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Posts Tagged ‘amnesia’

The GCSB – when plain english simply won’t do.

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spy vs politician

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Question: Is the GCSB staffed and managed by people for whom english is a second language?

The reason I ask is that I’ve been hearing over and over again that the Act covering the Government Communications Securitry Bureau (GCSB) is somehow, “vague”.

For example Deputy Prime Minister Bill English said,

It highlights the fact that the legislation for GCSB is probably legally flawed right from the start. The law is likely to need to change.”

This “vagueness” in the law – the Government Communications Security Bureau Act 2003 – is supposedly ‘unclear’ and ‘confusing’, which resulted in the Bureau illegally spying on 88  New Zealander permanent residents and/or citizens (see:  Legality of spy operations called into question).

So how vague is the Act? Specifically Part 3, Section 14,

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Government Communications Security Bureau Act 2003 - section 3-14

Acknowledgement:  Parliamentary Counsel Office: Government Communications Security Bureau Act 2003

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Section 14 states,

Restrictions imposed on interceptions

14 Interceptions not to target domestic communications
  • Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau may authorise or take any action for the purpose of intercepting the communications of a person (not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident.

Let’s dissect that paragraph,
Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau …”

That’s fairly clear; we start of  by identifying who is covered by this paragraph,

  •  the Director
  •  employees,
  •  or anyone acting on behalf of the Bureau

“… may authorise or take any action for the purpose of intercepting the communications of a person…”

Again, fairly clear; the people mentioned above cannot “intercept[ing] the communications of a person…”

And the “punch-line”,

“…(not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident”.

So, if you’re a “a New Zealand citizen or a permanent resident”, you cannot have your commmunications intercepted by “the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau“.

That’s not only clear, but it’s not even written in ‘legalese’!?

The GCSB believed that they were allowed to spy on behalf of Police (or OFCANZ, to be specific).

But nowhere does the Act allow the GCSB to spy on behalf of the Police. In fact, the Act states in at least two parts, precisely who the GCSB may collect data on;

Part 2
7. Objective of Bureau
  • (1) The objective of the Bureau is to contribute to the national security of New Zealand by providing—

    • (a) foreign intelligence that the Government of New Zealand requires to protect and advance—
      • (i) the security or defence of New Zealand; or
      • (ii) the international relations of the Government of New Zealand; or
      • (iii) New Zealand’s international well-being or economic well-being; and
    • (b) foreign intelligence to meet international obligations and commitments of the Government of New Zealand; and
    • (c) advice, assistance, and protection to departments of State and other instruments of the Executive Government of New Zealand in order to—
      • (i) protect and enhance the security of their communications, information systems, and computer systems; or
      • (ii) protect their environments from electronic or other forms of technical surveillance by foreign organisations or foreign persons.

    (2) For the purposes of subsection (1)(a)(iii), the interests of New Zealand’s international well-being or economic well-being are relevant only to the extent that they are affected by the actions or intentions of foreign organisations or foreign persons.

Part 3
13. Purpose of Part
  • The purpose of this Part is,—

    • (a) subject to the restrictions imposed by this Part, to enable the Bureau to obtain foreign intelligence; and
    • (b) to authorise the interception of communications (whether under section 16 or under an interception warrant or a computer access authorisation) only if the purpose of the interception is to obtain foreign intelligence.

Both paragraphs emphasise over and over again two words; foreign and international.
Coupled with Paragraph 14, it seems to this blogger (and I have zero legal training, except watching old ‘Perry Mason‘ tv programmes in my youth) that the law is fairly clear in,
  1. Meaning
  2. Intent
  3. Wording

Whatever possessed the GCSB to believe that they were allowed to spy on behalf of  OFCANZ?

For the GCSB to claim that they “believed they were allowed to spy on behalf of others such as the Police or SIS” is akin to saying they were allowed to spy on NZ citizens only on every other day, except Sunday. Ridiculous.

This is not about a “vague” or “unworkable” law.

This is about a government department that had minimal oversight and attempted to get away with flouting the law.

What  “oversight’ there was consisted of  an aging, retired judge who works part-time – and an even more apparently  feeble-minded Prime Minister who has severe memory-retention problems and seems to take little interest in what the GCSB is up to.

The GCSB has been caught out in a “matesy” relationship with OFCANZ – due in part to the ‘glamourous’ work being undertaken at the behest of the United States’ FBI, regarding Kim Dotcom. The GCSB simply didn’t want to be left out of the “action”.

This was a bunch of “boys” with high tech gear; truckloads of money; and no one watching what they were getting up to.

