My submission on the Countering Terrorist Fighters Legislation Bill

November 27th, 2014 at 11:00 am by David Farrar

SUBMISSION OF DAVID FARRAR ON THE
COUNTERING TERRORIST FIGHTERS LEGISLATION BILL TO THE FOREIGN AFFAIRS, DFEENCE AND TRADE SELECT COMMITTEE

About the Submitter

  1. This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.

The overall Bill

  1. With one exception I am broadly in support of the Government’s proposed law changes to help counter terrorist fighters. The rise of the Islamic State of Iraq and the Levant (ISIL) poses a significant threat to not just the local populations in the areas it controls, but to countries and people around the world.
  2. I am broadly supportive of the proposed changes to the Passports Act, information sharing with Customs, and allowing the SIS to do electronic visual surveillance under warrant.

Emergency Surveillance by the SIS

  1. I oppose the proposed law changes to allow the SIS to do emergency surveillance for up to 48 hours without a warrant.
  2. I believe it is important for New Zealanders to have confidence and trust in their law enforcement, security and intelligence agencies.
  3. At present the Government can say that no New Zealand citizen is spied on by any state agency unless a warrant is approved by an independent judicial officer such as a Judge, JP or Commissioner of Security Warrants. This is a hugely important check and balance in our system. No New Zealander can be spied on by a state agency without effectively judicial approval.
  4. This proposed law would do away with the status quo. No longer could New Zealanders be told that they can only have their communications intercepted if an independent judicial officer agrees.
  5. For Parliament to do away with this long standing right, they need to be convinced that the consequences of not doing so would be worse than remaining with the status quo. This should be a very high threshold. No matter how temporary the exception may be, the fact is that the law will go from an absolute guarantee of no surveillance without judicial approval to no guarantee. Parliament should be loath to make such a change.
  6. I accept that threats may emerge quickly and it is desirable for intelligence to be gathered quickly. However rather than water down the requirement for prior judicial approval, other alternatives should be considered.
  7. We live in a connected world. The Commissioner of Security Warrants and the Minister for the SIS can probably be contacted close to 24/7. Documents for a warrant can be sent electronically for approval. With planning, one should be able to get a warrant within a couple of hours where haste is necessary.
  8. Other options is for the Commissioner and the Minister to have deputies who must be available in Wellington, when the principals are likely to be difficult to contact.
  9. This law change will make it harder for the security agencies to keep the confidence of New Zealanders that they can only be spied on if prior approval is given by a judicial officer.
  10. There is a massive difference between a system of checks and balances that occurs before surveillance occurs, and one that checks afterwards if it was appropriate.
  11. Changing the law to allow the SIS to do surveillance without prior judicial approval should be the last resort, not the first. I would urge the Committee to delete this section of the Bill.

    Possible further safeguards

  12. If the Committee does not agree to remove the sections on emergency surveillance powers, I would ask them to consider some or all of the below as possible further safeguards.
  13. Change the threshold from a warrant being “impractical in the circumstances” to “highly impractical” and change the impact of a delay from “likely to result in a loss of intelligence” to “highly likely to result in a loss of important intelligence”.
  14. Reduce the time period for emergency surveillance from 48 hours to 12 hours. I can’t conceive of a situation where the Commissioner and/or Minister can’t be located within 12 hours. This also syncs it with the requirement to notify the Commissioner, Minister and Inspector-General within 12 hours.
  15. Have any report on use of the power also going to the Inspector-General automatically under S41E(4) so they can investigate on their own initiative, even if not referred by the Minister or Commissioner.

Thank you for considering this submission. I would like to make an oral submission in support, and look forward to appearing.

 

David Farrar

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The Press on SIS report

November 26th, 2014 at 10:00 am by David Farrar

The Press editorial:

Gwyn found, however, that Tucker, in defending himself, had provided an account of the briefing that was “objectively” misleading, by omissions and failure to provide context. The Prime Minister was also misled by the information Tucker provided. When public discussion about the matter blew up, Tucker failed to correct the situation.

Tucker’s errors were undoubtedly serious. He was not as measured and objective as he was required to be. These failures compromised the service’s obligation to appear politically neutral and the service has formally apologised for them, both to Goff and to the Prime Minister.

But contrary to much of the public debate on the matter, Gwyn found no partisan political motive on the part of the SIS or its director. Tucker’s faults were errors of judgment, no more. She also found that no SIS member had improperly leaked information to the blogger Cameron Slater or colluded with him.

Most importantly for the Prime Minister, Gwyn emphatically rejected any allegation of political collusion or direction of the SIS in its disclosure of information. The so-called “Dirty Politics” conspiracy did not exist.

Indeed.

She did find that information was provided by an employee in the Prime Minister’s Office to Slater for political purposes, but that employee was a political one who was not expected to be politically neutral and the information was not classified.

Political staff have political discussions with bloggers. How surprising.

On an issue of most concern to media, Gwyn found that differential treatment of requests for information from mainstream outlets, compared with one received from Slater, arose not from political partisanship but rather poor process, inadequate resources and lack of political awareness. The picture she paints is of a department unused to dealing with Official Information Act requests and under pressure for a quick response, rather than one seeking to act as part of any conspiracy.

Incompetence rather than malice. As is often the case.

The Herald editorial disagrees and says it is all John Key’s fault.

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The SIS report

November 25th, 2014 at 1:26 pm by David Farrar

The Inspector-General of Intelligence and Security has reported:

The inquiry found the NZSIS released incomplete, inaccurate and misleading information in response to Mr Slater’s request, and provided some of the same incorrect information to the Prime Minister and the Prime Minister’s Office.

“These errors resulted in misplaced criticism of the then Leader of the Opposition, Hon Phil Goff MP. Mr Goff is owed a formal apology by the Service,” said Ms Gwyn.

Ms Gwyn found no evidence of political partisanship by the NZSIS but did find that the NZSIS failed to take adequate steps to maintain political neutrality.

