Earning their salaries

On Thursday, the Foreign Affairs, Defence and Trade committee started hearing submissions on John Key's (or maybe I should just call it Rebecca Kitteridge's) Countering Terrorist Fighters Legislation Bill. Normally MPs get to go home on Thursday evenings for constituency work and to see their families - but the select committee didn't. They sat all day on Friday, until nine or ten at night, then were back at 8am on Saturday morning for more. And they're still at it today, calling back the SIS director and Inspector-General to hear their thoughts on the views of submitters.

This has been forced on them by the ridiculously tight timeframe the government has set for the bill - they need to report back tomorrow. But still: the committee has worked very hard here and done their best so we can have our say. MP's work incredibly long hours, and the committee has gone even further. They have definitely earned their salaries.

Hearing the submissions

I've been watching the webstream of the Foreign Affairs, Defence and Trade committee's hearings on the Countering Terrorist Fighters Legislation Bill. Its been interesting viewing. So far, I haven't seen a single submitter who has approved of the process or the urgency, and there hasn't been anyone who has approved of the bill as a whole or even overall. There's been a lot of criticism of the extended sunset clause, the lack of natural justice in the passports regime, the duration of "urgent" warrantless search powers (and even the need for them at all) and the need for visual surveillance.

(Whoops, we've just had a positive submitter. They're a racist who believes that all religious speeches which aren't from a set text should be made in English or Maori "so we know what you're talking about". Which tells you everything you need to know about the demographic who approves of these measures)

There have been lots of positive comments from the committee suggesting they are open to improving the bill, but the National members will be under marching orders from Kitteridge, Key and Finlayson. Still, if they want bi- or tri-partisan approval, they're going to have to shift. The question is how much that approval matters to the spies.

Despite the very tight timeframe, there have apparently been over six hundred submissions - far more than most bills get, and the sort of number which should make politicians sit up and take notice. The committee will be sitting long into this evening to hear those who want to speak. Its great to see that despite the government's attempt to suppress it, people still believe in democracy in New Zealand and are willing to speak up for it. The question now is whether Kitteridge, Key and Finlayson will listen.

Utter contempt for the OIA

The OIA is very clear: requests must be answered "as soon as reasonably practicable, and in any case not later than 20 working days [of receipt]". While that time limit can be extended, that can only be done if a request is for a large quantity of information, or if consultations are required, and it must be done within the 20-day limit.

Last night, over Twitter (and with further details via email), I heard of an appalling violation of these clauses.

The requester lodged an OIA request on 11 October. There was no acknowledgement of receipt, and no response by the deadline of 10 November. When the requester called to inquire, they were told they would not be getting one any time soon, not even within 20 working days from the date of inquiry. When reminded of the law, the agency said "Yes, I'm breaking the law and that's the way it is".

The agency in question? The police. Who are charged with upholding the law. Somehow, I don't think they'd be too impressed if a burglar said that to them.

This is utter contempt for the OIA and a wilful violation of the law. The Ombudsman isn't preventing such behaviour, so I'm wondering: do we need to start bringing private prosecutions against state agencies (and individual bureaucrats) for contravention of statute?

Success!

Earlier this year, the government effectively banned legal highs by withdrawing all interim certifications for them. How's that worked out? The front-page of the Manawatu Standard today tells me that "Meth use on rise after legal high ban":

Former methamphetamine addicts in Palmerston North have gone back to using the drug since synthetic highs were made illegal, a Manawatu addiction service says.

MidCentral District Health Board's alcohol and other drug addiction (AOD) service reported an increase in people presenting with problematic methamphetamine and cannabis use since synthetic cannabis became illegal in May.

Mental health service clinical director Dr Syed Ahmer said staff had seen an increase in use of the drug, particularly when people were also using other substances.

I'm not sure that that's really a good result, either from a public health or criminal law perspective. But its what happens when you pass knee-jerk legislation in the midst of a moral panic, rather than stopping to think about it.

Tonga votes

Tongans went to the polls yesterday in their second election since the 2010 democratic reforms - and threw out most of their Parliament, returning only five of their incumbent People's Representatives (and only one PR Cabinet Minister). Unfortunately this doesn't look like it will translate into a government led by the Democrats - internal squabbles meant that the party lost three seats, and the Nobles will likely be able to buy the couple of independents they need to retain power.

