The urgent need for response to the Royal Commission report on the Christchurch Mosque massacres

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What We Need To Know, And What We Need To Do - by Warren Thomson, Anti-Bases Campaign

  1.  Introduction
    
  2.  Royal Commission (RC) recommendations
    
  3.  Criticism of the 2017 Intelligence and Security Act
    
  4.  RC General Comments and criticisms of the spies and structures
    
  5.  Further comments and criticisms related to NZ intelligence organisations
    

1/ Introduction

On 26 November 2020, the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain on 15 March 2019 presented its Report to the Governor-General. The Report has 44 recommendations, some of which involve significant reorganisation of the intelligence and security structure, and a number of others which could be of concern to those of us who have active concerns about “counter-terrorism”, democratic process and human rights issues (it also contains several misspellings of the word “Government”).

In recent years both National and Labour have expedited security legislation, in some cases using “safe hands” reviews to ensure results which meant agency powers were extended without significantly improving oversight; and in some cases pushing laws through quickly and preventing full consideration of the implications of those laws (the Royal Commission Report explicitly raises questions about several aspects of the 2017 legislation). In no case was any consideration given to fundamental reform of the security agencies themselves.

The Royal Commission (RC) stated that: “Some recommendations should be able to be implemented relatively quickly”, and a new intelligence coordinating body should have “functions to be established, in legislation as soon as practicable, but without delaying its establishment”. Some recommendations were proposed (in November 2020) to be adopted within six months.

Any Government quick fix could well mean more money for the spooks and less privacy rights for the rest of us. “The taxpayer is quite likely to be facing a hefty price tab for bringing the new agency’s counter-terrorism role up to parity with its counter-espionage efforts. There is also the very real prospect that the Christchurch failures will see a significant increase in the powers of the new agency, with a corresponding loss in civil liberties. The public will pay more, and be less free” (Gordon Campbell, Scoop, 11/12/20, https://www.scoop.co.nz/stories/HL2012/S00053/on-the-royal-commissions-report-into-the-christchurch-mosque-shootings.htm).

The Cabinet has already given its agreement to all RC recommendations. Legislative and/or administrative changes could be made very quickly. This means that for any effective critique of proposed changes in structures and legislation, those of us outside the Establishment will have to prepare quickly, in time for an uphill battle to:

        (1) get all views presented with a full public submissions programme,
         (2) have creative and well-researched proposals for radical restructuring of the whole   intelligence/security agency system, and

(3) get discussion on: [a] withdrawing from Five Eyes and [b] abolishing, or at least reformingthe Government Communications Security Bureau (GCSB) and Security Intelligence Service (SIS), onto the agenda (a very tough proposition, since neither of the main political Parties want to know).

What follows is a summary of significant RC recommendations, then some further comments relating to the spy agencies, their operations, and their oversight.

  1. RC Recommendations

The Royal Commission Report consists of six parts: Introduction, Improving Counter terrorism (R1-18), Firearms Licensing, Supporting Victim Recovery, Improving Social Cohesion, and Recommendations Implementation (R43-44). The most significant points for Anti-Bases Campaign members and supporters are recommendations 1-18; a summary and comments on these follows. Not all recommendations are listed.

R1: A Minister responsible for counter- terrorism (CT) to coordinate action and receive regular reports on CT.

R2: Establishment of a new “well-resourced” security agency:
- With a Chief Executive Officer to advise the PM and chair the new organisation
- Will develop CT strategy
- Will advise the Minister
- Must have “engagement with the community, local government, and private sector”
- Ensure human rights
- “Leverage” the emergency management structures of local authorities
This would be a major change in the current intelligence/security structure. And we can envisage this and other recommendations resulting in a major bun fight between interested groups. Does “well-resourced” mean given more money?

R3: Investigate an alternative to the current voluntary Security and Intelligence Board to recommend strategy to Cabinet re “violent extremism”. This would be an “interdepartmental executive board” responsible for coordinating intelligence and security issues.

R4: The new agency (R2 above) should have a “public facing policy” and collaborate with local and private sector groups.

The RC report is strong on CT groups/community interaction, but how and who is not so clear.

R5: The intelligence agencies – GCSB and SIS – should be “subject to performance audit” by the Auditor-General.

This would be a significant new step in oversight of the spies, although strictly in financial/business performance terms.

R6: Strengthen the role of Parliament’s Intelligence and Security Committee.

                    - it should “access sensitive information”

                    - consider priorities of the security/intelligence agencies

Another potentially significant change in oversight; one that we should totally support. But likely to be watered down or lost in transit.

(Would the Parliamentary Committee get Select Committee status, be able to subpoena witnesses, access classified data?)

R7: The new agency (R2 above) should establish an advisory group on CT as soon as practicable. This Advisory Group on Counter-Terrorism would “test ideas and provide advice to the new national intelligence and security agency’.

