Posts Tagged ‘SIS’

So much for intelligence community reform.

datePosted on 18:36, February 17th, 2015 by Pablo

It turns out that nearly 5 months after getting re-elected, the government has decided on the composition of the Intelligence and Security Committee (ISC). Besides himself as Chair of the ISC, the Prime Minister gets to select two members from the government parties and the Opposition Leader gets to select one member from opposition parties.  In both cases the respective Leaders are expected under Section 7 (1) (c,d) of the 1996 Intelligence and Security Committee Act to consult with the other parties on their side of the aisle before selecting the remaining members of the committee. The language of the Act is quite specific: “c) 2 members of the House of Representatives nominated for the purpose by the Prime Minister following consultation with the leader of each party in Government: (d) 1 member of the House of Representatives nominated for the purpose by the Leader of the Opposition, with the agreement of the Prime Minister, following consultation with the leader of each party that is not in Government or in coalition with a Government party.” (1996 ISCA, pp. 6-7).

Not surprisingly the government has nominated two National MPs, Attorney General Chris Finlayson and Justice Minister Amy Adams, for membership on the ISC. It is not clear if ACT, the Maori Party and United Future were consulted before their selection. What is more surprising is that Andrew Little nominated David Shearer and did not consult with opposition parties before making his selection. While Shearer is a person with considerable international experience and has been a consumer of intelligence (as opposed to a practitioner) during his career, Mr. Little has been neither. In fact, it can be argued that Mr. Little has the least experience of all the proposed members when it comes to issues of intelligence and security, which means that he will have to lean very heavily on Mr. Shearer if he is not not be overmatched within the ISC.

Moreover, in past years Russell Norman, Peter Dunne and Winston Peters have been on the ISC, so the move to re-centralise parliamentary oversight in the two major parties represents a regression away from the democratisation of representation in that oversight role. Since these two parties have been in government during some of the more egregious acts of recent intelligence agency misbehaviour (for example, the Zaoui case, where intelligence was manipulated by the SIS to build a case against him at the behest of or in collusion with the 5th Labour government, and the case of the illegal surveillance of Kim Dotcom and his associates by the GCSB in collusion or at the behest of the US government under National, to say nothing of the ongoing data mining obtained via mass electronic trawling under both governments), this does not portend well for the upcoming review of the New Zealand intelligence community that this ISC is charged with undertaking.

The Greens have expressed their disgust at being excluded and have, righty in my opinion, pointed out that they are the only past members of the ISC that have taken a critical look at the way intelligence is obtained, analysed and used in New Zealand. But that appears to be exactly why they were excluded. According to John Key,  Labour’s decision was “the right call” and he “totally supports it.” More tellingly, Mr. Key said the following: “A range of opposition voices from the minor parties could railroad the process. I don’t think the committee was terribly constructive over the last few years, I think it was used less as a way of constructing the right outcomes for legislation, and more as a sort of political battleground” (my emphasis added).

In other words, Russell Norman took his membership on the ISC seriously and did not just follow along and play ball when it came to expanding state powers of search and surveillance under the Search and Surveillance Act of 2012 and GCSB Act of 2014.

That is a very big concern. Mr. Key believes that the “right” outcomes (which have had the effect of expanding state espionage powers while limiting its accountability or the institutional checks imposed on it) need to be produced by the ISC when it comes to the legal framework governing the intelligence community. Those who would oppose such outcomes are not suitable for membership, a view with which Andrew Little seems to agree.

This is so profoundly an undemocratic view on how intelligence oversight should work that I am at a loss for words to  explain how it could come from the mouth of a Prime Minister in a liberal democracy and be tacitly seconded by the Leader of the Opposition–unless they have genuine contempt for democracy. That is a trait that W. Bush, Tony Blair and John Howard shared as well, but what does that say about the state of New Zealand democracy?

Mr. Little has given his reason to exclude Metiria Turei of the Greens from ISC membership as being due to the fact the Mr. Norman is stepping down in May and Mr. Little wanted “skills, understanding and experience” in that ISC position. Besides insulting Ms. Turei (who has been in parliament for a fair while and co-Leader of the Greens for 5 years), he also gave the flick to Mr. Peters, presumably because that old dog does not heel too well. As for Mr. Dunne, well, loose lips have sunk his ship when it comes to such matters.

The bottom line is that Mr. Little supports Mr. Key’s undemocratic approach to intelligence oversight. Worse yet, it is these two men who will lead the review of the NZ intelligence community and propose reform to it, presumably in light of the debacles of the last few years and the eventual revelations about NZ espionage derived from the Snowden files.

As I said last year in the built-up to the vote on the GCSB Amendment Act,  I doubted very much that for all its rhetorical calls for an honest and thorough review process that led to significant reform, Labour would in fact do very little to change the system as given because when it is in government it pretty much acts very similar to National when it comes to intelligence and security. If anything, the differences between the two parties in this field are more stylistic than substantive.

What I could not have foreseen was that Labour would drop all pretence of bringing a critical mindset to the review and instead join National in a move to limit the amount of internal debate allowable within the ISC at a time when it finally had an important task to undertake (in the form of the intelligence community review).

