Scoop Election 08: edited by Gordon Campbell

Gordon Campbell on the failure to prosecute the GCSB

July 18th, 2014

So one hand of the state – the Independent Police Conduct Authority – has now washed the hands of its brother agencies, and declared that all hands are clean. Case closed. Does anyone feel re-assured by this exercise in familial self-exoneration? Has anyone’s respect for the rule of law been enhanced? Yesterday, the IPCA reported back that yes, it has determined there was nothing wrong with the Police decision not to prosecute the security agencies that had broken the existing law when they carried out illegal surveillance on Kim Dotcom and as many as 88 other New Zealand citizens. It would not be in the public interest to prosecute those responsible, the IPCA agreed with the Police, in that the security agents involved didn’t know they were breaking the law, and thus lacked the necessary element of criminal intent.

Incredible. These are defences not commonly available to ordinary citizens. To willfully ignore the meaning of the law – and the law and the intent of Parliament were crystal clear in that New Zealand citizens and permanent residents were not to be spied on by the GCSB – is bad enough. To then treat carelessness or reckless disregard of the law’s express meaning as being a valid defence against prosecution is also outrageous. It’s a Spiderman situation: the GCSB is vested with great power on the basis that it will exercise it with great responsibility. When such agencies then fail to act responsibly, the law should be more willing to prosecute those at fault, not less willing.

In this context, the lack of conscious intent is a joke. Try that argument with the IRD next time when it tries to invoke the tax laws: sorry, I didn’t think I was doing anything wrong, and anyway in my personal opinion the law’s a bit unclear, so I can’t be held liable for my actions. Anyone who tried to offer that sort of justification would be usually out of luck. Ignorance of the law being no defence etc etc.

As many have already pointed out, the reluctance by the Police to prosecute the GCSB agents involved is in stark contrast to the zeal with which the Police went after Bradley Ambrose, the hapless photographer who inadvertently recorded the Epsom “cup of tea” conversation between Prime Minister John Key and Epsom MOP John Banks. Clearly, the cosy relationship that the Police and GCSB/SIS enjoy – whereby they carry put joint operations, yet are supposed to monitor each other as to the legality of these joint actions – is intolerable.

In addition, we have an IPCA that has just proven itself incapable of acting independently, and thus has to be treated as part of the same club. Plus, in John Key, we have a Minister of the Security Services who claims to have had no knowledge of what the agencies under his oversight were doing, even when they launched illegal operations in his very own electorate, in conjunction with the agents of a foreign power. Some oversight, when the Minister concerned seems to be permanently AWOL.

In the short term, it seems that Dotcom will have to launch a private prosecution to redress the wrong committed against him, and against the other 88 victims of the GCSB. At the very least, the people who have been subjected to illegal surveillance need to be told who they are, thus giving them the option of joining Dotcom in a class action suit. Ultimately, the failure to identify the victims should be regarded as an obstruction of justice.

In the longer term, the oversight mechanisms for our security service are clearly inadequate to non-existent. The call by Internet Party leader Laila Harre for a Royal Commission into the security services is timely. This would not be a witch-hunt. In the wake of the revelations of Edward Snowden and others, New Zealand needs to comprehensively re-set the boundaries of what the state can – and cannot – legitimately do, and what privacy protections and democratic oversight mechanisms need to be put in place to protect ordinary citizens.

Otherwise we will increasingly be at the mercy of what others have called the “deep state.” This has been defined by the security analyst William Akin as “a parallel top secret government whose parts have mushroomed in less than a decade into a gigantic, sprawling universe visible only to a carefully vetted cadre and – in its entirety – visible only to God.” The security services that comprise the Deep State collaborate with their brother agencies overseas in ways and by means that bypass the public’s elected representatives.

The subsurface part of the Deep State sets its own compass, regardless of which political party is nominally in control of it. It needs to be brought under meaningful and credible control by the public, via a Royal Commission.

Deep States of Metal
There’s something heavy metal about that term “Deep State”, so a track from Mastodon’s new album, Once More’ Round The Sun. To my mind these guys still haven’t topped the Blood Mountain album, but this video hilariously and touchingly celebrates almost every single nerd concept possible – from hot babes to Dungeons and Dragons to medieval re-enactments – with a sweet intergenerational message to boot.


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    1. 6 Responses to “Gordon Campbell on the failure to prosecute the GCSB”

    2. By john on Jul 18, 2014 | Reply

      You seem to forget that the Bradley Ambrose recording was also deemed to be illegal, but he WASN’T prosecuted, despite the complaint coming from John Key.

    3. By Matt on Jul 18, 2014 | Reply

      Actually, Gordon, for much of the *criminal* law (not tax law), having guilty intent (“mens rea”) is absolutely required. There is no special pleading involved here, it’s simply the consistent application of an age-old legal principle. And the Crown must be able to demonstrate the likelihood of the necessary mens rea beyond reasonable doubt, just as it must prove all the other elements of a charge.

      If I have permission from a farmer to walk across their land, but get lost and end up on a neighbouring farm having crossed a “Trespassers will be prosecuted” sign, it is unlikely a prosecution would be brought since proving that I intended to trespass would be incredibly difficult.

      How would the public interest be served by prosecuting a bunch of civil servants in order to get clarity about a criminal statute? It’ll satisfy you and Russell Norman, certainly, but in a properly just society criminal proceedings are not used to establish the true intent of Parliament.

    4. By BobbyJ on Jul 18, 2014 | Reply

      Matt, I’m no lawyer, but I think you must be mistaken. Otherwise every defence could successfully plea – “I didn’t know the gun was loaded”

    5. By Macro on Jul 18, 2014 | Reply

      @Matt et al may I suggest you refer to the excellent post by Andrew Geddis on this very matter. Bit of a read and very legalistic – but shows just how mind-blowingly incredible was the Solicitor Generals “advice”.
      the import of which undercuts the very fabric of the law as it was written.

      An excellent summary Gordon of a matter that cuts to the very fabric of our society, thank you.

    6. By Matt on Jul 19, 2014 | Reply

      Macro, you have misunderstood both my point and Andrew Geddis’ point. The SG advised the Police that it was necessary to establish mens rea in order to successfully prosecute for illegal interception. Geddis accepts that the Police could not really have decided it *wasn’t* necessary, and that the IPCA couldn’t really criticise the Police for relying on the SG’s interpretation of the legislation.

      Geddis’ point was that the IPCA *then* went on to say that if GCSB *thought* its actions were *legal* (as opposed to not knowing they were *illegal*) then they *were* legal. That’s a very big distinction.

      Going to your (I assume) suggestion that you could get off a shooting charge by saying you didn’t think the gun was loaded, by pulling the trigger you have taken responsibility for the gun’s discharge. End of story. Whether or not you intended to shoot someone is irrelevant, you have taken all the actions necessary to achieve that outcome. There’s also generally no justification for shooting someone (self-defence excepted, and if you’re claiming that you don’t get to also claim accident), whereas there is a justification for intercepting someone’s communications.

    7. By Macro on Jul 28, 2014 | Reply

      I think you mis read what I wrote.. No where did I suggest what you say I do. What I did say was that the advice given would seem to pervert what the law intended.

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