Legal blunder left 6 month NZSIS surveillance gap

Some journalism continues under the noise of media click baiting and copy/pasting and repeating.

David Fisher at NZH: Our spies disarmed by legal blunder amid ‘high threat operations’ against terrorists

A law-making bungle deprived our spies of a key weapon against terrorism in the wake of classified briefings warning of “an increasingly complex and escalating threat environment” in New Zealand.

NZ Security Intelligence Service documents revealed the blunder left our spies unable to use video surveillance tools to watch terrorism suspects in their cars, homes or workplaces for six months last year.

The documents, declassified and released through the Official Information Act, also revealed our spies have been involved in “high threat operations”.

It did not state what those operations were and NZSIS director-general Rebecca Kitteridge, in an interview with the NZ Herald, would not elaborate other than to say they involved police assistance.

She would not give details of the operations but said the NZSIS had taken active steps with the police to stop people who wanted to carry out terrorist attacks in New Zealand.

The details about the security situation in New Zealand is an unnerving backdrop to the blunder over warrants allowing visual surveillance.

Kitteridge revealed the hole in the law to former NZSIS minister Chris Finlayson last year.
In a memo on June 30, she said “the NZSIS no longer had the power to apply for a visual surveillance warrant” or to use emergency power to act without a warrant in emergencies.

The memo said warrants to allow visual surveillance were to “detect, investigate or prevent a terrorist act”.

But she said the NZSIS was unable to do so for six months after the old law expired on April 1 2017 because the new Intelligence and Security Act did not apply until September 28 2017.

Finlayson said he had gone through the law change “clause by clause with officials” and had told them “they had one last chance to indicate any concerns they may have had”.

“There were none.”

Finlayson said Parliament was in its closing stages prior to the election and he had “no intention of trying to ram stop-gap remedial legislation through the House”.

The new NZSIS Minister supports Finlayson’s judgement.

NZSIS minister Andrew Little said he supported Finlayson’s exercise of judgment and would have made the same decision.

A follow up at Newsroom: Officials to blame for spy law blunder – Finlayson

Former spy minister Chris Finlayson has thrown government officials under the bus for a blunder which deprived Kiwi spooks of visual surveillance tools, saying they would have been to blame had a terrorist attack occurred.

Speaking to media on Tuesday morning, Finlayson said he opposed an urgent law change due to the lack of time between the discovery of the blunder and the general election, coupled with criticism of his government’s previous use of urgency for intelligence laws and the drafting process for the new law.

“I had gone through that legislation, the draft legislation…clause by clause and I distinctly recall at the end of the meeting saying to people, ‘Right, state any further concerns or forever hold your peace, end of story’.”

There were “other mechanisms” that could have been used to cover the lack of visual surveillance powers, he said.

While the NZSIS had not explicitly raised the prospect of an urgent legislative fix, he believed Kitteridge’s briefings were “a precursor” to such a request.

Asked who would have been to blame had a terrorist attack occurred during the six months the NZSIS was without the powers, Finlayson replied bluntly, “They [the officials] would have been.”

Additional support from Little:

Current NZSIS Minister Andrew Little backed Finlayson’s decision to oppose urgent legislation, and said he did not believe New Zealand had been markedly more vulnerable during the six-month period.

“The security and intelligence agencies have a number of means and mechanisms to keep tabs on people who are regarded as a risk: visual surveillance is one of them, but in the relatively short period of time that they didn’t have access to powers to do that they were able to cover their needs off through other means,” Little said.

It’s difficult to know whether any damage was done by this blunder, but the danger period has now passed.

About the NZSIS – how secret?

I did a search on Google and this was the first hit:

NZSIS - About

And when I clicked on the link:

NZSIS - About link

Very funny.

However they aren’t as secret as that might suggest because this link works : http://nzsis.govt.nz/about-us/oversight/

(I went to the home page of their website, clicked in About and clicked on Oversight).

Secret services need more oversight

Both the GCSB interviews on The Nation this morning were very good. Sir Bruce Ferguson stayed out of the political mire and made well informed points. Lawyer Mai Chen was also a very good addition to the GCSB debate.

We can’t have a public inquiry of everything about the secret services as Labour wants, that would be ludicrous.

But as Ferguson accepts and Mai Chen strongly advocates, we need much stronger oversight, which means substantially improving the resources of the main means of oversight, the Inspector-General.

The Inspector-General of Intelligence and Security is charged by an Act of Parliament to assist the Minister responsible for a security and intelligence agency (traditionally the Prime Minister) in the oversight and review of that agency. In particular, the Inspector-General ensures that the activities of each agency comply with the law and that any complaints about an agency are independently investigated.

The Inspector-General is appointed by the Governor-General on the recommendation of the Prime Minister following consultation with the Leader of the Opposition.

The current Inspector-General is the Hon Paul Neazor.

http://www.dpmc.govt.nz/dpmc/publications/securingoursafety/overview

Mai Chen said the Inspector-General was a part time position with an annual budget of $130,000 – that needs seriously beefing up.

