Democratic Control of Intelligence: Exploring the Legal Vacuum in Bangladesh

Democratic Control of Intelligence: Exploring the Legal Vacuum in Bangladesh 

published in 

“Intelligence, National Security and Foreign Policy: A South Asian Perspective”

Dr. Ali Ashraf (ed.), BILIA & University of Dhaka, Bangladesh, 2015 at pp 299-316.

Chapter 20

Democratic Control of Intelligence: 

Exploring the Legal Vacuum in Bangladesh 

M. JASHIM ALI CHOWDHURY

What are the essential components of an intelligence accountability structure? How have those accountability norms emerged over time? The purpose of this chapter is to address these questions by exploring the global norms of intelligence oversight and their relevance for Bangladesh.

There are compelling reasons for delving into the intelligence accountability issues in Bangladesh context. After the popular uprisings in 1990 and the subsequent movement for institutionalization of democracy, the issue of governance deficits in the intelligence community came to the fore. This chapter argues that the intelligence community in Bangladesh operates in a complete legal vacuum. Evidence in support of the legal vacuum hypothesis can be found in the fact that the intelligence agencies in the country lack a legal basis, and any parliamentary oversight. Although a system of executive control is in place, neither the judiciary nor the external actors have any meaningful role in ensuring the democratic control of intelligence in Bangladesh. 

This chapter progresses in three stages. The first section presents an analytical framework for the study of democratic control of intelligence agencies. The second section looks into the emerging global practices of intelligence accountability. The third part explores the extent to which the functions of the intelligence community in Bangladesh are restrained by any democratic control mechanism. 

Democratic Control of Intelligence: An Analytical Framework

There are several theoretical frameworks to analyze democratic control of intelligence agencies (Caparini 2013; Wills 2007). Most scholars use the terms intelligence oversight, intelligence accountability, and democratic control of intelligence interchangeably. Schedler (1999) suggests that there are three dimensions of an intelligence accountability framework. The first dimension is horizontal. It involves the executive, legislative, and judicial branches of the government to assert control over the intelligence community. The second dimension is vertical. It refers to the adoption of either a top-down or a bottom-up approach to accountability. In the top-down approach, senior government officials and intelligence directors may monitor and control agency activities. By contrast, in the bottom-up approach, civil society organization may hold elected officials responsible through the voting system. In the third dimension of Schedler’s framework, international actors such as foreign governments, international institutions and international non-governmental organizations may influence a state and its intelligence practices by raising concerns over issues of human rights and democratic deficits (Caparini 2013: 16). 

In contrast to Schedler’s three-dimensional framework, Born and Leigh (2005) take a layered approach to studying democratic control of intelligence agencies. The four layers in the Born-Leigh model focus on self-restraint by intelligence agencies, executive and parliamentary oversights, and finally independent watchdogs.

Although Born and Leigh mention the role of judiciary, their approach to intelligence accountability does not consider judges to be an independent actor in the intelligence oversight mechanism. However, scholars have long emphasized the role of judiciary as an important stakeholder in democratic control of intelligence agencies (Manget 2007; Schulhofer 2006; Weaver and Pallitto 2005). Another peculiarity of the Born and Leigh approach is its exclusion of civil society. Such exclusion is premised on the fact that civil society does not fall into the criteria of state institutions with statutory obligations for democratic control of intelligence agencies (Born and Leigh 2005: 23-24). In contrast, Caparini (2013: 12) has argued how citizens, national security experts, and media can participate in the discourse with an increasingly (increasing) demand for transparency and accountability in intelligence community.

This chapter adopts a modified Born and Leigh model (2005) and focuses on five components of an intelligence accountability system: 

· Internal control at the agency level;

· Executive control;

· Parliamentary oversight;

· Judicial monitoring; and 

· Independent oversight mechanism.

Each layer in the modified oversight model has a unique task in ensuring accountability of the intelligence agencies. In the first layer, the intelligence services restrain themselves by means of internal control mechanism as established by legislative frameworks. In the second layer, the executive branch of the government performs administrative control by giving direction to intelligence services, including tasking, prioritizing and making resources available. Third, the parliament passes relevant laws to regulate the services and control them by adopting budgetary appropriations and by questioning decision-makers in special hearings. Fourth, the judiciary monitors the use of the agencies’ special powers such as surveillance and interrogation practices and adjudicates the allegations of wrong-doings. Finally, a statutory body like intelligence ombudsman and civil society organizations and non-government organizations may focus the functioning of intelligence services by giving an alternative view and raising complaints of wrong-doing.

