Proiect

Who’s Watching
the
Spies?
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Who’s Watching
the
Spies?
Establishing Intelligence
Service Accountability
Edited by
HANS BORN, LOCH K. JOHNSON, IAN LEIGH
Foreword by
Ambassador Theodor H. Winkler
and Ambassador Leif Mevik
Potomac Books, Inc.

Washington, D.C.
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Copyright 䉷 2005 by Potomac Books, Inc.
Published in the United States by Potomac Books, Inc. (formerly Brassey’s, Inc.). All
rights reserved. No part of this book may be reproduced in any manner whatsoever
without written permission from the publisher, except in the case of brief quotations
embodied in critical articles and reviews.
The views and opinions expressed (unless otherwise declared) are those of the authors
and do not necessarily reflect those of the Geneva Centre for the Democratic Control of
Armed Forces or the Norwegian Parliamentary Intelligence Oversight Committee.
Library of Congress Cataloging-in-Publication Data

Born, H. (Hans), 1964–
Who’s watching the spies : establishing intelligence service accountability / Hans
Born, Loch K. Johnson,
Ian Leigh ; with a foreword by Theodor H. Winkler and Leif Mevik.
p. cm.
Includes bibliographical references and index.
ISBN 1-57488-896-X (hc : alk. paper)—ISBN 1-57488-897-8 (pbk. : alk. paper)
1. Intelligence service. I. Johnson, Loch K., 1942– II. Leigh, I. (Ian) III. Title.
JF1525.I6B67 2005
353.1⬘7235—dc22 2004027143
Printed in Canada on acid free paper that meets the

American National Standards Institute Z39-48 Standard.
Potomac Books, Inc.

22841 Quicksilver Drive
Dulles, Virginia 20166
First Edition
10 9 8 7 6 5 4 3 2 1
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Contents
Tables and Figures vii

Foreword by Ambassador Theodor H. Winkler and
Ambassador Leif Mevik ix
Acknowledgments xi
Acronyms xiii
PART 1
Introduction to Intelligence Accountability
1 More Closely Watching the Spies: Three Decades of
Experiences 3
Ian Leigh
2 The Politicization of Intelligence: Lessons from the
Invasion of Iraq 12
Peter Gill
3 Beyond the Nation State: The Influence of the European
Court of Human Rights on Intelligence Accountability 34
Iain Cameron
PART 2
The Revolution in Intelligence Accountability
4 Governing in the Absence of Angels: On the Practice of
Intelligence Accountability in the United States 57
Loch K. Johnson
5 Accountability of Security and Intelligence in the United
Kingdom 79
Ian Leigh
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vi Contents
6 Canada’s Long Road from Model Law to Effective

Oversight of Security and Intelligence 99
Stuart Farson
7 Intelligence and Accountability in a State without Enemies:
The Case of Norway 119
Fredrik Sejersted
PART 3
The Spread of Intelligence Accountability
8 An Unresolved Game: The Role of the Intelligence Services
in the Nascent Polish Democracy 145
Andrzej Zybertowicz
9 Executive and Legislative Oversight of the Intelligence
System in Argentina 160
Eduardo E. Estévez
10 The Role of the Security Services in Democratization: South
Korea’s Agency for National Security Planning 180
Jonathan Moran
11 Controlling the Hydra: A Historical Analysis of South
African Intelligence Accountability 199
Kevin O’Brien
PART 4
Conclusions
12 Balancing Operational Efficiency and Democratic
Legitimacy 225
Hans Born and Loch K. Johnson
Index 241
List of Contributors 255
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Tables and Figures
Figure 2.1 Model of Power/Knowledge Interaction 16

Figure 11.1 RSA Intelligence Structures 1996 206
Figure 11.2 RSA Intelligence Structures 2003 216
Table 12.1 Comparison of the External and Parliamentary
Oversight Bodies in the Eight Selected Countries 230
Table 12.2 Elements of Strong Oversight, Based on Expert
Assessment of the Eight Country Studies’ Authors 237
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Foreword
and Ambassador Leif Mevik
Intelligence services play an indispensable role in democratic societies. By

providing timely and effective intelligence, they shield a country from dangerous
threats to its vital security interests. Notably, after September 11, 2001, it became
widely acknowledged that a legitimate requirement for secrecy exists; that is, the
operational details of intelligence agencies may have to be restricted from public
knowledge. Yet the imperative for secrecy can also be abused and may lead to
unauthorized actions, inefficiencies, the misuse of power, or—as widely charged
in the United States and the United Kingdom during the second Persian Gulf
War—the politicization of intelligence agencies. Finding the right balance
between the need for secrecy, on the one hand, and the protection of the rule of
law, on the other hand, is a formidable challenge to all countries irrespective of
their constitutional differences.
Little systematic international comparison of democratic accountability over
intelligence services has been carried out, especially concerning the role of law-
makers in parliaments and other legislative institutions; as a result, no set of
international standards for democratic oversight of intelligence have evolved.
The Geneva Centre for the Democratic Control of Armed Forces, in close coop-
eration with the Norwegian Parliamentary Intelligence Oversight Committee and
the Human Rights Centre of the University of Durham, teamed up to initiate a
project which seeks to enhance understanding about this important subject by
providing insights into tried and tested legal and institutional arrangements for
effective intelligence accountability in eight different countries. This book, the
first result of this collaboration, addresses the central criteria that must be taken
into account by any nation or international organization that hopes to place
intelligence agencies under democratic supervision—a shared responsibility of
the executive, the legislative, and the judiciary. A sound system of checks and
balances is necessary, rather than an approach that makes the executive the
exclusive overseer of a nation’s secret agencies. Parliament and, to some extent,
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x Foreword
the judiciary must play vital roles in any serious attempt to balance the values of
security and liberty.
As an introduction to the country case studies, three thematic chapters lay out
an overview of the essential challenges facing the democratic governance of secret
agencies. By drawing upon the knowledge and expertise of established scholars
and practitioners in a wide range of nations around the world, including Argen-
tina, Canada, Norway, Poland, South Africa, South Korea, the United Kingdom,
and the United States, this volume brings together the rich experience of three
decades of intelligence accountability. The reader can benefit from a combina-
tion of best practices and legal procedures from countries with a variety of con-
stitutional and political backgrounds. This volume demonstrates that not only
do transition states face problems with the democratic accountability of intelli-
gence but also that many problems are common to established western democra-
cies as well.
By supporting this research, the Geneva Centre for the Democratic Control
of Armed Forces and the Norwegian Parliamentary Intelligence Oversight Com-
mittee hope to contribute to a substantive and informed debate among lawmak-
ers, administration officials, journalists, and academic experts on the role and
reformed nature of intelligence agencies in today’s democratic societies.

Director of the Geneva Centre for the Democratic
Control of Armed Forces
Geneva, April 2005
Ambassador Leif Mevik

Chairman of the Norwegian Parliamentary Intelligence
Oversight Committee
Oslo, April 2005
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Acknowledgments
The study of intelligence oversight calls for connecting the seemingly diver-
gent worlds of democracy and security. From an academic point of view, it
necessitates an interdisciplinary research that combines political science, law,
security studies, and perhaps the understanding of human behavior as well. From
an institutional point of view, the parliament is a public forum of open debates
and discussion, while the intelligence and security agencies are often regarded as
secretive organizations. This volume presents the findings of comparative
research into the intelligence oversight trends, frameworks, and practices in vari-
ous democracies.
Many people supported us in bringing these worlds together and we are
delighted to acknowledge them here. In particular, we are grateful to Amb.
Theodor H. Winkler, director of the Geneva Centre for the Democratic Control
of Armed Forces (DCAF) and Amb. Leif Mevik, chairman of the Norwegian Par-
liamentary Intelligence Oversight Committee. They provided us with the oppor-
tunity and resources to undertake this research project. We greatly appreciated
the cordial and warm welcome of the Norwegian Parliamentary Oversight Com-
mittee at the international workshop ‘‘Making Intelligence Accountable’’ in Sep-
tember 2003.
We are very much indebted to Thorsten Wetzling, our main editorial assistant
who was part of the project from the very beginning, and to Ingrid Thorburn for
her efficient and timely help. Furthermore, we welcome the assistance of Wendy
Robinson and Eden Cole in the realization of the manuscript. We would like to
thank all of them and to express our special gratitude to the book’s contributors,
who did a wonderful job in meeting the great many demands the editors placed
on them.
April 2005
Hans Born, Geneva, Switzerland
Loch K. Johnson, Athens, USA
Ian Leigh, Durham, UK
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Acronyms
ABW Agencja Bezpieczenstwa Wewnetrznego (Agency for Internal

Security) (Poland)
AMIA Asociacion
´ Mutual Israelita Argentina (Argentina)
ANC African National Congress (South Africa)
ANSP Agency for National Security Planning (South Korea)
ASIO Australian Security Intelligence Organisation (Australia)
ASIS Australian Secret Intelligence Services (Australia)
AW Agencja Wywiadu (Foreign Intelligence Agency) (Poland)
BAI Bureau of Audit and Inspection (South Korea)
BCW Binary Chemical Warhead
BOR Biuro Ochrony Rzadu (Government’s Bureau for Protection)
(Poland)
BOSS Bureau of State Security (South Africa)
BverfG Bundesverfassungsgericht (Federal Constitutional Court)
(Germany)
CCSI Cabinet Committee on Security and Intelligence (South Africa)
CIA Central Intelligence Agency (USA)
CODESA Conference on a Democratic South Africa (South Africa)
COE Council of Europe
CSE Communications Security Establishment (Canada)
CSIS Canadian Security Intelligence Service (Canada)
DCI Director of Central Intelligence (USA)
DIS Defence Intelligence Staff (UK)
DMI Directorate of Military Intelligence (South Africa)
DPRK Democratic Peoples Republic of Korea
DSC Defence Security Command (South Korea)
DSD Defense Signals Directorate (Australia)
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
ETS European Treaty System
EU European Union
FAC Foreign Affairs Committee (UK)
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xiv Acronyms
FBI Federal Bureau of Investigation (USA)

FISA Foreign Intelligence Surveillance Act (USA)
GCHQ Government Communications Headquarters (UK)
GNU Government of National Unity (South Africa)
GOP Grand Old Party (USA)
HPSCI House Permanent Select Committee on Intelligence (USA)
IFP Inkatha Freedom Party (South Africa)
IG Inspector-General
INR Bureau of Intelligence and Research (US)
IOB Intelligence Oversight Board (USA)
IOC Interception of Communications Act (UK)
ISA Intelligence Services Act (UK)
ISC Intelligence and Security Committee (UK)
JCIC Joint Co-coordinating Intelligence Committee (South Africa)
JSCI Joint Standing Committee on Intelligence (South Africa)
JIC Joint Intelligence Committee (UK)
KCIA Korean Central Intelligence Agency (South Korea)
MEC Members of Executive Councils (South Africa)
MI5 Security Service (UK)
MI6 or SIS Secret Intelligence Service (UK)
NCIS National Crime Investigation Service (South Africa)
NCPS National Crime Prevention Strategy (South Africa)
NGA National Geo-Spatial Agency (USA)
NIA National Intelligence Agency (South Africa)
NICOC National Intelligence Co-ordinating Committee (South Africa)
NIE National Intelligence Estimates (USA)
NIK Najwyzsza Izba Kontroli (Chamber of Control) (Poland)
NIS National Intelligence Service (South Korea)
NPA National Police Agency (South Korea)
NRO National Reconnaissance Office (USA)
NSA National Security Agency (USA)
NSL National Security Law (South Korea)
ONTA Office of National Tax Administration (South Korea)
OSP Office of Special Plans (USA)
PAC Pan African Congress (South Africa)
PASS Pan African Security Service (South Africa)
PCO Privy Council Office (Canada)
PFIAB President’s Foreign Intelligence Advisory Board (USA)
PSPD Peoples Solidarity for Participatory Democracy (South Korea)
RCMP Royal Canadian Mounted Police (Canada)
RIPA Act Regulation of Investigative Powers Act (UK)
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Acronyms xv
RSA Republic of South Africa

SACP South African Communist Party (South Africa)
SANDF South African National Defence Force (South Africa)
SASS South African Secret Service (South Africa)
SB Sluzba Bezpieczenstwa (Civilian Security Service) (Poland)
SIRC Security Intelligence Review Committee (Canada)
SSC State Security Council (South Africa)
SSCI Senate Select Committee on Intelligence (USA)
TEC Transitional Executive Council (South Africa)
UAV Unmanned Aerial Vehicle
UK United Kingdom
UOP Urzad Ochrony Panstwa (Office of State Protection) (Poland)
USA United States of America
WMD Weapons of Mass Destruction
WSI Wojskowe Sluzby Informacyjne (Military Information Services)
(Poland)
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PART 1
Introduction to Intelligence
Accountability
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1
More Closely Watching the Spies:
Three Decades of Experiences
Ian Leigh
T his chapter introduces the studies that follow on specific themes in intelli-
gence oversight and how it operates in different countries. The aim is to pro-
vide a framework for thinking about oversight by looking at some of the major
causes of reform and at some recurring issues addressed by reforms of intelli-
gence oversight.
There could scarcely be a more appropriate time to consider the oversight of
security and intelligence. The debate about oversight of intelligence agencies by
governments and legislatures began in the 1970s and is now in its third decade. A
body of comparative experience has amassed that can yield more general lessons,
especially for states now embarking on the process of reform. Moreover, the
changed climate since September 11, 2001, has underlined the urgent need to
somehow balance our simultaneous commitments to security and democracy.
This can be achieved only if new powers to meet the new security challenges are
accompanied by a renewed emphasis on the oversight of security and intelligence
agencies.
A Brief History: From 1975 to 9/11

The choice of 1975 as the beginning of intelligence oversight might seem arbi-
trary. Certainly there was legislation earlier, notably in the United States and
Germany (and a parliamentary committee in the Netherlands since 1952). The
mid-1970s, however, mark the beginning in liberal democratic systems of expo-
sures concerning abuses by security and intelligence agencies, which have proved
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4 Who’s Watching the Spies
to be a major catalyst for reform across the globe. Following the United States,
Australia and Canada legislated for intelligence oversight in 1979 and 1984.1
Having commenced in the Anglo-Saxon world (though reform would not reach
the UK until 1989; see chapter 5), a wave of reform spread to Europe in the 1980s
and 1990s, with reforms in Denmark in 1988, Austria in 1991, Romania in 1993,
Greece in 1994, Norway in 1996, and Italy in 1997.2 These developments have
attracted support from the Parliamentary Assemblies of the Council of Europe
and of the Western European Union.3 Progress outside Europe has been slower,
although there are exceptions, as the chapters in this volume dealing with over-
sight in Argentina, South Africa, and South Korea demonstrate.
The congressional investigations by the Church and Pike Committees, which
documented systematic abuses both in the United States and abroad by that
country’s intelligence agencies, began a pattern of exposure, report, and strength-
ening of oversight that has been repeated in many countries since.4 These include
the McDonald Commission in Canada (1977–80), the Royal Commission under
Justice Hope in Australia, and the Lund Commission in Norway (1996).5 A com-
mon theme was the growing recognition among the public and legislators that
security and intelligence agencies not only protect but can also threaten democ-
racy. The threat may come from invasions of privacy by information gathering
and surveillance and direct attempts to manipulate the political process; in the
extreme, by assignations and coups in foreign countries; but also by control of
information, infiltration of political movements, pressure groups, trades unions,
and so on.
Apart from scandal, three other recurring causes of reform can be identified,
in some instances overlapping: constitutional reform (e.g., Canada and the
Republic of South Africa, described in this volume), transition from military to
civilian rule (e.g., Argentina and South Korea, represented in this volume), and
legal challenges (UK, Netherlands, and Romania).
Constitutional reform is perhaps most marked as a cause of reform in the case
of post-apartheid South Africa (see chapter 11) and in the transitional states in
Southern and Eastern Europe following the collapse of the Soviet bloc from 1989
onwards. Civil-military relations are a recurring theme of these new European
constitutions.6 A key feature of democratization in Eastern Europe has been the
vesting of key decisions in defense and security with parliaments, such as the
budget approval, declaring or confirming states of emergency, the declaration of
war and peace, and control over the appointment of defense chiefs. As a part of
the civilianization process it is common also to find the president (chief execu-
tive) designated as commander in chief of the armed forces.7
In transitional states the domestic security agency has often been tainted by a
repressive past, and many of these states codified in law the constitutions of their
security forces as part of a package of constitutional reforms. Some recent exam-
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More Closely Watching the Spies 5
ples include legislation in Slovenia, Lithuania, Estonia, and South Africa8 and,
most recently, Bosnia-Herzegovina.9
The absence of an explicit legal basis for the work of its security and intelli-
gence agencies may bring a state into conflict with constitutional or human rights
norms, especially in the case of powers affecting individuals, such as surveillance.
This has been of particular importance in leading to reform in European states
that are parties to the European Convention on Human Rights (see chapter 3).
In several states aspects of the legal basis have been found to be inadequate.10
The European Court of Human Rights refers additionally to the ‘‘quality of law’’
test—this requires the legal regime to be clear, foreseeable, and accessible. This
test puts a particular responsibility on legislatures when establishing the legal
framework for security and intelligence agencies.
Finally, after 9/11 the phenomenon described as ‘‘superterrorism’’11 is pro-
ducing some important changes. There are two discernible legal and administra-
tive responses. First, there has been the blurring of the legal boundaries between
war and peace, with resort to wartime powers, for instance the detention of
‘‘unlawful combatants’’ at the Guantanamo Naval Base and detention of foreign
nationals under the UK Anti-Terrorism Crime and Security Act 2001. Second is
the creation of new institutions to combat the threat. In the United States a single
Department of Homeland Security and the Homeland Security Council have
been created.12 In the UK the Joint Terrorism Analysis Centre, an interagency
joint working group on terrorism and threat assessment, has been established.13
Following the Madrid bombing in March 2004, EU ministers have discussed the
establishment of a European Intelligence Coordinator to facilitate the sharing of
counterterrorist intelligence among states.14
This combination of wartime responses and organizational reform is poten-
tially dangerous since it undermines institutional barriers put in place over the
last three decades in many countries to protect against the abuse of security pow-
ers. It is vital that responses to ‘‘superterrorism’’ are accompanied by attendant
reforms in the oversight regime to prevent black holes emerging in which the
democratic writ does not pertain.15
Common Concerns
Three common concerns in the design of oversight procedures can be mentioned:
the need to establish mechanisms to prevent political abuse while providing for
effective governance of the agencies; upholding the rule of law; and ensuring the
proportionate use of exceptional powers in order to protect civil rights.
So far as the first point is concerned, there are twin and opposing dangers
here—both of too much or too little executive control. Too little control by the
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executive may be antidemocratic: intelligence becomes a law unto itself—a ‘‘no

go’’ zone. Moreover, without information or control ministers cannot be properly
accountable to the public for this area of work. Where there is too much executive
control the risk is that governments may be tempted to use security agencies or
their exceptional powers or capacities to gather information for the purposes of
domestic politics—for instance, to discredit domestic political opponents.
There is a delicate balance between ensuring proper democratic control of the
security sector and preventing political manipulation. One method is to provide
legal safeguards for agency heads through security of tenure, to set legal limits
on what the agencies can be asked to do, and to establish independent mecha-
nisms for raising concerns about abuses. Where staff from security agencies fear
improper political manipulation it is vital that they have available procedures
with which to raise these concerns outside the organization. Whistle-blowing or
grievance procedures are therefore significant.
Overall, the objective is that security and intelligence agencies should be insu-
lated from political abuse without being isolated from executive governance.
A second common theme of much legislation in this field has been to curb
lawlessness—both in the sense of the lack of a legal basis for the agencies’ work
and also of lawbreaking by the agencies. Legislation gives security and intelli-
gence agencies legitimacy and enables democratic representatives to address the
principles that should govern this important area of state activity and to lay down
limits to the work of such agencies. As in other areas, one key task of the legisla-
ture is to delegate authority to the administration but also to structure and con-
fine discretionary powers in law.
A third recurring issue concerns the appropriate and graduated use of the
exceptional powers with which these agencies are often entrusted, such as sur-
veillance and the gathering of personal data. Proportionality is the name given
in European law to a principle that is recognized more widely—the reasonable
relation of ‘‘means’’ to ‘‘end’’ (see the discussion by Cameron in chapter 3).
North Americans, for example, talk of the ‘‘least restrictive alternative’’ in rela-
tion to laws interfering with individual rights. Incursions on rights can be justi-
fied by public interests such as national security—but only to the extent
necessary. ‘‘National security’’ should not be a carte blanche.
Practical guidance on what proportionality means was given by the Canadian
McDonald Commission, which proposed that investigative techniques should be
proportionate to the security threat under investigation and weighed against the
possible damage to civil liberties and democratic structures; less intrusive alter-
natives should be used wherever possible; and control of discretion should be
layered so that the greater the invasion of privacy, the higher the level of neces-
sary authorization.16
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Oversight Issues
‘‘Oversight’’ is a means of ensuring public accountability for the decisions and
actions of security and intelligence agencies. It suggests something looser than con-
trol in the sense of day-to-day management of the operations of the agencies. The
form varies according to the body involved in oversight, particularly whether it is
exercised by the government (executive) or the legislature (parliament). Parlia-
mentarians typically exercise oversight by critical analysis of policy, often ex post
facto. Although governments should have more direct involvement in authorizing
and setting the policy context for the actions of security and intelligence agencies,
it is nevertheless appropriate to refer to this also as ‘‘oversight.’’ Doing so empha-
sizes that agencies in this sphere should owe their allegiance to the state or the
constitution and so should have a certain distance from everyday party politics.
In considering oversight, a number of initial questions of design arise: To
whom should the agency be accountable (the government, the legislature, or
some independent body or person)? For what (expenditure, policy, and opera-
tions)? And when (before carrying out operations or after)? Operations are
plainly highly sensitive and yet may raise policy questions that are areas of legiti-
mate oversight concern. If an oversight body has foreknowledge of sensitive or
controversial operations this will hamper its ability to dispassionately review
them later. The long-term nature of security operations makes a separation of
review and current activities difficult in practice, however.
Further choices concern the objective or standard of oversight, whether it is
to check efficiency or effectiveness, legality or proportionality. This in turn will
color the procedures involved: policy analysis or factual investigation, whether
the oversight body is self-tasking, commissioned by the executive or the legisla-
ture, or has jurisdiction to receive complaints. Parliamentarians are perhaps best
employed in policy oversight, rather than detective work. More investigative
processes are undertaken in some countries by independent inspectors-general
or commissioners.
Constitutional traditions, of course vary. Among the country studies repre-
sented in this volume are parliamentary systems (Canada, Norway, and the UK),
presidential systems (such as the United States, Argentina, and South Korea) and
mixed systems (for example, Poland). Whatever the tradition, it is now common-
place to find a mix of legislative and executive oversight. Providing more than one
device for oversight—for example, a parliamentary committee and an inspector-
general or a judicial commissioner—institutionalizes checks and balances.
A mix of oversight methods may also act as a guarantee where parts of the
machinery oversee specific institutions, such as the security service, and other
parts oversee specific functions, such as telephone tapping. Whereas agency over-
sight can be sidestepped if intelligence work is undertaken by other bodies, over-
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sight that is purely functional runs the risk of being seen out of context. Where
there is a mix of the two methods mistakes are less likely to go undetected.
Scrutiny of the security sector cannot remain the exclusive preserve of the
government without inviting potential abuse. It is commonplace, aside from
their role in setting the legal framework, for parliaments to take on the task of
scrutinizing governmental activity. In a democracy no area of state activity
should be a ‘‘no-go’’ zone for the legislature, including the security sectors. Par-
liamentary involvement gives legitimacy and direct democratic accountability. It
can help to ensure that the security organizations are serving the state as a whole
and protecting the constitution rather than narrower political or sectional inter-
ests. Proper control ensures a stable, politically bipartisan approach to security
that is good for the state and the agencies themselves. The involvement of parlia-
mentarians can also help ensure that the use of public money is properly author-
ized and accounted for.
There are dangers, however, in legislative scrutiny. The security sector may be
drawn into party political controversy—an immature approach by parliamentar-
ians may lead to sensationalism in public debate and to wild accusations and
conspiracy theories being aired under parliamentary privilege. As a consequence
the press and public may form an inaccurate impression and a corresponding
distrust of parliamentarians by security officials may develop. Where leaks occur
of sensitive material to which legislators have been given privileged access these
may compromise the effectiveness of military or security operations and discour-
age officials from being candid.
Effective scrutiny of security is painstaking and unglamorous work for politi-
cians, necessarily conducted almost entirely behind the scenes. Sensitive parlia-
mentary investigations require in effect a parallel secure environment for
witnesses and papers. The preservation of secrecy may create a barrier between
those parliamentarians involved and the remainder. They may be envied or dis-
trusted by colleagues because of privileged access to secret material. It is therefore
essential to involve a cross-section who can command widespread trust and pub-
lic credibility.
Agencies: Design and Accountability

Few states have the luxury of starting with an entirely clean page on which to
write security sector reform. Even in those countries where there has been dra-
matic constitutional change, such as South Africa or Eastern European states,
there may be strong reasons to maintain some continuity with the security appa-
ratus of an earlier regime. To speak therefore of questions of ‘‘agency design’’ is
somewhat misleading.
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Nevertheless, there are some important questions—about how many security

and intelligence agencies exist, and the relationships between them and with the
military and the police—that are rarely confronted publicly.
It is clear that the greater the number of agencies, the harder effective over-
sight will be. Moreover, where some agencies are under close democratic scrutiny
and others are not there may be a natural tendency for dubious activities to grav-
itate towards the less-regulated part of the sector. Many states have now legis-
lated for their domestic security agencies, mostly in the last two decades. There
are fewer reasons to place a country’s own intelligence agency on a legal basis—
the UK was unusual in doing so in the case of the Secret Intelligence Service
(MI6) in the Intelligence Services Act 1994. Again, only a few states have legis-
lated for military intelligence (see, for example the Netherlands, Intelligence and
Security Services Act 2002, Art. 7) or intelligence coordination (Article 5 of the
Netherlands Act; National Strategic Intelligence Act 1994 of the Republic of
South Africa).
Whether security and intelligence or espionage are treated as discrete func-
tions has important consequences, as does whether they are distinct from polic-
ing. The boundary between intelligence and security is significant because
traditionally security agencies have been subject to greater controls for the pro-
tection of the state’s own citizens and because they operate within domestic bor-
ders. The activities of an intelligence agency, on the other hand, are frequently
illegal when it is operating in foreign territory. Where security and intelligence
are combined in a single agency there is a fear that questionable techniques or
operations may be undertaken domestically because much intelligence-related
work is outside the law in any event. A similar difficulty arises from combining
policing and security—that ‘‘ordinary’’ policing will be affected by the excep-
tional methods; for instance, use of agents employed by security agencies. The
point is even stronger concerning separation of military intelligence.
A further question is whether or not the agency is to be given executive pow-
ers—for example, to search premises or to carry out arrests and questioning of
suspects—or whether its function should be purely advisory. A body that gathers
evidence in preparation for court proceedings is likely to behave quite differently
from one that is concerned merely with obtaining the best available intelligence,
regardless of the means. This is particularly significant in the realm of counter-
terrorism.
Conclusion
In modern states the security sector plays a vital role in serving and supporting
government in its domestic, defense, and foreign policy by supplying and analyz-
................. 11310$ $CH1 05-16-05 11:36:25 PS PAGE 9

ing relevant intelligence and countering specified threats. It is essential, however,

that the agencies and officials who carry out these roles are under democratic
control through elected politicians, rather than accountable only to themselves:
it is elected politicians who are the visible custodians of public office in a democ-
racy.
The chapters that follow are on specific themes in oversight and how it oper-
ates in a variety of countries, representing different backgrounds and constitu-
tional traditions. The remainder of Part 1 considers two important themes: the
growing politicization of intelligence and supranational influences on account-
ability. Part 2 comprises a series of studies of the operation of intelligence over-
sight in what can be termed ‘‘old’’ democracies—the United States, UK, Canada,
and Norway. Part 3 looks at the spread of oversight to a range of transitional
and new democracies: Poland, Argentina, South Africa, and South Korea. The
concluding chapter draws together lessons from this comparative survey in
readiness for a fourth decade of intelligence oversight.
Notes
1. Australian Security Intelligence Organization Act 1979 (Cth) and Canadian Secur-
ity Intelligence Service Act 1984, respectively. L. Lustgarten and I. Leigh, In from the Cold:
National Security and Parliamentary Democracy (Oxford: Clarendon Press, 1994) is a sur-
vey of accountability in Australia, Canada, and the UK.
2. For other comparative reviews see: Jean-Paul Brodeur, Peter Gill, and Dennis Töllb-
org, Democracy, Law, and Security: Internal Security Services in Contemporary Europe
(Aldershot: Ashgate, 2003); Assembly of the WEU, Parliamentary oversight of the intelli-
gence services in the WEU countries—current situation and prospects for reform (Document
A/1801, 4 December 2002). Available at: http://assembly-weu.itnetwork.fr/en/documents/
sessions_ordinaires/rpt/2002/1 801.html (searched on March 25, 2004).
3. Recommendation 1402/1999 of the Council of Europe Parliamentary Assembly;
and Western European Union Assembly Resolution 113, adopted on December 4, 2002
(ninth sitting).
4. U.S. Senate, 1976. Final Report. Select Committee to Study Governmental Opera-
tions with Respect to Intelligence Activities (the Church Committee), 94th Cong., 2d
Sess., Rept. 94–755 (May). Loch K. Johnson, A Season of Inquiry (Lexington: University
Press of Kentucky, 1985).
5. Respectively, Government of Canada, Commission of Inquiry Concerning Certain
Activities of the Royal Canadian Mounted Police, Second Report, Freedom and Security
under the Law (2 Volumes, Hull: Ministry of Supply and Services Canada, August 1981)
[The McDonald Commission Report]; Royal Commission on Intelligence and Security,
Fourth Report (Canberra, 1977) [The Hope Report]; Dok. nr. 15 (1995–96) [The Lund
Report].
6. See Biljana Vankovska, ed., Legal Framing of the Democratic Control of Armed Forces
and the Security Sector: Norms and Reality/ies (Belgrade, 2001).
7. See, for example, Article 42 of the Latvian Constitution; Article 100 of the Croatian
................. 11310$ $CH1 05-16-05 11:36:25 PS PAGE 10

Constitution; Article 100 of the Bulgarian Constitution; Article 106 of the Ukrainian Con-
stitution.
8. Slovenia: Law on Defense, 28 December 1994, Arts. 33–36; The Basics of National
Security of Lithuania, 1996; Estonia: Security Authorities Act passed December 20, 2000;
RSA, Intelligence Services Act, 1994 (as amended).
9. Law on the Intelligence and Security Agency of Bosnia and Herzegovina, passed in
March 2004.
10. Harman and Hewitt v. UK (1992) 14 EHRR 657; V and others v. Netherlands, Com-
mission report of 3 December 1991; Rotaru v. Romania, Appl. No. 8341/95, May 4, 2000.
11. Lawrence Freedman, ed., Superterrorism: Policy Responses (Oxford; Blackwell,
2002).
12. U.S. Homeland Security Act 2002.
13. Intelligence and Security Committee, Annual Report for 2002–3, Cm. 5837 (June
2003), para. 62.
14. ‘‘EU to appoint anti-terror ‘tsar.’ ’’ Available at: http://news.bbc.co.uk/1/hi/world/
europe/3524626.stm (searched on 25 March 2004).
15. See Harold Hongju Koh, ‘‘The Spirit of the Laws,’’ Harvard Journal of International
Law 43 (2002): 23.
16. McDonald Report, vol. 1, 513 ff.
................. 11310$ $CH1 05-16-05 11:36:26 PS PAGE 11

2
The Politicization of Intelligence:
Lessons from the
Invasion of Iraq1
Peter Gill
T he intelligence activities of states—whether democratic or not—are inescap-

ably bound up with politics. This is true whether we adopt the broadest
definition of intelligence as knowledge generated for the benefit of decision mak-
ers in such areas as the economy, education, and environment or a narrower
definition that limits the field to knowledge generated specifically for national
security purposes. When governments gather information they do so in order to
inform and pursue policies, to cement their rule, and to further their interests
and designs at home and abroad. All these are core political activities. Therefore,
in this sense, all intelligence is ‘‘politicized,’’2 but, if it is, how can we explain
the major controversies that have erupted in those countries that made up the
‘‘coalition’’ that invaded Iraq in March 2003? This chapter seeks to examine this
question with particular reference to the UK and the United States.
This is not the first time that major powers have gone to war in controversial
circumstances (for example, Vietnam, Grenada, Falklands, Kosovo) but there has
never been such widespread debate with respect to two major issues: the quality
of the intelligence with respect to the perceived threat—both the capabilities and
intentions of Saddam Hussein—and the extent to which the intelligence process
was driven by political imperatives. Certainly, what we are seeing is in part the
consequence of the general democratization of intelligence that has occurred
throughout the world since the 1970s. Two aspects of these changes are especially
relevant: the removal of the blanket of total secrecy that had concealed intelli-
gence matters3 and the growth of external oversight committees (some parlia-
— 12 —
................. 11310$ $CH2 05-16-05 11:36:27 PS PAGE 12

The Politicization of Intelligence 13
mentary, some not). Taken together, these have encouraged increased media
attention to intelligence and have required of governments more complex strate-
gies for dealing with intelligence issues. Where once they would simply refuse
comment, now they have to engage in some explanation and debate.
Power and Professionalism

In order to embark on an analysis of the relation between politics and intelli-
gence, we need some clear benchmarks. In the broadest terms, since the mid-
nineteenth century liberal democratic states have sought to organize themselves
on the basis of a division between periodically elected governments and officials
who are appointed and who serve regardless of the political complexion of the
government. Although intelligence agencies have often developed outside of the
‘‘normal’’ channels, their personnel are part of the permanent bureaucracy. As
such, the ideal type of their behavior is the ‘‘rational’’ model of the disinterested
expert or administrator whose product is determined by ‘‘professional’’ rather
than ‘‘political’’ criteria. Thus, intelligence is a resource that can support the
making and implementation of policy.
‘‘Rational’’ models of decision making and power in organizations are, how-
ever, too simplistic: they assume away many of the most central features of politi-
cal life. Power operates in, broadly, two ways: in the first, ‘‘actors’’ seek to
influence, persuade, or coerce others into behaving in ways that they would not
otherwise. This power is ‘‘zero sum’’—the gains of one actor are balanced by the
losses of the other. The problem for researchers is that such exercises of power
might be traceable via documentary trails but often take place in secret and may
be reconstructed, if ever, only with the greatest difficulty. For example, by the
‘‘law of anticipated reactions’’ an official may behave in a particular way antici-
pating how superiors would react were s/he to behave otherwise; thus the
‘‘power-holder’’ does not always have to act.4 But, theoretically, these exercises
of power or influence are observable.5
A ‘‘second stream’’6 of power is less concerned with the power of one actor
‘‘over’’ another, but with power as an ability to make things happen. This is a
‘‘non zero sum’’ view of power; it focuses less on specific holders and more on
the strategies and techniques of power. Various theorists7 have developed this
view of power in which cultural and ideological factors are central to the con-
struction of consent around particular ways of thinking. Thus the expertise that
derives from a particular form of knowledge can provide the basis for empower-
ment (for some and disempowerment for others) and is an important adjunct to
the (mainstream) power that derives from occupying a position of command.
This view of power is difficult to deploy in research because of the subtlety with
................. 11310$ $CH2 05-16-05 11:36:28 PS PAGE 13

which it is often manifest. For example, if different groups of ministers and offi-
cials share a common set of assumptions about the nature of threats and ‘‘accept-
able’’ ways of responding to them, it is futile to examine precisely who ‘‘took’’
particular decisions.
Professional power is founded on exclusive knowledge claims and, where pro-
fessionals work within some private or public bureaucracy, they can act as a
counterweight to the power of ‘‘command’’ inherent in the senior positions of
the hierarchy. To the extent that politicians have no basis on which to challenge
the knowledge claims of the professionals, they have to trust them or, if they
ignore them, take the risk of policy failure.8 Intelligence is a profession in which
specialist ‘‘knowledge’’—for example, ‘‘tradecraft’’—is jealously guarded. It incor-
porates varieties of technological expertise, for example, regarding the manufac-
ture, storage, and deployment of nuclear, biological, and chemical weapons,
which political superiors are no more likely to possess than other lay members
of society. Central to this discussion is the tension between, on the one hand, the
needs for policy making (decision) and implementation (command) or power
and, on the other, the knowledge claims on which they may be based.
Thus, we can develop a number of hypothetical possibilities of the relation-
ship between intelligence (knowledge) and policy (power) that, in turn, can
guide us through the fog that has enveloped the controversies regarding the inva-
sion of Iraq. At the ‘‘professional’’ end of the spectrum is the ‘‘purest’’ form of
relation in which governments react to the intelligence that is presented to them;
if this requires the government to change its domestic or foreign policy, then so
be it. Along the spectrum is space for various relationships between knowledge
and power, while at the ‘‘politicized’’ end, the knowledge-power connection may
actually be reversed. Here the will to act pre-exists the search for information
and the significance of what is collected will be judged in terms of its ability to
support the chosen course of action rather than to inform it. Here, the relation
between knowledge and power is like that of lamppost and drunk—to provide
support, not illumination. Here, intelligence is not the reason for policy but pro-
vides a post hoc rationalization for it; it may temporarily empower governments
but disempowers the public if they are misled.
Information Control
However, the complexities of intelligence and politics cannot be confined to a
one-dimensional spectrum between the ‘‘politicized’’ and the ‘‘professional’’—
other factors are in play. A more inclusive model of ‘‘information control’’9
incorporates four discrete processes: gathering, evaluation, influence, and
................. 11310$ $CH2 05-16-05 11:36:28 PS PAGE 14

secrecy. (Clearly, these mirror the main activities of intelligence agencies them-
selves: surveillance, analysis, and dissemination of intelligence, all protected by
secrecy.) Gathering information is the core business of intelligence agencies and,
indeed, of any other organization that seeks to inform itself in order to further
the organizational mission. Analysis or evaluation is the process by which sense
is made of what is gathered. ‘‘Facts’’ do not ‘‘speak for themselves’’—difficult
judgments of validity and reliability have to be made and information placed in
the broader context of the organizational ‘‘store’’ of knowledge.
Information can influence others only if it is disseminated. Even the simple
decision whether or not to pass on ‘‘intelligence’’ to another person or organiza-
tion will have consequences for power. There is an important distinction between
intelligence disseminated that is believed to be true and thus amounts to a form
of ‘‘education’’ and a situation in which the intelligence disseminated is believed
to be misleading; in this case deception or manipulation are more appropriate
terms.10 ‘‘Secrecy’’ distinguishes the intelligence business from knowledge man-
agement elsewhere in government, but it is clear that ‘‘commercial confidential-
ity,’’ ‘‘personal privacy,’’ and group ‘‘loyalty’’ all establish similar processes of
secretiveness around information control processes.
So far we have discussed the politics (power)–intelligence (knowledge) rela-
tionship primarily in terms of the interaction between intelligence agencies and
government. Two other ‘‘institutions’’ are centrally involved in the politics–
intelligence relationship: oversight bodies and the media. The former include
both those permanent committees now established in most liberal democracies
and ad hoc inquiries and commissions of which several have been instituted
regarding the Iraq controversy. For present purposes the UK reports of the Intel-
ligence and Security Committee,11 the Commons’ Foreign Affairs Committee,12
the Hutton Inquiry,13 the Butler Review,14 and the work of the U.S. congressional
intelligence committees are most relevant. The media is the primary mechanism
by which governments, agencies (to a lesser extent), and oversight bodies seek to
transmit information to the public. However, the media are much more than
passive transmitters; because of their ‘‘gathering’’ and ‘‘evaluating’’ activities they
are important ‘‘players.’’ Therefore, there are potentially six sets of power/knowl-
edge interaction to be studied within which each of these actors15 will deploy the
four methods of information control (see figure 2.1).
Of course, the relationships between these four different actors are different
in many respects; some are formally subordinate to others and some seek the
‘‘public interest,’’ while others seek profit; some are elected, and others are not;
and the precise organizational architecture varies between countries. But, not-
withstanding these differences, it is suggested that the relationships can be use-
fully generalized in terms of power/knowledge.
................. 11310$ $CH2 05-16-05 11:36:29 PS PAGE 15

oversight bodies
3 6
4
government media
(executive) 2
5
1
agencies
Figure 2.1 Model of Power/Knowledge Interaction
U.S. and UK Intelligence and the Invasion of Iraq

There is insufficient space to discuss the six dimensions in full; rather, the first
three are examined in detail and some general observations are made on the
position of the media. The main controversies boil down to this question: did
the U.S. and UK governments develop intelligence that justified their public
position that the regime of Saddam Hussein posed such a threat to regional and/
or international stability as to justify his immediate removal?
Government and the Agencies

The process by which intelligence reaches government is crucially different
between the UK and the United States. Essentially, the Joint Intelligence Com-
mittee (JIC) in the UK carries out all source assessments based on what the sepa-
rate agencies provide.16 Consisting of the heads of agencies and senior officials,
its object at its weekly meetings is to produce a consensus. This reflects rather
well the ‘‘village’’ atmosphere pervading the upper echelons of Whitehall and is
in stark contrast to that in Washington, D.C., where a larger number of agencies
(reflecting the highly fragmented structure of U.S. government in general) gener-
ate a greater variety of opinions that may well be reflected in dissenting footnotes
to National Intelligence Estimates (NIE), as in the central one relating to Iraq’s
................. 11310$ $CH2 05-16-05 11:36:30 PS PAGE 16

weapons of mass destruction (WMD) in October 2002. The task of government

may be simpler in the UK, whereas U.S. policy makers can cherry-pick their pre-
ferred interpretations; however, it cannot be concluded that the latter is politi-
cized and the former not. If the ideal relationship is one in which intelligence
professionals provide the best information to governments who then decide what
to do with it, in the view of a former Chair of the UK JIC, this is not what hap-
pened with respect to Iraq:
[JIC] stepped outside its traditional role. It entered the prime minister’s magic
circle. It was engulfed in the atmosphere of excitement that surrounds decision-
making in a crisis. Whether they realized it or not, its members went beyond assess-
ment to become part of the process of making and advocating policy. That inevita-
bly undermined their objectivity.17
There has been similar controversy in the United States, for example, as to the
extent to which analysis and assessment were influenced by the greater political
pressure on Iraq emanating from the Bush administration, especially after 9/11.
A recent Carnegie Foundation study provides a systematic review and identifies
the strengthening of conclusions in the October 2002 NIE compared with its
predecessors: the later NIE concluded that Iraq had restarted its nuclear program
and had ‘‘high confidence’’ that it had stockpiles of chemical and biological
weapons. Of course, this might have accurately reflected a flow of new intelli-
gence to this effect but, given the decline in information once the UN inspectors
withdrew from Iraq in 1998, the authors conclude, rather, that it suggests undue
influence by policymakers’ views.18
In January 2004 David Kay resigned as head of the Iraqi Survey Group—
whose job it was to search for evidence of WMD in Iraq—and in subsequent
congressional testimony19 admitted that intelligence agencies had failed to recog-
nize that Iraq had all but abandoned its efforts to produce large quantities of
chemical and biological weapons after 1991. An institutional post mortem had
actually already started: by August 2003 George Tenet, U.S. director of central
intelligence, had commissioned internal reviews of tradecraft and the work lead-
ing up to the October 2002 NIE. Tenet acknowledged that close examination was
needed of the extent to which factors such as the history of deception and denial
by Saddam Hussein and the very absence of information in key areas, especially
after 1998, contributed to a failure to test prevailing assumptions. ‘‘We did not
have enough of our own human intelligence,’’ said Tenet, commenting on the
risks inherent in information from defectors and indirect information from part-
ner agencies.20
Both Kay and Tenet denied that CIA analysts had been subjected to political
pressure in the run-up to the October 2002 NIE, but others have argued other-
................. 11310$ $CH2 05-16-05 11:36:31 PS PAGE 17

wise. Kenneth Pollack, a CIA analyst for the Persian Gulf who later worked for
the NSC under Clinton, disputes that the strength of the October 2002 NIE can
be put down solely to political pressure because it reflected what the agencies had
been saying for some years (contra the Carnegie investigation). However, Pollack
does acknowledge that the Office of Special Plans (OSP)21 set up in the Pentagon
was an attempt to manipulate intelligence. Ironically, given the soul searching
now underway in the CIA over its failure to test assumptions, it was the very fact
that it did question the assumptions of the case for links between Iraq and al
Qaeda that frustrated Defense Secretary Donald Rumsfeld, Under-Secretary Paul
Wolfowitz, and other administration officials. So OSP was created to find evi-
dence of what they believed to be true: that Saddam Hussein had close ties to al
Qaeda and possessed WMD that threatened the region and potentially the
United States. A particular aspect of OSP’s search for new intelligence was its
reliance on Ahmad Chalabi and the Iraqi National Congress, which subsequently
became the core of the regime installed after the invasion.22
In the UK the general issue of the absence of WMD in Iraq in the wake of the
invasion concentrated on the more specific information received by the Secret
Intelligence Service (SIS, aka MI6) that biological and chemical weapons could
be deployed in twenty to forty-five minutes. It reported on August 30, 2002,
‘‘that on average it took 20 minutes to move BCW [sic] munitions into place for
attack. The maximum response time was 45 minutes.’’23 The SIS told the ISC that
the sourcing of this report was regarded as reliable24 and Sir Richard Dearlove,
head of SIS, subsequently confirmed that the report originated with ‘‘a senior
Iraqi military officer who was certainly in a position to know this information.’’25
This report was incorporated in the JIC Assessment of September 9: ‘‘Intelligence
also indicates that chemical and biological munitions could be with military
units and ready for firing within 20–45 minutes.’’26
The ISC questioned JIC Chairman, John Scarlett, and Assessments Staff about
the preparation of the September 9 assessment:
The Assessments Staff stated that they, and the people they had consulted, did not
know what munitions the Iraqi officer was referring to or their status. Nor did they
know from where and to where munitions might be moved. They assessed that the
Iraqi officer was referring to the time needed to move the biological and chemical
battlefield munitions from where they were held by Iraqi Security units in forward-
deployed storage sites to pre-designated military units.27
There was dissent within the UK intelligence community as to the strength

with which the forty-five-minute claim was made—these dissents were expressed
in the process of compiling the September 24 dossier28 but were ‘‘finessed’’ (in
the words of the main dissenter) on the grounds that there was other ‘‘compart-
mented’’ intelligence that justified the certainty.29 The ISC concluded ‘‘that the
................. 11310$ $CH2 05-16-05 11:36:33 PS PAGE 18

JIC has not been subject to political pressures and that its independence and
impartiality has not been compromised in any way.’’30 Yet Hutton did comment
on the possible impact of pressure from 10 Downing Street on John Scarlett’s
subconscious31—this is precisely the kind of pressure envisaged in the ‘‘second
stream’’ of power.
Finally in this section, we need to consider the possibility that the accuracy or
otherwise of western intelligence was actually unimportant. What rapidly became
clear once the Bush administration took office was the preparedness for unilat-
eral action in cases where multilateral action was seen as inadequate in the
defense of U.S. interests.32 With respect to Iraq in particular, then–Secretary of
the Treasury Paul O’Neill reported that the discussion of Iraq at the first NSC
meeting of the new administration—that is, before 9/11—was about finding a
way to overthrow the regime, not about what the intelligence said;33 former
counterterrorism coordinator Richard Clarke has testified to the U.S. Commis-
sion regarding the White House attempt in the immediate aftermath of 9/11 to
pin the blame on Iraq.34 This is why OSP was established. If so, then why all the
fuss about WMD? Well, Wolfowitz said that this was for bureaucratic reasons: it
was the one reason over which the cabinet could present a united front.35 Sup-
port for this thesis is provided by the fact that, if the removal of Saddam Hussein
was to be a legitimate multilateral action, then it needed to be carried out under
the auspices of the various UN resolutions passed since 1991. They did not refer
to the awfulness of the regime, or to its alleged links with al Qaeda; the ultimately
unsuccessful quest for a specific UN resolution authorizing the invasion could
be made only if grounded on WMD. On this reading, the only role for intelli-
gence was to provide support for a policy already determined—knowledge was
simply to support power36 —and intelligence was ‘‘perfectly’’ politicized.
Government and the Media

Conscious that their respective publics were not entirely convinced of the neces-
sity for war against Iraq, the Bush and Blair governments coordinated their strat-
egies. They attempted to justify invasion at two key points: in the autumn of
2002 and early in 2003 as they sought to obtain a second UN Security Council
resolution. In September the UK government produced a dossier entitled ‘‘Iraq’s
Weapons of Mass Destruction,’’37 and Bush made a major speech in Cincinnati
on October 7 as he tried to obtain a congressional resolution authorizing the use
of force. On January 30 the UK government published a further dossier—‘‘Iraq:
Its Infrastructure of Concealment, Deception and Intimidation’’—and on Febru-
ary 5 Secretary of State Colin Powell made a presentation to the Security Council
in New York.
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In the UK it was the September 2002 dossier that would eventually receive the
closest attention because of the forty-five-minute claim and the establishment of
the Hutton Inquiry, but the January dossier achieved even more rapid notoriety
when it emerged that most of it had been plagiarized from academic sources.38
Although it did contain some material from SIS, it had been compiled in Down-
ing Street’s communications department and was not cleared by the JIC.39 It
rapidly became known as the ‘‘dodgy dossier’’ and sank from public view. Gov-
ernment embarrassment was compounded by the fact that Powell had approv-
ingly referred to the dossier in his UN presentation.
An examination of these public statements make it clear that, at the very least,
the case for the continued and threatening existence of WMD in Iraq was pre-
sented at a level of certainty quite unheard of in intelligence assessments. For
example, addressing the UN Security Council with audio and video extracts of
intelligence, Powell said:
My colleagues, every statement I make today is backed up by sources, solid sources.

These are not assertions. What we are giving you are facts and conclusions based
on solid intelligence.40
Initiating the House of Commons debate the previous September, Blair said:
The intelligence picture that they (the intelligence services) paint is one accumu-
lated over the last four years. It is extensive, detailed and authoritative.41
Equally, there is no doubt is that the government was highly selective in present-
ing the intelligence assessments that tended to support its determination to
invade Iraq while not publicizing those that cautioned against. For example, in
an assessment of February 2003 JIC reported that not only was there no evidence
that Iraq had transferred WMD to al Qaeda or that it intended to use them for
terrorist attacks itself but also that the risk of such a transfer would be increased
in the event of regime collapse:
The JIC assessed that al-Qaida and associated groups continued to represent by far
the greatest terrorist threat to Western interests, and that threat would be height-
ened by military action against Iraq.42
Blair judged that this assessment should not be published in the build-up to the
invasion.43
In the UK government’s dossier published on September 24 there were four
references to the forty-five-minute claim: for example, in the Executive Sum-
mary:
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As a result of the intelligence we judge that Iraq has . . . military plans for the use
of chemical and biological weapons, including against its own Shia population.
Some of these weapons are deployable within 45 minutes of an order to use them.44
And, in chapter 3:
Intelligence indicates that the Iraqi military are able to deploy chemical and biolog-
ical weapons within 45 minutes of an order to do so.45
Speaking to the Commons on the day of publication, Blair said:
[The intelligence picture] concludes that Iraq has chemical and biological weapons,
that Saddam has continued to produce them, that he has existing and active mili-
tary plans for the use of chemical and biological weapons, which could be activated
within 45 minutes, including against his own Shia population, and that he is
actively trying to acquire nuclear weapons capability.46
George W. Bush was equally uncompromising in a speech two weeks later:
The danger is already significant, and it only grows worse with time. . . . We know
that the regime has produced thousands of tons of chemical agents, including mus-
tard gas, sarin nerve gas, VX nerve gas. . . . We know that Iraq and al Qaeda have
had high-level contacts that go back a decade. . . . Facing clear evidence of peril, we
cannot wait for the final proof—the smoking gun—that could come in the form of
a mushroom cloud.47
The last of these is an especially evocative image given that the NIE had just said:
Without [sufficient fissile] material from abroad, Iraq probably would not be able
to make a weapon until 2007 to 2009, owing to inexperience in building and opera-
ting centrifuge facilities to produce highly enriched uranium and challenges in pro-
curing the necessary equipment and expertise.48
The State Department’s Bureau of Intelligence and Research (INR) entered a dis-
sent to the NIE doubting that the evidence was adequate even then to support a
judgment that the nuclear program had been restarted. As it turns out, INR has
been proved right; even George Tenet has acknowledged:
Saddam did not have a nuclear weapon. He still wanted one and Iraq intended to
reconstitute a nuclear program at some point. But we have not yet found clear
evidence that the dual-use items Iraq sought were for nuclear reconstitution. We
do not know if any reconstitution efforts had begun but we may have overesti-
mated the progress Saddam was making.49
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Blair made no explicit reference to the possibility of nuclear attack but the first
draft of his foreword had included the sentence: ‘‘The case I make is not that
Saddam could launch a nuclear attack on London or another part of the UK (he
could not).’’ This was excluded from the published dossier.50
In seeking to ‘‘persuade’’ the public to support a controversial policy, govern-
ments have no use for the measured or conditional language of intelligence
assessments. People must be reassured that the government knows precisely what
they are doing and why; anything less is to invite opposition. Therefore, by a
mixture of ‘‘creative omission’’51 and ‘‘cherry-picking,’’ professional doubts are
translated into political certainties.
Oversight and Government

Not surprisingly, as time has gone on since the overthrow of the former Iraq
regime but without the discovery of any of the expected WMD and not much by
way of evidence of redundant programs, the existing oversight committees in the
coalition countries have taken steps to investigate. By early June 2003 the Senate
Committees on Intelligence and Armed Services announced that they planned
a joint inquiry into pre-war intelligence and the House Intelligence Committee
announced its own.52 In the UK the controversy grew throughout May and then
erupted into the war between Downing Street and the BBC over Andrew Gilli-
gan’s May 29 broadcast that the government had included the forty-five-minute
claim knowing it was probably wrong (see the following discussion). Within a
few days, the Foreign Affairs Select Committee (FAC) had announced that it
would examine whether the government had ‘‘presented accurate and complete
information to Parliament in the period leading up to military action in Iraq,
particularly in respect of weapons of mass destruction.’’53
One problem facing the FAC was that, as with other Commons select commit-
tees, it could gain access only to those people and papers that the government
allowed and, although it did interview the foreign secretary in closed session, it
was refused permission to speak with any agency heads or the chair of the JIC.
Its report, completed and published in not much more than a month, concluded
that ministers did not mislead Parliament (para. 188) but voiced a number of
criticisms of the presentation of the case for war, including the certainty of the
government’s assertion that Iraq had sought uranium from Niger (para. 60); that
the forty-five-minutes claim did not warrant the prominence given to it in the
September dossier (para. 70); that the language used in the dossier was more
assertive than traditionally used in intelligence documents (para. 100); and that
it was wholly unacceptable for the government to have plagiarized work for the
‘‘dodgy dossier’’ (para. 140).
As the FAC started work the prime minister sought to deal with the growing
................. 11310$ $CH2 05-16-05 11:36:35 PS PAGE 22

furor by asking the ISC54 to investigate. Just as with a select committee, ministers
can act as gatekeepers of the ISC’s access to intelligence papers, but in the ten
years of its operation it has steadily increased its reputation and enjoyed more
access to material than would have been envisaged when it was established in
1994.55 However, some MPs remain skeptical because it is appointed by and
reports to the PM. After the removal of sensitive material, reports are sent to
Parliament. Given the temper of the times it is not surprising that the PM prom-
ised the ISC access to all the JIC assessments and the people who produced them
and also that he would publish the report.56 Accordingly the ISC sought
to examine whether the available intelligence, which informed the decision to

invade Iraq, was adequate and properly assessed and whether it was accurately
reflected in Government publications.57
It reported that, based on the intelligence it had seen, ‘‘there was convincing
intelligence that Iraq had active chemical, biological and nuclear programmes
and the capability to produce chemical and biological weapons.’’58 But it also
noted that the JIC assessment of September 9, 2002, ‘‘did not highlight in the
key judgments the uncertainties and gaps in the UK’s knowledge about the Iraqi
biological and chemical weapons.’’59
In its response to this point the government drew what might be described as
a fine distinction: The ‘‘key judgments’’ section of a JIC assessment is to highlight
the judgments to be drawn from the assessment; it ‘‘is not intended to be a sum-
mary of the main facts of the paper.’’60 With respect to the September 24 dossier,
ISC said that it was ‘‘founded on the assessments then available’’ and had not
been ‘‘ ‘sexed up’ by Alistair Campbell or anyone else.’’ It reported that the JIC
had not been subjected to political pressures and that its independence and
impartiality had not been compromised.61
ISC criticized the removal from the PM’s foreword of the sentence regarding
nuclear attack on London (para. 83 and see preceding discussion) and rebuked
the government over the presentation of the forty-five-minutes claim in the dos-
sier (e.g., paras. 83, 110–112). ISC concluded:
The dossier was for public consumption and not for experienced readers of intelli-
gence material. . . . The fact that it was assessed to refer to battlefield chemical and
biological munitions and their movement on the battlefield, not to any other form
of chemical or biological attack, should have been highlighted in the dossier. This
was unhelpful to an understanding of the issue.62
In its response the government took no responsibility for the silences in the dos-
sier. It was content that the ISC recognized that the dossier did not say that Iraq
posed a ‘‘current and imminent’’ threat to the UK mainland63 but made no
................. 11310$ $CH2 05-16-05 11:36:36 PS PAGE 23

response to the criticism of the exclusion of the UK attack caveat in the foreword
(see preceding discussion). Similarly, regarding the ISC criticism that the forty-
five-minute claim was ‘‘unhelpful,’’ the government merely noted that the dos-
sier did not say that Iraq could deliver chemical or biological weapons by ballistic
missiles ‘‘within 45 minutes.’’64 No, it did not, but it was precisely this failure to
make clear just what the assessments were that amounted to serious misrepresen-
tation of the nature of the threat from Iraq.
The stakes in the political contest in the UK over the adequacy of the govern-
ment’s case for the invasion were significantly increased on May 29, 2003, when
a BBC radio journalist, Andrew Gilligan, broadcast to the effect that the govern-
ment probably knew that the statement that the Iraqi regime could deploy WMD
within forty-five minutes was wrong and that the prime minister’s office had
ordered the September 2002 dossier to be ‘‘sexed up.’’ The government, mainly
in the person of Alistair Campbell, the PM’s press secretary, reacted furiously to
the broadcast and demanded an apology from the BBC, which it declined to give.
On July 8 the Ministry of Defence announced that a civil servant had come for-
ward and admitted being the source for the May 29 story. The following day
the MOD confirmed his name as Dr. David Kelly to those journalists who had
successfully worked out who he was from the clues given. Both the FAC (that
had just completed its enquiry—see preceding) and the ISC (just commencing
its) requested to interview Kelly, and he appeared before the FAC in public on
July 15 and the ISC in private on July 16. The following day he disappeared from
his home and was later found dead, apparently having committed suicide. The
government rapidly sought to quell the mounting media pressure by appointing
Lord Hutton, a House of Lords judge ‘‘urgently to conduct an investigation into
the circumstances surrounding the death of Dr. Kelly.’’65
The inquiry was conducted in two stages: the first was inquisitorial in order
to obtain information from witnesses as to the course of events, and the second
was adversarial when those who might be subject to criticism by the inquiry were
recalled to be examined further and possibly cross-examined by counsel for other
parties represented. Hutton interpreted his terms of reference as requiring him to
examine five issues: first, the process of the preparation of the September dossier;
second, Kelly’s meeting with Gilligan on May 22, 2003; third, the BBC’s handling
of Gilligan’s May 29 broadcast and its aftermath; fourth, how Kelly’s name
became public as the source for Gilligan’s broadcast; and fifth, the specific causes
of Kelly’s death.66
On the first issue, Hutton exonerated the government of any wrongdoing: the
report that it had inserted the ‘‘45 minute claim’’ knowing it was probably wrong
was unfounded; the wording in the September 24 dossier had been modified by
the chair of the JIC, John Scarlett, after suggestions from Downing Street but
only when he was satisfied that the wording remained consistent with the intelli-
................. 11310$ $CH2 05-16-05 11:36:37 PS PAGE 24

gence.67 The shift between the September 9 JIC assessment that WMD ‘‘could
be’’ deployable to the September 24 dossier that they ‘‘are’’ deployable came
under close scrutiny at the inquiry—clearly it was central to the issue of the ‘‘sex-
ing up’’ or otherwise of the dossier. Under cross-examination, John Scarlett
maintained that the former contained no indication of uncertainty68 and that
therefore, by implication, there had been no exaggeration in the dossier.
However, Hutton concluded that the dossier had not been ‘‘sexed up’’ only
by interpreting the term narrowly to imply that people would have understood
the phrase to mean that the dossier had been embellished with information
known to be false or unreliable, not in the broader sense that the dossier was
drafted so as to make as strong a case as the intelligence would permit.69 Readers
can make their own judgment by reference to the evidence given to Hutton, but
the preceding analysis justifies a conclusion that the dossier was clearly mislead-
ing. On the other issues, Hutton concluded that Kelly had not provided the con-
troversial claims on which Gilligan’s May 29 broadcast was based, that BBC
management was seriously at fault in handling the broadcast,70 that the govern-
ment had not improperly allowed Kelly’s name into the public domain, and
finally, he accepted medical evidence that Kelly had committed suicide.71
But if the government enjoyed some moments of triumph in what had been
a long battle with the BBC—it started over its coverage of Iraq before Gilligan’s
fateful broadcast—they were short-lived. Two newspapers—the tabloid Sun and
the Times—accepted Hutton’s conclusions, but the rest of the papers expressed
varying degrees of skepticism and a number made accusations of a ‘‘white-
wash.’’72 In an opinion poll after Hutton was published, 54 percent said they
believed Blair had lied over the threat from Iraq, and 51 percent said he should
resign.73
Thus it was quickly clear that Hutton had not had the desired effect: signifi-
cant controversy continued regarding the pre-invasion intelligence. Arguably,
indeed, the government’s success in diverting the widespread public concern
over the war by its attack on Gilligan and the BBC in June 2003 lasted just until
Hutton reported on January 28, 2004. The very narrowness of his terms of refer-
ence meant that the more important issues had simply not been dealt with. So,
on February 3, Blair announced that an inquiry would be conducted by five privy
councilors, headed by Lord Butler, a former cabinet secretary, and including two
members of the ISC. As ever, the terms of reference were crucial; in this case
there was such an argument between the government and the opposition parties
that one of them, the Liberal Democrats, refused to join the inquiry from the
outset because it took the view that the terms of reference excluded the crucial
question of the use that the government made of the intelligence,74 and the Con-
servative Party withdrew its official support a few weeks later. Reflecting the cyni-
cism of the public view of Hutton’s report, a poll found that 23 percent believed
................. 11310$ $CH2 05-16-05 11:36:38 PS PAGE 25

the new inquiry would be a ‘‘genuine attempt to find the truth while 68 percent
believed it would a ‘whitewash.’ ’’75 When published in July 2004, the Butler
report76 provided a detailed examination of the collection, analysis, and dissemi-
nation of intelligence (especially the September 2002 dossier) regarding Iraqi
WMD. Some of its criticisms were to be echoed by the Senate Intelligence Com-
mittee (see following discussion); for example, the unreliability of human intelli-
gence (HUMINT) and the poor procedures for validation of sources (paras.
440–45) and tendency over time for caveats to get lost in the assessments process
(paras. 458–59). Yet although the report shows clearly that the language of the
dossier and the prime minister represented the intelligence as far more certain
than it was, Butler and his colleagues would only conclude that this ‘‘may have
left readers with the impression that there was fuller and firmer intelligence
behind the judgments than was the case . . .’’77
Throughout January 2004 political pressure had grown steadily in the United
States also, and the president was obliged to institute an inquiry he did not want.
Bush announced the establishment of a Commission on the Intelligence Capabil-
ities of the United States Regarding Weapons of Mass Destruction78 with broadly
similar terms of reference to the Butler inquiry; that is, they were to compare the
state of pre-invasion intelligence with the findings of the Iraqi Survey Group but
were also to explore the more general problems involved in gathering intelligence
with respect to WMD. The Commission was chaired jointly by Charles Robb,
former Democratic senator and Laurence Silberman, a Republican appeals court
judge. There was some criticism of the relative lack of experience and indepen-
dence among the members and, importantly, the Commission was not to report
until March 2005, safely after the presidential election.79 After the announcement
of this commission, an opinion poll found Bush suffering from a similar ‘‘credi-
bility gap’’ to Blair: 54 percent thought Bush had exaggerated or lied about pre-
war intelligence.80
In July 2004 the Senate Intelligence Committee published the first report of
its two-phase review of U.S. intelligence on Iraqi WMD, and its main conclu-
sions81 were that most of the major ‘‘key judgments’’ in the October 2002 NIE
were not supported by the underlying intelligence reporting; that the uncertaint-
ies behind these judgments were explained to policymakers inaccurately or inad-
equately; that the collective presumption within the intelligence community that
Iraq did have an active WMD program led it to ignore or misinterpret contrary
evidence; and that failures of collection (especially HUMINT), sharing (espe-
cially by the CIA), and analysis stemmed from ‘‘broken corporate culture and
poor management’’82 throughout the community. Although the Committee had
begun its review in June 2003, it extended its coverage in February 2004 to
include, for example, whether the government’s statements were substantiated
by the intelligence;83 however, the Democrats on the Committee agreed that, as
................. 11310$ $CH2 05-16-05 11:36:39 PS PAGE 26

with Robb–Silverman, there would be no report on this until after the presiden-
tial election in November.84
Role of the Media

The UK government’s attacks on the BBC and efforts to track and then expose
Gilligan’s source constituted the central part of Hutton’s inquiry into the death
of Dr. David Kelly and thus focused attention on relations between journalists
and people within the intelligence community. These have always been a mixture
of the formal and the informal. Both seek to guard their sources closely and, as
in any other area of government, journalists will seek to cultivate their own
sources within the intelligence community. Formally, press enquiries about MI5
and MI6 are handled by the Home Office and the Foreign Office respectively
while GCHQ has its own press officer. The heads of agencies and other nomi-
nated senior staff are authorized to have contact with the media. JIC and Defence
Intelligence Staff (DIS) media contacts are handled via the Cabinet Office and
Ministry of Defence respectively.85
After his examination of the contacts between David Kelly and Andrew Gilli-
gan, Hutton concluded that their meeting of May 22 (which was the basis for the
May 29 broadcast) was unauthorized and that Kelly was in breach of the Civil
Service code of procedure.86 However, given the frequency of Kelly’s contacts
with the media and of his public presentations based on his expertise, this con-
clusion, though technically correct, is perhaps too legalistic to provide much help
in understanding intelligence-media relations. May 22 was Kelly’s second meet-
ing with Gilligan—the first was when Gilligan had sought Kelly’s advice on what
to look out for on an upcoming trip to Iraq earlier in 2003. So, for Kelly, the
object of the May 22 meeting was mainly to find out what Gilligan had seen.87
This was, of course, true to longstanding practice in which intelligence agencies
use journalists both as sources and as conduits for information at least as much
as the journalists use them.
For example, giving evidence to the ISC, David Kelly explained in answer to
a question from the chair, Ann Taylor, that within the DIS he liaised with the
‘‘Rockingham cell’’ that serviced the weapons inspectors in Iraq.88 This DIS
group had the role, according to Scott Ritter, the former weapons inspector, of
using intelligence from the UNSCOM inspectors in order to sustain in public
the claims that Iraq was not in compliance with UN resolutions while ignoring
ambiguous or contrary findings.89 That a similar (if not part of the same) opera-
tion had been run by SIS—Operation Mass Appeal—in the late 1990s was
reportedly confirmed.90
The tragedy for David Kelly in this whole battle for the control of intelligence
................. 11310$ $CH2 05-16-05 11:36:40 PS PAGE 27

information and public opinion was that Gilligan’s broadcast led to a full gov-
ernment hue and cry for the source. There are always tensions in the routine
relations between journalists and intelligence officials because of the secrecy that
envelops the field,91 but they cannot be regulated simply by the legalistic applica-
tion of a code that seeks to protect governments from controversy and criticism
as much as national security (for example, see principles governing disclosure of
information92). Gilligan’s May 29 broadcast clearly included specific errors, but
he was correct in reporting general unease within some official quarters at the
(ab)use of intelligence. Some now fear that Hutton’s wholesale condemnation of
the BBC will ‘‘chill’’ investigative journalism into controversial policy areas.
Conclusions
Although we await further reports from the Senate Intelligence Committee and
Robb–Silberman, it is timely to take stock of the central question identified ear-
lier: did the U.S. and UK governments receive intelligence that justified their
public position that the regime of Saddam Hussein posed such a threat to
regional and/or international stability as to justify his immediate removal? The
ambiguities of language and significance of official silences inherent in intelli-
gence mean that generally accepted conclusions may never be reached. Only the
discovery of significant evidence of WMD in Iraq can resolve the question in
favor of the governments. Meanwhile, the detailed examination of controversies
such as this can serve useful purposes for oversight bodies and public education
more generally because they shine a torch into normally dark places of govern-
ment and intelligence. But while the forensic examination of precisely ‘‘who said
what to whom and when’’ is useful in illustrating the interplay of information
control processes, it is important that we do not lose sight of the forest for the
trees. There can be few issues of greater significance for any state than the rela-
tionship between intelligence and decisions to go to war.
Such decisions will always be politically contested; they cannot be made on
some simple empirical test. Whatever the inquiries find, there will be those for
whom this episode represents neither intelligence nor political ‘‘failure.’’ Gary
Schmitt, executive director of the Project for a New American Century, argued
recently that the intelligence assessment that Saddam Hussein had not given up
his desire to reconstitute WMD programs was right and therefore he asks, rhe-
torically: would continuing the policy of containment have been sufficient to
prevent him from becoming a dangerous threat to U.S. interests?93 But beyond
this small but powerfully entrenched view, the controversy remains one in which
governments and intelligence agencies have keen interests. The inquiries concen-
trated on the issue of intelligence failure—how could such a consensus among
................. 11310$ $CH2 05-16-05 11:36:40 PS PAGE 28

the best-endowed intelligence agencies in the world as to the existence of WMD

be so wrong? Such inquiries are entirely appropriate and need to investigate the
‘‘usual suspects’’: group-think, over-reliance on TECHINT, the problems of
defectors as human sources, the failure to question prior assumptions, and the
search for evidence that supports rather than negates them.
However, the issue of political failure must not be ducked.94 The evidence
presented here is that the dossier in the UK and similar presentations in the
United States did exaggerate the nature of the threat from Iraq’s WMD, and con-
tinued government denials of that are dangerous. In general, the democratization
of intelligence in the past thirty years has required some reduction in secrecy.
Unable to rely on blanket refusals to comment, governments have sought to
maintain their ‘‘information control’’ over security debates by compensatory
measures of increasingly publicizing intelligence in order to influence the new
oversight bodies and the media and thereby the public. So, intelligence has not
been immune from the growing culture of ‘‘spin’’ in the presentation of govern-
ment policies. Thus it has been harder for professionals to resist the ‘‘will’’ of
politicians for ‘‘relevant’’ intelligence that will support policy. Yet, on the other
hand, it becomes harder for governments to ‘‘control’’ the flow of information
because other policy-actors—oversight committees, media, think tanks, whistle-
blowers95 —‘‘evaluate’’ what governments say and provide alternative analyses.
It is hoped that the analysis here has indicated the utility of examining the
relation between intelligence and policy through the prism of processes of infor-
mation control; however, there is much more to this than an academic debate.
The fundamental danger for democratic polities is that these processes between
government and other institutions can run out of control: that the interaction of
attempts by governments, oversight committees, and media to gather informa-
tion, maintain secrecy, evaluate information, and influence others leads to a spi-
ral of uncertainty, mistrust, and paranoia. The poll figures presented in this
chapter provide some evidence of that. All of these institutions have a crucial
role to play in breaking this spiral by contributing to public education as to the
real possibilities and limits of intelligence. Without that, the real danger is that
public cynicism may, at some point in the future, refuse to accept the significance
of a threat that is, really, ‘‘current and serious.’’
Notes
1. Thanks to Mike Mannin, Joe Sim, and the editors for their helpful suggestions on
an earlier draft of this chapter.
2. For an earlier consideration of this issue see H.H. Ransom, ‘‘The Politicization of
Intelligence,’’ in Intelligence and Intelligence Policy in a Democratic Society, ed. S. J. Cim-
bala (Ardsley-in-Hudson: Transnational Publishers, 1987), 25–46.
................. 11310$ $CH2 05-16-05 11:36:41 PS PAGE 29

