It must be the season for espionage scandals and potential threats. The NZ media has taken an interest so I get to play talking head.
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.
More questions about the Dotcom spying case.
It turns out that the Prime Minister was briefed about the Dotcom surveillance by the GCSB in February 2012, not in September 2012 as Mr. Key has previously asserted. It also turns out that the eavesdropping began before the late 2011 timeframe offered by the government and repeated in Inspector General Paul Neazor’s report on the unlawful nature of the GCSB’s involvement n the Dotcom case. Since 2009, shortly after National assumed government, there have been at least three other cases involving the GCSB that may be of dubious legality. The official story admits that the legal advice given to the Police and the GCSB with regards to Dotcom’s residency status was wrong. Apparently neither the Police or GCSB checked with Immigration, Customs or other agencies about the issue (or if they did, they received either erroneous advice or ignored the correct advice given).
Mr. Key says that the briefing in February 2012 was about the general roles and capabilities of the GCSB, and that Mr. Dotcom’s photo came up as part of a laptop slide show presentation. That is curious. One would assume that Mr. Key would have received such a briefing as part of the transition to and early days of his first government, and that he would consequently have an idea of GCSB functions well before February 2012. It would be astounding if no such briefing took place during his first term as Prime Minister, and it would be only slightly less astounding if he required a remedial or follow-up briefing in February 2012, which just happened to be less than three weeks after the Dotcom raids.
More plausible would be that the briefing in February 2012, as the government returned to business after the summer holidays, was a status report on ongoing GCSB operations. One would presume that the slide show presentation was done to bullet point the main thrust of those operations as well as the targets and methods involved. The Dotcom case would have been one of them.
The question begs as to whether not only is the Prime Minister’s memory faulty, but whether he is competent on matters of security and intelligence. If he needs a remedial general brief about the GCSB role and functions and/or cannot distinguish between an operational status update and a general brief after nearly four years in office, then he clearly is not up to the task of providing effective oversight of the intelligence apparatus. Nor, it would seem, is his cabinet, which presumably would have prepped him on the nature of the visit to the GCSB headquarters in February 2012 and provided him with detailed questions on the operations in question. One of them might have been with regard to Mr. Dotcom’s residency status and the legality of GCSB surveillance in that case.
It would seem that, to paraphrase an observation about Sarah Palin, he has a singular intellectual disinterest in matters of security and intelligence, and that disinterest is shared by his closest advisors. Contrast that with his real interest in tourism (of which he is minister), the foreign film industry (for which his government changed NZ law in order to accommodate the conditions demanded by one foreign investor) and privatization and asset sales schemes of various sorts.
The bottom line is that John Key is to intelligence oversight what the captain of the Costa Concordia is to maritime safety–both asleep or otherwise engaged while in command.
The Dotcom case is the unhappy gift that keeps on giving. The media and the opposition are peeling away the layers of obfuscation that make up the bulk of the government’s version of the story. There is surely more unflattering revelations to come.
Fundamental issues of accountability and oversight have been raised by the Dotcom case, not only with regard to the substance of the charges against him and the way in which the Police, Crown and GCSB conducted themselves, but with regard to the general conduct of New Zealand intelligence agencies (the SIS has had its own share of embarrassments in that respect).
With a parliamentary security and intelligence committee devoid of effective oversight powers, an Inspector General of Intelligence whose independence and authority are tightly circumscribed and a prime minister who is either incompetent or disinterested in security and intelligence matters, or whose managerial style is to allow sensitive government bureaucracies to operate with near total independence wedded to an absence of institutional accountability (which can be vertical or horizontal, with both being needed for effective democratic oversight of intelligence and security agencies), the Dotcom case may only be the tip of the iceberg when it comes to state agencies playing loose with the law.
That matters only because adherence to the rule of law is considered to be one fundamental measure of the quality of democracy. The core of that measure is that the State adhere to the law as much if not more than its citizens. Given the revelations in the Dotcom case, which follow on other instances of intelligence agency malfeasance (e.g. the Zaoui beat-up), New Zealand has found itself sorely wanting.
