[Back in February I wrote for the New Zealand Herald this opinion piece (below) on the illegality of the NZ government taking away the passports of New Zealanders for intending to fight overseas. I argued that the “national security” grounds in the Passports Act for cancelling NZ passports don’t apply because the Terrorism Suppression Act, to which the Passports Act refers, specifically excludes people fighting in a war. Prime Minister Key also has little regard for international law in this area, with his recent comments that because New Zealand has designated as a terrorist organisation one of the combatants in Syria and Iraq - the Sunni extremist ISIS group - it’s ok for the United States to drone-assassinate its members.]
The Government may well have acted beyond the law in cancelling the passports of New Zealanders intending to join rebel groups fighting the Assad regime.
Under Section 18 of the New Zealand Bill of Rights Act, “Everyone has the right to leave New Zealand” and the Passports Act 1992 guarantees that each New Zealander will be provided with a passport to leave the country when they want to.
Section 3 of the Passports Act states that “every citizen is entitled as of right to a New Zealand passport”.
Until recently the only restraint on that provision was that wanted criminals and those on bail or parole could have their passports taken away to stop them leaving New Zealand.
In 2005 the Passports Amendment Bill added “national security” grounds. As a Green MP I attended the select committee hearings on this bill and was worried that the Government could misuse its new powers.
My particular concern was that the bill defined “national security” mainly in terms of the Terrorism Suppression Act 2002, which I believed has an overly broad definition of terrorism.
How one interprets the Terrorism Suppression Act is critical to the debate over whether the Government has acted legally in depriving citizens of their passports when they want to leave New Zealand to fight in Syria. The other two national security grounds the Passports Act provides for cancelling a New Zealand passport – facilitating “the proliferation of weapons of mass destruction” or causing “serious economic damage to New Zealand” – do not apply to people going to fight in Syria.
The problem the Government has with the application of the Terrorism Suppression Act to fighters going to Syria is that Section 5 of the act says they are not committing “terrorist acts” if anything they do “occurs in a situation of armed conflict”. Fighting with arms against the Syrian Government is not in itself grounds for having one’s passport withdrawn.
A passport could be cancelled if the person joins a terrorist group in Syria, but it seems that the people who had their passports cancelled hadn’t got that far. The fact that someone “might” participate in a terrorist group, or even that they “intend” to participate, would not be enough to be caught by the Terrorism Suppression Act.
In any case, New Zealand volunteers would be more likely to fight for the major rebel coalition, the Free Syrian Army, than the smaller groups linked with al-Qaeda.
I agree with the Prime Minister that we should discourage New Zealanders going off to fight for the Free Syrian Army. If the war in Syria has taught us anything, it is that there is no military solution, only a political solution. But taking New Zealand passports off prospective fighters is not the best way to discourage such fighters, nor is it a legal way.
New Zealanders are prohibited by law from becoming mercenaries, but not from becoming regular soldiers in a foreign army. Kiwis serve in the armed forces of many nations. Sometimes they are fighting in wars New Zealand opposes, as was the case with Kiwis serving with American or British forces in Iraq. We might disagree with an army or war they choose to fight in, but they are free agents.
History shows that New Zealand governments don’t always get it right. The Muldoon government attacked Nelson Mandela’s African National Congress as a terrorist organisation, but this didn’t stop some New Zealanders, such as Father Michael Lapsley, from joining the ANC. Father Lapsley, who lost both hands and an eye when a letter-bomb sent by the apartheid regime blew up in his face, is regarded as a hero in post-apartheid South Africa. If the “national security” provisions in the Passports Act had existed in Prime Minister Muldoon’s time, he may well have tried to cancel Father Lapsley’s passport and seriously hamper his covert work for the ANC.
I can understand John Key’s eagerness to show that his intelligence services are on the job and looking out for dangerous people. But isn’t it also dangerous for him to go beyond the law and stop New Zealanders who are facing no criminal charges from leaving our country.
In his Dialogue page piece this week, Paul Buchanan calls on our Government “to prepare contingency plans for the diplomatic fallout that inevitably lies ahead” when information from Edward Snowden’s documents shows that our GCSB is helping its Five Eyes partner agencies to spy on foreign Governments.
Buchanan rightly points to the contradiction between New Zealand’s reputation as an independent actor in world affairs and its role in helping the United States, Britain, Canada and Australia spy on the rest of the world.
In politics, as in life, the best way to deal with a contradiction is to resolve it, not try your best to hide it, as Buchanan seems to advocate.
Buchanan asks: “What purpose is served by these revelations other than to hurt the foreign relations of the ‘outed’ countries?” I can think of other purposes.
The revelations have helped many Governments appreciate the extent of Five Eyes interception of their communications and take counter-measures. This serves the national interest of these countries, many of which are friendly to New Zealand. How does it help New Zealand when other nations see their national interests being subordinated to the national interests of just five countries: the United States, Britain, Canada, Australia and New Zealand?
New Zealand, as a small country trading with many nations, has an interest in a more equitable world, where the already rich and powerful countries don’t have too much advantage over developing nations. It doesn’t help when the United States superpower, through its National Security Agency, intercepts the diplomatic and business communications of other nations to give itself an advantage at world meetings and trade talks.
