Category: Intelligence and Security

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Drones in our future.

Although I have no technical expertise in the field of unmanned aerial vehicles (UAVs), I have discussed in various fora the military, intelligence, domestic security and political implications of their use now and in the future. The hard fact is that, bad press notwithstanding, UAVs (aka “drones”) are here to stay and will dominate the air space in the years to come. Already the US air force is training more drone pilots than fighter and bomber pilots combined. Ninety percent of what drones do is non-lethal: reconnaissance; surveillance; search and rescue; maritime patrol; signal, thermal, optic and other forms of technical intelligence gathering; geological exploration and terrain mapping–the applications of these types of platform are many and will continue to grow in the years ahead.

The utility of drones is due to a simple calculation: the three “Ds.” They do jobs that are dangerous and/or dirty, and they do them dispassionately. To this can be added the fact that their operational costs of drones are less than those of manned aircraft and they do not expose pilots to the physical risks of flying. That combination guarantees that policy-makers will look to UAVs as the future of military and law enforcement aviation even if manned aircraft remain the bulk of commercial and private aviation for the foreseeable future.

Lethal drones such as the infamous Predators are constantly being refined so that their acceptable Circular Error Probable (CEP)–the chances that a missile fired from the UAV will fall within 100 feet of the target crosshair center–is now greatly increased. Since they loiter at 15,000 feet for up to 36 hours, US drone pilots (who work in 12 hour shifts and who must have experience flying manned aircraft prior to their assignment as drone pilots) spend hours and days watching a potential target before pulling the trigger. The protocols governing the kill shot are quite tight (for example, no shots at family compounds or while the targeted individual(s) is or are in the vicinity of innocents), which contrary to popular opinion has greatly reduced the collateral damage occasioned by drone strikes when compared to the early days of their use.

In fact, manned aircraft continue to cause the bulk of unintended civilian deaths in Central Asia, which most often is the fault of faulty or misleading tactical intelligence on the ground (the use of misinformation by local informants acting for their own purposes has been a major contributor to the unintended civilian deaths caused by air strikes). As a remedy, special forces teams are increasingly being used to track, spot and verify legitimate targets in conflict zones (to include Pakistan, Yemen and Somalia as well as Afghanistan).

Although there have been many protestations about the use of lethal drones (so far the US is the only country to use them in anger), it is interesting to note that Pakistan has never attempted to intercept US drones operating in Pakistani air space even though the latter are slow, not particularly maneuverable and relatively easy to spot by electronic means (the recent downing by Israeli forces of an Iranian drone operated by Hezbollah demonstrates the case).  This is not to say that drone incursions into the sovereign air space of foreign countries are always or even generally  acceptable. What the different responses suggest is that the Pakistanis may not be aggrieved by US drone operations as they claim to be.

To be sure, the US military has tighter protocols governing lethal drones than does the para-military arm of the CIA. That has led to disagreements within the US security apparatus about who should be in control of lethal drones and under what circumstances are they to be used. The president currently has to authorize the CIA strikes, which are mostly directed at suspected jihadis operating in failed states. The military has a bit more latitude in targeting militants or insurgents in Afghanistan and the tribal areas of Pakistan, although all lethal strikes must be authorized by the chain of command. As of yet, that debate about unifying the command and control of lethal drones is unresolved and both the US military and the CIA continue to deploy armed and unarmed drones in foreign theaters using their own set of criteria (which if largely overlapped are not identical).

That is what brings me to the major point of this post: the fact that the legal apparatus governing the employment of drones in the international as well as the domestic arenas is very underdeveloped when compared with the technologies themselves. Already 60 countries employ drones, and domestic security agencies in a host of countries have explored their usage. The US uses them for border control and Coast Guard purposes, and true to form, some police department in Texas is reported to have expressed interest in a lethal version that could also dispense non-lethal crowd control justice from above.

Yet in no case are the legal protocols governing the use of drones in domestic arenas as well developed as are those used by the US military when engaged in foreign conflicts. This is worrying because the potential for abuse is great. UAV technology has outpaced the legislative framing of their fair use not only in undemocratic states but in liberal democracies as well.

New Zealand is not different in this regard. The Army and Navy are exploring drone technologies, as are other non-military government agencies. The Department of Conservation already has deployed a drone for geothermal and geographic research. The police are interested in UAV platforms as a substitute or complement to helicopters and terrestrial patrol vehicles. It is only a matter of time before drones are a regular presence in New Zealand skies, and the Civil Aviation Authority is already being tasked with drafting technical regulations governing their operations.

