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Introduction
Intelligence and security services are key components of any state, providing
independent analysis of information relevant to the external and internal security of
state and society and the protection of vital national interests. A fundamental
precept of democratic theory is securing and maintaining public consent for the
activities of the state. Consequently intelligence agencies must be perceived as
performing a necessary function, operating efficiently and effectively, accountable
for their actions and those of their members, and under the firm control of elected
authorities. As with any other public sector activity, citizens of democratic
countries should expect effectiveness, efficiency, sound management and good
value for money from the state’s intelligence sector.
However the intelligence sector is also a special area of state activity. It has
a vital role in safeguarding national security (and in some extreme cases, the
survival of the state), resulting in a strong imperative for secrecy. Yet, if not
subject to control and oversight, the intelligence sector's unique characteristics –
expertise in surveillance, capacity to carry out covert operations, control of
sensitive information, and functioning behind a veil of secrecy – may serve to
undermine democratic governance and the fundamental rights and liberties of
citizens. Special challenges arise in terms of establishing effective oversight
mechanisms of this sector, which, next to the armed forces, has greatest potential to
affect the political life of the nation. Democratic societies need to ensure that
intelligence and security services do not influence or interfere in party political
competition. Although maintaining effective control and oversight over the
intelligence community is as important to the democratic vitality of a polity as
maintaining control over the armed forces, intelligence services have received
much less attention from scholars and those supporting democratisation processes.
The challenge of control and oversight of intelligence has also been framed
in terms of the relative value placed on the community's collective need for
security on the one hand, and individual rights and freedoms on the other hand. For
example, revelations in late 2005 that President George W. Bush had authorised
secret eavesdropping on telephone calls and emails of US citizens, bypassing the
4 Democratic Control of Intelligence Services
What is Intelligence?
data. In sum, the term intelligence encapsulates a broad range of activities and all
have the obtaining of or denying of information in common.
Intelligence, then, is the collection and analysis of information, presented to
policy-makers in a form that will help them in their decision-making process and
their choice of policy options. Intelligence can be directed externally towards
foreign entities such as other states and non-state actors. It can also be directed
against perceived domestic threats to the security of the state and society, which is
traditionally known as security or security intelligence. Received wisdom holds
that modern democratic states delineate between internal and external security
intelligence with separate services. It should be noted, however, that with
globalisation, the emergence of the threat of international terrorism, and state
responses to that perceived threat, the distinction between external and internal is
increasingly questioned, as demonstrated by the erosion of the institutional
firewalls that were earlier erected between intelligence and security agencies.
Within government, intelligence has come to be thought of as comprising
four main activities: collection, analysis and estimates, counterintelligence and
covert action. Counterintelligence (see below) concerns information or activities
aimed at neutralising the activities of hostile intelligence services and are necessary
to protect the state’s secrets from falling into the hands of other states. Covert
action is an activity which is aimed to influence foreign governments while
keeping the sponsoring government’s involvement of the operation a secret.
Covert action (also known as active missions or direct action) has been said
to offer a ‘third option’, or an alternative form of action to states between the
polarities of diplomacy on the one hand, and the application of military force
through war on the other. If a country chooses to endow its intelligence service
with this function, the service moves beyond collecting and analysing information.
It may, for instance, involve attempts to cause a change in regime, provision of
political advice, financial support, technical assistance, propaganda, private
training of individuals, economic and paramilitary activities, or even
assassinations. Part of its attraction to the executives of certain democratic states
may well lie in it being largely beyond the scope of legislative oversight (Johnson,
1989, p. 60). Covert action has recently attracted more attention because of the
nature of issues on the international agenda of major Western states, particularly
the threat of international terrorism and internal political change (democratisation)
in formerly authoritarian states. Nevertheless covert action remains a highly
controversial subject, and some American observers maintain that it has done more
damage to the US reputation than helped achieve its foreign policy objectives, even
during the Cold War (Hilsman, 1995, pp. 104–116).
Security intelligence services have the potential to harm those very people
whom they are designed to protect: citizens, who may have questioned or
challenged specific policies and decisions of the government in power. In liberal
democracies, the right of citizens to voice dissent from their governments’ policies
is highly valued as the mark of a free society. Awareness that they may be subject
to surveillance and monitoring because of their involvement in controversial public
activity or organisations, and even more so the possibility that they may suffer
monetary and career setbacks from being labelled a ‘security risk’ may lead people
to limit or abstain from such activity. This is known as the ‘chilling effect’, and it
exerts a negative influence on social activism, free expression and public discourse
(Hannant, 2000, pp. 214, 218).
