A Matter of Simple Logic
One of the few journalists to do his job properly over the course of the dirty politics scandal has been Guyon Espiner. He has, without in any way breaching his duty of impartiality, seen it as his responsibility on Morning Report to put questions to, and demand answers of, the Prime Minister – and, when those answers have not been forthcoming, he has not hesitated to make that clear.
He has continued that approach as the scandal has widened to embrace the question of whether or not John Key has lied to us in denying the mounting (and many would say, convincing) evidence that New Zealanders have been subjected to mass surveillance by the GCSB.
Espiner’s interviewee this morning was Sir Bruce Ferguson, a former Chief of New Zealand Defence Force and subsequently the Director of the GCSB. The interview followed in the main a predictable course. Ferguson, although lacking any technical or specialist knowledge, was robust in asserting that there had been no mass surveillance under his watch (though how would he know?) and he revealed his own obvious limitations and prejudices when he dismissed the evidence to the contrary from Edward Snowden on the ground that the latter was “a traitor to his country”.
The fact that Snowden’s evidence across a wide range of issues has never been shown to be inaccurate in any way did not seem to concern him at all.
The interview then took, however, an interesting turn. Espiner, skilled interviewer as he is, asked the good Air Marshal how far the GCSB’s powers might extend in the case of someone – taking himself, Espiner, as an example – who was suspected of acting against New Zealand’s security interests.
Ferguson was pleased to explain in detail the steps that would need to be gone through before a warrant would be issued to look into the records available about, in this case, Espiner, or any other potential suspect. He agreed with Espiner that, once the warrant had been issued, everything about the individual who was the subject of the inquiry – e-mails, electronic communications and transactions more generally, lists of correspondents and contacts over a long period – would be available to the security services.
It was at this point that Espiner posed the critical question. I paraphrase and elaborate – “Where,” asked Espiner, “does that information come from? How is it that it becomes available? Who has been holding it and how did they get it? Since suspicion could suddenly and unforeseeably fall on any person and a warrant could be obtained in respect of that person, does it not follow that the full information that you have described about that person – and every other person – must have been held somewhere, ready to be made available in the event that it was needed? Does this not show that we are all subject to surveillance, in case the information is one day needed about any one of us?”
Ferguson was not at all discomforted by the question, mainly because he plainly had not understood it or its significance. He proceeded to provide yet more detail, at length, about how warrants were obtained, and seemed completely oblivious of the point that Espiner had made.
The rest of us, however, are able to ponder Espiner’s question at our leisure. If the GCSB is able, when a particular name is put to them, to produce the detailed information described by Ferguson about that person, how could that be done unless records are kept about all of us?
The evidence that mass surveillance takes place in New Zealand – evidence that the Prime Minister demands that we should produce before he will concede that he has misled us on the subject – seems, after all, to be a matter, not of physical proof, but of simple logic.
Bryan Gould
16 September 2014.
John Key On Trial
The latest instalment in the saga of John Key’s struggle to maintain his image as someone above suspicion has produced the amazing spectacle of a Prime Minister in free fall.
Faced with the threatened revelation that he has been – not just economical with, but contemptuous of – the truth as to whether or not he authorised our spy agency to spy on our fellow-citizens, he began with an embarrassing attempt to divert attention by name-calling a respected international journalist.
That was bad enough; it surely does our international reputation no favours to see our Prime Minister resort to insults, rather than address the real issues.
But worse was to come; as those issues have become impossible to ignore, we have seen a Prime Minister in a kind of grotesque pastiche of a slow-motion strip-tease – compelled from one hour to the next to reveal, layer by layer, something that gets closer and closer to the naked truth.
It was, after all, only a day or so ago that he assured us that there was “no ambiguity – I’m right, he’s wrong”. But then we learned (after he denied that there had ever been any such intention) that there had indeed been a “business case” prepared (how reassuringly run-of-the-mill that was meant to sound) to allow the GCSB to collect metadata about New Zealanders and then pass the information on to the Americans. He then explained that he had decided that the plan, though well-advanced, should be abandoned so that it had not been implemented.
At this point, the Prime Minister resorted to talking gobbledegook in an attempt to persuade us that it was all too complicated for ordinary mortals to understand. The plan had concerned, he said, “cyber protection” – a phrase that was meant to convey somehow that this was something quite different from, and therefore more acceptable than, collecting metadata about large numbers of ordinary citizens – a difference not apparent to the experts.
