Category: Politics

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“You can’t handle the truth!”

Well, no one should have been surprised that the government opted to not convene an inquiry into the allegations made in the Hager/Stephenson book Hit and Run. It preferred to let those accused “investigate” themselves and come up with an exoneration, then let the PM bad mouth the authors while wrapping himself in pseudo-sentimentality about the impact the accusations had on military families. SOP from National and the NZDF, especially in an election year.

Even though they may have forced a delay in ascertaining the truth as to what happened that August night in Afghanistan, they may have set themselves up for a bigger fall, albeit one that will cost taxpayers far more than if the inquiry had been done under the aegis of the Solicitor General, Inspector General of Intelligence and Security or some other reputable and independent local jurist. That is because if a state refuses to investigate allegations of war crimes committed by its troops, then that bumps up the matter to the International Criminal Court in The Hague. The ICC can be petitioned to open an investigation and launch prosecutions against those suspected of war crimes if a state refuses to do so, and that may eventually be the case here.

The government strategy at this point seems to be to refuse an inquiry and force interested parties to make a case under the Inquiries Act, in the courts under one or more Acts, or in international bodies like the ICC. That is expensive and time consuming, so those willing to challenge the NZDF’s self-exoneration must be well resourced and prepared for a lengthy legal battle. In the meantime crucial evidence may disappear, sources for the allegations may change their minds out of fear of reprisal, material inducements for non-cooperation with investigators may be offered–no one should be so naive as to think that those under potential scrutiny would not stoop to such things.

The government is also clearly banking on political pressure for an independent investigation waning rather than increasing in the weeks and months ahead. It is confident that political parties will focus on the election and the media will move on to other things over the next few news cycles and that the claims will be forgotten by the public in short course. There are grounds to believe that it may be correct in these assumptions, but that depends on how interested parties feel about matters of truth and accountability in public institutions such as the military.

The government could well be daring the likes of Rodney Harrison QC, Deborah Manning and Richard McLeod, who are representing the survivors of the alleged attacks and who successfully represented Ahmed Zaoui against the then-government’s mischaracterisation and detention of him as a dangerous terrorist, to take the case to the ICC. That is because although New Zealand is a member of the ICC, the US is not. Since the US Army provided the close air support for the raids and is implicated in the killings of civilians in the Hit and Run narrative, this means that a key part of any investigation–US complicity in the killing of innocents–will not receive US support or cooperation. In fact, the US is not a member of the ICC precisely because it does not want to see its soldiers or the authorities who command them ever face prosecution in The Hague. And without US participation, the presentation of the NZ side of the story would be incomplete at best, and thereby not a full account of what went down that fateful night. It is hard to mount an investigation or a prosecution, much less secure a conviction, without the participation of one of the principles involved. For a case to stand up in court a partial account of events is simply not enough without corroboration by others involved in the actions in question. This may be true for NZ courts as well as the ICC.

Even so, I am not sure that banking on US non-membership in the ICC is a winning strategy even if it adds to the costs and delays involved in establishing the truth and achieving justice for those needlessly harmed without cause. Refusal to participate in an ICC investigation could be worse for NZ’s reputation than agreeing to it and finding out that not all was as depicted by the NZDF version of event–even if war crimes were not committed.

The bottom line is that the government appears to be running scared with its quick acceptance of the NZDF clean up job. One video from a US helicopter and the NZDF report on the raid–a chronicle of events that leaves numerous questions unanswered, as pointed out by Selwyn Manning in the previous post–is all that it took to convince PM Bill English that all was hunky dory that night. Given that there were likely to be multiple camera angles and audio communications recorded during the raid by both the NZSAS as well as US forces for after-action de-briefings, the fact that just one served to convince the PM of the veracity of the NZDF account leaves me with only one simple conclusion with regard to Mr. English. In the words of Jack Nicholson playing a Marine Colonel under investigation for covering up a homicide at the Marine detachment stationed at Naval Base Guantanamo in the movie “A Few Good Men:”

YOU CAN’T HANDLE THE TRUTH!

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ANALYSIS: Lieutenant General Tim Keating’s Operation Burnham Account Highlights Key Legal Concerns.

Guest Post by Selwyn Manning – Editor of EveningReport.nz.

KP Note: The issue of what the NZSAS did or did not do in Operation Burnham, a 2010 raid in Afghanistan that became the subject of the controversial book Hit and Run by Nicky Hager and Jon Stephenson, must not be buried and forgotten by the next news cycle. The issues at stake go to the core of democratic civil-military relations: issues of accountability, transparency and civilian oversight of the armed forces. In the following guest post veteran journalist Selwyn Manning (formerly of Scoop and among other things co-founder of 36th Parallel Assessments) dissects the NZDF response to the allegations in the book and takes a close look at some important discrepancies in the official version of events. Readers are encouraged to carefully consider what he has uncovered.

There’s an overlooked aspect of the New Zealand Defence Force’s account of Operation Burnham that when scrutinised suggests a possible breach of international humanitarian law and laws relating to war and armed conflict occurred on August 22, 2010 in the Tirgiran Valley, Baghlan province, Afghanistan.

For the purpose of this analysis we examine the statements and claims of the Chief of New Zealand Defence Force (NZDF), Lieutenant General Tim Keating, made before journalists during his press conference on Monday March 27, 2017. We also understand, that the claims put by the Lt. General form the basis of a briefing by NZDF’s top ranking officer to the Prime Minister of New Zealand, Bill English.

It appears the official account , if true, underscores a probable breach of legal obligations – not necessarily placing culpability solely on the New Zealand Special Air Service (NZSAS) commandoes on the ground, but rather on the officers who commanded their actions, ordered their movements, their tasks and priorities prior to, during, and after Operation Burnham.

*******

According to New Zealand Defence Force’s official statements Operation Burnham ‘aimed to detain Taliban insurgent leaders who were threatening the security and stability of Bamyan Province and to disrupt their operational network’. (ref. NZDF rebuttal)

We are to understand Operation Burnham’s objective was to identify, capture, or kill (should this be justified under NZDF rules of engagement), those insurgents who were named on a Joint Prioritized Effects List (JPEL) that NZDF intelligence suggested were responsible for the death of NZDF soldier Lieutenant Tim O’Donnell.

