John Key's New Spymaster? Chris Finlayson has proved to be a politician of icy rectitude: an austere and unbending executor of his official responsibilities as Attorney-General. All well and good, it is an office well-suited to austerity. But John Key should think again before entrusting a person so confident in the unassailability of his own judgements with the awesome weaponry of the secret state.
JOHN KEY’S DECISION to hand off day-to-day responsibility
for the national security apparatus to Chris Finlayson is deeply troubling. The
tradition of making the Prime Minister the Minister-in-Charge of the NZ Security
Intelligence Service (SIS) and, more latterly, the Government Communications
Security Bureau (GCSB), reflected the public’s expectation that foreign and domestic
intelligence gathering must never be permitted to overstep the democratic
boundaries. As the nation’s most powerful elected official, the Prime Minister
is supposed to keep the spooks in line.
But now the Attorney-General – the country’s most important
legal officer – is being asked by the Prime Minister to double as New Zealand’s
Spymaster. Ominously, the responsibility for administering the law and supervising
New Zealand’s national security apparatus is to be vested in a single
individual. Inevitably, the biblical question arises: can Mr Finlayson serve
two masters?
Historically, those charged with preserving the safety of
the State have demonstrated little patience for formal legal protocols. In the
words of the Roman jurist, Cicero: salus
populi suprema lex – the safety of the people shall be the highest law. And
when that safety is perceived to be under imminent threat, the first impulse of
those in possession of the State’s defensive weaponry has almost always been to
strike first and ask the judges later.
And if the Spymaster’s swift action results in the threat to
the State being removed, then why should the courts be troubled with it at all?
A spymaster is, of course, expected to declare absolute fealty to the Rule of
Law and express nothing but horror at the thought of the Crown’s servants taking
the law into their own hands. All quite right and proper. And yet, the State will
have its reasons, as compelling as they are unacknowledged. What spymasters
profess to believe, and what they actually do, have long been very distant cousins.
It is also worth bearing in mind just how difficult it is
for those with the power to execute their judgements secretly to then have
those same judgements subjected to wider (even public!) scrutiny. Surely the
expectation of any leader who sees fit to devolve such extensive authority upon
a subordinate is that his servant will use that power to both protect and
advance their master’s cause? And, surely, one of the best ways to protect
one’s master is to ensure that he or she retains what the American’s call
“plausible deniability”. To work from the assumption that there are some
decisions best made and executed without the leader’s knowledge – or approval?
And therein lies the greatest threat to the liberties of the
citizen. That an individual, having been given immense power within the State
begins to use that power in ways that are accountable to no one – save the
conscience of he or she who wields it. From Elizabeth I’s Walsingham to Joseph
Stalin’s Beria to the FBI’s almost wholly unaccountable J. Edgar Hoover, spymasters
have, practically without exception, regarded themselves as the system’s secret
dagger: a weapon to be driven home in dark places, far from prying eyes, but
always in defence of its most profound values. Often unacknowledged and frequently
unthanked (at least in public) the Spymaster seeks no greater reward than the
knowledge that he or she has kept the Crown/the Revolution/the Constitution
safe from its enemies.
Sir Francis Walsingham: Queen Elizabeth I's spymaster.
And it is precisely for this reason that, hitherto, our
prime ministers, by making themselves, alone, accountable for the exercise of
the State’s secret power, have protected us from the rise of such individuals.
Theoretically, it is an arrangement that denies our leaders all hope of
“plausible deniability”. They know what has been done because they were the
ones who gave the orders to do it. If the State’s secret dagger must be
wielded, then better the blood be upon our leaders’ hands. That way, only the public,
in full democratic array, has the power to absolve them.
Chris Finlayson has proved to be a politician of icy
rectitude: an austere and unbending executor of his official responsibilities
as Attorney-General. All well and good, it is an office well-suited to
austerity. But John Key should think again before entrusting a person so
confident in the unassailability of his own judgements with the awesome
weaponry of the secret state. Let the Spymaster’s dagger remain in the Prime
Minister’s hands – where we can all see it.
This essay was originally posted on The Daily Blog of Thursday, 9 October 2014.
