian relief operations on your home soil and yet you ignore the authoritarian and often repressive histories of other countries represented in the visiting fleet. This is particularly true if the crowds at the naval expo, watching the fleet review and waiting to board the ships on open house day are larger than the number of demonstrators. Clearly they are not getting the message the protestors want to impart on them.
So the question is: what is the point of the protests?
If the answer is to support pacifism in its opposition to anything connected to war regardless of the ancillary civilian benefits of naval power such as disaster relief and regardless of public attitudes towards the military, then so be it. But if the answer is to selectively protest against the US and defense industry regardless of circumstance, well, that seems to be more of a futile gesture than a public education action.
The last thing the NZ Left needs to be seen as is silly and futile.
So the US has agreed to send a ship to the RNZN 75th anniversary celebrations in November. That means that it has accepted New Zealand’s non-nuclear policy and will send a ship that is neither nuclear armed or propelled. It may have taken 33 years for it to finally loosen up on its “neither confirm or deny” policy when it comes to nukes on board, but the US realises that the geopolitical and strategic environment in which that policy was adopted is long gone and has been replaced by another in which continuing to adhere to it is a matter of hubris that is both churlish and counterproductive. Given the pressing realities of Chinese strategic competition in the Western Pacific and elsewhere, the US needs to consolidate its alliance commitments in the region. If acknowledging New Zealand’s non-nuclear stance is one way of doing so, than any loss of face is well worth it.
Pundits on the NZ Left and Right have claimed that NZ has “won” in its dispute with the US and that it is a great “victory” for the anti-nuclear movement that took to the waters of the Waitemata Harbour three decades ago. Quite frankly, I find the crowing about victory to be infantile because there were many other factors at play and decisions such as this are not a simple matter of win or lose. Moreover, with the Wellington and Washington agreements and RNZN participation in the annual US-led RIMPAC naval exercises, the bilateral military relationship between New Zealand and the US is pretty much back to first-tier partner status regardless of the symbolic stand-off about nukes. Add to that the fact that US nuclear submarines regularly patrol around (and some suggest in) NZ territorial waters, and the reality is that NZ’s non-nuclear status does not impede US naval operations near its shores regardless of what is said in public.
The issue of the US “relenting” is all about context. First off, the strategic environment has changed considerably. It is well known that US surface ships, with the exception of carriers, are all diesel power and as of 1991 have not carried tactical nuclear munitions. Even if resurgent, Russia no longer poses the global nuclear threat to the US that it once did, and although China has emerged as the giant’s rival in the last two decades, it still has limited capacity to project blue water force deep into the Pacific in a measure that would constitute a direct challenge to US maritime interests. However, the Chinese are working hard to address that imbalance, evident in their land reclamation projects in the South China Sea and their overtures to South Pacific island states with regard to naval port visits and fishing rights, something that the US views with concern and which in part motivates Vice President Biden’s whirlwind tour of the region this week. Likewise, the re-establishment of the Russian Pacific Fleet also signals that the era of US maritime supremacy is now subject to contestation, so the US well understands that it needs all of its military allies working off of the same page when it comes to these new challenges. Recognizing the RNZN on its anniversary is one small way of doing so.
More importantly, from the moment President Obama stepped into the Oval Office he made de-nuclearization a cornerstone of his foreign policy. The Iran nuclear deal, the increased sanctions levied on North Korea, the slowing of advanced weapons sales to Pakistan, the repeated attempts to engage in bilateral strategic ballistic missile reductions with Russia–all of these efforts were undertaken as part of Obama’s vision of a safer world. It is therefore completely logical given his commitment to a world without (or at least with lesser amounts of) nuclear weapons, that under his administration the US would relent on the issue of NZ’s non-nuclear policy. In fact, it can be argued that the Obama administration wants to highlight its agreement with the principled commitment to a non-nuclear stance by authorising a US ship visit on a ceremonial occasion with symbolic significance given that several other nuclear powers will be among the 30 odd nations sending naval vessels to the celebrations–including its new competitors.