Even so, the legal structure governing the why, when, how and by who of UAV use in NZ is virtually nonexistent. Parliament appears disinterested in the subject and the agencies who would have the most use for drones have not been particularly proactive in drafting guidelines for their use. It is time that they did.

One reason is because the future of drones is not only in their greater use but in their increasingly varied configurations, to include miniaturization based on developments in nano technology. Consider this gem:

Sent to me by a friend borrowing from an unnamed source, the following blurb came with the photo.

“Is this a mosquito? No. It’s an insect spy drone for urban areas, already in production, funded by the US Government. It can be remotely controlled and is equipped with a camera and a microphone. It can land on you, and it may have the potential to take a DNA sample or leave RFID tracking nanotechnology on your skin. It can fly through an open window, or it can attach to your clothing until you take it in your home. Given their propensity to request macro-sized drones for surveillance, one is left with little doubt that police and military may look into these gadgets next.”

UPDATE: The source for the photo is this: http://www.snopes.com/photos/technology/insectdrone.asp

In light of the implications of developments in UAV technology and the growth in their employment, it seems appropriate that New Zealand confront the legal aspects of said use. New Zealand could, for example, be the first country to prohibit the use of lethal drones either in foreign conflicts or for domestic security (no other country has of yet discounted the use of drones for lethal purposes). Likewise, because there are no regional or international protocols governing their use, New Zealand could try to introduce resolutions in international and regional bodies that would lead to the regulation of UAVs on a broader level. At present the field of UAV operations is basically uncharted, much less regulated, so the opportunity now exists to try to match advances in UAV technology and deployment with advances in the legal architectures governing them.

Since New Zealand has in the past shown initiative and boldness in enacting policy with both domestic and international import, the field of UAV regulation might be another way in with it can demonstrate its fore-sightedness when it comes to areas of universal concern.

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On the need for intelligence accountability and oversight reform.

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.

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Blog Link: Deconstructing New Zealand Foreign Policy.

A recent canvass of members of the diplomatic community resident in Wellington had as a common theme the apparent incoherence of contemporary New Zealand foreign policy. That prompted me to attempt to deconstruct the major features of New Zealand foreign policy during the last three decades and to offer some explanations as to why they no longer hold in the measure that they once did. You can find the explanation here.

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Managing Policy Fade.

A conversation with Lew and Selwyn Manning prompted this rumination. It is not meant as a comprehensive organizational analysis but instead as food for thought, using the case of the UN and Fiji after the 2006 coup to outline a phenomenon known as “policy fade.”

Deployment of Fijian soldiers and police as UN peacekeepers after the 2006 military coup in that country is a good example of policy fade, in this case undertaken by the UN. Initial calls for and threats of Fijian suspension from all UN peacekeeping operations never materialized and Fijian involvement in UN-sanctioned armed multilateral operations increased after 2007. Suspension from international organizations such as the Commonwealth and Pacific Island Forum (which included prohibitions on Fiji participation in PIF-sanctioned multilateral armed peacekeeping operations), the halting of foreign aid from the EU and Asian Development Bank, and travel sanctions on officials in the Bainimarama government by Australia and New Zealand were not matched by the UN when it came to peacekeeping. Instead, the UN’s course of action has been marked by non-enforcement of the measures called for by the original policy statements made immediately before and following the 2006 military coup. Along with other circumventions, the UN policy fade allowed the Fijian military to defy the sanctions regime imposed upon it.

Policy fade is the process of putting distance on an initial policy position. There are several ways to back away. Here the focus is not on policy retreats or complete back downs imposed by adverse externalities or changes of mind on the part of policy-makers.  Instead, the emphasis is on types of managed policy fade initiated from within a political organization.  It can accompany policy softening, which is the modification of policy along its margins without removing the original intent.  Managed policy fade is about instituting a controlled move away from failed, unpopular, embarrassing or non-enforceable policy without losing credibility (or face, or honor).

There are several ways with which to manage policy fade. The issue can be ignored over time so that it disappears from the public eye. It can be re-defined so as to diminish its visibility, divert attention away from it or to give credence to a change in approach.  It can be deferred and/or delayed so as to encourage historical amnesia.  The process of policy fade can involve combinations of these approaches. In all cases the intent is to remove the policy issue from public scrutiny in order to eventually abandon or change the original approach.

The UN used the delay-and-defer approach to the subject of Fiji’s peacekeeping role. Kofi Annan’s originally strong language on the consequences of the coup was qualified by his successor Ban ki-moon.  Annan made his statements in October 2006, prior to the coup and during the last three months of his term as Secretary General. Confronted with a lack of votes in the Security Council in favor of a resolution ordering Fiji out of peacekeeping duties and not wanting to risk aggravating rifts in the General Assembly over the issue very early in his term, Ban delayed following up on the promises of Annan and others to that effect. He also deferred the issue to his underlings.

