What choices are required when designing and implementing legislative oversight of intelligence and security services? This RAND report provides an opportunity to learn from the successes and failures of intelligence and security legislation in various countries. Case studies from the UK, Canada, South Africa, Germany, the Czech Republic and Argentina provide a balance between developed and developing countries alongside evolutionary versus revolutionary intelligence reforms.
Intelligence is information that has been collected and refined to meet the needs of policy makers so that they are aware of potential threats and can apply resources efficiently. Intelligence can be three things: a process of gathering and analysing information; an organisation which undertakes the process; and a refined product that is delivered to policy makers. It is increasingly included as a key element of security sector reform (SSR), both to assist the process and as a target of reform activities.
Legislative frameworks can provide the mandate, coordination, control and accountability guidelines for intelligence communities. Effective legislation must take account of the competing requirements of secrecy and democratic oversight:
- National security reviews provide a means for countries undertaking SSR to build a nationally owned vision of security. It helps distinguish between legitimate and illegitimate activities and choose between competing claims for resources.
- Placing security agencies within a legal structure extends execution of oversight beyond the executive to also include the legislature and judiciary, along with enabling public involvement.
- Due to the inherent secrecy of intelligence agencies’ activities, effective control can only be exercised by the executive in the form of ministers.
- Effective parliamentary oversight requires significant powers in terms of access to classified information. Difficulties can arise if this is inadvertently or deliberately disclosed so as to compromise operations or involve intelligence agencies in political controversy.
- The scrutiny of an independent judiciary is the principle mechanism for ensuring legal compliance. Potential challenges to judicial review involve sharing sensitive information, politicising the judiciary and compromising security work.
While important to recognise differences between developed and developing countries, a number of key issues must be addressed to make intelligence and security legislation meaningful:
- The agency that is being legislated for must have a clearly-defined mandate, differentiating between intelligence services and domestic law enforcement. Mandates also establish the boundaries and scope of activities between domestic, foreign and military intelligence functions.
- Central government coordination and oversight ensures complementary collection between agencies and assures the public that duplication and intelligence gaps are being avoided.
- Clear lines of accountability, the subordination of intelligence services to the control of democratically elected leaders and mechanisms to scrutinise their activities are crucial.
- Parliamentary oversight is vital to enhance democratic accountability and ensure security and intelligence services are serving the whole state, rather than narrow political or other interests.
- Judicial oversight plays a role in setting limits to achieve a balance between the protection of individual rights and the collection of necessary information.
- A variety of factors influence the implementation environment for intelligence legislation. These include: the potential for executive abuse; issues relating to the retention of intelligence personnel following regime change; and the impact of the public and international bodies in driving reforms.
