George Tenet, director of the US Central Intelligence Agency from 1997 to 2004, once professed that “organisations such as the CIA exist to defend democracy, not to practise it”. Tenet, a rough-speaking, second-generation Greek-Albanian from Queens, New York, was kidding.
But he was touching on a universal fear that our intelligence agencies might place themselves above the law and that in the pursuit of national security, our vital freedoms might get a secretive short shrift.
It is timely then that a review of the Intelligence and Security Act 2017 has been publicly released. This is the legislation that keeps two of our most important intelligence agencies in check: the Security Intelligence Service (SIS) and the Government Communications Security Bureau (GCSB).
It determines what oversight we give them and how we enable them with warrants. And this review of our current policy – conducted by Sir Terence Arnold and Matanuku Mahuika – is far-reaching.
It might be too far-reaching for some. Recommendations in the review, published on May 29, have already been described as “challenging” by Prime Minister Chris Hipkins. “I don’t think there’s any need for this to become a political football,” he said, promising he would go through the points one by one before providing a “direction of travel”, hopefully by October.
Yet there is every reason to suggest a political football is exactly what Hipkins is worried about. One of the key recommendations is that the sitting prime minister is removed from Parliament’s intelligence and security committee on the grounds that national security priorities might become politicised. Another report waiting in the wings is New Zealand’s first national security strategy. This was expected to be out by May or June, yet it’s thought we may not see it until after the election. It is curious that Hipkins, who has a solid reputation as a “minister for crises”, seems reluctant to discuss ideas that deal precisely with the management of them.
Much has happened in the six years since the Intelligence and Security Act was shepherded in by Sir Michael Cullen and Dame Patsy Reddy. There is no question the threats levelled against us, whether through cyberattack, disinformation, terrorism, foreign interference or war, aim to test our resilience as a democracy.
The reviewers, Arnold and Mahuika, were investigating four issues: the effectiveness of the act in the control and oversight of the SIS and GCSB; the lack of a “whole of intelligence community” approach to governance; the need to promote meaningful public engagement on national security issues; and how to incorporate security and intelligence functions as much into democratic structures and processes as possible.
The review also takes place as a result of the findings of the Royal Commission of Inquiry into the Christchurch mosque attacks on March 15, 2019.
The commission’s recommendations sent shockwaves through the intelligence and national security sector. It suggested a restructure of existing organisations, including an overarching strategic agency (such as the National Security Council in the US), a new and focused anti-terrorism advisory board and a strengthening of the role of the parliamentary intelligence and security committee.
It also asked whether the 2017 law was fit for purpose and called on the government to demonstrate a greater commitment to transparency and openness. Equally important, it asked the government to be more instructive about what kind of role ordinary Kiwis should play in national security.
There is no question the commission’s recommendations were taken seriously. The Department of the Prime Minister and Cabinet (DPMC) plays the coordinating role in our national security plans and responses. It embarked on the country’s first national security strategy and created a new National Centre of Research Excellence for Preventing and Countering Violent Extremism: He Whenua Taurikura.
The DPMC commissioned a survey of New Zealanders’ interest in national security engagement, which was published late last year along with an assessment of threats in a long-term insights briefing.
It is also doing a stocktake of the national security sector, which may be the most important project as it will help determine how money is spent. The SIS, perhaps stung by accusations of bias in targeting Islamist extremists to the detriment of other ideologies, immediately commissioned an independent review of its processes.
An external investigator from a Five Eyes partner found the SIS not guilty but spurred the agency to think differently about how it categorises violent extremism.
What’s National security?
Arnold and Mahuika, senior legal buffs who were assisted by Penelope Ridings, New Zealand’s representative on the International Law Commission, went about their work comparatively quietly.
At an academic round table they hosted at Massey University last August, they asked what was meant by the effective oversight of our intelligence agencies; how to “democratise” a sector that works in secrecy; and how the law might be future-proofed in a rapidly changing world. It became obvious the work of the reviewers would not be limited to the act itself, but might overlap with the national security policy being considered in Wellington. And indeed it has.
One place where the review has left a very strong impression is in how to determine a workable definition of “national security”. For quite some time, the DPMC generalised national security as an environment where New Zealanders could go about their lives in safety and be able to prosper.
This was vague and provided little guidance if the SIS or GCSB was applying for a warrant to surveil a potential terrorist or foreign agent. According to a DPMC fact sheet, “because of the difficulties defining ‘national security’, Parliament changed the bill. The act now avoids defining national security in legislation and instead lists clearly the types of activities and threats that are covered.”
More recent attempts to redefine national security have steered towards such phrases as protecting New Zealand “from malicious threats to our interests from those who would do us harm”. Arnold and Mahuika take a slightly different approach. They suggest a definition that “means the protection of New Zealand, its communities and people from activities that are threats, because they undermine or seek to undermine, one or more of New Zealand’s a) territorial integrity and safety, including the safety of its communities and people, b) sovereignty, democratic institutions, processes and values, c) multicultural and diverse social fabric and d) essential interests, including critical infrastructure and governmental operations; and includes identifying and enabling the assessment of such threats”.
