Intelligence Surveillance, Security Sector Reforms, Accountability Principles and National Security Challenges within European Union

Musa Khan Jalalzai

• Publisher: VIJ Books (India) Pty Ltd
• Year: 2020
• ISBN:
  9788194285168
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: National Security
• Index: Politics & International Relations

In a rapidly changing environment, Intelligence Surveillance developed through different types of technologies, software, strategies and drones operations in Europe and the United Kingdom. There are various forms of surveillance mechanisms, including Human Agents, Computer Programs, and Global Positioning Satellite Devices.These surveillance devices are now even encroaching into the personal domain of the individuals without the knowledge of the individual being watched. In a surveillance state, people live in consternation, fear, and struggling to protect their privacy, family life, business secrets, and data. In a short period of time, it has amassed a rather sordid history of citizen surveillance– and it continues to be unlawful.These are some of the issues discussed in the book which have varied articles from the experts on the subject.

Chapter 1

Tight-Corner of Intelligence and
Surveillance Mechanism
within the European Union

In yesteryears, we have accustomed to dozen of terror-related fatalities in several EU member states that brought to light the Achilles-heel of poor and reluctant intelligence sharing on law enforcement level. Notwithstanding the plethora of books, journals and research papers on national security and intelligence cooperation in Europe, there has been an iota research work on interconnectedness and togetherness since 2001.¹ The arrival of jihadist and radicalized elements-belonging to various terrorist and extremist infrastructures of Asia, African and Middle East, and foundation of their terror financing networks across Europe, exacerbated in the pins and needles of security and intelligence experts that these networks can further cause destructiveness and mortality.² However, we were witnessed to the fatalities inflicted by terror attacks carried out by these extremist forces in several EU member states in 2015. These and other national security challenges forced European leadership to concentrate on the professionalization of intelligence cooperation and interconnectedness.³

Some states introduced security sector reforms, while some were fighting the old communist security infrastructure in their own states; consequently, attempts to bring intelligence and law enforcement agencies under democratic control faced unbreakable challenges. The EU intelligence cooperation and interconnectedness undergone several phases of changing mechanism, including the incorporation of Eastern European communist intelligence and security infrastructure, and the US war on terrorism, where all European intelligence agencies physically exercised their power and expertise in Iraq, Syrian Libya and Afghanistan⁴. Expert of Security and intelligence, Dr. John M. Nomikos in his recent paper floodlighted intelligence cooperation among the EU member states and stressed the need of intelligence sharing: “European intelligence cooperation is the most important weapon in the fight against the new threats in the 28 EU member states...............Even though, effective intelligence cooperation is hard to achieve even at the national level as different services compete for resources and attention from the decisions makers, past terrorist incidents in Europe served as a wake up for the European commission to promote intelligence-sharing and cooperation among EU institutions and Member States”⁵.

Intelligence sharing faced many challenges, including working with undemocratic and communist intelligence infrastructure in Eastern European States; such as Romania, Poland, Moldova, Baltic States, Ukraine and Bosnia, where political, bureaucratic and private stakeholders caused irksomeness and apprehension. They didn’t want completion of the process of intelligence under democratic control-making alliances to procrastinate security sector reforms as well. For example, Romania is still fighting the old undemocratic security system, and its reform process is screeching-halt.⁶ Consequently, lack of reforms and intelligence sharing caused diversification of state-based threats. The threat of bioterrorism, dirty bomb attacks, and use of radioactive gases have put in danger internal security of all member states.⁷ After the Paris, Madrid, London, Munich and Nice terrorist attacks, the EU member states responded to these threats poorly with an amateurish mechanism, and never realized that intelligence and security reform was a must to make intelligence professional and well-qualified.

The Europol and Eurojust came under severe criticism. In Britain, after the London Bridge attacks in June 2017, Prime Minister announced counterterrorism measures and powers, and in June 2018, her government published a revised and amended edition of CONTEST Strategy, and Counterterrorism and Border Security Bill⁸. Despite all these security measures, attempts, and changing national security approach, performance of British intelligence and law enforcement agencies remained poor and contradictory. They failed to tackle more than 25,000 jihadists-dancing in streets and towns of the country where they have established criminal networks⁹. Their lack of coordination, and undependable national security approach raised several important questions. Britain’s National Security Strategy failed to keep pace with emerging threats from post Brexit security challenges. National Security Strategy also failed to professionally respond to the exponentially growing espionage networks of foreign intelligence agencies, extremism and radicalization.¹⁰ In 2017, government published National Security Capability Review (NCSR) as a “quick refresh” of capabilities, but authorities in one of government committee said it “does not do justice” to the volatile security environment.¹¹ Moreover, cooperation with EU intelligence agencies failed to cultivate a strong relationship with policymakers and civil society as well. The country’s Snoopers Charter Surveillance (SCS) received sharp criticism from political leaders, civil society and electronic media on its bulk interception communication and acquisition.¹²

