Gordon Campbell on the security services review, and Bernie Sanders’ victory against the TPP

March 10th, 2016

To no-one’s real surprise, the Cullen/Reddy review of the security services has recommended an extension of the powers of the Government Communications Security Bureau (GCSB), mainly to legally enable the agency to use its technological expertise to spy on New Zealanders.

So… a review that was triggered by the GCSB breaking the letter (and the clear intent) of the existing law– which clearly forbade it to engage in the surveillance of New Zealanders – has now rewarded the miscreants, by legalizing their behavior. Yep, that’s the way to engender public confidence – give more power to the foxes, to enable them to better guard the henhouse. Why should we, in future, place our trust in organisations that have shown in the recent past that they either cannot understand or – more credibly – simply do not respect the boundaries placed on their activities by the current law?

The Cullen/Reddy review makes much of the need to integrate the various laws governing the SIS and the GCSB, which are depicted as being confusing and piecemeal. Really? If the spy agencies find it that hard to decode the current law, how much confidence should we have in their capacity to decode the missives of foreign agents? I mean… how hard is it to have one law governing the agency that protects domestic security from the one that governs the agency that deals with foreign threats?

Regardless… the Cullen /Reddy review recommends integrating the laws governing the SIS and GCSB under one comprehensive new piece of legislation. Before rushing headlong down this path, it may be worth recalling that when Parliament passed the GCSB legislation in 2003, both sides of the House saw value in not blurring the boundaries between the SIS and GCSB – on the very reasonable grounds that the privacy rights and security needs of New Zealanders are of a different order than those emanating from foreign threats and/or at the behest of foreign intelligence agencies. Overseas, the FBI and CIA operate under different rules, and Congress sees an advantage in them continuing to do so.

As Sir Michael Cullen has already indicated, this proposed streamlining of the legal framework would be logically consistent with integrating the SIS and GCSB into a single organization – but alas, this was not within the review’s terms of reference. At its core, the review sets out three different tiers of authorization, which would supposedly click into gear in proportion to the degree of perceived threat.

In reality, this three tier system could just as easily open up fresh areas of potential ‘confusion’ for our hard working but interpretively challenged spooks. All very well to talk in general terms – as this review does – about the proportionality of the threat dictating the rigour of the authorisation process. Yet discerning where which threat should sit on the three-rung ladder is not quite so apparent. Here’s the system being proposed for the top tier of threat, which would have to be signed off by the Attorney-General and by a judicial commissioner.

The highest level of authorisation should be a warrant approved by the Attorney-General and a judicial commissioner (“tier 1 authorisation”), which would be required for any activities that would otherwise be unlawful and are for the purpose of targeting a New Zealand citizen, permanent resident or organisation. . Both the Attorney-General and judicial commissioner would need to be satisfied that the statutory criteria for issuing an authorisation are met. The Attorney-General would also take into account broader national interest considerations and would have discretion to decline to issue a warrant even if the criteria are met. The judicial commissioner would consider the legality of the application, including consistency with human rights laws.

So are the “statutory criteria for issuing an authorisation” different from the “legality of the application” or are they the same thing? (Moreover, shouldn’t “consistency with human rights” be made integral to the structure of the entire operation, instead of being an add-on matter for the judicial commissioner to subsequently consider?) Apparently, if there is a disagreement between the A-G, and the judicial commissioner, the application fails, since both need to sign off the application.

Yet how the division of labour between the A-G and the judicial commissioner will operate remains unclear. A rotating panel of three judicial commissioners is envisaged. Will all of them have equal access/equal ability to weigh those ‘broader national interest considerations’ that come into play as the operational necessity for the warrant is supposedly weighed against the human rights/privacy issues ? In practice, how could the judicial commissioners possibly weigh these human rights/privacy issues in isolation from the operational imperatives that are supposed to justify their breach? What I’m getting at is….to be meaningful, true proportionality would require that the commissioners have equal access (and an equal judgment call) on operational matters that the security services – and successive governments – have always resisted, whenever outsiders are involved.

From there on, it doesn’t get any better. Para 38 deals with the second level of authorisation, in which the Attorney General alone makes the call:

The second tier of authorisation would be a warrant issued by the Attorney-General. A tier 2 authorisation should be required for the Agencies to carry out any activities that would otherwise be unlawful, but are not for the purpose of targeting New Zealand citizens, permanent residents or organisations.

Right. So the Cullen/Reddy envisages a system whereby human rights considerations do not apply to foreigners operating within our territory – which is arguable, but can be justified – but lets think about the practicality of these tier 1 & 2 distinctions. On the ground… which authorisation rules will be deemed to apply when it involves surveillance of a meeting that involves both New Zealand citizens and foreigners? Or a phone call between a foreign agent and a New Zealander?

