Keith Locke: Let’s honour centenary of those we jailed for opposing wartime conscription

(An opinion piece published in the New Zealand Herald, 13 December 2016.)

Most of us know there were conscientious objectors who refused to fight in World War I. Many were sent to jail for their stand. Less well-known are the 107 New Zealanders who were convicted for “sedition”, simply for speaking out against conscription or the war.

Sixty-seven of those so convicted spent time in jail.

Most prominent among those imprisoned were Peter Fraser, who later served as Prime Minister, and four future Labour Cabinet ministers: Bob Semple, Tim Armstrong, Jim O’Brien and Paddy Webb.

This month marks the 100th anniversary of the first sedition convictions after the passage of the Military Service Act 1916, which brought in conscription.

Semple had challenged both conscription and the war: “Conscription and liberty cannot live in the same country,” he said. “Conscription is the negation of human liberty.”

Semple also didn’t think war was justified and predicted that “the day will come and may it arrive out of the dust of today when the working class will say to Kings and Kaisers, the Czars, Dukes and Earls: ‘If you are going to fight, cut one another’s throats. We will stay at home’.”

The Christchurch magistrate was not enamoured by Semple’s line of argument, saying: “I cannot sit here and allow men to express opinions that will prejudice those who, rightly or wrongly, are trying to uphold the traditions of the country and preserve the integrity of the Empire – an Empire which I am proud to belong to.”

The anti-conscription movement was not intimidated by the jailing of Semple. It proceeded shortly afterwards, with a big conference in Auckland. The police couldn’t detain all 500 participants, but they did arrest the conference secretary, Fraser.

It was reported that “as he [Fraser] moved away in the charge of Detective Sergeant Cox the assembled delegates gave him three ringing cheers, which were followed by the singing of the Red Flag”.

In his court defence Fraser argued that “it was still possible for the people of Germany and Britain and other nations at war to bring about a settlement”. Reflecting the chauvinism of the times, Magistrate Riddell replied. “Do you think we are concerned with the people of Germany?” Fraser responded that he “was interested in the working class of all the world”.

The magistrate wasn’t impressed with Fraser’s internationalism, as he had expressed it in a speech a few days earlier, on December 10: “For the past two years and a half we have been looking at the ruling classes of Europe spreading woe, want and murder over the Continent, and it is time that the working classes of the different nations were rising up in protest against them.”

The unsympathetic magistrate sentenced Fraser to one year behind bars for seditious utterances.

Also jailed for sedition that month were Tom Brindle, later a Wellington City Councillor and Labour Party president; James Thorn, subsequently both a Labour MP and a party president; and Fred Cooke, who took a seat on the Christchurch City Council.

Early in 1917 three other future Labour cabinet ministers were imprisoned. They were Tim Armstrong, Jim O’Brien and Webb.

Webb’s sedition conviction was the most grievous, because he was the West Coast’s Member of Parliament. There was no parliamentary immunity for him. Webb was jailed for three months for defending his constituents.

His crime was to describe a West Coast miners’ strike against conscription as a battle for democratic freedom. Webb was later stripped of his parliamentary seat and jailed for a second time, this time for refusing military service.

Through 1917 and 1918 many other dissenters were sent to jail, including six Huntly miners, for a “seditious strike”, and Maori from the Waikato, for opposing conscription.

In Auckland and Christchurch there will be commemorations for those imprisoned for exercising their right of free speech 100 years ago. The Auckland commemoration will be outside Mt Eden prison at 12.30pm on Thursday. In Christchurch people will be gathering outside the Museum at noon on the same day.

In both cities there will be re-enactments of the sedition trials.

- NZ Herald; http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11765388

The Terrifying Consequences of High-Tech War

(A talk by Keith Locke to a seminar on “Just War?”, hosted by the NZ Christian Network, NZ Peace and Conflict Studies Centre Trust, Pax Christi and the Anglican Pacifist Fellowship,in  Auckland, 19 November 2016.)

The message of this talk is that war, as it becomes a more technological enterprise, is becoming even more barbaric with even less recognition that those being attacked are fellow human beings.

