House of Commons - Counter-terrorism - Home Affairs Committee

Counter-terrorism - Home Affairs Committee Contents

Annex B: Comparison of the UK and US oversight systems of the security and intelligence agencies

1. Oversight of the Security and Intelligence Services means monitoring their efficiency and their propriety.[221] Examining efficiency would mean scrutinising a Service's ability to carry out its remit and to provide value for money. Examining propriety would require judgement on whether the Service had acted in accordance with the law and its remit in both its objectives and its activities. Some argue propriety could also include the examination of a Service's behaviour in accordance with the ethical or political norms of the society in which it was based, such as freedom of speech, human rights and privacy.[222]

2. A 2007 report on the democratic control of the security services by the Venice Commission noted the different types of accountability which can exist:

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LEGISLATIVE OVERSIGHT

3. The most common method of oversight appears to be a committee of the legislature, although the use of external review committees is also prevalent. Amongst legislative committees which oversee the security and intelligence agencies there are a number of variations in:

· the powers;

· the size: and,

· the body responsible for nominating and/or approving the membership of the Committee. All of these can have an impact on the independence and the effectiveness of such committees.

4. The two legislatures which are the focus of this note (the US and the UK) both have legislative committees. In the US, South Africa and Argentina (amongst others), the oversight committees examine the policy, administrations, operations and legality of the intelligence services. In the UK, although the remit has recently changed to include operations (as well as policy and administration), the legality of the work carried out by the Services is a matter for other bodies—the Commissioners and the Investigatory Powers Tribunal.[224]

5. There are a range of benefits and potential failings of legislative committees whose role is to oversee the security and intelligence agencies. The benefits include the legislature's ability to scrutinise abuse by either the agencies or the executive in their use of intelligence provided by the agencies. Legislators may also have budgetary approval for the security and intelligence agencies which will aid in the scrutiny of their activities.[225]

6. The shortcomings of legislative committees include:

· the potential for political deference;

· the over-identification of the members with the security and intelligence services: and,

· the danger of the leaking of confidential information provided to the committee.

7. However, leaks from oversight committees have been rare if non-existent in many countries. One exception to this trend was in the United States under the Bush administration where there were leaks from the bureaucracy, Congress and even indeed the administration. A potential reason given for this was the overly excessive secrecy of the Bush administration—it is suggested that leaks are often seen as a necessary "corrective when there is too much secrecy and the public interest is not being served by a high degree of secrecy."[226]

8. It is sometimes suggested that as well as scrutinising the activities of the security and intelligence agencies, oversight committees should also act as public defenders of those agencies. One former director of central intelligence (a position now known by the title of director of national intelligence) told a Canadian Committee that when congressional oversight

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9. The European Commission for Democracy Through Law (also known as the Venice Commission) Report on the democratic oversight of the Security Services found that the executive's view of the role of the legislative committee will have a huge impact on its ability to scrutinise of the efficiency, effectiveness and lawfulness of the security and intelligence agencies. In the vast majority of cases, the oversight committee will rely on the executive and the agencies to provide information which will aid the committee in its scrutiny.[228] In a number of cases, the membership is nominated or chosen by the executive and in some cases the chairmanship or the party affiliation of the chairman is decided by the executive.[229] The Venice Commission found that

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EXPERT OVERSIGHT

10. In a number of countries, there are expert panels which scrutinise the security and intelligence agencies. The two best examples of these are

· the Canadian Security Intelligence Review Committee (SIRC) which supervises the Canadian Security Intelligence Service (CSIS)

· the Norwegian Committee for Oversight of the Intelligence, Surveillance and Security Services.

