Commissions of Inquiry and National Security: Comparative Approaches (Praeger Security International)

Commissions of Inquiry and National Security

This page intentionally left blank

Commissions of Inquiry and National Security Comparative Approaches STUART FARSON AND MARK PHYTHIAN, EDITORS

PRAEGER SECURITY INTERNATIONAL

Copyright 2011 by ABC-CLIO, LLC All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, except for the inclusion of brief quotations in a review, without prior permission in writing from the publisher. Library of Congress Cataloging-in-Publication Data Commissions of inquiry and national security : comparative approaches / Stuart Farson and Mark Phythian, editors. p. cm. — (Praeger security international) Includes bibliographical references and index. ISBN 978-0-313-38468-4 (hard copy : alk. paper) — ISBN 978-0-313-38469-1 (ebook) 1. Governmental investigations. 2. National security. 3. Intelligence service. I. Farson, Anthony Stuart, 1944 – II. Phythian, Mark. III. Title. IV. Series. UA10.5.C63 2011 355'.033 — dc22 2010040867 ISBN: 978-0-313-38468-4 EISBN: 978-0-313-38469-1 15

14

13

12

11

1

2

3

4

5

This book is also available on the World Wide Web as an eBook. Visit www.abc-clio.com for details. Praeger An Imprint of ABC-CLIO, LLC ABC-CLIO, LLC 130 Cremona Drive, P.O. Box 1911 Santa Barbara, California 93116-1911 This book is printed on acid-free paper Manufactured in the United States of America

Contents

1

2

3

4

5

Toward the Comparative Study of National Security Commissions of Inquiry Stuart Farson and Mark Phythian Influence without Power: Commissions of Inquiry and the Australian Intelligence Community Andrew O’Neil Public Inquiries in Canada: Making Espionage, Organizational Culture, Wrongdoing, and Mass Murder More Transparent Stuart Farson and Reg Whitaker

1

13

29

The Politics of Commissions of Inquiry into Security and Intelligence Controversies in Britain Mark Phythian

55

Inquiring into Dirty Wars: A “Huge Smokescreen of Humbug”? Peter Gill

78

6

The Role of Judges Ian Leigh

7

The Politics of U.S. National Security Commissions Kenneth Kitts

98 113

vi

8

9

Contents

Investigative Oversight of the American Intelligence Community: Promise and Performance Glenn Hastedt

133

Commissions of Inquiry as Agents of Change in the Israeli Intelligence Community Shlomo Shpiro

158

10

Legislative Commissions of Inquiry in Spain Antonio M. Díaz Fernández

11

Cover Up or Dig Up? Inquiries into Security Services in Welfare States: The Cases of Norway, Sweden, and Denmark Janne Flyghed

12

13

14

Commissions of Inquiry in South Africa’s Intelligence History 1960–2005 Kevin A. O’Brien Commissions of Inquiry into National Security and Defense Affairs in the Southern Cone: The Cases of Argentina and Chile José Manuel Ugarte European Parliament and Parliamentary Assembly of the Council of Europe Inquiries into Intelligence and Security Issues Aidan Wills

15

The United Nations Iraq Oil-for-Food Inquiry Reid Morden

16

Inside a National Security Inquiry: The Aspin-Brown Commission at Work Loch K. Johnson

179

203

221

250

267 292

308

Selected Bibliography

325

Index

331

About the Contributors

349

CHAPTER 1

Toward the Comparative Study of National Security Commissions of Inquiry Stuart Farson and Mark Phythian

Recent years have seen the development of the comparative study of security and intelligence.1 In its early days there was a marked difference internationally in terms of both who studied such matters and the approaches they took.2 The reason for this split had much to do with the availability of, and access to, information. In the United States (U.S.), hearings in the Senate (Church) and House of Representatives (Pike) in the mid-1970s, largely focusing on the activities of the Central Intelligence Agency (CIA), led to the establishment of permanent congressional oversight committees. The reports of the Church Committee and the work that would stem from these permanent oversight bodies provided sufficient information for political scientists to develop theories and approaches to enhance and challenge their understanding of U.S. international relations. Similar data and oversight bodies were not then available in other parts of the Englishspeaking world. Thus, in Australia, Britain, and Canada, few political scientists interested themselves in this avenue of study. What did attract writers in these countries was information about past events and certain intelligence failures and scandals. This “Westminster” literature—in its early stages—was thus different from that in the United States in two important respects. Firstly, it tended to be written by historians, journalists, and, to a lesser degree, lawyers and criminologists, and, secondly, it tended to focus internally on domestic security and intelligence issues rather than externally on foreign intelligence operations and agencies. This distinction may be discerned in the initial editorial direction of the two major intelligence journals, which began publication in the mid-1980s. While Intelligence and

2

Commissions of Inquiry and National Security

National Security (published in the United Kingdom) tended to have an historical bent in its early years, the International Journal of Intelligence and CounterIntelligence (published in the United States) adopted a more social science orientation. The purpose of the present volume is to extend the focus of the existing comparative work to analyze an increasingly important but, in terms of academic analysis and public awareness, relatively neglected dimension—commissions of inquiry into intelligence and national security issues.3 As well as providing a series of case studies, it sets out a prospectus designed to provide an analytical framework for the future comparative study of commissions of inquiry into issues of intelligence and national security. As security and intelligence studies have developed over the last decade or so into a distinctive area of academic inquiry, the study of oversight and accountability has come to form one of its key dimensions. For the most part, this has focused on the emergence and performance of permanent review and oversight bodies, most of which have been established by statute. There has been relatively little attention devoted to commissions of inquiry, the challenges they face, and their impact and effectiveness.4 In some countries this has been a consequence of the problem identified by Loch K. Johnson—that “commission doors have generally been locked tight against scholars and reporters.”5 In other countries, however, this may have more to do with the sporadic nature of such ad hoc investigative bodies. In Canada, for example, the McDonald Commission, which published its final report in 1981, went to great pains to be as open and independent as possible. It drew heavily on academics from around the world to prepare specific studies. It was careful to leave a public record of its transcripts in both official languages at selected libraries across the country. Furthermore, its senior staff members—Peter Russell (director of research) and John Edwards (senior legal advisor)—were themselves prominent academics who mentored many students in the coming years. However, there would be no subsequent inquiry that involved intelligence matters for 20 years after the McDonald Commission. Nevertheless, the incidence of intelligence and national security commissions of inquiry has been increasing, and over the past decade or so a considerable number of highly significant commissions have reported across the world on security and intelligence-related issues. These have been a response to the 9/11 terrorist attacks and aspects of the subsequent “war on terror,” including the intelligence basis of the decision to go to war in Iraq. The most well-known of these include the 9/11 Commission itself and the Silberman-Robb inquiry in the United States, the Arar Commission in Canada, the Butler and Chilcot inquiries in the United Kingdom, and the Flood commission in Australia. While these may have conducted their proceedings, wholly or at least in part, in private, their reports have all been placed in the public domain. The days when the report of a commission of

Toward the Comparative Study of National Security Commissions of Inquiry

3

inquiry, even into issues as sensitive as intelligence and national security, could be completely withheld from the public are increasingly a thing of the past.6 Indeed, one of the consequences of the intelligence failures and scandals of the post-9/11 era is a developing norm that such reports should be published in full, even where the evidence underpinning them remains secret in some cases. Alongside this development, previously shut doors have begun to open a little, facilitating academic inquiry. Most importantly, over the last few years there has emerged a body of academic work on commissions. In the United States it has been generated by experts in presidential politics, congressional politics, and intelligence. Prominent within it is the work of Loch K. Johnson, Kenneth Kitts,7 Glenn Hastedt,8 and Amy Zegart.9 A similar literature has developed in Canada10 and the United Kingdom.11 In addition, several of those who have led or been centrally involved in U.S. and Canadian commissions of inquiry in particular have written detailed memoirs that provide important information that cannot be gleaned from a reading of the relevant reports alone and so add to our understanding of the mechanics and politics of commissions.12 Two of the chapters in this book extend this participant observation perspective in reflecting on the processes involved in the Aspin-Brown Commission in the United States and the United Nations’ inquiry into its own Iraqi Oil-for-Food program. In some cases, accounts of inquiry processes by journalists have also added substantially to our understanding.13 However, commissions of inquiry have also played a significant role in the politics of other countries, where they have not always attracted the same levels of academic and journalistic scrutiny as in Australia, Canada, the United Kingdom, and the United States, while the memoir accounts that support and inform such work are either fewer or nonexistent. This is a reflection of the fact that recent years have seen a much wider range of states establish commissions of inquiry into intelligence and security issues. Such commissions have left firm footprints in the politics of Israel, India, and South Africa. It may be argued that truth and reconciliation commissions both form a separate genre from commissions of inquiry focusing on various particular aspects of national security and have a different pedigree. They have long acted as an important mechanism used in transition states to facilitate coming to terms with and accounting for the past, particularly where the coercive arms of the state were used to abuse the rights and liberties of citizens in secret. Hence they form an important dimension of the extant human rights literature. In addition to the examples of South Africa, Argentina, and Chile covered in chapters in this volume, these commissions have formed an important component of the history of Central and South America.14 Similarly, they have also been a feature of transitions from communism in Eastern Europe—for example, in the Czech Republic and with regard to the former East Germany. Hence, security and intelligence have also been key

4

Commissions of Inquiry and National Security

dimensions of wider national debates surrounding justice in transitional states relating to a range of pre-transition state crimes.15 It is in this context that we have also seen the development of unofficial commissions of inquiry by nongovernmental organizations.16 In Brazil, where there do not appear to have been any formal inquiries authorized by the state until very recently, the archbishop of São Paulo and the World Council of Churches were first to document and hold an inquiry into the “disappeared” and tortured.17 Another variation on this theme has been the development of so-called underground royal commissions. In Canada, a spate of inquiries conducted since 9/11 that allegedly did not deal with the real issues led to a range of studies. One of these studies dealt with foreign and defense policy.18 We might also view commissions of inquiry into security and intelligence issues in established democracies as themselves constituting a form of truth and reconciliation process. For example, Teitel has argued that one role of truth commissions is to produce a “democratizing truth,”19 one that “constructs a societal consensus through the process of public testimony and witnessing. It is democratizing in the sense that it is participatory and brings about a collective shift in understanding of the past and perspective on the present.”20 Clearly, the extent to which commissions of inquiry take evidence in private and withhold sensitive material from the public domain has an impact on the capacity of commissions of inquiry into intelligence and security matters to fully perform this function. Nevertheless, there is a clear “democratizing truth” dimension to inquiries such as the 9/11 Commission in the United States, the Chilcot inquiry in the United Kingdom, and the McDonald and Arar commissions in Canada. In this respect they either validate official truth—the formal governmental explanations of the time—or create a public truth that challenges and coexists alongside the official truth and whose existence brings a form of closure and allows those affected by the event(s) in question to move on. In a further development, recent years have seen international organizations such as the United Nations (UN) and European Union (EU) undertake inquiries into issues relating to intelligence and national security. In the case of the UN, the Volcker Commission into the Iraqi Oil-for-Food program operated in parallel with a number of national, and mostly criminal, investigations into corruption relating to the program. In the case of the EU, in 2006, a 46-member temporary committee on extraordinary rendition was established to investigate “the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners.”21 The point of the foregoing overview is to clearly establish that inquiries into issues of intelligence and national security, or those that touch on issues of intelligence and national security as part of a wider mandate, have increased in number and geographical distribution in recent years; have occurred in a range of different political, social, and cultural contexts; and are no longer even the exclusive preserve of states, as they are

Toward the Comparative Study of National Security Commissions of Inquiry

5

also beginning to be utilized by transnational institutions. Such expansion calls for comparative analysis so as to better understand the potential of these bodies and the pitfalls they should avoid. Given that commissions of inquiry are essentially an expression of the politics of liberal democracies, citizens, legislators, and existing and potential commission members all have a vested interest in developing a base of shared knowledge about these processes so as to move toward establishing norms of conduct, both for those conducting an investigation and for those either being investigated or facilitating an investigation. To this end, we propose that this comparative analysis should be carried out within the framework outlined in the following, which involves analysis of five separate stages of the inquiry process. THE CIRCUMSTANCES SURROUNDING THE CREATION OF A COMMISSION Democratic governments normally have a range of options at their disposal in situations where investigation of an issue is deemed necessary. These vary in important respects. One important criterion is openness and transparency. Investigatory processes range from those that are completely internal and unlikely to be made public to those that occur, to varying degrees, in the public domain. The decision as to whether the investigatory process will be open or closed will be informed by the sensitivity of the material under consideration but will also have an impact on the legitimacy of findings and recommendations. A second criterion concerns speed of results. Internal investigations tend to be completed faster than those operating at a public level. Another criterion is the capacity of the executive to affect control over the process, with internal inquiries offering the maximum opportunity. Finally, the cost of investigations is a factor that affects the choice of government instrument—commissions of inquiry normally being the most expensive of the various choices. Because commissions of inquiry tend to be just one of several options in the governmental armory, the first question that needs to be posed concerns the circumstances under which governments opt for commissions over other forms of investigation. Commissions of inquiry into national security and intelligence issues tend to be executive reactions to revelations concerning aspects of current or past practice. As the case studies that follow suggest, the executive branch has a greater chance of exerting some control over a commission process by moving quickly to institute an inquiry and hence operating from a position of political strength. Those who prevaricate only to be pulled along by the pace of public opinion risk not being able to exert the same influence on the process because forms of control that may have been exercised earlier—for example, over the terms of reference, the chair, or the duration (the range of levers at the disposal of the executive in setting up commissions of inquiry varies across states, as the chapters that follow clearly show)—are no

6

Commissions of Inquiry and National Security

longer acceptable to a public opinion made more suspicious of a government’s commitment to openness as a consequence of initial reluctance to embrace the inquiry option. Once the commission of inquiry option has been selected, a number of key questions arise. Firstly, how far is it possible to draw conclusions from the circumstances in which commissions are created? Linked to this, how far is it possible to discern emerging international norms regarding the types of intelligence and national security issue that mandate investigation by commission? To what extent are there choices between the types of commissions that can be established in different states? Where choice does exist, what (and who) determines the choice made? Under what legal and political authority are such commissions of inquiry normally established? To what extent are there significant national variations in the range of powers or authority commissions are granted? How far is the form of government under which they are created—established parliamentary, established presidential, or transition state—a factor in this? There is also the question of the comparative study of terms of reference: How important are the terms of reference, and who draws them up? Does the legislature normally play any part in either approving or amending them? Is it usual or possible for the commission to have the authority to amend its own terms of reference as it sees fit? How far is it possible to identify commonalities regarding areas excluded from terms of reference, and on what grounds are they excluded? These are questions of fundamental importance in the politics of commissions of inquiry. So too is the question of membership—who are the people who generally serve as commissioners? Who appoints them? To what extent are there rules or conventions that guide or determine this? Linked to this consideration is the question of the role of the judiciary in such inquiries—to what extent is there national variation in the role the judiciary can play? Finally, in terms of the creation of commissions of inquiry we need to consider the politics of commission timing. Bearing in mind the general rule of thumb outlined earlier—that an executive branch has a greater chance of exerting some control over the inquiry process by moving quickly to create one (even though this fact may not be apparent at the time and needs to be considered by politicians against the undeniable reality that the creation of a commission of inquiry entails political risk)—what kind of temporal gaps do we see between the event that precipitates the creation of the commission and the creation of the commission itself? A country-by-country approach offers the best means of explaining variation in such decision making.22 THE COMMISSION PROCESS AND POLITICS OF INVESTIGATION In this second stage, the focus of the analysis shifts from the executive branch and the question of how far it can exert control over the process to the politics of the inquiry itself. Still, there remains a key question that

