The People’s Review of the Intelligence Services

Welcome to the People’s Review of the Intelligence Services.

This review is also available as a PDF (424KB).

Introduction

The Stop the Spies coalition, formed in May 2015, is a mix of community and civil society groups across Aotearoa New Zealand. It includes the New Zealand Council for Civil Liberties, Professor Richard Jackson, Deputy Director of the National Centre for Peace and Conflict Studies at Otago University, the Anti-Bases Campaign, OASIS, the Dunedin Free University and the What IF? Campaign. The coalition came together with the express purpose of raising public awareness of the intelligence services and the Five Eyes spying network during the time of the official ‘Review of Intelligence and Security.’

There is widespread public concern about the intelligence services as a result of the illegal activities of the Government Communications Security Bureau (GCSB) exposed in the Kim Dotcom legal proceedings, in the report of compliance by Rebecca Kitteridge, and the revelations of US whistleblower Edward Snowden. The GCSB is currently under investigation by the Inspector-General of Intelligence and Security for conducting surveillance of the opponents of Trade Minister Tim Groser for a job at the World Trade Organisation.

Similarly, the New Zealand Security Intelligence Service (SIS) has been implicated in political interference involving the then leader of the opposition, Phil Goff, that potentially distorted the outcome of the 2011 general election.[1]

These public scandals have occurred at the same time that the agencies were awarded significant new powers of surveillance and funding boosts of approximately $20 million each.[2] The introduction and passage under urgency immediately before Christmas of the Countering Foreign Terrorist Fighters Act 2014 gave broad new powers to the SIS described as “anti-democratic and draconian.”[3] The two agencies now have a combined budget of over $140 million and over 500 staff.

Comparing the Reviews

The People’s Review

As part of the coalition’s work, we decided to solicit the views of members of the public about the GCSB, the SIS, the Five Eyes network, and any related issues that people thought important.

The reasons for conducting this ‘People’s Review’ were to:

1. give an independent forum for members of the public to give their views; these are enunciated in the section, The People’s View

2. highlight a number of deficiencies with the state-sponsored process; these are outlined below in The Official Review.

The People’s Review ran July-August 2015. The public were able to submit at four public meetings in Auckland, Wellington, Christchurch and Dunedin, with both oral and written submissions accepted. Submissions were also received by email. With greater resources and time, the People’s Review could have significantly expanded on the number of people we reached, and the breadth and depth of submissions we received. We were unable to travel to all but the major cities, and our Auckland meeting was poorly attended in large part due to the short time frame for advertising.

A senior investigator with the Inspector-General of Intelligence and Security office attended the public presentations at the Wellington meeting, but was asked to leave for the public submissions as we felt that their presence might inhibit members of the public.

The Official Review

The Intelligence Review is a review of New Zealand’s intelligence services being conducted by Michael Cullen (former Deputy Prime Minister and former member of the Intelligence and Security Committee) and Patsy Reddy (state-sector lawyer and corporate board member). The Terms of Reference include:

● “Whether the legislative frameworks of the intelligence and security agencies (GCSB and NZSIS) are well placed to protect New Zealand’s current and future national security, while protecting individual rights.”
● “Whether the current oversight arrangements provide sufficient safeguards at an operational, judicial and political level to ensure the GCSB and NZSIS act lawfully and maintain public confidence.”

Public submissions to the state’s review are due on August 14th with the report expected on or before 29th February 2016. The submission process is closed; there have been no public consultation meetings.

