[This article of mine was published in the New Zealand Herald on 15 March 2016. It was in response to the report of Intelligence and Security Agencies Review, released on 9 March.]
The intelligence services report by Sir Michael Cullen and Dame Patsy Reddy sheds more light on the GCSB’s work with the Five Eyes network, but it also leaves several questions unanswered. Since the Snowden revelations there has been a concern that our Government Communications Security Bureau is involved in “mass surveillance”. The Government has denied that it is.
Cullen and Reddy describe how the GCSB collects communications from the geo-stationary satellites visible from its station at Waihopai, near Blenheim.
First, the bureau “intercepts a set of communications, most of which will be of no relevance and will be discarded without ever being examined by the [GCSB] analyst. This is the haystack in which the needle must be found.”
Second, “the GCSB filters intercepted material for relevance using search terms.” These search terms could be subjects or groups and could take in lot of people, some of whom would be New Zealanders.
Although the GCSB is supposed to be targeting “foreign intelligence” it is not illegal for it to retain Waihopai’s intercept intelligence on New Zealanders if it was “incidentally obtained intelligence”, that is, if the New Zealanders weren’t a specific target, and the intelligence was relevant to the GCSB’s security objectives.
In addition, many New Zealanders can legally be targeted by the GCSB as “foreign persons” if they are active in “foreign organisations”, the definition of which is broad enough to include Greenpeace or the New Zealand subsidiary of a multi-national corporation. Former Prime Minister Jenny Shipley qualifies as a “foreign person” because she is on the board of the China Construction Bank.
The Cullen/Reddy report removes the problem of “mass surveillance” by saying it “suggests a kind of active monitoring of the general population that does not occur”. However, I don’t think any critic of government surveillance has ever envisaged the surveillance going that far.
An over-the-top definition of mass surveillance avoids the reality of a mass collection of communications data at Waihopai and the possibility that the international phone calls or emails of any New Zealander could be caught in the net, accidentally or not. In theory, their communications could be subsequently analysed by a GCSB operative.
The next question is what happens to the “haystack” of communications collected at the Waihopai spy station. The report says that most of these communications “will be of no relevance and will be discarded without ever being examined by an analyst”.
They may be discarded by the analyst, but to what extent are they stored, either here or overseas, for later mining by the GCSB or its Five Eyes partners? We know that the US National Security Agency has access to raw communications from its Five Eyes partners, and that it stores billions of communications for later analysis.
This is relevant to the concern, correctly raised by Cullen and Reddy, that close co-operation with Five Eyes partners “creates a risk of some loss of independence, both operationally and potentially also in relation to our intelligence, defence and foreign policy settings”. Our national interests “do not and cannot exactly coincide with those of any other country”.
The reality is that when New Zealand is sharing raw communications data with other Fives Eyes partners some of the intelligence they glean from it will be used for foreign policy objectives which are not the same as New Zealand’s.
But this seems to be a secondary consideration to the net benefit Cullen and Reddy say New Zealand receives from Five Eyes intelligence sharing. It is hard to judge this as any benefits are largely invisible to the public.
Have any terrorist plots been found? Not as far as we know. Have our trade interests been advanced? No one has pointed out how. Has our diplomacy been assisted? I can’t see any evidence.
Yet the downside of New Zealand’s participation in Five Eyes surveillance is substantial. There was a cool reception in Beijing when the Snowden papers revealed the GCSB’s spying on China. Joining intelligence forces with America against China is hardly the way to optimise our trade with that important country.
New Zealand’s ambassador was called in to the Brazilian foreign ministry when it was revealed the GCSB had been gathering Five Eyes intercept data on Brazilian Roberto Azevedo in an unsuccessful attempt to stop him heading off our Trade Minister Tim Groser to become Director-General of the WTO.
Yes, we need to be concerned about possible terrorist activity. But do we need to be in the Five Eyes to detect any plots? The reality is that the police and intelligence forces of friendly nations share information on terrorism (and other international crime) regardless of who is in or out of the Five Eyes.
I don’t think Cullen and Reddy make much of a case for us to stay in this five-nation spy network.
Let’s look at the upsides and downsides of this register, from both a legal and practical standpoint.
Most people would agree with the Attorney-General that the Bill addresses an important problem. As Chris Finlayson says, “Child victims of sexual abuse are amongst the most vulnerable and the resultant harm is often very serious and long lasting.”
The Attorney-General rightly sees the legitimacy of the Police having more information about sex offenders via a register but notes that “there is a lack of evidence” from other jurisdictions that such registers have “improved public safety.”
According to the Attorney-General, the Bill imposes on released sex offenders “disproportionately severe treatment or punishment”, contrary to Section 9 of the Bill of Rights. It does this when it imposes on the former prisoners lifetime reporting obligations without any right of appeal as to whether “they no longer pose a risk to the lives or sexual safety of children”.
In the Bill former offenders must report any association with children, where they live and work, their car registration, phone numbers and their email addresses. They also have to give 48 hours notice of their travel to another town and where they will be staying.
Chris Finlayson judges that this reporting system also constrains two other Bill of Rights provisions. He says that “the right to freedom of movement in s 18 [section 18] is subjected to an advance notification requirement and the right to freedom of expression is s 14 [section 14] is engaged because reporting obligations are a form of compelled speech.”
Adding to civil liberties concerns is the comment this week by Social Development Minister Anne Tolley that the register may later be expanded to include other serious offenders, not just sex offenders.
Soon we may have a swathe of former criminals who have completed their sentence but are prevented from putting it all behind them and starting a new life. It doesn’t help in rehabilitation if, whatever they do to improve themselves, former prisoners are subject to close Police monitoring for the rest of their lives.
The child sex offender register will impede the integration of former prisoners back into society. It sends a signal to families and communities that these are dangerous people to be kept at arms length, and employers will be wary of taking them on.
A common feature of child sex offenders is a lack of empathy for the plight of their victims. It is harder to teach offenders empathy if we consign them to a lifetime of social rejection. Treating them as outcasts doesn’t help to reduce the chances that they will reoffend. In fact, it increases them. A socially isolated former prisoner is more likely to revert to a deviant way of relating to children.
