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[The need for oversight over functioning of intelligence agencies]

Spooks and states

18 August 2010

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Published earlier in:Seminar No 611, July 2010

by Rudra Chaudhuri And Srinath Raghavan

THE recent furore in the Indian Parliament over the alleged tapping of telephones was something of a missed opportunity. The debate unerringly focused on the periphery of the problem, leaving aside questions of vital importance. Political leaders across the spectrum were visibly agitated over the possible interception of their telephonic conversations. The Indian government assured them that no such tapping had been authorized, and there the matter rests. But from information available in the public domain, it is evident that electronic eaves-dropping did take place. Even if unintended, it raises the disturbing possibility that the intelligence agencies are operating at and probably pushing the bounds of legitimacy and accountability.

This sits uneasily with the central precept of democratic theory and practice: securing and maintaining public consent for activities of the state. Alongside the military, intelligence agencies play a critical role in protecting national security. Very like the military, they also raise the ticklish question of how to guard ourselves against the guardians. The agencies’ control of sensitive information, their institutional identity shrouded in secrecy, their professional expertise in surveillance and covert operations: all are essential to their functioning, but could also erode the practice of democratic governance, and the rights and liberties of the people. Political control of intelligence is an important challenge for ‘mature’ as well emerging democracies.

The bloated body of work on democracy in South Asia has yet to identify, let alone come to terms with, this problem. A tentative beginning can be made by drawing on the central questions thrown up by the voluminous literature on civil-military relations. The two sets of relationships share certain common dilemmas and tensions, though the former is rendered more complicated by some innate characteristics of the trade of intelligence. As with the military, the intelligence agencies are expected to be professionally competent and efficient, and yet responsive to civilian authority and judgement. At the same time, they should have the requisite standing to resist illegitimate orders.

We need to ensure both that they will not function in an unauthorized fashion and that they will not turn into an instrument of abuse, even on the orders of their political superiors. The latter contingency might seem remote in functional democracies, but is widely prevalent in authoritarian states. But even in stable democratic states there are echoes of such problems. The US Federal Bureau of Investigation was active in surveillance and harassment of domestic opponents of the Vietnam War. At the height of the war with China in October-November 1962, there were allegations that the Intelligence Bureau was tapping the phones of senior Indian politicians who were critical of the government’s performance.1

Striking an optimum balance between efficiency and control, expertise and legitimacy in the functioning of intelligence is all the more difficult owing to an undeniable requirement: that of secrecy. The issue of secrecy is a particularly thorny one in democracies, for this form of government is at once premised on openness, well-functioning circuits of information and robust debate. And yet, there is an obvious need to keep the activities, methods and sources of intelligence away from the public glare and restricted to the smallest possible circle of officials within the government.

Intelligence agencies should, in principle, function like other arms of the government through a clear chain of hierarchy reaching all the way to the top elected leadership of the government. In an ideal system, each superior should have the requisite knowledge to exercise effective control and supervision over his subordinates. But intelligence agencies usually function on a strict ‘need-to-know’ basis. Thus whilst a superior official may, in terms of the organizational chart, have access to the necessary information, in practice he may not know enough for the purpose of effective control.

Furthermore, many supplementary methods of exercising top-down control – statutory audits and inspections, investigations by law enforcement agencies, close legislative scrutiny, coverage by the press – are difficult to apply to intelligence agencies. If these methods are to be effectively employed, it will necessitate greater diffusion of knowledge about the agencies’ activities. So far, instruments such as the Right to Information Act in India have not proved particularly useful. Indeed, the provisions of the act can effortlessly be evoked by the agencies to prevent the disclosure of any information about them that might be of interest to anybody.

In examining the potential problems in political and democratic control of intelligence, it would be useful to consider separately the various functions of intelligence. The term intelligence refers both to information and activities. In the first usage, it pertains to information ‘relevant to a government’s formulation and implementation of policy to further its national security interests and to deal with threats from actual or potential adversaries.’2 The activities or functions referred to fall under four broad categories: collection, analysis, counter-intelligence and covert action.

Collection pertains to the gathering of ‘raw’ data by human and technical means. It encompasses traditional espionage, wire-tapping, photography, penetrating electronic firewalls and so on. The problems relating to intelligence collection are posed most sharply by counter-intelligence: the efforts taken to protect society from the malign influence of hostile intelligence agencies. Traditionally, an important component of these efforts was to keep a watch on individuals who might be conducting espionage for external actors. In recent decades, counter-intelligence has widened to include counter-terrorism.

