Comparing Intelligence Accountability

This chapter reviews the literature of intelligence accountability, reviews different theories, and introduces readers to key terms such as oversight, review, control, and governance. This book complements the process of intelligence oversight—the practice of holding ISAs to account, whereby ISAs have to justify their activities—with other types and levels of accountability. Typologically, accountability bodies differ by ways and methods they use to hold ISAs accountable: they can review, oversee, or control Intelligence and Security Agencies (ISA), and/or accept and address complaints concerning actions or activities of an ISA. Although conventionally they assessed compliance within an intelligence community, as of late they have been performing additional functions, such as promoting innovation. The different types of accountability are complemented by various layers in which Intelligence and Security Agencies are held accountable: internal, managerial, and external. The chapter introduces readers to the institutional architecture of intelligence accountability: legislative committees, judicial and quasi-judicial bodies, bureaucratic and administrative bodies, and executive oversight. It goes on to review intelligence accountability frameworks: laws, legislatures, the executive, the judiciary, the media, the public, civil society, and the democratic interest. The chapter closes on developments in international and supranational accountability cooperation.

New Zealand

As the smallest and most centralized in the Five Eyes community, New Zealand’s intelligence and security community, and the system that holds it accountable, is an outlier. New Zealand’s proximity to Australia is reflected in parallels in intelligence accountability between the two Tasman allies. On the one hand, its relatively smaller size is reflected in certain unique attributes of intelligence accountability, such as its limited scope and access to sensitive material. On the other hand, its more modest size has been beneficial in driving innovation that has subsequently been adopted elsewhere, notably the double lock system for warrants. The chapter reviews the member organizations of the New Zealand’s National Intelligence Community, the particular strategic environment that has informed intelligence and accountability in New Zealand, its rather distinct national security threats, as well as New Zealand’s modest, centralized yet innovative intelligence accountability architecture: the Inspector General of Intelligence and Security, which has an Advisory Panel that is an attribute unique to New Zealand, the Intelligence and Security Committee of Parliament, and the Commissioner of Intelligence Warrants. New Zealand’s experience draws attention to economies of effort to be harnessed for scarce resources on the big collectors and assessor rather than other government clients that only receive intelligence. New Zealand also differs from other Five Eyes parliamentary intelligence committees in granting only limited access to sensitive operational matters or information. Mandatory regular review of legislation offers an opportunity to assess for efficacy and propose comprehensive improvements to innovate agencies and practices.

United States of America

This chapter reviews the member organizations of the United States Intelligence Community, the strategic environment that has informed intelligence and accountability in the United States, including scandals as a key driver of innovation, and the current and future threat environment as seen by the United States. The chapter examines the US intelligence accountability architecture: the House of Representative Permanent Select Committee on Intelligence, the Senate Select Committee on Intelligence, the Foreign Intelligence Surveillance Court, the Inspectors General, the Government Accountability Office, the Privacy and Civil Liberties Oversight Office, and the President’s Intelligence Advisory Board. The sheer number and complexity of accountability bodies in the US gives rise to inefficiencies, ineffectiveness, and duplication. The accountability system is replete with gaps and vulnerabilities: partisanship, collective-action problems, resource allocation, and inconsistent quality of review in congressional accountability; GAO’s limited authority to review the USIC and sensitive operations; the adequacy of the FISA court in adequately protecting the rights of Americans; and Presidential discretion in appointing and removing IGs. These issues have implications not just for the United States, but for allies, partners as well as regional and global stability.

