Labour made the GCSB story about John Key, not Kim Dotcom, or the agency itself. And with a few victories against him, such as fingering him for shoulder-tapping an old school mate for the GCSB directorship, it could not bring itself to support Key’s bill.
Key has not been given credit for much in the process. But he clearly had concerns about the GCSB before the unlawful spying on Dotcom.
It had been run by a tight club within the defence and intelligence community and established some disturbing work habits, as the Kitteridge report exposed.
The notion that everything was hunky dory back in the days of former Chief of Defence Force Sir Bruce Ferguson is myth. Most of the legally dubious spying on New Zealanders went on under his, and Labour’s, watch.
Of the 88 cases, only four were warranted, according to the agency itself.
Ian Fletcher’s appointment should, at the very least, be seen as an attempt to break the stranglehold of the old boys’ defence network on the agency and letting some civilian light into it.
Rebecca Kitteridge’s appointment said a lot too. As Cabinet secretary she is not the minute-taker but the guardian of proper process, ensuring that things are done by the rules and the law.
It is clear from her report that the GCSB was not following the law on the issue of collecting metadata on New Zealanders and the Inspector-General of Intelligence and Security thought it was.
Key is cleaning up a mess entirely uncreated by him. The only area of real criticism is not being more forthright over his ringing Ian Fletcher to let him know about the job. Labour created the mess with their 2003 law change and seem to be refusing to play a constructive role in fixing it. In fact they have said a public inquiry should review if we even stay in the Five Eyes network with Australia, Canada, UK and US – possibly the stupidest of all their policies.
There are three things he could do in the coming week that would make the bill more acceptable than it is now, to the public and other parties.
First, he could write two reviews into the bill, one to begin in 18 months, straight after the next election, and one every five years after that, as the Australians do.
It’s effectively what Labour is promising.
Several weeks ago Key said he would promise a review only if it would get Labour on board.
He should do it to get the public on board, whether or not Labour agrees.
Secondly, he should go back to the Kitteridge report for a lead on how to beef up oversight. The report cited this quote from the 1999 Inspector-General as evidence of how woeful oversight had been: “The fact that there are very few complaints and little need for any inquiry … of the GCSB indicates … that the performance of their activities does not impinge adversely on New Zealand citizens”. …
Thirdly Key, as Prime Minister and the minister responsible for the GCSB, needs to make a clear statement on metadata (information about communications).
Specifically, he needs to say what the GCSB has done in the past and what constraints it will operate under in the future. He should admit that the agency has previously, on many occasions, collected metadata on New Zealanders unlawfully – believing it was doing so lawfully.
He should reassure New Zealanders, if he can do so truthfully, that there has been no mass collection of metadata passed on to intelligence partners overseas and there won’t be in the future.
He should assure the public that any collection of metadata of New Zealanders in the future, like other communications, will have to be by warrant.
The first two seem sensible. The third could be more challenging. People use the term metadata in different ways.