No wonder they broke the law in their spying.

They thought they could get away with it.

Why?

Why not. Because, after all,  who watches the Watchmen?

This blogpost was first published on The Daily Blog on 22 May 2013.

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But will he remember this helicopter flight in one year’s time?

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John Banks, alighting from a RNZAF NH90 helicopter, to his way to Parekura Horomia’s tangi,

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john banks at funeral

Acknowledgment: TV3 – PM arrives on eve of funeral

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The GCSB – when plain english simply won’t do.

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spy vs politician

.

Question: Is the GCSB staffed and managed by people for whom english is a second language?

The reason I ask is that I’ve been hearing over and over again that the Act covering the Government Communications Securitry Bureau (GCSB) is somehow, “vague”.

For example Deputy Prime Minister Bill English said,

It highlights the fact that the legislation for GCSB is probably legally flawed right from the start. The law is likely to need to change.”

This “vagueness” in the law – the Government Communications Security Bureau Act 2003 – is supposedly ‘unclear’ and ‘confusing’, which resulted in the Bureau illegally spying on 88  New Zealander permanent residents and/or citizens (see:  Legality of spy operations called into question).

So how vague is the Act? Specifically Part 3, Section 14,

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Government Communications Security Bureau Act 2003 - section 3-14

Acknowledgement:  Parliamentary Counsel Office: Government Communications Security Bureau Act 2003

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Section 14 states,

Restrictions imposed on interceptions

14 Interceptions not to target domestic communications
  • Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau may authorise or take any action for the purpose of intercepting the communications of a person (not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident.

Let’s dissect that paragraph,
Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau …”

That’s fairly clear; we start of  by identifying who is covered by this paragraph,

  •  the Director
  •  employees,
  •  or anyone acting on behalf of the Bureau

“… may authorise or take any action for the purpose of intercepting the communications of a person…”

Again, fairly clear; the people mentioned above cannot “intercept[ing] the communications of a person…”

And the “punch-line”,

“…(not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident”.

So, if you’re a “a New Zealand citizen or a permanent resident”, you cannot have your commmunications intercepted by “the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau“.

That’s not only clear, but it’s not even written in ‘legalese’!?

The GCSB believed that they were allowed to spy on behalf of Police (or OFCANZ, to be specific).

But nowhere does the Act allow the GCSB to spy on behalf of the Police. In fact, the Act states in at least two parts, precisely who the GCSB may collect data on;

Part 2
7. Objective of Bureau
  • (1) The objective of the Bureau is to contribute to the national security of New Zealand by providing—

    • (a) foreign intelligence that the Government of New Zealand requires to protect and advance—
      • (i) the security or defence of New Zealand; or
      • (ii) the international relations of the Government of New Zealand; or
      • (iii) New Zealand’s international well-being or economic well-being; and
    • (b) foreign intelligence to meet international obligations and commitments of the Government of New Zealand; and
    • (c) advice, assistance, and protection to departments of State and other instruments of the Executive Government of New Zealand in order to—
      • (i) protect and enhance the security of their communications, information systems, and computer systems; or
      • (ii) protect their environments from electronic or other forms of technical surveillance by foreign organisations or foreign persons.

    (2) For the purposes of subsection (1)(a)(iii), the interests of New Zealand’s international well-being or economic well-being are relevant only to the extent that they are affected by the actions or intentions of foreign organisations or foreign persons.

Part 3
13. Purpose of Part
  • The purpose of this Part is,—

    • (a) subject to the restrictions imposed by this Part, to enable the Bureau to obtain foreign intelligence; and
    • (b) to authorise the interception of communications (whether under section 16 or under an interception warrant or a computer access authorisation) only if the purpose of the interception is to obtain foreign intelligence.

Both paragraphs emphasise over and over again two words; foreign and international.
Coupled with Paragraph 14, it seems to this blogger (and I have zero legal training, except watching old ‘Perry Mason‘ tv programmes in my youth) that the law is fairly clear in,
  1. Meaning
  2. Intent
  3. Wording

Whatever possessed the GCSB to believe that they were allowed to spy on behalf of  OFCANZ?

For the GCSB to claim that they “believed they were allowed to spy on behalf of others such as the Police or SIS” is akin to saying they were allowed to spy on NZ citizens only on every other day, except Sunday. Ridiculous.

This is not about a “vague” or “unworkable” law.

This is about a government department that had minimal oversight and attempted to get away with flouting the law.

What  “oversight’ there was consisted of  an aging, retired judge who works part-time – and an even more apparently  feeble-minded Prime Minister who has severe memory-retention problems and seems to take little interest in what the GCSB is up to.

