Chris Barton: Joining the dots in the Dotcom conspiracy

Regardless of one's opinion of Dotcom, getting the truth is really important, says columnist Chris Barton. Photo / Richard Robinson

The Kim Dotcom case has always involved talk of conspiracy. We know that. The mighty United States has called it so: "the Mega Conspiracy", whereby Kim and his cronies conspired on a massive scale to infringe copyright and makes heaps of dough.

But we now really can't avoid the likelihood of another conspiracy - the Kiwi Connection, possibly the Kiwi Cock-up - whereby various government and law enforcement officials conspired on a massive scale to help their American pals' moves to extradite Kim and his cronies to the United States.

What's wrong with that? After all the Americans are our friends, we have treaties with them, and if they want some help in taking a "bad" man back to their shores to face the music, well, why shouldn't we help? Absolutely correct - as long as it's done in accordance with the law. That's what the law is for, to ensure due process and make sure our rights aren't trampled on by abuses of power.

The Kiwi Connection conspiracy has the hallmarks of abuse of process everywhere you look.

We have to consider the likelihood the conspiracy is real because of the sterling investigative work of David Fisher, who has uncovered some hitherto unseen documents which indicate murkiness beyond the pale.

Documents that, until now, have been denied to Kim Dotcom's legal team even though it made requests for disclosure under the Official Information Act (OIA) more than a year ago.

What gives? In her explanation to lawyers Simpson Grierson, the new director of the Security Intelligence Service (SIS) Rebecca Kitteridge said that as a result of David Fisher's OIA request, the SIS "has determined that some further information that was previously withheld, can and should now be disclosed." Bravo to Ms Kitteridge for being so principled.

But Kim Dotcom's lawyers are not impressed and are rightly asking why, and indeed how, this not insubstantial amount of material was missed the first time?

It's an issue that will be taken up again with Judge Nevin Dawson in the District Court on 18 August. In May Dotcom had sought more discovery from the SIS and Immigration NZ (INZ) on the basis that there were too many coincidences in the sequence of events leading up to him being granted New Zealand residency.

Judge Dawson rejected the application saying Dotcom would "need to provide some nexus" other than "hypothesised coincidence" between him being granted residency and "untoward political pressure being placed upon immigration officials to grant his residency."

Thanks to David Fisher, Dotcom now has a good chunk of that nexus, plus some embarrassing questions to ask both INZ and the SIS about why that nexus was withheld. As with all good conspiracies, this has the whiff of cover-up. Or, if not cover-up, then ineptitude and incompetence.

The problem with the cock-up explanation, however, is that it now seems to be so pervasive in this case - in the GCSB, the SIS, the Police and INZ - that our government and law enforcement officials begin to look like a laughing stock. Could these patriotic, hard-working, diligent officials really be this stupid?

In order for the conspiracy to stack up and allow some further looking for skeletons in the cupboard, Judge Dawson says Dotcom needs to show links between INZ, SIS, the Prime Minister, the CEO of Warner Bros and the United States Department of Justice.

Plus show United States' involvement in the actions of the NZ agencies including some illegal action by the United States "indicating there was an abuse of process". Then and only then could our court provide some sanction against the United States, perhaps rejecting the extradition.

In setting the bar for looking so high, Judge Dawson seems to be saying the conspiracy theory is preposterous. In light of the latest documents that have come to light, it's a judgement that appears very premature.

While some dots are yet to join up, and some dots may not be dots at all, there are quite a lot of dots that do connect in the Kiwi Connection conspiracy:

Dot 1

Withheld email between SIS and INZ in October 2010 regarding Dotcom's residency application indicates concern about "political pressure" to process the case and shows that both parties are aware Dotcom is the subject of an FBI criminal investigation.

The SIS informs INZ the FBI wants to do a joint investigation of Dotcom with the NZ Police and INZ should talk to the police about this before they proceed with granting him permanent residency.

This alone should be enough for INZ to defer Dotcom's residency while it investigates, yet the residency is immediately granted in what appears to be a breach of INZ policy.

Why? Is it because INZ was negligent in its duties and didn't investigate or speak to the Police? Or was there an ulterior purpose to granting the residency - one that would benefit the United States in seeking to extradite Dotcom to face criminal charges?

Dot 2

In September 2011 New Zealand police begin an investigation into Dotcom after receiving a request for assistance from the FBI. Shortly afterwards the GCSB begins illegally spying on Dotcom at the request of the police.

The police know Dotcom is a permanent resident, so why doesn't the GCSB know this and that such spying is illegal? Has the GCSB, like INZ been negligent in its duties? Or does it never expect to be found out?

Dot 3

On 20 January 2012 as part of an international "Operation Debut" coordinated by the FBI, some 70 armed police, including members of the Special Tactics Group (STG) and AOS, plus police dogs and their handlers, deployed in two helicopters and several police vans, descended on the property called the Dotcom Mansion to arrest individuals associated with the Megaupload group of companies and seize its assets, records and information.

It's a show of shock and awe, not seen in NZ since the infamous Urewera raids. Why? The aggressive and excessive search and seizure, akin to using a sledgehammer to crack a nut, results in a $6 million compensation claim against the unlawful actions of the police and the GCSB.

There are also questions yet to be resolved about the illegality of the search warrants. Plus clones of computers seized are illegally taken back to the United States. Why such a show-off? Did our police in their zeal to be puppets of American might in the war against copyright infringement, forget how legal searches should be done?

Ironically, it's the over-the-top nature of the raid that brings closer examination of the tactics. Had a low key knock-on-the-door-and-arrest approach been followed, Dotcom et al would probably have been on their way to the United States within three months.

Dots yet to be joined and dots that may not even be dots

It's possible the Dotcom raid, which included video recording, was watched live from FBI headquarters in the United States. If it was, who was in the room - NZ officials and perhaps Hollywood executives? It's no secret Hollywood executives regularly visit our shores and talk to our politicians about their concerns about copyright infringement. Nothing wrong with that.

It's also a fact that the CEO of Warner Bros, an alleged victim of the Mega Conspiracy, came to NZ to discuss difficulties concerning the filming of The Hobbit with John Key. Immediately after the meeting, it was announced The Hobbit would be filmed in NZ.

At the same time the SIS lifted any objection to Dotcom's residency and his application was approved. It could be complete coincidence. It could be an abuse of process. Or officials just doing their job, albeit somewhat ineptly.

Regardless of one's opinion of Dotcom, getting to the truth of these matters is really important. If John Key or any other politicians or fawning government officials were involved in some sort of tacit understanding regarding Dotcom's residency and the subsequent overreach in the raid and the spying, then proper process has indeed been abused.

One way to find out would be to see all the documents and communications involved. The SIS has made it clear that Dotcom is not a threat to national security, so you have to wonder why all the secrecy and when documents are released, why they are so heavily redacted.

Good to see some in the 4th estate are playing their part in the proper functioning of democracy and holding power to account.

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