Helen Clark – spying on New Zealanders “wasn’t their remit”

Clark has raised a few eyebrows with her spying on New Zealanders “wasn’t their remit” comment, as reported by Stuff in No spying on Kiwis under Clark:

Former Prime Minister has confirmed the executed intercept warrants for the SIS during her Government but spying on New Zealanders “wasn’t their remit”.

Clark, speaking in advance of the release of her new book At The UN, about her first four-year term as Administrator of the United Nations Development Programme, said she was always “loyally and diligently” served by the intelligence services.

Clark said the Government Communications and Security Bureau acted within the law “as it was understood to be” and this included executing warrants for the Security Intelligence Service.

Someone on Twitter suggested she hadn’t read the Kitteridge report, which detailed:

In relation to NZSIS, between 1 April 2003 and 26 September 2012, GCSB provided 55 instances of assistance to NZSIS, which potentially involved 85 New Zealand citizens or permanent residents.

In relation to the New Zealand Police, between 1 April 2003 and 1 January 2009, GCSB provided assistance to the Police in one instance, which potentially involved three New Zealand citizens or permanent residents.

It is very likely the Police case happened under Clark’s watch, her government was ousted in November 2008.

It is likely that some of the 55 instances involving the SIS were authorised by Clark. And prior to the current Act there are likely to have been more instances, during the first term of the Clark government from 1999 until Clark’s Act in 2003.

It was long-standing practice – going back to before the enactment of the GCSB Act in 2003 – for GCSB to provide assistance (i.e. its specialist capabilities) to the NZSIS on the basis of NZSIS warrants.

Perhaps Clark is still thinking in terms of the past GCSB view that when they spied for the SIS or police they were acting as an agency and therefore not bound by the “no New Zealanders” rule. They (and she?) had determined that in those cases they weren’t doing the spying, they were providing a spy service to the other agencies.

Clark must have been familiar with this. It was her government that put the law in place in 2003, and she would have usually been the minister in charge of issuing warrants. Stuff:

She rejected that the Government Security Communications Bureau routinely spied on New Zealanders as that was “not part of their remit”.

That may simply be a political use of words. Spying under warrants (issued by her) was for specific cases, not routine, as stated by Kitteridge.

I do not want to suggest that GCSB was in the business of routinely providing assistance to domestic agencies in cases involving New
Zealanders, because that is not the case.

From time to time, however, GCSB provided its specialised assistance to New Zealand agencies in cases involving New
Zealand citizens or permanent residents, in the belief that the assistance was provided lawfully.

And Clark’s comments match that – it was not routine and it was within the law “as it was understood to be”.

The second major concern of Kitteridge was on metadata.

The second situation involved metadata (information about information; for example, the kind of information that appears on a
telephone bill).

The understanding within the Bureau (as reflected in its internal guidance) was that metadata was not a “communication” for the purposes of the prohibition expressed in section 14 of the GCSB Act. It was the view within GCSB that GCSB could, on request, lawfully obtain and provide information about metadata involving New Zealanders, without the authority of a warrant, in accordance with its function of co-operating with and providing assistance to public authorities.

I presume Clark also saw this as not routine and within the law “as it was understood to be”.

Clark is stuck in the system questioned by Kitteridge, the system set up and used by Clark.

Clark and her Government put in place a legal and operational system of Clayton’s spying – the spying you do on New Zealanders when you can claim you are not spying on New Zealanders.

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