3. Michael Howard, one of the official historians of wartime intelligence, observed

nearly twenty years ago: ‘‘In Britain the activities of the intelligence and security services
have always been regarded in much the same light as intra-marital sex. Everyone knows
that it goes on and is quite content that it should, but to speak, write or ask questions
about it is regarded as exceedingly bad form.’’ (cited in C. Andrew, ‘‘The British View of
Security Intelligence,’’ in Security and Intelligence in a Changing World, eds. A.S. Farson,
et al. [London: Cass, 1991], 11).
4. C. J. Friedrich, Man and His Government (New York: McGraw-Hill, 1963) 201–202.
5. In essence these are the first two ‘‘dimensions’’ of power discussed by S. Lukes,
Power (Basingstoke: Macmillan, 1974). J. Scott, Power (Cambridge: Polity, 2001), 6–12,
describes these approaches as ‘‘mainstream.’’ See also S. Clegg, Frameworks of Power (Lon-
don: Sage, 1989).
6. Scott, Power, 2001, 6–12.
7. Notably Foucault, Giddens, Gramsci, Habermas, Lukes.
8. Scott, Power, 2001, 99–109.
9. R. Wilsnack, ‘‘Information Control,’’ Urban Life 8(4), 467–99; P. Gill, ‘‘Reasserting
control: recent changes in the oversight of the UK intelligence community,’’ Intelligence
and National Security 11(2), 313–31.
10. Cf. Scott, Power, 16–25; Wilsnack, ‘‘Information Control.’’
11. ISC, Iraqi Weapons of Mass Destruction, 2003. Accessible at www.cabinetoffice.gov
.uk/intelligence
12. FAC, The Decision to go to War in Iraq, 2003. Accessible at www.parliament.uk/
parliamentary_committees/foreign affairs_committee
13. Hutton, Report of the Inquiry into the Circumstances Surrounding the Death of David
Kelly C.M.G., 2004. Accessible at www.the-hutton-inquiry.org.uk
14. Butler, Review of Intelligence on Weapons of Mass Destruction. Accessible at www
.butlerreview.org.uk This was published after this chapter was written and only brief refer-
ence is made to its findings.
15. Also, it should be noted, contests of information control will take place within each
of these ‘‘actors’’: turf wars between different agencies are a well-known phenomenon
since different departments within the Executive pursue different interests; different
branches of the media are highly competitive and, if there is more than one oversight
body, they may also compete for information, prestige etc.
16. Two recent accounts of the JIC are P. Cradock, Know Your Enemy: How the Joint
Intelligence Committee Saw the World (London: John Murray, 2002); and P. Hennessy, The
Secret State: Whitehall and the Cold War (London: Allen Lane, Penguin Press, 2002).
17. Roderic Braithwaite, The Hutton Inquiry, Panorama, BBC1, January 21, 2004.
18. J. Cirincione, et al., WMD in Iraq: Evidence and Implications (Washington, D.C.:
Carnegie Endowment for International Peace, January 2004), 50–51.
19. This can be accessed at www.nsarchive.org in the Saddam Hussein Sourcebook.
20. Remarks as prepared for delivery by DCI George Tenet at Georgetown University,
Washington, D.C., February 5, 2004.
21. K. M. Pollack, ‘‘Spies, Lies and Weapons: What Went Wrong,’’ The Atlantic
Monthly, January/February 2004. See also Johnson, this volume, chapter 4.
22. S. M. Hersh, ‘‘Selective Intelligence,’’ The New Yorker, May 12, 2003; K. Kwiatkow-
ski, ‘‘The New Pentagon Papers,’’ Salon, March 10, 2004.
23. ISC, Iraqi Weapons of Mass Destruction—Intelligence and Assessments, para. 49. Cm
5972, September 2003, (London: The Stationery Office).
................. 11310$ $CH2 05-16-05 11:36:42 PS PAGE 30

24. ISC, Iraqi Weapons, para. 51.

25. Hutton, Report, para. 177. Subsequently the Butler Report revealed that postwar
source validation by SIS had called into question the reliability of this report. Butler,
Review, para. 512.
26. ISC, Iraqi Weapons, para. 50; Hutton, Report, para. 180.
28. For the progress of the forty-five-minute claim from its receipt by SIS through vari-
ous drafts of the September 24 dossier, see Hutton, Report, 2004, paras. 198–209.
29. B. Jones, ‘‘There was a lack of substantive evidence . . .’’ Independent, February 4,
2004.
31. Hutton, Report, 2004, para. 228(7).
32. P. Rogers, Losing Control (London: Pluto Press, 2002), 132–50.
33. R. W. Stevenson, ‘‘Bush sought to oust Hussein from start, ex-official says,’’ New
York Times, January 12, 2004.
34. R. Clarke, Against All Enemies (New York: Free Press, 2004).
35. P. Waugh, ‘‘Government blames spies over war,’’ Independent, May 30, 2003.
36. An especially powerful version of this thesis and critique of the UK being reduced
to ‘‘abject thrall to Bush and his gang’’ is Hugo Young, ‘‘Under Blair, Britain has ceased
to be a sovereign state,’’ The Guardian, September 16, 2003. Why Blair was such a stead-
fast supporter of the United States is a question beyond the remit of this chapter.
37. The earlier drafts of the dossier were entitled Iraq’s Programme for WMD. The vari-
ous drafts are in the appendices to the Hutton Report and can be read at www.the-hutton-
inquiry.org.uk/content/report/index.htm
38. Mainly from I. al-Marashi, ‘‘Iraq’s Security and Intelligence Network,’’ Middle East
Review of International Affairs, 6(3).
39. ISC, Iraqi Weapons, paras. 129–35.
40. Presentation can be accessed at www.state.gov/secretary/rm/2003/17300pf.htm
41. House of Commons debates, Hansard, September 24, 2002, col. 3.
44. HMG, Iraq’s Weapons of Mass Destruction, 5.
45. HMG, Iraq’s Weapons of Mass Destruction, 19.
46. House of Commons debates, Hansard, September 24 2002, col. 3.
47. Remarks by the president on Iraq, Cincinnati, October 7, 2002. Accessible at www
.whitehouse.gov/news/releases/2002/
48. Key Judgements, 2002. Accessible at www.fas.org—Saddeim Hussein Sourcebook.
49. Remarks as prepared for delivery by DCI George Tenet at Georgetown University,
Washington, D.C., February 5, 2004.
50. Hutton, Report, para. 209. The existence of this sentence in the first draft makes
even odder Blair’s admission in the Commons debate on the Hutton Report that it was
only after the war that he became aware that the forty-five-minute claim had referred only
to battlefield weapons. See, for example, R. Norton-Taylor, ‘‘45 minutes from a major
scandal,’’ The Guardian, February 18, 2004.
51. Pollack, ‘‘Spies, Lies and Weapons.’’
52. J. Risen, ‘‘Iraq arms report now the subject of a CIA review,’’ New York Times, June
4, 2003. The SSCI announced on February 12, 2004, that it was extending its terms of
reference to include possible exaggeration of intelligence by officials.
................. 11310$ $CH2 05-16-05 11:36:44 PS PAGE 31

53. FAC, The Decision to Go to War in Iraq, HC813-I, para. 4 (London: The Stationery
Office, July, 2003).
54. For a discussion of recent developments in intelligence oversight arrangements in
UK, see Leigh, this volume.
55. For example, see Gill, ‘‘Reasserting Control,’’ 1996.
60. Prime Minister, Government Response to the ISC Report, 2004, para. 7. Accessible at
www.cabinetoffice.gov/uk/intelligence
63. Prime Minister, Government Response, para. 14, but PM’s foreword described it as
‘‘current and serious’’ (HMG, Iraq’s Weapons of Mass Destruction, 3).
64. Prime Minister, Government Response, para. 15.
65. Hutton, Report, para. 1.
67. Hutton, Report, para. 467[1].
69. Hutton, Report, para. 467[1][viii].
70. No attempt is made to analyze Hutton’s extensive critique of BBC management
since it goes well beyond the core concerns of the chapter. After publication both the BBC
chair of governors and the director-general resigned.
72. Guardian Wrap, January 29, 2004. Accessible at www.guardian.co.uk/
73. P. Waugh, ‘‘After Hutton, the verdict: 51 per cent say Blair should go,’’ Indepen-
dent, February 7, 2004.
74. P. Wintour and R. Norton-Taylor, ‘‘Swift and Secret, Blair’s inquiry,’’ The Guard-
ian, February 4, 2004. The foreign secretary, Jack Straw, reportedly said the Butler inquiry
had been modeled in part on the Franks Inquiry into the Falklands War in 1982. Given
the context, this is somewhat ironic because after Franks published his Report, absolving
the government of the day of any blame for the failure to prevent the Argentine invasion,
the then leader of the Labour Party, James Callaghan, described Franks as chucking ‘‘a
bucket of whitewash’’ over it (P. Hennessy, Whitehall [London: Secker and Warburg,
1989], 586).
75. P. Waugh, ‘‘After Hutton,’’ Independent, February 7, 2004.
76. Butler, Review, 2004.
77. Butler, Review, 2004, para. 464. In a subsequent debate in the House of Lords, But-
ler said it was for the people, not his committee, to draw a conclusion as to how grave a
fault this was in the run-up to war. (R. Norton-Taylor, ‘‘Butler criticises government over
‘thin’ evidence for WMD,’’ The Guardian, September 8, 2004.) For a detailed analysis of
the Butler Report see Gill P., ‘‘Keeping in touch with ‘earthly awkwardnesses,’ ’’ in Reform-
ing Intelligence Across the World, eds. T. Bruneau and K. Dombrowski (Austin: University
of Texas Press, forthcoming).
78. Executive Order 13328, February 6, 2004.
79. D. Jehl, ‘‘Bush sets Panel on Intelligence before Iraq War,’’ New York Times, Febru-
ary 7, 2004.
................. 11310$ $CH2 05-16-05 11:36:45 PS PAGE 32

80. R. Morin and D. Milbank, ‘‘Most think truth was stretched to justify Iraq war,’’
Washington Post, February 13, 2004.
81. Senate Select Committee on Intelligence, Report, July 7, 2004, 14–29. Accessible at
http://intelligence.senate.gov/iraqreport2.pdf
82. Senate Select Committee on Intelligence, Report, July 7, 2004, 24.
83. Senate Select Committee on Intelligence, Report, July 7, 2004, 2.
84. W. Branigin and D. Priest, ‘‘Senate Report Blasts Intelligence Agencies’ Flaws,’’
Washington Post, July 9, 2004.
86. Hutton, Report, para. 259[2]; for extracts from code see paras. 23–25.
88. Hutton, Report, para.112.
89. TV interview with Amy Goodman, December 30, 2003, transcript in Security and
Intelligence Digest, Intel Research, PO Box 550, London SW3 2YQ.
90. N. Rufford, ‘‘Revealed: how MI6 sold the Iraq war,’’ The Times, December 28, 2003.
91. For a full discussion of these issues see M. Caparini, ed., Media and Security Gover-
nance (Münster: Nomos verlagsgesellschaft, 2004).
93. G. Schmitt, ‘‘Our basic instincts were sound,’’ Los Angeles Times, February 1, 2004.
94. This is argued with respect to the Senate Intelligence Committee July 2004 report
by Thomas Powers, ‘‘How Bush Got It Wrong,’’ New York Review of Books, September 23,
2004.
95. Katherine Gun, a translator at GCHQ, leaked a request from the NSA for a ‘‘surge’’
of surveillance to be conducted on members of the UN Security Council as the UK and
United States sought a second resolution in 2003. She was charged under the Official
Secrets Act but charges were dropped in February 2004. It was reported that this was
because her trial would have seen the airing of controversial arguments about the legality
of the invasion of Iraq (R. Norton-Taylor, ‘‘Whitehall united in doubt on war,’’ The
Guardian, February 27, 2004). But this has been denied by the Intelligence and Security
Committee, Annual Report 2003–2004, Cm 6240, para. 72. Accessible at www.cabinet-
office.gov.uk/reports/intelligence/pdf/govres2004.pdf
................. 11310$ $CH2 05-16-05 11:36:46 PS PAGE 33

3
Beyond the Nation State: The
Influence of the European Court of
Human Rights on Intelligence
Accountability
Iain Cameron
T his chapter examines the influence of the European Court of Human Rights
(hereafter, ‘‘the Court’’ or the ‘‘ECtHR’’), on the issue of intelligence
accountability. In particular, it examines the case law of the Court insofar as it
relates to intelligence surveillance and intelligence files/screening, in order to
determine to what extent common European legal requirements could be said to
exist in these fields. It concludes with a number of comments on the ‘‘added
value’’ of the supervision the Court exercises over states’ laws and practices in
this field.
The Court and the Convention

The European Convention on Human Rights (ECHR),1 is a treaty, the creation
of an international organization, the Council of Europe.2 The parties to the Con-
vention—now forty-six European states—undertake to secure to everyone sub-
ject to their jurisdiction the fundamental rights set out in the Convention.3 The
Convention establishes a court in Strasbourg that is competent to hear com-
plaints from individuals, after they have exhausted domestic remedies in the state
against which they bring a case. The protection of the Convention covers some
800 million people and the ECtHR adopts around nine hundred judgments per
— 34 —
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Beyond the Nation State 35
year. It also takes about eight thousand ‘‘admissibility decisions’’ per year—that
is, decisions to dismiss an application without an examination of the merits of
the dispute (which occurs in approximately 90 percent of cases), or to take up a
case on the merits (a function previously performed by the European Commis-
sion on Human Rights).4
The Convention has also been incorporated in the national law of all forty-
six states, requiring national courts and administrative agencies to apply it and
to take account of the case law of the ECtHR. The ECtHR thus develops pan-
European legal principles by means of its case law.5 It is also part of the ‘‘general
principles’’ of European Community law, and as such binding on the EC. The
importance of the Convention as a superior source of EC/EU law is increasing,
as the EC/EU has begun legislating in the general field of security, and the princi-
ple of the supremacy of EC law means that one cannot challenge EC norms on
the basis that these breach national constitutional rules.6
Certain of the rights provided for in the Convention contain an express clause
permitting a state to limit the right in question on the basis of ‘‘national secur-
ity.’’ This clause can be found in the rights to a fair trial (article 6), to privacy,
respect for family life and inviolability of correspondence (article 8), to freedom
of expression (article 10), and to freedom of assembly and association (article
11). There are also national security limitations on the rights to liberty of move-
ment and freedom to choose a residence within a state (article 2(3), protocol 4)
and to review of a deportation decision (article 1(2), protocol 7). Under certain
circumstances national security considerations can be taken into account in
other articles where there is no such express limitation.7
Like domestic courts applying domestic human rights norms, the Court must
strike a balance between the competing interests of individuals and the state. The
Court nonetheless has less ‘‘legitimacy’’ compared to national constitutional
courts when it comes to imposing its will on recalcitrant governments or legisla-
tures. The Court does not, and should not, function as a final court of appeal
from domestic courts, as a form of European cour de cassation. Nor does it have
an explicit function to harmonize the parties’ national laws. All the Court does
is to test the compatibility of national law and practice against the standards of
the Convention. All the members of the Council are sovereign states that are
jealous of their sovereignty.
The Convention was designed to be, and clearly is, subsidiary to the domestic
systems of protection of human rights.8 The Convention organs are aware that
there is a fine line between being perceived as brave defenders of basic human
rights and being seen as a (more or less) self-appointed group of interfering for-
eigners in Strasbourg. This is particularly so as regards the extremely sensitive
area of policy making covered by national security.
Thus, in this and other sensitive policy areas, the Court has permitted states
................. 11310$ $CH3 05-16-05 11:36:33 PS PAGE 35

a ‘‘margin of appreciation’’ as to how they perform their obligations under the

Convention. The Court justifies this on the basis of the subsidiary nature of the
protection afforded by the Convention9 and the difficulty in identifying common
European conceptions of the extent of the rights or restrictions in question.
(With the great expansion of the Council of Europe in the late 1980s and 1990s
to encompass the central and eastern European states, it can no longer be
described as a homogenous organization.) The doctrine is in essence one of judi-
cial restraint, inevitable in the circumstances if the Court is to avoid criticism
from the contracting parties that it is pursuing too dynamic an approach to
interpretation.
As with any system of law built upon the development of norms by means of
adjudication, the ‘‘accident of litigation’’ is significant. The person complaining
must show that he or she is a victim of an alleged violation of the Convention.
This is no easy business as regards secret measures, so the test has been modified
to allow a person to complain of a violation if it can be shown that there is a
‘‘reasonable likelihood’’ that he or she has been the victim of such practices.10
Still, even with this relaxation of the requirements, some potential issues, for a
variety of reasons (lack of awareness of one’s legal rights, resignation on the part
of the victim, cost of litigation, poor legal advice, etc.) never make their way
through the mill of domestic courts and the admissibility procedures to a judg-
ment on the merits.11 These factors can explain the relative lack of cases (so far)
from central and eastern European states, notwithstanding the major deficiencies
that exist in security law and practices in many of these states.
The Convention system is best described as a semi-autonomous legal system.
National law necessarily provides the framework within which Convention con-
cepts operate. The normal material remedy the Court can require for breach of
the Convention is the award of monetary compensation (article 41), but a nega-
tive judgment can also indirectly involve other obligations, in particular, law
reform and/or the reopening of domestic proceedings.12 A judgment against the
state thus ‘‘returns’’ to the national legal system for implementation. There is
thus a risk that the implications of a judgment will be misunderstood.
In the area of national security law and practice there is also the risk that a
judgment will be interpreted in a minimalist fashion so that any resulting law
reform may be cosmetic only. The impact of even national case law, indeed, even
of statute law, on the arcane world of security should not be taken for granted.
Reforms made in the field of policing or security can naturally be wholly or par-
tially blocked by bureaucratic resistance. The more closed an area is to public
scrutiny, the more chance there is of such resistance succeeding.13 It is evident
that in this area the law can serve, and has on occasion served, as a facade, con-
cealing more or less serious divergences in practice. In particular, case law can
be responsible for maintaining a gap between ideology and law/legal practice.14
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Thus, one should not automatically assume that Court case law disapproving of
a particular law or practice will be implemented wholeheartedly.
In any event, the Court’s relative political weakness vis-à-vis respondent gov-
ernments means that the Court has been reluctant to engage in any activity that
can be attacked as ‘‘judicial legislation.’’ This has meant, inter alia, that the steps
to be taken to bring law and practice into line with the Convention have rela-
tively rarely been explicitly spelt out in a judgment. Having said that, this
restrained approach is now changing under the combined pressure of the vast,
and growing, caseload of the Court and the need to be more pedagogical with
legal systems that fall far short of the requirements of a Rechtstaat and which
need clear, not cryptic, guidance on what legislative changes are necessary.17
The Court and Intelligence

Accountability in General
In what way does the Court deal with intelligence accountability? To begin with,
‘‘accountability’’ is a broad concept. One leading constitutional lawyer has
described it as ‘‘being liable to be required to give an account or explanation of
actions and where appropriate, to suffer the consequences, take the blame or
undertake to put matters right, if it should appear that errors have been made.’’15
‘‘Intelligence’’ in the sense I am interested in can be defined as information
gathered in such a way as to convey understanding for cause and effect (thereby
creating conditions for acting). However, in the present context, it means such
information gathered by the agencies responsible for the security of the state.
So, intelligence accountability means executive (civil service) accountability to
government and the accountability of executive and government to the legisla-
ture and the courts.
By contrast, under the Convention system, the ‘‘accountability’’ is at the state
level: The contracting states are responsible at international (rather than consti-
tutional) law to the Court, and each other, for how they comply with the Con-
vention.16 However, the constitutional aspect of accountability is also relevant
indirectly, as a reason for finding, or not finding, a breach of the Convention. In
other words, the failure to construct and implement satisfactory accountability
mechanisms and institutions at the national level, thus allowing the exercise of
unrestricted intelligence powers, will entail state responsibility.18
In another sense, the Court is a ‘‘fire brigade’’ system of intelligence account-
ability.19 It starts working only when a problem seems to have emerged. Indeed,
the requirement of exhaustion of domestic remedies, and the slowness of Stras-
bourg procedures, means that the Court starts working many years after the fire
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has started, and by the time a judgment is delivered, the fire may well have gone
out.
Moreover, the Court cannot take a holistic approach to intelligence account-
ability in the way a legislature can, laying down general rules as to the mandate
of an organization, its powers, the necessary internal and external controls over
these, and the available remedies against abuse of power. The particular facts of
the case provide a strict procedural framework for the Court, a crucial difference
between judicial and legislative power. An allegedly unsatisfactory intelligence
law or practice must be ‘‘fitted in’’ to a Convention right. Thus, such vitally
important aspects of control as training of intelligence staff (designed to foster
democratic sensibilities and ‘‘rights awareness’’), dividing responsibility between
different agencies, and fiscal management can rarely, if ever, be the focus of
Court scrutiny.
The procedural restraints on the Court mean that it is limited to examining
systems of accountability as indirect components of the requirements that a limi-
tation on a given human right be for the ‘‘protection of national security,’’ ‘‘in
accordance with the law,’’ ‘‘necessary in a democratic society,’’ and accompanied
by ‘‘effective remedies’’ at the national level. What does each of these concepts
mean?
The Court has been reluctant to give abstract definitions of Convention terms,
and this has also been the case with national security.20 The Court naturally
refuses to accept that issues of security are ‘‘outside of the law,’’ although it has
also stressed that the Convention is not neutral as regards ‘‘enemies of democ-
racy.’’21 The Court is prepared to take a very wide view of national security, hold-
ing, for example, that the German system of loyalty tests for teachers22 and the
Greek government’s protection of ‘‘national cultural and historical symbols’’ fall
within the concept.23
‘‘Accordance with the law’’ means that the exercise of state power, in particu-
lar coercive power, must have support in statute law, subordinate legislation, or
case law. This in itself is hardly onerous; however, the Court has increasingly
stressed the need for minimum standards of foreseeability and for discretionary
powers to be drafted carefully, identifying the addressees, the objects of the exer-
cise of power, and the limits, temporal and otherwise, on its exercise. The ‘‘neces-
sity’’ requirement is essentially a test of the proportionality of an infringement,
and involves looking at the control system for preventing abuse of discretionary
powers. Where the Court finds that a measure complained of is not ‘‘in accor-
dance with the law,’’ then it does not proceed to examine whether the measure
satisfies the requirements of ‘‘necessity in a democratic society.’’ The majority of
cases relating to intelligence accountability have dealt only with the ‘‘accordance
with law’’ requirement, the Court, probably with some relief, confining its criti-
cism to this issue.
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The requirement of ‘‘effective remedies’’ in article 13 is a variable require-

ment. The more serious the alleged violation of a Convention right, and the more
important the right is to the individual in question, the more remedies should
be available. However, in the first significant intelligence case the Court dealt
with, Klass v. FRG, the Court considered that article 13 had a subsidiary character
to the substantive rights in the Convention. The Court stated that ‘‘an effective
remedy . . . must mean a remedy which is as effective as can be having regard to
the restricted scope for recourse inherent in any system of secret surveillance.’’24
Thus, article 13 could not be interpreted so as to nullify the efficacy of the mea-
sures of secret surveillance already found to be compatible with the protection
of privacy set out in article 8.
The main Convention article that has given rise to discussions regarding intel-
ligence is, in fact, article 8, in relation to the specific issues of surveillance and
records/screening. The ECtHR has also delivered important judgments relating
to the provision of remedies for deportations on security grounds (articles 3 and
8, respectively, where the deportee risks torture or inhumane treatment or the
deportation interferes with family life)25 and as regards the availability of judicial
remedies for security decisions affecting ‘‘civil rights’’ (article 6).26 In these cases
the Court has required the creation of special mechanisms, reconciling the use
of intelligence material with the right of fair proceedings, and as such they are
relevant to intelligence accountability in the wide sense.27 However, for reasons
of space I will concentrate in the next two sections on the issues of intelligence
surveillance and records/screening.
Intelligence Surveillance
Although there are considerable, and growing, overlaps between intelligence sur-
veillance and law enforcement surveillance, most states still subject these to dif-
ferent legal regimes. Law enforcement surveillance is still seen primarily as a
mechanism for obtaining evidence of crime against identified suspects, whereas
intelligence surveillance is still seen primarily as a mechanism for gathering intel-
ligence on more nebulous threats to national security, not necessarily connected
to crime, or at least, specific criminal offenses. Some countries have a ‘‘strategic
surveillance’’ capacity, allowing them to monitor large sections of national, and
even international, microwave and sea/land line telecommunications traffic in a
proactive way, without any suspicion of ongoing offenses.
The mandate of the intelligence agencies to engage in surveillance is usually
framed in a less, or much less, clear way, with more, or much more, room for
speculative ‘‘fishing expeditions’’ and correspondingly less protection of the
rights of the targets. The time limits are usually more lenient, most intelligence
operations going on for much longer periods than law enforcement operations.28
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The information obtained may be kept forever (an issue that goes more to files,
considered in the following discussion). The authorizing body may differ from
the usual, judicial, method in relation to law enforcement surveillance and be
less objective. Even if the authorizing body is objective, as the surveillance will
rarely, if ever, result in a prosecution, a definitive judicial assessment of whether
the information available at the time really justified the surveillance may never
be made. These are some of the special problems of intelligence surveillance.
As mentioned, most of the Court’s cases have concerned the adequacy or
inadequacy of the legal framework regulating the ordering of both law enforce-
ment and intelligence surveillance. The first such case in which a violation was
found was Malone v. UK. The Court found that the British administrative prac-
tice did not ‘‘indicate with reasonable clarity the scope and manner of exercise
of the relevant discretion conferred on the public authorities.’’29 The Malone case
led to the enactment in the UK of the Interception of Communications (IOC)
Act 1985, subsequently superseded by the Regulation of Investigative Powers Act
(RIPA) 2000. In the later cases of Kruslin v. France30 and Huvig v. France31 the
Court specified that the following matters in particular should be laid down in
the law so as to minimize the potential for abuse of the law: the categories of
people liable to have their telephones tapped by judicial order, the nature of the
offenses that may give rise to such an order, the permitted duration of the tele-
phone tapping, the procedure for transcribing the relevant parts of the inter-
cepted material, the precautions to be taken to secure that the entire recordings
are available for inspection by the judge and the defense, and the circumstances
in which the recordings may or must be destroyed, particularly when the accused
is acquitted.32
These cases concerned law enforcement surveillance. However, in Amman v.
Switzerland33 the Court extended these safeguards to intelligence surveillance.
Under the applicable domestic law at the time (the Federal Council’s Ordinance
on Police Services of the Federal Attorney’s Office 1958) the police were given
competence to engage in the ‘‘surveillance and prevention of acts liable to endan-
ger the internal or external security of the Confederation.’’ The Court, however,
found that these provisions were not sufficiently foreseeable to serve as a basis
for telephone tapping. It stated that these provisions contain:
no indication as to the persons concerned by such measures, the circumstances in

which they may be ordered, the means to be employed or the procedures to be
observed. [These rules] cannot therefore be considered to be sufficiently clear and
detailed to afford appropriate protection against interference by the authorities
with the applicant’s right to respect for his private life and correspondence.34
The judgments of the Court have led to law reform in a number of states, provid-
ing for tightened mandates. However, while requiring more detailed legal
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authority for surveillance is undoubtedly a step forward, it is not so great a step

if the Court allows ‘‘national security’’ to be undefined, and if it does not subject
intelligence agencies’ retention and use of material obtained as a result of surveil-
lance to tight controls. The only Court35 case to date concerning the controls on
intelligence surveillance is Klass v. FRG. In this case, the applicants were German
lawyers (one a judge) who were concerned with the lack of safeguards that
applied to German intelligence telephone tapping, regulated by the ‘‘G10 legisla-
tion,’’36 as compared to law enforcement telephone tapping, regulated by the
Code of Criminal Procedure.37 Government ministers authorize intelligence tap-
ping, but two supervisory bodies are established by the federal act: the indepen-
dent G10 Commission and the parliamentary G10 Board. The Commission has
the power, ex officio or on application by an individual who suspects that he or
she is under surveillance, to rule on the legality or necessity of a particular inter-
ception and order its termination.38 As regards strategic interception of commu-
nications, the G10 Commission supervises in particular the key words used and
the guidelines on surplus information. The Court in Klass v. FRG took it for
granted that internal controls and remedies were insufficient and stated that
some, preferably judicial, monitoring mechanism must exist.39 In the event, the
Court concluded that the G10 Commission and the G10 Board ‘‘are independent
of the authorities carrying out the surveillance and are vested with sufficient
powers and competence to exercise an effective and continuing control.’’40
A number of points can be made in conclusion on this issue. The adequacy
or otherwise of a legal mandate is an issue on which judges are eminently suitable
to pronounce. However, the real challenge for the future relates to the adequacy
of the control-and-remedies mechanisms. This is a more sensitive area for the
Court to take on, as it will involve it in a more policy-oriented exercise of assess-
ing whether a particular blend of controls contains adequate safeguards in prac-
tice for preventing abuse of power.
It is probably correct to say that a system of internal controls, in particular
the maintenance of the democratic sensibilities of staff themselves, is the most
important safeguard against abuse of power.41 The extent of the necessary exter-
nal controls will naturally vary depending upon the political context of the state,
its history, the power and role of the press in the state, the size of the security
agency and its relative importance vis-à-vis the bureaucracy and the police, the
concrete national security threats the state is facing, and so on. But, it seems
axiomatic that, in any country, internal controls cannot work properly without
external controls to back them up. A properly functioning system of external
control of surveillance authorization can provide a safeguard against political
policing while at the same time encouraging the higher ranks of the security
agency and the responsible civil servants to keep track of what their subordinates
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are up to, as well as encouraging the responsible politicians to keep an eye on

their security chiefs.42
What is important is not so much the character of the review body (parlia-
mentary, judicial, quasi-judicial, etc.) but its powers.43 A review is of very limited
use if it simply checks whether the formalities of an authorization are satisfied
(Has an authorization been issued? Did it concern the right address? etc.) with-
out going into the substance of why it was issued, and whether it should have
been issued at all. Indeed, such a review is worse than useless as it gives the deci-
sion to authorize surveillance a legitimacy it may not deserve. Nor can such a
limited review provide any assistance to the authorizing body, government min-
ister, or court, in determining whether similar future operations are likely to pro-
duce enough information to justify their cost (both financial and in terms of
damage to human rights). Where the review is a formality, the requesting agency
and the authorizing body will be implicitly encouraged to err on the side of cau-
tion.
There are hopeful signs, in particular the judgment in Amman v. Switzerland,
indicating that the Court is no longer willing to accept preferential treatment of
intelligence matters without question. Certainly, such preferential treatment is
becoming more difficult to justify the more the areas of policing and security
overlap. For example, the Court accepted strategic surveillance in Klass v. FRG
because it related to external armed threats to the security of the state. However,
it is plain that this is by no means limited to such threats today.44 Interestingly,
a new application regarding the German system is currently pending before the
Court.45 However, the German system was reformed and subjected to tighter
controls following a challenge to the German Federal Constitutional Court
(BverfG) in 1999.46 The Court is unlikely to feel the need to set higher standards
than those laid down by the BverfG. Even so, this would call into question the
present systems of strategic surveillance in a number of other European states
that have, and use, this capacity.
Intelligence Files and Security Screening

Intelligence files and security screening are at the heart of the work of an intelli-
gence agency. They can pose a number of threats to human rights, and some of
these should be briefly mentioned here. Security intelligence is partly speculative
in nature and it is collected for a preventative purpose. It is thus crucial that
there exist clear and tightly drawn criteria for determining when sufficient suspi-
cion exists against an individual to justify opening a file on him or her, and for
what sort of information can be added to it.47 It is also crucial that there exist
even more stringent criteria for when and to whom information can be revealed
from the file. Bearing in mind the fact that the intelligence agency is essentially
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engaged in risk assessment, there will be a natural tendency to collect more rather
than less intelligence in case the security agency is found to be wanting in a crisis.
And where ‘‘progress’’ for a security official is indicated by the growing thickness
of the files for which he or she is responsible, then there is a strong personal
motivation for more intelligence gathering. There is also a natural tendency to
retain out-of-date information on the off chance that it may prove to be relevant
in the future. But old information can give a misleading picture of an individual
and the degree of risk, if any, which this person poses today.
As with secret surveillance, there are dangers involved in the mere fact of tech-
nical advances in this field, the lure of technology as it were. The potential for
abuse also exists with manual records, but computerization adds a new dimen-
sion to this. The question is whether the technological advances have gone so far
as to constitute qualitative rather than simply quantitative change.48
This intelligence is collected partly for the purpose of communication. It can
thus obviously be used to the disadvantage of an individual in a variety of differ-
ent ways. The interference may, like secret surveillance, occur in secret so that
the person does not know why he or she has been disadvantaged, or even that
he or she has been disadvantaged. The factual information communicated may
be inaccurate. The person on whom the information is communicated may have
been wrongly identified. A case of mistaken identity can have catastrophic conse-
quences for the victim’s career. The dangers of inaccurate information are multi-
plied when information is exchanged between states; at the same time it is
increasingly being recognized that timely exchange of information is crucial in
intelligence cooperation, particularly against international terrorism.
The information can obviously be misused in a number of ways. It can be
used by the security agency itself or a faction of it to discredit someone for its
own purposes. A security official can pass on the information to a politician, a
businessman, or a journalist for personal gain. The security agency can be forced
or persuaded by its political master to hand over intelligence to him or herself
or to another agency, in order to discredit a political opponent, in or outside of
the government. Finally, the mere collection of security intelligence can have a
deterrent effect on political activity. One can take the view that only extremist
political groups are likely to be deterred and that this is a small price to pay for
improved security. But the political rights enjoyed by the fringe cannot be so
easily separated from those enjoyed by the political mainstream. The rights of
freedom of expression and association are protected by the Convention (articles
10 and 11), and the Court has made it plain that individuals should not be penal-
ized for exercising their Convention rights.49
However, it is no simple matter to create an effective mechanism of control.
Security information within the agency tends to be compartmentalized, that is,
available only on a need to know basis.50 This is to minimize the damage that
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would result from a penetration of the agency by a hostile service, but it means
that the register is not, and cannot be, constructed wholly on the basis of the
principle of ease of use. It can be very difficult for an ‘‘outsider’’ to obtain an
overview of, for example, all the information held on a particular individual and
to provide an effective level of supervision and control. Intelligence files are not
simply personal files, but also organizational, event, and place files. There may
be extensive cross-referencing between these different categories. Informants are
not identified, but are given code names and numbers. The reliability of intelli-
gence is graded, but the information on which this grading is based may in turn
be in several, or even many, other files. And as security intelligence is based partly
on more or less well-founded speculation, essentially, all that an independent
monitor can offer is a second subjective opinion on whether a particular file or
entry is justified, and why.
There are three Court judgments and a number of Commission decisions
dealing with the issue of the adequacy of the legal mandate to collect and use
intelligence. The case of Leander v. Sweden studied both the issue of the legal
mandate and controls/remedies. I have commented on this case at length else-
where.51 Suffice to say that a government inquiry, long after the Court judgment,
revealed that the legal authority for the collection of security data, accepted by
the Court, was fatally flawed: it said one thing, but the practice was quite differ-
ent. Notwithstanding the requirement that one was to individually assess the
need for registration of people, there was more or less automatic registration of
political parties that the Security Police regarded as potentially dangerous.
In the cases after Leander, the Commission set relatively minimal require-
ments of foreseeability in relation to the mandate, but certain states nonetheless
failed to satisfy these. In V et al. v. Netherlands, the applicants complained to the
Commission that they had been subjected to surveillance by the Army Intelli-
gence Service.52 The Commission stated that the decree did not ‘‘in sufficiently
clear terms indicate the circumstances in which and the conditions on which the
authorities were empowered to carry out measures of secret surveillance.’’53 In
particular, there was no statement as to the limits to be respected, there was no
definition of the categories of people to be subject to surveillance, the circum-
stances in which this could occur, and the means to be used. Nor were the func-
tions of the counterintelligence section within Army Intelligence set out. Finally,
the safeguards to which the respondent government referred, the possibility of
making a complaint to the ombudsman or a parliamentary committee consisting
of the leaders of the political parties, were not contained in the Royal Decree.54
For these reasons, the Commission considered that the interferences with the
applicant’s rights were not in accordance with the law.
A similar approach was taken in Hewitt and Harman v. UK (No. 1), and
Nimmo v. UK. At the time, the only legal basis for the Security Services activities
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was a set of administrative guidelines, which were, moreover, regarded by the

Commission as unacceptably vague. The legislation introduced after the Hewitt
and Harman (No. 1) and Nimmo cases, the Security Service Act 1989, was
regarded by many as a minimalist interpretation of what the Convention
required, and attempts were made to challenge it before the Convention organs.
In the second Hewitt and Harman case,55 the applicants, both involved with a
civil liberties organization, argued that the term used in the act, ‘‘the interests of
national security,’’ was an unacceptably vague basis on which to collect and
retain information, and that there should be a connection with violent activities
before files could be opened on individuals.
The Commission considered that the breadth of the term ‘‘national security’’
was qualified by certain express limitations on the activities of the service and
the existence of supervisory organs (the Security Service Commissioner and Tri-
bunal) that were able to interpret it. The limitations were that arrangements
must be in place to ensure that ‘‘no information by the Service except so far as
necessary for the proper discharge of its functions or disclosed by it except so far
as necessary for that purpose or for the purpose of preventing or detecting seri-
ous crime’’ and that ‘‘the Service does not take any action to further the interests
of any political party.’’56 The Commission took a similarly tolerant approach in
Esbester v. UK, which concerned both the collection and the use of intelligence
in vetting proceedings.
In Tsavachidis v. Greece,57 the Commission found, over the denials of the
Greek government, that the Greek intelligence service had collected information
on a religious minority. Under Law 1654/1986 on the National Intelligence Ser-
vice (NIS), the service is, first, to collect, process, and distribute information con-
cerning national security; second, to deal with the activities of foreign intelligence
services against Greece; third, to coordinate the activities of other services collect-
ing relevant information; and fourth, to discharge any other relevant functions
assigned to it by the Council of National Security or the prime minister. The
government accepted that it is not within the competence of the NIS to subject
persons to surveillance because of their religious beliefs. Thus, the conclusion
was inevitable that the information had not been collected ‘‘in accordance with
the law.’’ If the respondent government had instead argued that the religious
activities in question did pose some form of threat to national security, then
there would have been a statutory basis for the NIS to collect the information.
The emphasis would then have either shifted to the question of the quality of law
or, more likely, the necessity for such collection.
In Rotaru v. Romania, what was at issue was the then existing law on filing of
security information that provided simply that the security service may collect,
by any necessary means, information on threats to the national security of Roma-
nia.58 The Court found that the Romanian law on filing was not sufficiently clear
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as regards the grounds for filing (and the methods which might be used—
something which relates to security surveillance). Moreover, there were insuffi-
cient safeguards against abuse of discretion. Accordingly it was not ‘‘in
accordance with law.’’ The Court also found a violation of article 13 because
there were no remedies available.
In Amman v. Switzerland, the Court, as well as finding the surveillance unlaw-
ful, went on to examine whether the retention of the file on the applicant was
‘‘in accordance with the law.’’ The Swiss law at the time provided that data that
was not ‘‘necessary’’ or that had ‘‘no further purpose’’ should be destroyed, but
there was no mechanism for checking that these rules were actually followed.
The Court came to the conclusion that, when it became apparent that the appli-
cant was not preparing a criminal offense, the retention of the file was not ‘‘in
accordance with the law.’’59
The conclusions that can be drawn from this case law are that a general clause
allowing collection of intelligence on grounds of ‘‘national security,’’ for exam-
ple, must be qualified by internal procedures for opening, adding to, and retain-
ing files, as well as some form of external control mechanism. There must be
legal authority for the use, that is, the revealing, of material from the files,
although the exact conditions and limitations on this may be left to administra-
tive practice. I would argue that it must be a minimum demand as far as use of
the intelligence is concerned that the subject know, first, that the post he or she
has applied to or is applying for is subject to vetting and second, that a vetting
check that has been made has given a result which has influenced the employer
or potential employer. Without knowledge of these two factors, whatever reme-
dies might exist are illusory.
To turn now to the issue of the working of the external controls, the only
Court case to date where controls have been studied is Leander v. Sweden. There
are also four significant Commission admissibility decisions, Sandberg v. Sweden,
Hewitt and Harman v. UK (No. 2), Esbester v. UK, and Volpi v. Switzerland.60 The
Convention organs accepted the necessity for some form of collection of security
data and some system of security screening more or less without question. The
Court in Leander confirmed that it is the use to which information is put that is
the most important. In doing so, it indirectly approved of the Swedish approach
of placing the bulk of the safeguards at the stage when information is to be
released. The Court granted a wide margin of appreciation to states in how they
design control/remedies for systems.61 This means, in effect, that the applicant
must prove that the measures adopted by the government are not proportionate
to the aim to be achieved.
However, the Leander case is most interesting because subsequent official
inquiries have shown that the controls and remedies that the government argued
existed—and the majority of the Court accepted at the time—did not work.
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There was, in fact, no objective body exercising a degree of independent supervi-

sion of the filing procedures and close control over the release of intelligence
from the files. Such a control now exists in the form of the Swedish Register
Board.
That the Convention requires there to be a remedies/supervisory body, or
bodies, is nonetheless clear. However, the question arises of how strong its pow-
ers must be. The Commission accepted that, where internal controls existed, and
there existed no evidence that these were not working (although such evidence
was almost impossible to come by) then a very limited degree of external control
was sufficient to satisfy article 8. For example, the control exerted in the UK by
the part-time Security Service Commissioner over filing is minimal. Bearing in
mind this person’s lack of time, staff assistance, and expertise, the only things the
Commissioner is likely to find out about are blatant and widespread breaches of
internal rules. The majority of the Commission nonetheless found in Esbester v.
UK and Hewitt and Harman v. UK (No. 2) that the Commissioner ‘‘takes an
active and authoritative approach to his role’’ and concluded that ‘‘the frame-
work of safeguards was an acceptable compromise between the interests of state
security and the rights of the individual.’’62
The Commission likewise set only minimal requirements as to remedies. The
UK Security Service Tribunal can order deletion of files and compensation.
However, where a complaint concerns alleged intelligence gathering by the
Security Service, the Tribunal is to determine only whether there were ‘‘reason-
able grounds’’ for initiating or continuing these inquiries.63 In particular, as
regards people subjected to scrutiny because they are members of an organiza-
tion which is believed to be dangerous to national security, the Tribunal is lim-
ited to determining whether the Security Service had ‘‘reasonable grounds’’ for
believing the person in question to be a member of the organization, even if it
may refer the general policy issue to the Security Service Commissioner.64 The
narrow scope of the Tribunal’s review, combined with the Swedish experience of
the dangers of registering groups, means that the effectiveness of the remedies
for individuals aggrieved at simple collection/collation of intelligence is highly
doubtful.
What conclusions can be drawn on controls/remedies? Arguably the Court
should be much more demanding in the future than the Commission has been
in the past. Even though the Amman and Rotaru cases only concerned the issue
of the legal mandate, these cases give good grounds for concluding that the Court
is aware that the controls in many states are woefully inadequate—and not sim-
ply states in eastern and central Europe. But the remedies and safeguards that
should operate in this area can rarely, if ever, be judicial in nature. The operation
of the sort of quasi-judicial, political, or administrative remedies appropriate to
this area can thus be assumed to be outside the experience of the majority of the
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judges on the Court. Moreover, the requirements of articles 8 and 13 in this

respect are to ends (effective remedies and safeguards) rather than means. There
is obviously room for different approaches in design of systems, particularly for
vetting. For example, the supervisory body can be a preventive control, such as
the Swedish Register Board, or a remedy, such as the UK Security Service Tribu-
nal. But it is one thing for the Court to say that a particular judicial proceeding
satisfies or does not satisfy the procedural requirements of a ‘‘fair trial’’ in article
6. It is quite another to lay down what type of remedies are necessary to comply
with article 13. As noted before, the Court is not in the business of legislating for
member states, especially in areas that can be assumed to be politically contro-
versial.
Having said this, it is not the Court’s job to balance the different factors and
design the perfect system. The Court needs to say only that the system before it
in a concrete case is imperfect. In reaching its conclusions in this regard, I would
say that the Court should have as its point of departure the fact that it is very
difficult to exercise effective supervision of intelligence files. What is needed is an
external monitor with an independent staff and sufficient power and authority to
compel the production of all information, and sufficient expertise to evaluate it
critically.
Still, these are of little significance if there is no desire on the part of the moni-
tor to use these powers, or no political support for him or her to do so. In prac-
tice, the value of an external monitor will depend mainly on the political climate
in which he or she works, the dedication of the office holder, and the competence
of his or her staff. These are fairly intangible things on which to form an opinion,
far away in Strasbourg. The Court is relatively ill-equipped to judge whether for-
mal safeguards are real safeguards, and it knows it.
Conclusions65
What is the ‘‘added value’’ of this supranational level of protection? The Conven-
tion is one of the few common standards applicable to all European states, and
as such is invaluable as a platform on which to elaborate more detailed European
principles of accountability. There is undoubtedly a great need for such princi-
ples, especially when, as mentioned, the EU has begun legislating in the field of
internal security. The Convention case law shows that there can be situations
when an international body places greater demands than those set by national
courts and legislatures. The pan-European legal culture of the Court can give a
different perspective on the need to reform an unsatisfactory system, and on the
direction reform can take.
So far, the main value of the Convention in this area, aside from whatever
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preventive effect it might have had, has been in setting minimum levels of fore-
seeability regarding legal authority to engage in secret surveillance and security
filing/screening. A negative judgment on formal grounds, requiring legislation to
correct, can obviously give the legislature the opportunity to overhaul the whole
area.
There is potential for further cases, even though the Court’s present caseload
means that it is unlikely to want to create other ‘‘growth areas.’’ There are none-
theless limits to what the Court can achieve as regards substantive matters. In
order to be able to make real advances in this direction, the Court needs more
comparative knowledge of how European states’ national security laws and prac-
tices are constructed and applied. Projects such as this volume have a role to play
in analyzing and systematizing national laws and practices as well as highlighting
best practices. But having access to objective comparative material is not enough.
Where a state’s legislature has been given the opportunity to consider the issue
of intelligence accountability, but has failed to do so, it is asking a lot of the
Court to disapprove of the solution adopted democratically by the state, even if
most impartial observers would regard the system adopted as gravely deficient.
The attempts within the Council of Europe to adopt common rules in this area,66
something that seemed possible following the end of the Cold War, have made
no real progress. If even stable Western democracies block progress on this issue,
the scope for the Court to make further meaningful advances in the field is lim-
ited.
Notes
1. 1950, European Treaty System (ETS) No. 5 (hereafter ‘‘the Convention’’).
2. The Council of Europe was established after the Second World War and is an orga-
nization for regional cooperation concerning all matters except security. It has adopted
some 190 conventions on different matters. It consists of a secretariat, a committee of
(foreign) ministers, and a parliamentary assembly, consisting of delegates from member
states legislatures. It is not to be confused with the Council of the European Communities
(EC).
3. It should be noted that there are fourteen protocols to the Convention. These are
separate treaties under international law. Eight deal with procedural matters and the oth-
ers with additional substantive rights. Not all the member states have ratified all the pro-
tocols providing for additional substantive rights.
4. The functions of the Court and the Commission were amalgamated by protocol
11, in 1998. As shown below, some of the old Commission case law, although having less
‘‘status,’’ can still be important where the Court has not yet produced a judgment on
the issue. In the following discussion, this is the case for several intelligence accountability
issues.
5. The Court has spoken on several occasions of the Convention as a ‘‘common pub-
lic order,’’ e.g., Ireland v. UK, April 18, 1978, A/25 at para. 25. For discussions of the
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constitutional nature of the Convention see, e.g., J. G. Merrills, The Development of Inter-
national Law by the European Court of Human Rights (2nd ed.) (Manchester: Manchester
UP, 1993), 9–62; and Iain Cameron, ‘‘Protocol 11 to the ECHR: the European Court of
Human Rights as a Constitutional Court?’’ Yearbook of European Law 15 (1995), 219–62.
6. For discussion of the problems caused by EU antiterror blacklists (drafted partly on
the basis of secret intelligence material) see Iain Cameron, ‘‘EU Antiterrorist Blacklisting,’’
Human Rights Law Review 3 (2003): 225–56. However, the fact that the EU has not rati-
fied the Convention as such (and cannot as of yet do so) means that there are awkward
procedural gaps in rights protection. See Segi and others and Gestoras Pro-Amnistia and
others v. 15 States of the EU, No. 6422/02 and 9916/02, May 23, 2002 (Applicants not
‘‘victims’’ of EU Common Position 2001/930/CFSP). This will change if the treaty estab-
lishing a constitution for Europe (OJC 310, Vol. 47, December 16, 2004), currently going
through the ratification process in the member states, is accepted. The treaty provides,
first, that the EU ratify the ECHR and, second, that the Charter on Rights and Fundamen-
tal Freedoms will become legally binding.
7. The Court has held that where there is an exceptional situation threatening public
order, such as a wave of terrorist violence, then this background can be taken into account
in determining the legitimacy of measures taken which allegedly infringe Convention
rights. See, e.g., Brogan and others v. UK, November 29, 1988, A/145-B, para. 48.
8. This is expressly recognized in article 53.
9. See, e.g. Handyside v. UK, December 7, 1976, A/24, para. 48.
10. See, e.g. Hilton v. UK, 12015/86, 57 DR 108 (1988), Nimmo v. UK, 12327/86, 58
DR 85 (1989), Hewitt and Harman v. UK, No. 12175/86, 67 DR 88 (1989). Having said
this, problems of proof can arise where it is, on the facts, equally likely that a private
actor (e.g. a private security firm) has infringed an individual’s rights. To ground state
responsibility for active measures (as opposed to responsibility for a failure to stop inter-
ferences), an applicant must show ‘‘beyond a reasonable doubt’’ that state agents are
responsible for the alleged violation. Thus, proving, for example, the existence of an illegal
bugging device in one’s home will not in itself suffice to create state responsibility for this
surveillance.
11. Another important factor here is the requirement in article 35 that a case be
brought before the Court within six months of the final domestic decision (in the case of
secret measures, within six months of the decision becoming known to the applicant). It
can be noted that some of the issues which do reach Strasbourg undergo a transformation
and become something other than what they were in the national context. See, e.g.,
Guardian and Observer v. UK, November 26, 1991, A/216 and Castells v. Spain, April 23,
1992, A/236 para. 39.
12. See Council of Ministers recommendation No. R (2000) 2. The Court has recently
begun explicitly stating, in exceptional cases, that the respondent state has a duty not
simply to pay just satisfaction but also to take specific measures redressing the situation
of the applicant. Assanidzé v. Georgia, No. 71503/01, April 8, 2004.
13. See, e.g., the unsuccessful attempt made by the Canadian parliament to restrict its
security agency’s collection of information on nonviolent subversives, discussed by Peter
Gill, Policing Politics: Security Intelligence and the Liberal Democratic State (London: Frank
Cass, 1994), 110–11.
14. David Dixon, Law in Policing (Oxford: Oxford University Press, 1997), 33.
15. Dawn Oliver, Government in the United Kingdom: the search for accountability, effec-
tiveness and citizenship (Philadelphia: Open University Press, 1991), 22.
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16. The ‘‘sanction’’ is, ultimately, expulsion from the Council of Europe. However,
noncompliance will probably also lead to multilateral political and economic sanctions
(in particular EU pressure exerted in various ways through association, trade, etc. agree-
ments).
17. The Committee of Ministers has now adopted a resolution, Res (2004) 3 ‘‘on judg-
ments revealing an underlying systemic problem,’’ which encourages the Court to exercise
a more forward-looking ‘‘quasi-legislative’’ competence where it has identified a struc-
tural rights problem. The Court invoked this competence for the first time in Broniowski
v. Poland, No. 31443/96, June 22, 2004.
18. Responsibility under article 1 of the Convention can exist for extraterritorial action,
by a state’s foreign intelligence service. See, e.g., Öcalan v. Turkey, No. 46221/99, March
12, 2003. However, the subject is complicated. The extent of responsibility can vary
depending upon the extent of actual control exercised, and difficulties of proof in this
area are likely to be even greater than for alleged abuse of domestic power.
19. M. D. McCubbins and T. Schwartz, ‘‘Congressional Oversight Overlooked: Police
Patrols vs. Fire Alarms,’’ American Journal of Political Science 28 (1984), 165–79. See also
chapter 4 by Loch K. Johnson and chapter 12 by Hans Born in this volume.
20. Indeed, the Commission expressed the view that national security cannot be
defined exhaustively. Esbester v. UK, No. 18601/91, 18 EHRR CD 72 (1993) and that in
the first place it is for member states to decide whether it is necessary to criminalize partic-
ular conduct deemed to be damaging to national security. M. v. France, No. 10078/82, 41
D.R. 103, 117 (1985). See also discussion of Hewitt and Harman (No. 2) below.
21. See Refah Partisi (The Welfare Party) and others v. Turkey Nos 41340/98, 41342/
98, 41343/98, and 41344/98, February 13, 2003, where the Court stated that Convention
freedoms ‘‘cannot deprive the authorities of a State in which an association, through its
activities, jeopardizes that State’s institutions, of the right to protect those institutions . . .
some compromise between the requirements of defending democratic society and indi-
vidual rights [is] inherent in the Convention system’’ (at para. 96).
22. See Vogt v. FRG, September 26, 1995, A/323, paras 49–51.
23. Sidiropolous v. Greece, July 10, 1998, para. 38.
24. Op. cit. para. 69.
25. See Chahal v. UK, No. 22414/93, November 15, 1996, and Al-Nashif and others v.
Bulgaria, No. 50963/99, June 20, 2002.
26. Tinnelly and McElduff v. UK, July 10, 1998.
27. Intelligence material can naturally arise in other contexts, in particular as regards
article 5 (arrest and detention), see Iain Cameron, National Security and the European
Convention on Human Rights (Uppsala/Dordrecht: Iustus/Kluwer, 2000), 267–86, and in
relation to fair trial in criminal proceedings. See, e.g., Hulki Günes v. Turkey, No. 28490/
95, June 19, 2003, and the pending case of Haas v. Germany, No. 73047/01.
28. e.g., in Canada the period is one year (Security Intelligence Service Act 1984, sec-
tion 21(5)). Anti-subversion warrants, i.e., not involving acts of violence, may be issued
for only sixty days, but no such warrants have been issued for many years. In the United
States, domestic security warrants can be issued for three months and ‘‘foreign intelli-
gence’’ warrants for one year (50 USC section 1805(d)(l)). Normal law enforcement war-
rants in the United States are issued for thirty days (18 USC section 2518(5)).
29. Malone v. UK, August 2, 1984, A/82, para. 79.
30. April 24, 1990, A/176-A.
31. April 24, 1990, A/176-B.
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32. Kruslin v. France, para. 35, Huvig v. France, para. 34.

33. No. 27798/95, February 16, 2000.
34. Ibid., para. 58.
35. The Court dealt indirectly with surveillance methods in the Rotaru case. The UK
controls introduced by the IOC Act, now improved slightly by RIPA, were examined by
the Commission in Christie v. UK, No. 21482/93, 78A DR 119 (1994). The Commission
in effect said that the mere existence of a part-time Commissioner who subjects warrants
issued to (superficial) spot-checks was enough to satisfy the quality of law and necessity
in a democratic society’s requirements. I am critical of the Commission decision. See
Cameron, 2000, pp. 114–19, 132–37, 144–47.
36. Gesetz zur Beschränkung des Brief-, Post und Fernmeldegeheimnisses (Gesetz zu
Artikel 10 Grundgesetz), hereafter ‘‘G10,’’ August 13, 1968, BGBl. 1 S. 949. Each Land has
its own G10 legislation (Ausführungsgesetze zum G10 Gesetz). The description of the fed-
eral control system is applicable mutatis mutandis to the Länder.
37. Strafprozessordnung (Code of Criminal Procedure) section 101.
38. For a discussion in English of the powers of the supervisory bodies see Cameron,
2000, pp. 127–31, and Shapiro, 2002.
39. Op. cit., para. 42.
40. The Court also noted the parliamentary character of the Board. The G10 had pre-
viously been the subject of litigation before the German Federal Constitutional Court
(Bundesverfassungsgericht, BverfG). The BverfG considered that the G10 Commission
could be relied upon to exercise the independence and discretion of judges. BverfGE (col-
lected judgments) vol. 30, pp. 1–47 at pp. 30–31.
41. Cf. Commission of Inquiry into certain activities of the Royal Canadian Mounted
Police, 2nd report, Freedom and Security under the Law (1981), 698; Lawrence Lustgarten
and Ian Leigh, In From the Cold: National Security and Parliamentary Democracy (Oxford:
Oxford University Press, 1994), 424–48.
42. Stansfield Turner, Secrecy and Democracy (London: Sidgwick and Jackson, 1985),
263
43. See, e.g., Jean Paul Brodeur, ‘‘Parliamentary vs. Civilian Oversight,’’ in National
Security and the Rule of Law, ed. Dennis Töllborg (Gothenburg: Gothenburg University,
1997).
44. For example, the German law was subsequently changed allowing for monitoring
of both domestic and foreign telecommunications to prevent and detect less drastic
threats. These are listed as a threat of serious terrorist violence, the smuggling of weapons
of mass destruction or dual use technology, smuggling of narcotics into Germany (not of
a minor nature), forgery of currency, and money laundering. See laws of October 28, 1994
(BGBl. I S.3186) and December 17, 1997 (BGBl. I S.3108). As regards foreign communica-
tions, only radio waves may be intercepted, although a fair amount of telecommunica-
tions traffic is, at some point in the course of transmission, in the form of microwaves.
45. Weber and Saravia v. Germany, No. 54934/00.
46. 1 BvR 2226/94, 2420/95 and 2437/95, 14 July 1999.
47. Publicly available information—open sources—can still create a privacy issue
under article 8, when it is ‘‘individualized’’ and stored systematically. See the Tsavachidis
case, below, and Peck v. UK, No. 44647/98, January 28, 2003.
48. David Lyon, The Electronic Eye: The Rise of the Surveillance Society, Polity Press,
(Cambridge: Cambridge University Press, 1994) 42–56.
49. Enzelin v. France, April 26, 1991, A/202, para. 53. However, this does not mean that
................. 11310$ $CH3 05-16-05 11:36:47 PS PAGE 52

an intelligence agency is forbidden from collecting information on individual’s exercise

of such freedoms (see Kalaç v. Turkey, July 1, 1997). It is rather that the goal of not dispro-
portionably infringing upon these freedoms should be seen as part of the interpretative
context of the justifiability for opening and adding to intelligence files under article 8.
50. I will not go into the issue of the extent to which the need for fast intelligence
caused, and enabled, by the ‘‘information society’’ is influencing primarily the U.S. intelli-
gence community away from strict compartmentalization, and toward providing online
access on secured networks for a wide range of ‘‘finished’’ intelligence products. For a
brief discussion see P. Sharfman, ‘‘Intelligence Analysis in the Age of Electronic Dissemi-
nation,’’ in Intelligence Analysis and Assessment, eds. David A. Charters, Stuart Farson, and
Glenn P. Hastedt (London/Portland: Frank Cass, 1996).
51. See Cameron, 2000, 196–211, 225–40, 246–51; and Iain Cameron and Dennis Töllb-
org, ‘‘Internal Security in Sweden,’’ in Democracy, Law and Security: Internal Security Ser-
vices in Contemporary Europe, eds. Jean Paul Brodeur, Peter Gill, and Dennis Töllborg
(London: Ashgate, 2002); and Dennis Töllborg, Personalkontroll, Symposion (Stockholm:
Lund, 1986).
52. V. and others v. The Netherlands, Nos. 14084–88/88, 14109/88, 14195–7/88, report
of December 3, 1991.
53. Op. cit. para. 43.
54. Ibid., paras. 44–45.
55. Hewitt and Harman v. UK (No. 2), No. 20317/92
56. Security Service Act, 1989, Section 2(2)(a) and (b).
57. No. 28802/95, October 28, 1997.
58. Law No. 14, February 24, 1992 on the Organization and Functioning of the Roma-
nian Security Service.
59. Op. cit., para. 79.
60. Sandberg v. Sweden, No. 11287/84, decision December 9, 1988, Volpi v. Switzerland,
No. 25147/94 84 DR 106 (1996). The other cases have been cited earlier.
61. Op. cit., para. 59.
62. Esbester v. UK, op. cit. at CD 76, Hewitt and Harman v. UK (No. 2), op. cit. at pp.
15–16. This repeats a formulation used by the Court in Klass v. FRG (para. 59).
63. Security Service Act 1989, schedule 1, paras 2(2) and (3).
64. Ibid. para. 2(4).
65. For fuller analysis I refer the reader to my book National Security and the ECHR.
66. Parliamentary Assembly, Recommendation 1402 on Control of Internal Security
Services in Council of Europe Member States, adopted April 26, 1999, European Commis-
sion for Democracy Through Law, Internal Security Services (CDL-INF (98) 6), Parlia-
mentary Assembly, Committee on Legal Affairs and Human Rights, Control of Internal
Security Services in Council of Europe Member States György Frunda, (rapporteur) Doc.
8301, January 21, 1999.
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................. 11310$ $CH3 05-16-05 11:36:48 PS PAGE 54
PART 2
The Revolution in Intelligence

Accountability
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................. 11310$ PRT2 05-16-05 11:36:03 PS PAGE 56
4
Governing in the Absence of
Angels: On the Practice of
Intelligence Accountability
in the United States
Loch K. Johnson
We probably didn’t shake the [intelligence] agencies hard enough

after the end of the Berlin Wall, to say: ‘‘Hey, look, the world is chang-
ing and you need to change the ways in which you operate . . . new
strategies, new personnel, new culture.’’ We should have been more
demanding of these intelligence agencies.1
T his chapter examines the current state of oversight with respect to supervi-
sion of America’s intelligence agencies. Employing the methodologies of
interviews and archival research, the analysis explores the fit of prominent over-
sight theories to this hidden side of government. As well, it evaluates the major
obstacles to effective oversight in dealing with secretive agencies.
The Meaning of Oversight

‘‘If men were angels,’’ wrote James Madison in Federalist Paper No. 51, ‘‘no gov-
ernment would be necessary.’’ In the absence of angels, however, he advised that
‘‘ambition must be made to counteract ambition.’’ The most important safe-
guard against abuse in a democratic society is elections: supervision by the peo-
ple. But Madison stressed, too, the value of establishing ‘‘auxiliary precautions’’
within the government. In the United States, this phrase has come to encompass
an array of checks and balances exercised by the three governing branches, from
lofty impeachment proceedings against the president and judicial review through
— 57 —
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investigations, commissions, hearings, and budget examinations, down to day-

to-day legislative casework. Madison foresaw the necessity for a steady scrutiny
of government programs, a feature of governance known today as accountability
or, in the inelegant term adopted by political scientists, ‘‘oversight.’’
Executive branch oversight of intelligence agencies in the United States has
been anemic. None of the major intelligence abuses during the 1960s and 1970s
were uncovered by institutions of accountability inside the executive branch, but
rather by media and legislative investigators. In 1975, the Ford administration
strengthened the President’s Foreign Intelligence Advisory Board (PFIAB) and
created an Intelligence Oversight Board (IOB), both arms of the Executive Office
of the Presidency; yet, with an occasional exception, neither of these panels has
been engaged in a continuous and robust review of intelligence operations. New
offices of inspector-general in the leading intelligence agencies, established after
the Iran-Contra scandal of 1987, have displayed greater investigative tenacity
than their weak forerunners with the same titles; but they, too, have proved
unable to supervise the vast domain of the intelligence community.
The boldest attempts at intelligence oversight by the executive branch have
been in the form of special commissions, one in 1975 (the Rockefeller Commis-
sion), a second in 1995 (the Aspin-Brown Commission), and a third in 2004 (the
Silberman-Robb Commission). The Rockefeller Commission produced evidence
of illegal domestic spying, which fueled the intelligence reform movement of that
year; and the Aspin-Brown Commission issued a thoughtful report on how the
intelligence agencies should reorient themselves in the aftermath of the Cold
War, although the recommendations were largely ignored.2 The Silberman-Robb
Commission is still conducting its probe into the flawed intelligence reporting
that predicted the existence of significant stockpiles of weapons of mass destruc-
tion (WMD) in Iraq on the eve of the second Persian Gulf War.
The most consistent and serious manifestation of intelligence oversight has
come not from presidential commissions, but from the media and the Congress.
Media reporters face high walls, however, in their efforts to track intelligence
activities; with their subpoena powers and other constitutionally based investiga-
tive tools, lawmakers are in the best position to supervise the hidden side of gov-
ernment—if they have the will.
Lee H. Hamilton, a former House member (D-Indiana) and director of the
Woodrow Wilson Center in Washington, D.C., offers this case for legislative
oversight: ‘‘Congress must do more than write the laws; it must make sure that
the administration is carrying out those laws the way Congress intended.’’3 By
means of oversight, lawmakers ‘‘can help protect the country from the imperial
presidency and from bureaucratic arrogance. . . . [and] help keep federal bureau-
cracies on their toes.’’ Former intelligence overseer and U.S. senator, Wyche
Fowler (D-Georgia) notes simply that ‘‘oversight keeps bureaucrats from doing
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Governing in the Absence of Angels 59
something stupid.’’4 More formally, political scientist Joel D. Aberbach defines

legislative oversight as ‘‘review of the actions of federal departments, agencies,
and commissions, and of the programs and policies they administer, including
review that takes place during program and policy implementation as well as
afterward.’’ He views these activities as ‘‘a significant facet of congressional
efforts to control administration and policy.’’5
Theories of Congressional Oversight

Two broad theories of oversight dominate the scholarly literature: the police-
patrol and the fire-alarm models. As explained by McCubbins and Schwartz,
with police-patrol oversight ‘‘at its own initiative, Congress examines a sample
of executive agency activities, with the aim of detecting and remedying any viola-
tions of legislative goals and, by its surveillance, discouraging such violations.’’6
In contrast, with fire-alarm oversight ‘‘Congress establishes a system of rules,
procedures, and informal practices that enable individual citizens and organized
interest groups to examine administrative decisions (sometimes in prospect), to
charge executive agencies with violating congressional goals, and to seek reme-
dies from agencies, courts, and Congress itself.’’ As ‘‘firefighters,’’ lawmakers
react to such stimuli as media revelations about wrongdoing or grievances from
interest groups.
When on police patrol, members of Congress aggressively search for informa-
tion and indications of wrongdoing or inefficiency—‘‘sniffing for fires,’’ in the
McCubbins and Schwartz metaphor. Alternatively, as a firefighter, Congress
places ‘‘fire-alarm boxes on street corners, builds neighborhood fire houses, and
sometimes dispatches its own hook-and-ladder in response to an alarm.’’7 Police-
patrol oversight is comparatively centralized, active, and direct; fire-alarm over-
sight is less centralized and involves less active and continuous intervention.
McCubbins and Schwartz, as well as Ogul and Rockman, found the fire-alarm
approach most prominent on Capitol Hill.8 Aberbach’s data suggest, though, that
in more recent Congresses police-patrolling has surpassed the reliance of law-
makers on fire alarms, at least with respect to the domestic policy domains that
he investigated.9
For Aberbach, the explanation for this change in the approach of representa-
tives to oversight lay in a dramatic transformation in public opinion that
occurred in the 1970s and 1980s. Displaying a growing disenchantment with
government performance (with Watergate and Vietnam as a backdrop, along
with popular president Ronald Reagan’s anti-government rhetoric), the public
has increasingly demanded that lawmakers pay less attention to the creation of
new government programs and focus more on the improvement of programs
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that already exist. This change in the political environment has provided a strong
incentive for members of Congress to initiate oversight themselves, anticipating
fires and claiming credit for their vigilance as overseers rather than waiting pas-
sively for alarms to sound. ‘‘As a consequence,’’ writes Aberbach, ‘‘formal over-
sight proceedings (such as oversight hearings) became common activities in the
1970s, and it seems that aggressive information search also became more
common.’’10
Police Patrolling and Firefighting

With respect to the police officer and firefighter approaches to intelligence over-
sight, the norm on Capitol Hill from 1975 to 2003 has been sporadic policing
with various degrees of enthusiasm. This is true in part because this secret world
has few interest groups and is sufficiently veiled to make media reporting on its
activities difficult; therefore, the external ‘‘fire alarm’’ stimuli have been infre-
quent—although important when they occurred. However infrequent, this
period of what may be called the ‘‘New Oversight’’ (in contrast to the minimal
intelligence review by lawmakers that existed in the United States prior to 1975)
began with a fire alarm set off by the New York Times in 1974, leading to the
most extensive investigation ever conducted into U.S. intelligence: the Church
Committee in the Senate. Moreover, three other alarms have erupted: the Iran-
Contra affair in 1987, based on another (foreign) newspaper exposé, which led
to the establishment of the joint congressional Inouye-Hamilton Committee of
inquiry; an intelligence failure in Somalia (1993), coupled with concern about
the discovery of a Russian mole inside the CIA (Aldrich H. Ames in 1994), which
led to the joint executive-legislative Aspin-Brown Commission investigation; and
the 9/11 attacks, leading to the creation of another joint congressional Goss–
Graham Committee of inquiry, as well as an ongoing congressionally appointed
Kean Commission. The controversy in 2004 over flawed WMD intelligence in
Iraq produced no new panels of inquiry in Congress, just the presidentially
appointed Silberman-Robb Commission. These reactive inquiries involving law-
makers sum to roughly five years worth of intense investigating by congressional
overseers qua firefighters during the era of New Oversight, in contrast to the
twenty-five years of reliance on individually motivated members of the Senate
Select Committee on Intelligence (SSCI) and the House Permanent Select Com-
mittee on Intelligence (HPSCI)—however few—engaged in earnest policing.
Prominent Issues of Oversight

Since the 9/11 Attacks
Beyond responding to such external stimuli as domestic spying and other scan-
dals, along with incidents of moles and terrorist attacks, what have been the
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issues that have—or should have—preoccupied the two intelligence committees?