 “Having released inaccurate information that was predictably misinterpreted, the then Director of the Service had a responsibility to take positive steps to correct the interpretation. He failed to do so,” said Ms Gwyn.
Warren Tucker was obviously greatly annoyed at Goff denying he had been briefed on the Israelis, when he had been, but the Inspector-General has found his response was not satisfactory. Basically he felt his integrity had been impugned, so supplied information to back him up, rather than to give a full record. Also the SIS have little experience with the OIA and didn’t do stuff they should have, such as giving Goff an advance copy of their proposed response.
That is very disappointing from any state sector head, but especially the SIS. It will add to the task Rebecca Kitteridge has to maintain and grow confidence in the professionalism of the SIS.

Ms Gwyn said she had also investigated allegations, made before and during the course of the inquiry, that NZSIS officers had acted in collusion with Mr Slater or under direction from the Prime Minister or the Prime Minister’s Office. Ms Gwyn said that these allegations were particularly serious and that she had made full use of her statutory powers to investigate them.

“From that thorough investigation, I do not believe that any NZSIS staff member contacted Mr Slater to instigate his OIA request. Nor have I found any collusion or direction between the NZSIS and the Prime Minister or his Office.”

Not Watergate, despite what Russel Norman claims.

Ms Gwyn went to on comment that she had, however, established that a staff member of the Prime Minister’s office had provided unclassified NZSIS information to Mr Slater. However, that information was understood by the Prime Minister’s Office to have been provided for media purposes and there was no breach of confidence towards NZSIS in that disclosure.

“That disclosure did not breach any confidentiality or security obligations owed by those staff to the NZSIS. No classified information was disclosed to Mr Slater.” Said Ms Gwyn.

Basically Jason Ede tipped Cameron Slater off that there was some information worth applying for under the OIA. I’d say parliamentary staff have been tipping people off as to things to apply for since probably the day after the OIA was passed.

It is far to say though that when it comes to material involving a security agency, even if unclassified material, it is not a good look. It would be better for the Government to have just decided themselves to release the material, rather than rely on the OIA.

Also important to stress that while I don’t have a problem with people being advised to apply for things under the OIA (and many in the media may receive such tips also), it is important that all OIA requests are treated equally under the law regardless of who applies.  It seems the SIS did not correctly respond to media requests, as they did not regard them as OIA requests. But this is clearly wrong, as you do not have to cite the OIA for a request for information to be treated as an OIA request.

The full report is here.

I should pay tribute to Cheryl Gwyn for the robust nature of her report. It is very thorough and pull no punches. From time to time government institutions do make wrong calls, and what is important is we have a system that can deal with them.  I said at the time that I thought her appointment was a good one, and this reports shows it was.

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The foreign fighters proposed law

November 24th, 2014 at 7:00 am by David Farrar

John Key has released the draft legislation that will go to the House on Tuesday. It will got to select committee very briefly, and then come back to the House to be passed before Christmas.

The four main measures are:

  1. Extending the period the Minister of Internal Affairs can cancel a passport to up to three years from the existing law’s 12 months
  2. Giving the Minister of Internal Affairs the power to temporarily suspend passports for up to 10 working days in urgent cases
  3. Allowing the NZ Security Intelligence Service (NZSIS) to carry out video surveillance on private properties for the purpose of observing activities of security concern, modelled on the Police’s powers in the Search and Surveillance Act
  4. Allowing the NZSIS to conduct emergency surveillance for up to 48 hours prior to the issue of a warrant, with the approval of its Director and subject to the oversight of the Inspector General of Intelligence and Security.

The first two proposals do not seem a big issue to me. They are just an extension to an existing power.

The third proposal is long overdue arguably, and just brings the SIS powers  in line with the Police.

It is the 4th proposal that I have problems with, and frankly I don’t think the case for it has been made to justify it.

The justification in the bill is that information may come to light that someone not previously identified as a risk is about to travel to a conflict zone, and in the hours it takes to get a warrant, intelligence may be lost and they leave NZ.

I don’t think that is justification enough. Even if someone does leave to go to a conflict zone, that isn’t the end of the world. I’d rather they didn’t, but this isn’t enough of a threat to justify emergency surveillance without a warrant.

I also think there is a danger in trying to cover off every sort of theoretical possibility. You can justify almost anything with hypothetical justifications. You can justify torture if it is to discover the location of a nuclear bomb that will kill 100,000 people. But how likely is it? The question I would ask the SIS is whether there has ever been a situation where something bad happened because they had to wait six to 12 hours to get a warrant? Not a hypothetical situation, but an actual situation?

The danger of emergency powers is that can become a lazy norm. Why bother getting a warrant, if we can take a quick look for 48 hours, and then see if we learn enough to justify a warrant application? Now I have considerable respect for the current SIS Director, but the law should not be about the person in charge, but the institution.

So at this stage I’m unconvinced the fourth part of the law is justified, and if an MP would vote to remove it, unless I got better justification for it.

However it is worth noting there are some safeguards proposed for the emergency surveillance power. They are:

  • Only the Director can authorise
  • A maximum of 48 hours
  • Only when a delay is likely to lead to a loss of intelligence
  • The Commissioner of Security Warrants (CSW) must be notified within 12 hours
  • The CSW or the Minister can order the emergency surveillance to halt, once notified, if they do not think it meets the threshold
  • The Inspector-General of Security and Intelligence must be notified asap and can investigate if an emergency authorisation was appropriate
  • The SIS annual report must report how often an emergency surveillance was done
  • Law change is temporary, until 2018

These are good safeguards, but again I don’t think the case has been made for the power. If I was an MP I’d want details of actual harm caused in the past by not having this power.

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Herald says 80. Fairfax says 40

November 5th, 2014 at 1:52 pm by David Farrar

The Herald headline:

Key reveals 80 Kiwis linked to Islamic State

Up to 80 New Zealanders have been linked to the extremist group Islamic State and are being closely watched by Government agencies, Prime Minister John Key has revealed.

