R Kasrils: International Intelligence Review agencies conference

2 October 2006

National Security in a Globalised World: Challenges for intelligence
oversight

In welcoming you to our shores, I am delighted that yesterday delegates had
the opportunity to visit Robben Island, which stands as a powerful monument,
reminding us never to take our freedoms for granted and enjoining us to never
again repeat the inhumanities of our past. For if we shut our eyes away from
this past, we become blind to our present, making us vulnerable to
re-infection.

Such monuments belong to all of you here today, as you serve to imbue them
with a living force by the vital intelligence oversight role that you perform.
Collectively you represent one of the potent bulwarks that a small, but growing
number of countries have undertaken to protect the precious freedoms, which
earlier generations yearned and sacrificed so much for.

I am therefore delighted to have been given the singular honour of
addressing you at what is a most significant international gathering.

In reflecting on the role of oversight bodies in an increasingly insecure
world, I came across an article written in 1974 by a member of the Central
Intelligence Agency (CIA), who in depicting his experience of congressional
oversight, invokes a passage from 'The Marriage of Figaro' written by the 18th
Century playwright Beaumarchais, where one of the lead characters argues that
'�to be a politician is but to feign ignorance of what you know well�decline to
listen to what you hear� hide what ought to be exposed�[and] justify ignoble
means by claiming admirable ends'(1).

While the author's perception of those entrusted with intelligence oversight
is certainly challenging, it is not surprising given the broader historical
context in which it was written. This was the mid 70s, which the American
delegates particularly will remember as a time where the very essence of their
democracy was under threat by a series of shocking media revelations, which
drew attention to the unlawful and improper conduct of their country's
executive and intelligence agencies over a sustained period.

Learning from history

This experience, I believe, is relevant to your conference deliberations,
irrespective of the country that you hail from or the number of years that have
passed since these events took place.

This does not simply lie with the nature of the transgressions committed by
the intelligence services in a democracy, deplorable as they may have been.

Rather, it arises from the serious charge laid by the United States Senate
Select Committee to study governmental operations with respect to intelligence
activities, commonly referred to as the Church Committee, drawn from its
Chairperson's name, Senator Frank Church, which was established in 1975 to
investigate these abuses.

In this regard, the Church Committee concluded that the lawlessness of the
intelligence services was in large measure, as a result of the failure of
oversight bodies to effectively discharge their responsibilities.

Consequences of oversight failure

Giving some credence to Beaumarchais' appraisal, the Church Committee found
that the oversight failure had in fact served to encourage a climate where the
intelligence services believed that the doctrine of necessity trumped that of
legality and propriety, where officers testified that the concern of oversight
bodies was '�not whether a�programme was legal�but whether it worked'(2). It
was further argued that the silence of these oversight bodies was at times
wilful, where the refrain of 'just go ahead and do it but I do not want to
know' (3), was not uncommon amongst some members.

They argued that such actions had 'watered the roots and hastened the growth
of a vine of tyranny which�ensnared [the] Constitution and Bill of Rights�' (4)
by creating a perception amongst the services that they were subject to some
higher power, that of national security, which transcended all legal
restraints.

For the Church Committee, however, the law could never be sacrificed at the
altar of national security. Nor could there be a justification for oversight
bodies to relinquish their vital role especially in times of severe national
crisis where the potential for abuse is often greater in ensuring that
intelligence activities do not undermine the democratic system that they are
intended to protect.

In charting a way forward for intelligence oversight, the Church Committee
asserted that it was not sufficient to merely focus on personal culpability.
Special attention would need to be paid to 'fashioning restraints which not
only cure past problems but anticipate and prevent�future misuse�' (5).

As a result, following the ground-breaking report of the Church Committee,
wide-ranging reforms were introduced to strengthen oversight and bring the
activities of the intelligence services under tighter reign. These need to be
studied and compared by our respective governments, parliaments and oversight
bodies.

