Dear Peter Dunne, S.O.S. (Save Our Souls) | 500 Words

Monday, 19 August 2013, 12:16 pm
Opinion: Alastair Thompson

Dear Peter,

When I first heard the news that you might have leaked the Kitteridge Report into the GCSB my personal assessment of you rose greatly. It was a report that was begging to be leaked. And whoever did leak it ought to be congratulated.

When you later confirmed (at your resignation press conference) that you had indeed discussed leaking the report with Andrea Vance but decided not to do so, I felt vindicated for this view. Nevertheless I now take you at your word that you did not in fact leak the report.

And in the absence of evidence to the contrary - legally obtained - the PM ought to have done the same thing.

For the record I also think it was very unfortunate the manner in which you were treated by the opposition over this matter. Their initial demands for an investigation into your conduct and for the release of your emails were poorly thought out and cruelly pursued.

The fact that all this coincided with the party membership recognition issues - which resulted in leaving you isolated was also very unfortunate.

Meanwhile the public opprobrium that you have recently been receiving on twitter - whilst understandable on one level, people are angry at their perceived loss of liberty- is also unfortunate and does not reflect an understanding of the position you currently find yourself in.

However I think that since adopting you I am beginning to do so.

Over the weekend I reached out to you and suggested you open a line of communication with Kim Dotcom @kimdotcom via Twitter direct messaging.

I sincerely hope that you did so as I think that you two have a lot in common.

The Megaupload Four - Kim Dotcom, Bram van der Kolk , Mathias Ortman and Finn Batato - were to my mind the first known victims of GCSB over-reach.

And in my opinion yourself and my press gallery colleague Andrea Vance were the second.

Yes I know that you have repeatedly said that you believe there is "no connection" between the GCSB illegal spying allegations and what happened to you and Andrea Vance.

And you are right that the agent of spying was different - i.e. it was Parliament Services and their contractors Datacom.

But to say there is "no connection" between the two is - I think - overstating the case.

If you will please indulge me for a moment, I would like to explain why I think this is so.

1. The GCSB inquiry by Rebecca Kitteridge was sparked by the illegal spying on Kim Dotcom. And the inquiry into the report's leakage links the GCSB issues directly to you.

In other words there is nexus between the Leaking of the Kitteridge report and what happened to you.

There would have been no Kitteridge Report to leak but for the illegal activity of the GCSB.

The GCSB Bill is now seeking to make what was illegal legal - and it is doing so on the basis of recommendations in the report that it was alleged that you leaked.

Moreover with no report to leak you would not have been tempted to leak one, and would therefore not have found yourself in this pretty pickle.

So much has been said on the matter which I think confuses things that I think it is worth recapping the background to how this all came about. Please tell me if there is anything in what follows that you disagree with.

The report that you were alleged to have leaked (and over which you were sacked as a minister) was not a secret report.

When you received the advance copy of the report you knew it was to be released in full shortly. In the final analysis its premature revelation was nothing more than cosmetic to the Government. It was embarrassing for the Prime Minister, but he could have just shrugged his shoulders and concerned himself with matters of importance.

However there were reasons that the Prime Minister was particularly interested in this report and this may explain why he took so much interest in finding out who leaked it.

This was a report which was sparked by illegal activity which took place under the watch of the Prime Minister himself, inside a secret department which he supervises and in fact according to his job title directly supervises.

Rebecca Kitteridge's report was very important both to national security and also to our legal understanding of how coercive power is used by the state.

It revealed that an arm of the Government had been acting illegally - breaching the fundamental rights to be free from unlawful search and surveillance of at least 88 NZers, without legal authority - for a period of nearly a decade.

It was therefore highly newsworthy and hardly surprising that a reporter of the quality of Andrea Vance would try quite hard to get a hold of it.

2. The illegal GCSB surveillance of Kim Dotcom was - like the privacy breaches against you - blamed officially on "fall guys" while the person ultimately responsible for both instances of investigatory over-reach - the Prime Minister John Key - claims to have known nothing about both incidents.

OPERATION DEBUT

We know thanks to the release of court papers in the GCSB lawsuit that on December 14th 2011 there was a cross-departmental meeting held, attended by among others Crown Law, the Police and the GCSB (represented by Hugh Wolfenson, a.k.a. "Agent X" and another senior officer) to discuss the plan to - at the behest of the FBI - raid, arrest and extradite Kim and as many of his "co-conspirators" as the police could catch at a party for Kim's birthday in January 2012.

The paper records released to date also indicate that Hugh Wolfenson "Agent X" was acting director of the GCSB during the disclosed period of illegal surveillance of him and his friends.

At the time of the December 2011 meeting John Key's friend Alastair Fletcher's younger brother Ian Fletcher had been appointed to the role of Director of the GCSB. But he had not begun work.

Wolfenson is a career intelligence officer with huge experience. He even drafted the 2003 Act which he is now alleged to have breached.

As you know the "Minister in Charge of the GCSB" our Prime Minister John Key claims he had no knowledge of this meeting or indeed of the existence of Kim Dotcom until after the raid on Mega Mansion the following year.

