Springing The Trap: Did The FBI Turn New Zealand Into Dotcom's Holding Cell?

Right Where They Want Him: It is now clear that New Zealand Government agencies connived with the FBI and other US agencies to trap Kim Dotcom in New Zealand. While the US Department of Justice struggles to get all its legal ducks in a row, his Coatesville mansion has become a luxurious holding-cell.

IT WAS THE EVENING of 25 July 2013, at the anti-GCSB Bill meeting held in the Mt Albert War Memorial Hall, when Kim Dotcom released his information about the SIS. Although the news media was well represented in the hall, his revelations received scant journalistic attention. With intense controversy once again swirling around Dotcom, putting an end to that journalistic neglect seems timely.

 

Because what Mr Dotcom told New Zealanders on 25 July was profoundly disturbing.

 

In the course of legal discovery, Dotcom alleges that his defence team discovered that the New Zealand Security Intelligence Service had suddenly and inexplicably reversed its position on whether or not he should be granted permanent residence status in New Zealand. The question that hung in the air as he laid out the sequence of events was: “Why?”

 

In the months leading up to November 2010, when Dotcom was finally granted permanent residence status, the SIS had consistently advised against it. According to the SIS’s vetting team, the German IT entrepreneur’s past crimes and misdemeanours made him an unsuitable candidate for permanent residence in New Zealand. Then, quite suddenly and without explanation everything changed. The SIS reversed its position, informing Immigration NZ that they no longer had any objections to Dotcom being admitted to the country.

 

Officially, Dotcom was granted permanent residence under the “Investor Plus” scheme whereby high-net-worth individuals willing to invest more than $10 million in New Zealand’s domestic economy were fast-tracked through the system. In the light of subsequent events, however, the sudden removal of all SIS objections to Dotcom’s entry may have been inspired by considerations that had nothing to do with his investment plans.

 

Dotcom’s spectacular arrest by the New Zealand Police took place at his Coatesville mansion on 10 January 2012 – just five days after the FBI filed copyright-violation, money laundering and racketeering charges against him in a Virginia court. It is, however, very clear that the operation to secure his apprehension and extradition to the United States had been planned for many months. Equally clear is the more-or-less continuous role the spy agencies of both the United States and New Zealand played in monitoring and gathering evidence against Dotcom, his partners, and their Megaupload business.

 

Dotcom’s revelations to the public meeting on 25 July 2013 point very clearly to the possibility that the FBI may have advised the New Zealand authorities, including the SIS, that they would be doing the US Government a very big favour if they allowed Dotcom into the country. New Zealand, as part of the now notorious “Five Eyes” intelligence-sharing agreement, was the perfect holding-cell for Dotcom while the months of evidence-gathering (i.e. covert surveillance) required to secure his extradition was organised and executed.

 

Why would the FBI ask such a favour of a supposedly sovereign state? What reason did they have to suppose that the government of New Zealand would be prepared to connive in an American-driven exercise designed to eliminate an enterprise that was fast becoming a significant threat to the profitability of US media corporations?

 

Most probably because, in the weeks immediately preceding Dotcom’s permanent residence being granted, the FBI, along with the Hollywood moguls on whose behalf Dotcom was being hunted, had witnessed the New Zealand Government ride to the rescue of Warner Bros.’ production of The Hobbit. In the space of a day the New Zealand Parliament passed legislation which made the unionisation of New Zealand’s film industry a near impossibility. A government that was willing to strip away the employment rights of its own citizens to keep Hollywood happy was unlikely to lose too much sleep over the fate of a German IT entrepreneur who had somehow incurred its wrath. Indeed, it’s entirely possible that Hollywood may have pointed the FBI in John Key’s direction!

 

If such a request was received, then all the evidence subsequently extracted from the individuals and institutions involved in Dotcom’s surveillance, arrest and extradition suggests that it was granted. Certainly, the ease with which the FBI enlisted the “fraternal” assistance of the NZ Police and the GCSB indicates strongly that ever since the signing of the UKUSA Agreement in 1946 any and every request for assistance from the national security apparatus of the United States has been granted. Why else would Key respond to the New Zealand courts’ determination that the GCSB acted outside the law with legislation making its hitherto illegal activities legal?

 

In assessing all of this information it is important to bear in mind that the key motivation for Hollywood’s appeal to the Obama Administration for legal intervention against Dotcom was his alleged violation of the studios’ intellectual property rights – i.e. for breaches of copyright.

 

The studios’ problem is that in just about every civilised country (and that includes New Zealand) breach of copyright is a civil – not a criminal – matter. That makes securing an alleged copyright violator’s extradition next to impossible. It is, therefore, difficult to avoid the conclusion that the charges of racketeering and money laundering were only added to Dotcom’s ticket to ensure that an extradition hearing could take place. One can only speculate about how long such serious felony charges will remain on the ticket should the FBI be successful in getting Dotcom on to American soil.

 

The law relating to extradition in New Zealand is based on the understanding that since it is a matter involving two or more sovereign states its ultimate resolution will always be political. A Judge may find that the state seeking extradition has presented her with a plausible case, but the final decision is left to a representative of the Government. The Judge’s opinion should be taken into account but it is not determinative. Under Section 30 (3) (d) & (e) of the Extradition Act 1999:

 

The Minister may determine that the person is not to be surrendered if ...

 

it appears to the Minister that compelling or extraordinary circumstances of the person including, without limitation, those relating to the age or health of the person, exist that would make it unjust or oppressive to surrender the person; or

 

for any other reason the Minister considers that the person should not be surrendered.

 

Among those “other reasons” could be incontrovertible evidence that the applicant state was guilty of entering into a conspiracy to apprehend “the person” on behalf of private commercial interests seeking to nullify the effects of rapid technological change on their enterprises’ ability to protect their intellectual property; and that in seeking to give effect to this conspiracy the applicant state was guilty of inciting illegal acts by agents of the host country’s police and security forces.

 

In those circumstances, it would be entirely proper for a Justice Minister to refuse to grant an order for extradition. Nor would it be improper for Opposition politicians to indicate that while the facts continue to point to the obvious conclusion that if Dotcom is guilty of anything at all, it is of offences for which no citizen or permanent resident of this country should be extradited.

 

Hollywood wanted to make an example of Megaupload and the FBI agreed to help. If part of that assistance involved persuading the New Zealand Government to first lure Dotcom within its borders and to then engage in illegal acts of surveillance and evidence-gathering until it was ready to spring the trap, then Dotcom has every right to use whatever legal means necessary to defend his liberty, and New Zealand has every right to tell Hollywood, the FBI and the American Government to go to hell.

 

This essay was originally posted on The Daily Blog on Friday, 14 February 2014.

 

[Author’s Note: Unbeknownst to me at the time of writing this posting, the investigative journalist, David Fisher, in a NZ Herald article dated Monday, 25 March 2013, had already exposed the connivance of the New Zealand authorities in allowing Kim Dotcom to settle in New Zealand . The full credit for the uncovering and breaking of this story belongs to him.]