Public Commentary

Here is a list of my latest public commentaries:

Restoring confidence in intelligence agencies

New Zealand Herald,  2 February 2021

By Damien Rogers

Last year the Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques presented its report to the Governor-General.

A key rationale behind establishing the commission was to help restore the public’s confidence in New Zealand’s security and intelligence agencies. That is why the Royal Commission’s report was prepared for public release.

Should the public be satisfied with this report and its recommendations?

It is impressive and rich in detail. Sections are very strong, especially its description of Tarrant’s background and his actual attack, and its description of New Zealand’s current security arrangements. The report’s treatment of some witness testimony is both critical and expert.

However, the commission had obvious blind spots too; given the commissioners’ professional backgrounds in law and diplomacy, their lack of expertise in security matters showed.

The commissioners lacked the expertise to challenge received wisdom and conventional thinking in the intelligence community. For instance, the all-encompassing definition of national security promulgated by the Department of the Prime Minister and Cabinet was cited without critical evaluation. The report’s use of existing knowledge on security matters contained in specialist academic literature was weak too.

In addition, the commissioners demonstrated their lack of independence from the politicians who established their inquiry. Their report names the terrorist as Brenton Tarrant only once. For the remainder he is referred to as “the terrorist” or “the individual”. This would have pleased the Prime Minister, who vowed to never mention Tarrant’s name in public.

A more telling weakness, however, lies in the report’s frequent use of the concept of social licence, which it defines as the ability of a business, organisation or government to do its work because it has the ongoing approval or acceptance from society to do so.

While the concept was first developed to explain how extractive industries obtain the consent of local communities as they deplete their natural resources and degrade their environment, the intelligence agencies have used the term in public for some time. This suggests the Royal Commission may have been unwittingly captured by public service rhetoric and their public relations efforts.

Nevertheless, the report acknowledges the need for greater public involvement in intelligence and security matters and recommends the creation of an advisory committee on counter-terrorism comprising representatives of communities, civil society, local government and the private sector.

The report also recognises the value of independent research into intelligence and security matters. The commission considered the creation of a new research entity but preferred a programme to fund independent New Zealand-specific research on violent extremism and terrorism. They favoured contestable grants for academics and researchers with existing interests in counter-terrorism.

The intellectual independence of academics will ensure that research will be done in the public interest.

The Government should also consider establishing a parliamentary commissioner on security. Appointed by the Governor-General on the recommendation of the House of Representatives, this commissioner would assume the role as Parliament’s national security adviser. This commissioner would provide robust independent advice on New Zealand’s security challenges — including the government’s ability to meet these challenges — to the House of Representatives. The parliamentary commissioner would produce reports on these matters for the public too.

The office needs to be separate from the machinery of government and capable of critically examining the relationship between Cabinet and the public service agencies responsible for managing security. It would need its own operating budget, a small staff of researchers and analysts, and a secretariat detached from the security sector.

While this might constitute a step change of sorts for intelligence professionals, the wider public service is no stranger to similar initiatives, such as the Parliamentary Commissioner for the Environment. While the reach of their recommendations is limited, the Royal Commission has provided foundations for democratic security practice to take hold in Aotearoa New Zealand.

New spy agency — cure worse than the disease?

New Zealand Herald, 5 January 2021

By Damien Rogers

As the newly-appointed minister responsible for implementing the recommendations of the Royal Commission of Inquiry into the Terrorist Attack on Christchurch, Andrew Little would be wise to adopt a highly precautionary approach. 

The Royal Commission’s report was finally released to the public last month, a year after its original deadline had passed. The report cost the public about $8m, which equates to about $10,000 for each of its 800 pages. In order to meet public expectations under these circumstances, the report had to include bold and far-reaching recommendations. 

The Commission took the predictable option of recommending the government establish a new intelligence and security agency. It will be responsible for providing strategic intelligence and security leadership functions, including the drafting of a counter-terrorism strategy. 

The commissioners explained, however, that it is impractical to carve out counter-terrorism responsibilities and the new agency’s purview would therefore span all intelligence and security matters. 