I have publicly suggested that the US send the USS Mercy, a hospital ship home ported at Pearl Harbour. It would symbolise the humanitarian aspects of naval deployments that the RNZN claims as one of its core missions and would defuse the grounds for opposition of protesters who see US warships as imperialist death platforms. Surprisingly, this suggestion has been ridiculed by some (most on the Right) who say that a ship without guns is not “exciting” and is not a real naval vessel. Given that navies around the world have tenders, tankers, tugs, intelligence collection vessels and assorted other non-combat ships, it strikes me as strange that some people think that the US decision to send a navy ship is a victory for NZ and yet that victory must be confirmed with a warship visit as opposed to something with a non-combat purpose. Given that the NZDF spends much time publicising its non-combat, peacekeeping and humanitarian roles, I would have thought that a visit by a US naval vessel whose purpose was something other than kinetic operations would be perfectly suited for the occasion.
In the end the decision by the US to accept the invitation to send a ship to the RNZN anniversary celebrations was a triumph of good sense over bureaucratic intransigence within the US defense establishment, pushed as much by the president’s commitment to a nuclear weapons-free world as it is by the evolving strategic realities in the Western Pacific Rim that require the US to consolidate its military alliance commitments in the region. Some in NZ may think that it “won” and the US lost with its change of posture, but a simple glance at geopolitical realities suggests that it was not the NZ non-nuclear movement that forced the change so much as it is the influence of much broader factors in a context when haggling about nukes on board is about as relevant to modern naval warfare as is arguing about the relative merits of spinnakers and mainsails.
Posted on 15:46, June 1st, 2016 by Pablo
I was invited to speak at a forum in Wellington on the “Privacy Security Dilemma.” It included a variety of people from government, the private sector, academia and public interest groups. The discussion basically revolved around the issue of whether the quest for security in the current era is increasingly infringing on the right to privacy. There were about 150 people present, a mixture of government servants, students, retirees, academics, foreign officials and a few intelligence officers.
There were some interesting points made, including the view that in order to be free we must be secure in our daily lives (Professor Robert Ayson), that Anglo-Saxon notions of personal identity and privacy do not account for the collective nature of identity and privacy amongst Maori (Professor Karen Coutts), that notions of privacy are contextual rather than universal (Professor Miriam Lips), that in the information age we may know more but are no wiser for it (Professor Ayson), that mass intrusions of privacy in targeted minority groups in the name of security leads to alienation, disaffection and resentment in those groups (Anjum Rahman), and that in the contemporary era physical borders are no impediment to nefarious activities carried out by a variety of state and non-state actors (various).
We also heard from Michael Cullen and Chris Finlayson. Cullen chaired the recent Intelligence Review and Finlayson is the current Minister of Security and Intelligence. Cullen summarised the main points of the recommendations in the Review and was kind enough to stay for questions after his panel. Finlayson arrived two hours late, failed to acknowledge any of the speakers other than Privacy Commissioner John Edwards (who gave an encouraging talk), read a standard stump speech from notes, and bolted from the room as soon as as he stopped speaking.
Thomas Beagle gave a strong presentation that was almost Nicky Hageresque in its denouncement of government powers of surveillance and control. His most important point, and one that I found compelling, was that the issue is not about the tradeoff between security and privacy but between security and power. He noted that expanded government security authority was more about wielding power over subjects than about simply infringing on privacy. If I understand him correctly, privacy is a commodity in a larger ethical game.
Note that I say commodity rather than prize. “Prize” is largely construed as a reward, gain, victory or the achievement of some other coveted objective, especially in the face of underhanded, dishonest, unscrupulous and often murderous opposition. However, here privacy is used as a pawn in a larger struggle between the state and its subjects. Although I disagree with his assessment that corporations do not wield power over clients when they amass data on them, his point that the government can and does wield (often retaliatory) power over people through the (mis) use of data collection is sobering at the very least.
When I agreed to join the forum I was not sure exactly what was expected from me. I decided to go for some food for thought about three basic phrases used in the information gathering business, and how the notion of consent is applied to them.