1. Oversight also has an alternative and opposite meaning in English, which means a
failure to notice or consider as in ‘Our failure to notice the discrepancy in budget
figures was an oversight’.
Controlling and Overseeing Intelligence Services in Democratic States 9
Vertical Accountability
day-to-day management of the agency, which would weaken oversight and their
role as an external control mechanism (Born and Leigh, 2005, p. 55). The Minister
requires access to relevant information held by the agency as a function of the
executive’s responsibility for managing information and policy on national security
and for ensuring the proper functioning of public bodies within the security sector,
including the domestic intelligence agency itself.
Ministerial abuse of intelligence is a potential problem, as in the
politicisation of intelligence, which may result from too close a relationship
between the agency and the government. Politicisation of intelligence may appear
in the form of intelligence that is tailored to support government policy. There is
also the risk that intelligence agencies may be used to gather information on a
government’s political opponents. Excessive secrecy and the withholding of
potentially embarrassing information by the government on the grounds of national
security are other potential problems that may flow from executive decisions.
These potential dangers require legal safeguards against ministerial abuse and the
politicisation of intelligence agencies, such as by establishing the political
independence of internal intelligence agencies, granting heads of intelligence
agencies security of tenure, establishing legal limits of what agencies can be asked
to do by the Minister, and creating mechanisms by which personnel in intelligence
agencies can draw attention to alleged abuses (Born and Leigh, 2005, p. 68).
The intelligence and security intelligence agencies themselves exercise
vertical control over their members by the Director and senior management of the
intelligence service through the issuance of directives, internal regulations and
administrative policies. Oversight and review of misconduct may be performed by an
internal affairs department. Additionally, a duty to report illegal action and an
established channel for doing so is an important development in accountability
mechanisms within intelligence agencies (Born and Leigh, 2005, p. 46). Another
internal accountability mechanism is the ‘whistle-blower’, or a public servant who
discloses information, presumably to serve the higher public interest, despite his or
her obligation for confidentiality and for obeying his or her superior. The whistle-
blower seeks to draw public and political attention to an occurrence of corruption,
deception or major mismanagement. Accountability is especially served when
whistleblowers are guaranteed protection from legal or disciplinary action, enabling
them to draw attention of oversight bodies to misconduct.
Traditionally one of the strongest mechanisms for accountability in secret
services has been self-accountability through commitment to professional
standards and ethics (Franks, 1989, p. 20). Related mechanisms of control and
accountability thus include the training and education of employees and a
professional code of ethics, peer pressure amongst the agents, socialisation,
personnel recruiting, training in legal norms and democratic practices, and the
quality and integrity of senior management. This aspect focuses on the norms and
values of intelligence professionals in their day-to-day functioning, as well as the
attitudes and beliefs of political actors, the media, and members of the public.
Norms concerning the political neutrality of intelligence services would also figure
here, as would ‘honest adherence to the spirit of proportionality, in which the
12 Democratic Control of Intelligence Services
Horizontal Accountability
Horizontal control is exercised by entities which are more or less equal in power to
the body which is being overseen. A legislature exercises simple oversight when it
reviews reports of intelligence services that are submitted to parliament through the
relevant Minister, and when it debates issues relevant to intelligence services. A
legislature can enjoy a right of scrutiny which might entail the ability to request
specific documents and call officials to appear before them and account for their
actions. The legislature in a democracy has a role in overseeing and scrutinising
intelligence services, often through a specialised committee. Legislative
committees usually have clearly defined powers, such as the right to pose
questions, issue resolutions, launch inquiries and conduct study missions. A well-
developed system of parliamentary oversight provides parliamentary committees
with adequate resources (financial, informational and in terms of personnel) in
order to effectively investigate the matters under their purview. Additionally, a
legislature can vote on the planned activities of intelligence services in a general
sense, through the vote on the budget and through a vote of confidence concerning
the competent Minister or the government as a whole (Assembly of the Western
European Union, 2002b, p. 5).
