Controversial members of Intelligence and Security reference group

There’s been a bit of consternation expressed over the members who have been named as members of the Intelligence and Security reference group panel. I’m not sure there is real cause for concern.

The members:

  • Professor Rouben Azizian – Director, Centre for Defence and Security Studies, Massey University
  • Thomas Beagle – Chairperson, NZ Council for Civil Liberties
  • Dr Paul Buchanan – Director, 36th Parallel Assessments
  • Ben Creet – Issues Manager, Internet NZ
  • Treasa Dunworth – Associate Professor, Public International Law, University of Auckland
  • David Fisher – Journalist, New Zealand Herald
  • Nicky Hager – Journalist, Author
  • John Ip – Senior Lecturer, Assistant Dean (Academic), Faculty of Law, University of Auckland
  • Deborah Manning – Barrister
  • Dr Nicole Moreham – Associate Professor, Faculty of Law, Victoria University of Wellington
  • Suzanne Snively – Chair, Transparency International

The inclusion of Hager and Manning seem to have raised the most eyebrows – both are well known to strongly oppose secret information gathering and storage.

But shouldn’t a reference group have a wide range of people opinions contributing to represent a good cross section of public sentiment?

Andrew Little, the Minister responsible for Intelligence and Security, has expressed surprise that a journalist is included: Minister surprised journalist included in reference group

The Minister responsible for New Zealand’s spy agencies is surprised that a journalist has been included on a new reference group established by the Inspector-General of Intelligence and Security.

Andrew Little said the 11 member group will act as a ‘sounding board’ for the Inspector-General Cheryl Gwyn, but won’t be privy to classified information, or operational details of the SIS or GCSB.

Mr Little said he thought there were some “interesting” choices when shown the list last week.

“I was shown the list, I thought some of the choices were interesting but then I think what is important is that we are bold enough and brave enough to know that it is alright to have critics of organisations and of the government involved in this sort of exercise.

“It is a healthy thing in our democracy.”

New Zealand Herald reporter David Fisher is also in the group.

Mr Little was surprised a New Zealand Herald journalist was on the refence panel.

“I would have thought there is a question about a journalist complying with their ethics in doing so, but that’s a judgement call in the end that they have to make.”

Journalist are an important part of holding power and spying to account, and Fisher is well qualified to be involved.

Gerry Brownlee has been vocal in criticising the line up.

National’s spy spokesperson Gerry Brownlee said the creation of the reference group raised a number of serious questions – particularly around the inclusion of the investigative journalist Nicky Hager.

“The Inspector-General has said this group has been brought together to help her stand ‘in the shoes of the public.”

“But several members of her group are far from objective in their view of our intelligence relationships, or in some cases the existence of intelligence services at all,” Mr Brownlee said.

He said Mr Hager had repeatedly questioned the legitimacy of the country’s spy agencies.

“Will this group have top secret clearance? If so, how can we be sure the information they will have access to will be secure?

“Will the Inspector-General be sharing intelligence with them? Where will the line be drawn?”

I would expect security of secret information will be handled competently.

Perhaps they are important questions to ask, but perhaps the best way to keep our spy agency honest is to have critics closely involved in monitoring them.

I’m not sure what sort of people critics expect to be on the reference group panel.

Who cares about illegal snooping?

I saw something on this earlier in the week but have had trouble finding anything on it now. After some digging:

Stuff on Tuesday: SIS criticised by government watchdog over ‘unlawfully accessing’ information

The Security Intelligence Service unlawfully accessed information obtained by border security agencies to keep tabs on people entering the country, the country’s security watchdog says.

While the activity is historic, the domestic spy agency comes under fire from Inspector General of Intelligence and Security Cheryl Gwyn, not just over the way it accessed the material but for dragging its feet in responding to her inquiry.

Gwyn reveals discussions stemming back several years relating to information collected by customs and immigration under the Customs and Excise and Immigration acts.

SIS director general Rebecca Kitteridge says the information related to people entering New Zealand  – information that is critical for the work done by the agency.

She blames the criticisms on out of date legislation that has since been updated to make clear that the information can be accessed.

But Gwyn’s criticism raises questions about what should be done with the information obtained by the SIS during the period in question – up till mid 2016. It covers information collected over a period of several years, presumably relating to people who might pose a risk to national security.