The state’s ‘Review of Intelligence and Security’ is superficial and narrow. It does not contemplate a fundamental re-evaluation of these agencies. Rather, it assumes the necessity and legitimacy of both the agencies and their purposes. The terms of reference do not mention the Five Eyes network. The official review was condemned from the outset as a whitewash being conducted by consummate “insiders.”[4] A scathing editorial by the Dominion Post condemned the reviewers as “not equipped for the task.”[5]

The submission form itself has been described by Nicky Hager as “a primary school level questionnaire” by people who “treat the public as children.”[6] The submission form is highly prescriptive. The questions include:

a. Significant assumptions that are not fact, e.g. “How comfortable are you with the GCSB or NZSIS having access to the following types of information, assuming it will assist them to identify threats to New Zealand or its interests?”

b. An underlying view of submitters as subjects rather than people – such as asking about our level of comfort at being spied on, rather than our view on whether it is acceptable or not, e.g. “How comfortable are you with the GCSB or NZSIS having access to…the content of emails, text messages or phone calls? Comfortable, Neutral, Not comfortable, Don’t know.”

c. A focus on ‘balance’ between two pre-conceived ideas e.g. “Do you think the functions and powers the GCSB and NZSIS have under their governing legislation strike the right balance between allowing the agencies to effectively protect New Zealand’s interests and ensuring people’s rights are respected?”

d. Ratings that are simplistic and can only have one answer. e.g. “On a scale of 1 to 5 how important do you think it is for the government to prevent terrorist acts from occurring in New Zealand?”

The Government review is legislated to happen every 5-7 years. As John Key suggested in December 2014, the review would consider “broader changes to intelligence-gathering and counter-terrorism…[that] potentially look much further than the current legislation before Parliament.”[7] As this report was being prepared, it became abundantly clear that the GCSB and SIS see these periodic reviews as an opportunity to put forward their wish-lists asking for more powers.[8] It is likely that this review, and future reviews, will be used to pass legislation further expanding the powers of the GCSB and the SIS.

The People’s View

We received dozens of submissions from around the country, covering a breadth of views and analyses of the intelligence agencies. All submissions were recorded anonymously. The points below have been taken verbatim from the submissions (with minor spelling/grammar corrections) and grouped into eight general themes.

Validity of the Process

● The terms of reference of this inquiry seem to be too limited and pre-determined towards a conclusion of keeping the spy agencies.

● Last year when the last set of spying legislation was rushed through parliament under urgency – Chris Finlayson, the Minister of SIS/GCSB was asked why this couldn’t go through the normal select committee and public submissions process, and he said because “we don’t have time for 6 months of chit-chat” – and that’s quite clearly what the government thinks of public participation in review processes, is that it’s “chit-chat” because “we know what we’re doing anyway.”

● I don’t think we should waste any time with this [official] review process.

● What I was pleased to see that this was our review. It’s our opportunity to say what we think – what we think they ought to do – and how possibly they might do that.

● With regard to how the questions are framed (in the submission form) it is very reminiscent of recent consultation on NZ’s greenhouse gas emissions target to which there were a lot of leading questions about how we really shouldn’t do anything cause it’s all too hard.

● The idea that Michael Cullen is some kind of independent reviewer is frankly absurd. He was in government and on the Intelligence and Security committee when the GCSB was illegally surveilling a whole bunch of the 88 New Zealanders in the Kitteridge report, and while Ahmed Zaoui was imprisoned. He is in part responsible for the illegal and improper activities of these agencies, and should be held to account – not be put in charge of a public review. It is outrageous.

Oversight

● Well I’d like to see proper accountability and transparency in what takes place.

● Just an observation, a couple of years back Campbell Live did a special on the Secretary of Defence of the US secretly visiting NZ and having meetings with some of our ministers – at which point Mr Clapper returned to America, Mr Key stood down Jerry Mataparae as the head of the GCSB, and went through a selection process where he put his friend in place as head after this covert meeting.

● I think these agencies are working hard to increase their legitimacy and I think it is worrying. We see them talking at seminars – we see them saying, “Oh I wish that we could be more transparent.” We see them releasing their Privacy Act records on people. We see them putting out a review as if they were any other government department that calls for public submissions when they are by definition secret, and when they are by definition our political police.