The first phrase is “bulk collection.” Bulk collection is the wholesale acquisition and storage of data for the purposes of subsequent trawling and mining in pursuit of more specific “nuggets” of actionable information. Although signals intelligence agencies such as the GCSB are known for doing this, many private entities such as social media platforms and internet service providers also do so. Whereas signals intelligence agencies may be looking for terrorists and spies in their use of filters such as PRISM and XKEYSCORE, private entities use data mining algorithms for marketing purposes (hence the targeted advertisements on social media).
“Mass surveillance” is the ongoing and undifferentiated monitoring of collective behaviour for the purposes of identifying, targeting and analysing the behaviour of specific individuals or groups. It is not the same thing as bulk collection, if for no other reason than it has a more immediate, real-time application. Mass surveillance is done by a host of public agencies, be it the Police via CCTV coverage of public spaces, transportation authorities’ coverage of roadways, railroads and airports, local council coverage of recreational facilities and areas, district health board monitoring of hospitals, etc. It is not only public agencies that engage in mass surveillance. Private retail outlets, shopping centres and malls, carparks, stadiums, entertainment venues, clubs, pubs, firms and gated communities all use mass surveillance. We know why they do so, just as we know why public agencies do so (crime prevention being the most common reason), but the salient fact is that they all do it.
“Targeted spying” is the covert or surreptitious observation and monitoring of targeted individuals and groups in order to identify specific activities and behaviours. It can be physical or electronic (i.e. via direct human observation or video/computer/telephone intercepts). Most of this is done by the Police and government intelligence agencies such as the SIS, and most often it is done under warrant (although the restrictions on warrantless spying have been loosened in the post 9/11 era). Yet, it is not only government security and intelligence agencies that undertake targeted spying. Private investigators, credit card agencies, debt collectors, background checking firms and others all use this as a tool of their trades.
What is evident on the face of things is that all of the information gathering activities mentioned here violate not only the right to privacy but also the presumption of innocence, particularly the first two. Information is gathered on a mass scale regardless of whether people are violating the law or, in the case of targeted spying, on the suspicion that they are.
The way governments have addressed concerns about this basic violation of democratic principles is through the warrant system. But what about wholesale data-gathering by private as well as public entities? Who gives them permission to do so, and how?
That is where informed consent comes in. Informed consent of the electorate is considered to be a hallmark of robust or mature democracies. The voting public are aware of and have institutional channels of expression and decision-making influence when it comes to the laws and regulations that govern their communal relations.
But how is that given? As it turns out, in the private sphere it is given by the phrase “terms and conditions.” Be it when we sign up to a social media platform or internet service, or when we park our cars, or when we enter a mall and engage in some retail therapy, or when we take a cab, ride the bus or board a train, there are public notices governing the terms and conditions of use of these services that include giving up the right to privacy in that particular context. It may be hidden in the fine print of an internet provider service agreement, or on a small sticker in the corner of a mall or shop entry, or on the back of a ticket, but in this day and age the use of a service comes attached with it the forfeiture of at least some degree of privacy. As soon as we tick on a box agreeing to the terms or make use of a given service, we consent to that exchange.
One can rightly argue that many people do not read the terms or conditions of service contracts. But that is the point: just as ignorance is no excuse for violation of the law, ignorance of the terms of service does not mean that consent has not been given. But here again, the question is how can this be informed consent? Well, it is not.
That takes us to the public sphere and issues of governance. The reality is that many people are not informed and do not even think that their consent is required for governments to go about their business. This brings up the issue of “implicit,” “implied” or inferred” consent. In Latin American societies the view is that if you do not say no then you implicitly mean yes. In Anglophone cultures the reverse is true: if you do not explicitly say yes than you mean no. But in contemporary Aotearoa, it seems that the Latin view prevails, as the electorate is often uninformed, disinterested, ignorant of and certainly not explicitly consenting to many government policy initiatives, including those in the security field and with regards to basic civil liberties such as the right to privacy and presumption of innocence.
One can argue that in representative democracy consent is given indirectly via electoral processes whereby politicians are elected to exercise the will of the people. Politicians make the laws that govern us all and the people can challenge them in neutral courts. Consent is given indirectly and is contingent on the courts upholding the legality if not legitimacy of policy decisions.
But is that really informed contingent consent? Do we abdicate any say about discrete policy decisions and legislative changes once we elect a government? Or do we broadly do so at regular intervals, say every three years, and then just forget about having another say until the next election cycle? I would think and hope not. And yet, that appears to be the practice in New Zealand.
