Monthly Archives: December 2017

A matter of insubordination and contempt.

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In her latest annual report, Inspector General of Intelligence and Security (IGIS) Cheryl Gwyn detailed that the NZSIS unlawfully collected Customs data on thousands of travellers from 1997-2016. This bulk collection was not done under warrant and was instead done on industrial scale: anyone who passed through New Zealand ports of entry during this time period can assume that their personal data was “harvested” by the New Zealand Security Intelligence Service (NZSIS) for its own purposes. Current NZSIS Director Rebecca Kitteridge defended the practice as a necessary part of fighting terrorism (which presumes that SIS concern with terrorism started in 1997 if her claim is correct) and maintains that legal advice at the time made the SIS believe that the practice of bulk collection was lawful. Think about that–warrantless indiscriminate collection of the personal information about thousands of people was deemed, if we are to believe the Director, lawful by the best in-house legal minds within the NZSIS. This happened even though the NZSIS Act was revised several times during the time in which the unlawful bulk collection occurred, so it is clear that when it came to warrantless access of traveler’s personal information, be they citizens, visitors, immigrants or officials, the senior staff in the agency thought that it was fair game–or at least thought that they could get away with it. One gets the impression that this is the same legal team that thought it was lawful for the GCSB to spy on Kim Dotcom after he gained permanent residency–a practice clearly prohibited in the GCSB Act in force at the time of the illegal wire-tapping. Perhaps it is time for these legal geniuses to step down.

IGIS Gwyn also noted that the NZSIS refused to cooperate, impeded and/or raised obstacles to her search for primary documents related to the unlawful monitoring of travellers as well as on other issues. Let’s be clear on this: New Zealand’s primary human intelligence agency deliberately impeded the work of the main oversight officer to which it is responsible. This, in spite of legal requirements to do so. The answer to this contempt for their statutory obligations may rest in the fact that under the current SIS Act the maximum penalty levied on the NZSIS for unlawful acts (of which obstruction is one) is NZ$5000–payable by the agency, not the individuals who authorised the unlawful acts or who refused to cooperate with the IG’s requests.

Although I find it very hard to believe, let us assume that SIS managers who authorised the mass tapping of Customs data were doing so in good faith while under the impression that the practice was lawful. If that is the case, they should be reprimanded and counselled on their statutory obligations. But those who obstructed or impeded the IGIS’s work need to be fired. In fact, if they are not, then Director Kitteridge needs to either resign or herself be dismissed. That task falls to Andrew Little, the Minister responsible for Intelligence and Security. Yet, although he has made some noises to the effect that he expects the agency to comply with IGIS requests, he has made no moves to punish those responsible for this blatant disregard for and defiance of the intelligence oversight process.

It is now abundantly clear that even though the IGIS is better funded and staffed and has better powers of proactive as well as post facto investigative authority (ostensibly including the powers of legal compulsion) than her predecessors, her office remains effectively marginal, if not subordinate to the bureaucratic logics internal to the agencies she oversees. These logics are founded on a deliberate opaqueness when it comes to transparency and statutory compliance and a deeply ingrained disregard for external advice, scrutiny or oversight. The old boys club will do as it sees fit to do regardless of the arrows slung by nosy outsiders. They are the gatekeepers and guardians of the secrets, and it is they who decide what is proper and what is not when it comes to legality and oversight adherence. Perhaps in this particular case the SIS managers do not like Ms. Gwyn or her somewhat unconventional career path on the way to becoming IGIS, but even if that is true their personal feelings have no place impeding the effective discharge of her duties.

The problem of ineffectual oversight of the NZ intelligence community (NZIC) highlighted by the IGIS’s frustrations with SIS obstructionism is rooted in a bureaucratic culture of impunity within the SIS and GCSB and in the lack of strong parliamentary oversight. The Select Committee on Intelligence and Security (SCIS) remains a highly partisan paper tiger devoid of real compulsion or enforcement authority. For their part ministers responsible for intelligence and security such as Andrew Little are all to often reluctant to confront spies about their excesses, when not prone to “bureaucratic capture” by them (a situation where an ostensible overseer becomes captivated by the logics and rationales of  subordinates with specialised expertise in a given policy field, leading to a lack of critical appraisal and independent review of actions taken in that field). Some of this may be due to the history of politicization that surrounds the SIS, which often appears to serve the government of the day rather than the common interest (in which case Mr. Little’s soft response has a politically opportunistic basis). But most of the oversight failures when it comes to the NZIC is grounded in the lack of effective and enforceable legal authority granted to the IGIS and the SCIS.

