Intelligence and Democratic Accountability: A Blessing, not a Curse

Abstract

Since the start of the ‘war on terror', intelligence agencies have been widely criticised. While focusing on the EU's own agencies, this article suggests that improvements in democratic accountability would have positive effects on the performance of intelligence agencies at both the national and European level. The author identifies that the main deficits in terms of democratic accountability currently remain at the national level. Nevertheless, challenges also remain within the EU. The main effort, he suggests, should be put into the establishment of mechanisms for quality control. This would not only address the core weakness of EU agencies, but also generate benefits for national ones.

Notes

This article draws on Björn Müller-Wille, ‘Improving the Democratic Accountability of EU Intelligence’, Intelligence and National Security 21/1 (2006), pp. 100–128.

1. For an overview of the task and functions of the Union's intelligence agencies see Thierry Coosemans, ‘L'Union Européenne et le renseignment: Perspectives de coopération entre les étas membres’, Rapport du GRIP 3 (2004); and Björn Müller-Wille, ‘For Our Eyes Only? Shaping an Intelligence Community within the EU’, Occasional Papers, 50 (European Union Institute for Security Studies, 2004).

2. For a concise overview of the principal–agent approach see Hussein Kassim and Anand Menon, ‘The Principal Agent Approach and the Study of the European Union: Promise Unfulfilled?’, Journal of European Public Policy 10/1 (2003), pp. 121–139.

3. This is for instance clearly expressed in article 20 of the German Constitution.

4. See the European Convention, Working Group VII, Working Document 33: Comments by Ms Sylvia-Yvonne Kaufmann on the Preliminary Draft Final Report of Working Group VIII, Defence (WD 022), Brussels, 4 December 2002, p. 16.

5. Alexander Hamilton or James Madison, ‘Federalist Paper No. 51’, The Federalist, Friday, 8 February 1788, from New York Packet, available at http://lcweb2.loc.gov/const/fed/fed_51.html, last accessed 7 February 2007.

6. Pat M. Holt, Secret Intelligence and Public Policy: A Dilemma of Democracy (Washington, DC: CQ Press, 1995), p. 3.

7. For a more comprehensive discussion on the meaning of the terms accountability and democratic accountability see Robert Behn, Rethinking Democratic Accountability (Washington: Brookings, 2001); and Robert Pyper, ‘Introduction: The Parameters of Accountability’, in Robert Pyper (ed.), Aspects of Accountability in the British System of Government (Eastham: Tudor, 1996).

8. Loch Johnson, ‘The CIA and The Question of Accountability’, Intelligence and National Security 12/1 (1997), p. 185.

9. As Lawrence Freedman points out, we can already witness the unprecedented role intelligence plays in justifying the new type of pre-emptive war. Lawrence Freedman, ‘War in Iraq: Selling the Threat’, Survival 46/2 (2004), pp. 7–50. This will most likely also be true for the preventive engagement foreseen by the European Union's Security Strategy.

10. Ian Leigh, ‘Democratic Control of Security and Intelligence Services: A Legal Framework’, in Alan Bryden and Philipp Fluri (eds.), Security Sector Reform: Institutions, Society and Good Governance (Baden-Baden: Nomos, 2003), p. 118. The rule of law and transparency are not the only factors that cause tension between the principles of democratic government and the activities of intelligence agencies. Marvin Ott adds participation, disaggregation of power, privacy and mutual trust to the list of contrasting features. See Marvin Ott, ‘Partisanship and the Decline of Intelligence Oversight’, International Journal of Intelligence and Counterintelligence 16/1 (2003), p. 71.

11. Victor Jones, ‘Enduring Principles: Some Lessons in Intelligence’, Studies in Intelligence 38/5 (1995), pp. 37–42; emphasis added.

12. This principle has also been recognised at the international level, e.g. by the European Convention on Human Rights (ECHR), which only allows for restrictions to the rights and freedoms of individuals ‘in accordance with the law’ (article 6, 8, 9, 10 and 11); see Leigh, ‘Democratic Control’, p. 119. The ECHR is now titled ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ and is available at http://www.echr.coe.int, last accessed 6 February 2007.

13. Leigh, ‘Democratic Control’, p. 118.

14. Ott, ‘Partisanship’, p. 92.

15. Morris Panner, ‘Improving Intelligence Operations by Setting Law Enforcement Goals and Objectives’, in Project on Justice in Times of Transition, Working Papers (Harvard University, 2002), available at http://www.ksg.harvard.edu/justiceproject/Working%20Paper%20Panner.doc, last accessed 21 October 2003.

