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Parliamentary Oversight of Security and Intelligence Agencies in the European Union

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Parliamentary Oversight of Security and Intelligence Agencies in the European Union DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT C: CITIZENS' RIGHTS AND CONSTITUTIONAL AFFAIRS CIVIL LIBERTIES, JUSTICE AND HOME AFFAIRS PARLIAMENTARY OVERSIGHT OF SECURITY AND INTELLIGENCE AGENCIES IN THE EUROPEAN UNION STUDY Abstract This study evaluates the oversight of national security and intelligence agencies by parliaments and specialised non-parliamentary oversight bodies, with a view to identifying good practices that can inform the European Parliament’s approach to strengthening the oversight of Europol, Eurojust, Frontex and, to a lesser extent, Sitcen. The study puts forward a series of detailed recommendations (including in the field of access to classified information) that are formulated on the basis of in- depth assessments of: (1) the current functions and powers of these four bodies; (2) existing arrangements for the oversight of these bodies by the European Parliament, the Joint Supervisory Bodies and national parliaments; and (3) the legal and institutional frameworks for parliamentary and specialised oversight of security and intelligence agencies in EU Member States and other major democracies. PE 453.207 EN This document was requested by the European Parliament's Committee on Civil Liberties, Justice and Home Affairs. AUTHORS Aidan WILLS, Geneva Centre for the Democratic Control of Armed Forces (DCAF) Mathias VERMEULEN, European University Institute (EUI) Hans BORN, Project Leader, DCAF Martin SCHEININ, Project Leader, EUI Micha WIEBUSCH, Research Assistant, DCAF Ashley THORNTON, Language Consultant RESPONSIBLE ADMINISTRATOR Andreas HARTMANN Policy Department C: Citizens' Rights and Constitutional Affairs European Parliament B-1047 Bruxelles E-mail: [email protected] LINGUISTIC VERSIONS Original: EN ABOUT THE EDITOR To contact the Policy Department or to subscribe to its newsletter please write to: [email protected] Manuscript completed in June 2011. © European Parliament, Brussels, 2011. This document is available on the Internet at: http://www.europarl.europa.eu/activities/committees/studies.do?language=EN http://www.ipolnet.ep.parl.union.eu/ipolnet/cms DISCLAIMER The opinions expressed in this document are the sole responsibility of the authors and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy. Parliamentary Oversight of Security and Intelligence Agencies in the European Union __________________________________________________________________________________________ CONTENTS CONTENTS 3 LIST OF ABBREVIATIONS 7 LIST OF TABLES 14 EXECUTIVE SUMMARY 15 CHAPTER 1. INTRODUCTION 38 1.1. Mandate 38 1.2. Aim and structure of the study 39 1.3. Methodology 40 1.4. Relevance of parliamentary oversight of security sector agencies 41 1.5. Defining oversight 41 1.6. National intelligence agencies v. the EU’s AFSJ bodies 42 CHAPTER 2. THE EUROPEAN UNION’S AREA OF FREEDOM, SECURITY AND JUSTICE BODIES 44 2.1. Europol 44 2.1.1. Legal basis and main tasks 44 2.1.2. Powers 46 2.1.3. Relationships with third parties 48 2.2. Eurojust 49 2.2.1. Legal basis and main tasks 49 2.2.2. Powers 50 2.2.3. Relations with third parties 51 2.3. Frontex 52 2.3.1. Legal basis and mandate 52 2.3.2. Powers 52 2.3.3. Relations with third parties 53 2.4. The EU’s Situation Centre (Sitcen) 54 2.4.1. Legal basis and main tasks 54 2.4.2. Powers 56 2.4.3. Relationship with third parties 57 2.5. Conclusion 57 3 Policy Department C: Citizens' Rights and Constitutional Affairs ___________________________________________________________________________________ CHAPTER 3. PARLIAMENTARY AND SPECIALISED OVERSIGHT OF THE EU’s AFSJ BODIES 60 3.1. The Joint Supervisory Bodies for Europol and Eurojust 60 3.1.1. Composition 61 3.1.2. Powers 62 3.2. National parliaments’ role in overseeing the AFSJ bodies 64 3.2.1. Legal framework at the EU level 64 3.2.2. Legal framework at the national level 65 3.3. The role of the European Parliament in overseeing the AFSJ bodies 67 3.3.1. The European Parliament’s access to classified information 68 3.3.2. Oversight mechanisms of the European Parliament 74 3.4. Conclusion 80 CHAPTER 4. PARLIAMENTARY AND SPECIALISED OVERSIGHT OF NATIONAL INTELLIGENCE AGENCIES 84 4.1. Introduction 84 4.1.1. The rationale for oversight of intelligence agencies 85 4.2. Systems for intelligence oversight 86 4.2.1. General parliamentary committees 87 4.2.2. Specialised parliamentary committees 87 4.2.3. Specialised non-parliamentary oversight bodies 90 4.3. Organisation of specialised oversight bodies 96 4.3.1. Composition of parliamentary oversight committees 96 4.3.2. Chairpersonship of