Sunlight best disinfectant over GCSB concerns

There was a spring in Labour's step this week.

The party's internal polling is said to be picking up disquiet over the shambles surrounding Prime Minister John Key's involvement in the appointment of Government Communications Security Bureau (GCSB) boss Ian Fletcher.

Anecdotally, people don't find Key's lack of recall over phoning up his old school mate and suggesting he apply for a job as one of the country's top spooks believable - or at least that is the story Labour MPs are singing in unison.

But before Labour gets too ahead of itself thinking the tide has turned, it should recite this mantra; Paintergate, the speeding motorcade, Thai tilers.

Helen Clark took a succession of body blows in her first and second terms. Each of them inflicted their own scars. But it wasn't until the electorate started to accept the Opposition caricature of her as the new reality - best summed up as Helen-Grad - that they started to look toward National as a credible alternative.

And that took the best part of eight or nine years.

The GCSB saga is messy. The revelation the bureau probably illegally spied on Kiwis is damaging.

But the major fallout will be to the reputation of the nation's spooks, either as under-employed bumblers or something more sinister.

It is a reputation that dates back decades to the finding of a pie and a Penthouse magazine in one unfortunate spy's mislaid briefcase. So no one will have any trouble believing the cock-up was beyond the Government's control.

Key hasn't done himself any favours with yet another memory lapse, this time over crucial details of the Fletcher appointment. His dodgy recall in the face of awkward questions is starting to stretch credulity.

But the auditor-general's decision not to investigate Fletcher's appointment leaves Labour nowhere to go over its claim the process stinks.

Lyn Provost points out that whoever heads the GCSB is there at the discretion of the prime minister.

She also notes that the legislation doesn't spell out any particular process for how the appointment is decided.

Indeed, the fact the appointee serves at the prime minister's pleasure suggests a high level of trust is required in the relationship.

In those circumstances it may not be surprising if the prime minister prefers someone he knows, even to the extent of personally soliciting their application.

That may raise legitimate questions about whether there is the necessary distance between the spy boss and the prime minister, who operates as the check and balance against our spooks being over-zealous in the exercise of their considerable powers.

But unless the law is changed that is apparently acceptable.

The one question mark remaining over the Fletcher appointment is Key's initial evasiveness.

If there was nothing wrong with appointing an old mate, why on earth did it have to be dragged out of Key by a series of late-night answers to questions from Fairfax? And only after he had deliberately planted the impression he had no involvement whatsoever, except to accept the recommendation of the State Services Commissioner.

Only Key knows the answer to that.

Meanwhile, there are more troubling and fundamental questions which can and should be answered through a proper inquiry.

Key acknowledges public confidence in our national security agencies has been rocked.

The fiasco over the GCSB illegally spying on internet entrepreneur Kim Dotcom because it didn't bother to check his residency status, was damaging enough when it looked like a case of simple incompetence.

But a report this week by Cabinet Secretary Rebecca Kitteridge revealing more than 80 other cases of potentially illegal spying points to a far more troubling explanation.

That is that it spied on Dotcom because it thought it would get away with it.

The GCSB has paid lip service for years to Section 14 of the 2003 GCSB Act that stipulates it may not "take any action for the purpose of intercepting the communications of a person . . . who is a New Zealand citizen or permanent resident".

The Government and the domestic arm of our Security Intelligence Service (SIS) have taken a similarly cavalier view.

Indeed, everyone from the prime minister-down is now raising their eyebrows in astonishment that anyone would take Section 14 at face value.

Key suggested to reporters in China that former prime minister Helen Clark even checked with her officials that the 2003 law change wouldn't stop the GCSB from doing what it had been doing for years - i.e. spy on New Zealanders.

Apparently the get-out clause was section 8(1)(e) of the GCSB Act which states as one of the bureau's functions: "To co-operate with, or to provide advice and assistance to any public authority".

That apparently makes the explicit rule against spying on New Zealanders a "grey area".

Only a lawyer would accept that.

It is true that the GCSB had routinely put Kiwis under surveillance before the 2003 Act. And with proper oversight, there doesn't seem to be a particularly compelling reason why its resources should not be used domestically.

But it puts the 2003 Act and the purpose of section 14 into its real context. It was a necessary appeasement to Labour's left wing coalition partner, the Alliance Party, at the time submissions were heard on the legislation in 2001.

And it was a highly effective snow job.

Author Nicky Hager - who has done more digging into the GCSB than any one - said in a blog he was embarrassed to admit that even he believed the assurances the GCSB wasn't spying on New Zealanders.

Against that backdrop, putting the Inspector-General of Security and Intelligence Paul Neazor in charge of clearing up questions raised by the Kitteridge report is nonsense.

He is an integral part of the process.

He signed off the SIS warrants the GCSB operated under.

And despite raising a red flag in May that there may be a problem with GCSB's interpretation of the law, Justice Neazor subsequently issued a report on the Dotcom case which gave no hint of broader disquiet.

Given that red flag, meanwhile, GCSB's actions in asking acting prime minister Bill English to sign a ministerial certificate suppressing their involvement in the Dotcom case are a cause for fresh disquiet.

The Government will argue that the Dotcom blunder is quite separate to the other potential illegality.

But it should operate on the principle that it's not the crime that gets you - it's the cover up.

In this case, sunlight is the best disinfectant.