International Intelligence Cooperation and Accountability

Hans Born, Ian Leigh, Aidan Wills, Hans Born, Ian Leigh, Aidan Wills

• Verlag: Routledge
• Jahr: 2011
• ISBN:
  9781136831393
• Auflage: 1
• Thema: History
• Thema: Military & Maritime History

This book examines how international intelligence cooperation has come to prominence post-9/11 and introduces the main accountability, legal and human rights challenges that it poses.

Since the end of the Cold War, the threats that intelligence services are tasked with confronting have become increasingly transnational in nature – organised crime, the proliferation of weapons of mass destruction and terrorism. The growth of these threats has impelled intelligence services to cooperate with contemporaries in other states to meet these challenges. While cooperation between certain Western states in some areas of intelligence operations (such as signals intelligence) is longstanding, since 9/11 there has been an exponential increase in both their scope and scale.

This edited volume explores not only the challenges to accountability presented by international intelligence cooperation but also possible solutions for strengthening accountability for activities that are likely to remain fundamental to the work of intelligence services. The book will be of much interest to students of intelligence studies, security studies, international law, global governance and IR in general.

Part I
Introduction

1
Accountability and intelligence cooperation

Framing the issue

Ian Leigh

Introduction

The purpose of this introductory chapter is to give an overview of why intelligence cooperation has come to prominence post-9/11 and to introduce the main accountability, legal and human rights challenges that it poses. International cooperation between national security and intelligence services presents the most significant oversight challenge in the field of national security today. It hardly needs stating that intelligence and security agencies primarily exist to protect and further the national security interests of states. Since the end of the Cold War, however, the threats which national services tackle have become increasingly transnational in nature.

The acceleration of globalisation has contributed to the expansion in scope and span of networks engaged in – amongst other things – organised crime, the proliferation of weapons of mass destruction and terrorism. The growth of these transnational threats has impelled intelligence services to cooperate with counterparts in other states in order to meet these challenges. Cooperation between selected Western states and in certain areas of intelligence operations (such as signals intelligence) is longstanding. Since 9/11, however, there has been an exponential increase in the both the scope and scale of intelligence cooperation, including that between formerly non-aligned and hostile states.

In particular, the fight against international terrorism has provided the rationale for a dramatic increase in multilateral and bilateral intelligence cooperation. The scale of this collaboration has increased in terms of the volume of information shared and the number of joint operations. At the same time, the scope of intelligence cooperation has broadened to include a greater range of states (particularly non-traditional allies in the Middle East and Asia) and a wider variety of intelligence activities.

These widening and intensified cooperation activities represent a growing challenge to accountability. As has been widely documented, certain manifestations of intelligence cooperation have led to high-profile controversies, such as the revelations about the extraordinary rendition, interrogation and secret detention of suspected terrorists. However, in a sense, these are the tip of the iceberg. International cooperation has in general evaded the scrutiny of national oversight and review structures, which were designed for a different era, and in response to a very different set of abuses. Indeed, it has become increasingly evident that these bodies are ill equipped to hold intelligence services and their political masters to account for their cooperation activities.

While both the threats to national security and the responses to these threats have become increasingly “globalised”, accountability mechanisms have remained territorially bounded. The growing cooperation between national intelligence and security agencies has not been matched by international collaboration between national oversight and review bodies. Ultimately, the combination of the weaknesses of these bodies on the one hand, and the levels of secrecy, sensitivity and multi-territoriality inherent in international cooperation activities on the other, has led to an increasing accountability deficit.

How little we know

Until recently, intelligence cooperation fell into the category of what a former US Secretary of Defense termed ‘unknown unknowns’ so far as the public and intrelligence overseers were concerned.¹ Such was the near total secrecy in which it was shrouded that the issues of accountability that this book addresses had not even been identified as problematic or worthy of enquiry.

Although intelligence studies has established itself in the last three decades as a burgeoning field that transcends the disciplines of history, international relations, political science and law, it has yet to systematically tackle the question.² The growing literature on intelligence oversight and accountability³ does not deal in any detail with the international liaison and cooperation aspects of the problem. The existing small body of writing devoted to intelligence cooperation, mostly comprises historical studies, as well as a handful of journal articles addressing broader issues of cooperation within the context of counter-terrorism.⁴ In the legal literature there has been no systematic study of the legal issues relating to intelligence cooperation; indeed, the only aspect of intelligence cooperation which has attracted significant scholarly attention is that of extraordinary rendition.

Authors who have discussed the topic have dealt with international intelligence cooperation and intelligence accountability as distinct subjects: very few links have been drawn between the two. In effect, then, this book is the first systematic examination of the challenge that intelligence cooperation in its varied forms poses for the democratic and legal accountability of security and intelligence agencies. The aim is to bridge the divide not only by clearly explaining the problem of the accountability gap for international intelligence cooperation, and evaluating the efforts that have been made to date to address it, but also to explore possible solutions for improving this dimension of oversight.