Lieutenant General Tim Keating, Chief of New Zealand Defence Force.

When delivering NZDF’s official account of Operation Burnham before media, Lieutenant General Tim Keating said:

    “After the attack on the New Zealand Provincial Reconstruction Team (NZPRT), which killed Lieutenant Tim O’Donnell, the NZPRT operating in Bamyan Province did everything it could to reduce the target profile of our people operating up the Shakera Valley and into the north-east of Bamyan Province.

“We adjusted our routine, reduced movements to an absolute minimum, maximised night driving, and minimised time on site in threat areas.

“The one thing the PRT [NZPRT] couldn’t do was to have an effect on the individuals that attacked Lieutenant O’Donnell’s patrol. For the first time, the insurgents had a major success — and they were well positioned to do so again.”

For the purpose of a counter-strike, intelligence was sought and Lt. General Keating said: “We knew in a matter of days from local and International Security Assistance Force (ISAF) intelligence who had attacked our patrol [where and when Lt. O’Donnell was killed].”

The intelligence specified the villages where the alleged insurgents were suspected of coming from and Lt. General Keating said: “This group had previously attacked Afghan Security Forces and elements of the German and Hungarian PRTs.”

The New Zealand Government authorised permission for the Kabul-based NZSAS troops to be used in Operation Burnham.

“What followed was 14 days of reliable and corroborated intelligence collection that provided confirmation and justification for subsequent actions. Based on the intelligence, deliberate and detailed planning was conducted,” Lt. General Keating said.

Revenge, Keating said, was never a motivation. Rather, according to him, the concern was for the security of New Zealand’s reconstruction and security efforts in Bamyan province.

As stated above, Operation Burnham’s primary objective was to identify, capture or kill Taliban insurgent leaders named in the intelligence data.

We know, from the New Zealand Defence Force’s own account, Operation Burnham failed to achieve that goal.

Continue reading “ANALYSIS: Lieutenant General Tim Keating’s Operation Burnham Account Highlights Key Legal Concerns.”

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Media Link: Some thoughts on “Hit and Run.”

I have done a fair share of media interviews about the Nicky Hager/Jon Stephenson book “Hit and Run.” Needless to say, the claims in the book are damning of the NZDF, although I believe that the criticism is more focused on the command leadership rather than on the troops involved in the operation that is the subject of the book. In any event, this is a an interview I did with radio New Zealand on the matter.

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About that “Deep State.”

One of the distressing things about the ascendance of a worldwide politically retro (aka “alt-“) Right is the role played by conspiracy theories, alternative narratives and ideological appropriation. The so-called alt-Right, which is not just a US phenomenon but was instrumental in Trump’s electoral victory, basically adopted many of the maxims of the postmodern and conspiratorial Left when espousing a political, social and economically white Christian nationalist agenda. This as true in Poland as it is in the UK, Australia or the US. Realizing that in an age of social media the promotion of alternative “news” once exclusively purveyed by tabloids like the National Inquirer and gossip magazines can now have real weight in political and social debates, the alt-Right drew upon the Left in order to make its pitch. Using a steady stream of Left originated conspiracies such as the assassination of JFK and 9/11 being “inside jobs” and the moon landing never happening to push a counter-hegemonic agenda, the alt-Right introduced its own version of the proper order and the reasons why it was under siege  (assuming that one accepts that liberal hegemony based on principles of fairness and equality has increasingly been the norm in recent times, something the proponents of the alt-Right clearly believe even if a comparative examination of global political culture paints a very different picture).

To the use of Left conspiracy theories as a basis for re-imagining an alternative Right reality is added appropriation of the worst of post-modern theory: that there is no such thing as “objective” truth or rationality, that everything is subjective, contextual or inter-textual, and that all views are equally valid. This latter school of thought, with its rejection of Enlightment reasoning, would have us believe that a rationality that defends and legitimizes foot binding and clitoral excision is equal to feminism, to say nothing of giving equal weight to rejections of larger theorizations about universal human rights, medicinal science and practice, climate science, psychology, market behavior and political participation. This is particularly seen in the field of sub-altern studies, where the “noble savage” premise is as condescending as it is strong, to say nothing of just plain wrong.

It is one thing to give voice to the dispossessed. It is another, less honourable thing to give equal interpretative weight to the voice of socio-cultural relativity, subjectivity and “alternality” when it comes to matters of truth, objectivity and factual evidence. Because that is what has allowed the alt-Right to turn things on its head: victims become oppressors, fair becomes foul, white becomes black, and truth becomes fiction. “Facts” do not matter, just feelings and opinions do.

This is not a revelation. The alt-Right appropriation of Left generated absurdism has philosophically entrenched roots. Like National Socialism, the theoretical foundations of the alt-Right may be shallow at best, but as been pointed out elsewhere, the alt-Right is about whinging and being mean, not about being analytically deep, correct or corrective.

The point is not to criticize post-modernists, whose original cadre enriched social thought. Instead, the concern here is with how the focus on social relativity, subjectivity and victimization has been combined with conspiracy mongering in an alt-Right worldview where the propagation of “fake news” and “alternative facts” is the new normal.

That brings us to the subject of the so-called “Deep State.” Like many conspiracy theories, it has a grain of truth in it, but the original truth has now been conceptually stretched to the point of distortion.

The concept of Deep State refers to an unelected, politically unaccountable permanent national security bureaucracy involving key actors in the military, intelligence, national police, economic and broader internal security communities. Civilian and uniformed personnel are involved and often collude with organized crime and/or business interests in what amounts to a marriage of convenience when it comes to steering the ship of state. Administrations and even regimes may come and go, but the Deep State remains.

The original notion of the Deep State was associated with authoritarian regimes or countries with histories of fragile electoral rule alternating with episodes of dictatorship. Praetorian military and intelligence services constituted the core of the Deep State, which was charged with ensuring that vital national interests and orientations were maintained regardless of the vicissitudes of politicians, strongmen or the voting public.