In April 2007 Ban called for a study of the impact a peacekeeping suspension would have on Fijian society as well as the regime. As is well known, service in UN peacekeeping operations is a major source of pride for the Fijian military, which can hone professional skills and maintain espirit d’corps while contributing to domestic stability via remittances from its soldiers abroad. The study was designed to identify the tangible costs of a suspension beyond diplomatic isolation. Its results have never been disclosed. Meanwhile Fijian peacekeepers continued to serve in UN missions and at present constitute the largest source of soldiers for the UN peacekeeping mission in Iraq. It appears that the UN decided the benefits of having Fiji continue to be a contributor to peacekeeping operations outweighed the illegality of its military regime, and simply never admitted to that calculation in public.

The delay-and-defer approach relies on news cycles and diminishing public interest to be effective. If the media and/or public focus continues to bring attention to the issues involved, then policy fade becomes more difficult to implement. On the other hand the press of events means that media and public attention spans are often limited, making the policy fade process possible once the glare of scrutiny is off.

Since 2006 the UN’s and global public attention has shifted elsewhere. That reduced the importance of a possible suspension of Fijian peacekeepers as a UN policy priority. The subject of suspending Fiji from participating in UN peacekeeping operations was consequently dropped from public statements and a quiet accommodation was made with the Fijian authorities that sees Fijian military and police continuing to serve in blue helmet missions abroad (the use of Fijian military and ex-military by private security companies was not effected in any event).  When 36th Parallel Assessments recently questioned the UN about the ongoing presence of Fijian troops in UN peacekeeping missions despite the original talk about suspension, the response was to admit that no suspension was authorized and decisions on Fijian participation in peacekeeping operations are taken on a case-by-case basis.

Although it contravenes the intent of the sanctions regime imposed by other international organizations and individual countries, continued Fijian participation in UN peacekeeping operations may be seen as a way of showing goodwill towards, and exercising some diplomatic leverage on, the Bainimarama government as it moves towards re-scheduled elections in 2014. In fact, an increase in Fijian troop contributions to UN missions in 2011-12 coincides with the suspension of the state of emergency in place in Fiji since 2009 and commencement of the voter registration and constitutional consultation process leading up to the 2014 vote.

After 2007 Australia and New Zealand remained silent on the issue of Fijian troops on UN peacekeeping missions even though it demonstrates the futility of their bilateral sanctions against the military regime. Instead, they also have engaged in policy fade, in this case of the “ignore it and it will go away” variety. Knowing that there are more important issues to address and not willing to enter into a public argument with the UN peacekeeping division or be embarrassed in the Security Council and General Assembly when both are contemplating bids for temporary membership on it, Australia and New Zealand cast a blind eye on the continued use of Fijian peacekeepers by the UN even though in some cases (Sinai, Syria) their soldiers serve side by side with Fijians.

In both countries public disinterest or ignorance of the state of play surrounding the bilateral sanctions regime has helped governments to ignore the issue in public while concentrating on other priority policy areas and allowing relations with Fiji to be handled quietly, both directly and in multinational fora.

Given the diplomatic lifeline thrown to the Fijian regime by the UN with regards to its involvement in peacekeeping, the overall sanctions regime imposed on it was porous. However, it also provided a stick to complement the UN carrot, and the uncertainty of the UN case-by-case approach to Fijian peacekeeping ensured that the Bainimarama government could not rest entirely easy with regards to its diplomatic status or that of its blue-helmeted troops in the field.

The task now for Australia, New Zealand and other international agencies is to gracefully move away from their respective hardline stances towards something more accommodating of the Fijian regime. This can be tied to the gradual (and continued) opening of the Fijian political process as the date of elections draws closer, and could involve incremental lifting of sanctions and resumption of fuller diplomatic relations or practical engagement with the Fijian state on the part of those currently employing sanctions against it. The US, Russia, India and PRC already give full bilateral diplomatic recognition to Fiji, so large international organizations can take the lead in following their example in return for continued progress towards the 2014 ballot.  Should that happen, then Australia and New Zealand can re-consider their stance on travel sanctions with some decorum.

However it is couched, the ineffectiveness of the international sanctions regime in the face of the UN policy fade on Fijian peacekeepers made necessary policy fade on the part of other actors. The fade process on the original international sanctions policy is transiting to the redefining phase, something that should be evident in policy pronouncements on Fiji by the international sanctions coalition over the next year.

 

A different version of the essay appears as an analytic brief at 36th-parallel.com

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Partners not Allies: New Zealand and the US sign the Washington Declaration.

