Thursday, November 27, 2014

The Law Society on the spy bill

At the moment the Foreign Affairs, Defence and Trade committee is hearing submissions on John Key's Countering Terrorist Fighters Legislation Bill. One of the first submitters was the Law Society. So what did they think of it? It is a disproportionate response to the problem:

some provisions in the Bill substantially interfere with and reduce human rights and individual liberty. Thus, the powers taken should be limited strictly to what is required by the threats that have arisen.

They're recommending that the term for passport denial not be extended, and that it be subject to stronger judicial review. They think that there's a very weak case for visual surveillance powers. Visual surveillance seems less appropriate for intelligence work, and the threshold in the bill is significantly lower than that required by police for such surveillance. As for warrantless emergency surveillance, they again note that the threshold is far too low, the period too long, and the safeguards nonexistent. They also criticise the use of urgency and the extended "sunset clause".

These are all strong criticisms. If you'd like to add your voice to them, please submit. There's a submission guide here. Just do it quickly, because submissions close today.

John Key's TXTs and the Public Records Act

Today in Question Time, in response to further questions about the Prime Minister's communications with sewerblogger Cameron Slater, Steven Joyce (on behalf of the PM) informed the House that Key deletes all his text messages, "in case his phone is lost".

Pretty obviously this is useful for Key. It means that there is no evidence of what he's been saying to who. But it is a problem for us, because legally Key's texts are a public record. If they contain substantive discussions or decisions, then there is a duty to retain them, or a summary, as part of the Prime Minister's obligation to maintain full and accurate records. If no such summary is created - and Joyce seemed to suggest that there is not - then deleting them is a criminal offence.

Is Key going to face prosecution? Of course not. Even if the Chief Archivist - who is now an employee of the Department of Internal Affairs rather than an independent public servant - stood up for the law and took their duty to act independently seriously, the police would simply laugh at it. Where the Prime Minister is concerned, the law apparently means nothing.

Meanwhile, you might want to ask yourself: why would a politician with nothing to hide delete public records?

No freedom of speech in Pakistan

Veena Malik is a Pakistani actor. In May this year she played a role in a historical wedding scene based on the marriage of one of Muhammed's daughters. For this, she has been sentenced to 26 years in jail for blasphemy:

Veena Malik has expressed her anger and disbelief after she was handed a 26-year jail term by a Pakistani anti-terrorism court for ‘malicious acts’ of blasphemy.

Her crime? Appearing in a pretend wedding scene, staged on a daytime show broadcast by Geo TV and based on the marriage of the Prophet Mohamed’s daughter.

The programme sparked a wave of controversy in the Islamic country when it aired in May, despite the fact similar scenes had been aired in the past to little or no such public outrage. Some even apparently suspected that Pakistan’s military were behind the mock wedding, and that it was put on in a bid to wage a blasphemy war against the broadcaster.

Malik’s husband, Asad Bashir Khan, and Mir Shakil-ur-Rahman, the chief executive of the biggest media group in the Asian country, were further sentenced to 26 years behind bars for the apparent religious offence. The host of the show Shaista Wahidi was also punished.

I'd suggest that the Pakistani courts are incapable of distinguishing between fiction and reality, but as this is a religious offence, that's a given.

Climate change: Rising seas

One of the primary consequences of climate change is sea-level rise due to thermal expansion and melting ice. What impact will this have on New Zealand? The Parliamentary Commissioner for the Environment is going to tell us:

The Parliamentary Commissioner for the Environment, Dr Jan Wright, has warned that flooding and erosion from rising sea levels will have a large impact on many New Zealanders in their lifetimes.

Today the Commissioner released a report that explains the science of sea level rise, one of the major consequences of climate change. A second report, due next year, will show which towns and cities are most vulnerable. It will also assess the risk to roads, buildings, stormwater systems and other infrastructure in those areas.

