By Selwyn Manning.
WE ALL KNOW THE STORY, how in January 2012 the Federal Bureau of Investigation (FBI) agents, ‘led’ by New Zealand Police, swooped down on the little-known Chrisco mansion that housed a multinational internet phenomenon and its owner/operator tycoon Kim Vestor (aka Kim Dotcom), his colleagues and their families.
The scene was akin to the 2007 Te Urewera Ruatoki raids except the targets of this operation were rich and white not poor and brown.
Police officers hovered above the Coatesville estate. Tucked inside the State’s choppers were tactical response snipers. Others, decked out in SWAT-styled gear and packing serious heat, advanced by land.
It was a scene of tactical purity. The strategy was to overwhelm with dread the target ‘Billy Big Steps’ his colleagues and family. For a moment, Kim Dotcom and his crew sought refuge inside the mansion’s ‘safe room’. But before long officers had presented him with a search warrant which he recognised and then without fuss submitted his liberty, for a time.
The apprehension phase of Operation Debut had been initiated.
Into The World Of Shadow
For all the real-world action of January 20, 2012 (where New Zealand’s most secret branches of State agreed to identify, apprehend, arrest Kim Dotcom and others on behalf of the FBI citing copyright infringements, racketeering and money laundering charges; to obtain under search warrant ICT equipment as evidence in the case of alleged international criminality) the real drama – of a smoke and mirrors type – had been taking place in the months leading up to January 20. And it’s inside this time-window where things get smokey, where the facts fall from sight as they are played and spun within and without – as John Le Carre named it – the theatre of the real.
This week, documents released by the High Court to Labour’s deputy leader Grant Robertson show how in December 2011 this once proud nation’s spies were in a conundrum. The Government Communications Security Bureau (GCSB)’s bureaucrats and legal advisors had formed a huddle. Together they debated whether what they and the Police were about to do was illegal.
The debate rose, scenarios were spoken of where definitions of what degree of resident truly attracted the protection of New Zealand law. Some said Dotcom and his crew were beyond the scope of GCSB surveillance, others were unsure. The debate dwindled without resolution, without a clear conclusion of the legalities. At that decisive moment, the law became subservient to the purpose of the operation.
From what we know now, this was the moment when others – outside the tightly focused team of officers and officials making up Operation Debut’s planning team – ought to have been sworn in.
It was at this moment, to avoid a breach of the law from taking place, an independently positioned body with oversight powers needed to be sworn into the loop.
Many will say this would be unsatisfactory from a security intelligence containment point of view, but if Operation Debut is to teach us anything, it is that when the pressure of a powerful external player descends on our shores, the Police and the intelligence fraternity are all too willing to comply with a superpower’s demands – even when that means breaking New Zealand law.
By late December through early January 2012, operating literally within a space where a whisper speaks louder than a shout, the GCSB officials and members of the Police’s Organised and Financial Crime Agency (OFCANZ) acquired and collated the surveillance information obtained by the GCSB and turned it into intelligence.
Again, at a post-arrest debriefing, GCSB officials and senior members of OFCANZ, including its head Detective Inspector Grant Wormald (pictured right), gathered in Wellington where they discussed the illegality or otherwise of the surveillance operation.
If the Prime Minister John Key is to be believed, their discussion involved an operational matter, a topic, where for constitutional reasons he is loathed to go. His logic suggests there was no place for him at this meeting (true), and no reason for him to be briefed (debatable in the extreme).
At the debrief the GCSB considered again: Have we been operating illegally while assisting the Police and FBI to spy on the Megaupload boss and crew? Was Kim Dotcom merely a resident, or a permanent resident, and was that definition relevant to whether the GCSB’s actions were legal or outside New Zealand’s law?
