Did the Government Communications Security Bureau knowingly engage in illegal spying on Mr Dotcom, a New Zealand resident, or were they just incompetent? Were the Police, who requested the GCSB surveillance, co-conspirators in this unlawful behaviour, or were they also incompetent?
With the release of Police and GCSB Court affidavits to the Labour Party we are getting closer to the truth, but there are still pieces missing in this jigsaw puzzle.
A simple “incompetence” explanation is getting harder to sustain when you consider the following timeline:
9 December 2011: Detective Inspector Grant Wormald asks Immigration New Zealand for file information on Kim Dotcom and Mr van der Kolk.
14 December 2011: Wormald tells the two GCSB representatives at a meeting “that both Mr Dotcom and Mr van der Kolk were residing in New Zealand and were able to come and go, so they must have a form of residency” and, related to that, he “did not think it was possible for the GCSB to intercept either Mr Dotcom or Mr van der Kolk.”
16 December 2011: Police receive from NZ Immigration documents re the travel of Mr Dotcom and Mr van der Kolk. They show Mr Dotcom is listed as “resident” in his last two arrivals in New Zealand.
That same day the GCSB begins its illegal surveillance on Mr Dotcom, after a request from the Police.
11 January 2012: Police receive NZ Immigration files on Mr Dotcom confirming he had been granted residence on 18 November 2010.
20 January 2012: Surveillance of Mr Dotcom is ended.
21 January 2012: Mr Dotcom is arrested.
16 February 2012: Detective Inspector Wormald is in a debrief with GCSB in which he observes that “It appeared to GCSB that the interception may not have been lawful because of their (Dotcom and van der Kolk’s) residency status.”
20 February 2012: GCSB admits that both the Police and media reports confirm Mr Dotcom’s residency status.
Despite all this the GCSB sends out an email on 27 February claiming the surveillance was legal. They claim that Mr Dotcom could be spied upon because he was a “Resident” not a “Permanent Resident” – when in the Immigration Act all residents are treated as permanent, with the same rights, and according to the GCSB Act they can’t be spied upon.
The GCSB also says in another email to the Police that “People here have been very relaxed about it all” and “Absolutely no further action [is] required.”
So take your pick. The Police and GCSB are guilty of gross incompetence, or they consciously misinterpreted the law to make everything right. Or they were guilty on both counts.
Looming over both agencies was the FBI, keen to get Mr Dotcom into custody.
For its part, the GCSB would have been a willing agent. It was created in the 1970s as a subordinate of the American National Security Agency, to extend the global reach of this giant electronic spying agency. NSA officers work within the GCSB and the NSA gives the GCSB the riding instructions for the operation of its main asset, the Waihopai satellite communications interception station.
There seems to be more oversight of our GCSB from American government than the New Zealand government. Our Prime Minister said it was ok that the GCSB didn’t tell him about its spying on Dotcom, because it was only an “operational matter”.
Under pressure, Mr Key now says he expects there will be a shakeup at the GCSB. But we need much more than that. We need a comprehensive independent inquiry, with public input, to critically examine not only the GCSB’s competence but also its worth to New Zealand.
[For more on the lack of accountability of the GCSB see my Op-Ed: “Dotcom case shows the cost of spying is spooky” published in the New Zealand Herald on 18 December 2012.]