Monday, August 10, 2009

SIS spies threaten academic freedom

Skyler: I work with Jane at The University of Auckland and I am the VP of the Auckland branch of the Tertiary Education Union (TEU). It is very disturbing to hear about Jane's experience with the Privacy Commission and the SIS. It is vital to any democracy to have academic freedom and for academics to be able to comment on and criticise government policies that fall within their own field of expertise. In a press release today our TEU president Tom Ryan has called for a commission of inquiry into the SIS.

"On the basis of what we have read this morning, we believe New Zealand needs a commission of inquiry into the SIS. Existing legal protections for academic freedom clearly are inadequate,” said Dr Ryan.

I hope New Zealanders will support Jane and the principle of academic freedom and call for a commission of inquiry into the SIS.

Media Release: Jane Kelsey
Sunday August 9 2009

Privacy Commission fails to stem SIS attack on academic dissent

The Privacy Commission has made itself complicit in the surveillance of lawful dissent by the Security Intelligence Service, with chilling implications for academic freedom and critical debate, a university law Professor warns.

“Both agencies have clearly over-stepped any reasonable interpretation of the ‘national security’ grounds for refusing to disclose documents, opening them to legal challenge. That is under active consideration”, said Dr Jane Kelsey, a Professor of Law at the University of Auckland.

“My experience since applying for my SIS file last November reveals two things: there is still no accountability for SIS actions in gathering intelligence on lawful dissent; and the SIS is apparently targeting academic critics of failed free market policies at a time when debate is needed most.”

“The SIS initially refused to confirm or deny whether they held any information on me, claiming that answering that question was itself likely to prejudice national security. They later conceded a file existed, when they realized there were references to me in three pages of the file released on Keith Locke MP.”

“When I complained to the Privacy Commission, they upheld the SIS position. This is utter nonsense. Documents released to other people include information on me and contain innocuous documents similar to those that must appear on my file. None of these could conceivably threaten national security.”

“When the SIS got new powers in the 1990s I warned that they would be used against critics of the free market policies and free trade agreements. This has now proved true.”

“This isn’t about me”, says Professor Kelsey. “The chilling effect of this kind of ‘intelligence’ is likely to intimidate young academics, students and public intellectuals from contributing to critical debate about the discredited ‘neoliberal orthodoxy’. Who wants to be spied on for doing their job?”

“The new culture of openness under SIS director Warren Tucker may have begun with good intentions, but it has now become a sham,” Kelsey said.


The grounds cited by the SIS and Privacy Commission to withhold the file:

The SIS initially refused to confirm or deny whether it held any information on me, claiming disclosing that fact was likely to prejudice national security. The Privacy Commission notes that it would likely have supported that position, had the SIS not discovered that it had released to Keith Locke three pages that referred to me and thereby revealed that I had a file.

Subsequently, the Privacy Commission upheld the decision of the SIS not to release any further documents from my file, because ‘there is a real or substantial risk that the release of the information would disclose knowledge about NZSIS’ operations or capabilities or modus operandi and to do so would have the effect of a prejudice to the endeavours of NZSIS’.

A number of other people engaged in similar activities to my own have been told the dates of the first and last entries, and how many pages or folders there are in their file. This information on my file is being withheld because its release could, in itself, expose or prejudice the reason the information is being withheld. That suggests there is something unique about the size or format of the information in my file.

Elsewhere in our lengthy correspondence the Privacy Commission said the information held may not be sensitive, but the strategies for collecting it may be.

Further, SIS interest in an individual will vary over time and context, suggesting that surveillance focused on certain activities or events.

The Privacy Commission volunteered that it would have endorsed withholding the information by the SIS on another ground, being ‘maintenance of the law, in this case the Service’s ability to ensure the security of New Zealand was not compromised or breached’. It is a reasonable inference from the Privacy Commission’s correspondence that the ‘maintenance of the law’ is code for protecting SIS surveillance techniques and activities.