Its the second report which will really be interesting here, but this is a good start. And it gives us an idea of what to expect: 30 centimetres by mid-century, and a metre by 2100. And that is going to mean some big, and disruptive changes. Just around Wellington, that 30cm by 2050 is going to mean that the Hutt Road, the Hutt-Wellington railway line, Petone and Eastbourne will become increasingly vulnerable to storms (and Eastbourne already loses houses this way); a metre may make those transport links untenable without major engineering work. And of course there will be the impacts on coastal property - some owners of which resolutely have their fingers in their ears and are trying to gag councils to enable them to dump their junk on suckers preserve the "value" of their "assets". Adapting to this is going to cost a lot of money - money we wouldn't have to spend if we, and the world, had acted sooner.

The full report can be read here.

Wednesday, November 26, 2014

Submission guide: Countering Terrorist Fighters Legislation Bill

I've just completed my submission on John Key's Countering Terrorist Fighters Legislation Bill. In the past I've posted my submissions, but that has tended to lead to a bunch of people copy-pasting them, which has in turn reduced their impact (MP's hate spam-submissions). So I'll post it tomorrow, and instead do a quick guide on how to write your own. Remember, submissions are due tomorrow, so write fast!

Some points you may want to make:

  • The government has not made a case for the inadequacy of the current passport regime. In particular, it hasn't explained why a one-year cancellation / refusal is insufficient, or why going to court to get an extra year doesn't work. Indeed, there's no evidence at all that they've ever gone to court to extend a cancellation.
  • The ability to cancel the passports of people overseas creates a risk of rendering people stateless and constitutes a de facto sentence of exile imposed by Ministerial fiat.
  • The ability to suspend a passport for 10 days without evidence is (by definition) an arbitrary infringement of people's freedom of movement, and makes all our international travel subject to Ministerial whim.
  • The ability to use secret evidence in appeals against these actions violates the right to justice and undermines the credibility of the courts. They should have learned this from Ahmed Zaoui.
  • Giving the police and SIS access to Customs data effectively circumvents the safeguards on their search powers, at least where the target of an investigation may be travelling overseas.
  • Visual surveillance is highly intrusive, and given their past poor judgement and collection of irrelevant material, the SIS cannot be trusted with such powers.
  • 48-hour emergency surveillance powers seem designed to circumvent existing safeguards, while permitting the SIS to retain anything "interesting" they find. There are other solutions, including designating alternative Ministers who can approve warrants (as is done for the GCSB). In cases of real emergancy, such as a threat to life, the police already have the necessary powers, and cases should be turned over to them.
  • The short period permitted for submissions is ab abuse of the democratic process.
Once you've written it, you can submit through the online form here. Remember, you've now got less than 24 hours to do so, so be quick about it.

This takes the cake

The Inspector-General of Intelligence and Security is now threatening John Key's victim with prosecution:

As the Inspector-General stated at the release of the report yesterday morning, she is examining what steps to take over the early disclosure of information from the report.

That disclosure was contrary to the non-disclosure obligations under which affected parties received some limited prior notice of the report and was also unfair to others.

Ms Gwyn said that she was aware of Mr Goff's subsequent statements that he had disclosed some information concerning findings in the report. She will be seeking further information from Mr Goff and others.

The broadcast or publication of that information may also have contravened the IGIS Act and, in any case, these events raise questions for the handling of future reports. Any issue of prosecution will, however, be for the Police.

Presumably such a prosecution would be under section 29 Inspector-General of Intelligence and Security Act 1996, which prohibits the unapproved publication of IGIS reports. But it is difficult to see how such a prosecution could possibly succeed, because the report was approved for release. While it was discussed with the media before the IGIS made her announcement, a press embargo is a PR measure, not a security one. Any court with a proper respect for the right of freedom of expression affirmed in the BORA would find that. The IGIS doesn't have a leg to stand on. Instead, by attempting to bully a victim of the SIS (and an MP), all she has done is bring her office - and the whole idea that it is an effective check and balance on SIS behaviour - into disrepute. And if they're going to try and bully Members of Parliament - their ultimate bosses - I'm happy to see both the IGIS,and the spies she supposedly "oversees", shut down permanently.


The Foreign Affairs, Defence and Trade committee has called for submissions on the Countering Terrorist Fighters Legislation Bill. Submissions can be made via the online form and are due by Thursday, 27 November 2014.

Yes, that's right. An important bill with major human rights implications, and we have one day to speak up about it. The consistency of this with our democratic norms is left as an exercise for the reader.

