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Accountability and Intelligence
This chapter explores what is meant by accountability in the intelligence realm and considers why holding intelligence practitioners to account is seen as particularly challenging. Is there something inherent to the practice that makes accountability so difficult? Or is it more the way intelligence is framed and how secrecy is used to close off discussion and direct criticisms toward certain specific areas rather than others? To consider how intelli- gence and accountability interrelate, this chapter will address some basic questions, such as: what does accountability mean in this sphere? Why is it important? Who should practice it? What is it supposed to achieve? The focus of this discussion will be the secondary literature from “external” commentators. Analyzing these interpretations will provide a useful context and framework for the later chapters exploring the understandings of ac- countability in a national and international context, among overseers, com- mentators, and practitioners.
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What Does Accountability Mean in an Intelligence Context?
Accountability can be defined in a number of ways. In the public policy literature, it is variously described as the “exchange of reasons for conduct,”^1 the “enforcement of standards and the fulfilment of obligations,” 2 “responsiveness,”^3 and “providing answers for your behavior.”^4 Although linked, each of these indicates a different interpretation of what this term connotes—from sharing knowledge to enforcing norms, allocating respon- sibility or rationalizing and justifying action. A common thread across most definitions is the idea of accountability as a process whereby one actor pro- vides an account of themselves and their behavior to another individual or group. A predefined role and set of responsibilities for the account giver are usually implied, along with parameters of appropriate behavior. The receiver is there to judge how far they have fulfilled their duties, in a way commensurate with the role and its associated norms. (The account receiver could be internal or external to the organization, depending on the circum- stances.) Accountability is therefore broadly comprised of two components: “ren- dering account,” which is the provision of information, and “holding to account,” whereby a judgment is made about the appropriateness of behav- ior, based on this and other information.^5 Furthermore, as noted in the in- troduction, the actions of the intelligence and security agencies are usually appraised according to their perceived efficiency, effectiveness, and ethics.^6 These three categories are explored in more depth later in this chapter. In practical terms, rendering an account involves giving a narrative of what actions were taken, by whom, when, and why. In order for it to be in- telligible to a third party, this narrative requires an explanation of the con- text to these actions, setting them within a particular time and space. A rich account could therefore entail sharing a significant amount of information about what took place and why. For this reason, accountability is problem- atic for intelligence agencies since secrecy and the restriction of information to as few people as possible has traditionally been central to their practice.^7 Yet accountability can take place within as well as outside an organization, and so account-giving is not precluded in the intelligence realm, provided the receiver is within the “ring of secrecy.”
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over which the head of an organization would have daily control. It also re- stricts knowledge flows to a single stovepipe that can shape the information shared with others. Moreover, it preserves the impression of the intelligence machinery as a closed environment beyond public scrutiny. The ISC has tried unsuccessfully to challenge this understanding and question mid- and lower-level officials about the United Kingdom’s conduct during the war on terror period. The government’s refusal to allow this led the ISC to con- clude that they could not provide a full and rigorous scrutiny of intelligence policy and practice.^13 In oversight forums, the agency head will normally defend their budget, explain their implementation of policy, deflect criticism, and jockey for more powers, but the efficiency of their organization (and particularly their ef- fectiveness) is a mystery. While this preserves the secrecy of the intelligence environment, it reinforces a sense of distance between the agencies and the society they are protecting. The result is a limited dialogue, which inhibits the free exchange of ideas and information that might test orthodoxies and propose new ways of understanding and doing intelligence work. Nor is it straightforward to see such accountability gaps being filled by the executive. Ministers, who are supposed to oversee agency activities on behalf of the general public, are unlikely to challenge prevailing assumptions since they set the policy and so are implicated in operational decisions.^14 Elite accountability carries with it some advantages that could serve the public good. For instance, it offers an opportunity for senior intelligence managers to reflect on their own policy assumptions and test them against informed commentators—within narrow parameters. The requirement to construct a narrative that rationalizes, explains, and justifies their existence and behavior to others cannot help but compel reflection— even if the nar- rative they present is not necessarily a true reflection of their self-identity or a full picture of their activities. Separating those who are undertaking intel- ligence activities from those who are meant to judge their rightness could also be useful— allowing clear lines of responsibility and blame, with the caveat that in doing so it may reinforce an “us and them” mentality, obscur- ing the fact that the agencies and the scrutiny bodies are all supposed to be acting in the wider public interest.^15 Nevertheless, if elite accountability inhibits proper analysis of the per- formance and internal norms of intelligence organizations, this is problem-
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atic, as it means much of their daily activity is beyond scrutiny. A number of other factors also limit the range of “account-giving” in the intelligence context and mean that the concept is often understood in narrow ways. These include secrecy, limited organizational knowledge, legal controls, the separation of the domestic and foreign spheres, and the tendency to focus on retrospective punishment rather than learning.^16 These will be analyzed in turn before considering why accountability is important, who should conduct it, and what it is meant to achieve.