The Commission, it seems, had prior knowledge of the focus of the next statutory review of the intelligence agencies, which must begin before the end of 2022. The first such review was undertaken by Sir Michael Cullen and Dame Patsy Reddy and their report, in early 2016, focused on reforming legislation covering intelligence work. 

Yet the commissioners somehow know the next review will make recommendations on the organisational redesign of the intelligence community along the lines of either an amalgamation of the NZ Security Intelligence Service (NZSIS) and the Government Communications Security Bureau as a joint operations agency or what they describe as an “uber-agency” that combines all relevant strategic and operational functions. 

With those future states in mind, the Commission seeks to separate intelligence strategy and policy work from intelligence operations. The inspiration for such a vision may have been their key adviser, John McKinnon CNZM QSO, a well-respected former Secretary of Defence. The blueprint for the new agency will be very familiar to those who work within the defence establishment where policy is handled by the Ministry of Defence and operations are conducted by the New Zealand Defence Force. 

Is establishing another intelligence agency the right thing to do in the aftermath of the Christchurch atrocity? 

The commissioners thought so and suggested building the new agency from existing business units that currently belong to the Department of the Prime Minister and Cabinet (DPMC) and the NZSIS. This approach is something akin to Frankenstein’s making of a monster. 

Shifting business functions to a new institution might present opportunities for politicians to cut ribbons at opening ceremonies. But such celebrations only mask the use of an institutional solution to address a problem linked to a professional work culture that can only be improved through effective leadership. 

If the agencies do not currently have the wherewithal to perform their functions effectively because professional jealousies and parochial attitudes prevent them from doing so, shuffling the deck institutionally will not likely fix the underlying attitudinal problem. 

Given many of those recruited to the new agency will come from existing intelligence and security agencies and will carry those attitudes with them, the cure could be worse than the disease. 

There was considerable pressure on our politicians to be seen to do something in response to the Commission’s findings. Perhaps this is why Prime Minister Ardern accepted all 44 recommendations as soon as the report was made public. 

The devil will be found in the detail of any implementation plan, however. 

Officials from DPMC will position themselves as key advisers on that plan, but their advice might taste like fruit from a poisonous tree to the new minister. Even the commissioners could not ignore the role played by DPMC in co-ordinating New Zealand’s intelligence and security efforts and had the foresight to exceed their own terms of reference by including DPMC in the scope of their inquiry. 

Parts of DPMC will be cannibalised as the new agency is built, in part, from its business units. The vested interests here are plain — jobs for mates, and the building of more bureaucratic empires. 

New Zealanders need their newly-appointed minister to be bold, and this includes seeking independent advice on implementing the Commission’s recommendations from beyond the traditional public service sources. 

Heads should roll in intelligence shake-up

New Zealand Herald,  28 December 2020

By Damien Rogers

Public servants responsible for leading New Zealand’s intelligence community ought to have resigned by now, but presumably haven’t found the courage to do so. 

Earlier this month the Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques on March 15, 2019, presented its final report to the Governor-General. The report makes for distressing reading. It opens with a grisly account of how one man planned, prepared, executed and live-streamed a mass shooting of 100 Muslims. 

Another distressing feature of the report is its portrait of our intelligence community’s dysfunction. It describes, for instance, how the New Zealand Security Intelligence Service (NZSIS) and Police do not always share information on counter-terrorism because staff distrust one another. 

This calamitous state of affairs is woeful given the size of annual budget increases enjoyed by our intelligence agencies since the United States was attacked on September 11, 2001. It is also lamentable due to the publicity surrounding Anders Breivik’s mass shooting in 2011, when he targeted minority groups in Norway. It is inexcusable too after members of New Zealand’s Muslim community repeatedly expressed concern over their safety and wellbeing to NZSIS and Police. New Zealand has a history of mass shootings. 

Although the royal commission did not make a finding of fault against any public sector agency in respect of New Zealand’s counter-terrorism effort, it did suggest that the dysfunction is “systemic” — as no single agency has overarching responsibility for ensuring New Zealanders’ security from terrorism. 

That’s not nearly good enough. The senior public servants employed to lead the NZSIS as a key operational agency and the Department of the Prime Minister and Cabinet (DPMC) as the key co-ordination agency have fallen well short of the high standards New Zealanders are entitled to expect from their intelligence community. Read in its entirety, the commission’s report is a damning, if somewhat veiled, indictment of their performance. 