Still, we need to submit. While National is wholly committed to the spy deep state, its support partners and opposition parties aren't. Every other party is extremely uncomfortable with these measures. And while the committee has a solid National majority and will rubberstamp whatever the Prime Minister wants, there's a good chance that the bill will at least be toned down in order to secure a majority for the second reading. While I'd prefer to see it defeated (and the spies who asked for it sacked and their agencies disbanded), any improvement would be good.

Making their own terrorists

Last year, two men murdered a British soldier in the middle of a London street. Now, the UK's Intelligence and Security Committee has found that MI6 may have directly contributed to one of the killers' radicalisation:

The British government may have been complicit in ill-treatment of Michael Adebolajo, one of Lee Rigby’s killers, during his detention in Kenya, the intelligence and security committee has said.

The official inquiry into the circumstances leading up to Rigby’s murder also criticised evidence from the former MI6 chief Sir John Sawers, saying it was incorrect and that a document showing this was initially not given to the committee by the intelligence service.

Adebolajo alleged that he was beaten and on more than one occasion threatened with electrocution and rape during his detention in Kenya in 2010. The ISC said he had gone there to join extremists in neighbouring Somalia.

The implication: if MI6 hadn't been complicit in Adebolajo's torture, he might not have gone on to behead someone. British spies helped create one of the terrorists they use to justify their budgets and powers.

Its just another example of how the war on terror is a hugely counterproductive exercise which exacerbates rather than prevents terrorism. Sadly, the spies and generals who gain power and prestige from waging it and the politicians who have to appear "tough" seem incapable of understanding that. And its ordinary people, not those spies, generals and politicians, who pay the price.

Vodafone collaborates in mass-surveillance

The latest analysis of the Snowden documents shows that Vodafone is actively collaborating with GCHQ's mass-surveillance programmes:

One of the UK's largest communications firms had a leading role in creating the surveillance system exposed by Edward Snowden, it can be revealed.

Cable and Wireless even went as far as providing traffic from a rival foreign communications company, handing information sent by millions of internet users worldwide over to spies.

The firm, which was bought by Vodafone in July 2012, was part of a programme called Mastering the Internet, under which British spies used private companies to help them gather and store swathes of internet traffic; a quarter of which passes through the UK. Top secret documents leaked by the whistleblower Edward Snowden and seen by Channel 4 News show that GCHQ developed what it called "partnerships" with private companies under codenames. Cable and Wireless was called Gerontic.

Under the moniker, the company carried out tests on equipment used to carry out the surveillance, it came up with suggestions on how the spies could go about tapping its network, and even had a GCHQ employee working full-time within the company.

So Vodafone are quislings who collaborate with spies. But it gets worse. One of the leaked documents shows that Vodafone (as well as REMEDY (British Telecom), PINNAGE (Global Crossing) and LITTLE (Level 3)) rent space on the Southern Cross cable. Why is this relevant?
a 2011 document reveals that Cable and Wireless went further. The company rented space on a cable owned by Indian telecoms company Reliance Communications that stretched from Asia across the Middle East and landed in Porthcurno in Cornwall. Reliance's transatlantic cable lands in Sennen Cove six miles to the north. And the two cables come together at nearby Skewjack Farm. Documents show that in 2011, this allowed Britain's spies to access all traffic from Reliance's main cable and send it to the GCHQ base up the coast in Bude.

Let a GCHQ "partner" onto your cable, and GCHQ gets all your traffic. They don't need to physically tap the cable - they just get their quislings to take it all off at the landing site. So the very people we are trusting to protect the security of our communications are instead betraying us to foreign (and possibly our own) governments.