Submission on the Countering Terrorist Fighters Legislation Bill

Below is my submission on John Key's Countering Terrorist Fighters Legislation Bill. Hopefully some of you made your own as well.

1. I oppose the Countering Terrorist Fighters Legislation Bill and ask that it not be passed.
   
   
2. I also oppose the abuse of the Parliamentary process seen in the passage of this bill - and in particular the short select committee stage. It is a matter of some irony that a bill which will permit the SIS to spy without warrant for 48 hours without any submission to the Minister does not give the public even that length of time in which to make submissions. The short period for submissions is an express denial of our democratic rights, which brings Parliament into further disrepute. And when combined with the similar abuse done in the name of the GCSB Act, suggests that on matters of spying, the government and spy agencies do not want our voices to be heard.
   
   Amendments to Passports Act 1992
   
   
3. I oppose the amendments to Passports Act 1992 contained in the schedule to the bill.
   
   
4. I particularly oppose the power in new sections 1(6) and 2(6) extending the length of passport refusal / revocation from one to three years. At present, the Minister can cancel passports for a year, and can extend this for a further year on application to the High Court. The government has made no case that this period is inadequate and has presented no evidence that the current process of judicial extension is not working. The effect of these clauses (and the similar clauses applying to certificates of identity, refugee travel documents etc) is to remove judicial oversight of such decisions. This is something that should not be accepted in a free and democratic society.
   
   
5. I oppose the avoidance of doubt clause in new section 1(3), 2(3) etc that the government can refuse or cancel a passport to someone outside New Zealand. This seems to interfere with the fundamental right of citizens to re-enter New Zealand, and to turn passport refusal/revocation into a Ministerial-imposed sentence of exile without trial. While emergency one-use travel documents are in theory available under s23(30 Passports Act 1992, "in theory" is not sufficient. In practice, any refusal or cancellation of a passport or travel document of someone who is offshore should result in the immediate issue of documents to enable the victim to return to New Zealand, to ensure that they are not effectively exiled.
   
   
6. I oppose the new clause in s1(5)(b), 2(5)(b) etc that "notice [of a passport cancellation/revocation etc] is to be treated as given if the Minister has taken all practicable steps to provide it." Sections 1(7)(a), 2(7)(a) etc limit direct appeals to the Minister to within 30 days of notice. The combination of these two clauses is to effectively rob those whom the Minister decides it is impractical to notify of any right of appeal. This is inconsistent with the Right to Justice affirmed in section 27 of the Bill of Rights Act.
   
   
7. I oppose the power in new section 7 to temporarily suspend a travel document for 10 days. The power requires no evidence or even suspicion of wrongdoing. Instead it merely requires that a report be being prepared. It is hard to see how such an arbitrary suspension of an individual's freedom of movement accords with the right to justice affirmed in section 27 of the Bill of Rights Act, or how it could be considered to be the least intrusive measure.
   
   
8. I oppose the extension of sections 29AA to 29AC (permitting the government to use secret evidence which is not disclosed to the other party in cases involving "national security") to cases involving passport refusal / revocation etc. The use of secret evidence in court cases is absolutely inconsistent with the right to justice affirmed in s27 of the Bill of Rights Act, and its use has been found to impair similar rights overseas.¹ As Lord Kerr noted in Al Rawi and Others v. The Security Service and Others [2011] UKSC 34, "Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial". Absent such an opportunity, both the justice and the public credibility of a judgement is irreversibly compromised.
   
   
9. I oppose the limitation of crown liability in new section 9. It serves no purpose except to insulate the government from the legal consequences of poor decision-making. As I value good decision-making where human rights are concerned, I would prefer that the government had every incentive to get it right, rather than enjoying impunity.
   
   Amendments to Customs and Excise Act 1996
   
   
10. I oppose new section 280M, which provides for police and SIS to have direct access to Customs' data for counter-terrorism purposes.
    
