On security and intelligence issues, both major parties have always spoken virtually as one… so no surprise then, to hear that Labour has few problems with the government’s proposed extension of the powers of the intelligence agencies, which will legitimise the spying upon New Zealanders. Given the absence of any credible, immediate external threat, this extension of powers has had to be promoted in terms of ‘clarifying’ the existing situation, which only the spy agencies seemed unable to read and obey. The draft Bill sets out a new system of warrants, data sharing and oversight.
Given that the checks and balances in the proposed system are almost all ‘in house’ with sign-off being envisaged by the Attorney-General and the Commissioner of Security Warrants and with – in cases of accessing the data held by other government agencies – the complicity of the CEOs concerned. Beyond this rather cosy circle, the main (only) independent oversight role on compliance is the Inspector-General of Intelligence and Security, who has only belatedly been given a deputy and a few investigative staff. The gaping hole in the checks and balances in this system is the lack of any adequate parliamentary oversight – an option skated over by the recent Cullen/Reddy review, and absent from the draft Bill.
‘Trust us, we know what we’re doing’ would be a more credible message if those running this system had a track record to justify the public’s faith in them. The ‘jihadi brides’ fiasco was one recent example of scaremongering by the SIS, and the government.
In the past week however, we’ve been given ample added reason for suspicion. During the run-up to the 2013 election Edward Snowden alleged that New Zealand had asked the US National Security Agency to use its PRISM technology to spy on New Zealanders on the government’s behalf. Prime Minister (and then GCSB Minister) John Key had strongly denied doing so:
[Key] replied, “Well we do exchange – and it’s well known – information with our partners – so that’s the first thing, we do do that. How they gather that information and whether they use techniques and systems like PRISM I can’t comment on that…..The Prime Minister continued: “I can’t tell you how the United States gathers all of their information and what techniques they use. I simply don’t know that.” He added, “If the question is, ‘Do we use the United States or one of our other partners to circumvent New Zealand law?’ then the answer is categorically no we don’t.”
Except that….in a joint investigation, The Intercept website and Television New Zealand have just revealed that New Zealand did indeed avail itself of NSA – supplied, PRISM obtained surveillance data harvested from the online communications of New Zealand opponents of the Fiji regime of Frank Bainamarama.
More than 190 pages of top-secret NSA logs of intercepted communications dated between May and August 2012 show that the agency used the controversial internet surveillance system PRISM to eavesdrop on [New Zealander Tony] Fullman and other Fiji pro-democracy advocates’ Gmail and Facebook messages. Fullman is the first person in the world to be publicly identified as a confirmed PRISM target.
At the time of the spying, New Zealand’s surveillance agency was not permitted to monitor New Zealand citizens. Despite this, it worked with the NSA to eavesdrop on Fullman’s communications, which suggests he is one of 88 unnamed New Zealanders who were spied on between 2003 and 2012 in operations that may have been illegal, as revealed in an explosive 2013 New Zealand government report……The classification markings on the files — “REL TO USA/NZ” — make clear that the intercepted communications were to be released to New Zealand spies. In one of the files showing Fullman’s intercepted emails and Facebook chats, the NSA explicitly noted that the intercepted material had been forwarded to its New Zealand intelligence counterpart, the GCSB.
Who can trust the guardians, when such deceptions are already on the record? One of the other worrying dimensions of the draft Bill is the section on cover and immunities.
SIS and GCSB operatives will be able to acquire, use and maintain “any identity information necessary to maintain the covert nature of their work and keep themselves safe” and ensure that anyone else assisting them in these deceptions is similarly exempt from civil or criminal proceedings. Anyone assisting the security agencies will (for instance) be enabled – under the law – to lie about where they work, if this is deemed necessary and desirable to facilitate the operational needs of the spy agencies.
As for SIS and GCSB operatives, the way will be clear for them to seek and obtain fake birth certificates, IDs, utility bills, driving licences and passports, and to seek the collusion of ordinary citizens in obtaining such documentation. In Britain, similar latitude in this area has resulted in the use of the identities of dead children by Police. It has also seen undercover operatives enter into sexual relationships and even start families under fake identities. (Can sex be truly consensual when it is with someone whose allegiances are really the reverse of what they are claiming them to be?) Will NZ spies be now similarly “exempt from civil and criminal proceedings” as a result of being a party to such deceptions?
In Britain, some of the Police undercover units – such as the Special Demonstration Squad – formerly vested with these sweeping powers have since been closed down, for violating ethical standards.
The SDS is praised by police chiefs for vital undercover work that stopped serious crimes and violence. But it has been hit by a series of revelations about its officers sleeping with female campaigners, fathering children and using dead children’s identities. The Met declines to say why the SDS was shut down when some of its activities were hailed as being so crucial. A senior source with close knowledge of the secret discussions that led to the closure in 2008 told the Guardian that concerns about the unit surfaced in the Met in 2006, leading to a review being ordered. The source said: “It was worse than out of control. It was actually a force within a force, operating to set of standards and ethics more suited to guerrilla warfare than modern policing. Quite simply, they lost their moral compass and as a result nothing was out of bounds. A quite shocking vacuum of any supervision and leadership allowed this to happen. “…Poor supervision [by] managers were responsible for the retention of intelligence which failed to comply with the law.
In New Zealand, there is nothing about safeguards or boundaries in the covert operational powers being granted to our spy agencies. You could, for instance, drive a bus right through this ‘safeguard’:
“Under the Bill, use of aliases and providing misleading or false statements about where a person works must be consistent with the conditions of any relevant Ministerial Policy Statements.”
Here are a couple of songs about secrets, pre-Internet. Clearly, the job of being a secret agent has never been a picnic:
And being in a clandestine relationship also has its drawbacks, even when you’re as nice a 1950s personage as Doris Day, here seen and heard shouting secretly from the highest hill, while playing a pre-Deadwood version of Calamity Jane.