John Key implodes over the Gwyn report

The Cheryl Gwyn report into the release of SIS information relating to whether Phil Goff was or wasn’t briefed about the Israeli spy saga  was released on Tuesday. It makes for compelling reading as it investigates whether Goff lied, whether then-head of the SIS Warren Tucker behaved inappropriately, and what role the Prime Minister’s Office had in releasing the information to Cameron Slater.

The conclusions were, on occasion, somewhat unexpected. Had Phil Goff lied? Apparently not. It seems that although Mr Tucker briefly provided Mr Goff with a “preliminary document” relating to the Israeli spies, Goff did not read the document, and the matter was brushed over by Tucker. Essentially, both men were right: in Tucker’s mind, he’d briefed Goff on the issue, while in Goff’s mind, he hadn’t received a briefing at all.

The problem that then arose was that Mr Tucker seems to have taken personal affront at having his honesty and professionalism called into question by Mr Goff. To put Goff in his place, Tucker therefore released only selective documentation, which (when read in isolation) appeared to prove Goff a liar. The report drags Tucker over the coals for this, and the SIS has apologised to Goff.

So what then of Mr Slater and his OIA request? Slater’s explanation was that he received a tip-off from someone purporting to be from the SIS. He denied being tipped off by Jason Ede.

There are a few problems with that explanation though. For instance, the report finds that Slater was on the phone to Ede at the same time as his OIA request was made. Slater’s explanation to the media? Ede was in fact trying to persuade Slater not to make the OIA request. Yet, the report states at para 214:

Mr Slater also later provided a series of emails to and from Mr Ede, in which Mr Ede expressed his concern that he “might be in the shit” over his use of the NZSIS information. Mr de Joux explained to the inquiry he was not happy Mr Ede had chosen to work through Mr Slater rather than mainstream media because it would create an unhelpful perception. Mr Slater’s email reply to Mr Ede was that he would simply state that he had an NZSIS source. In the context of Mr Ede’s evidence, I interpreted that email to mean that Mr Slater would claim to have an NZSIS source in order to protect Mr Ede.

Why would Ede be “in the shit” over using SIS information if the tip-off to Slater came from the SIS? And why would Slater assure Ede that he would state he had an SIS source, if Ede actually had nothing to do with tipping of Slater?

So could Jason Ede’s phone and email records provide salvation for him? Well, as it turns out, Ms Gwyn suspects that Ede was using personal phones and email to conduct Prime Minster’s Office work. It’s a pretty blatant ploy by Ede to avoid OIA requirements.

But it gets worse. When asked by Ms Gwyn to disclose his personal emails and phone records, it turned out that he’d already deleted them prior to the commencement of the inquiry. It’s the high-tech version of spending the night in the archives room with the paper shredder…

There’s no provable connection between John Key and any of this, but it’s almost impossible to deny that his office didn’t play a role. Nonetheless, Key has gone on the offensive, attempting to argue that the report shows that his staff did absolutely nothing wrong. Of course, the report says nothing of the sort. In fact, it concludes that Jason Ede tipped off Cameron Slater, and it rejects Slater’s explanation that someone in the SIS tipped him off.

The email trail makes a mockery of Slater’s attempt to get Ede off the hook, and John Key’s attempt to argue otherwise has made him a laughing stock. Just check out his disastrous interview with Mary Wilson on Radio NZ’s Checkpoint programme on Tuesday evening. Likewise, his performance yesterday afternoon in the House was farcical, with Andrew Little memorably skewering him with the line:

“Why doesn’t he just cut the crap and apologise to New Zealand for running a smear campaign out of his office?”

“Cut the crap” now seems to have taken on a life of its own, propelling Little to cult hero status amongst the Left, not quite what Key would have intended.

Then it got worse for Key, having to return to Parliament to correct one of his question time answers, to admit that the day before the report was released, he’d had text message communication with Cameron Slater. He’d “misinterpreted” the initial question, and apparently hadn’t understood that communication with Slater in the past week would include text messages…

Key is evidently hoping that, just like the initial pre-election Dirty Politics furore, this second round will simply pass the public by. To a certain extent, he’s probably right. Almost no one will read the Gwyn report, and the non-partisan centre-ground of voters will continue to assume that what happens in John Key’s office probably also happens in the Labour leader’s office.

Nonetheless, Key’s facade of being an honest, everyman, non-politician takes another big hit. With every Mary Wilson interview and every attack by Patrick Gower at 6pm, Key becomes Just Another Politician.

The odds on National winning a fourth term in Government just lengthened.