Global NormsLegislative Footing and Internal Control

The first step in internal control mechanism requires putting intelligence agencies on a legal footing. Currently, many western democracies have comprehensive national legislations defining the mandates of the agencies and thus marking a statutory obligation on them to exercise internal restraints. The introduction of legal reforms have gone through a long process of transformation from an era of trust, where the intelligence sector was taken to be apart from the rules and beyond parliamentary scrutiny, to an era of uneasy partnership with the representative organ of the state (Johnson 1985: 550-556). The hyphen between the two phases is marked by an era of skepticism when legislation as a tool of intelligence regulation got prominence.[1] 

Most modern intelligence organizations in the world today, function under the ambit of enacted legislations.[2] The driving forces behind such increased focus on legislation were threefold: First, the advent of international terrorism contributed to the changed priorities in recognizing the role of intelligence agencies. Second, as the society became more open and less deferential, intelligence services have also come to realize that excessive levels of secrecy that went beyond their operational needs actually erode public confidence and bred conspiracy theories about their functioning and capacities. Third, within Europe, the European Convention on Human Rights (ECHR)[3] has played an important role in promoting reform. The Convention has been influential in requiring signatory states to introduce legislation giving a clear legal basis for the actions of the services in these fields and to provide domestic means for challenging the actions of the services affecting human rights.[4] The European Court of Human Rights has found several states to breach the Convention where the laws were defective or where individual practices, such as telephone tapping lacked clear legal authority.[5]

A study of these legislations reveals important dimensions of an intelligence set up. Apart from delineating the legal mandates and defining the tasks of intelligence agencies, these laws also articulate a division of labor by designating the security services for internal threats and intelligence services for external threats. Separate legislation has been drawn up for different agencies. It is accepted in all hands that intelligence services should not stop or arrest suspects whereas the police are not allowed to practice ‘preventive intelligence work’ before they have convincing evidence that a crime has been committed (Vitkauskas 1999: 5). Therefore, intelligence services should not be involved in the business of ‘spying’ on its own citizens. Intelligence services are tasked only with carrying out counter intelligence activities within its society. Too many missions being performed by a single intelligence service implies an accumulation of power. Secondly, uncertainty and fluidity of the concepts like ‘threat to national security’, ‘organized crime,’ ‘terrorism’ and ‘espionage’ etc are removed by making those terms carefully defined in detail in the respective laws. Thirdly, the legislations seek to achieve adherence of the intelligence services to a professional ethos involving a willing compliance to the state institutions and constitution, dedication to public service, not abusing power and avoiding improper use of public money. Fourthly, the legislations have tried to achieve a professional management of human resources based on open recruitment as well as a reward and promotion system based on merit.

Executive Control and Political Neutrality 

Although the executive branch of the government is the principal customer of strategic intelligence, it can also assert varying level of control mechanisms to supervise the professional standards of intelligence agencies and maintain their political neutrality. Given the fact that the chief executives and his or her cabinet members are party officials, the democratic control standards require political neutrality of the intelligence personnel. It is in this context, one should understand the domestic and external surveillance responsibilities of intelligence agencies. 

According to Philip Heymann, a Harvard University professor and former US deputy Attorney General, the use of intelligence services for gathering information for foreign and defense policy is legitimate (Petrov 2008: 19-20). This is due to the fact that powers exercised to pursue foreign or defense policy rarely threaten the civil rights of citizens. However, when these powers are used for domestic reasons, they may constitute a threat to citizen’s rights. Therefore, in many democratic societies, intelligence services only play a role domestically in cases that present grave dangers to society, such as terrorist attacks and organized crime (Born and Leigh 2007). 

As part of the accountability structure, many governments, such as the ones in Canada and the United Kingdom have established oversight boards or offices, which monitor the intelligence services’ activities (Office of Privacy Commissioner of Canada 2014). The intelligence services periodically report (generally once a year) or whenever desired to the relevant authorities including the Head of State, prime minister or chancellor and relevant minister(s). In many countries, the intelligence services also send a public report to the parliament. In addition, a classified report is sent to the parliamentary intelligence overview committee, who deliberate behind closed doors. 

While the operational control of the Intelligence is entrusted to the executive, the visible custodians of public office, there is an opposite and real danger - temptation for the politicians to use these exceptional agencies to serve a domestic political party agenda. Sensitive accountability structures therefore attempt to insulate security and intelligence agencies from political abuse without isolating them from executive governance and legislative oversight (Born and Leigh 2005: 13). 

On the whole the solutions adopted by democratic states deal with this paradox in two ways: firstly, by balancing rights and responsibilities between the agencies and their political masters; and secondly, by creating oversight mechanisms outside the executive branch (Estevez 2003). In order to protect the services from being politically manipulated, the executive directing the intelligence services are held legally responsible for the formulation of a coherent policy on security and intelligence matters. The United Kingdom, for example, entrusts this obligation to its Cabinet ministers, placing a premium on the enhanced secrecy fostered by the doctrine of ministerial responsibility (Pyper 1987). Another useful tool in this regard is to include in the intelligence law some institutional and legal safeguards to prevent the use of services by government officials against political opponents as well as to prevent them from exerting influence on the political institutions and media. 

