The aim of intelligence reform is to increase the efficiency of intelligence organisations and to improve their effectiveness through democratic control of their activities and budget, and accountability for their actions. Intelligence reform is also about the development of democratic civil-military relations8 in post-authoritarian or post- totalitarian states (Matei and Bruneau 2011). Every intelligence agency in a state has to have a clearly defined mandate against which its activities should be scrutinised and its effectiveness measured. Defining what intelligence agencies should and should not do is the first step in the democratisation of intelligence. Two terms ‘oversight’ and ‘control’
are usually used when referring to democratic control of intelligence services. Although the term ‘oversight’ and ‘control’ of intelligence services are usually used interchangeably, they differ from one another.
‘Oversight’ means supervisions, watchful care, management or control;
while ‘Control’ or executive control refers to both the direction provided by a Minister through the issuance of guidelines and through monitoring the activities of an intelligence agency, and the internal supervision and management of the intelligence agency as a bureaucratic institution (Caparini 2007:8).
Central to the concept of democracy are the principles of separation of power which divides the power and responsibility of the state into different branches – executive, legislative and judicial - in order to keep an eye on one another, and the principle of accountability which establishes checks and balances to ensure that all the activities of government institutions are conducted not for the interest of a particular individual or groups but only for the best interest of the state. The principle of accountability is applied to intelligence agencies and security services because no single area of government activity can be a
8 In order to restore the public trust into intelligence organisations which was lost due to what the intelligence apparatuses did during the period of dictatorship
“no-go” zone in a democracy (Born and Wetzling 2007: 317). The necessity for states to have various mechanisms to monitor and oversee action of its intelligence is what has led to the concept of intelligence oversight which signifies nothing else but the means of ensuring public accountability for the decisions and actions of security and intelligence agencies (Leigh 2005:7). Oversight also describes a system of accountability in which those vested with the executive authority in an organization have their actions reviewed, sometimes in advance, by an independent group that has the power to check those actions(Magnet 2007:330-331). Due to the nature of intelligence which is widely recognised as ‘secret’ and usually caused concerns for the public, the main objective of intelligence oversight is to ensure public accountability.
As mentioned earlier, security intelligence services in non- democratic authoritarian states usually function as “political police”.
They are used by politicians to identify domestic opponents and neutralised any opposition to the government. They do this through a variety of means including controlling the media and generating domestic apathy. Their central role has always been to protect the state’s secrets from anyone outside the central core of power. In many cases, the scope of what they have to control was immense because almost anything could be defined as a state secret. This role made intelligence services in authoritarian states very important in the survival of the regime and over time and due to their centrality to power and the heavy reliance by the authoritarian regimes on them, they grew in size and power and acquired greater autonomy from policy makers and became insulated from any type of scrutiny. They then change from being
“political police” to become “independent security state”. – An extreme form of security intelligence organisation characterised by a lack of any external controls on intelligence activities (Bruneau and Boraz 2007:12).
In other words, the more intelligence agencies become autonomous, the
more they become a danger to the state as over time the state will lose control over them.
In emerging democracies, the reform of the intelligence services aims at both the transformation of intelligence apparatus that supported the old regime and the establishment of control mechanisms; but in long established democracies, intelligence reform is about making changes in existing system by enhancing civilian control so as to improve effectiveness through the democratic control of intelligence. Müller- Wille (2006:491-506) argues in this regard that improvements in democratic accountability have positive effects on the performance of intelligence agencies at both the national and international level. The democratic accountability of intelligence services like that of any other institutions of government is not just about preventing the abuse of power; it is also about promoting good governance, which is understood, according to Behn (2001), as an efficient use of state authority for the good of the people.
Intelligence reform commenced in the Anglo-Saxon world – U.S., UK, Australia and Canada - and then the wave of reform spread to Europe. The major catalyst for intelligence reform in these liberal democracies was the exposures concerning abuses of power and violation of civil liberties by security and intelligence agencies and the emergence of transnational organised crimes. Other causes for reform included constitutional reform and legal challenges.