Recognising that New Zealand’s current security arrangements are seriously deficient and cannot continue without remedy, the royal commission recommended a raft of changes, the most significant of which is the establishment of a new intelligence and security agency that will be responsible for strategic intelligence and security leadership functions, including the drafting of a counter-terrorism strategy. 

The royal commissioners sought to impose order where order was lacking. While publicly welcoming the report, these public servants must be humiliated by the commission’s recommendations that illustrate their own leadership failings while demonstrating that they are no longer seen as credible security professionals, not least because external reviewers are needed to provide such detailed advice about their own jobs in such a public manner. Their positions are no longer tenable and will soon embarrass the Government. 

The full implementation of the royal commission’s recommendations will not be credible without an appreciable change in the leadership of New Zealand’s intelligence community. Requiring a senior minister to lead the implementation of the report’s recommendations is, perhaps, the strongest possible vote of no confidence in these public servants. 

Given the highly intrusive surveillance powers granted to our intelligence agencies and the secrecy provisions surrounding their activities, New Zealanders deserve to be assured that their intelligence community is well led. As taxpayers, the public will expect these leaders to earn the high salaries that remunerate them for discharging their official duties — and this includes falling on their metaphorical swords when circumstances require them to do so. 

The organisational leaders of the NZSIS and the DPMC must surely value professional integrity and ought to model this value to their employees. In light of the royal commission’s report, it is difficult to see any ethical alternative to their resigning immediately from their respective positions. Yet those resignation letters do not appear forthcoming. As the responsible ministers, Andrew Little and Jacinda Ardern will suffer the indignity of having to ask for those letters if they haven’t already. To do otherwise will undermine the commission’s reputation. 

Latest peace prize winner honours Nobel intentions 

Dominion Post, 8 December 2017

By Damien Rogers

This Sunday the Norwegian Nobel Committee will award the 2017 Nobel Peace Prize to the International Campaign to Abolish Nuclear Weapons (ICAN).

ICAN is receiving the prize for raising awareness of the catastrophic humanitarian consequences of nuclear weapons use and for its efforts to produce a treaty prohibiting such weapons.

Few people will disagree with this choice, especially given the increasing tensions between North Korea and the United States.

The award was established by the Final Testament of Alfred Nobel, an extraordinarily gifted inventor and shrewd businessman who amassed a fortune in the late 19th century. He is famous for inventing dynamite. The interest accrued by Nobel’s vast estate funds annual prizes awarded to those who, during the preceding year, conferred the greatest benefit on mankind.

There are five Nobel Prizes – for Physics, Chemistry, Physiology or Medicine, Literature, and Peace – and in 1968 Sweden’s central bank established The Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel.

Unlike the other prizes which are awarded by Swedish institutions, the Nobel Peace Prize is awarded by the Norwegian Nobel Committee, which was created by the Norwegian Parliament in 1897. According to Alfred Nobel’s will, the peace prize must be awarded to the person who has done the most or the best work for the brotherhood among nations, for the abolition or reduction of standing armies, and for holding and promoting peace congresses.

It is easy to see the committee’s adherence to this simple criterion during its early years. The very first prize, for instance, was awarded jointly to Frederic Passy (an active campaigner for peace) and Henry Dunant (one of the co- founders of the International Committee of the Red Cross).

But since the end of the Second World War, the committee has been sharply criticised for awarding prizes to Henry Kissinger, Le Duc Tho, Anwar al-Sadat, Menachem Begin, Yasser Arafat, Shimon Peres, Yitzhak Rabin, and US President Barrack Obama.

It is difficult to see how any of these men have done the most or the best work for the abolition or reduction of standing armies. These men are enmeshed in the world of militarism. None are committed to a world without arms.

Gandhi would have been a better choice. Or perhaps one of our own peace researchers at Otago University’s National Centre for Peace and Conflict Studies.

Last year, the prize went to Colombian President Juan Manuel Santos. According to the committee, Santos deserved the award for his resolute efforts to bring his country’s civil war to an end, a war that has cost the lives of at least 220,000 Colombians and displaced close to six million people.

