intelligence in a constitutional democracy final report to the ... - Mg

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11.8 Recommendations 256 12. TRANSPARENCY, SECRECY AND PROVISION OF 259 INFORMATION 12.1 Introduction 259 12.2 Constitutional and governance principles 261 12.3 Greater provision of information on intelligence 266 12.4 The Promotion of Access to Information Act 272 12.5 The Protection of Information Bill 274 12.6 Recommendations 277 BIBLIOGRAPHY 280 Appendix A: Commission’s Terms of Reference 286 Appendix B: List of the persons and organisations that made submissions to the Commission 288 Appendix C: List of recommendations 290 6
FOREWORD BY JOE MATTHEWS, CHAIRPERSON OF THE MINISTERIAL REVIEW COMMISSION ON INTELLIGENCE From time immemorial, nations, governments and communities have relied on intelligence as an essential guide to statecraft. It is on record, for example, that the Persian Empire, the Moguls of India and the City State of Venice utilised intelligence in a systematic manner as an essential feature of government. They recorded their concepts of intelligence in texts that are available for study today. It is evident from this history that intelligence techniques have been used in pursuit of different objectives and that statecraft and its instruments are always a reflection of the culture and value system of a given society. Some nations believed in conquest and the creation of empires that exploited the resources of their subjects. Others used intelligence as an instrument in pursuit of wars and military supremacy. Still others sought dominance in trade and wealth creation for themselves and their peoples. With the emergence of modern democratic states, a fundamental change has occurred in the nature of intelligence as an instrument of government. Whereas previously the emphasis was on the security of the state and the survival of the regime, now there is a strong emphasis on human security and human rights and freedoms. In our country the Constitution is the supreme law and it enshrines the principles, culture and values of our democratic state and people. Our constitutional arrangements are not confined to setting out the distribution of power and the means for the peaceful settlement of disputes. The Constitution also reflects the basic values of our democracy and the economic and social principles for ensuring a cultured existence for all our people. Unlike many other jurisdictions, our Constitution provides expressly for the setting up of intelligence services as part of the security system in the country. There are also statutes that describe in detail the role and functions of the intelligence services. Whilst operational techniques of covert collection of information are secret, the rest of our intelligence activities should be open and above board. This reflects confidence that our objectives and policies are ethical, honourable and in accordance with fundamental human rights and freedoms. Our intelligence and other security services are not oppressors of the people but are protectors of their security and well-being. Hence our services can count on the full support of the people. That is not the case in many other countries, where the security services are feared and even hated. 7
Page 1 and 2: INTELLIGENCE IN A CONSTITUTIONAL DE
Page 3 and 4: TABLE OF CONTENTS FOREWORD 7 EXECUT
Page 5: 8. INTERCEPTION OF COMMUNICATION AN
Page 9 and 10: EXECUTIVE SUMMARY Chapter 1: Introd
Page 11 and 12: partisan manner, any interest of a
Page 13 and 14: The intelligence legislation should
Page 15 and 16: unnecessary, and it detracts from N
Page 17 and 18: search premises. Other intrusive me
Page 19 and 20: Chapter 9: Internal Controls The in
Page 21 and 22: we mean the widely shared or domina
Page 23 and 24: All ministerial regulations on inte
Page 25 and 26: CHAPTER 1: INTRODUCTION 1.1 Introdu
Page 27 and 28: The intelligence crisis of 2005/6 w
Page 29 and 30: seek to influence the Commissioners
Page 31 and 32: phase we had follow-up sessions wit
Page 33 and 34: the website of the Ministry for Int
Page 35 and 36: Presidency and the Auditor-General
Page 37 and 38: ordinator for Intelligence as the c
Page 39 and 40: The National Intelligence Agency (N
Page 41 and 42: The South African National Academy
Page 43 and 44: 1.7 Acknowledgements The Commission
Page 45 and 46: Internal controls and institutional
Page 47 and 48: prevented in conditions of secrecy?
Page 49 and 50: not governed by legislation (Chapte
Page 51 and 52: Neither the security services nor a
Page 53 and 54: One of the major implications of th
Page 55 and 56: In Section 4.7 we highlight the pro
Page 57 and 58:
Where intelligence abuses have been
Page 59 and 60:
themselves. Internal controls, self
Page 61 and 62:
We believe that the intelligence co
Page 63 and 64:
CHAPTER 3: THE WHITE PAPER ON INTEL
Page 65 and 66:
The White Paper has two annexures t
Page 67 and 68:
The Code of Conduct for intelligenc
Page 69 and 70:
The main weakness of the White Pape
Page 71 and 72:
3.7 An Overly Broad Domestic Intell
Page 73 and 74:
Problems of overreach. If the manda
Page 75 and 76:
3.8 Recommendations In its 2006 rep
Page 77 and 78:
CHAPTER 4: MINISTERIAL CONTROL AND
Page 79 and 80:
Constitution, and must either assum
Page 81 and 82:
The Minister must approve the funct
Page 83 and 84:
4.3.3 Intelligence Services Oversig
Page 85 and 86:
of such national interests irrespec
Page 87 and 88:
NICOC must disseminate intelligence
Page 89 and 90:
The Minister might be unable to adv
Page 91 and 92:
4.4.6 Reporting to the President Th
Page 93 and 94:
extraordinary scenario, as where th
Page 95 and 96:
these two statutes in this particul
Page 97 and 98:
In 2007 the Minister issued the Reg
Page 99 and 100:
Providing foreign intelligence serv
Page 101 and 102:
4.8.2 Complaints against the Minist
Page 103 and 104:
NICOC must provide the Minister wit
Page 105 and 106:
If a parliamentary committee (other
Page 107 and 108:
The existing regulations and those
Page 109 and 110:
In this Chapter we recommend that t
Page 111 and 112:
To receive and investigate complain
Page 113 and 114:
The Inspector-General must serve im
Page 115 and 116:
power by the intelligence services
Page 117 and 118:
5.5.1 The independence of the OIGI
Page 119 and 120:
If the Inspector-General uncovers c
Page 121 and 122:
The Task Team insisted that this is
Page 123 and 124:
Nevertheless, it seems clear from t
Page 125 and 126:
Once the relevant court proceedings
Page 127 and 128:
The dangers arising from NIA’s po
Page 129 and 130:
the White Paper on Intelligence of
Page 131 and 132:
strategic parastatals; the impact o
Page 133 and 134:
associated with the broad mandate.