Yet another means to ensure greater political neutrality of the agencies involves opening up of the process of appointing the agency head. Within the executive, more than one cabinet member may be involved in the appointment process. Outside the executive, legislation should regulate how to seek parliamentary approval for appointment proposals or how parliament can block the appointment by a formal vote. Additional measures such as the requirement that opposition in parliament should be involved in appointing the director of intelligence services can further ensure the political neutrality of the services.

In addition, many countries have established safeguards against ministerial abuse of the intelligence services. For instance, the intelligence legislations in Hungary and Australia stipulate that all directions and guidelines by the ministers to the agency should be in writing, and copied to the Inspector-General (Born & Wetzling 2007: 323-324). In another example, South Africa has made a provision where members of the executive are required to brief the leader of the opposition, as a bipartisan approach to security and intelligence. The idea of such bipartisan approach aims to ensure that leading politicians of the opposition do not feel that they have been wholly excluded from the ‘ring of secrecy’ (The Ministerial Review Commission 2008).

Parliamentary Oversight and Budgetary Control

Parliamentary oversight mechanism aims to restrain the abuse of power by the executive branch. There are three contrasting models of parliamentary control over intelligence issues (IDSA 2012). First, the United States offers a model of comprehensive oversight including both policy and operations. Second, the British and Dutch parliaments have established intelligence oversight mechanisms which are limited to policy and finance issues. Third, some parliamentary bodies, such as the one in Norway, focus on the rule of law n an effort to curtail the human rights abuses by security and intelligence agencies.

The United States has been a pioneer in parliamentary oversight of intelligence issues. In the United States, the House Permanent Select Committee on Intelligence (HPSCI) and the Senate Select Committee on Intelligence (SSCI) are the primary intelligence oversight bodies. These congressional organizations emerged in the late 1970s, when the Church and Pike Committees investigated the CIA and other intelligence agencies in response to the Watergate scandal. Both committees found evidence of spying on American citizens, illegal wiretapping, and cover-ups. As a result, Senate Resolution 400 in 1976 and House Resolution 658 in 1977 established the intelligence committees to prevent future abuses of power and maintain ongoing and regular oversight of the Intelligence Community.

Following the U.S. model of parliamentary control, Australia passed an intelligence oversight law in 1979 and Canada followed the suit in 1984 (Australian Government 1979; Government of Canada 1984). Reforms spread to Europe over the next two decades. In other continents, Argentina, South Korea and South Africa have also established systems of accountability. 

In the United States, the congressional committees have power of subpoena and can authorize appropriations for intelligence activities. The President is obliged by law 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. Given the fact that some intelligence information is too sensitive to share publicly, special care are taken to deal with this issue. In general, only the identity of sources and the details of technical operations are withheld from the intelligence committees. Often, sensitive operations are revealed only to the ‘gang of eight,’ the Speaker of the House, the House Minority Leader, the Senate Majority and Minority Leaders and the Chairman and Ranking Members of the two Intelligence authorizing committees (Roemer 2007). Information, however, may be limited if the President determines that ‘it is essential to limit prior notice to meet extraordinary circumstances’ (Snider 2013).

In the United Kingdom, the Intelligence and Security Committee established by the Intelligence Services Act 1994 takes the oversight 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 the 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 it may lead to the identification of sources, if tactical information on any past, present, or future operations are concerned. 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 U.S. and U.K. models discussed above 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 contrast, the Parliaments of Bangladesh and her South Asian neighbors such as India and Pakistan show a total complicity in avoiding intelligence from the parliamentary debates.

As the intelligence services are growing in importance as an area of governmental activity, most countries have developed a systematic approach for the evaluation and approval of budget proposals. The essence of budget control is simple: it allows the parliament to oversee, and if necessary, change the government’s priorities. In many countries, the public annual reports of the security and intelligence service (e.g. in the Netherlands) or of the parliamentary oversight body (e.g. in the United Kingdom) include statements about the outcome of the financial audits (OECD 1996). In many countries special reporting mechanisms are in place in order to protect the continuity of operations, as well as the methods and sources of the services. For example, in the United Kingdom only the Chairmen of the Public Accounts Committee and the Intelligence and Security Committee are fully briefed about the outcome of the financial audit. These briefings may include reports on the legality and efficiency of expenditure, occurrence of possible irregularities, and whether the services have operated within or have exceeded the budget.

A few countries have created office of independent auditors such as inspectors-general, judicial commissioners or auditors to ensure financial control of intelligence agencies. This notion derives from the US intelligence community, which now has around a dozen inspectors-general, all of whom are independent of the agencies concerned. There are, however, significant variations among them: some are established by legislation (for example, the Inspectors-General for the Central Intelligence Agency and the Department of Defense), while others are the creatures of administrative arrangements established by the relevant Secretary (for example, with regard to the Defense Intelligence Agency and the National Reconnaissance Office). Irrespective of these differences some inspectors general report to Congress as well as to the executive branch.