With a humane approach to former child sex offenders we can reduce their reoffending below its currently relatively low level. Research conducted for the Corrections Department in 2011 showed that less than 4 per cent of released child sex offenders were re-imprisoned for another child sex offences over the subsequent five years.
It doesn’t help to exaggerate the danger and make people more frightened than they need to be when a former child sex offender settles in their neighbourhood. We have seen cases whereby fear in communities has resulted in vigilante action to drive the person out. This only slows the rehabilitation of the offender and doesn’t help those in the next community they settle in.
I am concerned that the child sex offender register will not, in practice, remain confidential to the Police. Some information will probably leak, only to be used by community vigilantes, to the detriment of everyone concerned.
Submitted by Keith Locke on 13 August 2015 to the official review being conducted by Sir Michael Cullen and Dame Patsy Reddy
In this submission I will address the following Term of Reference in the Review.
Point 1. The legislative frameworks of the intelligence and security agencies
Point 2. The oversight of the SIS and GCSB.
Point 3. The Countering Terrorist Fighters Legislation
Point 4. The definition of “private communication” in the GCSB Act.
Point 8: The handling of security sensitive information in court processes
My recommendations will be made as part of the discussion on each point.
The legislative frameworks of intelligence and security agencies
My main aim in this section is to look at the particular functions outlined in legislation covering the SIS and GCSB and assess:
a. the extent to which these functions are best addressed by other government agencies, and whether the SIS or GCSB’s involvement is redundant, or is adding unnecessary complexity.
b. The extent to which the mandate provided by the legislation is too broad and undermines civil liberties and the right to dissent.
1. The Security Intelligence Service
The legislated functions of the SIS fall into two broad categories, investigating activities which are illegal and investigating matters that are legal.
The illegal activities, as specified in the NZ Security Intelligence Service Act 1969, are sabotage, terrorism, espionage, and “undermining by unlawful means the authority of the State in New Zealand.”
In practice, the investigation of these specified illegal activities is mainly carried out by the Police, not the SIS.
Take, as an example, the sabotage in 1985 of the Rainbow Warrior, which successfully investigated by the Police, resulting in some of those responsible being tried and convicted. A more recent case of potential sabotage (whereby an anonymous person threatened to put 1080 in milk) is being investigated by the Police.
Espionage is now a somewhat esoteric offence. With the Cold War over New Zealand is no longer confronted by any “enemy” countries. People still steal confidential information, but when this happens they are not prosecuted for espionage but under other provisions of the Crimes Act. These investigations are invariably undertaken by the Police, not the SIS. For example, the Police were the agency delegated to investigate the theft of Don Brash’s parliamentary emails.
Terrorism is also the subject of Police investigation and prosecution, as in the case of the Rainbow Warrior sabotage, which also qualifies as terrorism, in that a civilian was killed. The only case where the Terrorism Suppression Act 2002 has been brought into play has been in a Police investigation, Operation 8, regarding some arms training in the Urewera. The terrorism charges were later dropped.
In the NZ SIS Act, “subversion” is defined in a criminal manner, as “attempting, inciting, counseling, advocating, or encouraging… the undermining by unlawful means the authority of the State in New Zealand.” However, a legal case would not be commenced under this broad definition. If there was such a case it would be dealt with by the Police under the conspiracy to commit a crime provisions of the Crimes Act. I am not aware of any SIS investigation in relation to “subversion” that has resulted in a prosecution and conviction of anyone, in the entire history of the SIS.
Part of the definition of subversion in the SIS Act is quite dangerous, particularly in the hands of a relatively unaccountable state agency like the SIS, whose work is shrouded in secrecy. This is the part of the definition relating to the “undermining by unlawful means of the authority of the State in New Zealand”. Every day of the week, the government’s critics (both inside and outside Parliament) are undermining “the authority of the State”. Occasionally this undermining “the authority of the State” takes a technically “unlawful” form as when Greenpeace members climb the Beehive to protest government inaction on climate change, or sit on an oil rig. Such non-violent “unlawful” action is invariably handled by the Police, not the SIS, and usually in a respectful manner.
The danger of the application of this definition of subversion is that it is used by the SIS to justify spying on political activists on the grounds that some political protest may be, even if only marginally, “unlawful”. The comprehensive spying on political activists, particularly those focusing on international issues, is illustrated by my own voluminous SIS file, which covers a 51 year period, from 1955 to 2006. It should be noted that I don’t have a criminal record and in the file there is no indication of illegal activity. Simply, by having dissident opinions I was deemed to be undermining the “authority of the State” and a legitimate target of surveillance – although clearly this was in breach of the NZ Bill of Rights.
The definition of “subversion” in the NZSIS Act also encompasses inciting “the overthrow by force of the Government of New Zealand”, but this has almost no relevance to the situation in New Zealand now or in the foreseeable future. There is no evidence that anyone is contemplating the overthrow New Zealand’s well-entrenched democracy. Our best protection from any such views is for us to remain a democracy.
In sum, when our security is threatened by the forms of illegal activity specified in the NZSIS Act our best protection is the Police. The Police have handled all the cases we know of in this respect. In this regard, having the SIS as an agency looking at illegal activity is an inefficient use of government resources. There is an unnecessary overlap between Police and SIS work in this domain. If we didn’t have a Security Intelligence Service addressing criminal behaviour we could free up resources for a more effective and integrated response under the umbrella of the Police.
Another reason for not having two agencies looking at politically motivated criminal activity is that we have so little of it, outside of episodic non-violent protest action of the Greenpeace type.
We have had no terrorist incidents since the Rainbow Warrior bombing of 1985 and the Wellington Trades Hall bombing of 1984 (which may or may not have been politically motivated).
We can’t rule out a future terrorist incident, but such incidents are likely to be rare and exceptional occurrences, and the Police are well set up to detect them. It would be best if intelligence in this area was kept within one agency (the Police) rather than spread across two (the Police and SIS).
The definition of “security” in the NZSIS Act also includes a mandate for the SIS to investigate perfectly legal activities conducted by foreigners that “are clandestine or deceptive, or threaten the safety of any person” that “impact adversely on New Zealand’s international well-being or economic well-being”.
