Monday, June 08, 2020

The SIS's illegal burglary

RNZ has a story today about the SIS burgling the Czech embassy in 1986 to try and steal a code-book, in violation of the Vienna convention. At the Prime Minister's press conference this afternoon, she was asked if they had broken the law, and wibbled about it. But I think its a good question. Answering it requires delving into the history of SIS intelligence warrant provisions.

When the SIS was put on a legal footing in 1969, its governing legislation included no warrant provisions whatsoever. If they were bugging embassies and conducting black-bag jobs against people Muldoon didn't like, it was all illegal, done on an "above the law" basis. In 1977, probably in response to some scandal, this was finally bought under control by the New Zealand Security Intelligence Service Amendment Act 1977, which gave them a formal warrant provision. This let them, with Ministerial approval, intercept or seize "any communication not otherwise lawfully obtainable by the person making the interception or seizure". This situation prevailed until 1999, when (in response to the Court of Appeal ruling that the SIS had exceeded its powers in burgling the home of GATT Watchdog activist Aziz Choudry) Parliament legislated to allow the SIS to seize documents or things under warrant, to give them formal powers of entry to execute warrants, and to say that the latter - but not the former - applied retrospectively (because, as we all know, when the spies are caught breaking the law, their actions are declared legal, rather than them being held accountable).

What does this mean for the embassy burglary? Well, the break-in - the illegal entry - was illegal at the time, but retrospectively legalised in 1999. But if they actually took any document or thing (rather than a "communication", which from context is something transitory like a phone call, or else is a letter; a code book probably doesn't count), then they committed a crime, and that crime was not retrospectively legalised in 1999. And the people who took it or conspired to do so - and what is a planned operation, if not a conspiracy in law - can be prosecuted for theft (not burglary, because the trespass was retrospectively legal), and jailed for up to 7 years. And, if the rule of law means anything, they should be.

Meanwhile, Andrew Little is refusing to say whether he authorises embassy burglaries. He also says that the spies operate within the law, including international law which has been incorporated into domestic law. If the latter is true, then he needs to look at s5 of the Diplomatic Privileges and Immunities Act 1968, which incorporates Articles 1, 22 to 24, and 27 to 40 of the Vienna Convention into NZ law. This includes provisions such as "the premises of the mission shall be inviolable" and "the archives and documents of the mission shall be inviolable", and "the official correspondence of the mission shall be inviolable". Then he needs to look at s54 of the Intelligence and Security Act 2017 (and its long series of predecessors), which specifically establishes a lower standard of scrutiny for intelligence warrants which target only foreign citizens, and ask why we should believe him when the law itself calls him a liar. If he wants to be taken seriously, he should legislate a specific exemption, just so there is no confusion. If he doesn't want to do that, then he should be more careful about which lies he lets the SIS put in his mouth.