Publications of experts Ukrainian Security Sector

Supervision or management?

What should be the parliamentary oversight of special services

In the near future, the Verkhovna Rada of Ukraine (VRU) plans to consider creating and determining the powers of the new parliamentary committee - to provide control functions of the Verkhovna Rada for the activity of state bodies of special purpose with law enforcement functions, law enforcement agencies, special law enforcement agencies and intelligence agencies with certain powers. As stated, the committee's purpose is to ensure compliance with the requirements of the Constitution of Ukraine regarding the safeguarding of national security. Thus, the draft law on parliamentary control over observance of the provisions of the laws in the activities of special services and law enforcement agencies of the state in January. р. was registered in the Verkhovna Rada. +

On the one hand, Ukraine consistently implements the values ​​system of a developed democratic world and explicitly declares its inclusion in its coordinate system. Including in the context of intentions to get full membership in European and Euro-Atlantic structures. On the other hand, Ukraine de facto resists, including the use of force, hostile to Russia, which has taken the course of destroying an independent sovereign state. At the same time, Russia, long before the war against Ukraine, has created its powerful agency networks in our territory and is constantly active in fostering any pro-Moscow mood in all segments of society, from small businesses to influential political circles. Under such conditions, the risks of penetration of the representatives of these networks to the secret information are quite high and create a real threat to the effectiveness and proper life of the national intelligence services.

Moreover, in such conditions a balance is required between the various branches of government - not only to avoid unprofessional work or abuses in the work of the special services, but also to make it impossible for the special services and law enforcement agencies of our state to provide separate political forces.

HOW IT WILL BECOME IN DEMOCRATIC WORLD DIRECTIONS

In all states of sustainable democracy there is a system of supervision of the work of special services.

It is worth starting from the fact that in the countries with a parliamentary form of government, the executive branch has the full right to decide what information with restricted access can be made available to parliamentary committees in order to prevent the latter from directly interfering in the activities of special services.

At the same time, in the most developed democracies there is no unambiguous unified approach to the practice of parliamentary oversight, and much is determined directly by the parliamentary, or presidential, or mixed system of government.

* For example, in the United States, there is a continuous monitoring of the effectiveness of the authorities, including the work of the special services of the state, on the part of the US Congress and its specialized committees. In particular, the committees of the US Congress have the right to hear at the meetings of the heads of special services. In the Senate, the upper house of parliament, there is the United States Senate Selection Committee on Intelligence, and in the House of Representatives, the lower house of parliament, the Permanent Committee on Intelligence (The Permanent Committee on Intelligence). It is the Senate Intelligence Committee that conducts annual surveys of the intelligence budget and ensures the process of approval of legal acts, including for the intelligence community's structures. And it is this committee that periodically conducts investigations, audits and inspections of intelligence activities and related programs. Incidentally, this committee, starting with 2017, is carrying out its own investigation into the influence of the Russian Federation on the election of the President of the United States. The Committee on Intelligence of the House of Representatives conducts case studies and publications and is a source of materials for public policy discussions to enhance the effectiveness of special services. Since part of the House of Representatives is elected every two years, and senators have six years of authority, each election also updates the composition of profile committees of the US Congress.

* A rather complicated system of British parliamentary activity in the field of supervising power structures is associated with the rudiments of a constitutional monarchy in the power system. In particular, the Intelligence and Security Committee's special committee is special, consisting of nine carefully elected and influential deputies, both from the House of Lords and the House of Commons ), which are personally recommended for the position of prime minister of the country and appointed by the parliament with participation in this process of the main advisory body of the head of the constitutional monarchy. At the same time, the main focus of the selection of candidates for positions in this committee is their experience in working in the country's special services, high moral standards and professionalism. It is interesting that in the area of ​​responsibility of the committee - verification of compliance of the special services in the political, financial and managerial spheres to the requirements of their statute provisions.

The appointment of a German Chancellor and the filling of ministerial positions are based on the principle of a party (or coalition) majority in the Bundestag (Parliament). The parliamentary coalition majority, as a rule, also controls the profile committees of the activities of the power structures.