On June 20 New Zealand Defense Minister Jonathan Coleman and US Secretary of Defense Leon Panetta signed the Washington Declaration, which specifies priority areas of cooperation between the militaries of both countries. The Washington Declaration is a follow-up to the Wellington Declaration signed by New Zealand and the US in November 2010 (with Secretary of State Hillary Clinton and Foreign Minister Murray McCully doing the honors). The first was a general statement of principle with regard to New Zealand-US security cooperation and bilateral foreign relations. The follow-up provides more detail on the specific areas in which military cooperation will occur. These are counter-terrorism, maritime patrol, anti-piracy operations and humanitarian relief. The details of the logistics involved in those areas have not been finalized and/or made public, and in the case of counter-terrorism operations they are not likely to be divulged beyond a general statement. This has as much to do with New Zealand public sensitivities as it does with US public opinion or classified operational details (for example, the role of the NZSAS in joint counter-terrorism operations with US forces).

What is different in the Washington Declaration is that the military-to-military bilateral relationship is now taking concrete shape, whereas the Wellington Declaration was a diplomatic opening rather than a definitive outlining of military areas in which joint operations and exercises will occur.

Robert Ayson described the relationship as a defacto alliance between the US and New Zealand. Professor Ayson used the phrase because the US and New Zealand are not entering a formal alliance agreement but a “strategic partnership.” An alliance is essentially a contract with mutual obligations; a partnership is a looser arrangement in which obligations are voluntarily assumed but not contractually defined, binding or specified. Partnerships can be reviewed and modified on a case-by-case or temporal basis, whereas alliances commit the parties to treaty-strength obligations that require a major diplomatic rupture for them to be abrogated. This distinction theoretically gives the US and New Zealand a greater degree of flexibility in their relations with each other on military issues. That is diplomatically advantageous for New Zealand, which seeks to preserve its image and reputation for foreign policy independence, and also avoids domestic voter backlash to the resumption of something akin to the ANZUS alliance so spectacularly undone by New Zealand’s 1985 non-nuclear announcement. The Labour, Green and Mana parties, in particular, would have been very resistant to the restoration of a formal military alliance with the US, so on political grounds the strategic partnership agreement works out very well domestically as well as bilaterally.

In practice, the strategic partnership with the US aligns New Zealand with other “first tier” US security partners in the Western Pacific Rim such as Australia, Thailand, Singapore and the Philippines. This is important for the New Zealand Defense Force (NZDF) as it seeks to integrate more closely with Australian Defense Force operational doctrine, training and equipment (as was suggested by the NZDF 2010 Defense White Paper) at a time when Australia and the US are deepening their bilateral security ties (evident in the recently announced agreement to forward base a US Marine rapid response force in Darwin). Ayson is right in that the NZDF will now be working side by side with the US military on a regular and continuous basis in specified areas (such as the upcoming RIMPAC naval exercises that the Royal New Zealand Navy (RNZN) has joined for the first time in two decades), although NZ will have a little more leeway in refusing US requests to join in foreign conflicts than if it had signed a formal alliance agreement that required both parties to come to their respective defense.

The resumption of near-complete bilateral military ties between New Zealand and the US is not a surprise. The 5th Labour government (1999-2008) started the rapprochement with the US post 9/11, and the National governments that followed it have openly embraced the prospect of finally overcoming the post-ANZUS freeze in security relations (with the exception of intelligence-sharing, which never suffered the curtailment of ties seen in military relations). Labour was wary of being seen as getting too close to the US, since that could jeopardize its reputation for an “independent and autonomous” foreign policy stance, particularly amongst non-aligned and small states. National prefers to embrace the US more whole-heartedly, in part because of the belief that there will eventually be economic as well as military benefits in doing so (such as via the Transpacific Partnership trade agreements currently being negotiated by the US, New Zealand and seven other Pacific Rim states). The idea behind National’s approach appears to be to use the improved military ties with the US as a hedge against the rise of The People’s Republic of China (PRC) by countering or balancing increased economic dependence on the PRC with the strengthening of economic and military ties with the US and other pro-Western nations along the Pacific periphery. National seems to believe that this balancing act (or straddling of fences), continues the tradition, or at least appearance of independence in foreign affairs.

That may be a mistake because independence in foreign affairs is most often predicated on neutrality with regards to foreign conflicts or great power rivalries. In aligning itself more closely with the US on military matters, New Zealand loses that appearance of neutrality in international security affairs. The New Zealand Foreign Affairs and Defense ministries may believe that this is the best hedge against attempts by the PRC to exploit its economic relationship with New Zealand (since the PRC is clearly the dominant partner in the bilateral Free Trade Agreement (FTA) with New Zealand and has much leverage on New Zealand when it comes to Chinese market access as well as exports and investment from the PRC to New Zealand). Balancing economic dependence on China with strengthened security ties with the US (and its allies) may appear to National to be the best way of New Zealand having its cake and eating it.