The initial take on the Deep State purportedly came from Turkey, where part of the Kemalist legacy was a permanent bureaucracy inherited from his reign that was tasked with perpetuating his secular-nationalist political legacy. It has been associated with countries with histories of political instability like Argentina and Pakistan, where shadowy forces are believed to operate unchecked by elected authorities and who, in fact, are suspected of manipulating political institutions and processes for their own ends. And it has been associated with countries with long authoritarian cultures and traditions that currently operate under electoral veneers, such as Russia. The common denominator is that the Deep State not only serves as a shadow government but more importantly as the guarantor of certain vested interests—economic, geopolitical, social and ideological—regardless of the public face of governance.

In the conspiratorial view the Deep State is subversive of consolidated democracies. It is also part of international capitalist/imperialist networks often dominated by Zionists and others who wish to usurp the “real” will of the people. It has its hands in all facets of governance and yet is invisible to the electorate and unaccountable to those they install in office.

That is exactly what Steve Bannon and his co-religionists are preaching from the White House. They claim that a Deep State populated by Obama/Clinton supporters is operating to undermine the Trump presidency by promoting uncertainty, doubt and mischief with selective leaks and “fake news.” These views are echoed in Left-leaning outlets like Salon and The Intercept, where numerous stories make reference to the nefarious machinations of the US Deep State at home and abroad. Many in the US and elsewhere have taken them at their word.

The truth is different. Although there is certainly a career civil service and military/intelligence bureaucracy that serves as the permanent staff of the federal state apparatus and which have institutional interests of their own, these do not quite amount to a Deep State. For starters, they do not have the degree of ideological cohesion and shared material stake required to operate undetected over time. They are constrained by laws and regulations governing the federal bureaucracy, to include whistleblowing protections, that make it difficult to set up secret networks within core agencies. They are subject to oversight mechanisms and turf battles that impede inter-agency collusion in pushing a hidden collective agenda of any magnitude. The size and scope of the state apparatus makes improbable that a secret network of bureaucrats could translate undetected their common desires into effective State action. Finally, the vagaries of the political process, with its impact on policy-making and staffing under different administrations (for example, from Reagan to Clinton to W. and Obama), make it difficult for even a small cadre of well-placed idealogues to develop the resource base and operational control required to run a Deep State.

To be sure, intelligence agencies and the military undertake secretive operations that push the envelope of what is legally permissible. Civilian agencies often attempt to whitewash or bury scandals. Cover-ups of official malfeasance is commonplace. Businesses and interest groups collude with state agencies in rent-seeking behavior. But these do not amount to proof of the existence of a Deep State. In fact, one can argue that if there were a Deep State in the US, it would have ensured that Donald Trump was never elected.

What Trump is encountering is the natural blowback occasioned by his attacks on the integrity and purpose of key agencies and his attempts to diminish, replace or dismantle some of them. For example, since the Environmental Protection Agency is charged with doing just that, it should come as no surprise that its staff react with hostility to the appointment of a fossil fuel industry advocate as Director, especially when he doubts climate science and has stated his intention to loosen air, water and land pollution standards while pushing for an overall downsizing of the agency and its budget.

Similarly, the intelligence community (IC) has not reacted well to Trump’s accusations that it is incompetent and acts like “Nazis” when it comes to the subject of Russian interference in the US elections. It finds problematic that Trump has his own non-vetted “intelligence” group led by Bannon that now has access to the combined product of the IC via the daily briefs to the president and the NSC.

The armed services have been attacked as well, with Trump saying that he “knows more” than the generals, that they are incompetent and that the US military is in disrepair. He uses the Joint Chiefs of Staff as props in political theatre events such as his first address to Congress. He says that he has a plan to defeat terrorism but then demands that a plan be drawn immediately by the very generals he has derided.

The list of aggrieved agencies is long (pity the Department of Education!) and the depth of bureaucratic resentment is deep. But bureaucratic pushback is not synonymous for or evidence of a Deep State at work. To claim otherwise is simply to indulge in a form of post-modern conspiracy theory, even if the claim comes out of the West Wing.

It is ironic that we have some on the Left to thank for that.

I shall leave for another time discussion of whether there is a Deep State in New Zealand. What is true is that the New Zealand intelligence community has a degree of operational autonomy and history of non-accountability that could allow for the formation of a cabal of intelligence “insiders” who carry on as they please. This is especially true given the absence of parliamentary and ministerial oversight, paucity of public interest, ignorance of security matters on the part of MPs and the  traditional weakness of review mechanisms such as the Inspector General of Security and Intelligence. To some extent, the same is true for the NZDF and the Police. The question is whether this has resulted in bureaucratic capture by these agencies of their ostensible political and judicial overseers, or has it led to the formation of a Deep State within the state bureaucracy.

The answer, it would seem, is a matter of perspective.

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The problem of US presidentialism.

Citizens of mature democracies frequently complain about politics and politicians, whether it is the influence of money in politics, the rise of corporate lobbyists, or outright corruption, but they often simultaneously retain a strong faith in the actual political institutions that govern over them. The citizens of the United States are no exception in this regard. More often than not they hold a genuine belief that their system of government itself, framed as it is by a constitution written over two hundred years ago, is fundamentally good.

What exactly is it that our American friends believe to be good, even superior, about their system of government? It is founded on a division of powers that is supposed to guard against radical or rapid-fire policy-making, an in-built conservatism that is compounded by federalism. Presidential power is checked by Congress, and presidentialism, it is argued, is further superior to parliamentarianism because electoral terms are fixed, meaning that they can’t be messed about with for political purposes. Supporters of the US system will even work to defend the politically appointed nature of the public administration in terms of democratic accountability, cutting across the power of the career bureaucrat who runs rings around members of parliament in an effort to expand his or her own power base.

The Trump presidency has defied those conventions to the point that people are talking about an incremental or “quiet coup” in the US. The concern is that his circumvention of traditional White House practice is designed to consolidate power in the Oval Office at the expense of the legislature and judiciary. But there is more to it than rule by decree: the problem with President Trump’s behavior rests partially with him and partially with the system that allowed him access to power.