11. The Venice Commission highlighted the potential benefits of an expert panel

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However, the Commission also noted that in order for it to have any legitimacy, the expert panel ought to be created under statute as it is necessary to demonstrate that the legislature is in agreement that scrutiny is better carried out by an independent body. Without legislative support, an expert panel is unlikely to reassure elected representatives or their constituents that they are effective in their scrutiny activity.[232]

12. Another form of expert scrutiny is the use of Inspectors General which in many countries review efficiency, effectiveness and the legality of the work of the security and intelligence agencies. Although an individual will be nominated as the Inspector General, they will have an office with staff who assist them in their investigations. Australia and New Zealand both have an Inspector General who oversees their security and intelligence agencies. In the US, where the system originated, there exists a number of Inspectors General—each of the agencies which are in executive "establishments" or "designated federal entities" have statutory inspectors general under the Inspector General Act of 1978, as amended and there is also an Inspector General for the CIA (under its own statute) and another for the whole intelligence community (also under separate legislation).[233]

13. The Venice Commission summarised the benefits of an Inspector General

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14. However, Inspectors General will more usually be a method of executive accountability (rather than legislative) meaning that they report to the Government although there are exceptions to this—the South African Inspector General reports to Parliament. A number of other Inspectors General will have a relationship with the legislature despite reporting to the executive, several of the US Inspectors General report to Congress and the Australian Inspector General has an "informal working relationship with parliamentary bodies."[235]

JUDICIAL OVERSIGHT

15. There are varying degrees of judicial oversight of the security and intelligence agencies in different countries. The only form which exists across all jurisdictions is the accountability which occurs when the subjects of the agencies' investigations lead to prosecution. In some countries there exists judicial review if prior authorisation of judicial warrants is required and in others there is a method of post hoc review of investigative measures which might be considered intrusive.

16. There is also judicial accountability if a citizen brings a case against the Government or the agencies in a civil, constitutional or administration court although the Venice Commission notes that this

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Finally in some countries, investigations are judicially directed and so in those countries there would be a high degree of judicial oversight from the beginning of the investigation.

17. The Venice Commission notes that the increase of special investigative techniques (telephone tapping, bugging and video surveillance) and data mining could have a detrimental impact on the privacy and human rights of individuals, especially as the restraint of having to demonstrate the collection of such evidence does not necessarily apply in prosecutions for security crimes. This is further compounded by the fact that most security-related cases will never reach prosecution and so the legality of the investigation method will never be examined by a judge if there is no system of prior authorisation.[237]

UK system of oversight

History

18. Nominally, MI5 sits under the purview of the Home Secretary and MI6 and GCHQ are under the purview of the Foreign Secretary. However, unlike the usual convention whereby the directors general of Government agencies are directly responsible to the Secretary of State, the heads of the security and intelligence agencies have statutory responsibility for the actions of their agencies and report directly to the Prime Minister. This system has been designed to ensure the political neutrality of the agencies. Part of this convention resulted in the assumption that the Secretary of State would receive advice from the heads of the agencies but would not see the intelligence upon which the advice was based. This has changed since the security and intelligence agencies have been constituted under statute as in the UK there is no prior judicial authorisation requirement (unlike most other western countries) for surveillance such as interception of communications. Instead the Secretary of State fulfils this oversight function, signing warrants as requested by the security and intelligence agencies. This requires evidence to be presented to the Secretary of State. There are also instances concerning the deportation of foreign nationals on the grounds of national security and immunity from liability under UK law for actions taken abroad which involve a similar process of presentation of evidence.[238]

19. The UK's intelligence and security agencies were not recognised in statute until 1989 (MI5) and 1994 (MI6 and GCHQ) when a ruling from the European Court of Human Rights required them to be to be placed upon a statutory basis. Originally the Intelligence and Security Committee was set up by the same 1994 act, the Intelligence Services Act, which means that it is a statutory Committee (unlike most Committees of Parliament which have been set up by Parliamentary Standing Order) meaning that that section of the Act would have to be repealed if the Government or Parliament wished to see the ISC disbanded.