● I am disgusted by the revelations that the GCSB was providing information to the Bangladesh Security Services. They have a well-documented history of human rights violations. One wonders if there are any human rights conventions that the GCSB adheres to when disclosing information, clearly not. One wonders why the Inspector-General is not investigating this.

Five Eyes

● Waihopai is a US station in all but name. It links us to America’s wars. NZ should withdraw from the “5 eyes” alliance and the GCSB should be closed along with the base.

● I do not think that these agencies should exist because they are being used to do things like surveillance at the behest of other countries. Waihopai spy station should be closed. There is no good reason for its activities. Spying between countries creates mistrust and disregards the oneness of humanity.

● If we hope for future friendly relations with China, is spying on them really a good way to start?

● Nicky [Hager] mentioned about Pacific Islands –what’s their threat to us? For me, I don’t think it’s a threat. They can never justify it – that’s why they can never tell us…

● To me, we shouldn’t be a “sniffing dog” for US agencies.

● It’s about US interests, it’s about British interests, and we’re just following like sheep.

● The ‘5 Eyes’ are involved in dirty politics, known examples include Maggie Thatcher using a ‘5 Eyes’ agency to spy on members of her own parliament; Kissinger using ‘5 Eyes’ information to discredit a political opponent; ‘5 Eyes’ monitoring of the European Airbus sale to ensure that US companies got the deal and ‘5-Eyes’ agency (the GCSB) assisting Tim Groser in his attempt to be director-general of the WTO.

● The GCSB is little more than an outpost of the US National Security Agency. Along with conducting global mass surveillance, this agency is collecting vast data used in US wars around the world.

● Why are these systems getting bigger? I think a great deal has to do with the Five Eyes participation – and one issue which is a live one – is the amount of funding – direct funding that comes from Five Eyes, partner funding, from the US and UK to expand their capacities.

Privacy

● A citizen’s right to privacy, enshrined in the NZ Bill of Rights should be sacrosanct, inviolate, except in the most dire of circumstances when judicial warrants to search are sought and sanctioned.

● When I talk to a whole lot of people about this whenever I mentioned most people just tell me, ‘What’s the worry? Only people like you need to worry.’ They say, “Well, I haven’t got anything to hide” This is well educated people. I think, god if you talk like this, how are we ever going to talk to people who have no education? The government just works on their fear.

● There’s the old saying: “If you’re not doing anything wrong you’ve got nothing to hide” – gosh the security services seem to have a lot to hide.

● Digital “fishing trips” “profiling” and “mass surveillance” should be declared illegal.

● New legislation passed in 2013 gave powers to the GCSB that the vast majority of people in New Zealand were vocally opposed to. The government engaged in a massive campaign of deception about the activities of the GCSB in order to get this law passed.

Necessity of the intelligence community

● Where were our intelligence agents when Ernie Abbott was murdered and the Rainbow Warrior blown up?

● Are the objectives of the SIS and the GCSB relevant? If not, why have these agencies? If the objectives are still relevant, are they being met? Are the activities of these agencies beyond the scope of their objectives? If so, they should be curtailed.

● Another major purpose, I feel, is the commercial world—espionage—I feel those agencies are actually doing that for certain big corporations or for government—just for that blackmailing purpose and espionage that’s almost good enough for them to justify their own existence but they can’t tell us.

● There’s that idea that anything that you have made absolutely secret you have taken out of the realm of politics. Repeating a question I asked last time: how many lives does it have to save to justifiably be taken out of politics?

● I guess going back to what is the question we’re asking, so I am in some groups and we wanted to ask the question “Do we even want these agencies?” “Whose interests do they serve?” And I strongly believe that they don’t serve our interests.

● What are they getting out of it? They know it doesn’t work. They know it doesn’t do what they say it does. They get political capital.

● The passage of the Counter Foreign Terrorist Fighter legislation is extremely worrying. It allows the state to use secret evidence to deny people their basic fundamental human rights. It extends a shadow, secret court system where basic rules of jurisprudence are thrown out in favour of some nebulous idea of “national security.”