Toward the Comparative Study of National Security Commissions of Inquiry

7

relates to attempts at political control or influence—namely, how independent the commission and its members are. Moreover, how is this independence to be measured? One obvious measure will lie in demonstrations of assertiveness. Another indicator might relate to how far the commission operates in public and how far in private and the question of who determines this. In general terms, the question of to what extent the work of the commission encounters resistance from the executive branch is key. What problems and roadblocks do commissions have to confront? To what extent are documents/evidence successfully withheld from commissions—either with their knowledge or in cases where this withholding is only discovered subsequently? What range of actors is involved in this resistance? The extent, then, that a commission displays a willingness to engage in contests over access to evidence will do much to define its independence. Comparative study can also guide our attention to the significance of the nature of the political system in which the commission operates in terms of resistance or attempts to control. A related set of questions concerns the resources on which a commission can draw. Here staffing levels and funding are key. So too is the quality and breadth of experience and expertise of such staff. ARRIVING AT CONCLUSIONS AND DRAFTING A REPORT The analytic focus remains on the individual commission here. This stage calls for an examination of the process of evaluation and accommodation by which a commission’s conclusions are arrived at. To what extent does accommodation occur in arriving at conclusions, and to what extent does the evidence suggest it is inevitable? To what extent is there variation as to whether commission reports are issued unanimously? Can they contain dissenting opinions? Where they do contain dissenting opinions, how far is this significant in terms of their reception? A related set of questions concerns the drafting of a commission’s report. Who is responsible for drafting the report? To what extent can anything be learned from comparative study of the length of the reports or the type of language used in the reports? How far do the reports use a language that avoids attribution of personal responsibility? For example, the language deployed in reports is regularly criticized, essentially on the grounds that it blunts the impact of criticisms the report might contain. Examples abound in the United States, United Kingdom, and Australia. To take just one example, Richard Falkenrath criticized the 9/11 Commission report’s language on the grounds that “many of the recommendations are written so vaguely and with so little post-9/11 policy context that they essentially become a Rorschach test for the reader— bits of text that allow one person to infer a searing indictment of current policy, while another might read a ringing endorsement.”23 In terms, once again, of political control, further key questions include to whom the report is submitted and who decides whether the report shall be

8

Commissions of Inquiry and National Security

published, either in full or in part? A related question concerns the lengths to which a commission will go to ensure its draft is published. In many instances, commissions have had to take legal action against the very government that has established them in order to see that this occurs. Linked to this is the question of whether the documentary evidence submitted to the commission is published in full or in part and—a separate question— whether the transcripts of interviews conducted by the commission are published or otherwise made available.

THE POLITICAL CONSEQUENCES AND IMPACT OF COMMISSIONS OF INQUIRY Once the commission has submitted its report, to what extent is its publication managed from within the executive branch, and with what consequences? How are the reports of commissions of inquiry received by the intelligence and security communities, the executive branch, expert opinion, the media, and (through a combination of these elements) the public? And to what extent is it common practice for legislatures to discuss a commission’s finding and recommendations? In many instances, commission reports are published long after the incidence of the event under investigation. This raises the question of to what extent governments use commissions of inquiry to delay or divert attention away from hot political issues to a moment when strong sentiments will have dissipated? Another key question concerns the political impact of commissions and how it should be measured. Should impact be measured in terms of the nature and content of reform proposals and whether these are taken up, in full or in part, by a government? Should it be measured in attribution or avoidance of attribution of blame? In this context, can impact be measured in terms of subsequent resignations? Returning to the earlier point about the relationship between commissions of inquiry in established democracies and truth and reconciliation processes in transitional states, to what extent does their primary impact lie in the process and the raw information exposed for the first time to the glare of the public? Does the significance of commissions of inquiry, then, lie in their accountability and transparency function? And, related to this, how far does a commission of inquiry’s report have an educative function that constitutes a lasting legacy? How far does it become an essential reference point in understanding an event and, where relevant, thinking about avoiding its recurrence?

EVALUATION OF THE PURPOSE OF COMMISSIONS OF INQUIRY These latter questions lead us to some of the most complex evaluative questions to ask of commissions of inquiry. What purposes do they serve?

Toward the Comparative Study of National Security Commissions of Inquiry

9

Are they genuine fact-finding bodies or mechanisms of political control or damage limitation?24 Alternatively, is this a false dichotomy, and is it possible to arrive at a more nuanced understanding of their purpose?25 There is considerable evidence from some countries that suggests the primary motive for establishing such commissions is limiting political damage and ensuring political survival. But how far does this differ, both from case to case and across different forms of government (established parliamentary, established presidential, or transition state)? For example, in a presidential system, the creation of a commission could be a preemptive act designed to prevent or limit the damage from legislative enquiry—as, for example, in the case of the U.S. Tower Commission into Iran-Contra. It seems less likely that this would be a factor in a parliamentary system, where the executive may already have in place mechanisms that can reliably perform this function—for example, in the case of the United Kingdom, by recourse to the Intelligence and Security Committee. At this stage in the development of comparative studies of security and intelligence there are, inevitably, challenges to be faced in offering answers to all of these questions in each case. Hence, we have invited individual authors to use this taxonomy as a form of menu from which to select those issues most germane to the national experience(s) about which they are writing. Nevertheless, it remains important to map out a comprehensive range of key questions to encourage debate about the most appropriate analytical framework for understanding commissions of inquiry into security and intelligence matters. Our aim is that this volume will generate discussion about the key questions to be asked and inspire others to seek to answer them in relation to other national contexts we have not been able to include in the present volume.

NOTES 1. One of the earliest articles to suggest an approach for comparative studies was by an author of one of the chapters of this book. See Glenn Hastedt, “Towards the Comparative Study of Intelligence,” Conflict Quarterly 11, no. 3 (1991): 55–72. 2. For an analysis of this early literature and the reasons for these differences, see Stuart Farson, “Schools of Thought: National Perceptions of Intelligence,” Conflict Quarterly 9, no. 2 (1989): 52–104. 3. For the most substantial surveys to date see the extensive work of Swiss-based think tank the Geneva Centre for the Democratic Control of Armed Forces (DCAF) at http://www.decaf.ch (accessed July 6, 2010); Thomas C. Bruneau and Steven C. Boraz, eds., Reforming Intelligence: Obstacles to Democratic Control and Effectiveness (Austin: University of Texas Press, 2007); and Stuart Farson, Peter Gill, Mark Phythian, and Shlomo Shpiro, eds., PSI Handbook of Global Security and Intelligence: National Approaches, vol. 1, The Americas and Asia, and vol. 2, Europe, the Middle East, and South Africa (Westport, CT: Praeger Security International, 2008).

10

Commissions of Inquiry and National Security

4. We are talking here of ad hoc commissions of inquiry that are required to investigate some aspect of national security—not commissions of a permanent nature that have an ongoing specific mandate. An example of the latter would be Canada’s Commissioner for the Communications Security Establishment, which similarly derives its authority to investigate certain matters from the Canadian Inquiries Act. 5. Loch K. Johnson, “The Aspin-Brown Intelligence Inquiry: Behind the Closed Doors of a Blue Ribbon Commission,” Studies in Intelligence 48, no. 3 (2004): 1–20. Quote at p. 1. 6. Despite the admonishment levied by former Canadian Supreme Court justice Peter Cory, discussed in the chapters by Peter Gill and Mark Phythian, former justices of his court have not always followed his advice. Former Supreme Court justice Frank Iacobucci, for example, subsequently chaired an “internal inquiry.” For a discussion of this inquiry, see chapter 3. 7. Kenneth Kitts, “Commission Politics and National Security: Gerald Ford’s Response to the CIA Controversy of 1975,” Presidential Studies Quarterly 26, no. 4 (1996): 1081–98, and Presidential Commissions and National Security: The Politics of Damage Control (Boulder, CO: Lynne Rienner, 2006). 8. Glenn Hastedt, “Foreign Policy by Commission: Reforming the Intelligence Community,” Intelligence and National Security 22, no. 4 (2007), 443–72. 9. Amy Zegart, “Blue Ribbons, Black Boxes: Toward a Better Understanding of Presidential Commissions,” Presidential Studies Quarterly 34, no. 2 (2004): 366–94. 10. For example, Dominique Clemént, “The Royal Commission on Espionage and the Spy Trials of 1946–9: A Case Study in Parliamentary Supremacy,” Journal of the Canadian Historical Association 11, n.s. (2000): 151–72, and “Spies, Lies, and a Commission: A Case Study in the Mobilization of the Canadian Civil Liberties Movement,” Left History 7, no. 2 (Fall 2000): 53–79; Stuart Farson, “Restructuring Control in Canada: The McDonald Commission of Inquiry and its Legacy,” in Controlling Intelligence, ed. Glenn Hastedt (London: Frank Cass, 1991), pp. 155–85. 11. For example, Brian Thompson and F. F. Ridley, eds., Under the Scott-Light: British Government Seen through the Scott Report (Oxford: Oxford University Press, 1997); Vernon Bogdanor, “The Scott Report,” Public Administration 74, no. 4 (1996): 593–611; Mark Phythian, “Hutton and Scott: A Tale of Two Inquiries,” Parliamentary Affairs 58, no. 1 ( Jan. 2005): 124–37; Alan Doig, “45 Minutes of Infamy? Hutton, Blair, and the Invasion of Iraq,” Parliamentary Affairs 58, no. 1 (2005): 109–23; Diana Coole, “Agency, Truth, and Meaning: Judging the Hutton Report,” British Journal of Political Science 35, no. 3 (2005): 465–85; Bill Rolston and Phil Scraton, “In the Full Glare of English Politics: Ireland, Inquiries, and the British State,” British Journal of Criminology 45, no. 4 (2005): 547–64. 12. In the case of the United States, for example, Thomas H. Kean and Lee H. Hamilton, Without Precedent: The Inside Story of the 9/11 Commission (New York: Knopf, 2006); John G. Tower, Consequences: A Personal and Political Memoir (Boston: Little, Brown, 1991). For Canada, see, for example, Peter Desbarats, Somalia Cover-up: A Commissioner’s Journal (Toronto: McClelland and Stewart, 1997), and “The Independence of Public Inquiries: Dixon v. Canada,” Alberta Law Review 36, no. 1 (1997): 252–57; Kent Roach, “Review and Oversight of National Security Activities and Some Reflections on Canada’s Arar Inquiry,” Cardozo Law Review (October 2007): 53–84; Reg Whitaker, “Arar: This Affair, the Inquiry, the Aftermath,” Policy Matters 9, no. 1 (May 2008): 1–38.

Toward the Comparative Study of National Security Commissions of Inquiry

11

13. For example, Philip Shenon, The Commission: The Uncensored History of the 9/11 Investigation (London: Little, Brown, 2008). For some additional information, see Shenon’s Commission Web site at http://www.philipshenon.com/content/ index.asp (accessed July 6, 2010). For Canada, see, for example, Jeff Sallot, Nobody Said No: The Real Story about How the Mounties Always Get Their Man (Toronto: James Lorimer, 1979), based on the McDonald Commission hearings. For the United Kingdom, see, for example, Richard Norton-Taylor, Truth Is a Difficult Concept: Inside the Scott Inquiry (London: Fourth Estate, 1995). 14. For the breadth of such commissions, see Priscilla B. Hayner, “Fifteen Truth Commissions—1974–1994, A Comparative Study,” Human Rights Quarterly 16, no. 4 (November 1994): 598–655. See also, Margaret Popkin and Naomi RohtArriaza, “Truth as Justice: Investigatory Commissions in Latin America,” Law & Social Inquiry 20, no. 1 (Winter 1995): 79–116. A useful assessment of truth commissions may be found in Eric Brahm, “Uncovering the Truth: Examining Truth Commission Success and Impact,” International Studies Perspectives 8, no. 1 (February 2007): 16–35. 15. See, for example, Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions (London: Routledge, 2002); Alexandra Barahona De Brito, Carmen Gonzalez Enriquez, and Paloma Aquilar, eds., The Politics of Memory: Transitional Justice in Democratizing Societies (New York: Oxford University Press, 2001); Luc Huyse, “Justice after Transition: On the Choices Successor Elites Make in Dealing with the Past,” Law & Social Inquiry 20, no. 1 (Winter 1995): 51–78; and Robert I. Rotberg and Dennis Thompson, eds., Truth v. Justice: The Morality of Truth Commissions (Princeton, NJ: Princeton University Press, 2000). 16. Louis Bickford, “Unofficial Truth Projects,” Human Rights Quarterly 29 (2007): 994–1035. 17. Clara Amanda Pope, “Human Rights and the Catholic Church in Brazil, 1970–1983: The Pontifical Justice and Peace Commission of the São Paulo Archdiocese,” Journal of Church and State 27, no. 3 (1985): 429–52. 18. Roy Rempel, The Chatter Box: An Insider’s Account of the Irrelevance of Parliament in Making Foreign and Defence Policy (Toronto: Dundern Press, 2002). 19. Ruti G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000). 20. Michael Humphrey, “From Victim to Victimhood: Truth Commissions and Trials as Rituals of Political Transition and Individual Healing,” The Australian Journal of Anthropology 14, no. 2 (2003): 171–87. Quote at p. 180. 21. Official Journal of the European Union, “Wednesday, 18 January 2006,” http:// eur-lex.europa.eu/LexUriServ/site/en/oj/2006/ce287/ce28720061124en01590160. pdf (accessed July 6, 2010). 22. For example, in a U.S. context Kenneth Kitts argues, “The key here is balance. An investigation should be far enough removed from the event to permit objectivity, while not being so far away as to produce cold trails or other obstacles to the investigation.” Kitts, Presidential Commissions and National Security, p. 172. 23. Richard A. Falkenrath, “The 9/11 Commission: A Review Essay,” International Security 29, no. 3 (Winter 2004–05): 170–90. Quote at pp.182–83. He subsequently criticized the report’s “imprecise, anodyne, and impersonal assignment of responsibility for the US government’s failure to prevent the 9/11 attacks.” Falkenrath, “Sins of Commission? Falkenrath and his Critics,” International Security 29, no. 4 (Spring 2005): 208–11. Quote at p. 210. 24. As per Kenneth Kitts’s contention.