20. The ISC was set up as a Committee of 9 parliamentarians, nominated and appointed by the Prime Minister after consultation with the leader of the opposition. The Chairman of the Committee was also appointed in the same manner. The Committee were then required to produce an annual report to the Prime Minister who, in consultation with the ISC, would then redact any information considered to be harmful to national security before presenting the report to Parliament at a time of his or her choosing.[239]

21. Jacqui Smith, the then-Home Secretary, told the House of Commons that in the view of the executive the role of the UK's Intelligence and Security Committee is to assure the public that the "security and intelligence agencies are fulfilling their lawful duties efficiently and effectively."[240] This led one academic to question what the Committee should do if it finds evidence of activities which would diminish public trust in the security and intelligence agencies. Should it publish the evidence of such wrongdoing despite the fact that such publication would undermine public trust in the agencies? Alternatively would the publication of such material increase faith in the scrutiny of the services and thus improve public trust on the basis that on the occasions that the agencies act in a manner that is unlawful or unethical, such behaviour is highlighted and criticised publicly by those who oversee the agencies.[241]

22. In the 2011 Justice and Security Green Paper, the Government highlighted the possibility of introducing a British Inspector General in place of two of the Commissioners who currently oversee the security and intelligence agencies—the Interception of Communications Commissioner who reviews the warrant issuing process, ministers' and agencies' performance in acquiring and disclosing communications data and the process by which agencies other than intelligence and military gain access to encrypted data and the Intelligence Services Commissioner who reviews procedures regarding warrants for the 'interference with property', electronic surveillance, 'covert human intelligence sources' (CHIS) and the requirement for the disclosure of encrypted data. One academic has noted that the public documents produced by these two commissioners "refer almost entirely to basic errors e.g. errors in transposition of telephone numbers rather than providing a broader review of the propriety of covert surveillance operations."[242] When it was published the Justice and Security Bill did not contain provisions for an Inspector General meaning that non-Parliamentary oversight is still divided between the Commissioners and the Investigatory Powers Tribunal (discussed in more detail below) which hears complaints regarding the infringement of rights by the security and intelligence agencies or public authorities under the Regulation of Investigatory Powers Act 2000.

23. The statute concerning the Intelligence and Security Committee was then amended by the Justice and Security Act 2013 which made the following changes:

· Parliament now appoints the 9 members of the Committee (although it can only appoint members who have been nominated by the Prime Minister in consultation with the Leader of the Opposition)

· The Chair of the Committee is now chosen by the membership of the Committee

· It broadened the remit of the ISC to allow it to examine operational matters under certain circumstances

· It required the Committee to report to Parliament although the Prime Minister is still, in consultation with the ISC, able to redact the report

· It no longer allows the head of the security and intelligence agencies to refuse to provide information to the ISC (although the relevant Secretary of State can still refuse to allow the ISC access to any information he or she decides that such information is 'sensitive', should not be disclosed 'in the interests of national security' or it is 'information of such a nature that, if the Secretary of State were requested to produce it before a Departmental Select Committee of the House of Commons, the Secretary of State would consider (on grounds which were not limited to national security) it proper not to do so.')

· Witnesses to the Committee are given the benefit of their evidence to the ISC being barred from use in any criminal, civil or disciplinary proceedings (unless the evidence was given in bad faith)[243]

PARLIAMENTARY ACCOUNTABILITY

24. As well as producing annual reports, the Committee has also undertaken thematic inquiries, sometimes at their own initiation and sometimes at the request of the Government.[244] This has included operational activities prior to the statutory ability to examine such activity being introduced in the Justice and Security Act 2013. The Committee has also examined the work of the Joint Intelligence Committee, the work of the Joint Terrorism Analysis Centre and Defence Intelligence despite it not being part of their statutory remit.

25. Academics have highlighted a number of achievements of the Intelligence and Security Committee. The Committee operates in a bipartisan fashion and its lack of public evidence sessions mean that there is no 'grandstanding' amongst its members. It has largely satisfied calls for public accountability of the security and intelligence agencies. The executive has a high regard and level of trust in its ability to scrutinise and it has a good working relationship with the agencies it scrutinises. One academic noted (prior to the Justice and Security Act 2013) that the ISC had worked well, despite its weak legal powers.[245] There have been no leaks of sensitive information from the Committee.[246] Another academic has noted that most commentators found that in its first decade of existence the ISC had performed "creditably in general but poorly over the issue of Iraq."[247] Further criticisms have been levelled at the Committee's work on the 7/7 bombings and their rendition inquiry.

FAILURES OF PARLIAMENTARY ACCOUNTABILITY

26. There have been a number of instances where the Intelligence and Security Committee have been criticised for its level of scrutiny of the agencies.