In her annual report, released Tuesday, Gwyn says that information was accessed unlawfully by the SIS.  The SIS does not agree it acted unlawfully, however, Gwyn acknowledged. Her full report will be issued as earlier as this week.

She is highly critical of the agency, blaming the “excessive time frame” to complete her final report in part on the delay getting legal advice, but also the fact it was “difficult” getting a “comprehensive and fully reasoned” response from the agency to her initial findings.

“I found the agency was reluctant to engage with my office on the substantive issues. I also observe that while the Service is entitled to have a different view from me on the lawfulness of given activities, whenever lawfulness is in question it should be proactive in obtaining independent legal advice on the specific point.

“Ultimately in this matter the Service advised me of its final view as to the lawfulness of some of its access to information under the Customs and Excise Act as late as August 2017. On that I have a different view, as set out in the review report. I have not been able to satisfactorily resolve with the Service the residual question whether NZSIS can lawfully treat immigration information collected by it previously as if it had been collected under the Direct Access Agreement with Immigration that is now in place.

“Overall, this is an unsatisfactory position. I reiterate the view I expressed in last year’s annual report – to ensure it operates lawfully, the NZSIS must be able to deal with such issues in a much more timely way. ”

Gwyn is also critical of SIS being reluctant to disclose its own internal legal advice, a  factor that “impeded” her ability to do her work.

DomPost editorial via Stuff:  Watchdog bites the SIS for acting illegally

Gwyn is right to call the spies out on this matter and to alert the public to their unlawful activities and their apparent reluctance to face the music. This suggests that certain old habits persist even after Kitteridge herself took over at SIS.

Just what all this means remains somewhat unclear, although Gwyn says she intends to publish a report on the whole business before the end of the year. That might throw more light on the matter.

None of this would have become public knowledge without the diligent and persistent work of the Inspector-General. In effect she is the public’s only real watchdog over the spies. Parliament’s Intelligence Committee lacks her power; the politicians who act as the ministerial overseers of the services habitually become captive to them and have never told the public anything of use.

Democratic society owes Gwyn a debt of gratitude.

But democratic society in New Zealand doesn’t seem to care much about this.

 

 

 

Annual Intelligence & Security report

The Inspector General of Security and Intelligence annual report (July 2015 – June 2016) annual report has been tabled in Parliament. This is now mandatory public reporting as required by the IGIS Act.


THE YEAR IN REVIEW

The principal work of the office during the reporting period comprised:

continued work on current inquiries and reviews

receipt and investigation of a range of complaints

review of GCSB and NZSIS warrants and authorisations

ongoing assessment of the soundness of compliance systems and practices in the two agencies.

Increased oversight means increased demand on the agencies

One effect of the expanded mandate and corresponding increase in resources for the InspectorGeneral, which is obvious in retrospect, is that an Inspector-General’s office that has the capacity to investigate, review and audit more, to ask more questions, will inevitably place demands and some strain on the agencies which must respond. Some of the compliance issues my office has identified during my first two years in office are longstanding and systemic in nature and, because of the limited oversight in place until the 2013 legislative reforms, had been subject to limited or no scrutiny by the Inspector-General. It has, necessarily, taken the agencies some time to address those issues and to consolidate or develop adequate internal processes and resources to meet the requirements of Inspector-General oversight. The practical effect of that has, sometimes, been delays and complications in gaining access to necessary information.

Measures of effectiveness

In the 2014/15 annual report I noted that the effectiveness of the Inspector-General’s office can be assessed against four key measures:

  • the breadth and depth of inspection and review work
  • the time taken to complete inquiries and resolve complaints
  • the extent to which the agencies, Ministers and complainants accept and act on the Inspector-General’s findings and recommendations
  • the extent to which there is a change to the agencies’ conduct, practices, policies and procedures as a result of the work of the Inspector-General’s office.

I believe that the office is making good progress against these measures. The breadth and depth of inspection and review work is illustrated by the ongoing inquiries and reviews outlined in this report. To date, the agencies have acted on all of the Inspector-General’s findings and recommendations.

The relatively large number of inquiries and reviews instituted by the office in the preceding reporting period has meant some delay in concluding those investigations and finalising reports. I acknowledge that inquiries must be completed within a reasonable period. If the matter is in the public interest, the public needs to know the answer to the questions posed as soon as possible. Likewise, the agency under scrutiny is entitled to have any issues about its performance evaluated and reported on without undue delay. While it is not possible to have a hard and fast rule, my objective is to complete all inquiries and reviews within six to 12 months, depending on the nature and scope.