    
11. As the bill's RIS and BORA-vet makes clear, this section is required because significant doubts have arisen about the legality of Customs' current information exchanges with police and SIS. Current practice is that police are able to directly enter targets into the Customs' database, specifying who they want stopped and what they want to search for.² Customs then provides them with the results of any warrantless search at the border conducted under s151 Customs and Excise Act. Presumably there are similar arrangements with SIS. These powers are specifically used to conduct warrantless searches of digital devices such as laptops and cellphones.^3. But as the Minister of Justice notes in her BORA-vet, "comprehensive examination of data, either from cell phones, laptops or other storage media, for general law enforcement purposes would require at least reasonable suspicion".
    
    
12. The result of section 280M therefore is to effectively bypass the protections of the Search and Surveillance Act 2012 and New Zealand Security Intelligence Service Act 1969 to enable both agencies to conduct warrantless searches of anyone entering the country, potentially gaining access (via their cellphones, stored emails, browser histories and files) to every detail of their lives. These protections exist for good reason: the oversight of the courts (or, in the case of the SIS, of Ministers and the Commissioner of Security Warrants) prevents abuses of power. This clause would throw away any oversight, and grant these agencies arbitrary search powers. This is inconsistent with the right to be free from unreasonable search and seizure affirmed in s21 of the BORA.
    
    
13. As a further note, because it is not a "search power" in terms of the Search and Surveillance Act 2012, border searches conducted by Customs under s151 have no protections for journalistic privilege, or for attorney-client privilege. They therefore raise the prospect of Police and SIS colluding with customs to violate the rights of journalists, and the fair-trial rights of people whose lawyers travel to and from New Zealand.
    
    Amendments to New Zealand Security Intelligence Service Act 1969
    
    
14. I oppose new sections 4IA to 4IC governing the use of visual surveillance warrants. The power to film a person in their own home, with their family, is extremely intrusive. It needs to be subjected to the strictest safeguards. Sadly, those covering SIS surveillance are insufficient. Such warrants should only be authorised by judges, not by Ministers. And they should be subjected to full judicial oversight, not hidden behind a wall of secrecy.
    
    
15. The justification for such warrants is "security". In the past, the SIS has shown extremely poor judgement of what constitutes a threat to "security", and the existing oversight procedures have provided no protection. They have spied on politicians and even children. The abuses which could result from allowing them to do so with video cameras ought to be obvious.
    
    
16. I oppose the emergency surveillance powers of new sections 4ID to 4IF. These allow the SIS to exercise its surveillance powers (including the new visual surveillance powers, but also existing powers to e.g. break into people's homes) for up to 48 hours without a warrant where obtaining one would be "impractical" and a delay "is likely to result in a loss of intelligence".
    
    
17. In terms or practicality, it is difficult to see why in this age of cellphones it would be impractical to gain Ministerial authorization. If the concern is that the Minister may be out of the country, then an arrangement similar to s19A Government Communications Security Bureau Act 2003 (which allows other Ministers to authorise interceptions when the Minister is unavailable) would be a more appropriate solution. If the concern is that oversight by the Commissioner of Security Warrants is a delay, then this is effectively an attack on the entire oversight system which needs to be resisted.
    
    
18. In terms of "loss of intelligence", to spies any delay may result in such a loss. The clause effectively serves to circumvent the entire warrant oversight system.
    
    
19. The "safeguards" around this are non-existent. Quite apart from any doubts about whether the Minister would refuse to confirm such a warrant, if a warrant is not granted, the information collected must be destroyed - except for any "relevant to the detection of activities prejudicial to security [or to] the gathering of foreign intelligence information that is essential to security". Effectively this is saying that the SIS can keep the poison fruit of breaking the law. The fine for failing to destroy information is derisory (and as any offence will be secret, there is no prospect of prosecution). These are not proper checks and balances.
    
    
20. A comparison with existing police powers for emergency warrantless search and surveillance shows that the bar to such powers in a free and democratic society is high. Under the Search and Surveillance Act 2012 the police may conduct emergency searches without warrant to prevent the destruction of evidence of serious crime (sections 8 and 15), or where there is a risk to the life or safety of any individual (s14). They may also conduct emergency surveillance using a surveillance device for up to 48 hours in similar circumstances. Note the threshold: serious crime (punishable by 14 years or more imprisonment, or specified offences involving firearms) or a real threat to life and safety. A vague and unsubstantiated "risk to security" simply does not meet this threshold (and in the cases where it does, the SIS should be turning the case immediately over to police, so that they can exercise their powers and prosecute the offender).
    