Is GCSB spying on me?

Ok, I realise they would only do it on behalf of the SIS, or the Police, or John Key, or David Shearer (what politician can you trust?) – but being paranoid seems to be the “Look at ME!” thing to do right now.

The Mana Party think they may be included in the 88 who have been allegdedly illegally spied on.

John Minto in particular seems to be starting to get suspicious – John Minto curious to know why house full of tiny microphones.

And Martin Bradbury wonders if  he’s a target in Did the GCSB spy on MANA members? Bradbury claims to have been the driving force behind Mana starting up after Pita Sharples wouldn’t let him lead the blogging for the Maori Party.

I have been critical of the Government and I helped argue for the creation of MANA – has the GCSB spied on me?

Am I threat to national security?

This week we have all become Kim Dotcoms.

Ah, not me, I did just eat a bit of chocolate but I’m not claiming to be anything like Dotcom yet.

Maybe Bradbury’s nickname is as good as inviting the SIS to his IP address but I just can’t see why any spooks would be interested in a benign middle of the road centrist like me.

I’m sensible. And the GCSB obviously doesn’t do sensible, they wouldn’t know sensible if it waved a red flag in front of their cyberspace.

And anyway, I’ve used GCSB as a tag that often lately they probably think I’m just another overblown blogger like Bomber.

Whoops, shouldn’t use that word, it might attract attention.

GCSB (“rogue agency”) needs strong oversight

Yesterday Parliament had an urgent debate on the current issues surrounding the GCSB after the release of the Kitteridge report. Much of the debate was political huffing and puffing with attempts at point scoring – especially from Grant Robertson – and defence of the Government by Bill English.

Russel Norman also did some political and paranoiac posturing but he also raised important points about oversight of the GCSB – or more pointedly, lack of oversight. He pointed the finger at both the present (National led) and previous (Labour led) governments.

So the National Party voted for the legislation as well as the Labour Party, which pushed it through, even though the Green Party at the time warned that if you set up spying agencies that do not have oversight, they will abuse their rights. And it has become so.

And that has enabled a “rogue agency” to continue to operate with grossly inadequate legal resources oversight:

The truth is, of course, that the Government Communications Security Bureau sees itself as ultimately answerable to the US spy agencies, and that is the problem; it is that the Government Communications Security Bureau is a rogue agency.

It does not report to anybody.

The Prime Minister does not know what is going on at the Government Communications Security Bureau, as the report illustrates. The Government Communications Security Bureau acts illegally, as the report illustrates—that is, as I think Bill English was just saying, it did not pay very close attention to its compliance with the law, to put it mildly; it acted illegally.

As the Kitteridge Report highlights, there have been serious problems.

It is an agency that does not really have any parliamentary oversight.

There is no parliamentary committee that looks over the intelligence services. There is the Intelligence and Security Committee, but it does not have any power to see what the Government Communications Security Bureau is doing.

There is the Inspector-General of Intelligence and Security, who has a woeful record of not providing any proper oversight of what the SIS and the Government Communications Security Bureau are up to, and it means that the Government Communications Security Bureau and the SIS are free to do as they want.

I very much doubt they are “free to do as they want” but there does seem to be serious deficiiencies in oversight and accountability.

There is only one democratically elected official who has oversight over the securities agencies, and that is the Prime Minister.

That’s not good enough.

If we are to have these kinds of draconian, authoritarian, dictatorial powers in the hands of a State agency that breach the highest levels of our rights and our freedoms, then there needs to be very strong oversight and very powerful justification for any agency to exercise these kinds of powers. There needs to be very strong oversight.

There’s a strong case for much stronger oversight than there has been.

It seems to me that if we are to protect freedom and democracy in our society, we have to keep the spy agencies in check in order to protect those fundamental rights and freedoms.

The present Government has clearly failed to do that, and, based on this report, it clearly appears that the previous Government failed to do that—to keep the spy agencies in check.

The Green Party will keep pushing to make sure that happens.

Labour are too engrossed in trying to bring down John Key and bring down the Government. They are more intent on selfish ambitions and this distracts from the most important aspects of the lack of oversight.

Gotcha politics gets in the way of addressing the important issues.

The focus should be on establishing much better oversight of our spy agencies, and better defining what they are doing. We need them, but we need to be able to trust them to act in the interests of the country – but within the laws of the country.

If the Greens push aside the political bull and push for positive change on oversight of GCSB and NZSIS they deserve all the support they can get.

And today’s NZ Herald editorial points out the same thing:

The bureau’s transgressions were the product of confusion arising from the 2003 GCSB Act, the sole source of authority and law within the agency. Its shortcomings were magnified by failures of oversight by successive GCSB directors, Inspectors-General of Security and Intelligence, and prime ministers Helen Clark and John Key.

It will, she suggests, take a year and a solid effort to address the culture at the bureau. It should take far less time for the Government to clarify the GCSB Act and address the failings of oversight. Anything less is untenable.

InTheHouse video of Norman’s speech: Urgent Debate – Release of report on the Government Communications Security Bureau – Part 3