Most people would agree that ending any of the world’s internal armed conflicts is a very commendable endeavour, worthy of much acclaim and applause.

But the Nobel Peace Prize is not supposed to be awarded on those grounds.

One reason for those poor selections, which have clearly deviated from Nobel’s intent, is the committee’s composition. In 1948 the Norwegian Parliament delegated the selection of the committee’s members to the major political parties based on their results from the previous General Election. Up until that point the selection of committee members was debated publicly by parliament and based on the “peace” credentials of the various candidates.

During the Cold War a consensus developed within Norway’s political establishment that the use of armed force is a fundamental aspect of the country’s foreign and defence policies. That view is at odds with the world Nobel wanted to encourage and help shape.

Perhaps the committee now selects high-profile actors in world affairs in order to attract attention to the prize, rather than using the prize to attract attention to individual champions of peace. The prizemoney accompanying the award, now over US$1 million, would enable grassroot activists and peace researchers to continue their work for the world envisaged by Nobel’s Final Testament.

When the committee convenes at the Oslo City Hall on December 10, the date Alfred Nobel died, the award ceremony and all the pageantry that surrounds it will, on this occasion, respect their benefactor’s wishes. It will serve as a powerful reminder that peace cannot be achieved through a balance of terror founded on the possession of nuclear arms.

UN top job would give status to NZ’s place in world

New Zealand Herald, 18 June 2014

By Damien Rogers

Helen Clark’s campaign to become the next secretary-general of the United Nations gained further momentum this week when she fronted to a global audience on BBC’s influential HARDtalk show.

Clark’s campaign to become the world’s pre-eminent international civil servant is based on her credentials as a former prime minister, committed internationalist and present head of the UN Development Programme, which has a budget of US$4 billion and a presence in 177 countries. Crucial too is Clark’s strong advocacy for gender-based equality and the importance of women to the world’s workforce.

Clark’s campaign will prove enormously important since there is no formal interview process for the UN’s top job.

Candidates for the role are identified and considered by the five permanent members (P5) of the UN Security Council – China, France, Russia, United Kingdom and the United States – before a single name is offered to the General Assembly for their consideration and vote.

Practice to date suggests the permanent members have agreed none of their nationals will be considered for the role. The General Assembly also seems to have made a habit of setting appointment terms for five years and of accepting reappointment of incumbents but never for more than two terms.

Since the UN’s establishment in 1945, eight people have held the post of secretary-general: Trygve Lie (1946-53), Dag Hammarskjold (1953-61), U Thant (1964-71), Kurt Waldheim (1972-81), Javier Perez de Cuellar (1982-91), Boutros Boutros-Ghali (1992-1996) and Kofi Annan (1997-2006). Ban Ki-moon’s second term will end in 2016.

Clark’s campaign signals not only her continuity with, but also her departure from these eight UN heads. As a former elected representative and prime minister involved in foreign affairs, Clark can stress her common professional background with Lie, Waldheim, and Boutros-Ghali, who were each previously their respective government’s foreign minister. As a senior international public servant, Clark can also claim affinity with Annan.

As Clark’s performance on HARDtalk illustrates, this former prime minister is making good use of her experience as a seasoned political campaigner, her reputation as a staunch defender of a small country’s independence in foreign affairs, and her record of building consensus within an MMP environment.

With previous holders hailing from Norway, Sweden, Burma, Austria, Peru, Egypt, Ghana, and South Korea, Clark could be the first secretary-general from the South Pacific region. Her gender could also breach this exclusive male domain. Indeed, the highly gendered dimensions of leading international organisations could be the foundation of her campaign for the top job and a priority will be enlisting support for the first female UN secretary-general. No job description exists for this post.

Its roles and responsibilities are at best signalled in a few articles of the UN charter.

The secretary-general is the UN’s chief administrative officer, including for the Security Council and the General Assembly. But perhaps the most important aspect of the position is the ability to bring to the Security Council’s attention any matter which, in his or her opinion, may threaten the maintenance of international peace and security.

This means the secretary-general plays a key role in the high politics of international security.

Tensions between the multilateral internationalism of the secretary-general and the vital interests of the P5 can reach boiling point.