Where to from here for National?

If John Key wants to have a stab at a fourth term as Prime Minister, there’ll be no one in the party to stop him. He’s weathered the Dirty Politics and Moment of Truth storms, and come out the other side with an increased majority.

Now it’s time for a clean up. Jason Ede has already resigned, which is perfect timing for National. An announcement prior to the election would have looked like an admission of guilt, just prior to people walking into the polling booth. This way, it’s lost in the honeymoon maze, and when the House returns to sit, the opposition will have lost another line of attack.

You’d hope that National’s leadership has learned its lesson from the Dirty Politics saga, and will keep people like Cameron Slater at bay. National may have romped home, but Brand Key has lost a touch more of its shine in the process. National’s result wasn’t necessarily as much an endorsement of John Key’s charms as a rejection of the state of the Left.

And hopefully, National MPs (and prospective MPs) lower down the food chain learn from the reaction within National to the Dirty Politics claims regarding Slater and Lusk’s involvement in the Rodney electorate selection process. If anyone finds out you’ve contracted Slater or Lusk to run interference for you, you’ll hopefully be toast.

Of course, the big issue for National, as they seek re-election in 2017, is the same one that kept them awake at night over the last three years – coalition partners. The election results for ACT and United Future were risible. National will give them roles in this new Government though, partly as a reward for six years of loyalty, partly in the vain hope that they might against all odds surge again in popularity and offer National more assistance at getting over the line in three years time.

Likewise, the Maori Party will be offered a role again too. Te Ururoa Flavell has been very clear that the Maori Party cold work with both National or Labour. National will be keen to keep Flavell onside.

But what if that’s not enough? What if ACT and United Future remain unappetising minnows, and Team Key needs a few more seats next time? Does National build up the Conservatives in the hope that they’ll supplant NZ First?

Once the honeymoon fades, Steven Joyce and the rest of the strategy team will undoubtedly be pondering what needs to be done to ensure a victory in three years time.

John Key lied? Still no smoking gun.

In recent days, John Key has been extensively questioned on what he or his office knew about Cameron Slater’s OIA request to the SIS. He’s steadfastly maintained that although his office was likely informed about the release of the documents to Slater, he himself wasn’t told.

New documents have today been released which muddy the water. In particular, NewstalkZB’s Felix Marwick has released correspondence from SIS Director Warren Tucker, in which Tucker refers to advising “the Prime Minister”, rather the Prime Minister’s office.

Letter from Dr Warren Tucker to Felix Marwick.

The letter states:

“I notified the Prime Minister (in accordance with my usual practice to keep the Minister informed on a “no surprises” basis) that I was going to release unredacted documents in response to the request from Mr Slater. I advised the Prime Minister that I had received legal advice that there were no grounds for withholding the information given the public disclosures already made about the existence and some of the content of the briefing. I informed the Prime Minister that I had informed Mr Goff of my decision to release the information.”

Further, another letter to Mr Marwick dated 31 October 2011, from Chief Ombudsman Dame Beverley Wakem, refers to a conversation Dame Wakem had with Tucker, in which Tucker told her “that he is prepared to release a statement regarding his discussion with the Prime Minister”.

Which sounds like it should be game, set and match. The Director of the SIS says he briefed the Prime MInister, and the Prime Minister says he didn’t. Who do you believe?

Except that it’s not game, set and match. Dr Tucker this morning then released a statement backing John Key’s version of events, essentially admitting that when he wrote “Prime Minister” he in fact meant “Prime Minister’s office”. Whether such a turn of phrase – “PM” as shorthand for “PM’s office” – is normal practice for Dr Tucker, I have no idea. Nonetheless, Tucker is in Mr Key’s camp regarding who was briefed.

Over at The Standard, Anthony R0bins posts “Key lied – The smoking gun“, based on John Key having said on Q+A on 24 July 2011:

“Phil Goff was briefed, yeah, that’s right. I personally didn’t brief him, but my understanding from the director of SIS, Warren Tucker, is that he was briefed and he was shown the same note and report that I saw.”

To me, that’s a long way from being a smoking gun. Key seems to be referring to the fact that both he and Goff were briefed by Tucker about the Israeli spy story, not to any later briefing by Tucker regarding Goff.

Four major sets of questions remain to be cleared up, in relation to this whole issue:

• Firstly, who tipped off Cameron Slater that he should make his OIA request?
• Secondly, was Slater’s request expedited by someone in the SIS, and if so, by whom?
• Tthirdly, why was Slater’s request promptly answered, while other media outlets’ OIA requests denied or delayed? and
• Lastly, who in the Prime Minister’s office did Dr Tucker brief, and why did they not pass the information on to John Key?