Another hour, another layer removed; he had not actually stopped the plan, but had “narrowed its scope”. It would not therefore place everyone under surveillance – but large, unquantifiable and unverifiable numbers of New Zealand citizens would still have their right to privacy disregarded.
A further qualification was then provided. The GCSB, we were told, did not have the resources to secretly monitor large numbers of people – which begs the question as to why a government that had gone to such lengths to please the Americans with such an elaborate plan would stop short at providing the resources needed to put it fully into action.
And then, a little bit of wishful thinking, before the Prime Minister resigned himself to being fully exposed. The revelation, he suggested, would be embarrassing in terms of showing that we had spied on friends and allies, rather than that he had lied about spying on New Zealanders.
The reaction of New Zealanders to this spectacle has been mixed. There remain those, of course, who – whatever their predilection for striptease might be – have little interest in the Prime Minister baring all. For them, anything political is of no interest, and they are hardly aware, if at all, of John Key’s embarrassment; they notice only the smile.
Then there are those who have no doubt watched in horrified fascination as the various layers of misinformation have been discarded, but who are determined not to allow their faith in the Prime Minister to be shaken. They made up their minds, even before John Key told them it was so, that this has all been brought about by a “left-wing conspiracy”, though it isn’t clear quite how it came about that “they made me do it”.
And then we have those who prefer to front-foot it. Yes, they say, the Prime Minister did authorise spying on the whole population. Yes, he did conceal it from us and he did lie to us. But he did it because the threat from terrorist attacks is so great that we have to go beyond monitoring suspicious individuals. We all have to give up our civil liberties and the rule of law; we may not like Big Brother but he is there to protect us – the argument used by repressive regimes from time immemorial.
What should the rest of us think? Perhaps the best way to approach it is to think of ourselves in terms of a jury. The Prime Minister is certainly on trial and there is a list of serious charges against him – and, as in this case, the evidence is produced only in dribs and drabs.
We might want to choose whether this is a civil case – so that we decide on “a balance of probabilities” – or is more akin to a criminal trial in which case we will look to be satisfied “beyond reasonable doubt”. But, in either case, absolute proof, one way or the other, may never be achieved.
We still have a duty, though, to reach a view. A jury will not usually just accept the word of the person being charged or sued; our task is to reach a conclusion, having assessed the evidence, without fear or favour.
Bryan Gould
15 September 2014
A New Version of Exclusivity and Self-Interest
In a 50-year involvement in politics and 20 years in the House of Commons, I found that friendship is perfectly possible with people of very different political views from my own; indeed, some of the more stimulating and amusing companions came from the ranks of those whose political views I abominated.
I have often puzzled over the fact, therefore, that people who are so agreeable in personal terms can hold views that are so unattractive. People who are kind to animals, generous to their friends, and supportive of family members who need help, can often exhibit a breathtaking – and at times cruel – lack of generosity, compassion and understanding when it comes to those who are a little more distant from them in social or cultural or ethnic terms.
My explanation of this apparent paradox is that people who hold right-wing views (excluding those who are just plain nasty) often suffer from a simple failure of imagination. Their impulses are fine and generous when they relate to people who are recognisable and close to them. But they are unable to project those commendable responses on to a wider scale because they simply cannot understand that society is made up of people who are just as dear to others as their own friends and family are to them.
The rich and privileged are even more prone to this limitation than most of us. Like most people, they are more than capable of seeing only what they want to see and ignoring what they wish not to see. The advantage they have is that their wealth allows them to indulge these idiosyncrasies to a much greater degree than the rest of us.
The starting, or default, position for many people, in other words, is that looking after themselves and their immediate families is the first priority. It requires real effort to persuade them that they can afford what might be seen as the luxury of thinking of others. People are often reluctant to lift their eyes from the immediate and close at hand, and to understand that taking the wider view can lead to a better life and a stronger society for everyone.
Even when that effort is made and greater understanding of others arrived at, the prospect of hard times is often enough to send them hastening back to base. When crisis threatens, the hatches are battened down and the wagons are circled to face the enemy. Any thought of social concern is abandoned; self-preservation is the first consideration.
That is, I think, the explanation of the otherwise inexplicable fact that, in the midst of recession, when it would seem even more important than usual that people should recognise common cause and support each other, the response is in the opposite direction, and many become more fearful of other similarly disadvantaged people, more focused on self-protection and self-preservation and less generous towards the claims of others.