The only answer to this culture of insubordination and contempt within the NZIC, in this case specifically the SIS, is to hold individuals legally accountable for their actions. For example, rather than levy paltry fines on the SIS for its unlawful activities, the fines should be increased 20 fold and levied against the individuals who either knowingly ordered the illegal project(s) and/or who deliberately obstructed, concealed, tampered with or otherwise impeded the IGIS investigation into their activities. Likewise, the SCIS needs to become a dedicated organ of Parliament with its own professional staff and dedicated funding so that it can be come an independent research and investigatory arm answerable but not subordinate to the government of the day. The political appointments at the top could remain as stands (five members, the PM and two members nominated by him/her plus the Leader of the Opposition and his/her one nominee). Or it could be revised to include leaders of parties who reach a significant electoral threshold (say, ten percent of the popular vote). Either way, the SCIS should be provided powers of compulsion under oath, arrest and other means of legal enforcement of its oversight mandate so that the NZIC understands that it answers to the people of Aotearoa via elected officials as well as the IGIS, not the other way around.

The new Labour government has a golden opportunity to promote effective reform of the NZIC armed with the justification provided by Gwyn’s report on the SIS. Much like rot, there is a culture of contempt as well as impunity amongst at least some senior staffers in the NZIC that needs to be extirpated and replaced by those who understand that in a democracy it is not the spies who determine what is lawful and what is not (or for that matter, what is secret and what is not), but instead it is the specialized oversight agencies entrusted by the people and grounded in law (such as when it comes to definitions of national security threats) who do so. But for that to be the case, the oversight agencies and mechanisms need teeth, and it is exactly that which continues to be missing from the current oversight scheme.

Letters from America, final take. In a desert oasis, sensing change.

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In my final interview in the “Letters from America” series with Mitch Harris at RadioLive, I reflect on the Alabama senatorial election, the plight of Rex Tillerson, the attempts to undermine the Mueller investigation into Russian interference in the 2016 US election and a few more things. After five months, it is time to go home.

Goodbye to a good soul.

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Yasmine Ryan died this past week in Istanbul. She was only 34. She was an intrepid, dedicated, courageous and honest journalist, someone who unlike so many others vying for attention in the New Zealand media landscape, went out and did the type of serious investigative reporting that is now all but absent in her country of birth. Her death is not only a loss to her family and friends. It is a loss to the journalistic profession as well as New Zealand’s reputation for providing impartial perspectives on matters of political and social import world-wide.

Yasmine was a student of mine when we were at the University of Auckland. She went on to work at Scoop here in NZ, then Al-Jazeera and other outlets in the Middle East. Before her death she was working for TRT World, the Turkish international television news service. Her articles appeared in many important publications, including the Guardian, Independent, Sunday Star Times, Washington Post, LA Times, New York Times, Middle East Eye and Foreign Policy, and she was a contributor to outlets such as CNN, CBC, NZ National Radio and NZ TV One News. She co-authored a book about the Ahmed Zaoui case in New Zealand, helped produce three documentaries on contemporary Arabic politics and society and was a 2016 World Press Institute Fellow in the US who most recently had been elected to the board of the International Association of Women in Television and Radio. Fluent in French and English and well versed in Arabic and Spanish, she lived in France, Qatar, Algeria, Morocco and Tunisia before her move to Turkey a little over a year ago.  She traveled exhaustively and had a global network of friends and professional contacts who are now left to mourn her loss and the void that she left behind.

Yasmine was and is a special inspiration to women entering the journalistic profession. Her desire was not to work her way up to talking head status on the local news by reporting on cats in trees and celebrity sightings. She was not interested in cozying up to politicians, yukking it up on breakfast shows and posing on red carpets at awards shows.  Instead, her focus was on providing an outlet for forgotten voices and views seldom aired in mainstream Western outlets, and to offer in-depth analysis of events and trends that often received no more than cursory coverage outside of the places in which they occurred. Endowed with great personal courage, she left the comfort of her homeland to become an freelancer in a region not known for its encouragement of independent women in that profession. Her writing about what became known as the “Arab Spring” and its aftermath cemented her reputation as a first-rate reporter in North Africa and the Middle East, and her subsequent work confirmed that she was an extraordinary talent even at such a young age. That makes her departure all the more difficult to understand.