Strengthening of political ties with the US is part of National’s larger policy of reaffirming diplomatic alignment with traditional partners. The belief is that New Zealand shares more in terms of core values with these traditional partners due to the Anglo-Saxon liberal democratic traditions that bind them together, rather than the mixed Confucian-Communist values that underpin the core beliefs of the Chinese political elite (or the Islamic beliefs of New Zealand’s Middle Eastern trading partners). Even if the PRC was to continue growing economically at a pace similar to the last decade (which now seems improbable), it seems prudent under this logic for National to reaffirm its Western heritage, joint vision and general orientation until such a time as China and other non-Western authoritarian states begin to open up politically. Reaffirming political ties to the US and other traditional allies does not undermine New Zealand’s position with Asian democracies like India, South Korea, Taiwan or Japan, or with Southeast Asian democracies (such as they are) like Malaysia, Indonesia and the Philippines. All of these countries, as well as Southeast Asian authoritarian states such as Singapore and Viet Nam, fear the rise of China as a military power and/or economic hegemon in the Western Pacific, and therefore welcome any counter-balancing efforts on the part of the US and its strategic partners and military allies.  The political alignment with the US also fits in line with the foreign policy approaches of Australia and the UK, and reasserts New Zealand’s position within that informal alliance structure (Canada is part of it as well).

There are benefits for both the US and New Zealand in this restored relationship. The benefits for New Zealand are that the NZDF will get to conduct exercises and operations with the most hardened, experienced and technologically advanced military in the world. That will expose it to the latest in US strategic doctrine and tactics. It may also result in the US providing military equipment to and training opportunities for New Zealand that it otherwise could not afford. It will reassure New Zealand of the implicit US defense guarantee in the event that New Zealand were to be threatened or attacked (to include economic coercion by the likes of the PRC). It may lead to closer economic ties, although that remains an open and much debated question (there is a large literature on security partners being preferential economic partners because of the mutual trust and dependence established between them. Most of that literature was written during the Cold War and things changed after it ended, but now with the emergence of the PRC and other powers some of those old assumptions are being resurrected and reviewed, especially in the US).

For the US the agreement is win-win. It gets an immediate benefit from securing another strong security partner in the South Pacific, one that has considerable “local knowledge” and relative influence in South Polynesia. This accords with the shift in US strategic emphasis to the Asia-Pacific, which is part of a long-term strategy of ring-fencing Chinese attempts at blue water expansion into the region. In signing New Zealand to a bilateral military partnership similar to those of other Western Pacific states, the US has moved to establish a security cordon in the region, something that also serves as a force multiplier in the measure that US strategic partners commit military assets to a common cause. New Zealand’s reputation as an honest broker in international affairs gives it diplomatic cover in this effort.

More importantly, after 25 years of estrangement and New Zealand foreign policy independence, at least with regard to international security affairs, the US has finally broken down New Zealand’s resolve and returned it to the fold. Post 1985 wooing of New Zealand began during the Clinton administration and continued with his successors. 9/11 accelerated the reconciliation (under a Labour government), and the Wellington Declaration codified it. In many respects, the US’s ability to re-gain New Zealand’s signature on a bilateral military-security agreement is a triumph of long-term great power diplomacy: after years of distance it secured junior military partnership from a small democratic state that prides itself on its modern history of foreign policy independence. To be sure, fluid global conditions since 1990 have contributed to the evolution in US-New Zealand bilateral relations, but at present it appears that the US has finally managed the contretemps of New Zealand non-nuclearism with diplomatic aplomb and to its ultimate benefit.

The negatives for New Zealand could be that the US will pressure it to increase its spending on defense, now below 1 percent of GDP, to something more in line with Australia’s two percent per annum. This would be on a par with other US strategic partners and around the NATO average, but will be politically unpalatable amongst New Zealand voters, who tend to under-appreciate defense when compared with education, health and welfare. Thus any such request will be politically thorny for a New Zealand government.  However, the US can leverage the fact that the NZDF is not “pulling its weight” in the strategic partnership (the Australians already say this).