Media Link: The GCSB and the Dotcom case
I was interviewed by the RNZ Nine to Noon program on the subject of the GCSB involvement in the Kim Dotcom case. Nicky Hagar followed me. Although it now has been confirmed that the Police misled the GCSB as to the residency status of Dotcom and his associates, the dates of the awarding of residency status to at least some of the group, including Mr. Dotcom, is somewhat nebulous in the MSM reporting. This is being clarified as the media dig into the issue, but my initial comments before yesterday’s revelations might be of interest to some. They are here.
Blog Link: A Romney Foreign Policy and the South Pacific.
For those interested in US domestic politics and the potential impact of a Romney presidency on US foreign policy with a South Pacific angle, my thoughts on the subject are gathered here.
Double impunity
Social Development Minister Paula Bennett has been said by the Director of the Office of Human Rights Proceedings, Robert Hesketh, to have breached the privacy of Natasha Fuller by making private information about her public in 2009.
Bennett does not accept Hesketh’s “opinion”; in a letter released by Hesketh she expressly states that “I do not believe I have breached privacy.” Moreover, she goes on to explain that she still considers such a strategy — of releasing private, confidential information about a member of the public to make a political point — to be perfectly legitimate.
And, really, why the hell wouldn’t she? It worked. Not only has she not been found to have done anything wrong, but she has suffered no consequences for those actions. No sort of reprimand has been issued, nor obeisances levied. Hesketh’s “opinion” — with which the minister is free to disagree upon no grounds whatsoever — is not in any way binding, and as such, has exactly as little value as mine. All soft speech and no big stick. It has taken three years and change to get to the point where the massed battalions of our much-vaunted system of civil liberties have been able to issue nothing more robust than a statement that the situation has been resolved “to the satisfaction of all parties”, apparently notwithstanding the stark disagreement between the positions of Hesketh and Bennett.
In a political environment where ministers are required by their leader to employ whatever means they can get away with to achieve their KPIs, we can’t really blame Bennett for doing so. She has proven extremely adept at this sort of machine politics, running decoy lines when other, less-adept, ministers find themselves in trouble — the most recent example of which having also emerged today: that there really was no clamour from employers to drug-test beneficiaries. So we can’s blame Bennett; she’s just following the incentives. Similarly, we can’t blame John Key — after all, his ministers are getting results, and his polling is holding up, so he’s just following the incentives as well. I do not know their mandate, but we may be able to lay a certain amount of blame at the feet of bureaucrats like Robert Hesketh. However, given Bennett’s and Key’s demonstrated ruthlessness, perhaps such a supine position is understandable. Had he caused too much trouble his office might have been gone by lunchtime, or redeployed to some higher-priority task like finding technical justifications for Special Tactics Group action against Kim Dotcom.
But regulatory or statutory means are weak when it comes to punishing ministers for their misdeeds. Since procedural decisions governing what action could and would be taken against a minister in such as case are themselves determined by ministers, the Iron Law comes into play: Unless forced, a Cabinet will never implement measures that might seriously constrain it. The main function of regulatory recourse, then, is not to impose actual, “hard” strictures on members of the executive, but to provide their opponents with opportunities to attack them, either on political or ideological grounds, or on grounds of character or competence. These are “soft” constraints on behaviour, in that they are normative rather than objective, and they rely on tactical factors and on a high degree of competence and tenacity — as well as measures of opportunism and ruthlessness — on the part of opposition politicians. Impunity that arises from hard constraints as I’ve discussed here, and as Pablo has written about previously, is unfortunate but understandable; the lack of soft constraints is less so. Bennett has not suffered any consequences of her actions because she has not been made to suffer them by the only group that might viably do so: the New Zealand Labour Party.* So I return to an argument I’ve made before: the government gets away with all this is because the opposition lets it. In this case, Bennett took a calculated risk and released information in a way that nonpartisan experts consider to be obviously unethical and an abuse of her position. She didn’t even calculate it very hard — she took no official or expert advice before releasing Natasha Fuller’s private information, she just knew she could get away with it. Not only did Paula Bennett enjoy the ordinary sort of impunity that comes from being a minister of the crown, she also knew that she enjoyed the double impunity of being virtually unopposed at the political level.
