NEW LAWS: A VERY NASTY PACKAGE DEAL
- Murray
Horton
In recent years there has been a steady drip drip drip of
new laws expanding and refining the powers of NZ’s Intelligence agencies. Taken
individually they are bad enough but when you look at them as part of an
ongoing process, the whole picture becomes much more alarming. In the 1990s we
had two amendments to the Security Intelligence Service Act (one forced on
legislators by the bungled SIS break-in at the home of Christchurch political
activist, Aziz Choudry). PR 23 (June 2001)
highlighted the new Bill to legitimise the existence (since 1977!) of the
Government Communications Security Bureau (GCSB), which runs the Waihopai and
Tangimoana spybases. The same issue ran a lengthy analysis of the Supplementary
Order Paper Number 85 to the Crimes Amendment (No. 6) Bill, more popularly
known as the Swain Bill (named after Paul Swain, the
Minister of Information Technology and Associate Minister of Justice). There
have been further developments with both those Bills. And then, from nowhere,
and in direct response to the global security hysteria following the September
11 terrorist atrocities in the US, came the new Terrorism Suppression Bill.
GCSB Bill
We’ll start with ABC’s June 2001 submission on the GCSB
Bill, written by Bob Leonard. This Bill was rushed through the Intelligence and
Security Committee, which is a committee of Government and most definitely not
of Parliament (i.e. it is not a Select Committee). Its members are those senior
politicians nominally in charge of, and in the know about, NZ’s Intelligence
agencies. Currently they are: Helen Clark, Prime Minister and Minister in
Charge of the SIS (and of the GCSB under the new Bill); Jim Anderton, Deputy PM
and Alliance Leader; Michael Cullen, Labour Deputy Leader; Bill English, Leader
of the Opposition and National Leader; and Richard Prebble, ACT Leader. ABC
asked to be heard on this Bill. Unfortunately that came up whilst Bob Leonard
was on a family holiday in the US; the Committee refused to come to
Christchurch, or to accept phone submissions. The Bill has been duly passed and
comes into effect in early 2002.
ABC Submission On GCSB Bill
The Government Communications Security
Bureau has had only the flimsiest legal status since its mysterious inception
in 1977. Few knew of that inception and few knew the Bureau even existed for
many years thereafter. So the Anti-Bases Campaign felt somewhat positive for a brief
time after learning that the GCSB might have its own Law in the near future. We
even “celebrated” at our annual demonstration in January 2001 at the Waihopai
station. But the reality of the Bill is nothing to celebrate: it provides no
clear understanding of the real purposes and methods of operation of the GCSB,
and it provides no protection for the people of New Zealand and our Pacific
neighbours from the intelligence abuses of the GCSB.
As your committee may be aware, the
Anti-Bases Campaign has campaigned for many years against the existence of the
GCSB and its electronic signals interception stations at Waihopai and
Tangimoana.
Our position is simple:
· that the GCSB and its facilities do not operate in the interests of Aotearoa/New Zealand and should not be given legal status by the proposed Bill.
· the GCSB and all its ties to overseas Intelligence agencies should be terminated and the Waihopai and Tangimoana stations should be closed immediately by our Parliament.
We support our position with the following
brief summary of key points:
(1) The GCSB is a party to the UKUSA
Agreement making it an intimate intelligence partner with sibling agencies in
the United States, the UK, Canada and Australia. The intelligence links among
these agencies are automated, giving New Zealand no control over the use of
intercepts produced in this country at Waihopai and Tangimoana. There has never
been a denial by any government or agency official of the truth of this
allegation. This total lack of New Zealand control over communications
interception makes a mockery of assurances to the contrary.