Limitations on Intelligence Accountability
Secrecy presents a problem for accountability because it seems to act in ten- sion with the aims of the latter. Secrecy is about restricting knowledge flows and maintaining an informational advantage over rivals, whereas giving an account— especially if it is public—inevitably means sharing information and thereby reducing the mystique of an organization and its working prac- tices. In some senses, changes to intelligence practice in recent years have made accountability and secrecy more compatible. Western governments have widened the ring of secrecy to enable a much greater range of agencies and officials to access intelligence since 9/11, to the extent that Richard Aldrich and Christopher Moran estimate “in the United States, over 5 mil- lion people enjoy security clearances.”^17 In an effort to avoid the “silo think- ing” that supposedly prevented connections being made that might have stopped the 9/11 terrorist attacks from happening,^18 there is now a much denser matrix of cooperation and dialogue between agencies. Similarly, in the United Kingdom, Alex Younger, the chief of SIS, has argued: “the key point that sets us apart as an intelligence community is our ability to work together. We have powerful but distinct capabilities. We are able to suc- ceed through our ability to fuse them together, to become far more than the sum of our parts.”^19 The corollary of this is that organizations have far more scope to give accounts of their behavior and open up their actions to scrutiny by peers and colleagues than in the past. Yet the unintended effects of these policies have contributed to what Aldrich and Richterova term a “crisis of secrecy,” pitting accountability and secrecy against one another once again. 20 The sheer number of people privy to secret intelligence has resulted in “ambient accountability,” whereby
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are not able to speak freely about how official narratives compare with their experiences. The limitations of the ISC’s membership are exacerbated by the tech- nological advances affecting intelligence work. Data collection software and protocols require considerable technical knowledge to understand. Al- though ISC members have tended to have experience in the broad security field, as junior foreign or defense ministers, or academics, they are unlikely to have the technical background to allow a detailed evaluation of the im- plications of how agencies use technology in intelligence work— something exposed during the Snowden revelations. 26 Legal mechanisms of accountability provide a higher level of control; however, in the case of the intelligence services this is qualified by the de- mands of national security. In the United Kingdom, the agencies operate on a statutory legal basis—with the Secret Intelligence Service governed by the Intelligence Services Act 1994 and the Security Service by the Security Service Act 1989. There are also important legal means of redress against these agencies, such as the European Convention on Human Rights and the domestic Human Rights Act 1998. Yet judges have been reluctant to rule against governmental policy made on national security grounds. In the past they have questioned the legality of some counterterrorism measures such as control orders (whereby individuals had restrictions placed on their movement and communications), but the decision to derogate from Article 5(1) of the European Convention relating to the right to liberty of terrorist suspects (on the Article 15 basis that the United Kingdom faced a “Public Emergency which Threatens the Life of the Nation”) was described by a senior judge as “a preeminently political judgment” and so outside their expertise. 27 Similarly, the policy of bulk data capture—where agencies col- lected communications data from the entire U.K. population of users—has not been criticized by courts in principle, but rather in terms of practice. 28 The distinction between judicial and executive control is challenged by the reforms of the Investigatory Powers Act 2016. By introducing judicial commissioners, who must make a judgment about the necessity and pro- portionality of warrant requests to search communications data or conduct surveillance, the act blurs the lines between judicial and executive aspects of accountability. The risk of this change is that moral and political elements of decisionmaking may be downplayed in favor of technical discussions of