The Snowden revelations also show our privacy being threatened by the bulk collection of phone call and email data by the Five Eyes nations. This week we, learned from the Snowden papers that the Defence Signals Directorate (now called the Australian Signals Directorate) was willing to share with its Five Eyes partners the “metadata” it gathers on millions of Australian phone calls and emails. The mass collection of such data is a privacy problem which legislators in several countries are now looking at.
I don’t give the same credence as Buchanan to claims by “US intelligence officials” that Snowden could be a Russian spy. This only serves to divert attention from the genuine privacy issues raised by Snowden. His revelations have been headlined around the world because people are concerned that we are moving towards a kind of “surveillance society” and putting pressure on politicians to come up with counter-measures.
Buchanan is right to predict that future revelations about New Zealand’s role in Five Eyes spying could “jeopardise its international standing at a time when it is seeking a seat on the UN Security Council”. However he doesn’t provide any suggestions as to what New Zealand’s “contingency plan” might be.
If New Zealand is shown to be helping the Five Eyes spy on trading partners in the Asia/Pacific, then nice, reassuring words won’t save us.
Our best response to countries we might be spying on is to say that we are setting up a public inquiry into whether it is still appropriate to be in Five Eyes.
• Keith Locke is a former Green Party intelligence spokesman
Today (31 August) the New Zealand Herald published my opinion piece critical of the GCSB, under the heading “Separate Spy Agency Not Needed” with a subhead: “Instead of spending $60m a year on a GCSB the cyber-security side could easily be transferred to the police.” The OpEd also questions the benefit of an agency whose dominant purpose is to spy for the NSA-led Five Eyes. The link is:
Instead of spending $60m a year on a GCSB the cyber-security side could easily be transferred to the police.
The Waihopai spy station sweeps up the communications of New Zealanders and foreigners. Photo / Mark Mitchell
It seems that both supporters and opponents of the GCSB bill are questioning the need for New Zealand to have a stand-alone electronic spy agency.
The Herald has reported that Dr Jim Veitch, a supporter of the bill, proposes a single intelligence agency, incorporating the GCSB, the Security Intelligence Service (SIS), the National Assessments Bureau and the Intelligence Co-ordination Group.
The government may be receptive to such a proposal, given it has been busy merging agencies to form such ministries as Business, Innovation and Employment.
Streamlining the provision of government services, avoiding duplication and improving co-ordination are laudable goals.
Unlike Dr Veitch, I oppose the GCSB bill, but I agree with him that we don’t need an independent electronic spy agency.
Let us look at the three functions of the GCSB, as outlined in the bill, and see where else they could be accommodated. The three functions are cyber-security, foreign intelligence collection and assisting the collection of intelligence by the SIS, the police and the Defence Force.
In selling the bill, John Key has emphasised the need for cyber-security and most New Zealanders agree with him that we need to protect our computers. But do we need a GCSB to do this? The police have their own cyber-security capacity, and are busy chasing and prosecuting cyber-criminals.
To avoid duplication it would be better for the GCSB’s cyber-security resource to be transferred to the police.
A similar argument applies to the assistance the GCSB provides to agencies like the police, which the bill would make legal. If it were simply a matter of the GCSB having the most sophisticated communications interception equipment then it would make sense for this equipment (and the people who operated it) to be handed over to the police.
This would also alleviate a fear that the GCSB is to be used to spy on New Zealanders. It wouldn’t, however, eliminate such concerns. The very nature of the GCSB’s foreign intelligence gathering is that it sweeps up the communications of both New Zealanders and foreigners. The international phone communications the GCSB intercepts through its Waihopai spy station don’t come with passports attached, so Kiwis are also caught in the net.
In addition, all the phone data drawn down into the satellite dishes at Waihopai is shared with the US National Security Agency (NSA), whose mandate doesn’t exclude spying on the communications of New Zealanders.
A deeper question, which has been insufficiently debated, is what benefit New Zealand gets from being part of the NSA-led Five Eyes electronic intelligence network.
The only successes claimed by the GCSB in its last 10 annual reports are that it has detected cyber-threats. No terrorists have ever been discovered, and as far as we can tell no one has ever been prosecuted as a result of information provided by the GCSB. In fact, in May the GCSB director, Ian Fletcher, proudly announced that “no arrest, prosecution or other legal processes have occurred as a result of the information supplied to NZSIS by the GCSB”, in support of SIS operations over the previous 10 years. By contrast, the police use their interception powers to catch dozens of criminals every year.
This suggests the GCSB adds little value to other government agencies in the detection of criminality. So why are we spending around $60 million a year on this agency?
It is probable – although we don’t know the details – the New Zealand government does get some useful tidbits of information from the Waihopai station and the Five Eyes intelligence network.
But in my opinion any such gain is far outweighed by the downside of other nations getting upset with us for being part of a five-nation network, led by America, which is spying on them.
It is clear from the Snowden revelations the targets of Five Eyes include the diplomatic communications of virtually every other nation – including our main trading partners in Asia and Europe.
