Category: Intelligence and Security

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Legal Utu in a Colonial Court?

A little over two years ago the so-called ” anti-terrorism” raids were carried out by the Police against activists in Ruatoki, Wellington and Auckland. The media frenzy that immediately followed focused on reports of “paramilitary” training camps, where, according to Helen Clark, “napalm” bombs were being made, weapons training was ongoing and plots were being hatched against a  variety of political figures, among them George W. Bush. Police affidavits were leaked to the press that detailed the “evidence” collected by covert means, and profiles of the more flamboyant of the defendants were splashed over the tabloids, radio and television. Almost immediately, multiple charges were laid under the Firearms Act 1983, but a few weeks after the raid the Solicitor General decided against laying charges under the Terrorism Suppression Act (TSA) because he deemed the TSA to be “unworkable.” This was a blow to the government’s case because much of the surveillance done in the build-up to the raids was authorised under provisions of the TSA. Even so, the government pressed ahead and in the months that followed arrested 3 more people and (a year after the raids) charged five of the original defendants with the additional count of  “participation in a criminal gang” (Tame Iti, Rangi Kemara, Tuhoe Lambert, Emily Bailey and Urs Signer). What all of the defendants have in common is that they are well-known and often outspoken critics of the NZ state, the US and capitalism in general. Beyond that they are a mixture of anarchist, environmental and indigenous sovereignty advocates (and at least one unhinged individual) united by their common disdain of the status quo. For background on the events and immediate response to the raids, see the trilogy I wrote for Scoop in the weeks that followed: here, here, and here.

With no terrorism angle to report on, the media lost interest and the story died. But what has become of the Urewera 18? (2 of the arrested have been discharged without conviction or had charges dismissed). Here I shall provide a brief update and make note of some ironies.

The Urewera 18 are represented by 14 barristers and numerous solicitors, with Rodney Harrison QC (of Zaoui case fame) recognised as lead counsel and Annette Sykes given special status by the Court with respect to the tikanga of Tuhoe and implied license. Proceedings have dragged on for more than two years, and like the Zaoui case, it is likely that they will continue for at least another year (reports are that the first available trial date is in 2011). Given the numbers of defendants and legal counsel involved, this means that the taxpayer bill for the prosecution of the case will dwarf the NZ$2 million spent in the futile attempt to refuse Ahmed Zauoi political refuge. The cost for the defendants, emotional as well as material, is similarly high.

As for the substance of the case against the Urewera 18, let us begin with the charges. Other than the criminal gang accusation and a common charge of possession of restricted weapons (presumably related to incendiary devices), all else fall under the Firearms Act of 1983. After some legal wrangling, the charges have been bundled together as ‘representative’ charges so as to make the number of charges more manageable. In other words, in early depositions each defendant was charged with possession of each gun at each camp, resulting in hundreds of charges. That has now been amended to a single charge for possession at each camp (.i.e. each individual visit to the Ruatoki bush camp resulted in one firearms charge). As an example, when arrested one defendant originally faced 3 charges, then at depositions the number of charges  rose to 13, but now has returned to the original 3 charges. Even so, the number of individual charges is in the dozens.

With regard to bail. Remember that in their original statements the Police were opposed to bail for the accused, citing the imminent threat they posed to the community. That has all changed. The most onerous bail conditions have been lifted and travel restrictions relaxed although not completely removed. It is my understanding that Tame Iti will again travel to Europe this summer to perform more Shakespeare (Iti was allowed to travel abroad earlier this year in order to participate in theatrical productions in Europe) and Urs Singer has been allowed to visit his ailing parents in Europe as well (the irony of Tame Iti doing Shakespeare in European theaters–as a sort of cultural ambassador, if you will–while on trial in NZ is not lost on me, but I shall avoid mentioning that in my summation below simply because there are other ironies worth noting. But it does point to how serious a threat to the security of Aotearoa he is considered to be by the government).

Then there is the issue of the means by which the case was constructed, to wit, the human and electronic surveillance and wiretaps used to monitor the accused. The Solicitor General’s decision to not invoke the TSA proved to be problematic for the government’s case, since much of the means by which the activists were tracked and evidence gathered were only allowable under the TSA. With no TSA charges on the menu, the admissibility of the evidence collected under its provisions was open to legal challenge. That soon came.

In August, applications  were made by the defense that all search warrants, in-person covert surveillance (conducted by the Police Special Tactics Group) and stationary covert cameras were illegal. By and large, the defendants won that part of the argument. In September the presiding judge declared at least 6 of 9 warrants illegal, specifically declaring illegal all in-person covert surveillance and stationary cameras. The latter was deemed illegal because the police trespassed onto private land in order to install the cameras (it is not currently possible to get a warrant for surveillance cameras on private property in NZ). The Police Special Intelligence Group tried to justify its actions by claiming in retrospect that they sought judicial oversight in doing so (presumably with reference to the TSA). In reality, they knew at the time that they couldn’t get warrants for such activity without the TSA, but did so anyway. Now that evidence is inadmissible. Even so, the government won on excluding text messages, and it remains to be seen whether the defense will challenge that ruling in the Court of Appeal. (A good summary of the decision is available here).

