4 Colum. J. Eur. L. 545 (1998)
Shlomo Shpiro. Shlomo Shpiro is an Israeli academic specializing in European security, democracy, and communications. Formerly a research coordinator at the Israeli parliament, he has studied, worked in research, and lectured at leading universities in Israel, Britain, Germany, Austria, and Norway. He currently lectures at the University of Cologne in Germany.
INTRODUCTION-THE INHERENT CONFLICT BETWEEN DEMOCRACY AND SECRECY
From the early days of democracy, the need to control and regulate state organs that might abuse their powers was of paramount importance for both the people and their elected representatives. When discussing the politics of ancient Athens, Aristotle raised the eternal question of “who will guard the guards,” and this problem has been part of the quest for a just and effective democracy ever since.
In the European Union, Member States intelligence services form an inherent part of the state organization, yet the understanding and analysis of their function and behavior within the overall state mechanism is far from complete. Throughout the Cold War these services were viewed through a cloud of myths and a James Bond atmosphere-often encouraged by these very services themselves-while their inherent secrecy made comparative analysis difficult. The end of the bipolar conflict, and the resulting need to redefine the roles of intelligence services in Western democracies, exposed some of the basic issues in the intelligence debate, which in many EU countries is far from over. These debates accept intelligence services as an integral and “normal” part of the democratic state mechanisms, performing various assigned functions for the defense and protection of democracy, regulated by legislation, financed by public funds and providing a service for the community at large like any other governmental department.
An inherent conflict is apparent, however, between the essence of democracy and the operational principles of intelligence work. Democracy is based on the principles of openness and accountability, whereby an elected body governs by the consent of the people. The electorate is openly informed about the workings of government and the expenditure of public funds, and the elected officials are, in different forms, directly accountable for their actions. Intelligence work, however, is based on the element of secrecy. For an intelligence service to perform its tasks effectively it must operate outside the public eye, using covert methods and systems which are not open to immediate scrutiny. The danger is, of course, that such a veil of secrecy can be used to cover misdeeds, unconstitutional activities, or involvement in internal politics or even criminal activities without any legal oversight.
Over the last four decades many Western European countries have attempted to solve the conflict between accountability and secrecy by developing outside the intelligence services mechanisms to regulate or control intelligence activities. The development of these controlling bodies has reflected the influence of each state’s political culture, security needs, national experience, and political party rivalries. Often the system for democratic control of intelligence services mirrors a country’s parliamentary political system, and a system suitable for one democracy may not necessarily be ideal for another.
Throughout the years of the Cold War many intelligence services in the European Community Member States enjoyed a high level of public legitimacy and support for their perceived role in the global conflict. But soon after the collapse of the Soviet Union and the end of the bipolar confrontation, questions began to be raised across the European Union over the efficiency, economy, and even actual need for intelligence services. Intelligence chiefs began a hard battle for the survival of their organizations, a battle that necessitated the adoption of new roles and new targets for their activities. Various cost-cutting measures implemented in defense budgets, often referred to as the “peace-dividend,” forced the intelligence community to reduce expenditures and increase efficiency, while new parliamentary debates and legislation partially lifted the veil covering their activities and compelled them to adopt a new posture toward the issue of parliamentary controls. As a result of this greater awareness and openness, a series of regulatory and administrative reforms were enacted in several EU countries aimed at enhancing the forms of control over their intelligence communities and expanding their public legitimacy as well as increasing their integration into new roles combatting international and cross- boundary crime.
This Article examines the recent reforms in the mechanisms of parliamentary and administrative control over the intelligence services in two of the largest Member States of the European Union-Germany and the United Kingdom.5 The importance of these countries with regard to their intelligence services lies not only in that both operate large intelligence communities maintaining global coverage, but also the fact that through bilateral and multilateral exchanges these intelligence services are responsible for a large portion of the intelligence available to other, smaller EU members. Furthermore, the recent legislative and administrative reforms in Britain and Germany over the control of intelligence services represent two distinct approaches to this issue and mirror similar developments in the smaller EU states.
Rather than presenting an exhaustive legal review, this Article seeks to examine how the recent reforms have been applied in practice and how the actual workings of the different controlling bodies influence the activities of the intelligence services. The Article’s aim is to survey and analyze the different systems of parliamentary and administrative control developed by both countries, and compare their structures, authorities, workings, and effectiveness.
The Article is divided into four main sections. Part I examines the general issue of parliamentary and administrative control within the context of western European democracy and identifies four main prerequisites for effective parliamentary controls. In Part H, a short summary will outline the structure of the intelligence communities of both Germany and Britain, including the respective executive authorities directing their activities. Part III will then analyze the role and function of each of the different parliamentary controlling bodies, their executive powers, and their relations with the services they control. Part IV will examine the parliamentary controls over four specific issues which present special problems due to the unique characteristics of intelligence work: the disclosure of information to the public, public complaints about activities of the intelligence services, intelligence services’ powers of arrest, and immunity of intelligence personnel from prosecution over illegal activities abroad. Finally, the Article will present conclusions and some reflections on the effectiveness and limits of the recent reforms.