R9: The new agency should

                    - improve intelligence sharing

                    - implement the 2018 Review of NZ Security Classification System report.

This review slipped in under the radar; it does recommend such moves as eliminating any indefinite classification of documents, and regarding classification as enabling rather than restricting.

R12: There should be a simple and known system for the public to report any terrorism concerns.

R14: Specific academic NZ research on CT should be publicly funded.

Another possibly useful concept, depending on who gets the funding.

R15: There should be public education on threats and responses.

R16: There should be an annual hui to share understanding on CT issues.

Who would attend?

R17: Legislate for (new) Minister of National Security and Intelligence

  •    To publish CT priorities and refer these to the Parliamentary Committee
    
  •    To publish an annual “threatscape” report
    
  •    Both the above to be considered by the Parliamentary Committee.
    

R18: Review all legislation related to CT, especially the need for precursor offence legislation and urgently review Section 19 of the Intelligence and Security Act on “target discovery”.

  1. RC Criticisms Of The 2017 Act (Emphasis Added)

The RC report raises a number of issues in regard to the (hastily passed) 2017 Intelligence and Security Act (as it affects the counter-terrorism effort).

· There are a number of issues with the Intelligence and Security Act, some of which limit the activities of the intelligence and security agencies. These should be prioritised in the scheduled legislative review. There should be a particular focus on whether any associated limits on the intelligence and security agencies are justified in light of their objective to contribute to the protection of New Zealand’s national security (i.e., potentially the spies may be given greater powers). For the most part, the issues we have identified with the Intelligence and Security Act (Part 8, Chapter 14) can be resolved during the scheduled legislative review. The exception is section 19 of the Intelligence and Security Act, which we consider requires urgent legislative attention for reasons explained in Chapter 14 of Part 8 (the possible effect of section 19 in limiting target discovery in respect of Rightwing extremism).

Other Royal Commission Criticisms Follow:

a/ A lack of congruence between the Act and the structure and operation of the New Zealand intelligence community (i.e., the Act does not fit the purpose).

b/ The application of the necessary and proportionate test to actions that do not require authorisation (i.e., there needs to be more consideration of actions).

c/ Direct access agreements having not been put in place as contemplated by Parliament.

d/ Specificity requirements for warrants (i.e., there are problems with warrant requests).

e/ Type 2 warrants and the incidental collection of information about New Zealand citizens and permanent residents (i.e., there are problems with collection of collateral data).

f/ Absence of a legal requirement to enable activity authorised by a warrant.

g/ Searches of existing holdings (i.e., who gets to see the classified data?).

h/ Accessing existing holdings of partner agencies (i.e., who gets to see the classified data?).

i/ The possible effect of section 19 in limiting target discovery in respect of Rightwing extremism (i.e., problems acting before something happens)

j/ The operation of section 103.

k/ The definition of “employee”.

l/ “There are a number of issues with the Intelligence and Security Act, some of which limit the activities of the intelligence and security agencies. These should be prioritised in the scheduled legislative review. There should be a particular focus on whether any associated limits on the intelligence and security agencies are justified in light of their objective to contribute to the protection of New Zealand’s national security”.

m/ “For the most part, the issues we have identified with the Intelligence and Security Act (Part 8, Chapter 14) can be resolved during the scheduled legislative review. The exception is section 19 of the Intelligence and Security Act, which we consider requires urgent legislative attention for reasons explained in Chapter 14 of Part 8” (the possible effect of section 19 in limiting target discovery in respect of Rightwing extremism).

  1. RC General Comments And Criticisms Of The Spies And Structures

· COORDINATION: The Report suggests a lack of coordination between agencies. “The new national intelligence and security agency (Recommendation 2) will lead the coordination of individual agency action plans to ensure they are cohesive and that there are no gaps in public sector agency efforts. Public sector agencies have not been fully using legislation to share information as systematically and widely as they might. This is particularly the case for the intelligence and security agencies”.

· INFORMATION SHARING: “Information sharing between public sector agencies is critical to the effectiveness of the counter-terrorism effort (Part 8, Chapter 9). A shift in public sector agencies’ approach to highly classified information, in particular ensuring that information is classified correctly and seeing the need-to-know principle as enabling rather than restricting, will allow more information to be shared easily between public sector agencies. We are not the first to form this view. In a 2018 Review Of The New Zealand Security Classification System, the Inspector-General of Intelligence and Security made a number of recommendations to improve the classification system. These recommendations have not been implemented, but remain relevant today”.

· OVERSIGHT: The Report makes strong and positive comments on oversight of the spies. Improved oversight of the counter-terrorism effort “will lead to better performance outcomes. Those who provide that oversight by monitoring and scrutinising the public sector agencies involved in the counter-terrorism effort need access to relevant information”.

Importantly, ‘the Intelligence and Security Committee is currently unable to inquire into the activity of an intelligence and security agency or into any matter that is operationally sensitive. That means that its role is far more limited than that of its counterpart Parliamentary committee in the United Kingdom”.