Information revealed in other people’s files that cannot be considered a threat to national security or disclosing particular modus operandi:

A review of material released to other people reveals five innocuous documents that are presumably also on my file, given the SIS meticulous system of cross-referencing:

- November 1981 ‘MOST’ legal aid workshop run by Jane Kelsey for people arrested in Auckland during the Springbok tour.

- a (wrong) note that Keith Locke was accompanied on a visit to the Philippines in 1988 by two people, one possibly being Jane Kelsey who was the leader of an Asian Human Rights Centre (sic) investigation in 1988.

- a transcript of a Checkpoint item on the Asian Development Bank meeting in Auckland in 1996, where Jane Kelsey is extensively quoted in the capacity of ‘the NZ liaison person for some 30 overseas non-Government organizations concerned about Asian Development Bank policies’.

- an article from
Political Review that names Jane Kelsey, Law Faculty, Auckland University as the contact point for information on the APEC Forum and Parallel Programme for the Asian Development Bank meeting.

- an advertisement for a Global Peace and Justice Auckland public forum where Jane Kelsey would speak on ‘Privatisation and Globalisation’.

Other people’s files are said to contain media clippings, although these have generally not been included in documents released because they are publicly available. It is obvious that media articles must also be on my file. Given that they are already in the public domain, releasing them or at least acknowledging they are on the file cannot be ‘likely to prejudice national security’.

Initially, where the SIS was not prepared to release actual documents to people, they provided a summary of the subject matter and reference to the person that was contained in each document. These documents record people’s attendance at various activities, such as Waitangi protests in the 1980s, meetings related to the Springbok tour, Philippines Solidarity and APEC organizing meetings. Other files that have been released include fuller documentation of who attended various political meetings. The SIS stopped providing this information as requests for files increased. Again, it is clear that this kind of information was not considered ‘likely to prejudice national security’ when it was released to others who have engaged in similar activities to me.

SIS activity

The SIS has been especially interested in activities that challenge its own powers. Many people’s files contain a list of people and organizations who made submissions on an amendment to SIS legislation in 1999. I have regularly made submissions on SIS and security legislation in my academic capacity.

Another document notes that Jane Kelsey, associate professor of law at Auckland University spoke to a public meeting in Christchurch on recent expansion of SIS powers, in the context of the SIS break-in to Aziz Choudry’s home in 1996.

The release of neither document can be ‘likely to prejudice national security’.

Academic freedom

The SIS has a long history of spying on academics. The file of economist Wolfgang Rosenberg dates back 50 years, and includes comments he made in the common room and his applications for academic jobs. Recent files of several other academics focus on lawful activities undertaken in the course of their employment as academics, such as giving lectures, participating in conferences and convening meetings on university campuses. Various Students Association groups and activities have also been monitored.

The Education Act confers statutory protection on academic freedom, defined as the ‘freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions’, and a responsibility to act as ‘critic and conscience’ of society. Moreover, there is an obligation on all government agencies to preserve and enhance academic freedom.

The potential chilling effect of the SIS maintaining files on academics fulfilling their employment and statutory responsibilities extends beyond the individuals concerned to their engagement with students in lectures or undertaking research, academic colleagues, research funding, advisory work and consultancy. It also sends a message that they may be spied on for simply doing their job.

Critics of economic policies

In the 1996 the SIS powers were amended by defining security to include ‘New Zealand’s economic wellbeing’:

"Security means
the making of a contribution to New Zealand's international well-being or economic well-being; and the protection of New Zealand from acts of espionage, sabotage, terrorism, and subversion, whether or not it is directed from or intended to be committed within New Zealand."

Many people, including myself, warned that they would be used against critics of the free market policies and free trade agreements. It became clear from the
Choudry case, when Aziz Choudry successfully sued the SIS over the break in to his house during the APEC Finance Ministers’ meeting in Christchurch in 1996, that the SIS was already using interception warrants to monitor APEC protests at least from September 1995.