The GCSB has been caught out in a “matesy” relationship with OFCANZ – due in part to the ‘glamourous’ work being undertaken at the behest of the United States’ FBI, regarding Kim Dotcom. The GCSB simply didn’t want to be left out of the “action”.

This was a bunch of “boys” with high tech gear; truckloads of money; and no one watching what they were getting up to.

No wonder they broke the law in their spying.

They thought they could get away with it.

Why?

Why not. Because, after all,  who watches the Watchmen?

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= fs =

The Fletcher Affair – a warning for Labour

6 April 2013 8 comments

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spy vs politician

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The current mess surrounding the appointment of Ian Fletcher as the Government Communications Security Bureau’s (GCSB) Director should serve as a clear warning to any future Labour-Green government: Don’t Do It.

To be precise; don’t do what Key (and his ministerial cronies) has done. Circumventing the State Services Commission to “facilitate” appointments – even if done for decent motives – is simply;

(A) Not a good look

(B) Not worth the hassle when the media, bloggers, and Opposition get hold of it

(C) A slippery-slope toward cronyism and inevitable corruption.

The appointment of John Key’s Electorate Chairperson,  Stephen McElrea (who is also the National Party’s Regional Deputy Chair, National Party Northern Region) to the Board of NZ On Air raised numerous charges of cronyism and an agenda of political interference in public funding for television programming. (See:  Call for McElrea to resign from NZ On Air; See: PM has questions to answer over NZ on Air link )

Concerns over political appointees to highly sensitive positions, vulnerable to political interference, was quickly borne out when McElrea began to flex his “political muscles” even before being appointed to  NZ on Air’s Board,

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National man eyes NZ On Air chair

Acknowledgement: NZ Herald – National man eyes NZ On Air chair

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Key’s background in deal-making; cutting corners to achieve set goals; and getting results fatally blinds him to the realities that politics and government is a whole different kettle of fish to ‘high finance’. (Which would be a good thing, considering the almighty crash of  ‘high finance’ four years ago.)

The State Services Commission was set up precisely to keep politician’s greasy hands of appointments.  At the beginning of out nascent civil service, ministerial cronyism was rampant,

The departments that grew up over the next few decades operated under the direct control of their Ministers, in arrangements that were practical in pioneering times.  Ministers approved appointments, determined pay and conditions, and oversaw administration and financial management, with varying degrees of diligence.

[…]

Understandably, Ministers were inclined to see that the people appointed were sympathetic to their own political outlook and priorities – and inevitably, in a small population, these were sometimes friends or acquaintances.  The Public Service was run on somewhat ad hoc ‘frontier’ lines, and seems not to have been much different from its parent institution, the British civil service.  In their report on the British civil service Sir Stafford North and Sir Charles Trevelyan described a bureaucracy that was, in the 1850s, rife with patronage, fragmented and inefficient.

Acknowledgement: State Services Commission –  Origins of the Public Service and Office of State Services Commissioner

Accordingly, after 1912, reforms were enacted to clean up this unholy mess,

The Hunt Commission in due course recommended, as ‘the most important matter of all’, establishment of a Board of Management under Cabinet, to have ‘absolute and undisputed power’ in ‘all matters relating to the control and management of the Service – … appointments, salaries, promotion, suspensions, dismissals, and indeed everything affecting officers – ‘  It suggested the Board’s first duties should include blocking all ‘back doors’ of entrance to the Public Service, and arranging for all promotions be made from within the Service.

The outcome was the Public Service Act 1912 – based on Herdman’s Bill already before the house – which set up a non-political and unified career Public Service; non-political through powers of appointment, promotion and dismissal being entrusted to an independent body – the Public Service Commissioner.

Acknowledgement: IBID

It is abundantly clear that John Key doesn’t ‘get’ any of this, when he said,

I didn’t do anything wrong whatsoever. Labour have done very similar things.”

Again, blaming Labour.

Is everything he says or does predicated on what the previous government did?

Does Key not have standards of his own? (Rhetorical question. Don’t answer.)

Because Key’s memory lapses cannot be blamed on anyone but himself. Especially when, on 3 April he openly contradicted himself as to who-phoned-who, as Andrea Vance reported,

…he appears to be confused about who first suggested Fletcher for the job.

Asked why he didn’t tell the full story last week, Key said: “I’d forgotten that at that particular time.”

In Porirua this afternoon, Key was grilled about the sequence of events that saw Fletcher appointed as director of the GCSB in September 2011.