Problems can arise with parliamentary scrutiny, however. Members of
specialised parliamentary committees overseeing security intelligence agencies
often have a greater degree of access to information, including secret information,
than other parliamentarians. Nevertheless in many democratic systems, even
members of legislative committees overseeing intelligence services are usually
denied information about operational matters and methods (names of informants,
details of operations), which could compromise ongoing operations. Leaks of
sensitive information provided to parliamentarians on special committees may
damage security and may create distrust among the intelligence services towards
the legislators and thwart the flow of information in the future.
As discussed above, intelligence services may also be drawn into party
political rivalries and disputes. In parliamentary democracies, it is considered
desirable in terms of oversight for the parliamentary committee or subcommittee
dealing with intelligence oversight to strive for a bipartisan or depoliticised
approach to its functions. That is, the committee members should not seek to use
the committee and its oversight powers in intelligence matters to advance their
14 Democratic Control of Intelligence Services
individual or party interests, but to contribute to the system of checks and balances
that help maintain a system of the accountable government.
A practical obstacle to effective legislative oversight and accountability
derives from the often superficial nature of the power of the purse. It has been
found, for example, that the expenditures for intelligence services are often
embedded deeply in a government's overall budget, and in practical terms many
parliaments have very limited parliamentary scrutiny over the intelligence budget
(Assembly of the Western European Union, 2002a, p. 20). In a similar vein,
parliamentary committees can be rendered ineffective through insufficient
knowledge of the work performed by the agency and of the issues and questions
that need to be addressed. Lack of expertise often is the result when committee
members do not acquire long experience on committees.
Another phenomenon that prevents a legislature from functioning
effectively as a mechanism of oversight for intelligence and security intelligence
agencies is political deference, typically (although not exclusively) found in
parliamentary systems with a fused executive and legislative branch. In contrast to
a presidential system of government in which there is a separation of powers
between executive and legislative branches and a system of checks and balances, in
the parliamentary system the executive (cabinet) is drawn from the legislature and
power is unified or fused. Since the executive is accountable to the legislature,
party discipline is strictly maintained. Political deference may have significant
influence on the functioning of parliamentary committees, where members of the
majority or coalition governing party are unwilling to criticise a Minister and the
domain under his management.
Another obstacle to effective oversight of intelligence agencies by a
parliamentary committee is the phenomenon of ‘regulatory capture’ or ‘iron
triangles’,2 which may occur when the members of an oversight body identify too
closely with the institutional objectives and problems of the agency being
reviewed, losing the independent and critical perspective necessary to effective
oversight (McCamus, 1989, p. 4). Regulatory capture may result from providing
too much secret material to a committee, increasing the chances that the committee
members become part of the power structure rather than external critics (Franks,
1989, p. 25).
Another category of horizontal accountability of domestic intelligence
agencies is comprised of the courts and judiciary. Their effectiveness as oversight
mechanisms can be evaluated in terms of the degree of their independence from the
other branches of government. As intelligence and security institutions fall under
the executive branch, independence from executive interference or influence is an
important determinant of the effectiveness of judicial control. In a democratic state,
government powers are subject to oversight by the legislature and review by the
courts. Such horizontal mechanisms of control help to ensure that government
2. Iron triangles are recurring interactions among a small set of actors who dominate
policy in a specific policy domain. Members of the iron triangle are from executive
agencies, the legislature, its committees and staffs, and special interest and lobby
groups (McCamus, 1989, p. 4).
Controlling and Overseeing Intelligence Services in Democratic States 15
actions, which may be motivated by national security reasons, do not violate the
rights of citizens and that the government is held accountable for such actions
when they do violate rights. Therefore, intrusive measures such as searches and
surveillance of persons or premises, wiretaps, orders to obtain confidential records,
and spying on political or religious activity should be subject to limits. In such
sensitive areas, it is not up to the discretion of the executive branch alone which
decides when searches and surveillance are to be undertaken. The courts play an
important role in determining that such action is justified, and in imposing limits
on executive power to prevent abuses. An intelligence service in democratic state
must normally seek a judicial warrant when it wants to perform surveillance and
other investigative procedures against a person. The warrant usually is fairly
specific in the details of what type of surveillance is to be allowed, against whom,
and for how long, and other terms and conditions.