    
21. While both the visual surveillance and emergency surveillance powers have been compared to existing police powers, it is important to remember that the SIS are not the police. The SIS's goal is to gather intelligence, while the police's is to gather evidence. The former is secret, while the latter must ultimately be revealed in court and withstand judicial scrutiny. This public and judicial oversight provides a further check and balance on the police and gives them a strong incentive to act within the law. As their intelligence is kept secret and used privately, there is no similar incentive on the SIS, and the results can be seen in the dismal history of the service.
    
    Sunset clause
    
    
22. The provisions of this bill have a "sunset" clause and expire on 1 April 2018. While I welcome the sunset clause, the duration seems far too long. The SIS is supposed to be reviewed next year, and I would expect Parliament to treat the outcome of that review as a matter of some urgency (though not the unconstitutional level of urgency displayed in the passaged of this bill). A 2016 expiry seems more suitable.
    
    
23. I do not wish to make an oral submission to the Select Committee.
    

^1. See for example Secretary of State for the Home Department v. MB (FC) (Appellant) [2007] UKHL 46, which found that the use of a similar "closed material proceeding" with "special advocates" violated the fair-trial rights of suspected terrorists.
^2. See OIA response to TechLiberty and the police-customs MOU annex on data access.
^3. As an example, police asked Customs to stop the wife of a suspected drug-dealer at the border so they could download the contents of her cellphone.

The Law Society on the spy bill

At the moment the Foreign Affairs, Defence and Trade committee is hearing submissions on John Key's Countering Terrorist Fighters Legislation Bill. One of the first submitters was the Law Society. So what did they think of it? It is a disproportionate response to the problem:

some provisions in the Bill substantially interfere with and reduce human rights and individual liberty. Thus, the powers taken should be limited strictly to what is required by the threats that have arisen.

They're recommending that the term for passport denial not be extended, and that it be subject to stronger judicial review. They think that there's a very weak case for visual surveillance powers. Visual surveillance seems less appropriate for intelligence work, and the threshold in the bill is significantly lower than that required by police for such surveillance. As for warrantless emergency surveillance, they again note that the threshold is far too low, the period too long, and the safeguards nonexistent. They also criticise the use of urgency and the extended "sunset clause".

These are all strong criticisms. If you'd like to add your voice to them, please submit. There's a submission guide here. Just do it quickly, because submissions close today.

John Key's TXTs and the Public Records Act

Today in Question Time, in response to further questions about the Prime Minister's communications with sewerblogger Cameron Slater, Steven Joyce (on behalf of the PM) informed the House that Key deletes all his text messages, "in case his phone is lost".

Pretty obviously this is useful for Key. It means that there is no evidence of what he's been saying to who. But it is a problem for us, because legally Key's texts are a public record. If they contain substantive discussions or decisions, then there is a duty to retain them, or a summary, as part of the Prime Minister's obligation to maintain full and accurate records. If no such summary is created - and Joyce seemed to suggest that there is not - then deleting them is a criminal offence.

Is Key going to face prosecution? Of course not. Even if the Chief Archivist - who is now an employee of the Department of Internal Affairs rather than an independent public servant - stood up for the law and took their duty to act independently seriously, the police would simply laugh at it. Where the Prime Minister is concerned, the law apparently means nothing.

Meanwhile, you might want to ask yourself: why would a politician with nothing to hide delete public records?

No freedom of speech in Pakistan

Veena Malik is a Pakistani actor. In May this year she played a role in a historical wedding scene based on the marriage of one of Muhammed's daughters. For this, she has been sentenced to 26 years in jail for blasphemy:

Veena Malik has expressed her anger and disbelief after she was handed a 26-year jail term by a Pakistani anti-terrorism court for ‘malicious acts’ of blasphemy.

Her crime? Appearing in a pretend wedding scene, staged on a daytime show broadcast by Geo TV and based on the marriage of the Prophet Mohamed’s daughter.