At first Key said: “Iain Rennie, state services commissioner recommended him to me… I rang [Fletcher] and said ‘look, you know, you might be interested.”

Asked again who first brought up Fletcher’s name, Key replied: “Iain Rennie put it to me.”

Later on, he was asked again who first mentioned Fletcher. “I would have mentioned it to him, I’m sure.”

When pressed to clarify if he first suggested the name to Rennie, he said: “I’m sure I probably would have.”

Acknowledgement: Fairfax Media – Fletcher’s appointment defended by SSC boss

Key lied. He was caught out lying.

On 4 April, Scoop Media wrote about the rationale behind Ian Fletcher’s appointment as GCSB director. Fletcher had no prior military of Intelligence experience. But he did have an extensive  background in intellectual property, commerce and “free” trade (see: The CV of a Spy Boss ) .

Fletcher’s appointment was announced  in September 2011, and was due to take up his new job in early 2012.

At the same time, police were planning their raid on Kim Dotcom’s mansion, scheduled to take place  on January 20 2012.

Scoop wrote,

Suppose Dotcom’s arrest and extradition was the clincher in the deal that secured Warner Bros’ agreement to produce The Hobbit in New Zealand. But any link to John Key, who led the negotiations with Warner Bros, would tend to confirm Dotcom’s claim, supported by the strong connection between Hollywood and US vice-president Joe Biden, of political persecution. So the prime minister had to be protected by having total deniability, leading to the completely implausible claim of not knowing about the most prominent resident in his own electorate until the day before the raid.

Acknowledgement: Kim Dotcom Part Two

Conspiracy fantasy?

Remember that Key has had several top level meetings with Warner Bros executives,

October 2010

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No decision yet in Hobbit talks - Key

Acknowledgement: NZ Herald – No decision yet in Hobbit talks – Key

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July 2011

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PM's 'special' movie studio meeting

Acknowledgement: Fairfax – PM’s ‘special’ movie studio meeting

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October 2012

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Key - Dotcom won't be discussed during Hollywood visit

Acknowledgement: TV3 – Key: Dotcom won’t be discussed during Hollywood visit

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Four days later,
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Dotcom raised at PM's Hollywood dinner

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And those are only the meetings which we, The Masses, are aware of.

It’s interesting to note Chris Dodd, the CEO of  the Motion Picture Assiciation of America (MPAA) referred to the Trans Pacific Partnership Aggreement (TPPA) in the 5 October NZ Herald article above.

The TPPA has more to do with intellectual property rights than with “free” trade. (See: “Global Research –  The “Trans-Pacific Partnership”: Obama’s Secret Trade Deal; See: MFAT -Trans-Pacific Partnership Negotiations – Intellectual Property Stakeholder Update)

It’s also worthwhile noting that Ian Fletcher’s appointment coincided to the month with the raid on Kim Dotcom’s mansion.

  • Raid on Kim Dotcom’s mansion:  20 January 2012.

And both men were involved in intellectual property rights – though from different angles,

  • Kim Dotcom – the man who Hollywood executives wanted brought down because of alleged copyright violations on his ‘megaupload’ website. (see: The MPAA on Dotcom)
  • Ian Fletcher – the man who had worked in the UK to protect oroporate interests in intellectual property rights. (see below)

When Ian Fletcher’s appointment was announced on 8 September 2011, Key himself proudly boasted of the new Director’s  career,

Announcing the appointment Prime Minister John Key said he has ” policy and operational experience particularly in relation to international economic and trade matters.”

Acknowledgement: New Zealand’s new top spy boss revealed

Fletcher’s ” policy and operational experience particularly in relation to international economic and trade matters” seemed to matter for John Key for some reason?

Kim Dotcom was very high on the list of issues relating to “international economic and trade matters“; namely intellectual property rights.  Indeed, in March 2007, Fletcher was appointed as Chief Executive of the UK Office of Intellectual Property.

On 20 March 2007, Ian Fletcher said,

“I am delighted to be joining the Patent Office. It already plays a vital role in the UK’s economic prosperity, its scientific excellence and its innovation system. As the Office moves on to tackle to challenges set out in Andrew Gowers’ review, the Office’s role will become even more central to the UK’s response to the challenges of globalisation.”