Oversight in an insecure world

This experience speaks directly to some of the key principles and challenges
underpinning the very existence of intelligence oversight. It goes to the heart
of the oversight role in preserving those core democratic values that
constitute a nation's heritage, which are essential for that nation's future
survival. And although intelligence oversight is a fairly new, late 20th
Century phenomenon for many democracies barring countries like America where it
was established much earlier it has evolved and was strengthened over time
precisely to meet this imperative.

Yet in today's uncertain world, despite the valuable lessons learned and the
significant advances made, we are now hearing many eminent commentators,
including members of the judicial, legal, academic, literary and media
fraternity; human rights bodies; former members of the armed forces and
intelligence services; and former and serving politicians echoing remarkably
similar sentiments to those expressed by the Church Committee over thirty years
ago.

These commentators caution against the development of what they believe is a
recent trend, where oversight bodies appear to be 'missing in action,' more
especially in critical discussions about the manner in which the 'war on
terrorism' is being waged, which has largely become the preserve of the
executive.

These commentators argue that many of the intelligence and security related
activities associated with this 'war' are an abuse of the rule of law, a
violation of long established international conventions and the antithesis of
the cardinal values, traditions and principles, which define their country's as
democracies. These activities, they allege, coupled with the absence of
oversight, have served to legitimate a culture of lawlessness, which has eroded
public confidence and made their citizens and indeed the world much more
vulnerable to the very threats that the intelligence services are intended to
counter.

Much like the Church Committee, these commentators place part of the blame
at the door of the oversight bodies themselves. These bodies, they claim, have
been cowered into submission by their fears and acquiesced to a series of
misguided intelligence activities. They assert that these bodies, whose
credibility lies with their ability to check party politics at the door, have
succumbed to the fierce political partisanship that has come to characterise
politics more broadly, which has suspended any real and open debate.

They accept that the world has changed in this awesome post 9/11 era and as
such there is a need for better, more effective intelligence. However, they
contend that we must not confuse this need with a rejection of all the rules;
nor must we succumb to over reaction in meeting this need. Violations cannot
constitute national policy and must remain the exception rather than the
norm.

For them self-restraint is essential as the 'enemy' does not attack
countries for who they are but for what they do and as such champions of
democracy will not be safe if they are party to the perpetration of
undemocratic acts. For them a nation's best defence does not lie with the
mental and physical barricades, which have been constructed to keep the 'other'
out; rather, it lies with the defence of a nation's founding ideals. For them a
nation cannot surrender its liberties in the name of security; rather these
liberties should be embraced as the very source of a nation's security.

And for them history cannot be ignored as it illustrates that 'when
watchdogs�morph into lap dogs, lazy dogs, or yellow dogs, the nation is in
trouble�' (6).

May I add that in lapsing into such error we are weakened in dealing with
the threats!

Remaining true to our mission

While some may feel that these arguments are too alarmist and that oversight
bodies are indeed beginning to reclaim their voice in these important
discussions, we nevertheless cannot afford to dismiss the dire consequences
associated with this critique.

We know that oversight does not, in itself, safeguard democracy. As the
report of the Church Committee demonstrates, intelligence abuses can be
committed, despite the existence of oversight.

We know that democracy is best served when oversight bodies, not only have a
clear and comprehensive legislative authority to act, but when they exercise
this authority in a robust and consistent manner. It is best served when they
comprise of members who remain true to their oversight mission and discharge
their duties at all times with the necessary wisdom, integrity and courage
required.

This mission was defined centuries ago by the ancient Roman satirist
Juvenal. Writing at a time when the Roman Constitution and the rights of
citizens were being slowly undermined by the expanding militarism necessary to
feed the Empire's imperialist ambitions, Juvenal's work reflected on the
concern of this apparent shift in power to the soldiers and their leaders.

He therefore posed the famous question 'Sed quis custodiet ipsos custodes?
But who will guard the guards themselves?' While the Roman's failed to respond
to his question, which eventually led to their undoing, our countries
providentially have not! The response to Juvenal's profound observation endures
today in the wide range of intelligence oversight structures represented at
this gathering.

Assuring professionalism

And as Juvenal's 'guardians of the guards', you carry a sacred mission of
trust granted to you by your citizens that obligates you to assure them of the
professional conduct of the intelligence services, which has become
increasingly important for all professions, not just that of intelligence.

