8th International Intelligence Review Agencies Conference
Ottawa, May 27-30, 2012
I want to thank the organizers of this year’s International Intelligence Review Agencies Conference for their invitation to appear on this panel. My thanks go also to Mr. Burgess for his moderation of this panel.
In the official program, this session is entitled “Undertaking Effective Review/Oversight”. In Canadian, and I think most international practice, a distinction is drawn between review and oversight – with review being retrospective, post hoc auditing of the intelligence service’s activities and oversight involving more prospective operational command and control.
My focus today will be on review, and in fact, a particular variant of review. I have entitled my paper “Giving Squeaky Wheels Grease: Designing Effective Complaints Mechanisms for Intelligence Review”. In the moments I have, I want to make a few points about both the challenges and the usefulness of complaints to intelligence review and then make a few observations about effective design of such complaints mechanism. By complaints, I mean disputes or grievances brought to the review body by either a government or security service insider or a member of the public.
I preface these remarks by noting that my comments stem from a comparative study of such mechanisms I completed in 2011 for the Switzerland-based Democratic Control of Armed Forces centre, as part of a larger assessment of intelligence review that, as best I know, is now in translation.
The Challenge of a Complaints System for Intelligence
Let me begin by flagging what I anticipate is the single largest challenge in designing an effective complaints regime: selection bias. The person who brings the complaint – the squeaky wheel – may often be an unusual individual. This is either a government or security service insider who has, effectively, decided to blow the whistle on some perceived misdeed by the intelligence service. I shall refer to these as “insider complaints”. Or the complainant may be a member of the public. That member of the public may be non-credible – he or she may simply be giving voice to some spurious conspiracy theory of the sort the intelligence services are sure to attract. Or he or she may have a legitimate grievance. It may not always be easy to tell these persons apart.
Complaints mechanisms for intelligence services are also distinguished from, say, police equivalents by the surreptitious nature of the intelligence service’s activities. This preoccupation with secrecy has two obvious implications. First, the pool of potential bona fide complaints may be sharply reduced by the secrecy associated with any intelligence service wrongdoing. A complainant is very unlikely to discover, for instance, an unauthorized communication intercept.
Second, the actual adjudication of the complaint will be mired in secrecy preoccupations that may imperil the capacity of the complainant to advance his or her case.
I will discuss how some of these challenges are addressed by existing complaints mechanisms in a moment.
Usefulness of Complaints Mechanisms
Before doing so, however, it is worth flagging how complaints may contribute to review. I should make plain my strongly held view that complaints can never replace review, because of the selection bias problem. A myopic focus on complaints-based accountability models risks creating a form of accountability “theatre”; a body that creates the appearance of checks and balances but which lacks real purpose because of the very secrecy surrounding intelligence service activity. This secrecy may leave those targeted by intelligence services oblivious to, e.g., unauthorized encroachments on privacy. For this reason, systems of complaints handling unaccompanied by other forms of review and oversight, capable of exposing wrongdoing, represent a poor approach to intelligence governance.
However, complaints, as a supplement to review, do have merit. They may steer review bodies towards problems that might otherwise be overlooked in the necessarily selective auditing that resource-outmatched review bodies undertake. In what seems to still be the most complete assessment of Canada’s Security Intelligence Review Committee, Peter Gill concluded that SIRC’s work in the period 1984-1989 included some important proactive studies. However, much of the Committee’s work was largely reactive, responding to matters brought to its attention. Notably, Gill regarded this phenomenon as a “beneficial spinoff from the appeals process into review”. As an aside, he also suggested that “SIRC has been able to make use of the Inspector General’s resources by tasking him under s.40 to carry out reviews”. As most of you know, SIRC will no longer be able to call upon the Inspector General because the latter has been abolished for no reason anyone has been able to puzzle out. But that’s the topic for another conversation.
The key point for our purposes today, however, is simply that complaints may provide useful “red flags” alerting the review body to areas requiring closer scrutiny.
Designing Effective Complaints Mechanisms
The key issue becomes, therefore, how best to design complaints systems that successfully manage the selection bias problem while at the same time capitalizing on the usefulness of complaints to the overall review process.
In my review of a dozen jurisdictions with legislated complaints mechanisms, I draw a number of conclusions and make a number of recommendations on “best practices”.
Mandate and Standing
On mandate, I recommend that states create complaints bodies tasked with hearing both insider and public complaints.
Insider complaints constitute a means of directing “whistleblowing” through an institutional framework that is both responsive to meritorious complaints and can accommodate government secrecy concerns. However, this system should also extend guarantees to those who follow it.