On 03 June 2018, the Guardian newspaper reported a damning criticism against the British spies that their share of intelligence was obtained under torture-in breach of official guidance. These allegations were found in a letter sent to Foreign Secretary, Boris Johnson by Emily Thornberry and shadow Attorney General Shami Chakrabarti: “The commissioner’s most recent report reveals a doubling of cases considered under the Consolidated Guidance, compared with the last three years, and an unprecedented number of acknowledged failures to apply the guidance”.¹³ The revelation that the US agencies share intelligence may possibly obtained under torture is an embarrassment to the government. In May 2018, government sought mean-culpa to Abdul Hakim Belhaj and Fatima Boudchar, who were taken into custody by CIA with the help of British intelligence. Thornberry and Chakrabarti argued: “With the recent installation of a new CIA Director heavily implicated in the US torture and rendition programme, the UK government must demonstrate that it takes its compliance with the international prohibition on torture seriously”.¹⁴

Democratic Audit (03 October 2018) in its all-inclusive report assessed ways, in which the UK intelligence is scrutinized, to ensure that the agencies were operating on right direction: “The Intelligence and Select Committee (ISC) remains an imperfect and very limited body for the regulation of the large, powerful, and secretive intelligence services. Despite recent reforms which have seen the body becomes a committee of parliament, and with influence over its membership extended to parliament, it is still a body over which the government and Prime Minister exercise an enormous amount of influence”.¹⁵

There were so many hindrances due to which EU intelligence agencies could not establish a better relationship with the British intelligence agencies. The Netherlands, Denmark, Moldova, Ukraine and Baltic States also felt threatened, and their complaints about the weak intelligence sharing were matter of great concern. Amidst all these controversies, complaints, and failures, on 21 January 2015, French Prime Minister Manuel Valls presented a package of security and intelligence reforms, to make professionalize his country agencies. Before the Nice terrorist attacks (14 July 2016), his reform package failed to address security challenges.¹⁶ However, Germany was dancing to the same tango, when its intelligence agencies failed to intercept lone wolves and Muslim extremism. In Moldova and Georgia, security crisis caused more torment, while their support to the EU integration was weak.

However, amidst this controversial intelligence engagement, German intelligence started spying on France, and created clouds surveillance on US and Britain, and British intelligence was spying on Germany that prompted misunderstanding and distrust. On 06 November 2013, BBC reported head of German Parliament’s Intelligence Committee called for enquiries into alleged spying committed by British intelligence in Berlin. Consequently, German intelligence were looking at the US and UK agencies with a hostile mood.¹⁷

The Belgian Foreign Minister once warned that more intelligence on home-grown extremism was needed after the EU intelligence agencies came under heavy criticism when they failed to share high quality intelligence before the Paris attacks. French Home Minister complained that no information about possible attacks was purveyed by the EU agencies. The German intelligence reforms of 2016 didn’t change controversial operational mechanism of the Federal Intelligence Service (BND). The consecutive failure of BND to intercept terrorist attacks in Germany raised several important questions.¹⁸ On 16 February 2018, heads of EU Intelligence Chiefs appealed to the EU leaders for continued intelligence sharing after Brexit. In their joint statement, it was insisted on the cooperation among EU member states to professionally respond to the exponentially growing radicalization and extremism.¹⁹

On 14 May 2018, Mr. Andrew Parker, Chief of MI5 demanded consistent relationship with the EU agencies: “In today’s world, we need that shared strength more than ever”, he told German counterpart. In a series of papers, British government issued strongest warnings that internal security of the EU can suffer capability gap.²⁰ On 20 June 2018, the head of GCHQ made an unprecedented intervention in the dispute with Brussels over post-Brexit security by spelling out how British intelligence had saved European lives. Jeremy Fleming, Director of the Surveillance Agency revealed that Britain had supplied information that had helped to break up terrorist plots in four European countries over the past year.²¹

Intelligence cooperation among the EU member states has always been underwhelming due to different stakeholders, bureaucratic attitude and their personal interests. No country wants to share its national secrets on the pretext that terrorist element may possibly retrieve it^.22 Security expert, Bjorn Fagersten (2015) also noted flawed approach of some EU states towards intelligence sharing: “Scholars of international design suggest that when some states contribute more to an institution than others, they will demand more sway over the institution. Other states will grant this control to ensure their participation. Such hierarchical control can reduce the autonomy loss for powerful states and mitigate the risk of free riding and other collective action problems by allowing some states to monitor others. Elements of hierarchy may thus offer net intelligence gain for an organization such as the EU, as long as it empowers actors with high-quality intelligence capabilities. To a large extent, this was the case in the building of INTCEN”.²³