12

Commissions of Inquiry and National Security

25. For example, in a U.S. context, Thomas Wolanin has argued that presidential commissions might serve “multiple and interrelated purposes” and that a case study approach would be required to generate what Robert Yin has termed “analytical generalizability.” Thomas R. Wolanin, Presidential Advisory Commissions: Truman to Nixon (Madison: University of Wisconsin Press, 1975), p. 26. Cited in Kitts, Presidential Commissions and National Security, p. 166.

CHAPTER 2

Influence without Power: Commissions of Inquiry and the Australian Intelligence Community Andrew O’Neil

Given the covert nature of their activities, oversight of intelligence agencies is regarded as particularly important in democratic states, where citizens expect that all government instrumentalities will be held to account for their actions. It is important to distinguish between control and oversight of intelligence agencies. As Peter Gill and Mark Phythian note, control is the authority vested in an agency head “to manage and direct its operations,” while oversight “refers to a process of superintendence of the agencies that is concerned not with day-to-day management but with ensuring that the overall policies of the agencies are consistent with their legal mandate.”1 Active and effective supervision of intelligence agencies is seen as crucial to the functioning and maintenance of democracy itself. As one author has observed, “if not subject to control and oversight, the intelligence sector’s unique characteristics—expertise in surveillance, capacity to carry out covert operations, control of sensitive information, and functioning behind a veil of secrecy—may serve to undermine democratic governance and the fundamental rights and liberties of citizens.”2 The civil liberties benefits of intelligence oversight have been well canvassed. Less acknowledged in the hierarchy of justifications is the beneficial impact on the efficiency of the intelligence agencies themselves that results from external accountability and oversight. One key benefit is ensuring that individual agencies remain attuned to the needs of policy makers and broader expectations of what the intelligence product should be providing. This is especially pertinent to the Australian situation, where agencies are relatively modest in size when compared to their U.S. and United Kingdom (UK) counterparts. As two former senior Australian intelligence officials

14

Commissions of Inquiry and National Security

point out, without rigorous external accountability and oversight, “small agencies, operating in a climate of secrecy, are particularly vulnerable to losing perspective on the outside world and drifting away from the community in which they operate.”3 Another key benefit associated with close external oversight is that it provides an additional incentive for agencies to get their assessments right. In the post-9/11 era, which has been characterized by enormous inflows of additional funding into intelligence agencies, taxpayers understandably expect a healthy return on investment in the form of high-performing intelligence assets. This is a common expectation across all Western intelligence communities and has been made all the more acute in the wake of the high-profile intelligence failures of 9/11 and Iraq’s nonexistent weapons of mass destruction.4 As Michael Wesley observes, in a climate where public intolerance of intelligence failures is increasing, “overlooked, misjudged or unactioned intelligence information can be political dynamite.”5 Apart from fundamental national security considerations, mistakes of this caliber make it harder for individual agencies to justify massive funding increases. Being subjected to close scrutiny adds pressure, to be sure, but it is also more likely to promote an intelligence culture with more rigor and contestability shaping the final assessment product. As a mature, liberal democratic state, Australia prides itself on its high levels of accountability in the governance and administrative spheres. A hybrid of the U.S. Federal system and the British Westminster system, Australia’s “Washminster” system is characterized by a range of checks and balances on the exercise of power across all levels of government.6 While questions exist surrounding the day-to-day accountability of ministerial staff in the decision-making process of government,7 at the formal departmental and agency level in Australia, a strong culture of accountability permeates the professional ethos of unelected civil servants. While different from other elements in the Australian bureaucracy due to the classified nature of most of its operations, the Australian intelligence community is no exception to this general rule.8 The creeping bureaucratization of all intelligence agencies since the end of the Cold War—endless performance reviews, projecting a corporate image across government and in the community, and pressure to meet key performance indicators—presents a reality at odds with the persistent cloak-and-dagger caricatures of intelligence. Yet some continue to portray the Australian intelligence community as a law unto itself precisely because of the secrecy surrounding much of its core business. In Australia, as in many other Western countries, this perspective has been given added weight by the high-profile revelations contained in books written by disgruntled former intelligence officers.9 A common unifying theme in these accounts is the alleged politicization of the Australian intelligence community since 9/11 and the accusation that the agencies themselves have, as a result, become tainted. Intelligence on Iraq’s weapons of mass destruction that prima facie supported the government’s case for war in 2003 is typically cited as evidence of this politicization.

Influence without Power

15

Although unable under Australian law to counter specific allegations with evidence contained in classified material, agencies within the Australian intelligence community have responded to such accusations by stressing the degree of independent oversight and accountability that governs their day-to-day activities. The inspector-general for intelligence and security (IGIS)—who has sweeping legal powers to monitor the intelligence community (including the right to access any information individual agencies receive or produce)—is identified as confirmation that the intelligence community is subject to strong accountability measures.10 This chapter argues that there is a strong link between intelligence commissions of inquiry in Australia and the evolution of oversight and control of the national intelligence community. Surprisingly, this link is rarely, if ever, drawn in the academic literature. However, policy makers in successive Australian governments have recognized the importance of the link, which has been reflected in their acceptance of recommendations resulting from various commissions since the mid-1970s that have extended and strengthened intelligence oversight mechanisms. The analysis here is concerned with the period from the first Hope Royal Commission on Intelligence and Security of 1974–76 up to the 2004 Flood Inquiry. These two commissions of inquiry have been the most influential of their type in Australia’s history in terms of their public profile, their status in having the full support of all political sides, and their impact in reinforcing the integrity of the intelligence oversight process. The fact that successive governments have endorsed broad terms of reference permitting quite sweeping reviews, as well as their willingness to endorse far-reaching recommendations, has meant that oversight mechanisms have been strengthened at regular intervals. The chapter is divided into three sections. Part one examines the landmark Hope Royal Commission and its role in laying the institutional and philosophical foundations for the development of the modern Australian intelligence community. Part two discusses the period since the end of the Cold War, a period when the Australian intelligence community has been confronted by significant challenges, including allegations of political bias in the production of prewar intelligence on Iraq in 2003. The Flood Inquiry was commissioned in 2004 to examine this, and other, issues concerning the Australian intelligence community. Its recommendations and impact as the second most important intelligence commission of inquiry (after the Hope Royal Commission) in Australia’s history are discussed. The chapter’s final section briefly addresses the question of whether the strong link between commissions of inquiry and intelligence oversight in Australia will be maintained into the 21st century. AN EXPERIMENT IN HOPE The development of Australia’s intelligence agencies after 1945 owed more to a focus on emulating overseas best practice (particularly that of the

16

Commissions of Inquiry and National Security

United Kingdom) and responding to security breaches than to a long-term vision for a national intelligence community. While the various military intelligence bureaus evolved largely as a legacy of the Second World War, the creation of a domestic security intelligence service was a fraught process. The decision by the Chifley Labor government to create the Australian Security Intelligence Organisation (ASIO) in 1949 encountered significant opposition within Labor Party circles from those who opposed an “Australian secret police.” Confronting unease among some of his own ministers, Prime Minister Chifley argued that ASIO was necessary to shore up confidence among key alliance partners regarding Australia’s ability to safeguard the high-level intelligence it was receiving under the 1947 UKUSA Agreement.11 Following serious concerns expressed by the United States and, to a lesser extent, Britain about security leaks and Soviet espionage in Australia, the Chifley government moved to institute ASIO as a separate entity from the existing intelligence services.12 Senior officials from Britain’s MI5 played a central role in advising the Chifley government on the drafting of ASIO’s charter, its structure, and the selection of the new agency’s senior leadership group.13 Australia did not undertake any commissions of inquiry into its intelligence services until the 1970s. Throughout the 1950s and 1960s, the prerogative of oversight of the various intelligence agencies was concentrated exclusively in the executive level of government. As David McKnight has written, the connection between ministers and the heads of individual agencies was particularly strong during this period, and successive conservative Coalition governments made a habit of using information sourced from ASIO in parliamentary debates and ministerial statements; this was especially evident in relation to domestic dissent in the late 1960s over the Vietnam War and conscription.14 Given the tight executive control over each of the intelligence agencies—which was based deliberately on the British model—there was little scope for independent oversight; executive dominance of the intelligence services effectively meant that any impetus for change or reform would have to come from the executive itself. The Whitlam government’s announcement in 1974 that it was authorizing a royal commission into Australia’s intelligence services provided the first and most significant example in Australian history of the executive level of government sharing its prerogative of intelligence oversight (albeit at the behest of the executive) with another entity. It occurred in the context of an emerging international challenge to the long-held view that intelligence oversight was the sole domain of the executive. Controversy in the United States over domestic spying on anti–Vietnam War proponents and high-profile revelations about illegal CIA operations abroad led to greater congressional involvement in overseeing the U.S. intelligence community.15 In this sense, the climate was conducive to an independent review of Australia’s intelligence agencies. Yet, the actual impetus for the Hope Royal Commission sprang from suspicions within the governing Labor Party that

Influence without Power

17

the intelligence services remained loyal to the conservative side of politics and were determined, at the very least, to stymie the Labor government’s ambitious reform plans. This culminated in a dramatic allegation from Prime Minister Whitlam’s attorney-general, Lionel Murphy, that ASIO had withheld documents from him and an unprecedented dawn raid by Murphy on ASIO’s Melbourne headquarters in 1973. This served to reinforce the distrust—evident on both sides—that had tainted relations between senior ministers and the heads of the various intelligence agencies following Labor’s election victory in 1972.16 However, Whitlam’s decision to appoint Justice Robert Hope,17 a sitting Supreme Court judge from New South Wales, to undertake an inquiry into Australia’s intelligence services was motivated by more than simply appeasing factions within his own party. This much was obvious from the wide-ranging terms of reference approved for Hope. In addition to being charged with making “recommendations on the [foreign and domestic] intelligence and security services which the nation should have available to it,” Hope was asked to issue recommendations on appropriate arrangements for coordination, evaluation, distribution, and use of intelligence material, as well as the relationships among intelligence agencies and these agencies’ relationship with the government more broadly.18 Significantly, from an oversight perspective, a key part of Hope’s terms of reference included “reviewing the machinery for control, direction and coordination of the activities of the intelligence services and make recommendations on any changes desirable.”19 In the course of his two-year review of Australia’s intelligence agencies—a timeframe determined by the Whitlam government—Hope was provided with significant resources by both the Whitlam and (after November 1975) Fraser governments. During the course of the royal commission, Hope and his secretariat (comprising a dozen people) had access to detailed classified files and records and enjoyed the scope to interview anyone they thought necessary, in accordance with the powers bestowed by the executive on royal commissions in Australia. The permissive terms of reference were formally approved by the governor-general on the recommendation of the executive in accordance with the Royal Commissions Act 1902.20 A key feature of the inquiry was a range of overseas visits by Hope to consult with Australia’s intelligence allies in Washington, London, Wellington, and Ottawa. Hope also spoke to senior foreign intelligence officials throughout Asia and inspected all Australian Secret Intelligence Service (ASIS) stations in operation, except the Jakarta station.21 In 2008, the former secretary of the Hope Royal Commission revealed for the first time that Hope’s consultations in Washington and London had yielded “some very candid assessments of relevant Australian departments and agencies” on the part of U.S. and UK intelligence officials.22 Released in December 1976, the Hope Commission report remains the single most influential document in shaping Australia’s modern

18

Commissions of Inquiry and National Security

intelligence community. While Hope undertook a systematic assessment of each individual agency in his report, a major theme of the analysis— and his subsequent recommendations—was the need for greater integration of Australia’s intelligence assets. The report identified a serious lack of cohesion among Australia’s intelligence agencies and a lack of connectivity in their relations with government more broadly. Despite use of the term “intelligence community” in his analysis, it was clear that, in Hope’s judgment, one did not yet exist in Australia in any real sense: The Australian intelligence community is fragmented, poorly coordinated and organised. The agencies lack proper guidance, direction and control. They do not have good or close relations with the system of government they should serve. In some cases, they have lacked funds and other resources (for example, adequate staff) to do the jobs expected of them. In other cases, they have used lack of funds as an alibi for not doing jobs they should have done.23

To promote an integrated intelligence community, Hope recommended that all agencies be headquartered in the national capital, Canberra, and that centralization of control and coordination be enhanced through the creation of a “ministerial committee on intelligence and security to give general oversight and policy control to the intelligence community.”24 Both of these recommendations were accepted by the Fraser government, which approved the formation of the cabinet-level National and International Security Committee in 1977. Today, the National Security Committee of Cabinet (chaired by the prime minister) sits at the apex of decision making and oversight in relation to Australia’s intelligence agencies.25 A salient thread running through Hope’s analysis was the adverse impact of ongoing rivalry between the Department of Defence and the Department of Foreign Affairs and the need for “a centrally located assessments function which is not under the control of either the Defence or Foreign Affairs Departments.”26 Hope envisaged that such an agency would be directly answerable to the prime minister and outside the existing departmental structure of government. It should, according to Hope, be located “in the centre of government.”27 The result was the creation of a new intelligence agency, the Office of National Assessments (ONA), in 1977. In line with Hope’s recommendations, the ONA Act of 1977 “charges the agency with responsibility for coordinating Australia’s foreign intelligence activities and issues of common interest among Australia’s foreign intelligence agencies [as well as] evaluating the effectiveness of Australia’s foreign intelligence effort.”28 The overwhelming majority of Hope’s final recommendations were accepted by the Fraser Coalition government and also endorsed by the leadership of the Labor Party, despite disappointment among some in the party that Hope did not countenance measures to constrain the activities

Influence without Power

19

of Australia’s intelligence agencies, particularly ASIO and the Australian Secret Intelligence Service (Hope recommended both should be expanded). This bipartisanship was important in conferring a high degree of authority on the Hope Royal Commission report and the subsequent intelligence reforms implemented by the Fraser government. It was also important because it exemplified a commitment on both sides of politics in Australia to the role of commissions of inquiry in reshaping Australia’s intelligence community, including the introduction of oversight measures. This was again evident when Hope was invited by the newly elected Hawke Labor government in 1983 to conduct a second royal commission into Australia’s intelligence agencies with the aim of reviewing the implementation of the findings of the first report. Key findings of the reports provided to the government in 1983 and 1984 (which were subsequently accepted) included stricter legal limitations on the covert activities of ASIS and amendments to the 1979 ASIO Act and the creation of a parliamentary committee to oversee ASIO’s activities.29 Most crucial of all, however, was Hope’s recommendation in his second report for the creation of an inspector-general for intelligence and security (IGIS).30 The IGIS initiative was significant because for the first time it invested considerable authority in an individual who remained quarantined form the partisan fray that often characterizes parliamentary committee processes. Formally instituted in 1987, the IGIS has considerable powers of external oversight over all agencies in the Australian intelligence community to ensure that they are complying fully with their legal mandate.31 In the case of foreign intelligence collection agencies—ASIS, Defence Imagery and Geospatial Organization (DIGO), and the Defence Signals Directorate (DSD)—this means ensuring that their collection of intelligence is confined to activities outside Australia. Significantly, the powers of the IGIS closely resemble, and in some respects surpass, those enjoyed by Hope himself in his role as royal commissioner. These include the power to undertake a formal inquiry into the activities of any agency and periodically inspect and monitor agency activities. In conducting an inquiry, the IGIS can “require the attendance of witnesses, take sworn evidence, copy and retain documents and enter Australian intelligence agencies’ premises.”32 As Christopher Andrew notes, an important net result of the two Hope commissions was that, notwithstanding the continuing close cooperation between Australia and the UK under the UKUSA arrangement, by the mid1980s Australia had essentially severed its emulation of British practices in the intelligence sphere.33 Hope had spawned a greater self-awareness of a uniquely Australian intelligence community with distinctive Australian interests. Moreover, his emphasis on promoting greater oversight and accountability across all agencies resulted in a newfound confidence that Australia’s intelligence agencies were part of a community that existed to serve the whole of government, not just narrow departmental objectives. As the next section demonstrates, it also paved the way for a gradual

20

Commissions of Inquiry and National Security

devolution of oversight authority away from the executive toward the legislature and independent bodies.

