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Democratic oversight of intelligence agencies: A primer

Democratic oversight of intelligence agencies: A primer

Revelations about mass intelligence gathering by the US and its allies serve the useful purpose of highlighting the need for, and proper role of, intelligence oversight in democracies. This essay provides a conceptual overview of some of the ideal types of democratic intelligence oversight. Variations may exist in how these ideal types are implemented in practice, but the underlying rationale for intelligence oversight mechanisms remain the same.

The fundamental difference between authoritarian intelligence operations and those conducted by democracies is that the former serve the regime while the latter serve society. Intelligence agencies in democracies answer to the government of the day but are not subjects of it. Instead, they can be considered to be commonweal organisations, much like fire services: while they are responsible to government in the first instance they serve society as a whole. 

Under authoritarian regimes, intelligence agencies overlap internal and external espionage functions and answer only to centralised executive authority. In democracies, intelligence agencies separate internal and external espionage functions and are held accountable by systems of checks and balances between the three branches of government, even if their leadership is directly overseen by, or is a part of, the executive branch.

The reason democratic intelligence oversight is ideally split among the three branches of government is to avoid concentration of power in intelligence collection and to promote transparency and accountability among those who hold the critical responsibilities of safeguarding the nation's secrets, thwarting the espionage of others, and collecting sensitive information vital to the national interest.

Intelligence oversight in a democracy is part of a larger principle known as horizontal and vertical accountability. [fold]

Democracies are characterised by two dimensions of accountability. Vertical accountability refers to the accountability of decision-makers to the public. This can occur via elections, recalls, referenda, judicial review and other mechanisms. Citizens hold decision-makers in state agencies accountable through elected government. Officers of these agencies may be appointed or bureaucratically promoted, but they still serve the public interest under the scrutiny of elected public officers.

Horizontal accountability refers to the accountability of public institutions to each other. This lies at the core of the notion of separation of powers, whereby the actions of one branch can be reviewed and held to account by others. This most often means that the actions of the executive branch are subjected to review by the judiciary and legislature, and in the case of intelligence oversight, by specialised agencies working for them. These branches also have their own vertical accountability mechanisms, be it through legislative elections or judicial recall procedures.

The importance of independent specialised intelligence oversight agencies operated by the judiciary and legislature cannot be overestimated. These agencies require personnel with the technical skills and security clearances to expertly assess intelligence operations. Given that the scope of intelligence gathering has expanded exponentially in the digital age, this means specialised intelligence courts, review boards and legislative committees require professionals with working knowledge of, or career experience in, all types of intelligence collection. Only with such expertise can intelligence oversight agencies realistically assess the operations of, and resist co-optation by, the intelligence agencies they are charged with monitoring.

Intelligence oversight bodies must act independent of the executive branch and have powers of compulsion under oath when seeking information from intelligence officials. They must be non-partisan and apolitical, serving as permanent autonomous agencies of the judiciary and legislative branch, and receive dedicated funding. Appointing oversight bodies within the executive branch who depend on the intelligence community or the chief executive for resources is a fig leaf rather than a legitimate and effective oversight and accountability mechanism. If they are to fulfill their oversight roles, such bodies need institutional independence from the political leadership. Such oversight agencies do not make the rules governing intelligence agencies (something that is a matter for the legislature, subject to judicial confirmation). Rather, they ensure that the rules are adhered to in the course of intelligence operations.

An alternative to such agencies is to appoint an independent review/oversight board with permanent staff and all of the powers mentioned above. The board can be nominated by the executive but is ratified by consensus in the legislature, subject to judicial review and security vetting of nominees.

For democratic intelligence oversight to be effective, it must be prospective as well as retrospective. Prospective oversight refers to before-the-fact review of proposed intelligence collection efforts in pursuit of issuing surveillance warrants (particularly on domestic soil). Retrospective oversight refers to after-the-fact review of operational conduct in pursuit of determining the legality of intelligence operations at home and abroad. Taken together, the two forms of oversight promote before and after accountability on the part of intelligence officials.

With regard to the oversight role of the executive branch, which can often be the first point of contact when it comes to reviewing intelligence operations, the responsibility for issuing intelligence warrants ideally rests outside the office of the prime minister or president. Normally that would be the province of the attorney- or solicitor-general acting on the advice of external oversight agencies when considering requests by intelligence agencies. 

At their core, intelligence oversight systems depend on intelligence officials who act honestly and in adherence to the secrecy oaths and legal obligations incumbent upon them. That can be achieved by rigorous security vetting and regular monitoring of individuals with sensitive security clearances. The costs of doing so are justified by the benefits of keeping state secrets uncompromised.

There also needs to be institutional means through which intelligence officers can address complaints and concerns about operations they believe may be in violation of the legal charter governing intelligence operations (much like military justice systems dealing with illegal orders). With procedures and mechanisms for in-house review of intelligence operations, the job of external oversight becomes easier. 

Should those avenues not exist, then external intelligence oversight agencies must offer legal guarantees to whistleblowers which inspire confidence that complaints and concerns will be seriously considered and individual privacy and security protected. Otherwise the temptation will exist for potential whistleblowers to go outside the institutional framework and leak information to external actors.

Absent strong permanent oversight, the tendency will remain for intelligence agencies to 'push the envelope' of their institutional charter. It is natural (some might say required) of them to do so, as their commitment to service in defence of the national interest compel them to explore all means of advancing that goal absent legal prohibitions against specific operations or collection efforts.

Besides preventing abuses or arbitrary exercises of power, independent and autonomous intelligence oversight is a democratic hedge against that compulsion.

In summation, democratic intelligence oversight is a complex process, involving mutual checks and balances among multiple specialised and dedicated agencies. The system may appear cumbersome but it is the only real guarantee against the 'iron law of tyranny' that creeps into executive decision making on security matters.

The bottom line is captured by a phrase from Ronald Reagan: 'Trust, but verify.' His focus may have been different but the principle he espoused is as true for intelligence oversight in democracies as it is for foreign relations in general.

Photo by Flickr user Nick Hall.

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