Gordon Campbell on John Key avoiding being held accountable for the SIS and GCSB

Will the management split on security and intelligence issues that Prime Minister John Key announced yesterday serve to enhance or to reduce his public accountability on such matters ? On RNZ’s Checkpoint last night, Key was vague about the substance of the division of labour, which seemed to entail a good deal of overlap between his role and that of Attorney-General Chris Finlayson.

Key told RNZ’s Mary Wilson he would be playing more of a ‘leadership’ role on the formation of policy, matters of agency funding and the reform of the SIS, while Finlayson would be handling the “day to day’ matters of signing off interception warrants and shepherding SIS and GCSB legislation through the House etc. Yet Key would still remain aware of the targets of SIS/GCSB interceptions, and Finlayson would now be attending Key’s weekly briefings with security agency officials.

So, if a Key is playing the ‘leadership” role in policy formation at our security agencies – and logically, if the buck stops with the leader – does that mean Key will be accountable via OIA requests and ministerial inquiries if and when a controversy erupts over the activities of these agencies? Probably not. In future, it will be Finlayson who will be signing off the interception warrants and steering the agency-related legislation through the House. As a result, it is hard to see how the role that Key has assigned himself – the Minister of National Security and Intelligence – will be accountable to anyone, given that the nominal responsibility for agency operations will be being handled by Finlayson. In effect, Finlayson will operate as a buffer for Key, against any external questioning.

Incredibly, some political analysts have rationalised the split on these grounds, ie, that this will save Key from having to answer questions that took up a lot of his time and landed him in a political ‘quagmire’ during the government’s last term. No more of that sort of nonsense for our busy PM in future! Basically, the split is an exercise in political management for a Prime Minister who royally screwed up in the past (a) when the GCSB he nominally supervises went rogue and illegally intercepted the communications of over 80 New Zealanders (b) when the PM couldn’t keep his story straight over the appointment of his old chum Ian Fletcher to the top job at the GCSB and (c) when Key omitted to inform the public about the scope of the GCSB’s plans and intentions for carrying out mass surveillance, during the run-up to the passage of legislation last year that vastly increased the agency’s powers etc etc.

In other words, if Key and his government had a track record of being candid and trustworthy on security and intelligence issues this split would look – as intended – like merely a management change. Instead, it is more about political insulation, and about cutting off the avenues of public accountability for the man at the top of our security pyramid.

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Making Hager Pay. We’ve good reason to feel concerned about the politicization of our security agencies and Police. The 10-hour Police raid on Nicky Hager’s house, the ransacking of his files and seizure of his tools of trade – research files, computers, Ipod, camera etc – is reprehensible, especially when these actions are being directed against someone the Police acknowledge to be a mere “ witness’ in the criminal complaint they are investigating. It looks like petty and vindictive payback for Hager embarrassing the government, and can only lower the public’s estimation of the Police.

How can the Police violate Hager’s rights in this fashion, given the Bill of Right’s protections against unreasonable search and seizure? As No Right Turn has pointed out, the likely tool involved has to do with the powers granted to Police under the draconian Search and Surveillance Act of 2012 :

These allow the police (and a host of other agencies) to apply for a production order for any document for which they could obtain a search warrant (basicly, anything containing evidence of any imprisonable offence). “Document” specifically includes call-data, including telecommunications stored on a network-provider’s network (so text messages and stored voicemail), and the purpose of the provision was specifically to allow police to access such information (as well as banking information and so forth). That is, its all about extracting information from third parties. But the provisions around privilege (including legal professional privilege and journalistic privilege) apply only to the target of such an order. Telecom and Vodafone have no privilege over your communications with your lawyer, so those provisions are basically a dead letter.

Hager’s attempt to retrieve his property from the Police will now presumably shift to legal argument over his responsibilities under for example, this section of the law. Note the net in the wording that tries to scoop up both documents in his possession, and documents under his control. Almost certainly, the Police knew beforehand that they would get no closer to the identity of Slater’s site hacker by dint of their actions against Hager. That 10 hour search was really about intimidating journalists (and anyone who co-operates with them) if their work happens to embarrass the government. A message is being sent by those in power. Your home will be searched, your personal effects and business files will be rummaged through, your belongings will be seized, and your ability to do your work will be sabotaged. Why? Because they can.

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Down For the Final Count. With the specials counted and the shares of wasted votes re-assigned, some interesting sums can now be done. For all the talk last year about mobilising the 800,000 people who didn’t vote in 2011, only 160,000 more votes were cast this year than in 2011. Where did they go? Certainly not to the centre-left. The Greens got 10,000 more votes than in 2011, while Labour got almost exactly 10,000 fewer. National grew its vote by 72,865. Winston Peters must still be wondering how on earth New Zealand First could have won 61,000 more votes this year than it did in 2011, while still ending up as a mere bystander in the future business of this government.

So if – as I do – you view Peters as a centre-right populist, this means that the centre-right ended up winning a whopping 83% of the additional votes cast at this year’s election. Essentially, the centre-left managed to grow its vote only by the 34,000 votes inspired by Internet Mana – to no positive effect, and with the Mana Party’s demise as a parliamentary presence as collateral damage.

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