Questionable activities have been plentiful, among them flaws in the mission of
collection and analysis, the uses of covert action and counterintelligence, how
best to organize and manage intelligence, and how to protect civil liberties. An
essential oversight responsibility, further, is to assist the intelligence community
in the establishment of priorities from among the many possible ways to spend
the annual intelligence dollar.
The Intelligence Cycle

With respect to the collection-and-analysis mission, intelligence professionals
think of a cycle with five stages: planning and direction, collection, processing,
analysis, and dissemination.11 This theoretical construct provides a useful way to
think about the range of responsibilities for serious overseers, since each stage in
the cycle warrants close legislative review.
Planning and Direction

In the first stage of the intelligence cycle, policymakers and intelligence managers
must decide how to allocate resources (widely reported in the media as a growing
$35 billion per year in the aftermath of the 9/11 attacks) toward targets consid-
ered dangerous to the United States, an exercise known as a threat assessment.
On September 11, 2001, al Qaeda leapt to the top of the threat list. Afghanistan
and Iraq soon followed. But what other perils around the globe should attract
intelligence resources? How much of the annual intelligence budget should be
spent on the gathering of information about al Qaeda, as opposed, say, to war-
lords in Afghanistan, the unpredictable nations of Iran and North Korea, or such
topics as leadership succession in China, Japanese economic strategies, organized
crime in Russia, Colombian drug trafficking, and ethnic strife in Africa?
Collection
Pointing to his choice as the major problem facing U.S. intelligence today, intelli-
gence scholar Angelo Codevilla declares: ‘‘The CIA has not been gathering
enough quality data.’’12 Overseers have a responsibility to evaluate the proper
mix of spending on technical versus human intelligence. ‘‘We simply didn’t
understand . . . the need for human intelligence . . . we simply did not provide the
resources,’’ Senator Mike DeWine (R-Ohio) conceded in public hearings after 9/
11.13 How much ‘‘HUMINT’’ is enough? How well are the agencies recruiting
case officers and translators with skills in the languages and cultures of the Mid-
dle East and South Asia? How effectively are they keeping up with the forward
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rush of communications technologies used by adversaries of the United States,

such as the exponential growth in telephone lines over the past decade?
The HPSCI minority staff director (Sheeley, 2002) views the study of ‘‘over-
head architecture,’’ that is, the proper constellation of U.S. satellites in space, as
the most important oversight question facing Congress. He asks: ‘‘How many
satellites are necessary? How big or small should they be? How much money
should be spent?’’ His second highest priority is equipping the National Security
Agency (NSA) to monitor the new forms of communications used around the
world by America’s adversaries.
Processing
Extraneous information (‘‘noise’’) gathered by intelligence agencies is always
greater in volume than valuable information, a core vexation for intelligence
officials. Processing is the effort to sift through the flood tide of information
coming into the United States from worldwide collectors (satellites, reconnais-
sance aircraft, spies) in search of useful findings. The ‘‘raw’’ intelligence, say, a
Farsi telephone interception, must be readied for examination by expert analysts
(in this example, translated into English). The job of processing can be over-
whelming, since the incoming information is like a fire hose held to the mouth.
Skill at data mining is vital, and in this regard the U.S. government continues
to lag behind the private sector. Hunting for specifically relevant information,
rather than broad gathering, is the goal. Most of the data—upwards of 90 percent
in the case of satellite photographs, for instance—remain unexamined, because
of the limits of time and trained staff.14 Moreover, even key messages may not be
handled with dispatch, as was the case with the Arabic telephone intercept of
September 10, 2001, that said ‘‘Tomorrow is zero hour’’—translated too late, on
September 12. Kessler claims that for some eight years, under Director Louis
Freer’s reign, the FBI drifted with respect to information technology. 15 If so,
where were the legislative overseers to halt the drift and demand better IT com-
petence in the intelligence community?
Analysis
‘‘The biggest failure of the Senate Intelligence Committee in recent years,’’
according to a senior staffer, ‘‘has been its lack of focus on the quality of intelli-
gence analysis.’’16 Providing timely, accurate, objective, actionable insights to
policymakers, based on the data that flow back to the United States from assets
abroad, is the essential duty of intelligence agencies, as performed by their ana-
lysts. By combing through the evidence, if analysts could have warned that in
September 2001 al Qaeda operatives would attempt to fly hijacked airlines into
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the World Trade Center and government buildings in Washington, measures

could have been carried out to thwart the attacks (tighter airport security for
one); instead, some three thousand Americans lost their lives. Again, the intelli-
gence community needs more experts with knowledge of neglected regions like
South Asia. Intelligence will remain ambiguous in most instances, as DCI Tenet
emphasized on February 5, 2004, in an unusual public post-mortem of intelli-
gence failures in Iraq preceding the second Persian Gulf War; but intelligence
officers and overseers must nonetheless push harder toward the goal of greater—
and more timely—specificity.
Dissemination
Despite enormous expenditures on intelligence, policymakers often ignore the
product delivered to them by the secret agencies. As early as 1995, for instance,
the CIA’s Counterterrorism Center warned that America could soon be the vic-
tim of ‘‘aerial terrorism,’’ with terrorists piloting aircraft into buildings.17 Twelve
reports to this effect were sent by the CIA through the higher echelons of the
government between 1995 and 2002, including SSCI and HPSCI overseers.18 Yet,
neither the White House nor any other entity took significant action to increase
airport security. In this sense, the attacks of 9/11 were as much a policy failure
as an intelligence failure—and, on both accounts, failures of legislative overseers,
who should have prodded the government into responding to these startling
warnings.
The most important criticism of intelligence to emerge from the hearings of
the Joint Intelligence Committee in 2003 was the lack of cooperation among the
secret agencies—the problem of information sharing that drove President Harry
S Truman to create a modern central intelligence in the first place. Well before
the events of 9/11, virtually every scholarly study of American intelligence called
for greater ‘‘all-source fusion’’ of information and better ‘‘jointness’’ among the
secret agencies.19 Yet, the U.S. intelligence agencies have changed little from the
damning description of them as a ‘‘tribal federation’’ made by a deputy director
of the CIA some thirty years ago.20 As a commentary on this lack of institutional
cohesion, the DCI and the secretary of defense never met with one another a
single time throughout 1999 and 2000.
An important concern for overseers, too, is the question of intelligence
politicization: ‘‘cooking’’ information to suit the political needs and ideological
inclinations of policymakers. The Church Committee recorded instances of
politicization21 and, from time to time, new charges arise.22 In 2002, Department
of Defense officials complained that CIA intelligence on Iraq failed to match their
expectations, and they established a new intelligence unit of their own (the Office
of Special Plans), perhaps to bypass the intelligence community and produce
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information that better reinforced the administration’s plans to invade Iraq and
the preconceived views on Iraq held by Pentagon officials. In 2003, a CIA esti-
mate that rejected the White House hypothesis of ties between al Qaeda and the
Iraqi regime was first withheld, briefly released, then quickly buried by the
administration.23 On another issue, according to reporter Seymour Hersh, ‘‘the
Bush Administration at the highest levels is a cocoon, resistant to information
on North Korea—until it became a crisis [in 2003].’’24 Have legislative overseers
examined these apparent efforts to politicize intelligence? If so, their findings
remain out of sight from the public, which relies on representatives to keep them
informed. This reliance may be misplaced, however, for the two congressional
oversight committees rarely report to the public, seldom hold open hearings, and
maintain a website that makes Mother Hubbard’s cupboard seem well-stocked.
Speaking truth to power is notoriously difficult; those in high office often
refuse to listen. The classic case is President Lyndon B. Johnson’s shunting aside
of the CIA’s warnings about the bleak chances for U.S. military success in Viet-
nam. Even when policymakers are willing to remove ideological and political
blinkers, intelligence officers face an additional dissemination challenge: those in
power are frequently too busy to read intelligence reports. Members of HSPCI
and SSCI must spend time working on ways to heighten the appreciation of pol-
icy officials for intelligence products. What good is it for overseers to labor hard
toward improving their intelligence if the product is ignored or distorted by pol-
icy officials?
Covert Action
Each of the major oversight laws—the Hughes-Ryan Act of 1974,25 the Oversight
Act of 1980,26 and the Intelligence Authorization Act of 199127—focused on how
best to supervise covert actions. The most contentious legislation to confront
members of the congressional oversight committees—the Boland Amendments,
named after their sponsor, HPSCI Chair Edward P. Boland (D-Massachu-
setts)28 —also dealt with covert action (in Nicaragua). Among the most embar-
rassing moments for overseers and for the intelligence agencies came about as a
result of the Iran-Contra scandal, an instance of covert action run amuck.29
No wonder covert action has been a hot potato for overseers and intelligence
officers alike. This mission can involve coups d’etat and assassination plots, the
mining of harbors with explosives, and bribes to foreign politicians, along with
fiascos like the Bay of Pigs.30 Prolonged legislative battles have been waged over
when the executive branch should report to Congress on its covert action pro-
posals. The formula in the Hughes-Ryan Act, bold at the time, was ‘‘in a timely
manner.’’ The Oversight Act of 1980 went a significant step further, requiring
prior notice, except in emergencies (when the president would still have to
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inform eight leaders of Congress—the so-called ‘‘gang of eight’’). Following two

years of haggling, President George H. W. Bush forced lawmakers (by threat of a
veto) to back away from the stringent ‘‘prior notice’’ standard. In the Intelligence
Authorization Act of 1991, the president promised to continue to report in
advance in most instances, but he insisted on more flexibility in times of crisis
(as defined by the White House). Contentious, too, has been the detail of report-
ing, which has come to depend on how sternly and insistently lawmakers
demand to know chapter and verse when the DCI presents the required briefing
on a presidential approval (‘‘finding’’) for a covert action.
With the ensuing war against al Qaeda and the Taliban regime in Afghanistan
following the 9/11 attacks, covert action came out of the slumber it had been in
since the end of the Cold War and—working jointly with overt U.S. military
intervention by the Army’s Special Forces—assumed a major role again in Amer-
ican foreign policy (as it last had during another war in Afghanistan when the
CIA helped indigenous mujahideen warriors drive out a Soviet invading force
during the 1980s). In 2002, the combination of overt Special Forces and preci-
sion bombing, along with the use of covert CIA drones and paramilitary (PM)
operatives, proved too much for al Qaeda members and Taliban fighters. Those
who escaped being captured or killed vanished like ghosts into the wild reaches
of mountainous terrain in Afghanistan and contiguous nations. Noting the effec-
tiveness of CIA/PM operations in Afghanistan, the Department of Defense has
reportedly grown enamored of the idea that the Pentagon should develop its own
covert action capabilities.31 If so, this ought to be a matter of major concern for
legislative overseers because, in the past, covert action has been the special pre-
serve of the CIA; bringing the Pentagon behemoth into the picture will signifi-
cantly complicate the supervision of this controversial form of intelligence
activity.
The newest wrinkle in covert action is use of the CIA’s unmanned aerial vehi-
cle (UAV) known as MQ-1, or the Predator, a drone initially used for spying but
then adapted during the 2002 war in Afghanistan with Hellfire missiles capable
of killing an adversary once the UAV’s cameras have spotted him. The murder of
suspected individual terrorists became a part of America’s approach to counter-
terrorism—an ‘‘extraordinary change of threshold,’’ according to a former intel-
ligence operative.32 In 2003, a Hellfire missile launched from a Predator hovering
at 10,000 feet over the deserts of Yemen struck a vehicle thought to have six al
Qaeda passengers, one of whom (it turned out) was an American citizen. All met
a fiery death, raising troubling oversight questions about the rights of suspects
and the use of drones and Hellfires as an instrument of assassination beyond
the original Afghani battlefield. ‘‘Who sees that evidence [demonstrating warlike
intentions against the United States by a Predator victim] before any action is
taken?’’ asks Yale University law professor Harold Hongju Koh.33
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As with so many other aspects of intelligence, the 9/11 terrorist attacks against
the United States reprised a topic that had been at the center of the Church Com-
mittee investigation: Should America resort to assassinations? Senator Church
argued no, except in the most dire circumstances.34 Agreeing, President Gerald
R. Ford signed an executive order in 1976 [No. 11,905, 41 Fed. Reg. 7703] to halt
assassination plots, although with a waiver in time of war. The waiver provision
leaves the door open for the assassination of contemporary terrorists, since Con-
gress authorized war against them soon after the 9/11 attacks. A rising chorus of
television pundits now argues, however, that even the waiver is insufficient, and
they call for the outright revision of the executive order altogether in this time
of danger—yet another vital issue for consideration on the crowded agenda of
congressional overseers.
Counterintelligence
Counterterrorism, a subsidiary of counterintelligence (the thwarting of enemy
attacks and penetrations), is currently Priority One for U.S. intelligence officers
and overseers. Still, counterintelligence officers have other responsibilities as
well, as suggested by this unholy trinity: Walker, Hanssen, and Ames. The Walker
family stole secrets from U.S. Naval Intelligence and sold them to the Soviets
from 1968 until 1984, when a disgruntled wife in the family finally tipped off the
FBI. Robert P. Hanssen and Aldrich H. Ames also spied for the Soviets, Hanssen
beginning in 1979 and Ames in 1985. Both carried on their espionage for Russia
after the Cold War, until Ames was caught in 1994 and Hanssen in 2001. How
did these traitors slip through America’s security defenses? Were legislative over-
seers vigilant enough in stressing the importance of the counterintelligence mis-
sion?
With the current emphasis on jointness and computer connectivity, intelli-
gence compartmentalization will be on the decline in order to improve the shar-
ing of information across agency barriers. This jointness can increase the danger
of a major counterintelligence failure: an Ames with access to information across
all agencies. Adding to the challenge is the recruitment of non-traditional intelli-
gence officers into the ranks of the secret agencies. Most Americans of Middle
Eastern and South Asian heritage, for example, are doubtless loyal to the United
States; but among them may hide an al Qaeda sleeper. For a wide span of time
between 1975 and 1995, counterintelligence did not receive the attention it war-
ranted from intelligence managers or overseers. The country can ill afford a com-
parable laxity now, as the intelligence agencies begin to integrate better their
communications channels in the quest for interagency all-source fusion.
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Organization and Management

The organizational structure of the U.S. intelligence community is a morass. It
remains too fragmented (‘‘stovepiped’’); the DCI is by statute—the National
Security Act of 1947 [Pub. L. No. 80–253, 61 Stat. 495]—a weak leader, lacking
final budgetary and personnel authority over the agencies (with the exception of
the CIA) that are supposed to be the director’s responsibility. In addition, the
management of satellite imagery remains in a muddle, with tangled lines of
authority and responsibility among the NSA, the National Reconnaissance Office
(NRO), and the new National Geo-Spatial Agency (NGA, formerly the National
Imagery and Mapping Agency). Further, other structures that have arisen in the
aftermath of 9/11, such as the Department of Homeland Security and the Terror-
ist Threat Integration Center, suggest even more fragmentation and ambiguity
over mission and authority. Congressional overseers have much work to do in
bringing greater cohesion to the intelligence community and its allied agencies,
not least the improved sharing of information between the FBI and the CIA.
The intelligence jurisdictional lines on Capitol Hill itself are a jumble, with
accountability spread over too many committees: Appropriations, Armed Ser-
vices, Judiciary, and now Homeland Security, in addition to the two intelligence
committees. ‘‘Oversight has become too complicated,’’ deplores NIMA Director
Lt. Gen. (ret.) James R. Clapper, Jr. (2003). ‘‘There are too many jurisdictions,
too much paperwork.’’ Clapper notes that the new Department of Homeland
Security presently has to answer to forty-four congressional committees. The
whole intelligence wiring diagram cries out for reform and consolidation, both
within and among the agencies and on Capitol Hill. Will overseers confront this
Gordian knot?
Civil Liberties
Above all, overseers have an obligation to guard the precious civil liberties of
U.S. citizens. The destruction of terrorism would be a Pyrrhic victory if, in the
process, what matters most about American society was destroyed. Too often in
the past, government paranoia has led to the trampling of basic rights, as with
the FBI Counterintelligence Program (‘‘Cointelpro’’) abuses uncovered by the
Church Committee in 1975.35 In the wake of the 9/11 attacks, the nation again
faces not only the danger of future terrorist attacks, perhaps with even more
lethal weapons, but also the erosion of constitutional principles.
The signs of risk to civil liberties have been abundant: a dubious Information
Awareness Office in the Defense Department with the self-professed goal of
‘‘total information awareness,’’ led by former Iran-Contra conspirator John M.
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Poindexter; reports that the CIA will place agents in nearly all of the FBI’s fifty-
six counterterrorism offices in U.S. cities;36 resistance from the Justice Depart-
ment toward congressional requests to review the use of new antiterrorism pow-
ers, like the U.S.A. Patriot Act, passed in such haste in 2002 that many lawmakers
had not even read the proposal before casting their votes in favor;37 a distin-
guished visiting scholar from South Asia on his way to a seminar at the Brookings
Institution snatched off the streets of Washington, D.C., by immigration offi-
cials;38 the arrest and indefinite detention of Americans without trial and without
access to legal counsel.39 Here is a rich oversight agenda in itself.
Chief Obstacles to Contemporary

Intelligence Oversight
It is one thing to have a serious oversight agenda; it is quite another to be suc-
cessful in carrying it out. Several obstacles stand in the way.
Motivation
Nothing is more important to effective oversight than the will of individual law-
makers or executive overseers to engage in a meaningful examination of intelli-
gence programs. ‘‘Determination is the key. Members [of Congress] have to be
willing to break arms and legs,’’ emphasizes a staffer with three decades of experi-
ence on the Hill.40 ‘‘Not too many are willing,’’ he concludes. In 2003, a former
special assistant to DCI William J. Casey urged former lawmakers and other
officials on the Kean Commission (investigating the 9/11 attacks) to pursue their
responsibilities with utmost seriousness, in a ‘‘helicopter-raids-at-dawn, break-
down-the-doors, kick-their-rear-ends sort of operation’’41—although, with their
reputation of trying to elude overseers themselves, this is hardly the approach to
oversight that he or his former boss encouraged in the 1980s.
While such exhortations make an important point, one would almost settle
just for a more serious participation of lawmakers in oversight hearings. For the
period from 1975 to 1990, a study on the quality of intelligence oversight in pub-
lic hearings found that although members will show up (along with the network
television crews) for ‘‘firefighting’’ sessions dealing with scandals, attendance at
hearings of a more routine, police-patrolling nature was spotty—only approxi-
mately one-third of the total SSCI and HPSCI membership, on average, during
these years. Citing Woodrow Wilson’s adage that ‘‘Congress in committee-rooms
is Congress at work,’’ the study concluded that ‘‘a good many legislators failed
to show up for work.’’42 The current HPSCI staff director claims, however, that
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70 percent of the lawmakers on that panel (the Goss Committee) have been
attending hearings in recent years.43
Among those who did show up at hearings in the 1975–90 study, the quality
of the questioning of CIA witnesses varied greatly. Senator Barry Goldwater
(R-Arizona) turned the questioning away from intelligence and back toward the
imperfections of Congress, declaring that ‘‘this place has more leaks than the
men’s room at Anheuser-Busch.’’ Some other members, though, engaged in a
thorough probing and even harsh criticism of Agency operations. Yet, by and
large, congressional questioning has leaned more toward the advocacy side of the
ledger, except when scandals have been the focus; then a majority of members
escalate their degree of questioning to difficult (‘‘hardball’’) interrogations.
Former HPSCI member Tim Roemer (D-Indiana) frets about the level of
commitment to intelligence accountability in today’s Congress. ‘‘We’ve gotten
away from the Church Committee emphasis on oversight,’’ he suggests.44 ‘‘There
aren’t even oversight subcommittees on HPSCI or SSCI anymore.’’ Another
expert offered a similarly pessimistic evaluation. Since the 9/11 attacks, the lead-
ing intelligence agencies ‘‘have managed to fend off the most important reforms
advocated by the House and Senate intelligence committees,’’ concluded retired
Army Lt. Gen. William E. Odum, a former NSA director.45 A Washington Post
editorial observed that the ‘‘Congress has stood by in an alarming silence.’’46
Even director(s) of central intelligence (DCI) have been critical of oversight
flaccidity. ‘‘Congress is informed to the degree that Congress wants to be
informed,’’ testified former DCI William E. Colby, pointing out that several law-
makers had expressed little interest in being briefed by the CIA.47 Recalled
another DCI, Adm. Stansfield Turner: ‘‘I believe the committees of Congress
could have been more rigorous with me [during the Carter Administration] . . .
it would be more helpful if you are probing and rigorous.’’48 Were he alive, no
doubt DCI Casey would disagree—with scatological emphasis. Several lawmak-
ers also have quite a different view from Colby and Turner, preferring the role
of advocate over adversary. For them, the president and the DCI know best in
this sensitive domain; better to follow their lead than to second-guess and per-
haps harm America’s efforts against terrorism and other threats. Efficiency
trumps accountability.
Executive Branch Cooperation

Vital for effective accountability, too, is the cooperation of the White House,
the Justice Department, and the intelligence agencies in working with Congress.
Lawmakers know about intelligence activities only to the extent that the presi-
dent and the DCI allow them to know.49 As Currie puts it, oversight works ‘‘only
if there is honesty and completeness in what the members of the intelligence
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community tell their congressional overseers.’’50 Or as a former HPSCI staff

director has stressed, a ‘‘spirit of comity’’ between the branches is essential.51 Yet
this sine qua non is often missing. The Church Committee ran into one road-
block after another erected by the Ford Administration to slow the panel’s prog-
ress. At one point, a Defense Department truck dumped enough documents on
the committee’s doorstep at the Senate Dirksen Office Building to keep it busy
for weeks—without a single significant paper in the whole lot.
More recently, the Congress’s Joint Committee complained in 2002 about
stonewalling by the second Bush Administration. During that probe, DCI Tenet
tried to put the Committee on the defensive with aggressive responses in public
hearings to questions about 9/11. Allotted ten minutes to speak, he went on in a
‘‘somewhat defiant tone’’52 for fifty minutes, despite co-chair Bob Graham’s
request that he abbreviate his remarks. Tenet also refused to declassify informa-
tion the Committee asked to make public; and, just before a scheduled hearing,
the DCI withdrew intelligence witnesses the Committee had called to testify.
‘‘Witnesses are requested, refused, requested again, granted, and then—at the
last minute—refused again,’’ groused Richard C. Shelby (R-Alabama), a member
and former chair of SSCI, on the Senate floor.53
When word leaked that the Committee’s staff had cautioned members about
the likelihood of elusive responses from a scheduled CIA witness, Tenet blasted
the panel for prejudging the veracity of CIA officers. The staff, though, could
hardly be blamed for reminding members that, in past inquiries, intelligence wit-
nesses had not always been forthcoming; indeed, some had misled Congress,
even under oath during the Iran-Contra investigation. Moreover, officers from
the CIA had ‘‘flat lied’’ to SSCI in 1995–96, according to a senior staffer, when
the Committee attempted to investigate the Agency’s ties with a controversial
military officer in Guatemala.54
With a growing unhappiness over Tenet’s belligerent posture before the Joint
Committee, Graham ‘‘toughened his stance toward the intelligence agencies
when the Administration began to stonewall,’’ recalls a staff aide on the panel.55
When the DCI refused to provide SSCI with CIA documents on Iraq and then
failed to appear at a closed Joint Committee hearing, Graham accused the CIA
of ‘‘obstructionism’’ and said that this behavior was ‘‘unacceptable.’’56 A former
Hill staffer who follows intelligence closely concluded that the CIA had ‘‘stuck
its fingers in the eye of the oversight committee, which—under Graham—was
waking up very late to the fact that it is being rolled.’’57 Despite the agitation of
Graham and Shelby, most of their colleagues on the Committee adopted a more
benign view of the intelligence community’s behavior and preferred to concen-
tration on the terrorist threat.
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Reporting Requirements
Related to secrecy is the issue of what the intelligence agencies should tell the
Congress, and when. Lawmakers now have, in theory at least, access to all infor-
mation that the secret agencies provide to the executive branch, with the excep-
tion of the President’s Daily Brief. In reality, Congress frequently has to throw a
fit to make the agencies responsive to the requests of lawmakers, although cer-
tainly the degree of access accorded SSCI and HPSCI far outshines what over-
seers on Capitol Hill received prior to 1975.
As a means for guaranteeing a more systematic flow of information to over-
seers about intelligence operations, Congress has established formal reporting
requirements—some in statutory form, others written or oral agreements
between SSCI and HPSCI leaders and the DCI. Lawmakers and intelligence offi-
cers cleave into two camps on this subject. Some believe that reporting require-
ments, such as the prior-notice stipulation for covert actions (except in times of
emergency), are indispensable points of leverage for keeping Congress up-to-
date. Others balk at what they see as excessive involvement in the fine workings
of intelligence by members of Congress, leading to an unwarranted surcharge on
the time of intelligence officials who could otherwise be dealing with terrorism
and other threats—‘‘micro-management,’’ in the favorite slight used by critics of
any form of oversight they oppose (often all forms).
For proponents of robust accountability, reporting requirements are a must
for keeping the oversight committees informed. Otherwise, intelligence manag-
ers might brief lawmakers merely when they were so inclined, or when forced
to by scandal. Better to have important operations automatically brought to the
attention of overseers, who might otherwise never know about them. Obviously,
reporting requirements should not be excessive in number and should focus on
important activities. The eighty-seven reports that were due on May 1, 2002, to
HPSCI from the intelligence community seem excessive; but at the same time,
a 92 percent delinquency rate in providing those reports reflects poorly on the
community’s attitude and efforts to communicate well with lawmakers.58
The purpose of oversight is not to stifle the vital work of the intelligence agen-
cies, but rather to preserve civil liberties, maintain budget discipline, and bring
to bear—as former SSCI member (and defense secretary) William S. Cohen has
put it—‘‘the combined wisdom of both branches.’’59 Reporting requirements
help ensure the sharing of information with Congress to allow this pooling of
wisdom. If one is dead set against a role for Congress in intelligence matters,
though, one is likely to endorse national security adviser Poindexter’s character-
ization of lawmakers and their reporting requirements as nothing but an ‘‘out-
side interference.’’60
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Co-optation
The danger always exists that lawmakers will ‘‘go native.’’ Like ambassadors
abroad accused of taking on the coloration of the country where they are in resi-
dence (‘‘localitis’’) rather than the country they represent, HPSCI and SSCI
members and staff can come to identify more with the intelligence agencies than
with their roles as detached and objective supervisors. ‘‘They are awful nice to
[overseers],’’ recalls former HPSCI chair Hamilton, ‘‘invite them to the CIA, give
them a nice dinner, court them, seduce them.’’61 Congressional members and
staff who come out of the intelligence community might be especially prone to
favoring their old agencies. As in the case of HPSCI chair Goss, a majority of
staff members on the two Intelligence Committees have had earlier careers in
one or another of the secret agencies. A remarkable number of SSCI and HPSCI
staffers also take up (or resume) positions in the intelligence community after a
tour of duty on the Hill, DCI Tenet most conspicuously.
For the most part, though, co-optation seems less of a problem than the per-
vasive philosophy among lawmakers (especially in the Republican Party)62 —that
Congress should pay deference to the executive branch on matters of national
security. Occasionally, some staffers do exhibit an inability to criticize their for-
mer agencies; but, just as often, the Committees have benefited from having
staffers who can tell whether their former colleagues in the intelligence commu-
nity are playing it straight with Congress or spinning. Still, it would be prudent
for the committees to recruit a higher percentage of non-intelligence profession-
als to provide ballast on their staffs, even though this would involve some train-
ing costs.
When SSCI and HPSCI were created, co-optation was very much on the
minds of congressional leaders. Senators included a special provision in SSCI’s
founding language [Senate Resolution 400, Sec. 3 (b), 94th Cong., 1976] that
required a rotation of members off the panel after eight-year periods of ser-
vice—a provision later adopted in the House. This rule, so the thinking went,
would help eliminate the development of cozy ties between lawmakers and intel-
ligence officers. The growing consensus, however, is that rotation has actually
harmed oversight because, just as members are becoming experienced and expert
in arcane intelligence matters, they must depart the Committee.
Further, since one can never count on serving as committee chair in a rotation
system (one may have to rotate off before arriving at the top), the incentives for
working hard to learn the subject matter are diminished. Even those who do rise
to hold the chair generally occupy that position for only a couple of years,
although GOP leaders waived the eight-year limit to allow Porter Goss (R-Flor-
ida) a fourth term of leadership on HPSCI. Other observers insist, nonetheless,
that it is valuable to have a large percentage of representatives flowing through
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the two Intelligence Committees, not only to guard against co-optation but also
to disseminate throughout the legislative chambers expertise about this impor-
tant and poorly understood aspect of American government. ‘‘It’s better to have
people with fresh eyes [on the Committees],’’ reasoned former Senator Fowler
in favor of rotation (2003). On balance, though, having continuity and experi-
ence on the Committees seem to overshadow the benefits of rotation. The eight-
year ceiling should be razed, or at least raised.
Conclusion
Intelligence oversight is a subject that is richly textured. It encompasses the
supervision of a vast range of secret activities and thirteen major agencies. Over-
sight since 1975 has been relatively robust compared to earlier years, yet it falls
far short of goals espoused by the Church Committee and other panels that have
promulgated intelligence reform. Officials in the executive branch have been des-
ultory in their oversight duties. And while lawmakers have responded responsi-
bly to fire alarms—carrying out probes into domestic spying, improper covert
actions, counterintelligence vulnerabilities, and major intelligence failures—they
have done less well in the day-to-day police work that might uncover weaknesses
in the first place and eliminate the need for hurry-up ex post facto firefighting.
There have been admirable efforts at oversight by individual members of both
branches; and now and then the supervisory committees have worked well as a
whole, as when SSCI and HPSCI, under chairmen David L. Boren (D-Okla-
homa) and Larry Combest (R-Texas) labored aggressively to improve the per-
formance of the intelligence agencies; or, more recently, inside the executive
branch, when Brent Scowcroft, chairman of the President’s Foreign Intelligence
Advisory Board (PFIAB), insisted in 2002 on a hard-hitting review of intelligence
organization (though his report has never been released to the public). Mostly,
however, intelligence oversight since 1975 has been a story of discontinuous
motivation, ad hoc responses to scandals, and reliance on the initiative of just a
few members of Congress—mainly the occasional dedicated chair—to carry the
burden. Absent still, despite the recommendation of one study after another, is
a comprehensive approach to intelligence review that mobilizes most (if not all)
members of SSCI and HPSCI, an approach that includes a systematic plan of
police-patrolling without waiting for fire alarms. Responding after the fact to
intelligence failures in this dangerous world is not good enough; overseers must
try harder to prevent surprises like the 9/11 attacks from occurring in the first
place.
What are the ingredients for better intelligence oversight? Of foremost impor-
tance is greater devotion to police-patrolling instead of waiting for fire alarms,
................. 11310$ $CH4 05-16-05 11:37:05 PS PAGE 73

which in the closed world of intelligence are unlikely to sound anyway until a
major scandal or disaster strikes. Further, lawmakers need to pay closer attention
to an administration’s threat-assessment decisions, its balance between human
and technical collection, its data-mining capabilities, the perspicacity of its ana-
lytic reports (with more external critiques by academicians—so-called A-team,
B-team drills), charges of politicization, and efforts to achieve institutional and
computer jointness to enhance all-source fusion.
Truly meaningful oversight would also more closely scrutinize covert action,
especially with respect to the beguiling assassination option and efforts by the
Department of Defense to develop its own capabilities in this area. One would
expect to see, too, a renewed focus on counterintelligence: appraising the merits
of an MI5-like unit in the United States; reviewing barriers to another Ames,
Hanssen, or Walker; and building protections against hostile electronic penetra-
tions of the new computer integration. Among other issues lawmakers need to
examine more closely are the merits of greater authority for the DCI, to over-
come the powerful centrifugal forces in the community. On the civil liberties
side, overseers must also revisit the deeply flawed Patriot Act, the procedures of
the Foreign Intelligence Surveillance Act (FISA) Court, and the rights of Muslim
Americans.
Effective oversight depends as well on the development of a more systematic,
comprehensive five-year plan for oversight, to include the welding together of
existing intelligence laws into an Intelligence Charter comparable to the National
Security Act of 1947, along with clear annual statements about the expectations
of lawmakers regarding each of the intelligence missions. Better incentives must
be created to encourage the involvement of officials in oversight, such as public
praise by the White House and congressional leaders, as well as the granting of
key committee assignments on Capitol Hill for lawmakers who have demon-
strated skill and devotion to oversight. It would be useful, further, to establish
more regular meetings between rank-and-file overseers and the DCI.
Sensible oversight would rely on fewer reporting requirements, but serious
penalties for bureaucrats who fail to honor reasonable deadlines. Moreover, con-
gressional jurisdictional lines for oversight need to be restructured, so that SSCI
and HPSCI are given more authority over the full intelligence community, in
place of the tangled strands that currently exist with the Armed Services, Judi-
ciary, and Homeland Security Committees. Vital, too, are measures to make the
government less secretive, including more SSCI and HPSCI opening hearings,
more online reports about the activities of the oversight committees, and fewer
classification actions by the executive branch. The two oversight committees
should return to the use of bipartisan staff in the Congress and pursue the
recruitment of more legislative staffers with backgrounds outside the intelligence
community. Finally, PFIAB and IOB should recruit individuals better prepared
................. 11310$ $CH4 05-16-05 11:37:06 PS PAGE 74

and motivated to engage in a meaningful and continuous review of intelligence

programs.
Despite its flaws and a tendency toward too much advocacy and too little crit-
icism, the American system of intelligence oversight is robust compared to other
nations. It represents a dramatic improvement over the relative absence of mean-
ingful accountability in the United States before the intelligence investigations of
1975 and the establishment of Senate and House Intelligence Committees. These
committees are independent from the executive branch and have a capacity to
actively probe intelligence programs, including the power to subpoena any infor-
mation they seek (although from time to time the executive has fought this privi-
lege and the committees have often opted to negotiate a compromise, rather than
seek legal redress). A number of laws allow the committees access to information
about intelligence activities before they are implemented, not just after some-
thing goes wrong. The committees also have sizable staffs with extensive intelli-
gence expertise. The membership of the committees reflects the spectrum of
Republican and Democratic party politics and, even though partisan squabbling
has increased on Capitol Hill in recent years, the committees have proven them-
selves reliable keepers of the nation’s highest secrets.
Nevertheless, further reforms are in order to improve intelligence supervision.
The time has never been more propitious for reform. Enormous incentives exist:
the prevention of another 9/11 attack and better monitoring of WMD prolifera-
tion. If Congress and the executive branch will take the time to address these
oversight deficiencies, James Madison will have his three cheers.
Notes
1. Senator Bob Graham (D-Florida ) in ‘‘The Lehrer News Hour,’’ Public Broadcast-
ing System (PBS) Television, USA, October 17, 2002.
2. Loch K. Johnson, ‘‘Inside the Aspin-Brown Commission on Intelligence,’’ Paper,
Annual Meeting, American Political Science Association, Boston (September 1, 2002).
3. Lee H. Hamilton and Jordan Tamam, A Creative Tension: The Foreign Policy Roles
of the President and Congress (Washington, D.C.: Woodrow Wilson Center Press, 2002):
56.
4. Wyche Fowler, interview with author (Washington, D.C.: May 9, 2003).
5. Joel D. Aberbach, Keeping a Watchful Eye: The Politics of Congressional Oversight
(Washington, D.C.: Brookings Institution): 2.
6. Mathew D. McCubbins and Thomas Schwartz, ‘‘Congressional Oversight Over-
looked: Police Patrols and Fire Alarms,’’ American Journal of Political Science 28 (February
1984): 166.
7. Ibid.
8. Morris S. Ogul and Bert A. Rockman, ‘‘Overseeing Oversight: New Departures and
Old Problems,’’ Legislative Studies Quarterly 15 (February 1990): 14.
................. 11310$ $CH4 05-16-05 11:37:08 PS PAGE 75

9. Joel D. Aberbach, Keeping a Watchful Eye: The Politics of Congressional Oversight

(Washington, D.C.: Brookings Institution, 1990), 98.
10. Ibid., 193.
11. Central Intelligence Agency, Fact Book on Intelligence (Office of Public Affairs, April
1983): 16.
12. Jeffrey Goldberg, ‘‘The Unknown,’’ The New Yorker (February 10, 2003): 45.
13. U.S. Congress, Hearings (Joint Committee on Intelligence, 103d. Cong., 2d sess.
2002).
14. John Millis [HPSCI staff director]. Speech, Central Intelligence Retiree’s Associa-
tion, Langley, Virginia (October 5, 1998).
15. Ronald Kessler, The Bureau: The Secret History of the FBI (New York: St. Martin’’s,
2002): 447.
16. Loch K. Johnson, author’s interview with senior staffer (Washington, D.C., Febru-
ary 6, 2003).
17. Loch K. Johnson, ‘‘Inside the Aspin-Brown Commission on Intelligence,’’ Paper,
Annual Meeting, American Political Science Association, Boston (September 1, 2002).
18. George J. Tenet, Testimony, Joint Committee on Intelligence (October 16) and
‘‘Written Statement for the Record’’ (October 17, 2002): 10.
19. e.g., Loch K. Johnson, Bombs, Bugs, Drugs, and Thugs: Intelligence and America’s
Quest for Security (New York: New York University Press, 2000); ‘‘The CIA’s Weakest
Link,’’ Washington Monthly 33 (July/August 2001): 9–14.
20. Victor Marchetti and John D. Marks, The CIA and the Cult of Intelligence (New
York: Knopf, 1974), 96.
21. U.S. Senate. Final Report. Select Committee to Study Governmental Operations
with Respect to Intelligence Activities (the Church Committee), 94th Cong., 2d Sess.,
Rept. 94–755 (May, 1976).
22. e.g., Harry Howe Ransom, ‘‘The Politicization of Intelligence,’’ in Intelligence and
Intelligence Policy in a Democratic Society, ed. Stephen J. Cimbala (Dobbs Ferry, New York:
Transnational Press, 1987): 25–46; Thomas Powers, ‘‘The Trouble with the CIA,’’ The
New York Review of Books, January 17, 2002.
23. Paul, Lashmar and Raymond Whitaker, ‘‘MI6 and CIA: The New Enemy Within,’’
The Independent on Sunday (U.K.), February 9, 2003, A1.
24. Seymour Hersh, interviewed by television host Bill Moyers, ‘‘NOW’’ (February 21,
2003).
25. Pub. L. No. 93–559; 32, 88 Stat. 1804.
26. Pub. L. No. 96–450; 407(b), 94 Stat. 1981.
27. Pub. L. No. 102–88, 105 Stat. 441.
28. e.g., Department of Defense Appropriations Act 1985, Pub. L. No. 98–473, 98 Stat.
1935 (1984).
29. Frederick M. Kaiser, ‘‘Impact and Implications of the Iran-Contra Affair on Con-
gressional Oversight of Covert Action,’’ International Journal of Intelligence and Counter-
intelligence 7 (Summer 1994): 205–34; James Currie, ‘‘Iran-Contra and Congressional
Oversight of the CIA,’’ International Journal of Intelligence and Counterintelligence 11
(Summer 1998): 185–210.
30. Loch K. Johnson, ‘‘On Drawing a Bright Line for Covert Operations,’’ American
Journal of International Law 86 (April 1992): 284–309; Gregory F. Treverton, Covert
Action: The Limits of Intervention in the Postwar World (New York: Basic Books, 1987).
31. Patrick E. Tyler, ‘‘Spy Wars Begin at Home,’’ New York Times, November 3, 2002,
................. 11310$ $CH4 05-16-05 11:37:09 PS PAGE 76

E3; CNN.com, ‘‘Pentagon Takes Quiet Aim at Terror,’’ AP Report, November 13, 2002;
Priest, The Mission (New York: Norton, 2003).
32. Quoted by Dana Priest, ‘‘CIA Killed U.S. Citizen in Yemen Missile Strike,’’ Wash-
ington Post, November 8, 2002b, 1A.
33. James Risen and David Johnston, ‘‘Bush Has Widened Authority of C.I.A. to Kill
Terrorists,’’ New York Times, December 15, 2002, 1A.
34. Frank Church, ‘‘Covert Action: Swampland of American Foreign Policy,’’ Bulletin
of the Atomic Scientist 32 (February 1976): 7–11; Frank Church, ‘‘Do We Still Plot Mur-
ders?’’ Los Angeles Times, June 14, 1983, 5.
35. Loch K. Johnson, ‘‘Congressional Supervision of America’s Secret Agencies: The
Experience and Legacy of the Church Committee,’’ Public Administration Review 64
(January–February 2004): 3–26.
36. Dana Priest, ‘‘CIA Is Expanding Domestic Operations,’’ Washington Post, October
22, 2002a, A1.
37. Patrick Cohen, ‘‘9/11 Law Means More Snooping?’’ New York Times, September 7,
2003, A15; Harry F. Tepker, ‘‘The USA PATRIOT Act,’’ Extensions, A Journal of the Carl
Albert Center, University of Oklahoma (Fall 2002): 13.
38. George Lardner Jr., ‘‘Brookings Scholar Is Detained by INS,’’ Washington Post, Jan-
uary 30, 2003, A1.
39. Anthony Lewis, ‘‘Marbury v. Madison v. Ashcroft,’’ New York Times, February 24,
2003, A21; Michael Ignatieff, ‘‘The Burden,’’ New York Times Magazine, January 5, 2003,
24ff.
40. Loch K. Johnson, author’s interview with senior staffer (Washington, D.C.: Febru-
ary 4, 2003).
41. Herbert E. Meyer, ‘‘A Memo to the 9/11 Commission,’’ National Review, January
6, 2003, online edition at www.nationalreview.com.
42. Loch K. Johnson, ‘‘Playing Ball with the CIA: Congress Supervises Strategic Intelli-
gence,’’ in Congress, the Executive, and the Making of American Foreign Policy, ed. Paul E.
Peterson (Norman: University of Oklahoma Press, 1994): 56.
43. Timothy R. Sample [HPSCI staff director], author’s interview (Washington, D.C.:
January 29, 2003).
44. Tim Roemer, author’s interview (Washington, D.C.: February 5, 2003).
45. Jim McGee, ‘‘Spies,’’ CQ Homeland Security (Washington, D.C.: Congressional
Quarterly, 2003): 3
46. Cited by Steven Aftergood, ‘‘Silence on the Hill,’’ Secrecy News (Federation of
American Scientists Project on Government Secrecy 2004, January 5, 2004): 2.
47. U.S. House, Hearings on Congressional Oversight of Covert Activities (Permanent
Select Committee on Intelligence, 98th Cong., 2d. sess., September 20, 1983): 29.
48. U.S. House, Hearings on H.R. 1013, H.R. 1317, and Other Proposals Which Address
the Issue of Affording Prior Notice of Covert Actions in the Congress (Permanent Select
Committee on Intelligence, April-June, 1987): 66.
49. William H. Jackson Jr., ‘‘Congressional Oversight of Intelligence: Search for a
Framework,’’ Intelligence and National Security 5 (July 1990): 115; L. Britt Snider, Sharing
Secrets with Lawmakers: Congress as a User of Intelligence (Washington, D.C.: Center for
the Study of Intelligence, Central Intelligence Agency, 1997).
50. James Currie, ‘‘Iran-Contra and Congressional Oversight of the CIA,’’ International
Journal of Intelligence and Counterintelligence 11 (Summer 1998): 203.
51. Thomas K. Latimer, ‘‘U.S. Intelligence and the Congress,’’ Strategic Review (Sum-
mer 1979): 48.
................. 11310$ $CH4 05-16-05 11:37:10 PS PAGE 77

52. Ken Guggenheim, ‘‘Tenet Defends CIA’s Pre-9/11 Efforts,’’ Washington Post, Octo-
ber 17, 2002, A1.
53. Senator Richard C. Shelby, ‘‘Remarks,’’ Congressional Record (September 24, 2002).
54. Loch K. Johnson, author’s interview with senior staffer (Washington, D.C.: Febru-
ary 6, 2003).
55. Loch K. Johnson, author’s interview, SSCI senior staffer (Washington, D.C.:
December 18, 2002).
56. Neil A. Lewis, ‘‘Senator Insists C.I.A. Is Harboring Iraq Reports,’’ New York Times,
October 4, 2002, A12.
57. Johnson, e-mail communication to the author (October 4, 2002).
58. Walter Pincus, ‘‘Overdue Intelligence Reports,’’ Washington Post, December 1,
2002, A1.
59. William S. Cohen, ‘‘Congressional Oversight of Covert Actions,’’ International
Journal of Intelligence and Counterintelligence 2 (Summer 1988): 162.
60. U.S. Congress, Senate Select Committee on Secret Military Assistance to Iran and
the Nicaraguan Opposition and House Select Committee to Investigate Covert Arms
Transactions with Iran (the Inouye–Hamilton Committee), (Hearings, Vol. 8, 100 Cong.,
1st Sess., 1987): 159.
61. Russ Baker, ‘‘Chill on the Hill,’’ Nation, October 14, 2002, 13.
62. Loch K. Johnson, ‘‘Playing Ball with the CIA: Congress Supervises Strategic Intelli-
gence,’’ in Congress, the Executive, and the Making of American Foreign Policy, ed. Paul E.
Peterson (Norman: University of Oklahoma Press, 1994), 49–73.
................. 11310$ $CH4 05-16-05 11:37:11 PS PAGE 78

5
Accountability of Security and
Intelligence in the United
Kingdom
Ian Leigh
T he United Kingdom (UK) lacks a written constitution; thus, there is no

foundational document allocating responsibility for security and intelligence
matters. Government is carried out in the name of ‘‘the Crown’’ (i.e., the Queen)
although in practice nearly all legal powers conferred on the Crown, whether by
legislation or by the prerogative, are exercised by government ministers. Respon-
sibility for intelligence and security, together with the closely related areas of
defense and foreign relations, has until recently rested upon the prerogative—
that is, the residual powers of the Crown recognized at common law. These pow-
ers are broad in nature and have adapted continuously since the medieval period.
The courts have traditionally been highly deferential to national security claims,
whether founded on the prerogative or on statutory powers and exceptions.
Against this time scale and background the legislation for intelligence and
security matters is very recent—the relevant statutes are the Security Service Act
1989 (covering the Security Service, MI5) and the Intelligence Services Act (ISA)
1994 (covering the Secret Intelligence Service [SIS, or MI6] and Government
Communications Headquarters, GCHQ). Other parts of the intelligence machin-
ery such as Defense Intelligence and the Joint Intelligence Committee remain
based on the prerogative—they have been established and can be reformed with-
out reference to Parliament.
Until 1989 the only officially published details of the work of the security and
intelligence agencies was the administrative charter governing the Security Ser-
vice’s work,1 the Maxwell-Fyfe Directive—named after the home secretary who
— 79 —
................. 11310$ $CH5 05-16-05 11:36:57 PS PAGE 79

issued it in 1952. This brief document emphasized the role of the Service in the
‘‘Defense of the Realm’’ and its duty to behave non-politically. The Service was,
nevertheless, responsible to the home secretary, and its director-general had a
right of access to the prime minister. The Security Service Act 1989 made no
change to these constitutional arrangements—the Service was accountable only
to ministers and not to Parliament. However, the Act did provide an explicit
statutory basis for the Service’s work. This satisfied the objection that it was
unable to conduct surveillance or gather personal information without violating
human rights.
It became apparent that the UK would be found to be in breach of the Euro-
pean Convention on Human Rights (ECHR) unless legislation was introduced.
Although the ECHR permits restriction of rights such as respect for private life
(Article 8 of the Convention) where necessary in a democratic society in the
interests of (inter alia) national security, this is with the important precondition
that the restrictions must be authorized by law.2 The prerogative basis of the
Maxwell-Fyfe Directive was insufficient for this purpose, because it could be
changed without reference to Parliament and established no formal legal limits
or controls. Moreover, the Convention system required there to be some legal
mechanisms, even if these were not courts proper, for dealing with complaints
about abuses and violation of rights. The 1989 Act introduced a tribunal and a
commissioner, each with limited powers and jurisdiction—a model followed in
the 1994 Act and later modifications under the Regulation of Investigatory Pow-
ers Act 2000. The government estimated—correctly as it turned out in later chal-
lenges—that these mechanisms would satisfy the Convention system. The mere
passing of the 1989 Act, although it came after the events in question, was treated
as sufficient reason by the Convention organs to take no further action in two
cases brought involving alleged surveillance and recording of personal details by
the Security Service.3
GCHQ—the signals intelligence agency—came to public attention in the
mid-1980s, largely because of a protracted labor dispute4 and disclosures about
wartime code-breaking, but it lacked a statutory remit until 1994. The Secret
Intelligence Service (SIS or MI6) was not even officially acknowledged to exist
until 1992. Both these agencies were created5 and operated under the royal pre-
rogative. The Intelligence Services Act 1994 provided a statutory charter for
them. Unlike the previous legislation, this act acknowledged the concerns over
lack of parliamentary oversight by also creating for all three agencies a statutory
committee of parliamentarians, drawn from both houses of Parliament (the
Intelligence and Security Committee).
The Agencies’ Work

The Security Service’s statutory aims (section 1 of the 1989 act) are the protec-
tion of national security, including (but not limited to) protection against threats
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Accountability of Security and Intelligence in the United Kingdom 81
from espionage, terrorism, and sabotage, and from the activities of agents of for-
eign powers. There is also a reference to a controversial area of work, although
one that is currently dormant—‘‘counter-subversion,’’ concerning ‘‘actions
intended to overthrow or undermine parliamentary democracy by political,
industrial or violent means.’’ In addition, the Service has a function to safeguard
the economic well-being of the UK from external threats and (under the Security
Service Act 1996) to assist in the prevention or detection of serious crime—a
matter for which the police are primarily responsible.
These provide a broad base for the collection, storing, analysis, and dissemi-
nation of information. Section 2(2) of the 1989 act requires the director-general
to ensure that there are arrangements limiting the collection of information to
that necessary for the proper discharge of the Service’s role or for preventing or
detecting serious crime. This may be some safeguard to the over-wide collection
of personal information. Nevertheless, thousands of files are held on individuals.6
Under s.2(3) (unpublished), arrangements are to ensure that such information
is not disclosed by the Service for employment purposes except in accordance
with ministerial provisions. The Service may also conduct surveillance within the
limits imposed by the Regulation of Investigatory Powers Act 2000. Other execu-
tive functions, such as arrest, legally sanctioned detention and questioning of
suspects (even in cases of terrorism or espionage), and prosecution are in the
hands of the police and the Crown Prosecution Service.
The Security Service is responsible to the home secretary, although opera-
tional control is in the hands of the director-general. In view of the politically
sensitive nature of its role in the domestic arena, there are two important statu-
tory restrictions that limit its work.7 The first limits collection of information to
what is ‘‘necessary for the proper discharge of its functions’’ and likewise disclo-
sure. The second requires that: ‘‘the Service does not take any action to further
the interests of any political party.’’
According to an official publication the main task of the Secret Intelligence
Service:
is the production of secret intelligence on issues concerning Britain’s vital interests

in the fields of security, defense, foreign and economic policies in accordance with
requirements established by the Joint Intelligence Committee and approved by
Ministers. SIS uses human and technical sources to meet these requirements, as
well as liaison with a wide range of foreign intelligence and security services.8
Under the Intelligence Services Act (ISA) 1994 s. 1(1) its functions are: ‘‘(a) to
obtain and provide information relating to the actions or intentions of persons
outside the British Islands; and (b) to perform other tasks relating to the actions
or intentions of such persons.’’ However, the ISA limits the functions of the SIS
in a way that reinforces ministerial control of the Service:
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The functions . . . shall be exercisable only—

(a) in the interests of national security, with particular reference to the defense
and foreign policies of Her Majesty’s Government in the United Kingdom;
or
(b) in the interests of the economic well-being of the United Kingdom; or
(c) in support of the prevention or detection of serious crime.9
GCHQ’s function is described in somewhat opaque statutory language: ‘‘to

monitor or interfere with electromagnetic, acoustic and other emissions and any
equipment producing such emissions and to obtain and provide information
derived from or related to such emissions or equipment and from encrypted
material.’’10
This provision gives it a brief to conduct all types of signals interception (and
disruption) and decryption. There is also a more defensive function of providing
technical advice on communications and information technology security to
government departments and the armed forces.11 These functions are exercisable
‘‘in the interests of national security, with particular reference to the defense and
foreign policies of Her Majesty’s Government in the United Kingdom.’’12 The
wording is a reference to ministerial control: signals intelligence priorities are
determined through a regular cycle of ‘‘tasking,’’ related to the foreign policy and
defense objectives of the government of the day, in the ministerial-approved
annual submission ‘‘United Kingdom’s National Requirements for Secret Intelli-
gence.’’ A significant omission is the failure of the 1994 legislation to detail the
arrangements for international cooperation (especially with the United States’
National Security Agency, the NSA) which is known to affect much of GCHQ’s
work.13
In each case SIS and GCHQ come under the authority of the secretary of state
for foreign and commonwealth affairs. Operational control is in the hands of
the chief and director, respectively, who are appointed by the minister.14 Each is
required to give an annual report to the prime minister and the secretary of state.
There are provisions requiring political neutrality comparable to those applicable
to the Security Service.
The agencies are also overseen by judicial commissioners, who were
appointed initially under the 1989 and 1994 Acts but now work within the Regu-
lation of Investigatory Powers Act 2000 (RIPA). The position of intelligence ser-
vices commissioner is currently held by Lord Justice Simon Brown. He is
responsible for reviewing and reporting upon the issue and authorization, by the
relevant minister, of warrants for operations by the agencies.15 The interception
commissioner (s.57 RIPA), who is currently Sir Swinton Thomas, reviews the
issue and authorization of warrants to intercept mail and telecommunications by
the intelligence and security agencies and law enforcement organizations. There
is also a tribunal, the Investigatory Powers Tribunal, established to investigate
public complaints against the agencies or about interception.16 The commission-
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ers report annually to the prime minister on their work, and their reports are in
turn laid before Parliament. It is likely, having regard to a Strasbourg decision
under previous legislation, that these review and complaints procedures satisfy
the European Convention on Human Rights.17
The funding for all three agencies falls under the Single Intelligence Account,
by which Parliament approves their expenditure. In 2002–3 this was £893m. The
security and intelligence coordinator is the relevant accounting officer. Audit is
handled by a combination of the comptroller and auditor-general (who has a
statutory right to disclosure of details from the agencies) and the Intelligence and
Security Committee (the remit of which extends to expenditure).
Three parts of the intelligence structure are outside the statutory frame-
work—the Defense Intelligence Staff (DIS), the Joint Intelligence Committee
(JIC), and the Intelligence Assessments Staff.18 The role of the first two especially
has come under close scrutiny as a result of events surrounding the use of intelli-
gence in the public justification of the UK’s involvement in the war in Iraq.19 The
DIS is part of the Ministry of Defence and supports the armed forces by analyz-
ing information, from open and covert sources, and providing assessments both
for them and for the Joint Intelligence Committee. The head, the chief of defence
intelligence (who reports to the minister of defence) is also responsible for coor-
dination of intelligence throughout the armed forces. The Joint Intelligence
Committee sits at the hub of the intelligence machine, in the Cabinet Office,
formally connecting it with government. It is responsible for tasking the agencies
(especially SIS and GCHQ) and for providing intelligence assessments, based on
the agencies’ output, which are circulated within government, including the rele-
vant ministers.20 The JIC membership meets weekly and includes not only the
heads of the security and intelligence agencies, but also senior officials from the
Cabinet Office (the JIC chairman, chief of the assessments staff, security and
intelligence coordinator, and the head of the overseas and defense secretariat),
the Foreign Office, the Ministry of Defence, the Home Office, the Department
of Trade and Industry, and the Treasury.
The chairman of the JIC is a senior Cabinet Office official, who has direct
access to the prime minister. This arrangement was introduced following the
Falklands War, where intelligence assessment failures within the Foreign Office
were credited with the failure to predict Argentinean intentions. There is also
within the Cabinet Office a security and intelligence coordinator, whose job is to
advise the secretary of the cabinet on the funding needs of the agencies and their
effective functioning.
Ministerial Responsibility for Intelligence

The legislation governing the intelligence and security services deals with minis-
terial responsibility for the agencies. Broad responsibility for these matters
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remains with the prime minister as head of the government. This is reflected in
provisions that are unique in UK legislation, giving the heads of the agencies a
right of direct access to the prime minister.21 This right reflects the fact that the
agencies are not simply conventional departments of state responsible to a secre-
tary of state (minister). Although the Acts also refer to responsibility to a depart-
mental minister—in the case of the security service to the home secretary, and
in the cases of the SIS and GCHQ to the foreign secretary—the prime minister
has traditionally assumed overall control and acted as the government mouth-
piece on intelligence matters.
Relations between the agencies and the responsible ministers are quite differ-
ent from the conventional one between a minister and his or her department.
The agency heads—the director-general of the Security Service, the chief of the
SIS, and the director of GCHQ—are named in law as having day-to-day respon-
sibility. This is contrary to the prevailing constitutional tradition in Britain
whereby ministers are legally responsible and officials are anonymous and, legally
speaking, invisible. The rationale is undoubtedly to provide a safeguard of the
services’ neutrality in party political terms. Indeed, political neutrality is explic-
itly addressed by provisions that require the heads of all three agencies to ensure
that the services do not take any steps to further the interests of any UK political
party.22
Moreover, there was formerly an important non-statutory convention that
reinforced the principle: the secretary of state would receive advice from the head
of the agency but would not see the intelligence on which it was based. As we
shall see, there are good reasons, based on events surrounding the second Persian
Gulf War, to question the extent to which these principles still hold true.
In its annual reports the Intelligence and Security Committee has expressed a
concern that ministers should be collectively more directly involved in oversee-
ing decisions of the agencies. In theory the Ministerial Committee on Intelligence
Services looks at the policy of the agencies and approves the annual budgets and
National Intelligence Requirements under the prime minister’s chairmanship.23
In practice, the Ministerial Committee seems to be if not moribund at least in
hibernation (it did not meet between 1995 and 2000), although the same group
of ministers did meet regularly with security officials post–September 11.24
Although the inactivity of the Ministerial Committee may give the picture of
agencies responsible to the relevant departmental minister but otherwise left
largely to their own devices, this would be misleading in view of the heightened
importance of intelligence post–9/11. It may be a case, rather, that the formal
structure has been overtaken by events. Nevertheless, the Committee’s report for
2002–3 expressed concern that the relevant ministers did not see all JIC assess-
ments as a matter of routine.
Some actions involving the services require explicit ministerial approval by
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the responsible secretary of state. Traditionally, telephone tapping or mail open-

ing (which may also be undertaken by the police) has fallen into this category:
the secretary of state is responsible for authorizing it under warrant.25
These are instances in which ministers are personally involved in authorizing
day-to-day operations by the agencies and, if they are diligent, will require that
they be shown convincing and detailed supporting evidence before they do so.
Apart from that, the practice of the Security Service is to show to an incoming
home secretary, for approval, a number of the non-statutory policy documents
that the Service has adopted to govern its work; for example, concerning use of
legally privileged information. Another instance where ministers are given spe-
cific powers concerning individuals is the field of detention of terrorist suspects
and the deportation of foreign nationals on grounds of national security.26 Here
too, since the minister is legally responsible for signing the relevant order, a
detailed case will be made by the Security Service to justify using the powers.
The circumstances surrounding the use of these powers, and, indeed, current
events, necessarily mean that there is a continuing dialogue between officials and
the home secretary over policy matters. To take a contemporary example, it is
unthinkable that the Security Service would have involved itself in surveillance
of Islamic mosques known to be recruiting grounds for al Qaeda without dis-
cussing the potential implications for community relations with the home secre-
tary.
The changed climate after September 11, 2001, may also have affected the way
that the agencies relate to other ministers and government departments. There
is evidence that intelligence has become more visibly important to the work of
other departments concerned, for instance, with protection from attacks to
transport and other vital infrastructure. Consequently, direct briefing from the
Security Service to these ministers has become commonplace—a recent develop-
ment and a tangible effect of the ‘‘war on terror’’ on the government machine.
A similar effect is the growing politicization of intelligence material.27 We are
moving here into the controversial and difficult territory of the events surround-
ing the 2003 war with Iraq. The government chose, in the attempt to enlist public
and political support for its policy, to release, in September 2002 and February
2003, two dossiers of intelligence-related material concerning the attempts of the
Iraqi regime to acquire and develop ‘‘weapons of mass destruction’’ (WMD).
Allegations that intelligence was fabricated or knowingly misstated for political
ends in the build-up to the war have been refuted following official reports by
the Intelligence and Security Committee (ISC) and by Lord Hutton. They have,
however, found other unsatisfactory features concerning the process.
First, large parts of the February 2003 ‘‘dossier’’ (the so-called dodgy dossier)
were found to have been plagiarized from a Ph.D. thesis written eleven years
earlier. The ISC commented that it supported ‘‘the responsible use of intelligence
................. 11310$ $CH5 05-16-05 11:37:03 PS PAGE 85

and material collected by the Agencies to inform the public on matters such as
these’’ but that it was ‘‘imperative that the Agencies are consulted before any of
their material is published’’ and that this process was not fully followed with the
February 2003 dossier.28 A second concern was the misleading emphasis placed
upon the claim contained in the September 2002 dossier that weapons of mass
destruction could be deployed by Iraq within forty-five minutes. The ISC found
this should have been explained in more qualified terms.29 Most telling of all,
however, was Lord Hutton’s conclusion that the JIC chairman and staff may have
been indirectly (or, as he put it, ‘‘subconsciously’’) influenced to make state-
ments that were more definitive than was usual in intelligence assessments in
compiling the dossiers with a view to publication.30 While acquitting ministers
of duplicity, or officials of malpractice, this nevertheless clearly highlights the
dangers of politicization.
A further report by a Committee of Privy Counsellors chaired by the former
cabinet secretary, Lord Butler, largely affirmed these points about the public use
of intelligence. Controversially the use by ministers of intelligence was omitted
from the committee’s terms of reference, leading to a boycott by the main oppo-
sition parties. Nevertheless, the report emphasized the need for the chairman of
the JIC to be above ministerial pressure and criticized the informal style of policy
making on Iraq by the ministers in the Blair government.31
Parliamentary Accountability
Britain was relatively late in moving to a system including parliamentary over-
sight, largely because of government objections about the nature of ministerial
responsibility at Westminster. According to the official argument at the time of
the 1989 Act, insuperable difficulties lay in the way of true answerability of min-
isters to Parliament for how they exercised their control over the agencies: the
detail of how accountability worked could not (it was said) be revealed without
compromising necessary secrets. Parliament and the public therefore lay outside
the ring of secrecy and had no alternative but to put their trust in ministers, who
were within it.
Scrutiny within existing parliamentary mechanisms had long been thwarted:
a convention had grown up of refusing to answer parliamentary questions from
MPs on matters concerned with the agencies or touching on national security;32
nondisclosure of the money spent by the services had been condoned through
the ‘‘secret vote,’’ where a global figure, without explanation or breakdown of
the details, was approved annually;33 and, despite occasional protests,34 the work
of the agencies had received no attention from parliamentary select committees.
It was notable, however, that Westminster-style ministerial responsibility had
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not prevented reform in Canada and Australia. In Canada’s case the Canadian
Security Intelligence Service Act of 1984 created a non–parliamentary committee
(the Security Intelligence Review Committee) with a range of oversight and com-
plaints functions, alongside an inspector-general who reported to ministers on
the performance of CSIS.35 In Australia a statutory parliamentary committee was
established with oversight of ASIO (the security service),36 although other agen-
cies (ASIS, the intelligence agency, and DSD, the signals intelligence agency)
remained outside this scheme until recent reforms.37
Eventually the obstacles were overcome in the UK also. In 1994 the Major
government acceded to the call for scrutiny by a committee representing a cross-
section of parliamentary opinion. The Intelligence and Security Committee,
established under the 1994 Act, comprises nine members drawn from both the
House of Commons and the House of Lords, whose task is to examine the expen-
diture, policy, and administration of all three security and intelligence services.
The Constitutional and Legal

Basis of the Committee
The Intelligence and Security Committee is constitutionally unique. Parliamen-
tary select committees are invariably established on a non-statutory basis (under
the Standing Orders of Parliament), with a membership approved by Parliament
itself, and report to Parliament. On all three points this committee is different.
The Intelligence and Security Committee is a statutory committee. Its members
are appointed from both houses of Parliament (the House of Commons and the
House of Lords) by the prime minister after consultation with the Leader of the
Opposition.38 The Committee also reports to the prime minister, although, sub-
ject to editing,39 its reports are subsequently laid in Parliament.
In all these respects the Committee is designedly not a parliamentary select
committee. These differences may amount to little in practice, but they are
intended to underline and reinforce the longstanding argument by governments
of all political persuasions that the security and intelligence agencies are account-
able to ministers and not to Parliament directly.
However, in some other practical respects the Committee does function like
a select committee: members are nominated by the party whips, despite the for-
mal legal requirement, and membership is in practice in proportion to the
strength of the three main political parties in the House of Commons, although
this is not a legal requirement.
The committee’s role is ‘‘to examine the expenditure, administration and pol-
icy’’ of the three services.40 These terms have been carefully chosen to echo the
................. 11310$ $CH5 05-16-05 11:37:04 PS PAGE 87

terms of reference of a departmental select committee, but they also preserve an

exclusion zone around security and intelligence operations.
The agency heads may refuse to disclose what is described as ‘‘sensitive infor-
mation.’’41 This is defined in the Act to include information that might lead to
the identification of sources, other forms of assistance given to the agencies, or
operational methods. A second category of ‘‘sensitive information’’ concerns
past, present, or future specific operations. A third category is information pro-
vided by a foreign government that does not consent to its disclosure. Within
these categories refusal is discretionary. The head of one of the three agencies
may disclose the information if satisfied that is safe to do so.42 Moreover, the
responsible minister may order disclosure to the Committee in the public inter-
est notwithstanding,43 thus overruling the agency head concerned. From a certain
point of view, however, the status of the committee’s requests for information is
enhanced, since the demands that it makes have statutory backing, unlike those
of a conventional parliamentary select committee.
Some shortcomings in the Committee’s brief can be noted. Unlike the United
States, there is no tradition in the United Kingdom of confirmation by the legis-
lature of the appointment of key officials. The executive alone is responsible.
Consequently, the appointments of heads of the agencies are made by ministers
(presumably advised by the head of the civil service, the cabinet secretary) but
without reference to the Committee’s members. There are limits also to the com-
mittee’s information-gathering powers that are not obvious at a first glance at the
Act. It may request ‘‘information.’’ It does not, however, have power to demand
particular documents, even those referring to the policy, administration, or
expenditure of the agencies. In practice, though, the committee normally works
by receiving briefing documents from the agencies, setting out policy. There is
no statutory right to see officials at a level lower than the director or director-
general (in practice, however, members routinely meet officers at all levels during
site inspections). Members of the Committee are not security vetted, but then
neither are MPs or ministers within the UK constitutional arrangements.
The Committee is required by law to produce at minimum an annual report.
This is delivered to the prime minister and thereafter published, with any dele-
tions agreed upon on security grounds.44 The prime minister has several levers
in this process—the timing of publication is effectively with him rather than the
Committee. Consequently, the impact can be diluted by publishing the govern-
ment’s response at the same time or by publishing a report when public attention
is distracted elsewhere. Significantly, the Committee has complained of unneces-
sary delay in publishing some of its findings.45 In the event of unresolved dis-
agreement between the Committee and the prime minister over material to be
deleted from the report, the latter can insist, although to do so would probably
be counterproductive if it led to public dissent from the members of the Com-
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mittee. In practice the Committee’s annual published reports contain many

deleted passages (indicated by stars) where excisions have been made.
One area in which the Committee and the government have had a long-run-
ning disagreement concerns publication of the budgets for the individual agen-
cies, rather that a total ‘‘single intelligence vote.’’ The Committee has consistently
argued that publication of the information is not sensitive, at least provided it is
not done every year. The Committee has gone so far as to record in its report
the agreement of the agency heads to publication.46 It is plain, however, that the
government chose to remove the relevant figures from the published report.
After protest at the government’s continued intransigence,47 the Committee
seems to have given up on the issue.
Overall, compared to the published reports of the Security Intelligence Review
Committee in Canada, the ISC’s reports are much less informative. Readers are
sometimes left with a reassuring feeling that the Committee has been active but
without its full findings being published. This, however, is the recurrent difficulty
of oversight—how to reconcile effectiveness with giving a public account.
The Committee in Operation

Although the legislation was passed in 1994 the Committee did not come into
operation until the following year, and it had little opportunity to embark on a
major substantive program of work before the 1997 election.48 The bulk of the
committee’s work to date took place during the 1997–2001 Parliament. This
period also represented an important change since, unlike the previous adminis-
tration, from the start of the new Blair government ministers were accustomed
to sharing oversight of the services with the newly established Committee.
The membership of the Committee remained nearly constant for the duration
of the 1997–2001 Parliament and was an intriguing mixture of parliamentarians.
Eight of the nine members were from the House of Commons—the sole peer
was a former labor law officer, Lord Archer. The Committee was chaired by an
experienced Conservative member of Parliament, Tom King, who had substan-
tial security and defense experience from spells spent as secretary of state for
Northern Ireland and secretary of state for defence. Another member of the
Committee, also Conservative, Michael Mates, MP, had a military background
and had been a junior defense minister. Equally, though, the Committee
included one Labour MP, Dale Campbell-Savours, who had taken a close interest
in security matters as an outsider and had been a prominent critic of the lack of
accountability of the services (and of the new legislative arrangements). Also
highly experienced was Alan Beith, MP, the former deputy leader of the Liberal
Democrats—the political party that had championed parliamentary accountabil-
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ity for security and intelligence agencies earlier than any other. At the other end
of the experience range was Yvette Cooper, a new Labour MP with no previous
experience of government or parliamentary committees, and one of the youngest
parliamentarians from the 1997 intake. She left the Committee during 1999–
2000 on being promoted to ministerial office (ministers are debarred from mem-
bership of the Committee49). To all appearances the Committee had been
constructed to work in a bipartisan fashion, in view of the fact that the previous
chairman continued in office although he was a member of the parliamentary
opposition following the May 1997 election. It was also representative of a range
of different parliamentary interests, including those highly skeptical of the entire
process.
The Committee was reconstituted after the 2001 election, due largely to indi-
viduals leaving Parliament, although four of the nine members from the previous
Parliament remain. Tom King had retired and was replaced in the chair by Ann
Taylor, a Labour MP who was a former chief whip (a senior government business
manager in the House of Commons). Her nearest security-related experience was
chairing a cabinet committee on drugs policy.
The Committee’s working method was to begin by familiarizing itself with the
agencies by meeting heads of the services and by reviewing agencies’ premises.
Officials seem to have been, if anything, keen to establish a new source of legiti-
macy for their work with a committee representative of Parliament, rather than
just the government. The services themselves were in a transitional period fol-
lowing both the ending of the Cold War and also the transition to peace in
Northern Ireland. In this context no doubt the Committee could be seen as a
useful ally in battles within government over budget priorities. In any event good
working relationships seem to have been established quickly.
From the start the Committee has been proactive. In an early report it warned
that it expected to be ‘‘properly and promptly informed’’ by the agencies of their
activities, rather than merely responding to requests for information.50 (Recent
evidence of this practice emerged when the Committee indicated that it had
received regular briefings on WMD in Iraq before and during the 2003 war.51) It
follows a published annual program of work, as well as considering topics that
may emerge on ad hoc basis. It has tended to meet frequently (often weekly dur-
ing the parliamentary session). Typically it interviews several dozen witnesses
each year, and takes part in international liaison and exchanges, both by visiting
oversight agencies abroad and receiving such visits (these have included many
European and former Eastern bloc countries, the United States, and the other
Commonwealth states). It also conducts about ten visits to agencies’ premises
each year (these have included periodically visiting the controversial NSA facility
at Menwith Hill).
The Committee is supported by a clerk (whom it interviewed and appointed)
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and clerical assistance; neither was provided for in the 1994 Act but the govern-
ment has recognized the need to make available the necessary funding. The Com-
mittee’s staff are vetted and security cleared.
A key issue has been the acquisition by the Committee of an investigative
capacity. It might be argued that, in view of the Committee’s limited remit,
investigation as such was unnecessary, since this would venture into operational
matters. Nevertheless, the Committee argued that, compared to the oversight
arrangement in other countries, it lacked direct ability to investigate the agencies’
activities and that a power of independent verification would give added author-
ity to its findings and so strengthen public confidence in the oversight system.52
The government conceded the issue without making a formal change to the pow-
ers of the Committee.53 The result was a compromise in that the Committee
stopped short of calling for the creation of an independent statutory investigator,
such as an inspector-general, but the government has agreed that the agencies
would cooperate with an investigator who works for the Committee. The
appointment is a part-time one. The incumbent is a retired deputy chief of
defence intelligence.54 Defense intelligence is not within the Committee’s statu-
tory remit and, thus, the Committee was able to appoint someone with intelli-
gence expertise but without loyalty to one of the agencies overseen under the
Act.
The investigator is ‘‘tasked’’ by the Committee as part of its annual program
of work to investigate and report to it on certain topics. It is important to stress,
however, that the investigator is not a substitute for an inspector-general. He or
she has no statutory powers. The investigator allows the Committee to conduct
the same type of investigation as previously, but without the members needing
to immerse themselves in detail to an unnecessary degree. Material may also be
excluded at the agencies’ request from the investigator’s report to the Commit-
tee. The Committee has argued that this facility encourages frankness on the part
of the agencies.55 However, it is curious in view of the fact that the Committee
itself works within the ring of secrecy. In essence the arrangement allows the
Committee to be satisfied that someone responsible to it can confirm the accu-
racy of information it has received without members seeing for themselves all
the details. What is not provided for in this scheme, but is a feature of inspector-
generals’ powers elsewhere, is the ability to initiate audits to sample an agency’s
operational work.
It is clear that the Committee is also working well beyond its strict legal remit
in terms of agencies overseen. The Committee has encountered no apparent
opposition in investigating the work of the Joint Intelligence Committee and the
Security and Intelligence Co-coordinator, parts of the intelligence machinery
which, although closely linked to the agencies, are outside the statutory frame-
work.56 Similarly, it has taken evidence from a number of government depart-
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ments that are in effect the security and intelligence agencies’ ‘‘customers,’’ that
is, the users of intelligence produced by them.
A recent instructive example that shows the ability of the Committee to con-
duct an in-depth and independent investigation is the report on intelligence and
threat warnings preceding the Bali bombing of October 12, 2002.57 On the face
of it the report went considerably beyond the statutory remit of the Committee,
since it concerned specific intelligence available in relation to a specific event.
Moreover, in the conduct of its inquiry the Committee examined all the relevant
intelligence, intelligence assessments, and travel advice available before the
attack—that is, it was given access to intelligence files as well as interviewing wit-
nesses. The explanation is that the initiative for the inquiry seems to have come
either wholly or in part from the government itself, which wanted to be able to
substantiate the claim that no specific warning of a threat had been received that
should have been made public. To make this claim credible it was necessary for
it to be investigated by an independent body. Hence, it was the foreign secretary
who announced to the House of Commons that the Committee was conducting
an inquiry and that all material would be made available to it.58
The most controversial investigation by far that the ISC has conducted was
into intelligence and intelligence assessments before the Iraq war. Although the
initial impetus came from the ISC itself, the investigation was subsequently
endorsed by a parliamentary resolution, and the prime minister promised full
government cooperation. The report, published in September 2003,59 is discussed
in greater depth in chapter 2. In summary, however, it concluded that the gov-
ernment had not put political pressure on the JIC. The ISC’s conclusion, based
on interviews with all senior ministers and officials (including the prime minister
and the foreign secretary) and on detailed analysis of the various intelligence
assessments and the successive drafts of the dossiers, was that the published
material had not been politically tampered with. Nevertheless, in some important
respects the Committee was critical. It warned that ‘‘It is vital that the JIC’s and
the Agencies’ credibility and effectiveness are not degraded or diminished by the
publication of their product in an inappropriate manner.’’60
What does this show about the Committee? First, it demonstrates that it has
an impressive ability to operate in a bipartisan fashion even in dealing with issues
that have momentous political consequences. This may be due in part to its
operating in private—had public hearings been held they would inevitably have
invited ‘‘grandstanding’’ as undoubtedly occurred in both the Foreign Affairs
Select Committee investigation and in the later Hutton Inquiry. However, pre-
cisely because the Committee worked in private and did not fully publish its evi-
dence (although much more was passed to and later published by Hutton), this
inevitably contributed to a perceived lack of legitimacy. This point was ironically
underscored by evidence to the Hutton Inquiry that Geoff Hoon (the defence
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secretary) had insisted that Dr. David Kelly (the scientist from his department
who subsequently committed suicide) should undergo public examination
before the Foreign Affairs Committee because his earlier, private, appearance
before the ISC lacked legitimacy.61
Second, the ISC’s investigation shows that despite its limited formal powers
the Committee can be successful in winning the cooperation of the agencies and
getting to the facts. Of course, the government’s own interests were served by
cooperating fully, as it hoped that an independent report would deflect criticism.
It is a testament to the Committee, however, that although the Hutton inquiry
later picked over substantially the same ground with copious disclosure of docu-
ments and high profile public cross-examination of the witnesses (including live
remote testimony from the chief of SIS), it reached essentially similar conclu-
sions. In the politically charged atmosphere of claim and counter-claim sur-
rounding the war it is not surprising, though, that the ISC inquiry failed to
achieve public acceptance as a definitive account. Where a public inquiry by a
Law Lord could not do so a committee of parliamentarians was hardly likely to
succeed.
Despite these prominent investigations, there are also some glaring omissions
from the published work of the Committee. Foremost among these is its silence
on the allegations of the former Security Service officer David Shayler, finally
convicted in 2001 under the Official Secrets Act of 1989 for his revelations con-
cerning the agency, and his counterpart from MI6, Richard Tomlinson.62 The
allegations of incompetence and abuse made by these two insiders have received
no public investigation. The reason is apparently that the Committee did not
wish to encourage ‘‘whistle-blowers’’ who break the law. Instead, it has taken a
close interest in the personnel policies of the agencies. The unstated implication
is that the Shayler and Tomlinson cases are instructive only because of the failure
to handle them in-house, rather than because of the substance of the allegations.
And yet if the Committee is prepared to listen only to officially sanctioned evi-
dence, it is arguably depriving itself of a valuable source of information.
The Intelligence and Security Committee can be counted a success on several
levels. First, at a presentational level, the existence of the Committee has largely
assuaged calls for more public accountability of the security and intelligence
agencies. It is true that there remains the constitutional objection that the Com-
mittee is not responsible to Parliament as such. For this reason the Home Affairs
Committee has continued to call for the Intelligence and Security Committee to
be replaced with a parliamentary select committee.63 However, even it has con-
ceded that the existing Committee is a significant improvement on the previous
arrangements and has paid tribute to its work.
Second, the Committee has plainly succeeded in establishing generally good
working relations with the security and intelligence agencies. Only three exam-
................. 11310$ $CH5 05-16-05 11:37:10 PS PAGE 93

ples stand out of friction or conflict, or of any attempt by the agencies to frustrate
or obstruct any line of investigation. The retiring chairman noted (in a letter to
the prime minister) that SIS apparently found it ‘‘more difficult’’ to be frank with
the Committee than did the other services.64 The Committee has failed in its
repeated attempts to gain access to the full, unpublished reports of the judicial
commissioners. The government has opposed this in principle, although, as a
compromise, the Committee has met the commissioners.65 Finally, in its Iraq
investigation, the Committee criticized the lack of candor of the secretary of state
for defence (which it called ‘‘potentially misleading’’) in initially failing to dis-
close the misgivings of some officials within DIS about material included in the
September 2002 dossier.66 These are the only disputes that have surfaced publicly
over access to information.
It is significant, perhaps, that the government evidently trusted the Commit-
tee sufficiently to ask it to investigate matters that involved access to considerable
operational detail (and which were therefore well outside the Committee’s statu-
tory entitlements)—the handling of the Mitrokhin Archive and of intelligence
prior to the Bali bombing—and to cooperate in its inquiry into intelligence
before the Iraq war. Moreover, the Committee has succeeded in behaving in a
nonpolitical fashion so that its criticisms of the agencies have generally been
responded to in a constructive fashion. Equally, it has proved a safe environment.
There have been no leaks of information from the Committee to the press—
something that would have severely damaged working relations with the agen-
cies.
The Committee has worked well despite its relatively weak powers. This may
be in part because the agencies were aware that withholding information in
accordance with the strict terms of the Act would inevitably have produced pub-
lic and parliamentary calls for increased investigative powers. Nevertheless, in
view of the current controversy about intelligence analysis and reporting, this
may be an opportune moment at which to extend the statutory framework to all
parts of the intelligence establishment and to bring defense intelligence, the JIC,
the intelligence assessments staff, and the security and intelligence co-coordina-
tor formally under the wing of the Committee.
Conclusion
So far as the legislative oversight scheme as a whole is concerned, there are a
number of broader defects, which can be briefly mentioned.
In the UK tradition the legislative framework is very permissive toward the
executive. The only points at which there is relative precision concern the need to
provide legal ‘‘cover’’ for potential violations of individuals’ legal rights (mainly
................. 11310$ $CH5 05-16-05 11:37:10 PS PAGE 94

relating to personal privacy and property). Elsewhere the legislation lacks detail.
It is startling to find, for example, that the key term ‘‘national security’’ is not
defined with any precision. The legal implication is that the agencies are able
to move flexibly into new areas of work without seeking explicit parliamentary
approval.
Although there is complex scheme of statutory commissioners and a tribunal
to deal with complaints, the absence of successful complaints over more than a
decade in which variations on this scheme have been in operation is telling.
Common experience of large public organizations in other spheres of life is that
they simply do not achieve this degree of perfection in their relations with mem-
bers of the public. It suggests here that the statutory balance may be excessively
protective of state security as opposed to individual rights.
A clear gap within the UK scheme is the absence of an independent inspector-
general with powers to initiate audits of the agencies’ work. An office of this kind
could be designed to provide reassurance of legality, propriety, and effectiveness
that a haphazard complaints system and part-time judicial commissioners do
not. It would benefit both ministers and Parliament.
Although much has changed since the 1980s, it remains the case that Parlia-
ment as such exercises little direct scrutiny of the agencies or their budgets. This
may change. Experience of the Intelligence and Security Committee suggests that
it could move to become a select committee in the proper sense with relatively
little disruption.67 The pressing need after September 11 and the Iraq war to
enlist political and public support for the agencies and to strengthen the legiti-
macy of their work may make such a move attractive to the government, also, in
due course.
On paper the UK scheme appears to be one of weak oversight because of con-
siderable influence of the executive and the lack of parliamentary ownership of
oversight arrangements. The government holds the reins in appointing members
of the ISC, and in controlling their access to information and over the published
form of their reports. As with so many things in Britain’s unwritten constitution,
however, appearances can be deceptive. No independent person would recom-
mend these arrangements as a model to other countries, and the legal framework
could certainly be improved, but in a stable democratic system they work tolera-
bly well.
Notes
1. See Lord Denning’s Report, Cmnd. 2152 (1963).
2. See chapter 3 in this volume.
3. Resolution DH(90) 36 of December 13, 1990. Ironically, the two complainants,
Harriet Harman and Patricia Hewitt, are now both ministers in the Blair government.
................. 11310$ $CH5 05-16-05 11:37:11 PS PAGE 95