Most democratic states tend to make a distinction between the procedures adopted for collection at home and abroad: the former are usually more circumscribed by norms and regulations. Be that as it may, the advent of contemporary terrorism is increasingly making this distinction hazy. This trend is thrown into sharp relief by problems posed by recent advances in communications technology.

Consider the facts unearthed by the Italian police in relation to the Mumbai attacks of 2008. The attackers used a US-based Voice Over Internet Protocol (VOIP) for real time communication with their Pakistan-based handlers. The VOIP number was owned by a Belgian firm, which in turn had leased it to an American telecommunications company. The VOIP account was activated by money transfers via an Italian franchise of Western Union under a false name and identification. These moves were carried out by two Pakistanis based in the northern Italian city of Brescia.

In the face of such ramified threats, it is not surprising that the Indian government has procured advanced surveillance and data mining capabilities. The nub of the matter lies in the manner in which these are employed. The current practice, laid down by a Supreme Court judgement of December 1996, is that domestic electronic interception can only be initiated on the written order of the home secretary of the central or state government. A review committee headed by the cabinet secretary or a state government’s chief secretary are expected to provide oversight.

The key problem with this arrangement is the absence of judicial scrutiny, which has been recognized in many democracies as crucial to preventing the violation of an individual’s privacy. Spurred by the post-Watergate revelations of abuses of governmental authority for electronic surveillance of political opponents, the US enacted the Foreign Intelligence Surveillance Act (FISA) in 1978. The act created a special FISA court that reviews applications for surveillance by the Department of Justice. It also established an appellate body – the Foreign Intelligence Surveillance Court of Review. This is clearly a strong arrangement aimed at preventing misuse of powers.3

But the procedure of prior judicial approval is not entirely unproblematic. For one thing, it is more suited to cases where the purpose of surveillance is to gather evidence for prosecution. In such cases, the identity of the person to be placed under surveillance will be known. The requirements of counter-terrorism are likely to be rather different. The purpose of interception is to ascertain whether the individual is linked to a terrorist network, and the objective is prevention, not prosecution. For the purposes of counter-terrorism, it may be more practical and useful to provide for strong judicial oversight post-hoc – in close supervision of the surveillance that is undertaken once the government has authorized it. The absence of any such mechanism of overseeing intelligence collection leaves us with rather an anaemic notion of democratic control.

The requirements of covert action pose a different set of challenges. Described as an activity that lies half-way between diplomacy and war, covert action includes a range of activities – from propaganda to paramilitary action – aimed at directly influencing political events in other countries. A key guiding principle in covert action is the notion of ‘plausible denial’. Intelligence activities that could cause embarrassment should be so planned and executed that the head of the government can credibly deny that she had any knowledge, either prior or posterior, of these activitie

The practice of this principle was nicely illustrated by a congressional investigation of US intelligence activities in 1975-76, popularly known as the Church Committee after the senator who led the exercise. The committee looked into the Central Intelligence Agency’s attempts in the early 1960s to assassinate the Cuban leader, Fidel Castro. Key CIA officials testified that they believed they were fully authorized to carry out these attempts, but that the authorization had not been conveyed by explicit oral or written instructions. The Church Committee had to reluctantly conclude that there was insufficient evidence to prove that Presidents Kennedy and Johnson, and their close advisors, had authorized the assassination of Castro.

Plausible denial aggravates the problems posed by the requirement of secrecy. It not only requires that knowledge of the covert action be restricted to the smallest possible circle of officials, but also that there be no formal procedure for approval, never mind any document where the authorization is recorded. Even if there is a small documentary trail, it would likely be destroyed after the action is executed. The Church Committee reported that the ‘system of executive command and control was so inherently ambiguous that it is difficult to be certain at what level assassination activity was known and authorized.’4 All of this fosters great uncertainty about whether an action had been authorized in the first place. Indeed, in positing a requirement that the intelligence agencies could be said to have acted independently, the doctrine of plausible denial provides sufficient latitude for the agencies to act independently. Intelligence agencies, in short, are inherently well-positioned to evade any systematic control in an important range of activities.