Such a definition is dangerous in a democracy because in practice it gives the SIS the mandate to spy on both New Zealanders and foreigners going about their legitimate business. Let’s look at the problems which flow from this definition.
Firstly, in our global age many, if not most, New Zealanders are involved in “foreign organisations” (as defined in the Act) be they social, political, economic, cultural, sporting or technological. We are more and more part of a world community. The attention in the legislation to foreigners and foreign organisations is a legacy of the Cold War times, when there were deemed to be adversary nations.
Secondly, in any democracy you are entitled to be “clandestine or deceptive”, that is to act in a confidential manner. In the current political debate around whether New Zealand should sign a Trans-Pacific Partnership Agreement both the pro and anti sides are working “clandestinely” (read confidentially) with “foreign” governments and international agencies to advance their cause. Also, both sides accuse the other of being “deceptive”. That is all part of democratic political debate.
Thirdly, it is dangerous to give a secret intelligence agency the power to determine what might “impact adversely on New Zealand’s international well-being or economic well-being.” The spy agencies will inevitably see adverse impacts pretty much as the government sees them, not as critics see them. The debate over the Trans-Pacific Partnership is again a good illustration. Both sides (the government and its adversaries) accuse the other of advocating policies which (to use the words of the Act) “impact adversely on New Zealand’s international well-being or economic well-being”. Critics of our current government also argue that the TPPA would place an extra burden on Pharmac, and by doing so (again in the words in the Act) “threaten the safety” [of New Zealanders]. Government advocates would disagree.
These are matters for debate, not SIS spying. With the SIS empowered to spy on those who it judges to be impacting detrimentally on our “well-being” they will almost always focus on critics of the government, not the government itself. Such an assessment of bias in the use of SIS surveillance powers is not fanciful. As my SIS file shows, the SIS monitored me for 51 years purely because my political activities (such as opposing the Vietnam war and apartheid) were not deemed to be in New Zealand’s interests. Please note that this is not ancient history. My file goes up to 2006. It shows that when I was a Member of Parliament the SIS was monitoring, with concern, my visit in 2003 to Sri Lanka on a peace mission.
The problem is not just that the definition of security in the NZSIS Act opens the door to SIS monitoring law-abiding critics of the government. There are often negative consequences for those dissenters being spied upon. Many law-abiding public servants, for example, have had their careers inhibited by negative SIS security vets. That is, they have lost jobs, or promotion, purely because of their critical political views, not because of any suggestion of illegality, or their ability to keep confidences. I am aware this is still happening.
Finally, under the legislated functions of the SIS, there is a requirement that the SIS, “obtain, correlate, and evaluate intelligence relative to security” and to advise Ministers and other agencies.
The relevant question here is whether this function of gathering and relaying information needs a separate agency like the SIS, or whether those functions are covered adequately by other state agencies. On matters relating to politically motivated criminality we already have the Police with its own intelligence gathering units, its own surveillance capacity, and systems to exchange information with other state agencies, like New Zealand Immigration. In general intelligence gathering, unrelated to criminality, I believe there is sufficient capacity in the other state agencies, such as the Ministry of Foreign Affairs and Trade and the National Assessments Bureau. Both MFAT and the NAB, along with other state agencies, regularly update the appropriate Ministers.
2. The Government Communications Security Bureau
The key question when analyzing the legislative framework of the GCSB is similar to that addressed above in relation to the SIS. That is, what essential functions does the GCSB have that are not better addressed by other state agencies?
The Police (with their already wide powers to intercept communications) are adequate to detect criminality, whether it be by New Zealand citizens or foreigners. There is no significant evidence, in terms of cases brought before New Zealand courts, that we need yet another agency, the GCSB, to detect criminality.
There are actually more downsides than upsides to GCSB operations as currently pursued under existing legislation. The GCSB’s operations, as part of the Five Eyes network, seem largely concentrated on intercepting the private communications of governments in the Asia/Pacific and Latin America. This has drawn criticism from leaders in countries as diverse as China, Tonga, Brazil, and the Solomons. One can question whether offending such friendly governments is consistent with the Bureau’s objective in 7 (b) of the GCSB Act, to contribute to “the international relations and well-being of New Zealand”. The GCSB’s spying on China, as recently revealed, is hardly consistent with New Zealand’s desire to enhance trade with this economic superpower. However, it has been impossible to have a two-way debate with the government on the pros and cons of such spying. To date, New Zealand governments have ruled out any debate on the nature of this spying on “national security” grounds, saying it is a matter for them and them alone to determine.
We can conclude, in the absence of evidence to the contrary, that we are well enough served in collecting information from overseas by our diplomats, the Ministry of Foreign Affairs and Trade and the National Assessments Bureau, who also draw the best information that academics and journalists can provide.
One of the GCSB’s functions is cybersecurity [Section 8B in the Act], helping to protect computers and information systems. This is valuable work, but would be better done by a stand-alone cybersecurity agency, with the involvement of other state agencies. One key reason why the GCSB is not the best agency to fully protect New Zealand computers from intrusion is that its role in doing that conflicts with its other role, as an intelligence gatherer, in ensuring all computer systems have a “back door” enterable by the intelligence agency. As many computer system operators have pointed out, this requirement enforced by the GCSB only makes their systems more vulnerable to hackers.
3. A conclusion regarding the status of the SIS and GCSB
In terms of the useful functions of the SIS and GCSB, as laid out in legislation, they would be better served via other existing state agencies. This would end the bureaucratic overlap of SIS and GCSB work in these areas with that of other agencies, and lead to a better use of government resources. Among the relevant state agencies to do this work are:
1. The Police, who already have a mandate to investigate all criminality, including politically motivated criminality; to use the surveillance tools already available to them; and to coordinate their crime-fighting with the Police of other nations.
2. The Ministry of Foreign Affairs and Trade and the National Assessments Bureau, who already have a mandate to collect all foreign intelligence relevant to the nation.
It is a breach of our right to freely dissent, for a state agency to monitor of the political activities of New Zealanders who are not engaged in either criminal or potentially criminal activity. We don’t need an SIS or a GCSB for this purpose.