Perhaps we should start this discussion by going back a pre-industrial form of warfare, such as the tribal war between Maori before Europeans with their guns arrived on the scene.

On one level such tribal war was brutal, with one human destroying another human in hand-to-hand combat, and there were sometimes massacres.
But the combat was on a fairly level playing field, although one side might get the advantage through having superior numbers, an element of surprise, or better fortifications. Both sides would commonly suffer significant casualties, which was one of the things pushing them to solve differences peacefully. Some tribes, such as the Moriori on Rekohu, became pacifist and rejected war altogether.

The biggest slaughter in Maori intertribal wars came when the technology went up a notch. Those who could get a large stock of muskets, like Nga Puhi, tended to prevail.

From that time on, through the 19th, 20th and 21st centuries the technology of war has advanced hugely, particularly in the Western nations. The killers were able to kill from an ever greater distance, without ever having to set sight on their victims.

The guns or artillery got longer and longer in its range, and then aircraft arrived with an ability to murder people en mass with their bombs and missiles.

The extreme of this was reached on August 6 1945, when a US plane, the Enola Gay, dropped an atomic bomb on the Japanese city of Hiroshima killing 140,000 and condemning many others to early deaths through radiation effects.

On one side 140,000 civilians were killed; on the other, American side, zero people were killed. All twelve crew members of the Enola Gay returned safely.

Read most of the reports of the Hiroshima bombing and you won’t see the crew of the described as psychopathic monsters for killing 140,000 innocent people, nor will you find much criticism of the man who ordered the mass killing, President Truman.

To this day you won’t find an American president admitting the obvious truth, that the nuclear bombing of Hiroshima and Nagasaki was wrong, although to his credit President Obama did go to Hiroshima last year to participate in a remembrance ceremony.

There are great ethical problems with the inconsistent way in which Western nations have treated the wartime killing of civilians.

It is easier to say “our side is right” and “the killing is justified” when you can’t see the victims, and into the bargain they are being demonized, or belittled as less civilized. And many in the Third World are so belittled by those in rich Western nations.

Or to put the converse, it is easier to say the other side (say ISIS) is wrong and brutal if you can see their killing close up, in all its horror, as in the videos of ISIS people beheading their victims.

Without in any way justifying the brutality of ISIS, it may be, when we look at UN figures, that in the areas ISIS controls more civilians have been killed by US bombing than by ISIS soldiers. But such statistics don’t register in Western nations because the blood spattered bodies resulting from US bombing are hidden away in “enemy-controlled” territory, whereas we see the results of ISIS killings on our TV screens. The unseen Iraqi civilians that might have died from American bombing are merely statistics, quickly dismissed as “collateral damage”.

It has suited the purposes of the United States, in the wars against Saddam’s Iraq and Gaddafi’s Libya, to simply not keep a tally of civilian casualties. It has been left to others to quantify it.

That raises another critical question. Is the killing of civilians from a distance, from the air, somehow less repulsive than a killing by a knife or bayonet?

Is the person in the cockpit, or the person putting in the coordinates for a missile, more civilized than the person armed with a bayonet on the front line? Those in control of the planes or missiles usually cause more death and injury, but somehow they are not seen as having blood on their hands.

Remote war becomes a computer game, and almost as sanitised.

Let’s now look at how the advance of technology is worsening this problem.

Firstly, let’s consider nuclear weapons. There is a certain public resignation to the continuing existence of nuclear weapons, and a certain complacency that they are unlikely to be used.

It’s partially true that since the end of the Cold War there is less danger of a nuclear war breaking out between major nuclear powers. But there are still several ways in which a nuclear war could begin.

Firstly, the US has not ruled out using nuclear weapons against a non-nuclear power, as we saw happen in 1945. Nor has Israel ruled out bombing a Middle Eastern nation, if it perceives its vital interests are threatened.  And we can’t trust the North Korean dictatorship not to conduct a first nuclear strike.

Secondly, when relations India and Pakistan reach crisis point, as they have in the past, there is no guarantee that one side, perhaps the weaker side, Pakistan, won’t resort to nuclear weapons.  Pakistan, also, is not the most stable or countries.