In the end, as the Prime Minister is keen to assert, the GCSB finally came to the rightful conclusion that it had indeed operated outside the law, illegally. As John Key, the man with ministerial responsibility for how the GCSB and SIS operates in New Zealand, stated in Parliament on Wednesday (Ref: Parliament’s Question time on Wednesday, March 21, 2013: InTheHouse.co.nz.):
“There is absolutely nothing new here. When this matter was discussed last year I made it quite clear that there was a meeting that was held in the middle part of February where the issue of residency status for Kim Dotcom was discussed. It went off to the legal adviser at the Government Communications Security Bureau, who confirmed things were right. In fact, as I have publicly said, the advice from the legal team at the bureau was wrong. That is all in the public domain, and has been now for well over 6 months.”
But as the Prime Minister knows, the issue here is whether the GCSB, the New Zealand Police, and his own Department of Prime Minister and Cabinet (DPMC) willfully, even tactically, went ahead with the operation while agreeing to keep the Prime Minister in the dark on this whole pathetic fiasco. Or was it that their minister was so insignificant that briefing him was never even a consideration?
It’s a fact, the establishment’s bureaucracy either kept him out of the loop, or it did not. John Key says he was unaware. By design we are asked to consider whether that is likely. Considering that John Key’s personal popularity with the public was only marginally eroded through 2012, one can assume the public has given this man the benefit of the doubt.
If that’s true, the question remains: was it right that the GCSB was able to pull off such a monumental breach of New Zealand’s surveillance law seemingly from inside a vacuum where prime ministerial accountability was not even a considered concern, where the judicial oversight apportioned through statute to the Inspector General of Intelligence and Security, Justice Paul Neazor, was disregarded and only factored in to the response strategy where our spies indicated a need to prepare a brief on the illegal operation for the IG’s consumption should a response be required.
These are actions of an entity or individual who has broken the law (either knowingly or not is immaterial) retrospectively rearranging pieces of a jigsaw so as to advantage their corner during possible mitigation. In some precincts outside the beltway that is considered proof of a crime.
The affidavits released this week containing sworn statements from DI Grant Wormald are damning.
If it wasn’t for a string of questions on August 10 2012 – put before Justice Helen Winkelmann in the High Court by Kim Dotcom’s legal counsel Paul Davison QC to Detective Inspector Grant Wormald – then a glimpse of the truth would have been kept far from the public’s (and perhaps the Prime Minister’s) gaze.
The Police were already on the ropes. Justice Winkelmann had ruled in June 28 that the actual raid on January 20 was illegal due to the search warrants being invalid.
In court, the operation against Kim Dotcom was falling apart. DI Wormald was clearly under pressure to hold the Police case together. But that doesn’t explain why he failed to offer the whole truth when questioned on the method of surveillance and what agencies were operationally active during Operation Debut.
The revelation went like this:Under questioning DI Wormald informed the High Court that a government agency took part in operational planning at a meeting on Dec 14, 2011. Davison QC then asked DI Wormald to identify that agency, he refused citing the secret status of the agency. Davison QC then asked whether any other surveillance apart from that of the Police took place.
Here in direct quotes: Paul Davison QC asks:
“So apart from the surveillance which might have been going to undertake on your behalf was there any other surveillance being undertaken here in New Zealand to your knowledge?”
DI Wormald replies: “No there wasn’t.”
Seven days later, on August 17, 2012, the Prime Minister is offshore attending a baseball game in the United States. His son Max is participating in the game and the Prime Minister is keen to show up. John Key’s decision to attend the game was controversial in that he chose his son’s game rather than attend a ceremony marking the return to New Zealand of the bodies of soldiers who were killed the previous week in Afghanistan.
While John Key’s decision was receiving considerable media attention, and while the Prime Minister was overseas, the GCSB representatives secretly approached Bill English. As acting prime minister, English received their request to sign a ministerial certificate. The draft certificate, if signed by a prime minister (even an acting one) would ensure details of the GCSB’s involvement in Operation Debut would be suppressed from being made public or given to the High Court.
English signed the certificate, even agreed to make it retrospective. And literally, with the stroke of a pen the officials had a dirty piece of paper that in a sense protected DI Wormald, the Police and the GCSB, from further judicial scrutiny.
