Reforming intelligence services : Some issues
M. Jashim Ali Chowdhury
Published in the Daily Star, Law and Our Rights, Issue No 137, September 26, 2009
M. Jashim Ali Chowdhury
Published in the Daily Star, Law and Our Rights, Issue No 137, September 26, 2009
There is an inherent dilemma between democracy, which requires accountability, and intelligence, which requires secrecy. In our country, the democratic accountability of the executive to the legislature seems to be entirely exempted for intelligence services. As a result, intelligence agencies cannot be subjected to the same rigors of public or parliamentary debate or the same scrutiny by the media as other government agencies. Yet they being institutions within democracy, are responsible not to themselves, but to the elected representatives of the people, and, ultimately, to the populace. This argument gets stronger foothold when the allegations of illegal detentions, forceful interrogations and custodial violence against the 'dissidents' by the members of intelligence services become so rampant as to entree in the public a feeling that these agencies have placed themselves above the rule of law. So the dilemma may well be reduced to the question: 'How much secrecy is necessary to preserve the efficiency of intelligence?
The intelligence apparatus of Bangladesh
The intelligence agencies operating to protect internal or national security in Bangladesh include National Security Intelligence (NSI), Directorate of General Forces Intelligence (DGFI), Special Branch (SB) of the Police, the Special Security Force (SSF), the Defence Intelligence Units, Criminal Investigation Division (CID) of the Police, Intelligence Cell of the NBR and Intelligence Cell of RAB. The NSI, DGFI and SSF are directly accountable to the Prime Minister. The NSI was created by a Cabinet decision in 1972 and hence lacks a statutory basis. The SB is a part of the Police and reports to the Home Ministry. Government almost secretly allocates money for intelligence services, without subjecting the allocation to parliamentary oversight during the passing of national budget. Functionally they enjoy almost unrestricted power of policing over any citizen severely affecting his constitutionally guaranteed human rights. As for example, the SSF is empowered to arrest any person without warrant or to cause him death if there is 'reason to believe' that his movement or presence is prejudicial to the physical security of a VIP (Section 8 of the Special Security Force Ordinance, 1986). This again is exacerbated by Section 11 which prevents prosecution for such acts without executive sanction.
So the role of intelligence in a democratic society is too important to be left without any scrutiny or regulation. Though the very nature of the intelligence services emphasizes more on internal mechanisms of control than external ones, it is very dangerous to leave the oversight exclusively to them. Both internal and external (legislative and judicial) controls are necessary to ensure an effective oversight mechanism.
The intelligence agencies operating to protect internal or national security in Bangladesh include National Security Intelligence (NSI), Directorate of General Forces Intelligence (DGFI), Special Branch (SB) of the Police, the Special Security Force (SSF), the Defence Intelligence Units, Criminal Investigation Division (CID) of the Police, Intelligence Cell of the NBR and Intelligence Cell of RAB. The NSI, DGFI and SSF are directly accountable to the Prime Minister. The NSI was created by a Cabinet decision in 1972 and hence lacks a statutory basis. The SB is a part of the Police and reports to the Home Ministry. Government almost secretly allocates money for intelligence services, without subjecting the allocation to parliamentary oversight during the passing of national budget. Functionally they enjoy almost unrestricted power of policing over any citizen severely affecting his constitutionally guaranteed human rights. As for example, the SSF is empowered to arrest any person without warrant or to cause him death if there is 'reason to believe' that his movement or presence is prejudicial to the physical security of a VIP (Section 8 of the Special Security Force Ordinance, 1986). This again is exacerbated by Section 11 which prevents prosecution for such acts without executive sanction.
So the role of intelligence in a democratic society is too important to be left without any scrutiny or regulation. Though the very nature of the intelligence services emphasizes more on internal mechanisms of control than external ones, it is very dangerous to leave the oversight exclusively to them. Both internal and external (legislative and judicial) controls are necessary to ensure an effective oversight mechanism.
Parliamentary oversight
Though there are 38 Standing Committees of the Parliament on different Ministries including the Ministries of Defense and Home Affaires, there is none on the intelligence specifically. Creation of such a special committee may be a good choice. Although the exact reach of the committee may be debated, it must minimally and necessarily include the inspection of operations and activities, of sources and methods for obtaining information, and of the information produced by intelligence activities, including classified and especially sensitive information. Without these facilities, the parliamentary oversight is simply not going to be ineffective to detect and deter misconducts and illegalities. The 'secret budget' assigned to the intelligence agencies must see the light of the day in this committee. The lesson learnt from the US and UK is pertinent in this regard.
Though there are 38 Standing Committees of the Parliament on different Ministries including the Ministries of Defense and Home Affaires, there is none on the intelligence specifically. Creation of such a special committee may be a good choice. Although the exact reach of the committee may be debated, it must minimally and necessarily include the inspection of operations and activities, of sources and methods for obtaining information, and of the information produced by intelligence activities, including classified and especially sensitive information. Without these facilities, the parliamentary oversight is simply not going to be ineffective to detect and deter misconducts and illegalities. The 'secret budget' assigned to the intelligence agencies must see the light of the day in this committee. The lesson learnt from the US and UK is pertinent in this regard.
