Key needs to read the GCSB Act

Written By: - Date published: 8:37 am, October 2nd, 2012 - 23 comments
Categories: democracy under attack, john key, Spying - Tags:

I’ve just heard a clip on the radio from yesterday’s post-Cabinet press conference where Key says that we would all be very scared if he had control over the GCSB. That might be an insight into his vision of dictatorship on Planet Key, but it’s also wrong. Key is the only democratic control on our spies and he has extraordinary oversight. Every warrant the spooks need – which is “some” per year according to the GCSB’s annual report – has to be approved by Key.* The legislation says that he has to exercise “control” over the spies. Is he exercising that role properly, or is he just signing whatever the GCSB puts under his nose?

*(the spying on Dotcom, we’re told, would not have required a warrant had it been legal because it didn’t involve installation of bugs or hacking of computer systems)

23 comments on “Key needs to read the GCSB Act ”

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  1. Hilary 1
    2 October 2012 at 8:55 am

    I thought that the GCSB Act actually specifies the Minister has ‘control’ of the agency. This wording is not found in other Acts.

  2. mickysavage 2
    2 October 2012 at 9:00 am

    I agree that we should be more afraid if there is no democratic overview of GCSB.  If there was no overview I predict that GCSB would make a habit of overstepping its powers, acting without legal authority and showing no respect for the rights of individuals … just like it is now funnily enough.

  3. framu 3
    2 October 2012 at 10:07 am

    also – hes deliberately (or not) confusing the issue – i dont think anyone saying he should be controlling every aspect of GCSB operations.

    Its the fact he didnt seem to know about a huge multi national and multi agency operation and didnt catch that it was illegal (or get it checked to make sure for himself) – he didnt do his job of ministerial oversight

    not that the GCSB decided to do it or what colour shoes they wore

    Its not the first time a pollie has deliberately reworded things to muddy the waters

    • Draco T Bastard 3.1
      2 October 2012 at 10:57 am

      +1

      He definitely should have known about a multi-national operation that the GCSB was taking part in.

      • insider 3.1.1
        2 October 2012 at 11:29 am

        is he a psychic? How can he know if it is kept from him (either deliberately or by oversight)? What process or method should he employ?

        “hey guys, just in case I get asked, you haven’t been doing anyhting illegal this month have you?”

        • framu 3.1.1.1
          2 October 2012 at 12:16 pm

          yeah your missing the point too

          – Keys is using the “people are saying i should be deciding every detail” line to reframe the criticism

          when the issue isnt him knowing every detail – but him knowing the major detail

          do you think key needs to be making decisions about who gets investigated in order to be informed about whats going on?

          Please dont tell me your that silly

          • insider 3.1.1.1.1
            2 October 2012 at 12:54 pm

            I come back to the question: How does he know if he is not told by the people in positions of trust in his department? What systems would you put in place that balance the separation of the minister from operational issues with those things he ‘needs’ to know?

            • framu 3.1.1.1.1.1
              2 October 2012 at 1:14 pm

              you can come back to your question till kingdom come – but its still got nothing to do with john key trying to frame the criticsim of his performance as being somehow a call for him to decide who the gcsb investigates.

              do you think taking an active decision making role is the same as being informed?

              because thats what key is trying to claim

              • insider …
                2 October 2012 at 1:40 pm

                It is not a reframing it is pointing out the delicate balance that exists between ministers and depts and the risks entailed when people like you and Russel Norman, with the benefits of hindsight, demand perfect knowledge. What should he have done and when, and how should he have known to do that?

                Ministerial oversight does not include directing the bureau or digging in to find out what operations it is carrying on, and that if he takes on that role there are very real risks. The Director is responsible for operations. If the minister starts digging round wanting to randomly know details of operations, there is a risk he then starts telling them what to do and to whom – look at what happened to Benson Pope and Nick Smith for examples of how easily and badly that can go wrong. That is not something I want and not something history tells us is a good thing when it comes to state security agencies.

                • Colonial Viper …
                  2 October 2012 at 2:23 pm

                  It is not a reframing it is pointing out the delicate balance that exists between ministers and depts and the risks entailed when people like you and Russel Norman, with the benefits of hindsight, demand perfect knowledge.

                  But we don’t need Key to have “perfect knowledge”, do we?

                  We simply want to know what Key knew about a major surveilliance operation carried out by the organisation he happens to oversee. An operation which was carried out in preparation for a major US-NZ armed law enforcement action. It seems like Key should know if the GCSB is helping out the FBI in preparation for an armed raid, don’t you think?