Varieties of Intelligence Accountability

This chapter uses a comparative approach to identify findings among accountability systems across the Five Eyes intelligence community. Commonalities and trends of convergence in intelligence accountability are relevant for and beyond the United States, the United Kingdom, Canada, Australia, and New Zealand. These observations show challenges and opportunities in democracies to reconcile the different logics that inform security and rule-of-law systems. It begins by comparing across types of accountability: review, oversight, compliance, and benchmark criteria such as reasonableness, propriety, proportionality, necessity, efficiency, and effectiveness. Specifically, the comparative findings suggest potential for innovation to play a greater role in signalling trends to governments and improving consistency and quality. The chapter then compares types of accountability bodies and commissions. The remainder of the chapter compares attributes of accountability: mandates, appointment processes, and qualifications for membership, reports, powers, access to information, security requirements, and procedural discretion. It closes on the emerging need to coordinate accountability across an intelligence system. Coordination within an accountability system allows accountability bodies to avert duplication, fill accountability gaps, and help inform each other about issues of potential importance. Coordination and de-confliction are essential for maximizing overall efficiency and effectiveness of accountability systems where mandates of multiple bodies may overlap or conflict.

Introduction

In recent decades in general and since the turn of the millennium in particular, accountability has emerged as the democratic state’s most important legitimation mechanism for national security and intelligence practices and institutions. The functional imperative of accountability is to scrutinize intelligence agencies, practices, and systems to ensure their compliance with regulations, mandates, laws, and the Constitution—largely to provide reassurance that organisations that must operate in secret are not abusing their special powers and authorities. In addition to compliance, however, many other benefits that flow from crucial subsidiary functions that intelligence accountability performs. This chapter tracks the value and importance of intelligence to detect, disrupt, and deter a growing number of threat actors and vectors to security, prosperity, and democracy, and concomitant shift in intelligence posture from foreign spies to an array of domestic counterterrorism, counterespionage, counter sabotage, counter propaganda, counter information and counter cyber operations. In an era of social and political disruption that is marked by technological change, changing threat vectors, changing public expectations and scandals, democratic governments have established, evolved, and expanded accountability systems to review and oversee the intelligence community. The chapter introduces readers to ways of theorizing and reconciling the relationship between the intelligence community and civilian institutions of the democratic state, notably as a principal–agent problem: a relationship in which one side (the civilians) attempts to have an epistemic community (the ‘spies’) carry out its will. Politicians and the civil service leverage the intelligence community’s expert knowledge to keep the democratic state, its institutions, and its citizens safe and secure and deter and contain existential threats. In fulfilling this mandate, the democratic public expects the intelligence community to comply with relevant legal and constitutional frameworks.

Canada

Canada contrasts distinctly with the prominence of intelligence oversight in the United States, insofar as Canada stands out for a predominately ex post facto approach to reviewing intelligence. Recent changes, however, bolstered the role of oversight in Canada’s accountability system. Previously, only three of 16 agencies that make up Canada’s intelligence and security community were reviewed by independent expert review bodies. Critics, however, argued that review should be more encompassing, lamented constraints by the Canadian intelligence accountability system that made it difficult for review bodies to cooperate and the negligible role of Parliament in holding ISAs accountable. Recent legislation created a security-cleared committee of parliamentarians to review Canada’s security and intelligence community, an agency to review activity related to national security and intelligence as well as an independent commissioner to oversee certain ministerial intelligence authorizations. The chapter reviews member organizations of the Canada’s intelligence community, the strategic environment that has informed intelligence and accountability in Canada; national security threats to Canada; as well as internal and external dynamics that culminated in changes to Canada’s intelligence accountability architecture: the Civilian Review and Complains Commission of the Royal Canadian Mounted Police, the National Security and Intelligence Committee of Parliamentarians, the National Security and Intelligence Review Agency, and the Intelligence Commissioner. The prospect of the NSICOP, NSIRA, and the IC strengthening compliance and general operations of Canada’s intelligence and security community will be realized by how each fulfils its broad mandate in practice and the degree of cooperation among NSIRA, NSICOP, and CRCC.