Inspectors-General commonly operate within the ring of secrecy. Their primary function is not to provide public assurance about accountability, but rather to strengthen accountability to the executive. The Canadian Inspector-General (IG) is a clear illustration of this type of office and the IG is entrusted with unrestricted access to information in the hands of the service in order to fulfill his functions.[6] The Inspector-General has a duty to report at least every six months to the Security Intelligence Committee and to keep the main executive actors informed of developments in a regular and timely fashion. 

In other countries – notably in South Africa – the role is quite different, as the inspector general has to report to Parliament (Ministerial Review Commission Intelligence, South Africa, 2008). Even some inspectors-general whose statutory briefs are usually reports to the executive may maintain an informal working relationship with parliamentary bodies. This is evident in Australia and the United States where the inspectors-general report occasionally to the legislature (Office of the U.S. Inspector General 2015). Some inspectors general also have jurisdiction to deal with individual complaints (Australian Government 1986).[7] 

The Avenues of Judicial Scrutiny

Until the mid-1970s, judges had very little to say about intelligence.[8] While some of the concerns preventing the judiciary in mingling with intelligence are in-built tensions in judicial review of executive functions, others are specific to the field of intelligence. It is argued that intrusive control by the judges of intelligence agencies would blur the separation of powers between the executive and the judiciary. The judges also tend to avoid jurisdiction over intelligence activities which are frequently related to national security and foreign policy.[9] Moreover, judicial involvement in intelligence sector would inevitably mean sharing of sensitive data outside of the controlled environment of the sector (Leigh 2007: 76). Even where public proceedings in open court are avoided, the judge, court staff and lawyers may be required to handle the information. This suggests that judicial involvement may only be suitable for some functions where citizens’ rights are affected, and not, perhaps, where policy is a substantial element (Borchard 1925: 7).

This argument based on the traditional understanding of the doctrine of separation of power and judicial restraint however seems to lose its ground. Since the mid-1970s, the changing realities of the world have put question marks over the separation of power logic. With the introduction of parliamentary oversight on intelligence, it was felt that the judges’ independence from the government would allow an external view which could lend further credibility to the system of oversight in the eyes of the public. Several states therefore started employing specially adapted judicial procedures in a security context. The prominent areas of judicial role play, therefore, includes, among others, constitutional guarantee of individual liberty, surveillance disputes, criminal law charges of torture, and civil law and tortuous remedy for arbitrary arrests. Judicial interventions have also concerned issues related to detention and wrongful confinement, freedom of information claims, and freedom of press controversies etc. Let us discuss some of the areas of judicial scrutiny with relevant court cases. 

First, the issues of harsh interrogation methods and treatment of prisoners of war on terrorism in the United States have sparked a huge debate on the constitutional guarantees of individual liberty. The lengthy trials of US terrorism cases such as Hamdi[10] and Moussaoui[11] are glaring examples on the tension between security and civil liberties, in which the court had to intervene in a way that require the attorneys for the United States o explain to federal judges significant clandestine activities of the US security and intelligence communities (Manget 2007: 333-334).

Second, judges may often scrutinize intelligence activities involving surveillance. The constitutional guarantee against unreasonable searches and seizures, violation of privacy and personal correspondence and related statutory regulations supply the jurisdictional bases for the judiciary to inquire deep into intelligence practice and procedures. There are several cases of such judicial intrusion into intelligence practices. In Canada, for example, the designated Federal Court judges hear surveillance applications from the Canadian Security Intelligence Service. In the United Kingdom, the designated judicial commissioners deal with authorization of surveillance under the Regulation of Investigatory Powers Act 2000. In the United States, the Foreign Intelligence Surveillance Act (FISA) 1978 allows the judges to control intelligence-related surveillance by the way of issuing a search warrant. In another instance, in 1996, the Indian Supreme Court in People Union for Civil Liberties v. Union of India[12] issued nine point directives regarding the exercise of power to order telephone tapping under the Telegraph Act 1885. It required prior authorization by the Home Secretary of the central Government or of the State Governments. The Canadian, U.K., U.S., and Indian cases illustrate the increasing role of judiciary in curbing the power of intelligence agencies. 

Third, judges may be required to examine criminal prosecutions against an intelligence staff. Where the need for secrecy clashes directly with conventional trial procedures, most of the efforts on both sides of a case go into developing the pre-trial phase called ‘discovery’. One idea, adapted in Canadian procedure, is the use of special, security-cleared counsel, in deportation and employment cases, and (increasingly) in criminal cases. It allows a vetted lawyer to test the strength of the government’s case even where the complainant and his lawyer are excluded from parts of the legal process on security grounds (The Canadian Select Committee on Constitutional Affairs 2005). Such procedures have been commended by the European Court of Human Rights as a means of satisfying Article 6 (the right to a fair and public trial), even in security cases.[13] 