The Inspector-General of Intelligence and Security, Cheryl Gwyn, is now investigating the SIS’s handling of Slater’s OIA request, but there’s unlikely to be an outcome prior to the election.

As to the role of John Key’s office, one thing has been cleared up. Key has confirmed today that the staff member who was briefed by Dr Tucker was not Jason Ede. Of course, that doesn’t clear up the issue of why Key wasn’t informed by the staff member that a politically sensitive OIA request was going to be actioned.

And of course there’s the question of who tipped off Slater? Although most suspicion is falling on the Prime Minister’s office, given Slater’s relationship with Ede, the tip to Slater could well have come from the SIS itself. Phil Goff had been impugning the honesty of the SIS’s director; it’s not inconceivable that someone down the chain of command took it upon themselves to exact vengeance via Slater and his Whaleoil blog.

Key’s farcical “Don’t ask, don’t tell” routine

John Key is sticking to his defensive strategy: deny everything, label Hager’s book a smear campaign, and – when pressed on specific allegations – say he doesn’t know the details. There is of course a very easy way for Mr Key to become acquainted with the details, which he doesn’t seem keen to do, and that’s to simply ask the right people.

For instance, there’s the issue of how classified SIS documents were suddenly declassified and released at break-neck speed to Cameron Slater, following his OIA request. Now, according to John Key this morning on Radio NZ’s Morning Report, Key had no knowledge that the SIS had released the documents. That’s despite Key being the Minister responsible for the SIS. And that’s despite there being some considerable political interest in the contents of the documents – after all, they made Phil Goff look like a fool, a liar or a lying fool, depending on your political allegiance.

Matthew Hooton, on Nine to Noon this morning, made the point that it is “preposterous” that Warren Tucker, as director of the SIS, would release such politically sensitive documents without first alerting the Minister, John Key. Under the ‘no surprises’ rule, I’d count releasing documents showing the leader of the opposition misled the public (whether accidentally or otherwise) as a bit of a surprise.

Nonetheless, John Key says he didn’t know, which means (taking him at his word) that either Mr Tucker made this unilateral decision or that Mr Tucker received a thumbs up from someone in Mr Key’s office who then didn’t pass that information on to Key.

So surely, all Mr Key needs to do, to clear everything up, is to ask Mr Tucker what precisely happened. Was the decision to declassify and release purely that of Mr Tucker’s? If so, why? And if Mr Tucker said he had in fact briefed someone in the Prime Minister’s office, who was that person?

Then there’s the issue of Judith Collins, and what she may or may not have leaked to Cameron Slater. Mr Key says he can’t really comment on any of that as he hasn’t asked Ms Collins about it. Nonetheless, there’s a serious allegation that Mr Hager has made. Hager alleges Collins leaked the Bronwyn Pullar letter to Slater. Collins is on record, both inside and out of the House, completely denying that she or her office had anything to do with the leak. If Hager is correct, Collins lied to Parliament and the New Zealand public. Surely that’s something Mr Key would at least want to ask Ms Collins personally?

Or the five word email by Ms Collins to Cameron Slater, in which she provides the name and title of Simon Pleasants, a former Labour staffer, who is promptly, viciously and wrongly smeared by Slater. Collins refuses to say what her email was in response to, and John Key says he has no idea either. Well, all he has to do is ask Collins what question from Cameron Slater she was replying to.

And then there’s the issue of the National Party staff member who downloaded the Labour Party’s database. John Key has confirmed that Jason Ede definitely accessed the database. He’s said, “Jason became aware of that [that Labour’s database was open to the public], and he did go and have a look”. But there’s no confirmation that Ede downloaded the database. Given that Ede still works for the National Party, one would think it should be a relatively simple matter for Key’s office to ask Ede exactly what he did or didn’t do.

Or the other National Party IP address that accessed the database? Peter Goodfellow, the Party President, has confirmed that another staff member rummaged around – just to check that National’s security wasn’t that bad, don’t you know? Who was that staff member and what, if anything, did they download? Mr Goodfellow already seems to know a great deal on the subject, so it shouldn’t be a great inconvenience to Key to call up the President and swap notes…

Those are just a selection of the questions to which Mr Key could presumably get quite easy answers, should he so desire. I could keep going, but you surely get the point.

