Improving the democratic accountability of EU intelligence
2006; Taylor & Francis; Volume: 21; Issue: 1 Linguagem: Inglês
10.1080/02684520600568394
ISSN1743-9019
Autores Tópico(s)European Criminal Justice and Data Protection
ResumoAbstract The 9/11 attack and the 'war on terrorism' have been followed by a discussion on intelligence deficits. However, surprisingly little attention has been given to the issue of agencies' democratic accountability. This article argues the benefits of oversight for democracy and its significance for the improvement of services' performance. It puts EU intelligence agencies, which have hardly been the subject of any debate, at the centre. While acknowledging that the major threats to civil liberties of European citizens are posed by national intelligence agencies, it identifies the establishment of mechanisms for quality control of EU intelligence as the main challenge at the EU level. Notes 1 For an overview of the task and functions of the Union's intelligence agencies see Thierry Coosemans, 'L'Union Européenne et le rensignment – Perspectives de coopération entre les étas membres', Rapport du GRIP No.3 (2004); and Björn Müller-Wille, 'For Our Eyes Only? Shaping an Intelligence Community within the EU' in European Union Institute for Security Studies', Occasional Papers, No.50 (January 2004). 2 Pat M. Holt, Secret Intelligence and Public Policy: A Dilemma of Democracy (Washington: CQ Press 1995) p.3. 3 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. 4 David Held and Mathias Koenig-Archibugi (guest eds.) 'Special Issue on Global Governance and Public Accountability', Government and Opposition 39/2 (2004) pp.125–391. 5 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.121–39. 6 This is for instance clearly expressed in article 20 of the German Constitution. See Alexander Hirsch, Die Kontrolle der Nachrichtendienste-Vergleichende Bestandsaufnahme, Praxis und Reform (Berlin: Dunker und Humbolt 1996) p.13. 7 O'Donnel makes the distinction between vertical accountability, which describes the relation between the state and the people, and horizontal accountability, which describes the checks and balances relationships between the different powers of the state (executive, legislative and judiciary). Guillermo O'Donnel, 'Horizontal Accountability in New Democracies', in A. Schedler, L. Diamond and M. Plattner (eds.) The Self Restraining State (Boulder: Lynne Rienner Publishers 1999) pp.29–51. 8 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. 9 Alexander Hamilton or James Madison, 'Federalist Paper No.51', in The Federalist, Friday, 8 February 1788, from New York Packet. Available at http://lcweb2.loc.gov/const/fed/fed_51.html 10 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). 11 Loch Johnson 'The CIA and the Question of Accountability', Intelligence and National Security 12/1 (1997) pp.178–200, here p.185. 12 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 publishers 2003) pp.113–27, here 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. Marvin Ott, 'Partisanship and the Decline of Intelligence Oversight', International Journal of Intelligence and Counterintelligence 16/1 (2003) pp.69–94, here p.71. 13 Reginald Victor Jones, 'Enduring Principles: Some Lessons in Intelligence', Studies in Intelligence 38/5 (1995). Available at http://cia.gov/csi/studies/9sunclass/Jones.html. 14 This principle has also been recognized 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) (Leigh (note 12 12 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 publishers 2003) pp.113–27, here 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. Marvin Ott, 'Partisanship and the Decline of Intelligence Oversight', International Journal of Intelligence and Counterintelligence 16/1 (2003) pp.69–94, here p.71. ) 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. 15 Leigh (note 12 12 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 publishers 2003) pp.113–27, here 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. Marvin Ott, 'Partisanship and the Decline of Intelligence Oversight', International Journal of Intelligence and Counterintelligence 16/1 (2003) pp.69–94, here p.71. ) p.118. 16 Ott (note 12 12 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 publishers 2003) pp.113–27, here 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. Marvin Ott, 'Partisanship and the Decline of Intelligence Oversight', International Journal of Intelligence and Counterintelligence 16/1 (2003) pp.69–94, here p.71. ) p.92. 