Provision of information

27. There have been a number of criticisms of the provision of information both by and to the Intelligence and Security Committee. Early on in its existence, the ISC tried to convince the Government that the Single Intelligence Account (whereby the House of Commons agrees an overall budget for the security and intelligence agencies without revealing the allocations for each agency) was unnecessary.[248] The Government has refused despite the fact that the heads of the agencies have apparently indicated that they do not believe it to be sensitive information.[249] The ISC have also unsuccessfully tried to persuade the Government to allow it access to the confidential annexes of the report of the Intelligence Services Commissioner and the Interception of Communications Commissioner.[250]

28. The ISC's 2006-07 annual report highlighted that the Government was refusing to allow it access to a ministerial submission on the basis that the Committee had been 'given categorical assurances' as to what had happened. The Committee was also told that as the submission was to a previous administration, the Government could not release it despite assurances from the Foreign Secretary who had received the submission indicating willingness to see the document released to the Committee. The annual report noted that

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29. The Committee has also previously criticised the lack of openness in the testimony of the then-Secretary of State for Defence when he gave evidence to their inquiry into the suggestion that Iraq had weapons of mass destruction. A 2010 academic paper highlighted that

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30. The ISC has been criticised regarding its own provision of information to the public. It has compared unfavourably to both Australia's Parliamentary oversight Committee[253] and Canada's Security Intelligence Review Committee in terms of the level of detail included in their reports.[254] Its report in to Iraqi Weapons of Mass Destruction was also deemed to have been less informative than either the Hutton inquiry or the Butler review.[255]

Iraq

31. The ISC's report on the intelligence and assessments around Iraqi Weapons of Mass Destruction led to significant criticism of the Committee. The Hutton report published many of the documents which the ISC had examined but decided not to publish and the Butler report highlighted information about MI6 withdrawing intelligence which the ISC had failed to examine in their report.[256] Furthermore, it later emerged that the Committee had not been provided with all the relevant JIC assessments by the Government despite assurances to the contrary. The ISC later concluded that this had been a mistake rather than a deliberate attempt to mislead the Committee but still expressing considerable concern that such a mistake could take place. One academic described this as a "masterful understatement" given the nature of the inquiry.[257]

7/7 bombing

32. In May 2006, the ISC published their report in to the July 2005 bombings. In relation to the surveillance of two of the bombers by the security service as part of an operation investigating a separate terrorist plot (Operation Crevice), the ISC stated

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However following the conviction of those subject to investigation as part of Operation Crevice (a plot to plant explosives in a number of highly populated areas), the then-shadow Home Secretary called for a further, public, inquiry as a result of the details which had emerged at the trial.

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33. The Government had already decided that it would ask the ISC to re-investigate and to publish a detailed document which answered the "questions that have been posed before, during and after this trial."[260] The then-shadow Home Secretary indicated that he was not satisfied with the actions being taken.

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As one academic later noted, the Government's decision to ask the ISC to reinvestigate the matter implied that they had not previously had access to all material and that their previous conclusions had been undermined by the emergence of details in the prosecution of the Operation Crevice subjects. He suggests that such a situation was a "catch-22 situation which could only further undermine its credibility with Parliament and the public."[262]

Rendition

34. In their July 2007 report on rendition, the Committee reported that in the case of Binyam Mohamed, the Security Service had not had any contact with Binyam Mohamed after a 2002 interview in Pakistan and that

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35. However, in legal action by Binyam Mohamed against the UK Government requiring information for his defence against possible prosecution in the US, it later emerged that not only had the Security Service been in contact with their US counterparts regarding Mr Mohamed, they had provided their counterparts with a list of further questions to be put to him in 2003. There was also evidence that the Security Service had been kept informed by US officials as to treatment he was subject to which was later judged by a US court to amount to torture. In his judgement on the case, Lord Neubeurger highlighted the fact that the Security Service had mislead the Intelligence and Security Committee.