The programme sparked a wave of controversy in the Islamic country when it aired in May, despite the fact similar scenes had been aired in the past to little or no such public outrage. Some even apparently suspected that Pakistan’s military were behind the mock wedding, and that it was put on in a bid to wage a blasphemy war against the broadcaster.

Malik’s husband, Asad Bashir Khan, and Mir Shakil-ur-Rahman, the chief executive of the biggest media group in the Asian country, were further sentenced to 26 years behind bars for the apparent religious offence. The host of the show Shaista Wahidi was also punished.

I'd suggest that the Pakistani courts are incapable of distinguishing between fiction and reality, but as this is a religious offence, that's a given.

Climate change: Rising seas

One of the primary consequences of climate change is sea-level rise due to thermal expansion and melting ice. What impact will this have on New Zealand? The Parliamentary Commissioner for the Environment is going to tell us:

The Parliamentary Commissioner for the Environment, Dr Jan Wright, has warned that flooding and erosion from rising sea levels will have a large impact on many New Zealanders in their lifetimes.

Today the Commissioner released a report that explains the science of sea level rise, one of the major consequences of climate change. A second report, due next year, will show which towns and cities are most vulnerable. It will also assess the risk to roads, buildings, stormwater systems and other infrastructure in those areas.

Its the second report which will really be interesting here, but this is a good start. And it gives us an idea of what to expect: 30 centimetres by mid-century, and a metre by 2100. And that is going to mean some big, and disruptive changes. Just around Wellington, that 30cm by 2050 is going to mean that the Hutt Road, the Hutt-Wellington railway line, Petone and Eastbourne will become increasingly vulnerable to storms (and Eastbourne already loses houses this way); a metre may make those transport links untenable without major engineering work. And of course there will be the impacts on coastal property - some owners of which resolutely have their fingers in their ears and are trying to gag councils to enable them to dump their junk on suckers preserve the "value" of their "assets". Adapting to this is going to cost a lot of money - money we wouldn't have to spend if we, and the world, had acted sooner.

The full report can be read here.

Submission guide: Countering Terrorist Fighters Legislation Bill

I've just completed my submission on John Key's Countering Terrorist Fighters Legislation Bill. In the past I've posted my submissions, but that has tended to lead to a bunch of people copy-pasting them, which has in turn reduced their impact (MP's hate spam-submissions). So I'll post it tomorrow, and instead do a quick guide on how to write your own. Remember, submissions are due tomorrow, so write fast!

Some points you may want to make:

• The government has not made a case for the inadequacy of the current passport regime. In particular, it hasn't explained why a one-year cancellation / refusal is insufficient, or why going to court to get an extra year doesn't work. Indeed, there's no evidence at all that they've ever gone to court to extend a cancellation.
  
• The ability to cancel the passports of people overseas creates a risk of rendering people stateless and constitutes a de facto sentence of exile imposed by Ministerial fiat.
  
• The ability to suspend a passport for 10 days without evidence is (by definition) an arbitrary infringement of people's freedom of movement, and makes all our international travel subject to Ministerial whim.
  
• The ability to use secret evidence in appeals against these actions violates the right to justice and undermines the credibility of the courts. They should have learned this from Ahmed Zaoui.
  
• Giving the police and SIS access to Customs data effectively circumvents the safeguards on their search powers, at least where the target of an investigation may be travelling overseas.
  
• Visual surveillance is highly intrusive, and given their past poor judgement and collection of irrelevant material, the SIS cannot be trusted with such powers.
  
• 48-hour emergency surveillance powers seem designed to circumvent existing safeguards, while permitting the SIS to retain anything "interesting" they find. There are other solutions, including designating alternative Ministers who can approve warrants (as is done for the GCSB). In cases of real emergancy, such as a threat to life, the police already have the necessary powers, and cases should be turned over to them.
  
• The short period permitted for submissions is ab abuse of the democratic process.
  

Once you've written it, you can submit through the online form here. Remember, you've now got less than 24 hours to do so, so be quick about it.

This takes the cake

The Inspector-General of Intelligence and Security is now threatening John Key's victim with prosecution:

As the Inspector-General stated at the release of the report yesterday morning, she is examining what steps to take over the early disclosure of information from the report.

That disclosure was contrary to the non-disclosure obligations under which affected parties received some limited prior notice of the report and was also unfair to others.