17 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%20 Paper%20Panner.doc. 18 Leigh (note 12 12 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 publishers 2003) pp.113–27, here 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. Marvin Ott, 'Partisanship and the Decline of Intelligence Oversight', International Journal of Intelligence and Counterintelligence 16/1 (2003) pp.69–94, here p.71. ) p.121. 19 Abraham Shulsky and Gary Schmitt, Silent Warfare – Understanding the World of Intelligence, 3rd ed. (Dulles: Brassey's Inc. 2002) pp.135, 138. 20 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.3–22, here pp.10–11. 21 Ott (note 12 12 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 publishers 2003) pp.113–27, here 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. Marvin Ott, 'Partisanship and the Decline of Intelligence Oversight', International Journal of Intelligence and Counterintelligence 16/1 (2003) pp.69–94, here p.71. ) p.70. 22 Behn (note 10 10 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). ) pp.10–12. 23 Philip Heymann, 'Rules and Compliance of Intelligence Agencies', in Project on Justice in Times of Transition, Working Papers (Harvard University 2002). Available at: http://www.ksg.harvard.edu/justiceproject/Working%20Paper%20Heymann2.doc. 24 Alan Beith, 'The Frank Stacey Memorial Lecture: Parliamentary Accountability for intelligence Services', Public Policy and Administration 18/3 (2003) pp.1–11, here p.2. 25 For the distinction between these two strategies of ex post oversight see M.D. McCubbins and T. Schwartz, 'Congressional Oversight Overlooked: Police Patrols versus Fire Alarms', American Journal of Political Science No.28 (1984) pp.165–79. 26 Ott (note 12 12 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 publishers 2003) pp.113–27, here 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. Marvin Ott, 'Partisanship and the Decline of Intelligence Oversight', International Journal of Intelligence and Counterintelligence 16/1 (2003) pp.69–94, here p.71. ) p.78. 27 Heymann, 'Rules and Compliance of Intelligence Agencies' (note 23 23 Philip Heymann, 'Rules and Compliance of Intelligence Agencies', in Project on Justice in Times of Transition, Working Papers (Harvard University 2002). Available at: http://www.ksg.harvard.edu/justiceproject/Working%20Paper%20Heymann2.doc. ). 28 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 (Bulgaria, Sofia: George C. Marshall Association February 2004). 29 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 30 Leigh (note 12 12 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 publishers 2003) pp.113–27, here 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. Marvin Ott, 'Partisanship and the Decline of Intelligence Oversight', International Journal of Intelligence and Counterintelligence 16/1 (2003) pp.69–94, here p.71. ) 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 31 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). 32 Robert O. Keohane, 'Political Accountability', Paper prepared at Conference on Delegation to International Organizations, Park City, Utah, 3–4 May 2002, p.17. Available at: http://faculty.wm.edu/mjtier/keohane.PDF 33 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. Nevertheless, the 'bureaucrats' of the agencies may occasionally travel to their geographical area of expertise and/or talk to people with a view to get a better picture and understanding of the situation. There is however, no system of EU spies or intelligence collectors in place. 34 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 se (article 1 (6), Council framework decision (2002/465/JHA) of 13 June 2002 on joint investigation teams). 35 For a more detailed and complete list of Europol's mandate see article 2 and 3 of the Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention), the annex referred to in article 2 and the respective amendments. 36 Article 2(1), Council Joint Action 2001/555/CFSP of 20 July 2001 on the establishment of a European Union Satellite Centre. 37 Council Decision 2001/80/CFSP of 22 January 2001 on the establishment of the Military Staff of the European Union. 38 The latter starts as soon as a crisis emerges and ends when the EU political authorities approve a military strategic option or a set of military strategic options (footnote 1 and article 2 of the Annex to Council Decision 2001/80/CFSP). 39 Article 207 (2), Consolidated version of the Treaty establishing the European Community. 