Is NZ violating the SIS Act over US drone strikes?

By Bob Rigg

After decades of lively public debate, New Zealand abolished the death penalty for murder in 1961. It is not widely known that the death penalty for treason remained on the statute books until it was also abolished in 1989.

From then on no one could be legally sentenced to death or executed in accordance with New Zealand law, for any reason. Until the death penalty was abolished, all persons charged with capital offences were entitled to defend themselves through legal process.

In mid-April of this year the Australian newspaper revealed that five people including one Australian citizen and one man with dual Australian-New Zealand citizenship had been killed by a US Predator drone strike on 19 November 2013. It is noteworthy that neither the Australian nor the New Zealand government fronted up voluntarily with this story.

New Zealand target of US drone strike was “collateral damage”
The Australian broke the news, reporting that only three of the five men killed had been primary targets. A “senior [Australian] counter-terrorism source” had contacted Australian officials after the strike, indicating that the Australian and New Zealand victims had been “collateral damage”.

While Australian ministers immediately retreated behind a firewall of confidentiality, John Key denied any direct responsibility for the killing by claiming that he had not shared intelligence with the Americans in the critical phase.

John Key claims that, although he was not consulted, the strike was “legitimate”
John Key was being economical with the truth when he described the killing of New Zealander Daryl Jones, or bin John, as “legitimate … given that three of the people killed were well-known al-Qaeda operatives”. He was diverting attention from the fact that, according to the Australian’s sources, the New Zealander and the Australian were not primary targets. They just happened to be “collateral damage”.

President Obama disclosed years ago that he personally signs off on kill lists for US drone strikes. This means that he must have personally authorized drone strikes only on the three primary targets in this case. Even though US drone strikes commonly cause collateral damage, Obama would certainly not have provided carte blanche to kill Daryl Jones or anyone else who just happened to be around at the time.

The Five Eyes intelligence network to which New Zealand belongs is an exceptional and unusual arrangement whereby five governments have agreed to share enormous quantities of intelligence concerning security matters of common interest.

Blind in Five Eyes
In recent times it has become apparent that much of this intelligence is of dubious legality. By virtue of its membership of the Five Eyes network New Zealand’s government can access and use this dubious intelligence, and may well also be using some of the questionable intelligence-gathering techniques made public by the indiscretions of Edward Snowden.

Moreover, if New Zealand may not legally spy on its own citizens, other Five Eyes partners may spy on the same citizens and then share information about them with New Zealand intelligence agencies.

Trust is at the heart of intelligence-sharing between these five governments, although it has to be said that trust between them and their citizens has been in short supply, at the latest since Edward Snowden’s recent revelations about US intelligence excesses.

In the meantime the US continues to inflame Germany by being caught out spying. All that Germany wants is for Five Eyes to become Six Eyes, including Germany. But the US refuses; while it can rule the roost over the network’s current members, the redoubtable Angela Merkel would work for enhanced transparency and accountability, something which the famous five want to avoid at all costs.

The Obama administration has been under unrelenting US public pressure to disclose much more of what its massively funded intelligence agencies are up to, especially in relation to the killing of US citizens. Debate has focused on Obama’s decision to killAnwar al-Awlaki, a US citizen alleged to be, in Obama’s words, “al Qaeda's most active operational affiliate" in Yemen. The accuracy of the information on which the decision to kill was based is still being hotly debated. About two weeks after al-Awlaki was killed, his young 16 year-old son, Abdulrahman al-Awlaki, was carbonised by a drone strike while he was outside with a friend. All that remained was his distinctive mop of hair. Obama was unhappy, while senior representatives of the intelligence establishment mired themselves in contradiction and confusion.

Although the US public has known since 2010 of the existence of a high level legal opinion justifying drone strikes on US citizens without due process of law, the Obama administration has not wavered in its resolve to keep this opinion a secret.

In a major blow to what little remains of Obama’s liberal credentials, a US federal appeals court has just ruled that this heavily redacted opinion must be published.

One of its key provisions states that the target’s activities must pose “a continued and imminent threat of violence or death to Americans” and, just as importantly, that a “capture operation would be infeasible”.

This Obama policy which has been in force since 2010 shows that the three men targeted while in the company of Jones must have been deemed to pose “a continued and imminent threat of violence or death to Americans” (author’s emphasis).

In declaring that Jones’s extrajudicial drone killing was “justified”, was the Prime Minister relying on legal advice, or was he making up the law as he went along? If he was relying on legal advice, the New Zealand public is entitled to see and debate this.

While consistently depriving the US public of useful information about US intelligence policy and practices, Obama has been reluctantly forced into public pledges of personal commitment to greater transparency. For example, in an online interview sponsored by Google, he even said: "What I think is absolutely true is it's not sufficient for citizens to just take my word for it that we're doing the right thing." This is precisely what New Zealand’s Prime Minister expects of the New Zealand public.

The killing of US citizens by US drones has been a hot issue in the US for some years now. US intelligence would not normally authorize the execution of a citizen of a trusted Five Eyes partner without first seeking approval for that. If the US unilaterally killed a citizen of another Five Eyes partner without prior consultation, and later discovered that the government in question saw this as unjustified, this could damage working relationships.

The New Zealand public is known to be concerned about Snowden’s revelations, and also about foreign policy. However, unlike President Obama, John Key can safely assume that New Zealand’s media, academics, and non governmental organisations will generally be as quiescent and ineffectual as ever where foreign policy and intelligence matters are concerned, while Parliament will continue to assume that foreign policy is a non-issue for the Kiwi voter.

John Key not consulted about Daryl Jones because Jones was not targeted
However, if it is true that Daryl Jones was not one of the three targeted victims, and was indeed a case of collateral damage, John Key would most probably not have been consulted.