Beyond the pernicious influence of corporate money and the venal nature of the Beltway elite, the first two weeks of Donald Trump’s presidency shows that something is rotten about the state of the US political system. Institutions are only as good as the customs, practices, and arguably even the wider political culture in which they are embedded. The rule of law, it turns out, is not as robust as the myth would have it, at least not when it comes to placing restraints of Executive Authority. What many have assumed were legal requirements surrounding the behaviour of a US president are in fact only long-term practices, traditions, and even “understandings” that President Trump has wasted no time ignoring. Add the fact that every other President in modern history was disciplined into exercising political self-limiting behaviour through experience with public service of some kind, which Trump does not have as a personal or professional attribute, and then it is fair to say that the system of government itself is in a state of decay.

The premise upon which the US presidential edifice once stood was the notion of executive self-limitation (or self-restraint). A core tenant of democracy, self-limitation in the presidency means that the president will not stretch or ignore customary norms to advance his own agenda, nor will he put his interests above those of the nation. The assumption is that once president, individuals will subordinate their own interests to those of the nation even if it means refraining from taking advantage of the office for personal or abjectly partisan gain. Even if historical practice has shown that presidents push the margins of this tradition, none have shown such a blatant disregard for it as has Mr. Trump.

This points to a fundamental weakness of the US presidential system. Rather than being constrained by strong institutional boundaries and legally defined limits to what can and cannot be done, the US presidency assumes goodwill and an interest in consensus and compromise in pursuit of collective good on the part of those who occupy the Oval Office. In past practice, that has largely been the case. Those who have taken the oath of presidential office have voluntarily fitted into the strait jacket of institutional weight and national history and have generally conducted themselves within the customary limits of Executive Authority.

The customary limits of US presidential authority rest on horizontal and vertical accountability. The former involves executive accountability to the other branches of government. The latter involves presidential accountability to the electorate, the media and the federal bureaucracy under executive control. The assumption is that presidents will acknowledge their responsibilities on both dimensions and act accordingly when it comes to issues of transparency and oversight.

That is not the case now. President Trump has set out to redefine limits of presidential authority in order to implement his campaign platform unchecked by either form of accountability. He has ignored Congress, challenged (and vilified) the courts and federal agencies when signing executive orders or pushing his version of events and has selectively turned on the media with the full weight of his office (since, among other media-related issues, providing such things as regular and open briefings to the entire White House press corps is a courtesy, not a requirement). He claims that he speaks directly and answers to “the people” alone and that his actions in office are justified by his electoral mandate. This represents an example of what Spanish political sociologist Juan Linz called the “authoritarian temptation” of presidential systems: those in presidential office can, if they wish, use that office to impose by executive fiat unilateral approaches to policy-making while ignoring the conventional trappings of presidential accountability (before dispensing with them altogether). As the first amongst equals, the president can ignore or by-pass Congress when expedient and can seek out judges that will uphold his policy vision under legal challenge (and look to replace replace those that do not). And since it is the president who appoints senior staff throughout the US federal bureaucracy, it is the president’s unvarnished wishes and desires that are channeled first when it comes to translating policy into practice.

In other words, presidential systems facilitate the rise of what is known as “electoral authoritarianism” whereby a freely elected democratic president uses the privileges of office (such as Executive Orders and Decrees) to consolidate power at the expense of the other two branches in order to then unilaterally impose undemocratic policies on society. From Peron to Chavez to Dutarte to Mugabe and Putin, the historical record is replete with cases of presidential systems that started out as freely elected but inevitably turned authoritarian while maintaining a façade of electoral legitimacy and some measure of populist appeal.

This is an inherent flaw of presidential systems as much if not more than that of any one individual.

In the case of president Trump there is a twist, and its name is Steve Bannon, the president’s closest advisor. The former publisher of the white supremacist, anti-Semitic conspiracy web site Breitbart, who was a link between Russian operatives and the Trump camp during the campaign, has been appointed White House chief strategist and made a Principal of the National Security Council at the expense of the Chairman of the Joint Chiefs of Staff and Director of National Intelligence (both of whom were demoted). Having previously spoken of “smashing the system” and author of the phrase “draining the swamp,” Bannon sees Trump as an empty vessel into which he can pour his ideological agenda. It was Bannon and another former Breitbart editor, Steve Miller, who wrote both the dark Inaugural Address (“carnage in America”) and the Executive Order banning refugees and citizens of seven Muslim-majority states. It is Bannon who shapes the Trump worldview and who sets the policy agenda in the West Wing.

Bannon sees the world as immersed in an apocalyptic struggle between traditional Western values and usurpers from Asia and the Middle East. He sees liberal democracies as weak and ineffectual, trying to be all things to all people and masters of none. His vision foresees a final confrontation between the dark forces aligned against the West and the last bastions standing to defend it: the US and Russia. In fact, he has predicted and advocated for US wars with China and Islam on the premise that the US has arrived at its “4th Turning:” a period, like the Revolutionary, Civil and Second World Wars, where the US remakes itself via existential conflict into a new and revitalized state after a period of economic, cultural, social and political decline. Since Bannon believes that the US retains a measure of strategic superiority over both of these perceived rivals at this point in time but is at risk of losing that advantage, his timeline for war is short and his preferred approach is to initiate conflict while the US strategic advantage still holds.

Bannon understands the weakness of presidential systems that rely on self-limiting voluntarism for commonweal governance. He knows that presidential systems allow for much more executive initiative and discretion when pursing policy, including the use of force. He sees a window of opportunity in the form of a Republican controlled Congress with a self-serving leadership and a disorganized Democratic opposition.

In view of these institutional conditions, rather than honor tradition he has moved to exploit it. Trump serves as the perfect vehicle for his shadow agenda and the Republican Party plays along because it feels that it can get something in exchange (such as presidential support for its legislative agenda, including repeal of abortion rights and the Affordable Care Act as well as pro-business tax reform).