Abolition and alternatives

● The money could be spent on things like health and education, which are underfunded in New Zealand.

● Spy agencies should be progressively phased out, and given protective roles that work towards social integration and goodwill between cultures and nations.

● Transfer vetting, law enforcement and IT security to other agencies, then close the GCSB, close the SIS, exit Five Eyes.

● An agency to counter cyber-crime and protect NZ from hackers would be the only part of the current intelligence agencies worth saving.

● A whole lot of money spent on this area can be used so much better in other areas to help people in need.

● If we close them down… what are the functions that can be done by other agencies? People from that ministry or that department can do the same job.

● There is an IT association of NZ and an Open source association of NZ – they could be paid to provide security advice for computers and they wouldn’t have a conflict of interest.

● Getting rid of the spies would be a great thing to do.

● …its really great that the Anti-Bases Campaign has religiously continued that struggle every year at Waihopai.

● That’s why we are calling for stop the spies—and I would argue that that is an affirmative because it is calling for a better future where the power—where power is shared more equally between us without those agencies.

Effect on society

● Citizens allow, compliantly, the state to surveil them.

● After all these years of Waihopai, and especially after Snowden revelations:

○ We should expect the “public” (“electorate”) has knowledge of surveillance and the agencies and the scope and the threat to democracy that they represent

○ We should ask the question why does this public allow what they know is anti-democratic?

● I don’t think it’s in the government’s interest to say ‘We want to close this down’ – so I would really, really like to know what’s our counter-actions for the public?

● I don’t want to be pessimistic but nearly 30 years ago now, we were doing far more action about getting rid of Waihopai than we’re ever doing now. And all those efforts have ended up where we are now. So I think we’ve actually got to be really, really clever in getting a strategy about how we’re going to do it cause the old ways have failed—the ones of walking down the street and saying “No Waihopai, no Waihopai”—they didn’t work…so how do we start changing people’s opinions about what we’re letting ourselves in for?

● In 1977 10,000 people in Wellington marched against the changes to the SIS legislation, 150 people were evicted from the House. The legislation has been strengthened every decade since – each government ignoring the concerns of campaigns and submitters.

● The surveillance itself stifles the process of participating in this review.

● I think by and large there is a real chance that New Zealanders are sleepwalking into a future that it appears that they are going to hate enormously.

● Let’s use that time to jump back to the bigger calls that were made 30 years ago, “No Waihopai” “Get out of the GCSB – shut down the GCSB, shut down the SIS” so they cannot have those horrible impacts on people’s lives and they cannot have those horrible impacts upon our ability to organise together.

● I am interested in what the implications of the increased technological capacity for surveillance are for who we think we are as subjects of state surveillance.

● When we look at an agency or couple of agencies whose objectives are perhaps not even relevant and whose objectives are not even being met by their own actions…Why aren’t the government chopping those?

● The concept of surveillance by the state is not something new. It’s been there for centuries. As soon as the state appeared as an institution, surveillance appeared with it. It’s not the first kind of institution that tried to surveill the population. The Church as an institution did that way before the state. What worries me is why aren’t more people saying something about this review? Because this is actually something that we can do now. It would be good to see more people resisting this kind of control.

Intelligence community establishment and legality of activities

● The lack of definition of NZ’s “economic interests” of “economic well-being” are so nebulous as to offer dangerously wide scope for surveillance.

● It is impractical to use the GCSB both spying electronically and being a cyber-protection agency. These objectives are fundamentally in conflict.

● What we know about the intelligence services is extremely disturbing. The Prime Minister has confirmed the involvement of the GCSB in drone assassinations. This has been well-documented in Nicky Hager’s book, Other People’s Wars. New Zealand is effectively involved in a secret, dirty war supporting the US. It that sense, it is an agency that is creating terrorism—it is creating the very problem that it proclaims it is trying to solve. It is helping to further destabilise the Middle East. Murdering hundreds of women and children in foreign countries by aerial assassinations is hardly being a “good international citizen.” It is the hallmark of a state that considers itself above international law.