AFTER THE COLD WAR The West’s victory over communism in the late 1980s heralded the beginning of a period of significant change for intelligence agencies worldwide. Structured largely to contain Soviet power and influence, Western intelligence agencies confronted something of an existential crisis when the USSR collapsed in 1991. The demise of the Soviet Union robbed them of their priority target and therefore their major justification for resources. Most Western agencies experienced a marked decline in budget allocations in the 1990s, which had a consequent impact on their overall size and scope of operations. The end of the Cold War also made intelligence gathering and analysis a much more difficult enterprise. As Bruce Berkowitz and Allan Goodman observe, “because the Soviet threat was predominant and enduring, intelligence planning became predictable and incremental.”34 The evaporation of this threat created a much more diffuse set of targets for intelligence gathering and analysis. Partly in an effort to reinvent their mission—and partly in some cases to justify their very existence—intelligence agencies began to focus on a range of threats either overlooked or downplayed for much of the Cold War period, including ethnic conflict, economic espionage, and terrorism. Australia was not immune from these pressures, and the Australian intelligence community experienced a major contraction of its capabilities in the first half of the 1990s. This was particularly evident with respect to ASIO, which was subjected to a significant downsizing and restructuring following a report prepared by the Secretaries Committee on Intelligence and Security and presented to the Cabinet in 1992.35 Major budget cuts to the organization were justified with reference to the argument that domestic security intelligence was not as urgent a priority for government as it had been during the Cold War. A salient theme in ASIO’s annual reports during the 1990s—and those of other Australian agencies—was “using resources, products and services more creatively and effectively.”36 This was a far cry from the height of the Cold War when ASIO was expanding rapidly, and it would prove to be a distant memory when the Howard government announced in 2005 that it intended to double the organization’s total number of personnel by 2010.37 A hallmark of the post-Hope era was a substantial strengthening of Australia’s intelligence oversight mechanisms. The Hawke government had acted on the recommendation in Hope’s second (1984) report to create a joint parliamentary committee to oversee ASIO’s activities.38 This was the first instance of legislative oversight of an Australian intelligence agency. In 1994, the Commission of Inquiry into ASIS was established by the Keating

Influence without Power

21

government following a series of allegations in the media that the agency was engaged in unethical, and possibly illegal, activities. Chaired by the former secretary of the Department of Prime Minister and Cabinet Michael Codd and former New South Wales Supreme Court judge Gordon Samuels, a strong theme of the Commission’s 1995 report was the need for greater legislative oversight of Australia’s intelligence community.39 The commission report reiterated Hope’s 1977 recommendation (not taken up by the Fraser government) for legislation that would allow Parliament to exercise oversight of ASIS, as was the case with ASIO.40 This recommendation of the ASIS Commission report was important because it essentially laid the foundation for the landmark Intelligence Services Act of 2001. Under the act, the legislative basis for the activities of Australia’s intelligence agencies— specifying what they can and cannot do—was finalized, and a new Parliamentary Joint Committee on Intelligence and Security was established with a clear mission to reinforce the statutory oversight role of the IGIS.41 The events of 9/11 and the large-scale terrorist attack on the Indonesian island of Bali on October 12, 2002 (resulting in the deaths of 88 Australian citizens), pushed terrorism to the forefront of the list of targets for Australia’s intelligence community. The Bali attacks and the events of 9/11 crystallized for policy makers the global dimension of the terrorist threat and the need for reliable and timely intelligence to provide critical early warnings of emerging dangers both domestically and internationally. As a direct consequence, the Australian intelligence community underwent a massive expansion in funding and recruitment as the Howard government sought to bolster early warning capabilities as part of its counterterrorism strategy.42 Australia’s involvement in the U.S.-led invasion of Afghanistan in October 2001 and various other commitments related to the war on terrorism translated into greater demands on the intelligence services. As the tempo of demand from government for current intelligence spiked dramatically, so too did the temptation to simplify reporting for senior policy makers, a trend that mirrored the situation in Washington under the Bush administration.43 Allegations that this pressure led to skewed intelligence analysis on weapons of mass destruction designed to support the Howard government’s case to support the American invasion of Iraq in March 2003 led directly to the creation of the most important commission of inquiry into Australia’s intelligence services since the Hope Commission. The events leading up to Australia’s military commitment in Iraq will not be repeated here. It is sufficient to observe that the war was unpopular domestically and provoked a major political debate over whether Australia was justified in participating in the invasion of a sovereign state without the formal endorsement of the UN Security Council.44 The failure of allied forces to locate weapons of mass destruction in Iraq—despite explicit assurances from George Bush, Tony Blair, and John Howard that U.S., UK, and Australian intelligence agencies had confirmed their existence in the country prior to the invasion—raised serious questions about the separation of

22

Commissions of Inquiry and National Security

policy and intelligence and triggered formal legislative inquiries into the issue in the United States and Britain.45 This was mirrored in Australia, with a report by the Parliamentary Joint Committee on ASIO, ASIS, and DSD that recommended the government approve an independent assessment of the performance of Australia’s intelligence agencies “in the light of the matters raised by the consideration of the pre-war intelligence on Iraq.”46 In accepting the committee’s recommendation in March 2004, Prime Minister Howard announced a commission of inquiry whose terms of reference would focus on the nature of oversight and accountability mechanisms, the division of labor among intelligence agencies, contestability among agencies, and resourcing issues.47 Howard appointed Philip Flood—a former secretary of the Department of Foreign Affairs and Trade and former director-general of ONA—to oversee the inquiry and approved a secretariat drawn from a range of areas across the Australian bureaucracy, including the Department of Defence, the Department of Foreign Affairs and Trade, the prime minister and Cabinet, and the Defence Force.48 In his letter to Flood, the prime minister also granted the commission full access to “all intelligence material required,” as well as “access to any person you believe could usefully inform your views.”49 The terms of reference for the Flood commission were wide ranging, and in this sense they mirrored the Hope Commission’s broad remit. Like Hope, Flood had access to the full resources of the Australian government, which included consular support for the commission’s overseas visits and strong bipartisan support from the major political parties. Yet, there remained important differences between the two commissions. The first, and most obvious, was contextual: the Flood commission was charged with reviewing the performance of intelligence agencies operating in a broader environment where the intelligence community in Australia was relatively coherent, a stark contrast with the situation in the mid-1970s. Well-developed oversight mechanisms had been in place for some time, and there was little evidence of the corrosive turf wars that had characterized interagency relations during Hope’s time. The second important difference was that, unlike Hope, Flood was a consummate insider. As a former chief of ONA and former secretary of the Department of Foreign Affairs and Trade, Flood had deep links into the Australian intelligence community. What was a virtue at one level in opening doors could be seen at another level as a vice; his insider status left Flood vulnerable to criticism that he would be relatively forgiving of the intelligence community’s performance over Iraq. The third important difference was the compressed time frame in which Flood undertook his review. While partly timed to coincide with the release of similar commission reports in the United States and the United Kingdom, and although his terms of reference did not include ASIO, Flood’s report took a mere four months to prepare and was submitted to John Howard in July 2004. By contrast, the Hope Commission took a full two years to prepare.

Influence without Power

23

Flood’s findings and recommendations were both specific to Iraq and more general in their orientation. In relation to the Australian intelligence community’s performance on Iraq, Flood rejected allegations that political interference had shaped their assessments on weapons of mass destruction, but he did conclude that “intelligence was thin, ambiguous and incomplete.”50 In particular, Flood identified an overreliance on intelligence supplied from the United States and United Kingdom and an absence of rigorous and robust debate within and between ONA and the Defence Intelligence Organisation (DIO) during the preparation of Iraq-based prewar assessments.51 One key shortcoming for Flood was the agencies’ “failure to rigorously challenge preconceptions or assumptions about the Iraq regime’s intentions.”52 More broadly, Flood identified areas in the intelligence community in need of reform: While the structures supporting the community are fundamentally sound, the Australian intelligence community needs stronger coordination, especially in the areas of priority setting, assigning of resources and collection management. Accountability mechanisms need to be tightened and made more transparent, recognising both the increased importance of intelligence, and public interest in it. The division of effort between the assessment agencies needs refinement, and contestability needs to be better managed. While most agencies are appropriately resourced, ONA needs to be strengthened significantly.53

In terms of oversight and accountability, the report emphasized the need to expand the purview of the Parliamentary Joint Committee to encompass the activities of all agencies within the Australian intelligence community, thus bringing ONA, DIO, and DIGO under parliamentary scrutiny. In making this recommendation, however, Flood was careful to quarantine classified assessments from public scrutiny and limit parliamentary oversight of all intelligence agencies to “budgetary and administrative matters.”54 A striking anomaly contained within the Flood report was its treatment of the two main analytical agencies, ONA and DIO. According to Flood, DIO’s assessments of Iraq’s supposed weapons of mass destruction capability were far more cautious and included a greater number of caveats than those produced by ONA; they were, in short, more accurate in assessing Iraq’s capabilities. However, as James Cotton points out, Flood recommended that ONA be provided with greater resources and that DIO’s focus be squarely “on supporting defence strategic policy and meeting the strategic assessment needs of the Australian Defence Force” rather than policy makers generally.55 As James Cotton points out, “In the commercial world, the market rewards ‘winners’ and punishes ‘losers,’ and chief executives whose business decisions lead to good company performance receive bonuses. In Flood’s bureaucratic world, the reverse was the case.”56 The Howard government accepted virtually all the recommendations of the Flood report, including the recommendations for significantly

24

Commissions of Inquiry and National Security

increased funding for ONA. Apart from strengthening existing oversight mechanisms, the primary consequence of the Flood review was the government’s continuation of an upward funding trajectory for the Australian intelligence community. This was in line with Flood’s recommendation to substantially expand Australian intelligence analysis capabilities, particularly in the nonmilitary spheres of political and economic intelligence analysis. And, although Flood had sought to strengthen existing oversight and accountability arrangements, he was criticized in some quarters for not recommending the creation of a director-general of intelligence—based on the U.S. model—to coordinate and oversee the entire national intelligence effort.57 THE FUTURE Commissions of inquiry have clearly played a critical role in shaping the structure of Australia’s intelligence community since the 1970s, but—as I have argued in this chapter—they have also had a very significant impact over time in strengthening formal oversight mechanisms. Indeed, the very existence of commissions of inquiry has been an important instrument of oversight in itself. This was certainly the case with the Hope and Flood commissions, but it was also evident in the more modest 1995 Codd-Samuels Commission of Inquiry into ASIS. The fact that individual commissioners have been provided with terms of reference permitting them to make recommendations regarding oversight and accountability indicates that successive Australian governments have recognized this instrumental role. A key question for the future is this: Will commissions of inquiry continue to play an active role in strengthening oversight and accountability in the Australian context? If the past is any guide, this will very much depend on the degree to which flaws in Australia’s intelligence gathering and analysis are exposed at regular intervals. Given that intelligence gathering and analysis is likely to continue to become increasingly complex—linear trends historically are consistent in this respect—we can expect that searching questions about the performance of Australia’s intelligence agencies will continue to be asked. Governments and general publics do not expect the performance of agencies to be flawless, but they do expect substantial value for money. They expect, at the very least, major intelligence failures to be avoided. There have been significant increases in funding for the Australian intelligence community since 2001 (partly as a direct result of the Flood commission), and these increases have inevitably raised expectations about the performance of the agencies. Assuming this funding trend remains buoyant for at least the short to medium term, there will remain political pressure on governments to authorize periodic reviews of the intelligence community’s performance through high-profile commissions of inquiry. In Australia, it is fair to say that the decision by governments to constitute commissions of inquiry has often been a component in a broader strategy

Influence without Power

25

to manage domestic political controversy. The two Hope royal commissions were instituted as a direct response to serious tensions between the governing Labor Party and intelligence agencies; the Codd-Samuels inquiry was set up in reaction to serious media allegations about ASIS’s activities; and the Flood review was instituted in response to allegations that Iraq-related intelligence had been politicized. This is not to say that governments have not seen the genuine value in such commissions: the overwhelming majority of recommendations flowing from each commission have been implemented by government. And virtually every recommendation on bolstering intelligence oversight structures—including increasing the legislature’s role in relation to that of the executive in this domain—has been accepted by governments. In short, while the motives for setting up commissions of inquiry into Australia’s intelligence agencies have been less than pure, the overall results have improved the effectiveness and accountability of those agencies. In this respect, and bearing in mind Bismarck’s timeless advice about politics being the art of the possible, current and future Australian governments could do a lot worse than aim to maintain this tradition in the 21st century. NOTES 1. Peter Gill and Mark Phythian, Intelligence in an Insecure World (Cambridge, UK: Polity Press, 2006), p. 151. 2. Marina Caparini, “Controlling and Overseeing Intelligence Services in Democratic States,” in Democratic Control of Intelligence Services: Containing Rogue Elephants, ed. Hans Born and Marina Caparini (Aldershot, UK: Ashgate Publishing, 2007), p. 3. The subtitle of this book is a none-too-subtle indication of how many academic analysts view the role of the intelligence oversight process. 3. Allan Gyngell and Michael Wesley, Making Australian Foreign Policy, 2nd ed. (Cambridge: Cambridge University Press, 2007), p. 128. 4. On this theme, see the collection of essays in Roger George and James Bruce, eds., Analyzing Intelligence: Origins, Obstacles, and Innovations (Washington, DC: Georgetown University Press, 2008). 5. Michael Wesley, “Between Probity and Proficiency: Challenge and Change within the Australian Intelligence Community,” Canadian Security Intelligence Service Commentary, no. 88 (April 2006), http://www.csis.gc.ca/pblctns/cmmntr/ cm88-eng.asp (accessed December 7, 2009). 6. For discussion on this point, see Marian Simms, “Models of Political Accountability and Concepts of Australian Government,” Australian Journal of Public Administration 58, no. 1 (1999): 34–38. 7. On this point, see Anne Tiernan, Power without Responsibility: Ministerial Staffers in Australian Governments from Whitlam to Howard (Sydney: University of New South Wales Press, 2007). 8. The Australian intelligence community is comprised of six separate agencies, each of which is directly responsible to a government minister. Australia’s premier intelligence agency—the Office of National Assessments (ONA)—reports directly to the prime minister and other senior members of the Cabinet. ONA is responsible

