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ABSTRACT
This article examines the experience of oversight during the last fifty years in order to inform current debates in both the older and newer democracies. First, there is a discussion of certain key concepts: intelligence governance including control, authorisation and oversight; second, the difficulties facing oversight, specifically, how these can be alleviated by a structure involving both parliamentary and specialist bodies and, third, the challenges presented by the structures of surveillance corporatism and its reliance on bulk collection. It is concluded that this new intelligence architecture requires a form of decentred regulation of and by state and corporate actors.
Acknowledgements
Many thanks to Stuart Farson for his critique on an early draft of this article and to the journal’s reviewers for their comments.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. Agrell & Treverton, National Intelligence and Science, 32-35
2. Ibid., 196
3. Gill, Intelligence, “Threat, Risk and the Challenge of Oversight,” 213; see also Petersen & Tjalve, “Intelligence Expertise in the Age of Information Sharing”
4. ‘Hybrid’ regimes may be defined as those displaying elements both of democracy – somewhat competitive elections based on a degree of freedom of association – and authoritarianism – continuing restrictions on media, civil society and attacks on government opponents. Gill, Intelligence Governance and Democratisation, 50
5. Lester, When Should State Secrets Stay Secret?, 134-39. In the 1980s MI5 and MI6 shared one lawyer between them; it is safe to assume each has more now.
6. Lester, When Should State Secrets Stay Secret?, 73
7. cf. Edelman, The Symbolic Uses of Politics, 130-51
8. Cf. Leigh & Wegge, Intelligence Oversight in the Twenty-First Century: Accountability in a Changing World, ch.1.
9. ICC giving evidence to UK House of Commons Home Affairs Committee, 11 February 2014.
10. Anderson, “A Matter of Trust,” 8.
11. For example, see ISC 2018
12. Church, Final Report of the Select Committee to study Governmental Operations.
13. Only 21 applications were completely rejected up to 2016 but in 2016 the number was 26 https://www.washingtontimes.com/news/2018/apr/26/fisa-court-denied-more-surveillance-warrants-2017-/
14. Lester, When Should State Secrets Stay Secret?, 159-204 provides detailed review of FISC
15. Savage, “We Just Got a Rare Look at National Security Surveillance.”
16. CTIVD, Annual Report for 2019, 33
17. https://www.ipco.org.uk/
18. Warusfel in Leigh & Wegge, Intelligence Oversight in the Twenty-First Century: Accountability in a Changing World.
19. cf. Farson & Whitaker, “Accounting for the Future or the Past?,” 678; Colaresi, Democracy Declassified, 234-39
20. cf. Aldrich & Richterova, “Ambient Accountability,” 1006-07; Venice Comm, 2015, 4; Hastedt, “The Politics of Intelligence Accountability” and Lester 2015 focus specifically on the accountability question in the US
21. e.g., Lester, When Should State Secrets Stay Secret?, 56-70
22. McLaughlin, “Lawmakers Demand Investigation into Lack of Whistleblower Protections for Spies.”
23. Savage 2020
24. CTIVD, Annual Report for 2019, 10; Gill, Policing Politics, 248-52
25. O’Connor, “Report of the Commission of Inquiry.”
26. cf. Gill, Policing Politics, 248-53; Born & Johnson, Who’s Watching the Spies, 235-38, Wills, Guidebook; Eskens et al., Ten standards for oversight and transparency.
27. Cayford et al., Plots, Murders, and Money,” 1011-12, quotes at 1012
28. Dietrich, “Of Toothless Windbags, Blind Guardians and Blunt Swords,” 400, emphasis added
29. Hillebrand, “Intelligence Oversight and Accountability,” 307; Hegemann, “Toward ‘Normal’ Politics?” provides a case study of the PKGr since 9/11
30. Wetzling, “Intelligence Governance in Post-Cold War Germany,” 177
31. Though, even here, the size and complexity of the US intelligence community, the complexities of congressional committee jurisdictions, members of the Senate and House committees’ other commitments and limitations of secrecy mean that, arguably, they are just as under-resourced vis-à-vis the agencies as other overseers.