· COMMUNITY INVOLVEMENT: The Report criticises the lack of community involvement in CT procedures. The RC Report says that in early 2020, the Department of the Prime Minister and Cabinet released a Countering Terrorism And Violent Extremism National Strategy Overview. The RC Report attacks this overview –“It is not the strategy we envisage” – primarily because “it was produced without any substantive involvement by communities, civil society, local government and the private sector”. The theme of public input is a constant in the RC Report. It is hard to be optimistic about this theme being seriously translated into the security/intelligence sector.

· The Parliamentary Intelligence and Security Committee should receive public submissions on the annual statement on extremism.

· The Chief Executive of the national security and intelligence agency is to ensure the Advisory Group on Counter-Terrorism includes representative membership from communities, civil society, local government and the private sector. The make-up of the Advisory Group on Counter-Terrorism should include a gender balance, ethnic and religious diversity, a range of ages (youth, adults and elders) and geographical spread.

· TERRORISM SUPPRESSION ACT: “What has also been missing to date is a holistic assessment of the nature of the risk associated with the pre-criminal space in which potential terrorists operate. New Zealand does not have precursor terrorism offences, which means that it is not an offence to be planning or preparing a terrorist attack” (Part 8, Chapter 13). An informed debate is necessary about whether the Terrorism Suppression Act strikes the appropriate balance between providing the counter-terrorism agencies with the means to disrupt planning and preparation for terrorist attacks; and the risk of over-criminalisation. To enable such a debate, the Terrorism Suppression Act should be reviewed as soon as possible to ensure it is fit for purpose, with a particular focus on the lack of precursor terrorism offences”.

· “At present, little is known about the extreme Rightwing environment in New Zealand…The New Zealand Security Intelligence Service is currently unsighted to any individuals or groups who espouse an extreme Rightwing ideology and promote the use of violence to achieve their objectives”.

· The RC comments on how few experienced personnel were working on CT work and problems of high turnover in the SIS. Similar shortcomings and thinly spread resources were identified by the Commission at the GCSB, and within the Police counter-terrorism unit. In line with this general orientation, many of the priority areas of SIS work – e.g., diplomacy, trade security – are demanded by the Ministry of Foreign Affairs and Trade (counter-espionage, diplomatic and trade security interests that MFAT will want the (new agency) to pursue and protect.

· The new national intelligence and security agency (Recommendation 2) should be the fund holder for the contestable research grants.

  1. Further Comments And Criticisms Of The NZ Intelligence Organisations

Gordon Campbell (Scoop):

“Crucially, one of the Report’s major findings was that the SIS had misidentified Islamic terrorism as being the main threat to the public, and therefore misallocated its resources into surveillance of the local Islamic community. The SIS and other agencies (the GCSB, Police and Department of Prime Minister and Cabinet) had programmed themselves to look in the wrong direction for the wrong kind of threat, with the wrong analytical tools. If the outcome wasn’t so tragic, the organisation described in the report would be comically unfit for the counter-terrorism role it purported to play”.

Paul Buchanan (Commentator On Intelligence Issues):

Failures “systemic”. Mosque attack was an intelligence “fiasco”. SIS (humint – human intelligence) GCSB (elint – electronic intelligence) and Police areas are “okay” but analysis and coordination missing. The main NZ body is the National Assessment Bureau (NAB) who too much follow directives of PM. “If we continue to have intelligence leaders who only cater to leaders of the day, nothing will change”. The NAB is supposed to do analysis and coordinate intelligence community. It has about 30 staff. In 2018 only one of these staff was concerned with anti-terrorism, and he/she “had an anti-Muslim bias”. The current Security and Intelligence Coordinating Committee was “completely useless” and should be eliminated (which the RC agrees with”. SIS knew the IP (Internet Protocol) addresses that the killer used and that he was buying parts for weapons but could not identify him. SIS have very limited online capability. Rebecca Kitteridge bought in as a reformer Director of SIS, but is classic case of capture by the organisation. She is not interested in reform. Also, our current Inspector General (IG) of Intelligence (the watchdog) is a “complacent” individual. Former IG Cheryl Gwyn did a superb job but was “bumped up” to High Court judge to get rid of her. She got “too close to the bone” especially with the SIS, and “they took her out of that job” (video interview).

Keith Locke (Former MP And Commentator On Intelligence Issues):

The Report said that, in the last quarter of 2018, our Government Communications Security Bureau (GCSB) received 7526 reports from its international partners on terrorism and violent extremism, none of which related to Rightwing extremism. Because the Americans and other agencies didn’t seem to think Rightwing extremism was important, the GCSB in its true follow-the-leader fashion apparently didn’t think it to be important either and wasn’t looking for a man of the type that was convicted for the Christchurch terrorist attack.

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