She had good grounds to know this. The Labour party, even as far back as mid-2009, had been so dysfunctional and so ineffective for so long that it could hardly come as a surprise. How many times, over the past five years, have Labour supporters seen some egregious outrage from the government and thought, “this time — surely even this lot can’t screw things up! If they can’t make the government pay for this, they don’t deserve to win!” I know I have written these sentiments many times, and spoken them aloud countless more.
And yet they keep failing. As long as they keep failing, these outrages will still happen. Even if not for its own sake, Labour owes the people of New Zealand a duty of competence that it is not currently fulfilling.
L
PS: Given this result and Bennett’s refusal to rule out such actions in the future, here’s a handy thing that Anita wrote at the time, expressly forbidding Bennett or anyone else from releasing our, or your, information for such purposes.
* But what of the Greens? I hear you ask. And fair enough — the Greens have in many ways been doing a better job of being a functional opposition than Labour have. But the Greens cannot apply direct zero-sum electoral pressure on National — they cannot hope for parity, and they cannot threaten the Treasury benches. The Greens are important as a source of pressure on Labour, but only Labour can pressure National.
Blog Link: Australia as a different type of BRIC.
In spite of some serious dysfunctionalities in its party politics and potential problems with its economic growth model (heavily dependent on mineral exports), Australia is well on its way to becoming a regional great power. In this regard it shares macro-characteristics with three of the four “BRICs:” Brazil, India and Russia (the PRC has surpassed regional great power status and is no longer, in my opinion, appropriately categorized with the others). Although Australians may prefer not be grouped with the others for a variety of reasons, I take the notion of “rising middle power” as the starting point for a comparative analysis of Australia as a different type of BRIC.
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.
Gaming Gay Marriage
I have never quite understood the argument that gay sex is “unnatural.” Unless one believes that the only natural sex is that which reproduces the species, then how one chooses to express sexuality is as natural as differences in hair or skin color. If we admit that sex can be a means of expressing love, affection and physical pleasure rather than purely a reproductive act, then how one goes about doing that is as natural as variations in climate or on a theme. It does not matter if sexual preference is by “choice” or genetics or some combination thereof. Once the reproductive imperative is removed as the sole reason for having sex, then how one chooses to partake is almost limitless (I say “almost” because I adhere to convention that sex should be between consenting adults, or in the case of teenagers, between those of similar age, and that no coercion or exploitation can be involved).
I introduce the subject of gay marriage this way because I simply fail to understand why it is an issue. When I hear opponents argue against it I am reminded of the old Argentine saying about Catholic clergy opposed to divorce: if they do  not like divorce they should not marry. Or the more recent retort: if one does not like gay marriage then one should not marry a gay.
One thing is clear. The reproductive imperative does not apply to the legal recognition of straight marriages. Many heterosexual couples are childless by choice or circumstance. Some fulfill their parental instinct via adoption or with the help of surrogates, but others do not. In all cases they are legally free to marry.
Having thought about it a bit in light of recent arguments arising out a parliamentary bid to legalize gay marriage, it strikes me that the debate can be seen in simple game theoretic fashion.
Those opposed to gay marriage see the outcome if it is legalized in zero or negative sum terms. Awarding the right to marry to homosexuals will directly and negatively impact on heterosexual marriage. The belief is that awarding gays the right to marry comes at the immediate expense of heterosexual marriages, and that something will be directly lost or detracted from the latter if the former is permitted. Worst yet, the situation could become collectively negative sum if gays are allowed to marry: both gays and straights will suffer losses as a result (this is usually seen in the “children need hetero parents” argument, but extends to the costs of awarding full rights to married gay couples when it comes to family-oriented taxation, insurance and health benefits). The bottom line is that awarding equal marriage rights to gays (as a sexual minority) will impose costs or losses on the sexual majority, and therefore should not allowed under the lesser evil principle because collectively it is a lose-lose proposition.
Those in favor of gay marriage see the issue in even or positive sum terms. They see gay marriage as taking nothing from nor adding to hetero marriage, or in the most optimistic view, enhancing the value of marriage as an institution by extending the franchise to those of same-sex persuasion who wish to monogamously commit to each other in the eyes of the state (I will leave aside issues about non-monogomous unions and plural marriages in order to make the first-order point). In this view gay marriage should be encouraged as it deepens the familial bases of social stability and is therefore a greater good for society as a whole. It is a win-win solution.