Tuesday, November 25, 2014

A surveillance power-grab

Section 7 of the government's spy bill introduces a new power for police and SIS to access information held by Customs. Its not mentioned in the press release, and the bill's explanatory note is extremely vague. So what's it about? Fortunately, the BORA-vet is explicit: its about allowing police and SIS access the fruit of Customs' warrantless border-search powers:

38.The Customs and Excise Act contains significant search and surveillance powers. As an example of one such power, a High Court decision has held that s 151 provides that a Customs officer may examine or analyse any goods that are subject to the control of Customs or the officer has reasonable cause to suspect are subject to the control of Customs. Section 151 is designed to provide Customs officers with the widest possible powers to deal with persons who arrive in New Zealand from overseas. Customs officers are entitled to examine and analyse such articles as may be of interest to them by any means whatsoever. Section 151 does not provide a requirement of reasonable cause or suspicion of criminal activity, and the information obtained may be retained for law enforcement purposes. An example of the information obtained includes data downloaded from a cell phone. [17]

39.It is entirely appropriate for Customs to have wide latitude to search and seize goods at the border without a warrant for the purposes of border protection. What is of issue is NZSIS and Police having access to data taken by Customs without a warrant for border protection and then using it for other purposes such as investigation of suspected criminal offending. We consider that comprehensive examination of data, either from cell phones, laptops or other storage media, for general law enforcement purposes would require at least reasonable suspicion. [18]

40.The Bill states that the use of Customs’ information by NZSIS and Police is for the purpose of conducting counter-terrorism investigations. The investigations involve addressing serious threats to safety or property and the information taken by Customs is in the strictly regulated environment at the border. This power to access Customs’ information will be subject to a sunset clause expiring on 1 April 2018. In addition, in November 2013 Cabinet agreed to a full review of the Customs and Excise Act. The review process now underway aims to develop new legislation that improves facilitation of travel and trade through the border, supports Customs’ border management and has the flexibility to adapt to new technologies and developments. It is intended to have new legislation passed in 2017.

41.Based on the above, we consider that access to Customs’ information for the limited purpose of counter-terrorism investigations appears to be a reasonable search and seizure.

[Emphasis added]

The prospect of the police using Customs to circumvent warrant provisions is one I've raised concerns about in the past. The Minister of Justice has just said that it's illegal, but that she's OK with legalising it (because "national security" justifies spies poking through all your text messages and data without a warrant). But the fact that she's said its illegal invites the obvious question: how many times has Customs broken the law by providing border search information to police or the SIS? And will they be held accountable for it?

Another shoddy analysis

What's the case for the government's Countering Terrorist Fighters Legislation Bill? I've been reading the bills Regulatory Impact Statement, and the short version is that there isn't one.

A RIS is a vital part of the quality control process for government policy. The guidelines for RIS's are laid out in treasury's Regulatory Impact Analysis Handbook. A RIS should state the status quo, define the problem and objectives, identify the range of feasible options, and analyse them. Often this is a game of salmonella, with options chosen simply to frame debate and push approval of the government's preferred option. But the mere fact that they have to do that, and assess the costs and benefits of their preferred policy against a default option of doing nothing, means that we get some idea of whether a policy stacks up.

The spy-bill RIS doesn't bother with this. It has a problem, it has a preferred option, and that's it. No alternatives are considered, and there is no cost-benefit analysis. There's not even any human rights analysis (another regular feature of RISs). It is, in short, a shoddy and unprofessional piece of work. Just like their last one (and note that it is the same public servant signing off on both of them).

What about the BORA-vet? Amy Adams thinks the bill is consistent with the Bill of Rights Act. Taking people's passports away, exiling them from New Zealand without charge or trial, sticking video-cameras in people's bedrooms without a warrant? All fine according to her. National security trumps fundamental human rights, and the SIS's desire to spy trumps any safeguard. If this is an example of how the BORA-vet process works, its just another example of why we need judicial rather than political oversight.


Since June, the US has been bombing Iraq. Since September, they've been bombing Syria. In both cases, the aim is ostensibly to stop ISIS. So how's it working out?

About as badly as you'd expect:

US air strikes in Syria are encouraging anti-regime fighters to forge alliances with or even defect to Islamic State (Isis), according to a series of interviews conducted by the Guardian.

Fighters from the Free Syrian Army (FSA) and Islamic military groups are joining forces with Isis, which has gained control of swaths of Syria and Iraq and has beheaded six western hostages in the past few months.

Some brigades have transferred their allegiance, while others are forming tactical alliances or truces. Support among civilians also appears to be growing in some areas as a result of resentment over US-led military action.

In other words, murdering people from the air has strengthened support for ISIS. Its been a hugely counterproductive effort. Much like the war on terror itself.