As a small, independent nation, New Zealand would be better off withdrawing the GCSB from the Five Eyes electronic spying network and as a consequence not engaging in electronic spying on other nations and naturally upsetting them, with no net gain for our nation.
The state would conduct its cybersecurity tasks more effectively in a new stand-alone cybersecurity agency, which didn’t have the conflict of interest that the GCSB has when it is also an intelligence gathering agency.
Going along the path I have just described would logically result in the disbanding of the SIS and the GCSB, and then the repeal of the legislation which currently guides their work
I am aware that my suggested disbanding of the SIS and the GCSB may appear too challenging for the review team, but I would favour any amendments to the SIS or GCSB legislation that are in line with the criticism I have made above.
Oversight of the SIS and GCSB
The present Intelligence and Security Committee is inadequate for purpose. It should be replaced by an Intelligence and Security Select Committee, as envisaged by my Intelligence and Security Committee Repeal Bill, which was drawn from the Parliamentary ballot in 2000, but voted down at the First Reading.
Such a Select Committee would have several oversight advantages. It would be more representative of the Parliamentary parties; it would not have the person overall in charge of the intelligence services (currently the Prime Minister) chairing its sessions. It would also tend to be more open, being subject to normal Select Committee rules.
Like any Select Committee it could hold hearings in secret, where necessary, but the bias would be towards openness, where practical, rather than the other way around, as is presently the case. The Review Team will no doubt look at those overseas oversight practices which are more open than ours. The robust public interrogation of intelligence officials conducted by US Senate are a case in point.
There could also be more open discussion of the general targets of SIS spying (not individual targets, of course). For example, as an MP I could never get the government or the SIS to engage in any debate over the extensive, but secretive, SIS spying on the Sri Lankan Tamil community which has detrimentally affected the immigration status and job opportunities of many Tamils living in New Zealand. This spying on Tamils raised several questions which should have been debated.
1. Was the general sympathy of the Tamil community for the Tamil Tigers based on support for its nationalist cause (greater autonomy or independent for northern Sri Lanka) rather than being support of terrorist activity which the Tamil Tigers sometimes engaged in?
2. Is it not true that the Sri Lankan Tamil community (including Tamil Tiger supporters) was law-abiding and members of it had no intention of involving themselves in violent action here? [It should be noted that, to my knowledge, there have been no cases over the years of New Zealanders who support nationalist struggles abroad which have a terrorist element (eg. Nelson Mandela’s ANC or the IRA) contemplating violence in New Zealand. Isis, however, presents a new and somewhat different problem.]
3. Is it not true that supporters of Sri Lankan government repression of the Tamils were not targeted by the SIS even though all reports from Amnesty International, etc. show that the Sri Lankan government more than matched the Tamil Tigers in its terrorist activity (in terms of the kidnapping, murder or assassination of civilians)?
The Inspector-General of Intelligence and Security performs a useful function, and it is good the office is now being better resourced. I suggest removing all restraints on which material the Inspector-General can access. In that respect I support the deletion of Section 11 (4) of the Inspector-General of Intelligence and Security Act 1996 which, except in cases where it is “strictly necessary” restrains the Inspector-General from inquiring “into any matter that is operationally sensitive, including any matter that relates to intelligence collection and production methods or sources of information.” We should be able to trust an Inspector-General to freely inspect such material.
The Countering Foreign Terrorist Fighters legislation
I favour the repeal of this legislation. My starting point is that the NZ Bill of Rights grants every citizen “the right to leave New Zealand”, and this is backed up by the UN Declaration of Human Rights which states that “Everyone has the right to leave any country, including his own, and to return to his country.”
Taking a citizen’s passport away when they haven’t committed an actual criminal offence runs counter to this basic right to leave one’s own country. It is dangerous for a government agency to be given the power to judge a citizen’s “intention” to commit an offence after they leave the country, and penalise them accordingly.
In practical terms, also, we don’t need this legislation. We are not swamped with New Zealanders going off to fight with Isis and coming back to commit terrorist acts. In fact, there have been no terrorist incidents here. The legislation could end up being counter-productive in that it would drive any people becoming sympathetic to Isis underground and further away from wise counsel that they should not go overseas to fight.
It is much more productive, and in line with our basic human rights, to have an open debate on which wars New Zealanders should fight in. I have disagreed with New Zealanders going off to fight with the American and British armies in Iraq, and the Israeli army in Palestine, but I don’t think they should be prevented from going – despite the documented atrocities committed by those same armies, including atrocities that could be described as terrorism.
Definition of a “private communication”
Point (a) in the definition of “private communication” in the GCSB Act is adequate for our purposes. It includes communications “made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication.”
For example, an article on a website is not a “private communication” but any Facebook site accessible only to one’s Facebook “friends” is a private communication.
Point (b) in the definition should be deleted because it opens the door to the interception of communications participants thought to be private, and is subject to a variable interpretation. It excludes as “private communications” cases “in which any party ought reasonably to expect that the communication may be intercepted”.
Law processes for dealing with security sensitive information
It is dangerous to depart from an open legal process in criminal matters, or other matters where one’s future could be detrimentally affected (eg. in cases relating to one’s immigration status).
Classified information is commonly politically charged, and subject to political bias. Also, the fact that it is secret, and thereby less likely to be subject to corrective challenges, means that it is often wrong, either in its presentation of facts, or in the interpretation of those facts.
The introduction of “special advocates” for the affected person, as in the Immigration Act, offers limited protection for that person. The special advocate is legally unable to communicate any of the classified information to the affected person or their lawyer to enable it to be properly assessed. It may be worth the Review Team’s time to talk to lawyer Stuart Grieve, who was a special advocate in the Ahmed Zaoui case, on these matters.
In practical terms, we don’t have a history of cases where guilty people haven’t been convicted because security sensitive information hasn’t been able to be used in the form of secret evidence. That is another reason for not departing from the guarantee in the NZ Bill of Rights that every defendant should be subject to a fair and open trial, with access to all the evidence against them.
