Ukraine has at last decided to take into account the experience of civilized countries and is making yet another attempt to pass a law on the activities of its intelligence services. The bill, to be discussed by Verkhovna Rada, will most likely be called On the Intelligence Bodies of Ukraine.
The secret services themselves have been speaking about the need for this kind of document for five years. And there have been more than enough various drafts. But the matter never came to making a fundamental decision on the final content of the law. Each time something was missing, either the spirit of resoluteness or that of compromise, for it must embrace rather a complex combination of the interests of the individual, society, agencies, and the country as such. Now a new attempt to dot the i’s. The parliamentary Committee on Defense and State Security has already planned to meet on June 20 to discuss the “intelligence bodies” and the relevant law. What is being suggested and can be expected this time?
BETWEEN COMPETITION AND HARMONY
The military happened to be the first to raise the question of a law on intelligence services — almost immediately after the then President Leonid Kravchuk issued a decree on September 7, 1992, on the formation of the military strategic intelligence directorate within the Ministry of Defense. The logic was clear: the country’s first line of defense begins in the heads of analysts, not in the trenches. A year later, the secret service was revamped: Defense Ministry strategic intelligence officers and experts of the General Staff intelligence directorate were united under the General Directorate of Military Intelligence.
Since then, this country’s security has been taken care of by the intelligence agencies of the Security Service, State Border Security Force, and the Ministry of Defense, the latter being very green compared to its counterparts. “But we don’t lag behind them!” the military claim.
They cite the attitude of the Supreme Commander-in-Chief to intelligence. Leonid Kuchma said at the 1999 summing-up meeting of the Ministry of Defense board, “Military intelligence has become one of the main special bodies of our state,” and that in many cases its information “not only essentially differs from that which comes from other sources but is also an alternative.” Thus there were ample grounds for gratitude.
Those in the know claim that when B-52 strategic bombers took off from RAF Fairford, heading for Kosovo, it was military intelligence officers who were the first to report this to the top military and political leadership. Their conclusion that NATO was going to bomb Yugoslavia came true that evening. Only the Ministry of Defense intelligence service was capable of telling the Cabinet meeting exactly what was going on and what was to be expected. Then there was the 78- day conflict in Kosovo. This conflict was and still is being watched by the defense intelligence, as are other sources of tension near Ukraine. Naturally, this is only one direction of its work which also embraces, as it is now known, assistance in the prevention of international terrorism, drug trafficking, and international crime.
This is one — the practical — side of the matter. The other — juridical — does not look so optimistic. The existence and activities of military intelligence in Ukraine is in fact only governed by internal department regulations on intelligence and a series of presidential decrees. There are no legislative decisions which would ensure all the necessary powers to enable the Ministry of Defense General Intelligence Directorate (HUR) to make full use of all its potential capacities. This is one of the reasons why the military so badly need a legislative document on intelligence matters, including those of HUR, which would also vest the new military intelligence service with the right to ensure its own security. This is done with both the CIA and Russia’s GRU. The arguments are simple: access to confidential sources of information should be restricted to the maximum. But this is only part of the problem.
If there are several intelligence agencies in a country, there should be a clear-cut division of their responsibilities. It is, of course, simpler not to divide but to unite all of them in one whole. For example, there are countries where only the ministry of defense intelligence service is in charge of the whole complex of external security. However, one big intelligence service for all does not yet mean it is effective. It is the existence of independent sources of information and the analysis of the latter that makes it possible to make the best decisions. The shortcomings of some are compensated for by the advantages of others. In any case, as they put it, than can never let their guard down. This is an axiom. The number of intelligence services in various states varies from two to 13, as, for example, in the United States.
But the main thing is that the law should regulate the legal aspects of intelligence activities and create conditions for effective control over them by the authorities and society, irrespective of what department — the Security Service (SBU), Ministry of Defense or State Border Security Force — is in question. For a secrete service can either be the guardian of democratic gains or turn into an all-purpose repressive machine. To paraphrase, from the sublime to the sordid is but a step. For this reason the overwhelming majority of European countries cannot do without a law which sets out in detail all the subtleties of the relationship. The only difference is whether there is one law for all intelligence agencies or a specific one for each.
