Yevhen Marchuk was the first head of independent Ukraine’s secret police, Sluzhba bezpeky Ukrainy (SBU). He is the author of the bill “On the Security Service of Ukraine” that was passed in parliament in 1992. The Day asked him to comment on recent developments in and around the SBU.
Ukraine has been without an SBU chief for two months. This is unprecedented, is it not? Under these circumstances, can Ukrainians be sure that no SBU officers will betray Ukraine’s interests?
Ye.M.: I think that no SBU officers will do this. However, the problems they are faced with are very damaging to their work. Such a long period without an SBU chief is ruining the fundamental bases of the agency’s power and effectiveness. I mean an instrument that ensures the SBU’s status as the most effective structure, namely cooperation with people who are voluntarily and secretly helping the SBU as envisaged by the Law “On the Security Service of Ukraine”. Any special service is effective not in terms of command, but in terms of operatives and the people they are secretly working with to uncover crimes under the secret service’s jurisdiction.
All this is taking place in an atmosphere that can hardly be described as favorable. The SBU leadership has been replaced rather frequently in the past two years, and now there is none and hasn’t been for two months. Some SBU reform has been studied for quite some time. Meanwhile, officers of the Ministry of Internal Affairs have been assigned SBU posts despite the fact that the interior ministry’s philosophy of field work is different. All this is damaging to operatives’ patriotism in the line of duty and is causing people who are helping the SBU to have serious doubts. They are starting to question the understanding of the role played by the special services on the part of the political leadership on all three levels: the president, parliament, and government. This is precisely what is dealing the heaviest blow to the SBU’s effectiveness.
In terms of politics and organization it does not make sense when at a critical turning point, from the switch from the presidential to the parliamentary-presidential system, the SBU remains without anyone in command for such a long period of time. I am convinced that many SBU people are asking themselves why Drizhchany was relieved of his post. He was appointed under the new president. And so all those who form the SBU nucleus are wondering whether they are actually needed, whether they are doing the right kind of work, considering that the SBU chief was dismissed and no explanations were offered.
You mentioned reform. What is your attitude to the president and certain other politicians’ statements about the need to reform the SBU? We know that there are politicians who are questioning the special service’s expediency. Do we actually need an SBU reform? What should the state’s attitude be to its secret service?
Ye.M.: Without a doubt this special service, its structure and legal basis have to undergo certain adjustments, especially in such transformational and complicated phases as our state is going through. However, this must not turn into reshuffling. Why? Because any special service, in our case the SBU, has several basic aspects that will never change, no matter who approaches it with whatever tough reforms. I mean protection of statehood and national sovereignty, counteracting foreign intelligence services, preventing political as well as economic damage to the state. Also, under the law the Security Service must detect, prevent, and neutralize crimes against humanity and acts of terrorism, the kinds of crimes no agencies except special services can cope with. Here much depends on the level of cooperation between the SBU and its foreign counterparts.
Its foreign partners, watching what’s going on at the SBU, tend to be less straightforward and open, whereas cooperation in the struggle against international organized crime, terrorism, and proliferation of nuclear weapons requires a high level of mutual confidence and responsibility. Therefore, it is possible to say that the absence of the SBU chief is damaging to this service’s international cooperation.
Reform or no reform, Ukraine cannot do without the Security Service. Perhaps it really is necessary to figure out to what extent the SBU needs law enforcement status. I mean its activities aimed at combating crime. There is enough food for thought, although here too one must not make rash decisions because in regard to civil rights and their protection we often hear, “Where was the Security Service? Was it twiddling its thumbs?” Combating crimes against the state will remain the SBU’s prerogative.
As for reform in general, considering that the subject has been actively discussed, I think that a serious mistake is being made, the way the political leadership is conveying this topic to the media. There is a tangible legal base for the Security Service. Practically no one, not the president, prime minister, or speaker, has said anything about seriously revising this legal base underlying SBU activities, about adjusting it in accordance with current political realities — most importantly, in accordance with certain trends. As it is, there is much talk about reform and practically nothing about amending the Law “On the Security Service of Ukraine, maybe canceling it and drawing up a new one.