For example, although the Washington Declaration speaks about closer bilateral military cooperation in the areas of maritime patrol and anti-piracy, New Zealand has very little in the way of long-range patrol and interdiction capabilities. Specifically, New Zealand only has two blue water ANZAC-class frigates, two off-shore patrol vessels and six long-range P-3 patrol aircraft, and its multi-purpose ship, the HMNZS Canterbury, spends more time in port being repaired than at sea, As for its logistical lift capability, not only is the HMNZS Canterbury unreliable, but the RNZAF C-130 fleet, at five aircraft, is also small and already stretched in terms of its operational readiness. Thus the US and Australia can pressure New Zealand governments to increase spending on defense so as to be able to perform the responsibilities and tasks that are expected of it as a strategic partner in the areas designated as joint priority.

There is the risk of being drawn into US conflicts that have nothing to do with New Zealand or an imminent threat to it. Even if New Zealand has leeway in terms of refusing a US request to get involved in a non-immediate foreign conflict, once bilateral military ties are established and consolidated they constitute a source of leverage on the part of the US since any retaliatory cancellation or disruption of the bilateral relationship will hurt the NZDF more than it will the US military. Moreover, the bilateral diplomatic backlash from a public refusal to work with the US in a foreign conflict theater could overcome any domestic and international support for the move.

There is also the more immediate issue of diplomatic fallout over the partnership. The more that New Zealand is seen as aligning itself with the US on security matters, the more US rivals such as Russia, the PRC, and various Latin American and Middle Eastern states will see it as a tool of US foreign policy and military strategy. Even other “independent” states like Uruguay, Finland, Costa Rica, Estonia and Turkey may begin to recast their view of New Zealand as an honest broker in international affairs. That is why National’s belief that its fence-straddling or hedging strategy will continue the image of independence may not work out to be the case, which could have adverse diplomatic consequences.

(The original version of this essay appears at 36th-Parallel.com)

 

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Against “courageous corruption” as Crown policy

It should come as no surprise that I disagree with Chris Trotter’s latest piece about the Urewera raids. Don’t get me wrong — I think his assessment of the operational capability New Zealand police and intelligence services are correct. Their actions were strategically and tactically flawed, and they seemed to hold unrealistic expectations of the task they were undertaking. But some of the judgements Chris wraps around this argument are troubling to say the very least.

Not all of them. Some are fine: we need a competent security and intelligence apparatus, and the lack is something that should be rectified. Some are nonsense: a sophisticated left-wing propaganda network (where have they been these past two electoral terms?) and sleeper cells of “sympathetic journalists” (presumably not those who are shills for the corporate élite?). Some are merely distasteful. Others, however, are downright frightening, and the worst of these is the notion that the Crown should not be bound by its own laws when prosecuting dissident citizens.

Also lacking were the reliable media “assets” so highly prized by the British security services. Individuals to whom key elements of the Crown’s case … Where, for example, was the Crown’s equivalent of Wikileaks? Clearly no one was prepared to play the role of Private Bradley Manning by dumping all the evidence denied to the Prosecution on a suitably insulated and legally untouchable website.

Let’s not forget that some of this actually happened. Elements of the Crown case actually were leaked to the public, and some suppressed material was published in daily newspapers and was the subject of (unsuccessful) contempt proceedings.* Other elements, having been retrospectively ruled in by a court despite having been collected unlawfully, were used throughout the trial to create a prejudicial atmosphere around the trial.

Given those events, the argument here is essentially that the Crown didn’t leak enough evidence; didn’t act ruthlessly enough and was too heavily burdened with scruples to secure a “right” outcome. The call for an officer of the Crown to wilfully breach the very laws they have sworn to uphold, in the name of their own individual assessment of a complex situation, is extremely concerning. Having failed to conduct their evidence-gathering operations lawfully, and having failed to persuade a judge that, in spite of that, there was still a sufficient reason to admit all the evidence, the argument here is that the Crown should have taken an extrajudicial Mulligan.

When I started writing it this piece was considerably more personalised to Chris, and how his post seems to provide final proof of his degeneration from idealistic radical to authoritarian establishment curmudgeon. The reference in the title is to his now-infamous declaration that Labour’s breach of electoral law during the 2005 election campaign was justified inasmuch as it prevented a terrible counterfactual — a National government led by Don Brash — from coming to pass. I disagree with that argument on the grounds that the integrity of the democratic system as a whole is of greater importance than any particular electoral outcome, and I disagree with his argument regarding the Urewera 4 for the same reasons: the integrity of the justice system is of greater importance than the outcome of any given case.** But I don’t want to dwell on the personal; rather than trading extensive cannonades with Chris (again), I think there’s more value in covering my reasons for holding these views in principle, leaving aside the specific merits (on which we’re never going to agree), or whether I support the principals in either case.***

The first and most obvious argument against this sort of extra-legal recourse is: be careful what you wish for. If you want the Crown to leak, to cultivate sources in the media whom they can trust to run their propaganda for them, and to resort to whatever other means they might need to secure what you think is a “right” outcome, you’d better hope you always agree with them. If you don’t, eventually you’ll find yourself on the wrong end of it. The danger of this for the ideological left in Aotearoa should need little elaboration: almost all the authoritarian cards and most of the ruthlessness in playing them are in the hands of the various factions of the ideological right, and they are constrained more by norms of conduct and the need to appear to be less ruthless than they are than by black-letter law or constitutional barriers. These norms are quite robust, but they essentially all operate on the honour system: they persist because people observe them. If you break the law in the name of the rule of law, you erode the rule of law. If you destroy the village to save the village, you still destroy the village.