Here the work of social pundits, which South African President Thabo Mbeki
often refers to, is particularly instructive in respect of their analysis of
the scandals wracking some of the long established professions.

They contend that, globalisation with the unparalleled advances in
scientific and technical knowledge which it brings, has greatly benefited the
development of the professions. However, because globalisation is also
associated with the unfettered pursuit of the market where material wealth,
survival of the fittest and self interest reign supreme, these advances have
not necessarily served all humankind.

They argue that this unfettered market pursuit poses a serious danger to the
continued preservation of those noble values, which epitomised and are embedded
in the founding declarations of all professions, dating back as far as 400 BC
with the Hippocratic Oath. They maintain that values such as service; public
good; human solidarity; altruism; duty; legality; responsibility; and
accountability, are being slowly eroded and they have therefore called on the
governing bodies of the professions to intervene in stemming this tide.

As the 'governing bodies' of the intelligence services, you are not exempt,
more especially since these are the very values enshrined in the oaths of your
respective country's intelligence services, which constitute professional
conduct that you are expected to assure. Of course your mission here is much
more acute, given the secrecy, which governs their activities and the enormous
power accorded to them in the pursuance of their necessary mandate.

In taking forward this mission, you must therefore always be extremely
vigilant; you cannot allow for feckless or episodic oversight. You must ensure
that the intelligence services operate within the framework of the law and
pursue their activities in a manner, which enables them to produce the high
quality, credible, objective intelligence necessary to forewarn and effectively
guide the decisions of the policymaker. And where violations of professional
conduct occur, you must ensure that they are purposefully dealt with.

Intelligence oversight in South Africa

Ladies and gentlemen, in addressing you it would be remiss not to refer to a
testing challenge, which South Africa recently had to confront. Indeed, it is
this very perspective, which informed South African oversight bodies, in the
grave intelligence crisis recently confronted by our fledgling democracy; where
senior officials, including a former Director-General of our domestic
intelligence service, were found to have flagrantly abused their powers in
violation of our country's Constitution and laws.

Here the members of the Church Committee would have been pleased to note
that oversight was not found wanting. These transgressions were uncovered by an
investigation of the Inspector General for Intelligence; launched in terms of
the law at the request of the executive; and extensively discussed by the Joint
Standing Committee for Intelligence.

In dealing with the crisis, our oversight bodies, which include the
executive, which has a constitutionally enshrined obligation to exercise
oversight over the control and direction of the intelligence services could not
afford to shirk from our public duty to safeguard our democracy, as turning a
blind eye to such misconduct would have taken us down the road to anarchy.

We therefore unambiguously asserted the supremacy of our Constitution and
the rule of law. In the words of the 18th Century legal philosopher,
Montesquieu, we sought to ensure that '�the law should be like death, which
spares no-one,' by stressing our obligations, irrespective of our role in
society, to uphold these principles.

While this trying period has been unprecedented in the history of our young
democratic intelligence dispensation, we are now beginning to turn the corner.
And despite the lapses in conduct, we need to emphasise here that this related
to a few rotten apples. The overwhelming majority of officers have shown the
professionalism, commitment, loyalty to the Constitution, respect for the law
and effectiveness expected of them.

In moving forward, we have demonstrated that oversight matters; we have
heeded the counsel of the Church Committee and have not just limited our
interventions to the few. And we are currently undertaking fundamental reforms
to obviate against the recurrence of such misdeeds.

We are re-examining the mandates of the services and strengthening the
legislation, regulations, operational procedures and internal control measures
governing their activities. We are also looking at ways in which to reinforce
the manner in which oversight investigations are undertaken and oversight is
exercised, which the deliberations at this conference will no doubt
augment.

Of particular interest to this gathering is the fact that our oversight
legislation is being tested by our courts for the very first time. This is as a
result of the charges that were brought against those who failed to co-operate
with the Inspector General, which the legislation provides for. The court cases
of those concerned have now been set down for trial.