Thirdly, technological improvements have in some ways increased the danger of accidental nuclear war during a crisis between nuclear armed powers, such as Russia and America. The US has recently tested hypersonic ballistic missiles that travel at 5 times the speed of sound, which means, if my maths is correct, that they travel 100 kilometres in about one minute.  If Russia detected one of these missiles coming at them there would be little time for them to rationally decide whether it was a real missile or a false alarm and whether or not to respond. A nuclear exchange could begin, perhaps destroying much of the world.

We always have to remember that the whole nature of so-called nuclear deterrence rests on willingness of the leaders of nuclear states to launch a retaliatory strike. Just recently, the British Labour leader Jeremy Corbyn got into terrible trouble with the Conservatives, the UK media pundits, and most of his fellow Labour MPs, when he said he would not push the nuclear button.

Also, the continuing development of missile defence systems by the United States increases rather than decreases the nuclear danger by making it more likely that in a crisis an adversary will strike earlier and with more missiles to get through the US missile defence shield.

Conversely, the US could be more tempted to conduct a first strike if it thought its missile defence shield made it safe from retaliation.

Meanwhile, the technology of killing from afar continues to advance in non-nuclear warfare.

Higher precision killing using GPS is the most notable advance in recent years. The result has been a hugely one-sided form of warfare, whether done by aerial drones, or land and sea-based missiles.

Usually the missile or drone operators are so far away that their lives are not at risk. Whereas, for the targets, their lives are always in danger. Under the mantle of a “global war on terror”, the US gives itself the right to conduct drone missile attack in any country, with or without the permission of the government of that country. For example, drone strikes have occurred in Pakistan and Libya despite protests from the Pakistani and Libyan authorities.

This is all going against the restraints on war contained in the Geneva Conventions which envisage combat between armed combatants on a battlefield. To the US all the world is now a battlefield, and it reserves the right to kill any adversary, even when that adversary is not a soldier but rather an ideologue or a political leader.

When all the world is considered a battlefield, the dangers of killing civilians other than those being targeted is also substantial, as we have seen.

Many, many civilians have been killed as collateral damage in American drone missile strikes, in a way that contravenes much of the international humanitarian law designed to protect non-combatants.

This problem of civilian deaths is enhanced when the strikes are against targets about which the Americans have limited intelligence – mainly because they have no intelligence from the ground itself.
American intelligence is pretty much all based on observation from the air, combined with information from intercepted telephone conversations.

Even worse are those drone strikes call “signature strikes” where the identity of the target is not known, but they appear to be acting like an adversary, or a “militant” in the West language of demonization.

It is death by alogaritm. If you present with certain characteristics you are killed.

A UN special rapporteur has rightly called the use of fatal drone strikes away from a war zone as illegal extra-judicial killing.

Just because the US government has endorsed such killing doesn’t make it legal. How can it be legal for a US president to be given the power to construct a secret kill list and order the killing of anyone, anywhere in the world, with not even the pretence of legal constraints? Now that power to kill anyone by drone, anywhere in the world, at any time, is to be entrusted to Donald J. Trump.

Let us look at another aspect of high-tech aerial war. It is usually very one-sided. Take the current war against ISIS in Mosul, Iraq. One side controls the air and conducts detailed aerial surveillance around the clock as well as monitoring all electronic communications. US planes can strike with precision missiles at short notice. It can prevent the ISIS fighting in the open, and stop it making effective use of heavy weaponry or tanks.

This huge technological imbalance between the two sides – or what could be called the asymmetric nature of the war – has driven ISIS to desperate measures, such as suicide soldiers driving truck bombs into the lines of the forces attacking them.

This technological imbalance and the desperation it causes also gives impetus to terroristic suicide actions against civilians – as we have seen in Bagdad and Paris.

Without justifying such terrorist actions in any way, we have to understand the mindset which produces them.