Remember this occurred without the actual Prime Minister John Key’s knowledge. It occurred just one week after DI Wormald replied “No” to questions on whether a Government agency other than the Police had surveilled during Operation Debut.
From the affidavits released this week we now know without any doubt that DI Wormald knew that the GCSB had indeed conducted surveillance during Operation Debut. He also knew that the GCSB had finally formed a view that its operation was illegal.
On this point alone the Public of New Zealand deserve an explanation. The resignation of a senior GCSB legal advisor does not go anywhere near resolving this breach of the law and apparent statement of untruth to the High Court.
For the record, in his affidavit released this week, DI Wormald states:
“11. Referring to these documents the top one is headed VESTOR/Kim aka DOTCOM/Kim. His last two arrivals into New Zealand on 15 December 2010 and 26 December 2011 identify Mr Dotcom as ‘Resident’ in the column marked ‘Visa’.”
DI Wormald’s affidavit continues that at a meeting on December 14, 2011 the legality of GCSB surveillance was discussed:
38. I believe I made a comment that I did not think that it was possible for the GCSB ‘to intercept either Mr Dotcom or Mr Van der Kolk on the basis that they were living in New Zealand.
39. I recall one of the GCSB representatives making comments about the application of their intercept powers and how they were able to intercept provided the persons involved were not New Zealand Citizens or permanent residents of New Zealand.
40. I reiterated that we were sure that Mr Dotcom and Mr Van der Kolk were not citizens but that we could not advise with any certainty what type of ‘residency’ they held.
41. I recall comments by GCSB2 who explained that different types of residency existed and this affected what they could do regarding people living in New Zealand.
42. I conveyed to the two GCSB members tl at both Mr Dotcom and Mr van der Kollr were residing in New Zealand and were able to come and go, so they must have a form of residency.
43. I made the offer that if required I would be happy to be a go between for GCSB for enquires with New Zealand Immigration for the purpose of clarifying this point if required. Following a brief discussion, this did not seem to be necessary at the time.
Again, at the post-arrest debrief on February 16, 2012, the question of whether the GCSB had undertaken unlawful surveillance was again discussed.
86. On 16 February 2012 I and several other OFCANZ staff attended a debrief at GCSB in Wellington with members of their staff.
87. Following the meeting] had a brief conversation with GCSBI. GCSB1 raised a possible issue surrounding the fact that Mr Dotcom and Mr van der Kolk had been intercepted. It appeared to GCSB that the interception may not have been lawful because of their residency status.
88. I was surprised this matter had come up at this point given we were some three weeks after the termination and after interceptions had ended.
89. GCSB1 and I agreed that we needed to deal with the matter promptly. GCSB1 determined to make further enquires to get to the bottom of it without delay. I offered my resources in making any enquires necessary to assist…
91. On 27 February 2012 GCSB1 reported by email that neither Mr Dotcom nor Mr Van Der Kolk had been unlawfully intercepted.
All this goes to show DI Wormald did know that the GCSB had conducted surveillance during Operation Debut.
To press the point, why did DI Wormald, when asked in the High Court whether an agency other than the Police had conducted surveillance, reply: “No there wasn’t.”
In October 2012, I interviewed Peter Williams QC on whether he believed DI Wormald had committed perjury in the High Court when answering the above question.
Mr Williams said, in his view, the lack of “specificity” in the High Court questioning gave DI Wormald an avenue within which he could answer in a way without committing perjury.
However, Mr Williams added that it was reasonable for the public to form a view that the Police officer was not responding in a truthful manner – in essence, he said, the Police got off the hook. But he added that for the public and national interest to be satisfied a broad “constructive” independent inquiry must be held.
Throughout this saga the Prime Minister and his National-led Government have refused to allow an independent inquiry to be initiated.
Within the beltway, every public servant and observer of politics knows the Prime Minister is letting the GCSB and Police get off the hook.
Was there a cover-up? And, if so how far up the chain of command did the cover-up go?
