It is hard to decide what is the most alarming aspect of Prime Minister John Key’s plans to expand the role of Big Brother. Or, as Key describes it, his “proposals to significantly strengthen the oversight regime across the intelligence community.” Is it the fact that the GCSB has apparently been behaving like a rogue agency for the past 10 years (at least) under successive governments, and has been carrying out spying on New Zealanders, even though it has repeatedly said it doesn’t? Incredible really, given that the GCSB legislation could hardly be clearer in forbidding the GCSB from spying on New Zealand citizens and permanent residents – even when, and one would have thought especially when it is offering “agency support” to the Police and to the SIS.
On the evidence contained in the Kitteridge report though, the GCSB cannot read their own legislation correctly but thought “what the heck” and broke the law as it is written. Some 56 possibly illegal operations involving 88 New Zealanders have apparently taken place since 2003. These, remember, are the same security agencies on whom we bestow extensive powers and the ability to operate under secrecy. That trust has clearly been misplaced. It turns out that the GCSB are part of the problem – of privacy violation – as much as they are part of the solution.
The GCSB’s evidently extensive role in providing “agency support” to the SIS (and Police) amounts to a de facto merger of the SIS and GCSB. Oh, Key’s plans to legalise the GCSB’s role in spying on New Zealanders will only occur, he says, with ‘proper’ oversight mechanisms. That’s no re-assurance. The current watchdog on the security services happens to be the Inspector-General of Intelligence and Security, Paul Neazor. The inadequacy of that office and its lack of proper resources was already evident long before Dotcom, during the Ahmed Zaoui case. Back in 2007, here’s how I described the situation:
The Auditor-General, IRD and Treasury may be funded sufficiently to keep an eye on how money is being spent and recouped – but the agencies supposed to protect our rights as citizens have to get by on starvation rations and, in some cases, with a questionable level of independence.
The Police Complaints Authority, the Ombudsman’s Office, the Privacy Commissioner etc… all have obvious problems. Some totter along from one financial year to the next – underfunded, under-resourced and overlooked.
Even by these standards, the Office of the SIS Inspector-General is a special case, the kind of watchdog agency you’d expect to find down at the $2 shop. It is a part-time job with a part-time secretary, operated from a spare desk at the Chief Electoral Office [subsequently at the Justice Department] and with no in house expertise in the fields it is supposed to monitor.
In the Dotcom case, the inadequacies of our current oversight systems are coming home to roost. Yet significantly, the confusion supposedly being felt by the GCSB over whether its role as an “agency support” enabled it to spy on New Zealanders – in contravention of its legislation – has never inspired the Inspector-General to raise any red flags around that issue. No surprises there. In reality, the Inspector-General’s office is ripe for capture, and it has been set up to fail.
Surely, it is laughable to think that an elderly retired judge working part time and with no experience in intelligence and security issues – and with no support staff to monitor how these laws, practices and technologies are developing around the world – can keep a meaningful eye on the operations of our security services. The current powers of the parliamentary committee on security and intelligence matters are just as woefully inadequate. It meets briefly and irregularly, its members have no security clearance and thus no access to security information, and it cannot say a thing publicly about its deliberations.
As mentioned, Key’s plans to legalise GCSB spying on New Zealanders amounts to a virtual merger of the SIS and GCSB – and as yet, Key has offered no details about what he thinks “ proper oversight” would entail. It should not be his call. Agencies should not get to choose their own watchdog, and how long its chain should be. Parliament should be debating, and deciding, such matters – although of course, it would almost certainly do so along party lines.
The Fletcher affair has created a further, disturbing dimension. The very public dissent by former military chief /former GCSB boss Sir Bruce Ferguson over the relevance of a military background for the top GCSB job can be taken as an indirect signal of what is going on here. Namely, the cleaning out of the former military old guard at the GCSB, and the installation of a “change manager” in Ian Fletcher who has personal links to the PM. This amounts to a concentration of the security services, bringing them more closely in line with the PM’s policy agendas.
That centralisation of secret power and surveillance activities should be a worrisome trend for anyone concerned about civil liberties. The security services are not supposed to be at the beck and call of the government of the day. Fletcher –as the former head of what used to be the British Patents Office – has particular expertise in copyright law. Beyond the obvious relevance to the Dotcom case, copyright issues are also a prime feature of the Trans Pacific Partnership trade talks, and have been a focus of the protests being mounted against the TPP, worldwide – partly because of the implications that the extension of patents have for Pharmac.
Can it be entirely accidental that the new head of the GCSB brings extensive experience in such matters to his new job – whilst having no experience whatever in the GCSB’s traditional role of monitoring foreign (usually military) developments in the region that might pose a threat to New Zealand’s national security. Anyone involved in the campaign against the TPP would now seem ripe for surveillance, as part of the “agency support” to the Police and SIS in their monitoring of those critical of the government’s TPP agenda.
At the very least, any “proposals to significantly strengthen the oversight regime across the intelligence community” will have a chilling effect on protest and dissent. Plainly, the PM wants to clean out the old military boffins at the GCSB, to effectively merge the SIS and GCSB in some respects and to render the security services more readily able to spy upon New Zealanders. This is coming from a National Party that prides itself on being the champion of individual freedoms, and on being wary of the extension of state power.
On RNZ this morning, security analyst Paul Buchanan offered a useful alternative structure. Buchanan suggested making the Inspector-General a fully independent and properly resourced office responsible on an ongoing basis to Parliament, and not to a Minister. He also suggested making the parliamentary committee on security matters a genuine, properly empowered and resourced oversight body. Not a complete solution, but a good start. The real problem though, is the wilful blurring of the SIS and GCSB roles. The way ahead shouldn’t involve tidying things up to legalise the GCSB’s spying on New Zealanders. The GCSB should be being required to stay focused only on the foreign threats to our security.