And if a single permanent member of the Security Council becomes irritated with a secretary-general, then the consequences can be terminal – for that incumbent.

At the start of the Cold War, for instance, the USSR refused to work with Lie, rendering him something of a lame duck until he resigned.

When Peter Fraser travelled to San Francisco in 1945 to put New Zealand’s signature on the UN Charter and help bring the organisation into existence, he would not have dreamed that a New Zealander would one day be considered for the secretary-general position.

If successful, Clark’s campaign to ascend the UN Secretariat’s throne would be of no direct benefit to New Zealand’s foreign policy because the secretary-general must always be independent from any government.

A successful campaign would, however, make Helen Clark the most visible New Zealander in contemporary world affairs, playing a role in addressing questions of international security and peace for up to 10 years.

This would bring more enduring benefits than a non-permanent seat on the UN Security Council and would magnify New Zealand’s place on anyone’s map.

Pressure to perform on Cunliffe

New Zealand Herald, 31 October 2013

By Damien Rogers

David Cunliffe’s popularity began to wane almost as soon as the media spotlight ceased illuminating the contest over the Labour Party’s parliamentary leadership. As that contest fades into the recesses of public memory, it seems his honeymoon, now over, was fleeting, lacklustre, and, by all appearances, fruitless.

From now on, when Cunliffe receives sustained media attention his performance as an Opposition leader will be intensely scrutinised. That scrutiny will create unrelenting pressure to perform well not merely during much practised set-piece speeches, but also during the daily cut and thrust of parliamentary theatre. Assessments of relevant polling data will be increasingly unforgiving since Cunliffe’s acolytes spent much of the last two parliamentary terms pointing to stagnating polls to undermine both Phil Goff’s and David Shearer’s leaderships.

Scepticism of Cunliffe’s sincerity lies in the Machiavellian manner of his political rise where the ends of grasping power justify the means, however immoral or obnoxious. Matters will be complicated for Cunliffe should any of his caucus colleagues decide to treat him to a dose of his own medicine by repeatedly raising the prospect, and then refusing to rule out the spectre, of a leadership spill.

The next few months won’t be without major obstacles for Cunliffe, the Christchurch East byelection at the end of this month being one. The campaign of the incumbent party’s candidate, Poto Williams, could be successful without having to reach her predecessor’s 5000 vote majority. However, because both National and the Greens have selected relatively unknown candidates and have chosen not to fully resource their campaigns, success will depend largely on Williams achieving significantly higher than an election victory. Anything less than a good result here will reflect poorly on Cunliffe’s tenure as leader and will call into question his ability to turn out the party’s rank and file.

A more immediate obstacle is the Labour Party’s Annual Conference in Christchurch this weekend, which presents Cunliffe with his first major set-piece opportunity as leader to communicate directly with the party faithful and, indirectly, to all potential voters. Repeating his recent performance at the Conference of Trade Unions – where a rabble-rousing oration to union “comrades” was hopelessly compromised when he conveyed contrary messages to the media waiting outside – is unlikely to suffice. Cunliffe’s politics of appeasing Labour’s special interest groups by separately telling each what they want to hear, but without engaging directly with the major challenges of the day, will be hard to maintain with his credibility intact.

Party members, affiliates, media and the wider public will want to hear Cunliffe’s vision for New Zealand and what his leadership will mean for the country. So far, little of substance seems to have changed from the courses charted by Shearer and, before him, Goff.

This is mostly due to the lack of intellectual firepower needed to re-image the complex and dynamic relationship among the state, the economy, and society. Cunliffe has staffed key positions in the leader’s office mostly with advisers from Helen Clark’s era. This was a time when “third way” experiments sought more to ameliorate the harshest impacts of the neo-liberal economy on the most vulnerable and less to directly confront the structural inequalities generated by contemporary globalising capitalism.

It’s time to abandon the trite, vacuous, yet seductively simple rhetoric of export-led and GDP-measured growth as the sole guarantor of New Zealand’s prosperity. In its place must be a meaningful dialogue fostering a culture of self-sufficiency, underpinned by action-orientated policies, that builds a strong domestic market on the backs of high wage-earners.

