Tag: National

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Long and short of the NZDF spying scandal.

Accusations that the NZDF may have been spying on journalist Jon Stephenson during or after he was in Afghanistan researching what turned into a series of very critical stories about the actuality of SAS operations in support of the elite Afghan counter-terrorism Crisis Response Unit (CRU) have sparked both public outrage and government backlash. Numerous media entities and civil libertarians have protested the alleged spying as an infringement on press freedom, with the story now picked up by the US press because Mr. Stephenson was working for a US based news service when the spying supposedly occurred, and the spying may have been carried out by US agencies.

It is early days yet in the development of the story, but there are numerous angles that if explored could lead to a can of worms being opened on the NZDF and NZ government as well as the US administration. More immediately, if what has been made public so far is accurate then there are some NZ-focused issues to ponder, which can be broadly divided into matters of short and long-term consequence.

The specific accusation is that NZDF obtained meta-data about Mr. Stephenson’s phone records from US intelligence sources while he was in Kabul. This meta-data included the phone numbers of those he contacted or who called him while in theater, which could be “mined” and subject to network analysis in order to create signal maps and flow charts of the patterns of communication between them as well as with Mr. Stephenson (what have been called signals meta-data “trees”).

Implicit in the original story by Nicky Hager is the possibility that the content of Mr. Stephenson’s conversations and possibly his emails were accessed by the NZDF, or at least by foreign partners who then shared that information with the NZDF.

This is the short aspect of the story. Mr. Hager believes that Mr. Stephenson was subject to an NSA signals trolling scheme akin to that done by the PRISM program, and that the NZDF may have requested that Mr. Stephenson be surveilled by the NSA as a result of Stephenson’s investigation but also because the NZDF could not spy on him directly. However, since the SIS and GCSB had officers on the ground in Kabul and shared workspace with NSA and CIA personnel, the possibility was raised that they were somehow involved in the electronic monitoring of Mr. Stephenson, either has initiators or recipients of the NSA meta-data mining of his communications.

This may or may not prove true. The government and NZDF flatly deny that any spying, whether by the NSA, GCSB or NZDF, was done on Mr. Stephenson. Mr. Hager claims to have evidence that NZDF personnel obtained Mr. Stephenson’s telephone meta-data (presumably he has at least been shown that data by the NZDF personnel who are his sources).

One of these versions is apparently false, although there may be a twist to the story that bridges the veracity gap between them.

Since Mr. Stephenson was in a declared conflict zone in which a multinational military coalition was engaged, he was inevitably subject to military intelligence collection. Military organizations and their various service branches maintain human and signals intelligence collection units that focus on tactical aspects of the conflict zone. That would, at a minimum, include canvassing local telephone and email networks for information on potential threats and contextual background. Such collection is designed to facilitate “actionable” intelligence: information that can be used to influence the political environment as well as the kinetic operations that occur within it.

It is possible that Mr. Stephenson’s phone records were collected by an ISAF military signals intelligence unit. It probably was that of a US military unit. That unit may have identified Mr. Stephenson as a New Zealander and passed his information on to one of the intelligence shops located at Bagram Air Force base or elsewhere for sharing with the NZDF as a professional courtesy and a “head’s up” on who Mr. Stephenson was involved with.

If this is true, then Mr. Hager’s NSA/PRISM/GCSB/NZDF spying scenario is wrong. However, the issue does not end there. The big questions are whether the NZDF requested that an allied military signals intelligence unit spy on Mr. Stephenson, or if not, what it did with the information about Mr. Stephenson volunteered to it by its ally.

If the latter is the case, then it is possible that the NZDF took no action because it either considered the information marginal to its intelligence concerns or improper for it to receive and use. That in turn could have led to the destruction of that meta-data after it was received.

On the other hand, if the NZDF requested said information about Mr. Stephenson from a military intelligence partner, that would make any subsequent meta-data record destruction an attempt to eliminate evidence of that request or the use to which the data-mining was put.

It should be noted that such spying in conflict zones is usual and to be expected by anyone operating with them, journalists and non-journalists alike. Moreover, it is perfectly legal as well as reasonable for the NZDF to share information with its military intelligence partners, even if it includes information about unaffiliated NZ citizens operating in conflict zones in which the NZDF is deployed. Thus it would not have been unlawful for the NZDF to obtain Mr. Stephenson’s electronic meta-data whether it initiated its collection or merely received the results.

This extends to its use of the SIS or GCSB to assist in said collection, since the SIS is empowered to spy on NZ citizens and the GCSB was working in a foreign theater in which Mr. Stephenson was working for a “foreign entity” (McClatchy New Service), therefore making him a legitimate target under the 2003 GCSB Act. Whether one or both of these agencies was involved in the spying on Mr. Stephenson, should it have occurred, the eavesdropping could legally be conducted without warrant, again owing to situational circumstance.

However, just because something is legal does not make it right. This is where the long of the story comes into play.

Mr. Hager also revealed the existence of an NZDF operations manual, apparently drafted in 2003 and revised in 2005, that included at least “certain investigative journalists” along with hackers, foreign spy agencies, ideological extremists, disloyal employees, interest groups, and criminal organizations in the category of “subversive” threats (although it remains unclear as to when that particular passage was added to the text and who authored and authorized it). The definition of subversion was stretched to include those whose activities could undermine public morale or confidence in the government and NZDF. This included “political” activities deemed inimical to the NZDF image or reputation.