Therein lies the rub. When it comes to consenting to intrusions on our privacy be they in the private or public sphere, we are more often doing so in implicit rather than informed fashion. Moreover, we tend to give broad consent to governments of the day rather than offer it on a discrete, case by case, policy by policy, law by law basis. And because we do so, both public authorities and private agencies can collect, store, manipulate and exchange our private information at their discretion rather than ours.
Posted on 14:49, March 29th, 2016 by Pablo
I have had a professional interest in torture since my days doing human rights work in Latin America. As part of that work I talked to victims as well as perpetrators of state terrorism and subsequently wrote professionally about its usage in Argentina. Later on I consorted with members of the US counter-intelligence community who were responsible for interrogations of suspected spies and other bad people. They helped me understand the difference between coercive (as opposed to passive or sympathetic) interrogations and torture. The combination of experiences made clear to me that torture is more about punishment and collective deterrence through fear than it is about timely and sensitive information-gathering.
When the US started using its “enhanced interrogation techniques” after 9/11, descending into the medieval weirdness of Abu Ghraib and camp X-Ray at Guantanamo Bay, I tried to make sense of it.
In recent years the US Congress and the CIA have conducted investigations into the enhanced interrogation program. The bottom line is twofold: enhanced interrogations did not work any better than “normal” interrogations in extracting valuable information from terrorism suspects; and the justifications for using them was specious and deceptive at best. The best way of garnering valuable intelligence, as it turns out, is through a combination of timely signals collections working in concert with old fashion human intelligence gathering on the ground.
Now along comes Donald Trump claiming that not only does torture work but that he would “do worse” to suspects than water boarding in order to extract information from them. By now it should be clear that he is a blithering idiot on foreign relations, military affairs, intelligence operations, and pretty much everything else when it comes to public policy, to say nothing of being a serial liar with the purest case of narcissistic personality disorder seen since Narcissus himself (and were it that he could only suffer the same fate).
Heck, he makes Al Gore’s claim about inventing the internet look like a child’s fib in comparison!
In any event, Trump is dangerously wrong.
In an interview with a NZ business publication, this is what I had to say bout Trump’s remarks.
I wrote a short opinion piece in the Herald outlining some of my thoughts about the Brussels terrorist attacks. Unless the root causes of the problem are addressed, there will be no end to them. Even if they overlap in the form of foreign fighters, those root causes primarily reside in the disaffection and alienation produced by socio-economic and cultural grievances at home rather than in the conflicts of the Middle East. The solution is to be proactive as well as reactive to the threat posed by domestic radicalisation, and that involves social reform as well as better human intelligence collection in the communities from which home-grown jihadists emerge.
In last Monday’s press briefing, the Prime Minister took my name in vain. Responding to questions from a reporter I had talked to, he said that my concerns about the apparent illegality of undercover intelligence operations were “fundamentally wrong.” Instead, he said that although intelligence agencies could not break laws (tell that to Kim Dotcom), they might require “different laws.”
I beg to differ.
Before delving deeper, let’s address the PM’s remark about the need for “different laws” governing undercover intelligence operations. What does he mean by “different?” Is he proposing that there be one set of laws for regular citizens and another set of laws governing undercover intelligence work? How does that sit with the “equal rights under the law” premise that is at the heart of democratic jurisprudence? And if there is no provision for “different laws” governing undercover intelligence operations today, then what is there in extant law that makes otherwise illegal acts legal? How often and under what circumstances are these illegal-but-legal acts allowed and are they only allowed or legal under warrant? Something tells me that the answers to the last two questions are “frequently and routine” and “no” respectively.
The question about undercover intelligence operations was raised because during the course of conversations with a couple of reporters about the Intelligence Review in general, I pointed out that the most interesting items were buried at the back of the report. Reporters tend to read the executive summaries of official government documents but seldom have the time or inclination to read through 179 pages of dense prose and legal jargon.
But since I have the time and inclination, I did. Plus, in my former life as a US government official I actually helped draft such reports so know that the best way of reading them is from back to front. That way one can get to the meat of the report, often found in annexes, before wading through the fluff.