● Is the GCSB’s research on Tim Groser’s competitors for head of the WTO lawful under section 16 of the GCSB Act?

● Files should be automatically declassified after a fixed period of time, e.g 20 years. Events such as the Rainbow Warrior bombing should be open to the public to see how our intelligence agencies were involved.

● If there will be something like the GCSB then clause 16 of the Act, “activities not requiring a warrant,” deserves some attention, and to be replaced with something auditable. And that’s going to be horrible because auditing a secret thing is horrible.

● We had the case of Ahmed Zaoui who in 2002 was incarcerated for 2 years on the basis of this secret SIS security briefing. He never had a chance to defend himself. He could never see the contents of this. He never found out why they considered him a security risk. And it was only because he had a good lawyer and there was a huge public campaign to get him free that he actually got out after 2 years when the SIS backed down—still not revealing what they had on him. So this idea that if you’ve got nothing to hide, you’ve got nothing to fear is just plain nonsense because it’s the agencies that decide whether you’ve got something to hide or not, not yourself.

● …there seemed to be laws and procedures of NZ that were breached, or circumvented, and nothing ever came of it.

● We know that these agencies consistently break laws and rules that are then changed to legalise or correct any wrong-doings.

● In recent days, we’ve got Tim Groser, whose negotiating the TPPA, the biggest trade agreement in the history of mankind. Now Tim Groser applied for the position of the head of the WTO, and Mr Key being in charge of the GCSB at the time actually used the services of the GCSB to spy on MR Groser’s competitors for the job, which is a job that garners you $700k a year, a good remuneration package, most of us here would agree. And once again we see this lack of ethics – this total ignoring of the laws, and then nobody taking them to task.

● I see this and I am outraged. There are people who are paid to protect me from criminality and its not happening.

● I am just a guy on the street and I think, “OH MY GOD—are there no laws?” It just seems like it. These people operate outside the law.

● And then we go on to the Groser case where we’re using our security intelligence service agency to do commercial spying? To get a guy a job? To get insiders into a high-paying career?

● In Japan, after Fukushima, the Japanese government instituted this secrecy bill and there is a new list of who is considered a terrorist – and anyone anti-nuclear is considered a terrorist. You should find the New Zealand list of who is considered a terrorist, cause it’s not quite who you would expect.

● And meanwhile, no matter how reviewed they are, no matter how much they come to operate like any other government department they are inherently operating in the interests of the powerful and against our interests.

Stop the Spies’ View

We join a long tradition of ordinary people who believe that NZ society would be better without the security services. We’ve come together because we don’t trust these agencies, and we don’t believe that they act in the interests of ordinary people in this country or anywhere else.

By definition these agencies are political in their work—the security that they are charged with upholding is the security of those who hold power to maintain that power. Meanwhile life for ordinary people has become far more insecure—the struggle for jobs, housing, healthcare and a decent life is all around us.

Instead of the government’s ‘Review of Intelligence and Security,’ we want to open up the possibility of closing these agencies down forever. We are not fighting to reform these agencies because we do not believe that it is possible for there to be any meaningful oversight of what are inherently secretive, politically-motivated agencies that exist to interfere with people’s lives. We see the Review—including the government’s call for submissions—as a whitewash.

The state intelligence agencies’ intrusions on the lives of New Zealanders, and the lives of those in friendly countries in Asia, South America and the Pacific, cannot be justified. It can’t be justified for the security of New Zealand, it can’t be justified for the money we spend on it, and it can’t be justified in terms of civil liberties and freedom in New Zealand and overseas.

We believe that the only real answer is to:

● Close down the GCSB – we don’t need to spy on people overseas.

● Close down the NZSIS – we don’t need to spy on New Zealanders.