 The second stage of this application was heard in September and a decision is still pending. Under Sec 30 of the Evidence Act, in order for evidence to be ruled inadmissable, it must be found to be both illegal and unreasonable. This differs greatly from the US where it follows quite logically that activity which is illegal is by nature unreasonable, but the police in NZ are given a much greater benefit of the doubt on this matter. This is an important distinction, because that means that even if the evidence is deemed to have been illegally obtained, it still can be ruled admissible in a NZ Court if it is deemed “reasonable.” QC Harrison has consequently made submissions about why inclusion of this evidence was unreasonable. The main thrust of his argument is that the police’s trespass was sustained, deliberate and knowing. It happened over a period of nearly a year on land that was clearly private property. The judgement is still pending on this part of the defense motion. Whoever loses is very likely to appeal because the case could well hinge on the disputed evidence.

In the last weeks  the defense has making an application for a stay of the proceedings based on pre-trial publicity. In essence, that the case has been so prejudiced that the Urewera 18 cannot get a fair trial. Interestingly, the most recent  precedent for such an application was made by the same two lawyers on behalf of the two suspected Mossad agents who
were arrested for attempting to procure false passports in 2005.

The defendants are next due to appear in court in Auckland in mid-December. For those interested, the hearings are open to the public but those attending should expect increased security measures and the possibility of Crown objections to their presence if it is considered injurious to their case (the Crown has already objected to filming of the hearings for documentary purposes).

So what are the ironies of the case so far? Well, for starters there is the parallel with the Zaoui case. In both instances the government began by throwing out unfounded accusations of “terrorism,” only to see their case for it crumble under legal scrutiny.  For all the talk of terrorism, it was the Police Special Tactics Group, not the counter-terrorism component of the NZSAS or the specifically-trained Counter Terrorism Tactical Assault Group (CTTAG) who conducted the surveillance and led the raids (which indicates that the government did not take the threat of terrorism seriously enough to justify use of the forces designated for that role). The money spent on the prosecution and legal defense of both cases is also on a par, if not more in the latter instance.

Another irony is that the arms dealer who (allegedly) supplied information to some of the defendants about how to construct silencers, on how to modify a starter’s pistol into a real weapon, and who allegedly provided instruction on how to convert flare grenade launchers into the real thing, has not been charged with a single offense (reportedly due to his being a Police informant).

For its part, rather than strengthen criminal law to deal with politically-motivated criminal conspiracies in light of the “unworkability” of the TSA (thereby avoiding the authoritarian penchant to create a different category of “political” crimes labeled as “terroristic”), National has re-introduced a Search and Surveillance Bill first proposed by Labour last year in which powers of search and surveillance would be expanded dramatically (to include warrantless searches, eavesdropping and tapping of computers and phones) by a broader range of government agencies–including local administrative authorities! The irony is that, rather than use the Urewera case as an example of how NOT to conduct a criminal investigation against political dissidents, the government has instead moved to relax legal restrictions governing covert monitoring of suspects, including on private property (i.e., the exact practices that were deemed illegal in September by the presiding judge in this case).

But the ultimate irony may be this. According to defendant Omar Hamed, “October 15 was a reminder that the state is not our friend. It is a violent, colonial, racist institution that serves the interests of the corporations and the ruling class. Well organised, anti-statist, defiant communities pose a threat to the state and colonial capitalism…” (taken from a passage included in the exhibition catalogue for the Arts auction “Explosive Expression” held to raise funds for the Urewera 18 on October 16, 2009 in Wellington). And yet it is this purported colonial, racist and corporate justice system that has allowed the Urewera 18 to formulate and fund a defense that has successfully challenged the case against them so far. It would seem that, at least in this case, utu  (as both justice and revenge) does in fact come in colonial garb.

My view is that by the end of the process a majority of the defendants will be acquitted and only a handful will be convicted of minor firearms violations. It will be left for the NZ public to decide whether the entire affair was worth the effort, and whether indeed, if ever, there were the makings of a terrorist plot percolating in the Ureweras.

PS: I have some inquiries out at the moment that might allow me to update the status of the case. If so, I shall do so post haste and append a notification at the end of this post.

PPS: This post has been updated to reflect my remembering of another irony regarding the government response to its failures in this case (see irony #3 above) as well some fine points regarding the charges.

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The 2009 Defense Review.

Public consultation meetings about the 2009 Defense Review, which will result in a White Paper being published in early 2010, have now concluded. Yet, although the formal submission deadline for individuals and groups has passed, the review committee would be ill-advised to ignore short-term late submissions when they have another 4-5 months to go before the final draft of the White Paper is published. Late does not always mean never. You can access the terms of reference and information about submissions here. 

It is important that those of the Left of the political spectrum and progressives in general get involved in defence and security issues on an on-going basis, and for them to avoid knee-jerk abhorrence or avoidance of national security issues except when it is topical or effects them directly (such as in the Zaoui case or that of the Urewera 17). Ignoring defense and security issues leaves the field of  play open to security conservatives and the Right in general, including pro-nuclear and abjectly pro-US  elements within the political spectrum. Allowing their views and those of the defense and security bureaucracy to go unchallenged is to concede to them the terms of debate and skews the tone of the White Paper in a conservative-Right direction. That is not healthy for a mature democracy.

