Opening a can of worms

20:54, Jan 07 2013

Will the Government Communications Security Bureau (GCSB) end up in the dock? Is it really possible that senior GCSB officers will be required to give evidence in the Kim Dotcom case?

The answer is, probably not. The maintenance of state security is arguably the most important function a government has. It is, therefore, extremely unlikely that anyone will sanction publicly exposing the blurred lines of authority, legality and accountability so basic to effective state security.

Though it is nowhere clearly spelled out, it is nevertheless firmly believed by those who inhabit them that the vital institutions of a fully functional modern state - the professional civil service, the armed forces and police, the judiciary, and senior local government officials - constitute the "Permanent Government" of the realm.

Elected politicians come and go; political parties move backwards and forwards between Treasury and the Opposition benches; the media reports, critiques and, very occasionally, exposes the actions of the powerful; but the Permanent Government endures.

Over the centuries, it has been forced to concede a number of important roles to the people's elected representatives, but obstructing the duties of the Permanent Government isn't one of them.

The Kim Dotcom case is unusual because the conduct of the Permanent Government is being disrupted by one of its own - the judiciary.


While there are many examples of politicians being frustrated by the actions of a security apparatus only notionally under their control, it is rare to see the "spooks" brought to heel by lawyers and judges. So rare, in fact, that it raises the possibility that Dotcom and his legal team have unleashed some kind of rogue judicial energy.

It has already seriously embarrassed the prime minister and his government, and now threatens to compromise the operational reliability of the GCSB.

This is no small matter. New Zealand's signals intelligence operation is inextricably bound up with those of the four other Anglo- Saxon powers: the United States, Britain, Canada and Australia.

It is barely conceivable that the global security reach of these "Five Eyes" might be compromised by some arcane dispute over the intellectual property rights of the American film and music industries.

Even more unlikely is the prospect that the FBI - a principal player in the Dotcom saga - will meekly submit to the orders of a New Zealand High Court judge (or even our Supreme Court). The FBI may include the entire planet in its jurisdiction, and consider every Western police force to be an extension of the already very long arm of American law enforcement, but when it comes to external scrutiny of its own investigations, the FBI answers solely to the US Attorney-General.

The most likely outcome of the Dotcom saga, therefore, is that, somehow, the case will be made to disappear. Somewhere - both here in New Zealand and (hopefully) in the US - a collection of wise old heads will be reviewing the succession of public relations, political and security disasters that followed the spectacular arrest of Dotcom in January 2012, and asking how many more disasters it's going to take before someone in authority locates the "off" switch.

The whole extraordinary story calls to mind a knitted jersey with a loose thread. The garment which once comfortably covered the naked power of the Permanent Government has, thanks to Dotcom's legal team, unravelled to the point where all manner of formerly hidden things are now on clear display.

Before Dotcom's arrest, how many New Zealanders were aware that the GCSB regularly co-operated with the New Zealand Police by intercepting the cellphone and email messages of their fellow citizens?

Who among us was aware that it was within the power of our prime minister to sign a document suppressing any and all references to the GCSB in a New Zealand court of law?

When was that extraordinarily undemocratic and dangerous power conferred upon a politician?

Did anyone suspect that the FBI in Washington had only to pick up a phone to the New Zealand commissioner of police to set in motion a full- scale armed assault on the property of a man accused of nothing more sinister than copyright violation?

And how many Americans would have believed that a handful of irritated movie moguls and record producers could set in motion the enormously complex and expensive machinery of the National Security Agency, the Department of Homeland Security, the CIA and the FBI, for no better purpose than to scratch a long-standing commercial itch?

Is it really all that likely that this litany of embarrassing revelations is going to be lengthened by the FBI handing over its evidence to Dotcom's lawyers? Or that one of this country's most distinguished Queen's Counsels is going to be unleashed on our top spooks?

I don't think so.

The Press