The problems pertaining to intelligence analysis are more subtle. In theory, there is a Chinese wall separating the domain of intelligence from that of policy. Intelligence agencies collect data, analyze it, and present their findings to policy-makers, who in turn use these to make informed decisions. In practice, though, the separation is far more porous. Policy-makers tend to look for intelligence that supports positions favoured by them. Their ability to pressurize the agencies, overtly and subtly, to fall in line with their views is evident. But cooking of intelligence could also be the result of a ‘shoot the messenger’ syndrome. As Cleopatra tells the messenger after learning of Antony’s marriage to Octavia: ‘Though it be honest, it is never good to bring bad news.’

Dealing with this problem is tricky. An antidote is to promote the independence of agencies, so that intelligence officials can speak truth to power. But the agencies themselves would wish to avoid adopting a rigidly adversarial position. For one, they realize better than most that intelligence is not the same thing as wisdom: there is often considerable room for disagreement about trends and prognoses. It is also difficult to discount the fact that senior political leaders’ personal interaction and experience give them an insight that desk-bound analysts may lack.

For another, a persistent contrapuntal stance could result in the intelligence agencies being sidelined by policy-makers. Intelligence agencies seldom prefer oblivion over influence, and hence are inclined to tailor their assessments in view of the developing lines of policy. For a third, whilst the doctoring of intelligence to suit policy has received much attention in recent years – not least because of the controversies in the US and Britain over the Iraq war – the flip side of the problem has largely been overlooked.

Senior policy-makers seldom have the time or inclination to work their way through a mountain of intelligence inputs. In consequence, they are unacquainted with issues such as worthiness of specific sources, and are content for the intelligence estimates to present the broad conclusions. Therefore, the agencies’ ability without close scrutiny to influence the decision calculus of policy-makers is considerable.

At one level, the weight of this influence is felt most acutely when assessing sharp departures from current policies. Intelligence agencies are almost by definition intellectually and politically cynical and conservative. They take a dim view of their adversaries’ propensity to modify their behaviour, and as such tend to be wary of initiatives that rest on benign assumptions about opponents. At another level, the agencies themselves have views on what policies ought to be adopted – views that colour their assessments and hence the decision-makers’ worldview.

This dynamic was at work in the run up to the India-China war of 1962. The Director of the Indian Intelligence Bureau, B.N. Mullik, had for long believed that the only way to prevent Chinese incursions to the areas claimed by India was to plant small armed outposts in these parts. Mullik had been tenacious in this belief even in the face of some opposition from the military. When the option was seriously being debated in late 1961, the IB presented an assessment that suggested that the Chinese would not react sharply to an Indian build-up along these lines.5 Thus, increasing the institutional independence of the agencies without creating additional mechanisms for closer scrutiny could well undercut political control of intelligence.

The issues discussed above afflict civil-intelligence relations in all democracies. However, in states undergoing democratic transition, intelligence agencies present more potent challenges, for agencies that have functioned in long periods of authoritarian rule are rather well suited to undermine process of democratization. On the one hand, these countries inevitably have fragile institutions that need to be carefully tended during the transition to a stable democracy. On the other, the agencies would have been used to keep a tab on and even intimidate the very individuals and parties that now control, at least formally, the levers of power.

In such a scenario, the relationship between the intelligence agencies and their new civilian masters tends to be deeply problematic. This is not merely a question of effective control or oversight. In some ways, intelligence agencies have greater autonomy in a democratic system than in an authoritarian one. The problem is that the worldview of the agencies and their close links to the military makes them at once desirous and capable of resisting the unfamiliar forms of control that the emerging institutions and leaders will seek to impose.

This is not to suggest that intelligence services will inevitably seek to torpedo the process of democratization. Think of the example of Chile, where the agencies had readily collaborated in the overthrow of Salvador Allende’s democratically elected government, but where the more recent democratic transitions have been relatively smooth. The point, rather, is that the potential of the agencies to undercut the transition needs to be borne in mind, and policies designed accordingly. In some cases – like that of Pakistan – this potential remains a constant feature, more often than not striving to belie the ability of democratic institution-building processes to take root.

Pakistan is an interesting case of a transitional democracy. The present head of state and his prime minister may never have worn military uniforms, but at the same time they do not fully control the state apparatus. Indeed, ‘the army remains the dominant actor in Pakistan’s political life.’6 Civilian-led government remains subject to military oversight, and the Intelligence Community (IC) beholden both to leading political figures as well as the institutional preferences of Pakistan’s martial tsars.