It is hard to see what New Zealand gains from this. In fact, on some foreign policy and disarmament issues New Zealand is more aligned with European nations than the United States. Why are we part of a Five Eyes intelligence network that is geared to giving America an “information advantage” in its negotiations with Europe on trade and other matters?
If we did a proper balance sheet of the gains and losses from our Five Eyes membership, we might conclude that we should leave. If so, we might also decide that we don’t need a stand-alone electronic spy agency like the GCSB. The domestic functions the GCSB now has (like cyber-security) could be handled by better resourcing of other state agencies, particularly the police.
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.
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.
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.
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.
OPINION: Sri Lanka is not fit to host this year’s Commonwealth Heads of Government meeting, writes Keith Locke.
The Government needs to explain why it is not supporting Canada’s campaign to have the November Commonwealth heads of government meeting (CHOGM) moved from Sri Lanka.
Canada has given three main reasons for shifting the summit.
First, Sri Lanka has avoided any accountability for the thousands of Tamil non- combatants who were killed, mainly by government shelling, near the end of the civil war in May 2009. Estimates of the deaths range from 10,000 to 40,000.
In March 2011, a United Nations panel of experts found serious violations of human rights law had been committed by both “the government of Sri Lanka and the LTTE (Liberation Tigers of Tamil Eelam), some of which would amount to war crimes or crimes against humanity”. It said “the conduct of the war represented a grave assault on the entire regime of international law designed to protect individual dignity”. Since then the UN Human Rights Council has passed two critical resolutions, including one in March calling for a credible international inquiry into the allegations of war crimes.
The problem is the Sri Lankan Government won’t let independent investigators into the country.
Second, Canada argues that there have been no meaningful reconciliation moves by the Sri Lankan Government since the end of the war. The Sri Lankan military still holds sway in the Tamil north of the country, persecuting former supporters of the Tamil Tigers, and stopping life from getting back to normal.
All plans to devolve some powers to the northern Tamil region have been scrapped, despite a constitutional provision allowing for it.
Third, Canada has identified a growing authoritarian trend as the Rajapaksa government clamps down on dissent. The media has been a particular target, with several journalists killed, wounded or detained in recent years. In February a reporter for the Sunday Leader, Faraz Shaukatally, was shot and badly wounded. Last month, thugs believed to be backed by the military, raided the Jaffna office of the Tamil daily, Uthayan, and burnt its printing presses.
In January, judicial independence was dealt a severe blow with the impeachment of the Chief Justice, Shirani Bandaranayake. President Mahinda Rajapaksa ratified the dismissal despite rulings from the Supreme Court and the Appeal Court that the impeachment process was illegal.
Holding CHOGM in Colombo will make a mockery of the charter just developed by the Commonwealth and signed in March by the head of the Commonwealth, Queen Elizabeth.
This charter commits Commonwealth leaders to democracy, human rights, tolerance, freedom of expression, good governance and the rule of law – none of which are respected by the Rajapaksa government.
To make matters worse, Sri Lanka’s president, as the CHOGM host, will become chair of the Commonwealth for the two years until the heads of state next meet.
So far Canada’s campaign to move CHOGM away from Sri Lanka has met with little success.
Britain’s Conservative government has been critical of Rajapaksa but won’t support changing the conference venue.
Australia has turned a blind eye to the continuing tragedy in Sri Lanka, apparently so it can justify returning Tamil boatpeople to their home country.
And what of New Zealand?
Our Government seems to be keeping as quiet as possible.
It is not as if the New Zealand Government is ignorant of the dire human rights issues in Sri Lanka. I was a member of Parliament’s foreign affairs, defence and trade select committee when, in 2009 and 2010, it was briefed by the Ministry of Foreign Affairs and Trade.
We were told about difficult conditions in the internment camps for Tamils and the limitations on access by international aid organisations; the absence of a political reconciliation process; and the danger to democracy following the arrest of Rajapaksa’s opponent in the February 2010 election, General Sarath Fonseka.
Since then Rajapaksa has strengthened his grip on power, supported by his brother, Gotabhaya, who is defence secretary; another brother, Basil, who is economic development minister; and a fourth brother, Chamal, who is Speaker.
Amnesty International, in its latest report on April 30 said the “violent repression and the consolidation of political power go hand in hand” and “there is a real climate of fear in Sri Lanka, with those brave enough to speak out against the government often having to suffer badly for it”.
The reputation of both New Zealand and the Commonwealth is at stake here. New Zealand rightly challenges abuses of democracy in our region – such as in Fiji (which has been suspended from the Commonwealth). But we can be accused of a double standard if at the same time we allow the Commonwealth to be chaired for the next two years by a president who refuses any accountability for the deaths of so many innocent civilians in his country’s civil war and who is governing in an increasingly authoritarian manner.
To read some of my recent Daily Blog Posts go to: http://thedailyblog.co.nz/category/bloggers/keith-locke/
The blogs cover the GCSB controversy, the use of domestic drones, political censorship in NZ (on the dictates of the Chinese government) and the growing international support for the West Papuan cause.