March 25 marked 14 years since the Law on the Security Service of Ukraine (SBU) came into force. Only a few minor amendments have been made to it since then. I left the SBU in 1994 and since then have observed it while serving in various capacities: first as prime minister, then as chairman of the Parliamentary Committee on National Security and Defense, later as the chairman of the National Security and Defense Council, and eventually as defense minister. Therefore, I am able to assess the current security service and the corresponding law from different perspectives. First of all, it is important to realize that the process of modernizing the Law on the SBU along with the structure, functions, and manpower of the security service must not be tied to the exclusive position of any one politician or political party. This question should be the subject of fundamental televised debates among politicians, experts, and scholars, not just a single roundtable discussion. There is nothing to fear, as all socially sensitive methods of SBU operations are outlined in the Law on Operational Investigation Activities. Further deliberations in the Parliamentary Committee on National Security and Defense and parliament itself will have to be conducted only after such debates.
Public debates of a modern mechanism for monitoring SBU activity are crucial. Today it is much more important to make legislative provision for meaningful monitoring of the SBU than to amend the Law on the SBU itself.
Countries with developed democracies have long implemented effective mechanisms for monitoring special services, and such mechanisms have been justified. It would not be difficult to consult these countries and implement their mechanisms in a resourceful manner. This is not to say that the SBU should become open to outside interference in the activities of its operational and operational-technical divisions.
First, I am deeply convinced that if Ukraine were currently employing the Swiss or German system of monitoring SBU activity, there would have been no scandals involving wiretapping of highly-placed political figures. Second, decentralization of the service should not be carried out in a rushed fashion. Indeed, in many countries, including Russia, government communications are provided by special services.
However, before such a decision can be made in Ukraine, everything must be examined carefully. Things are not so simple in our context. It might be possible to do this in the future, but not in a rush.
Third, there is no doubt that the SBU should be relieved of the function of combating organized crime the way that it is happening now. That is, the function of the law enforcement agency in its present format is not quite appropriate for a special service. At the same time, we should not go to the opposite extreme. Such dangerous crimes as the trafficking of illegal arms, both conventional and nuclear, missile and nuclear technologies, human trafficking, large-scale drug trade, and terrorism, especially international terrorism, appear not to have anything in common with ordinary counterintelligence activity of a special service.
But in reality this is not the case. No one except the SBU can combat these crimes as effectively. Moreover, such crimes are usually committed by international organized crime groups. Large-scale schemes in the spheres of the economy, finance, and environment can be destructive to the point of becoming a threat to national security. They cannot be countered without the involvement of the SBU.
Today Ukraine still faces the so-called “neglected problems” and highly sophisticated criminal schemes that the current law enforcement services are unable to foil. This is not their fault. The problem lies in the structure of the existing system. In concert with the Ministry of Internal Affairs, the SBU could start tackling these complex transnational schemes, but they would hit the same wall again. Therefore, in excluding the law enforcement function from the functions of the SBU, it is necessary to determine in a profound and comprehensive manner who would take charge of resolving these problems. Should it be the interior ministry? This is not ruled out. But again, this would require a profound reconstruction of this ministry along with significant improvements to its functionality and legislation. This is a long road.
This question will become especially relevant as the country comes closer to creating a national investigation service similar to the FBI. More than one year has elapsed since President Yushchenko announced his decision to create this structure. This year saw virtually no relevant discussions among professionals with the participation of foreign specialists. During the election campaign the president announced that he had issued instructions to start preparations for the creation of such a structure, provisionally named the “National Service of Investigations” (NSI).
However, even with the noblest intentions and a scrupulous approach on the part of those charged with implementing this concept, it will take at least two years before the NSI can start functioning. This means that there will be a gap of two years. During this transition period the situation can be improved by temporarily entrusting the function of a national coordinating and executive body to the Security Service of Ukraine and specifying this in a corresponding presidential order.
Organizing cooperation and coordinating the efforts of all law enforcement agencies in combating organized crime in the highest echelons of state power is the most important and complex factor of this problem. I do not mean to say that this should be done by a coordinating committee, the kind that was set up a number of times under President Kuchma. This would have to be a small group of three or four experts capable of so-called integral thinking.
They should be “silent clams” who do not give interviews to anyone except the president of Ukraine and keep privileged information secret for 20 to 25 years after leaving office. One of them should necessarily be a specialist in large-scale financial and economic mechanisms at the macro level. He should not necessarily be familiar with the way the SBU or the Ministry of Internal Affairs function. But the other members of this group of coordinators must.
But let us return to the problems of the SBU. Ukraine’s security operatives are well aware of the damage done by frequent replacements of the SBU leadership and structural transformations. In 1924 Edgar Hoover was appointed FBI director at a time when crime was rampant in the US. He retired from this post at the age of 72, having occupied the post of FBI director for 48 years. Many US presidents came and went, Congress was changed repeatedly, but he remained at his post. Recent FBI directors and CIA administrators also served under different presidents.
Someday things will happen the same way in Ukraine. Yet judging by our reality, this will not be the case any time soon. Every succeeding president treats the SBU and its leadership with a significant degree of mistrust. Unfortunately, their mistrust is not unjustified, and this is not always the fault of the SBU leadership alone.