The paucity of information is due to the delicate overlapping concerns of intelligence and diplomacy in this field. Perhaps the most jealously protected national security privilege of all is the principle variously referred to as ‘the third party rule’ or ‘originator control’, which shields information supplied to an agency by intelligence partners in other countries from attribution. Historically this practice has been protected in a nearly impenetrable wall of statutory exemptions that prevent disclosure of even procedural aspects of cooperation not just to the public but also to democratic oversight bodies. Increasingly courts too are being faced with claims based upon the threat of loss or withdrawal of intelligence cooperation unless they accede to demands for total secrecy.

Faced with this wall of darkness our project might appear doomed to failure. One by-product of the so-called Global War on Terror, however, is that chinks of light have recently begun to appear. These present an opportunity to study the subject. Over the last decade a range of initiatives has been introduced to facilitate the sharing of information about terrorism between states on an unprecedented global scale. Nor has this stopped at merely sharing information; indeed, the pursuit of a range of measures against individuals whether from outside a legal framework (as in the case of rendition) or from within one (as with executive detention or blacklisting), has left a trail of damaged and aggrieved complainants and litigants across the world. Their stories have been pieced together by investigative journalists, non-governmental organisations (NGOs), lawyers and parliamentary and international investigative bodies to throw more light than has been possible until now on intelligence cooperation. As a consequence, much of what we know about cooperation (where it is not historical) is very recent, and the result of extensive investigation by both national and international bodies into a string of high-profile controversies (especially concerning extraordinary rendition and secret prisons).

Parliamentary inquiries by national bodies have taken place in a number of countries including the United Kingdom, Germany, Sweden,⁵ Ireland,⁶ Romania, Macedonia and the United States.⁷ In the UK, two reports from the Intelligence and Security Committee have examined limited aspects of cooperation between UK agencies and international partners. The first was a special report in 2005 into interviewing detainees in Afghanistan, Guantanamo Bay and Iraq.⁸ The second was an investigation in 2006–7 into the extent of involvement in and knowledge of the UK agencies in US renditions.⁹ In Germany, the Bundestag established a Committee of Inquiry in 2006 following a report by the government to the parliamentary Control Panel about cooperation between its agencies and the US in Afghanistan and Iraq and knowledge of CIA rendition flights, including examination of rendition in the cases of Khaled El-Masri and Murat Kurnaz.¹⁰

In some instances investigation of allegations involving human rights abuses has gone further still. In Canada, two independent judicial inquiries have been held into allegations of complicity in rendition and torture, conducted by Justice O’ Connor into the case of Maher Arar¹¹ and by former Federal Court of Canada Chief Justice Iacobucci into those of Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin.¹² In Italy prosecutors investigated the abduction of Abu Omar from Milan in February 2003 and brought criminal proceedings leading to the conviction of 22 United States’ and two Italian security officials.¹³

Investigations by international organisations have included those under the auspices of the Council of Europe,¹⁴ the European Parliament into the existence of the ECHELON system,¹⁵ on secret detention centres and the transportation of detainees¹⁶ and the UN Human Rights Council’s system of special mandate holders.¹⁷ The investigative methods of these bodies include a mix of questions addressed to states, testimony from officials, victims and whistle-blowers, and country visits. International NGOs, such as Human Rights Watch, Amnesty International and the International Commission of Jurists, and investigative journalists have also played a role in scrutinising these activities. Other aspects of cooperation such as data sharing and blacklisting have received less pubic attention but nonetheless pose significant concerns for accountability and human rights.

What frame of reference for accountability?

An initial question is to decide upon a frame of reference from which to examine accountability for intelligence cooperation. (As used here accountability both includes procedures for approval of the gathering, storage, analysis, sharing and dissemination of intelligence, and includes ex post facto review of the propriety, legality and effectiveness of the agencies’ actions in so doing. It embraces the role of different branches of the state: the executive, Parliament, ombudsmen and judges.)

It is tempting to agree that intelligence cooperation arises from the realpolitik of international relations and should therefore be seen solely through the lens of politics and diplomacy. It would follow that in so far as cooperation is subject to control, it would take place at the executive level. In terms of accountability this would suggest that members of elected governments (politicians) have the last word in approving cooperation. This would certainly have democratic merit and if adopted as a universal principle should counteract the risk that cooperation is used in way that contradicts stated domestic or foreign policy objectives or that it represents a shadowy permanent arrangement enmeshing the official and diplomatic cadres but beyond political control.¹⁸ Elected politicians may find clear lines of control less appealing, however, if the outcome is to minimise one potential attraction of joint working: the plausible deniability of responsibility.

Assuming that the principle of political (i.e. executive) control of cooperation were to be accepted there would still remain questions over how far it should extend: for example choice of...

Inhaltsverzeichnis

• Studies in Intelligence Series
• Contents
• Contributors
• Foreword
• Part I Introduction
• Part II Challenges
• Part III Oversight and review
• Part IV The role of law
• Part V Conclusion
• Select bibliography
• Index