Jon Stephenson, Journalist’s Rights, NZ Defence Force

A disclosure:

• I’m a former army officer who served in Borneo and Vietnam.
• 30 years after retirement I remain loyal to the NZ Army and those who serve.
• However I will absolutely condemn any serving officer or soldier who illegally conducted surveillance operations against Jon Stephenson.
• But I will need proof, and I will need more than irrelevant moralising by the commentariat about journalists’ non-existent rights in a warzone.

There is so much rubbish being written and spoken about the allegations of NZ Defence Force interception of a journalist’s communications in Afghanistan. The allegations were first made in the Sunday Star Times. The allegations were denied by NZ Defence. Kiwipolitico offered a balanced view here. Commentary since then has repeated and inflated the allegations. Many commentators, including Maori politicians, have confused spying in Afghanistan with the multiple spying debacles at home in New Zealand.

I’m the first to decry the post 9/11 incarnation of the surveillance state and to proclaim the rights and freedoms of the democratic ideal. I’ve written essays on democracy here and here, and on the GCSB Bill here.

However.

Afghanistan is a warzone. Human rights are completely or partially suspended in warzones. Beginning with the right to life. And at the lower end of the scale the right to privacy. No-one is exempt, not even journalists. You can argue about whether or not we should have been committed to Afghanistan. But Afghanistan is a warzone and all who venture into Afghanistan, whether soldier, spook, civilian, politician or journalist, ought to be aware that it is not a human rights zone; it is a warzone.

Let’s start with the right to life.

A soldier’s mission is to kill and not be killed. As stark as that. To take life. In some recognition of the right to life soldiers in our own forces are forbidden from killing non-combatants. However it is the ugly reality of war that some civilians do get killed. Always. Mass killing, which is what war is, is not a precise art always able to differentiate soldier from civilian and friend from foe despite the development of more precise weaponry. Mistakes happen. Soldiers also get killed by friendly fire, another ugly reality of war.

Much as we try to honour the right to life of non-combatants many of our opponents in war do not have the same respect for civilian lives and deliberately target civil leadership, families of opposing soldiers, and those they suspect of assisting their enemies. Lots of people die, forfeit their right to life.

Warfare is the conscious political act of unleashing the beast within and authorising it to kill deliberately and legally. It is the suspension of all that we hold to be essential in civilised society, including human rights. Even journalists forego their right to life in a warzone. And many have indeed died on the job.

Now to the right to privacy.

The suspension of the right to life has nothing to do with the Jon Stephenson case but it illustrates what many these days seem to conveniently forget; that in warfare human rights are completely or partially suspended. And that includes the rights of journalists who venture into warzones. There is no special journalist zone in a warzone. There is no privacy in a warzone. There is no such thing as privacy in a warzone. Get real.

The Geneva Convention and International Human Rights law provide protections for journalists in warzones. They cannot be deliberately killed just for doing their jobs or deliberately targeted for surveillance just for doing their jobs, But they do get caught up in the fog of war. They sometimes die, and they will be caught up in mass surveillance operations.

All communications in a warzone, both military and civil, are intercepted by both sides of the conflict. Use a military radio, or a mobile phone or send an email and it will be intercepted. For very good reasons.

On the one hand to find out where the enemy is, who he is, who he is talking to, what he is doing, and hopefully what he intends to do. On the other hand to ensure that our own side is not inadvertently or incompetently transmitting information in clear about our own identities, dispositions and intentions. And to make sure that no-one on our own side is communicating with the enemy but if they are, to know what they are saying. That includes journalists, some of whom do try and sometimes succeed in talking to both sides of a conflict. They will be monitored by both sides.

As soldiers we understand that we are being intercepted by both friend and foe. In Vietnam we were, and we sometimes received warnings from our own interception people to pay more attention to our communications security. They gave us verbatim examples of our transgressions. It was just part of war, being listened to. And it still is.

In Afghanistan one of the primary means of communication used by the Taliban is the mobile phone. All mobile communications in Afghanistan are intercepted in a massive technological operation. Not just the Taliban but everyone. What are the Taliban saying? Who are they saying it to? Who in government is talking to the Taliban? Who in the Afghan Army? Who in the Afghan Police? Which journalists are talking to the Taliban? What are they saying and being told? Are politicians, officials, journalists and others giving out information that might assist the Taliban in their operations, or might put friendly soldiers at risk? Inadvertently or otherwise.

If Jon Stephenson had made a phone call to a known Taliban or Taliban sympahiser his call would have been immediately flagged and he would have been investigated. Otherwise it would just disappear into the Intelligence Cloud. As John Stephenson was most probably not talking to Taliban or Taliban sympathisers that is most probably what happened to the records of his phone calls (or emails). They would have disappeared into the Intelligence Cloud.

In reply to the NZ Defence denial:

“Hager said that was not his understanding of how Stephenson’s phone records were accessed”.

“From what I had described to me, this was focused on Jon and particular Afghan Government people who were also on the chart of who’d been ringing whom, who he was in contact with.”