Whatever other issues are put forth pro and con, it seems to me that this is the real crux of the issue. The rantings of bigots and extremists are not addressed here simply because they do not matter. I include in this God-botherers and other repressed and closeted people who act out of irrational psychological fear. Nor do I care to indulge the arguments of some extremists who think anything goes and there should be no prohibitions on sexual contact (say, the Man-Boy Love Association crowd). Here I am simply trying to distill the rational arguments in favor and against.
For me the issue is certainly even sum and probably positive sum. If we accept that one major source of social decay is the decline of the “traditional” family defined by heterosexual marriage, then it seems to me that one good response is to encourage the rise of “non-traditional” families as a complement. After all, “traditional” gender roles have been altered over the years (I would say for the better) without killing off the majority notion of marriage and family as the pillars of society, so I do not see how non-traditional marriage and families will be any more harmful to social stability than allowing women the vote or non-whites to have equal civil rights.
With regard to marriage specifically, there are already precedents for taking what was non-traditional or even taboo and making it commonplace. For example, marriages of mixed race or inter-faith couples, or those with intellectual or physical disabilities, once were viewed as suspect or dangerous (often on reproductive grounds), and in some cases legally proscribed. Today they are additional and welcome threads that rather than harm have added to the vibrancy of the matrimonial fabric of complex societies.
Anyway, this may be obvious to KP readers given their ideological dispositions. The point I am trying to make is that marriage is not a pie with a finite number of slices, where giving one slice to gays will mean that there is not enough left for straights. To the contrary, marriage should be seen as an expanding pie in with we can all share regardless of sexual preference because we commonly appreciate the order and stability it helps bring to our individual and collective lives. I reckon that is a very traditional way of thinking.
Market-oriented social engineering.
The political Right regularly accuses the Left of engaging in social engineering. Be it pushing such unnatural constructs as union and civil rights, health awareness and environmental concerns, the Right claims that the Left is out to control how people behave and even think. For freedom-loving individualists, this is anathema.
Consider my surprise, then, when I saw the Prime Minister saying that one of the reasons for the $2000 dollar “kiwi-first” purchase option with loyalty premium for Mighty River Power shares was to “change the investment psychology” of New Zealanders. It seems Kiwis put money into real estate and bonds, but not the stock market. Mr. Key thinks that his countrymen and women should diversify their portfolios into stocks, and the asset sales option is one way of promoting that. After all, it is not really prudent to have too many eggs in one basket.
I can see his logic. As a money trader and speculator, stock manipulation comes natural to Mr. Key. Sell short, hold, think long…he has the field covered. And truth be told, in a market environment such as NZ’s, it may not be unreasonable to urge people to spread their savings around. Higher rates of savings are traditionally linked to higher standards of living and growth, so by market logic such a move is both collectively and individually optimal.
What I find notable is the PM’s admission that the Mighty River Power stock purchase proposal is a deliberate attempt to alter the way Kiwis think about investment. In other words, it is a social engineering project that proposes to transform the psychological disposition of Kiwis when looking at their investment options.
But if that is the intention, how is that different from campaigns to get people to stop smoking, not drink and drive, use public transport, practice safe sex, license and desex their pets or stop littering? Are these not all examples of what the Right claims is undue interference by government on the rights of individuals to freely choose how to live their lives? Even if one admits that the share purchase option is not compulsory and still a matter of free choice (as are some of the examples just mentioned), is not the intention of the National government and Mr. Key to engage in exactly the type of social engineering–to include psychological indoctrination–that the Right accuses the Left of championing for its nefarious totalitarian purposes? Mr. Key has admitted that there is a social engineering intent to the proposal, so how is that good when other social engineering experiments are considered by the political Right to be bad? Or are some types of social engineering more acceptable to freedom-loving market individualists than others?
If the latter is true, than even the Right has to admit that social engineering projects embarked upon by governments are not always contrary to the small-governance/more market/individual choice principles that ideologically underpin Right thought. And if that is the case, then how can social engineering experiments be totalitarian, collectivist and fundamentally anti-democratic at their core?
Pardon me if I see a little contradiction here…