Address by Ronnie Kasrils, MP

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Address by Ronnie Kasrils, MP Powered By Docstoc
					Keynote Address by Ronnie Kasrils, MP
Minister for Intelligence Services
The International Intelligence Review Agencies Conference
Cape Town
2 October 2006

    National Security in a Globalised World: Challenges for Intelligence
                                     Oversight


Introduction


In welcoming you to our shores, I am delighted that yesterday delegates had the
opportunity to visit Robben Island, which stands as a powerful monument;
reminding us never to take our freedoms for granted and enjoining us to never
again repeat the inhumanities of our past. For if we shut our eyes away from this
past, we become blind to our present; making us vulnerable to re-infection.


Such monuments belong to all of you here today, as you serve to imbue them
with a living force by the vital intelligence oversight role that you perform.
Collectively you represent one of the potent bulwarks that a small, but growing
number of countries have undertaken to protect the precious freedoms, which
earlier generations yearned and sacrificed so much for.


I am therefore delighted to have been given the singular honour of addressing
you at what is a most significant international gathering.


In reflecting on the role of oversight bodies in an increasingly insecure world, I
came across an article written in 1974 by a member of the Central Intelligence
Agency (CIA), who in depicting his experience of Congressional oversight,
invokes a passage from the Marriage of Figaro written by the 18th Century
playwright Beaumarchais, where one of the lead characters argues that ‘…to be
a politician is but to feign ignorance of what you know well…decline to listen to




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what you hear… hide what ought to be exposed…[and] justify ignoble means by
claiming admirable ends’!1


While the author’s perception of those entrusted with intelligence oversight is
certainly challenging, it is not surprising given the broader historical context in
which it was written. This was the mid 70s, which the American delegates
particularly will remember as a time where the very essence of their democracy
was under threat by a series of shocking media revelations, which drew attention
to the unlawful and improper conduct of their country’s executive and intelligence
agencies over a sustained period.


Learning from history


This experience, I believe, is relevant to your conference deliberations,
irrespective of the country that you hail from or the number of years that have
passed since these events took place.


This does not simply lie with the nature of the transgressions committed by the
intelligence services in a democracy, deplorable as they may have been.


Rather, it arises from the serious charge laid by the United States Senate Select
Committee to Study Governmental Operations with respect to Intelligence
Activities – commonly referred to as the Church Committee, drawn from its
Chairperson’s name, Senator Frank Church - which was established in 1975 to
investigate these abuses.


In this regard, the Church Committee concluded that the lawlessness of the
intelligence services was in large measure, as a result of the failure of oversight
bodies to effectively discharge their responsibilities.



1
    John M Maury, The CIA and Congress, 1974


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Consequences of oversight failure


Giving some credence to Beaumarchais’ appraisal, the Church Committee found
that the oversight failure had in fact served to encourage a climate where the
intelligence services believed that the doctrine of necessity trumped that of
legality and propriety, where officers testified that the concern of oversight bodies
was ‘…not whether a…programme was legal…but whether it worked’2. It was
further argued that the silence of these oversight bodies was at times willful,
where the refrain of ‘just go ahead and do it but I do not want to know’3, was not
uncommon amongst some members.


They argued that such actions had ‘watered the roots and hastened the growth of
a vine of tyranny which…ensnared [the] Constitution and Bill of Rights…’4 by
creating a perception amongst the services that they were subject to some higher
power, that of national security, which transcended all legal restraints.


For the Church Committee, however, the law could never be sacrificed at the
altar of national security. Nor could there be a justification for oversight bodies to
relinquish their vital role - especially in times of severe national crisis where the
potential for abuse is often greater – in ensuring that intelligence activities do not
undermine the democratic system that they are intended to protect


In charting a way forward for intelligence oversight, the Church Committee
asserted that it was not sufficient to merely focus on personal culpability. Special