In order to do so, however, the Left needs to have something smart to say and not simply repeat the usual pacifist/anti-imperialist mantras. Having the Green Party lead the Left on defense is a non-starter (however well-intentioned the Greens may be) because of their adherence to the pacifist/anti-imperialist line, and the Labour Party is equally unrepresentative of the range of Left thought on defense issues. That leaves a void where the informed Left should be: New Zealand may be small and physically isolated, but it has real security needs and obligations to the international community that require its involvement in foreign military adventures, be they multilateral or bilateral in nature. Simple distaste for the military and police does not cut it when addressing the fundamentals of national security in a small state such as this. What is needed is a Left-progressive critique and plan for near-term security requirements, something that can involve a number of alternative prescriptions based upon notions on humanitarian assistance, non-intervention, multilateralism, peace-keeping and nation-building, non-traditional security concerns (such as environmental degradation and pandemics) and/or non-proliferation (nuclear and conventional). The Left can  (indeed, must) offer recommendations about how and when NZDF personnel are deployed abroad, under what chain of command, and for what purposes (something that at the moment is left to the government of the day). All of this requires some degree of understanding of national security and defense requirements, including strategic and technical issues.

For example, I would advise in favour of a restored close air support (CAS) /ground-attack RNZAF capability that would be used to cover NZDF troops involved in UN- or regional organisation-sanctioned peace-keeping and nation-building duties (to include counter-insurgency operations in failed states). That means that Kiwi pilots would protect Kiwi ground troops in the event that they are at imminent peril, thereby diminishing NZDF reliance on foreign air cover in circumstances when time is of the essence (since foreign air wing commanders, faced with a choice of protecting their own or allied troops in a fluid combat environment with amorphous fronts, will inevitably support their own at the expense of their allies). Such scenarios occur more frequently than the public may realise, and in fact has occurred in East Timor in the last decade (which resulted in the death of an NZDF trooper at the hands of Indonesian forces resisting Timorese independence). In any event, such a CAS capability could involve rotary or fixed wing platforms depending on budgetary constraints and operational requirements 

I would love to get involved in this process but I live abroad and have not been asked. Instead, security conservatives in my former department and other NZ universities have a lock on academic submissions to the Review regardless of their actual “expertise” on such matters. Thus as it stands the Review process is stacked to the Right, and the White Paper will reflect that. For no other reason, this is why the Left needs to get involved in the Review process, because it will be too late once the White Paper is published (and it should be noted that the Review Committee is comprised of former military and/or defense officials).

I have very strong views on how the NZDF should look and how it should be deployed abroad given its international role and reputation. This includes views about the defense budget (both as a percentage of GDP as well as in terms of relative outlays to weapons acquisitions and personnel), force configuration and strategic orientation. But since I cannot weigh in on the subject, I hope that others will. I therefore urge you and your like-minded acquaintences to make your informed views known ASAP, as the deadline for submissions has passed but the Review Committees deliberations have not. Should the committee refuse your submission, enlist an MP or publicly agitate for its inclusion and consideration. Being late does not mean you should not be heard.

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On resuming intelligence sharing with the US.

I must confess that this one has me stumped. In her joint press conference with Murray McCully today, Hillary Clinton said that the US would resume intelligence-sharing with NZ as a sign of the strengthened security ties between the two countries.  It might have been a slip of the tongue, but McCully seemed unfazed and the comment was made as part of her prepared remarks, so it appears that the mention was deliberate. But what does it really mean? The US and NZ already share signal intelligence streams via the Echelon network, which has two collection stations on NZ soil. The NZSAS has a least one officer seconded to CIA headquarters in Langley, Virginia (as well as NZSAS liaison officers designated to  MI-6 in the UK, ASIO in Canberra, the Canadian Security Intelligence Service and the French DGSE).  The CIA more than likely has a station officer in Wellington (most likely a political (affairs) officer). These connections presumably are already involved in intelligence sharing. So what gives?

Since I am not privy to the decision-making involved, let me just speculate on what this announcement may mean. A few weeks back word slipped out that NZ had intelligence operatives in Afghanistan. Then the NZSAS were deployed there (to Kabul, as it turns out, in a counter-terrorism and CT training role rather than their previous long range patrol and reconnaissance role, which is an interesting story in itself). Putting these two lines together, I suspect that what Mrs. Clinton was alluding to was a resumption of tactical intelligence sharing between US and NZ forces in theater (rather than first report back to their respective superiors at home and allow the bosses to determine what gets shared). This would obviously be of priority in Afghanistan, but frees up US and NZ intelligence collectors to share information throughout areas of mutual interest such as the Western Pacific Rim. On the latter, subjects of mutual interest could include Chinese intelligence and military activities in the region (as alluded to in the Scoop series I linked to last month), money laundering and arms trafficking, organised crime activities (which would also be shared with INTERPOL), as well as leadership analysis and political and  economic trend forecasts.

