Tuesday, 2 December 2014

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.




[1] Glenn Greenwald: http://www.salon.com/2012/05/29/militants_media_propaganda/
[2] ibid.

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