[This was published on Evening Report on 9 March 2015. http://eveningreport.nz/2015/03/09/keith-locke-no-public-accountability-for-the-gcsb/]
By Keith Locke
“YOU SHOULDN’T WORRY IF YOU’VE GOT NOTHING TO HIDE” is one of the mantras trotted out when New Zealanders complain about the GCSB having access to their private communications.
Let’s turn that mantra around as ask those running the GCSB why the feel they have to hide from public everything they do. Is it because, as recent revelations show, the agency is more about serving the interests of the US government than that of New Zealanders?
When I was an MP I ran up against a brick wall when I asked any questions about the GCSB, the Waihopai spy station or the Five Eyes. “We don’t comment on matters of national security” was the routine reply from the Prime Minister (Helen Clark followed by John Key).
The PM’s stonewalling has become even more absurd now that the Snowden documents have shown that the GCSB is intercepting and collecting virtually all the communications in Pacific Island states.
When asked whether former GCSB head Bruce Ferguson was right that the agency does engage in mass communications data collection, the PM said he didn’t know what Ferguson meant? He also said there was no obligation on the GCSB to inform any New Zealander that details about their private communications were being collected. Everything the GCSB does is lawful, Key, claimed, forgetting the Privacy Act and forgetting his previous assurance that the GCSB Act does not allow for mass surveillance of New Zealanders
To me there doesn’t seem any question that the GCSB is illegally engaged in the wholesale collection of the communications of any New Zealander visiting or living in a Pacific Island, or any New Zealander emailing or phoning someone in the Pacific). The targeting of Pacific Island government communications (as mentioned in one NSA document) is also contrary to the Vienna convention, and not what a good neighbour should do. The rejoinder of Key apologists, that “all nations do it” is simply not true, and we would rightly be outraged if a foreign government was intercepting all of our government communications.
Parliamentary oversight of the GCSB is a joke. There is an Intelligence and Security Committee, which operates in secret and is now limited to National and Labour politicians. They are told very little as evidenced by the comments of a former Intelligence and Security Committee member, Peter Dunne, who has expressed surprise that the GCSB is collecting communications data wholesale and passing it on to the NSA.
Let’s not accept the PM’s obfuscations. Let’s demand enough information to allow us to have a proper debate about what GCSB is doing in our name. And let us have better parliamentary oversight of the agency through an all-party select committee whose hearings are where possible in public, like other parliamentary committees.
On 27 November I gave this “oral submission” to the Foreign Affairs, Defence and Trade Committee opposing the Countering Terrorist Fighters Bill, which was being rushed through Parliament with unseemly haste.
It’s a pleasure to be able to talk to members of Foreign Affairs, Defence and Trade Select Committee again,
and remember my 12 years on your committee.
However, I don’t wish my submission today to be taken as endorsement of the completely unnecessary speed with which this legislation is being rushed through Parliament. I see it as an abuse of proper parliamentary consideration of legislation.
There simply is no need to pass this legislation, let alone to rush it.
What is the risk? Experts like Richard Jackson of Otago University say the evidence shows that that it is extremely rare for returning jihadis to commit terrorist acts in their home country. It is wrong to create law, which offends our human rights, just to cover some very unlikely or exceptional future event.
This Bill challenges our basic rights as citizens.
Firstly, the provisions extending the period a passport can be taken away on government-determined security grounds are contrary to Section 18 of the Bill of Rights which grants every citizen “the right to leave New Zealand”. The UN Declaration of Human Rights also says that “Everyone has the right to leave any country, including his own, and to return to his country.”
If a New Zealander breaks the law, either in New Zealand or overseas (if there is extra-territorial jurisdiction) then charge that person. It is odd that at a time when we are debating the politicization of the SIS, parliament is reinforcing a very politicized provision whereby the SIS, in secret, recommends to the Minister of Internal Affairs that a person’s passport be cancelled because they might to off to fight in some war, and it has to politically determine which wars are just and which are unjust. Fighting for Isis is deemed out of bounds, whereas fighting in the Israeli army or for some Arab monarchy may be deemed ok even though these governments are also engaged in atrocities. Wouldn’t it be better simply to stick to the right of New Zealanders to leave their country, and prosecute them when they come back if they have contravened any law.
Yes, pretty much every New Zealander wants to discourage New Zealanders going off to fight for Isis, but there is a better way to do it, not infringing our human rights. In fact, it is already being done to a large degree. The Islamic community actively works to discourage people going off to Syria and they’ve been fairly successful. We should be helping the Islamic community, rather than bringing in a Bill that will drive anyone thinking of being a jihadi further underground, fuel their feeling of being persecuted, and actually make them more likely to go Syria.
Because the law allows the government to cancel a passport on the basis of an assessed “intention” of the targeted person, it is subject to error.
This may have happened in the only case I have seen publicized of a Kiwi having their passport taken away. He seems to have been a pro-jihadi blow-hard rather than someone who would go and fight.
One of the problems with this type of rushed security legislation is that there will be a, perhaps unconscious, tendency to the SIS to over-react to some people in the Islamic community who may be sounding off about Isis. Once you’ve argued there is a significant threat, justifying urgency, you have find incidences of that threat, even if you are stretching the evidence.
I know the government, and MP’s around this table will argue that this provision is not directed at the Islamic community as a whole, but the reality is that it will increase prejudice and discrimination against Muslims in New Zealand. The exaggeration of the terrorist threat to Western countries in the 13 years since 911 has produced greater fear and suspicion in the community towards Muslims. This Bill will add to it, and that danger of increased discrimination should be of much greater concern to this committee than the remote possibility of someone coming back from Syria and blowing themselves up on Lambton Quay.
On behalf of the Green Party I opposed the “national security” provision in the 2005 Passports Act legislation, and I oppose today the extension of the time period for the cancellation of passport to three years.
Back in 2011, I also opposed, on behalf of the Green Party, the Video Camera Surveillance Bill, giving the Police powers this new Bill wants now to give to the SIS. That earlier 2011 Bill was also deemed to so urgent that the Select Committee was only given a few days to deal with it. It was also deemed to be a interim bill, pending the passing of the Search and Surveillance Bill. Of course, the government never bothered to prove, on the basis of subsequent court cases, why the Video Camera Surveillance Bill was so urgently needed. I’d hazard a guess that this Bill will also not be subject to any after the fact scrutiny as to whether it was really needed so urgently.