To some extent they are motivated by a perceived sense of injustice against the people these jihadists claim to represent. The Palestinian suicide bombers of earlier times thought they were justified in blowing up Israeli civilians because perceived the Israeli people as a whole to be against Palestinians.
Occasionally, these days, Islamic Jihad in Gaza will send a rocket into Israel with the same rationale, or as retaliation for an Israeli drone strike on one of their people. Sending rockets into civilian areas is clearly a desperate terror act, which we cannot excuse. But that desperation among Islamic Jihad’s civilian supporters is only enhanced when they see a constant presence of Israeli drones in the sky overhead, never knowing when a missile might suddenly come their way.

In general terms, the advance of military technology helps the already rich and powerful states – who can afford such technology – to pursue their own agendas, and it weakens the ability of people in the poorer nations to resist.

Wars “won” by the massive use of Western air power and highly targeted bombing end up not only destroying so much of a country, but are also hugely destabilising. We’ve seen that in Iraq and Libya, and the same process is underway consequent to the massive bombing of Syria (by Russia and other nations) and in the Yemen (as a result of the Saudi bombing).

Bombing can weaken or destroy a regime, as we saw in the fall of Gaddafi’s Libya or Saddam’s Iraq, but the foreign victor’s interference in the moulding of a new body politic tends to exacerbate tensions between internal factions, widen sectarian differences, and generate new conflicts, often of a military nature.

ISIS may be militarily defeated but the political fault lines in Iraq – between Sunni, Shia and Kurdish factions – may be widened in the process.

Let’s go on to another aspect of our main topic, that is how big advances in weapons technology are affecting naval and ground warfare.

Coming on stream are are science fiction weapons like railguns, where explosive projectiles are rapidly accelerated via electro-magnetic rails. According to the US Deputy Defence Secretary Robert Work railguns will be inexpensive and be of enormous use against airplanes, missiles, tanks – almost anything.

Another powerful new weapon, to be introduced by the US Navy, is a “directed energy” laser weapon which can hit anything in a line of sight.

And then there is the replacing of soldier roles with robots, often called “killer robots”, which can be fully automated aerial drones used close to the ground or they can be land vehicles like tanks.

It took me a while to get my head around this, but then I thought that anything is possible when we now have self-driving cars, that can somehow respond to multiple factors in the changing environment around them.

The United States is testing small one metre tall tanks, called a MAARS (a Modular Advanced Armed Robotic System). The remote controller can sit kilometres away and use the MAARS tank to conduct camera surveillance of a battlefield and to fire shells and grenades.

Russia has a full-size Armata T-14 tank with an unmanned remote-controlled firing turret. The tank still has 3 crew members to drive it, but this is being reduced to zero soon. Imagine a swarm of these fully robotized tanks coming at you, assisted in targeting by a swarm of small drones over the battlefield.
The tanks and drones can be programmed to act in concert, choosing targets and firing with little or no intervention from operators away from the battlefield.

The idea that tanks, drones or other robots could autonomously make decisions to kill people is a horrendous idea. But that is where things are heading, given advances in pre-programming, artificial intelligence, sensor and collision avoidance technology, combined with a sophisticated networking of communications.

But what happens when the “unintended” happens and hundreds of civilians are killed by these autonomous weapon? The army’s defence would be, “we didn’t mean to kill them, we just made a computer coding error and it all went wrong from there.” You can see that there are big problems in applying the law to the use of killer robots, which is one reason why they should be banned.

There is now an active Campaign to Stop Killer Robots, whose global coordinator is a New Zealander, Mary Wareham. And some progress is being made.

At a UN meeting in Geneva last April 94 countries agreed to begin formal discussions about the problems with “lethal automated weapons system” or LAWS.

For me, any killing is inhuman, but I am even more repulsed by the remote character of much of today’s high-tech killing. Some of the killing is even more emotionless than a computer game, where at least the player’s hand is on the joystick.

There is absolutely no human connection between a computer programmer writing code to guide a killer robot and an Afghan whose family home might be blown up by that fully autonomous robotic device when it is put into operation.

And because high-tech weaponry is expensive and largely the preserve of the already rich and powerful nations, its use by those nations tends to preserve their dominance, and their wealth and power.

