The New Zealand intelligence community and effects operations: the covert action dilemma

Abstract

ABSTRACTBounded by current legislation, the New Zealand Intelligence Community (NZIC) is explicitly limited from conducting any form of Covert Action, or what is increasingly being called within New Zealand, Effects Operations. This article aims to understand whether this policy remains both operationally fit for purpose and consistent with the New Zealand public’s understanding and expectations in a time of significant geopolitical and domestic security uncertainty. Supported by 2022 research which surveyed New Zealand public perceptions of the NZIC and the tolerances of Effects Operations, we seek to establish, through an examination of Covert Action policy amongst Five Eyes partners and New Zealand intelligence literature, an understanding of a working definition of Effects Operations, and show that despite previous thinking linked to ethical challenges related to the conduct of such activity, the wider New Zealand public is likely to be supportive of some form of NZIC Effects Operations mandate in the service of national security policy goals. This research thus further reinforces recent independent assessments that the current NZIC legislation, the 2017 Intelligence and Security Act, is not completely fit for purpose and remains overly restrictive in a way that limits future policy options like Effects Operations and needs to be further considered. Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1. United States, United Kingdom, Canada, Australia and New Zealand.2. Rogers and Mawdsley, “Turning the Dial,” 2021.3. Lowenthal, Intelligence: From Secrets to Policy, 249.4. R George, Intelligence and Strategy, 2013, 156; see also, Alan Breakspear, “A New Definition of Intelligence,” 2013, 678–93,; DeVine, “Covert Action and Clandestine Activities” 2019,; Erwin, “Covert Action: Legislative Background,” 2013,; Cormac et al.,, “What Constitutes Successful Covert Action?” 2022, 111–28,; Cormac and Aldrich, “Grey Is the New Black” 2018,: 477–94,; Cormac, ”Disruption and Deniable Interventionism” 2017, 169–91,; Warner, ‘A Matter of Trust’, 2019, 33–42.5. Christopher Andrew, The Secret World, 2018, 690.6. Ibid., 690–91.7. Cormac and Aldrich, “Grey Is the New Black”.8. Lowenthal, Intelligence: From Secrets to Policy, Chapter 8.9. Ibid., 263.10. Cormac and Aldrich, “Grey Is the New Black”.11. Ibid., 487–88.12. Ibid., 488.13. Ibid., 480; Joseph and Poznansky, “Media Technology, Covert Action,” 2018, 320–35.14. Cormac and Aldrich, Grey Is the New Black; see also, Graphika and Stanford, ‘Unheard Voice’, 2022.15. Grey Zone activity is contemporary terminology for activity short of warfare. Covert Action is an activity within the theory of the Grey Zone.16. Monaghan, “Bad Idea,” 2021.17. Cullen and Reddy, “Intelligence and Security,” 2016, 3–14; Intelligence and Security Act 2017.18. Cullen and Reddy, “Intelligence and Security,” 83–84; Gee and Patman, ‘Small State or Minor Power?’, 2021, 38.19. Cullen and Reddy, “Intelligence and Security,” 83–84.20. Intelligence and Security Act 2017.21. Ibid.22. Gilbert and Elley, “Shaved Heads and Sonnenrads,” 2020, 280–94; Rogers, “Extraditing Kim Dotcom,” 2015, 46–57; Rogers and Mawdsley, “Turning the Dial”; Smith, “The Urgent Versus the Important,” 2019, 13–37; Gillespie and Breen, “The Security Intelligence Agencies,” 2021, 676–95.23. Brady, “Magic Weapons,” 2017, 43.24. New Zealand Security Intelligence Service, “Annual Report 2021,” 2021, 35.25. Battersby, “The Ghost of New Zealand Terrorism,” 2019, 45.26. Terrorism Suppression Act Citation2002.27. New Zealand Royal Commission of Inquiry, Citation2020, pt. 10.28. Ibid.; New Zealand Royal Commission of Inquiry, Citation2020, chap. 2.5.29. The creation of the NZSIS was largely influenced by successive reports by the Director-Generals of both MI5, in 1948, and ASIO, in 1956, out of concerns regarding the unchecked Soviet influence within New Zealand.30. Wharton, “The Development of Security Intelligence in New Zealand,” 2012.31. Rogers, “Intelligence and Security Act,” 2018, 657–92; Wharton, “The Development of Security