Acknowledgement: Intellectual Property Office – New Chief Executive for the Patent Office

(Hat-tip; Karol, on The Standard)

It has been widely commented that Ian Fletcher has no background in the military, nor Intelligence – yet was considered the one candidate who was eminently suitable for the role of Director of the GCSB.  Perhaps now we are starting to understand why Ian Fletcher’s appointment seemingly related to,

  • the Crown’s case against Kim Dotcom
  • Illegal downloads/Intellectual Property rights
  • MPAA concerns
  • Hollywood big business
  • Trans Pacific Partnership

And as Key himself admitted, the issue of Kim Dotcom had been raised by Hollywood executive. Just what does our Prime Minister have to discuss with said executives? Who knows – it’s all done in secret, behind closed doors. We’re just expected to pay our taxes and shut up.

Conspiracy theory?

Conspiracy theories remain the subjects of idle parlour chit-chat and somewhat kooky websites… well, until charges are laid. Then a conspiracy theory becomes a conspiracy case in a Court of Law.

This affair should serve as a warning for the next in-coming Labour-Green government. National’s administration is a text-book case of how not to do things.

Every minister in the next Labour-Green government should be appointed a “minder” to ensure that they do things By The Book, and not to cut one single corner. Or at the very least, periodically re-read press reports and blogposts detailing every f**k-up by National over the last four years.

New Zealand is a small country. Secrets are notoriously difficult to keep. And even if the whole story behind the Fletcher-Dotcom-GCSB-TPPA thing has not been fully revealed – I think we’ve had a glimpse into the murky shadows of political perfidity to smell something rotten.

The issue has not only further dented Key’s credibility, but is starting to wear down his public persona of  good natured, ‘blokeyness’,

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John Key calls media 'Knuckleheads'

Acknowledgement:  NZ Herald – John Key calls media ‘Knuckleheads’

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Abusing the media? Not a good look for Dear Leader. It appears that the stress of the job is getting to him. And he can’t handle it very well.

Key’s “blokeyness” morphes into bratty petulance when he further dictates the terms under which he will talk to the media and in Parliament,

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PM John Key

‘What I should have done, and what I will be doing in the future, is saying, well, the member needs to put that down to me in writing, and I’ll be doing that to the journalists as well.
‘Cos if you want perfection of everything I have done, two, three, four, five years ago, I will get you all that information for you, but I’ll get you the whole lot and give it to you.”

Acknowledgement: Fairfax Media – John Key changes tack over questioning

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This is “seige mentality” stuff.

Key’s teflon coating wore away over a year ago. With no defensive cloak, the media recognise a government and it’s leader who are in dire trouble and  on the defensive.

As Martyn ‘Bomber’ Bradbury wrote on “The Daily Blog”,

“John Key’s extraordinary appointment of his school-hood chum to be the new Director of our spy network could well be his ‘speeding in the Prime Ministerial Limo’ moment.”

Acknowledgement: The Daily Blog – John Key’s ‘speeding in the Prime Ministerial Limo’ moment

And as Bryce Edwards noted in the NZ Herald on 4 April,

“As a barometer of the political media, John Armstrong is always useful, and it appears that he too ‘smells blood’.”

Acknowledgement: NZ Herald – Political round-up: John Key’s precarious credibility

There are more headlines to come out of Key and National. It’s only a matter of time.

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Related blogposts

Crony Watch!

References

Fairfax Media: New Zealand’s new top spy boss revealed (8 Sept 2011)

The Listener: Kim Dotcom and Megaupload: a timeline (20 March 2013)

Scoop: Kim Dotcom Illegal Surveillance And Response: Timeline (28 March 2013)

Fairfax Media:  Fletcher’s appointment defended by SSC boss (3 April 2013)

Radio NZ: State Services boss ‘surprised’ at PM’s phone call (4 April 2013)

NZ Herald: PM paints himself into another corner  (4 April 2013)

NBR: Honesty bigger issue than cronyism (4 April 2013)

NZ Herald: PM put mate’s case for job in 2009 (5 April 2013)

Radio NZ:  PM has no regrets about calling Fletcher (5 April 2013)

Fairfax Media: John Key changes tack over questioning (5 April 2013)

Scoop: Kim Dotcom Part Two (4 April 2013)

NZ Herald: PM put mate’s case for job in 2009 (5 April 2013)

Radiolive: Former GCSB boss intrigued by Ian Fletcher appointment – Audio  (5 April 2013)

NZ Herald: Ian Fletcher appointment a ‘totally ethical process’ (5 April 2013)

NZ Herald: John Key calls media ‘Knuckleheads’ (6 April 2013)

Other blogs

The Standard: The CV of a spy-boss

The Standard: Fletcher GCSB Change manager – and QLD

The Daily Blog: John Key’s ‘speeding in the Prime Ministerial Limo’ moment

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