This leads into the second point: changing norms of Crown conduct, or what we might call “authoritarian sclerosis”. Norms that constrain what a government, the Crown or its agents may acceptably do are becoming more lax, and have been since shortly after 9/11, when the Terrorism Suppression Act that gave rise to the current farce was hastily passed. In the past two parliamentary terms this has continued to accelerate, partly as a consequence of hysteria around — and blurring of — activism and terrorism more generally. The government, by leave of an increasingly punitive and paranoid populace, can now impose disproportionate punishment on certain offenders via the “three strikes” regime, and indefinite “civil” detention of certain offenders. The infiltration of the security and intelligence apparatus into harmless activist groups such as those that agitate for animal rights has been well-documented in recent years. It has gotten to this point despite the fact that (Urewera case aside) the two most significant threats to our national security in the past decade have been an Algerian theologist who now makes kebabs in a food hall on Karangahape Road, and three Catholic pacifists with agricultural implements. The government can now amend or suspend almost any law or enact almost any measure it likes, with immediate effect and without meaningful judicial oversight, in the service of rebuilding Christchurch. There are laws on the books that shift the burden of proof of innocence for some types of copyright infringement from the accuser to the alleged offender. On US urging, the New Zealand police recently undertook expensive, unprecedented and legally risky operations against a foreign national who had apparently committed no serious crimes against New Zealand law, and it now seems increasingly unlikely that the case will amount to anything. The government may now spend beneficiaries’ money for them. They are are moving to require DPB mothers (and their daughters!) to use long-term birth control, and to force them to work when their youngest is just one year old. The latest proposal is to force beneficiaries to vaccinate their children, in violation of the fundamental right to refuse medical treatment. These latter policies of authoritarian sclerosis disproportionately affect Māori, who are already disproportionately impacted by the state’s historical use of its power via colonialism. I could go on, but you get the point: the door to the police state is not yet open, but it is creaking ajar. Those who benefit from opening it do not need agents of the left nudging that door wider for them, but they will gratefully accept it if some are willing to do so.

This is all bad enough in itself, but as well as eroding the norms of what is acceptable, authoritarian sclerosis makes it more difficult to erect robust black-letter or constitutional safeguards against undue exercise of power by the state over its citizens, making it more likely that the norms which are being undermined are all we will be able to rely on in future. Again: be careful what you wish for.

Perhaps more important than all of that, though, is the incentive that the Mulligan creates within the organs of the Crown responsible for implementing the policies outlined above. If you make excuses for underperforming or incompetent agencies, if you cut senior officials slack when they or their subordinates fail to discharge their duties adequately, when they bring into question the good standing of their departments; if you seek to tailor laws and regulations to them rather than requiring them to work within the existing bounds of proper conduct, then you produce agencies which are dependent on special pleading and special treatment. When you select against competence, independence, resourcefulness and strategic thinking by allowing “right-thinking” loyalty and patronage to thrive, you breed pampered inbred poodles reliant on favour from political masters, rather than vigilant, independent watchdogs of civil society.

Multiple layers of dysfunction contributed to the Crown’s failure to convict on substantive charges in the Urewera 4 case. They started with the drafting of the Terrorism Suppression Act, which Solicitor-General David Collins declared “unnecessarily complex, incoherent, and as a result almost impossible to apply”. Court interpretations giving the police permission to undertake surveillance operations that were later ruled illegal also contributed. Police culture and operational capability, and a lack of both strategic and tactical awareness also contributed strongly, and Crown Law’s failure to make best use of the meagre evidence that derived from those preceding actions was merely the last in a long chain of failures.

If you want to make a system stronger, the solution is to genuinely strengthen it, making it better, by having those agencies take their lumps and learn their lessons, by punishing failure and rewarding success; by staffing it with better people, better trained and with greater strategic vision. I want an intelligence/security and police apparatus and a justice system good enough that it doesn’t need to be oppressive to be effective. One that I can trust to keep society safe, and to not persecute me while doing so. That can’t happen if we erect a scaffold of legal or extra-legal privilege beneath the sagging edifice, pretend there’s nothing wrong, and call it a win. It didn’t work for the investment banks, and it can’t work here.

