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

Keith Locke: Key jumping the gun over passports

[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.]

Read this article on the NZ Herald website

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.

• Keith Locke is a former Green MP

More than reassuring words needed to get to the truth on spying

My opinion piece (below) was published in the 5 December 2013 issue of the New Zealand Herald.

Read this article on the NZ Herald website

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

Separate spy agency not needed

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:

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10905601

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.

My TVNZ Breakfast interview on what’s wrong with the GCSB Bill

I was interviewed on Television New Zealand’s Breakfast programme on 26 July on why I was opposed to the Government Communications Security Bureau Bill. You can watch it as:

http://tvnz.co.nz/breakfast-news/gcsb-protests-growing-video-5519462

My submission to the Intelligence and Security Committee on the GCSB Bill

On 3 July I travelled to Parliament to speak to the Intelligence and Security Committee to explain my written submission on the GCSB Bill (see below for the text). Quite a lot of people and journalists were present, although I must admit that Kim Dotcom (who spoke to the committee an hour after me) was the main drawcard.  TV3 did a live feed of the presentations, and Scoop recorded it too.  The link to the Scoop video of my presentation is:

WRITTEN SUBMISSION BY KEITH LOCKE TO THE INTELLIGENCE AND SECURITY COMMITTEE ON THE GOVERNMENT COMMUNICATIONS SECURITY BUREAU AND RELATED LEGISLATION AMENDMENT BILL

By Keith Locke

11 June 2013

This submission opposes the Bill. The submitter holds that it is wrong to give the Government Communications Security Bureau extra powers, as this legislation does, when both Parliament and the people have not yet been adequately informed as to what the GCSB does in our name. Below I cover the areas where I think that information is wanting.

The balance between confidentiality and public accountability 

In an agency such as the GCSB there should be a balance between the need for confidentiality and the need for public accountability. Both this government and the previous one have not sought that balance. Instead, they have routinely refused to provide any basic facts about how the agency operates and the manner in which it is exchanging information with other foreign agencies.

To give one example: when I was a Member of Parliament I repeatedly asked how much GCSB’s main asset, the Waihopai spy base, was costing the taxpayer. The gross annual dollar amount was clearly a matter of public interest, not a matter of national security, yet the Ministers in charge, Helen Clark, then John Key, refused to give that information to me as an MP, on behalf of the taxpayers.

Privacy concerns 

We should not proceed with this Bill when we are still a long way from finding out how much intrusion there is on our privacy by the manner in which the GCSB (and its Five Eyes partners) collect information on people’s communications.  This is currently a matter of huge debate in the United States and other countries (including New Zealand) as a result of the disclosure of that the GCSB’s US partner agency, the National Security Agency, is being provided with daily electronic copies of all telephone call records of American telephone companies. It has also been disclosed that the NSA has systems for the mass collection and processing the “metadata” of millions of email and internet communications. Clearly the phone and email data of hundreds of thousands of New Zealanders are being caught up in this dragnet if they are communicating to or from America.

This American scandal is relevant to the Bill because I believe there is some confusion in the public mind as to what the GCSB actually can do if the Bill grants it the power to assist warranted SIS or Police operations on targets who are New Zealand citizens and residents. The general impression New Zealanders have is that the GCSB has superior communications interception technology  which will be used to help the SIS and Police process their interception warrants, “on the ground” as it were. In fact, the SIS and Police already have their own ready access to telecommunications providers to proceed with warranted intercepts, and ready access to phone call information or “metadata” related to their warrants.

The question the public now needs answering is to what extent the GCSB contribution of “metadata” to the SIS and Police (“metadata” made up most of the GCSB contribution referred to in the Kitteridge report) came from the mass collection of phone data, either from communications intercepted by the satellite dishes at Waihopai, or communication information gained directly from its Five Eyes partners (particularly the NSA).

The extent to which the GCSB’s close association with the NSA (and the other three Five Eyes partners) compromises our protection of people privacy is something that needs to be widely debated before a Bill like this proceeds.

Serving New Zealand’s national interest

We need much more openness and information regarding what goes on at Waihopai, and the GCSB’s links with the other Five Eyes intelligence agencies, so that we can conduct a true cost/benefit analysis of the GCSB.

There is certainly a big downside to being part of such a five nation network which is intercepting the communications of every other government in the world. This was brought home to me 13 years ago on a parliamentary visit with our Foreign Minister to New Caledonia, where our delegation was berated by the New Caledonian government for spying on them through Waihopai.  European governments are also unhappy at the Five Eyes networks spying on them.

It doesn’t help our increasingly important relations with China to be actively spying on their government’s communications as the Five Eyes network (probably including the Waihopai spy station) currently is.

It is hard to detect much of an upside to New Zealand being part of the Five Eyes network. During the entire period of its existence there is no evidence that it has discovered a single criminal (a terrorist or otherwise) or significantly added to the nation’s intelligence regarding developments in our region – beyond what is being provided by diplomats and journalists on an ongoing basis.

Protecting the independence of our foreign policy 

We need an analysis of the extent to which being part of the Five Eyes network compromises, even if to a degree unintentionally, the independence of our foreign policy.  As far as we can tell the mass communications data collected at Waihopai and by the other Five Eyes systems is shared among the five partners to be filtered and further analysed for their own purposes.  Some of these purposes (particularly in the case of the American partner) have been of a nature that would concern most New Zealanders: some examples have been the use of such intelligence in the Iraq war, the use of intercepted information for drone strikes, and America’s use of communications intelligence for a stance towards China that is more confrontational than our own.