4. The decision to prevent officers there from belonging to a trades union was unsuc-
cessfully challenged in the courts: Council of Civil Service Unions v. Minister for the Civil
Service [1985] AC 374. The ban was lifted by the Labour government in 1997.
5. The Secret Service Bureau, the forerunner of both MI5 and the Secret Intelligence
Service (MI6), dated from 1909: C. Andrew, Secret Service (London: Sceptre, 1986), 121
ff.
6. In 1998 the Security Service had 290,000 personal files, of which 20,000 were active;
13,000 of these related to UK citizens (divided approximately equally between terrorism
and the service’s other current interests, espionage weapons-proliferation and serious
crime): H.C. Debs, vol. 317, cols. 251–4, 29 July 1998. The Secret Intelligence Service
(MI6) held 86,000 files (75 percent closed) of which approximately half related to UK
citizens, although they were not files whose subject matter was individuals: Annual Report
of the Intelligence and Security Committee for 1997–98, Cm. 4073 (1998), para. 52.
7. Security Service Act 1989, s. 2(2).
8. National Intelligence Machinery, 6.
9. ISA 1994, s. 1(2).
10. ISA 1994, s. 3(1)(a).
11. s. 3(1)(b).
12. s. 3(2)(a). GCHQ’s functions can also be exercised under s. 3(2) ‘‘in the interests
of the economic well-being of the United Kingdom in relation to the actions or intentions
of persons outside the British Islands’’; and ‘‘in support of the prevention or detection of
serious crime.’’
13. See Jeffrey Richelson and Desomond Ball, The Ties That Bind, 2nd ed. (Sydney:
Allen and Unwin, 1990).
14. ISA, ss. 2 and 4.
15. RIPA, s. 59
16. RIPA, s. 65
17. Esbester v. UK, App. No. 18601/91, April 2, 1993
18. For details see: National Intelligence Machinery (2nd ed., 2001).
20. The standing terms of reference of the JIC are published in National Intelligence
Machinery (2nd ed., 2001), 19.
21. SSA, s. 2(4) and ISA, ss. 2(4) and 4(4).
22. SSA 1989, s. 2; ISA 1994, ss. 2 and 4.
23. Intelligence and Security Committee, Annual Report for 1999–2000, Cm. 4897
(November 2000): para. 19.
2002): para. 10.
25. RIPA 2000, Part 1. In practice, the home secretary, foreign secretary, Northern Ire-
land secretary, the secretary of state for defence, and the second minister in Scotland.
26. Under the Anti-Terrorism Crime and Security Act 2001 and the Immigration Act
1971.
28. Intelligence and Security Committee, Annual Report 2002–2003, Cm. 5837 (June
2003): para. 82.
29. Intelligence and Security Committee, Iraqi Weapons of Mass Destruction—
Intelligence and Assessments, Cm. 5972 (2003): paras. 86, 112.
30. Report of the Inquiry into the Circumstances Surrounding the Death of Dr. David
Kelly C.M.G., H.C. 247 (2003–4): para. 467. www.the-hutton-inquiry.org.uk
................. 11310$ $CH5 05-16-05 11:37:12 PS PAGE 96

31. Review of Intelligence on Weapons of Mass Destruction, Report of a Committee of

Privy Counsellors, HC898 (2004–5).
32. Laurence Lustgarten and Ian Leigh, In From the Cold: National Security and Parlia-
mentary Democracy, (Oxford: Oxford University Press, 1994): 441–42.
33. Lustgarten and Leigh, 447–450.
34. First Report from the Home Affairs Select Committee for 1992–3, Accountability of
the Security Service, HC 265; and see the Government response Cm. 2197 (1993).
36. Australian Security Intelligence Organization Act 1979; Australian Security Intelli-
gence Organization Amendment Act 1986.
37. Intelligence Services Act 2001 (hereafter, ‘‘ISA’’).
38. ISA 1994, s. 10.
39. ISA, s. 10(7): ‘‘if the publication of any matter in a report would be prejudicial to
the continued discharge of the functions of either of the Services or, as the case may be,
GCHQ, the Prime Minister may exclude that matter.’’
40. ISA 1994 s. 10(1).
41. ISA, schedule 3, para. 4. In addition, ministers have power to withhold ‘‘non-
sensitive’’ materials on grounds similar to those that apply to select committees: ISA,
schedule 3, para. 3(4).
42. ISA, schedule 3, para. 3(2).
43. ISA, schedule 3, para. 3(3).
44. ISA, s. 10(6) and (7).
45. Intelligence and Security Committee, Annual Report for 1999–2000, Cm. 4897,
para. 103.
46. Intelligence and Security Committee, Annual Report for 1999–2000, Cm. 4897
(November 2000): paras. 43 ff.
47. Intelligence and Security Committee, Interim Report for 2000–01 Cm. 5126 (March
2001): para. 26.
48. It produced a brief report calling for examination of the implications of the govern-
ment’s proposal (subsequently implemented in the Security Service Act 1996) to add to
the powers of the Security Service a power to assist in the investigation of serious crime:
Report on the Security Service’s Work Against Organized Crime, Cm. 3065 (Dec. 1995).
49. ISA, s. 10(2) (b).
50. Intelligence and Security Committee, Annual Report for 1995, Cm. 3198 (1996):
para. 37.
51. Intelligence and Security Committee, Iraqi Weapons of Mass Destruction—Intelli-
gence and Assessments, Cm. 5972 (2003): para. 17.
52. Intelligence and Security Committee, Annual Report for 1997–98, Cm. 4073, paras.
67–69
53. Government Response to the Intelligence and Security Committee’s Annual Report
1997–98, Cm., 4089, para 21.
54. Intelligence and Security Committee, Annual Report for 1998–9, Cm. 4532, para.
84.
55. Annual Report for 2001–2, para. 17.
56. Ibid., paras. 8 ff.
57. Intelligence and Security Committee, Inquiry into Intelligence, Assessments and
Advice prior to the Terrorist Bombings on Bali 12 October 2002, Cm. 5724 (2002).
58. H.C. Debs., October 21, 2002, cols. 21–24.
................. 11310$ $CH5 05-16-05 11:37:13 PS PAGE 97


Intelligence and Assessments, Cm. 5972 (2003).
60. Ibid., para. 142.
61. Evidence to Hutton Inquiry, September 22, 2003.
62. Convicted under the Official Secrets Act 1989 in 1997 for publication of his disclo-
sures.
63. Home Affairs Select Committee, Accountability of the Security Service, June 1999,
HC291.
64. Annual Report for 1999–2000, Cm. 4897, v.
2002), paras. 29 ff.
Intelligence and Assessments, Cm. 5972 (2003): paras. 104 and 115.
67. Also proposed by the Foreign Affairs Select Committee: see its Ninth Report for
2002–3, Reasons for Going to War against Iraq HC813–1, para. 167.
................. 11310$ $CH5 05-16-05 11:37:14 PS PAGE 98

6
Canada’s Long Road from Model
Law to Effective Political
Oversight of Security and
Intelligence
Stuart Farson
D uring his 1976 trial for attempting to bomb the home of a Montreal super-
market executive, Robert Samson acknowledged he had done worse as a
member of the Royal Canadian Mounted Police (RCMP) Security Service.1 Given
immunity from prosecution, Samson revealed details of a break-in at the offices
of the L’Agence-Presse Libre du Québec. This set in train events that led the
Canadian government to establish a public inquiry under Justice David Mc-
Donald into the federal police force. Five years later the Commission produced a
comprehensive report that recommended severing the Security Service from the
RCMP and establishing a new civilian security intelligence service in its stead.2
In many respects, the Canadian Security Intelligence Service Act that estab-
lished the new agency in 1984 constituted a blueprint for change and a model law
for establishing agencies with coercive or intrusive capacities. It largely followed
McDonald’s blueprint with one critical exception. It did not establish a perma-
nent joint standing committee on security and intelligence with full purview over
all of Canada’s security and intelligence organizations and functions.3 Some
twenty years later, the neophyte Liberal government of Paul Martin has, in
attempting to address the ‘‘democratic deficit,’’ acknowledged the need for such
a committee.4
This chapter examines the formulation of the model law initiated by the
McDonald Commission and how Canada’s security and intelligence community
— 99 —
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has subsequently developed and been scrutinized by internal and external review
bodies and legislative committees. The discussion has two starting points. A cen-
tral focus of the conference on which this book is based concerned an attempt
to compare and contrast parliamentary oversight models with the congressional
form. Though Canada is a constitutional monarchy with a parliamentary system
of government, it has developed as a hybrid system, relying heavily on both Brit-
ish and American constitutional and institutional ideas. These have both had
important implications for Canada’s oversight systems. Second, the way Cana-
da’s security and intelligence community has developed is the result of several
factors. These include its experiences in wartime; its geopolitical position and the
threats it perceives; its close ties with Britain, other dominions, and the United
States; and its own value system.
It is not possible to examine here all aspects of how Canada scrutinized its
security and intelligence community during the last quarter century. Instead, the
chapter focuses on certain key events. It examines the lessons that can be drawn
both from Parliament’s five-year review of the CSIS Act and the Security
Offences Act, and also its recent adoption of the Anti-terrorism Act. While the
latter was ostensibly in response to the terrorist attacks on the United States on
September 11, 2001, this chapter argues that other rationales were afoot. It also
provides an assessment of the measures taken by the new Liberal government to
restructure Canada’s security and intelligence community and the new forms of
oversight now in the offing. By way of a conclusion, it reflects upon the capacity
of Canadian oversight and the likelihood of weaknesses being overcome.
Canada’s Security and Intelligence Community

Canada’s security and intelligence community had its origins before Confedera-
tion but developed in an extensive way following the formation of the RCMP in
the early 1920s. As Steve Hewitt has shown in his longitudinal study, Spying 101,
the focus of the RCMP Security Service’s work was in keeping elements of Cana-
dian society under surveillance and in thwarting security threats, primarily from
the political left.5 In 1984, the role of security intelligence gathering was turned
over to a new civilian organization, the Canadian Security Intelligence Service
(CSIS). Whereas the RCMP Security Service had powers to deter and prevent
activities that constituted a threat to the security of Canada, the new civilian
organization had no police powers and a mandate only to warn the Canadian
government of threats the country faced.
It would be wrong to think that the RCMP was removed from the world of
national security intelligence or that CSIS and the RCMP were the only agencies
involved in domestic intelligence gathering. The adoption of the CSIS Act was
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Canada’s Long Road from Model Law to Effective Oversight 101
accompanied by the Security Offences Act. This legislation gave the RCMP the
primary role in investigating an undefined number of security offenses. In the
case of politically motivated violence, the CSIS Act did nothing to remove the
forces’ obligation to prevent such violence.6 In fact, it is difficult to envisage how
this duty could be implemented without specific intelligence gathering.
The Canadian Armed Forces are primarily concerned with the collection of
defense intelligence about the military capabilities and intentions of foreign
states and other entities. The auditor-general, however, has recently identified
three units within the Department of National Defence involved in domestic
intelligence gathering.7 The National Counter-Intelligence Unit uses such invest-
igative techniques as communication intercepts, physical surveillance, and search
warrants. The Canadian Forces Information Operations Groups conduct signals
intercepts to support the Canadian Armed Forces or the Communications Secur-
ity Establishment (CSE). Finally, the Canadian Forces Joint Imagery Centre coor-
dinates the collection of images in the support of domestic or international
operations of the Canadian Armed Forces.8 Also operating in the domestic
sphere is the Financial Transactions and Reports Analysis Centre. This agency
was involved in countering money laundering, primarily by organized crime,
prior to September 11, 2001, but was given a new mandate to prevent and deter
terrorist financing under the Anti-terrorism Act.
Unlike its G8 partners, Canada has never had an intelligence agency dedicated
solely to gathering intelligence abroad using human sources or providing an
external covert action capacity,9 though there have been repeated calls for Can-
ada to develop a foreign intelligence service.10 Its ability to gather intelligence
abroad still rests on CSIS’s limited but expanding capacity to collect security
intelligence outside Canada,11 its signals intelligence agency, diplomatic and mili-
tary personnel abroad, open sources, and the sharing of intelligence by foreign
agencies.
The CSE’s forerunner originated during the Second World War and quickly
became a valued member of the UK/USA signals intelligence partnership. Estab-
lished through secret executive orders, it has remained Canada’s most secretive
organization ever since.12 Not until the mid-1970s was the organization even
acknowledged by government. Only within the last ten years has it been indepen-
dently reviewed and placed under a legislative mandate. Like the agency itself,
the position of commissioner for the CSE was initially established by executive
order. To date the commissioner has never been called before Parliament to dis-
cuss the office’s annual report. Nor has Parliament considered in any depth the
legislation subsequently adopted to establish the agency, the review body, and
their respective mandates. Canada’s capacity to analyze all-source foreign intelli-
gence has traditionally rested on organizations within the Privy Council Office
(PCO) and the Department of Foreign Affairs.13 These intelligence analysis cen-
................. 11310$ $CH6 05-16-05 11:37:21 PS PAGE 101

ters have only recently received adequate resources and their work has never
been reviewed by any independent body.
Traditionally, the responsibility for providing the country with security and
protecting it against the range of threats—both man-made and natural—has
been spread across a wide range of agencies and departments. The new govern-
ment under Paul Martin has undertaken a major reorganization of the sector. A
central feature of this reorganization is the elimination of the Ministry of Solici-
tor-General and its replacement by the Ministry of Public Safety and Emergency
Preparedness Canada headed by the deputy prime minister. In addition, the
minister has been given responsibility for leading the cabinet’s planning and pol-
icy making for the entire security and intelligence sector. Of critical importance
is a shift in attitude towards the perception of threats. Previously, traditional
national security threats were viewed separately. Now man-made threats are per-
ceived under the same rubric as those stemming from natural sources. This real-
ization is particularly apparent in the public health sphere where both forms of
threats readily elide. Significantly, there has never been a body independent of
the Executive that has had purview over the entire security and intelligence
sector.
McDonald’s Blueprint for Change, 1977–1981

The McDonald Commission represented the first detailed investigation into
Canada’s security intelligence apparatus.14 Its numerous staff and consultant
papers, many analyzing foreign intelligence structures and functions, coupled
with its own comprehensive reports, provided a needed window on an area of
government few in Canada then understood. Well covered by the media, it
encouraged debate in Parliament and across the country. With adequate
resources, it was able to ascertain that the RCMP Security Service had acted in
ways neither authorized nor provided for by law while trying to counter and
deter separatist elements in the Province of Quebec. Significantly, the commis-
sioners did not perceive these unlawful actions as isolated incidents but as ones
institutionalized within the organization.15
While the Commission recognized the state’s obligation to ensure that
national security threats are thwarted, it opined that this had to be done without
destroying the democratic fabric in the process or unduly harming individual
freedoms. Thus, it based its recommendations on the idea of a balance between
these two dimensions. In this regard, it held that ‘‘security must not be regarded
as more important than democracy, for the fundamental purpose of security is
the preservation of our democratic system.’’16 On the one hand, it favored pro-
viding the security forces with such powers as were necessary to accomplish the
................. 11310$ $CH6 05-16-05 11:37:22 PS PAGE 102

job. Thus, it would recommend additional powers the RCMP Security Service
never possessed. On the other hand, it believed that when organizations had
coercive or intrusive powers, there should be commensurate checks and bal-
ances. Of critical importance here was the notion that intelligence organizations
should have enabling legislation explicitly defining their mandates and limiting
their activities. Only in this way could the principle of everyone being account-
able to law be maintained. Further, the Commission believed such legislation
should clearly provide a system of accountability, control, and review that would
ensure particular ministers were responsible to Parliament for the coercive and
intrusive actions provided by such organizations.
To achieve these objectives, the Commission believed it was necessary to
remove responsibility for gathering security intelligence from the RCMP. Several
factors underpinned this premise. First, the commissioners held that the RCMP
was not suited to providing this function because of the education and modes of
recruitment and training individual officers received. Second, they considered
that wrongdoing in the security sphere had brought not only the Security Service
into disrepute but also the entire national police force. Finally, and most impor-
tantly, they held that in fulfilling their normal duties, police forces in a demo-
cratic state needed to have independence of action from political masters and
discretion about when to invoke the criminal sanction. Thus, the Commission’s
approach was to have a separate civilian security intelligence service with no
coercive powers, only those needed to investigate and analyze threats to Canada’s
security. Its responsibilities would end with reporting about the nature and
implications of threats to other arms of the Canadian government. The RCMP
was not to be removed from the national security arena altogether. Rather its
responsibility was to be limited to post-intelligence activities where intelligence
officials and political masters wanted the criminal sanction invoked or persons
detained pending removal from the country.
The Commission also believed the new security intelligence service should be
placed in a comprehensive system of accountability, control, and review.
Accountability was to be achieved by making a specific minister responsible to
Parliament for the new organization. There would no longer be a case for ‘‘plau-
sible deniability’’ of domestic intelligence functions. Furthermore, the head of
the new service, who had responsibility for managing day-to-day operations, was
to report directly to the minister. Significantly, the head’s tenure was to be lim-
ited so that the government could avoid falling vulnerable to J. Edgar Hoover–
like characters. Executive control was to be exercised by providing the minister
with clear authority to give the head instructions. While a lower threshold than
that employed in criminal investigations would be used, the most intrusive
investigative techniques were to fall under judicial controls by requiring the ser-
vice to obtain warrants. Two review mechanisms that were external to, and inde-
................. 11310$ $CH6 05-16-05 11:37:23 PS PAGE 103

pendent of, government were envisaged. An Advisory Council on Security and

Intelligence consisting of three part-time members appointed by the cabinet after
approval by Parliament was to be established with a permanent full-time staff.
The Council was to have a wide remit to investigate public complaints and illegal
activities. In both instances the purview reached across the entire security and
intelligence community and included an obligation to report both to Parliament
and the relevant responsible ministers. No involvement in legal challenges was
envisaged where individuals had been denied security clearances. Instead, a spe-
cial quasi-judicial body called the Security Appeals Tribunal would fulfill that
function.
There was also to be a permanent joint committee of Parliament on security
and intelligence. This was to consist of not more than ten members representing
all political parties and be chaired by an opposition member. Again, this body
was to have authority to consider organizations other than the new security intel-
ligence agency. But while the Advisory Council was to be concerned only with
matters of propriety, the permanent committee was also to consider organiza-
tional efficacy. With the exception of in-camera hearings and security clearances
for parliamentarians, the Commission made no recommendation about how this
committee might use and protect classified information. Nor did it discuss how
well-suited traditional parliamentary committee approaches might be for fulfill-
ing the role.
The Adoption of the CSIS Act and

Security Offences Act, 1983–1984
After tabling draft legislation to establish CSIS in 1983 the government immedi-
ately sent the bill for ‘‘pre-study’’ in the Senate, an infrequently used device.
There it was reviewed by a special committee chaired by Michael Pitfield, until
recently Prime Minister Pierre Trudeau’s cabinet secretary. The bill created
much public interest and criticism. The Committee’s eventual report focused on
the delicate balance between the state’s right to protect itself and its obligation
to preserve the freedoms of individual Canadians.17 It made numerous recom-
mendations to improve democratic protections. But in one important respect
it diverged from the McDonald Commission’s blueprint. It did not support a
permanent role for Parliament. Without regard for the principle of ministerial
responsibility or any discussion on how information might be secured, it said:
We agree that, ideally such a committee could be of benefit. But there are many
practical difficulties involved. A parliamentary committee would likely duplicate
much of the efforts of the Security Intelligence Review Committee (SIRC). Further,
................. 11310$ $CH6 05-16-05 11:37:23 PS PAGE 104

Parliamentary Committees are notoriously subject to the vagaries of time, changes

in membership and over work. There is also the problem of maintaining the secur-
ity of information. This has reference in part to the possibility of partisan motiva-
tions in some members; but it also refers to the general question of whether that
type of committee can maintain the requisite confidentiality by reason of the nature
of its proceedings. In view of these considerations, the Committee believes that it
would not be advisable to establish a parliamentary committee with special access
to CSIS operations and information.18
Criticism was such that the government decided to start afresh. The new bill
followed most of the Pitfield Committee’s recommendations and was finally
adopted by Parliament in August 1984. It reflected the McDonald Commission’s
blueprint in many respects. It established a new civilian agency headed by a
director who could only serve two five-year terms. The Service’s mandate and
functions were carefully spelled out and limited to collecting intelligence about
particular threats and warning the federal government of their implications. It
had no powers to thwart the threats it investigated or to force anyone it inter-
viewed to answer questions. A broader investigatory mandate than the RCMP
Security Service’s authorized it to see personal health records and to intercept
mail. While its primary role was to collect security intelligence—defined in terms
of threats to the security of Canada and Canadian interests—it also had a limited
role in collecting foreign intelligence. While it was not restricted as to where it
could collect security intelligence, it was forbidden to collect foreign intelligence
outside Canada.
The agency was also placed within the recommended framework of account-
ability, controls, and review mechanisms. The solicitor-general was specifically
given responsibility for the Service and authorized to provide the Service with
directions. While the director had day-to-day responsibility for control and man-
agement, the incumbent was made accountable to the minister for the Service’s
actions and obliged to consult with the deputy solicitor-general on its policies
and operations.
The legislation also established two review bodies, one within the executive
branch of government, the other independent of it. The role of the internal body
was primarily one of compliance. In this regard, the inspector-general of CSIS
was charged with certifying that the Service had operated within the law and
according to policy directives. The annual certificate the office produced is sub-
mitted to the deputy solicitor-general but not made public. By contrast the exter-
nal body, the Security Intelligence Review Committee (SIRC), has a wider remit
to check for compliance and to consider efficacy issues. In addition to these
reviews, which may be initiated on its own volition or at the request of the minis-
ter, SIRC investigates complaints against the Service and instances where security
clearances are denied. The Act did not make, as the McDonald Commission had
recommended, this body directly accountable to both the responsible minister
................. 11310$ $CH6 05-16-05 11:37:24 PS PAGE 105

and to Parliament. Consequently, SIRC reports on various matters to the minis-

ter in a confidential and frequently classified manner. Such reports are transmit-
ted as soon as they are completed. By contrast, the annual report SIRC must
submit to the minister each year, and which the minister is obliged to table in
Parliament, is transmitted at the end of the reporting cycle. By this time many
of the issues raised have lost their political urgency. The federal court also exer-
cises another form of control and review. Whenever the Service wishes to inter-
cept communications or to enter and search premises, it must first obtain a
warrant from a specially designated judge.19 Here the standard is less cumber-
some than for criminal investigations conducted by the police. Instead of requir-
ing reasonable and probable grounds to believe that a criminal act has taken
place, CSIS is only required to show it has reasonable grounds to suspect that a
threat to Canada or Canadian interests exists. Significantly, there is no obligation
to obtain a warrant where the Service uses human sources, arguably the most
invasive of techniques.
While the adopted version of the CSIS Act largely followed McDonald’s blue-
print, key elements were omitted. Two would have an important impact on the
effectiveness of parliamentary oversight for years to come. There was to be no
permanent standing committee of Parliament with a purview over the entire
security and intelligence community. This had ramifications from two important
perspectives. First, as none of the other members of the security and intelligence
community had dedicated independent review bodies, it was unlikely they would
receive more than a cursory parliamentary glance. Second, because Parliament
has traditionally organized its committees along departmental lines, matters run-
ning across ministerial portfolios seldom receive the attention they deserve. This
is particularly important when security and intelligence matters are considered
because nearly every government department is either an intelligence producer
or consumer.
The other missing element concerned SIRC. It was to focus only on CSIS.
This meant it could review only other members of the community when they
had specific dealings with the Service. Also, SIRC was to have no direct linkage
to Parliament. Consequently, it could not alert parliamentarians to important
issues until the minister had tabled its annual report in Parliament. This fre-
quently meant there were delays between the timing of a particular incident and
when MPs heard about it. Matters would be even worse with the inspector gener-
al’s annual certificates. SIRC often did not receive these in time to consider them
in its annual report. This meant Parliament was further removed from hearing
about problems that inspectors-general uncovered or the difficulties incumbents
had in fulfilling their duties.20
One important element, not envisaged by the McDonald Commission, was a
complete review of the legislation after it had been in operation for five years. On
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its face, its inclusion in such a highly controversial act was sensible and necessary.
However, it appears that no one in 1984, not even the Pitfield Committee that
recommended it, had reflected on the implications it would have for Parliament
and the difficulties that body might have in fulfilling its mandate.21
Five-year Review of the CSIS

and Security Offences Acts
Both the CSIS Act and the Security Offences Act specifically required Parliament
to conduct a comprehensive review of the provisions and operation of legisla-
tion. Important lessons can be drawn from the experiences of the Special Com-
mittee of the House of Commons that conducted this obligatory statutory
review.22 The parliamentarians chosen by their respective parties to review the
two acts were, with the exception of the Committee’s chair, all first-term MPs.
Initially, they were not very knowledgeable about intelligence matters, the legisla-
tion before them, or the parliamentary powers they had at hand. Perhaps because
of these common deficiencies, members proceeded in a more collegial and non-
partisan manner than others had.23
Arguably, the most important issue for the Committee to review concerned
whether the various requirements of the legislation, especially those concerning
accountability, control, and review, were being met. While the Committee was
obliged by law to review the legislation and had been delegated all the powers of
Parliament for that purpose, it soon found itself confronting roadblocks that
proved insurmountable within the review’s time frame. In addition to being
denied access to officials who had held senior positions in security and intelli-
gence, the Special Committee was refused access to documents that would have
shown whether the various actors identified in the legislation were operating as
Parliament had intended. The government also denied the Committee access to
the annual reports that the various CSIS directors had made to the solicitor-
general along with all the Service’s policy and budgetary documents. In the case
of ministerial directives, the minister would only provide members of the Com-
mittee with an oral briefing without their advisory staff. Similarly, the Commit-
tee was denied access to the inspector-general’s certificates and other reports as
well as all of SIRC’s reports, excepting its public annual reports. Though SIRC
members wanted to help Parliament, they refused to discuss key issues or to
allow members of the Special Committee or its staff to view its classified reports,
thus putting an end to the myth that they were Parliament’s ‘‘surrogate.’’ In fact,
the only documents seen by the Committee were the censored versions released
under the Access to Information Act. Consequently, Parliament could not con-
firm that the complex system of accountability, control, and review was working
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as the Parliament had intended. Nor could it ascertain the degree to which SIRC
functions overlapped with those of the inspector-general. Despite these difficul-
ties, the staff of the Special Committee was able to demonstrate that SIRC had
not followed basic social science research techniques in one particular report.
Though SIRC admitted it was not one of their better reports,24 the analysis left
an uncomfortable question mark hanging over the Special Committee because it
could not confirm whether the techniques used by SIRC were atypical or com-
monplace. Another roadblock affected the Committee’s work but was of its own
making. The Committee shied away from directly asking federal court judges
questions about their role for fear of establishing undesirable precedents con-
cerning the separation of powers. Consequently, it relied on staff interviews with
the federal court’s administrative staff.
The Special Committee used a variety of techniques for obtaining needed
information. Such traditional methods as holding public hearings and question-
ing witnesses formed the Committee’s public face. However, because only a lim-
ited number of issues could be raised during such procedures, these were
augmented with staff interviews and requests for written government responses
to additional questions. Even so, many requests were denied on ‘‘national secur-
ity grounds.’’
Not surprisingly, one of the central recommendations of the Special Commit-
tee was for the government to treat security and intelligence as a special case.25
In order to ensure appropriate access to classified information, it recommended
that Parliament establish a small permanent standing committee. This commit-
tee would have its members work under an oath of secrecy, have security-cleared
staff, and meet in secure premises, sometimes in camera.
The Special Committee also recommended that the government draft a
national security act covering the various components of Canada’s security and
intelligence community. Three objectives underpinned this recommendation.
One was to spur government to respond to earlier recommendations to revise
such legislation as the Official Secrets Act and to provide elements of the com-
munity with enabling legislation that had hitherto relied on executive orders.
Another was to focus Parliament’s attention on the functions, capacities, and
performance of the entire security and intelligence community. Finally, it was
designed to provide all the various components of that community with some
modicum of oversight.
Lessons from the Adoption of

the Anti-terrorism Act
The tragic events of September 11, 2001, are probably forever etched into the
memories of most North Americans and need no replaying here. However, the
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reactions of governments to those events do raise questions about the provision

of national security, the way it is scrutinized, as well as new concerns over the
freedoms of citizens, especially where new powers are enacted in times of ‘‘war.’’
In Canada, reaction was immediate and from one perspective comprehensive.
From another, the government, the media, and the public alike ignored the need
for effective ongoing oversight of their security and intelligence apparatus and
the mechanisms for maintaining the delicate balance.
In under five weeks, the government’s legal drafters pasted a vast omnibus bill
together. Ostensibly, Bill C-36 provided an array of antiterrorism measures. In
truth, it served additional agendas. One concerned the need to convince the U.S.
government that Canada was taking immediate steps to protect U.S. interests.
This was essential if the border between the two countries was to remain open
for trade. The other was less evident. The draft legislation consisted not only of
a range of new antiterrorism powers but included several measures long on the
intelligence bureaucracy’s ‘‘to-do list.’’ Thus, in some respects, it looked like the
national security act that the five-year review process had advocated but without
the very oversight components that underpinned its rationale.
The issue of content and questioning needs to be addressed. For many who
had followed the McDonald Commission’s investigations and had engaged
themselves in the debates over whether the draft versions of the CSIS Act ade-
quately preserved the delicate balance, Bill C-36 sounded a warning shot not
heard in a generation. The provisions specifically geared to make investigating
terrorist activities easier were immediately controversial. Two in particular—
preventive arrest and investigative hearings—directly challenged long-standing
notions of acceptable police practice and principles of criminal law. Thus, they
created intense public disquiet, particularly among the criminal bar.26 That these
new powers became the central focus of the debate over the bill is both difficult
to counter and countenance, given that they are yet to be used other than in
relation to the investigation of the 1985 downing of an Air India jet. Certainly,
important aspects of the bill received short shrift, particularly those on the intel-
ligence bureaucracy’s ‘‘to-do list,’’ such as revising the Official Secrets Act and
providing enabling legislation for both the CSE and its review body.27 Given the
many hours of scrutiny that the CSIS Act received, it is hard to believe that an
agency with greater potential capacity to intrude on more people could have
received such paltry attention. One could be excused for believing it was planned.
The bill increased the powers of many of the agencies named in the legislation.
By making terrorism a crime under the Criminal Code, all police forces were
now obliged to play a much greater role in national security. To this end, the
RCMP is to receive $576 million over six years to enhance public safety and
counter terrorism (RCMP 2002). A very significant portion of these funds is to
go to new multi-force national security and border enforcement teams. Though
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the RCMP argues that their involvement in national security is for ‘‘criminal law
enforcement purposes,’’ it openly admits these units are intelligence led (RCMP
2003). The CSE also received new powers. Before its adoption the CSE had no
authority to intercept communications entering or leaving Canada. The agency
may now do so under certain conditions. The role of the Financial Transactions
and Reports Analysis Centre of Canada was also expanded and enabled by the
legislation. Prior to the act’s adoption its focus was on money laundering. It now
has the authority to detect and deter terrorist financing. None of these new intru-
sive and coercive powers received any concomitant increase in review and over-
sight. The lessons of the McDonald Commission appeared to have been
forgotten. So too did warnings of emergency legislation overstaying its welcome.
Recent Structural Changes to the Intelligence

Community and Oversight
In December 2003, Jean Chrétien resigned after ten years as prime minister. The
new prime minister immediately announced significant structural changes to the
way Canadian security would be provided. Of critical importance were changes
to the way political control of policy would be exercised and how Parliament’s
capacity to oversee the entire intelligence community would be achieved. Hith-
erto security and intelligence policy making and coordination had been fairly
decentralized and inconsistently applied in terms of cabinet control. As well,
responsibility for much of its provision had fallen to junior ministers.
The new administration dramatically changed this by making the deputy
prime minister responsible not only for a new cabinet committee dealing with
all matters of national security and the PCO’s supporting role, but also for a new
and expanded security and intelligence portfolio. The security and intelligence
role of the PCO has been raised both in terms of stature and direct access to the
prime minister. Whereas the security and intelligence coordinator in the PCO
had previously raised security and intelligence matters through the head of for-
eign and defense policy, the current incumbent has been given both deputy head
status and new responsibilities as the country’s first national security adviser. As
a deputy head the coordinator will report directly to the deputy prime minister
on all matters of security and intelligence policy and coordination. As national
security adviser, he or she will report directly to the prime minister. Presumably,
this will include ensuring that future prime ministers are regularly briefed on all
intelligence issues.
The deputy prime minister now also has ministerial responsibility for a new
and expanded security and intelligence portfolio. All of the functions of the old
Ministry of the Solicitor-General have been retained. These include the agencies
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now principally responsible for intelligence work: CSIS, the RCMP, and the
Criminal Intelligence Service of Canada. In addition, the new Ministry of Public
Safety and Emergency Preparedness Canada has responsibility for the Office of
Critical Infrastructure and Emergency Preparedness, formerly in the Department
of National Defence, and a new Border Services Agency. This agency has brought
together the intelligence and investigative arms previously with Citizenship and
Immigration Canada and the Customs Service. In all the deputy prime minister
will now have seven deputy heads reporting directly to him or her.
Ostensibly, the minister of national defence has always been accountable to
Parliament for Canada’s signals intelligence and communications security pro-
grams provided by the CSE and other elements of National Defence. However,
the traditional system of accountability is unusually convoluted. Because chiefs
of the CSE have not—like directors of CSIS—been deputy heads, incumbents
have reported to the minister of national defence via two separate channels:
through the deputy head of the Department of National Defence on administra-
tive matters; and through the security and intelligence coordinator in the PCO
for policy and operational concerns. Because of the cabinet responsibilities and
the fact that the security and intelligence coordinator is now specifically the dep-
uty prime minister’s deputy, it appears that this position will also acquire some
responsibilities for aspects of these programs.
As part of its structural and policy changes, the government has publicly
encouraged Parliament to establish a Permanent Standing Committee on
National Security with its membership drawn from the various parliamentary
parties.28 To this end it has committed to providing parliamentarians with a con-
sultation paper. However, when it subsequently announced measures to attend
to the ‘‘democratic deficit,’’ it referred to a ‘‘committee of parliamentarians.’’29
To date no one appears to have noticed either the impact of this subtle but sig-
nificant difference or its implications for future ongoing parliamentary responsi-
bilities.
By implicitly recognizing that it was Parliament’s right to decide which com-
mittees to establish and that it could only propose a particular course of action,
the Martin government clearly recognized that a Permanent Standing Commit-
tee on National Security would be a parliamentary body with all the rights and
privileges resting with Parliament under the constitution. Significantly, Parlia-
ment delegates to all standing committees the right to call for ‘‘people, papers
and records.’’ Authority to do this in the case of the House of Commons rests
on Standing Order 108. The powers contained therein are considerable. They
permit committees to subpoena witnesses, to place them under oath, and to hold
them in contempt for failing to answer questions or to produce records. In the-
ory, the powers also include the right to arrest and incarcerate those held in con-
tempt. Parliament, in conducting business within its own precincts, is not limited
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by either the laws of Canada or conventions unless it has specifically bound itself
in statute law. Thus, it is not restricted in the documents it may see, as ordinary
citizens are, by what might be released under the Access to Information Act or
which might be constrained by the Privacy Act. Similarly, it is not bound by the
Security of Information Act. Nor is it restrained from talking about matters that
fall under the sub judice convention. In this regard, it should be noted that Par-
liament’s choosing not to insist on the release of documents, or not discussing a
particular matter before the courts, is quite different from being bound not to
do so.
There are good examples in comparable jurisdictions of parliamentary com-
mittees scrutinizing security and intelligence activities. In both New Zealand and
Australia such committees have a statutory basis. New Zealand specifically estab-
lished a parliamentary committee under the Intelligence and Security Committee
Act 1996 to examine the policy, administration, and expenditure of each security
and intelligence agency. Both the prime minister and the leader of the official
opposition are members along with three other persons. The Act specifically con-
firms their role as members of Parliament and requires procedures to follow the
Standing Orders of the House of Representatives. Individual membership rests
on the endorsement of the House but may be terminated by the prime minister,
who chairs the Committee. The Act also requires security procedures to be fol-
lowed by the Committee with the prime minister’s department providing secur-
ity-cleared staff to the Committee.
Australia recently established the Joint Parliamentary Committee on ASIO,
ASIS, and DSB under its Intelligence Services Act 2001. This legislation replaced
the Permanent Joint Committee on ASIO. The new committee has broader pur-
view and can scrutinize the effectiveness and propriety of the key Australian
intelligence organizations. It is obliged to submit an annual review of administra-
tion and expenditure to Parliament but may instigate other investigations to be
reported on separately. The Act specifically confirms the right of the Committee
to call the agency heads before it and obliges the inspector-general of intelligence
to appear when summoned.
A ‘‘committee of parliamentarians’’ signals quite different arrangements from
these parliamentary committees. It may suggest that the government envisages a
model similar to the Intelligence and Security Committee, established under the
UK Intelligence Services Act 1994. This is not a parliamentary body but an off-
spring of the executive branch drawing on parliamentarians for membership. If
a British model were to be followed, committee members would be appointed
by (and removed by) the prime minister, would be subject to the Security of
Information Act, would have only limited powers to obtain information, and
would report to the prime minister, rather than to Parliament.30
In addressing the ‘‘democratic deficit,’’ Prime Minister Martin has committed
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his government to improve both the effectiveness of Parliament and the research
capacities of both political parties and their individual members. There is to be
greater funding for parliamentary committees and more resources for the Library
of Parliament, the body providing nonpartisan research and advice to commit-
tees and individual MPs. These are all very positive and much needed initiatives.
With regard to the Standing Committee on National Security the government
has promised to make its members privy councillors. This has important impli-
cations as privy councillors must swear an oath of office requiring them to keep
secret what they encounter as the result of their office. This should be sufficient
to ensure that members do not leak classified information to other MPs or jour-
nalists. If a member of the Committee were to leak classified information, he or
she could be held in contempt of Parliament. This might result in losing the
rights and privileges of parliamentary membership. As this would prevent MPs
from doing an effective job, it should prove to have a more cautionary effect
on behavior than the mere threat of criminal sanctions under the Security of
Information Act, which would likely be the case with a mere committee of parlia-
mentarians.
Since the Anti-terrorism Act adoption, the RCMP has become more involved
in antiterrorism efforts, requiring the Force again to be broadly engaged in intel-
ligence gathering and analysis. Several events that have occurred since the Sep-
tember 11, 2001, attacks have given cause for public concern and have raised
again the need for greater oversight of the Force’s national security activities. The
Mahar Arar case is of particular importance. During a stopover in New York
when returning from Tunisia to Canada, Arar was arrested and deported by U.S.
authorities. Though traveling on a Canadian passport and wanting to return to
Montreal, he was sent via Jordan to Syria, his birthplace. There he was incarcer-
ated and tortured. Though he was forced to make a false confession, the Syrian
authorities could find no connection of Arar to terrorism and eventually released
him some 375 days after his original detention. It appears that a Canadian intelli-
gence organization provided U.S. authorities with information alleging his con-
nection to al Qaeda. The former government tried to limit political damage by
restricting inquiries to SIRC and the commissioner for complaints against the
RCMP. An RCMP raid on the home and offices of an Ottawa Citizen reporter
who had written a story on Arar based partly on a leaked document (O’Neill,
2003) led to her being charged under the Security of Information Act and to
considerable media attention. As a result, the current government has since been
forced to undertake two initiatives. The first is the establishment of a public
inquiry into the Arar case under Justice Dennis O’Connor. Its terms of reference
include the requirement to make recommendations concerning how best to pro-
vide an independent review mechanism for the RCMP’s national security activi-
ties. The other initiative is to commit Section 4 of the Security of Information
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Act to a parliamentary review. It is to be recalled that the Official Secrets Act was
revised and renamed under the Anti-terrorism Act. Hence, it was already due for
parliamentary consideration when the three-year review of that Act commenced
in December 2004.
An unrelated matter has had important consequences for national security
oversight. During the previous administration, substantial advertising contracts
were awarded to Quebec organizations with close ties to the Liberal party, appar-
ently for little return. These events have since been reported on by the auditor-
general in scathing terms and have raised again the need for whistle-blower pro-
tection.31 The new government has not only acceded to another public inquiry
but has tabled the Public Servants Disclosure Protection Bill. It is important to
recall that Jane Shorten claimed the CSE had breached its mandate in the 1990s
when it spied on trading partners and intercepted and retained the transcripts of
conversations between a foreign embassy receptionist, who was Canadian, and
her gynecologist. Then her only recourse was to reveal what she perceived as
wrongdoing to the media. Though the new legislation would exclude intelligence
agencies from the provisions of the Act, it would still require agency heads to
establish similar procedures for their organizations.
Conclusions
It is perhaps useful to recall what a former U.S. director of central intelligence
told the CSIS Act Review Committee during its visit to Washington in 1990.
When asked for his views on congressional oversight, he said:
When it was first introduced, we fought it all the way. But now we wouldn’t do
without it. When the Agency is falsely maligned by the media there’s someone to
call who can put the record straight. And when the Administration doesn’t respond
to budgetary requests, there are other folks on the Hill who understand our needs
and can go to bat for us.32
Unfortunately, Canada’s intelligence bureaucracy has never seen oversight or

review as having a beneficial side. But sentiments may be changing under the
new administration.
The new government has already taken needed steps to improve how security
and intelligence is structured and controlled by the executive branch, mainly
through executive orders. Some, such as those dealing with the new Department
of Public Safety and Emergency Preparedness, will still require legislation to
amend existing statutes. In addition, the current government has committed to
developing a new national security strategy, the first in the country’s history.
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Together these innovations will elevate the status of security and intelligence on
the national political agenda and may tweak Parliament’s interest.
Arguably, to be beneficial to both intelligence bureaucrats and those charged
with preserving the democratic fabric, oversight must depend on two variables:
the types of organizations involved and how they go about their business; and
their legal remits and reporting relationships. In an insightful article on the con-
gressional system, Mathew McCubbins and Thomas Schwartz posited that effec-
tive oversight is best performed through a combination of two organizational
forms.33 These they call respectively ‘‘fire alarms’’ and ‘‘police patrols.’’ They
argue that the former are more likely to be conducted by inherently political
bodies such as legislative committees because they need to be seen to resolve
issues that alarm the media and public. By contrast, they posit that ‘‘police
patrols,’’ the everyday sort of scrutiny needed to ensure that organizations oper-
ate effectively and efficiently, are less likely to attract legislative bodies because
there is little political currency to be garnered. Furthermore, they seldom have
the time, resources, and in-house expertise to provide such necessary but mun-
dane functions.
Canada has historically relied on review bodies working in secure environ-
ments with security-cleared staff to perform the ‘‘police patrol’’ forms of scrutiny
that routinely check for organizational efficacy and propriety. Some like SIRC
are independent of the executive branch; others such as the inspector-general of
CSIS are within it. But in every instance their purview is limited to a single intel-
ligence organization, a significant weakness given the cross-departmental nature
of security and intelligence. SIRC, for example, has a proactive capacity to con-
duct routine checks on the efficacy and propriety of CSIS, but no mandate to go
further afield. Though these bodies have full access to the agencies they monitor,
they sometimes are thwarted in using their powers, as inspectors-general of CSIS
have found. Similarly, because they are limited in how they report, their capacity
to draw public or media attention to an issue—and hence to call responsible
ministers fully to account—is limited.
A further weakness in the system is that there are few real opportunities to
evaluate how well these bodies perform and whether they have adequate support
staff with institutional expertise. While the special committee that reviewed the
CSIS Act found SIRC’s research capacity to be wanting in one case, it could not
tell whether this was atypical. Similarly, the review body dealing with the RCMP
has found itself ill-equipped in the national security sphere. Since 1990, there has
been but one independent study to evaluate the capacity of review bodies in the
security and intelligence sector; significantly, this did not consider matters of
organizational capacity, performance, or due economy. Initiated by the auditor-
general after the post–September 11, 2001, budget increases, this concluded that
the monitoring of compliance with law and ministerial direction varied widely.34
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Only with CSIS was there any independent capacity to review the compliance of
the Service. It also observed that there was no independent review capacity cover-
ing the various National Defence units involved in domestic intelligence collec-
tion. The same was true for the Customs and Revenue Agency and the Financial
Transactions and Report Analysis Centre of Canada.35
Though the Senate has performed useful investigations into Canada’s count-
erterrorism capabilities and the capacity of its national security sectors, these
have been of an ad hoc nature.36 There has been no effective legislative committee
that could deal either with the ‘‘fire alarms’’ that have arisen or check whether
those performing ‘‘police patrols’’ were acting effectively.37 Such committees as
have existed—even when performing a statutory duty—have often been
thwarted from fulfilling their mandate by an executive branch intent on restrict-
ing necessary access to documents and people. Admittedly, this inadequacy rests
partly with Parliament in not ensuring that committees work under oath, in a
secure environment with adequate security-cleared staff.
A new effective oversight system encompassing fire alarm scrutiny with that
of police patrols is now in the offing. Some form of permanent parliamentary
oversight mechanism with real access to classified information will soon be put
in place. It is far from clear, however, whether this will be a truly independent
parliamentary body or merely a committee of parliamentarians working for the
executive branch. If it is to attend to the democratic deficit, only a parliamentary
body can effect true ministerial accountability. Also unclear is the breadth of the
remit it will have. If it is to scrutinize Canada’s security and intelligence commu-
nity effectively, it will need a broader purview than the British Intelligence and
Security Committee possesses. As recent events there reveal, important areas lie
outside its purview—the Joint Intelligence Committee and the Defence Intelli-
gence Staff, to name but two bodies not covered by British legislation. As well, it
will need to consider not just whether organizations comply with Canadian laws
and policy directives but whether they have the capacity to fulfill their mandates,
whether they have performed as expected, and whether they are operating with
due economy as Paul Light has advocated.38 To do this it will have to work closely
with the review bodies now in place doing the police patrol work. Today, Juve-
nal’s question—Who will watch the watchers?—is as pertinent as when first
posed.
Notes
1. Jeff Sallot, Nobody Said No (Toronto: James Lorimer & Company, 1979), 94–95.
2. McDonald Commission, 1981, Second Report, Volume 2: 754–76.
3. McDonald Commission, 1981, Second Report, Volume 2: 896–905.
................. 11310$ $CH6 05-16-05 11:37:34 PS PAGE 116

4. Prime minister of Canada, Changes to Government (Ottawa, Government of Can-

ada, 2003)
5. Steve Hewitt, Spying 101: The RCMP’s Secret Activities at Canadian Universities,
1917–1997 (Toronto: University of Toronto Press, 2002).
6. Stuart Farson, ‘‘Security Intelligence Versus Criminal Intelligence: Lines of Demar-
cation, Areas of Obfuscation and the Need to Re-evaluate Organizational Roles in
Responding to Terrorism,’’ Policing and Society 1 (1991a): 65–87.
7. Office of the Auditor-General of Canada, Report [Online], (2003): Chapter 10 sec-
tion 10.132. Available at: www.oag-bvg.gc.ca/domino/reports.nsf/html/20031110ce.html.
Accessed January 12, 2004.
8. The role of the private sector in providing intelligence is not considered here but
may be significant. See: James Keeley, Rob Hubert, and Robert N. Huebert (eds.), Com-
mercial Satellite Imagery, United Nations Peacekeeping and Canadian Security: A View from
Above (Aldershot: Ashgate, 2004).
9. The current role of the highly secretive JTF2 is unclear.
10. Alistair S. Hensler, ‘‘Creating a Foreign Intelligence Service,’’ Canadian Foreign Pol-
icy 3(3), (1995): 15–35.
11. Brian Laghi, ‘‘War on Terror: Inside Ottawa: CSIS admits to spying abroad, Globe
and Mail, October 19, 2001; Steward Bell, ‘‘CSIS admits to spying abroad,’’ National Post
(October 20, 2003); Bruce Campion-Smith, ‘‘Global spy role grows: CSIS head Canadian
agency operating ‘sans frontiers.’ Policy-maker wonders if new agency needed,’’ Toronto
Star, October 27, 2003.
12. Stuart Farson, ‘‘So you don’t like our Cover Story—Well we have Others: The
Development of Canada’s Signals Intelligence Capacity through Administrative Sleight of
Hand,’’ in (Ab)Using Power: The Canadian Experience, eds. Robert Menzies, Dorothy
Chunn, and Susan C. Boyd (Halifax, Fernwood Press, 2001), 78–94.
13. Privy Council Office, The Canadian Security and Intelligence Community (Ottawa:
Government of Canada, 2001), 14.
14. Stuart Farson, ‘‘Restructuring Control in Canada: The McDonald Commission of
Inquiry and its Legacy,’’ in Controlling Intelligence, ed. Glen Hastedt (London: Frank Cass,
1991): 155–85.
15. McDonald Commission, 1981, Volume 1 Part III.
16. McDonald Commission, Second Report, Volume 2: 901.
17. Senate of Canada, Delicate Balance: A Security Intelligence Service in a Democratic
Society (Special Committee on the Canadian Security Intelligence Service, Ottawa: Minis-
try of Supply and Services, 1983).
18. Ibid, 32.
19. CSIS Act Section 21.
20. Jim Bronskill, ‘‘The spy who snubbed me: Watchdog says CSIS boss refused meet-
ings for years,’’ Montreal Gazette, June 3, 1999.
21. Senate, 1983: 35.
22. Stuart Farson, ‘‘The Noble Lie Revisited: Parliament’s Five-Year Review of the CSIS
Act: Instrument of Change or Weak Link in the Chain of Accountability?’’ in Accountabil-
ity for Criminal Justice, ed. Philip C. Stenning (Toronto: University of Toronto Press,
1995), 185–212.
23. Sharon L. Sutherland, ‘‘The Al-Mashat Affair: Administrative Accountability in
Parliamentary Institutions,’’ Canadian Public Administration 34(4) (1991): 573–603; Reg
Whitaker, ‘‘The ‘Bristow Affair’: A Crisis of Accountability in Canadian Security Intelli-
................. 11310$ $CH6 05-16-05 11:37:35 PS PAGE 117

gence,’’ Intelligence and National Security 11(2) (1996): 279–305; Stuart Farson, ‘‘In Crisis
and in Flux? Politics, Parliament and Canada’s Intelligence Policy,’’ Journal of Conflict
Studies 16 (1) (1996): 30–56.
24. Stuart Farson, ‘‘The Noble Lie Revisited,’’ 203.90
25. House Of Commons, Special Committee on the Review of the CSIS Act and the
Security Offences Act, In Flux but not in Crisis (Ottawa: House of Commons, 1990): 203–
215.
26. Ronald J. Daniels, Patrick Macklem, and Kent Roach, The Security of Freedom:
Essays on Canada’s Anti-Terrorism Bill (Toronto: University of Toronto Press, 2001);
David Daubney, Wade Deisman, David Jutras, Errol Mendes, and Patrick Molinari, Ter-
rorism Law and Democracy, How is Canada Changing following September 11? (Montréal:
Les Édition Thémis, 2002); K. Roach, September 11: Consequences for Canada (McGill
Queens University Press, 2003).
27. Jim Bronskill, ‘‘Government ignores calls to amend ‘seriously flawed’ Official
Secrets Act,’’ Ottawa Citizen, December 18, 2000.
28. Prime Minister of Canada, Changes to Government [Online] (Ottawa, Government
of Canada, 2003).
29. Privy Council Office Ethics, Responsibility, Accountability: An Action Plan for Demo-
cratic Reform–February 4 2004.
30. See chapter 5 by Ian Leigh in this volume.
31. Office of the Auditor-General of Canada, Report [Online], (2003): Chapters 3–5).
32. Parliament does not record hearings held outside Canada. The quotation is from
the author’s personal notes.
33. Mathew McCubbins and Thomas Schwartz ‘‘Congressional Oversight Overlooked:
Police Patrols versus Fire Alarms,’’ American Journal of Political Science 28(1) (1984):
165–79.
34. Office of the Auditor-General of Canada, Report (2003).
35. Though the Auditor-General’s Report mentions the Department of Foreign Affairs
and International Trade, and Citizenship and Immigration Canada, it does not consider
how these are reviewed. The role of the Privy Council is not considered by the report.
36. Senate of Canada, Special Committee of the Senate on Terrorism and Public Safety,
Terrorism (Ottawa: Ministry of Supply and Services Canada, 1987); Second Special Com-
mittee of the Senate on Terrorism and the Public Safety, Terrorism (Ottawa: Ministry of
Supply and Services Canada, 1989); Special Committee on Security and Intelligence,
Report (Ottawa: Senate of Canada, 1999); Senate of Canada, Standing Senate Committee
on National Security and Defence, Canadian Security and Military Preparedness (Ottawa:
Senate of Canada, 2002); Senate of Canada, Standing Senate Committee on National
Security and Defence, Defence of North America: A Canadian Responsibility (Ottawa: Sen-
ate of Canada, 2002); Senate of Canada, Standing Senate Committee on National Security
and Defence, For an Extra $130 Buck . . . Update on Canada’s Military Financial Crisis: A
View from the Bottom Up (Ottawa: Senate of Canada, 2002); Senate of Canada, Standing
Senate Committee on National Security and Defence, The Myth of Security at Canada’s
Airports (Ottawa: Senate of Canada, 2003); Senate of Canada, Standing Senate Committee
on National Security and Defence, Canada’s Coastlines: The Longest Under-defended Bor-
ders in the World, 2 Volumes (Ottawa, Senate of Canada, 2003).
37. Stuart Farson, ‘‘Parliament and its Servants: Their Role in Scrutinizing Canadian
Intelligence,’’ Intelligence and National Security 15(2) (2000): 225–56.
38. Paul Light, Monitoring Government: Inspectors General and the Search for Account-
ability (Washington D.C.: Brookings Institute, 1993).
................. 11310$ $CH6 05-16-05 11:37:36 PS PAGE 118

7
Intelligence and Accountability in
a State without Enemies: The Case
of Norway
Fredrik Sejersted
T he basic challenge of making intelligence and counterintelligence account-

able is common to all democratic systems of governance. On the one hand,
efficient intelligence services are vital for national security and stability, and they
necessarily have to conduct most of their activities in deep secrecy. This limits
the possibilities for democratic oversight and accountability. On the other hand,
the need for such oversight and accountability is particularly acute with regard
to secret agencies, which often will have the capability not only of endangering
the basic rights and liberties of citizens, but also of covertly interfering in the
processes of democratic governance. Intelligence oversight is a field riddled with
inherent problems and paradoxes.1
Though the basic challenges are the same, the ways in which liberal democra-
cies have responded to them differs widely. One reason for this is that the struc-
tural problems are too complicated for political and constitutional theory to
construe one, or even a few, general models. There can be many solutions, some
good, some not so good, but none of them ideal. And any model attempting to
establish efficient intelligence oversight must be specifically tailored to national
needs and characteristics—to the constitutional structure, the political and his-
torical traditions, the perceived external and internal threats, the size and capa-
bilities of the secret services, the democratic maturity and stability of the system,
and a number of other factors.
From this perspective, Norway enjoys the privilege of being small, peaceful,
and dull. There are no serious external or internal threats to national security,
— 119 —
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the secret agencies are well-behaved, and the political system is stable and
mature. The preconditions for making intelligence accountable are among the
most favorable in the world. If democratic oversight is not possible here, it is not
possible anywhere.
So it should come as no surprise that Norway does have a model for intelli-
gence oversight. The main characteristic of this model is a strong emphasis on
legislative (as opposed to executive) oversight, or rather on oversight conducted
on behalf of the legislature, by the Committee for Oversight of the Intelligence,
Surveillance and Security Services (Utvalget for kontroll med etterretnings-, over-
våknings- og sikkerhetstjeneste). This Committee is appointed by and reports
directly to Parliament, but the seven members are not members of Parliament.
The oversight they conduct is of a legalistic and professional rather than a politi-
cal nature, and their mandate, as laid down by parliamentary statute, focuses on
the observance of the rule of law.
Within this mandate, the Committee has extensive investigative powers. Its
oversight covers the whole of the Norwegian intelligence machinery, which con-
sists of the Intelligence Service, the Police Security Service, and the National
Security Authority, but the extent and intensity of the oversight varies as regards
the three agencies. Oversight of the Police Security Service is strict, while that of
the Intelligence Service is more marginal. The oversight is primarily of an ex-
post-facto nature, and the agencies are forbidden from consulting with the Com-
mittee about future operations.2 The major part of the Committee’s work takes
place through regular inspections, during which the agencies are required to
present documents, answer questions, and give briefings. The Committee can
initiate inquiries, and it also deals with complaints from individuals and organi-
zations.
This model of oversight has now been in operation for some nine years, and
on the whole it seems to be working well. In its early days, the Committee uncov-
ered one major ‘‘scandal,’’ which resulted in the forced resignation of the head
of the Police Security Service as well as the minister responsible (see the following
discussion). Since then, there has been less controversy, but rather a steady and
continuous oversight that seems to have gained the acceptance of the agencies,
as well as the approval of Parliament and the press. In a small country, with a
moderate-sized intelligence community, this has created the preconditions for
an acceptable degree of political and administrative accountability. Indeed,
within the limits set by the Committee’s statutory mandate, it is difficult to envis-
age a stricter oversight regime, without at the same time seriously endangering
the effectiveness and efficiency of the secret agencies.
The legislative oversight of the Norwegian intelligence machinery is supple-
mented by executive control and oversight of a more traditional administrative
nature, less visible to the public and more concerned with the effectiveness, effi-
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Intelligence and Accountability in a State without Enemies 121
ciency, and quality of the agencies. There is little coordination between the exec-
utive and the legislative oversight procedures, and results from the former are
seldom channeled into the latter.
Background
The Norwegian Secret Services
The Norwegian secret services consist of three agencies, the Intelligence Service,
the Police Security Service, and the National Security Authority. The organiza-
tional structure reflects the traditional distinctions between intelligence, counter-
intelligence, and other security tasks, as well as between ‘‘military’’ and ‘‘civilian’’
agencies.
The Norwegian secret services were formed by Norway’s position during the
Cold War, as a NATO member on the strategically sensitive northern flank, bor-
dering upon the former Soviet Union, and with close military ties to the United
States. The services are from a comparative perspective naturally quite small, but
in relationship to the size and apparent stability of the country they are still
rather large and well developed. As in other Western democracies, the challenges
facing the services have been profoundly influenced by the breakup of the Iron
Curtain and the new threats to national security and stability arising over the last
decade.
The Intelligence Service (Etterretningstjenesten) is formally a military agency,
though most of the staff is civilian. It is organized as part of the Armed Forces,
and reports to the chief of defence and the minister of defence. Its mandate is to
gather and analyze intelligence from abroad, and the main task has traditionally
been that of electronic signal intelligence. It operates a number of listening sta-
tions and vessels for electronic naval monitoring of the Russian Northern Fleet,
including the nuclear deterrence force based on submarines stationed on the
Kola Peninsula, just across the border. Unknown to Parliament and the public,
the financing of this quite large organization was, up until the early 1990s, for
the most part (more than 90 percent) covered by the United States and NATO.
Today, it is financed nationally. During the last decade, the tasks of the Intelli-
gence Service have both grown and to some extent changed, reflecting new
requirements for a broader range of intelligence information.
The existence and activities of the Intelligence Service have traditionally been
shrouded in deep secrecy, and while this has changed somewhat recently, it is
still by far the most secretive of the services. A statutory basis for the Intelligence
Service was established for the first time by parliamentary legislation as late as
1998.3 The Act states that the mandate of the Service is to gather intelligence
on, and counteract, external threats to national security and other vital national
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interests, and it is explicitly prohibited from gathering information on Norwe-

gian citizens on national territory.
The Police Security Service (Politiets Sikkerhetstjeneste) is a civilian agency,
organized as a rather independent part of the police force, under the minister of
justice. Its main tasks have traditionally been that of counterintelligence against
foreign agencies operating on Norwegian soil, and surveillance of national citi-
zens suspected of threatening national security and other vital national interests.
During the Cold War, the main focus of the agency was to counteract Soviet and
Eastern European intelligence. But the agency also conducted extensive surveil-
lance on national citizens, especially on the political far (though not always so
very far) left. Over the last decade, the tasks of the Service have both grown and
changed dramatically. While it still conducts traditional counterintelligence, a
fast-growing part of its work is now connected to the ‘‘new’’ threats. And its
traditional preoccupation with the political far left has been replaced by a keener
interest in the more sinister activities of the far right.
The former secretive nature of the Police Security Service was more or less
blown apart in the 1990s, during which it was subjected to intensive scrutiny and
debate, following a number of (real and imaginary) ‘‘scandals,’’4 and resulting in
a major reorganization. It was only recently (2002) given a statutory basis,
through an amendment to the 1995 Police Act, but its organization, resources,
procedures, and tasks have for some time to a large extent been publicly known.
Its powers to conduct operations through wiretapping, surveillance, and house
searches are subject to the same legal requirements as are those of the ordinary
police force, which often means that a (secret) court decision is necessary. But
the Service is subjected to a far stricter oversight regime (legislative and execu-
tive) than applies to the ordinary police.
The National Security Authority (Nasjonal Sikkerhetsmyndighet) was estab-
lished by a statutory act in 2001, as a civilian directorate under the Ministry of
Defence. It replaced the former (military) Defence Security Service. Its tasks are
of a preventive and defensive nature, and it does not conduct investigations or
operations. It is the highest authority for issuing and withdrawing personnel
security clearances, classifying and declassifying information, and for the physical
and electronic securing of governmental and other sensitive premises against
espionage. Though secretive, its work is seldom subject to the same potential
controversy as are the operations of the two other agencies.
Oversight of the Agencies until the Early 1990s

Until the early 1990s, the structures for intelligence oversight of the Norwegian
secret services were on the whole poorly developed, particularly as regards legis-
lative oversight. The political and administrative climate was heavily influenced
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by the Cold War and by a broad consensus that vital national interests were best
served by leaving the agencies to themselves. As in many other countries, the
government effectively argued that the idea of parliamentary oversight was
inherently alien to the concept of running secret services, and this was broadly
and tacitly accepted by all political parties, with the futile exception of the small
and marginal Socialist Peoples Party (which was itself subject to quite extensive
secret surveillance). On the whole, Parliament was kept outside the ‘‘ring of
secrecy,’’ and most MPs were perfectly comfortable with this.
Dealing with the Past—the Lund Inquiry (1994–96)

This changed dramatically in the early 1990s, when new light was shed on the
secret services. In a number of books and articles the services were criticized for
allegedly having conducted illegal political surveillance and irregular operations,
and for having had too close ties to the ruling Labour Party. This wave of criti-
cism corresponded in time with a marked shift in the national security climate,
following the breakup of the Iron Curtain. The result was a widespread public
feeling that time was ripe for a major inquiry into the activities of the secret
services, past and present. Demand for an inquiry gained the support both of the
Conservative opposition and the Radical Socialist opposition, thereby creating a
parliamentary majority, which the minority Labour government could not with-
stand.
The result was the Lund Commission, appointed by Parliament in 1994. The
five members were headed by a judge of the Supreme Court, Ketil Lund, and
included a retired general and a former radical politician. The Commission had
a professional staff of eight, including historians and police investigators, and
wide powers of inquiry. The mandate was to inquire into all allegations of illegal
or irregular surveillance of Norwegian citizens, by any of the intelligence and
security agencies, from 1945 until the present. The result was a 600-page report,
presented to Parliament in the spring of 1996, which was declassified and pub-
lished.5
In effect, this was a ‘‘truth commission,’’ which received general acceptance
on all sides of the political landscape. The Lund Commission found a lot to criti-
cize in the agencies, particularly in the Police Security Service, but the most seri-
ous allegations were found to be unsubstantiated. For the agencies, the report
was a rough encounter with the new requirements of a more transparent modern
society, and it led to major reorganizations. But at the same time the report of
the Commission also washed away the sins of the past, doing this so effectively
as to create a basis both for national reconciliation, and for greater future legiti-
macy for the agencies concerned. The Lund Report is a unique historical docu-
ment, and in a comparative perspective it is an example of how a thorough
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inquiry into the intelligence machinery can produce results that are in the long
term beneficial both to the agencies and to society at large.
The Establishment of New Oversight Procedures in 1996

Just as the Lund Commission was appointed to uncover the sins of the past, a
parallel process was started to establish more efficient oversight procedures for
the future. In 1993 Parliament made a decision that intelligence oversight should
be intensified and that Parliament itself should have a role. A special committee
was appointed in 1994 to draft the legislation, and in 1995 Parliament adopted
the Act Relating to the Oversight of the Intelligence, Surveillance and Security
Services, thereby establishing the new Intelligence Oversight Committee, which
came into operation in the spring of 1996.
The creation of the Intelligence Oversight Committee coincided with a more
general reform of parliamentary scrutiny and oversight procedures in the early
1990s,6 reflecting the political context at the time, and growing demands for
increased accountability. The intensification of intelligence oversight was both
part of this general trend and a result of the more specific processes that also led
to the Lund Commission.
In creating the new model for intelligence oversight, the legislators were
inspired by experiences and procedures from other countries, notably the other
Nordic countries, the UK, Germany, the Netherlands, Canada, and Australia.7
But the result was an original Norwegian model, reflecting national needs and
characteristics. The most radical feature was that much of the oversight was
moved away from the executive to the legislative branch, and the fact that over-
sight of the whole intelligence and counterintelligence machinery should be con-
ducted by one single Committee, on behalf of Parliament.
The Parliamentary Intelligence

