Banging My Head Against SIS Wall Of Silence
- by Jane Kelsey
For many years activists were accused of being paranoid about surveillance by the NZ Security Intelligence Service (SIS) and other Government “intelligence” agencies. Even though we objected to their activities, we also treated them as a bit of a joke, pointing to the Sutch trial, the debacle over the meat pie and Playboy in the SIS briefcase and the failure to detect the French plot to bomb the “Rainbow Warrior” (the late Bill Sutch was acquitted of offences under the former Official Secrets Act in 1975, the only time anyone has been charged with anything arising from an SIS operation; in the 80s, an SIS agent left his briefcase, containing his ID, and the pie and girlie magazine on a Wellington street, outside the home of a journalist, who promptly made it public; the French State terrorists who bombed and sank Greenpeace’s “Rainbow Warrior” in Auckland Harbour, in 1985, killing one crew member, were caught by routine Police work, no thanks to the SIS. Ed.).
By the mid-1990s, with the end of the Cold War, many of us argued that the justification for the SIS had gone and the spy agency should be wound up. Instead, there has been a rapid accretion of powers by the State over the past decade, starting well before the “war on/of terror” in 2001. A number of developments mutually reinforced each other: the expansion of the issues that the SIS was mandated to monitor; the number of State agencies that were undertaking similar kinds of “intelligence” gathering; the additional resources that were made available to those agencies; and potential to use new technologies to cast the surveillance net far more widely.
These developments were possible because of a changing sentiment within Government, the media and broader community. The State’s role was no longer the protection of hard won rights and protections, weakly encapsulated in the 1990 Bill of Rights Act; its primary responsibility was the identification and suppression of enemies outside and within Aotearoa New Zealand. Any complacency we may have had about the declining role of the SIS disappeared when its agents were caught red handed implementing an interception warrant at Aziz Choudry’s house in Christchurch during the Asia Pacific Economic Cooperation (APEC) Trade Ministers’ Meeting in 1996. The case also exposed the intimate relationship between the SIS and the Police and the sham that the Inspector-General of Intelligence and Security would provide some independent accountability. The best summary of the Choudry case can be found in Peace Researcher 19/20, November/December 1999, “ AzizChoudry Wins Case Against SIS: Out Of Court Settlement; Damages; Government Apology”, by Murray Horton; http://www.converge.org.nz/abc/choudry.htm Ed.
Since Aziz’s successful case against the SIS, the powers of the State have not been wound back – they have expanded exponentially, as can be seen in the accompanying chart compiled by John Minto. How these powers are interpreted and applied has remained a closed book, at least until Dr Warren Tucker promised greater openness after he was appointed Director General of the SIS in 2006. In a media release dated February 9, 2009, Tucker related the policy on release of personal files to two sources: the rights to apply for information under the Official Information Act and Privacy Act; and the post-2003 archive policy to “proactively” declassify historical records and transfer them to the National Archive. Clearly, the policy was intended to signal a shift by the SIS away from the culture of paranoia about domestic political dissent.
In the press release Tucker reports that: “The greater openness by the NZSIS has been well-received. … NZSIS methods and information-collection priorities have altered over the years as the nature and perceptions of threats to security have changed. The practices of the NZSIS that are reflected in some of the personal files are of a different era. They were meticulous in detail and often included material that would not be included today”. (1)
“Examples of information withheld include still current operational techniques, the identity of agents, and other sources of information and NZSIS staff, and material provided by overseas liaison services where permission to release it has not been received. The NZSIS welcomes discussion from the individuals concerned and advises each recipient of a personal file that they may request the NZSIS to correct any incorrect personal information held on its files”.
He was also forthcoming about the number of requests received under the glasnost policy and how the SIS had responded: “In the 2008 calendar year 26 people were sent information about themselves drawn from NZSIS records. Thirteen other people were informed that no record of them could be found. A further 24 requests have been received so far this year (2009). These requests are still being processed but at this stage it appears that about half of the individuals are unknown to the NZSIS”.
