Posts Tagged ‘Security’
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.
Posted on 06:35, January 7th, 2016 by Pablo
The US has asked New Zealand to provide special operations troops to the anti-Daesh coalition. The government has said that it will consider the request but both the Prime Minister and the Defence Minister have qualified the response by stating that they do not think that NZ will increase its contribution beyond the company sized infantry training complement currently deployed at Camp Taji outside of Baghdad.
The Ministers’ caution has more to do with domestic political concerns than the practical or diplomatic necessities of the conflict itself. With a thin majority thanks to Winston Peter’s by-election victory in Northland, National cannot risk parliamentary defeat on the issue. But Opposition leader Andrew Little has signaled that Labour is willing to consider sending SAS troops to the fight, so the ground is clearing for authorization of a new phase of the NZDF mission.
This was predictable from the moment the NZDF first deployed to Iraq last May. It was clear then and it is now that training Iraqi soldiers is not enough to turn the tide against Daesh. The training is good and the troops that graduate have improved professional skills, but according to a report prepared by the US Defense Department immediately before Mr. Key travelled to Taji in October for his meet-and-greet photo op with the troops, they were no better in battle than they were before the training mission began.
The problem lies with the Iraqi Army leadership. Iraqi field rank officers are not included in the training program and are unwilling or unable to demonstrate the type of leadership skills under fire that are required to make best use of the training received by their soldiers from the NZDF and its allies.
That is where special operations troops like the NZSAS are useful. Among many other roles they serve as leadership advisors on the battlefield. Because of their exceptional skills and hardened discipline, SAS teams serve as force multipliers by adding tactical acumen, physical resilience and steadfastness of purpose to the fight. They lead by example.
NZ’s major allies already have special operations troops on the ground in Iraq, Libya and Syria. Although all of the nationally-badged SAS units roam the region, the Australian SAS is heavily involved in Iraq (and is present at Camp Taji). Not only do Australian SAS troops serve as forward spotters for RAAF FA-18s undertaking ground attack missions in Iraq. They have fought alongside Iraqi troops attempting to re-take the city of Ramadi, provincial capital of the Sunni heartland that is Anbar Province (119 kilometers from Camp Taji and 90 kilometres from Baghdad). The Australian role is considered to have been essential in the initial re-occupation of Ramadi, in which NZDF trained Iraqi troops participated. US, UK and Canadian special operators are currently conducting advisory, forward targeting, search and destroy and long-range intelligence missions against Daesh in north and western Iraq in conjunction with Kurdish and Iraqi forces. Russian, Iranian and Turkish special operators are on the ground in Iraq and Syria as well, and the contested spaces in which Western special forces are now actively involved in the Middle East extends to Libya, Saharan and Sub-Saharan Africa.
The Anglophone special forces are the allies that the NZSAS trains with regularly and works the closest with when on foreign missions. Like its counterparts, NZSAS tend to spend much time in or near overseas conflict zones whether that is publicized or not, usually following the typical military rotation pattern of threes: a third overseas, a third preparing for deployment, and a third on home duty after deployment. It is fair to assume that their attention when overseas has recently been focused on Iraq, Syria and perhaps other conflict zones in the Middle East.
The PM has hinted as much, stating that the NZSAS could be involved in roles other than combat. Since one of its primary missions is long-range patrol and intelligence gathering (rather than active engagement of the enemy), it could well be that the NZSAS is already playing a part in the targeting of Daesh assets.
With around 130 SAS troops in A and B Squadrons (Air, Boat, Mountain), that leaves a minimum of two troops’ or a platoon sized group (30-40 soldiers excluding officers) available for foreign deployment at any given time. Since the NZSAS operates in squads of 3 to 6 men depending on the nature of the mission (4-5 squads per troop), this leaves plenty of room for tactical flexibility, operational decentralization and role diversification.
Reports dating back to early 2015 already put the NZSAS in theater in small numbers, something the government does not deny. They may not be based in Iraq (which gives the government plausible deniability when asked if there are NZSAS troops on the ground in Iraq), but the main focus of their mission certainly is. Given the logistics involved it would be unusual if the NZSAS has not been working behind the scenes for their eventual participation in more active combat roles beyond what it may already be engaged in.
