Casting a Light into the Shadows: Why Security Intelligence Requires Democratic Control, Oversight, and Review
| Author | Andrea Wright |
| Pages | 327-367 |
Casting a Light into the Shadows: Why
Security Intelligence Requires Democratic
Control, Oversight, and Review
Andrea Wright1
A. INTRODUCTION
Activity that threatens a state’s security is usually carried out surrepti-
tiously. To counter and monitor this activity, states must often operate
covertly as well. States use special powers to plant listening devices,
monitor telephone calls, decipher codes, dispatch spies, seize comput-
ers, intercept e-mail, exchange data, and question people. While vital to
a state’s security, these exceptional, secretive activities can pose risks
to a liberal democratic society built on the rule of law, on fundamen -
tal principles of openness and accountability, and on individual rights
and freedoms. If the sanctity of these institutions and precepts is to
1 Prior to writing, Andrea Wright was Legal Counsel to the Commission of Inquiry
into the Actions of Canadian Officials in Relation to Maher Arar, advising the
Honourable Justice Dennis O’Connor on his policy review mandate to recommend
an independent, arm’s-length review mechanism for the national security activities
of Canada’s national police force. Justice O’Connor submitted his report to the
Canadian government in December 2006: Canada, Commission of Inquiry into the
Actions of Canadian Officials in Relation to Maher Arar, A New Review Mechanism
for the RCMP’s National Security Activities (Ottawa: Minister of Public Works and
Government Services, 2006) [Arar Policy Review Report]. The views expressed in
this chapter are the author’s own and should not be taken to represent those of
Justice O’Connor or the commission.
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be preserved, while at once protecting national security, states should
establish a robust regime for democratic control, oversight, and review2
of security intelligence activities. It is only through the auspices of such
safeguards and scrutiny that a populace can effectively demand that se-
curity intelligence activities proceed according to its pre-set standards:
of legality and propriety, of success in achieving security goals, and of
transparency and accountability. It is only through such a regime that a
populace can cast light into the shadows of security intelligence activ-
ities and thereby make them legitimate.
The Ottawa Principles on Anti-terrorism and Human Rights set out a
number of basic tenets of such a regime. This chapter elaborates on those
principles, by discussing their rationales, their modes of practical applica-
tion, and their inherent challenges. It also touches upon some emerging
challenges for democratic control, oversight, and review (DCOR) of secur-
ity intelligence, in an era of expanding security intelligence activity.
B. THE REASONS FOR A REGIME OF DEMOCRATIC
CONTROL, OVERSIGHT, AND REVIEW
1) The Nature of Security Intelligence Activities
Security intelligence activities,3 while vital to the protection of the state,
2 There are no universally agreed upon definitions of these concepts. This chapter
uses “democratic control” to denote measures that a state’s legislative branch—the
democratic representatives of the people—enacts or otherwise applies to exercise
control over the conduct of security intelligence activities. “Oversight” is the on-
going supervision and direction of security intelligence activities by the executive
branch of government, which is ultimately accountable for their conduct. “Review”
is post-facto scrutiny of the activities, independent of any authority to direct them.
This chapter elaborates on these concepts by setting out rationales for their con-
ceptual separation, the distinct objectives of each, and the vehicles through which
they may be exercised.
3 As with the concepts of oversight and review, there are no universally agreed upon
definitions of “security intelligence activities.” In this chapter, the term is used
broadly, to denote the full range of “actions taken by any state or private actor,
typically covertly, in order to gather and collate information that may be relevant to
the protection of national security, as the state may define it.” See Andrea Wright,
“Security Intelligence—Everybody’s Doing It: New Challenges for Democratic
Control and Oversight” (Paper presented to the European Consortium for Political
Research General Conference, Pisa, Italy, 7 September 2007) [Wright, “Security
casting a light into the shadows 329
its institutions, and its people,4 are activities that can paradoxically risk
treading on a liberal democratic state’s foundations—its rule of law, its
guaranteed rights and freedoms, and its principles of openness and ac-
countability.
Security intelligence typically involves activity such as the monitor-
ing of telephone calls and e-mail, decoding of signals intelligence, sur-
veillance, seizure of possessions and data, infiltration of target groups,
questioning of targets, and acquisition of financial, medical, criminal,
physical, professional, family, and travel information. These activities can
risk infringement of many individuals’ rights and freedoms, both domes-
tically and abroad. They risk adversely affecting rights such as privacy,
mobility, equality, and the principle of innocence until proven guilty, in
addition to protections against unreasonable detention, arrest, inhuman
and degrading treatment and torture, and fundamental freedoms such as
association, expression, and religious and political beliefs.5
Intelligence”]. This definition therefore includes activity that is undertaken by
private actors on behalf of state agents, and activity that may or may not exceed
statutory bounds. In designing a DCOR regime, the scope of activity for scrutiny
should be as wide as the scope of activity that poses risks. Indeed, it is the activity
on the margins of propriety, proportionality, and legitimacy that often requires
particular attention by a DCOR regime.
4 For a discussion of the role of security intelligence activities to a state’s security,
see Marina Caparini, “Challenges of Control and Oversight of Intelligence Services
in a Liberal Democracy” (Paper presented at the Workshop on Democratic and Par-
liamentary Oversight of Intelligence Services, Geneva, 3–5 October 2002), online:
www.dcaf.ch/pcaf/ev_geneva_021002_prog_caparini.pdf at 2 [Caparini, “Chal-
lenges”]; and Greg Hannah, Kevin O’Brien, and Andrew Rathwell, “Intelligence and
Security Legislation for Security Sector Reform” (Paper prepared for the United
Kingdom’s Security Sector Development Advisory Team, June 2005), online: www.
rand.org/pubs/technical_reports/TR288/index.html at 1ff.
5 The specific risks of intrusion on individual rights and freedoms will vary from
country to country, depending on the rights instruments in place and the permitted
or undertaken security intelligence activities, but a number of rights intrusions are
also proscribed by international instruments. Findings of adverse impact of security
intelligence activities on domestic and, in some cases, international rights and free-
doms have been made in numerous countries, including, most recently, in Canada:
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher
Arar, Report of the Events Relating to Maher Arar: Analysis and Recommendations (Ot-
tawa: Minister of Public Works and Government Services, 2006) [Arar Report]); in
Sweden: Parliamentary Ombudsmen, A Review of the Enforcement by the Security Po-
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