I’ve had a number of conversations (both real and virtual) about intelligence oversight since I first wrote about it here a couple of weeks ago. In particular, Andrew Zammit’s response was a thoughtful piece on the difference between oversight and transparency and Nic Stuart said what everyone else was thinking—the background fear is a ‘1984’ like level of government intrusion.
I think it’s worth exploring these ideas a bit further. My confidence in our oversight mechanisms is based on direct personal experience. I was working in intelligence when the Intelligence Services Act was passed into law and saw the care with which the government agencies which came under its remit took to implement it. I’ve also seen the Inspector General of Intelligence and Security at work—with the powers of a standing Royal Commission, this is a body that demands and receives respect.
I also teach a course at ANU on intelligence and security, and a fair amount of our time each year is spent talking about oversight and the balance between civil liberties and the need for secrecy. Judging from their end of term essays, most of the students end up agreeing that our oversight mechanisms serve us well.
So some of the negative public response to revelations about secret intelligence work can be put down to a simple lack of exposure to the checks and balances. And that, I think, is Andrew Zammit’s point; having mechanisms in place is only part of the story. They not only have to work, but they have to be seen to work. He’s right to be critical of the level of secrecy that surrounds intelligence in Australia. (And government more broadly for that matter.) A blanket exemption from Freedom of Information (FOI) laws isn’t really in the public interest—there’s undoubtedly a lot of information that isn’t operationally sensitive and which could help inform a public debate. Recent poll results in the US suggest that a majority of the public will accept a trade-off between privacy and security—even to the point that the NSA scores higher on the trust scale than Facebook.
Good faith efforts by government to maintain high levels of transparency can only help to keep that trust, and FOI can be part of the equation. This recent post on the NSA’s pre 9/11 internal discussion about the impact of the Fourth Amendment on its online activities, made public by the National Security Archive at George Washington University, is a good example of what can be done by an organisation that’s prepared to be pushy with FOI. (And, incidentally, shows that the NSA itself is aware of the tension between counter-terrorism work and protecting civil liberties.) They’re even willing to publically shame the FOI watchdog for not being fast enough with its responses. There’s no corresponding body in Australia—and if there was they’d have less material available to work with. The American polity is better served in that respect. That said, there is still activity within the US to further improve public accountability—such as recent moves to release declassified decisions of secret courts.
And, incidentally, that suggests another explanation for the alarm expressed by Australians about the recent Prism revelations. There seems to be a working assumption in the limited discussion we have about these matters that America and Australia are interchangeable—anything happening there must also be happening here. While that’s sometimes true—after all the intelligence agencies of both countries have essential the same job to perform—the frameworks in the two countries differ in many important constitutional and legal respects.
I’m still not going to lose any sleep over the activities of our intelligence agencies and their impact on my privacy, and I’m confident that the checks and balances in place are solid. But I’ve been convinced of the case for more transparency—Australian citizens shouldn’t need the sort of privileged viewpoint I’ve had to be able to make an assessment of how effectively their rights are protected.
As Graeme Dobell pointed out, all bureaucracies have the ability to survive largely unscathed despite attempted reforms, and recourse to secrecy can only reinforce that tendency. Given that, and because no-one outside the perimeter has the ability to judge, it’s perhaps not so surprising after all that the intelligence community doesn’t get much credit for the many steps towards tighter governance that it’s taken in the past twenty years.
The incoming government (of whichever sort) might well promise more openness in government—that’s frequently the case, especially from opposition—so let me make a suggestion. How about, early in the next term we have a review of transparency in Australian intelligence oversight? The terms of reference should include a ‘default to openness’ approach. And it needs to be both transparent (the irony meter would redline otherwise) and to have some serious clout—IGIS like powers, for example.
The FOI laws should be high on the agenda. That’ll probably get some pushback, as FOI in Australia is often used by NGOs and media outlets with their own agenda—but I’d argue that wouldn’t necessarily be a bad thing. The result could be a substantial improvement in the public discussion of intelligence. It would also lessen any justification for the indiscriminate leaking of classified material—but that’s a discussion for another post.
Andrew Davies is a senior analyst for defence capability at ASPI and executive editor of The Strategist. Image courtesy of Flickr user LEOL30.