It also became clear at that time that the SIS held a Personal File on me. As an initiator and spokesperson for the APEC Monitoring Group, it is certain that my activities regarding APEC were being monitored and highly likely my communications were also intercepted, especially during the APEC Leaders meeting in Auckland in 1999.

After extensive submissions from many people, including myself, the Act was amended in 1999 to apply to
‘the identification of foreign capabilities, intentions, or activities within or relating to New Zealand that impact on New Zealand's international well-being or economic well-being’.

Various files contain documents that relate to different aspects of neoliberal economic negotiations, organizations and meetings, such as opposition to the Multilateral Agreement on Investment (MAI), the Asian Development Bank and APEC meetings in Auckland, and a public meeting of Global Peace and Justice Auckland on globalisation. It seems obvious that the SIS has invoked the ‘economic wellbeing’ definition of ‘security’ on numerous occasions, before and after 1999, in ways that far exceed its powers.

As a prominent academic critic of these and similar neoliberal initiatives, I must assume that the SIS has been monitoring my lawful criticism of global free market policies and treaties, possibly through the periodic use of interception warrants. It also once again raises the question of why such information can be released to others, but would its release to me become ‘likely to prejudice national security’?


Anonymous Anonymous said...

If they do this to try to stop an academic from criticising neo-liberalism I wonder what they do to people who want to overthrow capitalism.
Oh I know, they stop you for hours at the airport, strip search you and read your political literature.
And if you are Arab looking they can arrest you anti-terror charges, rendition you and give you some water treatment.
Someone should tell the SIS to go back to eating pies and reading girly magazines, law professors are not subversives.

5:40 pm  
Anonymous cosimo said...

I am not sure who you are Skyler but if you are what you claim to be then you owe Paul Buchanan a huge debt of gratitude for his efforts at exposing the SIS even though that eventually played a role in his dismissal (later overturned). I suspect that Jane would agree to that.

9:40 pm  
Anonymous Anonymous said...

"Work expands so as to fill the time available for its completion." --C. Parkinson.
If spooks have time on their hands and no bombers to hand, they will look around for the next best thing, people who think critically.... A New Zealand P.M. might say, after Caesar: "Let me have men about me that are fat;
Sleek-headed men and such as sleep o' nights:
Yon Kelsey has a lean and hungry look;
She thinks too much: such folk are dangerous..."
(With apologies to W.S.)

9:59 pm  
Blogger Giovanni Tiso said...

Thank you for posting this, Skyler. One can use the word chilling without fear of devaluing it.

10:12 pm  
Blogger Richard said...

The SIS arrested W.B. Sutch, in 1974 as he was supposed to be spying. (The evidence was found to be so weak it was considered laughable when all the files (SIS, FBI etc) were declassified, but it had terrible effect on Dr Sutch's health).

Now - personally I don't really care if he was spying - but as a man and an academic and a politician, Sutch made huge contribution to NZ - in the area of economic ideas and social security etc etc He was pro Russian (Soviet) but so what? With the abysmal record of the US and the British etc in foreign affairs anyone with any intelligence would take an interest in the USSR in the 40s to 50s,60s and even more recently...

Academics need to be left alone - in fact everyone does - everyone needs to be able to express his / her views openly without intimidation and spying.

They no doubt have a role (I cant think exactly what though - collecting Penthouses? None of these police or security people seem to be able stop anything happening...all the wars and horror etc continue regardless!) but, their role (if they do have one), it is hard to define...and should be openly debated.

Perhaps as in Orwell's '1984' their role is to create an enemy - it was Goldstein (evil sounding German-Jewish name of course; clever Eric) in 1984 (although these days he is clowning around on ASB adverts!) - as the Church needed to have "enemies" who were 'disbelievers' or 'heretics' and so on... Then there was McCarthy.

The result of Sutch's trial and arrest, was that he was very distressed and suffered a heart a attack and died not long after he was arrested and tried - and acquitted.

What defeats these creepies in the SIS etc is openness by us. There is a lot they can do - but only so much.

