Kitteridge Report suggests "unclear legislation" allowed for GCSB to illegally spy on New Zealanders. But the real responsibility lies elsewhere
The Kitteridge Report on New Zealand's intelligence agency, the GCSB, is written in polite bureaucratic language but the activities it documents amount to a gross breach of the GCSB’s responsibility to the New Zealand public. There are some sensible parts of the report but Rebecca Kitteridge is too generous to the GCSB when she suggests that the problems arose in part from unclear legislation.
This is not a technical legal issue about unclear legislation. The GCSB has had a clear, long-term pact with the public. It claimed the right to spy on countries and join in wars without telling us anything about it, but it gave an assurance that it would not spy on New Zealanders. This reassurance has been repeated year after year and is
written into legislation.
I am embarrassed to say that I heard the unequivocal assurances and read the clear prohibition in the GCSB legislation, and I believed that they did not spy on New Zealanders. But it turns out they have been regularly spying on New Zealanders from before 2003 and since.
They have seriously let down the public.
Both her report and John Key have suggested that the GCSB legislation needs to change. But this call for "legislative clarification" is worryingly ambiguous. Reports now suggest Key will decide to solve the problem by permitting the GCSB to spy on New Zealanders. That is, simply making the illegal spying legal.
The GCSB's public standing is already at an all time low. I believe that legalising domestic spying, and going back on the long-term reassurances made to New Zealanders, will seriously damage public opinion towards the GCSB. The GCSB would be foolish to ask for this and the Prime Minister would be foolish to grant it.
Does the NZSIS need the GCSB's massively intrusive spying capabilities to do its job? No, it does not. Spy agencies always want the maximum powers they can get, but no sensible country would turn itself into a police state supposedly to protect its citizen’s freedoms.
It would possibly help the spy agencies to have little spy cameras in every person's home but we don't do that because the intrusion isn't justified for protecting New Zealanders. We shouldn't turn the GCSB's Cold-War-style spy equipment against New Zealanders either.
Who is to blame for the illegal spying? One of the distasteful parts of this affair is that a lot of the blame is being loaded onto the GCSB's former legal officer, Hugh Wolfensohn. This is distasteful because in the New Zealand system of government we shouldn't put responsibility on unelected public servants. But it is obvious why it
is convenient to blame him. In our system the person who should be responsible is the minister in charge of the GCSB, John Key.
If there was systemic unlawful activity inside Inland Revenue or some other government department, the proper thing would be for the minister to resign. It's called the system of ministerial responsibility, where a minister has ultimate responsibility for the actions of their department.
I think the former GCSB legal office is being publicly scapegoated because this happens to be the Prime Minister's responsibility and Key doesn't want to wear it.
But the faults in the GCSB that led to the illegal spying were not about one individual. They were about organisational weaknesses.
Secrecy has made them complacent and sloppy, and compliance with the law and faithfulness to the New Zealand public has not been taken seriously enough. The GCSB staff numbers rose by 150% in the decade after the September 11 attacks, a larger rise possibly than any other government agency. Yet with all those new staff, in a period when the GCSB was involved in the murky area of war-on-terror spying, it continued to have only one part-time legal officer.
This is not the fault of the part-time legal officer. It is the fault of the people overseeing the GCSB and making the decisions about staff and priorities. In this, all roads lead to the Prime Minister.
Right from the first publicity about illegal GCSB spying on Kim Dotcom, there has been a concerted effort by the government to try to avoid any blame or responsibility falling on Key. But that is where it ultimately belongs.