The US and UK model
In the United States, the two houses of Congress have independent oversight committees - the Select Committee of Intelligence in the Senate and the Permanent Select Committee on Intelligence in the House of Representatives. The committees have power of subpoena and can authorize appropriations for intelligence activities. The President is obliged by the General Congressional Oversight Provisions (50 U.S.C.A § 413) to ensure that they are kept fully and currently informed of the intelligence activities. Additionally the President ensures that any illegal intelligence activity is reported promptly. Further, the Director of Central Intelligence keeps the committees fully and currently informed of all covert actions of any department or agency.
Care has been taken to the concern that some intelligence information is too sensitive to share publicly. In general, only the identity of sources and the details of technical operations are withheld from the intelligence committees. The Director's reporting requirements are subject to two exceptions: First, his reporting shall be 'consistent with the protection from unauthorized disclosure of classified information'. And Secondly, information may be limited if the President determines that 'it is essential to limit prior notice to meet extraordinary circumstances'.
In UK, the Intelligence and Security Committee established by the Intelligence Services Act 1994 takes the role. It comprises nine members taken either from the House of Commons or the House of Lords. Five of the Members belong to the ruling party. They are appointed by the Prime Minister in consultation with the Leader of the Opposition. The Intelligence and Security Committee holds regular weekly meetings while Parliament is in session to discuss issues pertaining to the work of the three intelligence services. The Committee examines the role, function and management of the services, their tasking and targets, financial matters, staffing and structure.
The powers to obtain evidence are set out in Schedule 3 to the 1994 Act. Information defined as 'sensitive' can be withheld from the Committee if the information may lead to the identification of sources, of operational information on any past, present, or future operations. Additionally, the government does not have an obligation to disclose information to the Committee that was not asked for and the Committee has no express power to obtain information from anyone other than the Heads of the Agencies.
Both the models show that complexity and secrecy of intelligence makes it inevitable for the proposed parliamentary committee to conceive some inabilities and restraints. But what is ensured is the constant analysis and scrutiny of the performance of the agencies.
In the United States, the two houses of Congress have independent oversight committees - the Select Committee of Intelligence in the Senate and the Permanent Select Committee on Intelligence in the House of Representatives. The committees have power of subpoena and can authorize appropriations for intelligence activities. The President is obliged by the General Congressional Oversight Provisions (50 U.S.C.A § 413) to ensure that they are kept fully and currently informed of the intelligence activities. Additionally the President ensures that any illegal intelligence activity is reported promptly. Further, the Director of Central Intelligence keeps the committees fully and currently informed of all covert actions of any department or agency.
Care has been taken to the concern that some intelligence information is too sensitive to share publicly. In general, only the identity of sources and the details of technical operations are withheld from the intelligence committees. The Director's reporting requirements are subject to two exceptions: First, his reporting shall be 'consistent with the protection from unauthorized disclosure of classified information'. And Secondly, information may be limited if the President determines that 'it is essential to limit prior notice to meet extraordinary circumstances'.
In UK, the Intelligence and Security Committee established by the Intelligence Services Act 1994 takes the role. It comprises nine members taken either from the House of Commons or the House of Lords. Five of the Members belong to the ruling party. They are appointed by the Prime Minister in consultation with the Leader of the Opposition. The Intelligence and Security Committee holds regular weekly meetings while Parliament is in session to discuss issues pertaining to the work of the three intelligence services. The Committee examines the role, function and management of the services, their tasking and targets, financial matters, staffing and structure.
The powers to obtain evidence are set out in Schedule 3 to the 1994 Act. Information defined as 'sensitive' can be withheld from the Committee if the information may lead to the identification of sources, of operational information on any past, present, or future operations. Additionally, the government does not have an obligation to disclose information to the Committee that was not asked for and the Committee has no express power to obtain information from anyone other than the Heads of the Agencies.
Both the models show that complexity and secrecy of intelligence makes it inevitable for the proposed parliamentary committee to conceive some inabilities and restraints. But what is ensured is the constant analysis and scrutiny of the performance of the agencies.
Judicial control
Theoretically the intelligence agencies are subject to the judicial process when they commit a crime under the Penal Code (e.g., Chapter IX, Offences by or relating to Public Servants) or any other law. Constitutional provisions governing the Fundamental Rights apply to their activities as well. In practice, however, intelligence activities rarely reach the courts. They only do so when scandals or media intervention shed light over some specific episode. And then, generally it is too late to repair the damages already caused.
Conversely, the road to judicial control of the intelligence has at least two stumbling blocks first, the lack of special judicial arrangement to deal with delicate issues involved in intelligence activities and secondly, the culpability of the revelation of classified information by security or intelligence agents. Yet the following two devices might be able to balance the governmental need to protect intelligence information and the right to a fair trial in order to preserve constitutional due process guarantees.