The Stuff headline:

40 Kiwis watched for extremism, PM says

Up to 40 people are being monitored by government agencies as possible foreign fighters because of their engagement in ”extremist” behaviour, Prime Minister John Key claims.

And people wonder why trust in media is low!

For those wondering the difference, the PM’s speech says that the watch list has 30 – 40 on it and there are a further 30 to 40 who require further investigation. So they are not on a watch list, but may end up on it. I’d say the Stuff story is more accurate even though neither is inaccurate.

The changes the PM is proposing are:

  1. Allow passports to be cancelled on national security grounds for up to three years, instead of one year, but allow a judicial review of the decision
  2. Allow a passport suspension for up to 10 working days while a cancellation is considered
  3. A $7 million funding boost for the SIS, so they can assess those needing further investigation
  4. A law change to allow the SIS, like the Police, to install (with a warrant) a video camera for the purpose of observing activities of security concern, such as weapons training
  5. An emergency power for the SIS to conduct urgent surveillance for up to 48 hours before a warrant is granted, subject to the oversight of the Inspector-General. Any use would be reported publicly

The 2nd, 3rd and 4th seem fine to me. I’d like to see the case made for the 1st proposal and have some concerns over the last one.

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Shearer indicates Labour may support security law changes

November 4th, 2014 at 11:51 pm by David Farrar

Stuff reports:

Big sporting events bringing large numbers of visitors to New Zealand are one of the Government’s concerns in proposing changes to the country’s security and surveillance legislation.

Senior Labour MPs Phil Goff and David Shearer were briefed this morning on the contents of the prime minister’s major national security speech tomorrow.

Changes to New Zealand’s security legislation will be announced as the Government attempts to plug “loopholes” within the country’s surveillance law and around passports.

Shearer said there was “obviously some rationale for doing it”, and they were “reasonably happy” the measures were ones that needed to be implemented because of gaps in the current legislation.

Great to see an Opposition MP, not just opposing for the sake of it.

Shearer said it was important gaps in surveillance and around passports were closed off, particularly in light of upcoming events in New Zealand which would bring in a lot of visitors, including the Cricket World Cup.

Shearer agreed there were some legislative issues to be dealt with, particularly with the SIS which was governed by “very old” law which was not in line with the police in what it was able to do.

Shearer would not go into detail on what the proposed new legislation would do as he and Goff were briefed in confidence, and it was for the prime minister to announce in his speech tomorrow.

The proposed changes would be subject to a select committee process, which would allow outside submissions to be made, although for a reduced period of time compared to the norm.

I’m pleased to see there will be a select committee process.

“We’re also very pleased with the fact there are going to be submissions around the area as well, so it means there is going to be some more scrutiny on the legislation, and of course there’s going to be a sunset clause as well,” Shearer said.  

Interested in the sunset clause? Is that to allow the full review scheduled for next year to them supersede this interim changes?

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Kitteridge’s first interview as SIS Director

November 3rd, 2014 at 11:00 am by David Farrar

The Herald reported:

If there’s one thing that irks Rebecca Kitteridge, it is being referred to as the new head of the SIS spy agency.

Yes, she became director of the Security Intelligence Service six months ago but it’s the spy word. It suggests the purpose of the agency is spying.

“It’s one of the things that drives me mad,” she tells the Weekend Herald.

“The purpose is security, the security of New Zealanders,” she says.

“And we have to do that by covert means because when people are planning to do ill to the country, they will try to keep that secret …

“But the purpose of it is security. The purpose of it is not to spy.”

A reasonable point that spying is the means, not the ends.

Kitteridge watched the Moment of Truth event in the Auckland Town Hall hosted by Dotcom, and featuring NSA leaker Edward Snowden via satellite from Russia, and the journalist who wrote Snowden’s story, Glenn Greenwald.

Greenwald himself was of no interest in terms of security.

“He is a journalist. He has freedom of speech. He is entitled to come here and do his thing.”

But she was annoyed over the claims of mass surveillance.

“It’s ridiculous. It’s not happening, full stop. Not even mini-surveillance let alone mass surveillance.

“What I can say is I absolutely did see what was going on at GCSB and there is no mass surveillance of New Zealanders.”

This has also been confirmed by the Inspector-General and the Privacy Commissioner.

She said the image of a typical SIS officer as an older man was rooted in the Cold War days when the focus was on Russian espionage, but the SIS had well and truly moved on.

And the old image was an anachronism to the reality of today’s 250 or so SIS staff with whom she meets every fortnight, including those in Auckland via video, in what she calls a town hall meeting.

“I had a town hall meeting today … What struck me is that it is not older men but young dynamic lively people, parents, people who go to the supermarket, people who go to the creche.

While it is an offence to identify any SIS officer except the Director, maybe the annual report could include some demographic information of the SIS workforce. My rare dealings with SIS staff had all been older males, but this was some time ago.

What happened in Canada last week — a soldier deliberately run down by a car and another soldier shot while standing guard at a memorial in Ottawa — was one of the main issues.

She said it was a wake-up call because New Zealanders saw Canada as “quite like us” and it was disturbing in that such situations would be very difficult to stop.

This is where she talks about “crowd-sourced terrorism”, a new term to describe lone-wolf acts of terrorism conducted by people who show no intent, after exhortation by Isis on the internet.

“What [Isis] is doing is they are sending out this material which is awful, it’s all on the internet … urges people to do small-scale attacks that are not complicated, that don’t require planning, that don’t require anything fancy, nothing more than a knife or a car or something you can light a fire with that will cause the maximum fear and devastation and havoc and loss of life.

“That is the explicit message and it is to attack the West.”

All that that was needed was intent. Capability was not difficult to put together and the whole purpose was to create a sense of terror in the population.

“I think that whole model of crowd-sourced terrorism that is actually very dispersed and where any individual can do it and they are not concerned about their own life is a very disturbing change.”

