Does New Zealand have its own secret court?
Thanks to Edward Snowden, there has been an enormous amount of news about the US intelligence community and the court – the Foreign Intelligence and Surveillance Court (FISA) – that governs it.
Following the stunning revelations that FISA approved the wiretapping of millions of US domestic phone calls, the court is now viewed as a ‘almost a parallel Supreme Court,’ whose decisions are made ‘with almost no public scrutiny.’ (1)
Despite New Zealand’s deep involvement in the Five Eyes network, and the revelations that a surveillance warrant was held on New Zealander Daryl Jones who was later killed in a US drone strike in Yemen, there has been no discussion or examination of the role of the Commissioner of Warrants who issues surveillance warrants to the GCSB and NZSIS. The decisions of that office remain entirely opaque, creating a body of law that is not subject to challenge in any public forum.
The FISA court, established in 1978, was set up to reign in the abuses of the intelligence community following the revelations of the Church Committee, a Senate enquiry that uncovered widespread domestic surveillance. What we have learned more recently about the FISA court and its decisions remains very scant, but we do know that the 11-person court comprised entirely of US Federal judges has taken a very aggressive role in defining surveillance law in the post-9/11 era.
The National Security Agency prepares warrant applications on behalf of all US intelligence agencies seeking warrants for targets that are a ‘foreign power’ or ‘the agent of a foreign power’ and, in the case of a U.S. citizen or resident alien, that the target may be involved in the commission of a crime. Ostensibly, there is also a Foreign Intelligence Surveillance Court of Review, to review, at the government’s request, the decisions of the Foreign Intelligence Surveillance Court. But curiously, the US Department of Justice says, ‘Because of the almost perfect record of the Department of Justice in obtaining the surveillance warrants and other powers it requested from the Foreign Intelligence Surveillance Court, the review court had no occasion to meet until 2002.’ (2)
In New Zealand, decisions about surveillance warrants sought by the GCSB and NZSIS are made by the Commissioner of Security Warrants, and issued by the Commissioner and the Prime Minister. The current Commissioner is Hon Sir Bruce Robertson, who was a High Court and Court of Appeal judge.
In the year 2012-2013, the NZSIS had 34 domestic warrants in force, and the GCSB had 11 interception warrants and 26 access authorisations (these are warrants to access ‘information infrastructure’ such as telephone exchanges or computer servers).
Unlike a police investigation, there is no publicly available information about what is required to apply for an intelligence warrant. By contrast, the omnibus Search and Surveillance Act, passed in 2012, unified a disparate body of laws governing search powers, and clarified when a warrant was required for Police and other regulatory agencies aside from the GCSB and NZSIS.
That Act is also very specific about what the threshold is for obtaining different kinds of warrants. There are a range of situations for which no warrant is required to conduct a search or to surveil. There are situations in which reasonable grounds to suspect or to reasonable grounds to believe (two different legal thresholds of proof) must be met in order to obtain a warrant. The form and content of those warrants is explicitly detailed, and includes the grounds on which that application is made.
The granting of a warrant under the Search and Surveillance Act is the responsibility of different classes of people depending on the type of warrant sought. In some cases, an ‘issuing officer’ – is sufficient. This class includes judges, but also includes court registrars. In other cases, only a High Court judge’s approval is sufficient. These distinctions are made clear in the law.
The process of obtaining a warrant is not a contestable one. In other words, the person subject to the warrant is not given the opportunity to present a counter narrative to that of the police (or other agency) about the activity in question. However, and this is the critical point, should the person come before the court to be held to account for a violation of the law, then those warrants are available for challenge and scrutiny. Moreover, if a challenge is unsuccessful at one level, it can, theoretically, be appealed.
Under the current warrant system for New Zealand’s intelligence agencies, however, there is no process subjecting a warrant to any public scrutiny under any circumstances. If the ultimate outcome of search and surveillance was simply the acquisition of information then that might not be so different from a police investigation that never resulted in the bringing of any charges. A warrant existed, information was collected, but nothing, in a sense, ever came of it. It wouldn’t be subject to legal challenge because no one was being held to account before the law for their actions or activities.
This is not the situation we are in, however, and the GCSB and NZSIS activities are not simply about collecting information. The information that they collect has real and profound consequences for people’s lives for which they are never given the opportunity to account.
At present, the Minister of National Security is proposing a regime that could render people stateless based on information acquired by the intelligence services. New Zealand citizens who have gone overseas may be stripped of their citizenship based on information that will not be disclosed to them, and is not subject to challenge. They cannot know why they have been denied rights, nor can they challenge the decision on either legal or factual grounds. We won’t know the threshold for making such a decision (is it suspicion alone? Is it reasonable belief?) because the entirety of the warrant process is secret.