Fourth, civil litigations for damages very often require judicial intervention in numerous cases where intelligence activities, and the secrecy surrounding them, become issues. One such example is the Halkin v. Helms in the United States, where some Vietnam War protestors sued officials of various intelligence agencies alleging violation of constitutional and statutory rights. The plaintiffs alleged that the National Security Agency (NSA) conducted warrantless interceptions of their international wire, cable and telephone communications at the request of other federal defendants. The government asserted the state secrets privilege to prevent disclosure of whether the international communications of the plaintiffs were in fact acquired by NSA and disseminated to other federal agencies.[14] The trial court considered three in camera affidavits and the in camera testimony of the Deputy Director of NSA. The case was ultimately dismissed at the appellate level based on the assertion of the privilege. The plaintiffs lost the case, but they had the full attention of both trial and appellate federal court judges on the assertion of governmental secrecy.[15]

Fifth, the vast array of freedom of information laws provide exceptions to the secrecy provisions that allow classified information and intelligence sources and methods to be kept secret. The courts usually and extensively defer to the executive branch on what information falls within those exceptions,[16] but there is still a rigorous review of such materials. In the United States, the CIA prepares public and classified indexes (called “Vaughn indexes” named after the court case endorsing them) under the Classified Information Procedure Act 1980 describing records withheld under the sensitive information exceptions that are reviewed by the courts. If those public indexes are not sufficient for a judge to decide whether an exception applies,[17] classified Vaughn indexes are shown to the judge ex parte and in camera. If a classified index is still not sufficient, then the withheld materials themselves can be shown to the judge.[18] 

The Knight case illustrates this extensive process.[19] The plaintiff filed a Freedom of Information Act request for all information in CIA’s possession relating to the 1980s sinking of the Greenpeace ship Rainbow Warrior in the harbor in Auckland, New Zealand, by the French external intelligence service. The CIA declined to produce any such records, and plaintiff filed a suit to force disclosure. Both public and classified indexes were prepared by the Agency, and when they were deemed by the court to be insufficient for a decision in the case, all responsive documents were shown in unreduced form to the trial judge in her chambers. Her decision was in favor of the government, and it was affirmed on appeal. This pattern has been repeated in numerous other cases. Thus in areas where the law mandate disclosure of government information, the judges review the claims of exemptions based on sensitive intelligence equities.

Sixth, the judiciary may look at the constitutional guarantee of freedom of speech and the press as they relate to intelligence. One context is the contract for non-disclosure of classified information that employees, contractors, and others sign when they are granted access to sensitive information by agencies of the intelligence community. The contract requires pre-publication review of non-official writings by the government in order to protect sensitive information. Many litigants have successfully challenged the requirement as violation of constitutional bar on pre censorship.[20]

External Review System

The foregoing discussions focus on the role of state’s regular constitutional and statutory institutions in asserting democratic control of intelligence agencies. By contrast, external review bodies may play the role of the little boy who claims the King to be without clothes and meaningfully bolster the accountability of intelligence agencies. Several actors like ombudsman, special tribunal, and civil society groups may be meaningfully involved as external reviewers.

First, an independent ombudsman may have power to investigate and report on a complaint against an agency, as is the case in Netherlands.[21] In some countries an independent Inspector-General of security and intelligence deals with complaints against the services. This is the case, for example, in New Zealand (Office of Inspector-General of Intelligence and Security, established in 1996) and South Africa (Office of Inspector General of Intelligence, appointed pursuant to section 12 of the Constitution). In addition, specific offices established under freedom of information (Information Commission, for example) or data protection legislation may have a role in investigating complaints against the agencies (IDSA 2012: 106).

Second, special tribunals may be established to deal with complaints either against a particular agency or in relation to the use of specific powers. In United Kingdom the Intelligence Services Commissioner and the Commissioner for the Interception of Communications (Communication), and in Canada the Security Intelligence Review Committee act as such special tribunals. The goal of such U.K. and Canadian review boards is to investigate complaints related to the use of specific power. 

Third, academics and civil society groups may also be involved in the external review processes. The logic is simple: elected parliamentarians serve only for a fixed short term whereas career intelligence officials may suffer from organizational biases. In addition, the presence of a limited parliamentary research staff may create the demand for soliciting expert opinions from national security experts serving in the academia, think tanks and civil society organizations. This is a common practice in the United States where independent scholars are often invited to offer their expertise to congressional committees. 

Briefly, drawing on the global practices, the foregoing discussion suggests a five layered intelligence control mechanism for democratic countries. To what extent has Bangladesh adopted any of the layered intelligence accountability mechanism as discussed above? The next section seeks to address the question. 

The Legal Vacuum in Bangladesh 

As discussed throughout this book, the principal intelligence agencies in Bangladesh are National Security Intelligence (NSI), Directorate of General Forces Intelligence (DGFI), the Defense Intelligence Units, Special Branch (SB) and Criminal Investigation Division (CID) of the Police and the Intelligence Cell of Rapid Action Battalion (RAB). In addition, the Special Security Force (SSF) is responsible for the physical protection of national and foreign dignitaries. To what extent are these agencies accountable to any statutory body or external review agencies? This section addresses this question by looking at the five components of an analytical framework for intelligence oversight presented before. 