There are alternatives 

In terms of dealing with real criminal threats emanating from overseas, the committee should consider consolidating operations in single agency, the Police, which would mean closing down the GCSB as a separate entity.  The Police have their own intelligence system, including links with overseas law enforcement agencies, and have a greater degree of accountability than the GCSB to Ministers, Parliament and the public, and to inspection agencies like the Independent Police Conduct Authority. The Police are also the agency with the track record of dealing with terrorism-related incidents in New Zealand involving foreigners, of which there have only two in recent times. It was the Police who tracked down the French government terrorists who bombed the Rainbow Warrior, and it was the Police who brought to trial two Mossad agents, caught in the process of fraudulently obtaining New Zealand passports in order to conduct terrorist acts.

The Police also have a significant cyber-security capacity, which could be expanded by folding the GCSB capability into it. The New Zealand National Cyber Security Centre could then become an essentially Police agency.

Closing down the GCSB would help avoid the problems I have described above.  But if the Committee doesn’t want to go that far in its recommendations, let’s at least have a more open debate as the nature and functions of the GCSB and its relations with its Five Eyes partners, and the extent to which the GCSB is or isn’t of benefit to New Zealand.

Several of my recent Daily Blog posts have been on intelligence issues

My recent Daily Blog posts have covered the furore around the illegal spying by the GCSB on New Zealanders, as well as following up the Snowden revelations on mass US National Security Agency surveillance – in this context I noted how wrong it has been for the GCSB to help the US National Security Agency to spy on China. Other blogs have covered the needless imprisonment of innocent men at the Guantanamo prison, and the success of the independence movement of French Polynesian in getting their territory inscribed on the UN list of nations to be decolonised.  Go to:  http://thedailyblog.co.nz/category/bloggers/keith-locke/  for the posts.

Keith Locke: US spy agency may be passing info on Kiwis to GCSB

The following opinion piece from me was published in the New Zealand Herald on 10 June 2013.

It has now been established that the United States National Security Agency (NSA) has been systematically collecting the phone records of millions of Americans.

A relevant question for New Zealanders is whether the NSA has been passing some of this phone data on to our Government Communications Security Bureau (GCSB).

There are several indications that this may be so.

Firstly, the NSA and the GCSB are known to exchange information through an intelligence network called Five Eyes – which also included the British Government Communications Headquarters, the Canadian Communications Security Establishment and the Australian Defence Signals Directorate.

We also know the NSA and the GCSB pay particular attention to “metadata”, which includes phone call data such as who called who, at what times, and how long the conversations lasted.

The latest revelations in the United States are largely about this “metadata”. In April, Judge Vinson, of the United States Foreign Intelligence Surveillance Court, ordered Verizon (one of the largest US telephone companies) to give the NSA “on a …daily basis” electronic copies of “all call detail records or ‘telephony metadata’.”

In March, the Kitteridge report confirmed that our GCSB had provided “metadata” on some of the 88 New Zealanders spied upon between 2003 and 2012 in support of 55 Security Intelligence Service operations and one Police operation.

Last month, the Inspector-General of Intelligence and Security, Paul Neazor, analysed these 56 operations and concluded (according to the summary provided by GCSB director Ian Fletcher) that 34 out of the 56 operations “involved the [GCSB's] collection of metadata”.

This poses the question of what “added value” this GCSB metadata provided to these predominantly SIS operations, given that SIS warrants give that agency its own access to New Zealand telecom call data.

The probable answer is that the GCSB’s contribution was international phone and email metadata relevant to SIS’s targets supplied by its four Five Eyes partners, with the NSA being the main provider. A small proportion of this metadata may also have come from the GCSB’s own asset, the Waihopai spy base, which intercepts non-military communications passing through two geostationary satellites over the Pacific equator.

What is worrying about the attention being given by the SIS and GCSB to the 85 New Zealanders identified in the Kitteridge report is that not a single one of them seems to have broken the law. Mr Fletcher says in a May 21 press statement that “no arrest, prosecution or any other legal processes have occurred as a result of the information supplied to the NZSIS by the GCSB”.

This suggests that many of the New Zealanders the SIS and GCSB are targeting, such as new migrants from Islamic countries, are not really potential criminals and shouldn’t be attracting such attention from our spy agencies.

It may be that the agendas of both the SIS and the GCSB are driven by an overblown perception of a security threat, resulting in an excessive intrusion on the privacy and communications of innocent New Zealanders.

This overreaction may be in part a result of New Zealand’s close association with US spy agencies, which tend to exaggerate the danger of terrorism, and treat people’s right to privacy as a secondary matter.

For example, the US director of national intelligence, James Clapper, said recently that the collection of every citizen’s phone information is necessary “because more narrow collection would limit our ability to screen for and identify terrorism-related communications” (Guardian, June 7, 2013). We should press our government to rule out any such comprehensive phone data collection here. The message should be that it is not acceptable and would violate our Privacy Act.

We should also be wary of extending the powers of the GCSB, as a Bill before Parliament seeks to do, when we know so little about the relationship between our electronic spy agency and the NSA.

There could be damage to New Zealand’s reputation as an independent player if the GCSB is seen to be adopting the targets and overly intrusive methods of the NSA – by virtue of being so closely tied in with the Five Eyes network.

In trying to sell the Bill to the public, Prime Minister John Key has been playing up the GCSB’s cyber-security role. This is a useful service to the public. However, it is only a small part of what the GCSB is doing.

It is ironic that at the same time as GCSB is helping ensure the confidentiality of government communications, it may be collaborating with a foreign agency, the NSA, which is breaching the confidentiality of communications between its citizens by ensuring that their phone records are passed on to government agencies.

Former MP Keith Locke was the Green Party’s spokesman on intelligence and security issues.

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