With the Brexit referendum in 2016, and the announcement of Teresa May government to leave the EU project, relations between the EU member states and the UK remained in strain. However, some provoking statements of British leadership caused further distrust. Prime Minister Teresa May issued some harsh statements, and warned that her government would prepare to crash out of the EU if could not negotiate a reasonable exit deal. However, the EU leaders warned that Britain wouldn’t be able to have access to the single market.²⁴

Intelligence and Accountability Principles: Dilemma for Legitimacy in Spain and Brazil. Yauri Miranda and Jaseff Raziel

How is the relationship between intelligence and accountability in the last years? In different countries, this dilemma has been treated in a different fashion according to four principles: a) Responsibility, in the internal controls and institutional designs to configure the community of intelligence. b) Regulation, in the oversight and control of intelligence by Parliamentary bodies. c) Justice, as in the judicial authorization and control of intelligence activities that affect fundamental rights of citizens (Bovens et al., 2014); and d) Trust, in the participation of citizens in governmental policies or in the closer connection between authority and legitimacy.

This text shows the basic patterns of accountability in those points, as well as the dilemmas and forms to improve the legitimacy of intelligence services in Spain and Brazil. Those places are selected as representative samples of Southern European and Latin American regions in their historical legacies of intelligence experiences after regimes and dictatorships in the late 20th Century (Zegart, 2000; Cepik, 2001; Ugarte, 2002; Numeriano, 2007; Estevez, 2014). The selection is logical and theoretical, as they could enable an analytical generalization for other cases although without statistical generalizations in each region.

In the case of the first principle, responsibility, enabling new administrative and institutional designs to manage and construct the activity intelligence can be considered as forms of internal control. That is, they work as self-restraining mechanisms that Governments and the administration use to control the activity of intelligence, giving pre-eminence either to CNI or to ABIN in each country. The institutional designs were product of several decades of negotiations and political evolution and show that the intelligence services are structurally sui generis public agencies, hierarchically linked to the Executive Branch - who periodically elaborate a national intelligence policy - and are subject to a special regime that regulates their organization and functioning. Thus, the institutional designs also can be considered as attempts to demonstrate that “something is being done” in terms of intelligence. They are the first step that encompass and demonstrate the functions, tasks, principles and rules that guide this activity, in order to reconsider the mandates and the authority given to those institutions, via indirect forms such as election of governments and coalitions that in turn will establish the directives and missions to intelligence.

As this kind of control is a basic and insufficient form of accountability, it is important to consider the Regulatory principle enacted by the role of Parliamentary commissions in each country. Parliaments are new actors and have the capacity to demand accounts from intelligence leaders. However, the restraining mechanisms of the authority of the Executive is hampered insofar members of the Parliament lack knowledge to scrutinize the intelligence activity or depend on the very information and discretional power of those agencies to request information and correct the directives of intelligence. Moreover, most of the Parliament commissions worked in a reactive base, demanding answers after scandals or evident wrongdoings. In the case of Brazil, only in 2013 the Commission of Intelligence Activity was enacted and constituted as a permanent legislative body. Notwithstanding, the Parliament role is an ongoing process of trial and error that could be improved in order to enhance accountability. In that case, members of the parliamentary commissions responsible for financial control should have sufficient human and technological resources to understand the finances of the intelligence services in order to conduct valid scrutiny.

Moreover, they should have sufficient powers and will to change and implement recommendations in the intelligence services. In that sense, representatives of the people should ensure that there are links between external audit bodies so that the results of ex post reviews and audits can be used to support future proposals. Finally, they should prepare public versions of their actions and make ...

Table of contents

• Cover
• Title page
• Copyright page
• Contents
• Introduction
• Chapter 1 Tight-Corner of Intelligence and Surveillance Mechanism within the European Union
• Chapter 2 Britain’s Changing Security Perceptions: The Country’s National Security Challenges are Amplifying by the Day
• Chapter 3 Law Enforcement, Security Sector Reforms and the Fight against Radicalization, Drug Trafficking and Terrorism in UK
• Chapter 4 Bulk Surveillance in the Digital Age: Rethinking the Human Rights Law Approach to the Bulk Monitoring of Communication DATA
• Chapter 5 Germany’s Intelligence Reform: More Surveillance, Modest Restraints and Inefficient Controls
• Chapter 6 Theorizing Surveillance in the UK Crime Control Field
• Chapter 7 Artificial Intelligence Governance and Ethics: Global Perspectives
• Notes and References
• Index
• About the Author