Bannon would not have as much influence if he was not operating in a presidential democracy in which custom and tradition rather than legally defined codes of conduct were the norm. In fact, without legally defined institutional constraints, norms are not enforceable when incumbents decline to engage in self-limiting behavior.

In the US presidential system the only real check on executive authority is the court system. Although Congress can pass laws that compel or otherwise restrict aspects of presidential behavior (like the current bill requiring Steve Bannon’s appointment to the NSC be subject to Congressional approval), the highly partisan nature of the US federal legislature, including on the subject of presidential impeachment, makes passage of such legislation difficult and subject to legal challenge and/or reversal. In the unlikely event that Congress orders the president to adopt a specific norm or practice, the matter will inevitably wind up in court.

So the court system has the last say on how US presidents should behave, but that is on a case-by-case basis. Moreover, in truth US courts are more arenas of contestation that determinants of adjudication. The real check on executive behavior comes in the form of litigation (and the threat thereof), but in order to litigate the limits of presidential power, legal challenges must be phenomenally well funded and argued. Even state governments may find themselves unable to sustain legal challenges to executive action in the face of the federal authorities’ determination to defend presidential prerogatives. Public interest groups, law societies, religious,ethnic, business and labour organisations, NGOs and CSOs have even less resources with which to fight the Executive Branch, so the path of legal challenge is institutionally skewed in the president’s favour.

All of which is to say that Donald Trump’s behavior as president is as much due to the nature of the political system into which he is inserted as much as it is due to his sociopathic personality.

This does not mean that parliamentarianism is always the preferred democratic system. Many variables come into play when determining which system of representation is best suited for a given polity. But what is clear is that custom and practice are no substitute for the rule of law when it comes to government institutions as well as citizens, and in that regard, it is the system not the people who have failed when it comes to preventing the excesses now dominating the White House.

This essay began as an exchange of notes with Kate Nicholls, who teaches at AUT.

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Where to draw the line?

Here are some thoughts for readers.

It is reported that former US Sen Scott Brown (R-MA) has been nominated by the Trump administration to be US ambassador to New Zealand. Besides a record that includes being a centrefold model, party to a sexual harassment lawsuit, and an undistinguished US Senator after a career in local politics in his home state, Mr. Brown is on record as saying that he supports the use of water boarding and other forms of torture. This is of particular note because Mr. Brown is a lawyer who served in the Massachusetts National Guard as a Judge Advocate General’s (JAG) officer, that is, as part of the Army legal system. He should therefore presumably be familiar with Jus in Bello, Jus ad Bellum and other international conventions that, among other things, prohibit the use of torture in war and peacetime.

NZ is a signatory to the Geneva Convention, which prohibits torture (as a war crime). It also supports the International Court of Justice, which prosecutes war crimes and crimes against humanity (which include torture).

Every country has the right to refuse to accept the credentials of foreign ambassador-designates.

So the question is: as a responsible member of the international community and a strong supporter of the rule of international law, should NZ refuse to accept Scott Brown as the incoming US ambassador? Or should it adopt a policy of diplomatic necessity and cast a blind eye on Mr. Brown’s support for state-sanctioned criminal acts in order to curry favour with the Trump administration?

And, as a sidebar: Inspector General of Security and Intelligence Cheryl Gwyn is currently undertaking a lengthy investigation into whether NZ, via the SIS and/or NZDF, was involved in the extraordinary rendition and black site programs run by the US under the Bush 43 administration (which involved the extrajudicial kidnapping and secret detention without charge of suspected Islamicists, several of whom wound up dead as a result of their treatment while in captivity). These  programs included the use of water boarding and other forms of torture as supposed interrogation techniques at the US military prison in Guantanamo Bay (Camp Xray) as well as a network of black sites around the world (not all of whom have been identified yet and which it is possible Ms. Gwyn’s investigation might shed light on). Given this background, will the decision on Mr. Brown’s acceptability as the US ambassador be indicative of what we can expect from the government when it comes to her findings?

I would love to hear your opinions.

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Foxes in the hen house.

Here is a thought. Among all the wretched news coming out of the US this past week, two somewhat lesser items struck me. One was that Trump’s son-in-law was granted a high level security clearance, and the other was that former Brietbart boss, white supremacist and pro-Russian provocateur Steve Bannon has been given a Principal’s seat on the National Security Council, displacing both the Director of National Intelligence and the Chairman of the Joint Chefs of Staff (who now attend on an “as needed” basis).

During the time I spent in the US security apparatus I held several levels of clearance, working my way up to the fairly high Top Secret/Secret Compartmentalized Information (TS/SCI) level. The scrutiny I received in order to get that clearance was pretty intrusive and lengthy: polygraph and drug tests, background checks run by the DIA that included interviews with college friends, my former wife, work colleagues at various places and even neighbours, and an FBI background check. The process took about 10-12 months.

Bannon and Jared Kushner will be privy to sensitive information well above my ultimate pay category, and yet the latter was granted a clearance in a month and the former, for all we know, has yet to receive one. I know that elected political officials do not have to undergo the sort of background checks that I did (something that is always troublesome when congressional testimony is given behind closed doors to congresspeople who are known to have serious skeletons in their closets that make them liable to blackmail). But political appointees as well as career civil servants and military personnel must have those checks done before assuming the jobs in which they handle highly sensitive information. Mistakes have recently been made in security vetting due to outsourcing (Edward Snowden) and people can grow disenchanted and violate their oaths (Chelsea Manning), but for the most part the security vetting process allows the government some degree of confidence that the person being scrutinised cannot be blackmailed, is not financially vulnerable, is not addicted, criminally violent, mentally ill, etc.

So my questions are these: Has Steve Bannon undergone any security vetting, particularly given his background and links? Why did Mr. Kushner receive an expedited clearance rather than a thorough one? There are other individuals in the Trump White House who also have access to this type of information without full security vetting (including a Brietbart editor), but for the moment I wonder about those two fellows.

