Thursday, April 16, 2015

Unlawful and possibly criminal

Today's Snowden leak: the GCSB has been spying on Bangladesh and sharing information with Bangladeshi torturers:

Secret documents reveal New Zealand has shared intelligence collected through covert surveillance with Bangladesh despite that country's security forces being implicated in extrajudicial killings, torture and other human rights abuses.

The documents shine light on the major role played by the Government Communications Security Bureau (GCSB) in electronic spying operations conducted in the small South Asian nation.

The surveillance has been used to aid the United States as part of its global counter-terrorism campaign, launched after the September 11 attacks in 2001.


The intelligence gathered by the GCSB staff was also being forwarded to foreign intelligence agencies, including Bangladesh's state intelligence agency. In recent years, human rights groups have issued several reports documenting Bangladeshi intelligence and security agencies' disregard for international prohibitions on torture and alleged involvement in politically motivated killings. In 2014, a case was filed in the International Criminal Court accusing the Bangladesh Government of committing crimes against humanity.

As with other GCSB spying, this raises the usual questions: how does this contribute to New Zealand's international relations and national security? And it has the usual answer: it doesn't. The GCSB isn't spying on Bangladesh because it poses some threat to New Zealand, but because the NSA has told them to and they want information to trade to their American masters. Whether that is in New Zealand's interests is left as an exercise for the reader.

But it also raises serious questions about what is done with the information the GCSB collects. Bangladesh's spy agencies are deeply unsavoury people who engage in torture, disappearance, and extrajudicial killings. There's an obvious political question here about whether we want our spies passing information to an agency which goes around kidnapping, torturing and murdering people. But beyond that, there are serious legal questions as well. Its hard to see how the GCSB's sharing of information with an agency known to torture and murder is consistent with the agency's obligations under sections 8 and 9 of the New Zealand Bill of Rights Act 1990, which affirm the right to life and the right not to be tortured, which apply to any actions of the government, anywhere in the world, and for which there can be no "justified limitation".

But in addition to probably being unlawful, sharing information with known torturers and murderers is probably criminal as well. The Crimes of Torture Act 1989 imposes a penalty of 14 years imprisonment on anyone who
(a) commits an act of torture; or
(b) does or omits an act for the purpose of aiding any person to commit an act of torture; or
(c) abets any person in the commission of an act of torture; or
(d) incites, counsels, or procures any person to commit an act of torture.

There's no suggestion that the GCSB is itself torturing people, or that they're deliberately procuring it (unlike the CIA and MI6, who seem to do that all the time). But passing information to known torturers seems to fall squarely within clauses 3(1)(b) and 3(1)(c). And that means that the GCSB staff who do it are potentially on the hook for a very long jail spell. If you work for the GCSB on the Bangladesh desk, you should really be talking to your lawyer about now.

As for what we can do about it, a complaint to the Inspector-General of Intelligence and Security asking them to investigate on their own motion whether the GCSB has violated the BORA and/or the Crimes of Torture Act by sharing information with foreign agencies would seem to be the best bet.