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36. The Parliamentary Joint Committee on Human Rights discussed the implications of this case in their 2009 report 'Allegations of UK Complicity in Torture', noting that

In particular, we doubt whether Parliament or the public has been convinced by the ISC that the security services always operate within the law and that transgressions of the law are appropriately dealt with. We would welcome greater transparency in the ISC's proceedings, such as public evidence sessions, but procedural innovations will not be sufficient to convince us, and the public, that the Government is being held to account.

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Such thoughts have been echoed following the recent decision to ask the ISC to revisit its rendition report after a judge-led (Gibson) inquiry in to rendition had been unable to complete its work due to criminal investigations into a number of cases where rendition had been alleged. Following the announcement that the ISC would take over from the Gibson inquiry, the shadow Minister asked what steps were being taken to address perceptions that the ISC's inquiry would be a whitewash[266] and the Chairman of the APPG on rendition asked

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OTHER SYSTEMS OF ACCOUNTABILITY

37. As well as the ISC, oversight of the security and intelligence agencies is carried out by two commissioners (the Intelligence Services Commissioner and the Interception of Communications Commissioner) and the Investigatory Powers Tribunal. Both of the Commissioners are former senior Judges and the members of the Tribunal must be senior members of the legal profession to be appointed with the President and the Vice-President having held high judicial office.[268]

The Intelligence Services Commissioner and the Interception of Communications Commissioner

38. The Commissioners gain their statutory remit from the Regulation of Investigatory Powers Act 2000 (and the Intelligence Services Act 1994). They monitor the security and intelligence agencies' (amongst others) compliance with the statutory requirements in relation to their operations. This is post-hoc monitoring, a fact that has been subject to criticism as there are suggestions that such oversight should take place prior to operations.[269] Such monitoring is of the warrants and authorising decisions prepared for and issued by agency personnel rather than the examination of individual cases. The Commissioners do not deal with complaints, which are instead directed to the Investigatory Powers Tribunal.

The Investigatory Powers Tribunal

39. The Investigatory Powers Tribunal is also formed under the Regulation of Investigatory Powers Act 2000 with a remit to investigate individual's complaints against the security and intelligence services as well as other bodies who have powers under RIPA. The Tribunal rarely hears cases in public and there are no obligations upon the tribunal to allow the complainant or their legal representatives to be present during a hearing. Up to 2012, the Investigatory Powers Tribunal has received 1468 complaints. It has found in favour of at least 10 of those complainants (the IPT did not publish statistics relating to cases which had been determined in favour of the complainant in 2012, unlike previous years).

Year Total complaints Complaints upheld

2000 and 2001 102 0

2002 130 0

2003 109 0

2004 90 0

2005 80 1

2006 86 0

2007 66 0

2008 136 2

2009 157 1

2010 164 6

2011 180 0

2012 168 unknown

Total 1468 10

Data taken from Reports of the Interception of Communications Commissioner and the website of the Investigatory Powers Tribunal

It has been highlighted by campaigners however that half of these upheld complaints were members of the same family who complained jointly. The IPT has therefore determined in favour of the complainant in a maximum of six cases.[270]

40. The absence of successful complaints has been used by some academics to demonstrate that the Investigatory Powers Tribunal is overly protective of state security and ought to be replaced by another form of oversight. One suggestion is to replace the Commissioners and the IPT with an independent Inspector General.[271] This concept featured in the current Government's Justice and Security Green paper but was not adopted in the bill. In response to the green paper, one academic stated

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US system of oversight

History

41. The 1960s and early 70s in the United States were a period of protest and civil unrest. A number of allegations about the intelligence activities of a number of Government Agencies surfaced. There were a number of congressional investigations into various allegations about the US Army, the FBI, the CIA and other agencies. These investigations found evidence of abuses against American citizens including:

· Illegal reading of private mail by the CIA;

· Over 1 million unauthorised CIA and FBI files on individuals;

· Electronic eavesdropping on private telephone conversations by the NSA;

· 100,000 unauthorised background checks by Army intelligence units;

· The unauthorised release of individual's tax records by the Inland Revenue Service;

· CIA infiltration of religious, media and academic organisations;

· CIA manipulation of foreign elections: and,

· CIA (unsuccessful) attempts to assassinate two foreign leaders.[273]

It was the discovery of these abuses which led to the creation of permanent select committees on intelligence in the Senate in 1976 and the House of Representatives in 1977.