32. Zegart & Quinn, “Congressional Intelligence Oversight,” 744
33. Michael Mates, speaking on Newsnight, BBC2, 19 May 2009.
34. ISC, Report into the London Terrorist Attacks on 7 July 2005.
35. ISC, 2009, para.11.
36. http://7julyinquests.independent.gov.uk/hearing_transcripts/index.htm,
37. ISC Press Release, 27 April 2017.
38. cf. Gill, Policing Politics, 79-82; Dobson, 2019, 11 and cf. Lester, When Should State Secrets Stay Secret?, 15-16
39. Gill, Intelligence Governance and Democratisation, 42-46 summarises the main differences between authoritarian and democratic intelligence regimes.
40. Hennessy, “From Secret State to Protective State”; Omand, Securing the State, 9-11.
41. Similarly, ‘Surveillance capitalists know everything about us, whereas their operations are designed to be unknowable to us.’ Zuboff, The Age of Surveillance Capitalism, 11, original emphasis.
42. Colaresi, Democracy Declassified, 234-39.
43. Lester, When Should State Secrets Stay Secret?, 205; see also Kibbe, “Congressional Oversight of Intelligence.”
44. Aldrich & Richterova, “Ambient Accountability,” 1003.
45. Lester, When Should State Secrets Stay Secret?, 41.
46. Lester, When Should State Secrets Stay Secret?, 21-2.
47. Wills & Born, Who’s Watching the Spies, 286.
48. Kibbe, “Congressional Oversight of Intelligence,” 33-38.
49. Intelligence Services Commissioner, “Supplementary to the Annual Report for 2015”.
50. Rittberger & Goetz, “Secrecy in Europe,” 839.
51. e.g., Otamendi & Estevez, “Intelligence Challenges in Latin America and Prospects for Reform.”
52. Otamendi & Estevez, “Intelligence Challenges in Latin America and Prospects for Reform,” 288.
53. Caparini, “Comparing the Democratisation of Intelligence Governance in East Central Europe and the Balkan,” 522; see also Matei 2014.
54. Aldrich & Richterova, “Ambient Accountability,” 1012-15.
55. Fuoir 2018, 57.
56. Zulean and Şercan, “Democratic Control of Romanian Intelligence after Three Decades,” 15-16.
57. Lester, When Should State Secrets Stay Secret?, 6.
58. Warusfel, in Leigh & Wegge, Intelligence Oversight in the Twenty-First Century: Accountability in a Changing Worl, 127.
59. quoted in Pejic, 2018.
60. Petrovic, “Serbia,” 328.
61. Kibbe, “Congressional Oversight of Intelligence,” 38-42.
62. Lester, When Should State Secrets Stay Secret?, 106-07.
63. Hijzen, “More than a Ritual Dance,” 235.
64. Petrovic, “Serbia,” 329-30.
65. Wegge, “Intelligence Oversight and the Security of the State,” 695.
66. van Lathem, 2011.
67. Hijzen, “More than a Ritual Dance,” 237.
68. Farson & Whitaker, “Accounting for the Future or the Past?,” 677
69. McDonald, 1981.
73. Dietrich, “Of Toothless Windbags, Blind Guardians and Blunt Swords,” 397.
74. Dietrich, “Of Toothless Windbags, Blind Guardians and Blunt Swords,” 401-02; Wetzling, Upping the Ante on Bulk Surveillance, 181.
75. RUSI, A Democratic Licence to Operate, 111-14; Anderson, “A Matter of Trust”; Investigatory Powers Act, 2016, Part 8, chapter 1 http://www.legislation.gov.uk/ukpga/2016/25/contents/enacted
76. Foregoing based on Leigh, “Reappraising Intelligence Oversight in the UK,” 86-88.
77. Bowcott, “Court Told MI5 Kept Material and Gained Warrants Illegally,” 10. See also IPCO 22/10/19.
78. RUSI, A Democratic Licence to Operate, 111-14; see IPCO Ann Rept 2017 para 2.11 for Fulford justification.
79. Members of expert bodies may also hear appeals against refusals of security clearance, e.g., NSIRA in Canada and chairs of Committees I and P sit with head of Data Protection Commission in Belgium (Laethem, 2018, 109). CTIVD now divides responsibility of its members between hearing public complaints and conducting oversight (2019, 9).
