By definition, the work of intelligence agencies is covert and secret. Intelligence oversight maintains the integrity of the system and the techniques employed by the secret services protecting citizens’ rights to privacy and confidentiality. Although it may seem to restrict the work of intelligence, a clear legal framework increases both intelligence legitimacy and efficiency.
By Anne Lise Michelot
By definition, the work of intelligence agencies is covert and secret. They collect and process information with the purpose of supporting decision-making. Their methods of data gathering (and the data itself) are usually classified as they are of importance to national security. However, despite this necessary high level of secrecy, this does not exempt them from any type of control; for example, the head of a secret service will control the performance of the agency. In a democratic state, other forms of oversight will also be applied to compel agencies to share information regarding their activity with various institutions.
Democratic nations develop systems of oversight to ensure that the use of intelligence methods by various organisations is always carried out while respecting their citizens’ rights to privacy and confidentiality. The intrusive methods used by intelligence agencies to collect information can be exploited to serve the interests of authoritarian regimes, at the expense of human rights. Intelligence oversight maintains the integrity of the system and the techniques employed by the secret services.
According to the Geneva Centre for the Democratic Control of Armed Forces (DCAF)[1], an effective oversight and accountability system in a democratic state should have the following characteristics:
– A clear legal framework defining the mission and mandate of intelligence agencies. As mentioned earlier, this ensures that no unlawful use can be made of their abilities. Such framework should also outline the techniques and methods of intelligence collection that are permitted or prohibited, including the conditions in which they can be used.
– The oversight mechanisms should be multiple and diverse, including controls from the executive, judiciary, legislative powers and independent specialised organisms. In order to be effective, these oversight bodies need to be given the adequate means to fulfil their mission. These include independence from political interest, access to relevant classified information and the authority to conduct their investigations. In addition, oversight systems must guarantee the preservation of secrecy, as is needed in the particular field they are controlling.
– Finally, an effective oversight system will provide the possibility for legal recourse should there be abuses to report.
Oversight may seem to be restrictive to the work of intelligence, but in fact, it may be quite the opposite. When provided with a clear legal framework in which to operate, intelligence agencies increase both their legitimacy and efficiency. On the one hand, the law, by defining their work, protects them from abusive political intervention. On the other hand, the oversight system allows for their performance to be measured and earns them the trust of democratic institutions.
Such an argument was made by Jean-Jacques Urvoas, a French socialist deputy who advocated strongly for reforms of the oversight system. According to him, bringing intelligence further under control is beneficial not only to democracy but also to national security and the agencies themselves [2]. By bringing intelligence out of the darkness, public understanding of its benefits can be increased, as opacity and suspicion over this covert field diminish. Moreover, given a legal framework, intelligence agencies will have a stronger voice within the decision-making process and will be given access to more resources, allowing them to increase their capacities to better respond to new threats [3].
Measuring the effectiveness of oversight in reality, as opposed to theory, is not an easy task. While a key component of oversight is transparency, the work of intelligence requires secrecy. Therefore, the organisms performing controls cannot give detailed overviews of their work and their findings. As a result, a more informal, public form of oversight cannot be achieved. Public opinion, through civil society organisations, can hold elected governments and their agencies accountable for their actions and demand for more transparency. This can only be achieved if the public is made aware of their activities.
The peculiar nature of intelligence makes it a difficult state activity to control and keep under check. Yet, a democratic state if it wants to abide to human right standards cannot conduct intelligence activities without a suitable oversight system.
Sources:
[1] Geneva Centre for the Democratic Control of Armed Forces, “Intelligence Oversight”, SSR Backgrounder Series (Geneva: DCAF, 2017).
[2] Urvoas, J-J (2014 February 4). “Le contrôle parlementaire des services de renseignement, enfin !”. Fondation Jean-Jaurès.
[3] Urvoas J-J, Pascal Lorot (2013/4). “Les enjeux du contrôle et de l'efficacité du renseignement français”. Géoéconomie 67, p34.