                  You seem to be saying that there is nothing to answer for at the top in what was a very clear balls up.

                  Ministerial oversight does not include directing the bureau or digging in to find out what operations it is carrying on, and that if he takes on that role there are very real risks.

                  Again, it’s not what we’re asking for. Ministerial oversight includes ensuring that the organisation you are responsible for is not acting illegally and outside of their mandate. And if concerns of that nature are raised, Ministerial oversight includes finding out what the fuck happened, and how the fuck it happened.

                  • insider …
                    2 October 2012 at 3:07 pm

                    Who said it was ‘a major surveillance operation’? Only you and only in hindsight. It could be fairly mundane in terms of what they do day to day. And they weren’t working with the FBI, they were working with the NZ Police. And if that is the threshold for telling the minister, that’s a pretty low threshold for an organisation that is probably working daily with a number of major overseas intelligence agencies.

                    Key accepts that he is accountable for the bureau activity. He’ told them he should have been briefed on the operation (given its high profile) and presumably set new rules of engagement in place.

                    There is an ongoing failure to point out when he shoudl have known and how he should have known that in the absence of his own people telling him.

                    • Draco T Bastard …
                      2 October 2012 at 6:51 pm

                      And they weren’t working with the FBI, they were working with the NZ Police.

                      The police were working for the FBI and so, by extension, was the GCSB. This should have been communicated to the GCSB by the police and then on to the minister(s) responsible. This raises two questions:
                      1.) If that information wasn’t passed on why wasn’t it and who failed to do so?
                      2.) If that information was passed on why is John Key now telling us that it wasn’t?

                    • Colonial Viper …
                      2 October 2012 at 6:58 pm

                      There is an ongoing failure to point out when he shoudl have known and how he should have known that in the absence of his own people telling him.

                      How do you know this is what happened? Have the results of the investigation been published somewhere?

                • McFlock …
                  2 October 2012 at 2:41 pm

                   If the minister starts digging round wanting to randomly know details of operations, there is a risk he then starts telling them what to do and to whom – look at what happened to Benson Pope and Nick Smith for examples of how easily and badly that can go wrong. That is not something I want and not something history tells us is a good thing when it comes to state security agencies.  

                    
                  So in other words, the minister who is required by legislation to “control” the department should not know what the department is doing in case it tempts the minister to control that department? 
                         
                  The very fact that the GCSB apparently broke the law and did not inform its democratic master before, during or after doing so demonstrates that the greater risk comes from an unsupervised security department.
                            
                  Therefore Key and English were negligent in their oversight of the security services. With consequences that edge us closer to the banana republic dictatorship those services should protect us from. Couple that with shit like ECANZ and CERA, key looks less like a dick and more like a psycho driving the country to the lip of an abyss.

                  • insider …
                    2 October 2012 at 3:21 pm

                    People break the law deliberately and inadvertantly all the time. Govt departments and employees aer no exception. We don’t have precogs to stop that. Unless you come up with some new miracle cleaner that can stop it, no amount of law writing or controls will ever be enough. All you can do is clean up the mess afterwards and try to learn.

                    GCSB broke the law, but only after taking legal advice from qualified people experienced in the field that it wasn’t. There is nothing ministerially negligent in that. The minister wasn’t told about involvement in KDC at the time. That was a judgement call by officials. Again how is the minister negligent? The minsiter was told when GCSB realised its legal error. Yet again, what should he have done? Sought an alternative legal opinion about something he didn’t know was happening, that had been legally misinterpreted before he even knew it had been, just in case?

                    • BloodyOrphan …
                      2 October 2012 at 3:27 pm

                      Hang on a minute, If Dotcom had an application for residency in the works, then he must a given certain rights within NZ while it’s being processed.
                      Furthermore he was granted residency, so those rights would have been upheld.

                      Those minister(s) must have ordered the Investigation, otherwise the above fact would have stopped the GCSB in it’s tracks.

                    • McFlock …
                      2 October 2012 at 3:39 pm

                      1: the minister failed to communicate and demand acceptable standards of behaviour from his department;
                        
                      2: the minister failed to hold his department accountable when failures in those standards eventually came to light;
                        
                      3: the minister has fostered a culture within his department, cabinet and government which regards “legality” as a negotiable value that should be pushed to the limit that you can buy a legal opinion around, rather than a line that should be avoided on the side of caution;
                       
                      4: the minister failed to keep tabs on the department he is legally obliged to control;
                         
                      5: the minister failed to maintain communication with his deputy regarding important decisions made in his absence;
                          
                      6: the minister failed to ensure that the other security services overseer kept tabs on the activities of the minister’s department;
                           
                      7: the minister tasked an overseer who failed to detect an apparent illegality by the department at the time to determine why the apparent illegality occurred, leading to a conflict of interest (if the responsibility for the apparent illegality rests with the department the investigator was overseeing, the investigator failed in their monitoring duties. This is an incentive to scapegoat someone other than the department).
                           