26

Commissions of Inquiry and National Security

for reporting on political, security, and economic developments in international areas of interest to Australia. The Australian Security Intelligence Organization is responsible for monitoring domestic threats to Australia’s security and reports to the attorney-general. Australia’s counterintelligence arm—the Australian Secret Intelligence Service—is responsible to the minister for foreign affairs and trade. Three of the six agencies—the Defence Imagery and Geospatial Organization, the Defence Intelligence Organization, and the Defence Signals Directorate—are all responsible to the minister for defense. 9. In particular, see Andrew Wilkie, Axis of Deceit (Melbourne: Black Inc Books, 2004); and Lance Collins and Warren Reed, Plunging Point: Intelligence Failures, Cover-ups, and Consequences (Sydney: HarperCollins, 2005). 10. Office of National Assessments, The Australian Intelligence Community: Agencies, Functions, Accountability, and Oversight (Canberra: Commonwealth of Australia, 2006), pp. 12–13. 11. Jeffrey Richelson and Desmond Ball, The Ties That Bind: Intelligence Cooperation between the UKUSA Countries, 2nd ed. (Boston: Unwin Hyman, 1990), pp. 47–52. 12. The year before ASIO was established, in 1948, U.S. authorities decided to impose a comprehensive embargo on the transfer of classified information to Australia. See Desmond Ball and David Horner, Breaking the Codes: Australia’s KGB Network, 1944 –1950 (St. Leonards, Australia: Allen and Unwin, 1998), p. 286. 13. Christopher Andrew, The Defence of the Realm: The Authorized History of MI5 (London: Penguin Books, 2009), p. 372. 14. David McKnight, “Partisan Improprieties: Ministerial Control and Australia’s Security Agencies, 1962–1972,” Intelligence and National Security 23, no. 5 (2008): 707–25. 15. Hans Born and Ian Leigh, “Democratic Accountability of Intelligence Services,” in SIPRI Yearbook 2007: Armaments, Disarmament, and International Security, Stockholm International Peace Research Institute (Oxford: Oxford University Press, 2007), pp. 193–94. 16. Geoffrey Weller, “Oversight of Australia’s Intelligence Services,” International Journal of Intelligence and Counterintelligence 12, no. 4 (1999): 489. 17. Hope was formerly president of the New South Wales Council on Civil Liberties and had already chaired a Commonwealth government into the national estate in Australia. Before his appointment as royal commissioner, Hope had reportedly been described by Whitlam as a “great civil liberties bloke,” which almost certainly played a role in shaping Whitlam’s choice. See David Marr, The Ivanov Trail (Melbourne: Thomas Nelson Australia, 1984), p. 274. 18. Commonwealth of Australia, Third Report of the Royal Commission on Intelligence and Security: Abridged Findings and Recommendations (Canberra: Commonwealth of Australia, 1976), p. 1. 19. Commonwealth of Australia, Third Report of the Royal Commission, p. 1. 20. National Archives of Australia, “Federal Executive Council Minute Approving Royal Commission on Intelligence and Security, 21 August 1974,” A1572, 1974 Part 2, http://www.naa.gov.au/services/media/images/rcis/4215468.aspx (accessed March 31, 2010). 21. Brian Toohey and William Pinwill, Oyster: The Story of the Australian Secret Intelligence Service (Melbourne: William Heinemann Australia, 1989), p. 197. 22. See the comments of George Brownbill on the public release of the Hope Royal Commission records on May 27, 2008, in National Archives of Australia, “The

Influence without Power

27

RCIS—An Insider’s Perspective,” http://www.naa.gov.au/collection/issues/ brownbill-rcis.aspx (accessed November 17, 2009). 23. Commonwealth of Australia, Third Report of the Royal Commission, p. 3. 24. Commonwealth of Australia, Third Report of the Royal Commission, p. 16. 25. For discussion, see Allan Gyngell and Michael Wesley, Making Australian Foreign Policy, pp. 128–29. 26. Commonwealth of Australia, Third Report of the Royal Commission, p. 7. 27. Ibid. 28. Office of National Assessments, The Australian Intelligence Community, p. 9. 29. See Royal Commission on Australia’s Security and Intelligence Agencies, Report on the Sheraton Hotel Incident (Canberra: Commonwealth of Australia, 1984), pp. 68–70; and Royal Commission on Australia’s Security and Intelligence Agencies, Report on the Australian Security Intelligence Organization (Canberra: Commonwealth of Australia, 1984), pp. 71–72. 30. Royal Commission on Australia’s Security and Intelligence Agencies, Report on the Australian Security Intelligence Organization, pp. 328–35. 31. Office of National Assessments, The Australian Intelligence Community, pp. 12–13. 32. Inspector-General of Intelligence and Security, “Roles and Functions of the Inspector-General of Intelligence and Security,” http://www.igis.gov.au/about/ index.cfm (accessed November 17, 2009) 33. Christopher Andrew, “The Growth of the Australian Intelligence Community and the Anglo-American Connection,” in Diplomacy in the Marketplace: Australia in World Affairs, 1981–90, ed. P. J. Boyce and J. R. Angel (Melbourne: Longman Cheshire, 1992), p. 108. 34. Bruce Berkowitz and Allan Goodman, Best Truth: Intelligence in the Information Age (New Haven, CT: Yale University Press, 2000), p. 4. 35. Nigel Brew, “Dollars and Sense: Trends in ASIO Resourcing,” Department of the Parliamentary Library Research Note, no. 44 ( June 2003). Ironically, the report was written by Dennis Richardson, who would succeed David Sadleir as ASIO’s director-general in 1996. 36. Australian Security Intelligence Organization, Report to Parliament: 1995–1996 (Canberra: Commonwealth of Australia, 1996), p. 6. 37. John Breusch, “Howard to Double ASIO’s Staff after Review,” The Australian Financial Review, October 17, 2005. 38. The Parliamentary Joint Committee on ASIO was instituted in 1988. 39. See Commission of Inquiry into the Australian Secret Intelligence Service, Report on the Australian Secret Intelligence Service: Public Edition (Canberra: Commonwealth of Australia, 1995). 40. Commission of Inquiry into the Australian Secret Intelligence Service, Report on the Australian Secret Intelligence Service, pp. 42–63. 41. See Intelligence Services Act 2001: Act No. 152 of 2001 as Amended, http:// www.comlaw.gov.au/ComLaw/Management.nsf/lookupindexpagesbyid/ IP200402689?OpenDocument (accessed December 4, 2009). 42. For background, see Andrew O’Neil, “Degrading and Managing Risk: Assessing Australia’s Counter-Terrorist Strategy,” Australian Journal of Political Science 42, no. 3 (2007): 471–87. 43. For an excellent discussion of this issue, and others, in relation to Iraq, see Robert Jervis, “Reports, Politics, and Intelligence Failures: The Case of Iraq,” in

28

Commissions of Inquiry and National Security

Secret Intelligence: A Reader, ed. Christopher Andrew, Richard Aldrich, and Wesley Wark (London and New York: Routledge: 2009), pp. 193–228. 44. In sharp contrast to public opinion in the United States, American-led military action against Iraq remained consistently unpopular in Australia (and the United Kingdom) despite the best efforts of the Howard government to promote support for the invasion. For further discussion, see Andrew O’Neil, “The Invasion of Iraq: The Marketplace of Ideas and Its Limits,” in Foreign Policy Challenges in the 21st Century, ed. Michael Heazle, Martin Griffiths, and Tom Conley (Cheltenham, UK: Edward Elgar, 2009), pp. 125–40. 45. In the United Kingdom, legislative inquiries were undertaken by the House of Commons’ Parliamentary Select Committee on Foreign Affairs in 2003 and its Intelligence and Security Committee in 2004. In the United States, the Senate Select Committee on Intelligence undertook an inquiry in 2004 on prewar intelligence on Iraq. 46. Parliamentary Joint Committee on ASIO, ASIS, and DSD, Intelligence on Iraq’s Weapons of Mass Destruction (Canberra: Commonwealth of Australia, 2003), p. xii. 47. Philip Flood, “Prime Minister’s Letter of 4 March 2004” (Annex A), in Report of the Inquiry into Australian Intelligence Agencies (Canberra: Australian Government, 2004). 48. Philip Flood, “Secretariat” (Annex B), in Report of the Inquiry into Australian Intelligence Agencies. 49. Flood, “Prime Minister’s Letter of 4 March 2004.” 50. Philip Flood, Report of the Inquiry into Australian Intelligence Agencies, p. 177. 51. As David Martin Jones and Carl Ungerer point out, ONA conceded in testimony to the 2003 parliamentary joint committee inquiry that “97 per cent of all the Australian intelligence produced on Iraq was sourced from foreign agencies, and mostly from untested or unreliable sources.” See David Martin Jones and Carl Ungerer, “Change and Continuity in the Australian Intelligence Community,” in Australian Foreign Policy in a Age of Terror, ed. Carl Ungerer (Sydney: University of New South Wales Press, 2008), p. 177. 52. Flood, Report of the Inquiry, p. 25. 53. Ibid, p. 164. 54. Ibid, p. 58. 55. Ibid, p. 183. 56. James Cotton, “After the Flood: Foreign Policy and the Management of Intelligence,” in Trading on Alliance Security: Australia in World Affairs, 2001–2005, ed. James Cotton and John Ravenhill (Oxford: Oxford University Press, 2006), p. 336. 57. See Peter Jennings, “Unfinished Business: Reforming Our Intelligence Agencies,” Policy 20, no. 4 (2004–05): 5–6.

CHAPTER 3

Public Inquiries in Canada: Making Espionage, Organizational Culture, Wrongdoing, and Mass Murder More Transparent Stuart Farson and Reg Whitaker

It has been more than a quarter century since Trebilcock and colleagues reminded Canadians that their governments have a broad range of choices available when it comes to investigating issues of public concern and particular problems of governance.1 Such instruments include the following: departmental and interdepartmental studies, task forces, statutory regulatory and advisory agencies, parliamentary committees, and bodies sometimes referred to as royal commissions, each with various subsets. Each instrument has both positive and negative dimensions. Departmental and interdepartmental studies constitute the most common form of inquiry for developing policy. They have the advantage of bringing together individual bureaucrats and organizations that are familiar with and often party to the issues and problems at hand. They also keep the investigation of such matters in house. Because they are internal executive bodies and lack the independence associated with most of the other forms of inquiry, they normally offer little benefit in terms of public transparency. As a consequence, they are unlikely to garner much immediate support for policy initiatives outside the executive branch. Their very existence may not even be known outside the executive branch. In addition, they normally lack the powers of inquiry—such as to compel attendance before them or to furnish documents—associated with most of the other forms described in this chapter. Task forces are in many ways similar to departmental and interdepartmental studies but have the added capacity of being able to bring senior officials and others who can provide more detached thinking to the issues needing attention. Like departmental and interdepartmental studies, there

30

Commissions of Inquiry and National Security

may be no public knowledge of their activities, let alone how their conclusions were derived. As with departmental and interdepartmental studies, governments have the luxury of deciding whether it would be beneficial for them to release the findings of such inquiries. If they decide it would not be, the only revelations of the activities of such ad hoc bodies may come through an eventual request under Access to Information legislation. In addition to keeping the issues under wraps and offering detached thinking, task forces have the benefit of offering a speedy turnaround at relatively low cost. When statutory regulatory and advisory bodies are asked to analyze particular issues, such permanent bodies can bring analytical and research expertise from an external perspective and can sometimes also provide the added benefits of greater apparent transparency and independence. In the latter regard, members of such bodies are often appointed for fixed terms and thus have a degree of independence from the executive branch in how they undertake their inquiries. They frequently have statutory powers that compel the release of information, provide access to documents, and allow for the publication of reports. Parliamentary committees nearly always bring an independent perspective to the table. Though this is often of a partisan nature, the committee process frequently offers an opportunity for members of the public to participate. While the various individual party members on such committees may not themselves always have the necessary expertise regarding the matters at hand, committees can hire outsiders to provide the necessary advice.2 To ensure that Parliament can hold responsible ministers to account, it delegates extraordinary powers—albeit ones that are infrequently used—to its committees to subpoena the appearance of witnesses, to place them under oath, and to ensure the provision of papers and records. Where individuals fail to do so, Parliament can hold such persons in contempt; place them under arrest; and, in theory at least, incarcerate them.3 It is important to differentiate here between the regular standing committees of Parliament and certain special committees. The latter, which, as the name suggests, are frequently established to undertake particular special inquiries, are normally of limited duration and become disbanded once they have reported. Their existence sometimes stems directly from statute, not the whim of a particular parliament. Such committees have been sometimes been called “poor men’s royal commissions.”4 The major strength of these—and parliamentary committees generally— however, lies in the transparency they bring to issues, the public participation and criticism they entertain, the evidence they garner publicly from senior officials, and their ability to call responsible ministers to account either directly through questioning or through the requirement to respond in writing to their reports within a particular time frame. They are, however, always subject to the vagaries of the parliamentary schedule and to the broad work pressures that their individual members have to sustain. Other

Public Inquiries in Canada

31

shortcomings concern the procedures that committees follow such as the time allocated to individual members to ask questions and hence their ability to follow a particular line of questioning. Furthermore, access to government documents has proven to be a recurrent problem. The term “royal commission” has been much abused. Technically, it refers in Canada to a commission of inquiry that has been issued under the Great Seal of Canada, symbolizing its authority stemming from the crown. In the past, the adjective royal was appropriated by commissions that had, in fact, no right to use the term, while others that had the right failed to employ it. In recent times, the term has fallen into disuse, with the shorter term “commission of inquiry” being preferred. Commissions of inquiry normally derive their authority from legislation having its origins in 19thcentury Canada.5 In its current formulation, the Inquiries Act envisages two types of inquiry: “public inquiries” under part 1 of the act, and “departmental investigations” under part 2. The breadth of the inquiries that may be covered under part 1 is considerable, including “any matter connected with the good government of Canada or the conduct of any part of the public business thereof.”6 Such inquiries are normally authorized by order-in-council using the Great Seal of Canada. There have been more than 400 such commissions since Confederation.7 By contrast, departmental investigations are normally authorized by a minister and cover matters concerning “the state and management of the business, or any part of the business, of the department, . . . and the conduct of any person in that service.”8 There have been more than 1,500 departmental investigations since 1867.9 While the sets of formal powers of the various commissioners appointed under the two parts of the act differ somewhat, they are both considerable and more substantial than is normally the case under British commissions of inquiry. Commissioners of public inquiries have the power to summon witnesses, to require them to give evidence orally and in writing under oath, and to produce such documents and records as the commissioners consider appropriate. Commissioners of departmental investigations have the power to enter public offices and installations, and to have access to any part of such places, as well as their papers and records. They can also subpoena persons to give evidence under oath and require them to appear at a certain time and place, bringing particular documents with them. In practice, public inquiries normally provide opportunities for major public issues to be studied in depth by outside independent experts. As such, they allow political leaders to distance themselves from the issues under study. While such commissions may eventually provide well-crafted recommendations, governments frequently do not necessarily feel compelled, because of the distance created, either to champion the reports provided or to follow the advice given. While such reports often have a long shelf life, their major defects are essentially twofold. First, the time taken to report on the matters under study is frequently much longer than any

32

Commissions of Inquiry and National Security

of the aforementioned methods. As well, the costs involved are normally much higher, often running into several millions of dollars. Public inquiries are normally said to take two forms. One is largely investigatory in nature, attempting to identify what went wrong with a particular aspect of government. The other is advisory, more often with the objective of trying to analyze how policy might be improved in a particular area of government. This division has on some occasions led to demands for reform. In the 1970s, for example, the Law Reform Commission of Canada proposed that investigatory and advisory commissions should have different powers.10 In recent practice, however, there is frequently a considerable overlap between the two, sometimes with inquiries having two quite distinct parts. It is perhaps for this reason that consecutive governments have decided against amending the Inquiries Act along these lines.