The early response to requests for information under the Privacy Act suggested that perhaps the SIS was genuine about this change. The material provided from personal files was usually accompanied by lengthy and chatty letters. Keith Locke, John Minto, Maire Leadbeater, Sue Bradford, Murray Horton, Bill Rosenberg (for himself and his late parents), and Peter Wills received often quite bulky dossiers. Where documents were withheld, the SIS provided a helpful list that described the activity that the document related to. Much of this material dated from the Cold War era and a great deal of it was mundane. Some, however, related to the later 1990s and early 2000s. A number of people were told that they were no longer a person of interest to the SIS. For details of the SIS file on CAFCA – still the only organisational file to have been released, to our knowledge - see “SIS Spied On CAFCA For Quarter Of A Century”, by Murray Horton, in Watchdog 120, May 2009, http://www.converge.org.nz/watchdog/20/06.htmEd.
The overall picture was of a security service that relied extensively on informants, collated copious press clippings and meticulously cross-referenced documents on the files of individuals and groups of interest to them. The main focus within these files up until the 1990s was on groups that were associated with Communist or socialist parties and Philippines solidarity movements. In the mid-1990s it broadened to include economic issues and events, especially with an international focus.
SIS Lowers The Curtain
The positive tenor and presumption of openness that marks the SIS’s press release in February 2009 contrasts starkly with another that came five months later and signalled the end of glasnost.(2) By this time people with much lower or more limited activist profiles were receiving responses that invoked section 32 of the Privacy Act, which allows the SIS to neither confirm nor deny whether it holds personal information on the grounds that interests protected by sections 27 or 28 of the Act would be likely to be prejudiced by the disclosure of the existence or non-existence of such information. The primary interest under section 27(a) is that disclosure of the information would be likely to prejudice the security of defence of New Zealand or the international relations of the New Zealand government.
A statement on the application of section 32 accompanied the July 8, 2009 press release. A section 32 response “does not necessarily mean they are of security interest. Usually, they will be of no concern to the NZSIS at all”. So why not tell them that – as Tucker admitted was done with one third of those who applied in 2008? According to the SIS, people engaged in suspect activities may apply for their files to find out if the SIS is on to them. Hence: “The only way to ensure that there is no prejudice to security is to be consistent in responses between these two groups (i.e. subjects of interest and subjects of no interest), and to issue a ‘neither confirm nor deny’ response for both”. That begs three questions: is that policy applied across the board and if so, how does the SIS square it with the glasnost approach?; if it is not applied across the board, what are the criteria for deciding who will receive information and who will not?; and how does the SIS reconcile this rationale with the frequent affirmation to people who applied in 2008 that they were never, or are no longer, of interest to the SIS?
There is, of course, an alternative explanation that glasnost had created unanticipated fallout for the SIS and it now sought to reassert control. In part, the SIS may have been shocked at the sheer number of requests; it is notable that earlier in 2009 people received notification that the SIS was extending the time for their response, whereas later applications received a section 32 response. But the clampdown is also clearly a response to the adverse publicity about its historic and ongoing surveillance activities, notably those relating to sitting MPs like Keith Locke.
What is particularly interesting about how my request was dealt with? So far as I am aware, I am the only person who has pursued a complaint to the Privacy Commission to a final outcome. That experience confirms that the SIS continues to gather intelligence on lawful dissent, including the critique of neo-liberalism and globalisation, and this surveillance includes the activities of academics in the course of our employment. It also exposes the impotence of the Privacy Commission as an independent agency whose task is to ensure that the SIS only withholds material on grounds that are justified under the Privacy Act. We might not expect anything different from the SIS. However, I am deeply concerned that the Privacy Commission appears to be complicit in the surveillance of lawful dissent by the Security Intelligence Service.
I applied for my SIS file under the Privacy Act on November 18, 2008. The SIS responded on December 12 and refused to confirm or deny whether they held any information about me, citing section 32 of the Privacy Act. As required, they noted that I could complain to the Privacy Commission to seek an investigation of their decision. I did this on December 20, 2008, suggesting alongside a lot of legal argument that it seemed pretty obvious that the SIS did have a file - otherwise they would have said they did not (as they had done for others)!
Discussions then took place between the Privacy Commission and the SIS. Three months later a letter from Warren Tucker said he had reconsidered his response. He now conceded that a file did exist and enclosed three pages that had already been released to Green MP Keith Locke. However, releasing any further information would be likely to prejudice New Zealand’s national security – a valid ground under section 27(1) of the Privacy Act.