Theoretically the intelligence agencies are subject to the judicial process when they commit a crime under the Penal Code (e.g., Chapter IX, Offences by or relating to Public Servants) or any other law. Constitutional provisions governing the Fundamental Rights apply to their activities as well. In practice, however, intelligence activities rarely reach the courts. They only do so when scandals or media intervention shed light over some specific episode. And then, generally it is too late to repair the damages already caused.
Conversely, the road to judicial control of the intelligence has at least two stumbling blocks first, the lack of special judicial arrangement to deal with delicate issues involved in intelligence activities and secondly, the culpability of the revelation of classified information by security or intelligence agents. Yet the following two devices might be able to balance the governmental need to protect intelligence information and the right to a fair trial in order to preserve constitutional due process guarantees.
A special intelligence tribunal
A Special Tribunal like one created under the U.S. Foreign Intelligence Surveillance Act 1966 may be considered. This is a Special Court to review in secret the applications filed by intelligence services to conduct electronic surveillance within the United States for foreign intelligence purpose. Applications are heard and either granted or denied by the court composing seven Federal District Court judges designated by the Chief Justice of the United States Supreme Court. The law also provides for a court of review to hear appeals of denials of applications.
To handle classified information some special procedures are prescribed. One such example is the United States' Classified Information Procedures Act, 1980. Under the Act, classified information can be reviewed under the regular criminal procedures for discovery and admissibility of evidence before the information is publicly disclosed. Judges are allowed to determine issues presented to them both in camera and ex parte. The defendant is allowed to discover classified information and to offer it as evidence to the extent it is necessary to a fair trial and allowed by normal criminal procedures. On the other hand, the government is allowed to minimize the classified information at risk of public disclosure by offering unclassified summaries or substitutions for the sensitive materials.
A Special Tribunal like one created under the U.S. Foreign Intelligence Surveillance Act 1966 may be considered. This is a Special Court to review in secret the applications filed by intelligence services to conduct electronic surveillance within the United States for foreign intelligence purpose. Applications are heard and either granted or denied by the court composing seven Federal District Court judges designated by the Chief Justice of the United States Supreme Court. The law also provides for a court of review to hear appeals of denials of applications.
To handle classified information some special procedures are prescribed. One such example is the United States' Classified Information Procedures Act, 1980. Under the Act, classified information can be reviewed under the regular criminal procedures for discovery and admissibility of evidence before the information is publicly disclosed. Judges are allowed to determine issues presented to them both in camera and ex parte. The defendant is allowed to discover classified information and to offer it as evidence to the extent it is necessary to a fair trial and allowed by normal criminal procedures. On the other hand, the government is allowed to minimize the classified information at risk of public disclosure by offering unclassified summaries or substitutions for the sensitive materials.
Involvement of the Attorney General's Office
Involvement of the Office of Attorney General in the oversight structure may also be considered. Under the President's Executive Order on Intelligence, the US Attorney General is required to be involved in the review of various aspects of intelligence, especially concerning the implementation by the agencies of the provisions of the Executive Orders setting forth the duties and responsibilities of intelligence agencies. Within the Department of Justice, the Office of Intelligence Policy assists the Attorney General in carrying out this review function. The Intelligence Oversight Board attached to the Office of the President refers apparent violations of law to the Attorney General. Here the Department of Justice works as a Scanning House which signals green on the possible questions of law arising from a particular operation.
Involvement of the Office of Attorney General in the oversight structure may also be considered. Under the President's Executive Order on Intelligence, the US Attorney General is required to be involved in the review of various aspects of intelligence, especially concerning the implementation by the agencies of the provisions of the Executive Orders setting forth the duties and responsibilities of intelligence agencies. Within the Department of Justice, the Office of Intelligence Policy assists the Attorney General in carrying out this review function. The Intelligence Oversight Board attached to the Office of the President refers apparent violations of law to the Attorney General. Here the Department of Justice works as a Scanning House which signals green on the possible questions of law arising from a particular operation.
Conclusion
Given the political realities and trauma of the recently past emergency, the kinds of measures discussed above would constitute way ahead towards a more productive, responsive and accountable intelligence system. It should be remembered, however, that having controlling bodies by itself does not necessarily imply a strengthening of accountability over secrecy. The oversight mechanisms, especially the judicial and parliamentary, are futile if the government is not willing to cooperate with them. Public opinion, and therefore the media, may act as an outside control element supporting the controlling bodies in controversial actions or limitations. There is still a long way to go and we need vast public debates in this area.
M. Jashim Ali Chowdhury is a Senior Lecturer in the Department of Law, Northern University Bangladesh (NUB), Dhaka.
Given the political realities and trauma of the recently past emergency, the kinds of measures discussed above would constitute way ahead towards a more productive, responsive and accountable intelligence system. It should be remembered, however, that having controlling bodies by itself does not necessarily imply a strengthening of accountability over secrecy. The oversight mechanisms, especially the judicial and parliamentary, are futile if the government is not willing to cooperate with them. Public opinion, and therefore the media, may act as an outside control element supporting the controlling bodies in controversial actions or limitations. There is still a long way to go and we need vast public debates in this area.
M. Jashim Ali Chowdhury is a Senior Lecturer in the Department of Law, Northern University Bangladesh (NUB), Dhaka.
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