Ms Gwyn said that she was aware of Mr Goff's subsequent statements that he had disclosed some information concerning findings in the report. She will be seeking further information from Mr Goff and others.

The broadcast or publication of that information may also have contravened the IGIS Act and, in any case, these events raise questions for the handling of future reports. Any issue of prosecution will, however, be for the Police.

Presumably such a prosecution would be under section 29 Inspector-General of Intelligence and Security Act 1996, which prohibits the unapproved publication of IGIS reports. But it is difficult to see how such a prosecution could possibly succeed, because the report was approved for release. While it was discussed with the media before the IGIS made her announcement, a press embargo is a PR measure, not a security one. Any court with a proper respect for the right of freedom of expression affirmed in the BORA would find that. The IGIS doesn't have a leg to stand on. Instead, by attempting to bully a victim of the SIS (and an MP), all she has done is bring her office - and the whole idea that it is an effective check and balance on SIS behaviour - into disrepute. And if they're going to try and bully Members of Parliament - their ultimate bosses - I'm happy to see both the IGIS,and the spies she supposedly "oversees", shut down permanently.

Submit!

The Foreign Affairs, Defence and Trade committee has called for submissions on the Countering Terrorist Fighters Legislation Bill. Submissions can be made via the online form and are due by Thursday, 27 November 2014.

Yes, that's right. An important bill with major human rights implications, and we have one day to speak up about it. The consistency of this with our democratic norms is left as an exercise for the reader.

Still, we need to submit. While National is wholly committed to the spy deep state, its support partners and opposition parties aren't. Every other party is extremely uncomfortable with these measures. And while the committee has a solid National majority and will rubberstamp whatever the Prime Minister wants, there's a good chance that the bill will at least be toned down in order to secure a majority for the second reading. While I'd prefer to see it defeated (and the spies who asked for it sacked and their agencies disbanded), any improvement would be good.

Making their own terrorists

Last year, two men murdered a British soldier in the middle of a London street. Now, the UK's Intelligence and Security Committee has found that MI6 may have directly contributed to one of the killers' radicalisation:

The British government may have been complicit in ill-treatment of Michael Adebolajo, one of Lee Rigby’s killers, during his detention in Kenya, the intelligence and security committee has said.

The official inquiry into the circumstances leading up to Rigby’s murder also criticised evidence from the former MI6 chief Sir John Sawers, saying it was incorrect and that a document showing this was initially not given to the committee by the intelligence service.

Adebolajo alleged that he was beaten and on more than one occasion threatened with electrocution and rape during his detention in Kenya in 2010. The ISC said he had gone there to join extremists in neighbouring Somalia.

The implication: if MI6 hadn't been complicit in Adebolajo's torture, he might not have gone on to behead someone. British spies helped create one of the terrorists they use to justify their budgets and powers.

Its just another example of how the war on terror is a hugely counterproductive exercise which exacerbates rather than prevents terrorism. Sadly, the spies and generals who gain power and prestige from waging it and the politicians who have to appear "tough" seem incapable of understanding that. And its ordinary people, not those spies, generals and politicians, who pay the price.

Vodafone collaborates in mass-surveillance

The latest analysis of the Snowden documents shows that Vodafone is actively collaborating with GCHQ's mass-surveillance programmes:

One of the UK's largest communications firms had a leading role in creating the surveillance system exposed by Edward Snowden, it can be revealed.

Cable and Wireless even went as far as providing traffic from a rival foreign communications company, handing information sent by millions of internet users worldwide over to spies.

The firm, which was bought by Vodafone in July 2012, was part of a programme called Mastering the Internet, under which British spies used private companies to help them gather and store swathes of internet traffic; a quarter of which passes through the UK. Top secret documents leaked by the whistleblower Edward Snowden and seen by Channel 4 News show that GCHQ developed what it called "partnerships" with private companies under codenames. Cable and Wireless was called Gerontic.

Under the moniker, the company carried out tests on equipment used to carry out the surveillance, it came up with suggestions on how the spies could go about tapping its network, and even had a GCHQ employee working full-time within the company.

