Who watches the watchers? In their recently edited book entitled Intelligence Oversight in Times of Transnational Impunity (Routledge, 2024, available in Open Access), Didier Bigo, Emma Mc Cluskey and Félix Tréguer share a critical and multidisciplinary perspective on the workings of Western intelligence and intelligence oversight over time and space. They answer our questions on the various aspects developed in the volume, the first of which is intelligence oversight! Read the interview below, and access the volume in open access.
Can you briefly define the notion of intelligence oversight for the non-specialists?
Intelligence oversight is traditionally the name given to the various mechanisms by which intelligence services are made accountable to an authority that can ask them to explain what they have done in secret and whether it was in accordance with their missions, objectives and whether they used appropriate (proportionate) means. Most democratic regimes have created specific bodies within the government to oversee their intelligence services and review their activities. Some of these can only report, not control or sanction. They may refer to the head of the executive branch or its services, or they may report to parliamentary institutions and act as a special committee of the legislature. Some have the power to liaise with the judiciary and go public, but this is rare. Another way to ensure oversight is to create a specific body, an administrative authority independent of the government, composed of (former) judges, intelligence officers and high-tech professionals. Simply declaring that such an authority is "independent" in its name is not in itself proof of its independence. An "independent" authority must ideally be independent of the executive branch, be able to act without the material support of the intelligence services themselves - at a time of its own choosing (ex post, but also in time or even ex ante) - and have effective powers to report and transmit information to authorities (beyond the executive branch) in such a way that the intelligence services can be sanctioned if they have acted inappropriately, beyond their official mandate and beyond the limits of what democratic regimes are allowed to do.
Cover of Intelligence Oversight in Times of Transnational Impunity. Who Will Watch the Watchers? Routledge, 2024.
Of course, no country accepts the same limits and most claim that the rule of law and international agreements do not apply to them, especially when they are acting against foreigners in a foreign country. The book discusses these attitudes and details cases of apparent misconduct by secret services that endanger the distinction between democratic and authoritarian regimes, including assassinations of foreign leaders, surveillance of opposition leaders and civil rights movements, extraordinary rendition and torture by proxy, large-scale surveillance of Internet users around the world, manipulation of electoral processes, and actions in favour of the specific interests of a company or a politician, thereby endangering national security.
In addition to these official oversight bodies and mechanisms, some chapters propose to consider the role of "civic" oversight, and to consider NGOs, activists, whistleblowers and investigative journalists as triggers for effective control of the activities of the services and the reasons for the decisions of the executive, for which both are responsible. The dissent of some staff in the bureaucratic institutions thus has a scandalous voice that cannot be easily silenced by higher authority. This is crucial when coalitions of services operate transnationally and refuse to allow their own national oversight to have a say in their secret foreign affairs.
You begin the general introduction to the volume with the statement that “intelligence oversight is still an understudied area of research”. Could you comment on this statement?
For traditional "intelligence studies", the study of oversight is peripheral and even seen as an attack on the efficiency and effectiveness of intelligence services, which need to be protected from public knowledge in order to "do what they have to do". Secrecy is constructed not as a relationship shared by different individuals protecting their inner knowledge from another group, but as a sacred space of "sovereignty" that cannot be evaluated by the democratic criteria of political life. Debate is therefore excluded from the outset and reduced to formal rules and mechanisms to be accepted by the intelligence services. Intelligence oversight is almost never a form of effective control, but rather a common goal to achieve efficiency through dialogue between the intelligence services and the body responsible for oversight, which implies mutual "trust". Human rights and international law scholars have challenged this approach coming from intelligence studies, but often by mimicking other administrations' forms of oversight over intelligence services and failing to discuss the specificity of state secret and surveillance. For some of the authors of this book, effective oversight only begins when the authors and decision-makers of certain acts are held accountable in order to prevent their total impunity, and when formal rules of accountability, proportionality between the acts and their objectives, and a degree of transparency regarding the public's right to know what officials are doing are applied in the procedures. This implies also that sanctions are in place against the perpetrators of illegitimate actions, which means that in a democracy there are limits to secret violence, including surveillance, and that they need to be made explicit. The book shows the conundrum at stake, its historical steps and the political imaginary of the different actors. It proposes to think about the difficulties of institutional oversight, the alternative of civic control, and insists on the necessary transnational dimension that authentic oversight imposes.
Why is there a need for further research into intelligence, and what is your approach to such an endeavour?
Data, intelligence. Photo by Przemek Klos for Shutterstock.
This is an important element. From the very beginning, we decided to take a transdisciplinary approach, bringing together historians of technology, sociologists, political scientists, specialists in intelligence and international relations, and political theorists of democracy, in order to overcome the disciplinary view of the problem of intelligence oversight in democratic countries. We worked together for five years under the GUARDINT programme, focusing on the relationship between democratic practices and the violence of state agents, both in terms of violence and surveillance, whether these acts take place inside or outside national territory or in cyberspace. Three teams of colleagues from Germany, the United Kingdom and France, joined by specialists from Canada, the United States and New Zealand, have joined forces to produce this book, as well as a final report and a website containing, on the one hand, an open database of legislation, court decisions on intelligence and national secrecy in relation to human rights and fundamental freedoms and the principles of the rule of law, and, on the other hand, a timeline of the most important interventions by journalists and whistle-blowers denouncing certain practices and their impact on policy and legislation.
