Watchdogs

A close eye on our spies

Cheryl Gwyn has not been afraid to ask tough questions of New Zealand's spy agencies in her role as the country's intelligence watchdog. In Newsroom's ongoing Watchdogs series, she speaks to Sam Sachdeva about her past as a student activist, the value of Edward Snowden's leaks, and the dangers of Donald Trump

Cheryl Gwyn is not afraid of long silences.

Contemplating a question about her work, the Inspector-General of Intelligence and Security is happy to let the seconds drag by as she contemplates precisely how to word her response.

That sense of rigour has been useful during her three years as the country’s intelligence watchdog, charged with overseeing the Government Communications Security Bureau (GCSB) and the NZ Security Intelligence Service (SIS).

The cloak and dagger nature of the spy world is a change of pace from Gwyn’s childhood spent milking cows on a small dairy farm just out of Whangarei.

With none of her family coming from a professional background, she says university was “my escape from the farm and from Whangarei”.

Studying law and politics at Auckland University, she became heavily involved in student politics, most notably joining the Socialist Action League.

While Gwyn is no longer a political activist, she is still “intensely interested” in politics.

“I feel withdrawal symptoms on the weekends when there’s no Trump porn available - apart from the random tweet - but I’m not alone in that.”

After working in Hawke’s Bay’s Whakatu freezing works for nearly six years, she decided it was time for a change of pace and took an investigating officer’s job at the Race Relations Commission.

The role reignited her interest in law: starting as “a somewhat elderly law clerk” at Chapman Tripp, she spent 15 years working for law firms before a master’s degree in public policy led her towards the public sector, where she ended up as the deputy solicitor-general.

When the inspector-general’s role came up, Gwyn says it seemed like “an obvious move”. She had spent some time working for the SIS and GCSB as a legal adviser, and knew the importance of holding them to account.

“What the agencies do is circumscribed by law, but virtually never scrutinised by the courts, seldom open to public scrutiny, and so I think having some person or body who can conduct that scrutiny on behalf of the public is a really, really important role.”

IGIS role

There are a number of strands to Gwyn’s role.

She receives complaints about the SIS or GCSB from members of the public and current or former staff: while there are relatively few, and some are individually focused, others can reveal “systemic issues” that turn into larger pieces of work.

Most of her office’s time is spent reviewing “pretty much everything that both agencies do”, reviewing their actions for both lawfulness and propriety.

Her team looks at every single intelligence and interception warrant signed off by a minister for the agencies, making sure they meet the legal requirements and that a proper case has been made for the use of what are highly intrusive powers.

“Will the intelligence they gather actually justify the intrusion on someone’s privacy? What have they done to make sure it doesn’t impact on third parties? All of those sorts of questions we look at with every warrant that’s issued to the agencies, so that’s a steady stream of work for us.”

That work feeds into an annual process where Gwyn pronounces whether the compliance systems of the GCSB and SIS are sound: last year, she signed off on the GCSB’s safeguards but said the SIS still had further work to do.

“Hugely significant” to Gwyn is her ability to initiate what are called own-motion inquiries, looking into areas that she deems to be of significant public interest. She has powers similar to a commission of inquiry, allowing her to summon witnesses, require people to produce documents and make them give evidence under oath.

That power has led her to delve into a number of politically sensitive issues, including investigations into whether Kiwi spies had any connection to a CIA “enhanced interrogation” programme; whether New Zealand had spied on the rivals of former Trade Minister Tim Groser as he vied for the WTO’s top job; and whether the GCSB spied on Kiwis working in the Pacific in breach of the law at the time.

Progress has been slower than expected, in part because they were in areas which became “much bigger than you anticipate”.

Staff on secondment to help with the inquiries left before they were completed, causing disruption, while last November’s earthquake was also a significant setback.

The inspector-general’s office was in the demolition-scheduled Defence Force HQ: they could not access their classified files for six weeks, and are still hunting for a new office space with appropriate security protocols.

However, Gwyn and her team are still plugging away: the results of the WTO investigation should be released within weeks, while the others are still being actively worked on.