So Vodafone are quislings who collaborate with spies. But it gets worse. One of the leaked documents shows that Vodafone (as well as REMEDY (British Telecom), PINNAGE (Global Crossing) and LITTLE (Level 3)) rent space on the Southern Cross cable. Why is this relevant?

a 2011 document reveals that Cable and Wireless went further. The company rented space on a cable owned by Indian telecoms company Reliance Communications that stretched from Asia across the Middle East and landed in Porthcurno in Cornwall. Reliance's transatlantic cable lands in Sennen Cove six miles to the north. And the two cables come together at nearby Skewjack Farm. Documents show that in 2011, this allowed Britain's spies to access all traffic from Reliance's main cable and send it to the GCHQ base up the coast in Bude.

Let a GCHQ "partner" onto your cable, and GCHQ gets all your traffic. They don't need to physically tap the cable - they just get their quislings to take it all off at the landing site. So the very people we are trusting to protect the security of our communications are instead betraying us to foreign (and possibly our own) governments.

A surveillance power-grab

Section 7 of the government's spy bill introduces a new power for police and SIS to access information held by Customs. Its not mentioned in the press release, and the bill's explanatory note is extremely vague. So what's it about? Fortunately, the BORA-vet is explicit: its about allowing police and SIS access the fruit of Customs' warrantless border-search powers:

38.The Customs and Excise Act contains significant search and surveillance powers. As an example of one such power, a High Court decision has held that s 151 provides that a Customs officer may examine or analyse any goods that are subject to the control of Customs or the officer has reasonable cause to suspect are subject to the control of Customs. Section 151 is designed to provide Customs officers with the widest possible powers to deal with persons who arrive in New Zealand from overseas. Customs officers are entitled to examine and analyse such articles as may be of interest to them by any means whatsoever. Section 151 does not provide a requirement of reasonable cause or suspicion of criminal activity, and the information obtained may be retained for law enforcement purposes. An example of the information obtained includes data downloaded from a cell phone. [17]

39.It is entirely appropriate for Customs to have wide latitude to search and seize goods at the border without a warrant for the purposes of border protection. What is of issue is NZSIS and Police having access to data taken by Customs without a warrant for border protection and then using it for other purposes such as investigation of suspected criminal offending. We consider that comprehensive examination of data, either from cell phones, laptops or other storage media, for general law enforcement purposes would require at least reasonable suspicion. [18]

40.The Bill states that the use of Customs’ information by NZSIS and Police is for the purpose of conducting counter-terrorism investigations. The investigations involve addressing serious threats to safety or property and the information taken by Customs is in the strictly regulated environment at the border. This power to access Customs’ information will be subject to a sunset clause expiring on 1 April 2018. In addition, in November 2013 Cabinet agreed to a full review of the Customs and Excise Act. The review process now underway aims to develop new legislation that improves facilitation of travel and trade through the border, supports Customs’ border management and has the flexibility to adapt to new technologies and developments. It is intended to have new legislation passed in 2017.

41.Based on the above, we consider that access to Customs’ information for the limited purpose of counter-terrorism investigations appears to be a reasonable search and seizure.

[Emphasis added]

The prospect of the police using Customs to circumvent warrant provisions is one I've raised concerns about in the past. The Minister of Justice has just said that it's illegal, but that she's OK with legalising it (because "national security" justifies spies poking through all your text messages and data without a warrant). But the fact that she's said its illegal invites the obvious question: how many times has Customs broken the law by providing border search information to police or the SIS? And will they be held accountable for it?

Another shoddy analysis

What's the case for the government's Countering Terrorist Fighters Legislation Bill? I've been reading the bills Regulatory Impact Statement, and the short version is that there isn't one.

A RIS is a vital part of the quality control process for government policy. The guidelines for RIS's are laid out in treasury's Regulatory Impact Analysis Handbook. A RIS should state the status quo, define the problem and objectives, identify the range of feasible options, and analyse them. Often this is a game of salmonella, with options chosen simply to frame debate and push approval of the government's preferred option. But the mere fact that they have to do that, and assess the costs and benefits of their preferred policy against a default option of doing nothing, means that we get some idea of whether a policy stacks up.