Accordingly, I recommend that insider complaints systems include guarantees of non-retaliation where insiders bring good faith claims.
Public complaints systems, in comparison, are broader and generally open to all persons. A few jurisdictions do impose nationality requirements, although generally only in relation to foreign intelligence operations, and even fewer require that the complainant be personally affected in some way by the subject matter of the complaint. However, it is difficult to see any real merit to limiting standing in these ways.
I recommend that complaints handling bodies should have broad competence to receive complaints from the public.
Breadth of standing maximizes the accountability potential of the complaints mechanism. It also expands the number of potential cases. It may be appropriate to limit these cases to only those that have merit. But care should be taken in how this determination is made.
I recommend, therefore, that concerns about frivolous complaints be remedied by rules allowing the complaints body to dismiss spurious complaints early in the process. But caution should be exercised even here to avoid excising complaints that are difficult, political controversial or simply brought by difficult people.
A pressing issue is whether to situate a complaints system within a review body, or locate it in some other institution. On balance, I think it is better to twin review and complaints in the same institution.
First, I doubt that general courts or non-national security-focused regulatory bodies are adequately furnished to deal with national security complaints. In practice, these bodies may be unable to deal with confidential national security material, with the result that their effectiveness is impaired and they are unable to probe national security complaints adequately. Further, generalist bodies may lack the subject-matter expertise required to investigate these matters with a high degree of thoroughness.
In comparison, national-security specialized complaints bodies may be structured to accommodate state secrecy preoccupations. At the same time, these secrecy concerns should not have the effect of abasing the functions of the specialized body to the point where its credibility as a complaints handling body evaporates. Transparency should be the default, with secrecy limited to bona fide circumstances. Even here, however, steps should be taken to restore some parity between government and complainant, perhaps by ensuring that the body itself probes complaints in an inquisitorial manner and not simply as a passive adjudicator of a dispute. Further, the review body’s members themselves should be security cleared and should have sweeping access to information in the possession of the government and the security service. At the same time, there will need to be safeguards minimizing the prospect that this information will be leaked (voluntarily or involuntarily). Examples of such safeguards include special information handling protocols and affirmative security clearance obligations.
That said, complaints bodies also will only be credible where staffed and maintained independently of government and adequately resourced. In practice, this means that they are appointed in a manner that does not constitute unilateral appointment by incumbent governments and are free to operate autonomously of that government, while enjoying security of tenure. While complaints bodies should not comprise exclusively those with particular professional pedigrees (e.g., lawyers), there should be adequate legal representation among the membership. Independent legal competency minimizes what might otherwise be excessive dependence on legally-trained (and perhaps not quite as independent) staff members.
The question of remedies is the most difficult issue in complaints systems. Speaking generally, the bodies with the most potent ability to compensate for intelligence service wrongdoing (courts) are the least equipped to deal with complaints relating to the special circumstances surrounding national security, especially secrecy. Meanwhile, the specialized, national security regulatory bodies are often able to penetrate the fog of secrecy, but generally have no power to do more than recommend. States should consider carefully whether specialized national security bodies should also have quasi-judicial remedy powers, should as the power to award financial compensation to wronged individuals.
I am not aware of any existing review body that currently has the power to both adjudicate complaints and also award effective remedies, such as financial compensation. My understanding is that the UK Investigatory Powers Tribunal does have potent remedial powers, but I believe it is entirely a quasi-judicial complaints body, not a review agency.
I believe, however, that twinning review, complaints and effective remedies is the obvious next frontier, especially as courts have been called upon now repeatedly in civil matters stemming from national security disputes (and then mired in secrecy disputes). Complaints mechanisms in which review bodies may award financial penalties may create a new adversarialism that will have a ripple effect on the review process as a whole. This may require some restructuring within review bodies and new challenges in terms of membership and expertise. It does not strike me, however, as an insurmountable objective.
In my experience with the private bar here in Canada, the absence of any real remedies available through the SIRC process is a huge deterrent to bothering with SIRC at all. This is entirely anecdotal. Nevertheless, one is left with the impression that there are real complaints that don’t go to SIRC because SIRC can’t provide real relief.
If potential complaints doubt their actions will produce meaningful response, change or compensation, they will have little reason to pursue a complaint with the review body. Their complaints are then either forced into other venues (like generalist courts ill-positioned to deal with them), disclosed to the media in the hope of animating a response, or simply abandoned. All of these responses undermine the rationale for the review body: to reveal and respond to wrongdoing by the security services.
 Peter Gill, “Symbolic or real? The impact of the Canadian security intelligence review committee, 1984–88,” (1989) 4:3 Intelligence and National Security 550 at 570.