In the UK, for example, changes were introduced in the intelligence system after the Falklands war as a result of false assumptions before the war. Other changes took place in the UK following the July 2005 bombings in London. The September 11 attacks, which were considered by many as an intelligence failure, and the July bombing in London as well as the absence of WMDs9 in Iraq also had a transforming effect on UK intelligence community.
9 The failed assessment was the precursor to the invasion of Iraq.
In non-democratic authoritarian states, where security and intelligence services were the source of insecurity rather than the protector of citizens and the state, it is the waves of democratisation that swept across Eastern Europe, South America, East Asia and Africa at the end of the Cold War that has been the major catalyst for reform of security sector, including the reform of intelligence services. Solomon Hailu (2009) notes that the collapse of the Cold War and Africa’s increasing openness in the face of globalisation and democratisation have brought about the dissolution of old patterns of political affiliation and radical shift in Africa’s post-Cold War security paradigm.
Although progress in reform has been slower outside Europe, there has been a growing recognition among the public and legislators throughout the world that even though security and intelligence agencies do protect democracy they can also be a threat to it. Threat may come from the invasion of privacy by information gathering and surveillance and directed attempts to manipulate the political process; by assignations and coups in foreign countries; and by control of information, infiltration of political movements, pressure groups, trade unions, and so on(Leigh, 2005). All these are done in secrecy.
Holt (1995:1) argues that secrecy is the enemy of democracy. This argument stands on the ground that secrecy may facilitate the cover-up of unauthorised actions making control by non-intelligence actors more difficult. However, secrecy is an essential factor that enables intelligence agencies to make valuable contributions to the production of security.
Bruneau and Boraz (2007) assert that without good intelligence, a country may thrash about blindly or allow threats to grow without taking countermeasures against security threats. These two intelligence experts also warn against the danger that intelligence can pose to a state when intelligence services are inadequate. What needs to be done in order to strike a balance between the need for security and the need for
democratisation of intelligence services is to establish democratic control mechanisms. These mechanisms should not be applied only against the intelligence; they should also be used to prevent political manipulation of the intelligence by the executive.
Democratic control of intelligence is a two-part strategy – oversight and direction; the former refers to processes put in place by a democratic government to review all aspects of its intelligence community, the latter refers to a strategy that is put in place by a democratic government to inform civilians on the mission of intelligence organisations and to receive a day-to-day civilian feedback on intelligence.
There are five basic mechanisms for controlling intelligence in a democracy: executive, legislative, judicial, internal and external control.
Among the external mechanisms there are mechanisms that are referred to as informal mechanisms and are exercised by the media and civil society.
2.6.1 Executive Oversight
Intelligence oversight is primarily the duty of the government and intelligence services which are the main institutions that implement intelligence (Lowenthal 2007:191). It is the executive that defines the mission of the intelligence community and organises and support it. The executive is also the primary consumer of intelligence; as such it has the duty to give direction to intelligence organisations and make sure that they work as directed. The key variable in ensuring that a state is using its intelligence organisations appropriately is the executive oversight or control whose objective is mainly to increase the success of intelligence operations. The executive control needs to be well balanced because when there is too little executive control the intelligence may become a law into itself and when there is too much executive control the government may manipulate the intelligence or be tempted to use them
for the purpose of domestic politics such as silencing political opponents.
The U.S. has a more developed mechanism of executive oversight and other states around the world look at it for examples. The American executive oversight has four categories - chain-of-command structure, inspector generals, ad-hoc oversight entity, and permanent oversight entity.