Crowd-sourced terrorism. If it catches on, it will be incredibly challenging for the reasons cited – no great capacity for planning and execution needed.

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This is a good time to abolish the SIS and GCSB!

September 24th, 2014 at 11:00 am by David Farrar

The Green Party policy is to:

We would therefore institute a select committee enquiry into whether the SIS should be abolished and its responsibilities returned to the police. …

we will abolish the GCSB and close its two signals intelligence bases at Waihopai and Tangimoana immediately.

Meanwhile in Australia:

A TEEN terror suspect under investigation for making threats against Prime Minister Tony Abbott was shot dead by police last night after stabbing a Victorian police officer and a federal police agent.

The injured officers, both from the Joint Counter Terrorism Team, are in hospital in a stable condition. …

Senior intelligence sources confirmed that the terrorism suspect had been among a number of people whose passports were recently cancelled.

It is believed that the man was well known to police, and had displayed Islamic State flags in the local Dandenong shopping centre.

And globally:

A 42-minute audio recording by an ISIS spokesman was released on social media Sunday, in which the group calls on Muslims to kill civilians in countries that belong to the anti-ISIS, U.S.-led coalition.

If you can kill a disbelieving American or European, especially the spiteful and filthy French, or an Australian, or a Canadian or any other disbeliever, then rely upon Allah, and kill him in any manner or way however it may be,” an ISIS spokesman says.

Note the reference to “any other disbeliever”.

The Herald editorial notes:

What should New Zealand do? Does this country have malcontents who would embrace even ascetic religious fundamentalism for the sake of a cause? Have any been with Isis and returned? Should this country, too, offer special forces to assist Iraqi troops on the ground? That depends on whether the new Iraqi Government is better than the last, and whether US air support alone might be effective, as it was in protecting Kurdistan. The decision must not be influenced by the possibility of terrorism at home. As Australia has shown, good intelligence can keep us safe.

This is worth reflecting on.

That doesn’t mean that the GCSB should be allowed to do what it wants. Absolutely not. I am against mass surveillance of New Zealanders (which does not occur in NZ). But be aware the Greens are not just against mass surveillance – their official policy is to abolish the GCSB entirely – and look at abolishing the SIS also. They take an unbalanced view on these issues, and that view has dangers as our closest neighbour comes under attack.

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Goff interfered with OIA request

September 9th, 2014 at 2:00 pm by David Farrar

Idiot/Savant at No Right Turn blogs:

Phil Goff was interviewed by the Inspector-General of Intelligence and Security today, and in the process admitted on oath to unlawfully delaying an OIA request:

When I spoke to the Director of the SIS who phoned me suggesting he intended to release the documents immediately, he was coy about whether he knew of the identity of the Mr Slater who had requested the documents sought under the OIA. He then acknowledged that he did know who Cameron Slater was. The documents were to be released immediately until I challenged why the SIS was acting in the way he proposed. He at that point suggested he would delay the release for a number of days.
So, just to be clear, Goff didn’t like the identity of the requester, so he demanded a delay. And Tucker gave it to him. That is unlawful. The OIA is clear: a response must be made“as soon as reasonably practicable”. The information clearly could have been released immediately, so it should have been. Goff (and Tucker) has behaved unlawfully by having it delayed.

Still, Goff’s frankness is illuminating: he believes, contrary to law, that not liking the identity of the requester is a reason for delaying a response. Which shows perfectly why he is unfit to hold office and should never be allowed to control an OIA process ever again.

Goff stated he had not been briefed on the Israeli tourists, when he clearly had been. He then tried to suppress the evidence he had been briefed. And now he claims it was wrong for the Government to release information which contradicts him. And this is the man who got up in Parliament and read out extracts from a highly confidential note take by an MFAT staffer at a meeting with National MPs and US Senators. Goff is many things, but consistent is not one of them.

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Goff tried to suppress the fact he was briefed

August 22nd, 2014 at 2:00 pm by David Farrar

The Herald reports:

He said Dr Tucker told him about Slater’s request for the documents on July 26, the day he received it.

Mr Goff said Dr Tucker said he intended to release that day, “and I hit the roof”.

He had told Dr Tucker it was “unbelievable that you would contemplate doing anything like that – that draws you right into the political arena”.

He said Dr Tucker then agreed to delay the release for a week.

Now think about this.

Phil Goff told the media and the public he had not been briefed on a security issue.

He had been.

The SIS told him that they planned to release the briefing note, after redactions, as it had been requested under the Official Information Act, and there were no legal grounds to refuse it.

Goff hit the roof and heavied the SIS into delaying the release. He thinks that documents showing he was briefed when he claimed not to have been, should not be released to protect him.

And Labour are trying to claim some sort of moral high ground!!

 

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Getting excited over, well, nothing

August 21st, 2014 at 10:09 am by David Farrar

The PM has said he wasn’t told about the OIA release from the SIS but his staff were.

NewstalkZb discovered a three year old letter from the SIS Director to them where he said he did advise the Prime Minister.

This got people all excited, but I never saw this as a contradiction as I have worked in Government and in a PM’s Office.

When officials say they have advised the Prime Minister, they generally mean they have advised someone in the PM’s Office.

In my experience it would be very very rare for a Government Department to talk directly to a Minister, let alone the Prime Minister, on an OIA request.

And my assumption has just been confirmed as the then SIS Director has confirmed to media that his 2011 letter was referring to having briefed the PM’s staff, and that he never had a conversation with the PM on it.

Also on the wider issue, of someone tipping off Cameron Slater to ask for the document, I’d also point out that in terms of motive, it may not be someone in Parliament. Phil Goff had incorrectly claimed the SIS had been derelict in their duty and never briefed him on an issue. I could imagine that there were a number of people in the SIS upset about this, and would have been quite happy for the briefing notes to be made public, if requested under the OIA.