In our fight against militarism and war we should be conscious danger these new high-tech weapons pose and campaign strongly against their use.

Submission on the NZ Intelligence and Security Bill

[Submission by Keith Locke to Parliament’s Foreign Affairs, Defence and Trade Select Committee, 3 October 2016]

Main Point

The NZ Intelligence and Security Bill unnecessarily allows for greater surveillance of New Zealanders by our intelligence services and intrudes further on our privacy. The definition of national security is so broad that it could enable even more surveillance of legitimate political dissenters by the intelligence services than has happened to date. The Bill should not be proceeded with.

Threats Faced by New Zealand

Any discussion of whether the intelligence services should be granted extra powers should begin with a discussion of the threats facing New Zealand. The fact is that we are a remarkably peaceful people. In the last 100 years there is not one proven case of politically motivated act by a New Zealander causing death. [My only qualification is that the Wellington Trades Hall bombing in 1984, which resulted in one death, may have been politically motivated.] The only proven terrorist act was committed by non-New Zealanders, namely the French agents who bombed the Rainbow Warrior in Auckland Harbour in 1985, killing a Portuguese photographer. Non-state terrorism has proven to be a problem in some Western countries, especially those, unlike New Zealand, that are heavily involved in foreign wars, or have a socio-economically marginalised Muslim population, or have a body politic significantly prejudiced against Muslim people. There is no global terrorist threat. The majority of nations are not threatened by non-state terrorism.

Of course, there is always the possibility of a politically motivated violent act, causing death, taking place on New Zealand soil, but it would be an exceptional event. It would not, by itself, justify enlarging the present powers of New Zealand’s intelligence services.

The Bill massively increases the collection of personal information on New Zealanders.

There are several reasons why granting the GCSB power to spy on New Zealanders will result in a much greater intrusion on the privacy of New Zealanders.

Firstly, the GCSB’s intelligence collection is less targeted than that traditionally carried out by the Security Intelligence Service. We already know that the GCSB collects bulk information on satellite communications accessed by at its Waihopai spy station (which is part of the Five Eyes network). There is nothing in the proposed legislation stopping this from continuing. Nor will anything in the Bill prevent the international communications of New Zealanders being drawn down into the satellite dishes at Waihopai to be stored and later analysed, because such communications don’t identify NZ citizenship. We know from the Snowden documents that the whole direction of the Five Eyes network (including the GCSB) is to collect, store and share with each other as much raw communications and social media data as is technically possible – on the basis that some of it may later be useful. The all-inclusive definition of “information infrastructure” in Clause 4 covers any electronic communication, and Clause 66 allows the GCSB access to any such transmitted or stored communication. There are no clear limits to what can be collected and through what means.

Secondly, because the GCSB shares a mass of its raw data with its four Five Eyes partners [loosely provided for under Clause 13], the result of this sharing will be a greater intrusion into the privacy of New Zealanders, as well as its misuse against New Zealanders.

We know from the Snowden papers that the data collected by the Five Eyes is mainly used to spy on other governments or political dissenters, for political ends which are often contestable. For example, the GCSB’s proven spying on, Roberto Azevedo, the (successful) Brazilian candidate for WTO director-general, was aimed at giving New Zealander Tim Groser the edge in the contest. http://www.stuff.co.nz/national/politics/67475818/government-accused-of-spying-on-wto-top-job-candidates. This was spying to advance the government’s neo-liberal trade and investment agenda, personified by former Trade Minister Groser, an agenda which is contested by other New Zealand political parties.

Thirdly, we also know from the Snowden papers that Five Eyes partners are providing intercept information about New Zealanders. In 2012 Tony Fullman, a New Zealand citizen, had his house raided on the basis of information passed on to the GCSB by the US National Security Agency. His “crime” was to be a peaceful advocate of democracy in Fiji. Analysis of the Snowden papers showed he was one several Fiji pro-democracy activists who had their Gmails and Facebook posts monitored by the NSA. https://theintercept.com/2016/08/14/nsa-gcsb-prism-surveillance-fullman-fiji/

Fourthly, the warrant system contained in the Bill will not prevent information on many law-abiding New Zealanders being taken from the mass of intercept data collected by the GCSB and Five Eyes. The warrants can be very broad in their catchment. They can be for a “class of persons” (Clause 61), or they can be what are called “purpose-based warrants” (Clause 64). Either way such warrants can cover a lot of people, such as those New Zealanders attending a mosque or group of mosques, or all those New Zealanders travelling to certain countries.