(2) Oversight of our Intelligence
agencies is a facade. With the best of intentions, no Government committee and
no Inspector-General of Security and Intelligence could possibly oversee the
inner workings of New Zealand’s Intelligence activities. Those activities are
carried out in complete secret under the rules set by the National Security
Agency (NSA) of the United States. Nobody outside the Intelligence community,
including so-called oversight personnel, have total access to the operational
details of the GCSB. This fact is admitted in the Government’s own recent
publication “Securing our Nation’s Safety” (see
PR 23 for details of this booklet. Ed.).
(3) Ineffective oversight leads to
abuses. The worst abuse is likely to be domestic spying on our own citizens.
Mike Frost of the Canadian Communications Security Establishment (CSE), the
only NSA-trained spy ever to reveal his firsthand experiences in signals
intelligence, demolishes the concept of effective oversight. (See Frost’s book,
“Spyworld”, Doubleday, 1994). The GCSB has long denied that it engages in
domestic spying. But Frost says it’s endemic to the profession. The so-called
Swain Bill will only increase domestic spying by the GCSB, again without saying
a word about how that spying might be done. But we know how it’s done at
Waihopai, by the interception of stray satellite communications over a vast
area of the Pacific.
(4) Allegations are rife around the globe
that the UKUSA intelligence agencies engage in industrial espionage via
electronic interceptions. Mike Frost has written from a position of personal
experience (19 years with the CSE and extensive training with the NSA) that the
NSA and its sibling agencies spy on everybody. The Americans even spy on the
Canadians. Embassy interception, long established in the NSA and CSE, and
satellite spying on neighbouring nations focuses on government and diplomatic
communications. The potential damage to New Zealand’s relations with its
neighbours because of Waihopai’s activities is enormous. Now that the Echelon
cat is out of the bag, keeping our spying secrets is going to be increasingly
difficult (see the interim report of the Echelon investigation by an official
committee of the European Parliament).
(5) The GCSB Bill would confer an aura
of legitimacy on the Bureau that it simply does not deserve. How can an agency
be deemed to operate under the laws of the land when it is exempted from
certain provisions of the Privacy Act, when it is exempted from some provisions
of the Crimes Act, when its methods of operation are closed secrets except to
the exclusive brethren within the international Intelligence community? Our
Parliament, our Intelligence and Security Committee, and our Inspector-General
of Intelligence and Security know next to nothing about the GCSB, about
Waihopai, about Tangimoana. What they can know is only what the GCSB, under the
watchful eye of the NSA, chooses to reveal. Nothing can be revealed under the
laws of New Zealand. The GCSB Bill must not be passed. It is worse than useless
in that it pretends to be something it is not – legislation to bring the GCSB
under the rule of law.
This
was analysed at length in PR 23 and we
refer you to that, rather than rehash it all here. We also suggest that you
read ABC's submission on the BiIl.
The Law and Order Select Committee duly
reported back and, just as predictably, took not one bit of notice of the
numerous submissions received against the Bill. It was passed unchanged. Some
quotes from the Committee’s report will suffice: “…We consider that (it)
preserves, but does not expand, the current powers of the SIS…Without an
exemption (from laws prohibiting
interception of communications. Ed.), the ability of the SIS to perform its
functions will be compromised…Under clause 16B(5), the GCSB is exempt from the
offence in section 216B of the Act that prohibits the use of listening devices to
intercept private communications. This in effect preserves the existing
exemption held by the GCSB for its Waihopai site, and extends the exemption to
cover all interception devices operated by the GCSB. This means that the
exemption is no longer site specific…We consider the exemption in clause 16B(5)
is necessary in order to preserve the existing foreign Intelligence collection
capabilities, for which no warrant is required. Placing the exemption in the
statute will increase public transparency in relation to the Waihopai facility
and, by extending the exemption to the other sites operated by the GCSB will
avoid the risk that they may have to cease operations in order to avoid
committing an offence…We consider that overall the Bill and the Supplementary
Order Paper will strengthen privacy protection and does not significantly
increase the powers of the State to intrude on individual privacy…While certain
State agencies will be exempt from criminal liability in some circumstances,
these exemptions relate either to existing powwers or to activities that these
agencies could presently undertake without specific authorisation. The
exemptions are also placed on a clear statutory footing and are supported with
appropriate safeguards”. So there you have it, we have nothing to worry about.
