Ukraine

Democratic Security Sector Governance

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spyIntelligence, or intelligence services, comprises state agencies that collect, analyse, and disseminate information related to threats to national security. This tasks a wide variety of organisations, such as military intelligence, police intelligence, foreign and domestic intelligence. Intelligence also includes those agencies tasked with the investigations of terrorist financing and the prevention of money laundering at national and international levels.[1]

Certain intelligence services can be distinguished from other government agencies by the special powers they possess – subject to clear authorisation processes – to collect information, such as the power to intercept communications, conduct covert surveillance, use informants, and enter private property.[2]

Given the special nature and powers of the intelligence services they must be subject to oversight in order to ensure they are accountable, comply with the established policies, norms and regulations, respect human rights and international standards, and use public funds in an accountable fashion.

Intelligence Oversight

Oversight encompasses ex-ante scrutiny, ongoing monitoring, and ex-post review, as well as evaluation and investigation. Oversight is performed by managers within the intelligence services, executive officials, members of the judiciary and parliament, independent ombuds institutions, audit institutions, specialized oversight bodies, journalists, and members of civil society.[3]

The main purpose of oversight is to hold intelligence services accountable for their policies and actions in terms of legality, propriety, effectiveness, and efficiency. Effective intelligence oversight requires not only coordinated activity by several state bodies, but also the active review of governmental conduct by members of civil society and the media.[4]

One of the fundamental principles of democratic governance is the accountability of state institutions to the electorate. Furthermore, since intelligence services make use of public funds, the public has a right to know whether those funds are being used in a proper, legal, and efficient manner.[5]

The most common mechanisms to monitor intelligence services are parliamentary committees and expert oversight bodies. Intelligence agencies, as any other government agency, are obliged to respect the rule of law and act as a servant of the public. Since intelligence services play a vital role in protecting national security and because their resources are limited, it is important that those resources are used effectively and efficiently. Therefore, oversight is crucial to ensure those resources are deployed in a manner that achieves the priorities set for them by the executive while obtaining the most value for the taxpayer money spent.[6]

Recommendations and best practices in intelligence oversight

Every state needs to ensure its intelligence services act in a manner consistent with its international legal obligations, including those outlined in the UN Charter and the International Covenant on Civil and Political Rights. Depending on the service’s mandate, international agreements regarding the use of police powers may also be applicable. Additionally, there are a series of common standards and best practices that contribute to effective intelligence oversight.[7]

Recommendations[8]:

  • There should be both internal and external oversight bodies for an oversight system to be effective. These bodies are: senior service management, the executive, the judiciary, parliamentary committees, expert bodies, ombuds institutions, supreme audit institutions, civil society, and the media.
  • The mandates of the intelligence oversight system should cover the propriety, legality, effectiveness, and efficiency of the entire intelligence community. They should define both powers and methods that can be used to conduct oversight. The mandate should be defined in a formal, detailed manner and be a part of a comprehensive legislative framework on intelligence oversight.
  • At least one body in the intelligence oversight system should be civilian, independent, and external to both the intelligence services and the executive.
  • The concept of the intelligence service should be defined in a functional manner. Meaning, any state organization whose primary tasks are the collection, analysis, and dissemination of national security information is an intelligence service.
  • Oversight should be an ex-ante, ongoing, and ex-post activity. Oversight should take place before a decision has been made, while it is being implemented, and after it has been implemented.
  • The effectiveness of the intelligence oversight system should be assessed regularly by independent bodies.
  • Intelligence oversight bodies should communicate regularly with foreign counterparts in order to identify and share good practices.
  • Any legislation establishing an intelligence oversight system should include the following elements:
    • A legislative committee with guaranteed access to persons, places, and records
    • An independent body for complaints
    • One or more expert oversight bodies
  • Secrecy should be an exception. Transparency and access to information are crucial for democratic governance.
  • Legislation on access to information should not be defined or drafted by the intelligence services.
  • Intelligence services must provide to the parliament all the information necessary in order for them to fulfil their oversight role. The parliamentary oversight committee should be provided with further detailed and sensitive information on a confidential basis.
  • Oversight personnel must be provided with free access to intelligence services premises and information.
  • Oversight bodies should publish periodic and meaningful reports on their websites, as well as present them to the parliament. These reports should include specific recommendations. Implementation of latter should be monitored leading to follow-up reports.
  • Members of parliamentary intelligence oversight committee should be trained on how to protect classified information they have access to.
  • Intelligence oversight bodies should be transparent, consistent and accountable, with high standards of professionalism.
  • Legal framework should include effective mechanisms to monitor the use of covert, intrusive methods of information-collection through parliamentary committees and expert oversight bodies. The framework should also clearly define those methods and specify proper grounds for their use.
  • The conditions of personal data use and storage should be clearly defined by the legislative mandate of the intelligence service. Compliance with that mandate should be monitored by independent oversight bodies.
  • Intelligence services should develop internal guidelines on information sharing. They should also develop domestic and international information-sharing agreements.
  • Financial oversight best practices:
    • Intelligence budgets should be comprehensive
    • They should be disclosed to the public as much as possible
    • Intelligence services should comply with laws regulating internal financial controls and audit mechanisms of public agencies
    • Audit institutions and Parliaments should have access to all the information necessary to oversee intelligence services finances. They should also have the necessary tools and resources to fulfil their oversight task. Financial oversight findings should be communicated to the public
  • There should be mechanisms in place to handle both insider and public complaints. These should include guarantees for non-retaliation. Complaint-handling bodies should be independent of the government.

Resources

DCAF (2012) Overseeing Intelligence Services: A Toolkit.

DCAF (2011), Legislating for the Security Sector Toolkit: Understanding Intelligence Oversight.

DCAF (2011), Legislating for the Security Sector Toolkit: Compilation of Good Practices for Intelligence Agencies and their Oversight.

DCAF (2011), Legislating for the Security Sector Toolkit: The Canadian Security Intelligence Service Act

DCAF (2011), Legislating for the Security Sector Toolkit: The Netherlands Intelligence and Security Services Act

DCAF (2011), Legislating for the Security Sector Toolkit: The Argentinian National Intelligence Law

Hans Born, Ian Leigh (2005), Making Intelligence Accountable: Legal Standards and Practice for Oversight of Intelligence Agencies.

The United Nations compilation of good practices on intelligence oversight

[1] DCAF (2012) Overseeing Intelligence Services: A Toolkit. p6

[2] Ibid.

[3] Ibid.

[4] Ibid. p. 7

[5] Ibid. p. 17

[6] Ibid. p. 18

[7] See The United Nations compilation of good practices on intelligence oversight

[8] DCAF (2012) Overseeing Intelligence Services: A Toolkit. p. 20, pp. 42-43, 64, 83-84, 100, 121-122, 142-145,174-175, 193-196.

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