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Parliamentary scrutiny of intelligence. How to find a balance?

What should be the powers of the Verkhovna Rada Committee for the control of state-owned special purpose agencies

In the whole democratic world there is a system of supervision of the work of special services. Ukraine, which has chosen the values ​​of a democratic world, needs to be involved in its coordinate system. In fact, the process is already in progress. As expected, in the near future the parliament will consider the issue of establishing and determining the powers of the Verkhovna Rada Committee to ensure control over the activities of state-run special purpose organs with law enforcement functions, law enforcement agencies, special law enforcement agencies and intelligence agencies in order to ensure compliance with the requirements of the Constitution for ensuring national security. The draft law has already been approved by all law enforcement officials.

In particular, according to the Law "On National Security of Ukraine", the modern system of democratic civil control in Ukraine envisages not only the administrative level of supervision (by the President, the National Security and Defense Council, executive bodies and local self-government), but also powerful parliamentary control. In this way, a balance is struck between the various branches of government, which is aimed not only at avoiding unprofessional work or abusing the work of special services, but also disabling the services of special forces of separate political forces.

For example, it is worth mentioning a few episodes in the work of the national intelligence services - they will help to understand our weaknesses. The most audacious thing and the most disgraceful failure of the SBU, no doubt, were the facts of listening and recording of the cabinet of the President of Ukraine, which became history in the 2000 year as a "Melnichenko film". This is the result of the special service engaged in servicing the interests of an individual (even the president) and reached a critical level of unprofessionality.

Similar episodes can be found in the work of intelligence. The most urgent thing is the absolute inability to respond to such a challenge as the seizure of Ukrainian sailors by pirates on the "Faina" ship in 2008 year. Interestingly, then the appropriate "power" management of special operations appeared in the structure of the Foreign Intelligence Service. And it is equally interesting that there is no supervision over its preparation and definition of the level of readiness to perform specific tasks. Although sources say: despite the good start, the development of such an important lever of the state has not moved away from deadlock. It is worth the analysis and demarche of the employee of the newly-born SZR in 2004 year, when the intelligence representative, the general, publicly accused the Director of SZR (then Oleg Sinyavsky) in organizing the monitoring of Ukrainian politicians. That is, the use of intelligence is not intended.

No less symptomatic episodes, when everything happened the opposite, that is, politicians have penetrated deep secretly into secret secret services. As you know, the work of Ukraine on the world market of armaments has always been accompanied by special services, in particular, representatives of intelligence agencies. So, when the Temporary Investigation Commission under the leadership of a parliamentarian and at the same time General Ignatenko was established in 1998 year, the publication before the elections (that is, for political purposes) of the report of the designated commission caused such a powerful blow to the international image of the state as a special exporter that Ukraine immediately lost a number of contracts.

Consequently, all these episodes indicate that a balance of interests is urgently needed. Especially, given the introduction of the concept of "democratic civilian control". The Law "On National Security of Ukraine" does not emphasize this feature, which may form a false understanding in the preparation of subsequent decisions, in particular regarding the creation of a committee of the Verkhovna Rada on the control of special services and law-enforcement bodies of the state.

It is clear that the functions of such a committee should not be in the management or intervention of the law enforcement authorities, but in monitoring compliance with the requirements of the Constitution and laws, the prevention of the use of intelligence and intelligence for usurpation of power or the violation of human rights and freedoms, as well as the efficiency of the use of resources and budget funds.

Western experience. What to take Ukraine?

It is very well understood in the West. At the same time, special attention is paid to the principles of the rule of law and law and respect for the rights and freedoms of a person, a citizen, since, in fact, the activities of law enforcement bodies are in the provision of these rights. For example, the thematic report published by the Commissioner for Human Rights in 2016 (prepared by Aidan Willis) clearly indicates the inviolability of individual rights and freedoms.

It should be noted that in most of the member states of the Council of Europe, a parliamentary committee (subcommittee) on the control of security services (as in Italy, Germany, Poland) has been established, or these functions have been assigned to a committee with wider powers such as internal affairs, national security or defense (as in Georgia and Montenegro).

In the Council of Europe, the trend is to entrust parliamentary oversight of security services to one committee that only controls security services. Several monitoring committees have been established in some countries, each of which is responsible for a particular security service. For example, the Romanian Parliament has separate internal security and external intelligence services committees, as well as a defense committee whose duties include certain aspects of the work of both services. The same is true in Slovakia, where there are separate Slovak control information service and National Security Bureau committees. Such a division can provide a higher level of specialization and focus on the experience of committee members. On the other hand, the disadvantages of this approach include the risk that some issues (for example, the exchange of information between the two security services / intelligence services) may be at the junction of the powers of two or more committees (Venice Commission 2007: § 154), and resources can be more profitable to concentrate on the development of one committee.

