Gordon Campbell on how spying on politicians should be managed in future

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For the meantime, Prime Minister John Key has kicked for touch on whether security services directly responsible to him should be allowed to keep open and add to the security files they hold on his fellow parliamentarians. Other countries have been grappling with the risks such confidential information can pose. Our recent past offers good reason for concern. During the 1970s, confidential police information was used by Prime Minister Robert Muldoon to severely damage the political career of Labour MP Colin Moyle.

The issue has arisen again because of the SIS file maintained for the past 51 years on the Greens MP Keith Locke. Key has asked Paul Neazor, the Inspector-General of Security of Intelligence, to report back to him on the issues involved, within a couple of weeks.

Specifically, Key asked Neazor in his letter to inquire into (a) ‘the adequacy and suitability of the Service’s policies relating to the creation, maintenance and closure of files on New Zealand persons” in terms of the SIS Act 1969, and (b) the ‘adequacy and suitability of the Service’s compliance with such policies in the light of matters raised in the public domain.’ Presumably, (b) means the concerns raised by Locke.

Does, and should, the fact of being an MP make any difference to whether and how surveillance is carried out ? Yes. Clearly, there are implications for the proper functioning of parliamentary democracy if the security services can routinely, or even just occasionally, spy on the work of MPs while being responsible to the Prime Minister. The system cannot just presume that everyone involved will act honourably, in the absence of effective oversight.

This issue is addressed by the money quote in the Key letter. ‘You will be aware,’ Key says, ‘that I have emphasised publicly that a person’s occupation does not of itself determine whether the Service should, or should not be collecting information about a New Zealand person. I would appreciate any advice you may have on that point.’

No one knows how Neazor will carry out his task. His office is chronically under resourced, and has neither dedicated funds nor staff to carry out research. Scoop has therefore tried to find out how other jurisdictions manage the business of the security services spying on sitting MPs, while still being responsible to a senior government Minister. I contacted Neazor’s counterpart Ian Carnell, the Australian Inspector-General of Security and Intelligence, and approached the British human rights organization Justice for information on current practice in the United Kingdom.

Key’s query about whether the occupation matters is easily answered. Yes it does. Other countries recognise that special sensitivities apply to the surveillance of sitting politicians. The Canberra Times reported in October 2008 that Carnell began a project last March to review the retention of keeping intelligence information about sitting MPs.

To me, Carnell replied that there was no unclassified document on his full findings. What content there was in the public domain, he indicated, could be found in his 2008 annual report under the sub-heading : ” The retention of intelligence information on currently serving politicians.”

Carnell’s public report indicates that his watchdog role on this subject is something that he believes he should regularly carry out as part of his traditional role – even if there is no external evidence that the security services have been acting in a politically partisan fashion : I wrote to the Director-General of Security proposing a new inspection project covering these matters. In broad terms the project involved a review of relevant ASIO policies and procedures and then identifying and reviewing a sample of records which might include reference to currently serving parliamentarians.

My decision to commence this inspection activity….reflects my view that this is an important inspection activity that my office should undertake from time to time and an increase in the resources available to me.

At the end of the reporting period the project was largely completed. The preliminary outcome of this activity was that there was very little of concern identified. I was minded at the conclusion of the reporting period to make a number of minor suggestions to the Director-General of Security to tighten procedures (and indeed have since done so). It is my intention to follow this up in the forthcoming reporting period.

Given the secretive nature of SIS/ASIO work, it is highly unlikely the media or the public will be able to point at direct evidence of the security services acting in a politically partisan manner. It is only as historians have gained access to released files that the pattern of political partisanship in intelligence gathering has been exposed. As the same Canberra Times report says of Australia :
From the 1950s to the 1970s, ASIO surveillance of the Communist Party yielded much information about left-wing Labor politicians, some of which was used politically by conservative governments.

Allegedly, this same skew in ASIO information gathering continues to the present day : One former ASIO officer told The Canberra Times that in recent years surveillance of anti-globalisation and environmental protest groups had resulted in Australian Greens MPs being recorded on ASIO, Australian Federal Police and state police files.

In other words, the potential for being a security threat is very much in the eye of the beholder, and the political bias of the security service while probably unconscious, has nonetheless been real. As the Keith Locke SIS file reveals, legitimate political activism has consistently been treated by the security services as reportable evidence of potential subversion.

Moreover, the personal information contained on confidential files can either be used directly ( as Muldoon did with Moyle) or leaked strategically to the media or via lobby groups, and thereafter plausibly denied.

Again, the Canberra Times provides a possible example : …. In 2001, a small group of Sydney-based military intelligence officers tried to smear Labor opposition leader Kim Beazley with an allegation that he had been compromised by Indonesian intelligence because of a friendship with Indonesian female journalist Ratih Hardjono.

A written report was sent up the chain of command to the office of defence minister Peter Reith. Labor got a whiff of the allegation and asked ASIO to investigate. ASIO director-general Dennis Richardson found the allegations against Mr Beazley were baseless, and the matter went no further.

No further that is, beyond the fact that politically damaging information, almost certainly derived from security sources, had been successfully got out into the public arena.