I should point out that my overall take on the report is this: given who was on the Review committee, the report was inevitably going to have a bias towards institutional continuity and incrementalism with regard to reforms. That is indeed what happened. The report reflects as much if not more of the spy agencies’ concerns than it does that of external parties or stakeholders like the civil society organisations and individuals that were consulted by the Committee. The result is bound to be disappointing to those who wanted a major overhaul of the intelligence community or wanted parts of it disbanded altogether, such as the Greens, but to my mind it is a small but acceptable step towards greater transparency and accountability in the NZ intelligence community and its main collection agencies, the GCSB and SIS.
Even so, there are several problematic areas in the report that are worth considering, and here I will focus on the undercover operations that the PM thinks I have interpreted so fundamentally wrong. Rather than present my views without context, here are (cut and pasted) the recommendations regarding undercover operations as listed in the Report:
163 Annex C: Full list of recommendations (abridged).
Cover for operations and employees
78.The legislation should explicitly provide for the Agencies to obtain, create and use any identification information necessary for the purpose of maintaining the secret nature of their authorised activities. This should include the ability to create cover for anyone authorised to undertake activity for the Agencies.
79. “Identity information” should include anything that could be used to establish identity – such as credit cards and shell companies in additional to traditional forms of identification (such as passports and driver licences).
80. The Agencies should also have the ability to obtain, create and use identification information necessary to keep the identity of their employees confidential.
81. The use of these powers should be covered by a tier 3 authorisation (policy statement) to ensure they are exercised only where necessary and proportionate.
82. There should be corresponding immunities from civil and criminal liability for reasonable acts done in good faith to create or maintain cover as part of an authorised operation or to keep the fact of a person’s employment with the NZSIS or GCSB secret.
83. These powers and immunities should be incorporated through general provisions in the legislation governing the Agencies, rather than by inserting specific exceptions in other legislation as is currently the case.
84. The same immunities should apply to both agencies, in line with our recommendations that the Agencies share functions and an authorisation regime.
85. Immunities should also apply to anyone required to assist the Agencies, such as telecommunications companies, or to human sources or agents acting at the Agencies’ request or direction.
86. The legislation should provide that no person should be subject to criminal liability for acts carried out in good faith and in a reasonable manner that are necessary to give effect to a tier 1 or tier 2 authorisation.
87. Employees of the Agencies should also have immunity from criminal liability for acts carried out in good faith, in a reasonable manner and in accordance with the purposes of the Act to obtain a tier 1 or tier 2 authorisation.
88. The immunities for employees of the Agencies should also extend to any relevant minor offences or infringements that may need to be committed in the course of investigations carried out under a tier 3 authorisation (such as breaches of road user rules).
89. Employees of the Agencies and any person acting at the request or direction of the Agencies should be protected from civil liability for acts or omissions in good faith in the pursuance or intended pursuance of the Agencies’ duties, functions or powers. This is the same protection as is provided to public sector employees under the State Sector Act 1988.
90. Where the GCSB or NZSIS is assisting another agency to perform its functions, any immunities that apply to the agency being assisted should also apply to the GCSB and/or NZSIS.
Readers can form their own conclusions about what these recommendations imply. But here are some thoughts. It appears that undercover operations conducted by the SIS (and to a lesser extent the GCSB) do not have specific legal cover as things currently stand. There are no provisions in the SIS or GCSB Acts that explicitly refer to a legal framework under which otherwise criminal acts undertaken by undercover intelligence agents may occur. That means, in effect, that until now undercover intelligence operations are essentially illegal except for the fact that they are conducted by agents of the State at its behest under exceptions to existing legislation (outside of the GCSB and SIS Acts or even the State Sector Act). But even then there is apparently nothing in the law that explicitly authorises undercover intelligence operations that otherwise would be criminal acts (say, burglary, forgery or credit fraud). Yet the recommendations speak directly to such acts so clearly they have been happening.