CONGRESSIONAL ACCOUNTABILITY

42. There are no official limits on the remit of Congressional Committees which mean that they can determine the scope of their inquiries.[274] However, the US has 16 different intelligence agencies based across the Department of Defense, the Justice Department, the Department of Homeland Security and the Treasury Department.[275] Therefore jurisdiction of congressional oversight is spread over a number of committees - Appropriation, Armed Services, Judiciary and Homeland Security all have aspects of intelligence as part of their remit.[276] One finding from the 9/11 Congressional Commission was that Congress needed to overhaul its oversight of intelligence as the system was dysfunctional. However, although a number of the Commission's recommendations, such as the creation of a Director of National Intelligence, have been implemented, congressional oversight has not been reformed and discussions around the most effective form of oversight are still continuing.[277]

FAILURES OF CONGRESSIONAL ACCOUNTABILITY

43. Despite being one of the World's most powerful oversight bodies, Congress remains dependent on willingness of representatives to engage in routine oversight and on the administration (the White House and Government Departments) to keep Committees informed.[278] There are numerous examples in Congress' history of Committees being misled by officials (as during the Iran-Contra affair and during a Senate Select Committee on Intelligence inquiry on links between the CIA and a Guatemalan military officer); refusing to provide documents or appear before Committees: and, providing large amounts of irrelevant material in order to keep the Committee distracted from its purpose.[279]

44. As well as the issues of divided jurisdiction across a range of Committees, analysts have also suggested that congressional oversight is less effective when the President, Senate and House all have same political leadership.[280] The dedication of the members of the oversight committees can also impact upon the effectiveness of scrutiny. One study found that between 1975 and 1990, although members turned up for high-profile sessions which dealt with areas where mistakes had been made, attendance at the regular sessions was on average, roughly a third of the total membership of the committee.[281]

45. Furthermore there is an acceptance of some members on the Senate[282] and House Permanent Select Committees on Intelligence that their role is to advocate on behalf of the security and intelligence agencies. In a staff study produced by the House Committee in 1996, it was noted that

Each committee charged with congressional oversight has a dual responsibility. The most obvious is to oversee the various agencies under its mandate, approve their budgets, investigate known or suspected problems, and report back to the House on these matters. Recognizing the impossibility of each Member being conversant with (or intensely interested in) all issues, the committee system delegates responsibility to the committees and accepts their leadership in specific areas. Given the checks and balances nature of the congressional-executive relationship, each committee has, at some level, an adversarial role with its Executive Branch opposites. The relationship need not be overtly or continuously hostile, but there is inevitably a certain amount of friction involved.

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This advocacy role can be further demonstrated by the fact that Committee members have previously highlighted their desire to ensure that the security and intelligence agencies do not lack resources or access to technology.[284] The balance between scrutiny and advocacy is not always apparent to the public as the Senate and House Permanent Select Committees on Intelligence rarely report to the public, seldom hold open hearings and have websites with little information.[285]

OTHER SYSTEMS OF ACCOUNTABILITY

46. As with the UK there are a number of other systems of oversight when it comes to the US security and intelligence agencies. The recent report by the President's review group on intelligence and communications technology noted that

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The US security and intelligence agencies are subject to oversight and enforcement from the:

· Legislative Branch

· Congress - Determines whether and how to authorise/fund intelligence activities and conducts oversight via intelligence and other committees.

· Judicial Branch

· Foreign Intelligence Surveillance Act (FISA) Court - Rules on matters under Foreign Intelligence Surveillance Act.

· Executive Branch

· Privacy and Civil Liberties Oversight Board - Provides privacy/civil liberties advice and oversight for US Government efforts to protect the nation from terrorism.

· President's Intelligence Oversight Board - Reviews reports of potential violations of law and executive order on behalf of President.

· Department of Justice - Includes DOJ's National Security Division and DOJ's Privacy and Civil Liberties Office.

· Office of the Director of National Intelligence-level officials - Includes ODNI's Civil Liberties and Privacy Office, ODNI Office of General Counsel, and the Intelligence Community Inspector General.