Whether it was included in the original version or added some time later (perhaps very recently), that definition of subversive threats is astounding. The language used borrows directly from the lexicon of the Pinochet dictatorship and Argentine Junta. It completely ignores the concept of press freedom in a democracy, which is premised on the autonomous separation of the media and the military as institutions. It lumps in so-defined subversive threats with physical threats to operational security in the field. That makes those identified as subversives enemies rather than adversaries, which allows them to be treated accordingly.

The wording of the passage about subversive threats in this manual says more about those who drafted it and the NZDF leadership that allowed it to become doctrine than it does about any real threat posed by journalists to the NZDF or government. Being embarrassed by critical reporting is not akin to being shot at. Even if written in the fevered years immediately after 9/11, the authors of that passage (and presumably others in the manual) display an authoritarian, anti-democratic mindset that is fundamentally inimical to democratic civil-military relations and, for that matter, democratic military professionalism.

Chris Trotter has noted that the NZDF, as a military organization, is authoritarian in nature and thus inherently un-, if not anti-democratic. I respect his view but disagree to an extent. Virtually all social organizations are hierarchical in nature–families, churches, private firms, unions, schools, bureaucracies, political parties and yes, the armed forces, police and intelligence agencies. That makes the egalitarian bases of democratic political society unlike virtually all other forms of social organization.

In other words, we are socialized in a hierarchical world and it is democracy as a political form that is the unnatural outlier.

Even so, although hierarchy can and often does tend towards authoritarianism, in democracies social organizations that are hierarchically constructed bow to the egalitarian meta-logic that posits that in their political interactions they are bound by notions of mutual respect, independence, corporate autonomy and non-interference. That is, they practice at a meta-level what they do not at the macro or micro-levels: in their interactions with each other groups forgo the hierarchical disposition that characterizes their internal governance.

This is important because the NZDF field manual that Mr. Hager exposed and whose existence is now confirmed by the government displays an authoritarian mindset and operational perspective that transcends the necessary hierarchy of NZDF organization. The NZDF is not inherently authoritarian because it is hierarchical in nature, but because, if the spying allegations are correct in light of the manual’s language about threats requiring military countering, its leadership displays an authoritarian disposition when it comes to things it finds objectionable, including pesky reporters (I shall leave aside Mr. Trotter’s remarks about military allegiance to the Queen rather than government or citizenry, although I take his point as to where its loyalty is directed and the impact that has on its transparency and adherence to democratic norms).

In sum: Consider what the manual says with regards to subversive threats in light of the well-publicized NZDF attacks on Mr. Stephenson’s professional and personal integrity that resulted in the defamation trial recently concluded (attacks that could well fit within the “counter-intelligence operations” recommended in the manual). Add in the claims by Mr. Stephenson that a senior military officer uttered death threats against him (the subject of a police complaint in 2011 that was not actioned). Factor in the NZDF admission in the defamation trial that it tracked Mr. Stephenson’s movements along with the possibility that the NZDF did acquire and utilize Mr. Stephenson’s telephone communications records in a capacity other than to detect tactical threats to units in theater. Further include Mr. Hager’s findings in his book Other Peoples Wars, in which the NZDF was seen to disregard government instructions regarding its conduct in foreign theaters and collaborated extensively with US intelligence (both military and civilian) in places like Bamiyan in spite of its repeated denials that it was doing anything other than building schools and roads in that province.

The conclusion? In light of this sequence of events it is very possible that the NZDF  has systematically operated in an unprofessional and anti-democratic fashion for at least a decade, and particularly with regard to Mr. Stephenson.

This is a serious matter because it gives the impression that the NZDF has gone rogue (assuming that the governments of the day were, in fact, unaware of the language in the field manual or of the alleged spying). Rectifying this institutional anomaly is important. How to do so is critical.

It is not enough to blame the previous government and retired NZDF commanders for the manual, then excise the offending passage while maintaining that no NZDF records of spying on Mr. Stephenson exist. Instead, the NZDF leadership during this time period needs to be held accountable for allowing anti-democratic attitudes and practices to take root within it and, if need be, action needs to be taken against those who authorized the language of the manual and/or the spying if it happened. Only that way can confidence in NZDF accountability and commitment to democratic principles be restored.

In order for any of this to happen, yet another inquiry needs to be launched. Given the debates about the GCSB and TICS Bills and ongoing concerns about Police and SIS behaviour, that says something about the state of New Zealand’s security community at the moment.

 

 

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The political logic behind National’s proposed GCSB reforms.

This weekend there will be national protests against the National government bills amending the 2003 GCSB and 2004 TICS Acts. Although the protests have garnered broad support across the political spectrum, they are likely to turn into generic rant fests against capitalism, imperialism, colonialism, and assorted other maladies rooted in the war-mongering Zionist 9/11 insider white corporate propertied Trilateralist patriarchy rather than a focused argument against the extension of the GCSB’s domestic spying powers. That is because the organizers, in Auckland at least, are the usual suspects seen at pretty much every protest, and who have agendas that supersede concerns about espionage.