And John Key wants us to involve ourselves in this mess? I can't think of anything stupider.

No justice in America

On August 9, police officer Darren Wilson shot and murdered Michael Brown in Ferguson, Missouri.. The shooting of unarmed black men by American police is so routine that they don't even bother to keep statistics on it. And of course, they never prosecute. Today a grand jury continued that trend, deciding that Wilson will not stand trial.

The message is clear: there is no justice in America. If you're black, the police can kill you with impunity.

People in Ferguson are angry, and rightly so. The justice system has failed them. Their police have failed them. Their government, at all levels, has failed them. And not just with this decision, but the military force and oppression their protests have been met with over the last three months. Its clear that "their" government does not regard them as equal citizens, with rights to life, justice and freedoms of assembly and speech, but as a troublesome underclass to be beaten, intimidated, and ultimately killed into submission. 150 years on from the end of slavery in America, and nothing has really changed.

Abuse of power: The OIA / public records dimension

One of the things to emerge from the "dirty politics" report is that the SIS pissed all over the OIA:

The NZSIS also made a significant error in considering information requests by the news media. Such requests were, from 25 July to 5 August, not treated as OIA requests but simply denied.

Meanwhile, they were bending over backwards to accommodate Slater's request. But despite the fact that they'd gone to the same email address and it was the same staff handling them, the IGIS finds no politicisation; instead the SIS suffered from doublethink, an imagined distinction between "media inquiries" and OIA requests. There is no such distinction. As the law makes clear, any request to a Department, a Minister, or an agency, is legally an OIA request, and has to be answered. And every time a Minister says "no comment" to a duly particular media inquiry about information they hold in their capacity as a Minister, they are breaking the OIA and could become the subject of an Ombudsman's complaint.

And then there's this bit:
I issued a production order to Mr Ede in respect of his personal email accounts after it became apparent from evidence, including evidence provided directly by Mr Ede, that some of the correspondence pertinent to this inquiry was conducted from non-official email accounts. Upon receipt of the production order, Mr Ede provided a supplementary written statement to the inquiry in which he advised that the emails had been permanently deleted prior to the commencement of the inquiry and could not be recovered. I made my own enquiries and confirmed this was the case.

The IGIS is primarily concerned about the security implications of this, but there's another one. Insofar as they deal with official Ministerial business - and if it deals in any way with official information its Ministerial business, as Ministers do not hold such information in their political capacity as MPs - then this appears to violate the Public Records Act, putting Ede on the hook for a $5,000 fine per email. Its small potatoes, but in the absence of a crime of "crimes against democracy", it will have to do. Meanwhile, we have to wonder how many other Ministerial staff are doing this in an effort to evade the OIA. Its time for the Chief Archivist to do an audit.

An abuse of power

The Inspector-General of Intelligence and Security has released her report into the release of information to Cameron Slater by the SIS. Its a lot to digest, but it looks like the core allegation of Dirty Politics - that the Prime Minister's office colluded in releasing SIS information to their pet sewerblogger - has been upheld. But while the report highlights unprofessional and partisan conduct by then-SIS Director Warren Tucker, and dirty politics by the PM's staffers Phil de Joux and Jason Ede, Key is treating it as exonerating him. At this stage, its worth remembdering that Key's conduct was not part of the terms of reference, so of course the report draws no conclusions about him. But there's both a credibility question - do we really think Key was unaware of the smear machine in his office - and a responsibility one. This was his office. These were his staff. They were acting in his name. He's responsible for this.

As for what that should mean, the use of spies against domestic political opponents is well beyond democratic norms. It is Nixon territory. And there is only one appropriate response to this abuse of power: the Prime Minister should resign.

Monday, November 24, 2014

How to get rid of the State Services Commissioner

Over the wekeend, Andrew Little effectively called for State Services Commissioner Iain Rennie to resign over his mishandling of the Roger Sutton sexual harassment claim. I'm inclined to agree. But as DPF points out, the SSC can't just be sacked, but can only be removed by a motion of the House of Representatives in response to a suspension by the Governor-General (which effectively means the government, because the G-G always and only acts on advice). But that's not quite the barrier that it seems.