Fifthly, GCSB can pass on to other agencies for analysis anything from its mountain of electronic intelligence data. All it has to do is define that information as “incidentally-obtained intelligence” under Clause 91. Remember such intelligence doesn’t need to have anything to do with real or potential criminal activity. All that is required is that there is believed to be a “potential threat” to New Zealand’s “security” as determined by the agencies. Under Clause 91 information “incidentally obtained” on legitimate political dissenters could be kept or passed on.

Using intelligence information against legitimate dissenters

There is an inherent contradiction in the legislation. Clause 22 says that collecting intelligence is not justified when it is infringing “the right of persons to engage in lawful advocacy, protest, or dissent in respect of any matter.”

However, this can be overridden when “national security” is deemed at risk. As defined in Clause 5 “national security” can include any activity, even if it is not criminal activity, which affects New Zealand’s “status as a free and democratic society” or threatens “international security” or “the quality of life of the New Zealand population” or represents “acts of foreign interference, that may cause serious damage to New Zealand’s economic security or international relations.” What this means is that the intelligence services are authorised to act in secret to monitor and help counter perfectly legal activity if those agencies define it as contrary to “national security”, whether that activity is carried out by New Zealanders or non-New Zealanders.

All of the types of legal political activity targeted under the “national security” label are politically contestable. For example, dissenters in New Zealand believe the Trans-Pacific Partnership Agreement threatens our “national security” in that the agreement threatens our “status as a free and democratic society” and our “quality of life” and could, by increasing global inequality, threaten “international security”. The present New Zealand government believes the opposite, that the anti-TPPA dissenters threaten “national security”, and under this Bill could use the intelligence services to monitor those dissenters.

New Zealand anti-TPPA dissenters believe it is perfectly proper, under our Bill of Rights, to coordinate campaigning against the TPPA with international NGOS (eg. Greenpeace and Oxfam) or other governments without these foreign NGOs or governments being spied for committing “acts of foreign interference that may cause serious damage to New Zealand’s economic security or international relations.” New Zealand should champion a free global debate among people, organisations and nations over free trade and investment pacts, without any involvement of security services. Unfortunately, that is not the case, as we have seen in the Groser/WTO case and in the NSA’s spying on European governments during trade negotiations, as disclosed in the Snowden documents.

GCSB spying on Pacific governments unjustified and contrary to our interests

The GCSB electronic spying on Pacific Island governments, exposed in Snowden papers and rightly criticised by several Pacific leaders, is an unjustified and illegal breach of their right to privacy. It negatively affecting our relations with these states, none of whom are conducting electronic spying on us.

Spy agencies focus on political critics of the NZ government, not those engaged in illegal activity

The fundamental problem is that the SIS and GCSB are primarily agencies for political spying on legal activity. While part of the Bill’s definition of “national security” [Clause 5] covers “unlawful acts” (ie: those which have a political motive), in practice the agency does little in this area, for two reasons. The first, which I aludded to earlier, is that in recent years there have been not been politically motivated criminal acts of any consequence. Secondly, we already have an institution, the Police, which is dedicated to detecting and prosecuting politically motivated illegal acts – such as the bombing of the Rainbow Warrior in 1985, or the securing of fraudulent New Zealand passports by Mossad agents in 2004.

A perusal of those personal SIS files that have been released proves that the overwhelming bulk of the agencies work has been directed against perfectly legal dissent. This is likely to continue under the terms of this Bill. My own SIS file, which covers 51 years of my life, records only my legal political activities as a dissenter. I have no criminal record.