40 Article 3 and 4, Council Joint Action 2001/555/CFSP. 41 Third countries can conclude Association Agreements with the Satellite Centre and draw on its assets. This most notably concerns non-EU European Allies that were already members of the Satellite Centre under the Western European Union. Thereby they can continue to participate in the activities of the Centre. 42 Article 4, Annex to Council Decision 2001/80/CFSP. 43 Article 1, Council Decision 2001/79/CFSP of 22 January 2001 on setting up the Military Committee of the European Union. 44 Article 3, Annex to Council Decision 2001/79/CFSP. 45 Article 13, Council Joint Action 2001/555/CFSP. 46 Europol Convention, Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office, the annex referred to in article 2 and the respective amendments, article 35. 47 According to several experts involved in the budgetary procedure, the parliament has never proposed amendments of the Council's section of the budget and vice versa. From time to time, individual parties of the EP (e.g. the Group of the European People's Party – PPE) have tabled some amendments on the Council section but rather to ask for other things (as a negotiating tool for EP wishes), and not on anything concerning the ESDP. 48 Article 36(2), Europol Convention. 49 Article 36(3), Europol Convention. 50 Article 14, Council Joint Action 2001/555/CFSP. 51 Jean-Jacques Blais, 'The Political Accountability of Intelligence Agencies – Canada', Intelligence and National Security 4/1 (1989) pp.108–18, here pp.109–10. 52 The standards are set out in the 1989 Council of Europe Convention and Recommendation No.R (87) 15 concerning the use of personal data in the police sector (article 14 (1), Europol Convention). The protection of personal data has been handled on a 'case by case' basis within the third pillar. Each legal instrument (e.g. Europol, Schengen, Customs Information System or Mutual Legal Assistance Convention) has its own data protection regime. 53 Article 24 (1), Europol Convention. 54 Protocol drawn up, on the basis of Article K.3 of the Treaty on European Union and Article 41 (3) of the Europol Convention, on the privileges and immunities of Europol, the members of its organs, the deputy directors and employees of Europol. Official Journal C 221, 19/07/1997, pp.2–10. This immunity of Europol's staff members does not extend to their activities as participants in the joint investigation teams. Article 8 of the amended Protocol. 55 Article 12 of the amended Protocol, ibid. 56 Article 24 (3), Europol Convention. 57 Thomas C. Bruneau, 'Controlling Intelligence in New Democracies', International Journal of Intelligence and Counterintelligence 14/3 (2001) pp.323–41. 58 Coosemans (note 1 1 For an overview of the task and functions of the Union's intelligence agencies see Thierry Coosemans, 'L'Union Européenne et le rensignment – Perspectives de coopération entre les étas membres', Rapport du GRIP No.3 (2004); and Björn Müller-Wille, 'For Our Eyes Only? Shaping an Intelligence Community within the EU' in European Union Institute for Security Studies', Occasional Papers, No.50 (January 2004). ) p.20. 59 As Michael Herman points out, '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 University Press 1996) p.226. See also Hastedt (note 20 20 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.3–22, here pp.10–11. ) 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. 60 Quoted in Hans Blix, Disarming Iraq: The Search for Weapons of Mass Destruction (London: Bloomsbury 2004) p.128. 61 Müller-Wille (note 1 1 For an overview of the task and functions of the Union's intelligence agencies see Thierry Coosemans, 'L'Union Européenne et le rensignment – Perspectives de coopération entre les étas membres', Rapport du GRIP No.3 (2004); and Björn Müller-Wille, 'For Our Eyes Only? Shaping an Intelligence Community within the EU' in European Union Institute for Security Studies', Occasional Papers, No.50 (January 2004). ) p.18. 62 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. 63 2001/264/EC. 64 2002/C 298/01. 65 Warren Kimball, 'Arguing for Accountability – Openness and the CIA', Studies in Intelligence 45/10 (2001) pp.63–7. 66 Müller-Wille (note 1 1 For an overview of the task and functions of the Union's intelligence agencies see Thierry Coosemans, 'L'Union Européenne et le rensignment – Perspectives de coopération entre les étas membres', Rapport du GRIP No.3 (2004); and Björn Müller-Wille, 'For Our Eyes Only? Shaping an Intelligence Community within the EU' in European Union Institute for Security Studies', Occasional Papers, No.50 (January 2004). ) pp.38–9. 67 Recommendation 2, Echelon Report. 68 Recommendation 9, Echelon Report.
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