Snowden's 'public service'

She says the CIA investigation has taken on new relevance, given US President Donald Trump’s public comments in support of torture and currently banned interrogation techniques like waterboarding.

“Who knows whether that might lead to anything or might not, but to me it signals that the New Zealand agencies must have their own protections in place, they must have their own practices and policies around how they share intelligence, how they work together with other agencies to make sure that they are not somehow drawn into unlawful activity.”

Recent disclosures of classified information in the US have also caused concern. While the Government has sought to downplay any concerns about intelligence-sharing arrangements, Gwyn is confident “it’s an issue that the agencies are very aware of, and will be looking at”.

Her office’s work in the last few years has been driven in part by former CIA employee and whistleblower Edward Snowden’s 2013 leaks of classified information.

While current SIS director Rebecca Kitteridge once labelled Snowden a traitor, Gwyn is more positive about the impact of his revelations.

“I think overall that bringing to the public attention the reality of what intelligence and security agencies do to some extent was a public service.

“It means that the public can ask more informed questions, and also for the agencies I think - in New Zealand anyway, to some extent - it has helped them to move to being more public and more transparent about what they do. That’s a good thing.”

A recent area of focus was the Intelligence and Security Act, new spying legislation covering both the SIS and GCSB and introducing new powers and safeguards.

The legislation passed through Parliament earlier this year without much public debate - a fact which took Gwyn by surprise.

“It’s frustrating - I really wanted there to be a big public discussion about it, but no...

“The whole bill, because it gives these two government bodies hugely intrusive powers - members of the public should be thinking about and discussing that, to my mind anyway.”

She believes the lack of fanfare was in part due to a lack of independent intelligence commentators, coupled with New Zealanders’ distance from terrorism.

“We’ve never experienced a Bali bombing or a Manchester bombing or those kinds of things, so it does still feel a bit remote.”

'Balancing act'

While Gwyn would have liked to see a clearer description in the legislation of what exactly the agencies do, she believes Kiwis can feel “reasonably confident” about their actions.

“My experience is with both agencies that they have really good staff and they are firmly committed to doing what they do lawfully, and I have certainly never come across anything that was deliberately unlawful.

“Of course they make mistakes: every organisation makes mistakes and to me the key thing is that they have an internal process for recognising those mistakes and fixing them, and I’m confident that both agencies do.”

During her time as inspector-general, Gwyn says both organisations have become “much more outwardly focused” and aware of their responsibilities as part of the public sector.

That does not mean the relationship is without its tensions: Gwyn’s last annual report raised the SIS’s nine-month delay in responding to questions about the lawfulness of its activity, and she says there is a “balancing act” as her office demonstrates its independence and rigour while maintaining the respect and confidence of the agencies.

“There will always be tensions...but I think over time the agencies appreciate that the Inspector-General’s office is actually adding value to their work and that they can take the long-term view of it.

“Sometimes there’ll be a report which is critical, but other times there'll be a report which says, ‘Actually, there’s nothing to see here, the agency’s doing that as it should’.”

Great collaboration

Gwyn appears to have managed that balancing act well: earlier this month, she was reappointed to another three-year term.

While she once raised the possibility that she could turn down an extension and move on, she says there is still unfinished business to deal to and new powers under the spying legislation.

“When I came into the role we were given new resources, new powers and we are really just getting up to sort of full capacity and starting to cover our full workload, so I don’t want to leave the office without getting to the point where I think we’re operating in the way we should be.”

She is still finalising her work programme for the coming year, but already has a couple of targets.

One is how the agencies approach private companies like banks and telcos to seek customer information - an area that is currently unregulated, but which will be addressed as part of the new spying legislation.

“What’s the breadth of the information you get and why? And if you’re not getting a warrant why not? What do you do with the information, where do you store it, who has access to it and all of those things.”

She would also like to see greater collaboration between countries’ intelligence watchdogs, in the spirit of the agencies they oversee.

“What I would like to see is a situation where I could do a piece of work in conjunction with say my Australian or US counterpart where we say, 'well our intelligence agencies are sharing intelligence or conducting a joint operation, can we do a joint review of that?'”

Newsroom's Watchdogs series can be found here.

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