Of Pakistan’s three main intelligence agencies – the Inter Services Intelligence (ISI), Military Intelligence (MI), and the Intelligence Bureau (IB) – the ISI is charged with coordinating intelligence collection and overseeing intelligence-led efforts (including covert operations) both domestically and externally. Indeed, the ascendency of the ISI as the predominant intelligence organization in Pakistan can be attributed to the poor performance of the IB during the First Kashmir War (1947-48) – following which the ISI was created – and the centralization of military rule in 1958, when Ayub Khan became the first of four military generals to assume the reins of political power.

The ISI’s foray into domestic intelligence collection (read ‘involvement in domestic politics’) was spurred by the ethnic Baluch rebellion against the predominantly Punjabi leadership in the late 1950s and mid 1960s. Moreover, ISI officers were pressed to undertake surveillance of Bangla speaking IB officers in the East. In the 1970s, following the dismissal of General Yahya Khan, and the ascent of Z. A. Bhutto, the ISI’s involvement in domestic politics became the norm rather than an exception. In 1975, Bhutto created the Political Cell of the ISI. Rather than steering the intelligence services towards the path of reform, the ISI was used to maintain files on political opponents and interfere in the 1977 elections to Bhutto’s advantage. The so-democratic vision of the Peoples Party’s founder was apparently advanced with the active support of the not very democratic use of the IC. One former ISI officer publicly claimed that orders to conduct surveillance of political candidates during the ’77 election ‘came in writing from the prime minister himself.’7

Over the years, given the relations between Rawalpindi (the Army GHQ) and Islamabad, winning over senior ISI officers was considered essential for civilians to remain in power. After all, unlike the IB, the ISI was staffed primarily by military officers. The expected bureaucratic tensions notwithstanding, the ISI is an extension of the military establishment. Take for instance the case of the appointment of Lt. General Ghulam Khan as the Director General (DG) of the ISI. Bhutto favoured the appointment under the delusion of exercising greater control over the ISI. A few months later, Khan colluded with General Zia ul-Haq to remove Bhutto from power.

The beginning of the Afghan jihad in 1979 transformed the ISI. For almost ten years – till Zia’s death in 1988 – the ISI was tasked to train and support the mujahideen against the Soviets. From the beginning of the covert war, the ISI led the negotiation of terms and monies with the CIA. General Akhtar Abdur Rehman, a Zia loyalist and DG ISI, handled all contact with his American counterparts. With no parliamentary oversight whatsoever, the ISI used American funds to gain strength domestically with little need to consult the civilian bureaucracy.8 Regime interest rather than national security priorities drove the ISI to target PPP loyalists and the Movement for the Restoration of Democracy (MRD) that challenged Zia’s dictatorship.

Ironically, during Benazir Bhutto’s two short terms as prime minister, nothing substantial was done by way of reforming the intelligence services. Bhutto’s survival depended upon her ability to appease the military brass (she was categorically told not to interfere in the defence budget and military/ISI appointments) and the IC. Indeed, her fatal error was to have disturbed the established balance. In 1989, with little heed for bureaucratic norms, Bhutto appointed a family friend as the head of IB and sacked Hamid Gul as DG ISI.9 Unsurprisingly, a few months later, she was deposed from power. Bhutto claimed that the ISI was responsible for ousting her.

In the recent past, attempts at reform and calls for greater accountability were voiced during the 2007 judicial crisis. Senior judges investigating missing person’s reports filed by the country’s Human Rights Commission hinted at the possibility of judicial control over the activities of the IC. Not surprisingly, the attempts at reform and the culminating judicial crises led to the declaration of emergency by General Pervez Musharraf. Following his removal as president, and isolation by an embarrassed military, the People’s Party publically declared its intention to bring the IC under the purview of the civilian-led Interior Ministry. The result was disappointing at best.

Following the PPP’s victory in the 2008 general election, President Asif Ali Zardari made public statements about bringing the ISI under civilian control. These were summarily dismissed by the army. The new president was snubbed, and though the ISI continues to remain under the mandate of the prime minister’s office, it is really under the firm grip of the military leadership that makes up 70-80% of ISI personnel, insulated from civilian oversight.