· Department-level officials - At the department level, these can include departmental counterparts to the agency-level organizations, and may also include other offices (for example, DOD's Assistant to the Secretary of Defense for Intelligence oversight).

· Agency-level officials - At the agency level, these can include the following organizations: Offices of General Counsel, Offices of Inspector General, Civil Liberties and Privacy Offices, Intelligence Oversight Offices, Compliance Offices (for example, NSA's new Civil Liberties and Privacy Officer position, and NSA's Office of the Director of Compliance).[287]

47. There have also been a number of Commissions ordered by the White House or Congress which have examined failures by security and intelligence agencies.[288] In 1975, the President set up the Rockefeller Commission which was created in response to a December 1974 report in The New York Times that the CIA had conducted illegal domestic activities, including experiments on U.S. citizens, during the 1960s. It was the discovery of such activities which led to the eventual creation of the Senate and House Permanent Select Committees on Intelligence. The Aspin-Brown Commission, established by Congress, followed the Black Hawk Down incident which took place in October 1993. The purpose of the Commission was to determine how best to adapt the Intelligence Community to the challenging new world that had emerged following the end of the Cold War.[289] The National Commission on Terrorist Attacks Upon the United States, (also known as the 9/11 Commission) was set up by Congress in November 2002, to prepare a full and complete account of the circumstances surrounding the September 11 attacks, including preparedness for and the immediate response to the attacks. The most recent special commissions looking at intelligence-related matters was the Presidentially-mandated Silberman-Robb Commission, otherwise known as the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction which reported in 2005. Both the 9/11 Commission and the Silberman-Robb Commission were critical of the security and intelligence agencies actions prior to 9/11 and the Iraq War.

Comparison

Parliament House Senate

Number of members 9 21 15

Number of staff 8 and one part-time investigator.[290] 36[291] 45[292]

Membership appointed by Parliament, following nomination by the Prime Minister who must consult with the Leader of the Opposition Party leadership Party leadership

Members vetted prior to appointment[293] No No (but all members of the House of Representatives are automatically given access to classified material upon their election) No (but all members of the Senate are automatically given access to classified material upon their election)

Confirmation of appointment of key officials[294] No No Yes

Access to classified material Access can be refused by Secretary of State[295] Total Access Total Access

Can reveal classified material without permission from the executive No No Yes, with the approval of the full Senate

Prior notification No legal duty (although the ISC has informed agencies that it would expect to be 'properly and promptly informed' of their activities.[296]) Yes (except in times of emergency when the agency can delay reporting for up to two days) Yes (except in times of emergency when the agency can delay reporting for up to two days)

Produce annual reports on the work of the Committee Yes Yes Yes

48. There is an obvious distinction in terms of the resources available to the Committees. One academic has noted that when the congressional committees held a joint inquiry into the events of 11 September 2011, they employed 24 researchers and interviewed 300 people. In a comparable piece of work, the ISC interviewed 37.[297] The joint inquiry's team of researchers was split into five investigative teams who interviewed witnesses, reviewed documents and sent out questionnaires. These researchers carried out investigative work at the FBI, CIA and NSA as well as other Departments where they felt they might find further relevant information. In contrast the ISC does not appear to have used their investigator as part of their 9/11 inquiry, instead relying on oral evidence from Ministers, Directors General of the Services and officials.[298]

49. Spending on intelligence greatly differs between the two countries with UK security and intelligence agencies receiving roughly £2 billion a year, as compared to the US national intelligence programme's budget of £31.5 billion.[299] The greater number of agencies and the information produced by those agencies means that although US Committees have greater access to information than their UK counterparts, they also have more information to sift through. A former director of the NSA once likened intelligence pouring in to US intelligence agencies as akin to a fire hose being held to the mouth[300]—such a metaphor would therefore also be appropriate to the amount of information being available to US Committees and their ability to examine it all.

50. The difference in political systems is also significant-whilst it appears that in both the UK and the US, party leadership is responsible for the nomination of the oversight committee the difference in systems means that the executive is responsible for nominating the members of the ISC. In the US, the fact that the House and Senate leadership are able to be from the opposition party (and that the separation of powers ensures a clear delineation between the legislature and the executive) means that the nomination of members for the US committees is a process in which the executive has no role.