I genuinely don’t know who tipped off Whale, but I do know agencies get pretty unhappy when politicians accuse their boss of incompetence or dereliction of duty, and many people at SIS would have known that Goff had been briefed, despite Goff claiming he hadn’t been.

UPDATE: I should add on that I think it is a good thing that the Inspector-General of Intelligence and Security is investigating. I’d also point out that while it involves the SIS, this is an issue about a document that was suitable for release under the OIA, not secret material. That doesn’t mean there isn’t an issue here, but there is a difference between alerting someone to ask for a document suitable for public release, and alerting someone to something classified.

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No PMO involvement in SIS OIA release

August 19th, 2014 at 6:08 am by David Farrar

Vernon Small at Stuff reports:

The Security Intelligence Service says neither Prime Minister John Key nor his office played a part in the release of controversial documents to blogger Cameron Slater.

The documents were released to Slater six days after he requested them and posted on his Whaleoil  website.

They confirmed the SIS had briefed then-Labour leader Phil Goff about Israeli backpackers who left the country after the Christchurch earthquakes.

In answer to questions from Fairfax Media today, referred from Key’s office to the SIS, a spokesman said the director was responsible for responses under the OIA “and made the decision to release, and what to release in this case”.

“Under the ‘no surprises’ convention the director or a representative would normally inform the minister’s office about what is being released under the OIA. That’s what occured in this case,” he said.

“Neither the PM nor his office expressed a view as to whether the information should be released, or to whom, or when,” the spokesman said.

So the story about Collins getting a prisoner moved is dead, as is this story it seems.

The SIS Director is the former Cabinet Secretary, a role with the utmost integrity as they directly serve PMs and Cabinets of all political persuasions. If Rebecca Kitteridge says there was no involvement of the PMO in decision making, then that would have been the case.

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Two reports by the Inspector-General

May 30th, 2014 at 1:00 pm by David Farrar

The Inspector General of Intelligence and Security has published two reports, both interesting.

The first report is into the incorrect data in the GCSB annual report. It had previously been disclosed and corrected. This was a pretty serious error, and to be honest if it occurred again you’d expect the responsible staff to resign.

Frustratingly we are not told how the error occurred. The IG says “any worthwhile account of the processes involved carries severe security risks”.

The second report is about the SIS and their interactions with a resident whose house they had a warrant to search. The resident is not named, but it has been widely reported to be Rajesh Singh – a former Fiji Minister who was suspected of being involved in a plot to kill Commodore Frank Bainimarama. It is somewhat ironic that the official policy of the NZ Government is that the Commodore is an illegitimate traitor, yet they also help protect him from assassination plots (which is the correct thing to do).

Anyway Singh has multiple complaints about the SIS behaviour during the raid. The Inspector-General dismisses all but one of them, noting that the evidence of Mr Singh is less credible than those of the two SIS agents and two police officers.

The one thing the IG does ping the SIS for is Agent A saying:

“would not tolerate [redacted] whether in New Zealand or not. Anyone involved in planning would be dealt with by the NZ police … A told [the complainant] he should be careful who he spoke to about the topics which had been discussed.”

The IG says that the role of the SIS is to gather intelligence only, not enforce security.

Basically the SIS agent should have got the Police officer to tell Mr Singh not to get involved in assassination plots, rather than tell him directly. It’s not a huge issue, but it is important to have the roles clearly defined.

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No Right fibs

May 6th, 2014 at 12:00 pm by David Farrar

Idiot/Savant at No Right Turn said:

Meanwhile its worth noting that our MPs enjoy no such protection from the SIS (and hence from GCSB). If John Key wants SIS to spy on his political opponents, all he has to do is sign a warrant

That’s a pretty outrageous fib.

Here’s all the people who would have to be involved in breaking the law in such a way (a warrant to spy on MPs would only be legal if they were taking part in activities prejudicial to security. Section 4AA specifically outlaws the SIS taking any action to further or harm the interests of any political party. So be very clear a warrant to spy on MPs would be illegal. So who would have to be involved in this illegal activity:

  1. The SIS Director who must apply for the warrant. The PM can’t just make up his own warrants. The SIS Director is Rebecca Kitteridge – the former Cabinet Secretary – about as neutral an official as you can get,
  2. The Commissioner of Security Warrants who must also authorise the warrant. That is former Court of Appeal Judge Sir Bruce Robertson. He was appointed to the judiciary in 1987 by Labour, and his appointment as CSR in 2013 was agreed to by the Leader of the Opposition.
  3. The Inspector-General of Intelligence and Security who would be notified of the warrant. That is Cheryl Gwnn, former Deputy Solicitor-General. She was appointed after consultation with the Intelligence and Security Committee. She was appointed Deputy Solictor-General in 2003.
  4. The half dozen or so SIS staff who would be involved in implementing the warrant.

So the statement that the PM can spy on his political opponents by just signing a warrant, is outrageously false. Idiot/Savant does many good insightful blog posts (even if I disagree with them). But sometimes he just gets hysterical.

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Hefty?

February 25th, 2014 at 9:00 am by David Farrar

Stuff reports:

But for two agencies that prefer not to spill their secrets, the SIS and GCSB have racked up a hefty bill for communications advice.

A hefty bill? How many millions have they spent?

In the 2012/13 year a contractor was paid $10,155 for three months’ work.

$10,155 for three months? That must be the most lowly paid contractor in the history of contracting.

The SIS also spent over $8000 printing three brochures since 2009, including ”A Guide to Weapons of Mass Destruction.”

Around $2,700 per pamphlet. $8,000 over five years. Frugal, not hefty, is the word that comes to mind.

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Kitteridge to head up SIS

November 12th, 2013 at 11:33 am by David Farrar

John Key has announced:

Prime Minister John Key today announced the appointment of Rebecca Kitteridge to the position of Director of Security, New Zealand Security Intelligence Service (NZSIS).

Ms Kitteridge will replace Dr Warren Tucker, who is retiring next year.

“Ms Kitteridge is a highly respected and professional public servant with experience in senior roles,” Mr Key says.

