PBuchanan: Brief On Informants In Intel Operations

Revelations that for a decade the New Zealand Police used a paid informant to infiltrate progressive activist groups including Greenpeace, the Green Party and the Unite union have provoked outrage from civil libertarians. The latter argue that the infiltration of legitimate dissent and anti-status quo organizations, to say nothing of a prominent political party, is anti-democratic and intimidatory. They may well be correct in that assessment. But there is a backdrop to the recently unearthed evidence of Police spying on activist groups, and that needs to be understood in order to bring things into context.

A tried and true tool of Police work is undercover operations in which informants infiltrate criminal entities in order to secure evidence that will lead to arrests and convictions of those involved in illegal enterprise. Along with electronic and other forms of technical surveillance, this human intelligence collection is vital to the successful prosecution and incarceration of guilty parties. Drug cartels, gangs, auto theft rings—the spectrum of criminality can be undone with a well-conceived and executed undercover operation.

National intelligence collection follows a similar pattern, albeit with a focus on foreign actors and non-criminal organizations. Among the instruments employed is the covert operative, that is, a human intelligence collector in a designated area of interest, country or region. These come in several guises, ranging from official cover agents (diplomats and others with diplomatic passports who operate outside of the terms of their diplomatic credentials) to non-official cover agents (state agents posing as something else), to liaison agents (foreign intelligence partners) and contract assets. Contract assets are non-state agents who are hired to provide information of trends, issues, groups, security agencies or governments. They may display ideological affinity or nationalistic fervour (such as the use by Mossad of foreign Jewish spies and supporters of Israel known as Katya and Sayanin, or the use of Chinese ex-patriot foreign residents as spies by the PRC). They may simply be paid a contractual fee (as appears to be the case with the now infamous Mr. Gilchrist).

Contract assets are generally considered less reliable than state agents, especially if they are paid contractors, as their loyalties are often suspect and may go to the highest bidder. In addition, they often manufacture or embellish information to secure their fees, which taints the quality of the information being obtained. For example, US claims about Iraq’s weapons program in the lead up to the invasion were based in large part by the “evidence” provided by one paid informant that turned out to be exaggerated or false in most instances.

It is said that we live in an age of terror. The best tool to defeat irregular warfare groups that use terrorism as a tactic is timely intelligence on their operations. The better the intelligence on what extremists are preparing to do, the more likely that they can be disrupted prior to the event. That requires the use of electronic and other technical means, but it is mostly reliant on infiltrating such groups with informants, be these state agents working without official cover or contract assets working out of affinity or for a fee.

After 9/11 the field was opened for the expansion of such activities, including the targeting of “progressive” groups exhibiting sympathy towards Palestinian and/or other Muslim, Islamicist or pan-Arabic causes, anti-imperialist sentiments, or a penchant for engaging in direct action in order to pursue anti-status quo political agendas. Throughout the world governments rushed through anti-terrorist legislation expanding the scope of intelligence collection activities both foreign and domestic. New Zealand was not immune from the trend.

To the contrary. The fifth Labour government enacted security legislation that was more appropriate for the threat environment in Karachi than Kaikoura, and went so far as to violate the human rights of an Algerian refugee seeker in order to show that it was “tough” on terrorism. Security agencies, particularly the Police and the New Zealand Security Intelligence Service (NZSIS) saw the post-9/11 environment as a window of opportunity to expand the scope of their intelligence operations and the legal charter governing them. That in turn required bigger budgets and more personnel. All of this did, in fact, eventuate. Under provisions of the Terrorism Suppression Act of 2008, its predecessors and related legislation, the ability of the Police and intelligence agencies to conduct electronic and technical eavesdropping and the rights of “terrorism” defendants have been modified in favour of greater State powers and less legal protection for suspects and accused. All of this happened without public fanfare or, dare it be said, interest. The general attitude in parliament and on the street was indifferent to the trend and if anything, the ends were said to justify the means.

Security agencies argue that the infiltration of otherwise peaceful activist groups is justified because it is not the majority of activists or their activities that are of concern. The argument goes that such groups, be they Left or Right wing in orientation, tend to attract mentally unstable individuals with a penchant for violence that extends beyond the tactics or goals of a particular group. One deranged soul acting on a distorted ideological belief could cause a terrorist incident, and it is the security agencies responsibility to prevent that. Recall that amongst the original Urewera 17 “terrorism” defendants was an individual with obvious metal health issues. It was this individual who said the most alarming things recorded by Police surveillance. Thus the Police will feel that even if the others involved in the paramilitary camps (if that is in fact what they were) were no threat to society, stopping that one individual was worth the cost of the operation. That remains to be seen. The larger point is that crazy people are believed to gravitate to militant activist groups, and thus it is a security obligation to be on top of their activities.