This is more than a matter of personal curiosity. Given Trump’s attacks on the military and intelligence leadership and the ongoing questions about his relationship with Russia in the wake of official claims that Russia sought to influence the US presidential election in his favour, these sort of moves could set the stage for a constitutional crisis in civil-military/intelligence relations. After all, if Bannon is talking to the Russians and Kushner is pillow whispering to Ivanka about policy matters that impact on the family businesses, why would the intelligence community and military brass feel comfortable with them receiving full classified briefs on such matters? Would it not be advisable for the security community to withhold highly sensitive information from them and direct that information to others such as NSC advisor Gen (ret.) Mike Flynn (also of some very suspect ties) on an “Eyes Only” basis? Or should they just give full briefs and let the chips fall where they may?

Neither option is a good choice, but one has potentially catastrophic consequences while the other undermines the foundations of elected civilian supremacy over the military and intelligence communities.

 

There are lessons here for New Zealand. The NZSIS is responsible for security vetting of people who will handle sensitive classified information, but its record is mixed in this regard. In 2010 it was revealed that Stephen Wilce, the head of the Defence Technology Agency (DTA), the scientific arm of the NZDF, was a serial fraudster and liar who among other things claimed to have been a member of the 1988 UK bobsled team and a former Royal marine who had worked for MI5 and MI6 in the UK and who had invented the guidance system for the Polaris (submarine launched and nuclear tipped) missile (you can find the NZDF Court of Inquiry Report on Mr Wilke here).

Mr. Wilce was recruited by Momentum Consulting (which was paid $25,000 for the job), a firm that included among its directors and executives National Party stalwarts Jenny Shipley and Michelle Boag. Momentum was supposed to have confirmed Mr. Wilce’s bonafides and the NZSIS was supposed to do his security vetting before granting him a high level clearance, but none of that happened. It was not until Mr. Wilce had been in the DTA job for five years that a whistleblower outed him.

In recent years the SIS has reported that security vetting takes up more and more of its time and resources, to the detriment of its domestic intelligence, foreign intelligence and counter-espionage activities. Delays in obtaining clearances are commonplace and pressures to expedite them are strong. That was exactly the situation that led to Edward Snowden being granted a high level security clearance. As it turns out, the firm that was contracted to do his security vetting by the NSA simply rubber stamped the clearance authorisation because it was swamped with such work.

Employees of New Zealand’s intelligence community and military personnel certainly undergo serious security vetting before they can be trusted to handle classified information. Perhaps, like the US, elected officials are exempt from the requirement, but what about parliamentary staffers and those employed in the DPMC? Given the revelations in the Dirty Politics book, can we be assured that the likes of Jason Ede and Phil de Joux (or even Roy Ferguson and Sir Maarten Wevers) have been vetted properly? Is everyone who is privy to classified material treated the same as military and intelligence personnel and subjected to a thorough security vetting process? Is outsourcing recruitment of people to sensitive positions still the norm? If so, is that outsourcing going to politically connected firms or is there now in place some objective standard of applicant vetting rigour that needs to be met?

I ask these questions because if anything, New Zealand appears to have a much looser government administrative system that does the US. Shoulder-tapping, “who-you-knows,” nepotism, cronyism, old boy networking–perhaps it is a small country thing but it seems to me that such practices occur fairly frequently when it comes to high level civil service positions (to say nothing of the private sector). If that is so, then it is fair to ask if these practices override the good sense need for security vetting of those involved with intelligence and military matters.

I stand to be corrected if wrong in this appraisal, but the issue still remains as to who with access to sensitive intelligence and security information outside of NZ intelligence and military officers undergo the type of security vetting that I underwent back in the US and which Messrs. Bannon and Kushner managed to avoid.

Put another way and stripped of the US baggage: are there Bannons and Kushner facsimiles in our midst?

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From failure, opportunity comes.

When President Trump signed the executive order withdrawing the US signature from the Trans Pacific Partnership Agreement (TTPA), he signed the death warrant of that multinational trade deal in its present form. The US was the core member of the TPPA and held the dominant negotiating position within it, so the decade-in-the-making, laboriously undertaken and vexing complex compact that was agreed to by the other eleven signatories is now all but null and void.

There are options, however, for the TPPA that may allow it to survive and thrive in light of Trump’s unilateral abrogation.

First, the other eleven member states can put the agreement into hibernation, wait for the 2020 US presidential election and hope that a more trade-oriented president succeeds Trump.

Second, they can hope that the Republican congressional leadership will force Trump to reverse his decision sometime between now and 2020. That would only occur if Trump is weakened by some failure and the GOP sensed that it could re-assert its traditional pro-trade stance at his expense. The Democrats would welcome the move for opportunistic partisan reasons even if some of its leading figures such as Bernie Sanders also oppose the TPPA and applauded Trump’s decision to pull plug on it.

Third, the members could look to themselves and re-draw an agreement that is less US-centric. Many of the provisions insisted on by the US could be reconsidered and even dropped in exchange for increased preferences for the interests of previously junior TPPA partners.

Fourth, the remaining TPPA partners could look to fill the void left by the US with another large market economy. The one that springs immediately to mind is China. That is where things get interesting, and where opportunity may lie.

China is already party to the ASEAN-China Free Trade Agreement (ACFTA) that established a regional free trade area that is the largest in terms of population and third largest in term of trade volume and nominal GDP. Some of the ACFTA signatories are also parties to the TPPA (Brunei, Malaysia, Singapore, Vietnam). This agreement is considered to be a “true” free trade agreement in the Ricardian sense because it reduces tariffs across 7,881 product categories to zero percent, with the result being that tariffs on ASEAN goods sold to China fell to 0.1 percent and those of China sold in ASEAN to 0.1 percent in the year the agreement went into force (2010)

The non-US TPPA members could opt to negotiate an agreement with ACTFA as one course of action. That may be difficult given that the TPPA is not a “genuine” FTA as much as it is an investor guarantee agreement (IGA) in which market regulations are altered to attract foreign investors and these are protected from legal liability in the event of disputes with the host state. What is not included in the TPPA are across-the-board reductions to zero tariff, and in fact many domestic industries remain protected or subsidised throughout the TPPA membership as part of the horse trading undertaken during negotiations over its central tenets. But it may be possible to reconcile the two trade deals in an effort to create a new super trade bloc on neo-Ricardian grounds.