                           
                      All in all, Key’s demonstrated gross incompetence in governing a single department, let alone the country.

                    • framu …
                      2 October 2012 at 4:49 pm

                      “The minsiter was told when GCSB realised its legal error”

                      um – wasnt the illegal spying continued after that point?

                      didnt key previously say he hadnt heard of KDC till the day before the raid?

                      So which is true?

                      i dont think key was kept in the dark at all – but even if we take him at his word – it still doesnt add up – hes telling fibs somewhere.

                      And for the record – im not demanding perfect knowledge – just the teeny tiniest skerrick of knowledge

                    • McFlock …
                      2 October 2012 at 5:09 pm

                      Ah, but when the GCSB were originally told that they were in error, they had followed Key’s “water quality scientist” example and reckoned they had legal opinions to say different. They only “realised their error” when it became obvious to them that their legal opinions were bullshit and they were in the crap. I.e. September, when the court case began to make it relevant.
                               
                      And that’s the “best-case scenario for Key, even though it stinks like a waterway in dairy country (“perfectly clear, 100% pure” reckons Key’s science consultant). 

                    • insider …
                      2 October 2012 at 5:29 pm

                      1: where’s the evidence for this?

                      2: so why the investigations going on?

                      3: again you are making this up.

                      4: no evidence of that

                      5: perhaps but I think this is more an official’s job.

                      6: again no evidence

                      7: the overseer is not a permanent placement looking at decisions made in the course of the working day. You need to read the act to understand his powers. He either carries out formal inquiries or he audits processes and warrants. He doesn’t look at individual decisions unless there is a complaint or he has reason – he had no reason because there was no knowledge of a breach.

                      Your Personal distaste for key and vivid imagination is not a good substitute for analysis.

                      @framu

                      The illegality was only discovered in recent weeks. Do you not get that?

                    • McFlock …
                      2 October 2012 at 5:48 pm

                      1: The fact he had to issue an apology

                      2: Which investigation? The initial 5 page report Key thought was good enough, the additional investigation by the cabinet sec’y after it was obvious 5 pages was bullshit, or the police investigation that comes from a criminal complaint filed by the opposition?

                      3: Reasonable evaluation based on the disagreement between cops&GCSB re: legality of GCSB actions.

                      4: The department he controls apparently committed illegal actions in a major case of which he claims to have had no knowledge. No idea what his department is doing in general, no idea of major instances of concern

                      5: It’s his job to ask question about the department he allegedly controls.
                         
                      6: The overseer failed to… (see 7)

                      7: audits processes and warrants. Like, for example, the processes by which the department ensures that it is not spying on New Zealanders. The processes by which the department confirms that changes in residency status are updated as quickly as possible and surveillance legality re-evaluated. The processes by which agents and managers are held accountable for ensuring the basic legality of their operations.
                         
                      I.e. your claim there was no knowledge of a breach points to a failure to ensure that systems were in place to prevent breaches and identify those that occur.
                           
                      The fact of the apology suggests that any systems in place failed to prevent a specific failure. That is a failure in process analysis, which is a failure in management and a failure in oversight. Assigning the overseer to investigate a possible failure in the overseer’s ability to audit the department’s processes is an apparent, even if it turns out to not be an actual, conflict of interest. 

                      Key’s an incompetent dilettante. I think he’s an incompetent dilettante because of multi-threaded clusterfucks like this.

  4. ianmac 4
    2 October 2012 at 10:08 am

    Surely the PM’s role would be at least to be kept in the loop? Even if he doesn’t sign off approval for each and every surveillance, I cannot believe that at least a year ago the PM was not looped/head upped into the pending Dotcom raid. How can Mr Key be so proud when he said I had not even heard of Dotcom until the day before the raid? Sort of “Ha ha. I didn’t know anything about Kim Dotcom or anything about an international operation about one of our residents. Aren’t I a clever chap to know nothing?”
    No Mr Key. It stinks.

  5. captain hook 5
    2 October 2012 at 4:05 pm

    I doan fink kweewee can ekshilly rede.

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