To point out the obvious: as head of the state services, the SSC must maintain and be seen to maintain political neutrality - including (from their own Standards of Integrity and Conduct) the ability to work with future Ministers. If the SSC can't work with a future government, its time for them to go. So, all Labour needs to do is lodge a motion in the House calling for Rennie's resignation. It doesn't have to pass, it doesn't even need to be voted on - the mere fact that it has been lodged would be enough to make Rennie's position untenable. After all, he can hardly enforce political neutrality throughout the public service when the opposition has said publicly and formally that it cannot work with him. At that stage, the only way he could effectively do his job would be to quit it.

Sadly, I don't think Labour is actually serious about this. Instead, they're just trying to get some cheap PR without any intention of following through.

How British

How corrupt is the British establishment? This corrupt:

The security services are facing questions over the cover-up of a Westminster paedophile ring as it emerged that files relating to official requests for media blackouts in the early 1980s were destroyed.

Two newspaper executives have told the Observer that their publications were issued with D-notices – warnings not to publish intelligence that might damage national security – when they sought to report on allegations of a powerful group of men engaging in child sex abuse in 1984. One executive said he had been accosted in his office by 15 uniformed and two non-uniformed police over a dossier on Westminster paedophiles passed to him by the former Labour cabinet minister Barbara Castle.

The other said that his newspaper had received a D-notice when a reporter sought to write about a police investigation into Elm Guest House, in southwest London, where a group of high-profile paedophiles was said to have operated and may have killed a child. Now it has emerged that these claims are impossible to verify or discount because the D-notice archives for that period “are not complete”.

And yet, they stand up today and say "there can't have been a D-notice because we would never have destroyed important files to protect important people". Meanwhile, an inquiry into whether the Home Office did exactly that says that it cannot be ruled out.

Spies are supposed to protect national security, not child molesters. If this is what Britain's spies do, the UK should rid itself of them (and arrest those involved in this coverup as accessories).

New Fisk

Iran is shifting from pariah to possible future policeman of the Gulf

A war on judicial oversight

In response to a leak, the government has been forced to release its "temporary" anti-terror legislation - and reveal that its a lot less temporary than they said it would be. Rather than a one-year patch-job pending a review, John Key's spies will have extra powers and warrantless emergency surveillance rights for his entire term. And to spies, everything is an "emergency"...

Reading the bill, the overwhelming thrust is to remove appeal rights and judicial oversight. This is particularly clear in the case of the new powers to seize and cancel passports, where a 12-month cancellation, extendible for a further 12 months on application to the High Court, becomes a 3-year cancellation. The net effect is to remove judicial oversight from the process. Note that the government hasn't actually told anyone how many times it has even applied to extend a cancellation, let alone whether it has been successful or not; no case has actually been made. We're all simply supposed to believe that there is a problem, and see unaccountable Ministerial discretion as a solution.

There are obvious BORA problems. The cancellation of passports interferes with freedom of movement, both the right to leave New Zealand, and the right of every New Zealander to return here. And while the former might conceivably be justifiably limited for reasons of preventing crime etc, the latter cannot be. It also appears to be punishment without trial, a violation of the right to justice, while the procedural denial of appeals from those overseas (appeals are limited to 30 days after notification, but the Minister doesn't actually have to notify his victims) is another. Not to mention the new rules allowing the government to use secret "evidence" in court cases, which have been found overseas to violate fair trial rights...

These measures are not acceptable in a free and democratic society. Insofar as they are necessary to prevent terrorism, they should be exercised by judges in open court, rather than Ministers in secret.

Class of 2008

Labour announced its new lineup today, and the change in leadership has led to a significant change: their top 10 are now absolutely dominated the Labour's class of 2008, while the old guard of Mallard, Goff etc have been shuffled off to the rear. Labour finally seems to have got the generational change it has been desperate for.

Except for Annette King, of course. She's still there as deputy, an MP who has been in Parliament longer than many voters have been alive, a veteran of the Rogernomics era. While the rest of the lineup screams "change", she's a big reminder of Labour's dirty past, and of its rump of older MPs who don't know when to quit. Its poor messaging, and for the sake of a senior MP maintaining a vanity position. A clean break would have been better.