L

* Chief High Court Judge Randerson and Justice Gendall found that the publication had not “caused a real risk” of prejudice, so fair enough. But they also stated that “The breaches of suppression orders and the unlawful conduct of a major news organisation and a senior newspaper editor should have resulted in their prosecution” by the Police, and that the court was “at a loss to understand why these breaches were not prosecuted.” While they raised the point that the penalties for such breaches are risibly small, it’s also hard to avoid the conclusion that the Police were simply reluctant to punish actions that might have helped their case.

** In principle, there is a time for extrajudicial action, for exercise of the reserve powers or of the almost-limitless authority of the sovereign parliament, or for rebellion by the people. Desperate times may call for such measures. These are not such times.

*** For the record: Of course, I did not support the 2005 National party. I am satisfied with the Urewera 4 verdicts since they accord with what I know about the case, though I also would not have been averse to a retrial and an opportunity for them to clear their names more forcefully.

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Leaving Bamiyan.

It looks like the NZDF will pull out of Afghanistan next year, one year earlier than originally planned. According to the government the situation is so good in Bamiyan Province that responsibility for security has been turned over to local Afghan forces and the NZDF has downscaled its armed patrols as it concentrates on packing up. The Hazaris who populate Bamiyan are said to be happy with what the NZDF has done with the Provincial Reconstruction Team and will assist the UN and other international organizations in continuing the reconstruction work once the NZDF has left the theater. According to the NZDF and National government, the PRT experience in Bamiyan has been exemplary and is a model for such military-led reconstruction efforts in other future theaters.

But there appears to be wrinkle in this happy picture. Five Afghan translators who worked with the NZDF have unexpectedly approached Defense Minister Jonathan Coleman during a press junket to the PRT (which also saw MSM types like Garth Bray along for the photo op dressed nattily in body armor while posing in front of dusty military hardware and encampments). They did so to request political asylum. The translator’s approach was unexpected, which speaks to the NZDF not being aware of their intentions in advance of the Minister’s visit (which left him at loss for an answer since refugee issues are not part of his portfolio–not that such subtleties matter to Afghans). That suggests a failure in communication between the NZDF and the people it relies on to convey its message in Bamiyan, which is problematic because since one would assume that the relationship between the translators and their patrons would be close and trusting. That the translators kept their concerns a secret until the Minister arrived speaks to underlying differences between them and the NZDF command in Bamiyan.

The translators claim that they will be harmed or killed once the NZDF leaves Bamiyan. Eh? What happened to that much vaunted security situation? If the NZDF did such a good job and was well received by the locals, why would these men fear for their lives? More generally, did the NZ government give any thought to the post-withdrawal security concerns of its closest Afghan interlocutors? Did the NZDF command in Bamiyan flag any such concerns to the government? If the security situation for allied locals in Bamiyan is not as good as has been announced, did the NZDF or NZ government mislead the public as to the truth of the situation?

The translators want special consideration rather than wait for the UN refugee-granting process to take its years-long course (by which time, if their fears are true, they might well be dead). In other words, the translators want to jump the queue because of their extenuating circumstances. That puts the NZ government in a difficult position. If it denies their claim and tells them to get in line like everyone else, they might die as a direct and immediate result of their association with NZ troops. If they get favored treatment then it opens the government to accusations that it responds opportunistically and plays loose with the rules for granting political asylum.

The government has already caused itself a problem. Minister Coleman, caught off-guard by the request on what was supposed to be an easy Anzac Day-related “meet and greet” with the troops, said that NZ has a responsibility to the translators because of their service to the NZDF. That opens a can of worms, because if NZ grants the translators refugee status on special grounds, that sets a precedent for anyone else in Afghanistan who worked with the ISAF coalition to make similar claims based upon fears for their post-withdrawal security. Cooks, cleaners, drivers, translators, lovers–the list of people who could claim persecuted status based on their association with ISAF is bound to be long. NZ offering asylum to these men consequently becomes a thorny diplomatic issue not only with its ISAF coalition partners (who face the possibility of being inundated with similar requests), but also with the Afghan National Government that is supposed to be capable of guaranteeing security once ISAF is gone.

Whatever the decision on the translator’s request, the episode has raised more questions about conditions in Bamiyan than the NZDF appears willing to answer. One thing is certain. No matter what the outcome someone is bound to be left in the lurch, and that includes the NZ MSM types who failed to realize the full significance of what they witnessed when the translators were introduced to Mr. Coleman.