2.6.1.1 Chain-of-Command Control
The American system of government is known to be hierarchical in which elected politicians are at the top and take responsibilities for actions of all governmental organisations, including the intelligence services. In this hierarchical and bureaucratic system, those who are at the bottom of the ladder report to those higher up who in turn report to politicians who were elected by the American people. In the case of intelligence services, there are two levels of hierarchy. At the first level, junior intelligence officers report to the heads of sections who in turn report to the heads of division and then to the heads of agencies. After this level, intelligence is reported by heads of agencies to political superiors such as the Secretary of Homeland Security, the Secretary of Defence, the Secretary of State, and the President. The president is the highest authority and serves as commander-in-chief of the intelligence community.10 The National Security Council (NSC) assists the president and provides him with advice on intelligence matters. Within the NSC there is an Office of Intelligence Programs (OIP) which oversees the
10 The U.S. Intelligence Community is made of the following intelligence organisations: Air Force Intelligence, Army Intelligence, Central Intelligence Agency, Coast Guard Intelligence, Defense Intelligence Agency, Department of Energy, Department of Homeland Security, Department of State, Department of the Treasury, Drug Enforcement Administration, Federal Bureau of Investigation, Marine Corps Intelligence, National Geospatial-Intelligence Agency, National Reconnaissance Office, National Security Agency and Navy Intelligence. Source: http://www.dni.gov/index.php/intelligence-community/
members-of-the-ic accessed 18/10/2012
direction and policy of national intelligence (Lowenthal 2006:192). The president’s principal advisor on intelligence affairs is the Director of National Intelligence (DNI).11He is below the NSC and is responsible for overseeing and directing all intelligence activities within the intelligence community. He also receives intelligence report directly from the CIA, which is the only entity that has no responsible cabinet member. Other intelligence agencies have responsible cabinet members to whom they report. For example, the National Security Agency (NSA) reports to the Defence Secretary and the Federal Bureau of Investigation (FBI) reports to the Attorney General. However, it is important to mention that in some circumstances the CIA does report directly to the President (Turner 2006:37).
As demonstrated above, the structure of the U.S intelligence emphasises vertical lines of authority and politicians are at the top of the pyramid to ensure that intelligence services are not under the control of themselves but the politicians who were elected by the American people.
This chain-of-command control with clear lines of responsibility is very useful in a democracy as it prevents the abuse of power by intelligence agencies and makes it easy to establish the responsibility whenever things go wrong. It is suitable for the American system of government which is very large and in which bureaucratisation remains maximal both within the overall machinery of government and in specific departments.
Smaller governments like the British government have instead adopted horizontal lines of communication between the Cabinet and its different departments, and collegiality in its central intelligence machinery (Davies 2004). In the UK, executive power is not concentrated in the hands of one powerful politician but it is dispersed among powerful Departments of States and Cabinet Ministers as per its
11 The position of the DNI was established in 2004 following Post 9/11 investigations. http://www.dni.gov/index.php/about/history accessed 18/10/2012
constitutional arrangements of Parliamentary Cabinet government. The Prime Minister plays only a primus inter pares role. This interdepartmentalism has led to the creations of several committees12 on intelligence within which intelligence coordination and control is done through influence rather than executive responsibility. In the UK, the creation of committees on intelligence favours consensual decision- making processes and departmental participation which ensures the output’s acceptability without which there can be no agreed intelligence for decision-taking (Herman 1996:269).
As mentioned in relation to the US, the chain-of-command control has a crucial role in preventing intelligence agencies from misusing their power against civil rights and liberties. To achieve this and to prevent intelligence agencies acting on their own without proper direction from the authorities who were elected by the people, all American intelligence agencies are required to send a request before running any operation which might pose danger to human rights and civil liberties of people.
Such requests are authorised by the President after going through all the bureaucratic hierarchy (Johnson 1989:109).
2.6.1.2 Inspector General
Inspector General (IG) mechanism assists the government to oversee intelligence activities by ensuring the effectiveness of the activities of intelligence agencies and preventing the misuse of intelligence that can lead to violation of civil liberties. This mechanism has 4 specific functions: 1) to ensure that every intelligence agency follows and responds properly to the directions and requirements of their directors;
2) to ensure proper implementation of procedures by the agency; 3) to receive and investigate complaints from both the public and staff of agencies regarding intelligence services; 4) to audit financial activities of intelligence agencies.
12According to Herman (1996:269)the idea that intelligence needs committees is considered as the greatest British contribution to modern intelligence.
Inspector General mechanism is common in the American intelligence community and it comes into two distinct types of appointments: administratively appointed IG and statutory appointed IG.
1) Administratively appointed IG, which is a political appointment, is the original form of IG and was created to prevent scandals and illegalities by intelligence services which can damage the whole government or a member of the cabinet. This kind of IG is considered as
‘eyes and ears’ of the government and cabinet members and its appointment depends more on the consent of cabinet members and the head of the service (Weller 1997:385). This has a direct effect on the independence of the IG.