2
  Subfinding (b) Intelligence Activities and the Rights of Americans, Book II, Final Report of the Select
Committee to Study Governmental Operations with respect to Intelligence Activities, United States Senate,
Violating and Ignoring the Law, April 26 1976
3
  Statement by the Chair of the Senate Armed Services Committee, John Stennis to CIA Director James
Schlesinger, 1973, cited in Loch K Johnson, Governing in the absence of angels: On the practice of
intelligence accountability in the United States, September 2003
4
  Congressman Boggs cited in Intelligence Activities and the Rights of Americans, Book II, Final Report of
the Select Committee to Study Governmental Operations with respect to Intelligence Activities, United
States Senate, Political Abuse of Intelligence Information, April 26 1976


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attention would need to be paid to ‘fashioning restraints which not only cure past
problems but anticipate and prevent…future misuse…5’


As a result, following the ground-breaking report of the Church Committee, wide-
ranging reforms were introduced to strengthen oversight and bring the activities
of the intelligence services under tighter reign. These need to be studied and
compared by our respective governments, parliaments and oversight bodies.


Oversight in an insecure world


This experience speaks directly to some of the key principles and challenges
underpinning the very existence of intelligence oversight. It goes to the heart of
the oversight role in preserving those core democratic values that constitute a
nation’s heritage, which are essential for that nation’s future survival. And
although intelligence oversight is a fairly new, late 20th Century phenomenon for
many democracies - barring countries like America where it was established
much earlier – it has evolved and was strengthened over time precisely to meet
this imperative.


Yet in today’s uncertain world, despite the valuable lessons learned and the
significant advances made, we are now hearing many eminent commentators -
including members of the judicial, legal, academic, literary and media fraternity;
human rights bodies; former members of the armed forces and intelligence
services; and former and serving politicians - echoing remarkably similar
sentiments to those expressed by the Church Committee over thirty-years ago.


These commentators caution against the development of what they believe is a
recent trend, where oversight bodies appear to be ‘missing in action’, more


5
  Intelligence Activities and the Rights of Americans, Book II, Final Report of the Select Committee to
Study Governmental Operations with respect to Intelligence Activities, United States Senate, Conclusions
and Recommendations, April 26 1976



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especially in critical discussions about the manner in which the ‘war on terrorism’
is being waged, which has largely become the preserve of the executive.


These commentators argue that many of the intelligence and security-related
activities associated with this ‘war’ are an abuse of the rule of law, a violation of
long-established international conventions and the antithesis of the cardinal
values, traditions and principles, which define their country’s as democracies.
These activities, they allege, coupled with the absence of oversight, have served
to legitimate a culture of lawlessness, which has eroded public confidence and
made their citizen’s and indeed the world much more vulnerable to the very
threats that the intelligence services are intended to counter.


Much like the Church Committee, these commentators place part of the blame at
the door of the oversight bodies themselves. These bodies, they claim, have
been cowered into submission by their fears and acquiesced to a series of
misguided intelligence activities. They assert that these bodies, whose credibility
lies with their ability to check party politics at the door, have succumbed to the
fierce political partisanship that has come to characterise politics more broadly,
which has suspended any real and open debate.


They accept that the world has changed in this awesome post 9/11 era and as
such there is a need for better, more effective intelligence. However, they
contend that we must not confuse this need with a rejection of all the rules; nor
must we succumb to over-reaction in meeting this need. Violations cannot
constitute national policy and must remain the exception rather than the norm.


For them self-restraint is essential as the ‘enemy’ does not attack countries for
who they are but for what they do and as such champions of democracy will not
be safe if they are party to the perpetration of undemocratic acts. For them a
nation’s best defence does not lie with the mental and physical barricades, which
have been constructed to keep the ‘other’ out; rather it lies with the defence of a



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nation’s founding ideals. For them a nation cannot surrender its liberties in the
name of security; rather these liberties should be embraced as the very source of
a nation’s security.


And for them history cannot be ignored as it illustrates that ‘when
watchdogs…morph into lap dogs, lazy dogs, or yellow dogs, the nation is in
trouble…’6.


May I add that in lapsing into such error we are weakened in dealing with the
threats!




Remaining true to our mission


While some may feel that these arguments are too alarmist and that oversight
bodies are indeed beginning to reclaim their voice in these important discussions,
we nevertheless cannot afford to dismiss the dire consequences associated with
this critique.


We know that oversight does not, in itself, safeguard democracy. As the report of
the Church Committee demonstrates; intelligence abuses can be committed,
despite the existence of oversight.


