Tackling Transparency Beyond the Nation-State
Politics & Intelligence
University of Liverpool
Some issues providing the context for oversight of international intelligence cooperation…
Much of the debate provoked since 2013 by the publication of
a trove of NSA/GCHQ documents in major media outlets has taken place within the
traditional civil libertarian frame of suspicion and critique of states’ (formally
democratic and otherwise) surveillance of citizens and others. The ‘others’
abused by what is variously described (by critics) as ‘mass surveillance’ or
(by officials) as ‘bulk collection’ include not just foreigners but also the
communication service providers (CSPs) who have been variously hacked, bullied
or bribed by governments in their search for data. Major proposals for reform
are under consideration in many countries and, unsurprisingly, are centred on
the perceived need for laws that not only acknowledge the breadth of
contemporary intelligence activities but also are ‘fit for purpose’ in the age
of the Internet and social media networks.
Current laws have certainly been exposed as inadequate; in
the UK, for example, the Regulation of Investigatory
Powers Act 2000 has been criticised as outdated, irrelevant and opaque. As
anyone who has tried to understand it will testify, it is certainly the last of
these but, significantly, prior to June 2013, there was no clamour from
government or the agencies that it was either of the first two. It had rather
successfully ‘future-proofed’ the interception of communications (and other
covert techniques) against technological innovation by describing powers very
generally and ‘judge-proofed’ it by building in authorisation and oversight
processes that met ECHR requirements. The Investigatory Powers Tribunal had
upheld no complaints against the agencies until recent cases brought on the
basis of information released as part of Snowden’s archive exposed faults in
GCHQ’s internal practices.
Thinking about reform, we must note that ‘intelligence’ has,
to put it mildly, an ambiguous relationship with law. ‘Legalisation’ of
intelligence is relatively recent (only in Germany and Netherlands does it go
back more than forty years…) and intelligence for security purposes is a
central (realist rather than cosmopolitan) tool in the conduct of international
relations. There are greater (ECHR
article 8-inspired) legal restrictions on the use of intelligence
domestically. But agencies such as MI5, MI6 and GCHQ are not the only
intelligence actors. First, there are a range of other state agencies – police,
border, financial – who develop intelligence. Second there are a range of
corporate actors including specific security companies working on contract to
governments or other corporations, companies involved in foreign operations
where security is a major issue and companies providing the hardware and
software products without which neither
states not companies can operate. This
gives rise to a crucial interdependence or symbiosis between public and private
(described by Anna Leander and Didier Bigo as ‘hybridity’). These companies are
not ‘victims’ of the state; they have essentially the same business model: the
exploitation of people’s personal information in order to pursue organisational
objectives.
Also relevant is the changed perception of risk since 9/11: compared
with the Cold War, governments perceive current security risks as much more
complex and uncertain and therefore demand
as much ‘intelligence’ as possible from the agencies. More or less
contemporaneously with this shift has been the digital revolution which, for
the first time ever, seems to make it feasible to supply this by ‘collecting everything’. International intelligence
collaboration has always existed, especially between allies during war, but has
been much increased this century as a result of pressure from the US and the UN
to respond to this heightened threat-perception. The most controversial example
of collaboration after 9/11 was the use of ‘extraordinary rendition’ (aka
kidnapping and torture) at the behest of the US and which involved the active
cooperation and/or collusion of many other states including the UK. International
intelligence cooperation is essential for security but has a great potential
for the abuse of human rights. It cannot be dis-invented; therefore the issue
is how it might be better controlled and overseen.
There are two main sources of ideas and experience: national
oversight procedures established over the last 30-40 years, mainly in the
Americas and Europe but also in parts of Africa and Asia and the legal and
political processes by which rendition was exposed. Key to effective national
oversight is that those responsible (whether inside or outside the Assembly)
have a legal mandate to examine all aspects of intelligence, including
international cooperation, have adequate resources in terms of staff expertise
and full access to agency people and files, and, crucially, have the political
will to deploy them. The main lesson to be drawn from the exposure of rendition
is that formal parliamentary, extra-parliamentary or judicial oversight will
always require supplementation from civil society organisations and media.
The more specific challenges to the oversight of
international intelligence cooperation and some thoughts on how they might be
met will be discussed at the seminar.
Pete Gill
15 March 2016
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