Lack of Legislative Footing and Internal Control

There is no comprehensive law in Bangladesh dealing with the intelligence services. Perhaps, the absence of a comprehensive law in the country follows a trend in many countries which have long denied the existence of secret services. For instance, the Security Service (MI5) and the Secret Intelligence Service (MI6) have long existed in the United Kingdom before they were put on a legal footing through the Security Service Act 1989 and the Intelligence Services Act 1994 (Andrew 2009). In the absence of any legal basis, the intelligence services in Bangladesh operate in a culture of secrecy. 

The culture that developed from the decades of secrecy and silence passed under the cloak of Official Secrets Act 1923 was strong enough to circumscribe the Right to Information Act 2009. The 2009 Right to Information Act provides a scope of summery rejection of any request of information on the ground of national security.[22] Yet the intelligence agencies are exempted from information sharing.[23] The information cycle, being based on unwritten norms, are entirely the product of experience, needs and concerns of the intelligence agencies. Existing intelligence practices effectively prohibit legal exchanges of information outside the agency and at times even within the intelligence community (BEI 2011).

Executive Monopoly over Intelligence

Bangladesh has a parliamentary style of government in which executive control of intelligence agencies is centralized in the hand of the prime minister. For instance, concerned agency chiefs such as the director generals of DGFI and NSI report directly to the prime minister whereas the SB, CID, and RAB chiefs report to the home minister as well as to the inspector general of police. The latter three agency chiefs also attend a national intelligence coordination structure headed by the prime minister. Over the years, these agencies have often been used to serve the political interests of the incumbent governments. The longstanding political role of these security and intelligence agencies reveal that neither an internal accountability mechanism nor an executive oversight system is in place to ensure the democratic control of intelligence agencies in Bangladesh. 

Unlike the most industrialized countries,[24] some of the major intelligence agencies in Bangladesh are headed by either active duty or retired military personnel. For instance, the DGFI is headed by a serving major general, whereas the intelligence wing of RAB is headed by a mid-level defense personnel deputed to the force. Militarization of intelligence carries with it an increased risk of politicization of the military and militarization of politics. The whole accountability regime may get a decisive blow on this count alone.

Absence of Parliamentary Oversight

The Jatiya Sangsad (should be Italicised) — the national parliament in Bangladesh—also lacks any institutional mechanism to oversee the activities of the intelligence agencies. Although there are 38 standing committees in the Bangladesh Parliament on different ministries including the Ministries of Defense and Home Affairs, there is no standing committee to oversee the intelligence agencies. Besides, Article 70 of the Constitution imposes strict party control and effectively bars the individual MPs from raising uneasy issues on the floor. The unwillingness of the political leadership thereby results in an issue of inability in the individual members of the parliament, who have never in the history of Bangladesh raised a question, adjournment motion, motion for half‐an hour discussion and call‐attention on any intelligence issue (Jahan & Amundsen 2012).

The type of budgetary control and intelligence audit as described in the context of western democracies is virtually non-existent in South Asia, let alone in Bangladesh. The Jatiya Sangsad (should be Italicised) does not have any budgetary control over intelligence agencies. The government almost secretly allocates money for the intelligence services, without subjecting the allocation to parliamentary oversight during the passing of national budget. Nor is the allocation brought to the rigors of financial oversight and control committees like the Public Accounts Committee (PAC) and the Office of the Comptroller and Auditor‐General (Rahman 2008: 54-55). 

The audit system of Bangladesh dwells exclusively within the executive circle without any parliamentary involvement whatsoever. To further illustrate this, the directorates of Defense Audit, Civil Audit and Mission Audit, attached to the Comptroller and Auditor General, conduct general audits of the sectors concerned without a particular attention to the intelligence sector. Audit observations involving serious financial irregularities are treated as Advance Paras (AP). The APs are sent to the Secretary of the Ministry or Division concerned for comments and replies. If the response and remedial actions of Ministry seems convincing, Advanced Paras do not ripe into Draft Paras (DP) to be included in the annual report prepared for parliamentary scrutiny. It is perhaps at this point that most irregularities hide from parliamentary oversight. The reports of the Auditor General are submitted to the President who causes them to be laid before the Parliament.[25] The Public Accounts Committee of the Parliament is mandated by Article 76 of the Constitution to consider the report of the Comptroller and Auditor General. The PAC selects important observations of the audit report for detailed examination and hold hearings of the Principle Accounting Officers i.e., the Secretaries of Different Ministries and Divisions. It makes recommendations and submits reports to the Parliament. The problem is that the reviews take place usually years after the money has been spent.[26]

Lack of Judicial Control 

The judicial branch in Bangladesh also lacks any institutional mechanism for the control of intelligence agencies. The intelligence agencies enjoy almost unrestricted power of policing over any citizen severely affecting his constitutionally guaranteed human rights. In absence of any sorts of parliamentary oversight or judicial control, the successive governments have refused to address the allegations of extra-judicial killings, abduction, torture and arbitrary detention (HRW 2011; Nag 2012). 