Roger Scruton, (The Guardian, 10 September) seems to agree with me. His explanation and defence of what it means to be a Conservative – with its emphasis on the supposed imperatives of identity and attachment – is little more than a re-statement, in slightly more elegant language, of the traditional Tory preoccupation with the differences between “us and them”.
The “way of life” enjoyed by “who we are” – those with whom, Scruton says, we identify and to whom we feel an attachment – begs all the obvious and age-old questions. Whose “way of life” are “we” talking about? Do we mean just those of us who are more than ready to join with us in defending the status quo and the privilege we enjoy at the expense of others? Do we exclude from the definitions of “us” those who, because they are different or are perhaps – according to our criteria, less worthy – do not share “our way of life” as we choose to define it?
Scruton obligingly helps us with the answer. “Attachment,” he asserts, “is a form of discrimination and therefore a way of giving preference to those who already belong.”
There is little of philosophy here. What we have is after all just another expression of self-interest and exclusion. Are his “attachment” and “identity” not just different ways of applying and emphasising difference from others? And no prizes for guessing who, in Scruton’s brave old world, will have the power to decide the criteria that will identity those who are or are not “one of us”.
Even if we accept Scruton’s identification of the threats to our “way of life”, is it really the case that looking inwards is the best form of defence? Which is likely to be the stronger and, in the long run, more successful – a society that is fearful of change and difference, that instinctively excludes rather than includes, that divides and weakens, or one that embraces and values all its members, that builds its cohesion and therefore its strength?
And should we really weep many tears for the poor hard-pressed Conservative, who finds it so difficult, Scruton says, to persuade people to think only of themselves? Perhaps he should try, for once, to see how easy it is to ask them to lift their eyes to a wider horizon.
Bryan Gould
11 September 2014
No One’s Fault But Ours
Nothing so clearly demonstrates John Key’s contempt for the New Zealand voter as his confidence that we will believe whatever he tells us. He has had ample experience to back up that confidence.
The course taken by the dirty politics saga is perhaps the most obvious case in point. If the polls are to be believed, the electorate do not want to believe that we have allowed a Watergate – differing from its more notorious predecessor only in that it is just a little more hi-tech than the crude burglary of the Watergate building – to spread its tentacles throughout our public life. They are happy to accept assurances from John Key, accompanied by facial expressions of concern and sincerity appropriate to the moment, that there is nothing to worry about, rather than face the facts that are virtually incontrovertible.
By the time the various inquiries have reported and the truth is finally established, Mr Key knows that memories will have faded, interest in politics will have subsided, and most people will happily return to what they see as normality – a normality where it is then regarded as acceptable that our political leaders should lie and cheat, and abuse power in order to keep it. They have, after all, been assured that this is just the nature of modern politics and “everyone does it”. Better not to ask awkward questions.
The most recent instance of Mr Key’s confidence in his ability to manipulate opinion to his advantage is quite different. It is his indication, against the advice of his own Finance Minister, that a re-elected National government might cut taxes. This was surely the most cynical of all the election “promises” we have heard so far.
Mr Key, on this occasion, has shown himself to be an adept practitioner of what the Australians call “dog whistle” politics – the conveying of a message that is interpreted by the listener (or voter) as meaning more than what is actually said.
The calculation on this occasion is that the mere words “tax cuts” will convince the voter that a bonanza is in store and that the way to bring it about is to vote National. But this is not a case where the fine print fails to bear out the supposed meaning; there is no fine print.
All we have is a thought floated by the National leader. The most cursory examination of what that thought is based on shows how insubstantial it is.
We are invited to believe that the prospect of tax cuts is a consequence of the “return to surplus”. But that surplus has yet to materialise. It has – after a six-year delay – been celebrated in advance, by virtue of some very clever and somewhat misleading public sector accounting, but looks less and less likely with each passing day.
The brief consumer boom we have enjoyed off the back of record dairy prices is already dissipating; as that balloon deflates, so too do government tax revenues. The forecast surplus, tiny as it is forecast to be, may well not materialise at all in any immediately foreseeable future.
That has not dissuaded Mr Key from promising to spend it in advance. But it almost certainly explains why – as Bill English no doubt insisted – we will see nothing of any proposed tax cuts, if at all, until the 2017 budget. It might be thought that, if they do materialise at that point, that should be a matter for the 2017 election three years away rather than for one in 2014.
