Posts Tagged ‘Transparency’

Hamstrung from the start?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Disappointing.

datePosted on 13:54, May 15th, 2013 by Pablo

Although I always knew that “hope and change” was a rhetorical chimera rather than a realizable objective, and understand full well that the US presidency is a strait jacket on the ambitions of those who occupy its office, I am one of those who have been disappointed by the Obama administration on several counts.

I fully understand that he inherited a mess and has done well to dig out from under it, particularly with regard to revitalizing the economy and disengaging from two unpopular wars. With some caveats, I support the drone campaign against al-Qaeda. I support his health care reforms, his support for gay marriage and his efforts to promote renewable energy. I support his measured endorsement of the Arab Spring coupled with his cautious approach to intervention in Libya and Syria, where he has used multilateral mechanisms to justify and undertake armed intervention against despotic regimes (US intervention being mostly covert, with the difference that in Libya there was a no-fly zone enforced by NATO whereas in Syria there is not thanks to Russian opposition).

But I am disappointed in other ways. The failure to close the detention facility at the Guantanamo Bay Marine and Naval base, and the failure to put those detained there on trial in US federal courts because of local political opposition, are foremost amongst them. Now, more egregious problems have surfaced.

It turns out that after the attacks on the US consulate in Benghazi, Libya, on September 11, 2012,  the administration removed from its “talking points” for press briefings and interviews the facts that the attack was conducted by al-Qaeda affiliates (and were not a spontaneous response to an anti-Islamic on-line video, as was claimed), that repeated requests for security reinforcement at the consulate before the attacks were denied in spite of warnings about imminent threats, and then military assets were withheld during the incident (which lasted eight hours).

The public deception was out of proportion to the overall impact of the attack. Whether or not al-Qaeda affiliates conducted it, serious questions about the lack of security were bound to be raised. The White House appears to have panicked under campaign pressure about the significance of the date of the attack and who was attacking (a purely symbolic matter), compounding the real issue of State Department responsibility for the security failures involved.

While not as bad as the W. Bush administration fabricating evidence to justify its rush to war in Iraq, it certainly merits condemnation.

There is more. It turns out the IRS (the federal tax department, for those unfamiliar with it), undertook audits of right-wing political organizations seeking tax-exempt status as non-profit entities. IRS auditors were instructed to use key words and phrases such as “Patriot,” “Tea Party” and other common conservative catch-phrases as the basis for deeper audits of organizations using them. That is against the law, albeit not unusual: the W. Bush administration engaged in the same type of thing.

Most recently it has been revealed that the Department of Justice, led by Attorney General Eric Holder (a recent visitor to NZ), secretly obtained two months of phone records from over 100 Associated Press reporters and staff, to include their home land lines, office and cell phones (in April-May 2012). The purpose was to uncover leaks of classified information about counter-terrorism operations to reporters after AP managers refused to cooperate with government requests to divulge the sources of leaks. That made the phone tapping legal. But there was an option: the government could have subpoenaed those suspected of receiving leaks and forced them to testify under oath as to their sources.

The main reason I am disappointed is that the Obama administration should have been better than this. I never expected the W. Bush (or the Bush 41, Reagan or Nixon administrations) to do anything but lie, cover up, fabricate, intimidate and manipulate in pursuit of their political agendas. They did not disappoint in that regard. But I do expect Democrats in general, and Obama in particular, to behave better in office. They are supposedly the defenders of the common folk, upholders of human rights and civil liberties, purportedly staunch opponents of corporate excess and abuses of privilege.

Republicans inevitably use public office to target domestic opponents and bend the law in favor of the rich and powerful. Democratic administrations are supposed to be better because, among other things, they know the consequences of such manipulation. Yet apparently they are not, even if these events pale in comparison to the crimes and misdemeanors of Republican administrations.

I am not being naive. I spent time working in federal agencies under both Republican and Democratic administrations in the 1980s and 1990s, and the difference in approach to the public trust, at least in the fields that I worked in, were great and palpable. It would seem that the things have changed since then.