More broadly, what this means is that NZ is returning to the US fold on security matters. If Australia is the US sheriffs deputy in the Southern Hemisphere, NZ under National is positioning to become the deputy’s adjunct. What is different is not just the extent of the bilateral cooperation involved, but the fact that the Ozzies make no bones about their belief that their middle power aspirations are tied to the US mantle, whereas NZ has carefully cultivated an image of being a neutral and honest broker in international affairs. With this revelation, that image is bound to be altered, and it remains to be seen if the benefits of closer security relations with the US (which I do not necessarily object to based on the principle of necessity) may translate into to a loss of mana, reputation and prestige in the eyes of the larger international community. Perhaps the diplomatic community is jaded enough to understand that pragmatism requires that NZ play all sides of the fence, that “it has to do what it has to do,”and that its rhetorical lip service is a mere cover to its real, pro-US orientation (I touched on this in the previous post titled “John Key Rides the Fence”). However, I wonder how the Chinese, Malaysians, Iranians and Arab trading partners will feel about this revelation, to say nothing of European partners who have trusted NZ to speak to truth to power on issues as varied as non-proliferation and environmental sustainability. Although Mrs. Clinton was at pains to laud NZ’s role on the latter two subjects, it remains to be seen what (negative or positive) spill-over effects may occur as a result of this closer bilateral security relationship, or, as National will undoubtably argue, whether the issue of intelligence sharing is safely “compartmentalized” and thereby insulated from the broader foreign policy direction of the National government. In three years we should know, but by then the consequences, good or bad, will be inescapable.

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On the possible merger of NZ spy agencies.

I originally posted this as a comment on Kiwiblog, but it is worth elaboration. I am not so much interested as why  sensitive documents somehow managed to be dropped on a public street into the path of a journalist, which, if interesting, is inconsequential in the larger scheme of things. The real issue is the proposed, or at least potential merger of NZ intelligence agencies. From a democratic standpoint, I believe that centralising all intelligence-gathering and analysis in one agency is a recipe for disaster, or at least political manipulation. A core tenet of democracy is the decentralisation of power, evident in a system of checks and balances, particularly in its security component. I fear that NZ has lost sight of this tenet. In that light, here is my brief (excerpted)  thought on the matter of NZ intelligence agency mergers:

(With regard to the potential merger of the GCSB and NZSIS) I shall limit myself to pointing out two problems, one external and one internal to the intelligence agencies involved. Externally, the GCSB manages the Echelon stations in NZ and passes along foreign derived signals intelligence (SIGINT) to the SIS and Police where necessary, as well as monitor NZ signals traffic where required (this is a minor part of its operation). It is therefore more of a foreign-oriented intelligence collection agency rather than a NZ-oriented one. That spells potential conflicts of interest with larger intelligence liaison partners in the event that it is subsumed under or within the SIS. NZ intelligence requirements do not always run in concert with those of its larger partners, although it gains a measure of insurance and protection for providing its soil for the eavesdropping stations (another reason why NZ will never be invaded without a fight, since the stations are extremely valuable to the Echelon partners).

Internally, the SIS already has to handle external and domestic espionage and intelligence analysis along with counter-intelligence duties. This with a total complement of less than 200 people, a quarter of whom are clerical staff. That means that all of the human intelligence that gives NZ primary source or primary-derived information, plus the analysis of intelligence derived from the GSCB, NZDF, NZ Police, contract assets and liaison partners, has to be done by 150+/- people. It is a tall task already, and adding the SIGINT duties to it can complicate the management of intelligence flows and result in turf battles between the SIGINT and HUMINT branches and their respective analytic units (to say nothing of the fact that foreign nationals are heavily involved in the operation of the Echelon stations and therefore answer first to their foreign masters. Allowing them into the SIS could therefore compromise NZ national security even if they are erstwhile allies).

It is also generally believed that in a democracy it is best to separate domestic from foreign intelligence gathering, and SIGINT from HUMINT so as to avoid the monopolisation of intelligence flows and advice in any one agency, which could be politicised to deliver “intelligence” that is more politically-motivated spin than actual fact (as occurred with the Zaoui case under the previous SIS Director). Unified intelligence agencies can operate in democratic systems (such as in Canada), but that requires strong parliamentary oversight authority, something that does not exist in NZ.

The EAB is an intelligence client that undertakes foreign-oriented assessments rather than a collection agency, so a move to merge simplifies the intel streams coming its way. The same goes for the Police and the NZDF (which have their own collection branches), Treasury, other Ministries as well as the Combined Threat Assessment Group (CTAG). But one of the good points of having different sources of intelligence collection and analysis is that it avoids “group think” (and mistakes) by getting independent vetting of sources, methods and interpretation. Under the merger plan intelligence will be reduced but not completely centralised, although the question remains as to whether a merged agency can competently handle all of the responsibilities that entails.

All of which is to say that the merger idea may be economical but it may not be efficient.

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The SIS thinks that Jane Kelsey is a threat to national security.