There is no visible tortuous remedy for wrong treatment, unlawful confinements and torture of innocents in the criminal justice system of Bangladesh. The intelligence agencies of Bangladesh continue to reap the fruits of Anglo-American legal system based on the medieval common law theory which assumes that the ‘King can do no wrong.’ This has paved the way for a ‘law’ that the government cannot be sued without its consent. Sections 13, 14 and 21 of the Penal Code 1860 provide a list of public servants including the military, air and naval stuff, to proceed against whom a prior consent of the government is required.[27] In theory, the constitutional provisions governing the fundamental rights apply to intelligence 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 episodes. Then, it is too late to repair the damages already caused.

The virtual indemnity of the intelligence agencies is further illustrated by increasing trend in telephone tapping. The Telegraph Act 1885[28] and Bangladesh Telecommunications (Amendment) Act 2006 allow intelligence and law enforcement agencies to monitor private communications subject to a sort of pre-authorization (GoB 2006). Despite that, there are allegations that intelligence agencies rarely obtain warrants as required, and officers violating these procedures are rarely held accountable. Incidents of taking court permission to seize materials for accessing personal information are totally unheard of.

Absence of External Review Mechanism

As stated before the three channels of external review are intelligence ombudsman, special tribunal and civil society watchdogs. In the absence of any ombudsman or special tribunal for investigating complaint against intelligence agencies in Bangladesh, the civil society groups have often raised serious concerns over the human rights abuses by intelligence agencies. On several occasions, members of the civil society have also stressed the need for creating a national security council to coordinate the intelligence agencies (Islam 2008). Such calls for reforms tend to be more pronounced after an incident of intelligence failure. As discussed by several authors in this book, in the aftermath of the country-wide terrorist bombings by Islamist militants in 2005 and the Bangladesh Rifles Mutiny in 2009, national security experts have openly criticized the country’s broken intelligence structure and emphasized the need for comprehensive reforms. 

Conclusion

This chapter presents an analytical framework for establishing democratic control of intelligence agencies. It then explores the status of Bangladesh in establishing democratic control over national intelligence services. Data and evidence presented in this chapter suggest that Bangladesh lacks any internal institutional mechanism or external review system to ensure the accountability of its intelligence community. Among the five components of intelligence oversight described in this chapter, a system of parliamentary control would perhaps be more suitable for Bangladesh. Nevertheless, it is important to note that establishing an oversight system or tearing down inappropriate practices is not only a matter of knowledge and expertise, but also of resolve and conviction. In this regard, the political willingness of individual parliamentarians is crucial. Are politicians mindful of their oversight powers and responsibilities? Do parliamentarians duly exercise those oversight powers, in particular when their ‘political friends’ are in government? Are they prepared to make the effort to become acquainted with the complex issues at stake? Are they willing to invest time, energy and political goodwill in establishing a system of good governance of the security sector? In answering these questions, one can learn a great deal from the parliaments of older and newer democracies. Political willingness, however, cannot be taught.

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Endnotes

[1] Hughes-Ryan Amendment in the United States, co-sponsored Senator Harold E. Hughes and Representative Leo J. Ryan and signed into law by President Gerald Ford on December 30, 1974 required the President to approve and report to Congress all important covert actions. In 1975, President Ford established the Commission on CIA Activities within the United States, chaired by Vice-President Nelson A. Rockefeller. A few weeks later, the Senate voted 82 to 4 on January 27 to establish a special committee, with Church as chairman, to conduct a nine-month investigation of American intelligence operations. Soon thereafter the House established by a vote of 286 to 120 a companion investigative committee, chaired by Otis Pike. 

[2] The Central Investigation Agency (CIA) in the US was created by the National Security Act of 1947. The Federal Intelligence Service (FIS) in Russia draws its legal basis from the Law on Foreign Intelligence Organs, 1996. The Federal Intelligence Service (BND) of Germany draws its legal status from the Federal Intelligence Service Law, 1990. In Japan, the Public Security Intelligence Agency (PSIA) is empowered by the Subversive Activities Prevention Law. In the Netherlands, both the General Intelligence (AIVD) and the Defence Intelligence (MIVD) are mandated by the Intelligence and Security Services Act 2002. It is no surprise then to find that over the last three decades many states have reformed or introduced laws governing the security and intelligence agencies. Some recent European examples include legislation in Bosnia and Herzegovina (2005), Slovenia (1994), Lithuania (1996) and Estonia (2000).