Instead, we have only the Commissioner of Warrants, who approves the warrant and the Inspector-General of Intelligence and Security, who oversees the carrying out of the warrant to rely upon: both internal oversight processes where we are expected simply to trust.
The case of Daryl Jones chillingly illustrates that the rule of law has been abandoned in favour of some secretly defined security need. The facts are not disputed: this New Zealander was murdered by a US drone strike. He has been described as jihadi, as if to say, ‘he deserved what he got,’ and the Prime Minister has gone so far as to say that he believes that ‘drone strikes are an effective way of prosecuting people.’ He has confirmed that Daryl Jones was subjected to a GCSB warrant. Information about him was shared with the US, and he was subsequently murdered. He was not the specific target.
Under the new GCSB law, that agency cannot share intelligence gained about New Zealanders to the Five Eyes network unless they are deemed to be a member of a ‘foreign organisation’. We can only conclude then that Daryl Jones was deemed to have been a member of a foreign organisation. But neither Mr Jones’ family nor the public at large will ever know what the criteria is for determining if you are a part of a foreign organisation. Does liking a facebook post about ISIS or the PKK or the real IRA for that matter make you a member? Where does the line sit between being a tacit, perhaps enthusiastic supporter and a member?
We don’t know.
And what is the threshold for that proof?
We don’t know.
What we do know, however, is that life and death decisions are being made about people in total secrecy with no process of public review or challenge. There is no way to say, ‘hey, don’t kill me, there is another explanation’ to the drone hovering above you in the desert of Yemen.
It wasn’t New Zealand that shot the Hellfire missile at Mr. Jones, but the United States. We don’t know what information was provided about him to the US. But we can say that Mr. Jones' death was the likely consequence of the GCSB providing information about him to the US National Security Agency. The GCSB becomes an party to murder, knowing as they do, of the likelihood of him being assassinated by the US drone programme in Yemen.
Let us be in no doubt, we have entered the terrifying realm of the national security state along with the US and UK.
Interestingly, a legal case going on in the United States is trying to break down some of the walls of the national security state that has grown to towering proportions in the past decade – and at least one court is giving some help.
The Intercept is reporting that a US federal judge has denied the US government’s attempt to have a lawsuit thrown out based on the ‘state secrets’ privilege; in such instances, matters cannot even be brought before the court because the US government ‘merely allowing certain cases into the courtroom, the argument goes, would necessarily reveal secret information and endanger national security.’
The case concerns Gulet Mohamed who was just nineteen years old in 2011 when he was put on the US ‘no fly’ list case, and he was barred from coming home to his family in Virginia from Kuwait. A naturalized U.S. citizen from Somalia, Mohamed was allegedly detained at the behest of the U.S. and beaten by Kuwaiti officials before finally being allowed back into the country.
He wants to know why he is on this list, what are the criteria for putting him there and how he can get off the list.
This is not such a different situation than one where the NZ intelligence agencies collect information about people who are then subject to punishment, and even death, as a result of that information, but who have no way to challenge that information.
Lest we forget Ahmed Zaoui at this point who was held for nearly three years in prison based on politically motivated inaccurate ‘intelligence’ assembled by the NZSIS. The legal fight waged by lawyers Dr Rodney Harrison and Deborah Manning to expose the fallacious nature of the information about Zaoui was only ever partially won: a summary of the details about Zaoui was eventually made available, and on that, they secured his freedom.
And as a counterpoint, let us remember the Urewera 18 case where the ability to challenge the police’s ‘anti-terror’ warrants exposed them as illegal. Funnily enough, Rodney Harrison, whose legal acumen is nearly unparalleled in this country, also carried out this legal challenge.
This is not to suggest that the court process that allows a challenge to warrants is appropriate or even desirable for the GCSB or NZSIS.
It is rather to say that New Zealand’s ruling elite professes to uphold the rule of law, including the rights to be presumed innocent, to know the evidence against you, to cross examination and to a fair trial – and the right not to be summarily executed. Yet, simultaneously, it’s endorsing national security legislation and intelligence agency activity that are secretly erasing these precepts for anyone deemed to be on the wrong side in the war on terror.
As the US draws its breath to enter another stage in their endless ‘war on terrorism’ New Zealanders need to stop and ponder urgently what secret security state apparatus is being developed behind closed doors under the guise of ‘fighting terrorism.’
(1) Eric Lichtblau. 2013. New York Times. “In Secret, Court Vastly Broadens Powers of N.S.A.” http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powers-of-nsa.html?_r=0
(2) Federal Judicial Centre. Foreign Intelligence Surveillance Court http://www.fjc.gov/history/home.nsf/page/courts_special_fisc.html