 I read with interest that the SIS keeps a file on Jane Kelsey, apparently dating back almost 20 years. I am not a close friend of Jane but  know both her academic and activist work as well as some of her arguments with the SIS and Privacy Commission about her file (which will not be released to her, even in redacted form). Jane apparently came to the attention of the SIS because she was part of a Filipino solidarity group in the early 1990s and later because of her anti-APEC and anti-neoliberal activities (both of which have subsequently been vindicated in fact). I admire Jane because she is a person of conviction, and because she is staunch in the face of official intimidation. Deborah Manning is another such person. Were that there be many others of such character in New Zealand, but alas, especially amongst the male population, there are comparatively few in my estimation.

Putting aside the gender implications of Kiwi bullying and cowardice, the bottom line is as follows: the SIS is either lying or stonewalling on what Jane Kelsey’s file contains, and the so-called Privacy Commissioner is either an SIS toady or hopelessly ignorant of the issues at stake. Either way, this is another blow against Kiwi democracy. Truth be told,  the demolition of Kiwi civil liberties–particularly the right to privacy–was accentuated rather than diminished under  the Fifth Labour government, something the Key regime has happily continued.

If Jane Kelsey is a national security threat than I am Osama bin Laden, Anita is Ayman al-Zawahiri and Lew is, well…Lew.  We are all accomplices in critiquing the way NZ governments’ operate. If Jane has a file, then anyone who has voiced a public opinion against the government  could have a file. That is because for the last decade or so, dissent has been incrementally criminalised, and the definition of criminality is left to the government of the moment and its sycophants in the security bureaucracy. Hence anything oppositional can be grounds for snooping. That is how the SIS justifies its existence. Just ask Tame Iti or Valerie Morse.

Remember this small fact: being a pain in the rear of the security apparatus because of one’s vocal criticism of government policy, or being a critic of the SIS or the Police itself, does not constitute a threat to national security per se. If it does, that is all the more reason for the SIS or Police to release the evidence justifying claims that is the case. In Jane Kelsey’s case, her requests for release of her file have been met with bureaucratic obfuscation rather than transparency even though the SIS has all but admitted that nothing she has done constitutes a threat to national security. So, one might ask, why the obstruction on “national security grounds?” Although I have an idea why the SIS and Privacy Commissioner are hiding behind the skirt of “national security,” there are broader issues for civil liberties at stake that are worth considering here.

With that in mind I urge any reader who has expressed a dissonant, much  less dissident voice with regards to the way the NZ government and its security agencies operate, to make an official request for  your files. That is because it turns out the the extent of domestic espionage is far beyond what most Kiwis expect to be reasonable, and the SIS is utterly unaccountable for doing so. By this I mean that any dissident, right or left wing, is a potential target of covert monitoring and thus has a probable reason to make an OIA claim. I do not mean just the fringes of the Left-Right continuum, but anything in between: if you piss off the government of the moment or attack the SIS /Police on ethical or practical grounds, you can well be subject to “investigation” on the grounds that you constitute a threat to national security. It is all justified by the empowering legislation that was passed in  the last 15 years, including clauses that justify spying on New Zealand citizens who constitute “threats to  economic security” (which means that anyone opposed to governmental macroeconomic policy might as well be Osama in the opinion of the SIS). So, because she opposes neoliberalism and the APEC “free trade” doctrine, Jane Kelsey is the economic equivalent of a jihadi as far as the SIS is concerned.

That having been said, ask and you shall not receive. If Jane’s campaign is any indication, these  taxpayer-funded security bludgers feel no need to answer the silly requests of the people who pay their salaries. But should you insist, the SIS can be contacted www.nzsis.govt.nz.

Remember that you have to make an OIA (Official Information Act) request, and you should be as precise as possible when specifying the activities that you consider would have “warranted” SIS opening a file on you (of course, even asking that question could “warrant” the SIS opening a file on you).

Please ask Director Warren Tucker for a personal response in your OIA, and tell him that “Pablo” sent you. He knows who I am.

PS: The post has been updated twice to correct typos and clarify some sentences.

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A Two Level Game In Afghanistan

News of the NZSAS’s imminent departure to Afghanistan, on its fourth deployment since 2001 but first since 2005, has occasioned a fair bit of commentary in the media. A Herald poll shows public opinion evenly divided on the issue. A broad swathe of Right and Left wing isolationists and pacifists oppose the move. Many believe it is just a sop thrown to US imperialism in order to curry favour. Others think it is about gas pipelines and Halliburton profits. The rationale for sending troops to Afghanistan has become muddled by American pronouncements that NZ should do so as a type of insurance in the event it is attacked, or as a down payment on an eventual bilateral FTA. John Key has not helped matters by stating that he does not want the SAS to undertake so-called “mentoring” roles for the Afghan Army because it is too dangerous (as if what they otherwise would be doing is not), and that he would like to withdraw the NZDF Provincial Reconstruction Team (PRT) in Bamiyan province because it costs too much to maintain (this in spite of its widely recognised success as a “hearts and minds” operation that is the essence of international peace-keeping and nation-building missions such as the ISAF mission in Afghanistan).  He further clouds the issue by invoking the Jakarta and Mumbai bombings as reasons for the NZSAS deployment, even if the bombings had zero connection to events on the ground in Afghanistan (although I admit the possibility that some of those involved in the bombings may have attended Taleban protected al-Qaeda training camps in Afghanistan or the Pakistani tribal regions in the last decade or so). In making these utterances Mr. Key displays an apparent lack of understanding of what is really at stake in this dangerous game.

