Born, Hans, and Ian Leigh. Making Intelligence Accountable: Legal Standards and Best Practice for Oversight of Intelligence Agencies. Oslo: Publishing House of the Parliament of Norway, 2005.
Gregg Blakely1 To say that the business of national security has become increasingly complex in the post-11 September world has become something of a cliché. Of course, this does not make it untrue. Governments increasingly rely on security and intelligence organizations, in turn elevating the risk of abuse of these services. In Making Intelligence Accountable, Dr. Hans Born, senior fellow at the Geneva Centre for the Democratic Control of Armed Forces, and Ian Leigh, co-director of the Human Rights Centre and professor of law at Durham University, compile a catalogue of best practices in the oversight of intelligence agencies. They do so with an eye toward raising awareness of good governance in the field of intelligence and encouraging sound security policy to protect agencies and citizens against political abuse. By comparing and evaluating intelligence oversight legislation from over 20 states, each with its own mix of organizational structures, democratic maturity, and political culture, Born and Leigh have assembled perhaps the most comprehensive study of intelligence accountability methods to date.
2 While Making Intelligence Accountable reads more like an instruction manual for intelligence oversight reform than it does an argumentative piece of scholarship, one can still discern at least three main contentions. The authors' first key claim is that the oversight of intelligence agencies is a responsibility best shared by the executive, legislative, and judicial branches of government. Born and Leigh also underline the point that democratic oversight of intelligence services necessitates the involvement of a variety of players, including several actors external to government. Born and Leigh divide the functions of these actors into four categories: control, oversight, monitoring, and restraint. Control is exercised both internally by the services themselves and externally by the executive which determines the budgets and priorities of the services. Oversight is largely the domain of the legislature, in the form of parliamentary oversight bodies. The judiciary monitors the special powers of the services and prosecutes employees for misconduct. Finally, media, civil society groups, think tanks, and research institutes are encouraged to restrain the services by drawing attention to misconduct and scandals, raising complaints, and proposing alternative practices.
3 The second key contention in the book is that the role of security and intelligence services, as well as the roles of the various bodies charged with their oversight, should be expressly defined. The authors argue that when it is at all possible for a procedure, mandate, or threshold of power to be specified in detail, every effort should be made to do so. The need for grounding in legislation is a recurrent theme throughout the book, the idea being that the authority and legitimacy of security and intelligence services ultimately depends on legislative approval of their powers.
4 A third argument that Born and Leigh often return to is that oversight bodies should not be limited in terms of the resources and legal powers at their disposal. The authors warn continually against rendering mechanisms of scrutiny — be they executive, parliamentary, or external — symbolic by weak mandates and undersized budgets. Above all, an oversight body must have unrestricted access to any information it requires to perform its function effectively. The authors also emphasize proportionality: the resources and legal powers at the disposal of oversight bodies should correspond to the scope of the body's mandate.
5 Beyond these three main contentions, Born and Leigh also issue frequent calls for legal and institutional safeguards to prevent abuse of power by security services and to ensure political neutrality. They also repeatedly herald international human rights law as a legal boundary that should never be transgressed.
6 Amid the authors' countless recommendations the reader can also identify two key dilemmas concerning intelligence accountability. The first dilemma is the need to balance commitment to security with commitment to democratic freedoms. Here the question is how to increase the effectiveness of security and intelligence services without limiting accountability or allowing them to operate outside the rule of law. The second dilemma centres around how to design parliamentary oversight in the face of the so-called "ring of secrecy." Inside the ring of secrecy oversight may be effective but cannot be proven to be so, while outside the ring oversight is likely to fail to account for all the actions of the agencies concerned. The secrecy issue reappears when Born and Leigh discuss attempts to resolve citizens' grievances, either through judicial or non-judicial processes. The authors argue that ombudsmen, specialist tribunals, and other specialist oversight bodies must work to ensure that complaints are treated independently and fairly while exercising sensitivity to security needs.
7 In terms of quality of argument Born and Leigh's case is largely convincing, owing especially to a high degree of organization. The authors present their material in a logical, well-structured manner, with quite a few useful examples of existing legislation. They also summarize "best practice" with checklists at the end of each chapter. These summaries serve as excellent aids for readers who are content with a simple overview. Overall, Making Intelligence Accountable is a valuable reference resource. Though states may differ markedly in terms of their legal and constitutional structures, the authors focus their analysis on principles and legislative options that may form the basis of oversight rules for any state.
8 Despite these strengths, readers would benefit from more background on the need for effective oversight. For instance, are there any particularly salient examples of abuses the reader should know about? Specifically, are there abuses which could have been prevented if the authors' recommendations had been in place? As well, the book glosses over how media and civil society groups can contribute to effective and democratic oversight. After all, journalists and watchdog groups are often the first to call attention to abuses, prompting the state to mobilize its official oversight mechanisms. Furthermore, the authors offer nothing about how oversight bodies might scrutinize private corporations which are involved in intelligence gathering. Any truly comprehensive analysis of best practice in the field of intelligence must include guidelines for agencies when working with the private sector.
9 On the whole, this book fills an important gap in the literature on accountability of security and intelligence services by systematically comparing states ranging from transitional to firmly established democracies. Born and Leigh thus provide guidance equally to states developing oversight mechanisms for the first time and states seeking to modernize or reform existing oversight structures. Both processes can be discouraging, and bureaucrats and parliamentarians will be well-served by Born and Leigh's recommendations. Beyond this, citizens of states which have recently made the transition from authoritarian to democratic government — especially those states whose security and intelligence services functioned as tools of repression — stand to benefit if this book helps in any way to ensure that these services evolve into responsible, accountable instruments of security policy.
Gregg Blakely is an MA Candidate in the Department of Political Science at Simon Fraser University.