And as you also know "Agent X" Hugh Wolfenson has now resigned from the GCSB and taken the blame.

The official explanation for why illegal spying was conducted on Kim Dotcom was that it was "The Police" who provided incorrect information to the GCSB and that they were the source of the mistake.

However any reading of the documentation which has been released makes this suggestion farcical.

The police officers were being led by the hand by senior GCSB officers, in fact by the most senior officer in the organisation at the time. The Police officers involved were clearly unfamiliar with the engagement with the GCSB and their emails on their face a breathtakingly naive - as indeed was the conduct of everybody involved in the "Billy Big Steps" arrest operation.

To compound this the officer in charge of the Police Operation, Grant Wormald - who hosted the December 14th meeting - went on holiday for most of the period of the surveillance operation.

The bottom line in all of this is that we have not yet established the truth of what really happened in operation Debut.

The Kitteridge report could not disclose the full details of this partly because to do so would probably open the crown to civil liability to Kim Dotcom and his colleagues.

In other words the background to the Kitteridge report is a huge mess which is yet to be cleaned up.

And what we also know is that this huge mess is the Prime Minister's responsibility - even though he claims to have been wholly unaware of all relevant facts throughout the entire affair.

Nevertheless the events occurred under his watch.

Which brings us to the related issue of the inquiry into the leak of the Kitteridge Report - which bears remarkable similarities to the Kim Dotcom debacle.

THE DAVID HENRY INQUIRY

The inquiry into the leak of the Kitteridge Report was set up by the Prime Minister and conducted under his authority.

The terms of reference were not that unusual albeit they were fairly specific. What was unusual about it however was the apparent ferocity with which these terms of reference were pursued.

With the benefit of hindsight it almost appears to have been vengeful in nature.

Hopefully we will find out more at the Privileges Committee - but I will not be holding my breath.

If this strange and peculiar case continues to run to its course to date then the Committee will be short sharp and perfunctory. If so then this will be a new low point in the history of Parliamentary Sovereignty in my opinion.

But let's look at what we already know about this inquiry - which is rather a lot.

Without permission your email records were searched and trawled for references to Andrea Vance. Details of this - showing how many emails were sent between you and Andrea - were provided to the Henry Inquiry without your knowledge.

In answer to a question about the authorisation for this from myself directed to Prime Minister John Key on August 5th the PM replied that yourself and John Banks ought to have been aware that this would happen from reading the publicly advised terms of reference of the inquiry.

This seems like a remarkably casual approach to your rights - especially given that the capacity you received the report under was as a support party minister serving on the Intelligence & Security Select Committee.

On the basis of the meta-data obtained - probably illegally and definitely in breach of the privileges of the house - you were identified by the Henry inquiry as the probable leaker and then pressured to provide access to your emails.

As I understand it that included direct representations from the Prime Minister via his chief of staff "when he speaks I speak" Wayne Eagleson.

In addition the inquiry sought your phone records and the access logs of yourself and Andrea Vance in the building.

Though the PM denies it (on the basis of a somewhat torturous reading of the correspondence ) the inquiry also sought the phone logs of Andrea Vance - one of my colleagues and a member of the Press Gallery. And it received them.

All of this to ascertain how a report - which was due to be published a week later - had found its way prematurely into the public domain.

And then the cover-up started.

The Speaker of the Parliament was apparently lied to by his own staff about the phone records of Andrea Vance. At the very least they were less than fulsome with the truth and eventually only found out via the persistence of Green Party Co-Leader Russel Norman.

And when it was revealed that Andrea Vance's phone records had indeed been supplied to the inquiry The Prime Minster then claimed that a contractor to the Parliamentary Service had made an error and that they had been deleted..

The Prime Minister even produced a 2 line email which he asserted cleared himself, his inquiry and his chief of staff of all responsibility for this serious attack on the freedom of speech. The General Manager of the Parliamentary Service - someone who nobody could possibly accuse of being anyone's lapdog - then resigned to take responsibility for the error.

A few days later, late on Friday, a more complete record of 135 further emails was released now showing that the phone records had in fact been sent to the inquiry twice, once by the contractor, and once by a senior Parliamentary Service staff member.

And these also showed that your emails had indeed been supplied to the inquiry in full.

This time Andrew Kibblewhite, Chief Executive of the DPMC, chose to take responsibility for the fact that the PM had not been informed of this detail.

And again the reason used to justify the screw-up was that it was due to lower level staff exceeding their authority.

You and us are expected to believe that the inquiry immediately deleted all the private information it was sent - which it ought not to have been sent - and that it did so in a manner that did not affect in anyway the conduct of the David Henry inquiry.

But even if we take the senior public servants responsible for all of this at their word - it doesn't explain why so many people in the orbit of an inquiry ordered by the Prime Minister had such odd lapses of judgment and thought it a good idea to attempt to cover-up their actions.

