Did our spies go all the way with the CIA
By Richard Harman (author)
In an unprecedented move, three former intelligence directors came out yesterday to push back against an official report critical of the way they related to the CIA torture programme during the Afghanistan War.
Between 2001 and 2009, the CIA established a global network of secret prisons for the purpose of detaining terrorism suspects, in secret and indefinitely, and interrogating them through the use of torture.
A 2014 United States Senate report found that the CIA had used various forms of torture (including the notorious “waterboarding” technique) and had misled both the White House and the Department of Justice about what it was doing.
From 2003 on the Government Communications Security Bureau and, later, the Security Intelligence Service, sent staff to Afghanistan either to assist the two New Zealand military deployments there or to work with un-named allies.
The former Inspector General of Intelligence, Cheryl Gwyn, yesterday released a report on that deployment.
The question that Gwyn set out to answer was whether those intelligence staff, or their managers back in Wellington, either knew about or were complicit in the CIA torture programme.
Her conclusion was a firm “they did not.”
“I am satisfied that the agencies, the then Directors, and individual agency staff members had no direct involvement in the CIA’s unlawful activities; nor were they complicit in any unlawful conduct," she said.
But in arriving at that conclusion, she found plenty to ask questions about in the way that both the GCSB and the SIS operated.
And by implication, she also raises questions about the-then Prime Minister, Helen Clark who was also Minister in Charge of the two intelligence services.
But following the paper trail has not been easy. Once again, the GCSB has had its record-keeping found to be faulty.
Gwyn said the GCSB has been unable to provide her with a complete set of Government authorisations covering the deployment of GCSB staff to Afghanistan.
“This is a surprising and significant gap in the record of official authorisation,” she said.
But it is not the frist time the GCSB record keeping has been found at fault.
In her 2011 Inquiry into the GCSB, the current director of the SIS, Rebecca Kitteridge, found that “there have been many basic documents that I have been unable to find and that others have struggled to find for me.”
And this lack of documentation extended to the officers sent to Afghanistan.
“A number of those interviewed also expressed the view that the GCSB relied heavily on their common sense while providing little written instruction, particularly in relation to the ambit of their jobs and the legal and policy basis for their roles,” she said.
The absence of any legal training in New Zealand had left a significant gap in the preparation of those deployed to Afghanistan, and those seconded to partner agencies in support of their military efforts in Afghanistan, she said.
Once the officers were in Afghanistan, they were “ reliant on the direction of their Officers in Charge (OICs), who were not New Zealanders.”
And the officers told Gwyn they had no operational contact with members of the CIA. Some staff were aware that they were not invited to certain meetings involving the US Defense Intelligence Agency, FBI and CIA.
They did not know if there was or was not a CIA presence in their workspace.
Gwyn separately examined the roles of the Directors of the SIS and the GCSB.
She said they could not be assessed only with the benefit of hindsight.
“They did not break the law; nor were they unconcerned about New Zealand’s human rights obligations.
“But they were not fully alive to the range and extent of risks for their organisations and for the Government more generally.
“Those risks were not limited to moral or ethical risks, but risks that their agencies might become involved in unlawful activity.
“The fact that the legal risk did not crystallise does not negate the responsibility to be alive to it and to ensure organisational processes are in place to maintain a safe distance. Objectively assessed, the New Zealand agencies’ connections to the CIA’s activities at the time required more of the former Directors as heads of State agencies, albeit operating in extraordinary times.”
Simply, she argued, by mid-2004 there was sufficient reportage incredible news outlet about the CIA's use of torture that the Directors ought to have made their own inquiries.
Clearly stung by her criticism the three directors of the agencies over the period under examination; Richard Woods, Director NZSIS: 1999 – 2006; Dr Warren Tucker, CNZM Director GCSB: 1999 – 2006, Director NZSIS: 2006 – 2014; Sir Bruce Ferguson, Director GCSB: 2006 – 2011; issued a joint statement rebutting her criticisms and Woods and Tucker have also issued opersonal statements.
In their joint statement, they say the years covered by the report involved a period of risk unprecedented since the Second World War.
“We believe that our actions and those of our agencies were in the best interests of New Zealand and New Zealanders,” they say.
But Tucker, in his nearly 5000-word statement, is much more explicit.
As background, he raises a fundamental political question, and that was New Zealand's post-ANZUS relationship with the Five Eyes intelligence partners, particularly the United States.