In this case, even if the Police use of a paid informant to infiltrate a number of well-known progressive groups (environmental and animal rights activists for the most part, but including the fore-mentioned union and party as well) is justified on those terms, several questions beg. If there is one informer, there might well be others. Are the police targeting right wing militants such as neo-nazis and skinheads, or are they being ideological selective in their use of infiltration techniques? Why did they target the Green Party—once part of a Labour-led government—and why did they target Greenpeace when that organization has been the sole victim of foreign terrorism in New Zealand’s history (albeit at the hands of agents of the French state, which is now New Zealand’s intelligence partner)? The choice of targeted groups is otherwise a smorgasbord of progressive causes with shared memberships and proclivities for direct action tactics. Why, exactly, were they targeted?

There are organizational differences between activist groups and terrorist units that the Police are undoubtedly aware of. Protest groups work to develop horizontal solidarity ties with kindred outfits, other social movements and unions. They do so by overlapping memberships and developing networking circles in order to raise consciousness about their cause and increase the numbers present at symbolic acts of defiance. Taken as a whole this form of organization has come to be known as social movement unionism, which emerged as a late 20th century response by subordinate groups to the challenges of capitalist globalisation.

Irregular warfare units utilize small (3-5 person) cells that maintain rigid secrecy about their planned activities so as to not compromise operational security. Although they may organise within the confines of a larger group, they are autonomous and independent in their actions, maintaining a degree of psychological separation from the larger group. Their logistical preparations, training, reconnoitring and associated planning are done completely apart from the activities of the peaceful activist groups that they may be associated with. Given that there was much overlap between the memberships of the groups that Mr. Gilchrist was monitoring, and the fact that their activities were well publicised and much debated within activist circles, it appears that they did not, in fact, conceal potential terrorist cells or criminals within them.

The behaviour of the informant in this case is interesting. Intelligence collectors are charged with obtaining information about other people’s behaviour, plans and intentions. They are there to observe rather than meddle. In this instance Mr. Gilchrist was clearly a provocateur who incited others to escalate their direct action activities beyond their original intentions. That may well have been because he had to justify his pay. His behaviour is problematic because it compromises the integrity of the intelligence collected given that it is the contract asset who was advocating potentially violent acts. The Police have a word for this sort of behaviour: “entrapment.” Since several members of the groups he infiltrated have made mention of his incitement, it would have been difficult to secure convictions on the basis of any evidence he provided.

There are other oddities in this affair as well. The fact that the Mr. Gilchrist did not practice electronic security in his emailed reports to his Police handlers (as easy as establishing remote accounts on large internet providers), then asked his computer technician girlfriend to fix a minor technical problem on the home computer he was using to send his reports is evidence of supreme stupidity, amateurism, or perhaps something else. It was a very convenient way of “outing” that particular individual, who then expressed remorse for his actions. Yet it is interesting that the groups he was reporting on had members caught up in the Urewera Police raids. It is not specious to speculate that perhaps this convenient “outing” of Mr. Gilchrist deflected attention from the undercover operation that led to the tip-off that something funny was happening in the Ureweras. It might be equally plausible that it deflects attention away from ongoing clandestine operations against domestic political groups. The point is that the discovery of this particular informant was almost too easy. There be much more to this incident than initially meets the eye.

That may be the reason why Prime Minister Key has refused to conduct an investigation and supports Police assurances that the informant operation was in the interest of national security. Mr. Key is either naive to believe that Police explanation given who was targeted by Mr. Gilchrist, or is disinclined to challenge the security apparatus early in his tenure, or is disinterested in the civil rights implications of allowing the Police to conduct clandestine surveillance on peaceful activist groups whose direct action involves symbolic protests against abuses of power, corporate greed and contested property. Thus the Labour governments carte blanche approach to such activities is most likely to continue regardless of the change in government—and it could well get worse under National given its blanket support for the TSA and the US-led approach to the so-called “war on terror.”

The bottom line is that, under the now-fashionable concept of the “responsibility to protect” (whereby security agents act proactively to protect vulnerable populations from harm), the Police may be justified in using informants infiltrated into seemingly peaceful activist groups IF and only if they have clear indications that someone in those groups is planning acts of violence against people. A decade-long infiltration of an array of progressive groups suggests that is not the case, but instead is symptomatic of a general Police concern about those groups. That needs to be explained in detail. General assurances and Mr. Key’s belief aside, nothing indicates that the groups spied on by Mr. Gilchrist fit the profile of a terrorist or criminal incubator. Thus the points raised by civil libertarians remain true: what was the real purpose of this intelligence gathering operation, who in government knew about it, when did they know about it, how did Mr. Gilchrist’s outing happen so easily and why are the revelations of domestic political espionage so painless for the Police and their elected overseers?

For a country that prides itself on its respect for human rights and ethical public policy, these are vexing questions only if the Police (and the governments that supervise them) use their purported “duties to protect” in order to suppress domestic political dissent. Since the Police Conduct Authority would be hard pressed to reveal undercover operations, that means the matter is one for parliament to investigate. It remains to be seen if it has the interest or will to do so.

Paul G. Buchanan is Senior Lecturer in Political Studies at the University of Auckland, currently on leave as Visiting Associate Professor of Political Science at the National University of Singapore.

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