SUBMISSIONS OF MICHAEL BOTT ON THE COUNTERING TERRORIST
FIGHTERS LEGISLATION BILL
1. I write these submissions in my
personal capacity. I wish to appear before the Select Committee to speak to my
submissions.
2. I am deeply concerned at the speed
at which the Government is seeking to pass this legislation in to law.
3.
This
proposed Bill seeks to grant the SIS power to surveil New Zealanders and people
lawfully in New Zealand for periods of up to 48 hours without a warrant.
4.
Additionally
the Bill seeks to grant government the power to unilaterally revoke a person’s
passport and therefore deny them the freedom to travel.
5.
It
is lamentable that the advent of such powers and the resulting affect on the
rights and freedoms of New Zealanders is deemed to be of such a low priority
that the public have been given just one day to make submissions on this major
erosion of their civil rights.
6.
I
note that the Attorney General on Morning Report (RNZ) this morning offered the
reassurance that these measures were only “stop gaps” as there will be a full
review of our security laws next year. Despite this it appears that the
measures contained in the Bill will not expire until 2018.
7.
I
also note that when asked on Morning Report, as to why the rush with urgency,
regarding this Bill, the Attorney General stated that the government did not
need “six months of chit chat”. With respect this remark displays a risable
contempt for the democratic process and the public right to be heard before the
Select Committee.
8. To
describe the Select Committee process as mere “chit chat” has the hallmarks of
predetermination, and suggests that public consultation is merely “Claytons
consultation.”
9.
It
is noted that the Explanatory Note to the Bill observes that New Zealand is at
best a “low risk” to threats from terrorism. Our neighbours across the ditch
and indeed the United Kingdom face considerably higher terrorist risks and have
allowed their citizens weeks and in the case of the UK, some six months to make
submissions.
10.
It
is lamentable that New Zealand in response to a UN request to take steps
against foreign fighters should be so quick to stamp upon the very democratic
processes we claim we are trying to defend.
11.
As
a first position it is noted that one of the chief purposes of the Bill is to
prevent the entry or departure of “foreign terrorist fighters”. But how is an
as yet unmanifested terrorist intent or purpose to be detected at the moment of
border crossing? In more concrete terms: how can it be determined whether a
person is travelling to Egypt (for example) as a tourist or is only using Egypt
as a transit country to join ISIL in Iraq or Syria?
12.
The
Bill has a worrying silence as to the source and testing of the information
relied upon as the basis for “reasonable grounds to believe” that the person in
question is pursuing a terrorist purpose. This will be developed below. However,
the tighter preventive measures thus called for, particularly in the context of
border controls, may lead to discrimination based on stereotypes.
13.
Yet again, we are seeing rushed legislation being
pursued in an attempt to look tough in the face of terrorism, that may create
another recipe for injustice and resentment by closing down the open society we
seek to promote.
14.
The
reliability of secret information about individuals can lead to grave
injustices, as the very nature of the information being deemed secret only adds
to its perceived credibility despite the fact that the information may in fact
be inherently unreliable.
15.
For
example Ahmed Zaoui a man once dubbed a threat to national security by the
Security Intelligence Service due to a reported association with a suspected
terrorist group, spent two years in custody when in reality he was a
democratically elected Algerian politician who fled Algeria following a
military coup.
16.
The
Algerian Government convicted Mr. Zaoui in his absence in 2003 of terrorism and
sentenced him to death. This was despite him not being in Algeria since 1992.
17.
In
reality Mr. Zaoui was a threat to no one, spent two years in custody because of
secret information.
18.
There
is a real risk that people with innocent motives may be seeking to travel to or
from “countries of concern” who may in fact find that their travel documents
are suspended or revoked on specious grounds.
19.
Further
the cross-fertilisation of secret information between national and foreign
security agencies can lead to errors and labelling of people as militants and
threats when in fact that is not the case.
20.
Intelligence
agencies while frequently using conventional language have become renowned for
attaching meanings to those terms that are far from conventional.
21.
For
example it was reported this year that the CIA claimed to have killed
“militants’ in a drone strike. While this may be reassuring, it subsequently
transpires that that term actually means, “all military-age males in a strike zone as combatants.”[1]
22.
As
international lawyer Glenn Greenwald observed, “By “militant,” the Obama administration
literally means nothing more than: any
military-age male whom we kill, even when we know nothing else about them.
They have no idea whether the person killed is really a militant: if they’re
male and of a certain age they just call them one in order to whitewash their
behavior and propagandize the citizenry (unless conclusive evidence somehow
later emerges proving their innocence).”
23. Thus as in the Zaoui case a
reliance on foreign intelligence fed to politicians by our own agencies can be
inherently unreliable. Language is used which while appealing to ordinary
usage, may in fact contain meanings that are anything but. Further the source
of the information may be knowingly unreliable or deceptive.[2]
24. The Explanatory Note contains insufficient detail about the reasons that
the current passport regime is inadequate. Why for example is a one-year
cancellation period inadequate? Further why should it be that the Minister can
specify a period of up to three years, rather than reapplying for an additional
twelve month period? This is especially so, when it appears the Minister does not
have to apply to Court to extend a cancellation.
25.
I
further oppose the move to allow the SIS to undertake warrantless surveillance
for up to 48 hours. As is repeatedly claimed it is vital for New Zealanders to
have confidence in the integrity and reliability of our law enforcement, and
intelligence agencies.
26. Further it
appears that the person(s) being surveilled without warrant will potentially never
know that they have been surveilled, so the reasonableness of the intrusion
into their privacy will never be properly checked.
27.
Currently no New Zealander
can be spied on by any state agency unless a warrant is approved by an
independent judicial officer be they a judge, JP or the Commissioner of
Security Warrants.
28.
This is a level of judicial
oversight that provides a level of check and balance against the wishes of the
state.
29.
The
Bill purports to see the erosion of this important check and would see the
erosion of this long standing right for New Zealanders to be free from state
surveillance unless authorised by judical approval.
30.
Further the Bill grants the
Minister the power by fiat to cancel the passports of people overseas. This in
effect renders them stateless and as matter of process means they are in fact
exiled, or subject to imprisonment in a foreign country, with no practical
ability to challenge the decision.
31.
The Bill seeks to grant to
the Minister the ability to suspend a passport for 10 days without evidence. By
definition this is an arbitrary restriction on a person’s freedom of movement.
In essence the rights of every New Zealander to travel beyond our borders may
be subject to the views of the Minister.
32.
As noted above the reliance
on secret information, cannot of itself instil confidence by New Zealanders in
the process – one need only look at the case of Ahmed Zaoui.
33.
Further secret evidence is
offensive to open justice, is offensive to access to justice and the fair trial
principle of equality of arms. The ability to use secret evidence in appeals
against these actions violates the right to justice and undermines
the credibility of the courts.
34.
In essence given the track record of the SIS
and the inherently unreliable nature of secret information (e.g. Zaoui etc) the
SIS and the Minister should not be trusted with these powers.
35.
With respect currently
following the recent Gwyn Report far from entrusting the SIS with greater
discretionary powers to intrude into our rights and freedoms, it appears the
SIS needs greater checks and boundaries around their powers, not less.
