Handbook of intelligence studies / edited by

HANS BORN AND THORSTEN WETZLING
practices is not only confined to national settings as both the Parliamentary Assembly of the
Council of Europe (PACE) and the European Parliament are currently pursuing independent
investigations on these matters, too. 8
Against the backdrop of these latest and ongoing judicial and parliamentary investigations
on national intelligence services and the way political leaders have handled intelligence, this
chapter is based on the premise that contemporary governance and control of intelligence
services in liberal democracies is confronted with a range of specific challenges. We confined
ourselves to shedding light on three specific challenges that relate to the satisfactory pursuit
of parliamentary intelligence oversight and the internal direction and control of intelligence
agencies. 9 These are (a) to maintain parliamentary ownership over intelligence oversight procedures
(b) to establish “embedded” human rights in intelligence affairs; (c) to safeguard the political neutrality
of intelligence services.
We then conducted a comparative research of national intelligence legislation in democratic
countries with a view to find good examples of how national intelligence control systems can
master these challenges. While the text also discusses poor examples, i.e. national regulations
that do not bode well for success in mastering the challenge, we have concentrated on examples
than can be used as reference material for students of intelligence legislation and law-makers
alike. These good examples are then listed in the three tables.
We used the following criteria for selecting national intelligence legislation and national
intelligence oversight legislation into our sample: First, we considered only legislation from
democratic countries. Second, we aimed at including a representative sample which embraces
different constitutional models (presidential, parliamentary and Westminster-style democracies),
different regions, and examples from “old” and “new” democracies. Third, we only
considered those countries whose national intelligence laws are available in English. 10
Intelligence accountability – why bother?
Before discussing the more detailed findings of our study, a few words seem in order to
introduce the notion of democratic intelligence control. Most western democracies proclaim
that their intelligence services are being held accountable. 11 But what level of scrutiny suffices
for the democratic control of intelligence, who should be involved, and why bother?
Surely, the stakes are very high when politicians rely on intelligence service information:
misuse of intelligence can lead to foreign and domestic policy decisions that can harm the
security and the general social fabric of societies. The general danger exists that a nation
is not confronted with a fine balance between security and civil liberties but enjoys less of
each. 12 To prevent this, the control of intelligence services becomes an absolute necessity:
if done in adherence with standard principles of democratic rule, it further assures the
legitimacy, legality and even the efficiency of intelligence agencies. More concretely, it can
prevent ex ante the occurrence of human rights abuses, the infringement of civil liberties, the
mismanagement or inadequate approbation of public funds, the exercise of plausible deniability
and other forms of ministerial abuse that have traditionally beset the governance of intelligence
affairs.
While some concerns about intelligence services are ill-founded, 13 it is worth pointing
out that intelligence and security services can hardly be described as ordinary government
institutions either. “In most nations, intelligence agencies are treated as exceptions from the rest
of government.” 14 Yet such exceptional treatment, however motivated, is oblivious to the fact
that intelligence agencies are nothing but government institutions. If government derives
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