Primarily they are public servants. Like the CIA most of them work for remuneration - most of them couldn't really care if Kelsey was a horrible Green Martian about to destroy the Earth has long a they get their wages - to be able to buy the girly mags and their sandwiches etc...

There should be an inquiry - sure these guys want to keep their jobs - but why are they there? What is this "security"? Which Big Brother should we be most scared of?

10:30 pm  
Blogger rob said...

What can we do to most effectively help Jane- and insist the SIS stay out of University common-rooms!?

1:48 pm  
Anonymous George said...

Thank you for posting this, Skyler. One can use the word chilling without fear of devaluing it.

This isn't so chilling to me, because it's something I've almost come to take for granted for my entire life. That the state will surveil me and those I'm near to in invasive ways just seems normal. I just presume that there's a good chance my emails are read and phone calls listened to, because so many I know have had concrete evidence this has happened to them.

It's events that wake me up to it though, and Richard is right that openness scares them immensely. They like to think of themselves as defenders of a secret realm, and their role is inscrutable.

1:57 pm  
Blogger Richard said...

It is important to remember that the people are working for the people - the taxpayers - and are ultimately accountable. And if they overstep their authority etc they are not outside the peoples' justice system.

But I think each nation does need a security service and a police force - and not all individuals in these organisations are 'bad' per se ...

Not all is good in the State of Denmark but not all is ill! Pays not to get too paranoid!

10:31 pm  
Blogger Unknown said...

This comment has been removed by the author.

9:55 pm  
Blogger Unknown said...

so long as nz security agencies are sucking dick in america and the uk, academic freedom here is toast.

roll on the global police.

9:57 pm  
Anonymous Anonymous said...

"We all know what we mean by a 'good' man. The ideally good man does not drink or smoke, avoids bad language, converses in the presence of men only exactly as he would if there were ladies present, attends church regularly, and holds the correct opinions on all subjects. He has a wholesome horror of wrongdoing, and realises that it is our painful duty to castigate Sin. He has a still greater horror of wrong thinking, and considers it the business of the authorities to safeguard the young against those who question the wisdom of the views generally accepted by middle-aged successful citizens. Apart from his professional duties, at which he is assiduous, he spends much time in good works : he may encourage patriotism and military training; he may promote industry, sobriety, and virtue among wage-earners and their children by seeing to it that failures in these respects receive due punishment; he may be a trustee of a university and prevent an ill-judged respect for learning from allowing the employment of professors with subversive ideas. Above all, of course, his 'morals', in the narrow sense, must be irreproachable.
It may be doubted whether a 'good' man, in the above sense, does, on the average, any more good than a 'bad' man. I mean by a 'bad' man the contrary of what we have been describing. A 'bad' man is one who is known to smoke and to drink occasionally, and even to say a bad word when someone treads on his toe. His conversation is not always such as could be printed, and he sometimes spends fine Sundays out-of-doors instead of at church. Some of his opinions are subversive; for instance, he may think that if you desire peace you should prepare for peace, not for war. Towards wrongdoing he takes a scientific attitude, such as he would take towards his motorcar if it misbehaved ; he argues that sermons and prison will no more cure vice than mend a broken tyre. In the matter of wrong thinking he is even more perverse. He maintains that what is called 'wrong thinking' is simply thinking, and what is called 'right thinking' is repeating words like a parrot; this gives him a sympathy with all sorts of undesirable cranks. His activities outside his working hours may consist merely in enjoyment, or, worse still, in stirring up discontent with preventable evils which do not interfere with the comfort of the men in power. And it is even possible that in the matter of 'morals' he may not conceal his lapses as carefully as a truly virtuous man would do, defending himself by the perverse contention that it is better to be honest than to pretend to set a good example. A man who fails in any or several of these respects will be thought ill of by the average respectable citizen, and will not be allowed to hold any position conferring authority, such as that of a judge, a magistrate, or a schoolmaster. Such positions are open only to 'good' men."

Bertrand Russel - the harm that good men do.

7:28 pm  

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