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.