Democratic governance often involves the compromise of principles in the pursuit of efficiency or cooperation in policy-making. There are always grey areas in the conduct of national affairs, and there are events and actions where reasons of necessity make secrecy more important than transparency in governance. The actions outlined above are neither.

I still prefer Obama to any of the GOP chumps that rail against him. But as John Stewart makes clear in this funny but scathing (and profane) critique, he and his administration have just stooped closer to their level.

Hence my disappointment.

 

Media Link: More GCSB weirdness.

datePosted on 09:32, April 4th, 2013 by Pablo

I was interviewed on Radio NZ about the controversy surrounding the appointment of Ian Fletcher as GCSB director. I had to leave out a number of important points like the need for objectivity and political neutrality in intelligence operations, or how the PM could have had a surrogate reach out to Fletcher rather than get personally involved in his selection. Otherwise, the gist is here.

Just do it! The Auckland referendum

datePosted on 18:50, April 27th, 2009 by Anita

If a political party, or combination of political parties, truly wanted a referendum they could just run one. It wouldn’t be governed by any legislation, but who cares? It would be just as powerful as a CIR (which relies on expressing public opinion and is not binding).

Political parties have access to electoral rolls, parliamentary service funding for material and postage, and free mail for people returning material to parliamentary addresses.

The parties would probably want  to find some eminent people for a panel to oversee the decision on the question and the rules under which the referendum will be run. They’d also benefit from maximum transparency: invite in all the media who want to be there, ensure all meetings are open, all agendas and minutes are public, and so on.

Figuring out the question’s gonna be tough; that’s the key to a referendum and worth putting time and effort into consultation and getting it right.

But, seriously, just do it!

It doesn’t matter that National and Act don’t want one, run it anyway!

It doesn’t matter that National and Act will say it’s not binding, would they ignore the outcome?

Just do it!

National & the tobacco industry

datePosted on 08:46, March 4th, 2009 by Anita

Tony Ryall has, once again, taken the moral low road and is refusing to ban cigarette displays in shops despite evidence that cigarette displays increase teenage smoking. This in a week that a similar ban was announced in Northern Ireland, joining bans in Ireland, Canada, England, Wales, much of Australia… oh shall I just call it “most of the developed world”?

Why does this matter? (Other than caring about the lives and health of New Zealanders)

  1. National is, once again, picking the tobacco industry over people’s lives and health
  2. National is, once again, choosing the moral wrong for the employers and owners’ benefit
  3. National is, once again, showing the signs of a party financially entangled with the tobacco industry.

In case you don’t have a copy of The Hollow Men to hand, I offer you some highlights:

  • Matthew Hooton, long time National mouthpiece, ex-National staffer and National lobbyist has done private pro-tobacco PR work and lobbying. His work was used by Rodney Hide to attempt to stall anti-tobacco legislation.
  • British American Tobacco’s chief lobbyist is a significant National Party donor and has been invited to caucus parties.
  • Key’s political advisors, Crosby|Textor, name British American Tobacco as a client of Mark Textor.

Sweet eh, politicians and industry working hand-in-hand – that must be the “pragmatism” John Key talks about.

Progressive bills and freedom of information

datePosted on 09:22, February 17th, 2009 by Anita

No Right Turn is running a wiki for the development of Progressive bills, it’s a great opportunity to figure out some progressive possibilities and get them happening. So if there’s any way you’d like to make NZ more progressive, and you can imagine it being achieved through a private members bill this is the place for you! :)

I”m currently struggling with how to improve our freedom of information legislation, the Mexican model has some real possibilities, but it’s not as easy as one might hope.

My goal is two fold, firstly to extend the amount of information made available (extending it to Parliament and so on) and secondly to make it harder for agencies to game.

My experience with OIAs is that some agencies are lovely, when others require chasing, more chasing before they provide incomplete and overdue responses (at which point the Ombudsmen can sort it out), but it makes a mockery of the current rules, and is unreasonably time and energy intensive. I’m not sure whether legislative change would fix it, or whether a fundamental cultural change is required

The principle underpinning freedom of information is that it’s our information and our government; and that transparency increases justice, fairness and accountability, yet many agencies behave as if they have a right to secrecy and evasion. What would change the attitude?