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whether activities comply with the letter of the law. 29 Although evaluating necessity and proportionality would have to include some consideration of these elements, this would be done with reference to legislation and could marginalize wider public interest concerns. Furthermore, it is notable that the advisory notice explaining the commissioners’ approach to approving warrants states: “On certain issues, such as, for example, what counts as legitimate ways to achieve foreign policy or national security priorities, the judicial commissioners’ reviewing role will be necessarily limited and the judicial commissioners will afford a very wide margin of judgment to the secretary of state in determining such matters.”^30 Overall, putting the secret agencies on a statutory basis and giving the judiciary a greater role in determining intelligence activity has increased the breadth and depth of account-giving. In that sense, accountability has been strengthened. Yet this operates within defined parameters and downplays important political and ethical questions about what is right and appropriate in favor of what is legal. Another factor delimiting accountability in the intelligence context is a tendency to separate the domestic and foreign spheres. Activities within the former are subject to greater controls, while the latter can often enjoy remarkable freedom from scrutiny and auditing. For example, intrusive sur- veillance operations in the United Kingdom by British intelligence and se- curity personnel require a ministerial warrant, yet abroad they are grouped as class authorizations under the Intelligence Services Act 1994. The Intelli- gence and Security Committee has noted that “agencies do not all keep de- tailed records of operational activity conducted under class authorizations.”^31 As such, close scrutiny of the appropriateness of individual cases abroad is not possible. Similarly, in the United States the political controversy over Edward Snowden’s revelations about bulk data collection centered on the idea that in spying on the communications of foreign individuals, the U.S. government was collecting the private messages of U.S. citizens as well.^32 This was seen as contrary to the Foreign Intelligence Surveillance Act of 1978, which required a warrant for surveillance on U.S. citizens. In other words, different standards and expectations of accountability apply, de- pending on where the activity is taking place and against whom.^33 The final factor constraining intelligence accountability is the fact that it is almost entirely retrospective. The combination of a closed, secret system,
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being executed. If a warrant is required as a matter of urgency, and there is not time to gain judicial assent, the agency must report this to a judicial commissioner, who has to make a judgment within three working days as to its appropriateness and can cancel the warrant and order the destruction of material obtained.^38 Most processes of account-giving are retrospective as a matter of course, however. As noted above, the ISC explicitly excludes ongoing operations from its scrutiny. In summary, accountability in the U.K. intelligence realm is restricted, elite-focused, largely retrospective, punitive (in terms of reputational damage), focuses on policy more than practice, and applies different stan- dards of scrutiny depending on whether the activity is perceived as within the domestic or foreign spheres. This approach is driven by the imperative of secrecy and designed to minimize disruption to the work of the intel- ligence agencies. It assumes a high level of integrity on the part of officials and provides minimal oversight from the judiciary (except when it comes to warrants), legislature, or wider public. While executive approval is required for legally or politically sensitive operations, the extent to which this con- stitutes accountability in terms of oversight is clouded by the fact that min- isters set policy. An example of confusion in this regard is apparent in the former British Foreign Secretary Jack Straw’s attempts to deny knowledge of rendition operations allegedly facilitated by MI6 during his tenure. News reports suggested that officials paid him a visit and reminded him that he had signed off on these actions and so shared responsibility.^39
Why Is Accountability Important?