The Assistant Commissioner (Investigations) at the Privacy Commission wrote on March 17, 2009 to convey his preliminary view that the SIS had appropriately applied the section 27(1)(a) restriction. There was “in my view, a real or substantial risk that the release of the information would disclose knowledge about the NZSIS’s operations or capabilities or modus operandi and to do so, (sic) would have the effect of a prejudice to the endeavours of NZSIS. To qualify those statements further would be to in effect, (sic) release information or knowledge that would potentially disclose the information”. He also said that he would likely have supported the SIS decision to rely on section 32 and it was only abandoned because three pages had already been released to me.
This was described as a “provisional” response and led to a further round of correspondence and lengthy legal argument. I also asked for some basic information about when my file was opened, whether it was still active, when it was last added to and how many pages were on the file – information provided to fellow activists in 2008. It took another three months of discussion between the Privacy Commission and the SIS to generate a decision to uphold the SIS position. Even releasing the dates, first and last entries and how many pages or folders there are on the file could expose or prejudice the reason why the information was being withheld.
Moreover, the Assistant Commissioner volunteered an additional ground that it said the SIS could have relied on, but didn’t: section 27(1)(c) allows the SIS to withhold information whose release would be likely to “prejudice the maintenance of the law, in this case the Services (sic) ability to ensure the security of New Zealand was not compromised or breached”. In criminal law cases this is often interpreted as operating procedures relating to interceptions and high risk operations. The focus in the Privacy Commission’s letter on modus operandi, the refusal to disclose physical details about the file and the previous experience of interception devices in Aziz Choudry’s house strongly suggest the SIS are seeking to conceal the use of informants and/or interception devices in conducting their surveillance. The letter setting out the rationale for these decisions is a masterpiece of artful obfuscation, ambiguity and contradiction. However, it is clear from the detail in the letter that my file was not being withheld on the generic grounds cited in the SIS press release of July 8, 2009.
One of my arguments was that the Privacy Commission had to review every piece of information on my file to assess whether it could be withheld under section 27(1). The Assistant Commissioner (Investigations) insisted that he did and it was. I then set about reviewing as many files that were released to people as possible and found numerous other documents that also referred to me, often annotated by PF indicating they were on my personal file. Examples of this incendiary material include a legal aid workshop that I ran for people arrested in Auckland during the 1981 Springbok tour; an incorrect note that I may have been accompanying Keith Locke on a visit to the Philippines, when I led an investigation into vigilante killings in 1988; a transcript of a Radio New Zealand Checkpoint item on the Asian Development Bank meeting in Auckland in 1996, where I was extensively quoted in my capacity as “the NZ liaison person for some 30 overseas non-Government organisations concerned about Asian Development Bank (ADB) policies”; an article from Political Review that named me as the contact point for information on the APEC Forum and Parallel Programme for the ADB meeting; and an advertisement for a Global Peace and Justice Auckland public forum where I would speak on “Privatisation and Globalisation”.
Spying On Legitimate Dissent
Most people who have received their files were told that they contained extensive media clippings, although they were generally not provided with copies. It seemed obvious that a wad of media articles must also be on my file. Given that they are public documents, how could releasing them, or even acknowledging they were on my file, prejudice national security by revealing the SIS operations, capabilities or modus operandi? The summarised list of documents that were not released to people in 2008 give further insights into what must be on my file. The SIS recorded people’s attendance at protests, such as Waitangi protests in the 1980s, and at meetings related to activities like the Springbok tour, Philippines Solidarity Groups and organisation of anti-APEC activities. This kind of information clearly was not considered likely to prejudice national security when released to others who were engaged in similar activities; why suddenly so for me? It seems that the SIS stopped providing this information even where it did release documents from people’s files, partly because of the workload and because it would allow people to do precisely what I have done – work out what political activities the SIS were focusing their attention and challenge them for spying on legitimate dissent.
Another clear focus of SIS attention is on activities that challenge its own powers. A number of people’s files contain a list of people and organisations who made submissions on new SIS legislation in 1999. I have regularly made submissions on SIS and security legislation, and did so in 1999. Another document in CAFCA’s file notes that I, as Associate Professor of Law at Auckland University, spoke to a public meeting in Christchurch on recent expansion of SIS powers, in the context of the break-in at Aziz Choudry’s home in 1996. Again, these documents have already been released and cannot be likely to prejudice national security.