Nor can we have any assurance that any cuts would mean much. Raising the minimum wage by $1 an hour would provide four times as much help to a hard-pressed family as the vaguely indicated sum produced by the tax cut apparently contemplated three years hence.
Mr Key’s much-heralded announcement, in other words, has little substance and no detail – its flakiness compounded by the alacrity with which he upped its supposed value when the initial reaction was less than ecstatic. It is a classic example of smoke and mirrors, a piece of expert legerdemain, a construction deliberately built on shifting sands.
Can we blame John Key for so blatantly trying to mislead us? Yes, but only up to a point. The real culprits are us; we care so little about our democracy that we simply do not make an effort to sort out the wheat from the chaff. We quite literally do not want to be bothered; we would rather be invited to believe than to think.
Sadly, there is a price to be paid for our indifference – and we will all pay it. We will have acquiesced in a further and damaging debasement of standards in our public life. We will have exchanged at least the goal of decent government in the interests of the whole community for the standards of the snake-oil salesman.
Bryan Gould
9 September 2014
Why Is John Key Not Compelled to Give Evidence Under Oath?
I have today sent an open letter to the Inspector-General of Intelligence and Security to ask why Mr Key is not required to attend her inquiry and to give evidence under oath. The letter is attached.
Dear Inspector-General,
I was delighted to learn of your decision to hold an inquiry under the Inspector-General of Intelligence and Security Act 1996 into the circumstances surrounding the release to the Whale Oil blog in 2011 of a confidential SIS briefing provided to the then Leader of the Opposition. I applaud not only your decision but also the fact that you are to conduct the inquiry without delay.
There is, after all, no issue of greater importance in a democracy than that the intelligence and security services should serve the interests of the country as a whole and should not be subverted for the partisan political purposes of the party that happens to be in government. As a fellow-lawyer, I am confident that your powers under the Act will allow you to provide answers to the hugely important questions that arise.
I understand that you have required the attendance on 11 September of a number of those involved. You will no doubt want to hear evidence on a range of issues. How did the SIS reach its decision to release the information in response to this particular request when others had been turned down? Why was it released in such an abnormally short time? Was the Prime Minister’s office consulted about such a politically sensitive matter? How did the Director of the SIS feel that he was able to take such a decision without such consultation? When did the Mr Key learn of the request and of the SIS response?
Those required to attend include, I understand, members of the Prime Minister’s office. This is, of course, as it should be; Mr Key is the minister responsible for the intelligence and security services and there is a good deal of prima facie evidence that members of his staff were involved with the blogger, Cameron Slater, in respect of the issue. There has also been a good deal of public interest in the extent to which Mr Key was aware of what was happening.
Mr Key has focused particularly in his public statements on the issue of when and how he was informed, after the event, that the release had taken place. He has indicated his willingness to answer questions under oath and to confirm his repeated assertion that he was not informed personally of the release by the Director of the SIS, after it had occurred, and did not become aware of it until well after the event.
Mr Key’s focus on that question, however, is in danger of diverting attention from the much more important issue of whether the release was, or even could have been, made without Mr Key being consulted and without his approval, either explicit or implicit. Mr Key has made no comment on that issue. It is that question that, above all others, must be answered by your inquiry; a failure to address it directly would be widely regarded as an attempt to protect Mr Key.
Mr Key, after all, is on the face of it as likely to be involved and able to throw light on the issues as any others of those called to attend. His willingness to give evidence under oath should surely be tested; he should be asked directly when and how he became aware of the release or even of its mere possibility. Mr Key, after all, enjoys no special legal or constitutional position that would protect him from answering questions like anyone else.
The quite separate inquiry that Mr Key will announce later this week into the matters that led to Judith Collins’ resignation as Minister for Justice seems unlikely to throw any light on the wider issues, including the matters of particular concern to you. Your powers under s.23 of the Act to compel attendance and to take evidence under oath, on the other hand, make it possible for you to reach a comprehensive answer to those matters, including the extent of Mr Key’s involvement. That cannot, however, be achieved if Mr Key is to be sheltered from questioning by a failure on your part to require him to attend. I am sure I speak for many New Zealanders in believing that that would be a missed opportunity of the greatest significance and would detract fatally from the value of your inquiry.
Yours sincerely,
Bryan Gould