Oversight Committee
The Legal Basis and Mandate of the Committee
The legal basis for the Intelligence Oversight Committee is the Parliamentary Act
of February 3, 1995, and supplementary Instructions issued by Parliament on
May 30, 1995. Together, they form a detailed set of rules for how the oversight
procedures should be conducted, as well as establishing the Committee’s powers
of inquiry.
According to the Act, the activities to be scrutinized by the Committee are
defined functionally, and not by reference to the three established secret agencies.
If other governmental bodies conduct intelligence or counterintelligence, this
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will also fall within the competence of the Committee. In practice the oversight
is closely related to the three agencies, and the detailed procedures in the Instruc-
tions are also tailored to each of these.
The main purpose of the Committee’s oversight is to safeguard the interests
of individuals under the rule of law. According to article 2 of the Act the first
aim is to prevent ‘‘any exercise of injustice against any person.’’ This is modified
in the Instructions, which states that, as a general rule, the oversight should not
include activities directed against persons who are not resident in Norway, nor
activities ‘‘involving foreign citizens whose residence in Norway is associated
with service for a foreign state.’’ In other words, the idea is to protect Norwegian
citizens on native soil and other individuals living their private lives here. Activi-
ties directed against foreign agents (and indeed Norwegians abroad) are as a
main rule not covered. The Committee may however also conduct oversight in
such cases, ‘‘when special grounds so indicate.’’
The Committee’s oversight is primarily concerned with preventing ‘‘injus-
tice,’’ which should be read as a legal criterion, allowing it to investigate, for
example, illegal surveillance or wiretapping. But the Committee shall also con-
duct a more discretionary test of proportionality, and may criticize any means of
intervention against individuals that exceed those ‘‘required under the circum-
stances.’’ Thus, the Committee may, for example, criticize the denial of a security
clearance, even if it is within the legal powers of the agency concerned.
Another part of the oversight mandate according to the Act is to ensure that
intelligence and security activities ‘‘do not involve undue damage to civic life,’’
and that they are kept ‘‘within the framework of statute law, administrative or
military directives and non-statutory law.’’ The reference to ‘‘civic life’’ is rather
vague. The reference to legal rules is more concrete: it refers to other legal restric-
tions on the agencies and gives the Committee the competence to raise cases that
do not necessarily involve individual rights. However, one difficulty is that the
rules governing the agencies are rather wide and discretionary, thus giving few
criteria for any sort of extensive oversight.
According to Caparini,8 intelligence oversight bodies generally aim to assess
one of two things—either the ‘‘efficacy’’ of the intelligence service or the ‘‘propri-
ety’’ of its activities. The Norwegian model of legislative oversight is almost
entirely focused on ‘‘propriety’’ and leaves ‘‘efficacy’’ to the executive. The Com-
mittee has neither the competence nor the qualifications to evaluate the intelli-
gence and analysis supplied by the secret agencies, nor to question their
effectiveness and efficiency. Such evaluations are left to executive oversight pro-
cedures, and (to a lesser extent) to the Office of the Auditor-General.
Another restriction on the Committee’s oversight is that (as the main rule) it
is not concerned with operations outside of Norwegian territory. This effectively
means that most activities of the Intelligence Service are not covered. The Intelli-
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gence Service may eavesdrop on the Russians as much as it likes, and should it
happen to recruit agents abroad, or conduct other kinds of secret operations on
foreign soil, these will normally not be reported to the Committee.
A somewhat different restriction on the Committee is laid down in the last
paragraph of section 2, which states that the purpose is ‘‘purely monitory,’’
which means that the oversight shall be ex post facto, and that the Committee
may not instruct the agencies, nor be used by them for consultations (more on
this later).
The Committee’s oversight is primarily directed against the secret agencies as
such, and not against the relevant ministries or ministers. The main purpose is
to prevent injustice, and to ensure respect for the rule of law in the agencies—not
to question how central government makes use of them, through instructions
and political signals. This is reflected in the fact that the Committee’s otherwise
wide powers of inquiry do not apply to the requiring of documents and informa-
tion from ministers, nor from civil servants working in the ministries. The
(debatable) idea behind this is that oversight of ministers should formally be a
task for Parliament itself, and not for a Committee of professionals, acting on
behalf of Parliament. Should the Committee, however, find indications that the
agencies have been misused for political purposes by the ruling party, for exam-
ple to spy on the opposition, this would certainly be seen as falling within the
heart of the oversight mandate.
Appointment and Resources of the Committee

The Committee has seven (part-time) members, including the chairman. They
are appointed by Parliament in plenary session, on the recommendation of the
Presidium. The term of office is five years, and the members may be reappointed.
The members must be cleared for the highest security classification in accordance
with national and NATO rules. The Committee is quorate when five members
are present. It functions as a collective body, but inspections and investigations
may be conducted by one or more of the members, assisted by the secretary.
The Committee is an external parliamentary body, which conducts its day-to-
day work independently of Parliament itself, and current MPs may not be mem-
bers. In this respect, the Committee differs from legislative oversight models in
most other Western countries, in which the oversight bodies are composed of
parliamentarians. The idea behind the Norwegian model is to combine the prin-
ciple of legislative oversight with the need for more professionalized, confiden-
tial, politically neutral, and work-intensive procedures. The Committee enjoys
the authority of being a ‘‘parliamentary’’ institution, and it reports directly to
Parliament, but it functions as an independent body, removed from the daily
political struggles. Parliament may in principle instruct the Committee to inves-
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tigate a given case, though so far it has not done so, but it may not interfere in
the way in which the Committee conducts its oversight. The model is partially
copied from that of the Parliamentary ombudsman, and the members should in
principle be regarded as a kind of ‘‘intelligence ombudsmen.’’
Just how professional and politically neutral the Committee should be has
been the subject of some debate. When the first committee was appointed in
1996, the procedures allowed for each of the main parties represented in Parlia-
ment effectively to choose their own candidates, and all the members had some
affiliation to a political party. Most of them had formerly held some kind of
political office. This system was soon criticized, and in 1998 Parliament changed
the procedures, so that new members are nominated by the Presidium (the
Speakers). This in effect means that appointments are subject to broader consid-
erations and compromises, taking into account the need for professional exper-
tise.9 On later occasions, three ‘‘professional’’ and politically neutral members
have been appointed—a former diplomat, a judge, and a professor of history. At
the same time, two of the original members have been reappointed, and two
others chosen amongst former politicians. The result is a strange mix of ‘‘politi-
cal’’ and ‘‘professional’’ expertise, which in practice seems to work rather well.
When the Committee was first appointed in 1996, there was an unwritten
political understanding that the chairman should belong to the opposition. But
this was abandoned in 1999, when a politically ‘‘neutral’’ former diplomat was
appointed the new chairman. Amongst those members who are still chosen on a
more political basis, care is however still taken to ensure that they reflect the
main political interests represented in Parliament. Most importantly, the Com-
mittee has always had a member from the Socialist Peoples Party, a party which
has traditionally been critical of the secret services, and which has itself formerly
been subjected to extensive surveillance. There is a quite broad (if not complete)
political consensus that this is vital in order to ensure the legitimacy of the over-
sight procedures.
The secretariat of the Committee is small. It consists of an office secretary
and two part-time legal secretaries, drafted from the office of the Parliamentary
ombudsman. Their professional training is that of handling legal cases, particu-
larly citizens’ complaints, and they are neither investigators nor intelligence
experts. The Committee also has the right to engage expert assistance, but this
possibility of further professionalizing oversight has only been used moderately.
The limited staff resources clearly restrict the Committee’s ability to conduct
more extensive inquiries and investigations as well as its ability to be proactive.
There is a certain discrepancy between the tasks laid down in the mandate and
the resources allocated to the Committee. To some extent this is intentional. Par-
liament does not suffer from lack of money, and it would have been easy within
the same oversight framework to give the Committee a professional staff of five
................. 11310$ $CH7 05-16-05 11:37:27 PS PAGE 127

or ten persons. But this would in effect have made it a completely different insti-
tution, and would have resulted in rather more intense oversight of the agencies
than Parliament deemed necessary.
Powers of Inspection and Inquiry

The Committee mainly conducts its oversight in two ways—through inspections
of the agencies, and by dealing with complaints and inquiries. Of these two, the
inspections are by far the most time-consuming, and arguably also the most
important part of the oversight. In a comparative perspective, the strong empha-
sis on inspections is a particular characteristic of the Norwegian model.
The rights and duties of the Committee to conduct inspections are laid down
in the Act and the Instructions, which specifies the minimum annual number of
twenty inspections. Advance notice of inspections is given, though in principle
unannounced inspections may also be conducted.
During inspections, the Committee may, according to section 4 of the Act,
demand access to the agencies’ archives, registers, premises, and installations of
all kinds. All employees of the agencies shall on request procure all documents,
materials, equipment, and so on that may have significance for the purpose of
the inspection. The agencies are under a duty to keep archives and registers in
such a way that they may be scrutinized effectively by the Committee.
Inspections of agency headquarters usually follow a regular pattern. The
Committee is first briefed by the agency leadership on current general matters
and presented with surveys on new cases and new major developments falling
within its mandate. The parties then discuss cases currently being scrutinized by
the Committee, and finally there is often a physical inspection of registers, jour-
nals, archives, or specific premises or installations.
Although the inspections follow a more or less regular pattern, the intensity
and nature of the oversight conducted differs as regards the three agencies; that
is, the Police Security Service is subjected to the most thorough scrutiny, fol-
lowed by the National Security Authority, while oversight of the Intelligence Ser-
vice is more limited.
The Committee’s right to require documents from the agencies, according to
section 4 of the Act, is not confined to the inspections, but may be exercised at
all times. Thus the Committee may in principle demand access to any document
or other piece of evidence. Especially sensitive documents are read in the offices
of the agency concerned, but other documents are given in copy to the Com-
mittee.
As a main rule, the Committee’s right of access to documents and information
under the Act is unlimited (save from ministerial information). This is moder-
ated in the Instructions, which states that the Committee shall not apply for
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more extensive access to classified information than is necessary for the purposes
of the oversight, and that it shall have regard to the need to protect sources and
information received from abroad. This puts the Committee under a constant
obligation to evaluate what kind of information is really needed in order to con-
duct efficient oversight within the mandate. But it is not formally a legal restraint
on the right of access, since the Instructions also state that disputes over access
shall be decided by the Committee itself, subject to a right for the agency to for-
mally protest.
During inspections of the agencies, the Committee will have discussions with
the intelligence and security officials present, and the members may ask them
questions on the cases under investigation. This is how the Committee gathers
by far most of its oral evidence, and it is done rather informally. The Committee
has the legal powers to formally summon witnesses, but these rules have so far
never been applied in practice.
Complaints and Inquiries Initiated by the Committee

According to section 4 of the Act, the Committee shall ‘‘investigate all complaints
from persons and organizations.’’ This means that anyone who believes that one
of the agencies may have committed an injustice against him or her may com-
plain to the Committee, and the complaint will be looked into, as long as it falls
within the oversight mandate and shows at least some likelihood of being based
on facts. This is the part of the Committee’s oversight function that in particular
resembles the work of the Parliamentary ombudsman, although subject to rather
stricter rules of confidentiality.
The number of complaints received each year has varied. During its first two
years in operation, the Committee received a total of eighty-nine, but due to
public misunderstanding of the nature of the oversight, half of these had to be
dismissed as falling outside of the Committee’s mandate. The numbers for the
following years have been twenty-one (1998), seventeen (1999), fourteen (2000),
twenty-five (2001), and twenty-eight (2002). The large majority of complaints
concern the Police Security Service, and typically involve allegations of illegal
surveillance. There are also a few complaints each year against the security
authorities, concerning denials or withdrawals of personnel security clearances.
So far only two complaints have been received against the Intelligence Service.
Complaints are often investigated in connection with the inspections, during
which the Committee may discuss the complaint with the agency and demand
explanations or access to the relevant archives and registers. Sometimes special
meetings are held on a case-to-case basis. The large majority of complaints have
so far been found to be unsubstantiated. If, however, the investigation reveals
grounds for criticism, the Committee will express this in a written statement to
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the agency. The Committee has no authority to instruct the agencies to take spe-
cific action, but it may express its opinion, and may make a recommendation to
reconsider the case.
According to the Act, the Committee shall also ‘‘on its own initiative deal with
all matters and factors that it finds appropriate to its purpose, and particularly
matters that have been subjected to public criticism.’’ Each year a number of
inquiries are initiated by the Committee itself—eighteen in 1997, fourteen in
1998, five in 1999, seven in 2000, ten in 2001, and twelve in 2002. The emphasis
that special attention should be given to matters that have been the subject of
public criticism reflects the fact that traditionally ‘‘scandals’’ concerning the
secret agencies are often first uncovered by the media. In practice, all serious
allegations raised by the media will be looked into by the Committee. Usually,
they are found to be unsubstantiated, and when the Committee reports this to
Parliament, the legitimacy of the oversight process is such that this will normally
quell public criticism and distrust. In this way, the work of the Committee has
so far also served to bolster the legitimacy of the agencies.
Statements and Reports

The results of the Committee’s oversight are given in full statements on a case-
to-case basis to the agencies concerned, in short statements to complainants, and
in the annual reports presented directly to Parliament. Sometimes short state-
ments are also issued to the press. The ability of the Committee to demonstrate
the basis for its conclusions is restricted by the fact that it operates within the
ring of secrecy, and does not itself have the competence to declassify secret infor-
mation.
The Committee’s statements to the agencies shall, pursuant to section 4 of the
Act, be ‘‘classified according to their contents,’’ which means that they are not
made public nor sent to Parliament. The statements are in effect a purely internal
form of communication between the Committee and the agency and sometimes
also the Ministry. The Committee does not have the competence to formally
instruct the agencies, but it may point out faults and failures, and if it considers
that decisions made by the agency are formally invalid (on legal grounds), or
contrary to principles of good administration, it shall indicate so. It may also
propose improvements to existing administrative arrangements, on matters rele-
vant to the mandate of the oversight.
Even if (or rather because) the Committee’s statements to the agencies are not
made publicly known, and not shown to Parliament, they are in effect probably
the most important outcome of the oversight procedure. It is through these
statements that the Committee may in fact actively assist the agencies in uncov-
ering, redressing, and preventing faults and failures. This part of the Committee’s
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work in practice functions as a kind of ‘‘internal’’ audit, within the ring of

secrecy. By acting in an advisory, rather than an adversarial, manner this should
normally help to prevent potential controversy and make it easier for the agen-
cies to accept comments, even of a critical nature.
Statements are also given to complainants, but these are necessarily short,
since the Committee lacks the competence to disclose classified information. As
a general rule it may only state whether or not the complaint gave valid grounds
for criticism. According to the Act the Committee may not inform the complain-
ant as to whether he or she has been subjected to secret surveillance. The Com-
mittee may however request the consent of the agency to provide a more detailed
explanation, and this has been done in several cases, in order to give the com-
plainant and the public a satisfactory response.
The Committee’s obligation to submit reports to Parliament is stated in the
Act, and regulated in some detail in the Instructions. The Committee shall sub-
mit an annual main report by April 1 each year, covering its activities during the
previous year, but it may also submit reports on individual cases, if it uncovers
matters that ‘‘should be made known to the Storting immediately.’’ So far this
has only happened once. Any report to Parliament on an individual case neces-
sarily gives rise to great attention, and the Committee in practice is hesitant to
precipitate a crisis, unless the case is both highly important and of great urgency.
But its competence to do so does give it some leverage with the agencies.
According to the Act, reports to Parliament must be unclassified. This was
not a constitutional requirement, but could be seen partly to reflect a parliamen-
tarian self-awareness that MPs are notoriously bad at keeping secrets. It also
highlights the principle that the Committee conducts its oversight on behalf of
Parliament, as a more professional form of scrutiny, going further and deeper
into the activities of the agencies than the legislative assembly should itself do.
On a need-to-know basis, Parliament usually does not really need to know, nor
should it. In this way, the Committee acts ‘‘as an agent of others who cannot be
as well informed.’’10 It can usually submit its conclusions, but not the premises
on which these conclusions rest. It may criticize an agency in a particular case,
or it may exonerate it from public allegations, but often it may not explain why,
nor disclose the nuances of its evaluations. This highlights the importance of
maintaining the Committee’s legitimacy.
The reports of the Committee are submitted directly to Parliament, and not
through the executive. The Committee has, however, made it a practice to send
the draft report to the agencies, so that they can assess whether the contents are
unclassified. If the agency objects to a particular piece of information, on the
grounds that it is classified, the Committee must remove it. But the agencies can-
not otherwise interfere with the contents of the report.
In practice the annual reports are fairly comprehensive and readable. Most of
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the report describes the findings of the regular oversight procedures (inspections
held, complaints received, the number of inquiries). Usually the Committee sim-
ply indicates the results—for example, the number of complaints that have given
rise to comment. But sometimes cases are described in more detail, and usually
so if the case has been the subject of public debate.
The prohibition against reporting classified information is absolute, but if the
Committee finds that it is vital for Parliament to be given classified information
in a specific case, it shall ‘‘bring this to the attention’’ of Parliament. This requires
a delicate act of balancing, since the existence of such information could itself be
considered classified, but it is in principle workable. It is then a question for
Parliament itself whether it wants to investigate the case further. The same proce-
dure applies ‘‘if there is a need for further investigations of factors concerning
which the Committee itself is unable to make any progress.’’ This would be the
case if a thread pursued by the Committee leads from the agency concerned into
the domains of the Ministry, over which the Committee does not itself have for-
mal powers of inquiry.11
The reports of the Committee are published as parliamentary documents, and
reviewed by the Standing Committee on Scrutiny and Constitutional Affairs, fol-
lowed by plenary debate.12 The Standing Committee may inquire further into
matters raised by the Committee, and to some extent it has done so, though only
twice so far by itself conducting hearings and investigations.13 On the whole the
political attention given to the reports has varied widely from year to year,
reflecting the contents of each report. The regular oversight activity of the Com-
mittee is usually of limited interest to the MPs. But when the Committee reports
on controversial cases, Parliament easily gets excited. So far this has happened
approximately every second or third year.
The Prohibition against ‘‘Consultations’’

A structural dilemma for any intelligence oversight body is the need to build up
confidence in the agencies while maintaining a critical distance. Due to the lack
of alternative sources, the oversight body must to a large extent rely on informa-
tion supplied by the agencies, and it must function within the ring of secrecy.
This makes it ‘‘vulnerable both to co-optation by the audited and to pretensions
of autonomous importance.’’14 For the oversight body, the danger is not only
that it may become too friendly with the agencies, but also that it may be
tempted to exceed the role of auditor, and instead start to give instructions and
advice.
This dilemma has long been recognized by those responsible for intelligence
oversight in Norway. When the need for oversight of the secret services was first
put on the agenda in the early 1950s, the initiative, interestingly enough, came
from the head of the Police Security Service.15 And what he proposed was a com-
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mittee that could function both as ‘‘a breakwater and an auditor,’’ with the man-
date both to oversee the service and to give advice, especially on cases that might
be politically sensitive. This idea was later turned down by the Ministry of Justice,
which stated that an oversight body with the double function of auditor and
advisor would risk becoming ‘‘co-responsible for activities which it must later
investigate.’’
When the Intelligence Oversight Committee was established in 1995, there
was never any suggestion that it should act as an advisor or a ‘‘breakwater’’ for
the agencies. Instead the need for critical independence was stressed, and it was
laid down in the Act that the purpose should be to conduct retrospective over-
sight, and that the Committee cannot give instructions to the agencies, nor be
used by them for consultations.
Awareness of the prohibition against consultations is high both in the Com-
mittee and the agencies, and it is unthinkable that they should seek prior
approval on operations. At the same time there is a grey zone between consulta-
tions and discussions, and especially so in an oversight arrangement that relies
on frequent inspections and close contact. The atmosphere during inspections is
seldom adversarial, nor is it meant to be so. This is recognized in the preparatory
works to the Act, and the instructions of the legislator are to find a proper bal-
ance. Experiences so far indicate that the parties have managed to do so.
The principle of retrospective oversight is difficult to maintain fully when it
comes to operations that run for some period of time. Cases of secret surveillance
may take years and include a number of decisions. Should the Committee have
to wait until the case was finally closed, this would clearly be unsatisfactory. This
is recognized in the Instructions, which state that even if the Committee should
‘‘normally’’ abide by the principle of subsequent oversight, it may nevertheless
‘‘require access to information on current matters, and submit comments on
such matters.’’ Again, this calls for a balance to be struck. When in 2001 the
Committee presented an evaluation of the oversight arrangement to Parliament,
it highlighted the ‘‘tension’’ between subsequent oversight and the right to
inquire into current cases. The Committee pointed out that this had often
required difficult decisions to be made and indicated that there had been
instances of disagreement between itself and the agencies. But on the other hand
it stated that it is probably impossible to regulate this in a more precise manner
than is already done, and that discretionary decisions must necessarily be made
based on the facts of the individual case. This was approved by Parliament.16
The Committee In Operation

Baptism of Fire—the Furre Case
As the Committee first went into operation in the spring of 1996, it was almost
immediately thrown into its most controversial case so far. This was just after
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the Lund Commission had presented its awesome report on the past activities of
the secret agencies, which was still being reviewed by Parliament. Tensions were
high. At the same time allegations were raised in the media that the Police Secur-
ity Service had been secretly surveilling the Lund Commission and investigating
one of its members. The auditee had been spying on its auditors.
The allegations were scrutinized by the new Committee, which to a large
extent found them to be true. The Committee’s highly critical report to Parlia-
ment led to the immediate resignation of the head of the Service.17 Soon after,
the prime minister was forced to sack the minister of justice, and later on both
the permanent secretary and the director general of the police department
resigned.
For the Police Security Service, the Furre case was a disaster. The legitimacy
of the Service was already weakened by a number of lesser scandals, and by the
findings of the Lund Commission. The Furre case came on top of this, and it was
commonly held that it left the Service with its spine broken. It took a major
reorganization and several years of confidence building for the Service to regain
a degree of legitimacy, and it was arguably not until September 11, 2001, that
this process was concluded.
For the new Oversight Committee, the Furre case was at first sight a great
success. Just half a year into operation, it had managed to uncover a real security
scandal, and it received the full backing of a broad majority in Parliament and a
united press. In hindsight, the Committee’s success was not unconditional. In
the agencies, and indeed amongst not a few politicians, it was a tacit but not
uncommonly held opinion that the Committee had acted rashly, and had made
the case more controversial than necessary. This is open to argument. But it is a
fact that the Furre case made the Committee start out in an adversarial mode,
which might be well suited to the handling of serious scandals, but ill suited to
efficient regular day-to-day oversight of a skeptical intelligence community. It
took the Committee years of consolidation to gain an acceptable degree of con-
fidence within the agencies.
Oversight of the Police Security Service

It was a stated purpose that oversight of the Police Security Service should be
more extensive than of the other two agencies, and this is also how it works. The
activities of the Service are at the heart of the oversight mandate, and this is also
the agency that generates most of the complaints—lately around twenty each
year. And the number of annual inspections prescribed in the Instructions (six
of headquarters and four of regional offices) ensures that the Committee is well
acquainted with the organization. Most of the oversight concerns cases of secret
surveillance, or the more general procedures for registering persons, handling
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sensitive information, keeping proper archives, and so on. Of the many com-
plaints only one or two each year give rise to critical comments.
According to the reports, the Committee has put a lot of effort into checking
the general procedures of the Service, especially regarding registers and archives.
This kind of oversight is time-consuming and not very glamorous, but it is of
practical importance, and has resulted in a number of substantial improvements.
Only a few of the many individual cases considered by the Committee are
described in any detail in the annual reports, and these are usually cases which
have already received some kind of public attention.
One of these cases followed the expulsion from Norway in March 1998 of
five Russian diplomats suspected of espionage. The case received intense media
attention, and the more so when a ministry official told the press how he had
acted as a double agent, helping the Police Security Service. This coincided in
time with the presentation of a White Paper on the future organization of the
Service, and allegations were raised in the media that the Service had timed the
expulsion, and leaked the details, in order to appear in a positive light prior to
the debate on its future. These allegations were looked into by the Committee,
which cleared the Service by stating in the annual report that the case had been
handled according to purely professional standards.18
In 2001 the Committee reported on a more controversial case, involving the
investigation by the Service of a journalist suspected of being a former Stasi
agent, which after three years was finally dropped for lack of evidence. The Com-
mittee did not comment on the substance of the case, but it criticized several
aspects of its handling by the Service, including failures of routines for seized
material, deficient internal information routines, and deficient information given
to the suspect and his defense lawyer.
In 2002 the Committee reported on how the Service had conducted surveil-
lance on demonstrators during a World Bank Conference in Oslo. The Commit-
tee did not explicitly criticize the Service, but it highlighted and discussed the
distinction to be made between legitimate political demonstrations and criminal
behavior. In the same year the Committee also reported on its inquiry into press
allegations that the Sami minority population had been subject to surveillance
on ethnic grounds. The Committee was skeptical of the grounds for surveillance
in two of the registered Sami cases, but it found no evidence that they were based
on ethnic considerations.
After a rough start with the Furre case, both the Committee and the Service
were eager to normalize relations, and in the annual report for 1997 it was stated
that these were now constructive. In later reports the Committee has repeatedly
praised the Service for the way in which it responds to the oversight, and there
seems to have been no major disputes. According to the reports, the Service has
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never tried to deny the Committee access to relevant information, and usually
complies fully with its comments and opinions.
Oversight of the Intelligence Service

The Committee’s oversight of the Intelligence Service is rather limited, and may
even be seen as somewhat marginal, in comparison to the tasks and operations
of this agency. This is mainly due to the fact that most of the activities of the
Intelligence Service fall outside the Committee’s mandate. But it is also partly
because the Intelligence Service is a very non-transparent organization, which
the Committee has found it hard to penetrate and to comprehend, and because
most of its operations are of a highly technical (electronic) nature.
Oversight does however take place, within the limits prescribed by the Com-
mittee’s mandate. Inspections are carried out twice a year at agency headquarters
in Oslo, and two or three times a year at regional offices, including operational
stations. During the first four years, the remarks on the Intelligence Service in
the annual reports were short, usually stating that the Committee had found
nothing to criticize, and that it was still in the process of learning about the
agency. But in the more recent reports the remarks have been more substantial,
and some cases of particular interest commented upon.
The oversight of the Intelligence Service rests mainly on two criteria. The first
is that the Service must respect the legal restraints against conducting operations
and surveillance on Norwegian territory. This has so far been a rather unobtru-
sive kind of oversight, with the Committee posing its regular question on
whether the restraints are respected, and the agency giving the routine reply of—
‘‘why yes, of course.’’ So far no evidence to the contrary has been reported.
The second criterion rests on the Committee’s mandate to check that statute
law and directives are respected. This gives a somewhat wider potential for scru-
tiny, although lessened by the fact that the relevant rules are rather widely and
vaguely formulated. In practice the Committee has focused on the requirement
that intelligence activities must be under proper ‘‘national control,’’ which has
always been a fundamental principle, but one which is now explicitly stated in
the 2001 Instructions for the Intelligence Service. The importance of this can be
understood when considering that the Intelligence Service was, until the early
1990s, financed for the most part by the United States, and that much of its elec-
tronic signal intelligence is of military interest to NATO as a whole. In recent
years the Committee has inquired into several cases concerning allegations that
intelligence operations were not under national control, but so far the annual
reports do not give any support to these suggestions.
In 1998 a major dispute broke out between the Committee and the Intelli-
gence Service, over what was primarily a question of access to information, but
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which also concerned the more fundamental question of how far oversight
should go. The row started during an inspection, when the Committee uncov-
ered a letter that the Intelligence Service had obtained from the minister of
defence in early 1997, giving it permission to withhold information from the
Committee if considered necessary for the protection of national or foreign
sources. Such information will normally fall outside of what is necessary for the
purposes of the Committee’s oversight under the mandate, but the letter was still
in pretty clear violation of the Committee’s rights of access under the Act. The
Committee reacted strongly to the letter. A protest was sent to the ministry, fol-
lowed by a request for access to certain correspondence between the Intelligence
Service and foreign agencies. The Service and the ministry responded negatively.
The incident was reported to Parliament in the annual report for 1998,
although just by one short sentence, since the ministry refused to declassify the
case. The one sentence was however enough to arouse the attention of Parlia-
ment and the press, and after some haggling, the relevant documents were
declassified and given to the Standing Committee on Scrutiny and Constitutional
Affairs. During the subsequent parliamentary review a broad majority sided with
the Intelligence Service, and the Oversight Committee was in effect reprimanded
for having exceeded its mandate.19 A new unwritten procedure was introduced
that gives the Intelligence Service the right to decide whether information
demanded by the Committee is really relevant to the purposes of oversight. In
such a case the Committee retains the right to bring the question before the min-
ister, and if need be before Parliament. This awkward procedure applies only to
the Intelligence Service, not the two other agencies, and has so far not been used.
For the Committee the lack of backing from Parliament came as an unpleas-
ant surprise. The political reaction can be explained partly by the strong position
enjoyed by the Intelligence Service in parliamentary circles (the Police Security
Service would never have been able to stand up against the Committee in such a
way). But it also illustrated the fact that the political climate had changed by the
late 1990s, replacing the earlier oversight euphoria with a concern shared by
many MPs that intelligence oversight had perhaps been carried a step too far,
and that the time had come to set some limits.
After the final parliamentary debate on the incident, in June 1999, a mutual
need was felt in the Committee and the Intelligence Service to repair and nor-
malize relations, which coincided in time with the appointment of several new
members to the Committee. Both parties applied some effort, and in 2000 the
Committee could report to Parliament that relations had ‘‘improved consider-
ably.’’ Since then no further disputes have occurred, and judging by the latest
annual reports oversight of the Intelligence Service seems now to be of a more
constructive and substantial nature than before.
A case mentioned in the latest report can illustrate this. It concerns a large
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new radar installation, the Globus II, erected by the Intelligence Service in Vadsø,
in the far north, which went into operation in 2002. In the press there have been
frequent allegations that the radar is not under national control, and that one of
its main purposes is to be a part of the planned U.S. shield against nuclear mis-
siles (the National Missile Defense, or NMD). After inquiries and an inspection
of the radar, the Committee could report that its operation was under strict Nor-
wegian control, and that it was anyway technically unsuitable as part of the
NMD.
Following the 2001 presentation to the European Parliament of a report on
the so-called Echelon network of electronic surveillance,20 the Committee has
discussed this issue with the Intelligence Service on several occasions. According
to the reports, the Service states that it has no information on Echelon, and does
not participate in any such kind of network. It has however added that many
countries may have the technical capability to conduct such electronic surveil-
lance.
On the whole, oversight of the Intelligence Service seems to have improved
and matured lately. Although it will remain limited, due to the Committee’s
mandate, there is probably still potential for further improvement, which could
well fit in with the Service’s current ambition of becoming a more modern insti-
tution for the provision of a broader range of intelligence.
Executive Oversight
The executive oversight of the intelligence and counterintelligence agencies is not
as regulated as are the legislative procedures, and it is mainly conducted within
the traditional administrative structures, under which the agencies are subordi-
nate to the ministries, led by the ministers, who function both as heads of their
ministries and as members of the cabinet. Thus, the Police Security Service is
under the control and oversight of the Ministry of Justice, the National Security
Authority under the control and oversight of the Ministry of Defence, and the
Intelligence Service subordinate both to the chief of defence and to the Ministry
of Defence.
There is little coordination between the legislative and the executive proce-
dures for intelligence and security oversight, and the Intelligence Oversight Com-
mittee does not receive reports or information from the executive bodies. The
main reason for this is probably the rather different nature of the two arrange-
ments. The legislative oversight process is primarily directed against preventing
injustice, and focuses on the rule of law and the propriety of the agencies’ activi-
ties. To some extent it may help the agencies to uncover and redress faults and
failures, but its main function is to protect citizens’ rights, and ensure some
degree of political accountability in the system. Executive oversight arrangements
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on the other hand are primarily focused on the effectiveness and efficiency of the
agencies and function as an internal audit. They are not designed to foster politi-
cal accountability, and results very seldom reach Parliament or the public. To
some extent they may create internal, administrative accountability, in the sense
that officials are held to account by their superiors, or (rarely) by their ministers,
but this is not the main purpose, which is to improve quality, not to administer
blame.
This clear partition of functions between legislative intelligence oversight
(propriety and accountability) and executive intelligence oversight (effectiveness
and efficiency) is a main characteristic of the Norwegian model.
Conclusions
If the Norwegian model may be summarized in one phrase, it is: Strong oversight
within limits. Apart from a certain lack of staff resources, the model created for
intelligence oversight on behalf of Parliament fulfills most criteria for evaluating
the strength and substance of such arrangements. It is independent, it has a pro-
active capacity, the membership reflects both professional standards and the
spectrum of party politics, it has good access to sensitive information as well as
the ability to maintain necessary secrecy, and after the first seven years of opera-
tion it has developed a satisfactory degree of institutional maturity and expertise.
It is accepted by the agencies concerned, and approved by Parliament and the
press.
The limits inherent in this oversight arrangement are intentional, and
reflected in the statutory mandate of the Committee. The oversight is primarily
concerned with the rule of law, and the protection of the individual rights of
national residents, as well as the protection of democratic governance against
undue influence by the secret services. Within these limits oversight is effective,
and designed not only to uncover major ‘‘scandals,’’ but also to deal with lesser
incidents of misconduct or bad administrative judgement. The preventive effect
of the Committee’s oversight is probably the single most important outcome of
the arrangement, and it has certainly contributed to a greater awareness of the
rule of law within the agencies.
The efficiency, effectiveness, and general quality of the secret services falls out-
side the legislative oversight model, and this is left to executive oversight proce-
dures, which are on the whole of a somewhat ‘‘weaker’’ nature, as well as less
visible, and less liable to result in any kind of democratic accountability.
The substance and intensity of the legislative oversight varies as regards the
three secret agencies. The Police Security Service is subject to rather strong over-
sight, and to some extent the same applies to the National Security Authority.
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Most of the activities of the Intelligence Service fall outside of the legislative pro-
cedures. The model is primarily one of counterintelligence oversight, rather than
of intelligence oversight.
The present oversight model was constructed in the mid-1990s, during a
period of parliamentary obsession with oversight and accountability in general,
and intelligence oversight in particular. Since then there has been a certain shift
in the political climate, a tacit reaction to the new oversight regime, as illustrated
in the 1998–99 dispute between the Committee and the Intelligence Service. The
shift is not dramatic, nor has it really reduced the capability of the Committee
to conduct its tasks. But it means that the Committee cannot automatically rely
on parliamentary backing, unless it demonstrates that comments and criticism
are well founded. And it means that future extensions of the oversight mandate
and procedures are not on the agenda.
In a comparative perspective the Norwegian oversight model is strong, and in
a national historical perspective it is also at an all-time high. The main challenge
today is not to extend the system further, but rather to perfect it within the exist-
ing framework, and to maintain the present high alertness and the awareness of
the need for intelligence oversight and accountability.
Notes
1. Marina Caparini, Challenges of control and oversight of intelligence services in a lib-
eral democracy, Paper presented at the Workshop on Democratic and Parliamentary Over-
sight of Intelligence Services (Geneva, October 2002)
2. The word ‘‘oversight’’ does not readily correspond to any Norwegian term, and
indeed even in English the exact definition seems to be rather vague. In Norwegian the
term most used is ‘‘kontroll’’ (control), which in Norwegian usually implies a retrospective
perspective, describing an activity of scrutiny or inquiry, an audit, taking place after some-
thing has happened, with the purpose of holding someone (preferably the right person)
accountable, and resulting in some kind of evaluation, followed by approval or criticism.
The word ‘‘oversight’’ seems to cover this (though it is sometimes used differently). In
this context the point should be not to read any exact meaning into the word ‘‘oversight’’
as such, but rather to describe what kind of oversight the relevant Norwegian authorities
conduct.
3. The Intelligence Service Act of March 20, 1998.
4. Trond Bergh and Knut Einar Eriksen, Den hemmelige krigen. Overvåkning i Norge
1914–1997, Volume II (Oslo: Cappelen Akademisk Forlag, 1998), 525–38. See also Fredrik
Sejersted, Kontroll og konstitusjon (Oslo: Cappelen Akademisk Forlag, 2002), 339–40.
5. Dok. nr. 15 (1995–1996) (Lund-rapporten).
6. Sejersted, Kontroll.
7. NOU 1994:4, 22–24.
8. Caparini, Challenges.
9. In accordance with Norwegian traditions, care is also taken to see that both sexes
should be represented on a roughly equal basis. In the current Committee, three of the
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seven members are women, two of them ‘‘politically’’ appointed and one ‘‘professionally’’
(a judge).
10. James G. March and Johan P. Olsen, Democratic Governance (New York: Free Press,
1995), 164.
11. So far this has only happened once; the Furre case, Dok. nr. 16 (1996–97).
12. For those few familiar with the Norwegian language, the reports can easily be found
on the homepage of the Parliament, www.stortinget.no, by looking under ‘‘Saker’’ (cases),
and then going on to ‘‘Dokumenter’’ (documents). The reports are normally given the
number ‘‘16,’’ and the typical reference will be ‘‘Dokument nr. 16 (2000–2001).’’
13. In 1997 (the Furre case), Innst. S. nr. 235 (1996–97) and 2003 (the Ellingsen case),
Innst. S. nr. 273 (2002–2003).
14. March and Olsen, Democratic Governance, 164. March and Olsen present this as a
general problem in all democratic oversight procedures, but one which is particularly
acute when it comes to intelligence oversight. ‘‘Special legislative committees to audit
intelligence services come to see the information world from the point of view of the
services.’’
15. Bergh and Eriksen, Den hemmelige krigen, 56, and Sejersted, Kontroll, 288.
16. Innst. S. nr. 225 (2000–2001).
17. This is the only time that the Committee has submitted a special report to Parlia-
ment. Submitting the report presented a problem, since it contained information classi-
fied at the time. The Committee solved this by making Parliament aware of the report’s
existence, and this created enough political pressure for the Ministry of Justice to declas-
sify the information. The report was then handed over to Parliament, cf. Dok. nr. 16
(196–97) and Innst. S. nr. 235 (1996–97).
18. Dok. nr. 16 (1998–99), 6.
19. Innst. S. nr. 232 (1998–99).
20. The Report on the existence of a global system for the interception of private and
commercial communications (Echelon), presented to the European Parliament 11 July
2001.
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PART 3
The Spread of Intelligence

Accountability
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8
An Unresolved Game: The Role of
the Intelligence Services in the
Nascent Polish Democracy1
Andrzej Zybertowicz
In a revolutionary situation, the institutions of security intelligence

play a far more exposed, ambiguous role than they do in consolidated
democratic politics. Together with ethnic minorities, they are at the
centre of post-communism’s moral panics and conspiracy theories,
yet at the same time they are expected to protect the people and
enlighten policy-makers in a period of uncertainty and disquiet.2
I n July 2001, in the twelfth year of Poland’s transformation to democracy and

two months before the parliamentary elections were won by the post-commu-
nist parties, member of Parliament (MP) and former minister of interior Zbig-
niew Siemiatkowski3 stated that a reform of the services designed by him should
‘‘deeply plough the structure, which had been evolving for decades, and had
through informal methods captured the whole organism of the state, and until
now has operated with impunity beyond anybody’s control.’’4 Siemiatkowski’s
opinion is far from being exceptional.5 The persistence of the problem invoked
in his statement is well illustrated by the fact that after completion of the reform
many similar criticisms were issued by prominent political figures belonging to
all factions of the Polish political scene6
After a decade of unexplained scandals related to the secret services and with-
out steps to adequate legalization and accountability of the services,7 the Polish
Parliament passed a new law on civilian secret services (statute of May 24,
2002). However, the reform of the services did not meet the official targets.
According to the post-communist politicians and old regime’s secret services’
functionaries,8 two main intelligence organizations, the civilian Office of State
Protection (Urza d Ochrony Państwa—UOP) and the Military Information Ser-
— 145 —
................. 11310$ $CH8 05-16-05 11:37:45 PS PAGE 145

.
vices (Wojskowe Słuzby Informacyjne—WSI), both covering foreign and domestic
intelligence tasks, had to be dissolved. Actually, two new organizations have been
established, the Agency for Internal Security (Agencja Bezpieczeństwa Wewnetrz-
nego—ABW) and the Foreign Intelligence Agency (Agencja Wywiadu—AW).
Only the UOP was dissolved;9 the military services remained virtually unscathed.
In so doing, the undercover community, it seems, has once again proved that it
can resist reform projects initiated by ‘‘irresponsible’’ politicians.10 This chapter
aims at analysis of the accountability of security and intelligence services in
Poland. One must keep in mind that the process of redesigning the services is
formed by Poland’s transition processes to democracy, which are plagued by the
communist police state heritage.11 In these processes, the services are both an
object of change and an actor of change. In order to capture this dual role the
notion of ‘‘security complex’’ is introduced.
The Security Complex

In order to account best for the dynamics in the relationship between the nascent
democracy and its secret services, the notion of a security complex, or an under-
cover community, is employed. In addition to the three main organizations pro-
viding intelligence to state’s authorities (the WSI, the ABW, and the AW) the
security complex consists of former intelligence agencies functionaries (both of
the old and the new regime), many private security and detective organizations,
and many formally inactive (i.e., officially de-registered) secret collaborators of
communist services currently active in business, the media, and politics.
The complex is also composed of a number of state institutions (or branches
thereof) authorized to collect information via operational measures. It includes
sections of the state police (especially those staffed by former communist secret
services operatives), the Army’s General Direction of Military Reconnaissance
(Generalny Zarza d Rozpoznania Wojskowego), the Border Guard’s Bureau of
.
Internal Affairs (Biuro Spraw Wewnetrznych Strazy Granicznej), the Govern-
ment’s Bureau for Protection (Biuro Ochrony Rza du—BOR), a special force
within the Ministry of Finance dealing with taxation crimes, and an oversight
.
and control section located within the Customs Service (Słuzba Celna). It must
be stressed that although these institutions are legally entitled to use operational
techniques and are largely staffed by former secret services personnel, there are
no provisions that would allow the legislative to supervise their work.12
Institutional and Cultural Legacies

of the Old Regime
The strength of the security complex stems from institutional and cultural lega-
cies of the old regime. The legacies, especially those related to the policing nature
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An Unresolved Game 147
of communist regimes13 have not been, according to many independent specta-

tors,14 properly dealt with until now. For example, the lustration15 law passed as
late as 199716 and came into force two years later. This accounts for, among other
things, the persistence of networks of old commitments and a lack of integrity of
many public figures (the latter is commonly acknowledged in the Polish public
discourse17). What is more, the issue of accountability for the crimes committed
by the old regime is still far from being settled.
In 1990 the communist services were substantially downsized; the civilian
ones from about 25,000 to about 6,000 staffers; the military ones from about
.
6,000 to about 1,500 employees. The communist civilian Security Service (Słuzba
Bezpieczeństwa—SB) was disbanded. Large parts of its staff went into the super-
ficially reformed state police. Many other functionaries underwent a so-called
verification (vetting) procedure in order to get into the new secret services.
About 4,000 of the SB functionaries ended up working in the newly established
UOP, forming the majority of its total staff of about 6,000.18
It took until 2002 to publicly acknowledge that the noncommunist politicians,
responsible for the design of the new, democratic secret services ten years ago,
had actually surrendered to the strong lobby of the foreign intelligence function-
aries, who in order to maintain their influence successfully pressured to maintain
a post-Soviet model of the secret services in Poland.19
The situation has been even worse with regard to the communist military
secret services. Until now, they were not subjected to any external verification.
They simply verified and reorganized themselves.20 Formerly separated military
intelligence and counterintelligence were put under one umbrella, and in August
1991, following a decision of the minister of defense, the Military Information
Services (WSI) were established. Until December 1995 the WSI operated accord-
ing to secret military orders. The statute of December 14, 1995, addressing the
office of the Ministry of Defense21 changed this, inasmuch as it put the service
under the minister’s control. However, this statue did not regulate the many legal
issues of the WSI activity in a comprehensive manner. Belatedly, a statute fully
dedicated to military secret services passed the Parliament on July 9, 2003.22
Despite attempts by groups of the parliamentary opposition to change this (see
e.g., Biuletyn, 2003), the statute did not include any procedures of external veri-
fication or personnel audit.
There are plenty of reasons to doubt whether the WSI has fully broken with
past allegiances, murky interests, and the perpetuation of the old institutional
mentality. It suffices to say that Gen. Tadeusz Rusak23 revealed in September 2003
that the scale of abuses and scandals within the WSI was so serious that he
refrained from dissolving the WSI only because of the sensitive process of the
country’s joining NATO.24 It seems that the military services have been reor-
ganizing themselves in order to accomplish at least four broadly defined objec-
tives:
................. 11310$ $CH8 05-16-05 11:37:47 PS PAGE 147

1. To prevent outsiders—including democratically established control and

oversight bodies—from obtaining thorough access to the services’ resources
2. To present the Military Information Services as a useful ally to the NATO
authorities
3. To be perceived as a useful tool for pursuing various aims by any Polish
government—not necessarily consistent with any viable raison d’être
4. To obtain and stabilize the Service’s upper hand in economic institutional
rearrangements, including key financial flows and major privatization
schemes25
The Present Legal Framework

The statute of April 6, 1990, established the civilian Office of State Protection
(UOP), defining its organizational structure and activities and identifying its
objectives very extensively. Among the tasks of the UOP, which operated from
1990 to 2002, were foreign intelligence, domestic counterintelligence, political
police tasks (e.g., countering extremist groups), serious economic frauds, and
drug trafficking, among others. This variety of different tasks explains why it
came as no surprise to many when the UOP was accused of an unnecessary accu-
mulation of power.26
After the parliamentary victory of September 2001, the winning post-commu-
nist party SLD found it necessary to abolish the UOP and form the two new
services, the ABW and the AW. This was done via statute of May 24, 2002.
Concerning the military services, the need for an appropriate regulation was
publicly recognized for years, but until July 9, 2003, when the statute on the WSI
was passed, a comprehensive legal framework existed only vis-à-vis the civilian
services. In fact, the WSI operated and based their legitimacy on various—not
necessarily convergent—legal acts.27 For, example, in July 1994, three years after
setting up the ‘‘new’’ military services, Włodzimierz Cimoszewicz, at the time
the prosecutor-general, asked the Constitutional Tribunal whether the military
services are authorized to employ eavesdropping techniques. The prosecutor
never received an answer to his question.28
Since the beginning of the transformation, the service’s task was, inter alia, to
screen the state institutions’ personnel for all levels of security clearance. How-
ever, Parliament passed relevant legal procedures with regard to vetting only in
1999. Until then, the security agencies had a free hand to make and break politi-
cal careers.
Polish civilian secret services are authorized with law enforcement powers.
They can conduct criminal investigations and have powers to arrest and to search
homes. In 1994, Stanisław Iwanicki, former deputy prosecutor-general, indicated
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that the statute of April 6, 1990, incorrectly defines the competences of the UOP,
especially with regard to economic investigations.29 Others commented that the
UOP sections dealing with organized crime unduly overlapped with, and sub-
stantially weakened, parallel structures in the state police.30 Similar views have
been expressed concerning the remit of the newly established ABW.31
Executive Control
According to the statute of May 24, 2002, the chiefs of civilian agencies rank
equally high as secretaries of the state and answer directly to the prime minister.
It means that their rank is equivalent to deputy ministers. The prime minister
can nominate them after consulting with the president, his cabinet’s Collegium
.
for Secret Services (Kolegium do Spraw Słuzb Specjalnych) and the Sejm Commis-
.
sion for Secret Services (Sejmowa Komisja do Spraw Słuzb Specjalnych). The
prime minister is also responsible for the tasking of the services.
According to the statute of July 9, 2003, the director of the WSI answers to
the minister of defense. The minister can nominate the WSI’s director after con-
sulting the same bodies previously mentioned. The minister is also responsible
for the tasking of the WSI.
The Collegium for Secret Services is a body of the Council of Ministers (the
cabinet), formed according to the statute of May 24, 2002. The Collegium is
designed as a consultative and advisory body programming, overseeing, and
coordinating the activity of the services. The tasks of the Collegium include gen-
erating opinions on the appointing and dismissing of chiefs of services, setting
up instructions and action plans for the services, providing opinions on detailed
draft budgets, and projects of legal acts concerning the services. The members of
the Collegium also assess the performance of the services, including the matters
of organizing the exchange of important information among various branches of
the government and issues of protection of classified information. The Collegium
is chaired by the prime minister and run by the secretary; it is composed of the
minister of the interior, the minister of foreign affairs, the minister of defense,
the minister of finance, and the national security advisor to the president. The
sessions of the Collegium are also attended by chiefs of the ABW, the AW, the
WSI, and by the chairman of the Sejm Commission for Secret Services.32
To the author’s knowledge, the government does not possess independent
means to check upon the work of the agencies, similar to the task of an inspector-
general. However, though officially there are no individuals appointed or commit-
tees or boards established that would be mandated with control and supervision
of intelligence activities, there were cases when individuals trusted by the president
or the prime minister, or a relevant minister, were tasked with external, thorough
scrutinizing of certain operations of the services. Such persons’ mandate was not
official and they were reporting to their superiors on an informal basis.33
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According to Article 7 of the statute on the ABW and the AW of May 24,
2002, the chiefs of the agencies, no later than three months before the end of
each calendar year and each within his competence, shall present the prime min-
ister plans of action for the next year. Similar regulations affect the WSI, but the
tasking and reporting takes place under responsibility of the minister of defense
(article 4 of the statute of July 9, 2003).
Formally, there are two bodies responsible for the coordination of intelligence
services. Apart from the Collegium for Secret Services, there is the Government
Intelligence Community (Wspólnota Informacyjna Rza du—WIR). The WIR, as
an auxiliary body of the prime minister, is designed to provide national intelli-
gence assessments with regard to external security. These assessments are inter-
departmentally agreed upon and drafted from a broad governmental perspective
that cuts across ministerial boundaries.34 The chief of the AW chairs the WIR.
.
Additionally, the Supreme Chamber of Control (Najwyzsza Izba Kontroli—
NIK; a body reporting only to the Sejm) is entitled to perform auditing. The
scope of this is limited to financial probity of the civilian services. The issue of
any sensitive types of operations that might require explicit approval by members
of the executive is, it seems, formally unregulated.
Executive Control Assessed

In 1994, Krzysztof Kozłowski35 declared that the ‘‘tasks for our services are formu-
lated neither by the prime minister, nor the president, nor the Parliament; there-
fore in the services’ work there is plenty of chaos.’’36 In 1995 the then chief of the
WSI announced that ‘‘we do not have a center which would coordinate the activ-
ity of military and civilian services.’’37 In 1996, the former director of the UOP
counterintelligence department declared that ‘‘successive prime ministers could
not make their own cabinets to announce—in a systematic and not incidental
manner—the tasks for the UOP, both short and long-term.’’ To him, the services
requested in vain that the tasks need to be specified.38 In November 2001, Jerzy
Dziewulski, an MP of the SLD party, claimed that ‘‘actually the services work
beyond control. They task themselves and fulfill the tasks, also for their own
needs.’’39 Col. Zbigniew Nowek, chief of the UOP between 1997 and 2001,
opposes Dziewulski strongly.40 However, in 2003 a former functionary of the UOP
wrote: ‘‘An outsider would be very astonished, provided s/he knew, how low the
levels of the hierarchy are which take the liberty to pick tasks for themselves.’’41
In sum, it appears that in Poland the secret services have been reformed and their
powers were unleashed before their mission was properly identified.42
The key point in dealing with the issue of executive control in post-commu-
nist states is that one cannot help but move back to the still unsettled heritage of
the police state. More precisely, what are the consequences of the fact that
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numerous individuals active in present political life were functionaries and/or

secret collaborators of communist secret services? Can one rule out the possibil-
ity that various branches of the government and the Parliament are staffed with
the former/present marionettes of the services to an such extent that the relation
between the principal and agency has already become blurred or even reversed?
For example, in the administration of prime minister Leszek Miller (in office
since autumn 2001), at least twelve undersecretaries of the state have formally,
under the present lustration law, acknowledged former ties to communist secret
services. The head of the prime minister’s chancellery is presently accused of hav-
ing committed the so-called lustration lie;43 that also applies to at least four cur-
rent MPs of the ruling coalition and another undersecretary of state. Two other
MPs of the SLD have previously acknowledged their relationship to the services.44
The prime minister’s team of advisors included no less than five former commu-
nist services functionaries and/or secret collaborators.45
The year 2003 witnessed a series of big scandals originating from within the
current government and its nearest political milieu (note in particular the noto-
rious case of the so-called Lew Rywin corruption proposal46). These scandals
pose big problems for the executive as, on the one hand the rule of law has to
prevail, but, on the other hand, revealing scandals would also, at least partially,
admit the executive’s responsibility of failing to keep the services under effective
control. Moreover, the services do not remain passive. In December 2003, at a
closed meeting of the Sejm, the ABW chief, Andrzej Barcikowski, delivered a
classified speech in which (according to media reports) he criticized the Polish
media as being subject to manipulations of various lobbyist groups hostile to
governmental projects. The speech has almost unanimously been interpreted as
a premeditated political move, aiming, among other things, to threaten the
media, which uncovered (with exceptional persistence) many scandals in which
the cabinet and/or the ruling party members were involved.47
Parliamentary Oversight
Despite widespread recognition of the severe heritage of the old system’s secret
services, it was not until April 1995 that, by virtue of the amended Sejm resolu-
tion48 of July 30, 1992, the parliamentary Commission for Secret Services was set
up. The tasks of the Commission include assessing projects of legal acts concern-
ing the services, providing opinions on the directions of their work, issuing opin-
ions on appointments of particular persons as chiefs and deputy chiefs of the
services, and examining the chiefs’ annual reports. The Commission assesses
draft budgets for the services and examines reports on budget implementation.
It also analyzes the cooperation between the services and other bodies of state
administration and examines complaints concerning activities of the services.
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The Commission is a standing committee composed of no more than nine

members, all members of Parliament. The composition of the Commission is
determined by the plenary body, upon request of the Presidium of the Sejm sub-
mitted after consultations with the Council of Seniors. The chairmen of parlia-
mentary caucuses or groups of at least thirty-five deputies submit candidates for
members of the Commission to the Sejm Speaker.49 The members are chosen pro-
portionally according to parliamentary representation of their parties in the Sejm.
In 2003 the Commission had under contract four paid experts, mostly former
high functionaries of the services, and a permanent administrative staff of three
people. The Commission can interview witnesses, but it lacks investigative pow-
ers. The chiefs of the agencies are often summoned and appear.
The membership of the Commission is published.50 All members undergo
security vetting prior to and during their tenure. In 2001 during the initial selec-
tion the post-communists attempted to ban an opposition MP, Col. Konstanty
Miodowicz, from the Commission, because of his former work in the UOP as a
director of counterintelligence. Eventually, after a series of publicized clashes, a
consensus to allow his membership was reached.51 It is noteworthy that the Com-
mission’s chairman may be chosen only among the opposition members. At first,
among the nine members of the present Commission, five of them were repre-
senting the ruling coalition.
Some of the MPs on the committee possess experience in dealing with the
services. Among representatives of the opposition, one can identify a former
minister of the interior (Antoni Macierewicz), former chief of the counterintelli-
gence of the UOP (Miodowicz), and a former acting National Prosecutor who,
at the time, was in charge, among other things, of issuing warrants for employing
operational techniques (Zbigniew Wasserman). On the ruling coalition side is
only Maj. Marian Marczewski, who graduated from two militia academies and
was working in the traffic militia before 1990.
As far as the relationship of the oversight body to the plenary legislature is
concerned, one can refer to a publicized case where the speaker of the Sejm pro-
hibited the Commission from having a meeting devoted to a hot issue52 during
the Sejm plenary session, despite the fact that meetings of other commissions
during plenary sessions are commonplace.53
The Commission meets fairly often. During the last term of the Sejm, from
October 2001 until January 2004, it met eighty-nine times. When the Commis-
sion investigated the issue of an illegal international arms trade pursued by the
Military Information Services in the first half of the 1990s, the Commission had
over twenty meetings debating this issue in the first half of 2003.54 Even so,
according to Wasserman, there are many other sensitive issues (controversial,
though not extremely pressing), that cannot be examined due to lack of time. All
sessions of the Commission are secret.
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Parliamentary Oversight Assessed

The Commission’s first challenge came in December 1995, when the UOP, at the
time a department within the Ministry of the Interior, made an allegation that
the then prime minister Józef Oleksy, a former communist official, had been spy-
ing, first for the KGB and later for Russian Intelligence. Investigative powers of
the Commission were very limited and the conclusions reached did not satisfy
either side to the dispute. Another problem is that members of the Commission
tended to have personal relationships with the objects of their oversight. Lucyna
Pietrzyk, a policewoman, who was in the subcommission investigating the Oleksy
case, was employed by the Ministry of the Interior within which the UOP oper-
ated at the time.
A similar problem has surfaced in recent years. Miodowicz, a member of the
Commission in the two last terms of the Sejm (i.e., since 1997), was publicly
accused of being an ‘‘undercover functionary’’ assigned to a civilian job. These
accusations have never been clearly and officially rejected as false. In turn, Mio-
dowicz stated that the subcommission investigating the Oleksy case included
secret collaborators of the communist services.55 This allegation was never duly
substantiated nor discarded as false.
Instances like these cannot help but cast doubt on the independence of the
oversight. In 2002 one of the most reputable spectators of the Polish political
scene has noted that some members of the Sejm Commission are:
[P]ersons either completely without authority, or people very deeply connected to

the services, sometimes in a discrediting way, and without a distance necessary for
decent and independent assessment. The present composition of the Commission
is extremely fatal. This Commission lacks creditability, and it rather induces politi-
cal unrest instead of real control.56
Although one may find these words unduly harsh, similar opinions are often
expressed.
The opposition in the present Parliament claims that the Commission is dom-
inated by party politics and provided many examples when its initiatives were
simply voted out by the representatives of the ruling coalition. It also appears
that the most sensitive investigations have been responsive to events (usually
raised by the media57) rather than programmed well in advance. According to
Miodowicz, the present scope of democratic supervision of the services has dete-
riorated if compared to the situation a few years ago.58
The main difficulty for the Commission stems from the fact that the services
obviously play a power game over their ‘‘territory.’’ The working relations with
the intelligence agencies are not satisfactory. According to the opposition mem-
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bers of the commission (most notably Macierewicz and Wasserman) the agencies
attempt to frustrate the due course of the most sensitive investigations. Wasser-
man said that the chiefs of the agencies often present their own interpretations
of the laws on the legislative oversight in order to prevent the Commission’s
access to some kinds of data: ‘‘Actually, they let us know what they want us to
know.’’59 Wasserman claims that the actual powers of the Commission are very
limited, because it may issue opinions and recommendations only. The only
efficient instrument available for the opposition members of the Commission is
of an informal nature—to brief the media in order to arouse the pressure of
public opinion on the chiefs of the services. This seems to work, at least to a
certain extent.
All objections notwithstanding, the recent public image of the Commission
seems to be quite good. There are many examples where the Commission was
invoked as the appropriate body for the clarification of controversial issues dur-
ing the pungent clashes of opinions over the conduct of the intelligence agen-
cies.60 This is partly due to the proactive stance of the opposition members of the
Commission.
In general, it holds true that the strengths and weaknesses of the system of
control and accountability stem from the poor running of the Polish state. It is
riddled with corruption, partisan politics, incompetence, and an immature civil
service. Speaking in systemic terms, the main lines of conflict lie along the infor-
mal, oligarchic, parasitic power and influence groups exhibiting a façade of Pol-
ish democracy, versus dispersed groups committed to the rule of law, democracy,
and civil society.
Undoubtedly, there is legislative intelligence oversight in Poland. Is it strong
or weak in the sense Lawrence Lustgarten and Ian Leigh express?61 They charac-
terize strong oversight by the following: The body concerned: (1) is independent
from the executive; (2) has a proactive capacity; (3) has a membership that
reflects the spectrum of party politics; (4) has full access to information about
the security or intelligence agency’s activities; (5) has the ability to maintain
secrecy where necessary; (6) has institutional expertise; and (7) has adequate sup-
port staff. Let us deal with these items now.
1. The Polish Sejm Commission is formally the body independent from the
executive.
2. Its proactive capacities are granted.
3. Its membership reflects the current balance of power in the Sejm. The pro-
portionality of membership accounts for the majority of the ruling coali-
tion members in the Commission and the actual, often mechanical, voting
out of many initiatives of the opposition members, therefore diminishing
................. 11310$ $CH8 05-16-05 11:37:51 PS PAGE 154

the Commission’s proactive capacities. Since the government controls its

own parliamentarian base, it also influences the Commission.
4. According to the opposition the access to information is far from satisfac-
tory. The Commission has no subpoena powers.
5. The members of the committee are vetted.
6–7. These conditions seem to be largely fulfilled, though all experts of the
Commission are former employees of the services. One may doubt whether
they are able to maintain a critical distance from their former employers
and colleagues.
All the same, one may wonder whether, at least under the present post-commu-
nist predicament, the seven conditions proposed have enough ‘‘resolving power’’
to adequately portray specific post-communist predicaments; for example, to
differentiate between skillful formal-bureaucratic performance focused on pay-
ing lip service as opposed to actual adherence to principles of the rule of law.62
Conclusions
The Polish secret services have not been used for brutal wars abroad nor for par-
tisan repression at home. Instead, they have been abused in an unsystematic and
politically very pluralistic fashion. The undercover community has shown itself
to be a sort of pool of resources for the pursuit of party politics and the unfolding
of oligarchic power networks that managed to anarchize the Polish state.
One could hardly say that the move from a closed and repressive apparatus
toward a democratically accountable government service is completed. It is
increasingly often asserted that Poland does not have an intelligence policy that
is truly in the interest of society.63 However, it seems that the tearing down of
the inappropriate practices is beyond the power of any democratic institution in
present-day Poland. The main safeguards that prevent the use of the agencies by
the members of the government against their domestic political opponents are
the Sejm Commission and those groupings within the parliamentary opposition
that tend to preserve a rather tough anti-communist stance. Another safeguard
is the general sensitivity of the public toward these kinds of abuses. However, all
this largely depends on the attitude of the private media. Since the end of 2002,
the media (except the public TV, which is under informal, yet firm, control of the
present government) has become much more proactive in responding to various
abuses of power.
It becomes more and more clear that another thorough reform is needed not
only of the services and other official parts of the security complex, but also of
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the oversight system. Without achieving this, the services cannot become an
instrument that may be systematically employed for pursuit of the public good.
Fourteen years since the beginning of the systemic transformation, the bal-
ance between advantages and disadvantages of continuation of the secret services
personnel is far from being settled. The game over the shape of the Polish
democracy is not finished yet. In fact it is not even clear who has the upper hand.
Notes
1. This chapter relies mostly upon open sources, i.e., legal acts, official documents,
data available in the media and accessible via the Internet, including the official websites
of the secret services and the Sejm (the lower house of the Polish Parliament). It also
draws from data accessible at a website run by an anonymous group of former officers of
the now dissolved Office of State Protection (www.republika.pl/uop12lat). In addition,
the author interviewed the former chief of the UOP, Col. Zbigniew Nowek, and two
opposition representatives in the Sejm Commission for Secret Services, Antoni Macierew-
icz and Zbigniew Wasserman. What is more, the author talked to a number of former and
active politicians (MPs and government ministers included), and to a few former and
present secret services staffers as well as activists of anarchist organizations (targeted by
the services). The latter sources prefer to anonymous.
2. K. Williams and D. Deletant, Security Intelligence Services in New Democracies: The
Cases of Czech Republic, Slovakia and Romania (London: Macmillan and School of Sla-
vonic and East European Studies, UCL, 2000): 1.
3. Social democratic party (Sojusz Lewicy Demokratycznej—SLD). He was also post-
communist cabinet coordinator of the secret services. Since 2002, he has been director of
the newly established Foreign Intelligence Agency (Agencja Wywiadu—AW).
4. Z. Siemiatkowski, interviewed by M. Barański (Nie, July .26, 2001): 5.
5. See, e.g., M. Dukaczewski, interviewed by A. Walentek (Zycie Warszawy, December
4, 2001); A. Kapkowski, interviewed by R. Walenciak (Przegla d Tygodniowy, February 18,
1998): 3.
6. See, e.g., A. Celiński, interviewed by M. Barański (Trybuna, April 26, cited in
.
Gazeta Wyborcza, April 28, 2003a, b): 2; J. Hausner, Akt oskarzenia (Polityka, June 21,
2003): 38–40; A. Macierewicz, Kursanci z Moskwy i Tel Awiwu (Nasza Polska, March 20,
2002): 1, 13; Z. Wasserman, interventions in a discussion (Nowe Państwo, No 1, January
2002): 16–20; Z. Wasserman, interviewed by M. Stychlerz-Kłucińska (Tygodnik Solidar-
ność, August 15, 2003): 6–7.
7. The number of scandals revealed to the public is huge. One prominent example is
the case of the so-called Colonel Lesiak group, a special team organized within the UOP
and tasked with infiltration and disintegration of some of right-wing political groupings
in the first half of the 1990s (see, e.g., Marszałek 1998, 1999). Another symptomatic case
is illegal international arms trade pursued by the Military Information Services in the
mid-1990s, revealed only in 2002 (see, e.g., Marszałek 2002, 2003). This case was investi-
gated by the Sejm Commission for Secret Services, which produced a report confirming
press accounts and accused the WSI of many irregularities including cheating by one
prime minister. The Commision discovered that networks used in this illegal trade origi-
nated in the 1980s. (see Raport speckomisji . . . 2003).
................. 11310$ $CH8 05-16-05 11:37:52 PS PAGE 156

.
8. See, e.g., Opcja, przyszłość polskich słuzb specjalnych (Warszawa: Instytut Problemów
Bezpieczeństwa; SLD—Rada Krajowa, Zespół ds. Cywilnej i Demokratycznej Kontroli
Słuz.b Specjalnych, 2001).
9. After the UOP was dissolved, about four hundred employees were fired, i.e., 9 per-
cent of the total of the Office’s personnel.
10. See, e.g., J. Paradowska, Pod niespecjalnym nadzorem. Polityka, April 13, 2002):
25–26.
11. See M. Łoś and A. Zybertowicz, ‘‘Is Revolution a Solution? State Crime in Commu-
nist and Post-Communist Poland (1980–1995)’’ in The Rule of Law after Communism,
eds. M. Krygier and A. Czarnota (Aldershot: Ashgate, Dartmouth 1999), 261–307.
12. See Regulamin Sejmu Rzeczypospolitej Polskiej, ‘‘Uchwała Sejmu Rzeczypospolitej
Polskiej z dnia 30 lipca 1992 r. Załacznik do obwieszczenia Marszałka Sejmu Rzeczypos-
politej Polskiej z dnia’’ (29 maja 2002 r. Monitor Polski, No. 23 pos. 398, 2002, art. 142).
13. See M. Łoś and A. Zybertowicz, ‘‘Is Revolution a Solution? State Crime in Commu-
nist and Post-Communist Poland (1980–1995)’’ in The Rule of Law after Communism,
eds. M. Krygier and A. Czarnota (Aldershot: Ashgate, Dartmouth 1999), 261–307; M. Łoś
and A. Zybertowicz, Privatizing the Police-State: The Case of Poland (London: Macmillan,
New York: St. Martin’s Press, 2000).
14. See, e.g., T. Lis, Co z ta Polska (Warszwa: Rosner & Wspólnicy, 2003); A. Zybertow-
icz, ‘‘Sztuka zapominania: państwo policyjne jako nierzeczywistość,’’ in Świat historii, ed.
Wojciech Wrzosek (Poznań: IH UAM, 1998), 429–39; compare T. Rosenberg, The
Haunted Land (New York: Vintage Books, 1996).
15. The Polish lustration law obligates individuals holding high public offices to reveal
their work for or secret cooperation with the communist secret services. The individuals’
declarations are published in the Official Journal of the Government (Monitor Polski).
The law does not lead to any negative consequences for individuals who have stated truth.
The consequences arise only for those who lied, i.e., only for those individuals whom the
Court of Appeal has legitimately found to have provided untruthful declarations. Their
names are published and these individuals cannot occupy public posts for ten years.
16. Ustawa z dnia 11 kwietnia 1997 r. o ujawnieniu pracy lub słuz.by w organach bez-
pieczeństwa państwa lub współpracy z nimi w latach 1944–1990 osób pełniacych funkcje
publiczne (Dz. Us. 1997, No. 70 pos. 443).
17. See, e.g., T. Lis, Co z ta Polska (Warszwa: Rosner & Wspólnicy, 2003).
18. See Łoś and Zybertowicz 2000, 127; compare Siemiatkowski 1998, 108.
19. Z. Siemiatkowski, a Sejm speech presenting the cabinet’s project of secret services
reform delivered on March 13, 2002, www.sejm.gov.pl; accessed January 4, 2004.
20. See, e.g., J. Maloj, Machina (nadal) postsowiecka (Nasza Polska, January 21, 1998);
see other thirteen articles of the author published in this weekly between February and
.
May 1998; A. Zybertowicz, W uścisku tajnych słuzb: upadek komunizmu i układ postnomen-
klaturowy (Komorów: Antyk, 1993): 52–56.
21. Ustawa o Urzedzie Ministra Obrony Narodowej z dnia 14 grudnia 1995 r. (Dzien-
nik Ustaw 1996, No. 10, pos. 56).
22. Published in Dz. Us. 2003, No. 139, pos. 1326.
23. Chief of the WSI from 1997 to 2001.
24. Poland joined NATO in 1999. See T. Rusak, interviewed by E. Łosińska (Dziennik
Polski, September 12, 2003); compare J. Jakimczyk (Jednostka 3362. Rzeczpospolita, July
16, 2003).
25. See, e.g., W. Cieśla and J. Jachowicz, Big Brothers, czyli wojna agentów (Gazeta
................. 11310$ $CH8 05-16-05 11:37:53 PS PAGE 157

Wyborcza, November 2–3, 2002): 12–15; W. Frasyniuk, Interviewed by R. Laudański,

(Gazeta Pomorska, August 14, 2003); A. Gargas, Fozz z wojskowymi w tle, (Gazeta Polska,
June 18, 2003); S. Janecki, Wojskowe Słuz.by Interesów, (Wprost, December 28, 1997):
22–3; I. Leszczyńska and G. Indulski, Generalicja zgarnia kase (Newsweek Polska, Novem-
ber 23, 2003): 22–24; R. Zieliński and MNS, Akademia przekretów (Super Express, edition
AB, January 16, 2001): 3.
26. Compare A. Antecki, Firma (Tygodnik Powszechny, December 7, 2003): 1, 4.
27. The relevant regulations were (in Polish): Ustawa z dnia 21 listopada 1967 r. o
powszechnym obowiazku obrony Rzeczypospolitej Polskiej (Dz. Us. 1992 r., nr 4, poz. 16
ze zmianami); Ustawa o Urzedzie Ministra Obrony Narodowej z dnia 14 grudnia 1995 r.
(Dz. Us. z 1996 r., nr 10, poz. 56); Ustawa o ochronie informacji niejawnych z dnia 22
stycznia 1999 r. (Dz. Us. nr 11, poz. 95); Rozporzadzenie Rady Ministrów z dnia 9 lipca
1996 r. w sprawie szczegółowego zakresu działania ministra obrony narodowej (Dz. Us.
nr 94, poz. 426); Rozporzadzenie Prezesa Rady Ministrów z dnia 19 września 1997 r. w
sprawie szczegółowego rozdziału kompetencji oraz zasad współdziałania w zakresie och-
rony gospodarki narodowej miedzy UOP a WSI (Dz. Us. nr 116, poz. 774); Uchwała Try-
bunału Konstytucyjnego z dnia 16 stycznia 1996 r. (Dz. Us. nr 14, poz. 80).
.
28. T. Kosobudzki, Bezpieka w MSZ: Słuzby specjalne w polityce zagranicznej RP w
latach 1989–1997 (Kielce-Warszawa: Elipsa, 1998): 152.
29. S. Iwanicki, Gangi próbuja kupować urzedników (Rzeczpospolita, August 18, 1994):
12. .
30. I. Janke, Tajni potrzebuja ciszy (Zycie, December 21–22, 1996): 13; I.T. Miecik,
Ośmiornica czy krewetka (Polityka, June 24, 2000): 10; compare A. Antecki, Firma
(Tygodnik Powszechny, December 7, 2003): 1, 4.
.
31. See e.g. J. Wilczak, Niesłychanie tajna słuzba (Polityka, June 14, 2003): 27.
32. See e.g. official website of the ABW: www.abw.gov.pl; accessed August 21, 2003.
33. Personal communications (in April and July 2003) with two individuals related to
the services who remain anonymous.
34. See the official website of the AW—www.aw.gov.pl/english/szef-agencji/wir-czym-
jest.html.
35. First chief of the UOP and then minister of the interior in 1990–91.
36. Cited J. Jachowicz and K. Kesicka, Tajne kontrolowane (Gazeta Wyborcza, Novem-
ber 22, 1994): 4.
37. Malejczyk 1995, 13.
38. K. Miodowicz, interviewed by A. Kublik et al. (Gazeta Wyborcza, February 24–25,
1996): 10.
39. J. Dziewulski, interviewed at an Internet chat, 2001, http:/czateria.interia.pl/gosc?
cidⳭ633&F⳱5; (accessed August 30, 2003).
40. Interview with the author on June 11, 2003.
41. A. Antecki, Firma (Tygodnik Powszechny, December 7, 2003): 5.
42. See A. Antecki, Firma (Tygodnik Powszechny, December 7, 2003): 1, 4.; K. Williams
and D. Deletant, Security Intelligence Services in New Democracies: The Cases of Czech
Republic, Slovakia and Romania (London: Macmillan and School of Slavonic and East
.
European Studies, UCL, 2000); A. Zybertowicz, W uścisku tajnych słuzb: upadek komuni-
zmu i układ postnomenklaturowy (Komorów: Antyk, 1993); M. Łoś and A. Zybertowicz,
Privatizing the Police-State: The Case of Poland (London: Macmillan, New York: St. Mar-
tin’s Press, 2000).
43. See note 15.
................. 11310$ $CH8 05-16-05 11:37:54 PS PAGE 158