It will be odd if NZ refuses to send its most elite soldiers when asked for them by its major allies in a UN sanctioned multinational military coalition. Troops like the NZSAS need regular combat experience to sharpen and maintain their skills and they cannot do that at home. Since part of their specialness is versatility in a wide range of combat environments, the NZSAS would be keen to test its troops in the mixed urban/desert, conventional and unconventional battlefields of Iraq, Libya and Syria. The kinetic environment in the fight against Daesh is highly complex and multi-faceted so it stands to reason that our elite soldiers would want exposure to it.
Leaving the NZSAS in NZ is akin to leaving a Bugatti in the garage. Much has been invested in their combat readiness. They are trained to fight autonomously and lead others in combat (such as during the anti-terrorist mission in Afghanistan). To keep their specialist skills they need to experience live hostile fire. It would therefore be counterproductive for them to be idling in Papakura when there is a just cause to be fought against real enemies of humanity who commit atrocities and wreak misery on those they subjugate.
Whether one likes it or not, thanks to the Wellington and Washington Agreements NZ is once again a first tier military partner of the US, standing alongside Australia, Canada and the UK in that regard. Most of NZ’s major diplomatic partners are members of the anti-Daesh coalition and some, like Norway and Denmark, have also contributed special operations troops to it. NZ ‘s major trade partners in the Middle East are part of the coalition. As a temporary member of the UN Security Council, NZ has been vocal in its condemnation of Daesh and in calling for a united diplomatic and military response against it. It consequently has no real option but to accede to the request for the NZSAS to join the fight. It may be mission creep but this was mission creep that was foreseeable (and arguably has been planned for and implemented in spite of the government’s obfuscations).
Critics will say that NZ has no dog in this fight, that it is neo-imperialist foreign intervention on behest of corporate interests that only serves to show how subservient governments like National’s are when it comes to pleasing the US. If so, then there are 59 other countries in that category, to which can be added Iran (and its proxies in Iraq, Syria and Lebanon), Russia and the newly formed (if at this stage only on paper) Sunni Muslim anti-terrorism coalition that includes Malaysia, Indonesia and Pakistan. Critics will also point out that NZ is being selective about when and where it chooses to join foreign military adventures, and they would be right in that regard. But given its military resources, NZ pretty much has to be selective every time that it deploys troops, especially in combat roles. So there is nothing new, unusual or unethical in doing so.
Pacifists will say that the conflict with Daesh cannot be resolved by military means. It is true that military force alone is not sufficient to defeat Daesh, but removing it from the territory it occupies in Iraq, Libya and Syria is essential to that project. Not only is Daesh not prone to negotiating with its adversaries or sitting down with those that it disagrees with in order to settle differences. The very nature of its rule is based on coercion and imposition–of its puritanical values, of its medieval authority, of its rape and sex slave culture and of its harsh discriminatory treatment towards all who are not Sunni Arab men (and even the latter are not immune from its violence). Its removal is therefore justified on humanitarian grounds although disputed opinion polls claim that it enjoys some measure of public support in Anbar Province and Mosul. Yet even if the polls are correct–and that is very much questionable given the environment in which they are conducted–the hard fact is that there is no objective measure to gauge whether Daesh enjoys the informed consent of those that it governs, and until it does its reign is illegitimate because rule without majority consent is tyranny. Add to that the innumerable crimes against humanity Daesh has committed and its exportation and exhortation of terrorism across the globe, and the case against the use of force loses foundation.
Re-taking the ground lost to Daesh removes the main areas in which its leadership is located, from which it profits from oil production and where it trains jihadists from all over the world (some of whom return to commit acts of violence in their home countries). That in turn will lessen its appeal to prospective recruits. Thus the first step in rolling back Daesh as a international irregular warfare actor is to win the war of territorial re-occupation in the greater Levant.