Another important fundamental aspect of the SBU is the Law “On Investigative Activities.” It details sensitive techniques the SBU is authorized to apply in investigative work. It is also anyone’s guess whether this law will be amended. It envisages authorization of clandestine monitoring of all communications facilities, individuals, secret search, perusal of private correspondence, and human intelligence operations. It is important to know whether new articles will be added to toughen control over such authorizations and how these techniques are applied by the Security Service. Such control can be exercised by the president and the Parliamentary National Security and Defense Committee. Few have broached this subject.
Instead, the SBU’s structure, strength, and individual officers are discussed. All this can and should be corrected. But this is not the starting point. Work should begin in regard to fundamental things, such as the laws “On the Security Service of Ukraine” and “On Investigative Activities.” Also there is another basic instrument, the law on the fundamentals of national security, which lists the threats to national security within the SBU’s jurisdiction. Will this law be updated? Another question: can the SBU be reformed simply for the sake of “fashion,” since this agency always attracts keen public interest? Can this service be reformed without reforming or adjusting the entire national security system? After all, this is not just the Security Service but an entire complex comprising the Border Troops, all auxiliary services and agencies, financial counterintelligence, the Ministry of Defense, military intelligence, and the Secret Service. Will all this be adjusted in conformity with new trends in the development of the state? Perhaps this is how the issue of SBU reform should be considered.
Lately there has been a considerable public outcry over wiretapping. Ex-Speaker Volodymyr Lytvyn complained about it, now he is being echoed by Speaker Oleksandr Moroz. Do you think that the legal wiretapping mechanism is well balanced in Ukraine? Is it possible that some top-ranking officials are lashing out at the SBU because they are afraid that someone will learn about their illicit operations?
Ye.M.: Investigative activities are impossible without wiretapping. The Law “On Investigative Activities” allows this method to be used by the SBU, militia, Prosecutor’s Office, Secret Service, certain units of the Border Troops, and the military and intelligence services. However, when scandalous wiretapping cases are at issue, the emphasis is on the Security Service of Ukraine. This is correct in principle, but one should remember that the method is used by other services, too.
However, I would like to point out that wiretapping does no harm to people who are not wrongdoers. Of course, it is unpleasant and unconstitutional in the first place, especially because it intrudes into private life and private affairs. This can cause moral damages and suffering. In principle this method should be subject to rigid restrictions and there are possibilities and mechanisms to do this. In 1992 a secret directive was drawn up, providing for strict control over wiretapping, specifying its methods, scope, and interdictions. Special service officers using this method must realize that this will always be a very painful topic, so it is necessary to be always prepared to prove that this was not done by the SBU. In response to the question, “Who did it?” it is necessary to initiate legal proceedings and carry out a quick and effective investigation to detect who did the unlawful wiretapping, especially when the case involves political figures, leading parliamentarians, and so on. Politicians and ordinary citizens who suspect they are being bugged should know that Article 5 of the Law reads that any citizen suspected of being wiretapped can apply to the Security Service in writing. Under the law the SBU must send a written response and explanation within a month, and immediately restore human rights, if any have been violated. Failing to receive this response within a month, the claimant is entitled to sue the Security Service of Ukraine. To eliminate the bugging problem, a small amendment to the Law “On Investigative Activities” is in order to enhance control over such authorizations and introduce rigid restrictions concerning the scope and subjects of electronic surveillance.
Does our political leadership assign concrete tasks to the SBU? What kinds of tasks are most important for Ukraine today?
Ye.M.: It is not clear what the government expects from the Security Service, but it is very important for the SBU to receive tasks from the political leadership, from the president and the government. These tasks must not necessarily be made public knowledge. Relying on such tasks and proceeding from the law, an action plan is worked out. The Security Service or the Foreign Intelligence Service does not come up with such an action plan. I know that there were no such plans assigned last year and I can understand why. The political leadership was too busy solving its own problems instead of formulating such tasks.
Formulating intelligence objectives and guidelines for the SBU is a complicated process. For example, it is very important to know how to assign tasks aimed against large transnational companies applying the tactic of economic expansion, neutralizing and destroying our businesses by using economic tools. These are sensitive subjects that cannot be stated publicly, but they must be clearly formulated. On the other hand, you can formulate tasks for our special services to help expand small Ukrainian businesses abroad. After all we are talking about Ukrainian capital being used outside Ukraine, creating a bridgehead for a Ukrainian economic presence, with all attendant consequences. The West has long ago found a solution to this problem and has been actively using special services to help its business get a firm foothold in other countries. We must learn from their experience.
