Spies on special forces missions: Shutterstock image 2020
Analysis

Holding Secret Organisations Accountable: From Spies To Special Forces

In the shadows of the secret world, how far can external oversight ensure people behave ethically?

Spies on special forces missions: Shutterstock image 2020

What keeps secret organisations performing at a high level when few people know what they do? In his new book, Dr Jamie Gaskarth, a Reader in Foreign Policy and International Relations at the University of Birmingham, explores how the UK’s intelligence and security agencies are held accountable. 

By Dr Jamie Gaskarth: 

The agencies’ very existence was only made public relatively recently. 

GCHQ’s work had been revealed in the 1960s by Chapman Pincher, a journalist for the Daily Express, and the Security Service (MI5) had been mentioned in parliament as far back as 1952; but it wasn’t until 1983 that the government officially acknowledged GCHQ and only reluctantly released information about the Secret Intelligence Service (MI6) in 1986 as a result of the Spycatcher affair (when a former MI5 officer wrote his memoirs and the government sought to block their publication). 

Over the last three decades, the agencies have been subject to legislation defining their role and powers, with the Security Services Act 1989 doing so for MI5 and the Intelligence Services Act 1994 for GCHQ and MI6.

However, there are limits to how far external parties are able to penetrate these organisations and understand their activities.

The sheer complexity of the work of GCHQ means that outsiders struggle to gauge the specific details of their operations - even with access.

The oversight body IPCO (the Investigatory Powers Commissioner’s Office) employs a small group of experts to advise about inspections but its team of 50 staff, including 15 judicial commissioners, is responsible for overseeing 600 public bodies overall.

The Intelligence and Security Committee, the only parliamentary committee able to investigate sensitive intelligence matters, is made up of MPs and peers, most of whom have degrees in non-scientific subjects like history and so may not grasp the complex technical aspects of GCHQ’s work (Stewart Hosie MP is unusual in having a degree in computer science).

The GCHQ building in Cheltenham. Crown Copyright.

MI6 operates largely abroad and so its activities overseas are not subject to the same legal framework as domestic agencies.

Under Section 7 of the Intelligence Services Act 1994, officials can break the law provided they have authorisation from the Secretary of State.

That is the ‘licence to kill’ clause, which technically provides the legal cover for intelligence officials to murder; or commit lesser crimes such as burglary, kidnap or bribery. 

Intelligence chiefs have long denied they would seek authorisation to kill, although Section 7 did allow officials to avoid prosecution over rendition operations to Libya in 2004.

When Jack Straw claimed to have no recollection of sanctioning these activities, the agencies apparently paid him a visit and reminded him that he had given verbal authorisation.  

Oversight of MI6 is constrained by the fact that surveillance overseas is managed under class authorizations – meaning individual actions are not subject to the same scrutiny.

Furthermore, a lot of what is undertaken by this organization is beyond any external constraint if it doesn’t require warrants or concern British citizens.

MI5 - The UK's Security Service

MI5, operating largely at home and requiring an extensive number of warrants from the Home Secretary, (and brought into the legal system via Special Immigration Appeals Tribunals and criminal prosecutions of terrorists) is more open to external scrutiny.

But, when interviewing former officials, it was striking how little resonance external oversight seemed to have on their work (although legal constraints were often cited). 

The judicial commissioners of IPCO do have a say on what warrants are authorised and inspect their activities regularly. But the sheer number of operations MI5 conduct at any one time mean inspections can only be impressionistic. 

In other words, despite legislation, inspections from judicial commissioners, and some parliamentary scrutiny, these agencies still enjoy a remarkable amount of freedom to carry out their work. 

While formal means of oversight do provide more accountability than at any time in the agencies’ history, two other aspects were regularly cited by the people I spoke to from GCHQ, MI5 and MI6.

One of these was the specific task they faced. The intelligence and security agencies spend most of their time seeking to counter threats from terrorism, hostile states and criminals.

Having an opponent who is seeking to do the public harm is a major factor in focusing their efforts.

As a former Director General of MI5 put it: 

“In the Security Service, we have got lots of baddies out there doing things and it is our job to stop them, and that means that you have a very acute, direct need to perform, because otherwise, you know, bombs will go off ... It is a bit like when you go to war.

"You can get lots of things done, because everyone realises there is a war on.”

The risk of this ‘can do’ attitude is that officials may not reflect enough on the ethical consequences of their actions.

The ISC noted in their 2018 report into detainee mistreatment and rendition during the war on terror that telegrams mentioning sleep deprivation of prisoners were sent to multiple officers in 2002, “none of whom remarked on the mistreatment”. 

Thus, while a focus on the task can keep secret organizations efficient, it doesn’t ensure they act ethically. That is reliant on the internal culture of the agencies.

In response to the ethical dilemmas of the war on terror, GCHQ, MI5 and MI6 have made increasing use of ethics counsellors, who encourage officials to voice their concerns and debate appropriate behaviour. 

They also utilise staff forums, chat rooms, ‘stand ups’ and town hall meetings. Ultimately, it is this ‘vernacular accountability’ that is most important to ensuring secret organizations exercise restraint and don’t abuse their powers.

Officials speak to one another to gauge how they should behave.

As a former MI6 officer recalls, the first thing new entrants ask is:

“Does the Service have boundaries? Where are they?”

The changes of culture within the agencies in response to controversies over the War on Terror since 2001 and Iraq in 2003 are potentially a model for other secret organisations to follow.

Shutterstock special forces 2020
Special Forces by PRESSLAB / Shutterstock

In particular, Special Forces are currently operating in an accountability grey zone. 

That places a significant burden on soldiers to hold each other to the highest standards of conduct. It is the judgment of colleagues that matters most and so training and the internal reinforcement of values through rewards and punishments are paramount. 

Ironically, in the United States, it is external parties that have threatened this process. 

Issuing Presidential pardons to forces personnel that have been convicted of mistreatment of detainees sends a negative signal about the ethos of secret military organisations.

It is to the credit of the US Navy SEALs that some of the strongest voices opposing clemency for Eddie Gallagher were troops under his command who felt that his behaviour went against the values of their unit. 

In the secret world, there will always be limits to how far external oversight can ensure that people behave ethically when acting in the shadows.

Ultimately, the motivation to act rightly comes from within. 

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Dr Jamie Gaskarth is Reader in Foreign Policy and International Relations at the University of Birmingham where he teaches strategy and decision-making.

He is the author/editor of six books on international relations, foreign policy and intelligence and served on the Academic Consultative Panel for the 2015 National Security Strategy/SDSR and 2016 Annual Review.

He is Co-Editor of the ISA Journal of Global Security Studies and was appointed Visiting Professor at Sciences Po, Lyon in 2018.

His latest book is Secrets and Spies: Intelligence Accountability After Iraq and Snowden.

Secrets and Spies: UK Intelligence Accountability After Iraq and Snowden is out now with Chatham House/Brookings Institution Press.

For a 20% discount, use the code GASKARTH20: www.eurospanbookstore.com/secrets-and-spies.html

 

* Cover image: A special forces and police surveillance team by FrameStockFootages / Shutterstock.