A leap of this magnitude calls for less genuflection over Free Trade Agreements and the palliative policies of Working for Families, and more effort reconstructing New Zealand’s job, education, and lifestyle opportunities. Required here is a wholesale rearticulation of the role of government in generating collective goods in their widest possible sense. Also required is a serious commitment that future generations inherit an economy that works for New Zealanders within a healthy ecosystem, rather than a balanced budget for a national economy that has failed to deliver prosperity for most people. It’s a tall order for any leader in Opposition, but no one said it was easy.

A key indicator that Cunliffe is failing this litmus test will be a reliance on both holding his own against Prime Minister John Key in any one-to-one debates and mirroring Key’s appearance and rhetoric in order to persuade New Zealanders that he’s just as prudent with public finances as the Prime Minister. Unfortunately, becoming a “mini-Key” will neither drive nor inspire the urgently needed transformation of New Zealand public life.

Tough strategic choices for US

Dominion Post, 13 September 2013

By Damien Rogers

It seems the crisis brewing in the Middle East might be averted by the Assad regime’s murmurs of accepting the foreign supervision of its chemical weapons stockpiles. A United States strike on Syria no longer seems as imminent as it did earlier in the week.

The current situation in Syria, where it appears that chemical weapons have not only been used, but have been used to target civilians, is both deeply repugnant and pregnant with strategic consequences that the world has not confronted since 1945.

The United Nations was founded in 1945 on the promise of a more peaceful world based on the prohibition of the use of armed force in international affairs.

This prohibition was enshrined in the UN Charter with two exceptions: Article 51 allows for the use of armed force as a means of self-defence against attack; and Chapter VII allows for the use of armed force as a measure authorised by the UN Security Council.

As the UN was being established, German and Japanese war-time leaders were tried and executed for their use of armed force. Crimes against peace featured as the central charge at the Nuremberg and Tokyo International Military Tribunals, and war crimes and crimes against humanity were prosecuted where these related to the war’s conduct.

Important developments have occurred since 1945, most notably the International Criminal Court, established in 2002, has recently decided to include crimes of aggression in its criminal code.

The status of this legal prohibition on armed force has, however, been eroded by two significant trends.

The first trend is the use of armed force by the US Government during its war on terror. When the US invaded Afghanistan in 2001, US officials argued that the attack was legal under Article 51 of the UN Charter. In the immediate aftermath of 9/11, this reasoning was largely uncontested. But with the passage of time, legal scholars now suggest that this may not have been lawful under the Charter, given the Taliban did not themselves represent an

imminent threat of armed attack.

When the US invaded Iraq in 2003, US officials did not claim justification under Article 51, and could not claim to possess Security Council authority, except for a few dubious references to past resolutions focusing on ejecting Iraqi forces from Kuwait a decade earlier.

During a BBC interview, the then-UN Secretary-General Kofi Annan conceded the US attack on Iraq was unlawful, contravening the UN Charter.

The second trend eroding the legal prohibition of the use of armed force in international affairs is a concept known as the Responsibility to Protect (R2P). R2P was born out of an effort to reconcile inviolable state sovereignty with the desire to launch humanitarian interventions. It has three interrelated presumptions: the state bears primary responsibility for protecting its own population from mass atrocity; the international community is responsible for assisting states to meet these duties; and UN member-states are responsible for protecting at-risk populations when the host state fails to provide the necessary protection.

President Barack Obama’s justification for using armed force against Syria would probably have been couched in R2P’s rhetoric, even though his secretary of state insists Syria represents a direct threat to US vital interests, a dagger poised to strike at the heart of US national security.

Mr Obama’s foreign policy dilemma, however, is not focused on remedying the misery of the Syrian people, when too many US citizens are living below the poverty line, unemployed, and in prisons or mental health institutions. Nor is it focused on the extent to which the US should enforce the prohibition of a type of weapon outlawed on humanitarian grounds.

Nor for that matter is Mr Obama’s dilemma focused on confronting those who are responsible for perpetrating war crimes or crimes against humanity, as the US exempts its armed forces from the prosecution of such crimes by refusing to join the International Criminal Court while pursuing Status of Forces agreements effectively granting immunity to its troops committing crimes on foreign territory.

Rather, the choice confronting Mr Obama is how to determine the country’s future role in international affairs. In 1945, might was right, but only in the shadow of law’s majesty.