Another important nuance, which is extremely important for consideration. 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 Delegation Parlementaireau 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 the special services, considering, first of all, the non-public nature and delicacy of these structures. 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 are not able to 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 recognized that, given human rights and accountability, it is undesirable to involve the supervisory authorities in advance, given that they may need to consider this activity in the future - with this there may be a conflict of interest.

In general, Western democracies pay particular attention to the principles of the rule of law and the rule of law and respect for the rights and freedoms of a person, a citizen, since, in fact, the maintenance of these rights and largely the activities of law enforcement bodies. At the same time, in most of the Council of Europe there is a tendency 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 of powers can provide a higher level of specialization and use of the experience of committee members. On the other hand, the disadvantages of this approach include the risk that separate issues (for example, the exchange of information between two security services / intelligence services) may be at the junction of the powers of two or more committees, and resources can be more profitable to focus on the development of one committee.

Consequently, the existing experience shows that parliamentary control over law enforcement agencies in Ukraine may consist in reporting and listening to the heads of special services at the Verkhovna Rada Committee on control over special and law enforcement agencies, and verification of spending of budget funds by law enforcement agencies (with the involvement of representatives 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 not only inappropriate, but often harmful and risky, in view of the functioning of the national security system. The admission of committee members to issues of operational activities is generally inadmissible, since it can paralyze a professional, rather sensitive feature of the work of intelligence officers.

"DEMOCRATIC CIVIL CONTROL". CASE IN DEFENSE?

All players of this, without exaggeration, sensitive and delicate fields, argue: the balance of interests is absolutely necessary. Especially, given the introduction of the concept of "democratic civilian control". In the Law "On National Security of Ukraine", incidentally, this notion is written out not very clearly and may lead to false interpretations.

Interestingly, Ukraine, like any other post-Soviet country, bypasses a certain trail of traditions inherent in the empire. For example, already at the level of 2000s, one of the Ukrainian security forces responded to Western government high-level questions about the level of democratic control in the country, and answered resolutely and quite seriously: "I am a Democrat and I exercise democratic control."

It will not be an exaggeration that the remnants of the Soviet style remained in the minds of officials and now, after more than a quarter of a century of independent existence of Ukraine. Therefore, the clear legal interpretation of the concept of "implementation of democratic control" may not be superfluous. Because it can be argued that either a deliberate or a mistake or, even in Soviet inertia, a profound semantic error may occur in defining the meaning of the concept of "control".

After all, the professional translation of the parliamentary English-language term to oversight involves supreme legislative supervision and legal monitoring of compliance with, of course, the framework and restrictions of the relevant national legislation. As to the meaning of the equivalent English verb to control (which is even more commonly used in Ukraine), it essentially means "manage."

We must insist that this is a very important nuance. In the minds of many people in the post-Soviet space, the historical experience of the functioning of the system of control of special services of the Soviet times and the stereotype derived from it has been dominated. After all, the main controlling body in the form of the General Department of the Central Committee of the CPSU carried out the very management, that is, executed acts of executive power in relation to the leadership of the KGB and other security structures of the USSR. But at that time there was only one political party that, at its discretion, realized its own political dictates.

Therefore, taking into account the practice of the West and historical parallels, it should be noted that the adoption of the draft law is "the introduction of a democratic principle of the participation of the Verkhovna Rada of Ukraine in the management of the security and defense sector."

It is quite obvious that the functions of such a committee should be not in the management or, as is often the case, in the management of law enforcement, but in overseeing compliance with the requirements of the Constitution and laws, the prevention of the use of intelligence and intelligence for usurpation of power or violation of rights and freedoms person, as well as the efficiency of the use of resources and budget funds.

NATIONAL PECULIARITIES OF LIFE OF SPECIAL SERVICES

They certainly are. The key, as mentioned above, is the use by the Kremlin of the top military-political leadership of 2010 in 2013 for the introduction (or active promotion) of "their" people into the security and defense sector of the state. One more - a significant level of dependence of Ukrainian policy on external factors. What do not always play a positive and a development. And even the experience of building an army during the war shows that Ukraine itself is a unique country, and its tracing is often unacceptable.

