Who’s watching the spies: Establishing intelligence service accountability - Hans Born, Loch K. Johnson

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 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

353.17235—dc22 2004027143

Printed in a on ac n da id free paper that meets the

American National Standards Institute Z39-48 Standard.

Potomac Books, Inc.

22841 Quicksilver Drive

Dulles, Virginia 20166

First Edition

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C a

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

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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Beyond the Nation State: The Influence of the European

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. Este´vez

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

Ambassador Theodor H. Winkler

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.

Ambassador Theodor H. Winkler

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 ´

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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Asociacion Mutual Israelita Argentina (Argentina)

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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