I have already posted here on the subject (see the Archive, especially here and here), and in recent days have tried to explicate further in the dedicated comments threads in places like Tumeke and Kiwiblog. Yet the rationale for why I believe that sending the NZSAS to and keeping the PRT in Afghanistan is justified appears to be lost in the general discussion. So let me phrase things in a different way, for purposes of clarification: what is going on in Afghanistan is a two-level game.

One one level there is the original ISAF mission. That mission was and is to deny al-Qaeda cadres and militant Taleban safe havens inside Afghanistan so that they do not pose a threat to the local population and cannot use Afghan territory to stage cross-border assaults on Pakistan and other neighbouring Central Asian republics. The concern with the militant Taleban, as opposed to their more “moderate” counterparts (read: nationalist or tribal), is that they have greater ambitions than re-gaining political control of Afghanistan. Instead, the militant Taleban and their al-Qaeda allies seeks to establish a Caliphate throughout Central Asia and beyond. They particularly want to gain control of nuclear-armed Pakistan, but even that is just a short-to-medium term goal. They have, in other words, imperialist ambitions of their own. These ambitions are not only opposed by the US, UN, and NATO. They are opposed by China, Russia, India and all Asian states that see the ripple effect extending towards them. In fact, they are opposed by virtually all of the international community with the exception of failed states such as Somailia and the Sudan (which have now become the new locus of al-Qaeda activity).

Worried about the repercussive effects that a Taleban victory in Afghanistan would have throughout Central Asia, the NATO-led, UN sanctioned ISAF mission has been successful at eliminating al-Qaeda as a military threat in the country, and is essentially now engaged in a grand scale pincer movement along with the Pakistani military that is designed to push Taleban on both sides of the common border into geographically defined kill zones from which they cannot escape. In parallel, ISAF and UN-led civilian assistance groups are attempting to engage moderate Taleban elements in order to establish a durable cease-fire that will permit the second level of the game to be played.

The second level game is oriented towards establishing a moderate Islamic regime with centralised authority over Afghanistan, one that will balance secular rights with religious freedoms and traditional privileges in accordance with the Universal Declaration on Human Rights. This a minimalist construction of the game; that is, it pretends to go no further than what is stated. It does not imply that the objective is to establish a secular democracy in the country. It does not pretend that centralised authority will mean central government monopoly of organised violence in the tribal hinterlands. It does not propose the blanket elimination of traditional forms of authority or social mores. Instead, it merely seeks to create the structural and political conditions for the establishment of peace, a peace that in turn will deny Islamic extremists the fertile territory for recruitment and sanctuary. It involves promoting electoral forms of political contestation, but more importantly, it pursues infrastructural development, to include educational, health and nutritional programs as well as the civil-military engineering projects required for their implementation and expansion.

To be sure, endemic corruption, the Karzai regime’s limited legitimacy outside of Kabul, the persistence of the opium trade, the ongoing presence of warlord-dominated fiefdoms, and the abject primitivism of many parts of the country make the second game seemingly impossible to achieve, and greatly complicate the achievement of the first game. Yet just because other foreign incursions have been defeated does not necessarily mean that this one is inevitably doomed to fail. For one thing, this is an international effort, not the expansionist project of a single imperial state. For another, because of its developmental and humanitarian focus, it does have a fair bit of internal support as well as that of neighbouring countries, factors that did not obtain in previous instances of occupation.

These two games are now being played out simultaneously, in overlapped fashion. The first is needed for the second to be successful (i.e., the combat work of such as the NZSAS is needed for PRTs to be successful). Yet the second is needed for the first to advance sufficiently so that an “exit strategy” is feasible. That will take a long time, at a minimum at least another five years and probably more. Any upgrade or renewal of the NZDF commitment to Afghanistan must take account of this fact.

Thus, when considering the “why” of NZ’s deployment of troops to Afghanistan, the debate should focus on the two levels of the ISAF “game,” and whether NZ has a stake in either. I have already stated that I believe that there are moral and practical reasons why NZ should, as an international citizen, contribute to the ISAF mission on both levels. Others disagree on either or both counts.  The main point, however, is that Mr. Key and his advisors in the MoD and MFAT develop a clear and comprehensible rationale for why NZ should put its soldiers at risk in Afghanistan, which in turn is as much a function of informed public interest as it is of diplomatic necessity.

