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Intelligence in a Constitutional Democracy

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Intelligence in a Constitutional Democracy 1 2 TABLE OF CONTENTS Page FOREWORD 7 EXECUTIVE SUMMARY 9 LIST OF ACRONYMS 24 1. INTRODUCTION 25 1.1 Introduction 25 1.2 Context of the Commission’s establishment 26 1.3 Terms of reference 27 1.4 Content and style of Report 29 1.5 Activities and methods of the Commission 30 1.6 Overview of the civilian intelligence community 35 1.7 Acknowledgements 43 2. KEY PRINCIPLES AND PERSPECTIVES ON SECURITY 44 AND INTELLIGENCE 2.1 Introduction 44 2.2 The challenge of intelligence services in a democracy 45 2.3 The primacy of the Constitution 46 2.4 The rule of law 49 2.5 Non-partisanship and promotion and respect for rights 50 2.6 National security 52 2.7 External control and oversight 55 2.8 Internal controls and institutional culture 58 2.9 Transparency and public discussion on intelligence 60 3. THE WHITE PAPER ON INTELLIGENCE 63 3.1 Introduction 63 3.2 Scope of the White Paper 64 3.3 The definition and purpose of intelligence 65 3.4 Democracy and the rule of law 66 3.5 A holistic approach to security 67 3.6 Overall assessment of the White Paper 68 3.7 An overly broad domestic intelligence mandate 71 3.8 Recommendations 75 3 4. MINISTERIAL CONTROL AND RESPONSIBILITY 77 4.1 Introduction 77 4.2 Constitutional provisions 78 4.3 Powers and functions of the Minister 79 4.4 The supply of intelligence to the Minister and the President 84 4.5 Authority for tasking the intelligence services 93 4.6 Dismissal, suspension and transfer of a Director-General 94 4.7 Adequacy of ministerial regulations and directives 96 4.8 Ministerial accountability and ministerial abuse of power 99 4.9 Recommendations 102 5. THE INSPECTOR-GENERAL OF INTELLIGENCE 108 5.1 Introduction 108 5.2 Functions and powers of the Inspector-General 109 5.3 Refining the mandate of the Inspector-General 113 5.4 Increasing the budget of the OIGI 116 5.5 Recommendations of the Legislative Review Task Team 116 5.6 The Inspector-General’s role in the intelligence crisis of 2005/6 121 5.7 Recommendations 123 6. MANDATE OF NIA 126 6.1 Introduction 126 6.2 The domestic intelligence function as defined in law 127 6.3 NIA’s policy on its intelligence mandate 128 6.4 The problems with an overly broad intelligence mandate 132 6.5 The dangers of political intelligence 137 6.6 NIA’s counter-intelligence function as defined in law 143 6.7 Departmental intelligence 146 6.8 NIA’s recommendations on its mandate 147 6.9 Recommendations 150 7. INTRUSIVE OPERATIONS 155 7.1 Introduction 155 7.2 The constitutional necessity for legislation and safeguards 156 7.3 Constitutional Court judgements on infringements of the right to privacy 160 7.4 The grounds for permitting the use of intrusive measures 164 7.5 Judicial authorisation for intrusive methods 174 7.6 Ministerial approval of intrusive methods 176 7.7 Recommendations 177 4 8. INTERCEPTION OF COMMUNICATION AND THE NCC 180 8.1 Introduction 180 8.2 Background on the NCC 182 8.3 The Inspector-General’s concerns about the NCC 184 8.4 The constitutional and legislative framework 185 8.5 The NCC Interim Policy 189 8.6 The NCC Bill 191 8.7 The importance of judicial authorisation 196 8.8 NIA directive on communications monitoring and interception 198 8.9 SASS policy on interception of communication 201 8.10 Recommendations 202 9. INTERNAL CONTROLS AND POLICIES 204 9.1 Introduction 204 9.2 The findings and recommendations of the Task Team 205 9.3 Comment on the findings and recommendations of the Task Team 211 9.4 A problem of too much regulation and oversight? 213 9.5 Recommendations 216 10. FINANCIAL CONTROLS AND OVERSIGHT 218 10.1 Introduction 218 10.2 Legislation 219 10.3 Failure to publish intelligence budgets and financial reports 222 10.4 Financial controls 223 10.5 Submission of the Auditor-General 224 10.6 Failure to publish the audit reports on the intelligence Services 228 10.7 The absence of a complete audit 230 10.8 Recommendations 231 11. INSTITUTIONAL CULTURE 233 11.1 Introduction 233 11.2 Executive policy on the political norms governing intelligence 235 11.3 Political non-partisanship and non-interference 237 11.4 Civic education programme for the intelligence services 241 11.5 The Inspector-General’s perspective 245 11.6 Bending the rules 247 11.7 The absence of adequate legal expertise 255 5 11.8 Recommendations 256 12. TRANSPARENCY, SECRECY AND PROVISION OF 259 INFORMATION 12.1 Introduction 259 12.2 Constitutional and governance principles 261 12.3 Greater provision of information on intelligence 266 12.4 The Promotion of Access to Information Act 272 12.5 The Protection of Information Bill 274 12.6 Recommendations 277 BIBLIOGRAPHY 280 Appendix A: Commission’s Terms of Reference 286 Appendix B: List of the persons and organisations that made submissions to the Commission 288 Appendix C: List of recommendations 290 6 FOREWORD BY JOE MATTHEWS, CHAIRPERSON OF THE MINISTERIAL REVIEW COMMISSION ON