If only. The Act is due to come into force in February 2002.
Green MP Keith Locke, who had
campaigned hard against the Bill, said: “Basically there is no concession to
the genuine widespread public feeling that interception of electronic
communications is very dangerous. The potential for fishing expeditions is
quite dramatic. Key word searches can be used and there is the potential for
huge invasions of privacy involved in remote access of people’s computers” (NZ Herald, 21/7/01; “Clearance for
e-mail snoops”). Alan Marston, the owner of Auckland-based Internet Service
Provider, PlaNet, called it “draconian and undemocratic” (ibid).
Thus far there is no sign of its
necessary companion piece, the amendment to the Telecommunications Act, which
will spell out just how these electronic interceptions will be done. But
doubtless it won’t be far away.
Terrorism has never been a big issue in New Zealand, despite the attempts by diehards over the decades to depict all manner of political activists as “terrorists”, from Maori land right occupiers and anti-1981 Springbok Tour protesters, to, more recently, anti-genetic engineering and anti-globalisation protesters. The only bona fide acts of terrorism in recent history – the murderous 1980s bombings of the Wellington Trades Hall and the Rainbow Warrior – were both committed by people from quite the other side of the argument (French Intelligence agents in the latter case). By comparison with political struggles in much of the rest of the world, little old New Zealand has been very tame indeed (and a good thing too).
So, when the Government introduced the Terrorism (Bombings and Financing) Bill into Parliament, in early 2001, there was zero public awareness of it. Nobody (including us) had heard of it, there were no submissions. But suddenly, after the September 11 atrocities in the US, terrorism became the global buzzword. Talkback rednecks, who seethed with resentment at the favourable TV documentary coverage given to the anti-1981 Tour protesters in its 20th anniversary year, pointed out that protesters then had used (light) aircraft as real or threatened weapons against rugby crowds and were therefore on a par with the suicide hijackers and mass murderers of September 11. Anti-globalisation protesters worldwide were branded terrorists. And in country after country, starting with the dreadful Patriot Act in the US, extremely repressive laws were rushed through, in a wave of war hysteria and gibbering fear mixed with a bloodcurdling demand for revenge.
Lo and behold, New Zealand’s Labour/Alliance government (which fell over itself to offer military assistance to the US in the global “war on terrorism” and put the Army in charge of NZ airport security), suddenly whipped out this utterly obscure Bill and declared that it was obliged, by a globally binding United Nations resolution to fight terrorism by all available means, to rush it through with no debate, no public submissions, and all within a week. It was prepared to receive submissions from a handful of Government-selected organisations. This was the nadir of the terrorism hysteria that started in New York and Washington and swept around the world like a tsunami of irrationality, washing up on the far flung beaches of New Zealand.
Once again, to their great credit, only
the Greens opposed it. Keith Locke MP who has consistently campaigned against
all these laws said, in a Parliamentary speech (7/11/01):
“…The Minister (of Justice, Phil Goff)
outlined a broadening of the definition of terrorism, going beyond planting
bombs and killing people to damage to property and disruption of
infrastructure. This broadening of the definition can be very dangerous.
According to Phil Goff, causing ‘major economic loss’ is covered in the
definition of terrorism. And as we all know the whole point of a union strike
is to cause enough economic loss to the employer, private or public, to
convince them to give ground to workers.
“Many strikes could be defined as
causing major economic loss and disrupting infrastructure, particularly if they
are technically illegal, like political strikes or wildcat strikes. Do we want
a society where unionists are considered terrorists?