The dress code will largely be black, with Vendetta masks optional.

In a way it is natural for the so-called rent a mob to take charge of the anti-GCSB protests. After all, they have the organizational capability, collective commitment and personal experience in doing such things, so who can blame them if they attach a few other grievances to the major subject of the protest? Who else can pull together major rallies on short notice, including the logistics of using public spaces, channeling marchers, making banners, supplying audio equipment and providing speakers? Most of those who have comparable skills are not exactly the types who would want to be part of such a “progressive” demonstration, and certainly would not want to be associated with the organizers of these protests (I am thinking of church and conservative groups here).

Having said that, this post is about what is likely to be a very effective National strategy for getting its proposed reforms passed in spite of the groundswell of opposition to them. It works like this:

National introduced reforms that grossly expand the GCSB’s powers of domestic espionage, using changes to the TCIS Act and the need for “infrastructure protection” as part of that new charter. It threw in some very minor cosmetic changes using the Kitteridge Report as a point of reference. It went for the overreach, proposing to allow, with cabinet approval, the GCSB to spy on behalf of agencies that have nothing to do with national security as well as conduct warrantless espionage on foreign entities and persons, to include NZ citizens employed by foreign firms and agencies (be they diplomatic missions, NGOs or private firms). It demands that telcos provide apriori backdoor access to their cable infrastructure for the purposes of both targeted and meta-data mining.

There is much more but this is the gist: it no only retroactively legalizes the illegal spying done on Kim Dotcom. It extends the scope of that type of spying much further. And as before, all of the domestic data collected under the new Acts can and likely will be shared with foreign intelligence partners, particularly those grouped in the 5 Eyes network.

National knew that Labour and the Greens will oppose the Bills for political and principled reasons, respectively, but does not care because it knew that it only had to win over Winston Peters or Peter Dunne to secure passage of the legislation. Since both of these one man shows are political opportunists at best, a few bones thrown their way in exchange for minor concessions was seen to do the trick.

As it turns out, Dunne leapt/caved first. In exchange for more cosmetic changes in oversight and reporting (none of which fundamentally alter the way in which the NZ intelligence community operates or the scope of its operations), the setting of a 2015 date for a general review of the NZ intelligence community and one significant backdown (the removal of cabinet authorization for GCSB assistance to agencies other than the Police, SIS and NZDF, which will now have to be authorized via legislation), Dunne has pledged his vote for the Bills. They can now pass essentially intact.

A brief aside: It would have been worth considering allowing the GCSB to render assistance by charter to agencies such as Customs and Immigration as well as the SIS, Police and Defense because they clearly have a national security role. Moreover, it may not be widely understood but the GCSB offers more than equipment and technicians to its counterparts. It has linguists, interpreters, engineers and other specialists in its ranks who can be of use to domestic security agencies on a case by case basis. The Dunne concessions do not address the how, why and when of any of this.

Getting back to the main theme, National knows that by pushing a maximalist line with regard to the expansion of GCSB powers it could accept something moderately less without discernible harm to its overall intent. Besides Dunne’s and Peters’ venality, it relies on generalized public apathy regarding the issue (although it must have been surprised by the extent of opposition that eventuated, especially from high-profile groups and persons), and it knows that it can dismiss any opposition as naive, politically motivated or both (which John Key has now done, and which this week’s protests will confirm in the minds of those supportive of or undecided about the proposed changes).

National also knows that should there be change of government in 2014, it is unlikely that a Labour/Green coalition will have intelligence community reform as a priority. If its modern history is any indication Labour will be quite comfortable with the amended legislation. Recall that it was under the 5th Labour government that most of the dubious GCSB spying on 88 NZ citizens and residents was done, and Labour will be able to use the revamped GCSB powers for its own purposes should it feel the need to. It is naive to believe that different governments do not have different intelligence priorities, something that is manifest in intelligence agency tasking.

One only needs to think of the role of the SIS in the Zaoui case and the suspected role of both the SIS and GCSB in the Urewera case to understand the concept as well as Labour’s disposition when it comes to such things. With National the shift in intelligence priorities is seen in its focus on commercial relations, to include patent and copyright issues that have little to do with national security but all to do with alliance relationships. Either way, governments call the shots when it come to intelligence priorities.

Labour and the Greens will have reversing other National policy reforms as the first order of business, be it the Holidays Act, aspects of the Employment Relations Act, issues connected with Health, Education, WINZ beneficiaries, public sector employment, economic use of public lands, etc. That list has far more immediate domestic political impact than revisiting the GCSB and TCIS Acts, especially if the expanded powers granted the GCSB are used with a modicum of discretion and selectivity.

Should Labour and the Greens assume government in 2014, they are saddled with running the 2015 general inquiry about the NZ intelligence community. That will take public time and political capital, which leaves less of each for the promotion of other initiatives. This could leave a Labour/Green government spread thin when it comes to imposing legislative and policy agendas, especially when considering that the partner’s priorities do not universally coincide in the first place (less so when other minority parties are involved). That could undermine the stability of the coalition, wreak their overlapped policy platforms, make for internecine conflict and set the stage for a National return to government in 2017.