The international community never agreed that the US should act as the world’s policeman.

Although dealing with this urgent Syrian flashpoint, Mr Obama’s foreign policy decisions must be understood in the broader context of his recent pivot away from the Middle East towards the Pacific region. China will have featured as a significant consideration in any US decision to attack Syria. Unconnected as they appear, the current situation in Syria presents a moment of no less importance than the day on which the UN was established and the basis of post- war international affairs was settled.

Only full spying inquiry will regain public’s trust

New Zealand Herald, 10 July 2013

By Damien Rogers

The trouble with the proposed changes to the Government Communications Security Bureau Act is that the amendments outline what our spies will soon be able to do, but without explaining why they should be able do it.

GCSB has only two functions. On the one hand, it intercepts foreign communications and, on the other hand, it helps protect official information from cyber-borne threats, for example.

But GCSB seems to have suddenly and retrospectively adopted an entirely new function.

It’s a function that was only made public when it appeared on GCSB’s recently updated website and new spy boss Ian Fletcher talked about it during a rare TV appearance.

Fletcher claims GCSB is also to co-operate with and assist other entities with intercepting communications, suggesting this is something it’s always been doing.

However, this third function is a recent fiction. It would allow GCSB to offer its intrusive technologies and specialist skills to other government departments. Or even worse, GCSB would enable other departments to obtain those capabilities for their own purposes.

New Zealanders may well accept the need for their government to possess these capabilities, but only for use in the pursuit of national security and only against foreigners. To share these capabilities with agencies charged with routine law enforcement is to abuse that acceptance.

Part of the problem is that there is no agreed meaning of national security.

The NZSIS Act 1969 focuses on protecting the state from threats of espionage, sabotage and subversion, with terrorism a more recent addition. The GCSB Act 2003 encompasses New Zealand’s international and economic wellbeing, the Government’s international relations, obligations and commitments, and the protection of its official communications, information systems and computer systems.

Meanwhile, the Prime Minister’s Department places New Zealanders at the heart of national security, which is “the condition which permits the citizens of a state to go about their daily business confidently free from fear and able to make the most of opportunities to advance their way of life”.

Without an agreed meaning of national security, our spies will set their own collection priorities.

Previously, it was the job of the Foreign Intelligence Requirements Committee to provide a statement of New Zealand’s intelligence requirements. Without justification or explanation, this consensus-based approach has been dropped in favour of a hubs-and-spokes process. Government departments now each submit “Requests for Information” which GCSB then considers on a case-by-case basis.

When the concept of national security becomes this elastic, there is little to prevent the Prime Minister from directing our spies to target opposition parties or other groups as part of the Government’s dog-whistle politics.

Secrecy and spin do not mix well together.

John Key’s overall handling of questions concerning our spies – including his own knowledge of the Dotcom debacle, Ian Fletcher’s appointment as GCSB director, and the Kitteridge Report’s leak – highlights his mastery over the dark arts of spin. He’s expert at reassuring New Zealanders that he’s in control, that they should relax and that there’s nothing untoward to see here.

On questions concerning our spies, John Key has added a reliance on secrecy to his arsenal of spin tactics. While the Prime Minister previously commented publicly on intelligence matters, such as when he boasted that New Zealand gained greater access to Australian intelligence on boat people, he now refrains.

Prime ministers have generally observed a convention of remaining silent on matters relating to our spies. And for good reason: intelligence agencies need to protect their sources and information-gathering methods since exposure would enable targets to adopt new modus operandi to avoid detection, surveillance or action.

John Key favours secrecy over transparency less for our spies’ benefit and more for his political convenience. No less than his credibility and integrity are at stake here.

Given that most New Zealanders remain unaware of what spies do in their name with their highly intrusive information-gathering methods, a higher than usual standard of ministerial accountability is required. That the GCSB trampled on New Zealanders’ privacy means that John Key must, as the minister responsible, immediately right this wrong. Instead, the Prime Minister apologised to Kim Dotcom before proposing an amendment bill that will further loosen controls over our spies.

In circumstances like these, nothing short of a full, independent inquiry will restore public confidence in New Zealand’s intelligence community.