In your resignation press conference you referred to the extraordinary and unusual events that led up to your resignation. But you did not detail or explain what these were.

I look forward to your testimony to the Privileges Committee about those events. I hope you are given sufficient time to shed a great deal more light on what really happened in that inquiry.

What we do know is that like the Kim Dotcom Debacle this second instance of investigative over-reach is very squarely the Prime Minister's responsibility.

Like with the Kim Dotcom operation the events occurred under his watch and were implemented by people who report directly to him.

In both cases Prime Minister John Key claims to have not known anything about what was going on and in both cases very senior public servants have decided to take the blame, although in this case Andrew Kibblewhite has kept his job, so far.

Conclusion

So Peter, I sincerely hope you will find the above arguments compelling.

The illegal surveillance of Kim Dotcom (and the consequent GCSB Bill ), and the inquiry into the leak of the Kitteridge report are definitely connected.

They both involve illegal and enormously damaging use of surveillance technology.

They both involve the use and misuse of meta-data based intelligence - a matter which is poorly dealt with in the GCSB Bill as it is currently drafted.

They both involve the responsibility of officials working directly to the Prime Minister and matters which are very squarely the Prime Minister's responsibility.

And in both cases the Prime Minister's defence - like that of disgraced US President Richard Nixon - is that he did not know what was being done by people acting under his authority.

Peter, the fact is that the only person who can ensure the right thing is now done is you.

New Zealand stands this week at a crossroads.

New Zealanders proudly consider themselves to live in a mature democracy, governed by ethical and honest public servants and subject to the rule of law.

And New Zealand tops the Transparency International rankings because the rest of the world does so also. From this we gain considerable international influence and investment. We - as a nation - punch above our weight because we are generally considered to be nation with a high level of integrity.

If the GCSB bill is passed with undue haste this week in the absence of clarity around two cases of massive investigative over-reach by agents of the executive - as is the Government's intention - then I do not think New Zealand will be able to still claim that this is the case.

In a tweet exchange at the weekend I said you have an opportunity to be a hero.

You responded thus:

@althecat @robhosking that's rubbish Alastair, and I think you know it

— Peter Dunne (@PeterDunneMP) August 16, 2013

Again, while I can understand your skepticism I think you are mistaken.

The people of New Zealand and Wellington and perhaps even Ohariu will be enormously grateful if you ensure that due process is properly followed and that at the very least the Privileges Committee inquiry into the report leak is completed before the passage of the GCSB Bill.

The issues at the heart of the illegal mass-surveillance controversy - which now thanks to the disclosures of former NSA staffer Edward Snowden are now several orders of magnitude more serious that they were when the Kim Dotcom case began - are globally significant.

What happens with the GCSB Bill this week in NZ matters not just here, but throughout the world.

In 1985 the NZ Government chose - backed by a massive public mandate - to pass legislation the effect of which was to stop US ship visits to New Zealand. Four years later the wall came down and thirty years later the number of warheads has fallen from 60,000 to 16,000.

The legislation New Zealand passed was trenchantly opposed by the State Department at the time.

The US was fearful of what message us passing such legislation would send to the rest of the world, and particularly Denmark, Norway and Japan.

28 years later with NZ nearly back in ANZUS there is a strange symmetry between those events and the current situation.

Now the US Government is keen for us to pass the GCSB Bill as quickly as possible.

This time the US would like an example of NZ's acquiescence to the legality of it's ubiquitous surveillance infrastructure to provide to other nations whose politicians are coming under increasing pressure to explain just what the NSA, GCHQ, ASIO (Australia) and GCSB are doing and why it is ok that they are doing what they are doing.

Here in NZ what happened to you at the hands of the David Henry inquiry illustrated the dangers of investigators who do not understand the limits of their powers.

What happened to you also illustrated very clearly why it is not ok to grant powers of surveillance to agents of the executive - especially when those powers are poorly defined.

I hope you agree with me that down this is path we find Star Chambers, despotism and the destruction of freedom.

This is not something that should be allowed to pass softly as if we do not care, while we concentrate our attention on what our Prime Minister thinks ought to concern us, namely, how much snapper we are allowed to catch.

Dear Peter, right now the only thing that stands between the aspirations of millions of NZers to live in a country they are proud of, and the passage of this bill is you.

And this is why I entreat you to think on what I am saying.

S.O.S. (Save our Souls) and do not support the third reading of the GCSB or TICS Bills until there has been a proper inquiry into the matters which are raised by the Kim Dotcom and David Henry cases of investigative over-reach.

Yours Sincerely

Alastair Thompson
Editor and Founder of Scoop.co.nz

- Alastair Thompson, 500 Words | Monday, 19 August 2013

© Scoop Media

Alastair Thompson

Scoop Publisher

Alastair Thompson is the co-founder of Scoop. He is of Scottish and Irish extraction and from Wellington, New Zealand. Alastair has 24 years experience in the media, at the Dominion, National Business Review, North & South magazine, Straight Furrow newspaper and online since 1997. He is the winner of several journalism awards for business and investigative work.

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