Statutory advisory panel

The IGIS advisory panel comprises two external members (Christopher Hodson QC and Angela Foulkes, who were appointed in October 2014) and the Inspector-General. The panel has held 13 scheduled meetings (including by secure teleconference when members were away from Wellington) since the external members’ appointment. One or both external panel members have also attended other meetings with the Inspector-General and/or staff, including to review draft reports, discuss proposed legislative amendments and assist in planning the office’s work programme.

Panel members have also undertaken briefings with the intelligence agencies; a visit to the GCSB station at Waihopai; reviews of substantial written material; and ad hoc meetings and discussions with the Inspector-General.

The advisory panel provides valuable support to the Inspector-General, the members bringing a diversity of experience, intellectual rigour and judgement to the role. They have the highestlevel security clearance and can provide an external, but informed, perspective on substantive matters relating to the Inspector-General’s oversight of the agencies. That perspective is particularly important working in a closed, classified environment.

Intelligence and Security Committee

The Intelligence and Security Committee (ISC) may consider and discuss with the InspectorGeneral his or her annual report as presented by the Prime Minister to the House of Representatives.15 The Inspector-General may, with the concurrence of the Prime Minister, report either generally or in respect of any particular matter to the ISC.16 At the ISC’s invitation I attended before it at a private hearing on 10 November 2015 to discuss my 2014/15 annual report.

Independent review of intelligence and security legislation

The Cullen/Reddy review was timely: the NZSIS Act has been in effect for 47 years and the GCSB Act for 13 years. The Intelligence and Security Committee Act 1996 (ISC Act), like the IGIS Act, was enacted 20 years ago.

While all of these pieces of legislation have been subject to some amendment over that time, there has been no previous overarching review of the legislation governing the agencies and the oversight function.

I welcomed the opportunity to meet on a number of occasions with the reviewers. The focus of my discussions was on the need for any new legislation to:

  • set out clearly the powers of the agencies, purpose of those powers and controls on them
  • include proper accountability and oversight mechanisms
  • meet the requirements of legality and propriety and consistency with human rights.

The full annual report.

 

Security versus privacy

The review of our spy agencies the GCSB and the SIS has reignited the security versus privacy issue.

Ideally we need to find a way of improving security, which requires some surveillance, while strengthening the protection of personal privacy. We should be targeting simpler clearer laws, possibly with some greater powers but with greater transparency and much better independent and political oversight.

A number of related reports:

Jane Patterson at Radio NZ: Security v privacy: A balancing act

A review of New Zealand’s intelligence agencies has found the laws governing the Security Intelligence Service (SIS) and the Government Security Communications Bureau (GCSB) are clunky, inconsistent and preventing those agencies from properly carrying out their jobs.

The challenge confronting lawmakers, past and present, is how to balance citizens’ rights to living in a safe and secure country, against their rights to privacy.

She concludes:

The review has attempted to balance the rights of security against privacy by proposing stronger oversight and warranting provisions.

It is now up to the politicians to strike that balance in line with the expectations of the New Zealand public.

A look at our chief security overseer at Stuff: National Portrait: Inspector-General of Intelligence and Security Cheryl Gwyn

Gwyn is the official spy watchdog, and she bites.

Gwyn has begun a series of inquiries which ask dangerous questions about both the SIS and the other intelligence agency, the GCSB.

Did the GCSB use its powers to help former Trade Minister Tim Groser in his (unsuccessful) bid to become head of the World Trade Organisation?

Were New Zealand spies involved with the CIA’s torture of prisoners between September 2001 and January 2009?

Does the GCSB snoop on the communications of New Zealanders working or holidaying in the South Pacific?

This could be a breach of the law preventing the GCSB from bugging New Zealand citizens or permanent residents. It was the bureau’s illegal bugging of permanent resident Kim Dotcom that lit a firestorm under the GCSB.

Claire Trevett on Michael Cullen and the review: The ex-politician who came in from the cold

Cullen proved the perfect man to front the report for the Government. His own lengthy tenure as Deputy Prime Minister and Attorney-General meant he was well aware of the type of information the intelligence agencies provide, and the importance of that information for a government.