● Withdraw from the Five Eyes – we don’t need to be part of the USA’s global spy network.

There may be a need to transfer some minor non-spying functions of these agencies, such as maintaining the security of sensitive New Zealand communications, to other organisations that are not limited by the secrecy requirements of the spy agencies.

Conclusion

The People’s Review has been successful in soliciting a wide range of views from ordinary people in New Zealand about the operations of the intelligence services. It has provided a public platform where there was none. It has provided a blue-sky canvas for ordinary people to imagine a different kind of world.

It has heard the fears and anxieties of some, and the hopes and dreams of others. It has heard the anger and the disgust of many. It has heard a resounding cry for fundamental change.

Real questions about the intelligence agencies were raised and put on the table. Whose interests do they serve? Do we really need them? Should New Zealand be in the Five Eyes? In light of Snowden’s revelations and the Dotcom affair, and everything we now know about these agencies, what do people think should happen?

The People’s Review has demonstrated the inadequacies of the state-sponsored review. These are essentially twofold. First, the review is limited and superficial with predetermined, and largely orchestrated, outcomes that will ultimately result in extending the powers of the intelligence agencies. Secondly, the people conducting the review are totally inappropriate. One has a significant conflict of interest as a responsible minister for past, highly questionable, if not outright illegal, activities of these agencies, and the second has not a shred of experience in either the field of security- intelligence or in human rights law.

In the nearly 60 year history of the SIS and the nearly 40 year history of the GCSB, their budgets have never gotten smaller, nor their laws rolled back. These agencies have been awarded time and time again with more money and new powers of surveillance. Each new transgression of the law by these agencies is used as a justification for ever greater power.

It is one of the refrains of the intelligence community that they cannot tell us about the work that they do because to do so would prejudice security. They tell us that they would like to be more open and more transparent in their work, but that would mean giving away secrets to those who wish to harm “New Zealand’s interests.” In reality, however, what has slipped out provides us with enough information to act.

In the past three years more evidence has come to light making it abundantly clear that the interests being served by these agencies is not that of ordinary New Zealanders: mass surveillance, illegal surveillance, foreign drone assassinations, the provision of intelligence overseas to governments with records of human rights abuses, spying on diplomatic allies, and the use of these agencies to advance the specific political agendas of the ruling party. These activities smack of an authoritarian state, not an open democracy.

Despite protests going back decades and widespread contemporary disquiet, these agencies have continually enjoyed the nearly unquestioning bi-partisan support of the two major political parties. As the state moves to further expand the resources and consolidate the power of the intelligence agencies, our opposition must become more organised, and our vision of a society free of these agencies more widely articulated if there is to be real change.

Contacts

Stop the Spies Coalition includes the New Zealand Council for Civil Liberties, Professor Richard Jackson, Deputy Director of the National Centre for Peace and Conflict Studies at Otago University, the Anti-Bases Campaign, OASIS, the Dunedin Free University and the What IF? Campaign.

Email | stopthespies@riseup.net

Twitter | @StoptheSpiesNZ

Web | http://stopthespies.nz/

Footnotes

[1] Report into NZSIS release of information July – August 2011. Inspector-General of Intelligence and Security. 2014.

[2]Budget 2015: Spy agencies get big funding boost” New Zealand Herald. 21 May 2015.

[3] Andrea Vance. “Alarm at ‘draconian’ leaked spy law.” Stuff. 23 November 2014.

[4] Dr Paul Buchanan. “Media Link: The Intelligence and Security non-Review.” Kiwipolitico. 14 May 2015.

[5] Editorial: Spy review hobbled before it begins. The Dominion Post. 19 May 2015.

[6] From the public meeting of the People’s Review in Wellington, 27 July 2015.

[7] Demelza Leslie. “PM signals tougher security laws” Radio New Zealand. 2 December 2014.

[8] Morning Report. “SIS says law should change.” Radio New Zealand. 11 August 2015.