In all the drama when the review on the country's intelligence agencies was released last week, a small yet significant part of the report was overlooked. Tucked away on pages 162 and 163, in annex C, are 13 recommendations relating to cover for SIS and GCSB staff and immunities that should be afforded to them.
In a nutshell Dame Patsy Reddy and Sir Michael Cullen are recommending intelligence officers be immune from civil and criminal prosecution for running fake identities, but more importantly be immune from prosecution for acts, potentially illegal, they commit when getting warrants and also when carrying out investigations. They qualify the recommendation, specifying such acts have to be carried out in good faith and in accordance with their duties.
Currently the GCSB Act gives specific protections along this line to its staff. The SIS Act is nowhere near as explicit.
This raises a couple of issues - the first expressed by counter-intelligence expert Dr Paul Buchanan is that does this mean that operations carried out by the SIS, where laws have been broken in the course of their work, have been illegal? Dr Buchanan points to the recent case involving the Nelson Police and the Red Devils gang where the bulk of the charges laid by police were scotched by the High Court because a fake warrant had been used to boost an undercover officer's cover. Dr Buchanan believes this incident has been a factor in the recommendations made in the review.
The second issue is an ethical one. Is it right to break the law to enforce the law? And can our intelligence agencies be trusted not to abuse the privilege of criminal immunity in the course of their investigations?
If we go back 20 years, what effect would the proposed immunity have had on the incident where SIS agents were caught breaking into the home of anti-free trade activist Aziz Choudry? The incident sparked long running legal action resulting in an out of Court settlement and a Government apology to Mr Choudry. Would that break in, under the review's recommendations, now be a legitimate act and if so, is this appropriate?
This is something our politicians will have to carefully consider when they debate new legislation for the SIS and GCSB.
Felix Marwick is Newstalk ZB's Chief Political Reporter
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