National security and civil liberties
2 Sep 2014|
We need to be able to keep an eye on the spooks.

It’s always good to see debate about civil liberties and security legislation here on The Strategist. With a number of changes to security legislation in the wind, it was appropriate that my colleagues Toby Feakin and Anthony Bergin took the issue up recently.

Anthony’s right that there’ll always be an acceptable level of government intrusiveness on individual privacy in the name of safety and security. For example, I don’t think anyone believes that police curbing dangerous driving on public roads is an unreasonable infringement of civil liberty. But when the nexus between government activity and public safety isn’t so obvious—as with metadata retention—or when government activity is secret, it’s reasonable to demand a higher level of justification, and a robust mechanism for accountability. Toby’s right; it’s not a simple matter of balancing security against privacy.

Neither of my colleagues addressed the core question of oversight. History shows us that, left to their own devices, intelligence and security agencies come up with all sorts of unhelpful notions. Despite various mechanisms, including constitutional protections, being in place to protect American’s privacy, that country’s NSA has overstepped the mark more than once (most recently in their offhand and probably unconstitutional treatment of the Foreign Intelligence Surveillance Court). And even the most ardent supporters of secretive state security should be troubled by recent revelations that CIA employees penetrated the computer systems of Congressional Committees investigating allegations of torture.

Australia isn’t immune to security agency overreach, though we’ve managed to avoid anything as egregious as the recent CIA breach. During the Tampa incident, intelligence material collected and promulgated by DSD would ‘probably have been subject to professional legal privilege’ and did not ‘meet the criteria laid down in the rules for reporting the communications of Australians’. ASIO came under criticism for its handling of aspects of the Mamdouh Habib case.

Lest we forget, before not one but two Hope Royal Commissions, agencies could conceive and execute breathtakingly stupid actions. And ASIO’s past efforts in keeping tabs on politically active Australians could sometimes slip over into political rather than security intelligence. (Although Jack Waterford’s haircut positively invited state intervention.)

The Australian examples above suggest that Hope’s multi-tiered oversight framework for Australian intelligence is working. And if all else fails, having a difficult and antagonistic press that’s not afraid of cutting across the bows of the security establishment can help maintain propriety—if the over-zealous CIA employees mentioned above had applied the New York Times test, they might’ve thought better of their actions.

The likelihood of being caught is an important factor in deterring wrong doing (PDF). Applied to the activities of intelligence agencies, that suggests that any proposed changes to national security legislation should be closely scrutinised to ensure that effective and timely independent oversight can be applied. It seems that the National Security Legislation Amendment Bill (2014) doesn’t yet meet that requirement.

In a good example of our parliamentary and statutory oversight mechanisms working together, the Inspector General of Intelligence and Security (IGIS) made a submission (PDF) to the Parliamentary Joint Committee on Intelligence and Security’s inquiry into the bill. (You can see the other submissions, including those from ASIO and ASIS here.) Quite rightly, the IGIS doesn’t judge the value of the proposed amendments—that’s not her job—but makes some important points about oversight provisions.

It’s an important contribution to the discussion and anyone interested in the topic should read it. If nothing else, it shows how complex things can get when you try to codify them. For example, there are two pages and a supplementary submission (PDF) on the ‘definition of a computer’—and the observation that overseers of intelligence will also need extensive technical knowledge to adequately discharge their responsibilities.

The proposed bill would see an introduction of ‘ASIO affiliates’—staff of other agencies acting under ASIO’s auspices—as well as a reduction in both the need for agencies to seek prior authorisation for activities and to report afterwards. All of those changes would increase the need for oversight. They might also decrease the external visibility of operational activities and blur the boundaries between foreign and domestic spying, making effective oversight more challenging to implement.

The press—the ‘unofficial’ intelligence watchdog—are also concerned about the proposed changes. Their submission to the PJCIS (PDF) is worth reading as well, but notes that the signatories (a wide range of media bodies) are ‘concerned that the Bill includes provisions that erode freedom of communication and freedom of the press’ and could see journalists imprisoned for doing their jobs.

In short, I’m not so much concerned about the powers given to intelligence and security agencies, or the secrecy in which they have to work to be effective, as I am about the ability of the wider polity to ensure that those powers are used properly and responsibly. In the absence of effective oversight, we can’t be sure of that.

Andrew Davies is senior analyst for defence capability and director of research at ASPI. Image courtesy of Flickr user PaULis.