Valerie Morse: Spy report a dream come true for Five Eyes

The release of the Independent review of intelligence and security recommends a range of changes that are dangerous to ordinary people, both within NZ and elsewhere, and represents a massive concentration of state power.

The major recommendation is the consolidation of the two acts governing the GCSB and the SIS into a single law. As Radio NZ reported, “A single piece of legislation would mean both agencies operated under the same objectives, functions and powers and warrant authorisation framework.” This is deeply problematic.

It must be understood at the outset that both GCSB and the SIS are essentially political police: they exist to identify threats to the New Zealand state, essentially “national security.” These agencies do not exist to root out criminal activity, that is the job of the Police. And, although in 2013, the GCSB was given the power to assist police with any matter, it is not an objective of that organisation (or the SIS) to prevent, detect or prosecute criminal offending. While the definition of criminal offences are spelled out quite clearly in law with identifiable components and evidentiary thresholds, threats to “national security” are at best vague and difficult to define. Even the Law Commission, an eminent body of NZ legal practitioners, struggled to explain what the national security is, noting “While the New Zealand courts have not yet been called upon to define national security, we expect that they will also face difficulties in pinning down the concept although there are varying definitions in use.” (National Security Information in Proceedings, p.14).

Historically, the GCSB and the SIS have been organisations with quite different functions within the ambit of political policing. The SIS has been responsible for internal security, monitoring Māori, political dissidents, refugee and migrant populations, and extremist groups. The GCSB, on the other hand, is entirely a child of the US National Security Agency, is New Zealand’s contribution to the Five Eyes Network, and until relatively recently, worked on external signals intelligence (satellite, radio and internet).

Now, however, the argument goes, because of the global reach of the internet, the lines that existed between internal and external no longer matter. Thus, rationalising the two agencies into one makes sense. This reasoning dovetails nicely into the review’s recommendation that the current restriction on the GCSB to intercept the private communications of New Zealanders for its intelligence function be removed. The enormous powers of the GCSB can then be unleashed to capture all electronic communications freed of the restrictions on nationality, legalising all of the programmes that Edward Snowden told us were happening (XKeyscore, Prism, etc), but which the government has consistently denied for the past three years. These capabilities can be coupled with that of the SIS who can now install a video camera in your home for up to 24 hours with no warrant to provide “total information awareness”.

Michael Cullen’s ridiculous argument that the GCSB needs to spy on New Zealanders to protect them, providing the example of how hamstrung the GCSB would be should someone be lost at sea ignores the fact that the GCSB can already provide any assistance to the Police (with no thresholds whatsoever about what the Police are doing). And it is most likely that the Police would be the agency leading any missing person investigation. Cullen’s example demonstrates either a stunning lack of knowledge of the GCSB’s current powers or a desire to promulgate false examples of how such additional powers would be used. In either case, this person should not be leading a so-called “Independent review.”

After all, we should ask, just exactly how many New Zealanders lives have been protected by the GCSB/SIS ability to spy on them already? We have no evidence of any people being brought to justice for attempts to undermine national security – and surely if there was evidence of such offences, they would be followed up by both police and the courts. One New Zealander whose life was most definitely not protected by the GCSB’s ability to spy on him was Daryl Jones, a NZ citizen killed in a US drone attack in Yemen. He was subject to an intelligence warrant (we must assume a GCSB interception warrant as it is the agency with such capability) that provided the NSA with at least some data about him. Whatever your view about Daryl Jones, he was not an existential threat to New Zealand (or the US for that matter) nor did he received any due process of law (e.g. he was never brought before any court or accused of any crime). So the evidence we actually do have is of these agencies violating the rights of New Zealanders, not protecting them. There is a list of other violations of rights regarding both agencies that have been well canvassed in the media.

The recommendation that existing laws were “inconsistent, and a lack of clarity meant both the agencies and their oversight bodies were at times uncertain about what the law does or does not permit, which makes it difficult to ensure compliance" also beggar’s belief. The GCSB law was totally overhauled in 2013, the SIS Act has been amended a half a dozen times since 2007 – and somehow at none of these points were the “inconsistencies and lack of clarity” identified and cleared up? In fact, clarity was a major issue in the GCSB Act of 2013 debate: people could see that the law allowed the agency to spy on them in a way that had previously been unlawful. The idea that the GCSB interpretation of its law makes it "risk-averse" as the review notes, (in other words, unwilling to spy on people they aren’t sure they are allowed to) is a GOOD thing that should be applauded not something that needs to be amended to widen its scope even further.

Curiously, the government is hot-footing it to change the law to eliminate this “lack of clarity” but no such urgency has been extended to the Solicitor-General’s 2007 view that the Terrorism Suppression Act was “unnecessarily complex, incoherent…and almost impossible to apply to a domestic situation’” Rather it seems the government wants clarity to spy but not clarity on the reasons for its spying.

One final note is the commentary about the need for “bipartisan” support for intelligence law changes, such support ostensibly giving legitimacy to, and public confidence in, these agencies. But from their start, these agencies have been shrouded in secrecy and half-truths (if not outright lies). The public is hardly able to make an “informed decision” under these circumstances. What the public does know, however, has given rise to significant public unease – and that unease is not something new. In 1977, tens of thousands marched against the expansion of the SIS. In 2013, such demonstrations were repeated. These agencies act in the shadows and as such, most New Zealanders are unaware of what they are doing. It is not that they are unconcerned, but rather that other things are more obviously of urgent pressing concern: health, education, welfare and work. But when the realities of these agencies are exposed, it takes little for the public opposition to be mobilised. It is unlikely that this would ever be a make or break election issue, but that doesn’t mean that people in New Zealand consent to these agencies or to these powers, or that cross-party support gives them any legitimacy with ordinary people.

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