| Do New Zealand state spies unlawfully surveil the government’s political critics? Do they spy on critical journalists? Unfortunately, the answer is yes. And yesterday the government domestic security agency was forced to apologise for one instance when they were caught spying on investigative journalist Nicky Hager.
The New Zealand Security Intelligence Service (SIS) has paid Hager $66,400 in compensation and legal fees for breaching his privacy, and made an extraordinary apology to him. In return, Hager has agreed not to take the Government to court.
The payment and apology were for unlawfully obtaining two months of Hager’s phone records in an attempt to uncover the sources Hager used in writing his 2011 book Other People’s Wars. The publication was about New Zealand’s involvement in wars in Iraq and Afghanistan. The book focused on the role of New Zealand military and intelligence activity that caused the deaths of civilians in Operation Burnham, and was based on information obtained from confidential sources.
Hager’s win is not just a victory for him personally, but more generally for freedom of the press and the ongoing vigilance against state authoritarianism.
Dirty politics from security services?
It was the NZ Defence Force that sought to discover who had provided Hager with the information for his book. They apparently suspected a particular Defence Force officer, but failed to find any evidence in their search of the employee’s home and mobile phone records. So they then requested that the SIS obtain Hager’s personal phone records on the basis of the journalist being involved in “espionage”.
The SIS obtained Hager’s phone records, but the information proved useless in helping the defence forces find his source. Hager suspected that he was under surveillance, and when he officially requested information about this from SIS director Rebecca Kitteridge she refused to confirm or deny anything.
Hager took the issue to the Inspector-General of Intelligence and Security, which oversees the SIS as well as the Government Communications Security Bureau (GCSB). The SIS was forced to confirm the spying against Hager, but Kitteridge denied any wrongdoing, argued the surveillance was justified on the basis of Hager being involved in potential “espionage” and because he was prejudicing New Zealand’s national security.
The Inspector-General of Intelligence and Security ruled in Hager’s favour. Three years later the SIS has finally agreed to compensation and a proper apology.
The Extraordinary apology from the spies
Yesterday the SIS issued a statement that is worth quoting at length: “Investigative journalists such as Mr Hager play an important role in society, including to provide an additional check on executive functions and powers. The role of Mr Hager is considerably more difficult given his subject matter of expertise and the difficulties of obtaining information which is protected by various and numerous confidentiality mechanisms. NZSIS recognises that its actions in 2012 could have resulted in a chilling effect on such important work. Accordingly, NZSIS apologises unreservedly for breaching Mr Hager’s rights”.
In addition to the apology, the SIS said, “We recognise the important role that journalists play in a free, open and democratic society – the very society the New Zealand intelligence agencies exist to uphold.”
One of Hager’s lawyers, Steven Price, responded to say that “it is nice to see this recognition by the NZSIS of the importance of journalism to our democracy… Journalists need to be able to convey to the public important information from well-placed sources. That process should not be undermined by intelligence officials trying to unlawfully ferret out those sources.”
There is a need to have investigative journalism, and the media in general, as a properly functioning mechanism to hold the powerful to account, including the defence forces. This case shows the SIS have clearly undermined that mechanism.
Hager’s other lawyer, Felix Geiringer rightly said the decision was an “important result for journalism”. He argued that “Our intelligence services are given substantial powers for use to protect New Zealand from harm… Those powers cannot be used to go after a journalist’s sources just because the government does not like what that journalist is saying.”
It should go without saying that journalists depend on being able to assure their sources that they will remain confidential. And the state shouldn’t be allowed to interfere in this by using its immense powers of subterfuge.
Will the state spies reform themselves?
What happened to Hager was dangerous for democracy, and should never have happened. But it’s not clear that it won’t happen again.
The SIS is claiming that it has reformed itself and is now more careful with following the law and will be more transparent. But there are already signs that they are failing to live up to this.
The spy agency claims to have established a new policy for how they deal with the work of journalists. But Hager’s lawyers point out that the SIS is refusing to release that policy. Geiringer says: “The NZSIS needs a clear policy stating when the use of its powers against a journalist would be justified. There also needs to be a rule that only someone sufficiently senior in the organisation can make such a decision. And there is no basis for keeping such a policy secret.”
Hager argues: “The NZSIS needs a clear policy stating when the use of its powers against a journalist would be justified.”
Hager’s lawyers argue that their negotiations with the SIS suggest “that nothing had really changed in the internal culture of the NZSIS”.
They also point out that things might be about to get worse. Geiringer said yesterday that “there is a Bill before Parliament which would prevent our courts from reviewing decisions of intelligence services to withhold documents on national security grounds.” This is a problem, because “External oversight is essential in a democracy”.
Rottenness in the state?
This isn’t the first time Hager has received apologies and compensation from the state. He also got a “substantial” settlement from the Police due to their unlawful raid of his Wellington home after the publication of his book Dirty Politics.
Commenting on the latest state settlement, the chair of the Civil Liberties Council, Thomas Beagle tweeted yesterday, “So now both the Police and SIS have had to apologise to Nicky Hager for misuse of their powers against him. There is something very rotten here.”
Others have commented on the lack of personal accountability from those in the Defence Forces and SIS. The fact that SIS head Rebecca Kitteridge has since received a promotion to become deputy head of the Public Service Commission will also rankle.
There is a concern that some agencies of the state are becoming too politicised. And when these institutions are vested with such strong power, then this can be open to abuse that diminishes democracy. With publicity about the SIS’s abuse of the law, hopefully there will be a greater awareness of the need for more scrutiny of these institutions and this latest incident will serve to create a chilling effect on their propensity to over-reach when dealing with intimidation of the media.
Unfortunately, politicians have so far been entirely silent on the Hager controversy. But there is a need for politicians of all persuasions to come out in condemnation of what has occurred. Regardless of what anyone might think of Hager’s work, reasonable people should be able to see that there is something rotten about the way that the police and the spies have acted in these cases against a journalist. We should all be uncomfortable that someone who is seeking to expose corruption and misuse of authority by the powerful gets treated in this way.
The good news, of course, is that the payout from the SIS will now fund Hager to continue producing his important public interest journalism. |
“Unfortunately, politicians have so far been entirely silent on the Hager controversy.”
Perhaps true if we only consider this particular “controversy” involving Hager.
On more than one occasion John Key has basely attacked Hager and others for their investigative work on the Defence Forces, the National Party covert political operations and other topics.
66K is not much for what our secret service lot did, and didn’t this happen under Johns keys watch, our privacy being breached and the SAS doing revenge missions and tarnishing our reputation. Someone needs to be held accountable Kitterage should have got the boot.
Nicky H has integrity and stamina and not a little prescience. Congrats Nicky, 2011 to 2022. Keeping calm and carrying on must be your watchword. Nil desperandum carburundum illegitami.