The contributors to this volume come from a wide range of disciplines and academic backgrounds but are united by a common goal. Could you tell us a little more about this?
The strength of this approach, called International Political Sociology (IPS), has been to develop a network of researchers interested in renewing the study of international relations and political violence. From its inception in 2004, it has been a transdisciplinary approach in which different disciplines are questioned about their own limitations and blindness by being confronted with different perspectives. The journals IPS and, more recently, PARISS have shown how this approach can be applied in practice, describing a different art of writing in the social sciences. Collective works and the results of large international programmes are preferred to essays by a single author. The GUARDINT research has demonstrated the value of this approach for studying the role of the secret services of democratic states and their coalitions on the world stage, questioning the limits of what is legitimate and what is not, that is, questioning the sphere of impunity in which they live.
Which countries are examined in the book and why did you focus on them?
We have focused on the coalitions of secret services based in democratic countries because they are the ones that theoretically accept that their actions have limits due to the nature of the regime and that they have to justify the validity of their decisions, which means that some form of oversight cannot be rejected, even if the importance and power of that oversight is disputed. The FIVE EYES terminology has been widely used to talk about the various coalitions of intelligence services between the United States, the United Kingdom, Canada, Australia and New Zealand. Many other countries have also participated, with varying degrees of intensity, in the exchange of secret information and operational actions, notably Germany, France and Sweden, but also most other EU countries.
The disclosures of extraordinary renditions carried out by the CIA and its accomplices, and of the large-scale surveillance of Internet users and social networks performed by the NSA in collaboration with many signal intelligence agencies of democratic regimes, sometimes without the knowledge of the courts or the legislature, let alone the public, have shown that the activities of these services intrude not only into the lives of a few criminals, but into the lives of millions human beings. The recent scandal over Pegasus and the sale of spyware by private companies targeting journalists and human rights lawyers has also shown that the issue is not only the responsibility of national intelligence services, but also of many hybrid forms of public-private enterprises where the private sector can impose its own interests.
German Federal Intelligence Agency, Mitte/Berlin, 2021. Photo by Mo Photography Berlin for Shutterstock.
For the book we have chosen to look at the impact of these practices on the different targets and victims of these practices in the UK, Germany and France, but we have also asked colleagues from the United States and New Zealand to contribute to show the variations in cooperation between secret services, their acceptance or lack of oversight, and we have presented with human rights lawyers the possibilities for reducing the case of impunity for actors who hide their own interests under the blanket of national security. This book is therefore not a conclusion, but a first step towards reconciling the great questions of violence on the world stage, democracy and describing the life of the transnational guilds of different secret services.
We envisage new research on this crucial topic and can be contacted at toces@proton.me if researchers want to know more or join our efforts.
Interview by Miriam Périer, CERI.
Table of contents
Introduction
DIDIER BIGO, EMMA MC CLUSKEY, AND FÉLIX TRÉGUER
1. From radical contention to deference: A sociogenesis of intelligence oversight in the United States (1967–1981)
FÉLIX TRÉGUER
2. Transformations of the transnational field of secret services: The reasons for a systemic crisis of legitimacy?
DIDIER BIGO
3. The code of silence: Transnational autonomy and oversight of signals intelligence
RONJA KNIEP
4. From abuse to trust and back again: Intelligence scandals and the quest for oversight
EMMA MC CLUSKEY AND CLAUDIA ARADAU
5. An analysis of post-Snowden civil society accountability
BERNARDINO LEÓN-REYES
6. Transversal intelligence oversight in the United States: Squaring the circle?
ARNAUD KURZE
7. The anatomy of political impunity in New Zealand
DAMIEN ROGERS
8. Liberty, equality, and counter-terrorism in France
FRANÇOIS THUILLIER
9. Intelligence oversight collaboration in Europe
THORSTEN WETZLING
10 Torture and security service mass surveillance
ELSPETH GUILD AND SOPHIA SOARES
Didier Bigo is Emeritus Professor at Sciences Po Paris since 01 September 2023, and Research Professor of War Studies at King's College London. He is also director of the Centre d' Etudes sur les Conflits, la Liberté, la Sécurité (CECLS), Co-
Emma Mc Cluskey is a lecturer in Criminology at the University of Westminster, London. She is the author of From Righteousness to Far Right; An Anthropological Rethinking of Critical Security Studies (2019) and co-editor of Security, Ethnography and Discourse (2022).
Félix Tréguer is an associate researcher at the CNRS Center for Internet and Society and a former postdoctoral fellow for the GUARDINT project at CERI-Sciences Po. He is a founding member of La Quadrature du Net, an advocacy group dedicated to the defence of human rights in relation to digital technologies.