Barring some unexpected reversal of fortune in the next few weeks, when it comes to domestic espionage and the GCSB’s expanded role in it, what we have here is a done deal. The Bills will pass. There will be more spies amongst us.

National’s short-term political logic looks to have proven correct, so far. Time will tell if its longer-term strategy will pay off as well.

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Gilmore’s ghosts

I disagree with Pablo’s post about media treatment of the Aaron Gilmore saga — but I only disagree a little. In my view the Gilmore case is “stuff that really matters”, but I do agree with Pablo that most of the coverage of it isn’t getting to the “stuff that really matters” elements of the case nearly well enough, and that it is displacing coverage of more crucial issues from the agenda. All the stories Pablo mentions are worthy of much more, and more in-depth reporting than they have received. Two other points Pablo makes are particularly valuable — that “blood in the water is not akin to developing real critiques of the way power is exercised”, and that “the problem of Gilmore’s unwillingness to resign stems not from MMP but from political party charters regarding their lists in an MMP environment.”

The Gilmore story is important, as are those others — but the coverage is so individuated to him that it makes the issues seem trivial, because ultimately, if you reduce the story to that of a drunken backbencher, it is. At the heart of the Gilmore saga is the abuse of power, and the problem is that the coverage is about Aaron Gilmore’s attempted abuse of his own power, not about a culture within the National Party and the government where the abuse of power is not merely acceptable, but routine and expected.

The deep questions — how such a megalomaniac got into an electable position on a party list; who, having been apprised of these born-to-rule tendencies after previous incidents of this sort, approved his position; and the implications of this for the health of our democracy — these are important questions. They haven’t really been asked, or answered, though Matthew Hooton, of all people, had a go at it early on.

The John Key National-led government has a lot of form for bad and self-serving appointments, and for the abuse of power. This has presented opportunities for the opposition to frame them as serial cronyists, which they haven’t been able to take. (I wrote a couple of things about this in the first term — it’s not new). And it’s still going: to hear locals tell it, how Gerry Brownlee and CERA are treating Eastern Christchurch isn’t all that different in its principles to how Aaron Gilmore treats waiters and public servants. (The difference is that they have real power.) Recent appointments on the basis of loyalty or malleability at the expense of quality or expertise include Catherine Isaac to implement charter schools, Ian Fletcher as head of the GCSB and Dame Susan Devoy as race relations commissioner.

This is a government which has been particularly unconcerned with even the appearance of due process, and this should be acknowledged in every story on this topic. There’s no credible argument they hadn’t done due diligence on Aaron Gilmore — he was already in Parliament once. Why do they appoint people like this, and why do they get away with it?

The hard truth is that political parties will overlook an awful lot if there’s a financial or electoral advantage to doing so, just as corporations will. Militaries will overlook almost literally anything, up to and including the mass murder of civilians. This is true of the “nice” guys as well as the nasty ones — the Obama administration’s continuing support of Guantanamo Bay and its increasing use of UAVs are two clear examples of this. Apple products are manufactured by the notoriously exploitative Foxconn (Apple is far from alone in this, but we’re supposed to think Apple is somehow better than others). For a recent local example, see the Labour Party’s dogged defence of Taito Phillip Field, whose abuse of vulnerable workers cut directly against everything a Labour party ought to stand for. There are many more.

The fundamental reason this sort of behaviour is endemic is that we — as voters, or in the corporate case, as consumers — reward it with our votes, or our wallets, or both. Parties and companies that eschew these methods tend to lose to those who accept them as an ethical cost of doing business because while we are happy to get outraged, when the chips are really down, we don’t actually care that much about this sort of thing. It doesn’t really change our behaviour.

The danger is that people start caring, and more importantly, start remembering, and changing their behaviour. If the Aaron Gilmore affair haunts the National party — and the other parties — such that they see a strong downside risk to appointing cronies, selecting megalomaniacs for their lists, and generally swaggering around as if they own the place, we’ll all be better off. If parties are forced to accept responsibility for their bad decisions, and as a consequence to select better people and implement better systems of accountability and conduct, cultures of power-abuse will abate. Incidentally, this is why I don’t favour a rule that allows parties to eject rogue MPs from Parliament* — the Nats bought Aaron Gilmore, they own him. We should judge the entire party by his actions.

But for this sort of change to occur, we need media coverage to develop those real critiques of the exercise of power, rather than critiques of an obnoxious individual who is ultimately just a product of larger cultural systems. That would make this sort of wall-to-wall coverage worthwhile.

L

* Though I still believe any credible political leader should be resourceful enough to find ways to persuade rogue MPs to resign.

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Happy for Gilmore

National has to be delighted about the coverage of their drunken bully boy last on the list MP, Aaron Gilmore. Coalition partner John Banks is in court on issues of political corruption. National is trying to ram through under urgency a gross expansion of domestic espionage courtesy of the amendments to the GCSB Act. What does the media focus on? Not-so-happy Gilmore. If I were the PM, I would milk the Gilmore story for all its worth, always looking chagrined.