We are also undertaking a Civic Education Programme, to ensure that all
intelligence officers adhere to the law and respect democratic norms, so as to
tackle the problematic mindset which facilitated such misconduct. And we are
embarking on a Public Intelligence Review, where we will engage civil society
on our reforms, so as to rebuild public trust and confidence in our
intelligence services.

In addition, we have used these events to intensify the implementation of
our ongoing programme, which is geared to building the professional capacity of
our intelligence services to enable them to meet the complex security
challenges of the 21st Century.

It is this professional intelligence corps that will better safeguard our
country, by bolstering our efforts to successfully carry out our programme to
provide a better life for all our people and play an effective and responsible
role in Africa and the wider world.

It is this intelligence corps that must recognise that they operate at the
behest of all our people and as such are accountable, through the civilian
oversight bodies, for the manner in which they conduct themselves.

They must be conscious of the dangers of compromising the truthfulness of
intelligence and prize the integrity, objectivity and credibility of their
products.

They must understand that their effectiveness lies in their adherence to our
Constitution and the law, which enables them to exercise their vital national
security mandate.

They must be aware that in fulfilling this mandate they are required to
enhance their capacity so as to render the quality advice essential for the
current global context. And in enhancing their capacity, they must be conscious
that this requires them to foster teamwork at home and partnerships abroad,
given the interconnectedness of today's threats.

National security our collective responsibilities

It is the interconnectedness of these threats and the manner in which they
are dealt with; flowing from the views of those commentators challenging
oversight bodies to make themselves heard that I would like to turn to now.

Your oversight mission, ladies and gentlemen, will come to naught, unless
all countries embrace their collective responsibilities in making our world
more secure.

As world leaders continue to acknowledge, today's threats do not respect
national boundaries, are interlinked and as such affect us all. These threats
encapsulate the mutually reinforcing connection between security, development
and a respect for human rights. Accordingly, we will not benefit from security
without development; we will not benefit from development without security; and
we will not benefit from either without a respect for human rights!

While imbalances in power have historically determined the gravest threats
to our survival, the fact remains that the mutual vulnerability of all nations
has never been starker.

No state can effectively protect itself if it acts alone. Its best
protection lies in an agreed common security consensus; where rich and poor,
the strong and the weak, all share an equitable voice in global governance and
trade. And the foundation of this consensus must be constructed upon a genuine
commitment to multilateralism and dialogue and an enduring respect for
international norms in regulating nations conduct.

Those who wield the greatest power bear the greatest responsibility for
ensuring that this common security consensus is forged. In this regard, let us
be reminded here of the ancient Greek historian Thucydides' account of the
Peloponnesian War where he reconstructs a dialogue between the invading
Athenians and the people of Melos, who they sought to subjugate, which best
illustrates this responsibility.

When questioned by the Melians as to why Athens chose to invade some states
and not others and the nature of the right that governed their actions the
Athenians responded '�we shall not trouble you with specious pretences�since
you know�the right�as the world goes�is only in question between equal powers,
while the strong do what they can and the weak suffer what they must' (7).

In today's era of global abundance, poverty and interdependence, where our
shared destiny is so closely intertwined, the strong have a duty to ensure that
the weak no longer have 'to suffer what they must'. It is the strong that hold
within their hands the necessary resources to reduce the massive divide between
rich and poor, which gives rise to global imbalance and instability; which
breeds a sense of anger, hopelessness, frustration and lack of dignity.

And it is this noble spirit that marked the beginning of the 21st century,
where nations, both rich and poor, united in solidarity, making a solemn
undertaking to forge this common security consensus. In pledging to a global
compact, in the form of the United Nations Millennium Declaration, they gave
concrete expression to their commitment to eradicate poverty, underdevelopment,
and social exclusion, whilst ensuring that the necessary conditions are created
for good governance, stability and peace.

Yet six years later, despite the fact that this commitment lives on in the
words of the lofty declarations adopted at various world gatherings that have
taken place since in practice, following the 9/11 catastrophe and the events
that ensued in its wake, this emerging consensus lies in tatters.

