Discussion Prompt: Is productive engagement on intelligence law, policy and oversight possible between the secret and civilian world and what can be gained from it? Reflections on best practice, lessons learned, and plans for the future.

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As an independent oversight body, engaging with journalists, academics, and NGOs, especially when they are known to be critical of established intelligence practice, can come with difficulties and public backlash. Ultimately, however, it is essential for oversight to regularly invite challenging views in order to remain vigilant and aware, ensure public trust, and avoid regulatory capture. My experience with setting up a civil society ‘Reference Group’ bears testimony to that.

In April 2018, I wrote to 12 individuals asking if they were willing to be members of an Inspector-General’s ‘Reference Group’. Eleven of them accepted; the twelfth was keen but indicated a potential conflict of interest. Those who accepted the invitation included journalists and authors writing in the areas of intelligence, security, and defence; a commentator on international intelligence and security issues; academics in the areas of international law, privacy law, defence, and security studies; and members of NGOs with a focus on civil liberties and transparency. My starting point in issuing the invitation was that it’s essential for an effective oversight body to be in contact with a range of individuals and groups, to tap into expertise we don’t typically have access to in our small office, and to stay in touch with external, independent views of the intelligence agencies and our oversight of them. 

Conditions for success

I anticipated that putting a range of interested and interesting individuals together in the same room would enhance the power of individual communication. At the outset, we identified some important preconditions for the Group to be effective. The first is openness: the oversight body must be genuinely willing to hear different opinions and be challenged. There is little point in talking only with those who would share and reinforce our views. Rather, we want to elicit a diversity of perspectives on important issues, including but not limited to whether we are effective as an oversight body. Also, mutual trust is vital. All members of the Group need to be positive they can speak frankly and in confidence. At the first meeting we agreed we would operate under the common diplomatic convention of the Chatham House Rule (the discussion may be reported by those present, without explicitly or implicitly identifying speakers).

Openness and trust must coexist with transparency about what the Inspector-General is doing to fulfil her mandate. I sought to achieve that transparency by publicly announcing the purpose and membership of the Group at the outset and responding to questions that arose in the ensuing public discussion. I’ve put a Q&A on our website covering everything from the cost of the Group(members are not paid for their time; the costs are confined to travel reimbursements and a modest lunch); what information the Inspector-General’s office shares with the members of the Group (spoiler alert: they don’t receive classified or sensitive information or hear about top security operations; the flow of information is primarily from the members to the Inspector-General); through to whether the Group ‘advises’ the Inspector-General (the answer is no). I also publish summaries of the discussion from each meeting (July 2018 Summary; Feb 2019 Summary; July 2019 Summary) after the members have had an opportunity to see and comment on a draft of the summary.

Critical Voices

The Inspector-General is independent from both the agencies she oversees and from government ministers. But all oversight bodies face the ongoing challenge of upholding that independence and building public trust and confidence, while also maintaining political legitimacy with the government of the day and the agencies. The comments by Andrew Little, Minister responsible for the intelligence and security agencies, were valuable in that context: “I thought some of the choices [of Reference Group members] were interesting but then I think what is important is that we are bold enough and brave enough to know that it is alright to have critics of organisations of the government involved in this sort of exercise. It is a healthy thing in our democracy.”

These “interesting” members are indeed valuable to the process. Those most engaged in issues relevant to intelligence and security issues bring enquiring minds and a willingness to publicly express frank and sometimes unpopular opinions. But that has also meant that those individuals, and the Inspector-General’s office, had to face some political and media criticism. One opposition member of Parliament launched his own campaign against the Reference Group in the form of a stream of parliamentary questions and Official Information Act requests. He challenged my power to set up the Group, which has no legislative basis or other formal status, nor does it produce an output or ‘product’ of its own, although that might change in the event of future cooperation on legislative reform. However, the Inspector-General engages in public outreach in a number of different ways throughout the year. This ranges from meetings with a diverse range of individuals, to small group discussions, to speaking at conferences. There is no logic or substance to the idea that the Inspector-General needs statutory permission in order to set up a Reference Group or something similar. There is nothing to stop the Inspector-General meeting each of the members of the group individually, or asking them to discuss issues with her in the context of a larger meeting, or giving that group a name.

One large provincial newspaper called the Reference Group a step too far. “It is time for this nonsense to stop,” it declaimed. Much of the criticism towards the Group centred around its membership rather than its purpose and this was uncomfortable and sometimes unpleasant for the individual members affected. Conversely, there is a risk that public focus on the members themselves may make them inevitably feel constrained in being able to publicly criticise the Inspector-General’s office. 

A fruitful relationship

From my perspective as the former Inspector-General, the Reference Group has been a highly productive engagement with civil society. Its members seemed to agree, noting, among other things, that a group such as this provides a useful feedback loop between oversight and civil society and offers reassurance to the public that oversight is actively exercised and so builds confidence. Furthermore, regular contact with the Reference Group members would help to ‘inoculate’ the Office against regulatory capture, which is a Wellington way of saying it helps ensure our views aren’t overly limited by the views of those around us in the classified national security ‘bubble’.

The ideas of the Reference Group have contributed to the work of our office in a range of ways. I independently settle the content of the office’s annual Work Programme, after providing the agencies and their Minister with the opportunity to comment. Yet, the group has served as an objective point of reference and it has been reassuring to learn from its later discussions that areas we had decided to focus on are indeed seen as priority areas for oversight. The Reference Group has contributed ideas for people or groups we should talk to, and how to improve the quality and reach of our public engagements. I have also found it useful to hear from the Reference Group about the readability of our reports, and to consider practical suggestions for making them more accessible. Participation in this Group has also reinforced for us that there is strong public appetite for oversight to explain the law under which Security & Intelligence Services in New Zealand operate and the scope of their powers. It is not necessary to disclose sensitive operational details to do that.

A forum like this can help provide a springboard for NGOs and advocacy groups. For instance, an Inspector-General’s report on intelligence warrants issued under new legislation (the Intelligence and Security Act 2017) was a partial catalyst for the New Zealand Council for Civil Liberties to write to the Minister for National Security & Intelligence Jacinda Ardern seeking an explanation about a particular aspect of agencies’ interpretation of warrant powers.

Questions we are grappling with one and a half years down the track include: with a standing group, how do we ‘refresh’ membership? The very people we want to have in the group inevitably have many other demands on their time and much of that time is also contributed on a voluntary basis. What’s the best way of getting technical expertise (e.g. about bulk collection techniques, use of AI) especially in the absence of funding to buy in that expertise? Should we set up a separate technical advisory group? How do we increase the cultural diversity of the group in view of our current lack of Maori and Pasifika perspectives and expertise and the absence of representation of other communities, such as local Muslims?