44. See the website of the lustration prosecutor: www.rzecznikip.gov.pl.

45. See E. Olczyk and M. Subotić, Wszyscy ludzie premiera (Rzeczpospolita, January 24,
2002); A. Kublik, Kto dzwonił do mediów? (Gazeta Wyborcza, September 17, 2003): 1.
46. See e.g. Skórzyński, ed., System Rywina, czyli druga strona III Rzeczypospolitej (War-
szawa: Świat Ksiaz.ki and Rzeczpospolita, 2003).
.
47. See e.g. K. Kozłowski, To słuzbami graja (Tygodnik Powszechny, December 7, 2003):
1; A. Macierewicz, Kursanci z Moskwy i Tel Awiwu (Nasza Polska, March 20, 2003): 1, 13.
48. Legal act of law rank regulating inner workings of the Sejm.
49. See the English part of the AW official website—www.aw.gov.pl/english/kontrola/
sejmowa-komisja-ds-sluzb-spec-1.html; accessed August 24, 2003.
50. See http://orka.sejm.gov.pl/SQL.nsf/skladkom4?OpenAgent&KSS; accessed July 11,
2003.
51. See B. Kittel and A. Marszałek, Chca i nie chca Miodowicza (Rzeczpospolita,
.
November 8, 2001); KNYSZ, Słuzby bez nadzoru (Gazeta Wyborcza, August 1, 2002): 7.
52. In February 2002 the president of Orlen, a petrol company co-owned by the state,
one of the largest in Poland, was detained in a spectacular way (instantly publicized) by
the UOP. Though he was freed that very same day, the next day he was fired as the com-
pany president. A trusted hand of the sitting government has been placed in his position.
This was interpreted as an abuse of a secret service to achieve an economic purpose. Later
on the Warsaw district court has found the use of the UOP in this case was unlawful (see,
e.g., Sakiewicz 2002).
.
53. See KNYSZ, Słuzby bez nadzoru (Gazeta Wyborcza, August 1, 2002): 7.
54. See the Commission’s subpage on the Sejm website: www.sejm.gov.pl.
.
55. See PW, Oskarzenia agenturalne (Gazeta Wyborcza, April 7, edition 2, BYT, 2000):
5.
56. J. Paradowska, Czysta czystka (Polityka, August 17, 2002): 28–30.
57. Obviously, this was the case of the illegal arms trade pursued in the 1990s by the
WSI; the investigation stemmed from a newspaper article (Marszałek 2002) and con-
cluded that serious abuses were actually completed by the WSI.
58. Cited J. Wilczak, Niesłychanie tajna słuz.ba (Polityka, June 14, 2003): 26.
59. Communication of July 12, 2003; compare J. Widacki, Interviewed by A. Kublik
(Gazeta Wyborcza, April 16): 16.
60. See, e.g., A. Celiński, interviewed by M. Olejnik on the Radio Zet on December 30,
2003 (cited www.wiadomości.wp.pl; accessed December 30, 2003).
61. Laurence Lustgarten and Ian Leigh, In From the Cold: National Security And Parlia-
mentary Democracy (Houndsmill, Hampshire, 1994): 461–62).
.
62. Compare W. Kozieł, ‘‘Ewolucja systemu kontroli i nadzoru nad słuzbami specjal-
nymi w Polsce,’’ in Bezpieczny obywate—bezpieczne państwo, eds. J. Widacki and J. Czap-
ska (Lublin: KUL, 1998): 121–29; D. Rowicka, ‘‘Słuz.by specjalne w Polsce—nadzór i
kontrola,’’ in Bezpieczny obywatel—bezpieczne państwo, eds. J. Widacki and J. Czapska
.
(Lublin: KUL, 1998): 107–20; S. Zalewski, Słuzby specjalne w państwie demokratycznym
(Warszawa: Akademia Obrony Narodowej, 2002).
63. See e.g. A. Antecki, Firma (Tygodnik Powszechny, December 7, 2003): 1, 4;
J. Jakimczyk, Podzwonne dla UOP (Rzeczpospolita, July 19, 2002): A8; K. Kozłowski,
Koniec UOP, poczatek niewiadomej (Tygodnik Powszechny, July 7, 2002): 3; J. Widacki,
interviewed by A. Kublik (Gazeta Wyborcza, April 16, 2002): 16–17; compare www
.uop12lat.republka.pl.
................. 11310$ $CH8 05-16-05 11:37:55 PS PAGE 159

9
Executive and Legislative
Oversight of the Intelligence
System in Argentina
Eduardo E. Estévez
T his chapter addresses the main features, concerns, and ongoing progress
concerning the intelligence system and legislation of Argentina1 in its search
for democratic legitimacy. Since the recovery of democracy in 1983, there has
been both public and political concern about the role of intelligence. This feeling
was due to the history of military rule in Latin America and particularly to the
role played by intelligence agencies ‘‘. . . in short, integrally associated with the
human rights abuses which characterize most authoritarian regimes most of the
time.’’2
In efforts to revamp the intelligence sector and establish strong legitimacy, it
was necessary to leave behind the history of abuses, lack of controls, and distrust.
During the decades of building democracy, the main efforts focused on the
development of a legislative framework able to trigger a reform process. In
November 2001, the National Congress passed the National Intelligence Law
establishing the national intelligence system. The law defines the organization,
activities, objectives, and scope of the intelligence policy; creates a national intel-
ligence agency, a criminal intelligence agency, and a military strategic intelligence
agency; establishes a mechanism to authorize interceptions of communications
in conjunction with the judiciary; and sets the standards for parliamentary over-
sight,3 including secret budget and expenditure control.
A key senior advisor of the Senate recently described five essential prerequi-
sites that guided congressional debate on the intelligence legislation: (1) to have
a legal framework capable of generating a context for developing intelligence
— 160 —
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Executive and Legislative Oversight of the Intelligence System in Argentina 161
activities characterized by professionalism and excellence; (2) to ensure that the

efficiency of intelligence activities do not collide with the principle of full protec-
tion of human rights; (3) to define clear penalties applicable to the cases in which
fundamental rights of the inhabitants have been violated, at the same time creat-
ing specific congressional mechanisms to guarantee a permanent oversight of
these activities; (4) to ensure that such legal frameworks be representative of the
consensus reached by all the actors involved in such activities, in order to prevent
the law from being ignored on those issues for which consensus was unattain-
able; (5) to reach a balance and distribution of roles that enable a clear identifi-
cation and description of specific functions and powers of each one of the
components of the intelligence system.4 Argentina’s new legislation on intelli-
gence services constitutes a step toward the consolidation of democracy.
Intelligence Sector Legislation and Agencies

A triad of laws governs the intelligence sector:
National Intelligence Law No. 25520 of 2001

Internal Security Law No. 24059 of 1992, dealing with internal intelligence
National Defense Law No. 23554 of 1988, concerning military intelligence
restrictions
The legal framework also entails other norms:
Decree No. 950 of 2002, providing regulations for the provisions of the
National Intelligence Law
Decree No. 1088 of 2003, approving the bylaw applicable to intelligence per-
sonnel
Decree No. 1273 of 1992, providing regulations for the provisions of the
Internal Security Law
Personal Data Protection Law No. 25326 of 2000
Decree-Law No. 5315 of 1956 and Law No. 18302 of 1969, establishing a
regime for ‘‘Reserved or Secret Expenditures’’
Argentina has several intelligence agencies5 at the national level, including civil-
ian, military, and police/security forces components. Within the executive there
are the following organizations:
Secretariat of Intelligence, the main agency, subordinate to the presidency

of the nation, responsible for collecting and producing foreign and domestic
intelligence and counterintelligence
................. 11310$ $CH9 05-16-05 11:37:50 PS PAGE 161

National Directorate for Criminal Intelligence, a coordination body con-

cerned with intelligence efforts related to domestic security
National Directorate for Strategic Military Intelligence, responsible for the
production of military intelligence
The following organizations are under the military services:
J-2 Intelligence, Joint Staff of the armed forces

Army Intelligence, including a G-2 within the army general staff and a Mili-
tary Intelligence Collection Centre, with several small units all over the
country
Naval Intelligence Service
Air Force Information Service
The following belong to the police and security forces:
National Gendarmerie Intelligence Service

Argentine Coast Guard Intelligence Service
Intelligence elements of the Argentine Federal Police
An intelligence element of the Federal Penitentiary Service
Intelligence Reform in the Wake of

Democratic Consolidation Process
Argentina’s new legislation on the intelligence system has to be analyzed in the
context of the ongoing process of democratic consolidation. Beginning in 1983,
this process included several important legislative actions taken in related fields,
such as the National Defense Law of 1988 and the Internal Security Law of 1992.
These two pieces of legislation, which played a crucial role in solving the military
problem, contain a few sentences on specific intelligence activities and structures.
As shall be seen in the following discussion, these precedents opened a window
of opportunity for a longstanding and intermittent debate about the role of the
intelligence sector in a democracy.
The National Defense Law links the concept of national defense exclusively to
the use of the armed forces, in a deterrent or an effective way, to confront exter-
nal aggression, and recognizes a distinction between national defense and inter-
nal security, being the last concept to be defined by a special law. Article 15
relates to intelligence and prohibits the military intelligence agencies from con-
ducting activities related to domestic political affairs; it establishes that the
highest-level intelligence agency is in charge of producing national defense intel-
................. 11310$ $CH9 05-16-05 11:37:51 PS PAGE 162

ligence. This article also states that military intelligence production is to be car-
ried out by an agency comprising the intelligence agencies of the armed forces,
under the authority of the minister of defense.
The Internal Security Law constitutes a significant improvement in terms of
a legal framework for domestic security with relevant content related to intelli-
gence. For the first time in Argentina, this law established the foundation of the
system for planning, coordination, control, and support of the national police
effort committed to guarantee internal security. The law defined internal security
as the:
factual situation under the rule of law in which liberty, life and property of the
inhabitants, their rights and guarantees and the full validity of the institutions of
the representative, republican and federal system established by the national Con-
stitution are protected (article 2).
A cabinet minister has authority for the direction and coordination of the activi-
ties undertaken by the federal police and the security forces’6 intelligence compo-
nents. Furthermore, to avoid uncertainty about the role of intelligence in internal
security, article 16 provides for a Directorate of Internal Intelligence, the organ
through which the minister exerts power in this field. A significant provision of
this law applies to congressional oversight. Title VII provides for parliamentary
control of internal security and intelligence, creating for the first time in Argen-
tina a permanent congressional Joint Oversight Committee on Intelligence and
Internal Security, composed of six senators and six deputies with the mission to
supervise and control all internal security and intelligence activities and organi-
zations.7
Although the area was not at the top of the agenda of controversial issues, the
main topics of debate were the scope of congressional control over intelligence
activities and agencies as well as legislation governing the intelligence sector.
Some controversy resulted from the fact that although article 46 of the National
Defense Law provided for the drafting of several related bills, including one to
govern the intelligence system with the addition of congressional oversight, it
was only after fourteen years that consensus was reached and an intelligence law
was passed by Congress in 2001.
As Garreta explains, from the 1960s until the National Congress passed the
intelligence law, a secret normative framework for state intelligence, designed by
the armed forces and based upon the so-called national security doctrine, was
functional but neither democratic nor public.8 Meanwhile, since 1983, an intelli-
gence sector with doubtful legitimacy, though headed by a civilian appointed
by the president, was characterized by duplication between the several intelli-
gence agencies, denoting a lack of coordination and featuring a squandering of
................. 11310$ $CH9 05-16-05 11:37:52 PS PAGE 163

resources. Intelligence activities progressively began to act in support of judicial

investigations and the discretion toward secret expenditures increased without
any justification.
The evolution toward an intelligence law allows a brief description of several
waves of bills. The first wave of bills on intelligence systems arose in the early
1990s. At that time, the desire was to establish a political and legal basis for intel-
ligence agencies and activities under firm democratic control and supervision, in
order to remove the ambiguity, autonomy, and distrust that surrounded their
operations in society.9 In June 1990, Deputy Victorio Bisciotti of the Radical
Party entered a bill under the name of ‘‘Information and Intelligence Organic
Law,’’ while in September 1991, Senator Eduardo Vaca of the Peronist Party
entered a bill called ‘‘National Intelligence System.’’ By mid-1993, the congres-
sional committee with authority to oversee intelligence and security activities and
agencies created by the Internal Security Law came into existence several months
after this law was passed. The committee was created in reaction to a scandal
known as ‘‘ideological surveillance.’’10
A second wave of bills sprouted during 1994 and 1995, particularly those sub-
mitted by minority legislators. At the same time an initiative backed by the
majority and the executive was evolving in the Senate. After reaching a partial
consensus, an intelligence bill was approved by the Senate in September 1994. By
late 1995, the lack of consensus about the scope of congressional control, among
other topics under discussion, frustrated the approval by the Chamber of Depu-
ties of the intelligence bill earlier approved in 1994 by the Senate. Meanwhile,
two terrorist bombings hit the country. The first one was on March 17, 1992,
against the Embassy of Israel, the second one on July 18, 1994, against the Asocia-
ción Mutual Israelita Argentina (AMIA), a Jewish community center building. A
special joint congressional committee created in September 1996 to follow up
the judicial investigations contributed through hearings and reports to an
extended debate on the need for intelligence reform. There was also a political
perception that sectors of the main intelligence agency—the former state intelli-
gence secretary—had impeding attitudes or omissions regarding the investiga-
tion of these terrorist bombings.
A third wave of bills arose during 1997 and 1998, all of them characterized by
a strong emphasis on parliamentary controls. In parallel to the various intelli-
gence system bills, other related bills were drafted by legislators intending to rule
on specific topics such as secret budgets, parliamentary oversight and controls,
external controls such as ombudsmen, and judicial controls and responsibilities.
A motive for these initiatives was an almost illegal practice systematically applied
by the executive during the 1990s, consisting of an increase in secret expenditures
far from the figure yearly approved as a secret budget by Congress. Finally, the
................. 11310$ $CH9 05-16-05 11:37:52 PS PAGE 164

new millennium began with active but silent parliamentary work of consensus
building, the final result being the enactment of a law in November 2001.
General Concepts and Characteristics

Governing Intelligence Activities
National Intelligence Law No. 25520 of 2001 established the juridical and func-
tional basis of the national intelligence system.11 In view of the implications for
the intelligence sector itself, it is very important to mention the set of terms
defined in the law (article 2), including national intelligence, counterintelligence,
criminal intelligence, strategic military intelligence, and the national intelligence
system. National intelligence is defined as the activity involving the collection,
systematization, and analysis of specific information related to facts, threats,
risks, and conflicts affecting foreign and domestic security. This compares with
the term criminal intelligence, which is linked to specific criminal activities that,
due to their nature, magnitude, foreseeable consequences, dangerousness, or
mode, affect the freedom, life, and property of individuals, as well as their rights
and guarantees, and the institutions of the federal, republican, and representative
system established by the constitution.
The three agencies comprising the national intelligence system12 are the Secre-
tariat of Intelligence, the National Directorate for Criminal Intelligence, and the
National Directorate for Strategic Military Intelligence. The first agency—
replacing the state intelligence secretary—which holds the status of the highest
agency of the system (article 7), has the function of producing national intelli-
gence (article 8) and has as its general mission the direction of the system (article
7). The second agency is responsible for the production of criminal intelligence
(article 9), and the third produces strategic military intelligence (article 10). It is
noteworthy that the law prohibits the creation, establishment, and functioning
of associations, institutions, networks, and groups of persons, either of physical
or juridical status, that plan and/or perform intelligence functions and activities
(article 11).
After a nonbinding consultation with the Joint Committee for the Oversight
of Intelligence Activities and agencies of the National Congress (article 15) the
president appoints the secretary of intelligence, who has a cabinet minister rank.
The removal process is similar to the one applicable to any secretary of state, in
that the president may require his or her resignation at any time. The heads of
the National Directorate for Criminal Intelligence and the National Directorate
for Strategic Military Intelligence are appointed by the minister of their respec-
tive jurisdictions following a similar procedure established for any national direc-
tor of the executive.
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Exercising Executive Control and

Coordination—Intelligence Policy and Tasking
The National Intelligence Law gives control and coordination powers over the
national intelligence system to the executive. The principal source of external
guidance for the intelligence system is right at the top of the executive branch.
This is a significant improvement in comparison with past practices, where the
autonomy of intelligence agencies allowed them to determine their own require-
ments.
Through Title IV, ‘‘National Intelligence Policy,’’ the law provides for the
control and accountability arrangements for executive control of intelligence.
According to article 12, the president determines the strategic outlines and gen-
eral objectives of the national intelligence policy. For this purpose he may con-
voke an inter-ministerial advisory council. For consulting purposes and when he
considers it pertinent, he may also invite representatives of the armed forces,
security forces, or Argentine federal police (article 14).
While the Secretariat of Intelligence is under the presidency of the nation,
the National Directorate for Criminal Intelligence is under the Interior Security
Secretariat (article 9). This Secretariat is part of the Ministry of Justice, Security
and Human Rights. The National Directorate for Strategic Military Intelligence,
in accordance with the provisions of article 15 of the National Defense Law, is
under the Ministry of Defense. The Secretariat of Intelligence has powers to con-
duct and articulate the activities and the functioning of the system and to coordi-
nate activities within the framework of national defense and internal security
laws through officials appointed by the ministers of those areas, whose position
must not be lower than under-secretary of state (article 13.5). Concurrently, the
Secretariat of Intelligence shall issue the rules that may be necessary for the func-
tioning of the national intelligence system (article 4, decree No. 950). The notion
itself of an intelligence system comprising the top agencies implies that national
intelligence assessments can be interdepartmentally agreed upon, mainly between
the Ministries of Defense and of Justice, Security, and Human Rights, respec-
tively, through the heads of their intelligence agencies. In fact, as discussed, the
secretary of intelligence has to coordinate these activities.
Regarding national intelligence assessments, production of national intelli-
gence is the responsibility of the Secretariat of Intelligence, as determined by arti-
cle 8 of the law. Furthermore, according to article 15 of the National Defense
Law, the intelligence agency at the highest level, which is today the Secretariat of
Intelligence, would be the agency in charge of producing national defense intelli-
gence. Article 13.8 of the National Intelligence Law gives the Secretariat of Intelli-
gence authority to coordinate the preparation of a national strategic intelligence
assessment as well as a collection plan. The minister of justice, security, and
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human rights and the minister of defense have, respectively, authority over the
intelligence agencies within their departments. Considering the fact that these
agencies are at the same time part of the national intelligence system, these min-
isters do not necessarily exert much influence in the daily activities of these agen-
cies.
The National Directorate for Criminal Intelligence, pursuant to article 48 of
the law and in accordance with the provisions of article 16 of the Internal Secur-
ity Law, ought to play a significant role in the national intelligence system in
terms of the functional direction and coordination of intelligence activities of the
so-called national police effort—including the national police and security
forces, and the twenty-three provincial police forces—in all matters related to
internal security. Decree No. 1273 is clear about the responsibilities of the head
of the Criminal Intelligence Directorate, outlining in article 5.6 the scope of the
direction and coordination functions regarding the activities of the intelligence
elements already mentioned. These functions include the planning, setting of
priorities, preparation, and formulation of requirements regarding collection of
information and intelligence production. In the field of military intelligence, arti-
cle 6 of Decree No. 950 gives powers to the National Directorate for Strategic
Military Intelligence to coordinate actions regarding the armed forces intelli-
gence agencies. For the purpose of producing strategic operational intelligence
and tactical intelligence needed for the planning and conducting of military
operations and specific technical intelligence, the military intelligence agencies of
the army, navy, and air force armed forces are respectively under direct control
of the chief of each force.13
There is one type of intelligence operation that requires explicit approval by
members of the executive. The secretary of intelligence can request a written and
grounded judicial approval to carry out interceptions of communications for
intelligence or counterintelligence activities.14 For these operations, the
Secretariat of Intelligence has a Directorate for Judicial Observations, the only
organ of the state legally allowed to perform these duties under permission or
instructed by competent judicial authorities (article 21). In principle, relations
with foreign intelligence services are one of the specific duties of the Secretariat
of Intelligence; under article 13.4, the secretary of intelligence is responsible for
the direction and articulation of relationships with the intelligence agencies of
other nations. Within the executive there are no specialized independent means
of checking upon the work of the intelligence agencies, such as an inspector-
general office, a commissioner, an executive oversight body, or a supervisory
committee.
As explained in the following discussion control, oversight, and accountability
arrangements comprise other notable elements within the legislative and the
judiciary. Although it appears to be an infrequent mechanism, citizens are able
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to raise complaints against any national intelligence system agent or agency to

the Joint Committee. Furthermore, as a constitutional right, the judicial option
has been always at disposition. Independent supervision is a key feature of a
democratic intelligence sector; therefore, the lack of review mechanisms in the
executive is a weakness of the whole concept developed by the Argentinean legis-
lators. The absence within the law of any reference to those executive mecha-
nisms may be a consequence of the considerable importance granted to
parliamentary control by the drafters. There may also have been a lack of confi-
dence on the ability or proclivity of the executive to review its own activities,
having considered the risks associated with the exercise of political/partisan
influence over those mechanisms.
Legal Constraints and Classified Information

A set of safeguards to prevent the use of the intelligence agencies by government
officials against their domestic political opponents and affairs are clearly estab-
lished by law. Title II of the National Intelligence Law provides for the protection
of rights and guarantees of the inhabitants of the nation. Its article 3 states that
‘‘. . . the functioning of the national intelligence system must adjust strictly to
those provisions under chapters I and II of the national constitution and the laws
and regulations in force.’’
Intelligence agencies are forbidden to:
Perform repressive activities, have compulsive powers, fulfill police func-

tions, or conduct criminal investigations unless so required by justice or
when so authorized by law
Obtain information, collect intelligence, or keep data on individuals because
of their race, religion, private actions, and political ideology, or due to their
membership in partisan, social, union, community, cooperative, assistance,
cultural, or labor organizations, or because of legal activities performed
within any field
Exert influence over the institutional, political, military, police, social, and
economic situation of the country, its foreign policies, and the existence of
legally formed political parties
Influence public opinion, individuals, media press, or any kind of associa-
tions whatsoever.15
As stated in article 4.4, agencies are not allowed to reveal or divulge any kind
of information acquired when performing their functions and related to any
individual or company, whether public or private, unless so required by justice.
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Article 16 specifies that intelligence activities and agencies, their personnel, docu-
mentation, and databases, shall be assigned a classified security grading in accor-
dance with the interests of internal security, national defense, and foreign
relations and that the access to such information shall be authorized in a case-
by-case basis by the president or the official to whom this authority has been
expressly delegated.
Those members of the intelligence agencies, as well as any person who, due
to his responsibilities or circumstances, has access to intelligence information,
are obliged to maintain secrecy and confidentiality; those who infringe this obli-
gation will be subject to penalties.16 In this regard, article 13 of Decree No. 950
states that by way of an internal resolution each agency of the system shall spe-
cifically record the formal and written notification of these responsibilities for
each agency member. Article 2 of Decree No. 950 clearly specifies that the intelli-
gence agencies shall frame certain activities—obtaining information, collecting
intelligence, or keeping data on individuals—as inexcusable under the provisions
of the Personal Data Protection Law, specifically its article 23.17 The fulfillment
of these provisions shall be a matter of directives and controls by the head of
each agency. Domestic intelligence activities raise major concerns among politi-
cians as much as in the society; however, provisions contained in the law regard-
ing criminal intelligence are great improvements on establishing limits to
intelligence collection from within.
Consistent with constitutional guarantees,18 article 5 of the National Intelli-
gence Law stipulates that telephone calls, mail, telegraph, facsimile, or any other
system for sending objects or transmitting images, voice, or data, as well as any
kind of information, files, registries and/or private documents or documents to
which the general public have no access are inviolable unless so required by jus-
tice. The decision to include limitations to the intelligence activities was an issue
that underwent several ups and downs during the legislative debate. Having
selected to draft a detailed bill, the group of legislative advisors that prepared the
first drafts were able to inscribe several clauses, all of them ending in a full title
of the law devoted to the protection of the rights and guarantees of the inhabi-
tants. These sets of operational principles represent a clear advantage in terms of
the exercise of democratic control over the intelligence sector.
Budgeting Process and Reporting

The executive, the Joint Congressional Oversight Committee, and the General
Accounting Office are involved in the process of the budget and control of secret
expenditures. The first step of the yearly processes for approval of the intelligence
budget was accomplished in accordance with article 38, which stipulated that the
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national executive power shall include in the ruling of Law No. 24156 on finan-
cial administration and control systems of the national public sector, a new line
named ‘‘intelligence’’ under the topic ‘‘services for defense and security,’’ group-
ing the whole budget corresponding to the intelligence activities in whatever
jurisdiction it may have originated. Although on legal grounds, secrecy is main-
tained for obvious reasons, the global figure is public and is subject to a budget
process similar to that of any other department or agency. Decree No. 950 also
establishes that both the National Directorate for Criminal Intelligence and the
National Directorate for Strategic Military Intelligence shall submit their budget
requirements to its superior hierarchy, and shall be responsible for the spending
of the specific budget for intelligence.
The process for auditing of intelligence expenditures within the government
is ruled by article 39 of the National Intelligence Law, which states that these
expenditures made during the fiscal year shall be recorded in a monthly affidavit
signed by the responsible officials belonging to the respective organism or office;
that shall be considered a receipt by the general accounting office.
The intelligence agencies report to the ministries as established by law. Article
13 states that the Secretariat of Intelligence shall provide to the Ministry of
Defense the information and intelligence needed to contribute to military strate-
gic intelligence production, as set forth by article 15 of Law No. 23554, and to
the Interior Security Council the information and intelligence needed to contrib-
ute to criminal intelligence production, as set forth by article 10, paragraph (e)
of Law No. 24059.19 Article 13.9 of the National Intelligence Law specifies that
the Secretariat of Intelligence shall prepare the annual report of intelligence
activities to be presented to the Joint Congressional Oversight Committee. Based
upon article 33, the executive—the Secretariat of Intelligence—has to submit to
the Joint Committee the national intelligence plan and the curricula of the
National Intelligence School. For the purpose of congressional budget and
expenditure control and oversight, the executive is obliged to submit to the Joint
Committee all the information needed, as set forth by article 37. Each year the
executive reports to Congress on its administration policies, programs, and activ-
ities of the previous fiscal year. This public report has a two- to three-page long
chapter prepared by the Secretariat of Intelligence. This practice began in the
mid-1980s. In the chapters on the defense and justice, security and human rights
ministries, respectively, there should be contents related to their intelligence
offices.
Achieving Ministerial Responsibility in Practice

Although the new law was intended to supersede the tendency to centralize the
intelligence community, it does not solve this challenge because of the diffuse
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roles granted to the heads of the Ministry of Justice, Security and Human Rights
and Ministry of Defense within the intelligence system itself. Indeed, the roles
and responsibilities of the three intelligence agencies are clearly described. The
scheme provides that the two minor agencies be accountable predominantly to
the major agency—who holds the status of the highest agency of the system—
leaving aside the natural accountability of an office to the head of the department
where it belongs. The secretary of intelligence is indeed the chief advisor to the
president on intelligence matters, being at the same time the head of the system.
This special relationship, which is not different from that existing before the
enactment of the National Intelligence Law, reflects a centralized system in which
the producer and consumer roles are not clearly shaped.
The defense and domestic security legislation in force has several clauses
related to intelligence; it appears that the whole intelligence community com-
prises not only the intelligence system established by the National Intelligence
Law, but also what can be called ‘‘subsystems,’’ one for internal/criminal intelli-
gence and another for military intelligence. The creation of a criminal intelli-
gence agency meets the need to give full legal recognition of intelligence within
the state to delineate the interface between intelligence policy and domestic
security policy. The history of abuses, repressive state, and internal dirty wars
indicated that any exclusion or blurring concept of domestic intelligence could
pose a threat to society. In fact, applying the principle of separation of law
enforcement and intelligence poses the problem of excluding those intelligence
activities carried out by a government for the purposes of gaining information
and analysis to be aware of the general situation of domestic security/insecurity
and holding them unaccountable. Executive civilian control over those activities
is a prerequisite in order to avoid intrusion in privacy from, misuse of, and
abuses by police intelligence. Within the boundaries of domestic security policy,
civilian control is achieved through the coordination and tasking of the domestic
intelligence elements. In this case, the mission of those intelligence activities car-
ried out within the country, within its society, is strictly limited to those legiti-
mate and legally accepted and defined objectives, as stated by the National
Intelligence Law. The new system can be considered a combination of a central-
ized-prone pattern at the top, with a decentralized-prone pattern at the immedi-
ate second level, in which the principle of division of labor between the
intelligence agencies20 is effective. As a hybrid, a silent struggle may take place for
the actual control of those specialized intelligence agencies between the various
ministers with jurisdiction over agencies in charge of intelligence functions as
well as the secretary of intelligence.
The concept of civilian ministerial responsibility over the intelligence agencies
has not been exercised fully in the fields of domestic and military intelligence.
Issuance of directives and control over personnel, budget, and expenditures has
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not been a priority although there were legal foundations for this several years
before the National Intelligence Law was enacted. A fifty-year tradition of a
strong and centralized national intelligence agency under the presidency, and the
frequent interruptions of democratic rule, are significant reasons that explain
this behavior.
During the transitional government of the congressionally appointed Presi-
dent Eduardo Duhalde (January 2002–May 2003), the Intelligence Secretariat
was headed first by Carlos Soria, former chairman of the Joint Special Committee
in charge of monitoring the judicial investigations of the terrorist bombings
against the embassy of Israel and the AMIA building. Subsequently, another con-
gressman with experience in the fields of defense, security, and intelligence legis-
lation, Miguel Angel Toma, was appointed to that post. According to the press,
these changes were confirmation that the agency continues to respond to the
aspirations and fickleness of political interests, rather than to the needs of its
important strategic role.21Notwithstanding these factors, the National Intelli-
gence Law is an important improvement because its clauses upgrade the already
existent agencies focused on criminal and military intelligence respectively.
Legislative Oversight: the Joint Committee for the

Oversight of Intelligence Activities and Agencies
The National Intelligence Law created the Joint Committee for the oversight of
intelligence activities and agencies of the National Congress (article 3). The role
of the Joint Committee is specified in legislation22 and in the Committee’s inter-
nal rules of procedures. Essentially, its oversight role includes the following: the
legality of intelligence activities, the policy that guides the intelligence system,
the management and administration of the system and its agencies, the system’s
effectiveness, personnel education plans, the secret budget and expenditures, pre-
vious data on telephone interception operations, and complaints from members
of the public about the agency or its personnel. It is obliged to report to Congress
and to the executive. The Committee includes fourteen legislators, seven
appointed by the Chamber of Deputies and seven by the Senate. The president,
the two vice-presidents, and the secretary of the Joint Committee are chosen by
simple vote of its members, with a term of office of two years, rotating between
each one of the two chambers. Tradition dictates that the presidency of the Com-
mittee is held by a member of the majority. There is no special procedure to veto
prospective members or to remove members of the Joint Committee other than
not having or losing the political confidence of its wing peers, particularly the
president of the wing. All legislators are eligible to be members of the Joint Com-
mittee; there is no security vetting before or during appointment. The joint status
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of the congressional committee under study poses a weakness in terms of the

relationship with the chambers. For example, the Joint Committee is not directly
involved in the lawmaking process—and cannot report bills to the floor—except
for the intelligence secret budget included in the administration’s overall annual
budget bill. Senator Mario Daniele23 (Justicialist party; province of Tierra del
Fuego), member of the Joint Committee, is aware of the difficulties of this new
beginning regarding gaps or areas of difficulty in practice; he mentions the insti-
tutional weaknesses that the country has suffered as legislators attempt to provide
mechanisms of suitable control.
Powers of the Joint Committee

The National Intelligence Law grants a set of formal powers to the Joint Commit-
tee. Article 32 allows this committee to ascertain that the functioning of the intel-
ligence agencies complies with the constitutional, legal, and statutory norms in
force, verifying the strict observance and respect for individual warranties stated
by the national constitution as well as the strategic outlines of general objectives
of the national intelligence policy. According to article 33, parliamentary control
comprises mainly the analysis of the national intelligence plan, the consideration
of the secret annual report on intelligence activities prepared by the Secretariat
of Intelligence, and the elaboration and submission to the executive and the
Congress of an annual secret report24 furnishing opinions in relation to any legis-
lative project on intelligence activities. It also includes receiving denunciations
made by individuals or associations regarding abuses or illegal acts committed
by intelligence agencies and investigating them, as well as controlling the curric-
ula of the National Intelligence School. The intelligence agencies are obliged to
submit to the Joint Committee upon its request every internal regulation, doc-
trine, and organic-functional structure (article 35).
Overseeing Secret Budget and Expenditures

A key feature promoted by legislators was legislative control and oversight of
intelligence secret budget and expenditures. As mentioned above, the law sets
out specific powers related to this matter. The Joint Committee is competent to
oversee and control the secret budget assigned to the national intelligence system
agencies. For this purpose the Committee may intervene in the discussion of the
national budget bill proposed by the executive to Congress; the executive is
obliged to submit every document as needed, particularly the amounts approved
or expended by each agency and a classified appendix comprising the purpose,
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program, or subject of the expenditures. In spite of the lack of congressional

experience in the exercise of secret expenditures oversight, the Joint Committee
has full legally granted powers to exert effective democratic control over the
intelligence sector. Time will show if the ‘‘power of the purse’’ principle is appli-
cable to Argentinean congressional culture.
Parliamentary Investigations and Other Features

The investigative experience of the legislative has been scarce, scandal-driven,
and unsystematic. In the field of intelligence, the main precedent is the action
undertaken by the Joint Special Committee in charge of monitoring the judicial
investigations of the terrorist bombings against the embassy of Israel and the
AMIA building. During the period 1997–1999, two public reports were issued
that included recommendations on intelligence reform. Yet there has been no
opportunity to test the investigative powers of the Joint Committee based on
article 32 of the National Intelligence Law. These powers allow the Joint Com-
mittee, for example, to initiate an investigation based on a complaint or on con-
clusions of their own work. As mentioned by Senator Daniele, once the
Committee was established, the first task carried out by legislators and advisors
was the drafting of internal rules of procedure of the Joint Committee; at the
present time the Joint Committee is fully prepared to handle and store sensitive
information. To fulfill the authority granted by article 34 to check and analyze
information regarding the interception of communications and to ensure that
such warrants are consistent with judicial requests, the Joint Committee estab-
lished a special subcommittee by internal ruling.
As with every congressional committee, the internal rulings of the Joint Com-
mittee stipulate that there should be weekly meetings of a secret nature. An
administrative secretary chosen by its president and appointed by vote of its
members runs the daily work of the Joint Committee. Each Committee member
can appoint an advisor who will be a congressional staff member. The Joint
Committee can also hire administrative personnel—four to eight people—
selected from within the congressional personnel payroll. The internal ruling of
the Joint Committee calls for the permanent education of these advisors in those
tasks to be performed by the Committee.
Challenges to Legislative Oversight

The Joint Committee for the Oversight of Security and Intelligence Agencies and
Activities was created in 1993 and remained active until 2001 when it was abol-
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ished with the enactment of the new law. The previous congressional experience
lacked independence from the executive and with the new law was granted pow-
ers that gave full access to information about the security or intelligence agency’s
activities. The National Intelligence Law provided for a minimum scheme for the
work of the Joint Committee based on these requirements:
To request the organic–functional structures of the agencies of the national

intelligence system, as well as all the regulations in force—including intelli-
gence and counterintelligence doctrines
To require periodic reports on the secret budgetary and expenditures execu-
tion of each intelligence agency
To request the set of intelligence requirements (essential elements of infor-
mation; other intelligence requirements), the plans for collection of infor-
mation, and other documents concerning analysis of information
To ask for periodic reports on the following: operations of intelligence and
counterintelligence, protecting the sources and methods; all interceptions of
private communications; other activities of intelligence in support of judi-
cial investigations; and counterintelligence and counterespionage activities
and operation
Consistent with articles 33.4 and 37.4 of the law, the Joint Committee annually
submits a secret report to the executive, as well as to both chambers of Congress.
Article 36 states that no public document issued by the Joint Committee must
reveal information that may harm intelligence activities and affect domestic
security and national defense. Astonishingly, the law makes no reference to a
public report to be periodically issued by the Joint Committee. As of this writing,
the Joint Committee had not yet issued its first annual report, which is in prepa-
ration.
At this writing, the Joint Committee has not been active long enough to raise
conclusions about its pros and cons. Although its membership reflects the spec-
trum of political parties, in terms of check and balances the prevalence of the
majority may lessen the work of the Joint Committee with the presidency of the
Committee being held by a member of the Justicialist party. It is important to
note that the powers to exercise control and oversight of intelligence budget and
expenditures granted by law have no precedent in the modern history of the
country. As Senator Daniele says, only after the enactment of the 2001 National
Intelligence Law 25520 can it be affirmed that the needed powers are available to
engage fully in parliamentary control. The proactive capacity of the Joint Com-
mittee has yet to be proven.
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Recent Trends
A resolution issued by the Anti-corruption Office25 asked for more transparency
in the management of secret accounts and considered that intelligence legislation
has weaknesses as far as requirements of registry of expenditures, specialized
control, public access to information, and in relation to the judicial control of
the legality of those acts as well as to access on the part of the judges to relevant
information for their cases.26 It is important to mention that this resolution
included a draft proposing several amendments to the 2001 National Intelligence
Law 25520.
In May 2003, President Nestor Kirchner (elected in 2003) posted Sergio Ace-
vedo—a member of Congress representing the province of Santa Cruz, which is
that of the president—as intelligence secretary. Recently, Acevedo stressed the
need to exclude the agency from acting in support of judicial investigations and
to assign this role to criminal intelligence. He considered this a matter of legisla-
tive reform.27 As a relevant precedent, President Kirchner exercised, by decree,
executive control on the declassification of information concerning the judicial
investigation of the AMIA bombing, allowing several top intelligence officials to
answer any judicial inquiry. By October 2003, a ‘‘secret reform’’ of the intelli-
gence secretariat was leaked to the press. According to a newspaper report,28 it
consisted of a dismissal of 160 agents, to be followed by a new internal structure
and profile and by new curricula and professors for the National Intelligence
School. Also, to avoid past practices of increasing secret expenditures, the execu-
tive would submit to Congress the real figure for the 2004 secret budget, in com-
pliance with the National Intelligence Law. According to the same report, the
directorate for Judicial Observations, belonging to the Secretariat of Intelligence,
and in charge of the interception of communications, would be transferred to
the judiciary. For this purpose, in the near future the president will submit a bill
to Congress.
Conclusions
Voices of warning have been raised concerning ‘‘. . . [t]he possibility [that] exists
that democratically elected civilians may not in fact be interested in controlling
the intelligence apparatus in the new democracies.’’29 Argentina has gone
through a long process to develop a legal and democratic framework for the
intelligence sector. A remarkable political will was present notwithstanding the
serious political and economic crises that the country suffered during recent
years. Several conclusions can be made about following the approach suggested
for this study:30
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Intelligence agencies are established by legislation. Their powers and limits

are clearly defined.
The most feared intrusive technique—interception of private communica-
tions—is under executive and judiciary control.
Legal restrictions on collection of information regarding the inhabitants
become safeguards for the rule of law and human rights protection.
Transparency appears for the first time associated with the intelligence sec-
tor because the law unveils several aspects of intelligence activities previously
unknown either to executive officials and legislators or to the public.
Secret budgets and expenditures are subject to legal accountability mecha-
nisms to be performed by a congressional committee.
Parliamentary oversight has been formally revamped and since the new law
a Joint Committee addresses intelligence activities and organizations with
significant powers.
The new legislation has not been in force long enough to make an evaluation of
its benefits or weaknesses. The severe social and economic crisis suffered by
Argentina after December 2001 appeared to be a worst-case scenario for achiev-
ing results in the field of congressional oversight on intelligence. The improve-
ments in the intelligence legislation must not be seen as a panacea. Taking into
account that the two ministerial intelligence agencies are in an embryonic stage,
the intelligence system is still under construction. In any case its history is still
to be written.
Nevertheless there are several aspects not covered by legislation, such as an
independent supervision mechanism at the executive level, a detailed process for
raising complaints, and a specific procedure for granting authorization to con-
duct other intrusive techniques. There are other aspects to change, such as the
predominance of the executive over the intelligence sector in spite of the new
legislation. Surely a better law is desired; but the 2001 National Intelligence Law
25520 was the one approved after a broad-spectrum political consensus was
reached. The ability to exercise all those functions granted by law will be an indi-
cator not only of the political will to oversee the intelligence sector, but also of
the maturity of Argentina’s democracy. It still remains to be proven if there exists
political willingness among legislators to exert effective oversight and among
executive officials to improve intelligence reform.
Several Argentinean authors, all sharing similar involvement in the legislative
debates since the 1990s,31 agree in their writings and speeches that this period is
a unique opportunity to shape a new intelligence culture, leading to a new and
democratic interface between policy and intelligence anchored in confidence,
professionalism, mutual learning, and adaptability, with clear roles and responsi-
bilities and under strict controls. The intelligence sector of the new century
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appears to be markedly different from previous decades and from that of the
period of military rule. Nevertheless, there is a long way to go to establish a new
culture and practices in the intelligence sector in general and in the oversight
function in particular.
Notes
1. According to article 1 of the National Constitution, Argentina adopts the federal
republican representative form of government. The president of the nation is the head
of the nation, head of the government; and he is politically responsible for the general
administration. Article 44 [Legislative Power] states that the legislative power of the
nation shall be vested in a Congress composed of two chambers, one of deputies of the
nation and the other of senators for the provinces and for Buenos Aires City.
2. Thomas C. Bruneau, ‘‘Controlling Intelligence in New Democracies,’’ International
Journal of Intelligence and Counterintelligence 14 (3) (June 2001): 331.
3. The terms ‘‘oversight,’’ ‘‘review,’’ and ‘‘control’’ are used hereafter as stated by
Marina Caparini in Challenges of Control and Oversight of Intelligence Services in a Liberal
Democracy, paper presented at the Workshop on Democratic and Parliamentary Oversight
of Intelligence Services (Geneva, October 2002), 5; and Hans Born, Democratic and Parlia-
mentary Oversight of the Intelligence Services: Best Practices and Procedures, paper presented
at the Workshop on Democratic and Parliamentary Oversight of Intelligence Services,
(Geneva, October 2002), 9–10.
4. Jaime Garreta, ‘‘El Diseño de un Nuevo Marco Jurı́dico Regulatorio para la Activi-
dad de Inteligencia del Estado en la Argentina,’’ Security and Defense Studies Review 2 (2),
(2002): 270.
5. In accordance with their authority to collect information or not, these agencies can
be classified into two types: organs, those agencies with no collection means; and organ-
isms, agencies with collection means which can perform all the steps of the intelligence
cycle.
6. The National Gendarmerie and the Argentine Coast Guard.
7. Article 35 specified that: ‘‘The committee shall verify that the performance of the
agencies and organizations referred in article 33 is adjusted strictly to the constitutional,
legal and regulating norms in force, stating the strictly observance and respect of the
National Constitution individual guarantees, as well as of the measures contained in the
Human Rights American Convention, known as ‘San José de Costa Rica Agreement’ and
included in our legal arrangement through the law No. 23.054.’’
8. Garreta, El Diseño, 269.
9. Eduardo Estevez, Argentina’s Intelligence after Ten Years of Democracy: the Challenge
of Reform and Congressional Oversight, paper, Intelligence Resource Project, Federation of
American Scientists (Washington, D.C., 1993).
10. An order to update intelligence files given by the Ministry of Interior and executed
by elements of national and provincial security forces was leaked to the press, triggering
that decision as a matter of democratic control.
11. The law comprises fifty-three articles arranged in ten titles—general principles,
protection of rights and guarantees of the inhabitants of the nation, intelligence agencies,
national intelligence policy, classification of information, interception and seizing of com-
................. 11310$ $CH9 05-16-05 11:38:03 PS PAGE 178

munications, personnel and education, parliamentary control, criminal provisions, and

transitional and complimentary provisions.
12. Defined as ‘‘. . . the group of functional relations of the intelligence agencies of the
national state, under the direction of the Secretariat of Intelligence for the purpose of
giving assistance to decision-making in the field of foreign and domestic security of the
nation.’’
13. Article 10, 2001 National Intelligence Law No. 25520.
14. Title VI—Interception and Seizing of Communications, articles 18 and 19.
15. Article 4.
16. Under articles 222 and/or 223 of the Penal Code (article 17).
17. This article states that ‘‘Processing of personal data for the purposes of national
defense or public security by the armed forces, security forces, police departments or
intelligence agencies, without the consent of the parties involved, shall be limited to those
events and data categories necessary for strict compliance with the missions legally
assigned to them for national defense or public security purposes, or to fight against
crime. In such cases, files shall be specified and identified to such effect, and they shall be
classified in categories, according to their degree of reliability.’’
18. Article 18 of the National Constitution specifies: ‘‘The domicile may not be vio-
lated, as well as the written correspondence and private papers; and a law shall determine
in which cases and for what.’’
19. The mentioned paragraph (e) allows the Internal Security Council created by that
law to ‘‘. . . require of the intelligence organizations, either civilian national or provincial,
and of the security forces and police, all necessary information and intelligence, which
must be supplied.’’
20. As described by Born, 2002, 5.
21. Editorial, La Nación, July 14, 2002.
22. Title VIII, 2001 National Intelligence Law 25520.
23. Interview, Buenos Aires, August 15, 2003.
24. This includes: (a) analysis and evaluation of the activities, functions, and organiza-
tion of the National Intelligence System regarding the implementation of the National
Intelligence Plan; (b) description of the oversight and control activities performed by the
Joint Committee when fulfilling its functions, as well as the explanation of the grounds for
performing them; (c) recommendations for improving the performance of the National
Intelligence System.
25. An independent office of the Ministry of Justice, Security and Human Rights.
26. Officina Anticorrupción, ‘‘Resolución del 11 de abril de 2003. Ministerio de Jus-
ticia, Seguridad y Derechos Humanos,’’ Buenos Aires 2003, 1–3.
27. Interview with Sergio Acevedo, La Nación, September 8, 2003, 9.
28. Anonymous, ‘‘Echaron a más de 160 espı́as de la SIDE,’’ La Nación, October 19,
2003, 9.
29. Bruneau, ‘‘Controlling Intelligence,’’ 23.
30. Ian Leigh, Democratic Control of Security and Intelligence Services: A Legal Frame-
work, paper presented at the Workshop on Democratic and Parliamentary Oversight of
Intelligence Services (Geneva, October 2002), 8–17.
31. Such as Jaime Garreta, Pablo Martı́nez, Marcelo Saı́n, José Manuel Ugarte, and the
present author.
................. 11310$ $CH9 05-16-05 11:38:04 PS PAGE 179

10
The Role of the Security Services in
Democratization: South Korea’s
Agency for National Security
Planning
Jonathan Moran
T his chapter analyzes the system of oversight and accountability with regard
to the National Intelligence Service (NIS).1 The NIS is the premier intelli-
gence/security organization in the Republic of Korea (hereafter South Korea)
with responsibility for internal and external national security. The NIS was for-
merly known as the Agency for National Security Planning and before that began
operation as the Korean Central Intelligence Agency.
An analysis of oversight and accountability of intelligence cannot be under-
taken without setting the NIS in its political, legal, and historical context. This
context highlights the remarkable progress of reform of the security establish-
ment in South Korea since democratization. A sustained period of military-
backed rule lasted from 1961 to 1987. The sheer size of the security establish-
ment, erected in the service of an extensive definition of national security, led
some observers to question the possibility of democratization. However a
democratization process, instituted in 1987–88, has been successful—there have
been repeated National Assembly elections, local autonomy was introduced in
1995, and Korea’s fourth presidential election in succession took place in 2002.
As part of this process the military and security establishment has been subjected
to legal and organizational reform and to popular scrutiny.
However, this context also highlights the powerful position that the intelli-
gence service held in Korean politics, a position that is still evident. Although
— 180 —
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The Role of the Security Services in Democratization 181
democratic reforms have constrained the formerly extensive role of the security
services in some areas, the NIS continues to play an evident role in the Korean
polity. There is reason for this: requirements for national security with regard to
North Korea are a factor in the significant NIS role in domestic affairs. The con-
tinuing external threat from North Korea has ensured that security issues and
thus intelligence organizations have remained central in post-authoritarian poli-
tics. However, NIS legal and paralegal operations are in evidence in the overall
political process and are evident in the mainstream political process. A number
of political corruption scandals in South Korea appear to involve NIS personnel
at both high and low level. These legal and paralegal activities highlight the need
for effective oversight.2
An analysis of the context of South Korean politics highlights the fact that
problems with intelligence agency operations cannot be traced to weak oversight
alone. The strength of the executive, the extensive national security legislation,
the role of ‘‘network’’ or unofficial politics, and the politics of national security
are other factors which provide the context for NIS power and a lack of oversight
that the existing system of parliamentary oversight cannot be expected to
remedy.
Context
To understand the role of intelligence agencies and their oversight it is necessary
to understand the role of political power and its effect on law in South Korea.
The development of political power in South Korea saw the creation of a power-
ful intelligence establishment. This dominated the development of law in South
Korea.
South Korea became a sovereign nation in 1948. A period of democracy last-
ing from 1948 to 1961 ended in a military coup. From 1961 to 1987 the military
effectively ruled South Korea. During this period the role of the intelligence
establishment was massively expanded. National security was a priority. North
Korea and most domestic dissent was regarded as a national security threat.
Following the military coup of 1961, which terminated the democratic period
of Syngman Rhee (1948–1960) and Chang Myon (1960–61), the South Korean
concept of national security drew on the Japanese notion of ‘‘Rich nation, strong
army’’—industrial development as the guarantor of military capability, social
cohesion, and thus national security. Labor was repressed and excluded. Busi-
nesses were also controlled and threatened in the development of ‘‘national capi-
talism.’’ Other civil society groups were tightly regulated, as was the media.3 In
the early 1970s South Korea’s ‘‘managed democracy’’ was replaced by a national
security state due to a domestic political crisis coupled with the worsening exter-
................. 11310$ CH10 05-16-05 11:38:03 PS PAGE 181

nal situation (increased North Korean activity and Nixon’s planned withdrawal
from direct U.S. involvement in East Asian security). The need to marshal society
in the Heavy Industry ‘‘Big Push’’ of the 1970s, another component of national
security, also played a role.4 The existing large security establishment was
expanded and its power increased, a power that remained intact until democrati-
zation.
Thus during the 1970s, the state erected a national security infrastructure of
incredible scope and power centered around a strong executive. The security ide-
ology of Park Chung Hee, which involved disinformation, propaganda cam-
paigns, and the militarization of society remained an influential one even after
his death. Groups opposing national development and the adoption of a strong
front toward North Korea—and the two were often viewed as combined—were
defined as subversive; for example, labor and student organizations. The subse-
quent repressive regime of Chun Doo Hwan (1980–1987) built upon this system.
The military remained the backbone of the political system, and the intelligence
apparatus operated throughout the political system.5
The legal system developed in the shadow of national security politics. Laws
did not function as guarantors of individual or collective rights. Law was subor-
dinated to political authority and the strategy of the moment. The National
Security Law (NSL), inherited from Syngman Rhee, contained an extensive
definition of national security, with severe penalties for generously defined ‘‘anti-
state’’ activity. Most anti-government actions and expressions could be con-
strued as ‘‘aiding the enemy’’—that is, North Korea. A series of subsequent laws
set strict limits and penalties on a wide range of political behavior which could
be deemed a threat to national security, or—very closely linked to this—a threat
to social/political order.
Despite this unpromising context South Korea democratized in 1987. Remark-
ably successful economic development had given rise to various groups in civil
society such as the middle class and strengthened others, such as trade unions,
student groups, and activist groups. Although still weak compared to the strong,
pervasive state, these groups could at times effectively mobilize to force political
change: Sustained protests by the civilian opposition forced Chun Doo Hwan to
institute a genuine democratization process.6 President Roh Tae Woo was elected
in 1987; followed by Kim Young Sam, elected in 1992; Kim Dae Jung, elected in
1997; and Roh Moo-hyun, elected in 2002.
The Development of the

National Security Establishment
In terms of organization, following the military coup of 1961 the existing intelli-
gence establishment was reorganized and expanded, with military agencies pro-
................. 11310$ CH10 05-16-05 11:38:04 PS PAGE 182

viding the backbone. The Korean Central Intelligence Agency (KCIA), founded
in 1961, had responsibility for domestic and international intelligence-gathering
and anti-subversion, and stood as the main organization investigating crimes of
subversion as defined in the NSL and other security legislation. Built up from the
3,000-strong Army Counter Intelligence Corps, by 1964 the KCIA had 370,000
employees.7 It grew into a power base in its own right during the late 1960s and
1970s, with each of its directors challenging for influence in the government
structure. In 1979 the then head of the KCIA, Kim Chae Kyu, assassinated Presi-
dent Park Chung Hee (in power from 1961 to 1979), after which the KCIA
underwent a name change to the Agency for National Security Planning (ANSP)
and reform under President Chun Doo Hwan. Its authority re-emerged in the
1980s, though this time not as an independent power grouping but under the
president’s wing, as it had been in the early 1960s.8 The agency in its various
forms has had twenty-seven directors, twenty of whom have come from the mili-
tary.
Chun Doo Hwan’s military coup in 1980 led to an increased role for military
intelligence in the form of the Defence Security Command (DSC), Chun’s initial
power base. Chun had headed the DSC under President Park Chung Hee and
used it as a platform from which to mount a coup in 1979–80, following Park’s
death.9 Modeled on the example of centralized political organization set up by
the Nationalist Chinese in Taiwan, the DSC had been created to monitor activi-
ties inside the military itself and to prevent external subversion of the military.
In practice, through its Directorate 2, the DSC expanded into the surveillance of
political parties, universities, and the media.10 Almost every media organization
contained DSC officials.11 Finally, in 1970 the Combat Police Organization Law
established a combat division to counter infiltration and engage in riot duties.
Although subsidiary to the military and intelligence agencies, the division consti-
tuted a powerful grouping within the state.12 Generally, ‘‘the police constitute(d)
a highly centralized national paramilitary force directly linked to the President
of the Republic.’’13 Chun Doo Hwan expanded the combat police from 20,000 to
120,000 during the 1980–1986 period.14
External Threat—North Korea

South Korea faced a consistent external threat from North Korea (Democratic
Peoples Republic of Korea). Following the termination of the Korean War in
1953, the North embarked on a series of probing missions, involving commando
raids on the South Korean presidential residence, the Blue House, in 1968, dig-
ging tunnels under the DMZ in the 1970s, and terrorist attacks in the 1980s both
abroad and on South Korean airlines. In addition, lower-level North Korean
................. 11310$ CH10 05-16-05 11:38:04 PS PAGE 183

infiltration has included spy missions, the establishment of long-term agents in

the South, and the funding of political movements and individuals sympathetic
to the North. This external threat cannot be underestimated as a variable affect-
ing intelligence operations and reform.
Reform and Democratization: Reducing

the Remit of the Security Services
Following democratization, reforms were aimed at the security/intelligence
establishment. Under President Roh Tae Woo (1988–1993) the ANSP was gradu-
ally weaned away from domestic overt and covert operations. In 1988 the agency
removed its agents from the Seoul Criminal Court and Supreme Court.15 Seventy
percent of the top echelon were replaced by younger, more professional officers,
a process continued by Kim Young Sam.16 Outside pressure also contributed to
reform. The 1988 National Assembly elections had seen the ruling party lose its
majority. Opposition parliamentarians pressured the government to accelerate
reforms, which aided those reformers in the ruling party itself. Though the ruling
party regained its majority in 1990, other figures continued the pressure to
reform, particularly the thirty or so generals and ex-security-service figures who
had joined the opposition following democratization.17 These actors attempted
to bring the ANSP under parliamentary scrutiny, which would go some way
toward the establishment of an effective oversight committee.
The NSL was reformed in 1991 to limit the applicability of some of the more
extensive prohibitions on political activity, since much normal political activity
had been classed as a threat to national security under the NSL. Further, after six
years of negotiations (1988–1994) between the opposition and the government,
the National Security Planning Agency Act stripped the agency of powers to
investigate crimes defined in article 7 (praising or sympathizing with ‘‘anti-state’’
groups) and article 10 (failing to inform the authorities of ‘‘anti-state’’ group
activities under articles 3, 4, and 5.1) of the National Security Law, which had
given impressive scope for Agency investigations of domestic political and social
groups. (However, these powers were restored with the support of the executive
in 1997.)
Parliament was also empowered to review the ANSP’s budget, important
because according to opposition reports it spent nearly 2 percent of the national
budget in 1992.18 Under Kim Young Sam an Intelligence Committee was estab-
lished in the National Assembly to supervise the ANSP’s budget and planning.19
Kim also continued the reforms aimed at weaning the ANSP from excessive
domestic political intelligence activities. After assuming office, Kim named Pro-
fessor Kim Deok of Hankuk University of Foreign Studies as ANSP director. Kim
................. 11310$ CH10 05-16-05 11:38:05 PS PAGE 184

Deok recalled agents inside social, political, and economic organizations,

instructing them to keep to their legally defined activities20 and further reduced
their remit of domestic operation.21 In 1992, Lee Jong Chan, former officer in
the ANSP and then ruling party presidential candidate, had said: ‘‘The NSP has
to change from being a SAVAK to a Mossad,’’ that is, to a professional agency
with a demarcated legal-institutional footing.22 This had certainly been the theo-
retical result of the reform processes initiated since 1987, but the extent to which
this occurred in practice will be examined in later sections.
The election of Kim Dae Jung as president in 1997 facilitated more change.
An opposition politician of long standing, Kim Dae Jung had been the target of
the intelligence agency in the 1970s and 1980s, and had been sentenced to death
for anti-state activities. Kim appointed Lee Jong Chan as ANSP director. Lee was
a reformist politician who had previously been an ANSP official. Lee replicated
the reforms of Kim Young Sam in the early 1990s. With executive backing, Lee
removed top officials and encouraged others to tender resignations. As a result,
nearly twenty-five top officials left the ANSP. Other officials were reshuffled. In
1999 the ANSP’s name was changed to the National Intelligence Service (NIS).
Lee began a process of organizational change, attempting to further move the
ANSP away from domestic operations and criminal investigation and toward
intelligence gathering and the analysis of international (North Korea and others)
developments and threats.
Roh Tae Woo reduced the DSC’s influence and made its command a less pres-
tigious post.23 DSC agents were withdrawn from the National Assembly in 1988.24
As with the ANSP, opposition pressure increased the reform drive. The DSC was
first subjected to parliamentary scrutiny in 1988, and then again in 1993, this
latter process led by a ruling party politician who had once been interrogated and
tortured by DSC agents. Kim Young Sam intensified the reforms, immediately
replacing the commander of the DSC and moving the DSC under the jurisdiction
of the Defence Ministry, rather than the presidency, and planning a reduction in
the DSC’s staff from six thousand to under five thousand.25 From 1993 the DSC
did a successful job of dismantling the Hanahoe and Aljahoe societies. These
were semi-secret groups based around military class and regional ties. Forty
other unofficial societies inside the military were dismantled.
Reform of the intelligence bureaucracy thus involved the demarcation and
limitation of the operational area of intelligence activities, a necessary task since
the remit of the ANSP and DSC had been so broad in the past. Reforms were
instituted from the presidency, and through pressure by the opposition and
some ruling party politicians themselves, some of whom had formerly been in
the intelligence services or military. There is no doubt these reforms have had a
substantial effect in contributing to the political opening of the system. Not only
were security agency operations limited in law, they are open to challenge. Per-
................. 11310$ CH10 05-16-05 11:38:07 PS PAGE 185

haps one sign of the changes lies in the number of former members of the mili-
tary and ANSP who have joined opposition parties and who can comment and
provide evidence on intelligence operations. The ruling party has also predictably
taken in former members of the ANSP but also former radicals who were subject
to the agency’s attentions in past decades. Further, the actions of the ANSP have
become more open to scrutiny by the media. As the subsequent sections will
demonstrate, some security service operations have been exposed through a
series of public scandals involving the presidency, the ANSP/NIS itself, and the
political elite.
These scandals highlight the fact that there are important areas of NIS struc-
ture, remit, and operations, which could be the subject of reform. While the
debate over reform often provokes political disagreement, the idea that the NIS
requires some level of reform often stretches across the political spectrum.
The Current Situation

The NIS
The basic structure of the NIS consists of one director, three deputy directors,
and an executive director. The executive director heads administrative support.
The three deputy directors each head one of the three major sections of the NIS:
international affairs; North Korea affairs; and domestic affairs. Each section is
itself divided up into relevant bureaus. For example, the domestic affairs section
has an anti-communism bureau, investigating long-term DPRK agents inside the
South (and an economic department within the anti-communism bureau); a
political department, which gathers intelligence on political fund gathering (a
source of corruption and links to the DPRK) and public/political individuals;
and a media department, which collects information on TV and newspaper com-
panies and output.
Each section is responsible for collecting information, planning and coordina-
tion, threat assessment, and counterintelligence and criminal investigation. The
NIS has powers to get information from ministries and other government agen-
cies. It has criminal investigation powers in areas related to national security. In
practice this is a wide remit, since laws covering national security, such as the
National Security Law and the Military Security Protection Law, are wide in
scope. The NIS has between seven and nine thousand members. The decline in
numbers from the 1960s and 1970s reflects the decrease in military influence
over the Korean political system. In previous decades the direct control and sur-
veillance of economic and political and social institutions and actors was evident.
The KCIA was a major political actor in its own right. Over recent decades, and
................. 11310$ CH10 05-16-05 11:38:08 PS PAGE 186

particularly since democratization, the size of the intelligence establishment has

been reduced.
The NIS works with the Supreme Public Prosecutor’s Office, whose Public
Security Department deals with national security and espionage cases. South
Korea operates a U.S.–influenced system of criminal investigation in that the
police and NIS cooperate with an independent prosecutorial organization. The
Prosecutor General’s office reports to the National Assembly on violations of
the NSL.
The NIS is separate from the military. The military has its own intelligence
agency, the Defense Security Command (DSC). Both agencies may work together
when necessary. The Defense Ministry nominates the head of the DSC, whom
the president normally accepts. In 2003 for the first time the recommendation
was rejected, as the president felt the nominated head did not agree with the
president’s plans for intelligence reform.26 The NIS is separate from the police.
Where the agency and the police conflict the agency has priority.
Executive Control
The nature of executive control cannot be understood without reference to the
South Korean Constitution. The executive (the presidency) has significant
power. The power stems from the scope for executive decisions, particularly in
the area of appointments to government and the legal system. The legislature
(the National Assembly) has limited powers, although it can check the executive
in certain areas. The judiciary is to some extent overshadowed by the executive.
Whilst in national terms the presidency can become a ‘‘lame duck’’ administra-
tion due to perceived policy failure, crisis, and National Assembly and media
pressure, the executive remains a powerful force in the day-to-day operations of
government and state administration.
The main problem is that executive control of the NIS is strong in formal and
informal terms. The head of the NIS is appointed by the executive (the presi-
dent). Until recently the legislature (National Assembly) had no role in this. The
legislature now holds confirmation hearings but cannot block an appointment.
The NIS head can be removed by the president. The head of the NIS is a legal
person. The president receives intelligence briefings directly from the director-
general of the NIS. The president appoints a national security advisor, a cabinet-
level post, which is not subject to assembly approval.
What is also important is that the heads of the Office of National Tax Admin-
istration (ONTA), the National Police Agency (NPA), and the NIS were/are not
only appointed by the executive, they remain/ed personally close to the executive.
These posts remain executive appointments. The minister of justice is also
appointed by the executive and this official controls/influences whether the
................. 11310$ CH10 05-16-05 11:38:09 PS PAGE 187

prosecutor-general launches investigations. Thus the higher reaches of the

national security establishment are approved by the executive, and decisions on
criminal investigations related to national security are undertaken by individuals
appointed by the executive.
In informal terms the executive wields great influence over the NIS. There is
little or no transparency or accountability of the executive in its control of the
NIS. Despite Kim Young Sam’s policy of moving the ANSP away from domestic
political matters, the ANSP (renamed the NIS) was accused of attempting to
smear Kim Dae Jung before he was elected in 1997, and ANSP officers were con-
victed of corruption-related offenses involving the activities of important figures
in the executive and legislature.27 A recurring problem is the use of the NIS by
the president or his family members for illicit purposes. Such scandals have been
evident in all presidencies in the democratic era (1987–2002). Kim Ki-seop, head
of policy planning and coordination in the NIS under President Kim Young Sam
(1993–1997), worked with the president’s second son to facilitate political influ-
ence peddling,28 while the former director of domestic intelligence at the NIS and
his subordinate were convicted of offenses concerned with bribery and exercising
undue influence on behalf of a business figure during the Kim Dae Jung adminis-
tration (1998–2003).29
The NIS still targets political opponents of the executive such as politicians,
political activists, the media, and trade unionists.30 The NIS has been found to
have illegally telephone-tapped media figures, National Assembly politicians,
presidential advisors, and businessmen. Recently, the opposition Grand National
Party alleged that the NIS ran three thousand telephone taps per day.31
There are few agreed standards of performance for results or compliance with
law and policy. Parliament, parts of the media, and interested civil society groups
currently see this as an area in need of reform.
Thus Korea does not face the problem sometimes evident in other nations
whereby the intelligence agency is effectively out of government control. Indeed,
the government is in one sense a source of the problem in that executive control
of the NIS is evident, and thus the main checks in existence are from the execu-
tive itself. The executive, through the minister of justice, can encourage the pros-
ecutor’s office to initiate investigations into senior NIS figures. In addition, until
it was abandoned by President Kim Dae Jung in 2000, a special police unit,
headed by the senior presidential secretary for civil affairs, could initiate investi-
gations of presidential family members, senior government, bureaucratic, and
political (including opposition) individuals. This would cover their inappropri-
ate relationships with NIS officials. Incoming President Roh planned to revive
the unit.32
The current arrangements do not constitute a clear structure of accountabil-
ity, either politically or in terms of measuring agency efficiency. The relations
................. 11310$ CH10 05-16-05 11:38:10 PS PAGE 188

between the executive and the agency often remain personalized and secret.
What one might term network politics is influential. There is a lack of clarity in
roles and responsibilities and reporting. This is a subject of repeated calls for
reform.
Policy and Tasking

As mentioned, the fact of tight executive control of the NIS does not make sure
the agency functions properly; indeed, some pressures for intelligence agencies
to act improperly actually come from the executive or individuals close to the
executive. The work of the agency is influenced by executive/ministerial/policy
formal and informal networks, and the relations involving the agency may be
personalized and thus operate around formal channels.
The NIS is responsible for national intelligence assessments. National intelli-
gence assessments do not generally stem from interdepartmentally agreed-upon
assessments; some organizations and individuals are important in influencing
national intelligence assessments. These include the executive, certain advisors,
senior officials in the NIS itself, military intelligence, and other influential indi-
viduals who may not occupy a relevant post but are important advisors. The NIS
has been criticized in terms of some assessments of North Korean activity, but
the NIS is a competent agency in terms of preventing internal and external sub-
version, and this must rest on an efficient intelligence gathering and tasking
operation.
Bilateral relations are authorized by the executive and supervised by the exec-
utive. However, the extent to which these relations are not organized along pro-
fessional lines was evident in the scandal surrounding the development of links
with North Korea. The former head of the NIS was given an eighteen-month
suspended sentence for his role in facilitating an illegal cash transfer to North
Korea to encourage North Korea to host an inter-Korean summit.33
There is no clear framework for the direction of intelligence agencies’ work
related to the needs of government and its ‘‘customers.’’ A national security
model is influential: the executive is central in deciding intelligence priorities as
well as the NIS itself. The NIS has an impressive record in countering external
and internal subversion. Although there have been examples of penetration of
South Korean society by agents working for the North, and examples of terrorist
attacks and other incursions around the border, overall the record of the NIS
and its predecessors has been effective by any reasonable standard. NIS work
responds efficiently to executive priorities and to its own well-developed percep-
tion of national security. The question is whether these priorities are always
appropriate.
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National Security Legislation—Too Wide a Remit?