This is cynical politics from Mr Key, and it’s an utter farce. He and National want the story to die down, so Key is steering well clear of specifics. If he doesn’t ask, he doesn’t know. And if he doesn’t know, he can’t answer the media’s questions. Everything peters out, and the media finally get around to reporting on policy.

However, Mr Key has, I believe, miscalculated badly. The media aren’t going to simply give up on this. The number of very specific questions that need answering are too many. The number of grubby little dots that need joining won’t suddenly disappear. And with Mr Hager’s alleged source beginning a piece by piece dump of the original emails via the @whaledump Twitter address, the journalistic interest will definitely not die.

Whether the wider public gives a damn is of course a different story. The four people with whom I raised it at Court this morning simply rolled their eyes and muttered derogatory comments about Nicky Hager. And these are intelligent, well-read people who I would generally respect.

John Key is perhaps hoping that the public don’t care now, and as long as nothing definitive comes out to link Key directly to the scandal, the public will continue to not care. Time will tell whether he’s right…

Was a crime committed when Slater accessed Labour’s computer system?

Following on from my earlier post regarding Nicky Hager’s new book, Dirty Politics, there’s the issue of Cameron Slater and Jason Ede accessing the Labour Party computer system. The Greens have filed a police complaint, but was a crime committed? 

In the NZ Herald, John Armstrong states that:

The allegation that one of John Key’s minions hacked into the Labour Party’s database is – to put it bluntly – the modern-day equivalent of the 1972 burglary of the Democratic Party’s national committee headquarters in the Watergate complex in Washington. 

Well, it’s not really hacking. I remember Cameron Slater blogging about what he’d done, back in 2011. No security was bypassed. No hacking required. Essentially, Labour left their system open to the world.

Over at The Standard, Rocky (in her blog post entitled “But the door was open…“) seems convinced that Slater and Ede would fall foul of s 249 of the Crimes Act – accessing a computer system for dishonest purpose – which reads:

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right,—

(a) obtains any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or

(b) causes loss to any other person.

(2) Every one is liable to imprisonment for a term not exceeding 5 years who, directly or indirectly, accesses any computer system with intent, dishonestly or by deception, and without claim of right,—

(a) to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or

(b) to cause loss to any other person.

I’m unconvinced. There’s no “loss” to Labour, and I just don’t see that a court would find that snooping through Labour’s databases can be seen to fall under the ambit of obtaining or having the intent to obtain “any property, privilege, service, pecuniary advantage, benefit, or valuable consideration”. The language is that of obtaining financial advantage, which just doesn’t appear to apply in this situation.

Unfortunately, there’s almost no case law in this area, so it’s difficult to say just what a court’s interpretation might be in this sort of scenario. Could Slater be said to have obtained a “benefit” through accessing the Labour website? It’s conceivable. Labour’s embarrassment and the flow on increase in hits to the Whaleoil website might be considered a “benefit”. However, I don’t believe it’s as open and shut as Rocky posits.

There’s a better argument in favour of a prosecution under s 252 of the Crimes Act – accessing a computer system without authorisation – which reads:

(1) Every one is liable to imprisonment for a term not exceeding 2 years who intentionally accesses, directly or indirectly, any computer system without authorisation, knowing that he or she is not authorised to access that computer system, or being reckless as to whether or not he or she is authorised to access that computer system.

(2) To avoid doubt, subsection (1) does not apply if a person who is authorised to access a computer system accesses that computer system for a purpose other than the one for which that person was given access.

On the face of it, you’d have to assume that Slater and, allegedly, Ede would be toast – they’ve intentionally accessed membership and donations databases without authorisation, knowing they’re not authorised. However, lawyer Graeme Edgeler comments on Dr Nicole Moreham’s blog post at Public Address, providing an interesting counter-argument:

The question then is: does Cameron Slater have authority to access the server that hosts the Labour Party website? Well, it’s a publicly available website, that they put up there so that people can go to their website and download stuff from that server into their cache to read on their browsers. If Cameron doesn’t have authority (because, for example, it’s not express authority), I don’t see how any of us can lawfully look at it.

If Cameron, and you and I have authorisation to access the server that hosts labour.org.nz for the purpose of viewing the Labour Party’s website, then is there any basis on which section 252(2) doesn’t come into play if once we access the server, we do things that it was not intended we should do?

Obviously, if once there, those unauthorised things we are doing on that computer system (which we are authorised to access for other purposes), we do things for other reasons, eg to cause damage to the site, or to do something dishonest etc. other computer crimes may arise (such as section 249, or section 250). These offences can be committed on computer systems you have been authorised to access, because they don’t include something equivalent to section 252(2), but there has been no suggestion to date that Cameron Slater or Jason Ede (or anyone else) accessed the Labour server in a way which might give rise to an offence under s 249 or s 250.

There may still be privacy issues, but I’m tending to the view that what has been alleged is not a breach of section 252, because of subsection 2. I think we all have authorisation to access the computer system which operates as the server hosting the Labour Party website.

Nonetheless, regardless of whether we’ve all got authorisation to access the Labour Party website, Slater’s posts of the time, and Ede’s Facebook/email correspondence with Slater, make it plain that they knew they were accessing something that the Labour Party did not want accessed by the general public.

To me, that clearly brings s 252(2) into play – you’ve got authorisation to surf the Labour Party website, but when you stumble on (or are tipped off about) a publicly accessible backdoor route into membership and donation databases, it should be obvious that you’ve gone beyond the purpose of access, thus negating the right of access you previously had. 

Frankly, I don’t think Graeme Edgeler’s proposed defence would fly.

Which means we now await the outcome of the Police complaint, and see who they agree with…

Dirty Politics – sunlight is the best disinfectant

Well, there’s only one political story today – Nicky Hager’s new book, Dirty Politics: How attack politics is poisoning New Zealand’s political environment. And it’ll likely be the only political story for a wee while yet, as journalists digest the full range of allegations and try and pin John Key down on what he knew about what his office was up to.

I haven’t yet read Dirty Politics (although it’s definitely on my reading list, once I obtain a copy). I only know what’s been reported and debated online. (For a useful synopsis, check out Danyl Mclauchlan’s post at The Dim-Post.) 

There are a few allegations that seem to have captured the attention of the commentariat:

• That Cameron Slater and Jason Ede accessed the Labour Party’s computers in 2011, in the lead-up to the election.
• That the Prime Minister’s office, through Jason Ede, used classified SIS documents to damage a political enemy, Phil Goff, by de-classifying them and telling Cameron Slater to OIA them.
• That Cameron Slater and political strategist Simon Lusk blackmailed Rodney Hide into resigning as leader of the ACT party.
• That Judith Collins, when she was Minister of Corrections, arranged to have a prisoner transferred at Cameron Slater’s request.
• That Cameron Slater is paid around $6,500 per month from a tobacco lobbyist, Carrick Graham, to publish pro-tobacco, pro-alcohol attack posts. Those posts are written by Mr Graham, and are published under Slater’s by-line without attribution.

Yes, everyone knows that politics is a dirty business. Political parties dig for dirt on their opponents (remember Mike Williams’ flight to Australia to find non-existent dirt on John Key?). Nonetheless, if the allegations are correct, there’s some seriously disturbing stuff taking place on the ninth floor of the Beehive. It’s taking negative campaigning to a new level. It’s a systemic abuse of power.

How much of Hager’s claims are based on incontrovertible documentary evidence, and how much on tenuously joined dots remains to be seen. Matthew Hooton has come out this morning and labelled as flat-out wrong and a lie an allegation that he arranged for a liquor company to sponsor David Farrar and Slater.

It’s worth noting that Slater has responded to some of the allegations against him, in his post “The three biggest lies of Hager’s book“. Firstly, he disputes that Labour’s computer system was hacked (which I’ll discuss in a separate post), and secondly:

The second big lie is that PM and/or the PM’s office told me about Phil Goff’s briefing from the SIS. They did not.  

I wrote my own OIA and boy did I get pressure to pull my OIA. Pressure came from very senior people to actually withdraw my OIA, very serious pressure…mostly by phone. I was told it wouldn’t do the Nats any favours.

I resisted that and basically told them to piss off, I was entitled to ask an OIA and I did, proving that Phil Goff lied about his briefing.

I’ll be interested to read Hager’s evidence to the contrary.

Certainly, I’m amused that thus far there’s no denial from Slater that he takes money from a tobacco lobbyist to run PR attack lines. As Mr Slater is fond of saying, “Sunlight is the best disinfectant”. Indeed…

But will the current furore result in any change in the polls? It’s hard to say. If John Key can distance himself from everything, there may not be much of an impact. Broadcasters such as Sean Plunket and Mike Hosking are busily running the line that there’s nothing to see here that no one didn’t already know. 

“Nicky Hager taking the moral high ground is nauseating.”

That’s a text message I received this morning from a swing voter. They’re not going to read Dirty Politics, and they undoubtedly assume that whatever National is alleged to have done, Labour will also have done. They just don’t care, and that’s a depressing thought…