There is an important distinction between emphasising human agents as targets of intelligence watchfulness and the activities that seek to undermine our safety. Any focus on individuals in a definition will ultimately determine how our intelligence agencies see their role: their job will be to find the bad guys.
The metric employed by the SIS since 2021 identifies four categories of violent extremists: politically motivated, faith-motivated, identity-motivated and single issue-motivated. The SIS is careful to argue that the emphasis is on violent extremism first. Yet clearly the objective is to identify the extremist before they become violent. The question is how early.
There is a danger that any law or policy that focuses on “those who would do us harm” has a cumulative effect when coupled with metrics of motivation based on such things as politics, faith and identity. We are asking those at the front line of national security to do a very important job and it is incumbent on us for our instructions to be clear.
Political bombshell
The second – and perhaps the bombshell part of the review – addresses concerns about the politicisation of national security. In short, we trust our political leaders with too much.
In discussions with Dominic Grieve, former chair of the UK Parliament’s security and intelligence committee, it is clear the reviewers believe national security oversight is better left out of the hands of the most senior politicians. (The Boris Johnson government delayed the publication of the Grieve committee’s potentially embarrassing report on Russian interference and prevented it meeting for eight months, presumably to the same end.)
While acknowledging that then prime minister Jacinda Ardern did much to enhance the role of our parliamentary intelligence and security committee, including having more frequent meetings and making classified information more available, the reviewers made plain their view that the committee has not played an adequate role in the oversight of our intelligence agencies in the past.
The prime minister should no longer sit on it and the chair and deputy should be elected by members who could in turn be drawn more widely than from the two main parties that traditionally dominate (James Shaw currently sits, and Winston Peters has in the past). Their preference is for a “working committee” that conducts inquiries, holds public hearings where needed and publishes detailed reports.
Hipkins has argued the proposed system may be unworkable, citing the small size of New Zealand’s Parliament relative to such Five Eyes partners as the UK.
His feeling, which was anticipated by Arnold and Mahuika, was that Parliament did not have the talent pool available to replace well-briefed and security-cleared political leaders with backbenchers. In the UK there are seasoned MPs who spend their entire careers sitting on select committees who don’t aspire to higher positions.
Arnold and Mahuika are adamant we should find a way to make this work, saying, “We have no doubt that [the UK and Canadian committees] provide more democratic oversight than their New Zealand counterpart.” While it is not discussed in the review, it is clear the door has been left open to co-opt members to the committee.
That could include ex-MPs, community and business leaders or legal and academic experts. If the committee is to become a more active participant in oversight and control, it would make sense to put people on it who can do the work required.
A further recommendation made by the intelligence and security committee masks a deeper concern of the reviewers: the lack of oversight of agencies additional to the SIS and GCSB, particularly military intelligence but also a number of ministries that have developed their own capabilities.
These agencies are out of the reach of the act and the committee yet are beginning to cross paths with the work done by the traditional spy organisations. There has been concern voiced that some of these agencies are tapping into the kind of information sold by big-data companies to learn more about their New Zealand “customers”. If so, it places more urgency on them coming under the kind of watchdog scrutiny that the SIS and GCSB do.
Social-policy role
A last matter, and one that indicates the review’s far reach, is the final resting point of the national security definition. The original loose proposition that national security allowed New Zealanders to go about their everyday lives in safety and prosper may have come back to haunt us. It may now be considered too big an ask because it invites national security policy to tackle some of the stickier issues of social policy.
There is no doubt the original intention of producing New Zealand’s first national security strategy was to embrace the concerns of the royal commission on the mosque attacks. In the same breath, as the commission discussed strategies to address terrorism, it asked the government to “prioritise the development of appropriate measures and indicators (such as the Living Standards Framework) of social cohesion, including social inclusion”.
In launching He Whenua Taurikura, the DPMC also offered 15 master’s scholarships seeking research on themes of terrorism and social cohesion. It seems Wellington may at that point have been keen to develop a strategy where national security touched upon, if not fundamentally motivated, social policy. After all, the roots of homegrown terrorism, the spread of disinformation, and willingness to respond to foreign interference are embedded in poverty, lack of education and access to (mental) health care. Should such a national security strategy be achieved, it would marry the threats – both internal and external – that New Zealand is facing to a strategy of betterment that is all-encompassing: truly progressive politics.
Instead, there has been a drive to ring-fence national security: acknowledging it overlaps with social policy but seeing it as a distinct domain.
Pulling strategies that counter homegrown terrorism, disinformation and the like away from social policy may be pragmatic, but it risks shortsightedness. There is a danger that “those who would do us harm” definitions would have an effect on all subsequent thinking; for example, instead of asking why disinformation spreads quickly among certain communities and ideological persuasions, we may instead focus only on the disinformers.
Arnold and Mahuika’s definition of national security asks us to think about how we can protect and defend our democratic institutions. George Tenet’s quip that national security organisations exist to defend democracy, but not to practise it, is incisive. We need the political will to do both.
Peter Grace lectures in politics and security at the University of Otago.