Some controversies over intelligence agency activities in democracies rest on
whether the actions of the agencies in question are legal.34 In South Korea the
central controversy is the very wide legal scope provided for NIS actions by the
relevant national security laws, such as the National Security Law35 and the Mili-
tary Security Protection Law.
The main law covering the powers of the intelligence agencies is the NSL. This
law is very wide in scope and covers an extremely wide definition of offenses,
which the NIS is empowered to investigate. Provisions of Article 7 of the NSL
are held to be in contradiction to the International Covenant for Civil and Politi-
cal Rights, to which South Korea assented in 1990.36
In addition many NIS operations do not appear to require internal adminis-
trative authorization. The most intrusive measures do not require the minister’s
signature. They require approval from the relevant senior official within the
domestic or foreign branch of the NIS. The NIS also undertakes acts that its
officers know to be illegal, such as telephone tapping and opening of individuals’
mail.37
Theoretically there is supposed to be regular feedback on the use of powers
within the NIS. However, one of the main complaints concerning the NIS is that
the senior management are often circumvented by internal unofficial networks
of agents whose loyalty is based on regional and school alumni ties, both of
which are extremely important in South Korea.38
Thus, in terms of the laws governing national security, there are not clear lim-
its that balance ministerial control but also protect against political abuse. This
is the case in legal terms and also unofficially. Legally, the NIS is bound to the
executive; legally, the executive has great political power. Legally, the NIS has
great power. Unofficially the executive has significant influence over the NIS, and
the NIS itself has significant influence in terms of investigative and other actions.
This raises non-legal political and security judgments as to the appropriate levels
of accountability. Where external agencies such as the Constitutional Court have
made judgments about the infringement of human rights they appear to be effec-
tively ignored.
Independent Supervision
At present independent supervision of the NIS is weak. There is an Intelligence
Committee in the National Assembly, which oversees the main issues relating to
NIS operations (see the discussion that follows). However, there are no indepen-
dent committees or boards mandated to control and supervise NIS operations.
There is a government proposal to place the NIS under the remit of the Board of
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Audit and Inspection, but this alone is not sufficient to ensure that professional
standards are maintained and efficient methods of operation are developed. Sig-
nificantly, many of the noticeable debates concerning the role of the NIS arise
from a nonspecific source such as National Assembly members, media reports,
and the actions of civil society groups.
Legislative Oversight Bodies

The National Assembly: Toothless Tiger?
Parliamentary oversight of the NIS has been—and still is—weak. As mentioned
previously, the heads of the Office of National Tax Administration, the National
Police Agency, and the NIS were not only appointed by the executive and
remained personally close to the executive, their appointment and operation was
without effective sanction from Parliament. There was no confirmation hearing
for the head of the NIS before the National Assembly until 2003, and the execu-
tive can still proceed with the appointment despite National Assembly opposi-
tion. The National Assembly Intelligence Committee can call the nominated
head before it for a hearing but, like the full National Assembly, cannot block his
nomination. Other senior NIS appointments are not subject to National Assem-
bly confirmation hearing.
The Parliamentary Oversight Committee

The National Assembly’s Intelligence Committee was formed in 1994. It is a
standing committee with twelve members. Numbers and functions are deter-
mined by Assembly regulations. The Committee has both ruling and opposition
party members; currently the Committee is composed of six ruling party (Mil-
lennium Democratic Party) and six opposition (Grand National Party) mem-
bers. The head is from the ruling Millennium Democratic Party. The members
elect the chairman, who controls proceedings and officially represents the Com-
mittee. The Committee examines bills relevant to national security and provides
commentary on these. It also holds hearings for individuals nominated for senior
positions in the NIS.
The Committee can interview members of the NIS. The results are not made
public. The exception has been the 2003 interview with the nominated head of
the NIS. The Committee does not have the power to subpoena witnesses.
The Committee receives reports from the NIS on intelligence matters. These
include reports on the national security situation both domestically and with ref-
erence to North Korea. There has been criticism of the quality of intelligence
presented to the Committee:
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There used to be a lot of second and third rate information first reported in the
media and then repackaged and delivered to the committee. —GNP Intelligence
Committee member Hong Joo-pyo39
In terms of inspecting premises, Intelligence Committee members or other

National Assembly figures apparently have limited scope to investigate interroga-
tion centers used for national security investigations. For example, the interroga-
tion chambers in the Seoul District Prosecutor’s Office were established in 1989.
They were only inspected twice in 1996 by National Assembly members and after
the death of a detainee.40
Despite its short history and limited remit/powers, the Committee has devel-
oped a higher profile on intelligence issues, including examination and comment
on various issues. Recently this culminated in the Committee producing a formal
report that was backed by a unanimous vote rejecting the nomination of Ko
Young-Koo as head of the NIS. The Committee also suspended its operation in
protest at this and one other nomination for the senior positions in the NIS, who
they view as having a history of academic sympathy with North Korea.41 How-
ever, the Committee reflects the weakness of the National Assembly generally in
relation to the executive. It is limited in calling the executive and the Intelligence
Service to account. Its powers of independent investigation are limited, and it
has little effective control over NIS budgetary matters. However, the Committee
is in its relative infancy.
Judicial Oversight by the Constitutional Court

The Constitutional Court was established in 1988 as a result of the democratiza-
tion process and acts as a body of judicial review. The court interprets the consti-
tution and interprets statutes in terms of their constitutionality. The court has
nine justices, serving terms of six years, which may be renewed. A topic of con-
cern is the fact that the Constitutional Court’s decisions are not adhered to in
practice. Since 1988 the court has struck down in whole or in part 269 statutes.
However, approximately fifty of these have not been changed by the National
Assembly. This figure includes more than twelve laws in the last two years.42
The Constitutional Court declared in an appeal judgment in 1992 that the
provision on the NSL which allows detention of suspects for fifty days before
charge was unconstitutional. The National Assembly has never reformed the NSL
in accordance with this or many other judgments on criminal investigation,
which the court calls unconstitutional.
Other Bodies and Mechanisms

Presidential Truth Commission
The Presidential Truth Commission on Special Deaths was established by then
President Kim Dae Jung in 2000. The legislation establishing it and providing it
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with powers was approved by the National Assembly. Its mandate ran until 2003
when its term expired. The Commission examined eighty suspicious deaths
under previous authoritarian governments, many allegedly involving the intelli-
gence agencies. This commission had more power than the Intelligence Commit-
tee. However, it did not have power to subpoena witnesses or government
officials. Nevertheless, fifty-three cases were completed, including twenty-four
convictions of agents of the KCIA and ANSP (previous forms of the NIS).
Twenty cases were left unresolved. According to members of the Commission,
the police, military, and NIS were uncooperative in producing relevant witnesses
and documents.43
National Human Rights Commission

Kim Dae Jung established a National Human Rights Commission, which exam-
ines relevant legislation, comments on it, and generally raises the profile of
human rights issues. However, it was ignored concerning the 2002 Terrorism
Prevention Bill, which it argued was unnecessary considering the existing wide
provisions of the NSL. This bill fell because of the subsequent presidential elec-
tion. There are also concerns at the commission’s lack of proactive power.44
Civil Society
South Korea has a tradition of vigorous civil society activity. Many civil society
groups have highlighted the lack of accountability of the Korean political system
generally, and of the National Intelligence Service in particular. Such groups
include the left-leaning Peoples Solidarity for Participatory Democracy (PSPD)
and Lawyers for a Democratic Society. The media, including mainstream news-
papers, have continually highlighted issues concerned with NIS accountability,
efficiency, and probity (including the role of serving and former NIS officers in
corruption scandals).45
In international terms, a range of organizations have focused their attention
on the operation of the NIS and the NSL, including Amnesty International and
Human Rights Watch. Amnesty International has particularly focused on the use
of the National Security Law and has produced a series of reports highlighting
the issues of the law’s extremely wide remit, its use to control political dissent,
and the cases of individuals sentenced under the NSL.
Civil society agencies in effect function as an ad-hoc form of accountability.
These groups, particularly the media, have often successfully pressured for inves-
tigations and prosecutions, on issues such as corruption and human rights. Of
course civil society activity itself raises general and specific problems: Civil soci-
ety groups are self-appointed; they are not themselves rigorously accountable.
Further, civil society groups are not a permanent regularized system of account-
................. 11310$ CH10 05-16-05 11:38:13 PS PAGE 193

ability designed to address specialist issues such as organizational efficiency,

organizational development, and professional evaluation.
Conclusions
The issue of NIS accountability to government and the public functioned as a
major issue in Korean politics before the 2002 presidential election and in its
aftermath.46 The issues of corruption and illegal telephone tapping were high on
the agenda and the subject of media and civil society and opposition political
comment. The new president, Roh Moo-hyun, promised reform of the NIS and
its operations. Thus, the continuing debate about intelligence reform highlights
the issues of NIS organization and accountability addressed in this report.
South Korea has made important progress in the areas of human rights,
reform of the actions of police and intelligence agencies, and oversight and con-
structive criticism of these agencies. This is particularly impressive given South
Korea’s political and legal history, which saw the military and the security and
intelligence establishment wield enormous power from the 1960s until the late
1980s. Despite the criticisms made in this chapter, the reforms that have taken
place in South Korea are, in this context, especially remarkable.
However, at present the system of oversight of the NIS within the executive,
the legislature, and the judiciary is weak. There is no credible independent struc-
ture of oversight. The main official oversight body is the National Assembly’s
Intelligence Committee. This body has a cross-party membership and has often
been vigorous in its criticisms. However, its powers are limited, it cannot reason-
ably be characterized as proactive, and its institutional capacity is limited. The
Committee’s powers should be strengthened.
Outside the legislature accountability and oversight could be increased by
strengthening existing bodies. During the presidential campaign it was suggested
that the Bureau of Audit and Inspection (BAI) could be involved in the manage-
rial and financial evaluation of NIS operations.47 The BAI is an independent con-
stitutional agency, which undertakes financial and performance audits of central
and local government agencies, government invested agencies, and agencies that
request audits. It reports to the executive and the National Assembly, and it can
recommend remedial action and reparation. However, this alone will not be suf-
ficient to develop a system of efficient tasking and coordination, and BAI
involvement should be restricted to matters of general public sector efficiency.
The BAI should not have access to classified intelligence product.
Procedures could be developed to ensure that Constitutional Court decisions
on national security related matters are given priority. The National Human
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Rights Commission’s powers could be strengthened, so that its recommenda-

tions of national security–related matters are binding.
Internal NIS reforms could further enable accountability to be developed; for
example, developing the service as an intelligence gathering and analyzing
agency, rather than an agency involved in criminal investigation. This should
reduce some of the controversies over NIS accountability by taking away contro-
versial areas of operation.
Ko Young-hoo, current NIS head, has stated: ‘‘It is not desirable for the intel-
ligence body to abandon all of its investigative authority, but the right to investi-
gate domestic related security crimes will be discarded.’’48 Thus powers to
investigate domestic subversion and the violation of security-related laws may
be transferred to the NPA and the Public Prosecutor’s Office(s). Other areas of
operation are being taken away from the NIS remit. For example, a new national
crisis bureau is to be established to collect and analyze information on national
crises and prepare prevention and reaction plans. Although NIS officials will play
a significant role, this was a task previously undertaken solely by the NIS.49 In
addition, the police are to expand their intelligence gathering and analysis func-
tions to identify possible areas of social and political conflict and develop
responses to these.50
But other more fundamental reforms are needed. These include legal reform
to the NSL to introduce a reasonable definition of national security; for example,
along the lines of that operating in Canada (See chapter 6 in this volume).
Further, at present the problem is that the level of accountability of the NIS
is fundamentally affected by South Korea’s system of government, political cul-
ture, and legal environment. These structural factors will govern the development
of accountability and oversight. South Korea’s political system overshadows
structures of accountability that may develop. That is, the power of the executive
is officially and unofficially strong. The president makes high-level intelligence
appointments, has a close relationship with senior NIS officials, receives direct
information, and makes input on intelligence operations. The NIS is closely
bound to the executive, both formally and informally. Thus, while pressure to
reform the NIS often comes from the executive immediately after an election,
this perpetuates the problem. Indeed, the current president, Roh Moo-hyun
(now facing impeachment over corruption and other issues), continued the pat-
tern of executive interference, dismissing a deputy head of the NIS in late 2003.
The need to reform the powers of the executive is one reason there is recurring
debate about the possibility of moving to a cabinet system of government in
South Korea. Civil society and the media remain important areas of unofficial
oversight and accountability that complement the weak executive and parlia-
mentary systems. Relying on the media/civil society groups and campaigns, how-
ever, is not an effective or stable system of oversight.
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Last but not least, an analysis of accountability of South Korea’s intelligence

services has to be understood in the current political and regional situation.
South Korea faces a very real security threat from North Korea. This threat oper-
ates on a number of levels—a clear conventional threat, a middle-level threat
from insurgencies, a threat from terrorist operations, and a more subtle threat
from espionage and subversion through agents and political movements in the
South. It is this context that must always guide judgments about accountability
and reform of intelligence in South Korea.
Notes
1. Website of NIS is www.nis.go.kr/app/eng/index [accessed March 19, 2005].
2. And also within East Asian political culture itself. Although there has been exten-
sive debate concerning the extent to which Western normative concepts of rights can be
applied to Asian nations (the ‘‘Asian Values’’ debate) the East Asian region does have an
indigenous discourse asserting rights of expression and association and so forth.
3. Yunshik Chang, ‘‘From Ideology to Interest: Government and Press in South Korea
1945–1979,’’ in Korean Studies: New Pacific Currents, ed. Dae-Sook Suh (Centre for
Korean Studies, University of Hawaii, 1994).
4. Joungwon Kim, Divided Korea: the Politics of Development (Cambridge, MA, and
London: Harvard University Press, 1976); and C. I. Eugene Kim, ‘‘Emergency Develop-
ment and Human Rights: South Korea,’’ Asian Survey 18 (4), (1978): 363–78; and S. J.
Kim, The State, Public Policy and NIC Development (Seoul: Dae Young Moonwhasa, 1989);
Edward A. Olsen, ‘‘Korea Inc: the Political Impact of Park Chung Hee’s Economic Mira-
cle,’’ in The Two Koreas in World Politics, eds. Tae-Hwan Kwac’, Wayne Patterson, and
Edward A. Olsen (Institute for Far Eastern Studies, Kyungnam University, 1983).
5. Young Whan Kihl, ‘‘Korea’s Fifth Republic: Domestic Political Trends,’’ Journal of
Northeast Asian Studies 1 (2) (1982): 38–55.
6. For an account of the South Korean democratization process see Chalmers John-
son, ‘‘South Korean Democratization: the Role of Economic Development,’’ Pacific
Review 2(1) (1989); and S. J. Han and Y. C. Park, ‘‘South Korea: Democratization at Last’’
in Driven by Growth: Political Change in the Asia-Pacific Region, ed. J. W. Morley (New
York: ME Sharpe,1993).
7. Kim, Divided Korea, 234.
8. Jonathan Moran, ‘‘The role of the Security Services in Democratization: An Analy-
sis of South Korea’s ANSP,’’ Intelligence and National Security 13 (4) (1998): 1–33.
9. Kim, The State, 1989.
10. Far Eastern Economic Review 1(4), 1993.
11. Author interview with K. Kaliher, Chief of Research, Office of the Special Advisor
to the C-in-C, United Nations Command, 8.11.1994. The opinions expressed were per-
sonal and not official. The DSC was dominated by members of the Hanahoe society, led
by Chun.
12. S.Y. Lee, ‘‘The Call for Reform of the Korean National Police Force,’’ in Korean
Public Administration and Policy in Transition Vol. One—Governmental Institutions and
Policy Process, eds. K.W. Kim and Y. Jung (Seoul: Korean Association for Public Adminis-
tration/Jangwon, 1993), 303.
................. 11310$ CH10 05-16-05 11:38:15 PS PAGE 196

13. Lee, Call for Reform, 307.

14. Kim, The State, 264.
15. U.S. Department of the Army, ‘‘Intelligence Agencies,’’ in Army Area Handbooks:
South Korea (n.d.), Washington, D.C.
16. Far Eastern Economic Review 30.12.1993–6.1, 1994.
sonal and not official.
18. Far Eastern Economic Review, 30.12.1993–6.1.1994.
19. Chin Mi-kyung, Political Change in South Korea: the Kim Young Sam Era, paper
presented to the 4th Korea Seminar, University of Newcastle, February 1994, 11.
20. Far Eastern Economic Review, 11.3.1993.
22. Quoted in Far Eastern Economic Review 15.10.1992.
24. U.S. Department of Army, Intelligence Agencies..
25. Far Eastern Economic Review, 28.10.1993.
26. Anonymous, ‘‘President vetoes choice for military intelligence,’’ Joongang Ilbo,
23.4.2003.
27. Moran, Security Services in Democratization, 11–12.
28. Moran, Security Services in Democratization.
29. Won-bae Kim, ‘‘Intelligence officials get prison fines,’’ Joongang Ilbo, 1.2.2002.
30. Confidential author interview with trade union federation official, Seoul, February
1999. Plus subsequent media reports and Amnesty Reports e.g. Amnesty International,
‘‘Republic of Korea (South Korea) Summary of Concerns and Recommendations to Can-
didates for the Presidential Elections in December 2002,’’ ASA 25/007/2002, 2–5.
31. Sang-il Lee, ‘‘GNP releases more papers, says scale of taps was vast,’’ Joongang Ilbo
2.12.2002.
32. ‘‘Reverting to a bad practice,’’ Joongang Ilbo, 14.2.2003.
33. M. Ser, ‘‘Court rejects appeals in cash-for-summit case,’’ Joongang Ilbo, 29.11.2003.
34. Laurence Lustgarten and Ian Leigh, In From the Cold: National Security and Parlia-
mentary Democracy (Oxford: Clarendon, 1994).
35. Available at: www.kimsoft.com/Korea/nsl-en.htm. Web Editor’s note: This is an
unofficial translation of the National Security Law. The sole purpose of this translation is
to make the main gist of the law available to non-Korean readers. The readers are fore-
warned that this English version is neither an accurate nor a legal representation of the
law. Several sections and paragraphs dealing with purely prosecutor matters are omitted.
Some of the legal terms used here may not be precise or legally correct. This translation
covers up to 1994. The NSL was redrafted in 1994 to remove the ANSPs role in investigat-
ing crimes under a.7 and a.10 AND in 1997 to restore the ANSPs role in investigating
crimes under a.7 and a.10.
36. National Security Law, article 7 (‘‘Praising or Sympathizing’’) [1] ‘‘Up to seven
years in prison for those who praise, encourage, disseminate or cooperate with anti-state
groups, members, or those under control, being aware that such acts will endanger
national security and the democratic freedom’’ (unofficial translation).
................. 11310$ CH10 05-16-05 11:38:16 PS PAGE 197

37. Confidential author interview with trade union federation official, Seoul, February
1999.
38. Regional ties and networks have played a powerful role in Korean politics, particu-
larly the ‘‘T-K faction’’ a group of army officers, bureaucrats and other officials from
Kyongsang province. Military officers were also bound into alumni networks by graduat-
ing in the same year from the Korean Military Academy. See Se-Jin Kim, The Politics of
Military Revolution in Korea (Chapel Hill: University of North Carolina, 1971) and Mark
L. Clifford, Troubled Tiger: Businessmen, Bureaucrats and Generals in South Korea (New
York: East Gate Press/ME Sharpe, 1994).
39. Jung-min Lee, ‘‘Intelligence Committee ends strike,’’ Joongang Ilbo, 5.6.2003.
40. Chung-hoon Chang, ‘‘Interrogation chambers to be closed,’’ Joongang Ilbo,
16.11.2002.
41. Jung-min Lee, ‘‘Intelligence Committee ends strike,’’ Joongang Ilbo, 5.6.2003 and
Seoung-hee Park, ‘‘Roh rebuked for choice of leader at spy agency,’’ Joongang Ilbo,
24.4.2003.
42. Cited in a review by National Assembly member Hee-ryong Won, of the opposition
Grand National Party.
43. N. Wook, ‘‘Commissions find tough going at end of Kim term,’’ Joongang Ilbo
16.8.2002 and N. Wook, ‘‘Death probe unit has no regrets,’’ Joongang Ilbo, 16.9.2002.
44. Amnesty International, ‘‘Republic of Korea (South Korea) Summary of Concerns
and Recommendations to Candidates for the Presidential Elections in December 2002.’’
ASA 25/007/2002, 18; and Amnesty International, ‘‘Republic of Korea (South Korea) Ter-
rorism Prevention Bill,’’ 25/003/2002 and Amnesty International, Korea (Republic of) in
Amnesty International Report 2003 POL/10/003/2003 [available at www.amnesty.org].
45. Author interviews with member of the PSPD, Seoul, March 1999.
46. J. Nam and Sang-il Lee, ‘‘Both candidates vow to curb NIS,’’ Joongang Ilbo,
3.12.2003.
47. Nam and Lee, Ibid.
48. Korea Herald, ‘‘Controversy erupts over National Security Law’’ Korea Herald,
23.4.2003.
49. C. Yoon, ‘‘Police to expand intelligence units,’’ Joongang Ilbo, 29.7.2003.
50. Yoon, Ibid.
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11
Controlling the Hydra: A Historical
Analysis of South African
Intelligence Accountability
Kevin O’Brien
I n the post-Soviet era, many states experienced massive changes with the end
of the bipolar aegis that had gripped the world. One of these states was South
Africa, which clearly underwent a revolution: in its society, its politics, its strate-
gic posture and position, and its very system of governing. One of the areas
where this is most evident is that of national security and intelligence, as has been
indicated by the continued evolution of the security and intelligence structures
of the Republic of South Africa (RSA). This change was first acknowledged on
October 21, 1994, when Minister of Justice Dullah Omar announced—in con-
junction with the release of a government White Paper on Intelligence—the
intended new structure of South Africa’s secret services. This was followed in
December 1994 by three new acts restructuring the intelligence and security ser-
vices, as well as the mechanisms for control, coordination, oversight, and
accountability. These changes were crucial to the furthering of a peaceful settle-
ment between the former apartheid government and the former liberation
groups. The new intelligence dispensation that was established in 1994 aimed, in
addition, to develop solutions for many of the problems cited in other intelli-
gence and security services.1
In representing a transitional state, moving from (in its case) white-minority
rule to universal suffrage and multi-party democracy, South Africa retains a leg-
acy from its past which has led to it both rejecting certain paths and options due
to their (imagined or real) association with that past, while retaining other
aspects of the past in the current dispensation. South Africa’s intelligence over-
— 199 —
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sight and accountability mechanisms today evolved out of the intelligence dis-
pensation that existed under the apartheid regime; as such, they have both
unique characteristics for a democratic system and the failings and foibles of a
transitional state following liberation.
Understanding South Africa’s intelligence dispensation today requires an
appreciation of where it has come from.2 The evolution of South Africa’s intelli-
gence oversight and accountability parameters and structures has been neither
linear nor constant. At times in South Africa’s republican (since 1961) history, it
has had strong and clear executive accountability, while at other times the execu-
tive has sought actively to blur the lines (at the least) between its command-
authority and command-responsibility and the activities of the intelligence ser-
vices; this has been the case both before and since the 1994 transition.
During the period 1978 to 1990, under the leadership of first P. W. Botha and
later F. W. de Klerk, South Africa was a security state. While nominal political
authority and power rested with the elected cabinet ministers, the State Security
Council (SSC) was the true center of power; executive/cabinet responsibility for
intelligence and its three main agencies (South African Police Security Branch,
Directorate of Military Intelligence [DMI], and Bureau of State Security [BOSS,
later the National Intelligence Service]) was governed by the SSC through a
number of pieces of legislation (the most important being the 1972 Security
Intelligence and State Security Council Act), and military intelligence (DMI)
dominated. Indeed, while in some ways apartheid-era intelligence was character-
ized by poor coordination of intelligence, corruption, mismanagement, and
poorly defined briefs, in other ways a highly efficient intelligence and national
security system was developed, in which all government efforts were driven by
the Total National (later Counter-revolutionary) Strategy and the National
Security Management System which underpinned it,3 which oversaw the war
against the liberation movements.4 The relationship of Parliament to the intelli-
gence brief was virtually nonexistent under apartheid—with the National Party’s
total dominance of governing, there was virtually no parliamentary oversight of
intelligence under apartheid.
While that transitional period can now be said to be over, many of the prob-
lems of the transition remain. One clear legacy is its impact on not only the state
but also on the state of mind of the individuals responsible for intelligence and
security matters. There has been a lack of trust inherent in the new dispensation:
lack of trust between individuals (not just ‘‘old guard’’ and ‘‘new guard’’ but also
between the various individuals affiliated with one liberation group or party who
now find themselves working together), lack of trust in the institutions (serious
concerns exist over the functions of the National Intelligence Agency, as will be
discussed), and lack of trust in the intelligence itself—deriving from both of the
other two points and, perhaps worst of all, leading to (at times) a total politiciza-
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Controlling the Hydra 201
tion of the intelligence process, with both the intelligence product becoming
politicized and the political leadership developing parallel-but-independent
intelligence structures because of their own professed lack of trust in the state
structures.
In this sense, while the institutions of oversight and accountability for the
intelligence function would appear to be strong on the surface, upon further
examination these can be found to be weak and problematic at best. That being
said, serious moves—in the form of new legislation and the establishment of new
oversight-and-accountability-related mechanisms—are being made currently to
make up for such serious shortfalls. In all of these senses, therefore, South Africa
is today—more than ten years into the post-apartheid era—faced with a continu-
ing sense of fractiousness, factionalism, lack of trust, and even corruption in its
intelligence structures. Nevertheless, it is both a product of the decisions that
were made concerning its (the intelligence structures) transformation at the end
of apartheid, and in far better shape than many other intelligence communities
that have undergone transformation.5
The Transition Post-Apartheid:

the ‘‘New Approach’’
The end of apartheid was—in many senses—brought about by the intelligence
services of both sides. At beginning of the 1990s, President F. W. de Klerk used
the NIS to oversee the negotiation process with the African National Congress
(ANC), resulting in the new political dispensation that came from the Confer-
ence on a Democratic South Africa (CODESA), the Transitional Executive
Council (TEC) and—following the April 1994 elections—the Government of
National Unity (GNU).6
Most of the new policies and legislation emerged out of the discussions
between the NIS and ANC intelligence during the time of the TEC (formed in
November 1993 to govern and oversee the period up to the elections and the
transfer of power, as well as negotiations on the interim constitution), whose
Sub-Council on Intelligence originated much of the dispensation discussed here:
This was especially important because the future scope and focus of South Afri-
ca’s intelligence community was not covered in great detail in the interim consti-
tution, unlike the military and police, which were.7 At the same time, a Joint
Coordinating Intelligence Committee (JCIC) was established within the TEC,
which gave the TEC oversight of the intelligence services’ operations while day-
to-day control was left to the individual department heads, much as with the
military and the police.8 The JCIC was authorized to oversee the coordination of
the intelligence services, to investigate the activities of any service that appeared
................. 11310$ CH11 05-16-05 11:38:14 PS PAGE 201

to contravene its mandate, and to provide intelligence information to the Transi-

tional Executive Council (TEC) and its other sub-councils. The reason behind
the changes in the intelligence and security structures were partly a result of the
general government restructuring following the transition, but as well to allow
for the integration of the ANC intelligence, along with all other intelligence ser-
vices in the country, into the new national intelligence structures.
The Sub-Council on Intelligence agreed that as part of the continued
approach to the philosophy of intelligence, certain principles and practical
requirements were to be included in the mandates of the services for purposes
of control and accountability: allegiance to the constitution, subordination to the
rule of law, a clearly defined legal mandate, budgetary control and external audit-
ing, an integrated national intelligence capability, political neutrality and the sep-
aration of intelligence from policy making, a balance between secrecy and
transparency, and the absence of law-enforcement powers.9 These were in addi-
tion to the four principle mechanisms for oversight and control of the intelli-
gence services that would be built into the new structures: the appointment by
the president of inspectors-general to oversee the services, the establishment of a
parliamentary committee on intelligence, the implementation of a code of con-
duct for the intelligence services, and a strict limit in definition of the briefs of
each service. In order to ensure that those agencies tasked with carrying out the
intelligence and security work of South Africa would be able to execute their
tasks with minimal interference and question, three final guidelines were estab-
lished within the government. First, the services must accept as primary the
authority of the government and other democratic institutions of society, as well
as those bodies constitutionally mandated to participate in and monitor the
determination of intelligence priorities. Second, the services must be assured that
no changes to their operational doctrines, structures, and procedures would
occur unless approved by the government and the people. Finally, the services
would bind themselves to the new agreements through a mutually agreed set of
norms and a code of conduct.10
Given the history of South African intelligence interference in society, it is not
surprising that the new dispensation outlined a new ‘‘philosophy of intelligence’’
as its foundation for change. Noting that:
. . . prior to the election of a democratic government, security policy was formu-

lated by a minority government. Its ability to detail what was in the national inter-
est was therefore flawed. Moreover, since the minority government was faced with
a struggle for liberation, this issue dominated the question of security and, conse-
quently, the activities of the statuary instruments that served it . . . the role of the
state’s security apparatus was over-accentuated with virtually no institutional
checks and balances . . .
................. 11310$ CH11 05-16-05 11:38:14 PS PAGE 202

the new government believed that:
reshaping and transforming intelligence in South Africa is not only a matter of

organisational restructuring. It should start with clarifying the philosophy and
redefining the mission, focus and priorities of intelligence in order to establish a
new culture of intelligence.11
Given South Africa’s apparent prosperity and order against the backdrop of the
rest of sub–Saharan Africa, it is an attractive target—whether for illegal immigra-
tion or more serious threats—to others in the region; thus, a number of external
security issues impact on the domestic security of the RSA. The 1994 White
Paper on Intelligence recognized this (‘‘new global political, social and economic
problems are filtering South Africa’s borders’’), while also expressing strong con-
cerns about increased ‘‘foreign intelligence activities in South Africa.’’12 In addi-
tion, the twinned issues of domestic reconciliation coupled with internal
development were crucially linked to the abilities of the intelligence agencies in
South Africa to provide warning and assessment information to the government.
However, the politicization of the intelligence process, in many respects, coupled
with the continuing lack of national reconciliation—even now, a decade after
the end of apartheid—has meant that the intelligence processes in the country,
including the agencies, command and control, and oversight and accountability,
have been stunted and indeed, in some cases, stillborn in their abilities to truly
serve the national interest.
Through all of these negotiations, it was hoped that eventually, as Mike Louw
(then director-general of the NIS) stated, South Africa could have ‘‘an intelli-
gence service at peace with itself.’’13 In order to accomplish this, Louw went on
to say, ‘‘the watchwords must be control, accountability and supervision. Too
many people equate us with other secret organizations. We need to establish our
own identity.’’14
Models Examined: The ‘‘Mixed Bag’’

of Western Oversight Models
As part of their determination to restructure the new intelligence dispensation—
and particularly its oversight and accountability functions—the South Africans
studied a number of comparative examples, entirely derived (it would appear)
from Western intelligence communities: Canada, Australia, the UK, and the
United States, a notable fact considering the Marxist-Communist legacy of the
ANC/SACP alliance and many of the leading figures in the new South Africa.
Overall, the Central Intelligence Agency Act and the British Security Services
Act and Intelligence Services Act were most often held up as being indicative of
................. 11310$ CH11 05-16-05 11:38:15 PS PAGE 203

problems with legislation and oversight in this area, as compared to the Cana-
dian and Australian models that were most often seen as the correct approach.
The South Africans’ favorable comparisons to both the Canadian and Australian
models were frequent in both discussions and in the literature and legislation,
with the Canadian Security Intelligence Service Act and the Australian Security
Intelligence Organization Act frequently cited by the officials involved in the
policy-formulation process in South Africa.
Legislation and Statutes (1994–2003)

The principle pieces of legislation that concerned the new structures were the
National Strategic Intelligence Act, the Intelligence Services Act, the Intelligence
Services Control Act (originally introduced as the Committee of Members of
Parliament on an Inspectors-General of Intelligence Act), and the 1994 White
Paper on Intelligence. In addition, aspects of the 1995 South African Police Ser-
vices Act, the 1996 National Crime Prevention Strategy (NCPS), and the 1995
White Paper on Defence: Defence in a Democracy, are relevant to any examina-
tion of the new national security structures.
These tenets—and the roles of the services, oversight and accountability—
were outlined further in several amending acts passed by Parliament between
1998 and 2003, with a variety of aims, generally bringing South African intelli-
gence into the twenty-first century. These included the Intelligence Services Con-
trol Amendment Act (Act 42 of 1999), the most relevant to the issue of oversight
as it updated the Intelligence Services Control Act (Act 40 of 1994, as amended
to Act 31 of 1995); the second Intelligence Services Control Amendment Act (Act
66 of 2002); the General Intelligence Law Amendment Act (Act 66 of 2000); the
new Intelligence Services Act (Act 65 of 2002), which revisited and rewrote sig-
nificant parts of the 1994 Intelligence Services Act; the National Strategic Intelli-
gence Amendment Act (Act 67 of 2002), which further amended the 1994
National Strategic Intelligence Act; the General Intelligence Laws Amendment
Act 2003 (Bill 47 of 2003, at the time of writing not passed by Parliament); and
Regulation of Interception of Communications and Provision of Communica-
tion-related Information Act (Act 70 of 2002).
The Place of the Intelligence Services

in the New Constitution
Although the intention of the parliamentarians who wrote the legislation, and
who participated in the Constitutional Assembly’s debates on the new constitu-
................. 11310$ CH11 05-16-05 11:38:16 PS PAGE 204

tion, originally was to have the mandates, areas of responsibilities, and a code of
conduct for the intelligence services written into the new constitution (similar to
sections on the national defense force and the police service), it was decided that
the constitution would support only the existence of intelligence services, and
defer to the legislation governing these services in this area only. As such, while
the SANDF and SAPS are the only statutory security services in South Africa
under the terms of the constitution, the president was authorized under sections
187(1) and 196(1) to establish ‘‘what intelligence services are required.’’ How-
ever, this lack of a clear definition of South Africa’s intelligence services, as com-
pared to a concrete delineation of the police and defense force, is indicative of
the problems that the constitutional assembly encountered in debating the role
of the intelligence services and their placement in the constitution: when compar-
ing the final constitution to the interim constitution, there has been a devolution
of clarity in defining the roles, mandates, and related issues of the intelligence
services. These should have been clearly defined in the constitution, especially
given not only their specialized capabilities but also the fact that ongoing events
relating to the post-transition intelligence services have clearly indicated that
problems exist in their use by the executive. Minimally, there should have been
a well-defined link between the constitution and the code of conduct for intelli-
gence personnel contained in the White Paper on Intelligence. Although these
missions were clearly defined in the Acts of Parliament relating to intelligence,
these same acts allow sufficient latitude for these services to be utilized by the
executive and its directorship as desired in particular situations.
To counter this possibility, section 185 of the constitution indicates that the
intelligence services must be monitored, coordinated, and controlled largely in
conjunction with those principles laid out in the National Strategic Intelligence
Act, the Intelligence Services Act, and the Intelligence Services Control Act,
including multi-party parliamentary oversight of the services, civilian oversight
through an inspector-general, and coordination of all intelligence (including
defense and police) activities in South Africa. Furthermore, the security services
have been prohibited, under section 187(7), from attempting to influence, posi-
tively or negatively, the political process.
Ultimately, it was determined that the new mission of the South African intel-
ligence community (see figure 11.1) would be to safeguard the constitution;
uphold individual rights enunciated as fundamental rights in the constitution;
promote the interrelated elements of security, stability, cooperation, and devel-
opment, both within South Africa and in the region of Southern Africa; assist in
the achievement of national prosperity while making an active contribution to
global peace and other globally defined priorities for the well-being of human-
kind; and promote South Africa’s ability to face foreign threats and to enhance
its competitiveness in a dynamic world.15
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Sub-Committee on ANC National Joint Standing

Intellligence & Security Executive Committee on
(Nhlanhla, Mufamadi, Committee
Defence
Modise, Shaik, Zuma,
Siqxashe, Kasrils, Mbeki)
Office of Joint Standing

Parliament Committee on
the State
Independent NIA(ANC) Intelligence
Intelligence Units
President
Cabinet Office of the Inspectors-

Executive National
Committee on General of Intelligence
Deputy Security &
Intelligence & Security*
President Intelligence Co-ordinator*
Minister Deputy National Intelligence

of Justice Co-ordinator*
Minister of
Deputy Minister of Safety &
National Intelligence Minister of Secretariat
Minister of Foreign Security
Co-ordinating Committee Defence of Safety &
Intelligence* Affairs* (NICOC) Security
Chief, National
Co-ordinated Foreign National Commissioner
Information National Provincial
Intelligence Defence
(Intelligence) Management Intelligence
Research Force
Bureau Forum Co-ordinating
Council
Committees Provincial Secretariats South
(PICOC) of Safety and Security African
National (MECs) (9) Police
Intelligence CoS Service
Agency* Intelligence*
National Crime
South African Investigation
Secret Service*
Service* National Inkatha Freedom Pan-Africanist
Party Party Congress
National
Intelligence Oversight and
Training Trewits KwaZulu-Natal Revolutionary Accountability Structures
Academy (Teenrevolusionere Police Service/ Watchdogs /
Strategie Caprivi Trainees MKAPLA
* Members of the National Intelligence Co-ordinating
Committee (NICOC) (permanent or ad hoc basis)
Figure 11.1 RSA Intelligence Structures 1996
The Services and Functions

In order to fulfill the missions laid out for the new South African intelligence
community, a finite definition of national intelligence was first devised in order
to provide parameters for both the restructuring of the community and the new
(or continued) operational mandates of these agencies. National intelligence
functions include counterintelligence, foreign intelligence, crime intelligence,
military intelligence, and domestic intelligence. In addition, the president is fur-
ther authorized to approve ‘‘special activities’’ by the South African intelligence
community. In order to avoid the problems that occurred under the apartheid
regime, the National Strategic Intelligence Act clearly defined these new briefs
and what they mean for each agency.16 Specific services are responsible for each
of these functions within their own area of operations.
The Domestic Intelligence Capability

The National Intelligence Service was disbanded on January 1, 1995; in its place
was established, under section 3(1) of the Intelligence Services Act, the National
................. 11310$ CH11 05-16-05 11:38:17 PS PAGE 206

Intelligence Agency (NIA). It comprised those former members of the NIS, ANC
Intelligence, the Pan-Africanist Security Service, the Transkei Intelligence Ser-
vice, the Bophutatswana Internal Intelligence Service, the Venda National Intelli-
gence Service, and any other members of any intelligence service either attached
to a political organization or operating in the independent homelands or self-
governing territories.17 Although the new agency included members from all of
these services, a percentage of these former members instead became members
of the new South African Police Service rather than intelligence.18
While many would have thought that the NIS should have been disbanded
due to its links with the old order, many in the ANC argued for its retention due
to a number of factors, the most important being the NIS contribution to the
compromises that led to the settlement between the government and the ANC.
As well, the NIS possessed assets and capabilities that the ANC would not want
to lose, including sources; information on both the white right wing and extrem-
ists in political rivals such as Inkatha; technological capabilities; and greater pro-
fessional training than those in the ANC. Finally, while it was not stated openly,
the NIS also possessed information of great interest to the ANC: information on
the ANC itself, its leaders and cadres, which it accrued through the placement of
‘‘moles’’ and other penetration exercises into the ANC and PAC ranks. The NIS
could have inflicted considerable damage on the Government of National Unity
by loosing this information.19 The structure was left intact through a mutual
agreement reached between the NIS and ANC prior to the elections so that the
‘‘constant flow of intelligence should not be disrupted’’ in order to ensure ‘‘a
balance between continuity and change.’’20 Similarly, the principle of ‘‘effective
management’’ was established to ensure that those serving at the upper manage-
ment positions would be competent and not simply political appointees; this
would also prevent the disruption of the intelligence process by affirmative
action programs.21
The mission of the NIA—as the domestic intelligence service—was defined in
the White Paper as being to ‘‘conduct security intelligence within the borders of
the Republic of South Africa in order to protect the constitution,’’ with an overall
focus being ‘‘to ensure the security and stability of the State and the safety and
well-being of its citizens.’’22 This means that the NIA carries out counter-intelli-
gence and counter-terrorism operations domestically, acting alongside the SAPS
to detect, deter, and prevent terrorism, insurgency, foreign espionage, and other
activities that could undermine the state.23
In addition, the former Crime Combating and Investigation Division of the
South African Police, established in April 1991 with the merger of the SAP Secur-
ity Branch and the Crime Investigation Division, was disbanded in July 1994. In
its stead, the South African Police Service National Crime Investigation Service
................. 11310$ CH11 05-16-05 11:38:18 PS PAGE 207

(NCIS) was created, solely concerned with crime intelligence and no longer with
issues of national security.24
The Foreign Intelligence Capability

At the same time, the foreign intelligence-gathering department of the NIS was
separated and constituted under section 3(1) as the South African Secret Service
(SASS), to further its mandate as defined in section 2(2) of the National Strategic
Intelligence Act. SASS has a complimentary role to the NIA: to ‘‘conduct intelli-
gence in relation to external threats, opportunities, and other issues that may
affect the Republic of South Africa, with the aim of promoting the national
security and the interests of the country and its citizens.’’25 SASS is also the
ultimate mechanism for collecting and disseminating strategic intelligence, in
cooperation with elements of the other agencies, for the National Intelligence
Coordinator.26
Foreign intelligence is also provided by the Foreign Intelligence Bureau of the
Department of Foreign Affairs, through its interaction with both agencies (NIA
and SASS) for sourcing and coordination of foreign intelligence.27
It was hoped that dividing the operational mandates of the old National Intel-
ligence Service between its foreign and domestic roles would ‘‘promote greater
focusing, effectiveness, professionalism, and expertise in the specialized fields of
domestic and foreign intelligence.’’28 There were still cohesive ties between the
two services in that the directors-general of the NIA and SASS must consult with
each other on all decisions regarding operations and plans for the services. The
first head of the NIA was the former deputy head of the ANC Department of
Intelligence and Security, Sizakele Sigxashe, while the first head of SASS was the
former director-general of the NIS, Mike Louw; many of the former NIS depart-
ment heads retained their positions, with the addition of the DIS and PASS per-
sonnel.29
SANDF Defense Intelligence

Within the new South African National Defence Force (SANDF), formed in
April 1994 following the national election, the intelligence division was greatly
downsized and brought under civilian oversight, while remaining under the pur-
view of the defence secretary. It included former members of military intelligence
(DMI), ANC military intelligence, intelligence personnel from the Azanian Peo-
ple’s Liberation Army, and the intelligence components of the Defense Forces of
Transkei, Bophutatswana, Venda, and Ciskei. Its operational mandate is to:
................. 11310$ CH11 05-16-05 11:38:20 PS PAGE 208

gather, correlate, evaluate, and use foreign military intelligence, and supply foreign
military intelligence relating to national strategic intelligence to [the National Intel-
ligence Coordinating Committee] . . . gather, correlate, evaluate and use domestic
military intelligence excluding covert collection except when employed for service
referred to in section 227(1)(e) of the constitution . . . and institute counter-intelli-
gence measures within the National Defence Forces.
Military intelligence is specifically forbidden from the covert collection of non-

military foreign intelligence under section 2(4)(a) of the National Strategic Intel-
ligence Act.
Ultimately, Defense Intelligence—like all other intelligence agencies—is sub-
ject to accountability and oversight in the forms of the parliamentary Joint
Standing Committees on Defence and Intelligence, the inspectors-general of the
SANDF and Intelligence, and other mechanisms provided for in the new intelli-
gence dispensation such as the National Intelligence Co-ordinating Committee.
Electronic Intercepts/Communications Intelligence

In 2002, a new Electronic Communications Security (Pty) Ltd was established
under the Electronic Communications Security (Pty) Ltd Act (Act 68 of 2002),
which provided ‘‘for the establishment of a company that will provide electronic
communications security products and services to organs of state,’’ under over-
sight. The ‘‘Comsec’’ (as the ECS(P)L is referred to in the Act) is mandated to:
(a) protect and secure critical electronic communications against unauthorized

access or technical, electronic or any other related threats; (b) provide, with the
concurrence of the National Intelligence Agency . . . verification services for elec-
tronic communications security systems, products and services used by organs of
state; (c) provide and co-ordinate research and development with regard to elec-
tronic communications security systems, products, services and any other related
services; (d) perform any other function not inconsistent with this Act that is nec-
essary for the effective functioning of Comsec.30
Comsec is also governed—under the direction of the minister of intelligence ser-

vices—by a board and a CEO.31
Executive/Cabinet Responsibility for Intelligence

A National Co-coordinating Mechanism?
One of the legacies from apartheid for the national intelligence function has been
the retention of a national coordinating mechanism for intelligence and security.
................. 11310$ CH11 05-16-05 11:38:21 PS PAGE 209

Rather than fully disband—and reject—the old apartheid structures, the GNU
decided to keep and reform the national coordinating structures, at both the
national and provincial levels. While questions remained as to the need for such
a system, it soon became apparent that the country’s level of violent crime—
including criminal violence, the ‘‘taxi wars’’ of the mid-1990s, and increasing
politico-religious-criminal activities such as Muslim vigilantes in the Western
Cape Province—and external infiltration meant that the GNU was concerned to
retain the ability to share intelligence quickly across the national and provincial
structures. A more cynical view would also say that once the ANC came into
control of much of the national security apparatus which had existed under
apartheid, it was loathe to give it up.
Whatever the case, the reforms to the old structures meant that a newly
formed Cabinet Committee on Security and Intelligence (CCSI), in cooperation
with other cabinet committees, would direct security policy; within this struc-
ture, it was plain from the transition of power that the old securocrats had been
removed and new individuals appointed at all managerial and ministerial levels
by the GNU. The new National Intelligence Coordinating Committee (NICOC)
was authorized to oversee the coordination of the intelligence services, to investi-
gate the activities of any service that appeared to contravene its mandate, and to
provide intelligence information to the TEC and its other sub-councils. It reports
to the president through the CCSI and comprises the National Intelligence Coor-
dinator, the director-general of each service (including the NCIS and Defense
Intelligence) and, on an ad hoc basis, the inspectors-general, the deputy directors
of each services, and parliamentary representatives. NICOC has the following
specific and inherent functions, among others:
To advise the government on threats or potential threats to the security of

the country and its citizens
To advise the government on policy relating to the conduct of intelligence
at national, regional, and local levels
To coordinate the conduct of all intelligence functions and the collective
intelligence resources of the country and relations with foreign intelligence
services
To report and to make recommendations to the Cabinet Committee on
Security and Intelligence and to the Parliamentary Joint Standing Commit-
tee on Intelligence and Security as required
To prepare and interpret a national intelligence estimate for consideration
by the cabinet32
Similar to NICOC, at the provincial levels there exist Provincial Intelligence Co-
ordinating Committees, chaired by provincial coordinators. In conjunction with
................. 11310$ CH11 05-16-05 11:38:21 PS PAGE 210

the position of the provincial Members of Executive Councils (MECs) for Safety
and Security, and Provincial Secretariats for Safety and Security coordinating and
overseeing SAPS activities at the provincial level, a clear national security struc-
ture emerged, which (as noted earlier) reflects closely the apartheid-era NSMS
structures. It was felt that a strong national security system was required to
ensure coordination, accountability, and the continuous flow of essential intelli-
gence to the executive.
A further mechanism for such coordination, but outside the formal chain of
responsibility, was established through the appointment of an advisory board for
the directors-general of both the NIA and SASS as mandated in section 31 of the
Intelligence Services Act. The function of these bodies is to advise the director-
general on the use of their powers.33
In addition to these formalized structures of coordination, a number of
agreements were reached between the security services on sharing intelligence in
pursuit of domestic security issues. The most important of these was a memoran-
dum of understanding concluded between SAPS, the NIA, SASS, and the SANDF
on May 10, 1996, which would ensure the sharing of information relating to
combating organized crime. Included in the memorandum is a provision to
establish a National Management Forum attached to NICOC, which will coordi-
nate the anti-crime strategy between the security agencies.34
Finally, for accountability purposes, the civilian services are directly responsi-
ble to the Office of the State president, originally through the deputy minister
who reported to the minister of justice (although this has now been replaced
by a minister of intelligence); in the case of Defence Intelligence and the NCIS,
responsibility flows respectively through the SANDF chief of staff (Intelligence)
and the defence secretary in consultation with the minister of defence, and the
SAPS national commissioner in consultation with the minister of safety and
security and secretary for safety and security to the president.
Parliamentary Oversight of Intelligence: the

Parliamentary Joint Standing Committee on Intelligence
and the Inspectors-General of Intelligence
Within Parliament, an oversight committee was established in September 1995.
This committee, designated the Joint Standing Committee on Intelligence (JSCI),
is similar to the Canadian Security Intelligence Review Committee (SIRC) in its
functions (see chapter 6 on Canada in this volume). The Committee was origi-
nally composed of eighteen members appointed by the president, proportionally
representative to the seating of the various parties in Parliament. Subsequent leg-
islation led to a change in the numbers and composition of the Committee to
................. 11310$ CH11 05-16-05 11:38:22 PS PAGE 211

be more proportionally representative of Parliament,35 while demanding that all

members received security clearance from the NIA.36
The role of the Committee is to receive reports of the services from both the
auditors and other evaluators of the services, make recommendations on both
legislation related to the services and the activities of the services themselves, and
to order investigations and hold hearings on matters relating to intelligence and
national security. It also monitors the activities of the services with regard to
human rights and other rights entrenched in the constitution. Its jurisdiction
covers not just the NIA and SASS, but also—most notably—Defense Intelligence
and the NCIS; it reports directly to the president, and through him to Parlia-
ment.37
This Committee was seen as one of the most significant changes in Parliament
following the 1994 elections. In the apartheid Parliament, committees were
closed to the media and to the public—their proceedings were secret and their
decisions were publicly disclosed only after they had been taken. In the demo-
cratic Parliament, however, all but the Joint Standing Committee on Intelligence
are held in the open, with journalists reporting on their proceedings and deci-
sions, and the public, including advocacy and monitoring groups, are entitled to
attend hearings.38 While the JSCI hearings are not public, this overall move
toward openness and transparency is remarkable nonetheless.
The Committee’s mandate is quite broad and intrusive. Although section 4 of
the Intelligence Services Control Act authorizes the Committee’s access to any
and all information that it may require in its investigations and duties,39 the same
section also authorizes the services to withhold from the Committee information
on any person or body engaged in intelligence or counterintelligence activities,
information which could reveal the identity of a source, or any knowledge of
intelligence or counterintelligence methods carried out by any service if that
information could also reveal a source.40 This absolute protection of sources is
one of the key political compromises that led to this point: as both sides prior to
the 1994 elections engaged in espionage activities against the other, it is assumed
that each side had (and may continue to maintain) sources in the other camp.
Thus, any revelations regarding the nature of sources at this point in time could
greatly damage the negotiated compromise achieved within the services them-
selves.41 In the Intelligence Services Control Amendment Act 2002, the Commit-
tee’s oversight purview was expanded from ‘‘intelligence and counter-
intelligence functions’’ to now include ‘‘the administration, financial manage-
ment and expenditure of the Services.’’42 In addition, the Committee was also
authorized to ‘‘for the purposes of the performance of its functions, require Min-
ister responsible for a Service, the Head of a Service, the CEO or the Inspector-
General, to appear before it to give evidence, to produce any document or thing
and answer.’’43
................. 11310$ CH11 05-16-05 11:38:23 PS PAGE 212

Questions were raised early on, however, on the sanctity of the Committee’s
secrecy, given that a number of parties sitting on the committee were deeply
implicated (to varying degrees) in allegations of links to so-called ‘‘third-force’’
and other destabilizing activities aimed at the new democratic process; this was
especially the case with Deputy Minister of Safety and Security Joe Matthews, the
Inkatha Freedom Party (IFP) representative on the JSCI, who was closely linked
with IFP attempts at resurrecting their intelligence capacity.44
A recent and welcome move has also been the requirement for the Committee
to ‘‘within two months after 31 March in each year, table in Parliament a report
on the activities of the Committee during the preceding year, together with the
findings made by it and the recommendations it deems appropriate, and provide
a copy thereof to the president and the Minister responsible for each Service’’; it
was furthermore required to ‘‘furnish Parliament, the president or such Minister
with a special report concerning any matter relating to the performance of its
functions.’’45
Further, a code of conduct has been written into the Intelligence Services Act
as an additional mechanism of oversight and accountability. This code emerged
out of discussions between the ANC and NIS in which the ANC wanted detailed
guidelines with real regulatory powers which spelled out the rights of operatives,
how to handle sources, and so on. The NIS argued that this would make intelli-
gence work extremely difficult, possibly even endangering operations and agents;
it wanted a code which would bind agents as little as possible.46 The compromise,
written into the purview of the minister responsible for the intelligence brief,
became the code of conduct. It includes provisions that all members of the secret
services shall adhere to the basic principles of their profession, as well as the poli-
cies, regulations, and directives of their respective services; shall respect the
norms, values, and principles of a democratic society including the basic human
rights of individuals; shall strive to be responsible in the handling of information
and intelligence, and shall at all costs prevent the wrongful disclosure of national
security interests; shall commit themselves to the promotion of mutual trust
between policy-makers and professional intelligence workers, as well as coopera-
tion with all the members of the intelligence community; and will conduct
themselves in their personal life in a manner which will not prejudice their orga-
nization, their profession and fellow craftsmen, or the facilities entrusted to
them.47 Breaches of this code and other guidelines were laid out very specifically
in the Intelligence Services Act;48 should violations or misconduct occur, the
director-general of each service is mandated with presidential authority to
‘‘charge any member with misconduct,’’ to establish a board of inquiry following
an unsatisfactory explanation from the individual in question, and to sentence
that individual should he or she be found guilty; these powers could be used
extra-territorially should the offense occur outside of South Africa’s borders but
................. 11310$ CH11 05-16-05 11:38:23 PS PAGE 213

still fall under the purview of the Intelligence Service Act.49 Finally, the code had
the function of authorizing intelligence officers to disobey any orders that con-
travened either the code or other statutes on operational capabilities.50
At the same time the Intelligence Services Control Act created the positions
of inspectors-general for the services (NIA, SASS, Defense Intelligence, NCIS),
to whom the director-general of each service is accountable. The Office of the
Inspectors-General includes an investigation arm, a legal section and an informa-
tion resource center. The inspectors-general are to review the activities of the
intelligence services and to monitor their compliance with policy guidelines and
other established mandates and principles. They are allowed full access to docu-
ments, budgets, reports, and all other classified information; each director-
general is mandated to ensure that all matters of interest and concern having
to do with the services is brought to the immediate attention of the inspectors-
general.51
A worrying sign overall is that in the eight years of the new intelligence dis-
pensation, the post has only been occupied twice briefly, with each incumbent
resigning soon after taking office. This, in addition to the continued ‘‘tinkering’’
with the mandate and role of the inspector-general (IG) in the legislation, would
appear to indicate a serious concern over this one key—indeed, crucial—area of
oversight.
The role of the IG changed further with subsequent legislation: first, in a seri-
ous change from the previous, the Intelligence Services Control Amendment Act
1999 stated that there would now be ‘‘one or more Inspectors-General of Intelli-
gence,’’ rather than the previous dictate of ‘‘for each Service an Inspector-
General.’’52 It also stipulated that the IG could be approved by ‘‘at least two
thirds’’ of the members, rather than the previous ‘‘majority of at least 75 per
cent’’—relating clearly to the failures to appoint an IG successfully.53 The IG’s
purview was also expanded in section 6 of the Act as being ‘‘to receive and inves-
tigate complaints from members of the public and members of the Services on
alleged maladministration, abuse of power, transgressions of the laws and poli-
cies referred to in paragraph (a), corruption and the improper enrichment of any
person through an act or omission of any member.’’54 In relation to this, it was
stipulated that an IG ‘‘shall have access to any intelligence, information or prem-
ises under the control of the Service in respect of which he or she has been
appointed. . . . No access to intelligence, information or premises . . . may be
withheld from an Inspector-General on any ground.’’55
These problems were thrown into an even starker light when the subsequent
Intelligence Services Control Amendment Act 2002 deemed that there should
only be one inspector-general of intelligence—once again pointing to the diffi-
culty in appointing even one, let alone multiple IGs. The IG’s overall mandate
was again expanded ‘‘(a) to monitor compliance by Service with the constitution,
................. 11310$ CH11 05-16-05 11:38:24 PS PAGE 214

applicable laws and relevant policies on intelligence and counter-intelligence; (b)

to review the intelligence and counter-intelligence activities of any Service; (c)
to perform all functions designated to him or her by the president or Minister
responsible for a Service.’’56 In addition, the complaint mechanism from the
public was strengthened—the IG’s mandate was expanded to also include the
ability to order investigation by and to receive a report from the head of a ser-
vice.57 Finally, the IG also now had to submit ‘‘certificates . . . [and] reports’’ to
both the minister and the Committee pursuant to their functions; this was
reflected, for the heads of services, in the requirement that they now must ‘‘in
respect of every period of 12 months or such lesser period as is specified by the
Minister responsible for that Service, submit to that Minister a report on the
activities of that Service during that period, and shall cause a copy of such report
to be submitted to the Inspector-General.’’58 Furthermore, ‘‘each Head of a Ser-
vice shall report to the Inspector-General regarding any unlawful intelligence
activity or significant intelligence failure of that Service and any corrective action
that has been taken or is intended to be taken in connection with such activity
or failure.’’59
Finally, the auditor-general and the Standing Committee on Public Accounts
monitor the relevant intelligence budgets, while the constitution provides for
protection against state abuse through the public prosecutor and the Human
Rights Commission.60
The new legislation also made a number of other amendments. The General
Intelligence Law Amendment Act (Act 66 of 2000), among other amendments,
included the establishment of an Intelligence Review Board, which—consisting
of three to five persons appointed by the minister—was mandated to ‘‘consider
and approve any application by a former member to disclose information or
material’’ relating to their former employ, thus ensuring that a statutory body
would be in place to consider how former employees had used their knowledge
gained during their employment with the intelligence services.61
The new Intelligence Services Act (Act 65 of 2002), which revisited and
rewrote significant parts of the 1994 Intelligence Services Act, established the new
National Academy of Intelligence under the same legislation as the intelligence
services,62 as well as the Intelligence Services Council on Conditions of Service,
which makes recommendations to the minister on the development of policies
on conditions of service and human resource matters. It also established clearly
the powers of the minister of intelligence services. Finally, it proposed
‘‘Offences’’ for all employees of the intelligence services.63
Finally, in 2003, an additional General Intelligence Laws Amendment Act
2003 (Bill 47 of 2003, at this writing not passed by Parliament) was tabled,
which—among other things—regulates the interception and monitoring of com-
munications (further to the Regulation of Interception of Communications and
................. 11310$ CH11 05-16-05 11:38:25 PS PAGE 215

Provision of Communication-related Information Act—Act 70 of 2002) and the

newly established Office for Interception Centers.64 It establishes an Appeals
Panel process responsible to the minister of intelligence services;65 and, most
importantly, further supports the Intelligence Services Council, answerable to the
minister and the president, ‘‘to promote measures and set standards to ensure
the effective and efficient performance and implementation of policies on human
resources within the Academy or the Intelligence Services, as the case may be,
and to make recommendations to the Minister.’’66 All in all, it is clear from the
legislation tabled through the turn of the century that the parliamentarians were
attempting to come to grips with not just some of the more serious problems
that South African intelligence had faced during the 1990s (see the following sec-
tion) but also with those aspects of the original acts—passed immediately at the
end of apartheid and subject to the influences of the time—which had proved
lacking over the last decade (see figure 11.2).
Danger of politicization of intelligence

While there are many pressing problems that must be addressed, the greatest
appears to be the ongoing concerns over the politicization of the intelligence
process and the development of parallel (political) intelligence structures.
Office of Joint Standing

Independent ANC Parliament
Intelligence Units
the State Committee on
President Defence
Cabinet Office of the Inspector- Joint Standing

National Committee on
Deputy Committee on General of Intelligence
Intelligence Intelligence
President Security & & Security*
Intelligence Co-ordinator*
Minister of Deputy National Intelligence

Intelligence Co-ordinator*
Services Minister of Minister of
Safety & Foreign
Intelligence Intelligence National Intelligence Minister of Secretariat Security Affairs*
Review Board Services Council Co-ordinating Committee Defence of Safety &
on Conditions of (NICOC) Security
Service Foreign
Chief, National
Co-ordinated Information
National Commissioner
National Provincial (Intelligence)
Intelligence Defence
Appeals Panel Management Intelligence Bureau
Research Force
Forum Co-ordinating
Council
Committees Provincial Secretariats South
(PICOC) of Safety and Security African
National (MECs) (9) Police
Intelligence CoS Service
Agency* Intelligence*
National Crime
South African Investigation
Secret Service*
Service*
Electronic Communications Security (Pty) Ltd
National * Members of the National Intelligence Co-ordinating Oversight and

Academy of Committee (NICOC) (permanent or ad hoc basis) Accountability Structures
Intelligence
Figure 11.2 RSA Intelligence Structures 2003
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It is clear that the new intelligence structures in South Africa are the product
of great negotiation and discussion; while these appeared to achieve initial suc-
cesses, over the course of the mid- to late 1990s, the scandals, questionable (and
sometimes outright illegal, as in allegations of NIA spying on the leadership of
the National Party and the SAPS in the mid-1990s) activities, and ongoing failure
to secure all the instruments of oversight has meant that South Africa’s intelli-
gence services are very much in crisis—and show little sign of recovery. During
the 1990s, South African intelligence suffered from numerous scandals—
including accusations of ‘‘bugging’’ each other; spying on political opposition
parties; spying on friendly governments’ diplomatic missions; the unlawful and
suspicious deaths of at least two leading intelligence figures; allegations of collu-
sion with the so-called ‘‘third force’’ of former apartheid and former ANC intelli-
gence and special forces operatives engaged in destabilizing the country;
collusion with the country’s top bank-robbers, themselves alleged to be former
members of an ANC Special Forces unit; and other scandals.67
As mandated in the 1994 Intelligence Services Act, the directors-general of
each agency are responsible for ensuring not only that all national security intelli-
gence, collection methods, sources, and the identities of members are protected
to the fullest extent from unauthorized disclosure, but as well to ensure that ‘‘no
action is carried out that could give rise to any reasonable suspicion that the
Agency or Service . . . is concerned in furthering, protecting or undermining the
interests of any section of the population or any political party or organiza-
tion.’’68 This politicization is really notable in three regards:
Aiming to match the current political climate, both through the placement
of ANC loyalists in key positions within the intelligence services and from
those within the services wishing to simply meet the anticipated expecta-
tions of the political leadership (the least problematic of the three).
(Somewhat following from the first) ensuring factional integration within
the intelligence services between old enemies. Early on in the integration
process, there were strong concerns regarding not only the independence of
the public service from ANC party policy, but as well an increasing degree
of dissatisfaction within the public service and an increasing number of res-
ignations. Reports of ‘‘factionalism’’ within the NIA emerged, indicating
that similar problems that existed within the ANC during exile have not
been solved, but rather enhanced with the power such individuals and fac-
tions have found in their new positions; this is in addition to the not-sur-
prising division between the old and new guards. These problems appear to
persist.69
Finally, the development of parallel intelligence structures for political pur-
poses due to a total lack of trust in the national intelligence functions—
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perhaps the most worrying.70 An ANC document published in the mid-

1990s, analyzing the success of the GNU, recommended that a number of
small, mobile, professional intelligence units be set up to ‘‘detour deficien-
cies within the official ranks of the NIA and the information flow that runs
through NICOC to the government.’’71 This is seen as providing a means to
get around the lack of trust and suspicions that exist in the national struc-
tures.72
Overall, this raises serious questions regarding the separation of policy surround-
ing intelligence from that of ANC party policy itself: the two must remain sepa-
rate and distinct for obvious reasons. As one government source stated to the
author in the late 1990s:
No government can rule effectively without having the power to ensure that the
leadership of the government departments will act according to the political will of
the government. The old civil service was full of personnel who had no commit-
ment to fulfill the will of the new government—should we have left them in an
untransformed civil service?73
Ironically, this has led—it could be argued—to the re-emergence of the domi-
nance of ‘‘securocrats’’ within the South African government, albeit this time
ANC ones.
Conclusions
Is South Africa to be held to higher standards than other countries? A severe
critique—and this is a severe critique—would say yes, if for no other reason than
that the architects of South Africa’s new intelligence dispensation stated that they
would hold themselves to far higher standards than not only the system that they
looked to replace, but also international standards for the field. The professions
of the ANC intelligence professionals in the period before and during the TEC
process, as well as those sentiments enunciated in the White Paper on Intelli-
gence, were toward the highest standard of quality, transparency, accountability,
control, and oversight; regrettably, any clear assessment of the current state of
South Africa’s intelligence dispensation would note failings (and worse) in each
of these areas.
In assessing the South African experience and dispensation, only a barely
passing grade should be granted to South Africa in terms of the strength of its
accountability and oversight mechanisms for intelligence. The intelligence ser-
vices are barely independent from the executive—indeed, in some senses they
could be seen as slaves to the executive’s policies and interests. The oversight
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mechanisms remain fragile and bare; while Parliamentary oversight has strength-
ened over the last decade—in terms of its membership, staff, access, and proac-
tivity—the continuing failure to appoint a lasting inspector-general for the
intelligence services is a glaring void in oversight.74
If a balance can now be found between the ANC domination of the govern-
ment and public service—which bears with great importance on the absolute
necessity for clear coordination and accountability within the security services—
and the concerns of the professionals who serve in these agencies, a peaceful and
stable environment will be developed for an equitable future within the country’s
intelligence community. As has already been seen from the decade of the new
dispensation, clear problems exist in coordination between services and coopera-
tion not only with each other but also with the political leaders of the day. This
problem must be solved to ensure a peaceful future both within the services and
within South Africa itself.
Notes
1. This chapter results in part from interviews conducted with official and private
sources in South Africa, Canada, Britain, Australia, and the United States during 1994–
2000. As most of these interviews were confidential in nature, I have tried to indicate
general sources for such information in this chapter. Where this has not been possible,
no reference will be cited.
2. An extensive understanding of the apartheid intelligence and security structures can
be drawn from Kenneth W. Grundy, The Militarization of South African Politics
(Bloomington: Indiana University Press, 1986); and Kevin A. O’Brien, ‘‘The Use of Assas-
sination as a Tool of State Policy: South Africa’s Counter-Revolutionary Strategy 1979–
1992,’’ Terrorism and Political Violence. Part I: 10:3 (Summer 1998): 34–51 and Part II:
13:2 (Spring 2001): 107–42; Annette Seegers, The Military in the Making of Modern South
Africa (London: Tauris Academic Books, 1996). As well, see Republic of South Africa
Report of the Truth and Reconciliation Commission 1:2 ‘‘Historical Context: Gross Human
Rights Violations in Political and Historical Perspective’’: www.polity.org.za/govdocs/
commissions/1998/trc/1chap2.htm, and all further chapters in the Report; and National
Party of South Africa, Second Submission of the National Party to the Truth and Reconcilia-
tion Commission: www.truth.org.za/submit/np2.htm.
3. South Africa was run with every element of society geared towards fighting the
war—resulting in the total and integrated coordination of every sector of society into a
nationally-managed security architecture (whose aspects would include the military,
political, social, welfare, economic, etc.) to oversee the implementation of this ‘‘total
national strategy.’’
4. Annette Seegers, The Military in the Making of Modern South Africa (London:
Tauris Academic Books, 1996), 126–32.
5. On the evolution of the South African security establishment at the end of apart-
heid, see Robert d’A. Henderson, ‘‘South African Intelligence Under de Klerk,’’ Interna-
tional Journal of Intelligence and Counterintelligence 8:1 (Spring 1995); and the author’s
................. 11310$ CH11 05-16-05 11:38:28 PS PAGE 219

‘‘South Africa’s Evolving Intelligence and Security Structures,’’ International Journal of

Intelligence and Counterintelligence 9:2 (Summer 1996): 187–232.
6. Mark Shaw, ‘‘Spy meets spy: Negotiating new intelligence structures,’’ in The Small
Miracle: South Africa’s Negotiated Settlement, eds. Steve Friedman & Doreen Atkinson,
South African Review 7 (London, 1994): 257–59.
7. Shaw, ‘‘Spy meets spy,’’ 268–69.
8. Participants in the discussions included the NIS, DIS, and representatives from the
services of the ‘‘homelands’’ of Transkei, Venda, and Bophutatswana—all of which would
later be integrated. Shaw, 263.
9. Republic of South Africa, White Paper on Intelligence (October 1994): 9–10, 13–14
[hereafter White Paper].
10. White Paper, 11. This code of conduct would reflect similar ones for SAPS and
SANDF.
11. White Paper, 2–3.
13. Shaw, ‘‘Spy meets spy,’’ 269.
14. Rex Gibson, ‘‘Memoirs of an invisible man,’’ The Star International Weekly (Janu-
ary 26–February 1, 1995): 13.
15. White Paper, 5. Most of these points arose out of the ANC’s National Policy Con-
ference statement entitled ANC Policy Guidelines For A Democratic South Africa: A New
Approach To Intelligence, released on May 31, 1992.
16. Annexure B, subsection 4 of the White Paper on Intelligence mandates the presi-
dent or minister to authorize ‘‘special activities’’ further to the missions of the NIA and
SASS (Republic of South Africa, National Strategic Intelligence Act (Act 39 of 1994)
(December 1994) [hereafter NSI Act] s2(1) and 2(2)) pursuant to the definition of the
counter-intelligence mission as laid out in section 1(v) of the NSI Act. There is concern
that this grants too much leeway for covert activities to the authorities, as has happened
elsewhere (cf. the history of the US National Security Council Act 1947 and subsequent
CIA covert activities).
17. Although the independent homelands of Transkei, Bophutatswana, and Venda had
intelligence services (civilian and military), Ciskei did not; its International Research
Bureau, which later became the Ciskei Intelligence Service, was disbanded in August 1991
due to (at best) questionable covert activities: Sandy Africa, ‘‘The Role, Prospects, and
Expectations of the TBVC Intelligence Services during an Interim Government Period,’’
Strategic Review for Southern Africa: Security and Intelligence in a Post-Apartheid South
Africa 14:2 (October 1992): 79. For a brief discussion of the PASS, also known as the PAC
Intelligence and Security Department, see Tom Lodge, ‘‘A Profile of the Azanian Peoples’
Liberation Army,’’ in About-Turn: The Transformation of the South African Military and
Intelligence, eds. J. K. Cilliers and Norkus Reichardt (Nidrand: Institute of Defence Policy,
1996), 109.
18. Republic of South Africa, Intelligence Services Act (Act 38 of 1994) (December
1994): s3(1)(a-g) [hereafter IS Act].
20. Sharon Chetty, ‘‘Meeting the Government’s needs is Sigxashe’s aim,’’ The Star and
SA Times (December 20, 1995): 7.
22. White Paper, 12.
23. A further explanation of this mission was laid out in the NSI Act, s2(1)(a/b/c).
................. 11310$ CH11 05-16-05 11:38:29 PS PAGE 220

24. NSI Act, s2(3)(a/b).

25. White Paper, 12.
26. This role was further explained in the NSI Act, s2(2)(a/b/c).
27. Brendan Seery, ‘‘Out of the cold and into the light,’’ The Star International Weekly
(March 16–22, 1995): 11.
29. This retention of senior personnel (not including those who voluntarily resigned)
was mandated in section 2(b) of the Intelligence Services Act. Of the approximately 4,000
personnel included in the new civilian structures, 2,130 came from the NIS, 910 from the
ANC-DIS, 304 from Bophutatswana, 233 from Transkei, 76 from Venda, and the remain-
der from the PASS.
30. Electronic Communications Security (Pty) Ltd Act (Act 68 of 2002): s7.
31. Electronic Communications Security (Pty) Ltd Act (Act 68 of 2002): Chapters 2, 3.
32. White Paper, 15; National Intelligence Agency, Guiding Principles of the new South
African Intelligence Dispensation (Pretoria, 1995), 19–20; NSI Act, s4(2).
33. IS Act, s31.
34. ‘‘Fivaz announces agreement between police and intelligence agencies’’ and ‘‘SAPS,
NIA, SASS, SANDF to fight together against crime,’’ SAPA Reports, May 10, 1996.
35. Section 2 of the Intelligence Services Control Amendment Act 1999.
36. ISC Amendment Act 1999: s2b.
37. White Paper, 14; Republic of South Africa, Intelligence Services Control Act (Act 40
of 1994) (December 1994): s2(1)/(2), 3(1)(g) [hereafter ISC Act]. Its first chair was Lin-
dwe Sisulu and its current chair is Dr Siyabonga Cyprian Cwele—both of the ANC.
38. www.parliament.gov.za/pls/portal30/docs/FOLDER/PARLIAMENTARY_
INFORMATION/PUBLICATIONS/FIVE/chapter6.htm.
39. ISC Act, s4(1)/(3).
40. ISC Act, s4(2)(a). The IG, however, is authorized to access information detailing
sources.
41. Shaw, ‘‘Spying for democracy,’’ 2.
42. ISC Amendment Act 2002: s2.
44. Eddie Koch, ‘‘SA intelligence world in turmoil,’’ Weekly Mail and Guardian (20
October 1995).
47. White Paper, Annexure A: ‘‘Code of Conduct for Intelligence Workers.’’
48. IS Act, s22(1).
49. IS Act, s15–18, 22(2), 23.
50. This code was in addition to the more traditional sections on violations of powers
and duties as found in Chapter III ‘‘Discipline’’ and section 22 ‘‘Offences’’ of the IS Act:
Shaw, ‘‘Spy meets spy,’’ 266.
51. ISC Act, s7(1)/(2),(3)–(6).
52. This was clarified in the Act that ‘‘one Inspector-General may be appointed with
regard to some of or all the Services as long as the activities of all the Services are moni-
tored by an Inspector-General’’: ISC Amendment Act 1999: s5a/b.
55. ISC Amendment Act 1999: s8–9.
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56. ISC Amendment Act 2002: s7(7).