2) Statutory IG: appointment to this post is done by the President and is confirmed by the Senate. This type of IGs enjoys more independence than the former in conducting tasks. There is very little interference in the work of this mechanism by cabinet members and agency heads.
Consequently, investigations are conducted freely without fear of being removed by the head of an agency (Intelligence Authorization Act of 1990 (103 Stat.1711). Such is the case with the IG of the CIA who, under normal circumstances, works under general supervision of the Director of the CIA and reports to him or her. The IG reports directly to intelligence committees in the Congress only in special circumstances when for example the Director of the CIA is the target of the investigation.
The oversight mechanism of IG monitors the effectiveness and efficiency of intelligence. It also plays the financial auditing role and the protection of civil liberty. In order to reinforce its operations and its role of ensuring good quality of intelligence, the recently reform that led to the passing of the Intelligence Reform and Terrorism Prevention Act of 2004 created a new position of Civil Liberties Protection Officer alongside the existing the position of the IG of the Office of the DNI (ODNI) who oversees routine internal affairs. The task of the so-called
Civil Liberties Protection Officer is specifically to ensure that the intelligence community strictly follows the legal requirement regarding civil liberty and privacy protection set by the ODNI.13
2.6.1.3 Permanent Oversight Entities
There are two types of permanent oversight entities in the U.S. - the President’s Foreign Intelligence Advisory Board (PFIAB) and the President’s Intelligence Oversight Board (IOB). The PFIAB is one of the oversight mechanisms of the executive whose function is to oversee the quality of intelligence in order to provide advice to the President in relation to the quality and adequacy of intelligence collection, of analysis and estimates, of counterintelligence, and of other intelligence activities. As an independent institution from other bureaucratic organisations and the intelligence community, the PFIAB reports only to the President and has full access to all foreign intelligence. Its 16 members are appointed by the President from qualified people outside the government.
The IOB, which is a sub-unit of the PFIAB, has four members selected from the 16 members of the PFIAB and appointed by the chairman of the PFIAB to oversee lawfulness of intelligence activity14 and to review the oversight practice of the IGs of other intelligence services and to investigate any suspected misuse of intelligence.15 Any findings of the IOB which the board believes can be unlawful are reported not only to the President but also to the Attorney General.16
13 ‘Civil Liberties Protection Office’, available fromhttp://www.dni.gov/
aboutODNI/organization/CivilLiberties.htm, accessed; 09 November 2012
14 President’s Foreign Intelligence Advisory Board’, available from http://www.whitehouse.gov/pfiab/, [09/11/2012]
15 ‘Relationships with Other Government Organizations’ available from http://www.dni.gov/who_what/printer_friendly/relationships_IC_print.htm, [09/11/2012]
16 Executive Order NO.12334, Sec.2, available from: http://www.fas.org/
irp/offdocs/EO12334.htm, [09/11/2012]
2.6.1.4 Ad-hoc Oversight Entities
These are special committees that are established after an intelligence failure has occurred in order to look at what went wrong and suggest ways of preventing this from occurring again. Through its recommendations, this ex-post period inquiry is done to ensure effectiveness of intelligence. Ad-hoc committees are established and their members are appointed by the President. One of the examples of these ad-hoc committees is the National Commission on Terrorist Attacks upon the United States which was established to investigate the terrorist attacks after the 9/11. Significant intelligence reforms were undertaken following the publication of the Commission’s report containing findings and recommendations.
2.6.2 Legislative Oversight
The legislative branch of government plays a significant role in democratically ruled states. It makes laws and oversees and monitors the activities and functions of the executive branch in order to make sure that the government properly implements its policies and strictly respect liberty and freedom of the people (Johnson 2005:57-59).
The word ‘democracy’ conveys the idea that all state authority emanates from the people, thus those who exercise state authority are accountable to the people. But the degree of how parliament holds the executive on account depends more on the concentration of parliamentary power. In countries such as the UK where parliament is the centre of power, parliament has close relations with the executive which may sometimes prevent parliament from exercising its power. But in countries where the separation of power between the three branches of government is clear, parliaments tend to be powerful and can independently use this power to oversee the activities of intelligence services. In both cases, when overseeing the operations of intelligence