As a result, no matter how many public submissions are made, or how many experts, interest groups and laypeople appear before the ISC hearings, and how much media coverage is given to them, I fear that the end result will be more of the same: some cosmetic changes along the margins, some organisational shuffles and regroupings in the name of streamlining information flows, reducing waste and eliminating duplication of functions in order to promote bureaucratic efficiency, and very little in the way of real change in the NZ intelligence community, especially in the areas of oversight and accountability.

From now on it is all about going through the motions and giving the appearance of undertaking a serious review within the ISC. For lack of a better word, let’s call this the PRISM approach to intelligence community reform.

LINK: The Intelligence and Security Committee Act 1996.

One thing has become clear after the revelations of multiple New Zealand intelligence agency failures, malfeasance and incompetence over the past few years. That is what happens when there is no effective oversight on, or accountability by those agencies. As things stand the Prime Minster is the sole oversight on New Zealand’s intelligence community. The parliamentary intelligence and security committee is a toothless wonder that gets semi-regular general briefings on intelligence matters (at a rate of less than once a month), and the inspector general (IG) of intelligence–the person who is supposed to independently investigate the actions of the intelligence community–is currently a geriatric former judge who has the equivalent of a .5 full time employee and whose office and resources are provided by the agencies he is supposed to independently assess. His predecessor, another retired judge, resigned under a cloud brought about by the Ahmed Zaoui political asylum  case, where the Security Intelligence Services (SIS)  was shown to have clearly manipulated analysis of intelligence flows derived from foreign partners and the IG demonstrated bias in favor of  the SIS version  of events prior to releasing his findings.

Add to that the fact that the IG has limited powers of investigation and a parliamentary committee that cannot be told about operational matters and has no powers to subpoena or authority to force testimony under oath, and what you have is a recipe for institutional “stretch:” the tendency of institutions to exceed and play loose with the rules, laws and regulations governing their charter in the absence of effective oversight and accountability. That has become glaring apparent in recent weeks.

The problem is somewhat mitigated when the Prime Minister is a hands-on type of manager who is knowledgeable about intelligence matters, to include methods of collection and analysis. Although it raises the possibility of PM misuse of intelligence flows for political purposes, it does have the merit of forcing intelligence officials to be accountable to someone. However, if the PM is disinterested, ignorant or laissez-faire in managerial approach to intelligence matters, then the possibility of intelligence agency institutional stretch becomes quite real, as we have now seen.

Given the revelations about the GCSB and prior instances of SIS “stretch,” the time is now perfect for a reform of the intelligence oversight apparatus. Although the PM can and should remain as the minister for intelligence and security, the parliamentary committee needs to be granted effective and binding oversight authority that includes powers to investigate operational issues and force intelligence agency officials of all ranks  to respond under oath to questions about the how, when and why of specific intelligence matters. Likewise, the Inspector General’s position needs to be expanded into a three person panel that includes a mix of people with experience in handling sensitive information and knowledge of how intelligence collection and analysis works, and who answer to and are resourced by parliament rather than the PM and SIS, respectively.

Unchecked executive oversight of intelligence agencies is prone to what might be called the authoritarian tendency (by which elected executives assume quasi-dictatorial powers of managerial control), and is in fact the mark of many authoritarian regimes. This avoids the system of checks and balances that is not only a hallmark of democratic political systems, but of their institutional component as well. The issue, as the intelligence community well knows, is about triangulation: there needs to be at least three independent (if overlapped) sources of critical institutional scrutiny for information or oversight to be validated (which are manifest in policy or administrative decisions).

That system of institutional checks and balances is what provides oversight and promotes accountability within public bureaucracies as a whole. Such accountability is horizontal–between different public agencies such as the judiciary and security apparatus–as well as vertical (where public agencies answer to political authorities separated into legislative and executive components). The institutionalized oversight aggregate mitigates against public agency stretch and political manipulation.

Having one individual, whatever his or her persuasion with regard to issues of intelligence collection, analysis and political impact (something driven by the political context of the moment, including  the relationship between government and opposition and the  personal and partisan implications of any given decision regarding security and intelligence) is, in a democracy, antithetical. In mature democracies policy decisions are not individualized; they are institutionalized and subject to effective oversight.

This is simply a matter of democratic good practice. Effective, independent oversight not only keeps intelligence agencies honest and prevents institutional stretch. It reassure the voting public that the larger common interest, rather than narrow political, diplomatic or corporate concerns, are served by the intelligence and security agencies charged with defending the commonweal.

Follow up on the SIS files and what should be done.

datePosted on 13:26, February 11th, 2009 by Pablo

When I found out that I was mentioned in the SIS files on Keith Locke (apparently in an unflattering letter), I got to thinking further about what can  be done to improve that agency and rid it of an institutional culture that is seemingly unprofessional, unaccountable and biased in its presentation of threats. There is more to the story, which revolves around the window of opportunity presented to the new government by the director-general of the SIS, Warren Tucker,  in opening up the SIS files to public scrutiny. Rather that repeat it here, please see the link below, where I outline the broader picture. I do not mean to be shameless with the link, just synergistic. A full post (on direct action) is forthcoming soon.

http://www.scoop.co.nz/stories/HL0902/S00209.htm