The military objective in Iraq is to push Daesh out of Anbar Province and the Nineveh Governorate in which Mosul is located and force it to retreat back into Syria. At that point it can be subjected to a pincer movement in which the European/Arab/Antipodean/North American anti-Daesh coalition presses from the South and East while Russian, Iranian, Turkish and Syrian forces press from the North and West. The endgame will involve four milestones: first the capture of Ramadi, then the re-taking of Falluja, followed by the freeing of Mosul, and finally the seizure of the northern Syrian city of al-Raqqah, the capital of Daesh’s self-proclaimed caliphate.
Arab states will need to contribute more to the fight, including ground forces. Resolving the impasse over what to do with Assad is critical to establishing a united front between his military, Russia’s, Iran’s, Turkey and the anti-Daesh coalition. Both requirements are fraught and need to be the subject of delicate negotiations made all the more complicated by the Saudi-Iranian confrontation occasioned by the Saudi execution of a Shiia cleric. But for the negotiations to advance, much less to succeed, there needs to be battlefield gains against Daesh in Iraq that reverse its march towards Baghdad and which break the strategic stalemate currently in place. Once the prospect of victory over Daesh becomes possible, more countries will feel comfortable putting additional resources into the campaign against it.
There is room to be optimistic in that regard. In 2015 Daesh lost approximately 30-40 percent (+/- 5000 square miles) of the territory that it controlled in Iraq and Syria. Most of these losses were to Kurdish Peshmerga forces working in concert with Western special operations units. Significantly aided by its coalition partners and tribal militias, the Iraq Army has re-taken Tikrit (November) and the oil refinery town of Baiji (October) and is in the process of clearing the last pockets of Daesh resistance in Ramadi. Preparations for the re-taking of Falluja are well underway, and the battle for Mosul–Daesh’s biggest conquest in Iraq–is scheduled to begin within months. Key Daesh supply lines between Iraq and Syria are under near-constant aerial attack. In sum, the tide of Deash victories may not have completely turned but it does appear to have ebbed.
John Key does not do anything out of moral or ethical conviction, much less altruism. Instead he relies on polling and self-interest to drive policy. His polling may be telling him that it is getting politically less difficult to sell the NZSAS deployment to domestic audiences. But even if not, he has in the past ignored public opinion when it suits him (e.g. asset sales and the TPPA). With Labour warming to the idea of an NZSAS deployment, his political risk is reduced considerably regardless of public opinion. It is therefore likely that, weasel words notwithstanding, the train has been set in motion for that to occur.
Once the deployment is announced it is likely that the NZ public will support the decision and wish the troops Godspeed and success in fulfilling their mission. But even if the majority do not, the diplomatic and military pressure to contribute more to the war effort against Daesh will be enough to convince the government that it is in NZ’s best interests to agree to the request. In a non-election year and with Labour support it is also a politically safe thing to do.
What is certain is that the mission will be very dangerous for the troops involved. It will raise NZ’s target profile amongst Islamicists and could invite attack at home. But given the position NZ finds itself in, it is a necessary and ultimately justified thing to do for several reasons, not the least of which is upholding NZ’s reputation as an international actor.
A short version of this essay appears in the New Zealand Herald, January 7, 2016 (the comments are quite entertaining).
Posted on 08:37, December 15th, 2015 by Pablo
By now it is well known that in their effort to find the source of the information upon which Nicky Hager’s book Dirty Politics was based, the NZ Police searched and seized computers, phones and personal records from Mr. Hager’s home. They also intimidated Mr. Hager’s daughter (who was home at the time) by forcing her to dress in front of an officer and relinquish her personal computer. In addition, they asked a number of service providers to give them access to Mr. Hager’s personal details without a warrant or production order. Most of the service providers refused or asked for a warrant but at least one, the financial corporation Westpac, gave up eight month’s worth of Mr. Hager’s transaction records without asking the Police for a legal instrument compelling them to do so.
