I/S at No Right Turn questions the legal status of Key’s “warrants”.
Look! More terrorists!
Yesterday, John Key tried to scare us into supporting his intrusive, over-reaching spy bill by invoking the spectre of terrorism. When this was greeted with widespread incredulity and scorn, he doubled down, claiming that he had signed warrants to observe New Zealanders who were currently training in terrorist camps in Yemen.
Other commentators have already focused on whether this undermines “national security”, or whether it is even true (and lets be honest: secrecy means we have no way of telling, and Key has every reason to lie to us – and the GCSB have every reason to lie to him). I think the more interesting question is whether the Prime Minister has broken the law.
How? Well, there are two broad types of intelligence warrant he can sign. The first is the type we’ve all been talking about for the last month: a GCSB interception warrant, allowing the interception of phone calls, email, or other “communications”. But as we all know, the GCSB is absolutely forbidden from spying on New Zealanders in any way. So if the Prime Minister had signed such a warrant for a New Zealander in Yemen, it would be illegal.
The second sort of warrant is an SIS intelligence warrant. This allows the interception of communications, electronic tracking and so forth. But as the SIS is unlikely to have field agents in Yemen to do the tracking, they probably would have relied upon… the GCSB, either directly or by getting them to ask their foreign “partners” for assistance. And thanks to section 14 and the broad definition of “communication” (which covers even receiving summaries or “the sense” of a phone call or email) that too would be illegal.
In short, if the Prime Minister has done what he’s claimed, then he and/or the GCSB has probably broken the law. No wonder he wants a quick patch-up!
But there’s also another troubling question – namely whether any intelligence gained by such surveillance (if it actually exists) has been shared with the United States. Because as we know, they arbitrarily kill people with drones in Yemen. Passing information to them about New Zealand citizens allegedly training with Al Qaeda exposes those kiwis to a US drone strike. Which would seem to be a prima facie breach of the right not to be deprived of life affirmed in the Bill of Rights Act.
In short, the Prime Minister’s claims strengthen the case for a full inquiry into our intelligence services, to determine both whether they have complied with the law, and the extent and risks posed by their intelligence sharing with foreign powers. And we absolutely should not be writing the Prime Minister a “get out of jail free” card until that is done.