Oversight mechanisms inadequate

There has been some improvement in oversight mechanisms, but they are still inadequate. While more people from outside the service will be involved in granting surveillance warrants this won’t act as much of a check if those people accept the Bill’s ethos that political spying to advance a government’s political agenda is ok. The Intelligence and Security Committee in the Parliament will remain relatively toothless. The GCSB and SIS Directors can still block information going to the Committee by defining it as “sensitive” (Clause 163). It is good, however, that the Inspector-General will now have access to all security information (Clause 142). Much will now depend on the quality of the Inspector-General as a check on abuses in the system, and as someone who can listen to whistleblowers. However, in relation to whistleblowers, I strongly oppose new provision 78AA (Clause 207) providing for 5 years in prison for those who disclose anything “classified”. Whistleblowing is sometimes the only way to expose wrongdoing in public institutions and the SIS and GCSB are not exceptions. Particularly worrying is the potential for journalists to be penalised (under 78AA 2 (b) (ii)) for publishing classified material that exposes wrongdoing.

An independent cybersecurity agency needed

The GCSB currently has one useful responsibility, cybersecurity [see Clause 15], but this function should be devolved to a new independent government cybersecurity agency, which involves and coordinates its work with the Police and other relevant agencies. The GCSB, tasked with breaking in to computers and creating back door entry in to communications devices, is not the best agency to protect our IT systems.

Recommendations

I ask the Select Committee be bold and challenge the need for the SIS and the GCSB, given that our Police force is perfectly adequate to deal with politically motivated criminal behavior, and we don’t need a state agency to monitor our non-criminal political behavior. The GCSB’s cybersecurity function should be devolved to a new independent agency.

I recommend the Select Committee not proceed with this Bill in its present form. Overall it puts New Zealanders in a worse situation than in already existing legislation, in relation to both their personal privacy and their right to untrammeled freedom of expression.

However, given the Bill is likely to have the numbers to proceed I do support the deletion (or amendment) of any Clauses which extend the scope of GCSB and SIS spying on non-criminal political activity. I have already mentioned the problems with Clauses 4, 5, 13, 15, 61, 64, 66, 91, 163 and 207. Conversely, I support all measures in the Bill which may improve, even if marginally, the accountability of SIS and GCSB operatives. I have mentioned, for example, Clause 142 which I support because it removes the existing restraint on the Inspector-General accessing all security information.

Keith Locke: Hard to spy gains from Five Eyes

[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.

Keith Locke is a former Green MP.
– NZ Herald

http://www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=11605497

Keith Locke: The downside to a child sex offender register

Opinion piece published by the New Zealand Herald, 26 August 2015.

http://www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=11503250

It’s difficult to have an adequate discussion of sex offender legislation because anyone taking a critical stance risks being labeled as soft on sex crimes.

The Child Protection (Child Sex Offender Register) Bill is a case in point. There has been little public debate even though Attorney-General Chris Finlayson says it offends our Bill of Rights.

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.

Keith Locke is a former Green MP.

Submission to the Intelligence and Security Agencies Review 2015

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.

No public accountability for the GCSB

[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.

Countering Terrorist Fighters Bill challenges citizen rights to a passport and privacy

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.

Keith Locke: Take on extremists with words not war

Countering the rise of Isis in Syria and Iraq requires solutions that are mainly political, not military.

[On 21 October 2014 the NZ Herald carried my  opinion piece advocating that New Zealand provide humanitarian aid to Iraq and Syria, and not contribute to the US-led military campaign.]

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11345416

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.

Dialogue Contributions are welcome and should be 500-700 words. Send your submission to dialogue@nzherald.co.nz. Text may be edited and used in digital formats as well as on paper.

Keith Locke is a former Green MP.

– NZ Herald

Keith Locke: There’s nothing great about Great War

WWI was a disastrous struggle for imperial power rather than a fight for freedom — and we must share blame

[On 5 August 2014, on the 100th anniversary of New Zealand’s entry into World War I, I had this opinion piece carried in the New Zealand Herald.]

Read this article on the NZ Herald website

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.

– NZ Herald

←Older