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