We know that democracy is best served when oversight bodies, not only have a
clear and comprehensive legislative authority to act, but when they exercise this
authority in a robust and consistent manner. It is best served when they comprise
of members who remain true to their oversight mission and discharge their duties
at all times with the necessary wisdom, integrity and courage required.



6
    Ted Stannard, cited in Helen Thomas, Lap Dogs of the Press, The Nation, 27 March 2006 Issue


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This mission was defined centuries ago by the ancient Roman satirist Juvenal.
Writing at a time when the Roman Constitution and the rights of citizens were
being slowly undermined by the expanding militarism necessary to feed the
Empire’s imperialist ambitions, Juvenal’s work reflected on the concern of this
apparent shift in power to the soldiers and their leaders.


He therefore posed the famous question ‘Sed quis custodiet ipsos custodes? But
who will guard the guards themselves?’ While the Roman’s failed to respond to
his question, which eventually led to their undoing, our countries providentially
have not! The response to Juvenal’s profound observation endures today in the
wide-range of intelligence oversight structures represented at this gathering.


Assuring professionalism


And as Juvenal’s ‘guardians of the guards’, you carry a sacred mission of trust
granted to you by your citizens that obligates you to assure them of the
professional conduct of the intelligence services, which has become increasingly
important for all professions, not just that of intelligence.


Here the work of social pundit’s - which South African President, Thabo Mbeki,
often refers to – is particularly instructive, in respect of their analysis of the
scandals wracking some of the long-established professions.


They contend that, globalisation with the unparalleled advances in scientific and
technical knowledge which it brings, has greatly benefited the development of the
professions. However, because globalisation is also associated with the
unfettered pursuit of the market - where material wealth, survival of the fittest and
self-interest reign supreme - these advances have not necessarily served all
humankind.




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They argue that this unfettered market pursuit poses a serious danger to the
continued preservation of those noble values, which epitomised and are
embedded in the founding declarations of all professions, dating back as far as
400 BC with the Hippocratic Oath. They maintain that values such as service;
public good; human solidarity; altruism; duty; legality; responsibility; and
accountability, are being slowly eroded and they have therefore called on the
governing bodies of the professions to intervene in stemming this tide.


As the ‘governing bodies’ of the intelligence services, you are not exempt, more
especially since these are the very values enshrined in the oaths of your
respective country’s intelligence services, which constitute professional conduct
that you are expected to assure. Of course your mission here is much more
acute, given the secrecy, which governs their activities and the enormous power
accorded to them in the pursuance of their necessary mandate.


In taking forward this mission, you must therefore always be extremely vigilant;
you cannot allow for feckless or episodic oversight. You must ensure that the
intelligence services operate within the framework of the law and pursue their
activities in a manner, which enables them to produce the high quality, credible,
objective intelligence necessary to forewarn and effectively guide the decisions of
the policymaker. And where violations of professional conduct occur, you must
ensure that they are purposefully dealt with.


Intelligence oversight in South Africa


Ladies and gentlemen, in addressing you it would be remiss not to refer to a
testing challenge, which South Africa recently had to confront. Indeed, it is this
very perspective, which informed South African oversight bodies, in the grave
intelligence crisis recently confronted by our fledgling democracy, where senior
officials, including a former Director-General of our domestic intelligence service,




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were found to have flagrantly abused their powers in violation of our country’s
Constitution and laws.


Here the members of the Church Committee would have been pleased to note
that oversight was not found wanting! These transgressions were uncovered by
an investigation of the Inspector-General for Intelligence; launched in terms of
the law at the request of the executive; and extensively discussed by the Joint
Standing Committee for Intelligence.


In dealing with the crisis, our oversight bodies – which includes the executive,
which has a constitutionally enshrined obligation to exercise oversight over the
control and direction of the intelligence services - could not afford to shirk from
our public duty to safeguard our democracy, as turning a blind eye to such
misconduct would have taken us down the road to anarchy.


We therefore unambiguously asserted the supremacy of our Constitution and the
rule of law. In the words of the 18th Century legal philosopher, Montesquieu, we
sought to ensure that ‘…the law should be like death, which spares no-one’, by
stressing our obligations, irrespective of our role in society, to uphold these
principles.