TEXT OF THE BILL
The draft law On the Intelligence Agencies of Ukraine allots each intelligence body an “invisible front-line sector” of its own. SBU is to take care of this country’s state security, and the security of diplomatic representations, consular, and other institutions abroad. HUR is to be in charge of what concerns the defense of this country, the protection of its sovereignty and territorial integrity from outside threats, and military and military- technical cooperation with other states. The State Border Security Force intelligence department is to ensure the protection of the border and the sovereign rights of this country in its economic zone and the continental shelf. All other state-run, non-governmental and private organizations are forbidden to carry out intelligence activities (for this requirement to be workable, one must make a detailed definition of what intelligence activity and information is. This is rather problematic. For example, if a commercial firm collects information on its rivals, is it unlawful or not?).
In any case, it will be impossible to avoid conflicts of the interests and actions of representatives of the three intelligence agencies. This goes without doubt. Here the draft says that to coordinate joint efforts, the President, who identifies this country’s intelligence priorities, “may set up a consultative, coordinating, or any other auxiliary supervisory governmental body.” On the one hand, the President formally already has a structure, the National Security and Defense Council of Ukraine, to coordinate the activities of executive bodies in the sphere of national security and defense. On the other hand, these lines in the draft can be interpreted as a gentle hint that there may be an attempt to revive the idea of a presidential intelligence committee as is the case in the US intelligence community controlled by the President through the Foreign Intelligence Advisory Board. The board director is like an orchestra conductor, responsible for harmony in the activities of US intelligence services. Now the North Atlantic community tries to persuade new alliance members and other states planning to join NATO to reflect this approach in their legislation.
In Ukraine, the Intelligence Committee under the President was established in 1993. In 1997, for the first time in our history, Verkhovna Rada approved a consolidated budget for the intelligence services as a separate item. But at the last minute the consolidated budget failed to include, no one knows why, expenses for SBU intelligence activities. And in 1999, the Committee was disbanded altogether.
TEST OF RATIONALITY
Now for other details. As is known, in theory, intelligence services are exclusively oriented toward the international vector. And the bill states that the intelligence bodies should not be used in any power struggle in Ukraine. In other words, the draft in fact admits that the secret services might perform multiple role functions, which are not to be restricted legislatively. The question thus arises of how not only the executive but also other branches of government will control the intelligence bodies.
The Prosecutor General is to ensure that the secret services play by the rules in this country’s legal field. But even he cannot lay claim to the holy of holies, i.e., information about those who do or did cooperate with the intelligence bodies. (However, if you ask our intelligence officers about the experience of the unified Germany, where the Stasi archives helped launch a witch-hunt, they will say in reply that there all the written and unwritten laws which had been in the making for centuries had been violated).
The main thing in parliament’s controlling arsenal is that Verkhovna Rada can pass intelligence laws and amendments thereto, discuss intelligence-related issues, and check, if necessary, via the Auditing Chamber, how the secret services spend money (of course, if members of this chamber’s ad hoc group are cleared to get access to official secrets). It is difficult to say if this is sufficient: the European experience in this respect is very versatile. In France, for example, parliament is not authorized at all to put secret-service-related issues on the agenda or to set up any commissions to this effect. But in Germany, there is a special law on the parliamentary control of intelligence activities: intelligence officers are shadowed by special commissions. Thus what matters is not the pattern but the stability of traditions based on a simple idea: secrete services in the interests of the state and its citizens, not the state in the interests of the secret services.
Debate on the bill On Intelligence Agencies will show what will be the guiding principles of the nation’s intelligence network based on the theory of checks and balances along with the healthy competition effectively working in other countries. However, only time will tell whether Ukraine is able at all to pass this test for pragmatism and rationality, which other countries have already weathered.