While the poor endeavour to play their part in making good on this
commitment, they argue that the rich have failed to deliver. Their frustrations
were aptly captured in President Mbeki's recent address, on behalf of the G77
nations and China, to the 61st session of the United Nations General Assembly,
where he said:

'�a global partnership is impossible when the rich demand the right,
unilaterally, to set the agenda and conditions for the implementation of
commonly agreed programmes�' and went on to argue that '�part of the problem
with this unequal relationship is the imposition of conditions on developing
countries and the constant shifting of the poles whenever the poor adhere to
each and everyone�' (8).

For the poor, the commitment made by all nations at the turn of the century
will continue to ring hollow, as long as the strong forget their responsibility
to the weak, who continue to 'suffer what they must.' For the poor, it will
remain a distant dream, as long as the impulses of multilateralism, dialogue
and adherence to international norms, which infused this commitment, continue
to be outstripped by the clamour for unilateralism and the drums of war. For
the poor, as long as their voice is ignored in the determination of global
governance and trade, it will remain unfulfilled.

And as a result the anguish of those living in poverty deepens; the horrors
and atrocities of violence, terrorism, conflict and war continue to engulf the
lives of the innocent; the scourges of racism, xenophobia and Islamaphobia grow
where tolerance once flourished; and fear continues to terrorise those who once
felt safe.

The world is more insecure and it calls out for collective action,
collective responsibility, in an equitable partnership! All is not lost if we
all heed this call, both in word and in deed. We can reclaim the vision of hope
that was borne of the new century. We can and must rebuild the common security
consensus that is necessary to advance our mutual interests and our shared
humanity.

As oversight bodies, you clearly have a critical role to play. The national
security mandate of the intelligence services, which you assure on behalf of
your people, is only sustainable if you actively acknowledge your collective
security mandate. It is only possible if you make a decisive contribution to
moving us closer to the day where the inherent right to live in dignity, in
freedom from want and freedom from fear is accomplished for all the world's
inhabitants.

In closing, let me leave you with the inspiring words of Nigerian poet, Ben
Okri, in an excerpt drawn from his poem 'Lines in potentis,' which sets out the
principal task to be undertaken:

'�Tell everyone
That history, though unjust,
Can yield wiser outcomes�
�that the future
Is yet unmade�
Many possibilities lie in your cellars�

�Tell everyone that the idea
Is to function together
As good musicians would
In undefined future orchestras�

�Remake the world
Under the guidance of inspiration
And wise laws�
�I want you to tell everyone�'

Our future and that of successive generations is dependent on this; let us
not fail them, lest we risk being recorded in the annals of history in
Beaumarchais' scathing terms!

Ladies and gentlemen thank you for your attention; I wish you well in your
deliberations.

(1) John M Maury, The CIA and Congress, 1974.
(2) Subfinding (b) Intelligence Activities and the Rights of Americans, Book
II, Final Report of the Select Committee to Study Governmental Operations with
respect to Intelligence Activities, United States Senate, Violating and
Ignoring the Law, April 26 1976.
(3) Statement by the Chair of the Senate Armed Services Committee, John Stennis
to CIA Director James Schlesinger, 1973, cited in Loch K Johnson, Governing in
the absence of angels: On the practice of intelligence accountability in the
United States, September 2003.
(4) Congressman Boggs cited in Intelligence Activities and the Rights of
Americans, Book II, Final Report of the Select Committee to Study Governmental
Operations with respect to Intelligence Activities, United States Senate,
Political Abuse of Intelligence Information, 26 April 1976.
(5) Intelligence Activities and the Rights of Americans, Book II, Final Report
of the Select Committee to Study Governmental Operations with respect to
Intelligence Activities, United States Senate, Conclusions and Recommendations,
April 26 1976.
(6) Ted Stannard, cited in Helen Thomas, Lap Dogs of the Press, The Nation, 27
March 2006 Issue.
(7) Cited in Chief Justice Murray Gleason, Second Magna Carta Lecture, Legality
Spirit and Principle, Sydney, November 2003.
(8) Address by President Mbeki at the 61st session of the United Nations
General Assembly, New York, 19 September 2006

Issued by: Department of Intelligence
2 October 2006
Source: Department of Intelligence (http://www.intelligence.gov.za)