The most obvious reason for concern over accountability is that organiza- tions that are closed to external scrutiny are more open to abuse.^40 As Mi- chael Andregg puts it: “Power tends to corrupt even the most open system; secret power systems and the people in them are especially vulnerable to this. Hubris corrupts all professions.”^41 This is often highlighted as a danger to society, but it is also important for the intelligence organizations them- selves. Ineffective accountability allows individuals the freedom to subvert organizational norms and standards.^42 This can manifest itself in a number of ways. At the collective level, officials may lose sight of the wider public good and seek to advance organizational goals— even where they con-
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flict with the public interest. Tim Weiner has suggested that CIA officials during the Cold War “were prepared to lie to the president to protect the agency’s image.”^43 Alternatively, they might breach organizational norms where they perceive them to be an obstacle to wider public safety. The same author cites the CIA’s deputy director of plans, Richard J. Bissell, as saying: “Many of us who joined the CIA did not feel bound in the actions we took as staff members to observe all the ethical rules.”^44 Ian Cobain has alleged that the U.K. intelligence and security agencies continued to use the “five techniques” to interrogate Northern Irish detainees suspected of terrorism despite explicit prime ministerial orders to suspend the practice.^45 In some of these instances, the officials might not be acting in bad faith as such, but rather interpreting their priorities according to their own perception of operational requirements, in ways that may be unethical but are unchecked in the accountability vacuum.^46 A separate set of problems comes from those who are motivated by individual rather than collective goals. Favoritism, bullying, paranoia, a focus on pet projects rather than collectively important tasks, personal ag- grandizement via empire-building, and rent-seeking can all flourish in bu- reaucracies without external scrutiny.^47 In addition, individual ideological motivations can subvert collective norms— as in the case of double agents, coup plotters, or obsessive mole-hunters.^48 Peter Wright’s role in MI5 as a counter-espionage operator combines all three elements, and Stella Rim- ington’s account of the disruptive effect of this individual on the Security Service’s performance is illustrative:
by the time I knew him he was quite clearly a man with an obsession and was regarded... as quite mad and certainly dangerous.... He was self- important, he had an over-developed imagination and an obsessive per- sonality which had turned to paranoia. And above all he was lazy.... It was hard to explain why he was allowed to stay for so long... He used to wander around, finding out what everyone was doing, taking cases off people, going off and doing interviews which he never wrote up, and then moving on to something else, while refusing to release files for others to work on.^49
Having exhibited excessive levels of trust in officials and low accountabil- ity prior to the discovery of the Cambridge spy ring, the U.K. intelligence
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for covert action.^55 Richard Aldrich and Rory Cormac suggest that SIS re- fused to cooperate with mooted prime ministerial plans to assassinate for- eign leaders on at least two occasions in the postwar period.^56 Meanwhile, Harold Wilson’s cabinet secretary in the 1960s, Burke Trend, is said to have “gasped in horror at the thought of probing the private lives of MPs” when urged to do so by the paymaster general, George Wigg.^57 Clearly, the record is mixed, and there were instances of overbearing behavior, but it is interest- ing that SIS and the Security Service expressed concern at the “confusion over lines of ministerial accountability” that Wigg’s muckraking activities for Wilson had wrought.^58 Given the lack of oversight in this period, there had to be an element of self-restraint on their part; otherwise their presence in public life would surely have been much more intrusive. From a practical perspective, even if these agencies can somehow pre- serve their virtue without external pressure, they will struggle hard not to become sclerotic or irrelevant. Organizations that avoid rigorous external or internal review risk atrophy.^59 Therefore, it is in the agencies’ own inter- est to have their assumptions challenged and their behavior scrutinized so that they can root out bad policy, receive new and innovative ideas, and be confident they are operating effectively. 60 The dangers of a lack of rigor in intelligence analysis were brought sharply home by the Chilcot report into the United Kingdom’s decision to participate in the invasion of Iraq in 2003. In addition to outlining the numerous errors in the assessment of Iraq’s capabilities, the inquiry noted that “At no stage was the proposition that Iraq might no longer have chemical, biological, or nuclear weapons or programmes identified and examined by either the JIC [Joint Intelligence Committee] or the policy community.”^61 Poor scrutiny by policymakers had combined with official myopia to entrench the assumption that Iraq possessed WMD, even as the evidence from inspections began to suggest otherwise. 62 To overcome closed-mindedness in bureaucracies, Rascoff advocates a “risk management” approach to intelligence governance involving greater transparency and “rationality review” via cost-benefit analyses. Yet trans- parency presents self-evident problems for secret organizations. 63 Also, for all the popularity of a risk-management approach in current public policy thinking, it can be problematic. Risk is not an objective category—in fact, done properly, risk analysis acknowledges its subjective nature and is
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clear about the contingent nature of its assumptions. 64 Employing terms like “rationality review” conveys a sense of logical and dispassionate judg- ment. When it is coupled with the notion of a “cost-benefit analysis,” we are presented with a depoliticized, mechanistic process when the reality is far more complex and highly political. Nevertheless, Rascoff’s proposals are important if only because they begin to break down the wall between or- ganizational performance and external scrutiny bodies, opening up a space for internal account-giving to be incorporated into the overall system of accountability. In short, contrary to much of the emphasis in academic and policy circles on accountability as important for democratic control, the above discussion has highlighted some of the organizational and operational benefits that it can provide. Internal account-giving—rendering internal accounts— can reinforce organizational norms, allow reflection on performance and learning for the future, highlight malpractice, and promote innovation. To ignore or downplay these processes and only focus on external mechanisms of account-giving—holding to account—is to present an incomplete pic- ture of intelligence accountability.