80. Petersen & Tjalve, “Intelligence Expertise in the Age of Information Sharing,” 22
81. The 2019 documentary film ‘The Great Hack’ shows part of a Cambridge Analytica presentation by (later) whistleblower Bethany Kaiser in which she claimed: ‘we are a behaviour-change agency’. https://www.netflix.com/gb/title/80117542
82. ‘It is in the nature on instrumentarian power to operate remotely and move in stealth. It does not grow through terror, murder, the suspension of democratic institutions, massacre or expulsion. Instead, it grows through declaration, self-authorization, rhetorical misdirection, euphemism, and the quiet, audacious backstage moves specifically crafted to elude awareness as it replaces individual freedom with others’ knowledge and replaces society with certainty. It does not confront democracy but rather erodes it from within, eating away at the human capabilities and self-understanding required to sustain a democratic life.’ Zuboff, The Age of Surveillance Capitalism, 381, emphasis added.
83. Zuboff, The Age of Surveillance Capitalism, 385
84. Fry & Hochstein, “Epistemic Communities”; Gill & Phythian, Intelligence in an Insecure World, 45-66.
85. Petersen & Tjalve, “Intelligence Expertise in the Age of Information Sharing,” 23.
86. Gill, Intelligence Governance and Democratisation, 69; also Petersen & Tjalve, “Intelligence Expertise in the Age of Information Sharing,” 25.
87. Gill, Intelligence Governance and Democratisation, 67-74.
88. Zuboff, The Age of Surveillance Capitalism, 112-21 quote at 115.
89. Zuboff, The Age of Surveillance Capitalism, 377 and see 504-12 re. ‘radical indifference’
90. cf. Treverton, Theory and Practice.
91. Open Rights Group, 2019.
92. Wetzling & Vieth, Upping the Ante on Bulk Surveillance, esp 21-82
93. Van Laethem, “The Rule of Law and 25 Years of Intelligence Oversight in an Ever-Changing World,” 106.
94. CTIVD, Annual Report for 2019.
95. Wetzling & Vieth, Upping the Ante on Bulk Surveillance, 84-85; cf. Quarmby, Intelligence in Regulation, 39-43.
96. Vieth & Wetzling, “Data-driven Intelligence Oversight.”
97. van Buuren, “From Oversight to Undersight,” 244-46; cf. Zuboff, The Age of Surveillance Capitalism.
98. Lefebvre, “The Difficulties and Dilemmas of International Intelligence Cooperation,” 534-36.
99. CTIVD, Annual Report for 2019, 10
100. See O’Connor, “Report of the Commission of Inquiry.”
101. McGruddy, “Multilateral Intelligence Collaboration and International Oversight,” 220
102. Aldrich, “Global Intelligence Cooperation versus Accountability,” 56.
103. Aden, “Information Sharing, Secrecy and Trust among Law Enforcement,” 982.
104. De Ridder, “A Simple yet Existential Demand: Let Oversight Bodies Work Together.”
105. CTIVD, Annual Report for 2019, 16-19.
107. CTIVD statement 14 November 2018.
108. IPCO, 2018.
109. Van Laethem, “The Rule of Law and 25 Years of Intelligence Oversight in an Ever-Changing World,” 105
110. Moran, “The Rise of the Regulatory State.”
111. Black, “Critical Reflections on Regulation,” 8-9.
112. Quarmby, Intelligence in Regulation, 108-11.
113. van Puyvelde, Outsourcing US Intelligence.
115. Van Laethem, “The Rule of Law and 25 Years of Intelligence Oversight in an Ever-Changing World,” 114
116. Loader & Walker, Civilizing Security.
117. cf. Aldrich & Richterova, “Ambient Accountability,” 1005; van Buuren, “From Oversight to Undersight,” 239.
118. Gill, Intelligence Governance and Democratisation, 210-14; van Buuren, “From Oversight to Undersight.”
119. Wegge, “Intelligence Oversight and the Security of the State,” 695.
120. P&T, 2018, 30.
121. Gill, “Inquiring into Dirty Wars.”
122. Glaser, Anti-Politics.
Additional information
Notes on contributors
Peter Gill
Peter Gill was previously Professor of Politics and Security at Liverpool John Moores University (2004-2007) and Research Professor in Intelligence Studies at the University of Salford (2007-2009). He was honorary fellow at University of Liverpool 2009-2016 and University of Leicester 2016-2019. He wrote Policing Politics (Cass, 1994), Rounding Up the Usual Suspects (Ashgate, 2000) and Intelligence Governance and Democratisation: a comparative analysis of the limits of reform (Routledge, 2016). He has also co-authored Intelligence in an Insecure World (3rd edition, Polity, 2018) and Democratization of Intelligence (Routledge, 2015).