Why Intelligence – and Parliamentary Oversight of Intelligence – is important

Session III: Challenges of Parliamentary Oversight

23 August 2008

Today’s Presentation:

1. Disclaimer

2. Why Intelligence?

3. Why Parliamentary Intelligence Oversight (PIO)?

– Mechanisms of PIO– Challenges of PIO– PIO Best Practice

4. Concluding Remarks

Disclaimer

• Intelligence oversight is a product of a state’ system of governance, politics, history and culture– Despite this there is, generally, international best

practice

• Intelligence oversight has to match Constitutional and legislative provisions of each dispensation

• There is no single definitive model of democracy and intelligence oversight

Why Intelligence?

• Despite promises made at the end of the Cold War, the world is not a safer place– There are three wars at present

• Iraq, Afghanistan and Georgia

– There are many inter-state conflicts• Ethiopia-Eritrea; Djibouti-Eritrea and Chad-Sudan

– There are many intra-state conflicts– Poverty, Hunger, and rising food and oil

Prices

Why Intelligence?

• To warn, inform, predict and advise governments on threats and potential threats to national security and interests

• Intelligence exists to ensure that states:– Avoid strategic surprises– Provide foreknowledge and early through long

term projection expertise– Support policy processes

Why Intelligence?

• Contributes to a democracy’s ability to: – safeguard the Constitution and state institutions and – provide security services to all the citizens and

inhabitants

• Contribute to good governance by uprooting corruption

“THE NEED FOR INTELLIGENCE IS A FACT OF LIFE FOR MODERN GOVERNMENTS”

WINKLER, TH, 2002

Why Intelligence?

• Intelligence has three basic functions:– Information Gathering (Collection)

• Infor about people, places, events and activities that are threats to human security

– Analysis• Collation, analysis and evaluation of raw data and

its conversion into intelligence

– Counter-Intelligence• Prevents espionage, subversion and sabotage by

employing offensive and defensive measures

Why Intelligence?

“Intelligence refers to the state’s awareness and understanding of its

strategic environment, gained by way of gathering and analysing secret and

open-source information…

DCAF 03/2006

Why PIO?

• Parliamentary oversight is a review of events – missions; operations; powers, mandates and expenditures of intelligence services ex post facto

• Parliamentary Oversight of intelligence is only effective if it is part of a national system of oversight especially by the executive branch of government and internal mechanisms in the intelligence services

• Source of democratic legitimacy of Intelligence

Why PIO?

• Oversight is not an end in itself but a means to an end:– Assure legality of operations– Probity of Intelligence Services– Effectiveness and efficiency– Democratic accountability– Non-sectarianism and political non-

partisanship

Why PIO?

• Post 9/11 Oversight is important because:– There are more spies and more money which

necessitates ensuring that all effectively used– Intelligence powers have increased to a point where

these are impacting negatively on civil liberties: Guantanamo and rendition of citizens

– Intelligence cooperation has increased in response to objective material conditions without corresponding oversight structures

– Need to insulate intelligence from politicisation in light of claims of sexing up intelligence

Why PIO?

• Intelligence operates in secrecy in response to the demand of objective conditions

• Democracies have to devise ways and means of controlling governmental functions that operate under justifiable secrecy without denting their effectiveness

• Intelligence oversight is concerned with the quest to obtain that balance

Why PIO?

• Parliamentary Oversight is important because it:– mitigates against the risk of illegal and

unethical practices in intelligence services– Regulates the use of intrusive investigative

techniques by intelligence thus guaranteeing privacy and human rights

– Safeguard against the abuse of personal data for self-serving purposes

Why PIO?

- ensure the effectiveness and efficiency of intelligence services

- Protects legitimate organisations against harassment and undue infiltration by intelligence services

- Ensures that international cooperation of intelligence services does not lead to the discreditable use of intelligence

- Ensures paradigm shift from regime to human security

Why PIO?

“The absence of effective security structures under civilian and democratic control forms an insurmountable obstacle to sustained development. Without security there can simply be no sustained development nor any progress towards democracy, stability and peace”.

Winkler TH, 2002

Why PIO?