In fragile or transitional democracies that have experienced long bouts of military rule, the idea, let alone the actual practice, of political oversight of intelligence services remains handcuffed to the complex and distrustful relationship between civilian and military actors. It appears that meaningful reform can only be instituted when the civil-military balance is changed to the advantage of the executive, the legislature, and the independence of the judiciary.

This is not to say that the task is simple in stable democracies. For instance, it took the US almost 35 years to institute a half-way effective oversight system. While the conceptual framework for oversight was enshrined in the National Security Act of 1947, the equivalent of select committees on intelligence were instituted only in 1976. Indeed, the final push for reform came as a result of growing public pressure following the CIAs involvement in Chile and Vietnam in the early 1970s.

Interestingly, in the Indian case, public pressure to investigate R&AW activities in Sri Lanka, the alleged role played by R&AW agents in arming factions of Fiji’s Indian community, and the recommendations of the Kargil Review Committee have not resulted in concerted public action for a meaningful oversight system. At the turn of the century, a task force headed by former R&AW chief G.C. Saxena made a set of recommendations to the Group of Ministers on reforming national security. It suggested that an Intelligence Coordination Group (ICG) made up of parliamentarians, academics, intelligence professionals and bureaucrats be created. But these proposals appear to have had little traction with the government.

For any oversight system to be put in place – either in the form of a new standing committee or as part of an existing committee – parliament must first pass legislation providing a legal mandate for the R&AW. Whilst the R&AW was created by an executive order by Prime Minister Indira Gandhi, it has not yet been formally recognized by the Parliament. Without a legal mandate, it would be difficult even to conceive how an oversight mechanism might be instituted. Would this mechanism have the authority to scrutinise the dispersal of funds – like the US Congress does with the CIA? Or would it merely provide a platform for intelligence officials to formally interact with parliamentarians outlining broad policy?

The practice in Britain underscores this point. The MI5 was given a legal mandate by the 1989 Secret Services Act. Later, the Intelligence Services Bill made provisions for a committee of half a dozen parliamentarians picked by the prime minister to meet in closed session and prepare reports for 10 Downing Street. Hence, the constitutional mandate for both MI5 and the parliamentary committee were clearly outlined in acts of Parliament. This is essential to preclude ad hoc attempts at dealing with matters of national security.

The Indian vice-president has rendered high service by recently spotlighting the need for a Parliamentary Standing Committee on Intelligence. Such a committee could be a useful mechanism to balance the trade-offs between effectiveness and control in various functions of intelligence. Providing a legal framework for the functioning of intelligence agencies would be a first step towards asserting democratic control.

Footnotes:

1. This episode is obliquely alluded to by the then Director of the Intelligence Bureau, B.N. Mullik, in his memoir My Years with Nehru: The Chinese Betrayal. Allied Publishers, New Delhi, 1970. Also see, Jawaharlal Nehru to T.T. Krishnamachari, 2 November 1962, Correspondence with J. Nehru 1962. T.T. Krishnamachari Papers, Nehru Memorial Museum and Library, New Delhi.

2. This discussion draws on Abram Shulsky and Gary Schmitt, Silent Warfare: Understanding the World of Intelligence. Brassey’s Inc, Washington D.C., 2002, (3rd ed.), pp. 1-8.

3. For a review of more recent developments see, Benjamin Wittes, Law and the Long War: The Future of Justice in an Age of Terror. Penguin, New York, 2008.

4. Alleged Assassination Plots Involving Foreign Leaders: An Interim Report of The Select Committee to Study Governmental Operations With Respect to Intelligence Activities, U.S. Government Printing Office, Washington D.C., 1975, p. 261.

5. Srinath Raghavan, War and Peace in Modern India: A Strategic History of the Nehru Years. Permanent Black, Ranikhet, 2010, pp. 267-77.

6. Frederic Grare, Reforming the Intelligence Agencies in Pakistan’s Transitional Democracy. Carnegie Endowment for International Peace, Washington DC, 2009, p. 14.

7. Bidanda Chengappa, ‘The ISI Role in Pakistan’s Politics’, Strategic Analysis 23(11), 2000, p. 1864.

8. For a detailed account see Steve Coll, Ghost Wars: The Secret History of the CIA, Afghanistan and Bin Laden. Penguin, London, 2005, pp. 146-167

9. B. Chengappa, op cit., pp. 1867-68.