57. ISC Amendment Act 2002: s3c.
58. ISC Amendment Act 2002: s7(7) and s7(11)(a).
59. ISC Amendment Act 2002: s7(11)(h).
60. www.nia.org.za.
61. General Intelligence Law Amendment Act (66–2000): s18–22B.
62. Intelligence Services Act (65–2002): s5 [hereafter IS Act 2002].
63. IS Act 2002: s22, s12, s26.
64. General Intelligence Laws Amendment Act 2003 (Bill 47 of 2003): 2(b).
65. General Intelligence Laws Amendment Act 2003 (Bill 47 of 2003): 8(c).
66. General Intelligence Laws Amendment Act 2003 (Bill 47 of 2003): 14.
67. Some of this is documented in Kevin A. O’Brien, ‘‘South Africa’s Evolving Intelli-
gence and Security Structures.’’ International Journal of Intelligence and Counterintelligence
9:2 (Summer 1996): 187–232, and will be updated in a forthcoming article on the topic.
68. IS Act, s4(3)(a/b).
69. Gaye Davis, ‘‘Spying Allegations: Who are the silly buggers?’’ Weekly Mail and
Guardian, February 3, 1996.
70. In the mid-1990s, the existence of a subcommittee on intelligence and security
attached to the ANC National Executive Committee was discovered (composed of Joe
Nhlanhla, Joe Modise, Sidney Mufamadi, and Bantu Holimisa). In addition, there were
reported attempts by Inkatha to resurrect a paramilitary and intelligence capacity within
both the IFP and the KwaZulu-Natal Police, using funds from Germany’s Konrad Ade-
nauer Foundation and, allegedly, the CIA: Paul Stober, Marion Edmonds, Eddie Koch
and Ann Eveleth, ‘‘Inkatha’s secret German war chest,’’ Weekly Mail and Guardian, Sep-
tember 15, 1995; Jeff Stein, ‘‘South Africa’s Many ‘Watergates’ May Spill Over on the
CIA,’’ Baltimore Sun, March 20, 1996.
71. Koch, op cit.
72. Indeed, in November 2001, Mbeki’s office established a new presidential support
unit in the Ministry of Intelligence to provide logistical backing to the presidency and
former president Nelson Mandela. ‘‘ ‘Spy unit’ for Mbeki,’’ ZA*NOW, February 22, 2002.
73. Interview, April 5, 1996.
74. In February 2004, Zolile Thando Ngcakani—the former head of ministerial services
in the Intelligence Ministry and the man who had investigated claims by the Democratic
Party in November 1999 that the NIA had planted electronic monitory devices in its party
headquarters—was appointed as inspector-general of the intelligence services. ‘‘New
Intelligence Inspector Sworn In,’’ SAPA, February 5, 2004.
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PART 4
Conclusions
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................. 11310$ PRT4 05-16-05 11:36:08 PS PAGE 224
12
Balancing Operational Efficiency
and Democratic Legitimacy
Hans Born and Loch K. Johnson
W ho is watching the spies and how is oversight of the world’s intelligence

services maintained? The relevance of these questions, addressed in this
volume, is greater now than ever before. In the wake of 9/11 and the 2003 Iraq
war, many of those responsible for overseeing intelligence in both legislative bod-
ies and executives are currently involved in investigating the functioning of the
services as well as the conduct of the political leaders supposed to task and direct
the services. The mass media also reports each day on the work of permanent
and special intelligence oversight committees in various countries, such as the
9/11 investigation commission of the U.S. Congress. These oversight committees
deal with formidable questions: Did the intelligence services malfunction? Have
political leaders misused intelligence? Do intelligence services function solely to
uncritically defend or selectively supply information on policies decided by their
political masters without impartial counsel from intelligence professionals? Are
intelligence officials working within their mandate? Are they working within the
rule of law? Do they need more legal powers, budget, and manpower for dealing
with the new terrorist threats, as they themselves claim? These and other ques-
tions illustrate that oversight of the intelligence services performs an important
dual role in democratic societies: keeping the services in line with their legally
defined mandate and ensuring their effectiveness.
This book attempts to bring to the forefront insights, good practices, and legal
procedures of democratic oversight of intelligence and security services in eight
countries: Argentina, Canada, Norway, Poland, South Africa, South Korea, the
United Kingdom, and the United States. The sample is composed of countries
with a variety of political systems (presidential versus parliamentary), different
— 225 —
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phases of democratization (new and old democracies), superpowers and small

countries (for example, the United States and Norway), as well as different geo-
graphical locations (the Americas, Europe, Africa, and Asia). In spite of all these
differences, the selected countries also have common features: they are democra-
cies; they possess external intelligence oversight committees; and their intelli-
gence services function on a statutory basis.
Before turning our attention to the main results, the concept of democratic
oversight of security and intelligence services needs some unpacking (see also
chapter 1). ‘‘Oversight’’ is defined as a means of ensuring public accountability
for the decisions and actions of security and intelligence services. It must be dis-
tinguished from control, which refers to the act of being in charge of the day-to-
day management of the intelligence services. The phrase ‘‘democratic oversight’’
introduces important conditions regarding intelligence accountability. The
added word ‘‘democratic’’ suggests first, that elected officeholders or representa-
tives are responsible for oversight and, second, that the intelligence services
respect the rule of law. In a free nation, both elements are essential to the over-
sight of intelligence services. As mentioned in chapter 1, in a democracy no single
area of government activity can be a ‘‘no-go’’ zone for parliamentarians, includ-
ing the intelligence and security services. Parliaments and government together
are part of a system of checks and balances, which avoids one branch of the state
dominating—with all the temptations to misuse the security and intelligence ser-
vices that accompany concentrated power. The rule of law is the second impor-
tant element, as a broad view on democracy implies not only a majority rule, but
also respect for due process, civil liberties, and human rights. In this context,
the special powers of security services—for example, interference with private
property and communications—has to be subject to codification and external
control.
This book focuses on oversight by parliament and the executive, as well as the
legal frameworks in which they operate. It not only examines the simple question
of who watches the services but also discusses how the institutions under consid-
eration actually exercise oversight. Although important in their own right, the
role of the media and the judiciary—two additional institutions of significance
to democratic oversight—are only touched upon in this volume, with the excep-
tion of chapter 3 which deals with the influence of the European Court of
Human Rights (ECtHR) case law on national democratic oversight systems.
With regard to the services, both domestic (security) services and foreign intelli-
gence services are included in the study. Here intelligence is interpreted as the
entire cycle of planning and direction, collection, processing, analysis, and dis-
semination of intelligence (see chapter 4).
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Balancing Operational Efficiency and Democratic Legitimacy 227
Taking Stock: Democratic Oversight of Intelligence

Services in Eight Nations
Democratic Oversight of Intelligence: A Recent Development
The deepening and widening of democratic oversight of intelligence and secret
services is a recent development. Until well into the 1970s, widely considered the
first decade of serious intelligence oversight, accountability over secret agencies
was considered an executive prerogative in nearly all democracies (not to men-
tion authoritarian regimes). Elected representatives in parliaments had hardly
any, and often no, authority over intelligence matters. At the time, oversight was
based on executive decrees and orders, not on laws enacted by parliamentarians
(although there were some notable exceptions to this practice, as in the Nether-
lands). This situation changed radically in the mid-1970s when, triggered by
scandals and violation of basic civil rights, the United States enacted sweeping
reforms with respect to intelligence, including a key role for Congress and new
laws to ensure closer supervision of secret operations. Not long after, Canada
and Australia followed suit. This period of New Oversight, which gained strength
in the 1980s, can be regarded as the second decade of intelligence accountability.
Mainly Anglo-Saxon countries started to introduce democratic provisions for
intelligence supervision that established a firm legal footing for oversight, includ-
ing a significant role for parliament. The end of the Cold War saw the beginning
of a third decade of intelligence oversight—the 1990s—as part of the wider evo-
lution of democracy in Central and Eastern Europe (see chapter 1).
Post-communist and authoritarian regimes were not the only ones to intro-
duce new forms of democratic oversight for intelligence services in the 1990s.
Until then, intelligence oversight had not been well developed in most Western
democracies either. As a result of a political and administrative culture heavily
influenced by the Cold War, most countries exhibited a broad political consensus
that national security was best served if the intelligence services were left to them-
selves. The end of the Cold War created a window of opportunity, however, for
the expansion and deepening of intelligence oversight, not only in transition
states but also in established democracies (see, for example, the Norwegian case
study in chapter 7).
As far as Europe was concerned, governments—both new and old democra-
cies—strengthened intelligence oversight by way of an expanding body of case
law in the European Court of Human Rights (ECtHR), as discussed in chapter 3
by Iain Cameron). In dealing with cases brought forward by citizens whose
human rights had been violated by members of the security services, the ECtHR
required that the legal regime of the security services had to be clear, foreseeable,
................. 11310$ CH12 05-16-05 11:38:26 PS PAGE 227

and accessible. This spurred the governments of various states that are parties to
the European Convention of Human Rights (ECHR—forty-six European mem-
ber States in 2004, whose services mainly functioned on the basis of executive
decrees and directives) to enact or improve legislation concerning their intelli-
gence and security services. The United Kingdom, Norway, Sweden, and the
Netherlands, for instance, all have made these legal changes. The growing, if
modest, influence of the ECtHR on the democratic oversight of intelligence and
secret services is a significant development, for it implies a slowly expanding
body of pan-European legal norms for oversight beyond the nation state itself.
The politicization of intelligence is another recent development addressed in
this volume (see chapter 2 by Peter Gill), in terms of the actions of the UK and
U.S. governments, which led the invasion of Iraq in 2003. The governments of
both countries were accused of politicizing or ‘‘cooking’’ intelligence to create a
stronger case for war against Saddam Hussein. This selective use of intelligence,
runs the argument, enabled the second Bush Administration and the Blair
Administration to market a doctrine of preemptive (or, more accurately, preven-
tive) war to block the further development and proliferation of weapons of mass
destruction (WMDs).1
One can argue that intelligence is always politicized to a certain extent, in that
intelligence is supposed to support the decisions and policy priorities of political
leaders. Indeed, the collection and analysis of information is inherently meant
for use in policy formulation and implementation. Otherwise intelligence would
simply be irrelevant to the political leadership. As a general trend, however, an
excessive politicization of the intelligence services may be partially a product of
the recent democratization of intelligence oversight. The greater role for parlia-
ments and their oversight committees in the review of intelligence activities,
along with the removal of the total blanket of secrecy that historically surrounded
the intelligence agencies, may have resulted in an increase in the political and
public pressures on these agencies.
Democratically elected governments can no longer simply refuse to comment
on intelligence issues; governments now are increasingly forced to use complex
media strategies to win over both parliaments and the media to their cause,
including the use of the infamous ‘‘spin doctors.’’ The danger might be that the
politicization of intelligence will lead to increased public cynicism, mistrust, and
paranoia, which in turn might harm citizen trust in the intelligence services and
the political system. The question remains as to whether the politicization of
intelligence is caused by the processes of democratization and expanding over-
sight in this secret world, or the fact that political leaders have always politicized
intelligence but such actions are only now visible because of the recent democra-
tization of intelligence oversight.
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The Revolution in Intelligence Oversight

The second part of this book deals with established democracies where intelli-
gence oversight began after the mid-1970s, in other words, the United States
(1974), Canada (1984), Norway (1995), and the United Kingdom (1989/1994).
In all of these countries, oversight was triggered by scandals exposed by the
media, in which a country’s security services were found to have been spying on
their own citizens. The ensuing outcry and media attention resulted in public
pressure to reform and better scrutinize the way the services operated.
The U.S. case study highlights one of the most powerful approaches to legisla-
tive oversight in the selected sample of countries (see table 12.1). The U.S. Con-
gress mandated itself to review the legality and effectiveness of the services, with
authority to approve top presidential intelligence appointments, to authorize and
appropriate the annual intelligence budget, and to subpoena experts and wit-
nesses. Moreover, the congressional oversight committees in Washington, D.C.,
enjoy nearly unlimited access to secret information. The members of the U.S.
House and Senate Intelligence Committees are not vetted by the intelligence ser-
vices, as this would be a sign of congressional subordination to the executive
branch. As the only legislative body in this book’s sample, the oversight commit-
tees of the Congress receive prior notification of special operations, except in
extraordinary circumstances (when a two-day delay is permitted). In spite of
these formidable powers, however, strong congressional oversight continues to
face various obstacles, such as the lack of will among lawmakers to engage
actively in routine oversight tasks and the fact that Congress remains largely
dependent on the willingness of the White House to submit information and
keep lawmakers well informed.
In the United Kingdom, the first intelligence legislation (for the security ser-
vice, MI5) was enacted in 1989, when it became clear that the British would be
found to be in breach of the regulations set out by the ECHR, that is, allowing
intelligence gathering to function without a statutory basis and without sufficient
procedures for legal compliance (see chapters 3 and 5). In 1994, legislation for
other (foreign) intelligence services followed and a parliamentary oversight com-
mittee was established (still leaving, inter alia, military intelligence without a stat-
utory basis). It is striking that even a long-established democracy like the United
Kingdom introduced parliamentary oversight for the intelligence services only in
the mid-1990s. Before then, Parliament remained outside the ring of secrecy and
ministers were trusted on their word. In spite of these recent innovations, the
UK oversight system has some serious drawbacks. National security is not fully
defined in the services’ mandates, implying that the services can move into new
areas of work without parliamentary consent. Additionally, the executive has the
power to interfere in the work of the parliamentary committee, as the prime
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TABLE 12.1
Comparison of the External and Parliamentary Oversight Bodies in the Eight Selected Countries
(1) (2) (3) (4) (5) (6) (7)
Country First Mandate of Budget Control Powers of Type of oversight body; Subpoena powers. Prior notification
Oversight Oversight Body Oversight Body 噜 Membership, Clearance, requests
Legislation Appointment of
Oversight Body
(A) 1992 Reviews legality and effectiveness of Both scrutiny and authorization Parliamentary oversight body of 14 No. Not regulated by the
Argentina the services, including citizens’ powers. MPs as member, appointed by law.
complaints. Parliament. There is no security
vetting.
(B) 1984 The SIRC checks legality and efficacy SIRC has no authorization External independent expert oversight Yes. No prior notification
Canada of the agency. powers, yet can comment on body of max. 5 experts as member, required.
CSIS’s budget appointed by prime minister.
Members are under oath
(C) 1995 The oversight focuses primarily on No budget oversight function. External expert parliamentary Yes. Agencies are forbidden
Norway legality of the services, including oversight body; max. 7 members from consulting with
................. 11310$
human rights protection. (non-MPs) but appointed by the Committee about
Parliament. future operations.
(D) 1995 Overviews, legality, policy, Commission scrutinizes the Parliamentary oversight body; 9 MPs No. No legal duty.
Poland administration, and international services’ draft budget and its as member max, appointed by
CH12
cooperation of services. Effectiveness implementation. parliament. All members undergo
is not checked. security vetting.
(E) 1994 Its oversight purview includes The Committee does not oversee Parliamentary oversight body; Yes No legal duty.
South legislation, activities, administration, the intelligence services’ budgets committee consists of 15 MPs,
Africa financial management, and per se, but its purview includes appointed by president. Members are
expenditure of the services. financial management of the vetted.
services.
05-16-05 11:38:28
(F) 1994 It examines and comments legislation, The Committee has no budget Parliamentary oversight body of 12 No No legal duty.
South effectiveness of the Services. It holds powers. members, put forward by political
PS
Korea hearings on individuals nominated for parties.
senior positions in the NIS.
(G) (1989) Finance, administration and policy of Committee scrutinizes the Parliamentary oversight body of 9 No. No legal duty
United 1994 MI5, MI6, and GCHQ with a view on finance together with the Public members drawn from both Houses of
Kingdom efficiency. It does not check legality Accounts Committee but has no Parliament, appointed by the prime
authorization power. minister
(H) 1974 Reviews all intelligence agencies. Both oversight committees Two congressional oversight Yes, on both Yes, except in times of
United Approves top intelligence possess authorization and committees, consisting of 20 (House) committees acute emergency, in
States appointments. It checks both legality appropriation powers. and 17 (Senate) congressmen, which the agencies can
and effectiveness of the services. appointed by House and Senate delay reporting for 2
PAGE 230
leaders days
minister appoints its members. Concerning its reports, the Committee is

required by law to report to the prime minister in the first instance, who can edit
the reports before they are laid before Parliament (see chapter 5 and table 12.1).
As Ian Leigh concludes in chapter 5, ‘‘No independent person would recommend
these arrangements as a model to other countries . . . but in a stable democratic
system they work tolerably well.’’
Triggered by a scandal in 1976 (intelligence service personnel breaking into a
press agency), Canada legislated its Canadian Security Intelligence Service (CSIS)
in 1984 and established an external oversight body, the Security Intelligence
Review Committee (SIRC). The SIRC was mandated to review the effectiveness
of the CSIS and its compliance with the law, as well as to investigate complaints
against the service and cases where security clearances were denied. The Com-
mittee’s members are appointed by the prime minister and report to the minister
responsible. The advantage of the Canadian oversight system is that it has an
independent expert committee with security-cleared support staff and full access
to the agency they monitor; therefore, oversight is less politicized than in some
other nations. But the Canadian system has a downside. The oversight body only
reviews activities of the CSIS and does not exercise oversight over other intelli-
gence services in Canada. Furthermore, the oversight body has no direct linkage
to Parliament and cannot alert members of Parliament until the minister does
so in an annual report. Therefore, the Canadian Parliament is only remotely
involved in intelligence matters. It was only in 2003 that the Canadian govern-
ment acknowledged the existence of a ‘‘democratic deficit’’ and the great need
for a parliamentary committee to oversee all Canadian services (see chapter 6).
Norway has one feature in common with Canada. In 1995, the Norwegians
established an expert committee whose members are not parliamentarians. In
contrast with Canada, however, the Norwegian oversight committee is strongly
linked to Parliament. Its members are appointed by and report to the Parliament.
Without losing any involvement in intelligence oversight, the parliament there-
fore delegated the oversight to experts with more knowledge and time to carry
out the daily chores of program review. The Parliament’s expert committee is
mandated to conduct inspections (twenty per year), to deal with complaints, and
to set up inquiries if necessary. As Fredrik Sejersted concludes in chapter 7 the
Norwegian oversight system is ‘‘strong but within clear limits.’’ The independent
parliamentary oversight body is concerned only with the rule of law and the pro-
tection of human rights; overseeing the effectiveness of the services and their
efficiency is left to the executive alone.
In summary, the issue of legislative oversight of the intelligence services
became a focus in Western democracies only recently and often as a result of
scandals. Today, it seems to be the norm that security and intelligence services
................. 11310$ CH12 05-16-05 11:38:28 PS PAGE 231

in democratic societies are ‘‘parliamentarized.’’ This means that the executive

shares its power over intelligence with the Parliament, diminishing the chance
that the executive is able to misuse the services. Not all oversight bodies have the
same mandate. The Canadian and U.S. oversight bodies review both the effi-
ciency and legality of the services. The Norwegian oversight body focuses solely
on legality, and the UK’s parliamentary oversight body is concerned only with
effectiveness. Norway and Canada have chosen a system of independent expert
review (outside Parliament), while in the United States and the United Kingdom
members of Parliament and their staffs (internal experts) directly oversee the
services.
The Spread of Intelligence Oversight

The fourth decade of intelligence oversight, spawned by a rising frequency and
lethality of terrorist attacks at the beginning of the twenty-first century and a
growing concern about inaccurate estimates of WMDs in Iraq, has led to
demands for further intelligence reform in many of the countries studied in this
book. High on the list of reform proposals are calls for better intelligence quality,
more ‘‘actionable’’ (detailed) intelligence forecasts, improved coordination of
intelligence agencies within and between nations, stronger norms against the
selective use of intelligence (‘‘cherry-picking’’) to support preordained political
objectives (such as regime change in Iraq in 2003), and, last but not least, greater
attention to police-patrol oversight—that is, more serious involvement of over-
seers in the day-to-day efforts to enhance the effectiveness of intelligence against
terrorists and other threats to peace and security.
In the wake of worldwide ‘‘democratization waves’’ since the 1970s, the plac-
ing of intelligence services under democratic supervision in Europe was fostered
by Europe’s international organizations, such as the Council of Europe and the
Organization for Security and Cooperation in Europe (OSCE). The third part of
this volume deals with the analysis of democratic oversight of intelligence and
security services in transition states beyond Western Europe: in Poland, Argen-
tina, South Korea, and South Africa. In these countries, the introduction of dem-
ocratic oversight and reform of the security and intelligence services was a long
and painful process. The main reason is that the services occupied a powerful,
central, and repressive role under the authoritarian regimes. They were supposed
to guarantee ‘‘regime security’’ and placed an emphasis on securing the leader-
ship’s survival. It was their task to deter or to excise any sign of opposition. The
services were instruments of raw power, and their names and acronyms fright-
ened people. Because dictators wished to monitor each and every one perma-
nently, the services were vast, enjoyed ample resources, and had connections to
................. 11310$ CH12 05-16-05 11:38:29 PS PAGE 232

all layers of society. So, how, if at all, could these behemoth organizations be
contained and put under democratic oversight?
The secret services in these regimes acquired enormous powers, even after the
turn to democracy, as Andrzej Zybertowicz argues in chapter 8. To fully under-
stand the intricate relationship between the nascent Polish democracy and that
nation’s intelligence services, one must understand the concept of a ‘‘security
complex’’ in Poland. According to Zybertowicz, it consists of the main three
secret and intelligence services, along with private security and detective organi-
zations and former secret collaborators of the communist services who remain
active in business, the media, and politics. In addition, the security complex
includes other state institutions that are authorized to collect information, such
as border guards, custom services, and the Ministry of Finance’s units dealing
with tax crimes. After 1989, many security and intelligence services were either
closed or forced to drastically downsize their personnel. In some cases, 75 per-
cent of the personnel were fired. Many of the former communist functionaries
found their way into new services. For example, according to Zybertowicz, two-
thirds of the newly established Polish security service’s staff came from the old
services.
The parliamentary oversight body in Poland was only set up in 1995, and its
members are from both the ruling and opposition parties, with the chairman
drawn from the opposition. Zybertowicz explicitly points out the danger of hav-
ing many of the alleged functionaries of the former communist intelligence ser-
vices active in politics, either as high-level government officials or as members of
Parliament. According to him, this development brings with it the danger that
the principal-agent relations may become blurred or even reversed. It can also
create a situation in which the services can blackmail their principals. During the
1990s, the services frequently came forward with accusations that specific leading
politicians—including a prime minister—had been spying for the former com-
munist security services.
During the ‘‘Junta’’ dictatorship in Argentina, the security services were used
for the brutal repression of any form of opposition and were integrally associated
with human rights abuses. Since the move to democracy in 1983, relevant
reforms have come a long way (as disclosed in chapter 9). The Argentinean
National Congress only legalized the entire intelligence system in 2001. Having
previously experienced a repressive secret services apparatus, the lawmakers
explicitly forbade the services from conducting repressive activities, having com-
pulsory powers, fulfilling police functions, or conducting criminal investigations
without explicit authorization. The lawmakers also forbade the services from col-
lecting and keeping data on individuals because of their race, religion, political,
or union affiliations. The 2001 legislation also established a parliamentary over-
................. 11310$ CH12 05-16-05 11:38:30 PS PAGE 233

sight committee with far-reaching oversight powers (see table 12.1). Notably,
secret expenditures are subject to congressional oversight and approval.
Until 1987, South Korea was a military dictatorship and could be character-
ized as a ‘‘national security state.’’ The essence of a security state is that nearly all
aspects of public, economic, and political life are regarded as national security
issues. The military and the security and intelligence services of South Korea
played a key role in upholding this security state. They controlled businesses,
repressed labor and student organizations, and tightly regulated other civil soci-
ety groups. As a result of its size, resources, and networks with politics and soci-
ety, it was and continues to be a powerful force with a major influence on
politics. After South Korea’s transition to democracy in 1987, the problems with
reforming the National Intelligence Service (NIS) cannot be attributed solely to
weak parliamentary oversight. Intertwined with a strong executive, the role of
unofficial political networks, and the politics of national security legislation, the
security services are strong and cannot be checked by parliamentary oversight
alone. To this day, the executive controls the services without a transparent sys-
tem of checks and balances. According to Jonathan Moran (in chapter 10), one
of the persistent problems facing South Korea is that the president and his family
allegedly used the secret service for their own political and commercial benefits,
including illegally wiretapping members of the opposition as well as journalists
and businessmen. The main challenge in South Korea today is not that the secret
and intelligence services are out of control, but that they are too closely con-
trolled by the presidential office, without parliamentary checks. Moreover, exec-
utive control exists without a clear system of tasking and directing, relying
instead on an informal network of politicians. The parliamentary intelligence
oversight body is weak, reflecting the National Assembly’s weak power base vis-
à-vis the executive. The strong position of the executive and the services might
also be explained by the continuous threat from North Korea. One might argue
that on the Korean Peninsula the Cold War still continues, perpetuating a
‘‘security state’’ environment.
After peacefully shedding the apartheid regime, the reform and control of the
intelligence and secret services in South Africa was not an easy task. In 2004, a
decade after the democratization processes started, many transition problems
still remain. According to Kevin O’Brien (chapter 11), the main obstacle is the
lack of trust between individuals in politics and intelligence, between the old and
the new guard within the intelligence service itself, and a lack of trust by the
general public toward intelligence. Unfortunate, too, is the fact that the intelli-
gence process already seems to be politicized, with the political leadership devel-
oping parallel independent intelligence structures.
Nevertheless, the progress in overseeing and reforming the secret services has
seen some notable advances. In 1994, the ANC and the last apartheid govern-
ment decided to disband the existing security services, in favor of establishing a
................. 11310$ CH12 05-16-05 11:38:31 PS PAGE 234

new agency (which included former apartheid intelligence officers, ANC intelli-
gence members, and intelligence services of other liberation movements). Fur-
ther, in 1994, at the beginning of South Africa’s transition to democracy, the
government enacted new laws with respect to the intelligence services and their
oversight. Through these laws, various means of supervision were created, such
as a multi-party parliamentary oversight committee, an independent inspector-
general, and a code of conduct for intelligence personnel. The parliamentary
committee, whose members are appointed by the president, has a broad man-
date, including the review of administration, expenditure, financial management,
and functioning of the services. The committee has access to all information
(except sources, methods, and current operations); it can propose new legisla-
tion; and it may order investigations and hold hearings. However, although these
oversight procedures may look strong on paper, they are weak and problematic
in practice. According to O’Brien, the intelligence services are not independent
from the executive and can be seen as willing servants of the executive’s policies
and interests. Presently, the key issue is to find a balance between ANC’s domi-
nation in government and the integrity and independence of the professionals
working in the intelligence services.
To summarize, democratic oversight of intelligence and security services in
transition states is an ongoing concern. For the most part, intelligence oversight
seems to be dominated by the president or government, which gives leeway for
politicization or misuse of the services by the executive. In most of the selected
transition states, political neutrality of the services and respect for human rights
are codified in intelligence legislation and in codes of conduct for service profes-
sionals. Independent parliamentary oversight bodies are being created. On paper
these structures look very promising, but an analysis of the reality of intelligence
oversight reveals that many challenges still lie ahead.
Good Practices
What makes an intelligence oversight body strong and effective? The answer to
this question depends on the goals one has in mind. As previously mentioned,
oversight refers to maintaining public accountability over the services, without
the sense of taking over a government’s responsibility for directing, tasking, and
judging the priorities of the intelligence services. This process of accountability
can only succeed if the overseers have the necessary legal authority and will to
exercise meaningful review. Without legal powers, financial resources, and staff,
an oversight body is deemed to be a ‘‘toothless’’ institution, no match for a gov-
ernment or its intelligence services. Yet, conversely, is it possible that oversight
might hinder effective intelligence gathering and analysis through legislative
................. 11310$ CH12 05-16-05 11:38:32 PS PAGE 235

micromanagement and a lack of responsibility for carefully protecting classified

information? In this regard, some commentators have questioned the ability of
overseers to keep secrets and to resist interfering with sensitive operations,
sources, and methods. Based on the country studies presented here, as well as
earlier research2 one may say that an intelligence oversight body may be declared
strong if has an independent status from the executive, investigative powers,
access to classified documents, a committee able to keep secrets, and sufficient
expertise. These five vital elements of effective oversight are addressed in the
country studies and the result of the comparisons are shown in table 12.2 and
discussed below.
1. Independence. The oversight bodies of most transition states are not

entirely independent from the executive and the intelligence services,
except in the case of Argentina. In these states, the oversight body has weak
statutory powers, which turn the oversight body into a feeble institution
unable to counterbalance the executive. In addition, the country studies in
this volume show that sometimes the members of the oversight body were
formerly employed by the intelligence services they oversee and are still
deeply connected with the services. Concerning Western democracies, the
oversight committees in Canada and the United Kingdom are appointed
by the prime minister, which undermines their claims to independence.
The political system of these two countries, that is, the Westminster form
of parliamentary system, is known for an executive which dominates Par-
liament—especially with respect to foreign and security affairs. The over-
sight bodies of Norway and the United States are considerably more
independent from the executive. Their members are appointed by the leg-
islature and their reports are not screened by the executive (as in the
United Kingdom). The most independent oversight bodies are those which
have the power to review and approve intelligence budgets (as in the cases
of the United States and Argentina) or which are given prior notification
from the intelligence services about impending operations—even of the
most sensitive nature (again, the rule in the United States). Armed with
these authorities, the oversight body becomes a strong check as overseers
themselves become responsible in part for the future of their nation’s intel-
ligence agencies. Although these oversight powers symbolize the sover-
eignty of the legislative as an equal entity to the executive, one might raise
a question about whether an oversight body can become too closely
involved in the conduct of intelligence activities. It is debatable whether a
group of parliamentary overseers that have become co-partners for intelli-
gence can also step back and scrutinize objectively its own decisions.
2. The term investigative powers refers to the notion that an oversight body
................. 11310$ CH12 05-16-05 11:38:33 PS PAGE 236

TABLE 12.2
Elements of Strong Oversight, Based on Expert Assessment of the Eight Country Studies’ Authors
(1) (2) (3) (4) (5)
Country Independence from Executive Investigative Capacity Access to Classified Information Ability to Maintain Secrecy Adequate Support Staff
(A) Independent. Members appointed Committee can initiate Full access. No leaks or scandals related to the The Committee can hire
Argentina by Parliament. investigation based on a Committee’s activities. administrative personnel—four
complaint or on conclusions of its to eight. Each member can
own work. appoint one expert adviser.
(B) SIRC’s members are appointed by Committee decides upon its own Full access to agency. Staff is vetted and members are Not sufficient resources to review
Canada prime minister, after consulting work plan. under oath. all agency’s functions in one year.
with opposition. Reports to Has established multi-year
minister who reports to program.
Parliament.
................. 11310$
(C) Yes, very independent. Can investigate what it chooses Unlimited access to all No leaks from the Committee Small secretariat (One
Norway within its mandate. documents. since its establishment in 1995. administrative assistant and two
lawyers working on a half-time
basis).
CH12
(D) Commission members have often Commission lacks investigative Very much dependent on the Occasionally Commission The Commission possesses a
Poland been accused of being too deeply powers. Criticized for lacking own discretion of the services. members have leaked information permanent administrative staff of
connected to the services. initiatives. to the press. three people. The staff performs
only administrative tasks.
(E) Committee members are Committee has broad and By law unlimited access to Negligible—scandals have Ample.
South appointed by president based on intrusive powers. information except on sources. occurred frequently during the
Africa parliamentary first ten years of the Committee’s
05-16-05 11:38:33
proportionally—and report to the existence.
president, who reports to
PS
Parliament.
(F) The Committee reflects the Meager use of its investigation Access guaranteed by law, Adequate. The Committee is very small and
South weakness of the National powers. negligible performance by the not well resourced.
Korea Assembly vis-à-vis the executive. Services to grant access.
(G) Behaves independently, although Can investigate what it chooses Yes, some ‘sensitive’ material can No leaks from the Committee Only one investigator.
United appointed by and reports to the within its mandate. be refused. since its establishment in 1994.
Kingdom PM.
(H) Yes, very independent. Yes, e.g. Joint Committee inquiry Total Access. Leaks are rare. Ample.
United into 9/11.
States
PAGE 237
can decide to inquire into whatever subject it chooses. The research indi-
cates that the oversight bodies of the countries studied here have the capac-
ity to initiate investigations on the basis of complaints or as a result of
its own conclusions. However, in Poland and South Korea (two transition
states), the respective oversight bodies rarely use their investigative powers.
3. Do the overseers have access to classified documents? The oversight com-
mittees in most countries have full access to secret documents, although
some access is denied in the case of information related to sources, meth-
ods, and ongoing operations. Rarely, if ever, would an overseer need access
to the names of agents or sensitive modus operandi—highly classified and
compartmented information.
4. Are the oversight committees able to maintain secrets? Though in many
countries the argument is used that parliamentarians cannot keep secrets
and that the Parliament, as an open institution, is ill suited for discussing
secrets, the country studies here suggest that oversight committees have
displayed a capacity to maintain secrecy. Leaks have rarely occurred. As a
matter of fact, the U.S. case study indicates that the executive branch leaks
far more, for political purposes, than the legislative branch.
5. The issue of support staff refers to whether the oversight body has adequate
personnel to conduct meaningful research and to help carry out inspection
visits, hearings, and investigations. Especially valuable are experts and
investigators who are familiar with intelligence and security services. The
results show that most oversight bodies have limited resources and staff.
Apparently, the creators of the selected oversight bodies have been hesitant
to set up a counter-bureaucracy responsible for reviewing the intelligence
bureaucracy.
These five points can be regarded as good practices contributing to strong

democratic oversight of security and intelligence services. However, these five
points only partially cover reality. Effective parliamentary oversight is based not
only on authority (legal and other powers) and ability (resources and expertise),
but also on the attitude or willingness of parliamentarians to be seriously
involved in intelligence oversight.3 The case studies disclose a mixed picture.
According to the practice of oversight in the selected countries, parliamentarians
are especially willing to be involved in ‘‘fire alarms.’’ These are hearings or inves-
tigations into scandals or failures that stir substantial media attention. When it
comes to ‘‘police patrols,’’ that is, the conduct of frequent inspections and other
‘‘dull’’ routine jobs related to oversight, parliamentarians seem to be less moti-
vated (see, for example, chapter 4 on the United States). However, this type of
routine oversight is, in the end, the most valuable form of oversight because it
aims at detecting errors before they become intelligence failures.
................. 11310$ CH12 05-16-05 11:38:34 PS PAGE 238

In addition to these good practices, perhaps the best practice is for democratic
intelligence oversight to become a norm for all government, with a substantial
role for parliament and a solid statutory foundation. The intelligence services
themselves are likely to benefit from this approach, for it can contribute to the
thoughtful crafting of intelligence operations and, even more importantly, pro-
vide them with legitimacy. That is a vital result in a free society.
Notes
1. The second Bush Administration and others used the phrase ‘‘preemption’’ as
though it were interchangeable with the phrase ‘‘preventive war,’’ although in fact the two
are distinct strategic concepts. The doctrine of preventive war assumes that war with
another nation is inevitable; therefore, it is better to begin the war straight away rather
than wait until the adversary grows stronger. Despite its use of the term preemption, the
second Bush Administration’s planning about Iraq appeared to be dominated by preven-
tive war thinking. Used more precisely, preemption refers in contrast to a nation’s deci-
sion to conduct a quick strike against another threatening nation, based on reliable
intelligence that the adversary is about to launch an attack [See James J. Wirtz and James
A. Russell, ‘‘U.S. Policy on Preventive War and Preemption, The Nonproliferation Review
(Spring 2003), 113–23.] Whatever definition one prefers, these doctrines underscore the
increasing importance of intelligence in foreign and defense policy.
2. Compare with Lawrence Lustgarten and Ian Leigh, In from the Cold: National
Security and Parliamentary Democracy (Oxford: Clarendon Press, 1994), and Hans Born,
Philipp Fluri, and Anders Johnson, Parliamentary Oversight of the Security Sector: Princi-
ples, Mechanisms and Practices, Inter-Parliamentary Union Handbook nr. 5 for Parlia-
mentarians (Geneva: IPU and Geneva, 2003).
3. Compare, Hans Born and Heiner Hänggi, ‘The Double Democratic Deficit’ Parlia-
mentary Accountability of the Use of Force under International Auspices (Aldershot, UK:
Ashgate Publishers, 2004).
................. 11310$ CH12 05-16-05 11:38:35 PS PAGE 239

................. 11310$ CH12 05-16-05 11:38:36 PS PAGE 240
Index
Aberbach, Joel D., 59–60 analysis, in intelligence cycle, 62–63

Access to Information Act, Canada, 107, Anti-Corruption Office, Argentina, 176
112 Anti-Terrorism Act, Canada, 101
accident of litigation, 36 adoption of, lessons from, 108–10
accountability Anti-Terrorism Crime and Security Act,
agency design and, 8–9 UK, 5
ECHR on, 37 apartheid, legacy of, in South Africa, 199–
issues in, 7 200, 209–10, 212, 219n2
McDonald Commission on, 103 Appeals Panel, South Africa, 216
See also democratic accountability; intel- appointees, 13
ligence accountability appropriations. See budgets
Acevedo, Sergio, 176 Arar, Mahar, 113–14
Act Relating to the Oversight of the Intelli- Archer, Jeffrey, 89
gence, Surveillance and Security Ser- Argentina
vices, Norway, 121–22, 124, 131 intelligence oversight in, 160–79, 230,
Advisory Council on Security and Intelli- 233–34
gence, Canada, 104 strength of oversight in, 237
Afghanistan, 61, 65 Argentine Coast Guard Intelligence Ser-
African National Congress (ANC), 201, vice, 162
207 Argentine Federal Police, 162
agencies Army Counter Intelligence Corps, South
design of, 8–9 Korea, 183
and Iraq invasion, 16–19 Army Intelligence, Argentina, 162
and knowledge/power model, 16 Aspin-Brown Commission, U.S., 58, 61
powers of, 9 assassinations, 66
as threats to democracy, 4 auditor-general, in South Africa, 215
Agency for Internal Security (ABW), audits. See inspections
Poland, 146, 148, 150 Australia
Agency for National Security Planning, intelligence reform in, 87
South Korea, 180, 183–84 parliamentary oversight in, 112
Air Force Information Service, Argentina, and South Africa, 204
162 Australian Secret Intelligence Services
Aljahoe society, 185 (ASIS), 87
al Qaeda, 18, 20, 61, 65, 113 Australian Security Intelligence Organiza-
Ames, Aldrich H., 61, 66 tion (ASIO), 87
Amman v. Switzerland, 40, 42, 46 Austria, intelligence reform in, 4
Amnesty International, 193 Azanian People’s Liberation Army, 208
— 241 —
................. 11310$ INDX 05-16-05 11:36:12 PS PAGE 241

242 Index
balance Callaghan, James, 32n74

of operational efficiency and democratic Cameron, Iain, 34–53
legitimacy, 225–39 Campbell, Alistair, 23–24
See also checks and balances Campbell-Savours, Dale, 89
Bali threat warnings, 92, 94 Canada
Barcikowski, Andrzej, 151 intelligence community in, 100–102,
BBC, 22, 24, 28 110–14
Beith, Alan, 89 intelligence oversight in, 87, 99–118,
Bisciotti, Victorio, 164 230, 231
Blair, Tony, 20–23, 25, 31n36, 89, 228 and South Africa, 204
Board of Audit and Inspection, South strength of oversight in, 237
Korea, 190–91 Canadian Armed Forces, 101
Boland, Edward P., 64 Canadian Forces Information Operations
Boland Amendments, 64 Group, 101
Bophutatswana Internal Intelligence Ser-
Canadian Forces Joint Imagery Centre, 101
vice, South Africa, 207, 220n17
Canadian Security Intelligence Service Act,
Border Guard, Bureau of Internal Affairs,
99
Poland, 146
adoption of, 104–107
Border Security Agency, Canada, 111
review of, 107–108
Boren, David L., 73
Born, Hans, 225–39 and South Africa, 204
Bosnia-Herzegovina, 5 Canadian Security Intelligence Service
Botha, P. W., 200 (CSIS), 100–102, 111, 115–16
Brown, Simon, 82 Carnegie Foundation, 17
budgets Casey, William J., 68
in Argentina, 164, 169–70, 173–74, 177 Central Intelligence Agency Act, U.S., and
in intelligence cycle, 61 South Africa, 203–204
in Norway, 121 Central Intelligence Agency (CIA), U.S.
in Poland, 151 and collection, 61
in South Africa, 202 cooperation with oversight, 70
in South Korea, 184 and counterterrorism, 63, 68
in the United Kingdom, 83, 86, 89 politicization of intelligence and, 17–18
Bureau for Protection (BOR), Poland, 146 Senate Intelligence Committee on, 26
Bureau of Audit and Inspection (BAI), Chalabi, Ahmed, 18
South Korea, 194 Chang Myon, 181
Bureau of Intelligence and Research (INR), checks and balances, ix, 7, 226
U.S., 21 in the United States, 57–58
Bureau of State Security (BOSS), South cherry-picking, 17, 20, 22, 232
Africa, 200 Chrétien, Jean, 110
Bush, George H. W., 65
Christie v. UK, 51n34
Bush (G. W.) administration, 21, 26, 228,
Chun Doo Hwan, 182–83
239n1
Church Committee, 4, 61, 63, 66–67, 70
cooperation with oversight, 70
Cimoszewicz, Wlodzimierz, 148
and Iraq invasion, 17, 19
and politicization of intelligence, 63–64 Ciskei Intelligence Service, 220n17
Butler Inquiry, 15, 25–26, 32n74, 86 civil liberties, 226
ECtHR on, 35–36
Cabinet Committee on Security and Intel- McDonald Commission on, 6
ligence (CCSI), South Africa, 210 in the United States, 61, 67–68
................. 11310$ INDX 05-16-05 11:36:12 PS PAGE 242

Index 243
civil society Conference on a Democratic South Africa

in Norway, 125 (CODESA), 201
in South Korea, 181, 193–94 consent, construction of, 13
Clapper, James R., Jr., 67 Conservative Party, Norway, 123
Clarke, Richard, 19 Conservative Party, UK, 25, 86
classified information constitutions, and intelligence
access to, recommendations for, 238 in Canada, 100
Argentina and, 168–69 reform in, 4
code of conduct, in South Africa, 202, 205, in South Africa, 204–205
213–14 in South Korea, 187
Code of Criminal Procedure, ECtHR, 41 in the United Kingdom, 79, 87–89
Codevilla, Angelo, 61 consultation, Norway and, 132–33
Cohen, William S., 71
control
Colby, William E., 69
in Argentina, 171, 176
Cold War
degree of, 5–6
end of, and transitional reform, 4–5
ECtHR and, 41–42, 46–47
and Norway, 121–22
information, models of, 14–15, 16
and U.S. intelligence oversight, 58
collection McDonald Commission on, 103
in intelligence cycle, 61–62 Norway and, 136
in the United Kingdom, 81 in South Africa, 202
Collegium for Secret Services, Poland, 149 term, 140n2, 178n3
Combat Police Organization Law, South Cooper, Yvette, 90
Korea, 183 co-optation
Combest, Larry, 73 Norway and, 132–33
Commission for Secret Services, Poland, risk of, in the United States, 72–73
151–55 corruption
Commission on the Intelligence Capabili- in Poland, 151, 154
ties of the United States Regarding in South Africa, 200
Weapons of Mass Destruction (Robb- in South Korea, 181, 188
Silberman Commission), 26, 58, 61 Council of Europe, 34
Committee for Oversight of the Intelli- establishment of, 49n2
gence, Surveillance and Security Ser- expansion of, 36
vices, Norway, 120 counterintelligence
Commons’ Foreign Affairs Committee, Norway and, 124–25
UK, 15 the United States and, 66
communications interceptions countersubversion, 81
Argentina and, 167, 177
counterterrorism, 9
South Africa and, 209, 215–16
in Canada, 113
See also mail opening; telephone tapping
the United States and, 63, 65–66
Communications Security Establishment
(CSE), Canada, 101 covert action, 64–66
communist legacy Criminal Code, Canada, 109
in Poland, 146–48, 150–51, 153 criminal intelligence, definition of, 165
complaint procedures, 6 Criminal Intelligence Service, Canada, 111
in Argentina, 168 Crown Prosecution Service, UK, 81
in Canada, 104 Customs and Revenue Agency, Canada,
in Norway, 129–30 116
in South Africa, 215 Customs Service, Poland, 146
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244 Index
Daniele, Mario, 173–75 Dodgy Dossier, 18–19, 23, 25, 85–86

Dearlove, Richard, 18 domestic intelligence, in South Africa,
deception, 15 206–208
decrees, on intelligence, 161, 166, 167, due process, 226
169–70 Duhalde, Eduardo, 172
Defence Security Command (DSC), South Dziewulski, Jerzy, 150
Korea, 183, 185, 187
defense intelligence economic safeguards
South Africa and, 208–209 in South Korea, 181–82
the United Kingdom and, 91 in the United Kingdom, 81
See also military intelligence electronic surveillance
Defense Intelligence Staff (DIS), UK, 79 Norway and, 138
function of, 83 South Africa and, 209
and media, 27 Enzelin v. France, 52n48
Defense Signals Directorate (DSD), Aus- Esbester v. UK, 45–47, 51n19
tralia, 87 espionage. See intelligence
de Klerk, F. W., 200–201 Estévez, Eduardo E., 160–79
democratic accountability, ix, 8 Estonia, 5
in Canada, 99–118 European Convention on Human Rights
in Poland, 145–59 (ECHR), 5, 34–37
democratic legitimacy and the United Kingdom, 80, 83
Argentina and, 160 European Court of Human Rights
and operational efficiency, balancing, (ECtHR), 5, 34–53, 227–28
225–39 European Intelligence Coordinator, 5
democratic oversight European Parliament, report on Echelon
comparison of, 227–28, 230 network, 138
definition of, 226 evaluation
development of, 227–28 and information control, 14–15
recommendations for, 239 media and, 15
Democratic Peoples Republic of Korea. See executive decrees, 227–28
North Korea executive oversight, 7
democratic transition in Argentina, 166–68, 171
in Argentina, 160–79 in Norway, 138–39
in Poland, 145–59 in Poland, 149–50
in South Africa, 199–222 in South Africa, 209–18
in South Korea, 180–98 in South Korea, 187–89
Denmark, intelligence reform in, 4 in the United States, 58, 69–70
Department of Homeland Security, U.S., 5, expertise, and power, 13
67 external security, in South Africa, 203
DeWine, Mike, 61
direction, in intelligence cycle, 61 Falklands War, 83
Directorate of Internal Intelligence, Argen- Farson, Stuart, 99–118
tina, 163 Federal Bureau of Investigation (FBI),
Directorate of Military Intelligence (DMI), Counterintelligence Program, 67
South Africa, 200 Federal Constitutional Court (BverfG),
Director of Central Intelligence (DCI), Germany, 42
U.S., 67, 69, 71 Federal Penitentiary Service, Argentina,
dissemination, in intelligence cycle, 63–64 162
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Index 245
files government
Argentina and, 169 and Iraq invasion, 16–22
ECtHR on, 39–40, 42–48 and knowledge/power model, 16
the United Kingdom and, 81, 96n6 and oversight, 22–27
Financial Transactions and Reports Analy- Government Communications Headquar-
sis Centre, Canada, 101, 110, 116 ters (GCHQ), UK, 27, 79–80
fire-alarm model of oversight, 59–61, functions of, 82, 96n12
238–39 Government Intelligence Community
Canada and, 115–16 (WIR), Poland, 150
ECHR and, 37–38 Government of National Unity (GNU),
Ford administration, 66, 70 South Africa, 201, 207, 210, 218
Foreign Affairs Committee (FAC), UK, 22, Graham, Bob, 70
24 Grand National Party, South Korea, 188,
foreign intelligence 191
Canada and, 101 Greece, intelligence reform in, 4
South Africa and, 208 grievance, 6, 59
Foreign Intelligence Agency (AW), Poland, Guantanamo Naval Base, 5
146, 148, 150 Gulf War, Second. See Iraq War
Foreign Intelligence Surveillance Act Gun, Katherine, 33n95
(FISA) Court, U.S., 74
Foreign Office, UK, 27 Hamilton, Lee H., 58, 72
forty-five-minute claim, 18–22, 24 Hanahoe society, 185
Fowler, Wyche, 58–59, 73 Hanssen, Robert P., 66
Franks Inquiry, UK, 32n74 Harman, Harriet, 95n3
Freeh, Louis, 62 Hellfire missiles, 65
Furre Case, 133–34 Hersh, Seymour, 64
Hewitt, Patricia, 95n3
G10 legislation, 41 Hewitt, Steve, 100
General Direction of Military Reconnai- Hewitt and Harman v. UK (No. 1), 44–45
sance, Poland, 146 Hewitt and Harman v. UK (No. 2), 46–47
General Intelligence Law Amendment Act, Holimisa, Bantu, 222n70
South Africa, 204, 215 Homeland Security Council, U.S., 5
Geneva Centre for the Democratic Control Home Office, UK, 27
of Armed Forces, ix Hoon, Geoff, 92–93
Germany House Permanent Select Committee on
Federal Constitutional Court, 42, 52n39 Intelligence (HPSCI), U.S., 61–62, 68,
G10 legislation, 41, 42, 51n35, 52n39 71, 73
Klass v. FRG, 41, 42 Howard, Michael, 30n3
loyalty test for teachers, 38 Hughes-Ryan Act, U.S., 64
system of intelligence oversight in, human intelligence (HUMINT)
52n43, 124 Butler report on, 26
Gill, Peter, 12–33 Senate Intelligence Committee on, 26
Gilligan, Andrew, 22, 24, 27–28 the United States and, 61
Globus II, Norway, 138 human rights, 226
Goldwater, Barry, 69 in Argentina, 160
Goss, Porter, 72 discourse, in East Asia, 196n2
Goss-Graham Committee of Inquiry, 61, versus national security, 35–36
69 in South Korea, 193–94
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246 Index
Human Rights Watch, 193 Intelligence Assessments Staff, UK, func-

Hussein, Saddam, 12, 16–18, 228 tion of, 83
Hutton Inquiry, UK, 15, 19–20, 24–25, 27– Intelligence Authorization Act, U.S., 64–65
28, 85–86 Intelligence Charter, U.S., recommenda-
Huvig v. France, 40 tions for, 74
Intelligence Committee, South Korea, 184,
independent oversight 190–92
recommendations for, 236 intelligence community
in South Korea, 190–91 in Canada, 100–102, 110–14
influence, and information control, 14–15 in Poland, 146
information in South Africa, 205
classified, access to, 238 in South Korea, 182–83
misuse of, 43 intelligence coordination, legislation for, 9
See also files intelligence cycle, 61–64
Information Awareness Office, U.S., 67 intelligence oversight, 3–11, 225–39
information control, 29 in Argentina, 160–79
models of, 14–15, 16 in Canada, 99–118
Inkatha Freedom Party (IFP), South Africa,
concerns in, 5–6
207, 213, 222n70
European Court of Human Rights and,
Inouye-Hamilton Committee, U.S., 61
34–53
inquiry procedures, in Norway, 128–30
good practices in, 235–39
inspections
history of, 3–5
Norway and, 128–29
issues in, 7–8, 60–68
South Korea and, 194
in Norway, 119–41
inspectors-general
obstacles to, in the United States, 68–73
in South Africa, 202, 214–15
in Poland, 145–59
intelligence
revolution in, 229–32
definitions of, 12, 37
democratization of, 12, 29 in South Korea, 180–98
philosophy of, in South Africa, 202–203 spread of, 232–35
relation to security, 9 in the United Kingdom, 79–98
intelligence accountability in the United States, 57–78
control and, 6 Intelligence Oversight Board (IOB), U.S.,
definition of, 37 58
European Court of Human Rights and, recommendations for, 74–75
34–53 Intelligence Oversight Committee, Nor-
in Norway, 119–41 way, 124–33
in South Africa, 199–222 appointment and resources of, 126–28
in South Korea, 180–98 co-optation prohibitions on, 132–33
in the United Kingdom, 79–98 legal basis and mandate of, 124–26
in the United States, 57–78 operation of, 133–39
Intelligence and Security Committee Act, powers of, 128–29
New Zealand, 112 reports by, 130–32
Intelligence and Security Committee (ISC), Intelligence Review Board, South Africa,
UK, 15, 18–19, 23–24, 83, 85, 87 215
constitutional and legal basis of, 87–89 Intelligence Service, Norway, 120–22, 125–
operation of, 89–94 26, 128
intelligence assessments, in South Korea, oversight of, 136–38
189 Intelligence Services Act, Australia, 112
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Index 247
Intelligence Services Act, South Africa, 204, Joint Intelligence Committee (JIC), U.S.,
213, 215, 217 63
Intelligence Services Act, UK, 9, 79–81 Joint Oversight Committee, Argentina,
and South Africa, 203–204 163, 170, 172–73, 175
Intelligence Services Control Act, South powers of, 173
Africa, 204 Joint Parliamentary Committee, Australia,
Intelligence Services Control Amendment 112
Act, South Africa, 204, 212, 214–15 Joint Standing Committee on Intelligence
Intelligence Services Council on Condi- (JSCI), South Africa, 211–16
tions of Service, 215 role of, 212
Interception of Communications Act Joint Terrorism Analysis Centre, UK, 5
(IOC), UK, 40 Jong Joo-pyo, 192
Interior Security Council, Argentina, 170 judicial oversight
internal security, Argentina and, 163 in South Korea, 192
Internal Security Law, Argentina, 161–63 in the United Kingdom, 82
international cooperation, the United judicial restraint, 36
Kingdom and, 82 Justice Department, U.S., 68–69
International Covenant for Civil and Polit- Justicialist Party, Argentina, 173, 175
ical Rights, 190
Juvenal, 116
investigative hearings
in Argentina, 174
in Canada, 109 Kala v. Turkey, 52n48
investigative powers, recommendations Kay, David, 17
for, 236–38 Kean Commission, 61, 68
Investigatory Powers Tribunal, UK, 82–83 Kelly, David, 24–25, 27–28, 93
Iran-Contra scandal, 58, 61, 70 Kim Chae Kyu, 183
Iraqi National Congress, 18 Kim Dae Jung, 182, 185, 188, 192–93
Iraqi Survey Group, 17, 26 Kim Deok, 184–85
Iraq War, 58, 228 Kim Ki-seop, 188
ISC and, 92 Kim Young Sam, 182, 184–85, 188
politicization of intelligence and, 12–33 King, Tom, 89–90
the United Kingdom and, 83 Kirchner, Nestor, 176
Israeli site bombings, Argentina, 164, 172, Klass v. FRG, 39, 41–42
174 Koh, Harold Hongju, 65
Italy, intelligence reform in, 4 Kola Peninsula, 121
Iwanicki, Stanislaw, 148 Korean Central Intelligence Agency
(KCIA), 180, 183, 186
J-2 Intelligence, Argentina, 162
Koslowski, Krzysztof, 150
Johnson, Loch K., 57–78, 225–39
Ko Young-Koo, 192, 195
Johnson, Lyndon B., 64
Kruslin v. France, 40
Joint Coordinating Intelligence Committee
(JCIC), South Africa, 201–202
Joint Intelligence Committee (JIC), UK, Labour Party, Norway, 123
79, 86 Lawyers for a Democratic Society, 193
chairman of, 83 Leander v. Sweden, 44, 46–47
cooperation with oversight, 91–92 least restrictive alternative, 6
function of, 83 Lee Jong Chan, 185
and Iraq invasion, 16–17, 20 legal reform, 4–5
and media, 27 ECtHR and, 40–41
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248 Index
legislation on intelligence and oversight on proportionality, 6

in Argentina, 160–62, 168–69, 171 recommendations of, 102–104
ECtHR and, 34–53 McGubbins, Mathew, 115
in Norway, 121, 124–26 media
in Poland, 148–49 Canada and, 113
in South Africa, 204 and Iraq invasion, 19–22, 27–28
in South Korea, 181–82, 185, 190 and knowledge/power model, 15, 16
in the United Kingdom, 79–80, 87–89 Norway and, 135
legislative oversight and oversight, 225
in Argentina, 172–75, 177 Poland and, 151, 153, 155
in Norway, 120–23 and politicization of intelligence, 228
in South Korea, 191–92 South Korea and, 192
strong versus weak, 154, 236, 237 the United States and, 58
in the United States, 58–60 Mevik, Leif, ix–x
See also parliamentary oversight MI5. See Security Service, UK
Leigh, Ian, 3–11, 79–98, 154 MI6. See Secret Intelligence Service (SIS)
Liberal Democrats, UK, 25, 86 Military Information Services (WSI),
Liberal Party, Canada, 114 Poland, 145–48, 150, 156n7
Library of Parliament, Canada, 113 military intelligence
Light, Paul, 116 in Argentina, 171
Lithuania, 5 legislation for, 9
litigation, accident of, 36 in Poland, 146
Louw, Mike, 203, 208 in South Korea, 187
Lund, Ketil, 123 See also defense intelligence
Lund Commission, 4, 123–24, 134 Military Security Protection Law, South
Lustgarten, Laurence, 154 Korea, 186, 190
lustration law, Poland, 147, 151, 157n15 Millennium Democratic Party, South
M. v. France, 51n19 Korea, 191
Macierewicz, Antoni, 152, 154, 156n1 Miller, Leszek, 151
Madison, James, 57 Ministerial Committee on Intelligence Ser-
mail opening vices, UK, 84
South Korea and, 190 ministerial oversight
the United Kingdom and, 85 in Argentina, 170–72
Major, John, 87 in the United Kingdom, 83–86
Malone v. UK, 40 Ministry of Defense, Argentina, 171
management of intelligence, in the United Ministry of Justice, Security and Human
States, 67 Rights, Argentina, 166–67, 171
Mandela, Nelson, 222n72 Ministry of Justice, South Korea, 187–88
manipulation, 15 Ministry of Public Safety and Emergency
Marczewski, Marian, 152 Preparedness Canada, 102, 111
Martin, Paul, 99, 102, 111–13 Miodowicz, Konstanty, 152–53
Mates, Michael, 89 Mitrokhin Archive, 94
Matthews, Joe, 213 Modise, Joe, 222n70
Maxwell-Fyfe Directive, 79–80 Moran, Jon, 180–98
Mbeki, Thabo, 222n72 motivation, and intelligence oversight,
McDonald, David, 99 68–69
McDonald Commission, Canada, 4, MQ-1, 65
99–100 Mufamadi, Sidney, 222n70
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Index 249
multi-party democracy, in South Africa, National Missile Defense (NMD), 138

199 National Party, South Africa, 200
National Police Agency (NPA), South
National Academy of Intelligence, South Korea, 187, 191
Africa, 215 National Reconnaissance Office (NRO),
National Assembly, South Korea, 191 U.S., 67
National Counter-Intelligence Unit, Can- national security
ada, 101 Canada and, 111
National Crime Prevention Strategy ECtHR on, 35–36, 38, 45
(NCPS), South Africa, 204 South Korea and, 181–83
National Defense Law, Argentina, 161–63 the United Kingdom and, 79
National Directorate for Criminal Intelli- the United States and, 72
gence, Argentina, 162, 165–67, 170 National Security Act, U.S., 67
National Directorate for Strategic Military National Security Agency (NSA), U.S., 62,
Intelligence, Argentina, 162, 165, 167, 67, 90
170 the United Kingdom and, 82
National Gendarmerie Intelligence Service, National Security Authority, Norway, 120–
Argentina, 162 22, 128
National Geo-Spatial Agency (NGA), U.S., oversight of, 138
67 National Security Law (NSL), South Korea,
National Human Rights Commission, 182, 184, 186, 190
National Security Management System,
South Korea, 193–95
South Africa, 200
National Imagery and Mapping Agency,
National Security Planning Agency Act,
U.S., 67
South Korea, 184
national intelligence, definition of, 165,
National Strategic Intelligence Act, South
206
Africa, 9, 204
National Intelligence Agency (NIA), South
Naval Intelligence Service, Argentina, 162
Africa, 206–207
necessity requirement, ECtHR on, 38
National Intelligence Coordinating Com-
Netherlands, 9
mittee (NICOC), South Africa, func-
network politics, in South Korea, 185, 189,
tions of, 210
198n38
National Intelligence Estimates (NIE), 17, New Oversight, 61, 227
21, 26 New Zealand, parliamentary oversight in,
and Iraq invasion, 16 112
National Intelligence Law, Argentina, 160– Nhlanhla, Joe, 222n70
61, 165–66, 168, 170, 172 Niger, 22
National Intelligence School, Argentina, Nimmo v. UK, 44–45
170, 173, 176 Nixon, Richard M., 182
National Intelligence Service (NIS), South nonpolitical status of intelligence services
Africa, 200 norms on, 232
National Intelligence Service (NIS), South in Norway, 127
Korea, 180–98 in South Africa, 202
history of, 181–82 in the United Kingdom, 80–81
organization of, 186–87 non-zero sum model, 13
recommendations for, 194–96 North Atlantic Treaty Organization
National Intelligence Service (NIS), UK, 45 (NATO)
National Management Forum, South and Norway, 121, 136
Africa, 211 and Poland, 147
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250 Index
North Korea, 182–84, 189 lative oversight; parliamentary over-

Norway sight
intelligence accountability in, 119–41 Oversight Act, U.S., 64–65
intelligence oversight in, 230, 231
strength of oversight in, 237 Pan African Congress (PAC), South Africa,
Nowek, Zbigniew, 150, 156n1 207
Pan-Africanist Security Service, 207
O’Brien, Kevin A., 199–222 paramilitary (PM) operatives, 65
Öcalan v. Turkey, 50n17 Park Chung Hee, 182–83
O’Connor, Dennis, 113 Parliamentary Intelligence Oversight Com-
Odum, William E., 69 mittee, Norway, ix
Office for Interception Centers, South parliamentary oversight, 7–8
Africa, 216 in Canada, 106
Office of Critical Infrastructure and Emer- comparison of, 230
gency Preparedness, Canada, 111 international comparisons of, 112
Office of National Tax Administration in Poland, 151–55
(ONTA), South Korea, 187, 191 in South Africa, 200, 209, 211–16
Office of Special Plans (OSP), U.S., 18, in South Korea, 184–85
63–64 in the United Kingdom, 86–87
Office of State Protection (UOP), Poland, See also legislative oversight
145, 147–50, 159n52 Patriot Act, U.S., 68, 74
Official Secrets Act, Canada, 114 Pentagon
Official Secrets Act, UK, 93 and covert action, 65
Oleksy, Jósef, 153 and politicization of intelligence, 18,
Omar, Dullah, 199 63–64
ombudsmen, intelligence, in Norway, 127 Peoples Solidarity for Participatory
O’Neill, Paul, 19 Democracy (PSPD), 193
operational efficiency, and democratic Permanent Standing Committee on
legitimacy, balancing, 225–39 National Security, Canada, 111
Operation Mass Appeal, 27 Peronist Party, Argentina, 164
organization of intelligence, in the United Persian Gulf War, Second. See Iraq War
States, 67 Personal Data Protection Law, Argentina,
Orlen, 159n52 161, 169
oversight Pietrzyk, Lucyna, 153
definition of, 7, 57–79, 226 Pike Committee, U.S., 4
and government, 22–27 Pitfield, Mike, 104
independent, 190–91, 236 Pitfield Committee, Canada, 105, 107
judicial, 82, 192 planning, in intelligence cycle, 61
methods in, mix of, 7–8 Poindexter, John M., 67–68, 71
ministerial, 83–86, 170–72 Poland
models of, Western, 203–204 intelligence accountability in, 145–59,
relevance of, 225 230, 233
retrospective, 133 strength of oversight in, 237
strong versus weak, 154, 236, 237 Police Act, Norway, 122
term, 140n2, 178n3, 235 police-patrol model of oversight, 59, 61,
See also democratic oversight; executive 238–39
oversight; intelligence oversight; legis- Canada and, 115–16
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Index 251
Police Security Service, Norway, 120–22, Radical Party, Argentina, 164

128–29, 132–34 Radical Socialist Party, Norway, 123
oversight of, 134–36, 138 rational model of power, 13
policy Reagan, Ronald, 59
in South Korea, 189 Refa Partisi (The Welfare Party) and others
politicization of intelligence, ix, 6, 228 v. Turkey, 51n20
and Iraq invasion, 12–33 reform in intelligence, 3–5
parliamentary oversight and, 8 in Argentina, 162–65, 176
in South Africa, 200–201, 216–18 causes of, 4
in the United Kingdom, 85 in Poland, 145
in the United States, 63 in South Africa, 199
Pollack, Kenneth, 18 in South Korea, 184–86
Powell, Colin, 19–20 Regulation of Interception of Communica-
power tions and Provision of Communica-
and professionalism, 13–14
tion-related Information Act, South
in South Korea, 181
Africa, 204, 215–16
Predator, 65
Regulation of Investigative Powers Act
preemptive war, 228
(RIPA), UK, 40, 80–82
term, 239n1
prerogative reporting
executive, 227 in Argentina, 169–70, 175
royal, 79–80 in Norway, 130–32
Presidential Truth Commission on Special in South Africa, 215
Deaths, South Korea, 192–93 in the United Kingdom, 88
President’s Daily Brief, 71 in the United States, 71
President’s Foreign Intelligence Advisory Republican Party, U.S., 72
Board (PFIAB), U.S., 58, 73 Republic of Korea. See South Korea
recommendations for, 74–75 Republic of South Africa (RSA). See South
preventive arrest, in Canada, 109 Africa
preventive war, 239n1 resources. See budgets
prior notice standard, 64–65, 71 review, term, 178n3
Privacy Act, Canada, 112 review bodies
privy councillors, Canada, 113 in Canada, 105–6
Privy Council Office (PCO), Canada, 101, and knowledge/power model, 15, 16
110 powers of, 42
processing, in intelligence cycle, 62 Rhee, Syngman, 181–82
professionalism in intelligence, 13–14 Ritter, Scott, 27
in Argentina, 160 Robb, Charles, 26
in South Korea, 185 Robb-Silberman Commission. See Com-
proportionality, 5–6 mission on the Intelligence Capabili-
Norway and, 125 ties of the United States
Provincial Intelligence Coordinating Com-
Rockefeller Commission, U.S., 58
mittees, South Africa, 210–11
Roemer, Tim, 69
public opinion, and congressional over-
Roh Moo-hyun, 182, 194–95
sight, 59–60
Roh Tae Woo, 182, 184–85
Public Servants Disclosure Protection Bill,
Canada, 114 Romania, intelligence reform in, 4
Rotaru v. Romania, 45–46
quality of law test, 5 rotation, of oversight committee person-
Quebec, 102 nel, 72–73
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252 Index
Royal Canadian Mounted Police (RCMP), Security Service, UK, 79

110–11, 113 functions of, 80–81
Security Service, 99–104 Security Service Act, UK, 45, 79–81
Royal Commission, 4 and South Africa, 203–4
rule of law, 5, 226 Security Service Commissioner, UK, 47
in South Africa, 202 Security Service (SB), Poland, 147
Rumsfeld, Donald, 18 Security Service Tribunal, UK, 47, 80
Rusak, Tadeusz, 147 Sejersted, Fredrik, 119–41
Sejm Commission for Secret Services,
Sami population, 135 Poland, 149, 153
Samson, Robert, 99 Senate Armed Services Committee, U.S.,
Sandberg v. Sweden, 46 22
scandals in intelligence community Senate Intelligence Committee, U.S., 22,
in Norway, 122 26, 62
in Poland, 152, 156n7 Senate Select Committee on Intelligence
and reform, 3–4 (SSCI), U.S., 61, 68, 71, 73
in South Africa, 217 sensitive information, definition of, 88
in South Korea, 185–86, 188 September 11, 2001
in the United States, 58 and intelligence oversight, 60–68, 84–
Scarlett, John, 18–19, 24–25 85, 108–109
Schmitt, Gary, 28 and intelligence reform, 5
Schwartz, Thomas, 115 sex equality, Norway and, 140n9
Scowcroft, Brent, 73 Shayler, David, 93
screening Shelby, Richard C., 70
ECtHR on, 39, 42–48 Shorten, Jane, 114
secrecy Siematkowski, Zbigniew, 145
and information control, 15 Sigxashe, Sizakele, 208
maintaining, recommendations for, 238 Silberman, Laurence, 26
Secretariat of Intelligence, Argentina, 161, Single Intelligence Account, UK, 83
165–66, 170–71 Slovenia, 5
Secret Intelligence Service (SIS), UK, 9, 80 Social Democratic Party (SLD), Poland,
cooperation with oversight, 94 148, 150–51, 156n3
functions of, 81–82 Socialist Peoples Party, Norway, 123, 127
and Iraq invasion, 18, 20 Soria, Carlos, 172
security, relation to intelligence, 9 South Africa
Security and Intelligence Co-ordinator, intelligence accountability in, 199–222
UK, cooperation with oversight, 91 intelligence oversight in, 230, 234–35
Security Appeals Tribunal, Canada, 104 intelligence structures in, 206, 216
Security Intelligence Act, Canada, 87 strength of oversight in, 237
Security Intelligence and State Security South African National Defense Force
Council Act, South Africa, 200 (SANDF), 205, 208–209
Security Intelligence Review Committee, South African Police Security Branch, 200
Canada, 87, 104–106 South African Police Services Act, 204
Security Offenses Act, Canada, 101 South African Police Service (SAPS), 205,
adoption of, 104–107 207
review of, 107–108 National Crime Investigation Service
Security of Information Act, Canada, (NCIS), 207–208
112–14 South African Secret Service (SASS), 208
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Index 253
South Korea Terrorism Prevention Bill, South Korea,

intelligence oversight in, 180–98, 230, 193
234 Terrorist Threat Integration Center, U.S.,
strength of oversight in, 237 67
Standing Committee on National Security, Thomas, Swinton, 82
Canada, 113 Toma, Miguel Angel, 172
Standing Committee on Scrutiny and Con- Tomlinson, Richard, 93
stitutional Affairs, Norway, 132, 137 torture, and intelligence, 39, 113, 185
State Intelligence Secretary, Argentina, 165 Total National (Counter-Revolutionary)
State Security Council (SSC), South Africa, Strategy, South Africa, 200
200 tradecraft, 14
Straw, Jack, 32n74 Transitional Executive Council (TEC),
strong oversight, 154, 236 South Africa, 201–202
comparison of, 237 transitional reform, 4–5
Sub-Council on Intelligence, South Africa, Transkei Intelligence Service, 207, 220n17
201–202 transparency
superterrorism, 5 in Argentina, 176–77
support staff in South Africa, 202
recommendations for, 238 in the United States, recommendations
in the United Kingdom, 90–91 for, 74
Supreme Chamber of Control (NIK), Trudeau, Pierre, 104
Poland, 150 Truman, Harry S, 63
Supreme Public Prosecutor’s Office, South trust, lack of, in South Africa, 200, 218
Korea, 187 Tsavachidis v. Greece, 45
surveillance Turner, Stansfield, 69
Argentina and, 164
unauthorized
ECtHR on, 39–42
access to threats, 209
Norway and, 123, 125, 129, 134–35, 138
disclosure, 217
the United Kingdom and, 81
United Kingdom
Sweden, ECtHR and, 46–47
intelligence accountability in, 79–98,
Switzerland, ECtHR and, 40, 42, 46
229–31, 230
and Iraq invasion, 16–27
Taliban, 65 and South Africa, 203–204
tasking strength of oversight in, 237
in South Korea, 189 United Nations Security Council, 19,
in the United Kingdom, 82 33n95
taxi wars, South Africa, 210 United States
Taylor, Ann, 27, 90 and Canada, 109
technology intelligence accountability in, 57–78,
and files, 43 229, 230
the United States and, 62 and Iraq invasion, 16–27
technology intelligence (TECHINT), 29 and Norway, 121, 136, 138
telephone tapping recommendations for, 74
ECtHR on, 40–41 and South Africa, 203–204
Norway and, 125 strength of oversight in, 237
South Korea and, 188, 190 University of Durham, Human Rights
the United Kingdom and, 85 Centre, ix
Tenet, George, 17, 21, 70, 72 unmanned aerial vehicles (UAV), 65
................. 11310$ INDX 05-16-05 11:36:18 PS PAGE 253

254 Index
uranium, 22 Western European Union, 4, 232

U.S. Army Special Forces, 65 whistle-blowing, procedures for, 6
See also complaint procedures
Vaca, Eduardo, 164 White Paper on Defense, South Africa,
Venda National Intelligence Service, 207, 204
220n17 White Paper on Intelligence, South
V et al. v. Netherlands, 44
Africa, 199, 203–205, 207
Volpi v. Switzerland, 46
Wilson, Woodrow, 68
Walker family, 66 Winkler, Theodor H., ix–x
Wasserman, Zbigniew, 152, 154, 156n1 Wolfowitz, Paul, 18–19
weapons of mass destruction (WMD), 17–
18, 20, 25–26, 58, 228 zero sum model, 13
the United Kingdom and, 85–86, 90 Zybertowicz, Andrzej, 145–59
................. 11310$ INDX 05-16-05 11:36:19 PS PAGE 254

List of Contributors
Dr. Hans Born, Senior Fellow, Geneva Centre for the Democratic Control of
Armed Forces, Geneva, Switzerland, h.born@dcaf.ch
Dr. Iain Cameron, Professor in Public International Law, Faculty of Law, Uni-
versity of Uppsala, Uppsala, Sweden, Cameron@jur.uu.se
Mr. Eduardo E. Estévez, Member of Asociación para Polı́ticas Públicas; former
advisor to the Interior Security Secretariat, Ministry of Justice, Security and
Human Rights, Buenos Aires, Argentina, eduardoestevez@hotmail.com
Dr. Stuart Farson, Lecturer, Political Science Department, Simon Fraser Univer-
sity, Vancouver/Surrey, Canada, farson@sfu.ca
Dr. Peter Gill, Reader in Politics and Security, Liverpool John Moores Univer-
sity, Liverpool, United Kingdom, p.gill@livjm.ac.uk
Dr. Loch K. Johnson, Regents Professor of Political Science, University of Geor-
gia, Athens, United States, johnson@arches.uga.edu
Dr. Ian Leigh, Professor of Law, Co-director of the Human Rights Centre,
Department of Law, University of Durham, United Kingdom, Ian.Leigh@durham
.ac.uk
Dr. Jonathan Moran, Senior Lecturer in Criminology and Criminal Justice, Uni-
versity of Glamorgan, Pontypridd, Wales, United Kingdom, jmoran@glam.ac.uk
Dr. Kevin O’Brien, Senior Policy Analyst, RAND Europe, Cambridge, United
Kingdom, obrien@rand.org
Dr. Fredrik Sejersted, Attorney at Law, Office of the Attorney-General, Oslo,
Norway, fredrik.sejersted@regjeringsadvokaten.no
Dr. Andrzej Zybertowicz, Director, Sociological Institute, Copernicus Univer-
sity, Torun, Poland, ertowicz@umk.pl
— 255 —
................. 11310$ CONT 05-16-05 11:36:15 PS PAGE 255

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Who’s Watching

................. 11310$ $$FM 05-16-05 11:34:27 PS PAGE i

Potomac Books, Inc.

................. 11310$ $$FM 05-16-05 11:34:28 PS PAGE iii

Library of Congress Cataloging-in-Publication Data

Printed in Canada on acid free paper that meets the

Potomac Books, Inc.

................. 11310$ $$FM 05-16-05 11:34:29 PS PAGE iv

Tables and Figures vii

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6 Canada’s Long Road from Model Law to Effective

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Figure 2.1 Model of Power/Knowledge Interaction 16

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Intelligence services play an indispensable role in democratic societies. By

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Ambassador Theodor H. Winkler

Ambassador Leif Mevik

................. 11310$ FRWD 05-16-05 11:34:45 PS PAGE x

................. 11310$ $ACK 05-16-05 11:34:48 PS PAGE xi

ABW Agencja Bezpieczenstwa Wewnetrznego (Agency for Internal

................. 11310$ ACRO 05-16-05 11:34:53 PS PAGE xiii

FBI Federal Bureau of Investigation (USA)

................. 11310$ ACRO 05-16-05 11:34:53 PS PAGE xiv

RSA Republic of South Africa

................. 11310$ ACRO 05-16-05 11:34:53 PS PAGE xv

................. 11310$ PRT1 05-16-05 11:34:59 PS PAGE 1

A Brief History: From 1975 to 9/11

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................. 11310$ $CH1 05-16-05 11:36:22 PS PAGE 4

................. 11310$ $CH1 05-16-05 11:36:23 PS PAGE 5

executive may be antidemocratic: intelligence becomes a law unto itself—a ‘‘no

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................. 11310$ $CH1 05-16-05 11:36:24 PS PAGE 7

Agencies: Design and Accountability

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Nevertheless, there are some important questions—about how many security

................. 11310$ $CH1 05-16-05 11:36:25 PS PAGE 9

ing relevant intelligence and countering specified threats. It is essential, however,

................. 11310$ $CH1 05-16-05 11:36:25 PS PAGE 10

................. 11310$ $CH1 05-16-05 11:36:26 PS PAGE 11

T he intelligence activities of states—whether democratic or not—are inescap-

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Power and Professionalism

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................. 11310$ $CH2 05-16-05 11:36:28 PS PAGE 14

................. 11310$ $CH2 05-16-05 11:36:29 PS PAGE 15

U.S. and UK Intelligence and the Invasion of Iraq

Government and the Agencies

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weapons of mass destruction (WMD) in October 2002. The task of government

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There was dissent within the UK intelligence community as to the strength

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Government and the Media

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My colleagues, every statement I make today is backed up by sources, solid sources.

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Speaking to the Commons on the day of publication, Blair said: