SIS

Ill tidings for oversight of spy agencies

We mere citizens don’t get to know too much about how our spy agencies operate and what they get up to. There are good reasons for that. A spy agency that gives out all of its secrets probably isn’t going to function particularly successfully.

Unfortunately, our spy agencies, just like the police, sometimes don’t appear to know the law. And sometimes, even when they do know the law, they choose not to follow it.

Which is why it’s rather vital that there’s oversight of our spy agencies. In New Zealand, that oversight is provided by Parliament’s Intelligence and Security Committee. It’s a five person committee, made up of the Prime Minister, the Leader of the Opposition, two MPs nominated by the PM, and one MP nominated by the Leader of the Opposition.

Now you’d expect that the committee that makes sure the spies aren’t breaking the law would be lawfully appointed, wouldn’t you?

Turns out that Andrew Little didn’t appear to have read the relevant law. Section 7 of the Intelligence and Security Committee Act 1996 provides that the member nominated by the Leader of the Opposition must follow “consultation with the leader of each party that is not in Government or in coalition with a Government party”.

Little has nominated Labour’s David Shearer, which has provoked howls of outrage from the Greens and NZ First, both of whom say they were not consulted.

Russel Norman had previously been on the Committee, but was not nominated by Labour this time round because he’ll be stepping down as Greens’ co-leader in a few months. Little didn’t nominate the other Greens’ co-leader, Metiria Turei, because he wanted someone with “skills, understanding and experience”.

Labour’s view appears to be that there’s no breach of the law, because David Shearer hasn’t yet been officially nominated, and the party will consult with the Greens and NZ First before the nomination is confirmed. Quite what that “consultation” will consist of, given that Shearer’s name has essentially been put forward as a fait accompli, remains to be seen.

National, meanwhile, has announced that it’s nominees will be GCSB and SIS minister Chris Finlayson and Justice minister Amy Adams. They’re both National, meaning that no minor party will have a role in the oversight of the GCSB or SIS.

Now here’s the worrying party. John Key has previously signalled that the Government intends to introduce a new round of tougher surveillance laws this year, further eroding our rights. So he supports Labour’s stance, because:

“A range of opposition voices from the minor parties could railroad the process.

“I don’t think the committee was terribly constructive over the last few years, I think it was used less as a way of constructing the right outcomes for legislation, and more as a sort of political battleground.”

In short, John Key doesn’t want dissent. He wants as little scrutiny of our spy agencies as possible.

Here’s Russel Norman responding to Labour’s decision:

“I think it’s a bad call. It means it’s the old boys’ club – Labour and National – both of whom have been responsible for illegal spying.

The Greens were the only ones on [the committee] with clean hands . . . the spy agencies will be extremely happy. The duopoly of illegal spying will be maintained without any independent oversight.”

The spy agencies will indeed be extremely happy. They’ve been given an indication from Key and Little that, for the next three years, oversight of their activities will be rather less stringent than it has been in previous terms.

Advertisements

Labour supports 24 hr surveillance : the unenviable job of being in opposition

This week, the Foreign Affairs, Defence and Trade Committee reported back on the Countering Terrorist Fighters Legislation Bill. The Government had been seeking, among other things, the ability of the SIS to undertake 48 hour warrantless surveillance, and for the Government to revoke passports for three years.

Quite why these measures were required were never addressed. After all, our terror threat level may have raised, but it remains on ‘low’. MPs such as Jamie-Lee Ross muttered darkly of tales of terror disclosed by the SIS: if we meek citizens only knew what the MPs knew, we would quake in our boots and immediately provide ringing endorsements of the Government’s planned changes. Of course, we mere citizens weren’t allowed to know. The SIS’s briefing was conducted in secret, open only to MPs, on the grounds of protecting national security.

The SIS’s briefing may have persuaded Mr Ross, but the opposition appeared rather less convinced. Labour MPs such as leader Andrew Little, Phil Goff and David Shearer held the line that the Government had failed to make a case for the increased powers, and one doesn’t have to be a genius to know that the Greens were never going to be convinced.

Nonetheless, the Committee has reported back, and Labour now backs warrantless surveillance, albeit for a maximum of 24 hours and only in relation to terrorist activity (as opposed to the SIS’s wider activities). In addition to that concession, the Government has also agreed to stricter oversight and more frequent reporting, in relation to the use of warrantless surveillance, and those individuals who have their passport revoked will have the ability to appeal that decision and apply for their passport back.

To my mind, 24 hours less warrantless surveillance isn’t a huge concession. Warrantless surveillance is still warrantless surveillance, and the Government has still failed to make the case as to why it’s necessary. After all, in emergency situations involving terrorism, s10 of the International Terrorism (Emergency Powers) Act 1987 provides the ability for police to intercept private communications and interfere with the operation of any part of the telecommunications system in the area in which the emergency is occurring. For powers above and beyond that, which may heavily impinge on the rights of certain individuals, a proper case should be made as to why those powers are necessary.

By rights, I should be lambasting Labour for abandoning its principled approach and supporting warrantless surveillance. On the other hand, however, the Government had the numbers to pass the Bill in its initial form. Labour could have voted against it and achieved nothing. The Government wanted a vaguely bipartisan outcome, meaning that small concessions were achieved. That’s the unenviable job of being in opposition: Do you stick to your guns, opposing to the death for no reward, or do you give support on some issues, taking what gains you can in order to make the end legislation a slightly better beast?

Labour will have made the call that few New Zealanders really care about the issues of warrantless surveillance or revocation of passports. Nothing to hide, nothing to fear, etc. Labour gets a positive headline or two for at least forcing a few changes; National gets its positive headlines for being bipartisan.

Everyone wins, except our civil rights.

And, as No Right Turn points out, this piece of legislation is just the beginning, with John Key already stating that the Government will look to further toughen security laws after a review next year. With Labour now on record supporting the thin end of the wedge, what will our major opposition party agree to next time round?

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.

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.

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…