Intelligence in New Zealand,” 100.32. Hunt, Spies and Revolutionaries“, 2007;Wharton, “The Development of Security Intelligence in New Zealand,” chap. 6.33. New Zealand Security Intelligence Service Act 1969; Wharton, “The Development of Security Intelligence in New Zealand.”34. New Zealand Security Intelligence Service Act 1969.35. New Zealand Security Intelligence Service, “Evolving Nature of the NZSIS’s Tasks”36. Battersby and Ball, “The Phantom Eye: New Zealand and the five eyes“, 9.37. Tonkin-Covell, “The Collectors,” 2000.38. Filer, ‘Signals Intelligence in New Zealand’, 2019, 2.39. Known then as the New Zealand Security Service.40. Filer, “Signals Intelligence in New Zealand,” 3.41. Ibid., 5–6.42. Government Communications Security Bureau Act 2003, sec. 8.43. Government Communications Security Bureau Act 2003, sec. 8A(b).44. Satter and Bing, “FBI says it has sabotaged hacking tool,” 10 May 2023.45. Kitteridge, “Review of Compliance,” 2013.46. Intelligence and Security Committee Amendment Act 2013, sec. 9.47. The legislative gaps for espionage, foreign interference and terrorism are what this report is referring to. Noting that the Terrorism Suppression Act Citation2002 amendments post-Lynn Mall attack had not been made at the time of the Cullen-Reddy Report.48. Intelligence and Security Act 2017, sec. 13 and 16.49. Review of ISA 2017, 2023, 213.50. Intelligence and Security Act 2017, sec. 16(c).51. US Code: Title 50 § 3093, United States.52. DeVine, “Covert Action and Clandestine Activities,” 2019, 4.53. Ibid., 4.54. Lowenthal, Intelligence: From Secrets to Policy, 263.55. Intelligence Services Act 1994.56. Ibid.57. Intelligence Services Act 1994, sec. 1(b).58. Lowenthal, Intelligence: From Secrets to Policy, 492.59. Intelligence Services Act 1994, sec. 1.60. Intelligence Services Act 1994, sec. 3(1)(a).61. Intelligence Services Act 1994, sec. 3(2).62. Intelligence Services Act 2001, sec. 6(1)(e).63. Intelligence services act 2001, sec. 6(2).64. Intelligence services act 2001, sec. 6(2).65. Hanson and Uren, “Policy Brief,” 2018.66. Hanson and Uren, 6–8; and Australian Signals Directorate, REDSPICE, 6.67. Intelligence Services Act 2001, sec. 7(e)(ii).68. Hanson and Uren, “Policy Brief,” 9.69. Australian Security Intelligence Organisation Act 1979, sec. 17(2).70. Australian Security Intelligence Organisation Act 1979, pts. III; Division 3.71. Chubb, “Perceptions of terrorism in Australia: 1978–2019,” 2020.72. National Security and Intelligence Review Agency, ‘Review of CSIS Threat Reduction Activities’, 2020, 2.73. Canadian Security Intelligence Services Act 1985, sec. 12.1.74. National Security and Intelligence Review Agency, ‘Review of CSIS Threat Reduction Activities’.75. Ibid., 2.76. Cooper, “Indian Consulate networks targeting Sikhs in Vancouver continued ‘unabated’ when Ottawa gutted CSIS probe in 2017,” 2023.77. Ibid.78. Communications Security Establishment Act 2019, sec. 19.79. Ibid., sec. 30.80. Battersby, “The Ghost of New Zealand Terrorism,” 36.81. New Zealand Royal Commission of Inquiry, Citation2020.82. Ibid., pts. 10; Chapter 2.5; Paragraph 45.83. Ibid., pts. 10; Chapter 2.5; Paragraph 47.84. Patman and Southgate, ‘National Security and Surveillance’.85. The survey was distributed among the social network of the researchers and on a popular New Zealand-based intelligence and defence-focused Instagram page – Instagram: Alcon.S2 with a following of over 25,000 subscribers – as well as some Facebook community groups to seek as random a New Zealand population distribution as possible.86. The inference development model findings provided an additional avenue for the research. Two follow-up questionnaires were given to key individuals identified from their initial responses to survey questions based on two distinct themes identified in the survey’s comments; 1) that the NZIC needs to improve the transparency of information with the New Zealand public and 2) the NZDF should be solely responsible for intelligence and Covert Action. Fifteen identified respondents were provided with the option of a face-to-face interview or the submission of a written questionnaire response. All opted for