THE LITERATURE ABOUT COMMISSIONS OF INQUIRY In recent years, a significant multidisciplinary literature has developed about Canadian commissions of inquiry. This literature encompasses material of a general nature that had its origins in graduate theses,11 international conferences,12 guides13 as well as independent research undertakings,14 checklists,15 and reform initiatives.16 In addition, many of what are considered to be the most significant inquiries have drawn their own dedicated groups of academic researchers. The general literature has drawn attention to several aspects of inquiries that deserve more detailed consideration. Legal scholars have tended to concentrate their attention on such matters as how commissions of inquiry secure accountability for people who have been wronged17 and the independence18 and efficacy of such bodies, as well as matters of procedural fairness.19 By contrast, political scientists have tended to focus on the role of commissions of inquiry as executive instruments and their research as contributions to the policy process. J. E. Hodgett was one of the first to observe that Canadian commissions of inquiry—unlike British practice—seldom received parliamentary approval for their appointment. He also drew attention to the breadth and interpretation of their terms of reference, the extensiveness of their powers, the freedom they have to develop procedural processes, and the tendency to employ judges as commissioners.20 Similarly, Peter Aucoin was one of the first to identify commissions of inquiry as important organizational instruments of governance. His rationale for this assessment was based on three premises. First, they provided decision makers with an opportunity to appear to be doing something when, in fact, they were either delaying or avoiding making a decision. Second, they provided a process in which special interest groups and interested members of the public could participate. Finally, they represented a

Public Inquiries in Canada

33

very effective option for government to obtain policy analysis that was perceived to be both independent and object while at the same time was provided by an official organization. And while observing that there had been no systematic evaluation of the contribution of commissions to policy analysis, Aucoin also observed the limitations that commissions posed. These stressed the possibility that as executive instruments the government of the day could inject partisan considerations into the process through the appointment of both commissioners and their staff. He also noted that such bodies have limited time available to undertake the necessary original research that is sometimes essential to overcome the prevailing orthodoxy. His final limitation concerned the very ad hoc nature of such inquiries. Seldom, it appears, do governments have an organizational memory in place to guide commissions beyond legal advice on powers and procedural formalities.21 In addition, the long-term impact of commission research must not be forgotten. Former directors of research, such as Alan Cairns, have attested to the significance provided by commission research. In the case of the Macdonald Commission on the Economic Union and Development Prospects for Canada, the legacy included some 70 volumes that collectively sold more than 100,000 copies in English alone.22 More recently, law professor Ed Ratushny, a former commissioner, has suggested that commissions have five important attributes: independence, effectiveness, mandate, investigative powers, and transparency.23 Finally, specialists in the communication of ideas have concentrated on the public dimensions of the inquiry process. Neil Bradford, for example, has observed that countries differ in how they approach problems and has posited that Canada’s “brokerage politics” left the country ill equipped to generate new policy ideas. At the same time, he has posited that its bureaucratic mandarins have tended to be a force for policy conservation rather than policy innovation. It was within this space that he believes commissions of inquiry came to provide the necessary innovative thinking that would offer broad new public philosophies and challenges to existing policy paradigms. Thus, he sees such inquiries as being a far cry from expensive stalling tactics or mere rationalizations for decisions already taken, as some have judged them.24 A leading exponent of how inquiries choose to understand and include the public in their deliberations has been Liora Salter.25 Her recent work has posited that inquiries often reflect quite different notions of the public.26 These she has enumerated as the following: the public as interest groups or stakeholders; the public as disaffected individuals and groups; the public as about dialogue or discourse; the public as in public opinion; the public as expert; and, in contradistinction to the latter, the public as the nonexpert layperson in need of information and education. Significantly, however, she has argued that while nearly all inquiries try to be as public as possible, they are not always as unabashedly public as their commissioner and staff might wish. In this regard, she has noted that

34

Commissions of Inquiry and National Security

inquiries are not always open; they do not always foster unfettered dialogue or the free play of debate about social values. Inquiries often fail to acknowledge the expertise and authority that lies with their non-scientist, non-lawyer or governmental participants. They do not always deliver an invigorated and refashioned discourse about important issues. They do not always have good links to electoral process or the rule of law, and occasionally they can be truly irrelevant to governing.27

COMMISSIONS OF INQUIRY AND NATIONAL SECURITY Given the breadth of writing on both Canadian commissions of inquiry generally and specific inquiries in particular, it is somewhat surprising that those concerning national security subjects have not garnered more attention. While certain inquiries have been scrutinized to a degree, there have been no attempts to provide systematic analysis of their impact on society or their contribution to security and intelligence policy development. This is in stark contrast to the United States, where Kenneth Kitts has developed a book-length manuscript on the subject and where Glenn Hastedt has specifically examined the impact of commissions on intelligence reform.28 This chapter attempts to rectify this situation by examining the period from the end of World War II to the present. Before doing so, however, it is necessary first to define what might be incorporated under the rubric of national security. There have been several commissions of inquiry that fall readily into the category. These concern espionage activities by foreign states, scandals involving ministers where Canadian security interests might have been jeopardized, reviews of security, investigations into the activities of the Security Service of the Royal Canadian Mounted Police (RCMP), and inquiries into politically motivated violence and occasions where Canadian citizens or residents were subjected to torture abroad as the result of alleged transfers of intelligence to foreign states by Canadian security or intelligence organizations. In addition to these more obvious examples, there are others that have a more tangential relationship. These include investigations into the internment of individuals during wartime and the seizure of their property and investigations into both public complaints against the RCMP and the affairs of the security branch of the post office, as well as those covering the torturing of prisoners by Canadian soldiers, the existence of war criminals in Canada, and the transfer of personal medical information by doctors to the police. If all these inquiries were to be included, such an analysis would provide a full range of commissions. Significantly, it would include commissions that were either primarily investigatory or advisory in nature as well as some that were a combination of both. It would also include federal inquiries that were authorized under both parts 1 and 2 of the Inquiries Act as well as those authorized under provincial legislation or resulting from negotiated arrangements between

Public Inquiries in Canada

35

the federal government and a provincial counterpart. It would also encompass inquiries that held most of their hearings in public as well of those that largely met in camera. It would also span a variety of commissions in terms of the amount of research undertaken and the legacy left for future generations. It is not possible, however, to cover the full ground in this chapter. Instead, it will be limited to focusing on the main inquiries, using the remainder to round out certain arguments. Here an effort will be made to analyze them in terms of a few themes, the main ones relating to appointments, terms of reference, powers employed, the extensiveness of research, policy and organizational outcomes, accountability, and public involvement.

TRIAL BY COMMISSION? GOUZENKO’S DEFECTION, THE KELLOCK-TASCHEREAU COMMISSION, AND THE CATCHING OF RUSSIAN SPIES Igor Gouzenko came to Canada in June of 1943 to work at the newly established Embassy of the Soviet Union in Ottawa as a cipher clerk on the staff of the military attaché. On the night of September 5, 1945, several months after the end of the war in Europe but less than four weeks after the United States had dropped atomic weapons on Japan to end the war in the Pacific, he defected, bringing with him numerous documents. These documents and the information he subsequently provided to Canadian authorities suggested that the Soviets were actively spying on Canada and its Western allies with a view to obtaining information about explosives, radar, and atomic experimentation. However, the documents offered few clues about what information had actually been transferred to the Soviets and in themselves offered little opportunity for criminal prosecutions.29 Though the RCMP started an investigation immediately, the preference of the Canadian prime minister, Mackenzie King, was to keep the whole matter out of the public realm and to proceed by departmental investigations. But as evidence that could be put before a court of law remained sparse, the Department of Justice and the RCMP came to favor a plan to detain and interrogate suspects using the War Measures Act to be followed by a full royal commission of inquiry.30 To this end, King and three ministers signed a secret order-in-council (P.C. 6444) on October 6, 1946, that would authorize the RCMP on an order from a minister under the War Measures Act to seize and interrogate any suspects. The inquiry envisaged would meet in camera, would have the widest of mandates, and would not allow counsel to appear with those summoned to appear. Initially, the government was successful in proceeding without drawing public attention to the matter. However, on February 3, 1946, Drew Pearson, a well-known journalist, told his American radio audience that there was “a gigantic Russian espionage network inside the United States and Canada.”31 The Canadian

36

Commissions of Inquiry and National Security

prime minister took this leak to be a clear message that the U.S. government wanted the story out in the open and felt forced to act. Thus, the earlier proposal to establish a formal inquiry was dusted off and set in train by the Cabinet approving Order in Counsel P.C. 411, which established a commission of inquiry under two justices of the Supreme Court of Canada, Roy Lindsay Kellock and Robert Taschereau. The investigatory process was now armed with the powers of three statutes—the War Measures Act, the Inquiries Act, and the Official Secrets Act. As Whitaker and Marcuse have observed: The first of these allowed the government to seize the suspects, incarcerate them, interrogate them and detain them incommunicado and without charging them with a crime for an indefinite period. The second act allowed the commissioners to force the testimony of suspects, and to punish them with charges of contempt if they refused. The third was interpreted by the commission as allowing them to presume all the suspects were guilty until proven innocent. On top of these formidable powers, the commission was given the authority to make its own interpretations of these laws and to make up its own rules for the secret hearings.32

Seen in this light, it is necessary to view the Kellock-Taschereau Commission as much, if not more so, as a policy instrument rather than an inquiry. It permitted the government to manage how the story, which had the potential for embroiling Canada in all sorts of foreign policy difficulties, would be told. A secret commission thus had the potential for controlling as much of the story as the Canadian government could, while at the same time framing the narrative in a way that served the government’s interests by maximizing the domestic and limiting the international implications. As noted earlier, the war in Europe and the Pacific had ended prior to Gouzenko’s defection. Thus, the War Measures Act, not unsurprisingly, was allowed to lapse in December 1946. At the time, the justice minister denied in Parliament to John Diefenbaker, a future prime minister, that there were any secret orders-in-council that might extend the emergency powers in peacetime. The public version of the commission’s report covered essentially three elements. The first painted a picture of the development of Soviet intelligence networks in Canada and the recruiting methods they used. The second concerned the case against individual agents. The third included its summary of findings, the commission’s interim reports, and its conclusions and recommendations. Its findings confirmed that there was a “Fifth Column” operating in Canada and that it was composed of several spy rings. In this context, several people were specifically identified as having disclosed secret and confidential information to a foreign power. Its recommendations were seven in number. Most lacked specificity. They included studying the Official Secrets Act to see whether it needed amending. Those dealing with improved security procedures were particularly

Public Inquiries in Canada

37

general. They would, however, lead to security clearance procedures for all government employees handling secret and confidential information, a process that has been steadily extended to include government contractors and more recently airport and marine port workers. None of the evidence received by the Commission of Inquiry on Espionage, as it became popularly known, was released to the Canadian public until 1981, a full 35 years after Gouzenko’s defection.33

CANADA’S FIRST “SEASON OF INQUIRY”: FROM THE TWO OLDEST PROFESSIONS TO CIVILIANIZATION A brief mention needs to be made of events that took place in 1966. In the early part of March 1966, two commissions of inquiry were established. The first concerned the activities of a Vancouver postal worker named George Victor Spencer who was alleged to have acted as a spy for the Soviet Union by collecting information on dead Canadians that could be used to build “legends.”34 The second was in many ways a replay of the recent British inquiry into what was called the “Christine Keeler Affair” by Lord Denning. At least two Progressive Conservative cabinet ministers were alleged to have consorted with an East German woman named Gerda Munsinger, a prostitute thought to be a spy. In the case of Pierre Sévigny, the minister of national defense, it was established that he had seen her for several years and had even signed her application for citizenship. After the RCMP discovered her background and reported the matter to the justice minister, she was deported in 1961. Unlike his British counterpart, John Profumo, Sévigny quietly resigned some two years later, the whole matter being quietly hushed up. In fact, matters might well have rested there had it not been for future prime minister Diefenbaker calling then justice minister Lucien Cardin a “dwarf in giants clothing” over his handling of the Spencer affair. Cardin’s riposte was to suggest that the security leaks might have occurred under Diefenbaker’s watch thanks to “Munsignor.” Despite the mispronunciation, the story was soon out and a commission of inquiry established under Justice Wishart Spence, a justice of the Supreme Court of Canada.35 After the government had sufficient time to study the implications of these two commissions of inquiry, it established a further commission to make a full and confidential inquiry into Canada’s security methods and operations.36 This inquiry had three commissioners, none of whom were members of the judiciary, and was entirely advisory in nature. Led by Maxwell Mackenzie, it did not hold formal hearings or retain verbatim records but did hear from some 250 people. Its staff prepared reports on Canadian and British procedures and obtained under contract two legal studies: one on the U.S. Federal Loyalty-Security Program, the other on security procedures in French. Its recommendations included improvements to Canada’s security screening and document protection programs

38

Commissions of Inquiry and National Security

as well as some dealing with new structures. While some were not controversial—the establishment within the Privy Council Office of a well-staffed security secretariat with adequate resources and a Security Review Board to consider government employee complaints—one was. It concerned the establishment of a new civilian agency in Canada separate from the RCMP to act as a security service without police powers. This recommendation fell flat without any political or public preparation, and the RCMP was easily able to sabotage the idea by inside-the-bureaucracy hardball politics. The only cross they would have to bear was the slow civilianization of their security service with a civilian as its head. The commission probably failed to be influential in large part because of the way the government set it up and because the commissioners themselves interpreted their mandate in such an unimaginative manner that they were bound to fail on the one really new idea they had.