“She is currently Secretary of the Cabinet and Clerk of the Executive Council at the Department of the Prime Minister and the Cabinet (DPMC), and has served under four Prime Ministers and four Governors-General while at DPMC.

“Ms Kitteridge was also seconded to conduct a high profile compliance review of the Government Communications Security Bureau (GCSB) late last year.

This is an excellent appointment.

With the increasing focus on the intelligence agencies, public confidence is critical. Kitteridge’s background as a totally impartial Cabinet Secretary, but also as someone who is meticulous about following the law, due process, good procedure etc is just what the SIS needs.

The PM is obviously very determined that there be no more stuff ups of the Kim Dotcom variety.

Both the SIS and GCSB have tended to be headed up by those from a military or foreign affairs background. Now both are headed up by long-term career civil servants.

Also Kitteridge is the first woman to head up the SIS, and I suspect will be the youngest Director also by a considerable margin.

Slightly ironically, Kitteridge is going from one job where she can not talk publicly about most of her day to day work, to perhaps the one job where you can talk even less about what your day in the office was like. At least she’ll be used to it!

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A confused story

October 4th, 2013 at 11:00 am by David Farrar

The Herald reports:

Domestic spying agency the Security Intelligence Service is looking for a new deputy chief executive who will advise Prime Minister John Key on internal and foreign threats.

No they’re not.

It is not an SIS job. The job is for a Deputy Chief Executive of the Department of Prime Minister and Cabinet, who will oversee their Intelligence Coordination Group (ICG), National Assessments Bureau (NAB) and the Security and Risk Group (SRG).

While the SIS is New Zealand’s domestic spying agency the successful candidate will provide leadership and coordination of both the domestic and external security sector.

Again the job is not an SIS job. It is a DPMC job.

 

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Another terror plot

April 23rd, 2013 at 11:00 am by David Farrar

Reuters reports:

Canadian security forces have thwarted an al Qaeda plot to blow up a rail line between Canada and the United States, police and intelligence agencies say.

US security and law enforcement sources said the suspects had sought to attack the railroad between Toronto and New York City. Two men had been arrested after raids in Toronto and Montreal.

With this plot and the recent terrorism in Boston, it seems a very bad time to be arguing that there should be no capability to do intercept domestic communications in New Zealand. One professor was recently in print saying that this would make us a totalitarian state in a hysterical rant.

Of course any domestic spying must be strictly controlled and have rigorous oversight.  But those who argue New Zealand never has and never will have domestic threats are dangerously naive.

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Labour and GCSB

April 15th, 2013 at 10:00 am by David Farrar

There’s some very interesting questions about the passing of the GCSB Act in 2003, and whether Labour lied to New Zealanders about what the Act would do, or if they told the truth and Helen Clark allowed the GCSB to break the law.

Grant Robertson was Clark’s second most senior advisor, so he may be able to assist!

The GCSB was created in 1977. From the beginning its role has been focused on foreign intelligence, but we have been told that for some decades it has also assisted other agencies (SIS and Police) with communications intercepts when those agencies have gained warrants authorising them to do so.

In May 2001, Helen Clark introduced the GCSB Bill to give the GCSB legislative backing. Helen Clark said:

In the absence of a legislative framework for GCSB, for example, some have wrongly inferred that the Bureau’s signals intelligence operations target the communications of New Zealand citizens; that the GCSB exists only as an extension of much larger overseas signals intelligence agencies; and that the Bureau’s operations are beyond the scope of Parliamentary scrutiny.

For the record, I reiterate again today that the GCSB does not set out to intercept the communications of New Zealand citizens or permanent residents. Furthermore, reports of the Inspector-General of Intelligence and Security have made it clear that any allegations to the contrary are without foundation. The Inspector-General has reported his judgement that the operations of the GCSB have no adverse or improper impact on the privacy or personal security of New Zealanders.

Now we know that after this law was passed, the GCSB continued to assist the SIS and Police with interceptions – where those agencies had gained a warrant.

This means there can be only two interpretations of what Helen Clark did.

  1. She misled New Zealanders on the GCSB. She knew that the GCSB assisted the SIS with interceptions. She should have said that the GCSB doesn’t intercept communications of NZers, except when acting on behalf of an agency that has gained a warrant to do so. She made a conscious decision not to mention this, and misled Parliament on what the GCSB does, and Parliament voted on a law not aware of what the GCSB does.
  2. She ignored the law. She was aware that the GCSB had traditionally assisted the SIS, and knew the law would stop them being able to do so legally when it involved a NZ resident. But then after the law was passed, she allowed the GCSB to break the law.

My belief is (1). I think Clark misled New Zealand and Parliament by not explicitly mentioning the fact that the GCSB did intercept communications of NZers, when doing so for the SIS who had gained an interception warrant.

I can understand the annoyance of people that the Government had not been explicit that the GCSB prohibition on interception communications from New Zealanders, doesn’t stop them assisting the SIS and Police if they have gained warrants.

The issue going forward is should the GCSB be able to assist the SIS. Labour’s position is, as usual, God knows. The Herald reports:

Labour would consider allowing the GCSB to spy on New Zealanders in limited circumstances but only if that was recommended by a full independent review of intelligence agencies, party leader David Shearer says.

Another clear concise and brave policy.

There are basically four options when it comes to communications interceptions. They are:

  1. Neither the SIS nor GCSB should ever be allowed to intercept communications of New Zealanders. 
  2. The SIS can intercept the communications of NZers if they gain a warrant to do so, but the GCSB can not assist them.
  3. The SIS can intercept the communications of NZers if they gain a warrant to do so, and the GCSB can assist them.
  4. Both the SIS and GCSB can intercept the communications of New Zealanders

The first option is what one might call the Keith Locke position. We would of course be the only country in the world that basically bans the intelligence agencies from being able to well, do their jobs. I doubt any party in Parliament except possibly the Greens would support this.