The spy-bill RIS doesn't bother with this. It has a problem, it has a preferred option, and that's it. No alternatives are considered, and there is no cost-benefit analysis. There's not even any human rights analysis (another regular feature of RISs). It is, in short, a shoddy and unprofessional piece of work. Just like their last one (and note that it is the same public servant signing off on both of them).

What about the BORA-vet? Amy Adams thinks the bill is consistent with the Bill of Rights Act. Taking people's passports away, exiling them from New Zealand without charge or trial, sticking video-cameras in people's bedrooms without a warrant? All fine according to her. National security trumps fundamental human rights, and the SIS's desire to spy trumps any safeguard. If this is an example of how the BORA-vet process works, its just another example of why we need judicial rather than political oversight.

Counterproductive

Since June, the US has been bombing Iraq. Since September, they've been bombing Syria. In both cases, the aim is ostensibly to stop ISIS. So how's it working out?

About as badly as you'd expect:

US air strikes in Syria are encouraging anti-regime fighters to forge alliances with or even defect to Islamic State (Isis), according to a series of interviews conducted by the Guardian.

Fighters from the Free Syrian Army (FSA) and Islamic military groups are joining forces with Isis, which has gained control of swaths of Syria and Iraq and has beheaded six western hostages in the past few months.

Some brigades have transferred their allegiance, while others are forming tactical alliances or truces. Support among civilians also appears to be growing in some areas as a result of resentment over US-led military action.

In other words, murdering people from the air has strengthened support for ISIS. Its been a hugely counterproductive effort. Much like the war on terror itself.

And John Key wants us to involve ourselves in this mess? I can't think of anything stupider.

No justice in America

On August 9, police officer Darren Wilson shot and murdered Michael Brown in Ferguson, Missouri.. The shooting of unarmed black men by American police is so routine that they don't even bother to keep statistics on it. And of course, they never prosecute. Today a grand jury continued that trend, deciding that Wilson will not stand trial.

The message is clear: there is no justice in America. If you're black, the police can kill you with impunity.

People in Ferguson are angry, and rightly so. The justice system has failed them. Their police have failed them. Their government, at all levels, has failed them. And not just with this decision, but the military force and oppression their protests have been met with over the last three months. Its clear that "their" government does not regard them as equal citizens, with rights to life, justice and freedoms of assembly and speech, but as a troublesome underclass to be beaten, intimidated, and ultimately killed into submission. 150 years on from the end of slavery in America, and nothing has really changed.

Abuse of power: The OIA / public records dimension

One of the things to emerge from the "dirty politics" report is that the SIS pissed all over the OIA:

The NZSIS also made a significant error in considering information requests by the news media. Such requests were, from 25 July to 5 August, not treated as OIA requests but simply denied.

Meanwhile, they were bending over backwards to accommodate Slater's request. But despite the fact that they'd gone to the same email address and it was the same staff handling them, the IGIS finds no politicisation; instead the SIS suffered from doublethink, an imagined distinction between "media inquiries" and OIA requests. There is no such distinction. As the law makes clear, any request to a Department, a Minister, or an agency, is legally an OIA request, and has to be answered. And every time a Minister says "no comment" to a duly particular media inquiry about information they hold in their capacity as a Minister, they are breaking the OIA and could become the subject of an Ombudsman's complaint.

And then there's this bit:

I issued a production order to Mr Ede in respect of his personal email accounts after it became apparent from evidence, including evidence provided directly by Mr Ede, that some of the correspondence pertinent to this inquiry was conducted from non-official email accounts. Upon receipt of the production order, Mr Ede provided a supplementary written statement to the inquiry in which he advised that the emails had been permanently deleted prior to the commencement of the inquiry and could not be recovered. I made my own enquiries and confirmed this was the case.

The IGIS is primarily concerned about the security implications of this, but there's another one. Insofar as they deal with official Ministerial business - and if it deals in any way with official information its Ministerial business, as Ministers do not hold such information in their political capacity as MPs - then this appears to violate the Public Records Act, putting Ede on the hook for a $5,000 fine per email. Its small potatoes, but in the absence of a crime of "crimes against democracy", it will have to do. Meanwhile, we have to wonder how many other Ministerial staff are doing this in an effort to evade the OIA. Its time for the Chief Archivist to do an audit.