The courts and judiciaries have a direct impact on the protection of rights of
individuals and on the exercise of democratic control over state institutions, in
particular executive branch institutions. As intelligence and security are realms
dominated by executive action, creating accountable intelligence and internal
security structures relies especially on judicial review of the legality of government
actions, the degree of judicial activism as revealed by willingness of the courts to
strike down laws and actions deemed to be unlawful or unconstitutional. In such
ways, the judiciary helps to hold government bodies responsible for the use and
possible misuse of power. Creating effective, independent and impartial judiciaries
is a crucial factor in the development and enforcement of rule of law and therefore
of democratisation.
More specifically, the judicial branch is also an important component of
creating a security intelligence apparatus that is effective yet limited in its powers,
that operates within the rule of law, is accountable, and is subject to democratic
and civilian control. In a democracy, the judiciary plays an important role in
upholding the law, enforcing the constitution and democratic rights and
procedures, and adjudicating disputes that cannot or should not be decided by the
executive or legislative branches or private individuals. The judiciary also plays a
monitoring role in ensuring that the other branches of government act within the
law. Through judicial or constitutional review, the judiciary can prevent the
arbitrary exercise of power by the government. Judicial review gives judges the
power to interpret the laws adopted by other branches of government, as well as
the power to veto those acts. A priori or abstract review enables parties to
challenge the constitutionality of statutes and decrees before they are enacted. Such
review gives a constitutional court real power to influence policy and policy
agendas. In contrast, incidental review limits review of government actions to the
point after they have been implemented (Ishiyama and Ishiyama Smithey, 2000,
p. 167). The review function again underlines the necessity of the judiciary to be
independent, as its role in providing effective monitoring of the executive and
legislative branches is impossible without freedom from influence by the other
branches (Open Society Institute, 2001, p. 19). In the case of internal security,
16 Democratic Control of Intelligence Services
Europe, the European Court of Human Rights (and the European Convention on
Human Rights) has exerted growing influence on intelligence accountability.5
The preceding discussion of the various accountability mechanisms
related to security and intelligence agencies underlines the multiplicity of actors
and mechanisms involved in control, oversight, and accountability. It suggests
that one should avoid focusing narrowly on legislation and other formal
constraints and powers surrounding intelligence services, and pay greater
attention to the wider environment of actual and potential accountability
mechanisms. While the legal framework is obviously important due to its role in
establishing the official mandate of a security intelligence agency and its
relationships with other key institutions, the legislature and judiciary, it is not
necessarily the most useful or essential approach to understanding control of
internal security structures in democratic states. As argued by Lustgarten, law is
a secondary mechanism. Of greater and more fundamental importance are basic
political values such as respect for dissenting ideas, human rights and privacy;
acceptance and legitimacy of a system of effective public oversight; a concept of
national security that is limited to core political values and societal interests; and
strict requirements for justifying the holding back of information from
parliament and the public and restricting the rights and freedoms of citizens.
Rather than legislation, it is the internalisation of these political values and ideas
within the political culture, especially among the political elite, that provides the
most essential indicator of democratic governance of the (internal) security
sphere (Lustgarten, 2003, p. 326).
5. One of the earliest and most significant judgements of the European Court for Human
Rights concerned the Leander case of 1987, following from which all European
security services must have their powers governed by legislation, their actions subject
to some form of oversight, and citizens with complaints must be able to seek some
form of redress. ‘Swedish security police accused of political policing: the Leander
case’, Fortress Europe Circular Letter (FECL) 52, December 1997. Available at:
http:77www.fecl.org/circular/5207.htm.
18 Democratic Control of Intelligence Services
6. This analogy was first used by Senator Frank Church during his chairing of the
Senate’s 1975 intelligence investigation. He described the CIA as ‘a rogue elephant
rampaging out of control’ for its failed assassination attempt on Fidel Castro and other
foreign leaders without clear presidential authorisation.
Controlling and Overseeing Intelligence Services in Democratic States 19
The relationship between an external reviewing body and the service or agency
being reviewed may have an important impact on the flow of information and the
quality of the oversight. An antagonistic relationship is likely to raise barriers to
information and result in confrontation. However a too accommodating posture on
the part of the reviewing body raises the prospect that the overseer has become
‘captured’ by the agency it is supposed to review and has lost the independence
that enables critical oversight. One criticism raised about legislative oversight of
intelligence is that intelligence committees may have become co-opted and easily
satisfied by explanations provided by the agencies (Center for International Policy,
1996). The problem of co-opting may be made worse in some states by the
phenomenon of mobility of former senior staff between intelligence agencies and
legislative oversight committees.
