UN Proposes “Good Practices” for Intelligence

The United Nations Human Rights Council last week presented a new set of institutional and policy practices for intelligence agencies that it said would help to improve accountability and protection of human rights in intelligence policy.

The new “Compilation of good practices on legal and institutional frameworks and measures to ensure respect for human rights by intelligence agencies while countering terrorism” (pdf) discusses 35 principles and practices in four categories: legal mandate, oversight, compliance with human rights standards, and issues related to specific intelligence functions.  The compilation was prepared for the UN by Special Rapporteur Martin Scheinin with the assistance of the Geneva Centre for the Democratic Control of Armed Forces.

The UN Human Rights Council does not have (or claim to have) authority to dictate the intelligence policies of member nations.  Moreover, the proposed “good practices” do not distinguish between democracies and dictatorships, or among governments that have an independent judiciary and those that came to power through electoral fraud or military coup.  The practices also do not differentiate among domestic, foreign and military intelligence services, though each of these may be subject to different legal and policy frameworks.  “It is not the purpose of this compilation to promulgate a set of normative standards that should apply at all times and in all parts of the world,” the document states.

Indeed, “Very few States have included all of the practices outlined below in their legal and institutional frameworks for intelligence services and their oversight.  Some States will be able to identify themselves as following the majority of the 35 elements of good practice.  Other States may start by committing themselves to a small number of these elements….”

But Mr. Scheinin told the Council last week that he “hoped that States would use his compilation of good practices in an assessment of their own law and practice, and identify the areas of full adherence, of partial adherence and of non-adherence. Thereafter, they would hopefully determine the areas where they wished to adhere with the identified good practices in the future and set benchmarks for getting there.”  In other words, the compilation can serve as a template which citizens can use for comparing and evaluating national intelligence policies.

In many respects, the United States is among the nations with the best intelligence practices, with a relatively well-developed legal framework for intelligence activities and a mature oversight apparatus.  But in other respects, it falls short.

For example, the UN compilation’s Practice 9 requires that “Any individual who believes that her or his rights have been infringed by an intelligence service [should be] able to bring a complaint to a court or oversight institution…. Individuals affected by the illegal actions of an intelligence service [should] have recourse to an institution that can provide an effective remedy, including full reparation for the harm suffered.”

But in cases like those of Khaled el-Masri and Maher Arar — who appear to have been wrongly detained, “rendered” abroad, and tortured — no adjudication or remedy is available from the U.S. government since their complaints have been deflected by the use of the state secrets privilege.

More generally, intelligence oversight in the U.S. has failed to generate a consensual public record concerning the extraordinary intelligence activities of the post-9/11 era, leaving the field open to continuing allegations of abuse and violations of law.  Today, Physicians for Human Rights issued a report alleging that CIA medical personnel were complicit in unlawful human experimentation through their collaboration in monitoring the application of “enhanced” interrogation techniques.  The CIA denies the charge.

In another instance where U.S. practice falls short of the ideal, the UN compilation’s Practice 3 directs that “The powers and competences of intelligence services [should be] clearly and exhaustively defined in national law.”

But the terms of current U.S. intelligence law are not entirely clear or exhaustive.  We don’t know, for example, the current nature or scope of domestic surveillance activities or what exactly was permitted under the most recently enacted amendments to the Foreign Intelligence Surveillance Act.

That absence of public clarity is deliberate, said NSA Director Gen. Keith B. Alexander, the new Commander of US Cyber Command, in a speech at the Center for Strategic and International Studies last week.

In response to a question from Kate Martin of the Center for National Security Studies about the feasibility of increasing public disclosure of cyber security policy, Gen. Alexander said that that was not his preferred approach.  Instead, he promised, government officials would be fully candid with each other, while continuing to withhold information from the public.  In other words, he said, what Americans can expect is “transparency at the classified level.”