• Intelligence oversight is an important part of a country’s system of good governance and democracy

• However, the prerequisite for an effective oversight system is the knowledge of intelligence:– “You cannot transform that which you do not

know” Nhlanhla JM, 2001– “It is difficult to lead or to reform intelligence

services from a position of ignorance or inexperience” Winkler TH, 2002

Mechanisms of PIO

• Mechanisms of PIO are:– Questions and interpellations– Parliamentary hearings and investigations

backed by the power of subpoena– Public Reporting: Naming and Shaming– Budget Approval– Policy-making and Review– Tasking other state organs to investigate– Access to information held by intelligence

Mechanisms of PIO

• Political control of the executive:• Does the government still enjoy confidence?

• Policy Control:• Oral and written questions and interpellations

• Budgetary Scrutiny:• Preview and review of plans of intelligence

services

• Accountability:• Supported by reports from relevant authorities

Van Eekelen WF, 2002

PIO Challenges

• PIO Challenges to effective oversight are:– Resistance to change (Bureaucratic rigidity)– Micro-management by Parliament– Policy clashes with intelligence services they

are overseeing– Avoiding the leakage of intelligence– Inadequate resourcing of oversight structures

PIO Challenges

• AUTHORITY:– Parliamentary Intelligence Oversight must be part of a

wall to wall system and authoritative

• ABILITY:– Overseers must understand intelligence services and

their expertise and have staff to assist in their work

• ATTITUDE:– Overseers must applaud good work and punish poor

performance (audits and plaudits)

• SECRECY VS TRANSPARENCY BALANCE

PIO Best Practice

• Key factors for success in the system are:– Mutual respect between the overseers and

the overseen– Recognition of professional competence– Transparent decision-making procedure– Recognition of the primacy of politics in

decision and policy-making processes– Striving towards national consensus on

security and intelligence matters

PIO Best Practice

• For Parliamentary Oversight of Intelligence to be effective the following is important:– LAWS:

• Must clearly define mission, role, functions and mandate

• Clearly stipulate areas of responsibility of the Minister and those of the Head of the Intelligence Service

• Limits of competencies• Methods of operation enlisting do’s and don’ts

PIO Best Practice

• Organisational structure in broad terms with clearly stated areas of competence

• Cooperation, coordination and collaboration system domestically and internationally

• Provide for mechanisms for legislative, executive, judicial and independent oversight

• Legal processes for addressing complaints when there are real and alleged violations

PIO Best Practice

– Funding:• Oversight structures must have adequate funding

to meet their legislative obligations and responsibilities

• Effective cooperation between the auditors and other financial oversight mechanisms with Parliament

– Security:• Leakages must be avoided at all cost• Sources, methods, know-how and operations must

be protected at all times

PIO Best Practice

– Technology:• PIO must keep abreast with technological

development and modernise the process of oversight

– Whistle-blowing:• Protect whistle-blowers and create a mechanism

that would ensure that whistle-blowing does not lead to leakage of secrecy under this guise

PIO Best Practice

• Everybody needs to know what they have to do• Everybody needs to know what everybody else has

to do• There should be no overlapping missions, no

duplication and no unassigned important missions• The whole must form a team• Everybody is responsible for getting their job done

effectively and efficiently and is held responsible for failure to deliver

Winkler TH, 2002

CONCLUDING REMARKS

• Every country is unique although there are principles that enable us to generalise

• There is no single model of democracy and intelligence oversight

• Intelligence is an indispensable institution in the advancement of security, democracy, stability, development and peace

• Secrecy associated with the conduct of intelligence demands creative way of oversight

CONCLUDING REMARKS

• In most democracies five pillars of oversight are in place:– Executive– Legislative – Judicial– External or independent oversight – Internal control measures of intelligence

services

CONCLUDING REMARKS

• Legislative Oversight has hitherto been reactive although in most democracies there is a growing realisation of pro-active oversight: Preview of plans and operations

• Legislatures are appreciating the need for expertise in intelligence oversight and their empowerment is an important area if intelligence services are to be smarter and oversight more robust and effective: changing the conduct and culture of intelligence services

Thanks for your attention

Questions and Comments are welcomed