The fourth option is also not supported by any party or MP, as far as I know. Mind you, Labour seem to suggest they might go along with that if a review recommended it!

So really it is a decision between options (2) and (3). Do you require the SIS to spend what could be tens of millions of dollars on duplicating the GCSB systems in order to do around six interceptions a year?

You can argue, yes we should. That there should be purity of separation. That the GCSB should be like the CIA and never ever intercept domestic communications. Except that actually the CIA is authorised to do so in some circumstances so the comparison is not correct.

What I think is important is that the GCSB can’t just help the SIS with any old request. That their assistance is limited to cases where the SIS has gained a warrant due to security concerns. Let’s look at the SIS Act for the criteria. That:

the interception or seizure or electronic tracking to be authorised by the proposed warrant is necessary for the detection of activities prejudicial to security

And what does security mean:

  • the protection of New Zealand from acts of espionage, sabotage, and subversion, whether or not they are directed from or intended to be committed within New Zealand:
  • (b)the identification of foreign capabilities, intentions, or activities within or relating to New Zealand that impact on New Zealand’s international well-being or economic well-being:
  • (c)the protection of New Zealand from activities within or relating to New Zealand that—
    • (i)are influenced by any foreign organisation or any foreign person; and
    • (ii)are clandestine or deceptive, or threaten the safety of any person; and
    • (iii)impact adversely on New Zealand’s international well-being or economic well-being:
  • (d)the prevention of any terrorist act and of any activity relating to the carrying out or facilitating of any terrorist act

So it is important to recall that the 88 cases cited in the Kitteridge report, all had warrants authorised under the SIS Act because they met one or more of the criteria above. The issue is not that they should not have legally had their communications intercepted – but whether the right agency did the interception.

If you do not amend the law, then there will be no reduction in the number of NZers who have interception warrants issued against them. The only difference is the SIS will do the interception directly, rather than use the GCSB.

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A tale of two leaders

October 4th, 2012 at 9:00 am by David Farrar

We’ve seen an interesting comparison of two parliamentary leaders who have both not recalled a mention of an issue in a briefing or presentation.

In July 2011, then Opposition Leader Phil Goff said that he was “not aware of the allegations” around the Israeli hitchhikers.

More recently John Key said he was unaware of the GCSB involvement in the Kim Dotcom case until a couple of weeks ago.

It turned out in the case of Phil Goff he was briefed personally by the Director of the SIS in March 2011. A contemporaneous file note states that it was on the agenda, that Goff asked a question about it, that it was “discussed at length” and notes that Goff was shown the investigation paper and that Goff read it.

In the case of John Key, the GCSB has said that the PM was not briefed on the case until September 2012, but that at a visit to the GCSB offices in Feb 2012, he was given a powerpoint presentation where the Dotcom issues was briefly mentioned, and an image of Dotcom was one of 11 in a montage. The Director says he does not recall the reference, but his staff say it was mentioned briefly.

Now I have to say I believe both Phil Goff and John Key, in that they didn’t recall their respective issues. I would point out that SIS meeting with Goff was a one on one meeting specially to brief on intelligence issues – not a general “this is what we are up to” type presentation. But regardless both men have hundreds of meetings a month.

Where there is a stark difference, is when documents came to light that highlighted there was a briefing or mention.

Even though there is no written record of the matter being mentioned to him,, and even though the GCSB Director says he doesn’t recall it, John Key has said he accepts the recollection of the other GCSB staff – and at the first opportunity has made public that fact, and has said he will correct the record.

Now compare that to what Phil Goff did.  Phil Goff accused the SIS of lying, and inventing things, and said he would refuse to meet them in the future without witnesses. Even to this day, he refuses to admit his memory may have been faulty.

I think that speaks volume about character.

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Mark T. al-Rahman

September 1st, 2011 at 8:53 am by David Farrar

The case of Mark Taylor, or Mark T. al-Rahman, is an interesting one.

You have to trust the PM and the SIS presumably, when they say Mr Taylor is no threat.

However the official explanation he gave of trying to attend a wedding, for his attempt to enter an al-Qaeda military camp in Pakistan has always been highly dubious.

But it is innocent until proven guilty and as Mr Taylor says, he has not been charged with any offence. But having said that, I’d be a bit nervous if he moved in next door to me!

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No Right Turn on SIS

August 5th, 2011 at 2:30 pm by David Farrar

Idiot/Savant by his own words hates the SIS and hate Whale Oil. So when he concludes the SIS have acted entirely appropriately, it is worth quoting:

There’s a lot of shit going round the blogosphere this morning about the SIS’s release of a document which made Phil Goff look bad to a sewerblogger “in preference” to the media. … But it turns out that its nothing of the sort, and there is a very good reason for the difference in timeframes. From Stuff today:

Mr Slater was given the documents five working days after he made the request. Fairfax Media, who made a similar request, received the document last night along with a letter from Dr Tucker which said: “Your request differs from Mr Slater’s in that you have also requested reports prepared for the prime minister”.

Which seems like a perfectly reasonable explanation.

If you want to see some hysterical rants, check out John Pagani who has blogged six times in a row on the same issue, each time claiming the SIS have committed treason, by obeying the Official Information Act. How desperate can you get to distract people from the substantive issue, that Goff lied.

Matthew Hooton blogs:

I find it difficult to believe he is not lying about the meeting with SIS Director Warren Tucker on Monday 14 March.  If he is not lying then his memory faculties and/or his ability to multitask must be seriously in doubt. …

Mr Goff would have it that these documents are fakes.  Mr Tucker wrote things down, and prepared agendas and minutes, that were untrue. He then gave these false documents to the Prime Minister’s Office and to Whaleoil in order to discredit Mr Goff. 

