Surveillance by intelligence services – Volume II: field perspectives and legal update
FRA was not able to interview any intelligence service
representatives during its fieldwork. 218 However,
other research participants – mostly representatives
of oversight bodies, but also from the executive –
discussed examples of control practices implemented
by intelligence services. They mainly argued that
expert body oversight contributes to the development
or improvement of internal safeguards within the
intelligence services to act lawfully. The relationships
with the services were described as ‘cooperative and
not adversarial’. For example, intelligence services ask
oversight bodies to be present in certain situations,
such as to witness data destruction. The services also
sometimes share material that might not be directly
related to the specific oversight function but could
still be relevant for the oversight bodies. Respondents
also noted that oversight helps ‘to ensure the greater
legitimacy of the records held’, and emphasised the
importance of internal controls through ‘a strong legal
department within the services’. They viewed the
abovementioned practices as contributing to the clarity
and, thus, the legitimacy of the intelligence services.
“We also say how important it is for services to have
a strong legal department within the services. It is not only
for the outsider to be critical, but for inside.” (Expert body)
“Also, ‘behind the scene’ we are doing a lot for fundamental
rights, and ‘behind the scene’ we are helping the agencies
to improve their practices, pointing to the issues that we
consider disproportionate, unnecessary etc.” (Expert body)
7.2. Control by the executive
Strictly speaking, control by the executive is not part
of the oversight system because it is not independent.
However, the nature of the involvement of the
superintending governmental department concerned –
whether Chancellery, Foreign, Interior or Defence
Ministry – contributes greatly to the effectiveness
of intelligence services’ accountability systems. The
intelligence services are part of the public administration
and, as for every administration and public service,
effective control stems from the government itself.
The relevant governmental departments can supervise
intelligence services in a variety of ways: by establishing
their policies, priorities or guidelines; by nominating
and/or appointing the service’s senior management; by
formulating the budget that parliament will ultimately
vote on; by authorising or approving specific surveillance
measures; or by approving cooperation with other
218 The section on social fieldwork methodology in Annex 1
presents information about the interviewees, number
of interviews during which specific thematic headlines
were discussed, quoting conventions, and other related
information.
60
services. As a former director of the French intelligence
service (DGSE) puts it: “political control is, first of all, [...]
hierarchical control because the services do not work
in vacuum but under the authority of the executive”.219
In the United Kingdom, the intelligence agencies operate
by law under the authority of the Secretary of State (for
Foreign Affairs for the Secret Intelligence Service and
GCHQ, and for Home Affairs for the Security Service),
supported by dedicated teams of policy officials with
full access to the work of the agencies. In the Cabinet
Office, the National Security Secretariat coordinates
policies – for example, towards overseas liaisons – and
prepares and scrutinises budgets; the Joint Intelligence
Committee provides strategic intelligence assessments
and recommends intelligence priorities.
In France, a June 2017 reform changed intelligence
coordination within the executive. The National
Intelligence Council (Conseil national du renseignement)
has the specific mandate of setting strategies and
priorities for the services. It includes the president and
the prime minister, ministers, the heads of specialised
services if required by the agenda, and the national
intelligence and fight against terrorism coordinator
(coordonnateur national du renseignement et de la lutte
contre le terrorisme). The coordinator is responsible
for coordinating the actions of the intelligence
services and ensuring efficient cooperation among
them. The coordinator also transmits and checks the
implementation of the president’s instructions to
the relevant ministers. Additionally, the coordinator
coordinates and develops the initiatives taken by France
concerning European and international cooperation
in the fields of intelligence and the fight against
terrorism. The coordinator proposes to the president the
intelligence priorities in the fight against terrorism.220
In Germany, the reform of 2016 did not change the
Federal Chancellery’s supervising role over the work of
the federal intelligence service (BND) or the coordinating
role over the work of the federal intelligence services.221
The NSA inquiry committee assessed the Federal
Chancellery’s capacities when controlling the BND. It
supported the views of the PKGr calling for adjusting
the Federal Chancellery’s supervisory control to
allow it to properly perform its controlling tasks. 222
In the meantime, the Federal Chancellery staff has
significantly increased to take into account the request
adjustments. Still the following quote by a Federal
219 France, DPR & CNCTR (2017), p. 14 [FRA translation].
220 France, Defence Code (Code de la défense), Art. R.* 1122-7,
Art. R.* 1122-8 and Art R.* 1122-8-1.
221 See Germany, Federal Parliament (Deutscher
Bundestag) (2017b), p. 536 and following.
222 Germany, Federal Parliament (Deutscher
Bundestag) (2017b), p. 1243.