There are very serious issues being discussed this week. US Attorney General Eric Holder is currently in the country. This is the person who authorized the FBI extradition pursuit of Kim Dotcom that resulted in the over the top raid on Dotcom’s home and subsequent legal debacle that is the case against him and which resulted in the Kitteridge report that recommended the organizational and legal changes now being proposed. As I allude to in the immediately previous post, the findings of a military inquiry about major failures in command and training in Afghan deployments have been released but not made public (huh?). The Green/Labour attempt to disrupt asset sales could be a watershed political moment.

Yet all of these take a back seat to the habitual escapades of a dolt working hard at being a lout.

Note to the media: although the salacious details of an inconsequential politician’s idiocy might seem worth mining, especially if it seems that he could wound the government, the real stories are dead and centre in front of you. Smelling shallow blood in the water is not akin to developing real critiques of the way power is exercised.

Note to the PM and the media that take his ignorance or obfuscation at face value: the problem of Gilmore’s unwillingness to resign stems not from MMP but from political party charters regarding their lists in an MMP environment. The two things are quite different.

Contrary to what the government would hope and TVNZ would like to believe, Seven Sharp is an idiot echo chamber, not a news aggregator, and therefore should not be used as a model for selecting which stories deserve emphasis.

Time to get off of the shellacked curly-cued imp and onto the issues that actually matter.

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CRIB 19

Phil Goff is in the spotlight for supposedly leaking the results of a suppressed NZDF inquiry into the suicide of a soldier in Bamiyan Province, Afghanistan, on April 3, 2012.  From what I can tell, what Mr. Goff has publicly commented about had already appeared in various media, so I do not believe that he leaked any suppressed details.

The inquiry focused on the deployment of the NZDF rotation to Bamiyan known as CRIB 19 (September 2011-April 2012). Besides the suicide, the inadequate training of CRIB 19 prior to deployment to Bamiyan has already been reported (as have complaints about the training of the ill-fated CRIB 20, which suffered five combat deaths in two ambushes). CRIB 19 only had three weeks (rather than five) of training prior to deployment (a 40 percent reduction), with some modules apparently taught on the flights into the theater or upon arrival. The deployment was also abruptly extended from six to eight months. The soldier killed himself in the last month of that extended deployment.

It appears that the NZDF is trying to suppress a full report on the command failures involved. The excuse that CRIB 19 could not receive full training prior to deployment due to RWC duties is laughable and an insult to the public’s intelligence. For example, since rotations to Bamiyan were planned well in advance, does it really seem plausible that those designated for deployment were diverted to crowd control and other logistical support connected to the RWC rather than to combat or at least conflict zone preparations? With a complement of 6000 Army and another 6000 in the Air Force and Navy, could not 100-200 soon-to-be deployed soldiers and sailors been spared RWC duties?

Given that there were/are serious hand-off and hand-on issues involving PRT/NZDF command leadership and personnel changes in foreign theaters, can it be true that the RWC threw a spanner into what was by that decision time an opened and extended international security commitment known locally as a longer tour of NZDF duty and commitment to major ISAF allies?

Put shortly: did successive New Zealand governments commit troops to Afghanistan (and Bamiyan) under false or changing pretenses and then blamed rugby for the contradictions in its policy enforcement?

As an aside, it should be noted that the size of the NZDF PRT contingent grew steadily over the years, from around 50 in the first rotation to nearly 200 in the last. That is one indication of the deteriorating security situation in Afghanistan during the course of the Bamiyan PRT mission. It would also indicate that more rather than less conflict-related training prior to deployment was advisable given the obvious mission creep.

If CRIB 19 personnel were diverted to RWC duties to the extent that their training time was shortened before they deployed into a combat zone and then their deployment was extended by two months without notice and without the usual leave provisions, then that is a command failure. Worse yet, if–and I emphasize that this is only an if–the training time was shortened as a  result of cost-cutting measures undertaken by the NZDF as part of the government’s across-the-board spending cuts, then it was a political as well as a command failure. Whatever the case, the reasons for the shortened training needs to be explicated in better detail than the simple “they were on RWC duty” line.

After all, sending people into harms way without adequate training is nothing short of criminally negligent.

Whatever happened to the disinfectant impact that the light of public scrutiny has on government (and this case NZDF) behavior? If ever there was a need for such light, it is in the case of CRIB 19.

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Selections matter

Justice Minister Judith Collins has appointed Dame Susan Devoy as Race Relations Commissioner.

She replaces Joris de Bres, who has served two five-year terms and is very well-regarded in Māoridom (at least) because (in part) he understands the importance of his own Dutch whakapapa, and the complexity of his place as an immigrant in Aotearoa. As Bryce Edwards and Morgan Godfery have noted, he has also shown an unusual willingness to comment on issues related to his mandate of opposing racism.

No doubt this fact has informed Collins’ decision to appoint someone less feisty. Dame Susan has little or no high-level experience in the field, and I suppose the thinking is that she brings a clean slate to the role or, to put it another way, her thinking and the degree of her engegement with the issues will be more easily influenced by the prevailing governmental culture. But Dame Susan is not a blank slate. A week ahead of Paul Holmes’ now-infamous Waitangi Day a complete waste column, she wrote one of her own that, although it employed language more befitting a Dame, nevertheless expressed similar sentiments. One year ago our new Race Relations Commissioner wished that instead of Waitangi Day we could have “a day that we don’t feel ashamed to be a New Zealander” and pined after a holiday like that celebrated in Australia, where — a few recent and grudging obeisances aside — 50,000 years of history and the brutal facts of the settlement of that land are blithely ignored in a jingoistic celebration of Ocker Pride.