KEABLE V. MCDONALD : DUELING COMMISSIONS OVER DOMESTIC COVERT OPERATIONS IN CANADA When Robert Samson blurted out that he had done “much worse things for the RCMP than plant bombs” during a closed session of his trial for bombing a Montreal supermarket executive’s home in 1974, the former RCMP constable set in train a series of events that would lead to the establishment of two competing commissions of inquiry.37 The first was a provincial inquiry, the second a federal investigation. Both would try to focus on police activities in the Province of Quebec before, during, and after the October Crisis of 1970 in which the Federal government had invoked the War Measures Act for the first occasion in peacetime on grounds of there being an apprehended insurrection.38 In March 1976, Samson’s statement concerning various break-ins and other covert destabilizing efforts against Quebec separatist movements, such as stealing Parti Québécois mailing lists, was made public. While it did trigger an internal inquiry by the RCMP that would lead eventually to charges being laid against three senior police officers from the RCMP, the Sûreté du Quebec, and the Montreal City Police, it created little immediate public interest. Even when, eight months later, the Vancouver Sun published an article by John Sawatsky detailing the conspiratorial nature of the break-in of the left-wing Agence de Presse Libre du Quebec, indicating that those involved had acted under the direction of higher authorities and that RCMP headquarters knew about it shortly thereafter, there was little media response.39 Though the story represented in Sawatsky’s view “the first public evidence of a Watergate in Canada” because the RCMP’s management had been implicated in methodical illegal activity for the first time, the Canadian Press news agency refused to cover the story while not one reporter in the Parliamentary

Public Inquiries in Canada

39

Press gallery reported on a question subsequently planted in the House of Commons.40 Only in May 1977, when the three senior police officers were allowed to plead guilty to a reduced charge of failing to obtain a search warrant and thus avoid a criminal conviction, did national news journalists pick up the story. In less than a month, the Parti Québécois government, which had for the first time recently won a resounding provincial election advocating national sovereignty for Quebec and secession from Canada, established a commission of inquiry chaired by Jean Keable, a Quebec lawyer, to investigate police illegalities.41 At the federal level, the Conservative opposition focused their attention not on RCMP wrongdoing, which would have tarnished one of Canada’s most important symbols, but on who was responsible at the ministerial level for their actions. Largely to ensure that it retained some control over the process, the federal government followed suit within a month with a three-man commission of inquiry chaired by Justice David McDonald of the Supreme Court of Alberta.42 The commission was given a dual mandate. On the one hand, it was to investigate the activities of members of the RCMP that were not authorized or provided for by law. And, on the other, it was to make recommendations about the policies and procedures adopted by the RCMP in fulfilling its national security functions and the adequacy of Canadian laws that apply to that responsibility.43 The federal and Quebec governments were quickly embroiled in legal battles over what exactly the Keable commission could investigate and hence where the jurisdictional boundaries between the federal government and the provinces lay. At the heart of the matter was whether a province had the right to investigate the day-to-day operations of the RCMP—a federal agency—in addition to investigating specific incidents in the province. Initially, the Quebec Court declined to declare the commission unconstitutional but on appeal decided that it did not have the right to force the federal government to hand over documents. The Supreme Court of Canada confirmed the decision of the Quebec appellate court, bringing the commission to a halt. However, it subsequently allowed the Keable commission to continue but required that it limit its inquiries into specific individuals to cases within the province. These judgments in the Quebec courts and those that followed before the Supreme Court of Canada are of interest not only in what they have to say about the specific investigations by the Keable commission, the constitutional status of the RCMP, and the preserve of national security, but also for their commentaries on inquiries generally, particularly concerning their roles as courts and as executive instruments.44 The McDonald Commission had its own legal difficulties. Shortly after its inception, Paul Copeland, acting in conjunction with the Law Union of Ontario, made an unsuccessful bid to prevent the commission from continuing its work on the grounds that its commissioners were likely to exhibit bias in favor of the government’s arguments because each had

40

Commissions of Inquiry and National Security

close links to the Liberal Party. Other legal challenges to its continuity also failed. A more serious challenge came eventually from the federal government itself. The point at issue was whether the commission would have ready access to communications between ministers and officials. Thus, just prior to the scheduled appearance of senior politicians and officials, the government put forward the doctrine of cabinet privilege as an argument to control what evidence would be heard in public. According to one journalist intimately familiar with recent events in the United States, it sounded very much like the argument advanced by President Nixon to keep the Watergate tapes under wraps.45 But the commission stood its ground, issuing a lengthy reaffirmation of its independence and authority and arguing that if the government did not like the situation, it would have to change the terms of reference. Faced with the possibility that the commissioners might resign if they did this or if they challenged the commission’s position in court, the government backed down. In addition to identifying practices and procedures the RCMP followed that were not authorized by law, the Commission provided an extensive set of legal and policy recommendations—some 285 in all. Perhaps the most important of these was the establishment of a new civilian security intelligence service by statute without enforcement powers that was separate from the RCMP. In this regard, in resonance with the Mackenzie Commission, it stressed the need for the agency to have a different culture than the RCMP Security Service by recruiting people from a wide variety of experiences and developing appropriate training programs. In terms of review mechanisms, it recommended the establishment of separate institutions to deal with complaints and conduct organization scrutiny. Significantly, it recommended the establishment by statute of a permanent joint parliamentary committee on security and intelligence that would handle both matters of effectiveness and propriety, as well as a body that would handle complaints against the RCMP. It also indicated ways in which ministerial responsibility and cabinet control of security and intelligence could be strengthened.

THE CASE OF MAHER ARAR: THE O’CONNOR COMMISSION AND EXPOSURE OF EXTRAORDINARY RENDITION A little more than one year after the attacks on New York and Washington on September 11, 2001, by Islamist extremists using civilian aircraft as flying bombs, at a time when Western intelligence organizations were still concerned with the possibility of a second wave of attacks, Maher Arar was traveling back from a family vacation in Tunisia. His planned route took him from Zurich across the Atlantic Ocean to New York City before transferring to Montreal, his final destination. Arar, a Muslim of

Public Inquiries in Canada

41

Arab background who had emigrated from Syria to Canada at seventeen and had become a Canadian citizen, never made it home. Unbeknownst to his family, who were unable to find out what had happened to him for six days, he was held at a detention center in Brooklyn, New York. There he was interrogated without the assistance of either a lawyer or Canadian consular officials. After being detained for nearly two weeks, he was deported from the United States. Instead of being sent, as one might reasonably have expected, to Canada, he was flown via Rome to Jordan where he was transported finally to Syria, the place of his birth. Once in Damascus, he was tortured and held for more than 10 months in the notorious Far Falestin prison in a cell without light that was three feet wide, six feet deep, and seven feet high. The Canadian government played a part in his deportation by the United States, in his questioning by the Syrians, and in preventing his speedy release. After his eventual release, the Arar family sought a public inquiry to address both his treatment and his innocence. This request was initially turned down by the Liberal government. However, after Jean Chrétien had been replaced as prime minister, his successor, Paul Martin, reversed the decision and appointed Justice Dennis O’Connor, the associate chief justice of Ontario, to chair an inquiry. This did not eventuate until after the media had obtained news of a raid by the RCMP on the home of Juliet O’Neill, an Ottawa Citizen reporter, with a view to establishing the identity of her anonymous sources. She had previously written a front-page story, evidently based on leaked information, that falsely linked Arar to al Qaeda.46 This commission had a dual mandate that was partly investigatory and partly advisory. On the investigatory side, it was asked to report on the involvement of Canadian officials in Arar’s detention in the United States, his deportation to Syria via Jordan, his imprisonment and treatment in Syria, and his eventual return to Canada. Its advisory role was limited to making policy recommendations regarding the implementation of an independent arm’s length review mechanism to cover the activities of the RCMP when engaged in national security activities. The inquiry subsequently cleared Maher Arar of any involvement in terrorism and recommended new forms of review and oversight not just for the RCMP but for a far broader range of organizations now engaged in national security activities. The reports themselves are available in two forms and are divided into two parts. The first is a confidential version that was made available to the government alone. The second version is one for public consumption and excludes certain material on national security grounds.47 It consists of three volumes that cover the investigation into what happened to Maher Arar and the involvement of Canadian officials. The final volume concerns policy recommendations regarding a new review mechanism for the RCMP’s national security activities. In addition to the reports, several background papers were prepared by commission staff and its advisory

42

Commissions of Inquiry and National Security

panel. These were made available on the commission’s Web site. As well, the commission prepared a CD to accompany the policy review report that contained, among other things, the transcripts of the public hearings. Arar has since been compensated $10.5 million by the Canadian government. He and his family have also received a formal apology from the current prime minister for the physical and psychological damage he suffered. However, he still remains on the U.S. watch list and is unlikely to be able to fly on any U.S. airline. Repeated attempts by Arar to seek redress in the U.S. courts have so far failed, the most recent being a rejection by the U.S. Federal Court of Appeals. His case may still be heard by the U.S. Supreme Court.48

JUSTICE DENIED: INVESTIGATING THE LARGEST MASS MURDER OF CANADIANS 23 YEARS AFTER THE FACT On June 23, 1985, almost simultaneously and at opposite ends of the globe, a deadly conspiracy played itself out. At Narita International Airport in Japan, luggage originating from Vancouver exploded in the process of being loaded onto an Air India Flight destined for Bombay, killing two Japanese baggage handlers. Some 55 minutes later, as Air India Flight 182 was approaching the Irish coast on route from Montreal to London, it suddenly disappeared from radar screens, the victim of another bomb. Some 331 persons were killed, the vast majority of them Canadians of Asian extraction. It represented, though was not recognized as such for many years, the largest mass murder in Canadian history and the most deadly air disaster prior to 9/11. While other countries instigated commissions of inquiry into acts of serious political violence against wide-bodied aircraft while criminal investigations were ongoing, the Canadian government steadfastly refused to hold any form of inquiry for many years.49 In fact, it pressured various investigatory bodies against doing so. The Security Intelligence Review Committee, which has a mandate to review the activities of the Canadian Security Intelligence Service (CSIS), was pressured to delay the publication of its review of the incident until the early 1990s. By this time, the Special Committee of the House of Commons that had been established in 1989 to review the CSIS Act and the Security Offences Act had completed its work. It too had been told that the air disaster was off limits. When the eventual prosecution of two Sikhs, both allegedly linked to a movement in support of an independent Khalistan, failed in 2005 to garner a conviction in either bombing, the government’s claim that no commission of inquiry could be established while a criminal investigation was still underway collapsed. However, instead of establishing a commission of inquiry immediately, Prime Minister Martin took the unusual step of appointing an independent advisor to see whether a commission of inquiry was feasible and, if so, what form it should take.50 In

Public Inquiries in Canada

43

this instance, the advisor was Bob Rae, who by then had strong ties to the Liberal Party and would shortly run for its leadership. He recommended an order-in-council inquiry, not a public inquiry.51 But the Conservatives, who had promised a public inquiry when in opposition, kept their word and appointed an inquiry under part 1 of the Inquiries Act under John Major, another former judge of the Supreme Court of Canada, on May 1, 2006.52 The terms of reference of this commission are of particular interest as they represent the first time when a Canadian commission of inquiry has been asked to examine the effectiveness of security and intelligence organizations.53

CONCLUSIONS While it is too early to draw conclusions based on the limited number of commissions discussed in this chapter, several consistent themes may be identified that run either intentionally or unintentionally through those considered here. In the first example, the Kellock-Taschereau Commission unintentionally raised concerns about the rights and liberties of individuals who had been abused by the process. It would eventually contribute, once Diefenbaker had become prime minister, to the enactment of Canada’s Bill of Rights in 1960. In the McDonald Commission, there was a definitive attempt to balance the obligations of democratic state to protect itself against threats to its national security and its obligation to protect the rights and liberties of its citizens. It was not by accident that a model law, which attempted to balance these rights and obligations, was adopted by the Canadian Parliament within two years of the repatriation of the Constitution with its embedded Charter of Rights and Freedoms as part of the last breath of the Trudeau government. And the Arar Commission represented an attempt to redress the rights of someone whose human rights had been abused. A second theme concerns the involvement of Canada’s criminal justice system and how elements of it can be used to bend normal practices. In McDonald, the police broke the law—albeit with noble motives—to defeat what they perceived as a threat to national security. In the case of Arar, Canadian organizations passed on flawed information—not clear evidence— that had the most serious consequences for the human rights of a Canadian citizen. As a consequence, it is perhaps not surprising that commissions of inquiry have emphasized matters of propriety at the expense of efficacy. In some cases, there has been recognition that the two are interwoven, but even so, discussions of efficacy are still given short shrift. This is particularly true of the Arar Commission, where one of the expert panels discussed the matter at some length. Such one-sided approaches have particular important consequences. In the Arar Commission report, for example, the distinction between review and oversight is discussed at some length. But it is only done in a way that is meaningful for scrutinizing

44

Commissions of Inquiry and National Security

matters of propriety. For example, suggesting that review mechanisms primarily occur after the fact is inappropriate for efficacy issues. It may be downright dangerous to leave matters until then. In Kellock-Taschereau, prosecutions were, in fact, made possible by the inquiry itself rather than by normal police investigations. Thus, ironically in view of the later preoccupation with propriety, the commission itself was part of the problem. It overrode the rights of the accused in a variety of ways. It deliberately did not inform them of their right to representation and the safeguards against self-incrimination. It used tough interrogation methods and isolated incarceration prior to hearings. Perhaps not surprisingly, it had the unintended consequence of eventually focusing the minds of many Canadians on civil liberties and giving birth to a range organizations dedicated to preserving and enhancing them.54 A third theme is that each of these commissions has played an important role in the Canadian narrative—for good or bad. The Kellock-Taschereau Commission brought to light the new reality of the Cold War. Though its transcripts were long kept secret, its final report had quite a dramatic effect on public opinion in Canada by raising the specter of domestic communism. And it was widely published abroad in the United States and the United Kingdom. As such, it played a part in developing the paranoia prevalent in North America in subsequent years about the communist menace. Of the three commissions of inquiry, the McDonald Commission perhaps attempted to do the most regarding public education. Not only do its reports, numerous research studies, and bibliography help provide a useful interpretation of the history of the Canadian security and intelligence community prior to the 1970s in comparative perspective, but they capture a picture of its structure and operation at the time of the inquiry. In many respects they filled an intellectual void not only for academics who had hitherto done little to incorporate the “secret world” in their analyses but also for politicians who were for the most part unfamiliar with that area of government. Certainly, the introduction of new legislation that flowed from the McDonald Commission led to the most detailed and comprehensive debate about security and intelligence matters in Canadian history. The commission therefore provided a real building block of knowledge. Among the commission’s legacies was the provision of its reports and transcripts to libraries across the country. It is perhaps too early to assess the educational effect of the Arar Commission. In part, this is due to the fact that it represents unfinished business in three important respects. First, one of the commission’s recommendations concerned the establishment of inquiries about the treatment of other Canadian residents who claimed to have been tortured in Syria and Egypt as the result of information and intelligence passed on by Canadian security and intelligence organizations. These matters were investigated by an inquiry headed by another Supreme Court justice, Frank Iacobucci.55 Though it was established under part 1 of the Inquiries Act and thus fell