Key, and the Wilson Doctrine. So far, Key has made a distinction between issuing an interception warrant ( ie, for bugging, wiretap or interception purposes) and maintaining an SIS file. While he may have not sanctioned a wiretap or other forms of communication intercept on fellow MPs since the election last November, this does not even remotely address the concern that is central to the Locke example – namely, whether constituency work by MPs falls under the ambit of current SIS rules and procedures for surveillance. And if so, on whose file should such surveillance be recorded? In Locke’s case, visits to him by members of the Tamil community and his own visit to Sir Lanka both ended up as additions and with commentary, on his own SIS file.

Plainly, this is an intrusion and an obstruction to his constituency work. Routinely, constituency contact means meeting and listening to a wide range of people within the community, and it does not imply any endorsement of the views they hold, or the goals they pursue. Indeed, the job of being an MP often involves trying to be a mediator and a resolution point in community disputes, and in sorting out a whole range of conflicts between the community and officialdom.

To have such activities treated by the SIS as a potential threat to national security is intrusive, and poses in itself a threat to the proper functioning of a democracy. At the very most, there might be a case for parliamentary contact to be noted and added to the files of persons already under suspicion – but surely, not to the file of the MP involved !

As No Right Turn has argued, there is some legal cause to treat SIS surveillance and reporting on the work of sitting MPs as a contempt of Parliament, and a reportable breach of privilege. In his upcoming report, Neazor will need to align the provisions of the SIS Act 1969 with Standard Order 400 (1) which says : The House may treat as a contempt any act or omission which—

(a) obstructs or impedes the House in the performance of its functions, or

(b) obstructs or impedes any member or officer of the House in the discharge of the member’s or officer’s duty, or

(c) has a tendency, directly or indirectly, to produce such a result.

Monitoring Locke’s travel to Sir Lanka, as No Right Turn points out, could arguably be seen as an attempt to obstruct or intimidate, while spying on his meetings with his constituents is definitely beyond the pale. “Spying on them interferes….both directly, and indirectly – in that knowledge that meetings are monitored may make people less likely to raise concerns.”

In Britain, the rules and conventions about spying on sitting politicians were set out by the so called Wilson Doctrine articulated by Prime Minister Harold Wilson in 1966, and re-affirmed by Tony Blair as recently as 2006. In brief, the Wilson Doctrine forbids the bugging of the telephones of sitting MPs, and the subsequent clarifications ( all cited in the Guardian article linked above) have extended that ban on the surveillance of MPs to the intercept of all forms of written and electronic communication.

The key word here though is ‘intercept’. Does the Wilson Doctrine ban only listening in on active communications as they are taking place ? That appears to be the case. In the recent case of the British Conservative MP Damian Green, it seems that his computers could be seized and his parliamentary emails trawled through – even going back years – because legally, this was a ‘seizure’ and not an ‘intercept’ that violated the Wilson Doctrine.

At best, any surveillance protection under the Wilson Doctrine seems to apply only to the MPs’ outgoing comments, and not to any inward emails from constituents. Which raises a core issue for Neazor to consider in his report – namely, what rules of access if any, should and do the SIS and Police Anti-Terrorism Unit have to the New Zealand parliamentary e-mail system?

In its emailed commentary to me on the current state of the Wilson Doctrone, the Justice human rights organization in Britain also pointed me towards the case of British MP Sadiq Khan.

Following the inquiry into the bugging of Sadiq Khan MP when he visited a constituent in jail, the Government stated that it will review the statutory Codes of Practice, as regards covert surveillance. Conversations between Members of Parliament doing their constituency business, and their constituents, should be considered as “confidential information”, and treated in the same way as other confidential information, such as conversations between a person and their lawyer or Minister of religion. This will more clearly give such conversations additional protection. There was some scope for confusion as to the correct inter-relationship between the Wilson Doctrine and the legislation. The Government does not propose to amend the Wilson Doctrine but accepts that current Codes of Practice do not fully clarify the extent to which reviewing officers and authorising officers should pay special attention to conversations involving or potentially involving a Member of Parliament.

Finally then, to sum up ; both the Wilson Doctrine and the last annual report by Ian Carnell recognise that occupation does, and has always, mattered when it comes to surveillance by the state. Spying on sitting MPs poses special risks that require special solutions, especially given that the likes of Keith Locke, Sue Bradford and Hone Harawira have all entered Parliament from a background of lawful, but significant political activism.

As a minimum response, Key – as the Minister responsible for the security services – should convene an expert, bi-partisan panel to devise Codes of Practice for the surveillance of sitting MPs. From the outset, such procedures should dictate that once someone gets elected, their SIS file is automatically closed, and only-re-opened if and when fresh and compelling evidence is presented to both the existing independent oversight bodies, to justify the resumption of surveillance.

Clearly, something like a Key Doctrine on the surveillance of parliamentarians needs to be formulated, and publicly announced. For starters, it will need to ensure that the SIS cannot drive a truck between the meanings of ‘seizure’ and ‘interception.’ It will also need to declare the parliamentary email system out of bounds to the SIS and the Police Anti-Terrorism Unit. As Justice suggests, we should seek to put the communications of MPs and their constituents onto the same privileged plane as that between lawyers and their clients, and parishioners and their ministers of religion.

Plainly, Paul Neazor will need more than a couple of weeks – and ideally, more than a few helping hands – if he is to make a useful fist of devising such a system.