While this trying period has been unprecedented in the history of our young
democratic intelligence dispensation, we are now beginning to turn the corner.
And despite the lapses in conduct, we need to emphasise here that this related
to a few rotten apples. The overwhelming majority of officers have shown the
professionalism, commitment, loyalty to the Constitution, respect for the law and
effectiveness expected of them.


In moving forward, we have demonstrated that oversight matters; we have
heeded the counsel of the Church Committee and have not just limited our




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interventions to the few. And we are currently undertaking fundamental reforms
to obviate against the recurrence of such misdeeds.


We are re-examining the mandates of the services and strengthening the
legislation, regulations, operational procedures and internal control measures
governing their activities. We are also looking at ways in which to reinforce the
manner in which oversight investigations are undertaken and oversight is
exercised, which the deliberations at this conference will no doubt augment.


Of particular interest to this gathering is the fact that our oversight legislation is
being tested by our courts for the very first time. This is as a result of the charges
that were brought against those who failed to co-operate with the Inspector-
General, which the legislation provides for. The court cases of those concerned
have now been set down for trial.


We are also undertaking a Civic Education Programme, to ensure that all
intelligence officers adhere to the law and respect democratic norms, so as to
tackle the problematic mindset which facilitated such misconduct. And we are
embarking on a Public Intelligence Review, where we will engage civil society on
our reforms, so as to rebuild public trust and confidence in our intelligence
services.


In addition, we have used these events to intensify the implementation of our
ongoing programme, which is geared to building the professional capacity of our
intelligence services to enable them to meet the complex security challenges of
the 21st Century.


It is this professional intelligence corps that will better safeguard our country, by
bolstering our efforts to successfully carry out our programme to provide a better
life for all our people and play an effective and responsible role in Africa and the
wider world.



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It is this intelligence corps that must recognise that they operate at the behest of
all our people and as such are accountable, through the civilian oversight bodies,
for the manner in which they conduct themselves.


They must be conscious of the dangers of compromising the truthfulness of
intelligence and prize the integrity, objectivity and credibility of their products.


They must understand that their effectiveness lies in their adherence to our
Constitution and the law, which enables them to exercise their vital national
security mandate.


They must be aware that in fulfilling this mandate they are required to enhance
their capacity so as to render the quality advice essential for the current global
context. And in enhancing their capacity, they must be conscious that this
requires them to foster teamwork at home and partnerships abroad, given the
interconnectedness of today’s threats.


National security our collective responsibilities


It is the interconnectedness of these threats and the manner in which they are
dealt with - flowing from the views of those commentators challenging oversight
bodies to make themselves heard - that I would like to turn to now.


Your oversight mission, ladies and gentlemen, will come to naught, unless all
countries embrace their collective responsibilities in making our world more
secure.


As world leaders continue to acknowledge; today’s threats do not respect
national boundaries, are interlinked and as such affect us all. These threats
encapsulate the mutually reinforcing connection between security, development



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and a respect for human rights. Accordingly, we will not benefit from security
without development; we will not benefit from development without security; and
we will not benefit from either without a respect for human rights!


While imbalances in power have historically determined the gravest threats to our
survival, the fact remains that the mutual vulnerability of all nations has never
been starker.


No state can effectively protect itself if it acts alone. Its best protection lies in an
agreed common security consensus; where rich and poor, the strong and the
weak, all share an equitable voice in global governance and trade. And the
foundation of this consensus must be constructed upon a genuine commitment to
multilateralism and dialogue and an enduring respect for international norms in
regulating nations conduct.


Those who wield the greatest power bear the greatest responsibility for ensuring
that this common security consensus is forged. In this regard, let us be reminded
here of the ancient Greek historian, Thucydides’ account of the Peloponnesian
War - where he reconstructs a dialogue between the invading Athenians and the
people of Melos, who they sought to subjugate - which best illustrates this
responsibility.


