Reforming Intelligence: Obstacles to Democratic Control and Effectiveness

Eight: Establishing Democratic Control of Intelligence in Argentina

eight establishing democratic control of intelligence in argentina Priscila Carlos Brandão Antunes T he involvement of the legislative branch in setting up and controlling intelligence activities is a crucial aspect of establishing democratic control and effectiveness.This supervision must be in accord with two basic parameters: the control of the intelligence operations (which, in order to be effective, need to be secret); and budgetary control, because intelligence is an activity that is highly specialized and, at least in some areas of tradecraft, involves significant technological requirements. Based on these premises, this chapter discusses the overall importance of the legislative and judicial branches in asserting control over intelligence activities (with the greatest emphasis on the legislative); briefly discusses intelligence reform in the context of civil-military relations reform; describes in detail the path Argentina followed in order to reform intelligence; and analyzes the position of Argentine congressmen in this process, particularly in enacting the National Intelligence Law, finally approved on December 21, 2001, after nearly twenty years of debate.1 In so doing, this chapter explicitly highlights two points emphasized by Tom Bruneau and Steve Boraz in the introduction: reform is both difficult to achieve and often the last major hurdle in democratic consolidation efforts. legislative and judicial control of intelligence The institutional consolidation of a democratic system demands the control of intelligence activities. Initially, the discussion about the control of intelligence activities typically raises a high degree of resistance by the intelligence community, since it may result in the ex- priscila carlos brandão antunes posure of methods, activities, and people, which in turn could pose a significant threat to the effectiveness of the intelligence agencies. Therefore it is worth remembering that any discussion of the control of intelligence should include the way in which this control will be implemented , and by whom. As pointed out in the Introduction to this book, there are various levels of control over intelligence and security activities, including the executive; the legislature, which determines the legal mandates that outline the functions and missions of the intelligence community; congressional committees; the judiciary; the inspectors general internal to the agencies; the media; and other mechanisms that can be created by the executive and the legislative branches to control intelligence.2 In this section I examine the two branches within the government—legislative and judicial—that balance executive authority and provide some means of control of an intelligence community. Legislative Control Among the control mechanisms noted above, the legislative branch is undoubtedly the most important. This is true because legislatures provide a review of intelligence that is not a part of the intelligence apparatus, yet still resides in the government. This is not the case with the executive branch, which can and does provide oversight in some instances , because the intelligence community is organized within the executive . In general, legislatures exert control over intelligence through specific commissions, made up of representatives from both the House of Representatives and the Senate. These commissions may be made up only of congressmen or only of senators, or they may be mixed. The institutional design of these commissions varies from country to country and depends on congressional interest in legislating national security. As the main instrument of control of the intelligence system in countries where there is in fact control, legislative control has received the attention of many scholars who have sought to define its general characteristics. The Argentine expert, Marcelo Saín, argues that congressional control should include inspection of all the operations and tasks carried out by the intelligence services, the set of sources and methods used to obtain data and information, and the identity of the agents carrying out these activities, in order to justify their classification. Control should also refer to existing files, the information produced, and the set 196 intelligence in argentina of secret norms that regulate their missions, as well as all the expenses involved. In order to carry out adequate inspection of intelligence activities , controlling authorities should have the necessary legal mandates , including access to classified information; power to carry out inspections and investigations in all public or private offices; and, with judicial warrant, a mandate to require any document or other source considered important. The effectiveness of this control in discovering functional irregularities and deficiencies of intelligence activities and consequent formulation of measures for their...