Another nuance, which is very important to take into account Ukraine. In particular, in many member states of the Council of Europe, the powers of parliamentary control committees are unclear, so that the committee can only monitor (monitor, check) only certain security services. For example, in France, the parliamentary intelligence delegation (Délégation Parlementaire au Renseignement) has a task to control the "general activities and methods" of various intelligence services and security services. In Germany, the parliamentary control body (Parlamentarische Kontrollgremium) has a task to control the "activities" of security services and intelligence services. However, it should be emphasized that these committees do not interfere with the specific work of intelligence services, in particular intelligence. Preferably, the exclusive powers of the committees relate to checks of the observance of the rights and freedoms of citizens. Thus, the Parliamentary Control Committee for intelligence operations of the Lithuanian Sejm has special powers to verify compliance with the security services of constitutional rights and freedoms. European experts indicate that although the "depth" of control of different parliamentary committees is different, the nature of these bodies is such that most of them can not carry out regular, detailed control over operational activities, including collecting, exchanging and using personal data. And this is a principle norm, which, however, does not apply to special cases.

It is worth bearing in mind that the parliamentary committees of European countries exercise control almost exclusively by post factum, considering what has already happened. Practically the only American practice is to inform selected elected members of the congressional committees on intelligence about specific operations or programs. It should be acknowledged that from the point of view of human rights and accountability it is undesirable to involve the supervisory authorities in advance, considering that they may have to consider this activity in the future - with this there may be a conflict of interest.

The best practice shows that parliamentary control over law enforcement bodies is to report and hear the heads of special services on the Verkhovna Rada Committee on control over special and law enforcement bodies, and to verify the spending of budget funds by law enforcement agencies (with the involvement of the budget committee). The task of the committee is to check expenditures, expenses, features of performance of functional tasks, to carry out consultations on military-political issues, etc. At the same time, interference with the process of performing functional tasks is inappropriate, and often harmful from the point of view of national security. The admission of committee members to operational activities is inappropriate.

Another aspect. The experience of building the army during the war shows that Ukraine itself is a unique country, and the trap is often unacceptable to us. Incidentally, this also points to history. For example, after concluding the Budapest Memorandum in 1994, Ukraine has listened to the advice of its partners and created a very powerful and rigid state export control system (ie arms trade, technology transfer, which, as already mentioned, is the prerogative of the secret services in terms of support, and sometimes also of the leadership ) But after the Budapest memorandum did not work, and instead of guarantees, Ukraine appeared face to face with a powerful enemy, it became clear that such state-export control was a deterrent to the development of defense enterprises. So, the experience of Western partners is also worth taking "wisely", taking into account national realities. And in the end, understand that parliamentarians are not intelligence or counterintelligence specialists, and providing them with critical information can seriously damage the interests of specific people - intelligence agents and agents, in particular, in terms of covering and ensuring their livelihoods. For its part, such a state of affairs may weaken intelligence and counter-intelligence structures. Or worse, will turn the special services into mechanisms of political influences and manipulations. So, one of the sensitive issues is the admission of people's deputies to secret information. Strict restrictions on access to information and excessive secrecy promote corruption and lead to human rights violations, while insufficient protection of information, especially during the war, poses a threat to national security. Currently, the "Principles of Zwane" are commonly accepted approaches to determining the optimal transparency of the security sector and intelligence services. According to them, the classification of information is allowed, if its disclosure creates a real and certain risk of causing significant damage to the legitimate interests of national security. Such information may include, in particular, plans for specific agency operations or other operational details.

How to neutralize the fifth column


Speaking about such sensitive things as the formation of a parliamentary committee with specific functions and powers, we must also take into account the presence of a pro-Russian political lobby in Ukraine, which takes care of the "design" of a convenient mechanism for influencing the activities of all security structures and receiving information under the stamp "secretly" . So, it is quite probable that the pro-Russian forces will try to create the legal basis for the new committee. In particular, the full danger of receiving critical information by the Kremlin is through the introduction of such a committee, say, secretaries, assistants and other staff, not to mention the members of this parliamentary body. These risks do not look like an illusion in view of the expected mobilization of fifth column in Ukraine in the year of parliamentary elections.

So, balance and balance again! Because without political neutrality, depoliticization and deideologization of law enforcement agencies, the protection of civil rights and the social interests of intelligence officers, it is almost impossible to say about the effectiveness and efficiency of the work of special services.

And one more. Speaking about control and parliamentary oversight, it is impossible to ignore the issue of coordinating the activities of intelligence agencies by creating a special body, in particular, a committee on intelligence activities under the President of Ukraine, which would directly carry out such functions. Incidentally, this is also the practice of Western powers, in particular, the United States. And such a body would be an important mechanism for cooperation with the parliamentary committee, precisely in terms of exercising parliamentary oversight.

Valentin Badrak, Director of the Center for Army, Conversion and Disarmament Studies (CEDAW) for Glavcoma

For reference: Draft Law on Parliamentary Control over Compliance with Laws in the Activities of Special Services and Law Enforcement Bodies of the State - there.