This is an extraordinary allegation for Mr Goff to be making, even implicitly.  How credible is it that Mr Tucker would behave that way?  My intelligence sources tell me he has always been the ultimate straight-shooter and has done more than any of his predecessors to bring openness and transparency to the intelligence community.  Any personal political views he may have are, I’m told, completely unreadable and, as outlined above, he has maintained the confidence of every New Zealand prime minister from Muldoon, to Lange, to Bolger, to Clark to Key. It is impossible to believe he has now risked his reputation to take a cheap shot at Mr Goff, who he served loyally when he was Foreign Minister, Defence Minister and Trade Minister through the 2000s.

Isn’t it far more likely that Mr Goff, having previously said the matter had not even been mentioned to him at all, has been caught lying and is now forced, Nixon-like, to maintain the lie – even if it requires implicitly attacking Mr Tucker’s integrity to the extent of suggesting he has behaved illegally?

The sad thing for Goff is this is totally self-inflicted. It was of little political consequence whether or not he had been briefed or not. But because Goff was so stupid as to attack the SIS, rather than check with them, he has now been forced into a position when he is seen as dishonest rather than merely forgetful.

Idiot/Savant again notes:

As for the actual issue, Ministers and MPs receive a lot of information, and I would not be surprised at all if they forgot something mentioned in passing. And I’d expect them to be aware of that problem, rather than arrogantly assuming they have total recall of every document which has ever passed their desk

Unless you believe the paranoid conspiracy theory that the SIS has fabricated the briefing notes from March, it is obvious that Goff was briefed, and at a minimum had a quick read of the report.

He was distracted by the Darren Hughes scandal, and it is not a big thing that he doesn’t recall the briefing. but his arrogance is proving his downfall. In a measure of his credibility vs Warren Tucker, he doesn’t come out of it at all well.

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The SIS Document

August 4th, 2011 at 6:22 pm by David Farrar

SIS-OIA

Embedded above is the OIA response from the SIS. The documents:

  1. notes the Investigation into Israeli Nationals in Christchurch was an issue to be discussed with Goff on 14 March
  2. says that Goff asked “What do we know?”
  3. notes it was “discussed at length”
  4. again notes the briefing on 14 March on the agenda for 6 April
  5. has a copy of the actual investigation paper dated 8 March
  6. notes it was discussed with Goff
  7. also notes that Goff read the investigation paper

And look at all that, and then be reminded by Whale that Goff time and time again claimed in different media he had never been briefed – that in fact the first he heard of the Israelis was when the Southland Times ran their story

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Goff still can not admit he is wrong

August 4th, 2011 at 1:36 pm by David Farrar

Tracy Watkins at Stuff reports:

A fresh political row has broken out over Israeli spy allegations after Labour leader Phil Goff accused  SIS head Warren Tucker of misleading the public over what he knew about an investigation into the death of an Israeli citizen in the February 22 Christchurch earthquake.

Goff today disputed a notation by Tucker on a briefing note – released under the Official Information Act – which suggested the opposition leader had seen the briefing of the Israeli “spy” investigation.

Goff disputed the notation and accused Tucker of calling his credibility into question.

“In future, I will only meet with Warren Tucker or representatives of the SIS if there is someone independent in the room to keep a true and accurate record of what is discussed.”

Warren Tucker incidentally was appointed Director of the SIS by Helen Clark in 2006.

The notation he made on the briefing note that Goff has seen the briefing paper would have been made in March, when he met Goff. Back then there would have been no thought that this could become a public issue.

Tucker is a long serving intelligence professional. He would have done hundreds or thousands of briefings, and I doubt would be in the habit of being careless about his notations, or would forget to hand over a paper he had with him.

We now have an Opposition Leader who is so arrogant, and so unable to simply say “I stuffed up” (unlike the Prime Minister) he is now claiming the SIS Director is a liar, and incredibly has said he no longer trusts the SIS and will never meet with them again without witnesses. And this is the man who wants to become their Minister.

This fiasco was entirely avoidable by Goff. When it was first reported that Goff had been briefed, he could have checked quietly with the SIS before shooting his mouth off in public. but once he had publicly stated he had never been briefed and knew nothing of the Israeli issue, he has refused to concede he was wrong, and simply didn’t recall the briefing as he was in the midst of the Hughes scandal.

The public forgive MPs who say they made a mistake. Goff though has dig himself a hole and keeps digging.

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Goff keeps digging

July 26th, 2011 at 1:00 pm by David Farrar

People will think this is whack Phil Goff day. I’d rather blog on something else, but he keeps digging. His arrogance and refusal to admit black is black is beyond belief. Let us look at the transcript of Goff with Larry Williams:

LARRY WILLIAMS:         All right. Prime Minister, I think, says if it is an act of global terrorism but anyway, let’s go on to other things. The Israelis, the Prime Minister said his understanding from director SIS, Warren Tucker, that you were briefed and it seems that you were.

PHIL GOFF: No, I wasn’t briefed. He said that I’d received the same document that he had received. I saw no document. There were three documents. I have seen none of them. Briefed is not a description that I would give.

He is effectively calling the SIS Director a liar. Just because one may or may not have received written reports, is not the same as denying you have been briefed. An oral briefing is a briefing. Warren Tucker has said he orally briefed Phil Goff, and Goff’s only response is he doesn’t remember it. That does not mean he was not briefed.

Goff said he was unaware of the issue. He was wrong. The SIS Director had at a minimum orally briefed him. What is Phil Goff incapable of acknowledging he was wrong? Does he think it will make voters like him more?

LARRY WILLIAMS:         Tucker’s an honourable guy, isn’t he? Were you given the papers or not?

 PHIL GOFF: No, I wasn’t given the papers and nor – nor will Warren Tucker say that I definitely received those papers. I would have recalled reading the paper had I been given it. I was not given it.

From my recollection of working in both a Prime Minister’s Office and an Opposition Leader’s Office, the SIS don’t tend to leave copies of their papers behind. Generally you are given it to read, and then sign it, and give it back.

But regardless of whether Goff was given a copy of a paper to read, he was orally briefed on the Israelis. He simply forgot or didn’t pay attention.

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