We can answer this here and now, and probably to our satisfaction, but the public deserves a full inquiry. A mere trial-by-media will not satisfy the public interest, nor provide a consequential judicial response, nor offer progression through reform nor conclusion.
The only way to resolve those questions is for an independent inquiry to be held.
On that point, on October 8, 2012 I interviewed New Zealand First leader Winston Peters on why an inquiry was needed. In Parliament Peters called for the Prime Minister to sack himself due to his poor performance as the minister in charge of the GCSB.
“I have never heard of a prime minister not taking this seriously. And I believe that the [Prime Minister’s] claim to have not read them [the intelligence briefings] is the same claim as in the Banks case: he deliberately did not read the Police report in the Banks case…,”
“You can pose as the ‘oh shucks’ prime minister, the sort of good ole boy, with a beer in the hand at the barbecue, but the fact is you are the prime minister and I believe he did know. You would have to be totally beset with amnesia and total unawareness to [not] observe that this man (Kim Dotcom) was in your electorate,” Mr Peters said.
Considering John Key’s predecessor prime ministers, David Lange, Sir Geoffrey Palmer, Jim Bolger, Jenny Shipley, Helen Clark – Peters believed John Key had fallen short of the mark:
“That’s the precedent, numerous precedents, and none of them would have behaved in this way. So, he (John Key) is in serious trouble now, because he has posed as the great manager.”
Peters added that a broad independent inquiry must be led by an Ombudsman or a person who enjoys the confidence of the public such as former Governor General Sir Anand Satyanand, GNZM, QSO, KstJ.
Regarding DI Wormald, Peters said:
“It means DI Wormald and the Police will have a very hard job to dislodge the allegation that this was perjury.”
He added that it was premature of the Police Commissioner Peter Marshall to have come out in support of DI Wormald prior to an inquiry or investigation into their conduct.
The Commissioner was reported by Fairfax Media as: stating speculation around Wormald’s actions while the case is still before the court is “deeply concerning”. That Wormald’s evidence was wrongly interpreted, “not untrue” and that officers involved have his “unequivocal support”.
These are all valid points and underscore why an independent inquiry is essential.
A Convention Demanding Change:
The GCSB illegal surveillance case goes beyond whether John Key is competent to hold his ministerial warrant, it highlights, it underscores, how light is New Zealand’s oversight laws when it comes to keeping an eye on the watchers.
On Wednesday in Parliament Labour deputy leader Grant Robertson asked the Prime Minister:
How does he explain that he was not briefed about the role of the Government Communications Security Bureau in the Dotcom raids when the director of the bureau, two deputy directors, an assistant director, a unit manager from the bureau, a member of his own department, and senior members of the police were all present at a discussion about the fact that the surveillance of Mr Dotcom may well have been unlawful? How come he was not briefed?
The Prime Minister replied:
Quite simply. I am not advised on any of the operational matters that the Government Communications Security Bureau is undertaking. In fact, that is not the standard practice, and it has never been the standard practice for the previous Prime Minister, either.
The answer is a revelation of how little the very person charged with ensuring the public interest, the national interest, knows of what goes on. John Key states this state of ignorance on operational matters is standard practice.
The Prime Minister added:
If the member wanted to make the case that I was going to be briefed as the Minister, which is actually the Minister responsible for the direction and the priorities of the agencies, but I was actually being briefed on every operation that was being undertaken, then the member is wanting New Zealanders to believe that I direct those operations in the same way that they would want the Minister of Police to believe that they were directing those operations.
That claim is absolute hogwash. Even as a Beehive staffer, as a mere press secretary, I was privy to significant Police operations on a need-to-know basis. The Minister of Police would have known much more under the ‘no surprises’ principle laid down by the Helen Clark Labour Government. Informing the minister became standard operating procedure by the Police’s Office of the Commissioner. It simply was not satisfactory nor standard procedure for the minister responsible for an operative agency to be kept in the dark as John Key has supposedly been.