the latter.87. The survey achieved a gender split of 56.23 per cent Male and 42.71 per cent Female, with 1.06 per cent Other. According to information from the 2018 New Zealand Census, the age distribution found within the survey results is also similar in demographic to the New Zealand population. See Statistics NZ, ‘Age Distribution of People Residing in New Zealand’, 2020. It is also acknowledged that not all results total to the n = 1021 figure. Respondents were not forced to answer all questions if they did not wish to.88. Ipsos, ‘2022 National Security Public Survey’, 2022.89. Hampton, ‘Speech: Cyber Security in a COVID-19 World’, 2020; International Cyber Policy Centre, ‘Covid-19 Disinformation’, 2020; Jordan, “International Competition,” 2020, 1–24; Mueller III, ‘Investigation Into Russian Interference’, 2019; Ryan et al., ‘TikTok and WeChat’, 2020; Thomas and Zhang, ‘COVID-19 Attracts Patriotic Troll Campaigns’, 2020.90. Active Measures is synonymous with Targeted Disinformation and is a Covert Operation/Action in its own right.91. Rid, Active Measures”, 2020, 11.92. Person A, “Questionnaire Response A,” 2022.93. A potential source of bias for these questions was the recent Russian Invasion of Ukraine, which commenced in February 2022. However, due to the high levels of New Zealand public support for Ukraine and the mission by the NZDF to train Ukrainian troops in the United Kingdom, the argument could be made that these responses indicate a level of New Zealand understanding as to the likely utilisation for future NZIC-led paramilitary operations.94. Roberts, “State preferences,” 2020, 502.95. Curia Market Research, “Security Issues Poll,” 2014; Curia Market Research, ‘Security Issues Poll’, 2016.96. Ibid.97. Ibid.98. Patman and Southgate, “National Security and Surveillance,” 2016, 871–87.99. The stated objective was to provide a better understanding of domestic views and attitudes to national security risks and a sample size of just over 1100 was collected. For New Zealanders in 2022, the key national security threat is natural disasters, while the least likely to happen is ‘New Zealand being involved in armed conflict with another country’. IPSOS New Zealand, National Security Public Survey, 2022, 4, 6, 19, 49.100. Ibid., 12, 31.101. Curia Market Research, ‘Security Issues Poll’, 2014; Curia Market Research, ‘Security Issues Poll’, 2016; New Zealand Royal Commission of Inquiry, ‘The Royal Commission of Inquiry’, 2020.102. Person B, “Questionnaire Response B,” 2022.103. Rogers and Mawdsley, “Turning the Dial,” 2021.104. IPSOS New Zealand, National Security Public Survey, 2023, 30.105. Ibid., 34.106. Arnold and Matanuku, Taumaru: Protecting Aotearoa New Zealand as a free, open and democratic society, 2023, 248.107. US Code: Title 50 (United States of America).108. DeVine, “Covert Action and Clandestine Activities,” 4; Kibbe, ‘Covert Action and the Pentagon’, 2007.109. DeVine, “Covert Action and Clandestine Activities,” 2019, 4.110. The authors also separate Covert Action in support of military operations because, in this situation, the military remains in ultimate control over the operation.111. National Security Long-term Insights Briefing, 2023, 4.112. Fisher, “National security not as safe now,” 2023.113. Arnold and Matanuku, 214.114. Ibid., 211.115. Ibid., 211–12.116. Blyth, “Building Trust and Confidence,” 2023, 7.Additional informationNotes on contributorsMurray PlaceMurray Place is a former serving member of the Australian Defence Force and has previously served as an officer in the New South Wales Police Force, where he worked in a covert operational role within the State Intelligence Command, focusing on Counter Terrorism and Major Crime. He holds a Master of International Security (Intelligence) from Massey University, New Zealand.Rhys BallRhys Ball is a former intelligence officer with the New Zealand Security Intelligence Service now lecturing at the Centre for Defence and Security Studies, Massey University, Albany Campus, New Zealand. He is a member of the New Zealand Institute of Intelligence Professionals (NZIIP) and US Association of Former Intelligence Officers (AFIO).