That would be bad enough, but it gets worse: Dame Susan doesn’t have a clue what she’s doing:

Jacob McSweeney: “She admits she doesn’t have a wealth of experience in race relations, but she says the job isn’t overly complicated.”
Susan Devoy: “I don’t think it’ll make it any more difficult than dealing with any other issues, I mean, you know, this is all under the Chief Human Rights Commission [sic], and so therefore whether it’s disability or gender or employment or race, you know, the issues are not dissimilar. This is just about making it right for every New Zealander.”

(From Checkpoint.)

This is a terrible appointment. Anyone who thinks Aotearoa’s race-relations culture isn’t complicated is by definition not equipped for the job of guiding and guarding it. Not only is our new Race Relations Commissioner ashamed of our national day, but as far as she’s concerned it’s just another ism — revealing how little she must know about disability, employment or gender issues into the bargain.

So as far as that goes, she looks like the perfect post-ideological, post-identity selection for such a job: a common-sense managerialist who, to the limited extent that she understands the issues in play, finds them distasteful.

What a good opportunity for Labour! The National government, at a time when racial and cultural tensions are a major issue, clearly doesn’t value race relations sufficiently to put anyone competent in the job. But the Labour party has selection problems of its own: an Ethnic Affairs spokesperson who is a former race relations commissioner (Rajen Prasad) so far down the list that he doesn’t get a ranking; and a Māori Affairs spokesperson — and former minister — Parekura Horomia, also unranked. Labour is perilously short on brown faces, with none in the top five and one — Shane Jones — in the top 10, and him only recently returned from purgatory. Morgan Jack McDonald has some advice on this topic.

The hard truth is that Labour isn’t in a position to criticise the government on race relations issues. This is due to their internal failures of strategy, not due to exigencies forced upon them. For all that the appointment of Dame Susan Devoy to Race Relations Commissioner is terrible, the Key government has done a lot more than expected in other areas of race relations, particularly with regard to progressing Treaty settlements. That gives them cover. They’ve gotten away with worse than this appointment, and they’ll keep getting away with it as long as the major party of opposition lets them.

L

(Thanks to James Macbeth Dann for drawing my attention to Dame Susan’s column, which was plucked from obscurity by Coley Tangerina.)

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The left’s lose-lose SOE strategy

If it wasn’t already over on the night of 26 November 2011, the argument about the popular legitimacy of the government’s plan to partially privatise selected state-owned enterprises was finally put to bed when the pre-registration website for the Mighty River Power float fell over shortly after it went live. Whether this was a result of intentional underprovisioning to generate buzz or genuine organic demand doesn’t matter: within 24 hours 100,000 people had pre-registered interest in buying shares. That’s about one-third of the signatures opponents of the scheme took seven months to collect to force a citizens initiated referendum. The battle over whether these assets will be sold has been well and truly lost, and expending more political firepower on it is futile. The left needs to start organisaing around how they will be run.

This episode highlights two separate failures of strategy; one from the 2011 election, and one for 2014 and beyond.

Salience
Labour mistook asset sales for a high-salience issue and tried to run a campaign on it, when in reality too few cared enough for it to work. I have no reason to disbelieve the assertion that most people don’t want the assets sold. But the evidence of the election, the sluggish uptake of petition signatures, and the general lack of traction gained by the Labour party, for whom this has been the only coherent policy frame since the election, show that it is not an issue about which people are strongly exercised.

This strategy worked quite well for NZ First, and to a lesser extent the Greens, both of whom have the luxury of being able to appeal to a smaller base who care more strongly about a narrower range of issues. But it didn’t work for Labour, and the recognition that what works for parties of a relatively activist mindset doesn’t work for a broad-based, moderate mainstream party is long overdue. It failed. Time to move on.

Mandate
The notion that the government, having spent the entire year 2011 campaigning on it, lacks a mandate to proceed with asset sales is utter nonsense, as I wrote when the campaign kicked off. Labour and the Greens have decided the mood of low-level dissatisfaction with the plan that failed to win them the election will be sufficient to derail the policy now that it is on the move. They have decided that a citizen-initiated referendum, which worked so well for the opponents of the Section 59 repeal, is their best tool. Andrew Geddis wrote brilliantly about the problems with this in June last year, and here I essentially restate one of his arguments — that the Greens and Labour should be careful what they wish for. Both Labour and the Greens rely on the maxim that what’s right is not always popular. By insisting that policy be popular to be passed they risk painting themselves into a corner when next in government.

Plenty of bad policies are popular — three strikes, scaremongering about immigration, and most of the government’s welfare reforms are good examples. Despite what Josie Pagani might say, all are inimical to Labour and Green politics. How can they oppose these policies, if they’re so popular? Conversely, how can they insist on passing unpopular policies? Many of these are more central to the Greens than to Labour — the Greens are not a popular party; they poll just above 10%, so why are they embracing populism? Their policy agenda relies on making the electorate eat its greens, so to speak. Emissions control legislation, for example, will be deeply unpopular if it’s remotely effective. Likewise public transport and urban development policies, whose upfront costs are large and immediate but whose benefits are long-term and gradual, will be incredibly hard to pass if they insist on gaining the support of car-reliant suburban villa-owners.

