Friday, January 28, 2022

The SIS has received intelligence from torturers

One of the many horrors of America's "war on terror" is the way it has degraded human rights around the world, even in countries like ours. Quite apart from the direct crimes committed by America and its allies (Iraq, Guantanamo, the extraordinary rendition program, mass surveillance), there's also been the sight of intelligence agencies from countries with strong domestic human rights protection colluding with regimes which use torture. Dirty foreign regimes do the torture, and western agencies get the intelligence while keeping their hands "clean" (until they end up being investigated by police)

The SIS received "intelligence" the Americans had tortured out of people in the early 2000s, but that's meant to be all in the past. The post-Dotcom reforms were meant to fundamentally change our intelligence agencies and put them on a sound legal footing. The Intelligence and Security Act 2017 gave spy agencies an explicit legal duty to act in accordance with New Zealand law and international human rights obligations. A system of "ministerial policy statements" is meant to provide clear, public guidance for agencies and let the public know what they are and aren't allowed to do. For example, there is an MPS on Cooperating with overseas public authorities, and it's pretty explicit in outlawing cooperation with torturers:

GCSB and NZSIS must not request or use intelligence where they know, or assess there is a real risk the intelligence was obtained through a serious human rights breach – such as torture, or cruel, inhuman or degrading treatment.
This is backed up by an SIS/GCSB Joint Policy Statement on Human rights risk management which sets out how they're meant to assess the risk that cooperation will result in human rights abuses, and who signs off on that assessment. The policy uses five risk categories, with differing level of severity and scrutiny. So for example category 5 is where there is "negligible likelihood of any human rights breach", and can be signed off by any manager. Category 1 is where there is a "substantial likelihood of torture or similar mistreatment (mitigated or unmitigated)", and must be signed off by the Minister. "Proposed actions" by an intelligence agency - for example, providing intelligence or assistance to a foreign agency, or entering a long-term relationship with them - require a human rights approval. Receiving intelligence requires a human rights review.

When I first saw this policy on FYI, I was curious, so I asked GCSB and SIS for some basic statistics about the numbers of approvals and reviews sought and approved in each category. GCSB's response was reassuring: a lot of low-level approvals, but they clearly weren't providing information to enable people to be tortured (OTOH, the lack of reviews shows they don't think there's any human rights issue with mass-surveillance or with where their information comes from). SIS's response - extended because of the crapness and disorganisation of their internal record-keeping - showed the same pattern in approvals. On reviews, it is a different story. Since JPS-006 was approved in 2017, the SIS has sought and received Ministerial approval for two category-1 human rights risk reviews. That means they have twice received intelligence where there was "substantial likelihood of torture or similar mistreatment", in contravention of both the Ministerial Policy Statement and Aotearoa's obligations under the United Nations Convention Against Torture.

The policy was approved in late September 2017, when Chris Finlayson was Minister. A month later Andrew Little became Minister, and has held the role ever since, so its almost certainly him who signed off on this. And I think he owes us some serious answers about exactly what he signed off on, and how he manages to look at himself in the mirror every morning having done so. This also seems to warrant an immediate investigation by the Inspector-General of Intelligence and Security, and by the Ombudsman (who is our main National Preventative Mechanism under OPCAT). Because this was not what we were promised in the post-Dotcom intelligence "reforms". Instead it seems to be the same old dirty spies, up to their same old dirty tricks, and letting people be abused in our name.