INTELLIGENCE From time immemorial, nations, governments and communities have relied on intelligence as an essential guide to statecraft. It is on record, for example, that the Persian Empire, the Moguls of India and the City State of Venice utilised intelligence in a systematic manner as an essential feature of government. They recorded their concepts of intelligence in texts that are available for study today. It is evident from this history that intelligence techniques have been used in pursuit of different objectives and that statecraft and its instruments are always a reflection of the culture and value system of a given society. Some nations believed in conquest and the creation of empires that exploited the resources of their subjects. Others used intelligence as an instrument in pursuit of wars and military supremacy. Still others sought dominance in trade and wealth creation for themselves and their peoples. With the emergence of modern democratic states, a fundamental change has occurred in the nature of intelligence as an instrument of government. Whereas previously the emphasis was on the security of the state and the survival of the regime, now there is a strong emphasis on human security and human rights and freedoms. In our country the Constitution is the supreme law and it enshrines the principles, culture and values of our democratic state and people. Our constitutional arrangements are not confined to setting out the distribution of power and the means for the peaceful settlement of disputes. The Constitution also reflects the basic values of our democracy and the economic and social principles for ensuring a cultured existence for all our people. Unlike many other jurisdictions, our Constitution provides expressly for the setting up of intelligence services as part of the security system in the country. There are also statutes that describe in detail the role and functions of the intelligence services. Whilst operational techniques of covert collection of information are secret, the rest of our intelligence activities should be open and above board. This reflects confidence that our objectives and policies are ethical, honourable and in accordance with fundamental human rights and freedoms. Our intelligence and other security services are not oppressors of the people but are protectors of their security and well-being. Hence our services can count on the full support of the people. That is not the case in many other countries, where the security services are feared and even hated. 7 What, then, are the ideal intelligence services we are striving for? We envisage intelligence services that are fully conscious and proud of our democratic and constitutional foundations. We expect our intelligence operatives, researchers and analysts to be highly trained and sophisticated. The main function of our services should be the collection of true and relevant information that can serve as a basis for first class decision-making on security. Our intelligence services must be seen to be collectors of information both inside the country and abroad, using human resources and the latest modern technology. They must rely on brains rather than brawn. They must be effective and efficient and deliver quality products superior to those ordinarily available. Our intelligence services are not and must never be another police service with powers of arrest. It is true that the modern trend is to use the special methods of intelligence to assist the police in the realm of combating serious international crime syndicates, but essentially the services must aim at providing information for decision-makers rather than prosecution of criminals. The intelligence services have been given special powers but these powers must be exercised in accordance with legislation, regulations, guidelines and rules. In any democracy it is essential that intelligence services behave in an ethical and lawful manner. In South Africa these matters are considered so important that they governed by the Constitution itself. Intelligence services have the particular misfortune of going unnoticed and unappreciated when they are successful. We wish to record our thanks to and respect for the South African intelligence services and all their members, who make a significant contribution to the security of our country and people. 8 EXECUTIVE SUMMARY Chapter 1: Introduction The Minister for Intelligence Services, Mr Ronnie Kasrils MP, established the Ministerial Review Commission on Intelligence in August 2006. The Commission comprises Mr Joe Matthews (Chairperson), Dr Frene Ginwala and Mr Laurie Nathan. In this Report to the Minister we present our findings and recommendations. The aim of the review was to strengthen mechanisms of control of the civilian intelligence structures in order to ensure full compliance and alignment with the Constitution, constitutional principles and the rule of law, and particularly to minimise the potential for illegal conduct and abuse of power.
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