Three things are obvious from this analysis. First, the SIS mandate includes monitoring critics of the failed model of neo-liberal globalisation. In 1996 the SIS’s powers were amended by expanding the definition of security to include “the making of a contribution to New Zealand's international well-being or economic well-being”. Many people, including myself, warned that the SIS would use these powers against critics of the free market policies and free trade agreements. Indeed it became clear from the Choudry case that the SIS had already been using interception warrants to monitor APEC protests from as early as September 1995 – giving the lie to claims that the SIS bugs related to the presence of foreign activists in Aziz’s house in July 1996. It was also clear that the SIS held a Personal File on me that included APEC-related information.
After extensive submissions from many people, the SIS Act was amended in 1999 to restrict its mandate to “the identification of foreign capabilities, intentions, or activities within or relating to New Zealand that impact on New Zealand's international wellbeing or economic wellbeing”. The Act came into effect on September 1, 1999, ten days before the APEC Leaders Summit in Auckland. As an initiator and spokesperson for the APEC Monitoring Group, it seems obvious that my APEC-related activities, and probably my communications, were being monitored in the year leading up to the APEC Leaders Meeting in Auckland in 1999, if not during the meeting.
It is apparent from other files that the SIS has an ongoing interest in my critique of globalisation. Various files contain documents that relate to different aspects of neo-liberal economic negotiations, organisations and meetings, such as opposition to the Multilateral Agreement on Investment (MAI – proposed, but never implemented, in the 90s), the Asian Development Bank and APEC meetings in Auckland, and a public meeting of Global Peace and Justice Auckland on globalisation. The only potential justification under the post-1999 SIS legislation is “to identify foreign capabilities, intentions, or activities within or relating to New Zealand that impact on New Zealand's international wellbeing or economic wellbeing”. If my participation in international networks of academic, trade unionists and other activists is enough to satisfy this definition, how many other people are also being monitored for their purely lawful activities that advance economic and social justice through international networks?
Second, many of these activities relate to my work as an academic, consistent with statutory protection on academic freedom under the Education Act, where it is defined as the “freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions”, and a responsibility to act as “critic and conscience” of society. Other files reveal that the SIS has a long history of spying on academics. Economist Wolfgang Rosenberg* was spied on throughout his career; his file includes comments he made in the common room and his applications for academic jobs. Recent files of several other academics focus on lawful activities undertaken in the course of their employment as academics, such as giving lectures, organising academics for peace and disarmament, participating in conferences and convening meetings on university campuses. Various Students Association groups and activities have also been monitored. * Murray Horton’s obituary of Wolfgang Rosenberg is in Watchdog 114, May 2007, http://www.converge.org.nz/watchdog/14/04.htmEd.
Both the Tertiary Education Union and the NZ Union of Students’ Associations have expressed their concern about the potential chilling effect of the SIS maintaining files on academics fulfilling their employment and statutory responsibilities. This extends beyond the individuals concerned to their engagement with students in lectures or undertaking research, academic colleagues, research funding, advisory work and consultancy. It also sends a message that they may be spied on for simply doing their job.
Third, the Privacy Commission is not a vehicle for effective oversight of how the SIS exercises its responsibilities under the Privacy Act. Uniquely, the Act also has no power to refer the SIS to the internal complaints mechanism. The powers of the Inspector-General of Security and Intelligence do not relate to decisions under the Privacy Act, and experience suggests there is little chance that he would hold the SIS to task even if he had the power. The only obvious remedy is to seek judicial review of the decision of the Privacy Commission, which is costly in time and money but remains a possibility.
Another feature of the expansion of State powers is the number of units that conduct surveillance of activist groups and individuals using resources and powers conferred by the “anti-terrorism” laws. The super-spy group known as the Combined Threat Assessment Group includes the SIS, Defence force, Government Communications Security Bureau (the bigger of NZ’s two spy agencies, the GCSB operates the Waihopai satellite interception spy base. Ed.), Department of Prime Minister and Cabinet, and a range of Police units. People, including MPs who are supposed to be defenders of democracy, have no idea what these agencies are really doing. Given the blurred boundary line between political activism, criminal offending, threats to security and terrorism, more search and surveillance powers for the Police will inevitably feed into this network.
