Intelligence, Human Rights and Counter Terrorism

The importance of democratic control of intelligence services has become a topic of international interest as the global war on terror enters its ninth year. The attacks on 9/11 impacted on intelligence in several ways. Firstly, in the aftermath of the attacks serious questions were asked (and continue to be asked) about the efficacy of a closed, state centric, target oriented information system in the era of globalised, diffused governance and geographically unbounded security threats.

Published on 25 February 2010 in ISS Today

Lauren Hutton, Researcher, Security Sector Governance Programme, Pretoria.

The importance of democratic control of intelligence services has become a topic of international interest as the global war on terror enters its ninth year. The attacks on 9/11 impacted on intelligence in several ways. Firstly, in the aftermath of the attacks serious questions were asked (and continue to be asked) about the efficacy of a closed, state centric, target oriented information system in the era of globalised, diffused governance and geographically unbounded security threats. The effect of the surprise attack was to call into question issues of methodology as well as management of traditionally silo-ed and secret structures. Whether or not state intelligence systems are tailored to fulfil the information requirements of the modern globalised security complex remains a challenge and intelligence agencies the world over are being confronted with the need to remain relevant in a world where information, people and ideas cross oceans and borders with the click of a mouse.

Secondly, and rather paradoxically, as the efficacy of intelligence to prevent surprise and act as a tool in conflict prevention was being questioned, the utility of intelligence as information on which to base operational security decisions was brought to the fore. As a force multiplier and strategic enabler, intelligence is central in the fight against enemies that utilise secrecy and covert methods. These targets range from terrorist networks to organised criminal groups, money launderers to weapons and drug smugglers. The commonality is that they operate under cover to avoid detection and covert collection such as the interception of communications is sometimes an essential part of operations to counter such activities. Furthermore, the global security environment has since the end of the Cold War been characterised by increasing complexity and uncertainty. Information becomes essential to define interests and actions, to engage in a complex and interdependent environment and to make sense of a world in a state of constant flux.

The third impact of the war on terror on intelligence has been a longer term questioning of the legitimacy of intelligence activities. This has come to light most pronouncedly in the association of intelligence agencies with illegal detention, extraordinary rendition, human rights abuses and the use (or sanctioning) of torture. According to reports by different national and international human rights organisations, torture is practiced in over half the countries of the world and is present on all continents. Africa is reported to register the highest incidence of torture and ill treatment, followed by Asia. Incidents of torture, ill treatment and illegal detention are indicative of systemic weaknesses – abuse of power by authorities, discrimination and impunity, lack of oversight and democratic controls and lack of respect for judicial procedures of arrest and detention.

The implications for African states of a renewed debate on intelligence in the post-9/11 security environment can be interpreted in several lights. On the one hand, there is the potential that by sacrificing the moral high ground in favour of expediency, states that suffer from democratic intelligence governance deficits cannot be pressured by the international community to pay greater attention to conditions of arrest and detention by intelligence agencies. In some instances questionable regimes and practices in Africa have been overtly or covertly supported by the international counter-terrorism coalition. This presents long-term challenges for securing respect for human rights, democratic governance and open political spaces. Other negative impacts could include more support for global jihad by the relatively power deprived global South; increased incidents of domestic terrorism against oppressive national political-security regimes and the creation of safe havens and underground support for subversive causes.

There could, however, be more positive spin-offs. The attention that the global war on terror has cast on intelligence methods and oversight has reinvigorated the discussion on legal standards and oversight practices for intelligence – most noticeably through the efforts of the UN Special Rapporteur on human rights while countering terrorism. In recasting the role of intelligence as a strategic enabler and reconsidering the role and function of secret information, intelligence could become a sharper tool in the state arsenal. Countering terrorism through criminal justice systems will entail tailored intelligence that can be shared across national borders and can be utilised in a court of law – as was witnessed recently in the Sydney trials. International intelligence cooperation and the sharing of information have become central in combating threats in the modern global security climate. This creates a fundamental shift in the orientation of intelligence from agencies intrinsically concerned with protecting and operating in secret to an orientation focused on collaborative efforts against transnational targets in an information rich environment (in terms of potential sources of information). For African states, moving towards a transnational focus might also overcome the perception - and sometimes practice – of intelligence as political police.

Because counter-terrorism is an issue of global interest, the additional focus on legal standards and oversight for intelligence could bring greater attention to an arena generally in the shadowy sidelines of public discourse and security studies. At a minimum, the role of intelligence agencies should be clearly defined in legislation. This starting point would enable limitations on and consequences for infringements on human rights. However, legislation serves limited purpose in states where the political dispensation does not favour respect for the rule of law or good democratic governance.