[3] A regional human rights treaty ratified by 46 states and interpreted by the European Court of Human Rights at Strasbourg. Write something on European Convention on Human Rights. The Convention established The European Court of Human Rights (ECtHR) established by the Convention has historically entertained individual complaints with the widest possible latitude and sought to restrain state apparatus from interfering with individual rights.

[4] The Harman & Hewitt v. UK case which came up before the European Court Of Human Rights (ECHR) in 1992, the lack of a specific statutory basis for MI-5 was held to be fatal to the claim that its actions were “in accordance with the law” for the purpose of surveillance and file keeping, contrary to safeguards provided by the convention on the right to privacy. See IDSA (2012: 33).

[5] Harman and Hewitt v. UK [1992] 14 EHRR 657; Rotaru v. Romania, No. 28341/95, 4 May 2000, European Court of Human Rights and V and Others v. Netherlands, Commission Report of 3 Dec. 1991

[6] This role of the Inspector-General is specified in the Canadian Security Intelligence Service Act 1984, Sections 33(2) and 33(3).

[7] For details, see the Australian Inspector-General of Security and Intelligence Act 1986, Sections 10–12.

[8]So established is the perception that no television cop show, adventure movie, or conspiracy book in the last two decades has left out characters that are sinister intelligence officials beyond the reach of law. See: Manget (2007: 329). 

[9] For an introduction to the Doctrine of Political Question visit: http://law2.umkc.edu/faculty/ projects/ftrials/conlaw/politicalquestions.html

[10] In Hamdi v. Rumsfeld 542 U.S. 507 (2004), the US Supreme Court was asked to consider the legality of the government’s detention of an American citizen on American soil as an enemy combatant. The Supreme Court stretched the due process guarantee to an enemy combatant by giving a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker, a judge.

[11] In United States v. Moussaoui 382 F.3d 453, 456 (4th Cir. 2004), the defendant charged with conspiracy related to the 9/11 attacks, was allowed access to certain enemy combatant witnesses in US custody for the purpose of deposing them, by rejecting the government’s pleas of war making authority and separation of powers.

[12] People’s Union for Civil Liberties v. Union of India and Ors (18 December 1996), quoted in IDSA (2012). 

[13] Chahal v. UK (1997) 23 EHRR 413

[14] Halkin v. Helms, 598 F.2d 1, 5 (D.C. Cir. 1978)

[15] Ibid, pp. 5–7

[16] CIA v. Sims, 471 U.S. 159 (1985)

[17] Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974)

[18] Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976); Miller v. Casey, 730 F.2d 773, (D.C. Cir. 1984). Dept. of the Navy v. Egan, 484 U.S. 518, 527 (1988)

[19] Knight v. CIA, 872 F.2d 660 (5th Cir. 1989), cert. denied, 494 U.S. 1004 (1990)

[20] U.S. v. Snepp, 444 U.S. 507 (1980); U.S. v. Marchetti, 466 F.2d 1309 (4th Cir. 1972), 93 S.Ct. 553 (1972)

[21] The Netherlands Intelligence and Security Services Act 2002, Article 83.

[22]The unique feature of the Act lies in Article 9 wherein it is provided that ‘no request shall be summarily rejected on the ground of national security, and if there is any part of the request that is not related to national security it must be disclosed to the citizen who has sought such information.’

[23] Section 32 of the Act provides a complete immunity to the organizations and institutions involved with national security and intelligence. Agencies like DGFI, NSI, SB and CID are by name exempted from operation of the Act.

[24] An investigation into the personal history of the heads of FBI for the last quarter century reveals that most of the intelligence heads were lawyers or judges. Out of the first 7 FBI Directors three were Acting Directors. All four Directors were lawyers/judges, and among the Acting Directors, two were career intelligence officers and one was an accountant. The British Military Intelligence Section 5 known as MI-5 or its agencies like SIS, MI-6, QCHQ or DIS are mostly headed by civilian officials. For example, former Director Baroness Manningham Buller (2002-07) was a former school teacher headed it for 5 years. During 2000-02, Sir Stephen Lander, a PhD in History was its head. Prior to him, Dame Stella Rimington (1992-96), a diplomat’s wife headed the British intelligence organization. Even a well known football player, Sir Patrick Walker headed MI-5 from 1988 through 1991. 

[25] The Constitution of the Peoples Republic of Bangladesh, Article 132

[26] Supra Note 10, at p 53

[27] Section 8 of the Special Security Force Ordinance, 1986, for example, empowers the Special Security Force (SSF) 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. This again is exacerbated by Section 11 which prevents prosecution for such acts without executive sanction.

[28] As per Section 5 of the Telegraph Act, the government has been authorized, on the occurrence of any public emergency, or in the interest of the public safety, to take hold of any telegraph established, maintained or worked by any person licensed under this Act. An authorized officer, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of Bangladesh…may order interception or detention and disclose of message or messages of any person or class of persons. The order, however, must be in writing.