While executives seem to have no knowledge of what the security agencies do, elected assemblies are even more disconnected from access

The revelations in the Guardian, based on documents leaked by the former United States security official Edward Snowden, that the National Security Agency (NSA) had monitored the phone calls and other electronic communications of at least 35 world leaders and read internet firms’ colossal data stores in addition to monitoring hundreds of millions of telephone calls, have exposed certain facts. These are that even elected heads of government probably have no idea what their respective countries’ security services are doing, that those services seem to consider themselves above any law and not answerable to anybody, and that the elected assemblies which are meant to hold the executive branch of the state to account have completely failed to do anything of the kind in respect of security agencies.

Too little, too late

In that light, the October 28 statement by Senator Dianne Feinstein, Chair of the United States Senate Intelligence Committee, that she is “totally opposed” to the U.S. practice of spying on allies and calling for a “total review” of all countries’ surveillance programmes may be the right thing to say, but until then Ms Feinstein had defended mass surveillance. And the statement constitutes too little and comes too late; it may even become part of what looks like a frantic attempt by the Obama administration to divert attention from other major issues.

The sheer scale of even the known surveillance is breathtaking. For over a decade, the NSA intercepted German Chancellor Angela Merkel’s phone. In one month, the NSA monitored 60 million e-mails of all kinds in Spain. France is also a victim; 70 million French citizens’ phone records were tapped in one 30-day period, and the phones of senior European Union officials were bugged. Relations between Washington and those three EU countries, all NATO allies of the U.S., are now as fraught as they have ever been. Germany and Spain summoned the respective U.S. ambassadors to express their anger. French President François Hollande is collaborating with Ms Merkel on a draft code of conduct for NSA operations in EU.

Needless to say, telecommunications corporates are as deeply involved as the security agencies; they have in fact cooperated willingly. The NSA has directly read the data banks and servers of nine internet firms including Google, Facebook, Microsoft, and Yahoo, to track online communication in its Prism surveillance programme. In the U.K., the IT corporates’ willing cooperation went far beyond legal requirements, and the British Government Communications Headquarters, GCHQ, now fears that publicity over this will hit the corporates’ brand reputations — meaning, obviously, their profits. U.K. law bans profiting from a crime.

Among the security bodies, the GCHQ has fought very hard to prevent its methods from being admitted as evidence in court, not because there is an intrinsic threat to security but because the agency fears above all that it would then face legal challenges over the privacy clauses in the Human Rights Act; it already faces potential challenges in the European Court of Human Rights. Its record on this is hardly inspiring; in 2009, together with the other agencies MI5 and MI6, it succeeded in blocking the Labour government’s attempts to make its methods admissible in court. As it is, the CIA shares intelligence with MI6, but the latter is, according to former British Cabinet Secretary Lord Butler, “perhaps” not permitted to share it with other British bodies, presumably including the U.K.’s sovereign body, Parliament. Other security agencies, too, may have formed their own international networks far away from the nuisance of democratic accountability.

Matters could, however, have been even worse, at least on present evidence. Former MI5 officer Peter Wright, who published his memoirs in Australia to avoid prosecution by the U.K., revealed in the late-1980s that during the 1970s, MI5 had systematically tried to destabilise Labour governments. Unlike Mr Snowden, who has always said he does not want to be a citizen of a country which spies illegally on its own citizens, Mr Wright apparently wrote his book in revenge over a pension row with his former employers.

Damage-limitation exercise

Yet, instead of admitting their errors and accepting genuine democratic oversight, security agencies around the world are trying desperately to ward off reform and make sure that as few of their illegalities as possible see the light of day. On November 11, Barack Obama is to receive a review of NSA activities, but the review panel includes former security officials, and only part of its contents are likely to be made available to Congress, despite Ms Feinstein’s call for the Senate Intelligence Committee to be “fully informed” about the intelligence services’ work; Alan Grayson, a member of the House of Representatives, calls current Congressional oversight of the NSA “a joke.” In the U.K., GCHQ has used politicians well-disposed to it to defend the security service in media interviews. In any case, most of the promises of reform only address the question of how the U.S. agencies behave towards Washington’s allies, and the forthcoming review could well be no more than a damage-limitation exercise.

Furthermore, the politicians’ own conduct over security agencies is hardly a model of democratic transparency and accountability, and is riddled with contradictions. The Senate Intelligence Committee is fiercely supportive of the NSA, and British Prime Minister David Cameron has said that public debate on the issue could harm British national security — even though U.S. National Intelligence director James Clapper himself said a public discussion was needed. In Germany, Ms Merkel has been derided for not condemning the NSA’s activities when the revelations emerged, and for getting angry only when it turned out that the U.S. had tapped her own phone conversations for 10 years or more.

The increasingly important — and severely neglected — political issue in all this, however, is the apparently complete collapse of executive control over and legislative oversight of intelligence and security departments in any number of impeccably democratically constituted countries. While the executives concerned seem to have or to want no knowledge of what the security agencies are doing or of how they do it, elected assemblies are apparently completely disconnected from any serious or substantive access to the security agencies, which as we now know routinely break the law and spy on the very citizens who elect the representatives themselves. In some countries — India is one — there is no procedure at all for legislative oversight of intelligence bodies; the Intelligence Bureau (IB) used to report solely to the Prime Minister, and did not start reporting even to the Home Minister until P. Chidambaram was appointed to that post in November 2008. There seems to be no question for the foreseeable future of the IB’s being accountable even to an appropriate committee of Parliament.

This goes far beyond the usual calculations of the risks of excessive surveillance against the possible benefits in terms of security. It is in fact an issue of a different kind, because in what may be an inevitable process, the security agencies themselves — on the evidence — come to believe that they are unquestionably right, and that they are immune to all accountability. That such agencies knowingly get involved in political suppression is no secret; even the officially sanctioned history of MI5 documents that body’s part in subverting socialist movements in France in the 1920s, and in co-opting private businesses for espionage on behalf of the U.K., not only against the Soviet Union but also against independence movements in the then British Empire.

It is therefore no surprise that today’s security agencies, with no political check upon them and judicial restraint apparently easily bypassed, come to see all humanity as not only suspect but automatically guilty. They may well lose all sense even of the possibility of criteria for justified and legitimate suspicion; to them, again on the evidence of the agencies’ conduct, all seven billion of us are guilty because we exist. This looks very much like a doctrine of Original Sin, but the agencies are not high priests of the Spanish Inquisition. They are rather a modern-day cyber-Taliban. It may be impossible to tame this kind of monster, but it can be shackled — though only by transparent and open democracy.

arvind.sivaramakrishnan@thehindu.co.in

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