Instead, he would have been advised of the killing after the event, and would have had to decide whether to cover for Obama, or whether to go public by asking a few penetrating questions of a foreign government which had killed a New Zealand citizen without any semblance of due process. Given John Key’s intimate relationship with the US administration, he chose to declare that the extrajudicial killing of a New Zealand citizen by US armed forces was justified. He did not want to embarrass his presidential golfing partner.

This may also partly explain why the New Zealand and Australian governments did not of their own accord inform their publics of the extrajudicial killing of their two citizens. They were privately unhappy about what had happened, but did not want to share this with their publics. Above all, they wanted at all costs to avoid embarrassing their key foreign policy ally.

Accountability and drone strikes – the international dimension
The Prime Minister must be aware of the fierce debate on this question in Obama’s US, but will also have been briefed on the increasingly acrimonious debate in the UN. In 2013 the UN General Assembly responded to a Pakistani initiative by referring the question of drone strikes to the UN Human Rights Council. Amongst other things, Pakistan was concerned about the fact that US drone strikes were killing significant numbers of innocent Pakistani civilians.

In the US armed forces innocent civilians killed by US drones are commonly dehumanized as “bugsplat”. For them New Zealand’s Daryl Jones was just another case of bugsplat. And seemingly for New Zealand’s Prime Minister as well.

The US was angered when a special report by a UN rapporteur recommended that alleged cases of collateral damage from drone strikes should be formally enquired into and publicly reported on. Enhanced accountability and transparency were key watchwords. The US announced that, when the UN Human Rights Council reconvenes, it will not participate in discussion of this issue. France and the United Kingdom obligingly fell into line. The forthcoming November meeting of the UN Human Rights Council will witness a showdown, with the US and its powerful allies trying to undercut support for Pakistan’s initiative, which they want to see laid to rest in the enormous graveyard of failed UN resolutions. New Zealand is not a member of the UN Human Rights Council, but will have to confront this issue sooner or later.

Accountability is lacking
The laws underpinning New Zealand’s two principal intelligence agencies assign to a minister, normally the Prime Minister, control of all their functions. While the Security Intelligence Service (SIS) and the Government Communications Security Bureau (GCSB) produce annual reports and report to a parliamentary committee and the Leader of the Opposition, real information about what these two organisations and their Five Eyes partners are up to is as scarce as hen’s teeth.

The only person not an employee of these two organisations who is legally required to be briefed on their activities is the Prime Minister, who occasionally publicly admits that even he is not fully informed about all aspects of their work.

One precondition for New Zealand’s Five Eyes membership must have been a formal and secret undertaking to exclude everyone other than the Prime Minister from any real understanding of what that intelligence network is up to. As far as Five Eyes and other international intelligence networks are concerned, the elected Prime Minister of New Zealand is accountable solely to his intelligence partners, and not to the New Zealand public. This makes a mockery of the democratic principles of transparency and accountability, and is inconsistent with the legal requirement for the SIS to act “in a manner that facilitates effective democratic oversight”.

The New Zealand public is entitled to be fully informed about the legal foundation for the relationship between the New Zealand government and the Five Eyes network to which it belongs, including an assessment of its consistency with the Security Intelligence Service Act.

Is New Zealand violating its own Security Intelligence Service Act?
The SIS Act specifies that the SIS shall act “in accordance with New Zealand law and all human rights standards recognised by New Zealand law, except to the extent that they are, in relation to national security, modified by an enactment”.

The death penalty has been erased from New Zealand’s statute books. New Zealand law and New Zealand human rights standards accordingly do not in any way empower the government to legitimise the killing of any New Zealand citizen, at home or abroad. They certainly do not authorise the Prime Minister to outsource power over the life and death of New Zealanders to unaccountable military or intelligence agencies of a foreign government, as happened in the case of Daryl Jones.

Jones was the victim of an extrajudicial drone strike carried out by US armed forces acting without prior authorisation from the New Zealand government.

Daryl Jones was a case of collateral damage. He was denied due process, which he was entitled to, in the language of the SIS Act, “in accordance with New Zealand law and all human rights standards recognised by New Zealand law”. And as New Zealand law and human rights standards no longer recognise the death penalty under any circumstances, the New Zealand government was acting illegally when it retroactively legitimised the extrajudicial execution of a New Zealand citizen.

In a recent response to a question in the House about Afghanistan John Key declined to rule out the possibility that New Zealanders other than Daryl Jones may have been killed on the basis of intelligence provided to foreign partners by New Zealand armed forces. The Prime Minister said, somewhat vaguely: “Our International Security Assistance Force partners have used that information, I suspect, and I cannot confirm exactly the results of that.”

Although the Prime Minister is legally defined as being in “control” of the SIS, he was unwilling or unable to require the SIS to account fully to him and the public on an issue of major public importance.

The SIS must be required to disclose whether New Zealand citizens other than Daryl Jones have been killed or wounded by New Zealand or allied armed forces in Afghanistan, Pakistan, Yemen or elsewhere, by drones or by other military means.

The Prime Minister is not in control of New Zealand’s intelligence services. They control him, while they in turn are controlled by extremely powerful overseas intelligence agencies whose untransparent policies and practices are frequently concealed from their own governments.

John Key has reintroduced the death penalty to New Zealand, unilaterally, in secret, and in the absence of consultation with both Parliament and the New Zealand public.

For the time being at least, the US will continue to rely heavily on drones as its killer weapon of choice in the world’s Islamic hot spots. Unless New Zealand public opinion acts to deny New Zealand governments the power to legitimise the killing of New Zealand citizens by military allies, or even by New Zealand armed forces, New Zealand citizens who engage with Islam abroad will be an endangered species.