When questioned by the Melians – as to why Athens chose to invade some
states and not others and the nature of the right that governed their actions - the
Athenians responded ‘…we shall not trouble you with specious pretences…since
you know…the right…as the world goes…is only in question between equal
powers, while the strong do what they can and the weak suffer what they must’! 7




7
 Cited in Chief Justice Murray Gleason, Second Magna Carta Lecture, Legality Spirit and Principle,
Sydney, November 2003


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In today’s era of global abundance, poverty and interdependence, where our
shared destiny is so closely intertwined, the strong have a duty to ensure that the
weak no longer have ‘to suffer what they must’. It is the strong that hold within
their hands the necessary resources to reduce the massive divide between rich
and poor, which gives rise to global imbalance and instability; which breeds a
sense of anger, hopelessness, frustration and lack of dignity.

And it is this noble spirit that marked the beginning of the 21 st century, where
nations, both rich and poor, united in solidarity, making a solemn undertaking to
forge this common security consensus. In pledging to a global compact, in the
form of the United Nations Millennium Declaration, they gave concrete
expression to their commitment to eradicate poverty, underdevelopment, and
social exclusion, whilst ensuring that the necessary conditions are created for
good governance, stability and peace.

Yet six years later – despite the fact that this commitment lives on in the words of
the lofty declarations adopted at various world gatherings that have taken place
since – in practice, following the 9/11 catastrophe and the events that ensued in
its wake, this emerging consensus lies in tatters.

While the poor endeavour to play their part in making good on this commitment,
they argue that the rich have failed to deliver. Their frustrations were aptly
captured in President Mbeki’s recent address, on behalf of the G77 nations and
China, to the 61st session of the United Nations General Assembly, where he
said:

‘…a global partnership is impossible when the rich demand the right, unilaterally,
to set the agenda and conditions for the implementation of commonly agreed
programmes…’ and went on to argue that ‘…part of the problem with this
unequal relationship is the imposition of conditions on developing countries and




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the constant shifting of the poles whenever the poor adhere to each and
everyone…8’

For the poor, the commitment made by all nations at the turn of the century will
continue to ring hollow, as long as the strong forget their responsibility to the
weak, who continue to ‘suffer what they must’. For the poor, it will remain a
distant dream, as long as the impulses of multilateralism, dialogue and
adherence to international norms, which infused this commitment, continue to be
outstripped by the clamour for unilateralism and the drums of war. For the poor,
as long as their voice is ignored in the determination of global governance and
trade, it will remain unfulfilled.

And as a result the anguish of those living in poverty deepens; the horrors and
atrocities of violence, terrorism, conflict and war continue to engulf the lives of the
innocent; the scourges of racism, xenophobia and Islamaphobia grow where
tolerance once flourished; and fear continues to terrorise those who once felt
safe.

The world is more insecure and it calls out for collective action, collective
responsibility, in an equitable partnership! All is not lost if we all heed this call
both in word and in deed. We can reclaim the vision of hope that was borne of
the new century. We can and must rebuild the common security consensus that
is necessary to advance our mutual interests and our shared humanity.

As oversight bodies, you clearly have a critical role to play. The national security
mandate of the intelligence services, which you assure on behalf of your people,
is only sustainable if you actively acknowledge your collective security mandate.
It is only possible if you make a decisive contribution to moving us closer to the
day where the inherent right to live in dignity; in freedom from want and freedom
from fear is accomplished for all the world’s inhabitants.


8
 Address by President Mbeki at the 61st session of the United Nations General Assembly, New York, 19
September 2006


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In closing, let me leave you with the inspiring words of Nigerian poet, Ben Okri, in
an excerpt drawn from his poem Lines in potentis, which sets out the principal
task to be undertaken:


‘…Tell everyone
That history, though unjust,
Can yield wiser outcomes…
…that the future
Is yet unmade…
Many possibilities lie in your cellars…

…Tell everyone that the idea
Is to function together
As good musicians would
In undefined future orchestras…

…Re-make the world
Under the guidance of inspiration
And wise laws…
…I want you to tell everyone…’

Our future and that of successive generations is dependent on this; let us not fail
them, lest we risk being recorded in the annals of history in Beaumarchais’
scathing terms!

Ladies and gentlemen thank you for your attention; I wish you well in your
deliberations.




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