The problem is not just that SIS agents have no specific legal cover for what they do covertly, something that individually places them at considerable risk in the event that they are caught or detected. There also are no specific provisions on what they cannot do. Where is the line drawn as to what is permissible when acting as an undercover agent of the State. Murder? Arson? Extortion? Blackmail? Kidnapping? Credit card fraud? Money laundering? Burglary? Home invasions? Tail-gating? (I include this because recommendation 88 specifically mentions breaches of road user rules). If an agent is recklessly tail-gating a surveillance target and wrecks while doing so, killing or injuring passerby, is that agent immune from prosecution or liability because s/he was in the service of the State?
These questions are not frivolous. From my personal experience, I know that among other things covert or undercover agents are taught how to pick locks and conduct “traceless” break-ins and burglaries (they are even provided with the tools to do so). Cyber-hacking to install malware or to steal sensitive information is a stock in trade of signals intelligence agencies. Clandestine surveillance of all sorts is the bread and butter of most human intelligence agencies. The CIA has its own lethal drone program and paramilitary branch, as do several other spy agencies. The Mossad is, among many other things, a brutally efficient assassination machine. So where does one draw the line when it comes to otherwise criminal acts carried out by intelligence agents of the NZ state?
The recommendations repeatedly speak about acting in “good faith.” But how is “good faith” defined? The SIS agents who broke into activist Aziz Chowdry’s home in 1996 were probably acting in “good faith” when they committed what otherwise would be a crime, but how is it that stealing documents from activists is justified on national security grounds? Moreover, the person who caught the SIS agents in the act of breaking and entering, David Small, had his home raided, ostensibly to search for bomb-making materials, by the Police a week later, after making the initial complaint (he was able to record the SIS get away car’s registration plate number, which was traced back to an SIS front company). How was the raid on Dr. Small done in “good faith” and at whose behest? The government was eventually forced to settle with Mr. Chowdry for a six figure amount and, worse yet, forced to apologise to him for the break in (you can read a summary of the case here).
Dr. Small also received compensation for “unreasonable search.” If we accept that an apology implies recognition of wrong doing and that “unreasonable searches” may be part of the SIS repertoire, then how and where does “good faith” come into the picture? Add to that events such as SIS break-ins at Auckland University in the late 1990s (if I am not mistaken Jane Kelsey’s office was a target), and one gets the idea that the SIS engages in otherwise illegal acts not so much for national security reasons but because it simply can under a de facto “good faith” immunity clause. So the effect of the current recommendations would be to codify what is already informal usage and practice.
The issue of “good faith” extends beyond New Zealand’s borders. Inspector General of Intelligence and Security Cheryl Gwyn is currently investigating whether the SIS was complicit in the CIA extraordinary rendition and black site program. For those unaware of these, the program involved kidnapping or detaining suspected Islamic extremists and “rendering” them to clandestine detention centres in a number of countries (Poland, Thailand and Egypt, among others). There they were subject to euphemistically labeled “enhanced” interrogation techniques (some of which are more properly classified as torture). Although some of those “rendered” by this program turned up in Guantanamo Bay or in prisons operated by US allies, many others have never been seen again. All of this was conducted off the books and outside of legal guarantees or protections for the detainees.
Assuming that Ms. Gwyn does find that in fact the SIS knew about or was complicit in the extraordinary rendition/black site program in contravention of NZ commitments to international conventions against torture and arbitrary detention, can the SIS turn around and claim that it was doing so in “good faith?” Is “good faith” nothing more than a get out of jail card for the intelligence services?
The bottom line is two-fold. First, undercover intelligence operations to date have been conducted under very porous and somewhat dubious legal cover that allows a multitude of operational sins to occur under what seems to be a wink and nod agreement with other agencies such as the police and Crown.
Secondly, the recommendations in the report about legal cover for undercover intelligence operations are very vague and broad, which allows the possibility for agents to go “rogue” so long as they can claim that they are acting in “good faith.” Neither is acceptable in a liberal democracy.
I agree that a comprehensive legal framework is needed governing the circumstances and permissible activities conducted during undercover intelligence operations. But this framework has to specify as much what is not permissible as what is, and has to ensure clear lines of responsibility as well as authorisation before and during the conduct of said operations. Otherwise we run the risk of allowing State-sanctioned criminal enterprise to masquerade as intelligence gathering.
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.