It is bad enough that the Police already have the right, under the Search and Surveillance Bil, to put a covert video camera in a person’s living room or office.
That is the most intrusive state surveillance breach of our privacy possible. It is even worse when that power is extended to the SIS, because that is a less public and therefore less accountable institution of state.
It will be able to use this power generally, not just to keep an eye on potential terrorists, but also for spying on people who are not criminals but who the government of the day thinks have wrong political views. I experienced this myself. My own SIS file covers 51 years of SIS spying on me, from 1955 to 2006, even though the file shows no indication of criminal behavior and I have no criminal record. The voluminous file shows their concern was my criticisms of the New Zealand government’s foreign policy. Today they will be tracking many law-abiding Muslims who are strong critics of American and New Zealand foreign policy towards the Middle East, on the rationalisation that they might become jihadis.
To finish on the same note as where I started. There is not the demonstrated threat to New Zealanders which would justify such an intrusive SIS surveillance power as the right to secretly insert a video camera in such private spaces as your living room, backyard or office. It is a chilling power because it creates fear and suspicion in the community, particularly when the people who this power is used against may never be allowed to find out, even when it affects there future prospects, perhaps in terms of civil service jobs.
I hope this committee will reject this legislation, and at the very least recommend a longer period of consideration. A week’s consideration is farcical when dealing with such important matters.
New Zealanders are right to be concerned about the rise of the Islamic State (Isis), but our best contribution would be to provide more humanitarian support, rather than play a military role.
In Syria and Iraq the solutions are mainly political, not military. Isis got the upper hand in Iraq mainly because the Iraqi government troops turned and ran.
The reason they refused to fight, even though they greatly outnumbered the Isis forces, was that they didn’t believe they had a government worth dying for. No amount of good military training by American (or New Zealand) armed forces can overcome that problem.
Politics has also enabled Isis to administer the vast swathe of territory it has captured. Short of administrators, it has been able to keep control by working with Sunni tribal authorities who had been alienated by their Shia rulers.
Bombing Isis-controlled areas has probably been counter-productive in the political sense. Residents are not won over by such bombing, which inevitably results in civilian casualties and the disruption of economic life.
The anti-Isis coalition has discovered that, away from the front lines, real military targets are hard to find because Isis has dispersed its fighters and military assets.
Focusing on a military solution can also make it harder to achieve a political solution. This can be seen in Iraq, where the United States is increasingly reliant on fighters from extremist Shia militias who have a pretty murderous reputation. As the Herald reported this month, “people in the Sunni provinces are frightened of being reoccupied by the Iraq army and Shia militias bent on revenge”.
In Syria the bombing of Isis positions has emboldened the Assad regime, to the despair of non-jihadist rebel groups. This may make Bashar al-Assad less interested in a political solution.
We should also learn from the unfortunate aftermath of recent Western military “victories” in the Middle East.
In Libya, Muammar Gaddafi was ousted, but into the power vacuum stepped rebel fighters with conflicting interests and tribal loyalties. Now Libya is in the midst of a destructive civil war.
The exercise of awesome military power was able to remove dictators from power in Libya and Iraq, but so fractured both societies that armed extremist militias were able to prosper.
In Iraq the Sunni militias thrived by presenting themselves as the strongest opponents of the American invaders.
The most extreme among these militias, al-Qaeda in Iraq, has now morphed into Isis.
Once again, following US bombing of its positions, Isis is able to use its fight against the foreigners as a major recruiting device. The Israeli paper Haaretz headlined a September article “Islamic State recruitment is soaring in the wake of US bombing”.
The US bombing has also pushed the other big Syrian jihadist group, al-Nusra, into a closer working relationship with Isis.
We need to have more faith in the Iraqi and Syrian people. Sunni tribal leaders may currently protect the Isis extremists because of the Iraqi government’s bad treatment of Sunnis and fear of what the extremist Shia militias could do to them.
But this will change. Extremist Isis ideology is not a good fit with traditional Sunni practices.
This doesn’t mean countries like New Zealand can’t do anything to help the Iraqi people. I see our role as twofold. Firstly, to provide humanitarian aid and to assist in the development of non-sectarian civic institutions. Secondly, to support any initiatives by Iraqis and their neighbours which help overcome community divisions and make the country more tolerant and democratic. Such an approach would be much better than New Zealand providing military assistance, which may only make matters worse.
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Over the next four years we will learn much about World War I and the suffering that went with it.
The war was a major disaster for this country. One in every 20 New Zealanders was killed or wounded. We experienced the second highest casualty rate among the protagonists, after Serbia.
Because so many New Zealanders died there is a natural tendency to believe they died for a good cause and that the war had something to do with preserving freedom and democracy. I don’t believe that’s true.
At the time, Germany had a more vibrant Parliament than New Zealand, including a large component of social democrats. Germany was not a traditional enemy. Both Britain and New Zealand had strong cultural ties with Germany, stronger than those we had with either France or Russia.
Given this connection, Britain was at first reluctant to enter the continental war. It sympathised with Austria-Hungary in its dispute with Serbia over the assassination of the Austrian Archduke Franz Ferdinand.
Britain entered the war only at the last moment, primarily to stop Germany from becoming too influential on the European mainland. Britain saw Germany as the main challenger to its own status as the dominant imperial power.
This war between the European great powers was a disaster for all its participants, with more than 16 million people killed. Far from being the “war to end all wars” WWI helped lay the ground for WWII. Reparations imposed on Germany by the victor nations assisted the rise of Nazis, who presented themselves to the German people as agents of a national reawakening.
While there is this link between the two world wars, in other respects the wars were quite different. Unlike the first war, the second pitted the democratic nations against an expansionist dictatorship, Hitler’s Germany. WWI was simply a contest between great powers, each in their perceived national interest.
It is deeply ingrained in the New Zealand psyche that our soldiers in the Great War fought with self-sacrifice and bravery at Gallipoli and elsewhere. We will remember that on this 100th anniversary. But we can do that without glorifying the war, or defining it as a just war.