In Parliament this week the Prime Minister summarised:
… if you want to hear the facts, we will run through it. It [GCSB] undertook a raid. Basically, it questioned whether it was right. It went and got legal advice. Its legal advice said: “You are totally entitled to do what you are doing.”, and it was wrong.
John Key’s take on accountability raises a significant question : Is this really how it has always been or has something changed? Is it good enough for him to dismiss the seriousness of this breach of the law in this fashion?
Either way reform must now take place in how we structure Executive Government, Parliamentary, and public oversight of our security intelligence agencies to ensure accountability to the public and national interest is assured.
The Prime Minister hinted this week that a report will be tabled by his DPMC envoy into the GCSB’s processes. He added that the GCSB can expect to receive directives to change.
But this case demands more than this. It demands significant reform of how we oversee the entire intelligence apparatus.
Why Reform and Oversight Must Occur:
It is no longer satisfactory for oversight purposes for oversight to be the sole responsibility of a Prime Minister, especially as we became aware this week that this Prime Minister insists he ought not know of operational issues. It is also not good enough for judicial oversight of operations to be retrospective and the responsibility of one elderly retired former High Court judge, who is on a 0.5 full time equivalent at best (with an administration staff of one who job-share-splits her full-time position with another government agency).
Other writers have thought long and hard on how to resolve the security intelligence containment conundrum. Now is the time to hear from them. We need solutions on this issue, we need debate. That debate must not be simply academic, nor idealogical, but pragmatic, proper and offer protections for individuals, restricting the opportunity for the establishment’s authorities to abuse their privilege and our country’s laws.
In short, we deserve real solutions and we must demand they be implemented.
Before all that can be achieved we need to understand why a prime minister is not the right person to be the sole overseer.
Has the Prime Minister been taken for a fool?
In life, information is power. But in politics, for a public servant, being in possession of information, controlling the rollout of that information, manipulating the time-window available for a minister to make an informed decision… now that is real power, absolutely. Especially when you have a compliant man at ‘the helm’.
For John Key, the last twelve months have made an impression. Our Prime Minister has been drawn within a theatre where the angular columns of form and frame, of reports and facts, twist and turn like an opiate users’ dream. It’s a place where Salvador Dali-styled concepts shape assurances, where nods are given in slow-mo, where verbal briefings leave the minister responsible bereft of recollection and in possession of less. What, where, why, how blends to become ‘I cannot confirm nor deny, I cannot answer that, sorry.’ Sincerely.
With the privilege of office, John Key acquired responsibility as minister to govern the security and intelligence agencies.
Since then, while remaining remarkably uninformed on matters his political instinct suggests are problematic, he has sought and been gifted an extraordinary degree of latitude by the public. When he’s caught out on being negligent of oversight, he fronts the media, shrugs his shoulders and looks up with his puppy-dog eyes and the good voting public of New Zealand seem to say: ‘Common John, it’s alright, it must be tricky trying to sort out those spooks.’
The downside of being uninformed is being shown to be a fool. And the Opposition politicians have tried to enshroud the Prime Minister with that marvelous brain-fade handle.
The benefit of being uninformed provides John Key, the politician, a get out of jail card whenever operations go array. The risk is affronting public expectation just once too often. But that is minor compared to be found embroiled in illegalities. In the theatre of the real, the Prime Minister’s convivial personality is both his biggest asset and his achilles heel.
The wonderful thing about our Prime Minister is he connects to people who he’s never met. He is, as National Party MP Jami-Lee Ross says, a political superstar. Key engages those around him, he seems to want to be liked, to exercise his great comic timing, to seek applause and entertain.
John Key has said all this himself, in his own way, while trying to explain away his childish red-shirt jokes, his un-co Gangnam Style dancing, his teenagerish immaturity over his David Beckham appraisal, his wonderful love of life on the surface, his awful sunny day video speech from his Beehive office balcony only 24 hours after the deadly Christchurch earthquake, videoed while people were still trapped and dying under the CTV Building and other locations. When challenged, he shrugs, appears indifferent to the seriousness of his office, he has the common touch, he’s popular, and he is forgiven.