He told the spy agencies to up their game when it came to public relations if they wanted to reduce public scepticism about their role. He then proceeded to do that PR for them, running through a list of threats to New Zealand from domestic attacks to cybercrimes. He spoke of whether the GCSB could help if a New Zealander was lost at sea or taken hostage – hypothetical situations but based on actual risks New Zealand had faced.

That it also makes it harder for Labour to quibble with the recommendations put forward is almost the only the cherry on the top.

If we are to achieve better security and better privacy it’s essential for both National and Labour to work together on this without partisan sniping. They will both at times be in the most responsible position for providing security for the country and protection of us, the citizens.

GCSB watchdog working – inquiry into foreign intelligence activities

Cheryl Gwyn, the GCSB watchdog (Inspector-General of Intelligence and Security) has initiated and announced an inquiry into the way the GCSB undertakes foreign intelligence activities.

It’s good to see Gwyn proactively doing her job. She won’t be able to report publicly on specific details but should assure us in general that her watchdog role is working as it should be.

MEDIA RELEASE

Inquiry into the Government Communications Security Bureau’s process for determining its foreign intelligence activity – 14  May 2015, 3.00pm

The Inspector-General of Intelligence and Security Cheryl Gwyn has commenced an inquiry into the way the Government Communications Security Bureau (GCSB) considers undertaking foreign intelligence activities.

The inquiry is in response to issues recently raised around a Minister of the Crown’s bid to become Director-General of the World Trade Organisation.

“I consider the issues raised about the process followed when the GCSB considers undertaking particular intelligence activity are of sufficient public importance to warrant an own motion inquiry,” Ms Gwyn said.

“While it is unlikely that I will be able to publicly confirm or deny the specific allegations relating to this process, I can inquire more generally into how the GCSB determines, within its statutory constraints, what intelligence activity to undertake and what policies and procedures are in place to regulate its activities.”

The Inspector-General has initiated the inquiry under her own motion powers pursuant to sections 11(1)(a) and (ca) of the Inspector-General of Intelligence and Security Act 1996 rather than in response to a specific complaint.

The following questions frame the inquiry. They relate to the amended Government Communications Security Bureau Act 2003 which was not in force at the time of the specific alleged events. In contrast to its predecessor, the amended Act provides explicitly for the safeguards of political neutrality and the involvement of the Commissioner of Security Warrants.

The Inspector-General will approach the inquiry in terms of the following questions:

  • how the GCSB determines whether proposed foreign intelligence activity falls within its statutory functions and within New Zealand’s particular intelligence requirements;

  • whether and how the GCSB assesses the benefits and risks of the proposed activity;

  • where there may be any issue of potential or perceived political advantage, how the GCSB identifies and manages any issue that may arise from its duty of political neutrality; and

  • how the GCSB keeps the responsible Minister(s) and the Commissioner of Security Warrants informed, and ensures effective ministerial oversight, particularly where the proposed activity involves a potentially contested assessment of the international relations and well-being and/or the economic well-being of New Zealand.

“I have notified the Acting Director of the GCSB of my inquiry and she has assured me of the Bureau’s full co-operation,” Ms Gwyn said.

The Inspector-General will provide a report of her broad findings to the public at the conclusion of her inquiry.

Notes:  The Inspector-General’s office will advise of the likely timing of release of the inquiry report once that is known, but the Inspector-General does not expect to make any other public statements on this inquiry until the inquiry is concluded.

About the Inspector-General of Intelligence and Security

The Inspector-General of Intelligence and Security is an independent statutory officer, appointed under warrant by the Governor-General to provide oversight of the GCSB and the New Zealand Security Intelligence Service, to assist responsible Ministers in ensuring that those agencies act lawfully and with propriety, and to undertake independent investigation of complaints.

The powers and functions of the office were expanded by legislation in late 2013, and its resources significantly increased, with provision for the appointment of a Deputy Inspector and a standing investigative staff. The Inspector-General’s functions and powers include a requirement to conduct an ongoing programme of review of procedures and compliance systems of the intelligence and security agencies. That review work involves scrutiny of warrants and authorisations that have been granted to each agency by responsible Ministers and the Commissioner of Security Warrants and also more focussed review of particular operational activities and the agencies’ governing procedures and policies.

GCSB oversight seen to be working

Better oversight of the GCSB was introduced a couple of years ago. It is seen to be working.

