Sunday, July 28, 2013

We can no longer trust our armed forces

The Henry inquiry's spying on Andrea Vance was bad enough. But now we learn that the New Zealand Defence Force spied on a kiwi investigative journalist who was exposing their misbehaviour in Afghanistan:

The New Zealand military received help from US spy agencies to monitor the phone calls of Kiwi journalist Jon Stephenson and his associates while he was in Afghanistan reporting on the war.


The monitoring occurred in the second half of last year when Stephenson was working as Kabul correspondent for the US McClatchy news service and for various New Zealand news organisations.

The Sunday Star-Times has learned that New Zealand Defence Force personnel had copies of intercepted phone "metadata" for Stephenson, the type of intelligence publicised by US intelligence whistleblower Edward Snowden. The intelligence reports showed who Stephenson had phoned and then who those people had phoned, creating what the sources called a "tree" of the journalist's associates.

New Zealand SAS troops in Kabul had access to the reports and were using them in active investigations into Stephenson.

The sources believed the phone monitoring was being done to try to identify Stephenson's journalistic contacts and sources. They drew a picture of a metadata tree the Defence Force had obtained, which included Stephenson and named contacts in the Afghan government and military.

The sources who described the monitoring of Stephenson's phone calls in Afghanistan said that the NZSIS has an officer based in Kabul who was known to be involved in the Stephenson investigations.

So, we have NZDF - an organisation established to defend New Zealand - using the Americans to spy on a New Zealand citizen, in violation of his BORA-affirmed right against unreasonable search and seizure, using the SAS as spies, and passing the resulting information on to SIS and fuck knows who else. And they were doing this not to protect "national security", but simply to protect their own reputation and prevent us from finding out what was being done in our name.

This is a massive abuse of power. Its also downright sinister. The NZDF is now explicitly in one of its training manuals classifying journalists as subversives, as enemies of the state. And its just a short step from spying on "hostile" journalists to arranging "accidents" for them.

How could they do this? Because the Defence Act includes no safeguards against it. While the law prohibits the NZDF from being used for law enforcement or to assist the civil power without explicit Ministerial or Parliamentary authority, it does not prohibit them from spying on New Zealanders or from collecting and exchanging information about us with foreign powers. There is not even a toothless SIS Act-style "statement of principles" committing them to upholding the democratic rights of New Zealanders. Why? Because we never for a moment imagined that they would do those things. We never considered the possibility that our own armed forces would be used against us.

Clearly, given their actions in Afghanistan, we need to reconsider that approach. With this one act, the NZDF has utterly destroyed its reputation as a democratic institution. If they do stuff like this, it is clear that we can no longer trust them. While people need to be sacked, and some metaphorical heads stuck on spikes, we also clearly need further legislative safeguards. Starting with a ban on spying and an enforceable statement of principles (though the BORA covers some of that, it does not cover the more general principle of respect for democratic values). And if they grumble about it, that will simply be a further sign that we cannot trust them.

In a democratic state, the military should not be regarding journalists as enemies and seeking to control them. It is that simple. If our generals want to operate differently, they can resign and go to work in a country more in line with their values. Like Fiji.

But this also raises further questions about the GCSB. As the article points out, GCSB staff were seconded to the US intelligence operation which tracked Stephenson, and may have been involved. If so, they've violated section 14 of the GCSB Act, which prohibits employees of the spy agency from taking any action to intercept the communications of a New Zealand citizen.

The scary thing is that rather than regarding this scandal as further evidence that our military and spies are completely out of control, John Key will probably see it as another reason to change the law in their favour.