The main way we should remember those who died is to work out ways to prevent such bloodshed in our time. The wars currently waging in the Ukraine and Gaza show we still have some way to go.
To draw the right lessons from WWI it is useful to look at how Germany – our main adversary at the time – is remembering the conflict. On July 3, the Bundestag marked the event with a special session. Bundestag president Norbert Lammert concluded that “military measures are not an adequate means of political change. If at all, they can only be the very last resort to solve conflicts.” He noted that Germany had put the right to conscientious objection in its constitution.
The German Government is not sponsoring big commemorations or visits to war graves.
Rather it is using the occasion to promote reconciliation and make progress on European integration.
It is interesting the Bundestag invited as its keynote speaker a renowned French political scientist, Alfred Grosser, who said that blame for the war fell not only on Germany, but also the other protagonists.
Will we be honest enough during our 100th anniversary to attribute to New Zealand some of the blame for the war, even if it was only because of our loyalty to the British Empire and trusting Britain to get it right?
This time, 100 years later, some Britons are getting it right. A “No Glory” open letter signed by many prominent citizens says that “it is important to remember that this was a war driven by big powers’ competition for influence around the globe”. They propose British “activities to mark the courage of many involved in the war but also to remember the almost unimaginable devastation caused”.
In New Zealand it might be a time to remember those conscientious objectors and peace advocates who resisted participation in a war they believed was wrong and in some cases served prison time for doing so.
Let there be no glory in our commemoration of WWI.
[Back in February I wrote for the New Zealand Herald this opinion piece (below) on the illegality of the NZ government taking away the passports of New Zealanders for intending to fight overseas. I argued that the “national security” grounds in the Passports Act for cancelling NZ passports don’t apply because the Terrorism Suppression Act, to which the Passports Act refers, specifically excludes people fighting in a war. Prime Minister Key also has little regard for international law in this area, with his recent comments that because New Zealand has designated as a terrorist organisation one of the combatants in Syria and Iraq – the Sunni extremist ISIS group – it’s ok for the United States to drone-assassinate its members.]
The Government may well have acted beyond the law in cancelling the passports of New Zealanders intending to join rebel groups fighting the Assad regime.
Under Section 18 of the New Zealand Bill of Rights Act, “Everyone has the right to leave New Zealand” and the Passports Act 1992 guarantees that each New Zealander will be provided with a passport to leave the country when they want to.
Section 3 of the Passports Act states that “every citizen is entitled as of right to a New Zealand passport”.
Until recently the only restraint on that provision was that wanted criminals and those on bail or parole could have their passports taken away to stop them leaving New Zealand.
In 2005 the Passports Amendment Bill added “national security” grounds. As a Green MP I attended the select committee hearings on this bill and was worried that the Government could misuse its new powers.
My particular concern was that the bill defined “national security” mainly in terms of the Terrorism Suppression Act 2002, which I believed has an overly broad definition of terrorism.
How one interprets the Terrorism Suppression Act is critical to the debate over whether the Government has acted legally in depriving citizens of their passports when they want to leave New Zealand to fight in Syria. The other two national security grounds the Passports Act provides for cancelling a New Zealand passport – facilitating “the proliferation of weapons of mass destruction” or causing “serious economic damage to New Zealand” – do not apply to people going to fight in Syria.
The problem the Government has with the application of the Terrorism Suppression Act to fighters going to Syria is that Section 5 of the act says they are not committing “terrorist acts” if anything they do “occurs in a situation of armed conflict”. Fighting with arms against the Syrian Government is not in itself grounds for having one’s passport withdrawn.
A passport could be cancelled if the person joins a terrorist group in Syria, but it seems that the people who had their passports cancelled hadn’t got that far. The fact that someone “might” participate in a terrorist group, or even that they “intend” to participate, would not be enough to be caught by the Terrorism Suppression Act.
In any case, New Zealand volunteers would be more likely to fight for the major rebel coalition, the Free Syrian Army, than the smaller groups linked with al-Qaeda.
I agree with the Prime Minister that we should discourage New Zealanders going off to fight for the Free Syrian Army. If the war in Syria has taught us anything, it is that there is no military solution, only a political solution. But taking New Zealand passports off prospective fighters is not the best way to discourage such fighters, nor is it a legal way.
New Zealanders are prohibited by law from becoming mercenaries, but not from becoming regular soldiers in a foreign army. Kiwis serve in the armed forces of many nations. Sometimes they are fighting in wars New Zealand opposes, as was the case with Kiwis serving with American or British forces in Iraq. We might disagree with an army or war they choose to fight in, but they are free agents.
History shows that New Zealand governments don’t always get it right. The Muldoon government attacked Nelson Mandela’s African National Congress as a terrorist organisation, but this didn’t stop some New Zealanders, such as Father Michael Lapsley, from joining the ANC. Father Lapsley, who lost both hands and an eye when a letter-bomb sent by the apartheid regime blew up in his face, is regarded as a hero in post-apartheid South Africa. If the “national security” provisions in the Passports Act had existed in Prime Minister Muldoon’s time, he may well have tried to cancel Father Lapsley’s passport and seriously hamper his covert work for the ANC.
I can understand John Key’s eagerness to show that his intelligence services are on the job and looking out for dangerous people. But isn’t it also dangerous for him to go beyond the law and stop New Zealanders who are facing no criminal charges from leaving our country.
In his Dialogue page piece this week, Paul Buchanan calls on our Government “to prepare contingency plans for the diplomatic fallout that inevitably lies ahead” when information from Edward Snowden’s documents shows that our GCSB is helping its Five Eyes partner agencies to spy on foreign Governments.
Buchanan rightly points to the contradiction between New Zealand’s reputation as an independent actor in world affairs and its role in helping the United States, Britain, Canada and Australia spy on the rest of the world.
In politics, as in life, the best way to deal with a contradiction is to resolve it, not try your best to hide it, as Buchanan seems to advocate.
Buchanan asks: “What purpose is served by these revelations other than to hurt the foreign relations of the ‘outed’ countries?” I can think of other purposes.