Who Should Hold Intelligence Agencies to Account?
Advocating transparency and reviews begs the question of who would be able to supply such an appraisal. Current practitioners may be too close to the agencies to give objective commentary; former practitioners or retir- ees might be out of touch with modern methods, tools, and norms; peer reviewers from foreign agencies would not share the cultural awareness of why things are done the way they are; meanwhile, parliamentarians may not have the technical expertise to understand and critique the use of tech- nology. 65 Anyone given access to sensitive material would have to undergo a substantial vetting process that itself might contain the seeds of uncon- scious bias toward those of a sympathetic mind-set. In other words, intelligence accountability forums face a “legitimacy- accountability paradox.” There is a trade-off, whereby those most able to judge the effectiveness of these organizations (through their knowledge and experience) are also those least likely to be seen as legitimate scrutinizers by
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may be more widespread than we realize, but group cohesion is preventing such information from coming to light. Given these concerns, commentators from outside the intelligence com- munity tend to favor more rigorous scrutiny by external bodies; however, that may be due to there being different “epistemic communities” at play. Academics see wider dissemination of knowledge as more conducive to col- lective learning and discovery. But in the realm of national security, such a move carries risks. Most obviously, there is the potential for security breaches as the circle of those privy to secret information widens to indi- viduals who have not been vetted as systematically, may not be as adept at maintaining security protocols, or who cannot be sanctioned in the same way as an official with a career and a pension. If the individual scrutinizer is part of the legislature, there is a serious risk of political grandstanding.^72 This can be aimed at privileging a rival organization, furthering their own career profile, or, often linked, at using accountability mechanisms to attack the executive. The roving inquiry into Hillary Clinton’s role in the death of the U.S. ambassador to Libya in 2012 carried strong implications of such behavior.^73 These sorts of manipulations of accountability generally corrode public trust without benefiting the public good, because they are designed to fur- ther a sectional or individual interest rather than improve performance. Their focus tends to be more on punishment and humiliation of individuals than organizational learning and adaptation. Even when external observers are acting in good faith and with diligence, their lack of experience in the practices they are scrutinizing can create difficulties due to a lack of aware- ness of what is normal and what would be a breach of etiquette—as well as how operational demands may impinge on effectiveness. An example in the U.K. context was Lord Hutton’s failure, in his inquiry in 2004, to ap- preciate just how unusual it was for the prime minister’s communication staff to be handling intelligence material, working closely with the Joint Intelligence Committee in producing reports, and having a say in their pre- sentation to the public.^74 This leads us to consider the role of the media in soliciting information from the intelligence machinery and holding it to account. Claudia Hil- lebrand notes three ways in which the news media contribute to oversight of the agencies and can thereby link to accountability. First, they operate as
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an “information transmitter,” bringing to light information on intelligence activity to the wider public.^75 The general public knows far more about what is done in their name thanks to coverage of intelligence stories, the re- porting of leaks, and recording of criminal cases. Second, they can operate as a “substitute watchdog,” 76 uncovering evidence of possible wrongdoing and questioning the executive when formal oversight bodies fail to do so. In addition, they play a legitimizing role for the intelligence services, reporting their successes and offering them a means to communicate with the general populace.^77 The media’s role in holding governments to account is problematic, however. In the United Kingdom, scrutiny has historically been hampered by the blanket refusal by agencies and ministers to respond to media queries on intelligence. Thus, in response to a story in 2014 that the government was harvesting private information on users of the smartphone app Angry Birds, as well as Facebook and YouTube, GCHQ stated: “It is a longstand- ing policy that we do not comment on intelligence matters.” 78 While the official “no comment” policy is a useful way for the agencies to avoid awk- ward questions, it also means that the agencies have not historically been able to refute erroneous reporting or laud their successes publicly—though plenty of informal tip-offs and briefings have been proffered to selected journalists.^79 Thus, the media’s ability to act as an information transmit- ter is limited. The existence of the “D notice” system also constrains how much intelligence information the media communicates to the public. 80 Now termed DSMA (Defense and Security Media Advisory) notices, these are a mechanism by which newspapers clear certain stories with the intel- ligence and security agencies before publication to ensure they do not risk national security or public safety. Some newspapers have avoided using the system at times, to ensure that sensitive stories were not blocked, as when the Observer published a story on United Kingdom spying on the United Nations in 2004 and the Guardian published its first leaks from Edward Snowden. 81 But it is generally upheld and so acts as a barrier to full public disclosure of intelligence stories. The U.K. media’s capacity to act as a substitute watchdog has been sig- nificantly eroded in recent years due to the nature of the business envi- ronment it inhabits. Traditional print media are facing severe budgetary constraints as a result of declining readership and advertising revenue—in