As with the SIS, Police surveillance of political activism is nothing new. Equally, people can apply for the personal information held in their Police files, just as they can with the SIS. In my case, the results are equally frustrating. My original request to the Police Commissioner was dated April 15, 2009, with a letter on June 16, 2009 reminding him that the Police have a statutory obligation under the Privacy Act to respond within 20 working days of receiving a request. When that letter was ignored, I complained to the Privacy Commission, who informed me that there was no legal time frame within which the Police had to respond to a Privacy Act complaint!
Eventually the Police replied on September 7, 2009 enclosing a cover sheet with personal details, my criminal record, and seven other pages. One was headed “Auckland Events – May: Groups and Events in Auckland May 2002”, with the category “Intelligence noting”. The two pages were blank except for the sentence “Global Peace and Justice hosted Jane KELSEY at the Trades Hall, 147 Great North Road, Auckland as she spoke of her new book entitled ‘At the Crossroads’”.
The second, also an intelligence noting, had the reference APEC B/F and reported on an anti-APEC seminar at Victoria University involving KELSEY/JANE (Professor) and an unnamed lawyer. It also noted a City Voice report that a seminar on alternative monetary systems had been postponed because of a clash of dates with the anti-APEC Seminar “Confronting APEC”. The third document apparently relates to an event at Parliament Grounds in August 1998, but has no content whatsoever. The fourth document deals with the break in to Aziz’s house under description “APEC Bomb Hoax Christchurch 1996” and relies on a Christchurch Press item to report a meeting at which Aziz and I spoke. The piece de resistance is an intelligence noting from 1994 on a Corso-organised meeting at Turnbull House in Wellington on the fiscal envelope*, where I and [blacked out] “spoke in opposition to a call for civil disobedience and ‘war’ made by the minority present”. *The fiscal envelope was a, subsequently abandoned, proposal by the 1990-99 National government to impose a limit on Treaty of Waitangi claims by iwi. Ed.
The Police response confirms several things. First is the blurred boundary between the SIS and Police intelligence agencies as they conduct surveillance of political activism. Second, the Police have been as sparing in the documents they provided as the SIS. Not only are there none of the mundane documents such as complaints against Police, there are no reports of police notings of other activities that we know they monitor, such as speaking at protests, attendance at Waitangi or meetings that followed the 2007 invasion of Tuhoe. Another round of complaints to the Privacy Commission is therefore underway.
What To Do?
What are the next steps to bring some daylight to bear on the expansion of State powers? The use of the Privacy Act to secure information from the SIS appears to have reached a dead end, given the almost universal rejection of recent applications citing section 32 “neither confirm nor deny”. It is useful to continue collating those responses as it does provide some picture of what the SIS has been up to. Likewise, with the Police.
A number of people responded to a call to make submissions against the new Search and Surveillance Bill that will expand surveillance powers to the Police and extend many of them to some 70 non-Police State agencies that are engaged in some law enforcement activity. It is not difficult to see how agencies dealing with conservation, immigration or labour laws come into conflict with activists and protest-related activities. The powers proposed under this Bill must relate to an alleged criminal offence, but that is not a difficult threshold to reach – trespass, for example, is a criminal offence that potentially carries a prison sentence. It will be relatively easy to repackage the monitoring and collecting of intelligence on political activities as “criminal surveillance”. Submissions won’t make much difference, but it was an opportunity for people to find voice and it did generate some publicity.
It is time to think more broadly about how we might up the visibility about the web of State powers that intrude on New Zealanders’ most basic human rights. The exposure, in December 2008, of Rob Gilchrist’s role as a paid police informant* on a wide range of activist groups did generate a lot of unease. So did the revelations on SIS files, although many of them were seen as historic. The Police invasion of Tuhoe remains firmly implanted in the minds of many, especially Maori. *See Peace Researcher 38, July 2009, http://www.converge.org.nz/abc/prcont38.html for three articles detailing Gilchrist’s decade-long career as a Police spy. Ed.
Yet all of this has not been enough to stop the accumulation of powers and resources, let alone to roll them back. There are some ideas floating around about a national forum in 2010 that might bring these various strands together. But the local level is equally important. Raising awareness and generating informed debate using the examples that we already have will create the foundations for a more effective national campaign.
Summary Of New Zealand Laws Threatening Civil Liberties
- compiled by John Minto
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