Sometimes the attributes that the public love about a politician become the very things they end up hating. Take Helen Clark, she was a dedicated politician, she had a formidable intellect, she was a solid manager of Executive Government and the political agenda, and was a technocrat who knew the detail and knew the devil lies in the detail of operational procedure. All those attributes boiled down in the public’s view to her being a childless woman, a know-all, a control freak, and an enforcer of Helengrad’s want.
What’s all this got to do with the GCSB and NZSIS?
Well after the old Minister responsible for the SIS and GCSB was tossed out, the State’s spooks soon realised how their new minister was the kind of guy you can have a joke with, a man who made millions from nothing, a guy to admire, a man who is soooo positive even in the face of adversity, he was a breath of fresh air.
John Key – A Public Servant’s Dream
John Key, as a minister, is a public servant’s dream. It would be wrong to think the Police is the only agency that has personality-profiling expertise. All public servants exercise this talent especially when accessing their minister’s style, when figuring out how to control her or him.
In John Key the agencies appear to have summed him up, rendered compliant a governor who wishes in truth to retreat from the frontiers of technocracy, who will only rain consequence upon them when the error of their ways, whether illegal or otherwise, surfaces upon the lakes of beltway politics.
With John Key, the agencies appear to have taken opportunity with both hands. What developed was a communion of sorts. A yes minister culture was worked, over a timeline, where progress and agenda was drawn from the Prime Minister through a trial and error engagement.
With John Key, the agency guides the hand that feeds, seduces him with intellect, they oscillate between indifference and a nod a wink, a firm handshake. When the man hits what will become the politician’s note, the agency draws near, to sing a song of praise, and they whisper ‘yes Minister’, ‘very well Minister’, ‘perfectly said Minister’.
His indifference to detail is his gift to them while being his political master-stroke… His loyalty to the truly powerful protects the agencies from the unease of true reform, from oversight, from being brought out into the light where the concept of Kiwi fairness and justice is the blinding counter-balance.
Over time, John Key has become the cradle that the invisible hand rocks. How can the Prime Minister accurately tell you the true facts, when it occurred, why it occurred, where or how, when he himself cannot see the the real forest for the trees.
In truth the Prime Minister has his hand on the tiller. But it is the black leather intelligence agency glove that steers his course. It is the thumb and fingers of the great Anglo Saxon fist that commands their ambition. And the whole show is choreographed by the ‘Five Eyes Alliance’ where the United States of America is super-supreme and where New Zealand’s Prime Minister sails under remote control somewhere between the theatre of the real while rudderless within the great game.
Is it good enough? No.
Is it in the public interest? No.
Is it in New Zealand’s national interest? There are many who would argue this is so.
Has it ever been otherwise? To assume in the affirmative would be ridiculous – but this must change.
- Affidavit – September_Affadavit.pdf
- Affidavit – DI Grant Wormald_Affadavit.pdf
- Affidavit – Email_attachments_to_Wormald_Affadavit.pdf
- Scoop – Dotcom Affidavits: GCSB, Police, And 7-Month Coverup (Scoop News)
- Scoop – John Key’s chief spy was at Dotcom debrief (NZ Labour Party)
- NZ Parliament – Questions for oral answer, March 20, 2013
- LiveNews.co.nz – TV Interview: Selwyn Manning Ivs Winston Peters – Says Public & National Interest Demands A Broad Inquiry Must Be Initiated Into GCSB, Police, & Prime Minister’s Handling
- LiveNews.co.nz – TV Interview: Selwyn Manning Ivs Peter Williams QC – Says Police Let Off The Hook But Constructive Inquiry Must Satisfy Public Interest
- LiveNews.co.nz – 5AA Australia: Selwyn Manning & Peter Godfrey On GCSB Shake-Up + The Dodgy Bank Bailout Law
- LiveNews.co.nz – John Key’s awful sunny day video speech from his Beehive office balcony the morning after the Christchurch earthquake.
- NZ Listener – Kim Dotcom and Megaupload: a timeline