A GiveaLittle page has been set up in her memory in order to help her family cover the expenses of returning her home. It can be found here. Please consider donating.

May your eternal rest be a peaceful one my friend. You made a difference.

The beginning of the end of an error

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There were no winners in Kim Hill’s interview with Don Brash this morning. Not Kim, and not Don, not Guyon Espiner’s unflinching use of te reo on Morning Report, and certainly not the people of Aotearoa. Pākehā liberals wanted the bloodsport spectacle of their champion vanquishing the doddering spectre of our reactionary past, and Pākehā right-wingers craved the sweet outrage of Hill’s rudeness and dismissive scorn towards people like them. Māori people mostly were just dismayed at Brash getting a platform to debate the value of their existence, again. Everyone except for Māori got what they wanted, but nobody got anything more.

In a way, this morning was a last gasp of credence for the notion that debate is possible with people who are oblivious to evidence. Kim got in her zingers, ably skewering Brash’s incoherence and inconsistency, but there’s nothing new there. All the evidence was as incidental as it was anecdotal. We were treated to discourses on the population density of Māori in proximity to kindergartens, based on nothing at all. Concerns about the use of te reo on RNZ cannibalising the audience of Māori language radio and TV stations, without any reference to what those flaxroots practitioners of te reo want. And discourses about actual cannibalism and the stone-age pre-settlement society, where listeners were asked to accept the claim that the deliverance of the Māori from their horrid existence was worth any price, up to and including their cultural erasure. Nobody who has given even modest consideration to these topics could have learned anything or changed their views this morning.

The discussion mocked the very rationality it sought to demonstrate, because it was all about feelings: Brash’s feelings of alienation from his country and his time, and Hill’s need to defend her employer and her worldview. Centred around Pākehā feelings, with no regard given to what Māori felt, or for their agency, it was merely the latest in two hundred years of discussions about Māori, without Māori.

It was a question of evidence that brought the interview to an end, though. Brash finally went one small step too far, with the claim that the Māori are not the indigenous people of Aotearoa, but merely its second-most-recent invaders. This notion has been debunked for almost a hundred years, since Skinner’s work on the Moriori in the 1920s, and there was enough scholarship done on it through the 20th Century that reliance on these claims in the 21st is a straightforward flag that whatever is going on here, it’s not an evidence-based discussion. There was nowhere left for Kim Hill to go. Nobody can debunk arguments advanced with such disregard for reality.

So she shut it down. But better than shutting it down would have been not entertaining it in the first place — which is, by and large, what Māori seem to have wanted. The error of this interview was not merely giving Brash a platform, but its objectification of Māori, the idea that their right to existence on their own terms was a matter for debate. It was an exercise in discursive theatre, a ritual sacrifice performed to appease the savage gods of fair-minded middlebrow liberalism, in the hope that rational discourse will deliver us into salvation. The sacrificers — yes, Kim Hill was one of them — were Pākehā, and inevitably, the sacrificees were Māori.

I was in the crowd for this sacrifice. Loath as I am to continue focusing on Pākehā feelings, I have to say: my only remaining feeling is the horror of being responsible for all this. Not only for today’s sacrifice, but the small sliver of the past that is my contribution to what got us here. We Pākehā need to take care of our own embarrassments, it should not fall to Māori to do that. So we need to stop treating the right to Māori existence on their own terms as conditional on our goodwill, and start treating it as a fact of life. Which, in the letter and spirit of Te Tiriti o Waitangi, is what it is. It’s not hard to do. When people want to debate the legitimacy of te reo Māori in public, here’s a simple response: “Like the right of Māori people’s physical existence, the right of Māori people to cultural existence is not a matter for debate.” We have, in polite society at least, stopped talking about “maoris”. We have stopped mocking haka, waiata, and karakia, and even people like Brash have stopped mocking te reo, making honest attempts at decent pronunciation and using what kupu they know in ordinary speech. We can stop treating the existence of Māori as debatable, too, and it’s about time we did.

L