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Drifting toward a surveillance culture

As a propaganda geek, I’m concerned (some might say paranoid) about surveillance and its growing use as a means of social control, or as a tool to gather information used to justify and enact other social control mechanisms. Surveillance is the flipside of propaganda, and propaganda systems of social control can’t function properly without the feedback which surveillance provides; effectively, without surveillance, the controller is blind. This encompasses both the hard kind (cameras, enforced ID checking, enhanced search and detention rights) and the soft kind (data mining and data matching, consumer profiling, and so on). For this reason I don’t have a Facebook account, or a Fly Buys card, and I don’t use my gmail account for anything much other than website registrations as a spamtrap; and everything into or out of my webserver in Texas is encrypted. Although since they decided that registration wasn’t mandatory I do have a Snapper card (I wrote about potential surveillance problems with Snapper a bit over a year ago). I feed it with cash. Note: I’m not paranoid about hiding my identity; I’m paranoid about what other information might be matched to it and how an interested party might use that information to target me for use as part of their agenda.

Anyway. Surveillance is becoming increasingly ubiquitous, as people trade off privacy against security, but the problem is that the trade-off is implicitly framed as a matter of who you choose to trust – the ‘crims’ (those with something to hide and therefore something to fear), or those who maintain that security (and who necessarily have greater powers to put that information to use).

I’m working on a project at present which involves reviewing a great deal of media coverage about antisocial behaviour in Western Australia, and surveillance appears widely regarded as the key to cracking the (apparently endemic) problems they have over there. These include:

  • Cameras in streets, cameras in parking lots, cameras on nightclub doors; cameras above dance floors, cameras everywhere, in many cases mandated by liquor licensing regulators
  • Rights for police and other authorities to access footage in real time
  • Fingerprint scanners on club doors
  • The requirement to ‘sign in’ to clubs by giving over your ID as a condition of entry
  • Systems by which one club can (must? not sure about this) immediately share its patron database with other clubs in the area, so if a patron is ejected from one club they are barred from them all
  • Powers for police and licensing regulators to ban ‘problem patrons’ from every single licensed premise in the state for a period of up to five years, without them having been found guilty of any offence

ID cards have worked well in Europe beforeFrankly, it’d be enough to put me off going to the pub. The culture there has become so accepting of surveillance that this is generally unquestioned by those in authority, and the electorate demands nothing more of its representatives. Perhaps even worse is the UK, whose national ID card scheme was the subject of an excellent but unsuccessful counter-propaganda campaign.

While we have some surveillance cameras (most notably in Queen Street and central Christchurch) and a reliance on RFIDs (in passports, for instance), and we have a police culture of aggressive surveillance and with strong authoritarian tendencies, things aren’t so bad in New Zealand. So it is with some dismay that I read yesterday’s op-ed by Chapman Tripp solicitors Simon Peart and Richard May on the NZ Herald website which warns of the alarming powers of surveillance and social control which could be exercised by regulatory bodies including the Commerce Commission, the Reserve Bank (!) and MAF under the newly (and quietly)-introduced Search and Surveillance Bill. They really are quite alarming – the right to covertly surveil ordinary citizens in their own homes, the extention of enforcement powers normally the preserve of the police to other regulatory bodies, the right to infiltrate and surveil computer networks and to secure premises against their legitimate owners, and, frighteningly, the nullification of legal privilege in some communications. Read the article. Read the bill if you can spare the time (it’s 196 exhausting and obfuscatory pages).

As I said, this comes down to trust. The problem is that, even though I generally trust governments, I don’t trust their regulatory and social control agencies which are not subject to electoral veto. That’s the problem with this bill – it seeks to remove the matters of surveillance and investigation from the political sphere where it belongs and create a new surveillance culture norm in NZ.

Edit: I have somehow missed the Gordon Campbell’s excellent piece on the same topic. Read that, too.

L

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On the Torture Memos

At long last the paper trail authorizing the use of coercive interrogation techniques, to include tortures such as water boarding ( a simulated drowning technique) has been made public. The bottom line is that it reveals that high level Bush administration officials, to include John Ashcroft (Attorney General at the time), John Yoo (Deputy Attorney General), Alberto Gonzalez (White House counsel, later Attorney General) Dick Cheney (Darth Vadar) and Condoleeza Rice (Nurse Ratched), should be indicted for criminal offenses under both US and international law. What is worse, their authorization of criminal acts–no matter how Mr. Yoo’s convoluted legal arguments may wish to paint them as something less than torture and permissible under doctrines of Executive authority anyway–flew in the face of expert opinion that torture is an unreliable method for extracting reliable intelligence and could, in fact, be counter-productive both legally and practically. There are several layers to the story, so I shall briefly run through them.

The techniques used were derived from the SERE school practices. SERE is a program run by the US military to simulate the conditions of a prisoner of war camp in which US aviators and special forces operators might find themselves. It is modeled on 1950s Chinese prison camps. Under controlled conditions, SERE operators subject US personnel to what they admit are “torture techniques” (such as water boarding) in order to teach the US personnel how to resist coercive interrogations. Thus, the Bush White House and Justice department took techniques that were capable of being overcome by determined prisoner resistance and authorized their use, without fully exploring their history or the controlled circumstances of their SERE application, on suspected jihadis whose idea of glory comes in the form of martyrdom. Not to put too fine a point on it, but that is just arse-backwards.