Only one "historical example". Ukraine, after concluding the Budapest memorandum in 1994, paid extra attention to the advice of its partners and created a very powerful and rigid state export control system (ie arms trade, technology transfer, and the development of the PTS). But after the Budapest memorandum did not work and instead of guarantees Ukraine appeared face to face with a powerful aggressor, it became clear that such state-export control was a deterrent to the development of defense enterprises. So, the experience of Western partners, too, should be taken into account in the light of national realities. And, in particular, to understand that not all parliamentarians are experts in intelligence or counterintelligence, 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 can significantly weaken intelligence and counter-intelligence structures. Or, worse, it will turn the special services into mechanisms of political influence and manipulation, which in general is unacceptable.

One of the sensitive issues is the admission of people's deputies, who temporarily have their mandates and certain powers, and representatives of the Secretariat of the Verkhovna Rada of Ukraine committees to secret information. Of course, the strict restriction of access to information and excessive secrecy may contribute to corruption and human rights violations, while the lack of protection of information with limited access, especially during the war, poses a real threat to national security. At present, the so-called Principles of Zwane are commonly accepted approaches to determining the optimal transparency of the security sector and special services. In accordance with these principles, the classification of information is allowed if its disclosure creates a real and certain risk of causing significant damage to the legitimate interests of the national security and individual members of the security forces. Such information may include, in particular, plans for specific agency operations or other operational details.

When forming a parliamentary committee with functions and powers of supervision over special services, it is necessary to take into account the above-mentioned national features in the context of mechanisms for obtaining information under the stamp "Secretly". The draft law, it seems, provides for a fairly well-balanced mechanism for obtaining admissions, both for parliamentarians and for staff of the secretariat.

However, the draft Law also contains so-called bottlenecks. For example, the composition of the Committee - its formation is tied only to the requirements of the Rules of Procedure of the Verkhovna Rada of Ukraine, and the total number of parliamentarians in the Committee is fuzzy, since only the principle of "unpopularity of the number of members" is defined. At the same time, there are no specific special requirements for the participation of deputies in the Committee. That is, it is quite possible that national security affairs can be practiced, at least, by unprofessionals at the party level. And what if the Committee really is not a pro-Ukrainian elector? Such, unfortunately, we have, and even during the real war of independence !!!

Interestingly enough, for example, in the United States, as in some other NATO countries, similar committees are mostly filled by former military and intelligence officials, professional lawyers, civil servants and senior management with guaranteed loyalty to the state, real patriotism and relevant knowledge. In the UK, the profile committee in general has a special name, and although it is formed and acts under the auspices of the parliament, but under the strict supervision of the prime minister.

Equally important are the requirements for the formation of the secretariat of the Committee. It is the staff of the secretariat that will carry out almost all preparatory work, and often also draft decisions. It is envisaged that the personnel will have access to classified information intended for deputies within the Committee. In this case, the personnel regulation is based only on the formation of the state "in accordance with the law on civil service". There are no special requirements for this category, which is rather risky. Even the experience of service in specialist structures is not mandatory, it is simply established that "Secretariat staff who directly provide parliamentary control over the activities of special services" - "may have" relevant experience (but, logically, may "not have ») In addition, one more requirement is not clear: Applicants who are fortunate enough to have experience must "have a term of dismissal of these structures for at least two years". I wonder why exactly two years? In such a sensitive area, it seems that important features regarding the formation of the secretariat should be written out in detail, and with a clearer justification.

In general, the whole business needs an exceptional balance of interests, which will formulate a formula for political neutrality, depoliticization and de-ideologization of law enforcement agencies. Under conditions of protection of civil rights and social interests of intelligence personnel, without which it is virtually impossible to hope for the effectiveness and efficiency of the activities of the special services.

And one more. Underlining the parliamentary control, it is impossible not to dwell on the issue of coordinating the activities of intelligence agencies - by creating a special body, in particular the Committee on Intelligence 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 an authority would be an important effective mechanism for cooperation with the parliamentary committee in terms of exercising parliamentary control. As practice shows, the delay in establishing such a body, the transfer of its functions to the National Security and Defense Council causes irreparable damage to the national security and defense system of Ukraine.

Valentin BADRAK, Director of the Center for Army, Conversion and Disarmament Studies (CEDAWR);

Petro GARASCHCHUK, military representative of the Mission of Ukraine to NATO 2008 - 2011, served in military intelligence agencies at 1978 - 2011, Major-General of the Reserve

Source: Newspaper "Day""