“The process of designating terrorists,
as described by Mr Goff, without them necessarily ever being brought to trial,
is also a can of worms, and scary to the public. I remember one Robert Muldoon
(Prime Minister 1975-84), who was quite happy to label anti-Springbok tour
protesters traitors, and Nelson Mandela’s (South) African National Congress
(ANC) a terrorist organisation. If he’d been a Minister allowed to designate
which groups were terrorist, many New Zealanders would have gone to jail.
“The new provisions are on financing
terrorism and recruiting to terrorist groups. Robert Muldoon could have had
people thrown in jail for joining up people to Halt All Racist Tours (HART, the major anti-apartheid,
anti-sporting links, non-violent direct action group of the 1970s and 80s. Ed.)
if he designated it terrorist, or for sending money to the ANC in South Africa,
if he designated that terrorist. I mention Robert Muldoon because law has to be
written with the most authoritarian leaders in mind, not the more democratic
ones. When you have broad definitions of terrorism, it depends very much on the
politics of the Government implementing them who are defined as terrorists and
who are defined as freedom fighters.
“Would our present Government define those who use bombs against Saddam Hussein or the Taliban as terrorists? I doubt. They would call them freedom fighters. Yet they might label the Tamil Tigers or the Free Papua Movement guerrillas terrorists because New Zealand is friendly to the Sri Lankan and Indonesian governments.
“Another problem with anti-terrorism
legislation being passed in countries around the world is that so much of the
designation of terrorists is being done with secret information, which the
accused cannot bring out into the open and challenge fully in a court. This is
a serious fear I have about the anti-terrorism bill before this Parliament.
“Because of its potentially huge impact
on civil liberties and the right to dissent, it is crucial that the new
sections in this bill come under the greatest possible public scrutiny…”
Well, thanks to both public outcry and the media starting to take an interest in the subject (for example, see Gordon Campbell’s excellent article “Eternal Vigilance”, in the Listener, 17/11/01), the Government backed off slightly and dropped the one week deadline and the handpicked groups. The Bill – since renamed the Terrorism Suppression Bill – was opened up to public submissions but the deadline was only a few weeks. The Foreign Affairs, Defence and Trade Select Committee heard them in December 2001, in Wellington only. Bob Leonard sent one in on behalf of ABC. We asked to be heard, in Christchurch, but our request was ignored in the stampede to get it passed.
The best critique of the Bill was written by David Small, somebody who knows what he’s talking about, from personal experience. He and Aziz Choudry were the central figures in the mysterious 1996 chain of events in Christchurch centring on David catching Security Intelligence Service agents breaking into Aziz’s home, and being raided by the Police for his troubles. In 2000, David Small, representing himself, successfully sued the Attorney-General (i.e. the Government) in relation to that raid. These events have been extensively featured in Peace Researcher from 1996-2001 inclusive.
It can be found on the Website of ARENA
(Action, Research and Education Network of Aotearoa), where there is a whole
Webpage devoted to articles and statements about the Terrorism Suppression
Bill. The address is: www.arena.org.nz
At the time of writing this is very much a live issue. We will keep you posted on it. Even its title is ominous, having shades of the evil old apartheid South Africa, which surrounded itself with catch-all laws emphasising the suppression of “terrorism” and “Communism” (which, in practice, were used to imprison, torture, exile and harass all and any opponents of the regime). But it’s worth reiterating that this is only the latest in a very nasty package deal of repressive and intrusive laws stretching back to the mid 90s. The pattern, under both National and Labour governments, is the same – more powers for secret spy agencies and the State; less rights for the people. What’s that old saying about the price of liberty being eternal vigilance?