Another option might be to invite China to the table. It has the second largest market in the world and is continues to grow at a sustained and rapid pace in spite of the vicissitudes of the world economy over the last two decades. It is making the transition from export platform to a mixed domestic mass consumption/value-added export model, and it has previously expressed interest in joining the TPPA. The US blocked consideration of China’s membership because it saw the TPPA as the economic equivalent of the military “pivot to Asia” announced by the Obama administration, that is, as a hedge against Chinese economic, diplomatic and military influence in the Western Pacific Rim in what amounts to a new Containment Policy in the Asia-Pacific.

With the US gone, China has an opening and the remaining TPPA members have an opportunity. The TPPA will have to be renegotiated, but it is likely that the non-negotiable provisions insisted by the US will not be supported by the Chinese and can be dropped in the effort to entice their interest. In turn, China might have to accept something less than blanket reductions in uniform tariffs and agree to a tariff reduction regime that is more segmented and scaled in orientation and gradual and incremental in application (i.e. more product or industry specific and phased in over a longer period of time). That is clearly within the realm of possibility, as is Chinese agreement to other TPPA provisions stripped of their US-centric orientation.

China has already signalled its intentions in this regard. President Xi used this year’s Davos Forum to preach the virtues of free trade and global commerce, arguing against protectionism as an impediment to international understanding and exchange. China has proposed the creation of a Regional Comprehensive Economic Partnership (RCEP) along the lines mentioned above with regard to an ACTFA-TPPA merger but with the provision that the US be excluded. There are many details to be ironed out but the groundwork has been laid for that to happen.

What makes the turn to a China-included trade bloc a potentially win-win proposition for remaining TPPA signatories is that the key provisions demanded by the US–changes in market regulations and preferential market entry clauses for US business interests (including changes in patent and copyright protection) and imposition of limited liability clauses in the event US businesses are sued by local governments–were those that were most resisted by domestic audiences in several TPPA member countries. Removing them not only allows the agreement to be free of those constraints but also diffuses a source of domestic opposition in countries where such things matter.

One thing TPPA states should think carefully about, especially small states like New Zealand, is the invitation to negotiate bi-lateral trade deals with the US instead of the TPPA (something just announced by the Trump administration). The historical record shows that large asymmetries in market size favour the larger over the smaller partner in bilateral trade agreements. This is due to economies of scale, market dominance, and economic and geopolitical influence derived from market size advantages. The recent track record of bilateral deals between the US and smaller states reinforces this fact. Australia, South Korea, Chile, Colombia and the Central American nations plus Dominican Republic grouped in the CAFTA scheme all have bilateral FTAs with the US. In all instances the majority benefits accrued to US-based companies and industries and the benefits accrued in the partner states were limited to specific export markets (mostly in primary goods), with little flow-on, trickle down or developmental effects in the broader national economies.

So rather than “jump on a plane” to sign a bilateral deal with the US, as one wag put it, smaller states such as New Zealand need to think hard whether the bilateral alternative with the US is more long-term beneficial than a multilateral agreement, especially when it has shown that under a certain type of administration the US is willing to renege on its commitments even if they are multilateral rather than bilateral in nature. With the Trump administration also set to review and replace the tripartite North American Free Trade Agreement with Canada and Mexico (NAFTA), it is clear that honoring commitments and maintaining continuity in trade policy is not, even if just for the short term, on the US agenda.

When one widens the lens on what the Trump administration is doing in terms of its threats to withdraw from various bi-and multinational defense agreements unless the partner states “pay more” for US protection, it becomes clear that the US is not, at least for now, a reliable international partner.

The reason is that the new US attitude to trade is part of a larger phenomenon. The neo-isolationist protectionism embedded in the “America First” approach adopted by the Trump administration has ended, however temporarily, over 50 years of bipartisan consensus in the US political elite on the merits of international engagement. Be it in trade, foreign aid or collective defense, the US policy elite, both public and private, have embraced globalisation as a means of projecting US power, influence and values world-wide. That era has come to end for the time being, and so long as Trump is successful in pursing his “America First” strategy it will continue to be so.

That may or may not make America Great Again but it could well have a negative impact on those who seek mutual benefit by engaging with it. They will be asked to do more, pay more and offer more concessions in order to be granted US favour.

In the absence of an alternative, that is an unenviable position to be in. But if alternatives are available, then the current moment in US politics provides a window of opportunity to countries that have found themselves marginalised by Trump’s policy directives. The re-orientation of TPPA is one such opportunity because, if for no other reason, a US return to the TPPA fold in the post-Trump era will see it with much less leverage than it had up until now. Add to that the possibility of increased benefits via a renegotiated deal with the remaining and possibly new partners, and the downside of the US withdrawal seems acceptable.

From a smaller nation perspective, that is a good thing.

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Appearances are deceiving.

In a recent editorial in the Herald an academic welcomes what he claims is a return to New Zealand’s “independent” foreign policy. As evidence he cites the Chinese rebuke of New Zealand for siding with the Permanent Court of Arbitration’s ruling in favour of the Philippines in its dispute with China over the legality of Chinese claims in the South China Sea, the remarks by New Zealand’s UN ambassador condemning Russia’s use of its Security Council veto to thwart humanitarian assistance provision in Syria, and New Zealand’s co-sponsorship of a UNSC resolution condemning Israeli settlements in occupied Palestine.

I disagree. None of these examples offer proof of “independence” in foreign policy. Instead, they represent long-standing New Zealand positions and, if anything, a pro-US orientation on all three issues.

I submitted my response to the Herald but it was rejected. So I publish it here.

