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Parliamentary Access to Classified Information Parliamentary Access to Classified Information An analysis of the responses to the NATO Parliamentary Assembly – DCAF Survey on Legal Frameworks and Practices in NATO Member State Parliaments Author: Nazli Yildirim Schierkolk Editors: Ruxandra Popa, Philipp Fluri, Teodora Fuior November 2018, Geneva Acknowledgements: The author and the editors would like to thank the representatives of national parliaments who responded to the NATO PA–DCAF Survey on ‘Access to Classified Information for Parliamentarians’. Note The URLs cited in this document were valid at the time of publication. Neither DCAF nor the author can take responsibility for any subsequent changes to any or all of the URLs cited in this document. Table of Contents Foreword ..................................................................................................................................... Introduction .............................................................................................................................. 1 Background ............................................................................................................................................................................1 Methodology .........................................................................................................................................................................3 Structure ..................................................................................................................................................................................4 Chapter 1: Legal Frameworks on Information Classification ............................................. 5 1.1 Laws Regulating Information Classification .......................................................................................................5 1.2 Categories of Information to be Classified ...........................................................................................................6 1.3 Authority to Classify Information ........................................................................................................................ 10 1.4 Classification Levels ................................................................................................................................................. 12 1.5 Declassification Procedures ................................................................................................................................... 12 1.6 Free Access to Information of Public Interest .................................................................................................. 17 Chapter 2: Parliamentary Handling of Classified Information ......................................... 19 2.1 Parliamentarians’ Access to Classified Information ....................................................................................... 19 2.2 Existence of Laws, Policies, Mentalities Blocking Reasonable Parliamentary Access to Information ......................................................................................................................................................................... 24 2.3 Security Vetting of Parliamentarians ................................................................................................................... 25 2.4 Parliamentary Staff Access to Classified Information ................................................................................... 30 2.5 Measures Taken by Parliamentary Committees to Protect Classified Information .............................. 31 2.6 Sanctions for Unauthorized Disclosure of Classified Information ............................................................ 32 2.7 Capacity Building for Parliaments on Handling Classified Information ................................................. 34 Conclusion ............................................................................................................................... 36 Annexes ................................................................................................................................... 38 Annex I – NATO PA-DCAF survey questions ........................................................................................................ 38 Annex II – List of countries that responded to the survey ............................................................................. 39 Foreword The processes of classification and declassification of information, the laws, provisions, rules and regulations for initiating such processes, and the rules for granting access to such information to certain individuals, either ex officio or through processes of vetting, are not only of interest to the individual parliaments that have come to satisfactory results in regulating such processes: the parliaments of nations in transition towards democratic practices are equally, or even more so, in need of comparative data. Too often regulations from a preceding historical period impede the successful resolution of the issues outlined above. Existing classification systems may also be used to keep parliaments out of the information loop, to station executive-appointed classification specialists in parliaments, to limit access to classified information to representatives of the executive, or even to go as far as making access to different levels of classified information dependent on the rank of an individual within the executive. This timely volume thus not only gives access to comparative data, it is also a source of arguments for bringing one’s house in order and establishing proper parliamentary oversight in the realm of security and defence in newly democratic states. The Swiss Department for Defence, Civil Protection and Sport has long supported the cooperation of the NATO Parliamentary Assembly and the Geneva Centre for the Democratic Control of Armed Forces (DCAF) in the design and delivery of the Rose-Roth programme. The programme allows not only for the introduction of newly elected MPs to Euro-Atlantic parliamentary practices, values and institutions and for the organization of several annual interparliamentary Rose-Roth capacity-building and reflection seminars, but also for the publication of useful surveys, such as this. The editors would like to express their heartfelt thanks for Switzerland’s continued assistance. Brussels and Geneva, November 2018 The editors Introduction Background Democratic and civilian oversight of the security sector is now a well-established principle in democracies. The security sector refers to all structures, institutions and personnel responsible for security provision, management and oversight at the national and local levels. A range of state and non-state actors are involved in overseeing the security sector to ensure that security providers act in an accountable, transparent and effective manner within a framework of rule of law and respect for human rights. These actors include the executive, judicial authorities, parliaments, specialized statutory institutions (for instance ombuds institutions, supreme audit offices or national human rights institutions), as well as civil society organizations and the media. While each oversight actor fulfills a particular function in the oversight system, parliaments have a crucial role, having the ultimate ‘democratic legitimacy’ and the extensive oversight powers and competences that come with it. Although the mandate and scope of parliamentary oversight vary in each country, parliaments usually carry out five main functions with regard to security sector governance and oversight: (i) Legislative function: reviewing, amending, drafting and adopting legislation regulating the security sector, (ii) Budgetary function: scrutinizing, approving, rejecting or amending the budget, including security-sector-related budget items, (iii) Oversight function: monitoring the policies and activities of security sector agencies, (iv) Elective function: vetoing or approving top appointments within the security sector, (v) Representative function: providing a public forum for debate on security, and facilitating political consensus through dialog and transparency.1 In order to carry out these functions effectively, parliamentarians should have access to all information necessary to fulfill their oversight duties. By way of example, without unhindered access to and review of the files, including classified information, held by intelligence services, parliamentarians would not be able to assess whether the services are acting in line with laws and government policies. Over the last decades, the international community has increasingly emphasized the importance of access to information by oversight bodies. Following consultations with more than 500 experts across 70 countries, the Global Principles on National Security and the Right to Information (The Tshwane Principles) were launched in 2013. The Tshwane Principles established international normative standards on legal procedures for information 1 DCAF, SSR Backgrounder–Parliaments (DCAF: 2017) 1 classification, as well as access to and handling of classified information by oversight bodies, including parliaments. Since their launch, the Tshwane Principles have been endorsed by the Parliamentary Assembly of the Council of Europe as well as the European Parliament.2 More recently, the Council of Europe (CoE) Commissioner for Human Rights called on the member states of the CoE to: “Guarantee that all bodies responsible for overseeing security services have access
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