Whether they “win” the referendum or not, at best Labour and the Greens will be vulnerable to legitimate accusations of hypocrisy whenever they propose policy that is merely somewhat popular, as opposed to being very popular. The will have demonstrated that consistency doesn’t really matter, and that could do deep harm to their long-term credibility. Worse yet, they could stand rigidly by their new-found populism and only propose policy that a clear majority of the electorate wants. Both strategies do more for NZ First than they do for Labour and the Greens.

The discussion has changed
The left has lost the argument about asset sales. Barring some sort of deus ex machina it’ll go ahead and will probably be a net vote winner for the government. But the apparent mismanagement of Solid Energy has given Labour and the Greens an opportunity to reframe the state-owned enterprise discussion, away from who owns these businesses to how they are run.

Both parties must be reluctant to do this, given that many of the bad decisions were made under the previous Labour government, and much of the lost money was poured into “green” tech like biofuels. But it is a necessary shift if the left is to own some of this debate. Regardless of what occurred before 2008, that things got so much worse under the current government, and that this was apparently a surprise to the shareholding minister is a serious failure of governance, and the public deserves answers about it. It’s a good opportunity for the left to highlight the point that there are good government managers and bad government managers, and that they will be the former, not the latter. The Greens have begun to do this by arguing that the government’s policies and directives to Solid Energy — including the lignite strategy, and changes to the Emissions Trading Scheme — effectively kneecapped the company.

Labour and the Greens should take the initiative and reframe this SOE debate now. If they persist with beating the dead horse of ownership, the risk is that the government will strengthen its case that the state simply isn’t fit to own businesses, paving the way for the rest of the SOEs to be sold as soon as they can secure a mandate to do so. The only alternative I can see for the opposition is a pledge to re-nationalise the sold assets. If they’re going to do that they need to get on with it — if they reveal this policy after the Mighty River Power float goes ahead the risk isn’t the argument that the state shouldn’t own businesses; it’s that Labour and the Greens are parties of big-government kleptocracy, trying to turn Aotearoa into the Venezuela of the South Pacific.

L

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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.

 

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Framing marriage equality to win

On Wednesday night Parliament voted 2:1 in favour of marriage equality, as defined by Louisa Wall’s Marriage (Definition of Marriage) Amendment Bill, which would permit two people of the same sex to marry. I haven’t been involved in any of the organised aspects of this movement, but I have watched it closely and lent some ad-hoc support to it. Here are some observations on some of the symbolic and framing issues in the campaign for marriage equality, and some discussion of why, and how, it was successful.

Unity and commitment
This campaign had two features that many do not. First, its proponents worked to find common cause with their erstwhile political opponents. This iteration of the debate was sparked by Barack Obama’s “coming out” a few months ago (I wrote about this here.) It has been a bipartisan project; groups and people from across the spectrum worked together. As many National MPs voted for the bill as did Labour MPs (30 each), splitting the National caucus almost in half. The United Future, ACT, māori Party and Mana MPs also voted for the bill. That is a diverse ideological range.

Second, they committed to really making the case, even though they believed it to be self-evident. Too many many good causes fail because, believing them to be oviously right, their originators fail to organise and articulate their “rightness”. This was not so with marriage equality. They employed a broad range of complementary strategies to appeal to different demographics and constituencies. The campaign spoke to queer people, obviously, but it also spoke to straight people; to the families and friends of those who might benefit from it. It spoke to urban liberals and rural conservatives and Māori and Pasifika and other groups. It spoke to atheists, but it did not generally alienate people of faith. It spoke to peoples’ heads, and to their hearts.

These themes — unity and commitment — are central to marriage, and they were central to this campaign for marriage equality.

Naming rights
One of the great battlegrounds in the Culture Wars is over names, and marriage equality won this hands down. This framing was not the incumbent: early battles were waged for “marriage equality” to supplant “gay marriage”/”same-sex marriage” as the preferred term, and it was successful. One example of this was by Wellington Central MP Grant Robertson, who appeared on the TV show Back Benches and suggested the change in terminology, insisting that “I didn’t just do gay parking or have gay dinner”.* This groundwork was laid long ago — there’s a substantial discourse about this piece of terminology, and all Robertson and others did was articulate it effectively. But that was important to do.

“Marriage equality” frames the cause as being about non-discrimination, a universal civil right nominally guaranteed in law and accepted (again, nominally) by a vast majority of people. It’s also an emotively-neutral term, which in this case worked to exclude stereotypically negative or controversial words — words like “gay” and “(same)-sex” — from the frame. These terms may not be generally offensive, but they do retain some valence as insults and evoke an “ick” factor in some people. Largely for this reason, opponents of marriage equality continue to use “gay marriage” and “same-sex marriage” almost exclusively. (In other contexts these terms, and stronger terms, were used within the campaign to shock or challenge, or were owned & celebrated — I certainly am not suggesting that such terminology be erased from the discourse.)

Note that there’s no discussion of “civil union” as a frame here. This was rejected outright by proponents of marriage equality as being a half-measure, a technocratic institution, and simply not an equal form of marriage.