News of this caused a brief furore amongst civil libertarians, privacy advocates, some journalists and a few business people. But as with much that the Police does that is borderline in terms of legality, the issue soon dropped from the public eye. Few if any follow ups have been published and for all intents and purposes the Police have emerged unscathed from yet another episode of operating with impunity and contempt for the law.
I have had opportunity to review Police documentation regarding the case released under Discovery (79 pages in total). Readers are invited to read the full dossier released by the High Court over at Scoop, which also has an interesting newspaper story detailing the genesis of the investigation into Mr. Hager.
Much in the Police documents is redacted but there is plenty to consider nevertheless. In the spirit of public interest journalism (although I am not a journalist by training, inclination or employment), I have decided to add a bit more to the public domain on this case. As it turns out, the Police did more than ask various service providers to give them access to Mr. Hager’s private information, and they got things rolling just before and then accelerated the investigation very quickly after a complaint was laid about the source of the material from which Dirty Politics was constructed (the infamous or heroic hacker known as Rawshark, depending on how you view things).
On August 22, 2014, amid the sequels to the publication of Dirty Politics and the speculation as to the identity of the hacker who accessed the information from a notorious right-wing blogger that detailed his unsavoury connections to government officials and corporate interests, Rawshark tweeted what most observers saw as a satirical or diversionary tweet saying that s/he was on vacation in Vanuatu. Rather than take it with a grain of salt, and after the blogger formally complained on August 25, 2014, the NZ Police fired up their investigative resources and on September 18, 2014 a detective constable by the name of Rachelle (I shall leave her last name out), who was assigned to the case by a superior named Simon (again, I shall leave his surname out for the moment), telephoned Immigration New Zealand (INZ) for information on all NZ residents and citizens who had traveled to Vanuatu around that time.
I should note that this very same detective Simon was the police officer who made the “enquiry” of Westpac about Mr. Hager’s financial details on September 24, 2014. In the days that followed the Police were able to obtain detailed information on Mr. Hager’s property holdings from Wellington City Council as well as full details of his Westpac bank accounts and credit cards. Although some of this information was available through the Council web site, on at least one occasion detective constable Rachelle was able to obtain information directly from the Council without a warrant or production order (this information is available on pages 25-26 of the Discovery documents that I have read. (KEB Vol 4 Part 1C file pages 1468-69).
One has to wonder what relevance Mr. Hager’s property valuations and rate payments have with regard to the search for Rawshark. If the figures were obtained for a future asset seizure in the event Mr. Hager is found guilty of a crime, we have to remember that he has not been charged, much less convicted of any such thing. A search for aspects of his worth with an eye to future seizure implies a presumption of guilt on the part of the Police before any charges have been laid against Mr. Hager. To say the least, that is a perversion of natural justice.
During the September 18, 2014 conversation with detective constable Rachelle, a female senior INZ officer replied that it would be difficult to compile a list of all New Zealanders who traveled to Vanuatu during the referenced time period because INZ only had data on those who traveled directly to Vanuatu from NZ and did not hold information on those who may have stopped off elsewhere (such as Fiji) on their way to the holiday destination. She sent the Police an OIA form to fill out (which was completed and returned that day) in order to assist the INZ side of the investigation. A day later, on September 19, 2014, she emailed detective constable Rachelle and wrote that there was nothing more that INZ could do “on their end” and suggested that the Police “might want to try Customs.”
That was a good tip. Detective constable Rachelle noted then that she would speak to someone at Customs who was working on organised crime to find out the best source for that information. On September 23, 2014, after approaching NZ Customs, the NZ Police received from them spreadsheets containing the names of 2500 NZ citizens or residents who travelled directly from NZ to Vanuatu in the two weeks prior and after August 22, 2014. The spreadsheets were then sent to an officer Nichola (again, no last name needs to be published at this time) “at intel to see what plan we can come with in relation to analysing this information.”
The passenger information was presumably sourced from Air Vanuatu and/or Air New Zealand, who code share the three weekly flights between Auckland and Port Villa. No warrant or production order was issued for the release of this information, and it is unclear as to who and how Air Vanuatu and/or Air New Zealand were approached, or whether they were approached directly at all. This information is detailed on pages 70-71 (KEB Vol 4 Part 1C file pages 1525-26) of the Police documents released under Discovery in the case Mr. Hager has brought against them.