16. Leigh, ‘Democratic Control’, p. 121.

17. Abraham Shulsky and Gary Schmitt, Silent Warfare: Understanding the World of Intelligence (Dulles: Brassey's, 3rd edition, 2002), pp. 135 and 138.

18. This article favours the mainstream view that prefers to keep intelligence separate from policy-making. See Michael Herman, Intelligence Services in the Information Age (London: Frank Cass, 2001), p. 11. Nevertheless, others consider such separation unrealistic and unwise. For arguments for the two sides see Glenn Hastedt, ‘Controlling Intelligence: Defining the Problem’, in Glenn Hastedt (ed.), Controlling Intelligence (London: Frank Cass, 1991), pp. 10–11.

19. Ott, ‘Partisanship’, p. 70.

20. Behn, Rethinking Democratic Accountability, pp. 10–12.

21. Müller-Wille, ‘Improving the Democratic Accountability’.

22. Article 207 (2), Consolidated version of the Treaty establishing the European Community.

23. Thus, in this sense, they do not threaten the private life as outlined in article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

24. Europol's role in Joint Investigation Teams is a special case in this context. Just like any foreign officer participating in such a team, Europol officers can theoretically be entrusted with operational roles on a case-by-case basis by the country in which the team acts. They do not, however, have any such right per see (article 1 (6), Council Framework Decision (2002/465/JHA) of 13 June 2002 on joint investigation teams).

25. See Jean-Paul Brodeur, Peter Gill and Dennis Töllberg (eds.), Democracy, Law and Security: Internal Security Services in Contemporary Europe (Aldershot: Ashgate, 2003); and David Greenwood and Sander Huisman (eds.), Transparency and Accountability of Police Forces: Security Services and Intelligence Agencies (Sofia, Bulgaria: George C. Marshall Association, 2004).

26. Philip Heymann, ‘Controlling Intelligence Agencies’, in Project on Justice in Times of Transition, Working Papers (Harvard University 2002), available at http://www.ksg.harvard.edu/justiceproject/Heymann%20WP.doc, last accessed 21 October 2003.

27. Leigh, ‘Democratic Control’, p. 119; and Elisabeth Rindskopf Parker, ‘The American Experience: One Model for Intelligence Oversight in a Democracy’, in Project on Justice in Times of Transition, Working Papers (Harvard University, 2002), available at http://www.ksg.harvard.edu/justiceproject/Rindskopf%20WP.doc, last accessed 21 October 2003.

28. European Parliament, Report on the Existence of a Global System for the Interception of Private and Commercial Communications (ECHELON Interception System, 2001/2098(INI), 11 July 2001, A5-0264/2001 PAR1 (Echelon Report).

29. Thomas C. Bruneau, ‘Controlling Intelligence in New Democracies’, International Journal of Intelligence and Counterintelligence 14/3 (2001), pp. 323–341.

30. Coosemans, ‘L'Union Européenne et le renseignment’, p. 20.

31. ‘States can never fully understand each other or predict others’ actions, or even their own. Forecasts may themselves alter the situation they are forecasting’. Michael Herman, Intelligence Power in Peace and War (Cambridge: Cambridge UP, 1996), p. 226. See also Hastedt, Controlling Intelligence, p. 11. According to Richard Betts, ‘intelligence failures are not only inevitable, they are natural’. Richard Betts, ‘Analysis, War, and Decision: Why Intelligence Failures Are Inevitable’, World Politics 3/2 (1978), pp. 61–89.

32. See Hans Blix, Disarming Iraq: The Search for Weapons of Mass Destruction (London: Bloomsbury, 2004), p. 128.

33. Müller-Wille, ‘For Our Eyes Only?’, p. 18.

34. Article 5 (1a), Council Decision 2003/479/EC of 16 June 2003 concerning the rules applicable to national experts and military staff on secondment to the General Secretariat of the Council and repealing the Decisions of 25 June 1997 and 22 March 1999, Decision 2001/41/EC and Decision 2001/496/CFSP.

35. European Parliament, Echelon Report, Recommendation 2.

36. European Parliament, Echelon Report, Recommendation 9.

37. Müller-Wille, ‘For Our Eyes Only?’, pp. 38–39.