Which is network analysis and which usually analyses those networks to about the third node from the targeted individuals. That raises some questions.

• Were any of Jon Stephenson’s Afghan contacts communicating with the Taliban, or were any of their contacts communicating with the Taliban? To the extent that they and their contacts would automatically be flagged? We don’t know. Jon Stephenson probably doesn’t know either.
• If Stephenson’s communications did get flagged through network analysis would that be drawn to the attention of the New Zealand spooks? Probably.
• Would that necessarily put him under suspicion of espionage or aiding the enemy or anything silly like that? Not unless he was up to something silly like that.

If I were an officer in Afghanistan I would want the spooks to be watching my back and the backs of my soldiers. I would want them to monitor all communications in the warzone to detect any possible risk to the precious lives of my soldiers. A serious problem in Vietnam was that some trusted South Vietnamese soldiers and officials were actually spies. Out of deference to the South Vietnamese allies they were not properly monitored and many allied soldiers died as a result. It takes only a few well placed spies to cause a lot of deaths. One must presume that that mistake has not been repeated in Afghanistan.

From all of that.

• Do journalists have special dispensation in a warzone, any special rights to privacy? No. Like the right to life they forego the right to privacy the moment they step into a warzone.

So.

• Were Jon Stephenson’s communications intercepted? Probably.
• Were they of interest to the Intelligence gatherers? Depends who he was talking to and what he was saying, who they were talking to and what they were saying.
• How do you find out who he was talking to and what he was saying, who they were talking to and what they were saying? By listening in.
• Was he singled out for special attention? Probably not. There are hundreds of thousands of mobile phones and computers in Afghanistan, probably millions.
• Were records of his communications stored in the Intelligence Cloud available to those who had the authority and clearance to search the Intelligence Cloud? Probably but because of the vast amounts of intercepted data probably only for a limited time.
• Did some NZ Defence personnel have the authority and clearance to search the Intelligence Cloud or specified parts of it? Probably.
• Did any NZ Defence personnel search the Intelligence Cloud for information about Jon Stephenson? You’d have to ask them.

And.

• Were any NZ Defence personnel, or GCSB and SIS personnel, involved in the overall interception operations in Afghanistan? I hope so because we need to keep that capability current as part of our own military and intelligence offensive skillset, along with the actual killing stuff of course.
• Were NZ Defence or intelligence personnel specifically involved in monitoring Jon Stephenson? Doubt it, unless he was up to no good in the warzone. They’ve got bigger fish to fry in that warzone.
• Did any NZ Defence or intellgence personnel search the Intelligence Cloud for information about Jon Stephenson? You’d have to ask them.

And finally, almost.

• Who are John Stephenson’s sources? And are they reliable? We don’t know. Not from the news article we don’t.

The final set of questions is about NZ Defence Force operational policy. To quote from Kiwipolitico:

“Mr. Hager also revealed the existence of an NZDF operations manual, apparently drafted in 2003 and revised in 2005, that included at least “certain investigative journalists” along with hackers, foreign spy agencies, ideological extremists, disloyal employees, interest groups, and criminal organizations in the category of “subversive” threats (although it remains unclear as to when that particular passage was added to the text and who authored and authorized it). The definition of subversion was stretched to include those whose activities could undermine public morale or confidence in the government and NZDF. This included “political” activities deemed inimical to the NZDF image or reputation”.

If that information is correct it is indeed clumsy to say the least, and paranoid at worst. Given that NZSIS is primarily responsible for security in New Zealand what is not clear is whether or not this manual applies only to operations in Afghanistan or to all NZ Defence Force activity including in New Zealand. That crucial context would significantly clarify the debate.

To add further context and clarity we would need to know:

• Why were “certain investigative journalists” added to the list and what does NZ Defence know about their activities that is not being revealed?
• Why were “disloyal employees” added to the list and does NZ Defence have specific names and evidence of subversive activity by those “disloyal employees”?
• Were those “disloyal employees” passing information to “certain investigative journalists”? If so was it information that might have jeopardised NZ Defence Force operations in Afghanistan? Or was it information whether true or false designed to embarrass the NZ Defence Force?
• Were those “disloyal employees” military or civilian? Why were they “disloyal”?
• Does NZ Defence have specific information about Jon Stephenson’s activities in Afghanistan that it is not revealing? For reasons of source protection perhaps?

Afghanistan is one matter and we need a lot more information before we pass judgement on what happened there. Spying on our own citizens at home in New Zealand is a different matter entirely and shouldn’t be confused with Afghanistan or any other warzone.

In the wake of the Jon Stephenson allegations and the proven breach of democratic principle in the sordid case of spying on Andrea Vance the media are loud in their condemnation of attacks on the freedom of the media. Rightly so. But where were you from 2002 onwards when everyone else’s democratic freedoms and rights were being eroded in the name of counter terrorism and national security. You were mute, compliant. apathetic like the rest of the country, most of you.