Conclusion

This chapter historicizes, contextualizes, and theorizes the triangular relationship among governments, intelligence agencies, and democratic citizens in light of the observations and comparisons in this book. It posits accountability as a means to reconcile the apparent contradictions between the openness and transparency of democratic first principles on the one hand, and the power and secrecy of state intelligence on the other. Democracies constantly have to demonstrate their steadfast commitment to playing by the same rules they claim to value and defend as this practice ultimately sets them apart from authoritarianism. Intelligence accountability thus emerges as a quintessentially social process that is both integral and existential to democracy. Accountability tethers intelligence and security communities to the democratic society they serve and the rules, authorizations, and limitations it has imposed. In response to global threats and technological change, however, intelligence now coalesces as an epistemic community that cooperates across agencies, departments, and jurisdictions. Domestic, international, and supranational coordination and collaboration within intelligence communities and across the Five Eyes, other allies, partners, and beyond, vastly complicate the seemingly straightforward task of holding any one intelligence agency or community accountable. Accountability lags changing and expanded intelligence powers and capabilities, which can have deleterious consequences for public trust and support under which intelligence operates in a democratic society. Ergo, the lessons in the comparative study of intelligence are as much about reconciling intelligence and democracy as they are about innovation and adaptation in defending democracy as hostile state and non-state threat actors and vectors proliferate.

United Kingdom

The United Kingdom’s intelligence accountability system reviews and oversees the Five Eyes’ oldest intelligence and security community. Her Majesty’s intelligence community illustrates the challenge of managing the tension between state security with human security: a cycle of reform driven in an attempt to (re)gain the trust of a sceptical UK public and in response to technological progression. Over the course of the last century, the UK and its intelligence and security agencies (ISAs) assisted other Five Eyes members in establishing their own ISAs, while its cycle of reform has had equally important ramifications for driving innovation in intelligence accountability across the Five Eyes community. Controversies have undermined the prospect for public trust on which the legitimacy of the UK’s intelligence community ultimately depends. Changes from the initial focus on general administrative and executive review and oversight were driven by domestic and transnational legal challenges. The European Convention on Human Rights and the European Court of Human Rights have had a notable impact on security and intelligence in the United Kingdom. The chapter reviews the member organizations of the UK’s intelligence community, the strategic environment that has informed intelligence and accountability in the UK, national security threats from the vantage point of the UK, and the UK’s intelligence accountability architecture: the Investigatory Powers Commissioner and Judicial Commissioners Office, the Investigatory Powers Tribunal, the Intelligence and Security Committee composed of members of both Houses of Parliament, and the Independent Reviewer of Terrorism Legislation.

Australia

Intelligence accountability in Australia balances compliance and bodies whose systematic focus is on efficacy and financial review with independent intelligence reviews, commissions, and inquiries that focus on efficacy. Australia differs insofar as it is not subject to a constitutionally or supranationally enshrined civil right regime. A diversity of mechanisms, ranging from parliamentary committees and executive bodies to periodic independent reviews, fashion an oversight system that drives innovation. From the three Royal Hope Commissions to regular inquiries into the National Intelligence Community, Australia’s independent in-depth periodic reviews, inquiries, and commissions have a track-record of shaping and spurring change and innovation in the scope and structure of accountability across its broader intelligence and security community. The Australian tradition of independent expert intelligence reviews, commissions, and inquiries offsets the lack of accountability bodies dedicated to reviewing for efficacy and innovation. The chapter reviews the member organizations of the Australia’s National Intelligence Community, the strategic environment that has informed intelligence and accountability in Australia, national security threats as seen by Australia, as well as Australia’s systematic approach to reviewing and innovating its intelligence accountability architecture. It consists of the Inspector General of Intelligence and Security, the Parliamentary Joint Committee on Intelligence and Security, and the Independent National Security Law Monitor. Although similar to the United States Office of the Director of National Intelligence and the United Kingdom’s Joint Intelligence Organization, Australia’s Office of National Intelligence is quite unique insofar as neither the US and UK equivalents nor comparable offices in Canada and the New Zealand have an analogous accountability function. These mechanisms balance existing independent review mechanisms with mandates to review legislation and compliance, propriety, administration.