The Inspector-General of Intelligence and Security, Cheryl Gwyn, will commence an inquiry into complaints over alleged interception of communications of New Zealanders working or travelling in the South Pacific by the Government Security Communications Bureau (GCSB).

The complaints follow recent public allegations about GCSB activities. The complaints, and these public allegations, raise wider questions regarding the collection, retention and sharing of communications data.

“I will be addressing the specific complaints that I have received, in accordance with the Inspector-General of Intelligence and Security Act 1996. But there is also a clear need to provide as much factual information to the complainants, and to the wider public, as is possible.”

“For that reason, I have decided not only to investigate the complaints but also to bring forward and expand the relevant parts of my ongoing programme of review and audit of GCSB procedures and compliance systems. That review programme operates at a systemic level and doesn’t, of course, scrutinise or second-guess every day-to-day aspect of the GCSB’s operations: what it does allow for, as in this instance, is a focussed review of a particular area of GCSB or New Zealand Security Intelligence Service practice.”

This in part has been initiated by the Greens who are being effective as an opposition party.

It’s ironic that the Greens strongly opposed the law changes that amongst other things introduced this much better oversight.

One aspect of this though is that the Hager claims are all historic dating prior to the legislation changes. The inquiry may find that things have changed for the better adequately.

About the Inspector-General of Intelligence and Security

The Inspector-General of Intelligence and Security is an independent statutory officer, appointed under warrant by the Governor-General to provide oversight of the GCSB and the New Zealand Security Intelligence Service, to assist responsible Ministers in ensuring that those agencies act lawfully and with propriety, and to undertake independent investigation of complaints.

The powers and functions of the office were expanded by legislation in late 2013, and its resources significantly increased, with provision for the appointment of a Deputy Inspector and a standing investigative staff. The Inspector-General’s functions and powers include a requirement to conduct an ongoing programme of review of procedures and compliance systems of the intelligence and security agencies. That review work involves scrutiny of warrants and authorisations that have been granted to each agency by responsible Ministers and the Commissioner of Security Warrants and also more focussed review of particular operational activities and the agencies’ governing procedures and policies.

The inquiry will be very interesting.

Goff apologises, media warned over leak

Phil Goff has given a “full and unreserved” apology for leaking details of the Gwyn report. And the media has also been warned, presumably for their complicity.

Goff apologises for leak

Labour MP Phil Goff will not face any sanctions for leaking the details of a report by the spy watchdog a day before it was publicly released.

Inspector-General of Intelligence and Security Cheryl Gwyn said this morning she had accepted Mr Goff’s “full and unreserved” apology.

“The Inspector-General will not take the matter any further,” she said in a statement.

Mr Goff breached a confidentiality order last month by disclosing details about her report on the Security Intelligence Service’s release of information to blogger Cameron Slater.

Ms Gwyn said no classified information was disclosed, but Mr Goff’s leak led to premature media reporting on the content of the report, “to the detriment of other witnesses to the inquiry, particularly those adversely affected by the report”.

This looks like a warning slap over Goff’s knuckles and a warning that tolerance of political leaking has changed substantially. Goff has a record of leaking with impunity over the years.If he does it again it would deserve severe sanctions.

The Inspector-General would be taking steps to ensure greater clarity around release protocols for future reports, and had also written to media organisations to remind them of their obligations under the Inspector-General of Intelligence and Security Act.

“The Inspector-General has significant powers to inquire into sensitive matters, and make adverse findings which may have a material impact on individuals.

“The obligations around confidentiality are necessary to ensure natural justice and fairness. It is important these obligations are respected.”

And that looks like a strong warning to the press, who have been complicit in leaks probably since Gutenberg’s day.

The media have a responsibility to be fair in their reporting. They knowingly reported cherry picked aspects of a report they would have known was still confidential, in effect enabling Goff’s illegal misuse of the report.

The Inspector-General seems intent on enforcing compliance and has effectively warned Goff (and all MPs) plus the media.

If reports are leaked illegally in the future strong action will need to be taken against offenders or we will revert to impunity as usual.

It’s worth remembering Goff’s initial reaction to his leaking of the report:

“I gave an outline of some relevant points that I said cleared my integrity,” he told Radio New Zealand.

“What I did was perfectly appropriate. If the journalists decided to run information given to them in confidence, then you should raise it with your colleagues.”

Without apology he openly admitted leaking and tried to blame it all on the media.