parliamentary oversight committees 97 4.3.3. Composition of non-parliamentary oversight bodies 97 4.3.4. Selection of members of specialised oversight bodies 98 4.3.5. Resources 100 4.4. Mandate and functions of specialised oversight bodies 101 4.4.1. General mandate 101 4.4.2. Specific oversight functions 106 4.4.3. Oversight of selected activities of intelligence agencies 109 4.5. Access to classified information by parliaments and specialised oversight bodies 117 4.5.1. Access to information by parliaments 117 4.5.2. Access to classified information by specialised oversight bodies 121 4.5.3. Restrictions on access to information 123 4.5.4. Proactive disclosure of information to oversight bodies 129 4.6. Methods and powers of specialised oversight bodies 131 4.6.1. Own-initiative investigations 132 4.6.2. Powers to ensure access to classified information by overseers 133 4.7. Protection of information handled by specialised oversight bodies 137 4 Parliamentary Oversight of Security and Intelligence Agencies in the European Union __________________________________________________________________________________________ 4.7.1. Measures to ensure appropriate persons are appointed to oversight bodies 138 4.7.2. Penalties for unauthorised disclosure of classified or otherwise confidential information 142 4.7.3. Physical measures to protect classified information 143 4.8. Conclusion 144 CHAPTER 5. RECOMMENDATIONS FOR STRENGTHENING OVERSIGHT OF THE AFSJ BODIES BY THE EUROPEAN PARLIAMENT 146 5.1. Introduction 146 5.2. Limitations on the scope of the European Parliament’s oversight of the AFSJ bodies 147 5.3. The European Parliament’s oversight mandate and functions 148 5.3.1. Oversight of the finances of the AFSJ agencies 149 5.3.2. Keeping the European Parliament informed about security threats 150 5.3.3. The European Parliament’s relationship with the Joint Supervisory Bodies 151 5.3.4. Standardisation of the European Parliament’s right to summon the directors of AFSJ agencies 152 5.3.5. Oversight of the appointment of agency directors 152 5.3.6. A role for the European Parliament in providing assessments on the human rights records of AFSJ bodies’ cooperation partners 154 5.3.7. A role for the European Parliament in reviewing the AFSJ bodies’ information sharing agreements and memoranda of understanding 155 5.4. Access to and the protection of classified information 155 5.4.1. Improving the European Parliament’s access to classified information in the AFSJ 156 5.4.2. The protection of information handled by the European Parliament 161 5.5. Oversight mechanisms 162 5.5.1. The performance of additional oversight functions by the LIBE Committee 164 5.5.2. Special committee options for the Area of Freedom, Security and Justice (AFSJ) 165 5.5.3. Creation of a LIBE Sub-Committee for the oversight of the AFSJ agencies 169 5.5.4. Strengthening cooperation between the European Parliament and national parliaments in the oversight of AFSJ agencies 172 5.6. Summary of recommendations 175 REFERENCES 177 5 Policy Department C: Citizens' Rights and Constitutional Affairs ___________________________________________________________________________________ ANNEXES 189 ANNEX A: COUNTRY CASE STUDIES ON PARLIAMENTARY AND SPECIALISED OVERSIGHT OF SECURITY AND INTELLIGENCE AGENCIES IN EU MEMBER STATES AND OTHER MAJOR DEMOCRACIES 190 ANNEX B: THEMATIC STUDIES ON OVERSIGHT OF THE EUROPEAN UNION’S AREA OF FREEDOM, SECURITY AND JUSTICE (AFSJ) BODIES 350 ANNEX C: QUESTIONNAIRE FOR OVERSIGHT INSTITUTIONS OF CIVILIAN SECURITY AND INTELLIGENCE AGENCIES IN EU MEMBER STATES 412 ANNEX D: MEMBERS OF THE PROJECT ADVISORY BOARD 440 ANNEX E: AUTHORS OF THE ANNEXED BACKGROUND STUDIES 441 6 Parliamentary Oversight of Security and Intelligence Agencies in the European Union __________________________________________________________________________________________ LIST OF ABBREVIATIONS AAI Autorités Administratives Indépendantes (France) AFET Committee on Foreign Affairs, Fundamental Rights and Common Security and Defence Policy (EU) AFSJ Area of Freedom, Security and Justice (EU) AIC Australian Intelligence Community AISE External Information and Security Agency (Italy) AISI Internal Information and Security Agency (Italy) ANAO Australian National Audit Office ASIO Australian Security Intelligence Organisation ASIS Australian Secret Intelligence Service AWFs Analysis Work Files BfV Bundesamt für Verfassungsschutz/Federal Office for the Protection of the Constitution (Germany) BND Bundesnachrichtendienst/Federal Intelligence Service (Germany) BNDG Gesetz über den Bundesnachrichtendienst/Federal Intelligence Service Act (Germany) BVerfSchG Bundesverfassungsschutzgesetz/Federal Protection of the Constitution Act (Germany) BUDG EP’s Committee on Budgets CATS
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