One of NZ's spy agencies has again been linked to foreign intelligence obtained through torture – but the minister in charge says he is confident they are not breaching human rights rules
The New Zealand Security Intelligence Service has twice received overseas intelligence likely obtained through torture in recent years, according to newly released data.
However, the minister in charge of our spy agencies says he is confident they are complying with the country’s human rights policies and obligations.
The use of intelligence obtained through torture has previously come under the microscope, with a 2019 report from the country’s intelligence watchdog concluding that both the NZSIS and Government Communications Security Bureau (GCSB) had received intelligence reports obtained from CIA detainees later revealed to have been tortured.
The spy agencies’ joint policy statement on human rights risk management, first created in 2017, requires them to conduct a human rights risk approval when planning any actions, and a human rights risk review when they have received intelligence - with varying levels of sign-off depending on the severity of human rights concerns.
Documents obtained under the Official Information Act by the No Right Turn website show that the NZSIS has applied for and been granted two ‘Category 1’ reviews - for intelligence gathered with a “substantial likelihood of torture or similar mistreatment”, and requiring sign-off by a government minister - since the policy came into force.
The Government’s ministerial policy statement on intelligence cooperation with overseas authorities, released last year, states that the GCSB and NZSIS “must not request or use intelligence where they know, or assess there is a real risk the intelligence was obtained through a serious human rights breach such as torture, or cruel, inhuman or degrading treatment”.
Such intelligence could only be used in exceptional circumstances, the statement said, including when necessary “to prevent loss of life, significant personal injury or a threat to critical national infrastructure”.
Little 'clearly satisfied' with spies
Andrew Little, the minister responsible for New Zealand’s intelligence agencies, told Newsroom the information received by the NZSIS had been unsolicited and came from a “third party” non-state actor, rather than an overseas counterpart of the agency.
The information had been kept by the agency as it gave “important insights into entities or individuals overseas who…constitute risks to not only our citizens but others around the world”, he said.
The NZSIS took very seriously its obligations to guard against human rights abuses, and by approving the two reviews he was “clearly satisfied” it had acted in accordance with the intention of both the ministerial policy statement and the spy agencies’ internal policies.
“I think the critical thing is to make sure that a decision on retaining the information is not seen as promoting or encouraging whoever to engage in torture and human rights abuses, and so where it's information that is supplied on an unsolicited basis from a third party, then the risk that retaining it is promoting or encouraging torture or human rights abuses is much lower.”
Little said he could not disclose the exact nature of the risk outlined by the intelligence report, or the identity of the state or entity responsible for the torture or mistreatment at issue, but said: “I don't think we should presuppose that those who might have been responsible for carrying out torture or a breach of human rights knew that it was being disclosed to our agencies.”
There was a suitably high threshold for the use of intelligence obtained through a serious human rights breach, while all decisions were routinely reported to the Inspector-General for Intelligence and Security who had not notified him of any concerns about a potential breach.
“This is an institution that rules on its own compliance, and in any other context we’d be horrified by that.”
Green Party foreign affairs and human rights spokeswoman Golriz Ghahraman told Newsroom she was concerned about how the intelligence in question could be used, given the lack of clarity.
“If the SIS is interested in this information to say that the fact of torture being committed exists within a particular institution so we can avoid it or prosecute it, that’s okay – but if they’re in any way retaining the information to use the substance of it in their work, that is wholly unacceptable.”
Ghahraman said it was well established that evidence obtained through torture was not reliable, while the use of such information also risked promoting further human rights abuses.
While she believed Little stood “on the side of the rule of law and human rights”, she was less confident in the SIS given its track record.
There needed to be stronger independent oversight of the spy agencies, such as a judge with appropriate security clearances who could scrutinise the decisions they made.
“This is an institution that rules on its own compliance, and in any other context we’d be horrified by that.”
In a statement, a spokesman for the NZSIS and GCSB said both agencies placed great importance on human rights, and when working with international partners assessed intelligence for potential human rights breaches.
In both of the cases at issue, the intelligence reports were not received from the actor believed to be responsible for any suspected human rights breach, but came to the NZSIS via a third party.