Page 135 and 136:
The perceived role of the intellige
Page 137 and 138:
6.5 The Dangers of Political Intell
Page 139 and 140:
intelligence “should be practiced
Page 141 and 142:
One of the clients of the intellige
Page 143 and 144:
government. Instead, it would monit
Page 145 and 146:
It is a matter of great concern tha
Page 147 and 148:
Republic that falls within the func
Page 149 and 150:
interpretation of the Agency’s ma
Page 151 and 152:
We do not endorse NIA’s recommend
Page 153 and 154:
forewarn and advise the Executive a
Page 155 and 156:
CHAPTER 7: INTRUSIVE OPERATIONS 7.1
Page 157 and 158:
Intrusive methods of intelligence c
Page 159 and 160:
his or her family members, friends
Page 161 and 162:
freedom that is beyond interference
Page 163 and 164:
No search of premises and seizure o
Page 165 and 166:
Interception of Communications and
Page 167 and 168:
are reasonable grounds to believe t
Page 169 and 170:
NIA’s operational directive on it
Page 171 and 172:
Grounds for the Use of Intrusive Me
Page 173 and 174:
should not be allowed to violate th
Page 175 and 176:
officer. 46 The Court observed that
Page 177 and 178:
7.7 Recommendations 7.7.1 Legislati
Page 179 and 180:
effective routine and ad hoc monito
Page 181 and 182:
NCC Bill and we submitted a memoran
Page 183 and 184:
legislation regulating the NCC. Dra
Page 185 and 186:
Bulk interceptions are not usually
Page 187 and 188:
unlikely to succeed or are too dang
Page 189 and 190:
The Ministry official argued furthe
Page 191 and 192:
intercepts the communication of a t
Page 193 and 194:
8.6.2 The subjects of the constitut
Page 195 and 196:
The Bill does not indicate which or
Page 197 and 198:
In assessing the constitutionality
Page 199 and 200:
intelligence operations and the man
Page 201 and 202:
8.9 SASS Policy on Interception of
Page 203 and 204:
The Bill should provide for the dis
Page 205 and 206:
The Office of the Inspector-General
Page 207 and 208:
The third critical factor is the co
Page 209 and 210:
The Task Team added that the integr
Page 211 and 212:
The Task Team recommended that the
Page 213 and 214:
9.4 A Problem of Too Much Regulatio
Page 215 and 216:
ministerial control, parliamentary
Page 217 and 218:
We support the recommendations of t
Page 219 and 220:
The failure to publish and present
Page 221 and 222:
The Intelligence Services Oversight
Page 223 and 224:
Intelligence organisations througho
Page 225 and 226:
Auditor-General has only undertaken
Page 227 and 228:
The following qualification is thus
Page 229 and 230:
that has a direct interest in the a
Page 231 and 232:
ectify the practice of limited acce
Page 233 and 234:
CHAPTER 11: INSTITUTIONAL CULTURE 1
Page 235 and 236:
This Chapter covers the following t
Page 237 and 238:
Conversely, government and oppositi
Page 239 and 240:
"active measures" or "covert action
Page 241 and 242:
11.4 Civic Education Programme for
Page 243 and 244:
Constitution within the intelligenc
Page 245 and 246:
11.5 Inspector-General’s Perspect
Page 247 and 248:
In the opinion of the State Law Adv
Page 249 and 250:
completely gone when a totally new
Page 251 and 252:
The Bill of Rights applies to all l
Page 253 and 254:
danger, this duty helps to protect
Page 255 and 256:
Parliament of this necessity and th
Page 257 and 258:
Intelligence Services, the Inspecto
Page 259 and 260:
CHAPTER 12: TRANSPARENCY, SECRECY A
Page 261 and 262:
12.2 Constitutional and Governance
Page 263 and 264:
take place according to criteria an
Page 265 and 266:
A system of over-classifying inform
Page 267 and 268:
component of national policy that e
Page 269 and 270:
published some of its annual report
Page 271 and 272:
and be made public, 25 the audit re
Page 273 and 274:
12.4.2 PAIA manuals Section 14 of P
Page 275 and 276:
or ‘top secret’. The heads of o
Page 277 and 278:
“the information is sensitive inf
Page 279 and 280:
NICOC and the Office of the Inspect
Page 281 and 282:
Cawthra, G. and R. Luckham (eds), 2
Page 283 and 284:
General’, address in the National
Page 285 and 286:
South African History Archive, 2007
Page 287 and 288:
Independence of the Commission The
Page 289 and 290:
S.L. Mathe V.M. Ntsubane A. Roberts
Page 291 and 292:
Chapter 4: Ministerial Control and
Page 293 and 294:
Whether a breakdown in trust betwee
Page 295 and 296:
The Inspector-General should not be
Page 297 and 298:
The counter-intelligence mandate NI
Page 299 and 300:
The legislation should state that t
Page 301 and 302:
The determination of the level of a
Page 303:
Once the Minister has finalised the
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