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Security Service, Andrew Parker, described the problems hostile state activ- ity in the online realm poses for the agencies and their efforts to inform the public:
Age-old attempts at covert influence and propaganda have been super- charged in online disinformation, which can be churned out at massive scale and little cost. The aim is to sow doubt by flat denials of the truth, to dilute truth with falsehood, divert attention to fake stories, and do all they can to divide alliances. Barefaced lying seems to be the default mode, coupled with ridicule of critics. 85
Parker lumps in media manipulation and social media disinformation with espionage and military force as part of a set of “hybrid threats” to the United Kingdom from Russia, in particular. Combined with the ideologi- cal agenda of anti-secrecy groups like Wikileaks, they represent a serious challenge to the ability of new forms of media to foster a constructive en- vironment for account-giving. Of course, it is also important to note that the U.K. government exploited media interest in intelligence to justify in- tervention in Iraq in 2003—leading to misleading reports about national security threats. In doing so, it provoked greater skepticism about the ve- racity of intelligence reporting and the good faith of intelligence officials, creating a climate where government statements and media reporting could be challenged by, and given equal weight to, nonexpert opinion, especially in online forums. The U.K. government is therefore partly responsible for the decline in trust that followed. When it comes to commentary on intelligence accountability, few au- thors consider the idea that the general public might play a role in holding intelligence and security services to account. The heads of the intelligence and security agencies gave evidence in public to the ISC for the first time in October 2013. They have also begun to speak to a wider audience in forums such as the RUSI, 86 intelligence symposia,^87 academic settings,^88 their own headquarters, 89 and even activist forums^90 in an attempt to explain their role and activities. In that sense, accounts are being given to the public, but the potential for the public to question and respond to these narratives is limited to the elite audience on each occasion. It makes sense for feedback on technical matters to be limited to an informed audience, but some of the issues that have troubled intelligence agencies in recent years relate to
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ethical questions that could benefit from public debate and scrutiny by lay people. For instance, when and how is it acceptable to use children as intel- ligence assets? Is it ethical for a government to “seek to alter the ideological views of its citizens as part of its counter-radicalization strategy”? 91 What kinds of response are appropriate to cyberattacks by hostile states? Should Western agencies be engaging in information warfare against authoritarian regimes? These are primarily ethical questions and as such are open to lay people to address. Overall, the logic of commentary on intelligence accountability suggests that, internally, the agencies are best held to account by individuals with professional experience who can command peer esteem; meanwhile, exter- nal oversight is best conducted by groups who have demonstrable indepen- dence and rigor. However, each comes with risks and problems that resist easy resolutions. It is important to note that a genuinely unified system of accountability needs to provide clear mechanisms for internal and external account-“receivers” to talk to one another and share information so that a fuller picture of mistakes, inefficiencies, and immorality, as well as excel- lent performance and virtuous conduct, can be constructed. Furthermore, the sense that the public can or should be excluded from ethical decision- making in intelligence is unlikely to be sustainable and means that the intelligence community is missing out on a potentially fruitful source of innovation and legitimation.
What Is Accountability Meant to Achieve?
This leads one to consider what accountability is for. Intelligence scholars offer subtly different interpretations of its purpose. Maria Caparini sees it as about weighing the efficacy and propriety of the agencies’ activities.^92 Ian Leigh opens up these categories and views it as potentially checking “efficiency or effectiveness, legality or proportionality.” 93 In both, there is a division between assessing the technical performance of intelligence organi- zations and making a moral or legal judgment about their ethical or judicial status. A further school of thought draws comparisons between intelligence and the broad field of civil-military relations,^94 identifying the three themes of accountability in this sphere as democratic control, effectiveness, and efficiency.^95