It is unclear whether the Police ever came up with a plan to analyse the personal information of the 2500 NZ citizens and residents that flew to Vanuatu from NZ in the two weeks before and after August 22, 2014. What is clear is that it was done, at a minimum, in violation of the Privacy Act because the data was obtained without a warrant or production order. Moreover, it is not clear what was ultimately done with the information about the 2500 people whose details were obtained by the Police. Was it analysed? Did any of it lead to further inquiries or action? Was it stored? Was it destroyed? Was some records kept and others not? The bottom line is that this information was obtained based upon a “courtesy” request, not a lawful order, and was part of a trolling exercise that began before a complaint was laid and not as a result of specific or precise information related to the Hager investigation. Both procedurally and substantively, obtaining this travel-related data of 2500 NZ citizens and residents was unlawful.
Given that Rawshark appears to be a pretty savvy hacker who knows how to cover his/her tracks, it is arguable that any of the 2500 people whose privacy was violated by Customs and the Police (and perhaps Air Vanuatu and/or Air New Zealand) had anything to do with obtaining the material for Dirty Politics. Beyond the issue of what was done with their personal information, the question is whether they have been told by any of these agencies about their records being accessed. After all, they have nothing to fear if they have nothing to hide, so it would seem natural that the Police and/or the other entities involved in the privacy breach would let the 2500 travellers know that their private records are safe. That is important because these records could well be more than passport details and could include ticket purchase location details, credit card information etc. At this point we do not know the full extent of the Police handling of this private information, but the privacy breach is a pretty big one in any event so the duty to inform those affected is great.
Published information is that the senior officer in charge of the investigation into Rawshark is Assistant Commissioner Malcolm Burgess. It appears that Mr. Burgess was contacted by email by the rightwing blogger on August 19, 2014 and immediately assigned the matter to the National Criminal Investigation Group (see the NZ Herald article on November 14, 2015 by David Fisher). That is odd because at the time no formal complaint had been made–that did not happen until August 25, 2014. In fact, it appears that an investigative plan of action was drawn up before the blogger made his formal complaint, then quickly put into action once he did.
In any case, perhaps Mr. Burgess is a “hand’s off” manager who did not know what those under him were doing, particularly detective Simon. But it would be interesting to see how he feels about the way the information on Vanuatu travellers was accessed given that it appears to have shed no light on Rawshark’s identity and seems to have violated the Privacy Act. In other words, it looks like it was a useless and illegal fishing expedition, which should be a concern for him as the senior office in charge.
I understand the importance of chasing all leads and avenues of inquiry in criminal investigations. I understand the notion of professional courtesy amongst security agencies. I understand the utility of informal agreements between government offices. I understand that institutional cultures may see legal requirement more as a challenge rather than as an obligation. I understand that sometimes investigatory overkill in one case is needed to serve as a deterrent to others who might seek to pursue similar courses of action.
But I also know, from both my academic writing on democratic governance and my professional experience while working in security branches of the US government, that at its institutional core democracy is about self-limitation and the universal rule of law, to which can be added the bureaucratic axion “CYA.” Yet when it comes to the NZ Police in this case and others, it seems that an institutional culture of impunity far outweighs respect for the self-limitations imposed by law when it comes to decision-making on matters of policy and operations.
Perhaps the Privacy Commissioner and other civil rights groups might want to take another look into this case because it is not just Mr. Hager who has had his rights violated by the Police investigation into Rawshark’s identity (in what to my mind is more a case of journalistic intimidation rather than a legitimate investigation into criminal wrong-doing). As much as I would like to believe that the Independent Police Conduct Authority (IPCA) would seize the opportunity to examine the particulars that I have outlined, its track record suggests otherwise.
One thing is certain: there are 2500 people in NZ who got a lot more than they bargained for when they booked direct flights to Vanuatu in the middle of last year.