ABC Submission
On The Terrorism Suppression Bill
The
Anti-Bases Campaign and its predecessor (Citizens for the Demilitarisation of
Harewood) have a nearly 20-year history of active opposition to American
military and Intelligence bases in Aotearoa/New Zealand. This domestic
opposition has not escaped the notice of the American Embassy in Wellington and
thus the American government in Washington DC. The names and details of our
members (active and former) will have been entered into the files of the Police,
the New Zealand Security Intelligence Service (SIS), the Government
Communications Security Bureau (GCSB), the American Central Intelligence Agency
(CIA) and the American National Security Agency (NSA). It is likely that our
home and business telephones are bugged and it is a certainty that our
international communications via telephone, email, and fax are routinely
intercepted by the satellite spy base at Waihopai.
Because
of our opposition to significant aspects of the domestic and foreign policies
of the New Zealand and American governments we are very likely to have been
designated as threats to the established order. Thus we, and thousands of
dissenters like us, have every reason to oppose the Terrorism Suppression Bill
in its present form. We oppose the suspension of democratic and legal due
process if this bill is passed into law. We fear that those who question or
dissent from Government policies, especially as they relate to the tragic
events of September 11 in the United States, could lead to suspension of civil
rights and perhaps even imprisonment based merely on suspicion and
innuendo. That is precisely what is
happening now in the United States on the basis of racial profiling. Our other
dominant partners in military/intelligence cooperation (Australia, Canada and
the UK) are proposing even more draconian legislation.
1. Defining Terrorism – Licence To Suspend Due
Process
The
terms “terrorist” and “terrorist act” cannot be precisely defined because they
depend heavily on context. The framers of the Terrorist Bill have tried to
circumvent this problem by interpreting and defining terrorist acts very
broadly and with unworkable, and even bizarre, implications.
·
“Terrorist act in armed conflict” (Section 4) is interpreted
as “…an act…the purpose of which is to intimidate a population, or compel a
government or international organisation to do or abstain from doing any act”.
This interpretation applies to the war on Afghanistan conducted by the American
government and military. Is this the intent of the New Zealand government? We
think not since the wording is almost identical to that in the American Patriot
Act. Although the ABC, and similar activist organisations, would not expect to
fall prey to this designation, it illustrates the utter uselessness of the
interpretation.
·
Subsections (3 c, d, and e) in Section 5 refer to
unjustifiably broad outcomes of a terrorist act. Damage to property, interference with infrastructure, damage to
the national economy are defined only by certain vague adjectives, like
serious. These terms would give carte
blanche to the Prime Minister (with the Minister of Foreign Affairs) to
declare an act to be terrorist in intent. These paragraphs are among the worst
features of the Bill.
·
We are particularly concerned with the lumping of economic
disruption along with the generally accepted terrorist actions like bombing and
assassination because of the licence it gives to Government agencies to
increase covert and overt surveillance of “suspects”. The means to conduct
surveillance of New Zealanders by the SIS and the GCSB have recently been
increased by several pieces of legislation (see
above. Ed.). The Terrorism Bill would greatly increase the motivation of
these agencies to invade the privacy of ordinary people. Why? Because “good
cause to suspect” a person or group is all the motivation needed. “Good cause”
is totally undefined in the Bill.
Subsection 4
of Section 5 is somewhat positive in that the scope of the Bill excludes
certain types of protest and dissent. ABC is a totally non-violent activist
organisation whose members and activities may fall under the provisions of
Subsection (4)(a). But protest and civil disobedience are subject to
interpretation as to their intent and participants could find themselves
labeled as engaging in terrorist acts at the whim of the Police or other
enforcement agency in the heat of confrontation. The burden would then appear
to fall on the accused to prove their innocence. Our society should not
tolerate the abrogation of the basic legal assumption that one is innocent
until proven guilty. Political suspicion is all that is necessary to sweep a
victim into the terrorist net with only the right of legalistic, not
evidential, appeal to the Inspector-General of Security and Intelligence, not
to a court of law.