Conclusion

51. In 2007, researchers wrote that robust accountability by a legislature relied on three factors-authority, ability and attitude.[301] There are two different approaches to legislative oversight which are discussed in academic literature-the 'police-patrol' and the 'fire-alarm' model. The police-patrol model is defined as the legislature examining a sample of activities carried out by an executive agency, the idea being that it will detect any activity which contravenes the legislature's expectation of practices and that such surveillance will discourage an agency form engaging in actions which would result in disapproval or action on the part of the legislature. The fire-alarm model is a more reactive model whereby the legislature will be alerted to activities which contravene the legislature's (and the public's) expectations of practice by interest groups, the media or even their electorate.[302]

52. Whilst the US and UK have similar 'police-patrol' bodies within their legislature, their 'fire-alarm' bodies differ. In US, responses to perceived failures within the intelligence community have tended to be presidential or congressional commissions. In contrast, in the UK, the response in recent times has been to set up an inquiry, usually led by a senior judicial figure (which is therefore outside of the legislature). However these two approaches appear to be converging-the UK's Commission on Banking Standards was similar in its nature to a Congressional Commission whereas the presidentially-ordered review in to intelligence and communications technologies could be seen as being similar to an independent inquiry, such as the Butler Committee.

53. It has been suggested that oversight committees in both the US and the UK were aware of the programmes highlighted by Edward Snowden's leaks to various media outlets.[303] Following those leaks there are a number of inquiries being held in various legislatures on the issue of balancing privacy with security. In the US, the reaction of Congressional Committees has been to hold inquiries with Judiciary Committees in both the House and the Senate holding inquiries as well as the Intelligence Committees. It is obvious that the latitude afforded to congressional committees to examine intelligence matters by the executive is perhaps the key difference between the US system and the UK system where the Government consistently refuses to allow committees other than the ISC to ask questions on the work of the security and intelligence agencies. Given that a number of important issues have been raised and debated as part of the work of the Judiciary Committees, it is perhaps telling that the debate has been more charged in the US where more representatives are able to scrutinise the work of such agencies.

221 Controlling and Overseeing Intelligence Services in Democratic States, Marina Caparini, Democratic Control of Intelligence Services, Born and Caparini (eds), 2007 P 9 Back

222 Controlling and Overseeing Intelligence Services in Democratic States, Marina Caparini, Democratic Control of Intelligence Services, Born and Caparini (eds), 2007, Pg 17; Balancing Operational Efficiency and Democratic Legitimacy, Hans Born and Loch K. Johnson, Who's Watching the Spies?: Establishing Intelligence Service Accountability. Born, Johnson, and Leigh (eds), 2005, Pp 230-232 Back

223 European Commission For Democracy through Law, (Venice Commission) Report on the Democratic Oversight of The Security Services, 2007, P 16 Back

224 Parliamentary and External Oversight of Intelligence Services, Hans Born, Democratic Control of Intelligence Services, Born and Caparini (eds), 2007,Pg 169, Back

225 Parliamentary and External Oversight of Intelligence Services, Hans Born, Democratic Control of Intelligence Services, Born and Caparini (eds), 2007, P 164 Back

226 Controlling and Overseeing Intelligence Services in Democratic States, Marina Caparini, Democratic Control of Intelligence Services, Born and Caparini (eds), 2007, P 20 Back

227 Canada's Long Road from Model Law to Effective Oversight of Security and Intelligence, Stuart Farson, Who's Watching the Spies?: Establishing Intelligence Service Accountability, Born, Johnson, and Leigh (eds), 2005, P 114 Back

228 European Commission For Democracy through Law, (Venice Commission) Report on the Democratic Oversight of The Security Services, 2007, P 18 Back

229 Ibid., Pp 37-38 Back

230 Ibid., P 25 Back

231 European Commission For Democracy through Law, (Venice Commission) Report on the Democratic Oversight of The Security Services, 2007, P 48 Back

232 Ibid., P 50 Back