The revelations have helped many Governments appreciate the extent of Five Eyes interception of their communications and take counter-measures. This serves the national interest of these countries, many of which are friendly to New Zealand. How does it help New Zealand when other nations see their national interests being subordinated to the national interests of just five countries: the United States, Britain, Canada, Australia and New Zealand?
New Zealand, as a small country trading with many nations, has an interest in a more equitable world, where the already rich and powerful countries don’t have too much advantage over developing nations. It doesn’t help when the United States superpower, through its National Security Agency, intercepts the diplomatic and business communications of other nations to give itself an advantage at world meetings and trade talks.
The Snowden revelations also show our privacy being threatened by the bulk collection of phone call and email data by the Five Eyes nations. This week we, learned from the Snowden papers that the Defence Signals Directorate (now called the Australian Signals Directorate) was willing to share with its Five Eyes partners the “metadata” it gathers on millions of Australian phone calls and emails. The mass collection of such data is a privacy problem which legislators in several countries are now looking at.
I don’t give the same credence as Buchanan to claims by “US intelligence officials” that Snowden could be a Russian spy. This only serves to divert attention from the genuine privacy issues raised by Snowden. His revelations have been headlined around the world because people are concerned that we are moving towards a kind of “surveillance society” and putting pressure on politicians to come up with counter-measures.
Buchanan is right to predict that future revelations about New Zealand’s role in Five Eyes spying could “jeopardise its international standing at a time when it is seeking a seat on the UN Security Council”. However he doesn’t provide any suggestions as to what New Zealand’s “contingency plan” might be.
If New Zealand is shown to be helping the Five Eyes spy on trading partners in the Asia/Pacific, then nice, reassuring words won’t save us.
Our best response to countries we might be spying on is to say that we are setting up a public inquiry into whether it is still appropriate to be in Five Eyes.
• Keith Locke is a former Green Party intelligence spokesman
Today (31 August) the New Zealand Herald published my opinion piece critical of the GCSB, under the heading “Separate Spy Agency Not Needed” with a subhead: “Instead of spending $60m a year on a GCSB the cyber-security side could easily be transferred to the police.” The OpEd also questions the benefit of an agency whose dominant purpose is to spy for the NSA-led Five Eyes. The link is:
Instead of spending $60m a year on a GCSB the cyber-security side could easily be transferred to the police.
The Waihopai spy station sweeps up the communications of New Zealanders and foreigners. Photo / Mark Mitchell
It seems that both supporters and opponents of the GCSB bill are questioning the need for New Zealand to have a stand-alone electronic spy agency.
The Herald has reported that Dr Jim Veitch, a supporter of the bill, proposes a single intelligence agency, incorporating the GCSB, the Security Intelligence Service (SIS), the National Assessments Bureau and the Intelligence Co-ordination Group.
The government may be receptive to such a proposal, given it has been busy merging agencies to form such ministries as Business, Innovation and Employment.
Streamlining the provision of government services, avoiding duplication and improving co-ordination are laudable goals.
Unlike Dr Veitch, I oppose the GCSB bill, but I agree with him that we don’t need an independent electronic spy agency.
Let us look at the three functions of the GCSB, as outlined in the bill, and see where else they could be accommodated. The three functions are cyber-security, foreign intelligence collection and assisting the collection of intelligence by the SIS, the police and the Defence Force.
In selling the bill, John Key has emphasised the need for cyber-security and most New Zealanders agree with him that we need to protect our computers. But do we need a GCSB to do this? The police have their own cyber-security capacity, and are busy chasing and prosecuting cyber-criminals.
To avoid duplication it would be better for the GCSB’s cyber-security resource to be transferred to the police.
A similar argument applies to the assistance the GCSB provides to agencies like the police, which the bill would make legal. If it were simply a matter of the GCSB having the most sophisticated communications interception equipment then it would make sense for this equipment (and the people who operated it) to be handed over to the police.
This would also alleviate a fear that the GCSB is to be used to spy on New Zealanders. It wouldn’t, however, eliminate such concerns. The very nature of the GCSB’s foreign intelligence gathering is that it sweeps up the communications of both New Zealanders and foreigners. The international phone communications the GCSB intercepts through its Waihopai spy station don’t come with passports attached, so Kiwis are also caught in the net.
In addition, all the phone data drawn down into the satellite dishes at Waihopai is shared with the US National Security Agency (NSA), whose mandate doesn’t exclude spying on the communications of New Zealanders.
A deeper question, which has been insufficiently debated, is what benefit New Zealand gets from being part of the NSA-led Five Eyes electronic intelligence network.
The only successes claimed by the GCSB in its last 10 annual reports are that it has detected cyber-threats. No terrorists have ever been discovered, and as far as we can tell no one has ever been prosecuted as a result of information provided by the GCSB. In fact, in May the GCSB director, Ian Fletcher, proudly announced that “no arrest, prosecution or other legal processes have occurred as a result of the information supplied to NZSIS by the GCSB”, in support of SIS operations over the previous 10 years. By contrast, the police use their interception powers to catch dozens of criminals every year.
This suggests the GCSB adds little value to other government agencies in the detection of criminality. So why are we spending around $60 million a year on this agency?
It is probable – although we don’t know the details – the New Zealand government does get some useful tidbits of information from the Waihopai station and the Five Eyes intelligence network.
But in my opinion any such gain is far outweighed by the downside of other nations getting upset with us for being part of a five-nation network, led by America, which is spying on them.
It is clear from the Snowden revelations the targets of Five Eyes include the diplomatic communications of virtually every other nation – including our main trading partners in Asia and Europe.
It is hard to see what New Zealand gains from this. In fact, on some foreign policy and disarmament issues New Zealand is more aligned with European nations than the United States. Why are we part of a Five Eyes intelligence network that is geared to giving America an “information advantage” in its negotiations with Europe on trade and other matters?
If we did a proper balance sheet of the gains and losses from our Five Eyes membership, we might conclude that we should leave. If so, we might also decide that we don’t need a stand-alone electronic spy agency like the GCSB. The domestic functions the GCSB now has (like cyber-security) could be handled by better resourcing of other state agencies, particularly the police.