Again, the cause of this is the absence of effective public control of the service’s operations. The current Ukrainian president is not certain that the SBU did not assist his former opponent during his election campaign. He is not certain that it will not become a fifth column during his presidency. The same cause is at work here. Thus, effective control of the SBU is the key to securing the viability of this structure’s administration and, by inference, to securing trust in the SBU on the part of the president, parliament, and society.
Taking into account the fact that from now on the SBU head will be appointed the way how he was appointed in 1991, I would like to offer some reflections on this question.
The process of drafting the bill on the SBU was not easy. Members of the parliamentary commission charged with creating the SBU represented a variety of political forces. Extremely complex and heated debates accompanied the formulation of the structure and functions of the various SBU divisions, the drafting of the bill, and appointment of key personnel. Different commission members had different visions of the SBU and the law regulating it.
After parliament appointed me to the post of SBU chairman in November 1991, on the following day we faced the problem of appointing the service’s administrative personnel and its regional departments. Commission members obtained access to the archives of the Personnel Department of the former KGB. Each candidate for an administrative post was thoroughly interviewed after his personal files were scrutinized. However, the commission questioned me earlier about my motives for recommending individual candidates. I sometimes spent more time reporting to the commission about the reasons for my choice of a particular candidate than it took the commission to interview this candidate.
Commission members sat at the presidium in the session hall of the collegium of the former Ukrainian SSR. For many candidates this created a complex psychological situation. It was a long and complex process.
Work on the law on the SBU followed a similar routine. Each article sparked heated debate. Some articles were discussed for half a day at a time. The commission debated long and hard whether to publicize lists of KGB agents. There were bitter disputes over lustration. A large number of commission members insisted that no former KGB personnel should be appointed to the SBU. Moreover, all former KGB agents were to retire with a civilian pension regardless of their functions within the KGB system.
Several sessions of this commission ended without results. Someone proposed a principle of consensus in the commission’s work, which significantly complicated its work.
Within a short period of time I managed to familiarize myself with the laws governing special services in leading European countries and the US. The head of the taskforce, the late General H. K. Kovtun, also had a solid knowledge of European legislation. This helped us get through especially tough debates.
We managed to neutralize the ultra-radical approach of some parliamentarians, some of whom agreed with our approach. It was largely thanks to a balanced approach to creating the SBU that Ukraine managed to avoid bloodshed in the early years of independence.
On the eve of the bill’s deliberation in parliament I added one sentence to Article 35 of the draft: “They (SBU personnel) shall refuse to carry out any orders or instructions that run counter to current legislation. They shall face disciplinary, administrative, and criminal responsibility for illegal actions or failure to act.”
None of the commission members objected to this addition. However, my colleagues subjected me to harsh criticism. I sensed that for some politicians and ranking officials the temptation to use the SBU as a tool in political games would be real, and that is indeed what happened. I think this addition to Article 35 helped many honest SBU operatives avoid becoming involved in conspiracies. I myself sensed this pressure while serving as the head of the SBU.
The passage of the Law on the SBU in parliament was facilitated by a parallel discussion of the proposed Law on Operational Investigation Activities, which envisioned the adoption of extremely sensitive special measures: monitoring of negotiations, perusal of correspondence, etc. While these bills were presented in parliament during the first reading, most of the questions to me concerned this sensitive part.
The deliberations were heated. But the two bills were passed and are still in force today. However, since then 17 amendments have been made to the Law on Operational Investigation Activities. Without assessing these additions, I will point out one worrisome trend, namely the growing number of agencies authorized to use special operational investigation measures, popularly known as wiretapping, etc. There are eight of them today, or twice as many as there were under the KGB. A few other agencies are trying to secure powers under this law.
Therefore, before the Law on the SBU is amended, the Law on Operational Investigation Activities must be substantially changed. As a result of these 17 amendments and additions this law has become far removed from the principles of a democratic state.
The revised law will require the adoption of numerous complex enactments regulating individual departments. President Yushchenko’s corresponding order of Nov. 7, 2005, “On Securing Human Rights during Operational-Technical Measures” is a start to this complex work. The Law on Counterintelligence Activity must also be closely scrutinized.
But the whole process of reforming the law enforcement system and amendments to corresponding laws should in no case weaken the Security Service of Ukraine. Almost all countries undergoing complex transformations normally strengthen their special services, developing effective oversight mechanisms.
In view of Ukraine’s geostrategic position and the way events are developing in the world, and the European region in particular, the SBU will be facing an increasing number of tasks with each passing year. Challenges and threats for our country will increase. This is what the world is like today. The SBU must not only be prepared to neutralize these challenges, but also quickly adapt to new forms of threats.
Futurist analysis will be gaining increasing significance in SBU activities. The political reform will not change the SBU’s place in the system of providing national security.
To secure the effective operation of all SBU personnel, it is important for the country’s leadership at least occasionally to underscore the essential work performed by the service, or better yet, to positively evaluate the SBU’s efforts whenever there are reasons to do so.
In conclusion, I would like to congratulate the personnel and veterans of the Security Service of Ukraine and wish them good health, success, optimism, and faith in the fact that the SBU will continue to make a significant contribution to Ukraine’s national security.