When New Zealand campaigned for a temporary seat on the UN Security Council it rested its case in large measure on making progress on the Israel/Palestine conflict and pushing for a halt to the Syrian civil war on humanitarian grounds. With regards to Chinese building of artificial islands on South China Sea reefs claimed by (and sometimes in sight of) other countries, New Zealand has consistently urged adherence to international maritime law, particularly rules governing freedom of navigation, safe passage and non-militarisation of environmentally sensitive ecosystems. All of these positions were firmly staked out well before the supposed return to foreign policy independence.

The New Zealand position on the three issues dovetails neatly with that of the US, and in fact it was the US abstention on the UNSC settlement resolution, in a change from long-standing practice of vetoing any resolution critical of Israel, that made the difference in securing its passage. It is likely that the US signalled this shift in advance of the UNSC vote, thereby giving diplomatic cover to New Zealand and its co-sponsors.

“Independence” in foreign policy implies autonomy in decision-making and execution.  New Zealand does not have that. Instead, what New Zealand has is a “multifaceted” foreign policy that consists of three components: trade, diplomacy (including climate diplomacy) and security. These issue areas are not treated holistically, that is, as component parts of a larger scheme. Instead, they are approached compartmentally by the diplomatic corps (also known as being “siloed” in the bureaucratic jargon).

On trade New Zealand looks East, especially but not exclusively to China, for its material fortunes. It does so pragmatically, disregarding the human rights, environmental or political records of its trading partners. Diplomatically it rests on principle, seeking to reaffirm multilateral solutions brokered by international organisations like the UN and regional bodies such as ASEAN as well as upholding the rule of law in international relations. For security New Zealand acts practically and looks West, particularly to the other members of the Five Eyes intelligence network (Australia, Canada, the UK and the US). The latter also has a strong military component as a result of historical ties to the Anglophone world and the Wellington and Washington declarations signed in 2010 and 2012, respectively, which make New Zealand a first tier security partner of the US.

The overall conceptual mix underpinning New Zealand foreign policy is one of idealism or realism depending on what issue area is being addressed. That does not make for independence, which presumably rests on a core set of principles that extend across the field of diplomatic endeavour. If anything it is opportunistic and short-term in orientation.

New Zealand’s approach to foreign policy violates a maxim of international politics known as “issue linkage” where security partners trade preferentially with each other and vice versa. In this framework, diplomatic endeavour in discrete policy areas is treated as part of a larger long-term strategic plan that is coherent across all aspects of international exchange. However, in New Zealand’s practice, trade, diplomacy and security are treated separately, without an overarching strategic umbrella binding them together.

New Zealand’s approach ignores the reality of great power competition, specifically but not exclusively that between the US and China, where New Zealand finds itself economically dependent on one rival and security dependent on the other. Already the Chinese have begun to threaten New Zealand with economic reprisals if it continues to align its approach to the South China Sea disputes with that of the US (using as a pretext investigations into Chinese steel dumping in NZ, which the Chinese have issue-linked to the maritime dispute). The US has countered China’s rise by attempting to promote the Trans Pacific Partnership as a trade hedge against Chinese economic influence in the Western Pacific (now moribund as the result of the Trump election victory) and by re-emphasising its security commitment to New Zealand, most recently evident in the visits by Vice President Joe Biden and Secretary of State john Kerry and the port call by the USS Sampson on the occasion of the RNZN 75th anniversary celebrations.

Trading preferentially with one emerging great power while strengthening military and intelligence ties with its superpower rival does not make New Zealand “independent” unless one thinks that straddling a barbed wire fence while standing on ice blocks is a sign of independence. With the US and China on a collision course as their rivalry heats up across the spectrum of contentious areas, something that the Trump presidency is likely to aggravate, the time when New Zealand may have to choose a side may well be approaching. An independent country with an autonomous foreign policy grounded in a coherent long-term strategic plan would not have to make such a choice.

The current conundrum is the product of a turn away from independence that began after 9/11 when the 5th Labour government opted to begin the process of reconciliation with the US after the chilling of bilateral relations resultant from the 1985 non-nuclear declaration by the Lange government. Since the decision to become a model of Ricardian trade economics was made well before 9/11, the move to bilateral reconciliation with the US introduced an element of multipolarity to New Zealand diplomacy, something that has now become entrenched in its multifaceted approach to international affairs.

New Zealand diplomats will reject the suggestion that the country’s foreign policy is bipolar, multipolar or anything other than independent. They will say that the current approach allows New Zealand to put its eggs in several baskets and thereby avoid over-reliance on any one of them. That is good public relations (mostly for domestic consumption), but reality suggests otherwise.

In the current era of global politics where international norms and laws are continually violated with impunity (including those outlawing crimes against humanity and war crimes), and where international organisations have been shown to be powerless to stop even the most grotesque of atrocities, small states must increasingly chart courses of action in an arena dominated by great powers that have, in at least some cases, no interest in upholding or adhering to international norms and law, much less submit their sovereign decisions to the dictates of international agencies. That makes pursuing independence as a matter of principle perilous at best.

Perhaps the pundit cited at the beginning does not realise it (probably because he does not specialise in international relations theory or foreign policy practice), but the current international moment is more akin to a Hobbesian state of nature rather than a Rousseauian meadow. Trying to remain “independent” as a small state in such an environment is more likely to lead to the fate of Melos (which was destroyed by the Athenians when it refused to abandon its neutrality in the conflict between Athens and Sparta during the Peloponnesian Wars) rather than national security, peace and prosperity. In that light a multifaceted approach may be the least harmful course of action if for no other reason than the fact that pursuing foreign policy independence is impossible and potentially disastrous in a context where universal rules no longer apply and great power rivalries are starting to spill into conflict (be it armed, cyber or economic).

Be it by choice or necessity, New Zealand abandoned an independent foreign policy more than a decade ago. What it has been doing ever since is to play a compartmentalised three-sided game as a hedge against uncertainty in a world in transition, choosing friends, partners and allies as circumstances warrant. As a result it is now involved in counterpoised relationships with rival great powers at a time when international law and organisations are largely ineffectual. The conceptual ice upon which its foreign policy stands in slowly melting and the barbed perils of foreign policy contradiction are approaching in equal measure. The trend is irreversible.

This is New Zealand’s Melian Dilemma.