In the US a 1996 study by the Permanent Select Committee on Intelligence
of the House of Representatives stated that the intelligence oversight committee, in
addition to conducting oversight, must be an advocate for the intelligence
community, which has no natural advocate in the body politic (US Congress,
Permanent Select Committee on Intelligence, 1996). ‘Advocacy for overseen
agencies is legitimate and to some extent necessary. This has not been an accepted
stance for the intelligence committees. We agree with the view of former DCIs
(Director(s) of Central Intelligence) that intelligence is such a restricted issue that
Congress must be more active in building the necessary political consensus’
20 Democratic Control of Intelligence Services
secrecy. However it must be acknowledged that leaks occur for other reasons as
well, such as efforts to embarrass political or bureaucratic rivals.
Conclusion
The challenges of effective control and oversight of intelligence are significant and
daunting, particularly in environments where perceived threats to external or
internal security are heightened. The paradox of striving for some measure of
transparency in an inherently secretive body where information is guarded and
often released only on a need-to-know basis is central, as is the degree of
professional discretion that intelligence allegedly requires in order to be effective.
Nevertheless, the values and norms which are fundamental to democratic systems
require that intelligence agencies are accountable and subject to internal control
and external oversight. The degrees to which these are achievable in practice
remain moot, and subject to considerable variety in interpretation and
Controlling and Overseeing Intelligence Services in Democratic States 23
implementation, but the principles must be upheld and enshrined as core values in
any society that considers itself a liberal democracy.
Developments in the intelligence policy and practice of numerous
democratic states since the terrorist attacks of 9/11 have underscored the necessity
of retaining their commitment to foundational democratic norms and core values
whilst seeking to protect their societies from those who would destroy those norms
and values. The attacks of 9/11 instigated an immediate drive among Western
governments to implement measures to protect the public safety and national
security of their states. In the continuing aftermath of 9/11 in which the Global
War on Terror (GWOT) or the ‘Long War’ is being waged against the perceived
threat of international jihadist terrorism, there are significant grounds for doubting
whether legal safeguards and oversight and review mechanisms have kept pace
with the developing methods and capacities of the intelligence community.
Further, there has been little debate on some of the assumptions and assertions used
to justify the Long War and the build-up of many states' intelligence capacities, and
which have curtailed civil liberties and fundamental freedoms. The ascendance of
international terrorism to the top of the international security agenda has created a
new and strengthened legitimacy for intelligence agencies, but their missions and
targets must continue to be the subject of political and public scrutiny and debate.
The post 9/11 world has witnessed a significant increase in information and
intelligence sharing between law enforcement and intelligence agencies, and
between intelligence agencies of different countries. It has been claimed that
restrictions on information sharing prevented the dissemination of relevant
information that could have helped prevent and counteract the terrorist activities of
9/11. There is accordingly now a greater push to better coordinate information
sharing internally between government agencies and departments concerned with
security, and externally with friends and allies.7 While acknowledging the
necessity to improve effectiveness of coordination among state agencies
responsible for national security, intelligence sharing raises important challenges to
oversight, review, and accountability, particularly if intelligence-sharing is taking
place informally between agencies or more particularly between individuals.
Norms of data protection and privacy may be further jeopardised by intelligence
sharing between national authorities. To date, these issues have not been
adequately debated by the leaders and publics of democratic states.
Democratic oversight and accountability of intelligence services requires
constant vigilance from numerous actors, at state level, among the citizenry, and in
some circumstances by institutions beyond the state. The framework outlined
above, of vertical, horizontal, and third/external dimensions of accountability
reminds us of these interconnecting mechanisms of accountability and public
oversight, which when taken together may help to mitigate their individual
weaknesses. State institutions such as the legislature and judiciary perform an
essential role in overseeing intelligence agencies, but may be constrained in
exercising oversight by prevailing political conditions, a lack of independence or
7. See for example the fact sheet ‘Attorney General’s Guidelines for Information
Sharing’, Department of Justice, 23 September 2002. Available at: www.usdoj.gov.
24 Democratic Control of Intelligence Services