The Anti-Bases Campaign strongly
objects to the setting aside of due legal process in the name of fighting
terrorism. All kangaroo court provisions must be removed from the Bill. We
challenge the Government to provide any compelling evidence from anywhere in
the world that such draconian “anti-terrorist” measures are effective. A recent commentary from former American Federal
Bureau of Investigation (FBI) officials is highly relevant:
“The
aggressive FBI dragnet -- championed by Attorney General John D Ashcroft -- has
provoked much commentary and criticism for its impact on civil liberties. Now,
in a series of on the record interviews, eight former high ranking FBI
officials have offered the first substantive critique of the Ashcroft program,
questioning whether the new approach will have the desired effect. The
executives, including a former FBI director, said the Ashcroft plan will
inevitably force the Bureau to close terrorism investigations prematurely,
before agents can identify all members of a terrorist cell. They said the
Justice Department is resurrecting tactics the Government rejected in the late
1970s because they did not prevent terrorism and led to abuses of civil
liberties”.
Subsection 4
begs the question - How are determinations of terrorist intent to be made by the
powers that be, and the Prime Minister in particular, in view of her central
role (inevitably politically biased) in designating terrorist acts? We suggest
that invasions of personal privacy are likely to increase substantially if this
bill become law.
In an atmosphere of panicked reaction to the threat of terrorism, governments are rushing through disastrous regulations, followed by ill-considered legislation. With a nod from an all-powerful (but not all-knowing) authority, Intelligence and enforcement agencies will increasingly ride roughshod over basic human rights and ignore civil liberties, with little or no effect on terrorism.
What
would it be like to swept into the grip of mindless terrorist law, of unbridled
police power? A Texas lawyer, Paul Coggins, published his nightmare on the
Internet on 21 November 2001. We urge the committee members to put themselves
in his nightmare. Is this the road down which New Zealand is trodding?
(abridged)
“I toss in an unfamiliar
bed. Strange bed. Strange room. Strange town. Strange country. A stranger in a
strange land, I sleep fitfully in a country not my own. The hotel door bangs
open. Heavy boots shake the room as armed soldiers surround me. Angry voices.
Blinding lights. Paralyzing panic. Groggy, I am slow to react. Too slow. Rough
hands jerk me off the bed and onto the hard floor. A boot presses on my spine
and another on my neck. Face down, I am pinned to the floor. My hands are
cuffed behind my back, so tightly that my arm sockets burn with pain. Under the
cover of night, I am whisked to a solitary cell in a maximum security prison.
My pleas for a phone call are ignored. I have not been allowed to contact
family or friends. I'm terrified that my wife and daughter are worried about
me. My requests to see a lawyer also fall on deaf ears. The only people I see
are my captors. Every day they haul me into an interrogation room to grill me
with questions. No one on the outside knows where I am or if I'm alive. Down to
a flicker of hope, I am spirited in the night to a new prison, hundreds of
miles, maybe thousands of miles from my old cell. Disoriented by frequent moves
and forced isolation, I forget where I am, what country is holding me. Am I a
political prisoner in South America? Eastern Europe? Southeast Asia? Have I
joined the swelling ranks of ‘los desaparecidos’, the disappeared ones? I'm not
in South America, Eastern Europe or Southeast Asia. I am a prisoner in the
United States. I have been branded a terrorist suspect, though the basis for
the suspicion may be vague, flimsy or not spelled out at all. Forget the books
and movies. There is no phone call from prison, no lawyer in the visiting room
and no judge watching over my case. There are only captors, questions and
solitary cells”.
4. Bin The Bill
The
Terrorism Suppression Bill is unnecessary. It should be binned. Terrorism is
obvious to all when it occurs, whether it is the destruction of skyscrapers in
New York or the destruction of homes and hospitals in Afghanistan. In a free
and democratic society terrorism must be dealt with under the rule of law. Existing criminal law in New Zealand is
adequate to cover acts of terrorism, should they take place here.
New Zealand is not America. We may not yet be the subject of intense hatred by the victims of western exploitation of the developing world (although sending our Special Air Service - SAS - troops to help fight America’s war is immoral and invites that very hatred).
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