His statement says that in 2001 at the time of the 9/11 attacks in New York, the trigger for the Afghanistan War, both intelligence Agencies were small – “tiny, by today’s standards – and only beginning to recover from capability and capacity issues resulting from the shrinking budgets of the 1990s.
“New Zealand was still very much subject to the intelligence cutbacks and constraints imposed unilaterally by the 1985 US Presidential Directive following the ANZUS rift. “Although there had been some minor relaxation – “re- interpretation” – by the US when it suited their interests, most sharing of intelligence reporting - and the technology and “know-how” which underpins intelligence collection capability - was on a “Four Eyes” basis.
“New Zealand was essentially a member of the “Five Eyes” grouping mostly in name only.”
New Zealand’s intelligence priorities were elsewhere.
“We were engaged with Australia in seeking stability in several near neighbour countries, which even today I am constrained from naming,” he says.
(The Bouganville Independence War had ended in 1998; the regional military assistance mission to keep the peace in the Solomon Islands was established in 2003; there were riots in Tonga in 2006; the independence war in Timor Leste erupted in 1999 and in 2000 George Speight mounted Fiji’s third military coup.)
In December 2001 the NZ SAS was deployed to Afghanistan as part of the international coalition against the Taliban.
Tucker says the agencies received requirements from the Clark Government for information and intelligence arising from the conflict. They were told the information was of “paramount importance”.
“This raised a significant dilemma,” he says.
“Neither NZSIS nor GCSB had any intelligence collection capability in relation to Afghanistan, or the infrastructure to develop their own independent capabilities.
“But the relevant intelligence which the other Five Eyes partners were generating and rapidly ramping up was being mostly shared on a Four Eyes basis which excluded New Zealand.
“The solution to this dilemma required that the GCSB (initially) and the NZSIS (later), with the full agreement and active encouragement of key Ministers, offer to work closely with its US, UK and other counterparts.
“This included putting a very small number of its own personnel into coalition intelligence facilities on the ground in Afghanistan,"
However, the relatively impotent position relative to Five Eyes that New Zealand found itself in, leads to questions about whether the New Zealanders were reluctant to rock the Five Eyes boat by inquiring too deeply into what the CIA was up to in Afghanistan.
Gwyn’s report said: “ It was apparent that there was an unspoken general rule that one did not ask direct questions about the operations of Five Eyes counterparts.
“The former Directors did not agree that they had an obligation, whether statutory or otherwise, to ask questions of their counterparts when credible allegations about acts of torture by partner agencies came to light.
She said there was no doubt New Zealand was and is the smallest partner in the Five Eyes intelligence alliance and, as the review of Intelligence and Security in a Free Society made clear, New Zealand is a net beneficiary of intelligence under that alliance.
“ It was implicit in discussions with the former Directors, and explicit in their feedback on the draft Report, that they felt constrained not to do anything which would have risked or reduced New Zealand’s role as part of the alliance or to the flow of intelligence.
“They saw other risks, particularly the risk of compromising vital intelligence flows at a vital time, if they asked questions of their partner agencies, particularly in light of the official denial by the United States that the CIA’s programme included torture or other unlawful mistreatment of detainees.”
Tucker sets out the elaborate network of relationships and accountabilities that govern the security agencies in New Zealand --- ultimately all tracing back to then Prime Minister, Helen Clark.
“At no point across the entire period covered by the Inspector-General’s report did any of these individuals or their organisations raise with me or with my fellow former Directors any suggestion that we should take steps to enquire, investigate, or raise with the CIA the possibility of human rights abuses of detainees, or about the CIA’s rendition and detention programme,” he says.
And he says it was the Clark Cabinet who agreed to hand over any prisoners caught by New Zealand troops to the US.
“The New Zealand Government in April 2004 took the conscious and deliberate formal policy decision that any detainees captured by the NZDF in Afghanistan should be handed over to the US there,” he says.
“Instead of relying on the public reports emerging at that time, which are acknowledged explicitly in the official papers relating to that decision, Ministers chose to rely on the repeated official assurances of the then US Administration.
“These are the same official assurances which we are now being criticised by the Inspector-General for having relied on at that time.”
There is a great deal more in Tucker’s statement which throws considerable light on the way the security agencies work and the dilemmas they faced in the early 2000s coping with New Zealand's first real deployment of intelligence officers to a full-on overseas war involving the United States and NATO.
Tucker concludes: “Between 2001 and 2009 we former Directors took decisions that avoided any direct involvement in torture or complicity in torture. We did so despite having to manage a range of security risks unprecedented for New Zealand since the end of the Second World War.”