Hearts and minds
“Marriage equality” is a strong intellectual and symbolic frame with some emotional undertones. Its intellectualism played a key role: it provided a rights-based analysis of the issues, and that rights-based analysis, in turn, provided a platform for a broader, less threatening set of frames.

The rights-based analysis on its own would probably not have won this battle. Intellectual arguments rarely win on their own, particularly when the issues are emotionally-bounded and tied into deep non-intellectual sentiments of culture, history, identity, family, faith and the role of the state, as marriage is. But an emotionally-oriented argument would probably have lacked the necessary rigour to succeed, as well, since the reasoning that marriage ought to be extended to all couples is not self-evident. The “marriage equality” frame appealed strongly to people who were willing and able to articulate the rights-based analysis, to coordinate and disseminate it, and to establish it in the public consciousness. They did so forcefully, with flair and humour, they scored the points and won the policy battle.

This activist community, who mobilised in the social and mainstream media, on the streets and outside the electorate offices, were not themselves the target audience — there aren’t enough of them and they are not widely-enough distributed to strongly influence politicians’ sense of electoral self-preservation. But these actions provided cover for the less-intellectual, but ultimately more emotionally resonant frames — especially “legalise love” — to thrive, and to reach the wider non-activist community and make them care.

“Legalise love” framed marriage equality as being about the recognition of already-existing reality, of acceptance, and diversity, and contemporary family values. Whereas “marriage equality” made a case for what was just, “legalise love” made a case for what was right. Like the best Australian Greens campaign ad the Australian Greens never made, it asked people to think of marriage as being “about love, not laws”; it evoked peoples’ experience of the gay people in their lives — their parents and children, brothers and sisters, friends and colleagues — and asked people to identify with gay couples, not in terms of their practices in the bedroom or their sense of fashion, but in terms of the quality of their love. It asked people to consider how hard it would be for their own relationships to have been declared verboten by a state and society that just didn’t get it. These are deep, emotional arguments that strike people in ways that an intellectual policy debate, no matter how clever, cannot.

Another strength of “legalise love” was its breadth. Whereas the intellectual “marriage equality” arguments were focused and direct, arguments about love and the quality of relationships touched on more expansive religious and moral themes. Importantly, the cause was framed as being integral to conventional morality, not a subversion of it, and as modern “love thy neighbour”, “live and let live” Christianity in practice, the bloviations of a handful of self-appointed conservative demagogues notwithstanding. Marriage equality was not framed as a challenge to family values, but as a manifestation of family values; to paraphrase a number of politicians, including London’s Conservative mayor Boris Johnson: marriage is great, let’s have as many as possible. David Farrar made this case well, here.

Double-framing a cause like this — running complementary intellectual and emotional arguments in parallel — is quite hard to do without getting your narratives mixed up and turning incoherent, and too often the weakest aspects of either frame can be exploited by an opponent. But if you can pull it off, it really works. It worked for Obama in 2008 (“hope” and “change”), and it worked in this case. Where the cause came under attack from rational arguments (admittedly this was rare), rational arguments were able to be deployed in defence, and when it came under attack from moral and emotional arguments, those were available as well.

But while the intellectual arguments were effective at laying the groundwork, in my view it was these emotional and moral themes, rather than the logical, rational arguments that underpinned them, that did the heavy lifting of persuasion, of shifting peoples’ consciences, not just their brains. The diverse range of arguments and appeals permitted the campaign to reach a wide demographic range, to reach into faith communities and to appeal to people outside the activist clique. Most importantly, this reach made clear to the MPs whose job it was to vote on the matter that they could, but also that they should vote in favour.

Not done yet
I have used the past tense throughout this as my reference has really only been the campaign so far, but it cannot be emphasised enough that the battle is not won. An unknown but significant number of MPs have voted for marriage equality to go to select committee for further public discussion, but have made no guarantees to support the bill in future. As Jane Clifton argues, there is a coterie of socially-conservative MPs who saw which way the vote was going to go and decided to be on the right side of history as “both a tactful and a time-buying” strategy. There will be attempts to derail this cause, to minimise and distract from it, to dilute and to neuter it. The first of these may have already emerged: Whanganui MP Chester Borrows, perhaps seeking to reprise his role as the great diplomat who proposed the “sensible” compromise position on the Section 59 child discipline repeal, is said to have proposed a compromise position on marriage equality.**

New Zealand’s Parliament passed marriage equality legislation through its first reading, and the lower house of the Tasmanian legislature is set to pass its own. I have not followed that campaign closely, but from what I have seen, many of its framing and symbolic characteristics are similar to those observed here. It is a policy whose time has come, and this is a winning strategy to enact it. Marriage equality holds the high ground; now we must retain it.

L

* Not 100% sure about the phrasing of this, and since TVNZ removed old TVNZ7 episodes from their on demand site, the video is no longer available to check. I’va amended this to match Grant’s recollection. Another twitter user, Jessica Williams points out that it was originally American comedian Liz Feldman.
** I missed this announcement and have been unable to find any detail on Borrows’ proposed compromise but I understand it was announced on Wednesday — if you have details, I would appreciate hearing them.