In fact, once SERE camp administrators heard of the (mis) application in 2002 they wrote memos to the Defence Department protesting against the use of SERE techniques. They explicitly warned about the unreliability of the confessions extracted and the risk of accidental death. These memos were ignored by the Rumsfeld cronies who ran the Pentagon at the time and were apparently never passed onto the White House and Justice Department (or if they were, they were ignored). What is important to note is that the people who pushed for the use of these techniques were Republican ideologues who had no actual experience with interrogations. Most interrogators are US military counter-intelligence personnel, who are fully aware of the legal and practical pitfalls of using torture to extract confessions. These include the unreliability of the information extracted, the uselessness of such information for strategic intelligence purposes, the problems of garnering actionable information from atomized cells in a decentralized guerrilla network like al-Qaeda–in other words, the complete disutility of using SERE-type techniques for anything other than immediate tactical purposes (if that). Since these forms of punishment were being meted out in “black sites”  thousands of miles away from the battlefields of Iraq (Abu Ghraib was more of a test case rather than a systematic application of the Yoo doctrine) and Afghanistan (although the prison at Bahgram Air Force Base outside of Kabul is reported to contain a “black site’), or in Guatanamo, even the tactical intelligence obtained was mostly unactionable. Hence, professional interrogators such as Special Forces counter-intelligence officers did not conduct the interrogations, but instead were replaced by CIA operatives or private contractors. The can of worms that opens almost defies belief.

In a nutshell:  the Bush administration authorized unproven and unreliable torture techniques against the advice of those who were best informed about the use and results of those methods, then replaced seasoned interrogators with civilians and private contractors to do the dirty work. Presumably this was to gain some of distance on any potential legal repercussions down the road. When one looks at the results of the Abu Ghraib case, where two enlisted soldiers served short jail sentences, two field officers were reprimanded and demoted and one flag rank officer demoted and  forced to retire, it easy to see how Bush administration officials believed that they would never be held responsible for anything that happened in the “black sites.”

Bush administration defenders claim that the coercive interrogation program obtained results in the form of preventing terrorist attacks but are unable or unwilling to offer a single instance of such a success. They claim that revealing the torture memos jeopardizes current and future intelligence operations and demoralizes the CIA. The answer to these claims (other than to laugh when Dick Cheney makes them), is to say 1) provide a single shred of evidence that an attack was prevented by the use of waterboarding and other forms of torture; 2) prove that any information obtained that was useful could not have been obtained using other (non-torture) techniques. Let us be clear: getting the names of other cell members, or of liaison contacts, or of the early outlines of a terrorist plot is not “actionable” intelligence that could not have been obtained by other means (say, by good human intelligence in the field). Arresting some of the Guantanamo detainees was enough to disrupt the most grandiose of al-Qaeda plots, so once their role was ascertained and their backwards linkages traced, use of torture was just vengeance, not intelligence-gathering. If the claim is going to be made that the use of terror was efficient, i.e., that it actually prevented an imminent attack, then it needs to be supported with proof. After all, the “informants” are not going anywhere so need not fear retribution and whatever intelligence penetration of terrorist networks has occurred should not be vulnerable to exposure if the truth of the matter is revealed (otherwise it is simply shoddy workmanship on the part of US intelligence and its allies).

The best way to verify such claims is to grant immunity to interrogators and lower-level CIA and military officials who oversaw coercive interrogations in  order to find out not only whether the techniques were as necessary as the Bush defenders say there were, as well as their results. More importantly, the main purpose of the grants of immunity is to determine the chain of command responsible for authorizing the use of torture, and on what grounds. The last point is important because as it stands, the Bush administration will hide under the doctrine of “plausible deniability” where subordinates get blamed for the physical acts but no evidentiary link can be conclusively made to the orders of high level officials. That deception can be countered with a “due obedience” approach whereby legal immunity to lower-ranked officials is exchanged for their testimony on who gave the orders and how did they do so (as well as how they tried to conceal those orders).  That is the key to getting indictments of Bush administration officials. John Yoo and his chief lieutenants, in particular (the former now happily ensconced as a Law Professor at UC Berkeley, of all places, the latter now anxiously realizing that private legal practice does not afford them any cover in the face of a federal indictment), need to be held to account because they apparently took an untoward interest in specific techniques and were the keenest to authorize their use. Getting these toadies to turn under the threat of imprisonment could in turn be the key to finding out what exact roles were played by Cheney, Bush and Rice in opening the Pandora’s box embedded in the torture memos.

Of course, being a cautious and pragmatic person, Barack Obama may pull the plug on any prosecutions in the interest of political security (his own and of the Democratic Party). If so, it will be up to the International Criminal Court to seek the truth of the matter, so that even those who rule a seemingly unassailable superpower realise that they too are not above basic standards of human rights and international justice. I shall not hold my breath waiting for either to happen. What is certain is that, until something dramatically different is revealed to counter what is known so far,  from a moral-ethical as well as an efficiency-practical standpoint, the US use of torture in the fight against terrorism has been a failure more than a success.