Wouldn’t the security services be likely to plump for level two – which cuts out the judicial commissioner and keeps the authorisation process in-house – and treat the rights of the New Zealanders involved as being collateral damage? While allegedly fostering transparency, the three tiers envisaged all but invite a gaming of the system.

And while it sounds looks all very well and good for the Attorney-General to be the decider – is this really much of a check and a balance when the current Attorney-General is also the Minister responsible for the GCSB, and is also the Minister in charge of the SIS? While putting on different hats, the A-G will essentially be vetting the legality of operations that he has helped to set in train.

All that aside… the oversight mechanisms are the real test of any system that grants special powers to the security services. The Cullen/Reddy review is a mixed bag in this respect. Cullen has already made much of the way the review advocates a narrowing of the meaning of ‘national security”. Good, and not before time. The proposed extension of the powers of the Inspector General is also welcome; the current barriers to the I-G’s access to SIS/GCSB information has always been outrageous. Not much point in having a watchdog if it is always kept on a leash.

It is also welcome that the I-G will be able to investigate complaints from foreigners, even if upstream, the authorization process has been (deliberately) insensitive to their human rights. Yet to be meaningful, what these enhanced powers will also require is better funding – and more investigative staff – for the I-G’s office. It should be regarded as being the equivalent of the Police Complaints Authority, and funded and staffed accordingly.

On this crucial oversight issue, the most disappointing aspect of the Cullen /Reddy review has to do with the rampantly token changes that the review advocates ( paras 53-56 ) to the system of parliamentary oversight of the security services. Adding more members to a toothless committee and changing the chair is a totally inadequate response.

Tokenism though, is probably all that one should expect from a process set up to validate the GCSB’s prior transgressions. Those who remember Cullen’s enthusiasm for the misguided SIS crusade against Ahmed Zaoui – Cullen was Attorney-General at the time – will not be entirely surprised by this latest document.

Bernie Takes Michigan

The Bernie Sanders victory in Michigan shows that – finally – he can compete (and win) against Hillary Clinton in major northern industrial states that are ethnically diverse. Hitherto, Sanders success had been limited to small states with high concentrations of white voters (New Hampshire, Oklahoma) or in contests within or adjacent to his home state, Vermont. This time, he has showed he can win in large northern industrial states with significant black populations. That changes the whole picture.

To a New Zealander, the even more interesting aspect of yesterday’s triumph was the reason for it – basically, Sanders ran his whole campaign in Michigan against the Trans Pacific Pacific Partnership.

For example take a look at this Bernie ad, which screened in Michigan only a few days before polling day:

So called ‘Free trade” has decimated the jobs and communities that used to rely on a manufacturing sector that has since been outsourced to foreign countries. Under pressure from Sanders, Clinton has belatedly come out against the TPP, but she has proved to be really vulnerable (outside the South) on the ‘free’ trade question.

Nominally, unemployment in Michigan is down from its GFC heights – but those figures mainly reflect the prevalence of McJobs that are seen as no replacement to the better paid, more stable jobs and related family life that free trade has destroyed. Sanders’ success among black communities in Michigan has shown that even Clinton’s strong levels of black support can be over-ridden ( outside the South) by the anti-free trade message. Black communities in the industrial Midwest have also suffered from the job losses outsourced via NAFTA in the past, and with the TPP only promising more of the same.

Donald Trump of course, is appealing to precisely the same sense of outrage. Trump’s entire “Rustbelt Strategy” is based on his opposition to free trade in general, and to the TPP in particular.

His rhetoric of “Making America Great Again” is a lament for those lost jobs in the industrial Midwest, and is a sympathy pitch to the displaced. Rather than thinking Americans are crazy for voting for Trump we should – perhaps – consider whether they’d be even crazier to vote for the latest Establishment glove puppet to embody the trade policies that voters have been given such good reason to resent. Trump may be an offensive, dangerous demagogue – but his populism is grounded in an entirely valid sense of grievance.

And on to Ohio and Florida, on March 15 – which has always seemed like judgment day in this campaign. Look at the voter breakdown in Michigan ; it is almost identical to the demographic profile next door in rust belt Ohio….

For instance : the ratio of college-educated whites (40.3% Michigan, 38.7% Ohio) non college educated whites ( 36.4% Michigan, 41.3% Ohio) blacks ( 15.5%, 15.1% ) and Hispanics ( 3.2%, 3.4%) is almost the same. After Michigan, Sanders can now hope to run Clinton very, very close in Ohio as well. The uber-message is that when people are given the democratic chance to vote on the TPP, they vote against it in droves.

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