Public Inquiries in Canada

45

under the general rubric of a “public inquiry,” it was framed as an “internal inquiry.” This meant that that the vast majority of its hearings were held in camera, there would be no transcripts in either official language, and counsel for the interested parties to the investigation could not ask questions of witnesses. It is now evident from the subsequent publication of the Supplement to Public Report that the commission differed from the government over what should and could be made public for reasons of national security.56 Second, the Arar Commission has invisible elephants in the room. Not unsurprisingly, the governments of both the United States and Syria declined to participate in the inquiry. Though the Arar Commission went a long way to nail down the role of the United States and Syria in Arar’s treatment, aspects of their involvement nevertheless remain unclear. And given that requests by the Canadian government to clear his name have met deaf American ears, this has considerable policy implications for future cooperation on counterterrorism with the United States. Finally, it is important to note that the government has yet to act on the commission’s policy recommendations. In all likelihood, this will not occur until after the report of the Major Commission on Air India has been released for publication by the government. A fourth theme concerns the reach of the documents produced by Canadian commissions of inquiry. As has been noted, the Kellock-Taschereau reports were circulated to audiences outside Canada, particularly in Britain and the United States, and had an impact there. And while the McDonald Commission report is long since out of print, the three volumes of The Defection of Igor Gouzenko may still be purchased through Aegean Park Press, an American publishing company. Similarly, the Arar report, which did not stop with a mere description of torture but provided a compelling condemnation of the ethics on which torture is based, has provided the first officially documented description of the U.S. practice of “extraordinary rendition.” This has not gone unnoticed, as Dr. Marty, the Swiss parliamentarian who led the European investigation of secret detention centers for the Council of Europe, has opined: “Whatever one thinks about how much of the investigation should be made public, one thing remains clear: of all the countries to have launched investigations into rendition scandals, only Canada has made a real effort to put right the wrong done to the victim—and in a way that does not endanger its legitimate nationalsecurity interests.”57 These reports are in direct contrast to those of the McDonald Commission. Somewhat surprisingly, when U.S. experts have sought alternative organizations to the Federal Bureau of Investigation for handling domestic security and intelligence concerns since 9/11, they have looked further afield, particularly to Britain’s Security Service and the Australian Security Intelligence Service, not to the experiences of its closest neighbor to the north in separating the internal security function from law enforcement and the security intelligence model its provides.

46

Commissions of Inquiry and National Security

A fifth theme that presents itself quite frequently is that commissions of inquiry often have to sort through quite difficult legal and constitutional issues. This speaks to the need for both having senior judges as commissioners as well as the availability of experienced legal counsel as part of a commission’s staff. Yet their involvement necessarily raises questions about the independence of the judiciary and the role of legal counsel and sometimes of the commission itself. In Kellock-Taschereau, once details of the commission’s procedures and practices became known, concerns were expressed over the role provided by Supreme Court justices and the role of commission counsel (who was then president of the Canadian Bar Association). To some, the latter appeared more like a prosecuting attorney than legal counsel to the commission. With McDonald, as was noted, the commissioners were thought to be too closely tied to the Liberal Party. But in this instance they proved their independence by taking on the government over what the commissioners should see. Nevertheless, the position regarding the McDonald Commission vis-à-vis the government is probably more complex and ambivalent than that. Some might well view their third report as being crafted in such a way as to let the Liberal ministers off the hook for complicity in RCMP wrongdoing. There is some evidence, in fact, that a research study dealing with this complicity was suppressed to avoid alienating the Liberal government. Why this was done, one can only speculate. Simple partisanship is unlikely. Perhaps it was to ensure that their policy recommendations would be received in a positive light.58 The matter does not appear to have been an issue with the Arar Commission. The selection of Justice O’Connor signaled that he was likely to take an independent line as he had recently chaired an investigatory and advisory commission of inquiry into the quality of Walkerton, Ontario’s drinking water and had not shied away from criticizing the provincial government that had appointed him.59 Related to this issue is the notion that commissions take an overly long time to prepare their reports and are extremely costly. In many instances, commissions are delayed by lawsuits brought against the commission by individuals, conflicts with the very governments that established them, or challenges from provincial authorities. Such delays and legal challenges have significant cost implications not just for commissions but also for the government itself. As well, commissions must make decisions about when not to prolong legal challenges. This is particularly true in the case of commissions dealing with national security issues where there are differences of opinion regarding what matters can be made public. Although the Arar Commission staff were security cleared to “top secret” and enjoyed untrammeled access to documents, the commission’s inability to disclose evidence presented in camera impaired its capacity to build credibility for its findings. It may be anticipated that the Iacobucci inquiry as an “internal inquiry” will have similar difficulties of credibility. However, in some instances legal action can be both necessary and advantageous. Again in the Arar case, a decision in the Federal Court of Canada sided largely with

Public Inquiries in Canada

47

the commission and forced the government to release more information. Published as an addendum to the report, it showed that many of the government’s actions to prevent disclosure on national security grounds were in fact really to avoid embarrassment. A sixth theme has to do with seeing commissions of inquiry as a mechanism for delaying action or parking a particularly difficult problem in someone else’s bailiwick. There is no evidence that this was done with the Kellock-Taschereau Commission. It formed part of a strategy to investigate certain activities that normal police work could not adequately uncover. In this regard, the commission was not only successful but quickly expedited. In the case of the McDonald Commission, the establishment of the commission was largely forced on the federal government by outside forces. Legal issues also played no small part in the length of time that the commission took to report. Similarly, with the Arar Commission it is difficult to make the case that it was a convenient mechanism for parking a problem or delaying action given the choice of Justice O’Connor. Furthermore, as prime minister, Martin had become an advocate for getting to the bottom of problems rather than ignoring them, even at a personal political cost. In this regard, it is important to note that within two weeks of establishing the Arar Commission, Martin appointed Justice John Gomery to head a commission of inquiry after the auditor general had identified irregularities in the government’s sponsorship programs in Quebec.60 This commission is often credited with being responsible for dramatically reducing Liberal Party popularity in the province of Quebec and in eventually causing the demise of the Martin government in 2006. While some may see the use of special advisors to report on the shape and form a public inquiry should take before one is established as a delaying tactic, it is important to note that several commentators on commissions of inquiry have posited that greater care needs to be taken in developing terms of reference. While the examples of this practice are too few so far to draw conclusions, an opportunity for the media and the public to comment on terms of reference before they are set in stone might even be useful. A final theme concerns the role that Parliament should play in scrutinizing the activities of the various elements of Canada’s security and intelligence apparatus. While this was not an issue in Kellock-Taschereau, it was an important issue for the McDonald Commission. Not only did it commission a special study61 on the matter, but it concluded that Parliament should play a larger role than it had in the past and that there should be a statutorily appointed joint committee of the House of Commons and the Senate that would deal with both matters of effectiveness and propriety. Its primary concern was not to provide advice on “an independent review body,” as the Arar Commission was commanded, but to bring security intelligence activities under appropriate political control.62 It did this through recommendations that encompassed an enabling statute for a new agency with an administrative head having control and management for the new agency under the direction of the responsible minister and various

48

Commissions of Inquiry and National Security

other internal and external controls. And though it did not use the term, it made the minister effectively accountable to Parliament through what it termed a “reasonably well informed and knowledgeable process of parliamentary review.”63 In responding to its advisory mandate, the Arar Commission hardly discussed the role of Parliament at all. It is as if it did not exist. It is missing entirely from the commission’s discussion of the “Review of National Security Activities: The Canadian Experience.” There is no discussion of whether a committee of parliamentarians or a committee of Parliament—both of which had been discussed in the literature and in a government white paper—should be established.64 Furthermore, the subject of an independent review body is approached from one dimension— that of propriety—despite the fact that the report admits that propriety and efficacy are interwoven. There is but a fleeting reference to the other side of the coin—the efficacy dimensions. It is here—according to Justice O’Connor—that Parliament perhaps should play a role. Commissions of inquiry clearly have attributes that some see as positive in terms of their capacity to make aspects of government transparent through a process of relatively independent review. Nevertheless, it is equally true that they often possess negative dimensions in terms of cost, political diversion, and time taken to develop substantive recommendations for reform. Of one thing, however, there should be no doubt. They are, in Canada at least, totally executive instruments. Governments establish their terms of reference, which persons will be chosen as commissioners, how they will conduct their affairs, when they will start and complete their work, and what will be made public in final reports. Parliament plays no formal part in these deliberations. All it can do is to encourage the government to act. In recent times, Canadians have seen commissions that took a limited view of their terms of reference and excluded any analysis of the role that Parliament should play in any further ongoing review process. The Canadian experience suggests that senior judges sitting alone are the general rule for appointment as commissioners. While there is little doubt that judges are well versed in taking testimony and ensuring that witnesses are adequately protected, questions are seldom asked about either their familiarity with the various policy and administrative nuances of governance or their high hourly rates of pay. The record also shows that commissions have differed considerably in terms of their capacity to be open and to deliver the historical record for future generations. On the one hand, some commissions, such as that headed by Justice McDonald, went out of their way to ensure that their reports and testimony were available in both English and French in libraries across the country. This is in contrast to recent commissions that have either heard nearly all their testimony in camera or have not made testimony available in either official language. Government control of the timing at which final reports are received and published is another dimension that has varied considerable. When a government does not like the way a commission is being conducted, it can

Public Inquiries in Canada

49

readily close it down before it has completed its investigations. Such was the case with the Commission of Inquiry into the Deployment of Canadian Forces to Somalia, which investigated, among other things, the beating death of a Somali teenager by members of Canada’s elite Parachute Regiment.65 In many, perhaps most, instances, commissions have had to negotiate with the government over what may be released to Parliament and the public. In some instances, they have had to take legal action to obtain access to documents and to release material in their public reports. By way of an end point, affairs relating to access to certain documents concerning what the Canadian government knew regarding the likelihood Afghan detainees would be tortured after being handed over by Canadian forces to Afghan government intelligence authorities is worth mentioning. This is a potentially grave matter, involving possible violations of the Geneva Convention on the treatment of prisoners of war by Canadian military and civilian officials. Yet the government has resolutely opposed the calling of a public inquiry while at the same time attempting to undermine all attempts by existing review bodies or Parliament to examine the issue. The Military Police Complaints Commission initiated hearings that the government first tried to shut down on jurisdictional grounds, and then the commission was prevented from receiving unredacted documents. A special parliamentary committee demanded the production of all relevant documents in unredacted form, and Parliament as a whole backed the committee’s demand with an order for papers that the government resisted on grounds of national security confidentiality. The Speaker of the House of Commons has since ruled that this refusal constitutes a breach of the privileges of members and has provided the government with two weeks to find a compromise whereby Parliament may receive the documents while protecting their disclosure to ensure that national security interest are maintained. At the time of writing, a vote to hold the executive in contempt of Parliament remains a distinct possibility, which would represent an unprecedented situation in Canadian parliamentary history. As Reg Whitaker has suggested, it is perhaps time to establish a permanent accountability body to conduct inquiries into national security matters.66 Such a body could investigate across the jurisdictional boundaries and institutional stovepipes of public administration. If it were linked with a parliamentary national security committee whose members were given full clearance to examine persons and papers, then perhaps damaging constitutional conflicts between the executive and legislative branches, such as that opened up by the Afghan detainee issue, could be averted.

NOTES 1. See Michael J. Trebilcock, Douglas G. Hartle, J. Robert S. Prichard, and Donald N. Dewees, The Choice of Governing Instrument—A Study Prepared for the

50

Commissions of Inquiry and National Security

Economic Council of Canada (Ottawa: Ministry of Supply and Services Canada, 1982). 2. This is not normally the case with standing committees, though it has, for example, been the practice with the Senate Committee on National Security and Defence. It is, however, a more frequent practice with special committees. See note 4. 3. Such powers are, however, used infrequently and inconsistently. In the ongoing Mulroney-Schreiber affair, the Ethics Committee did issue a Speaker’s warrant for Mr. Schreiber’s appearance. But while it swore in Mr. Schreiber, it did not do so in the former prime minister’s case. Recently, Parliament has held Barbara George, a deputy commissioner in the Royal Canadian Mounted Police (RCMP), in contempt of Parliament for misleading the Public Accounts Committee over her testimony concerning the RCMP pension scandal. See Daniel Leblanc and Jessica Leeder, “Senior Mountie Found ‘in Contempt of Parliament,’ ” Globe and Mail, February 11, 2008. 4. We first heard this phrase used by Blaine Thacker, MP. He chaired such special statutory committees in the 1980s, including those dealing with the review of the Access to Information Act and Privacy Act and that dealing with the review of the Canadian Security Intelligence Service Act and Security Offences Act. These committees all hired external specialists. 5. In 1977, a Law Reform Commission of Canada paper identified some 47 federal statutes that conferred powers of inquiry and referred to the Inquiries Act. In addition, it identified a further 40 other federal statutes that conferred powers of inquiry without specifically mentioning the Inquiries Act. See Law Reform Commission of Canada, “Commissions of Inquiry—A New Act,” working paper 17 (Ottawa: Ministry of Supply and Services Canada, 1977), pp. 6–7. 6. Canada, Inquiries Act, RSC, c. I-13, s. 2. 7. Law Reform Commission of Canada, Report on Advisory and Investigatory Commissions (Ottawa: Ministry of Supply and Services, 1979), p. 1. 8. Canada, Inquiries Act, s. 6. 9. Law Reform Commission, Report on Advisory and Investigatory Commissions, p. 1. 10. Law Reform Commission of Canada, “Advisory and Investigatory Commissions,” report 13 (Ottawa: Ministry of Supply and Service Canada, 1979), especially at p. 3. 11. For example, John Childs Courtney, “Canadian Royal Commissions of Inquiry 1946–1962: An Investigation of an Executive Instrument of Inquiry” (PhD thesis, Duke University, 1964); J. E. Hodgetts, “Royal Commissions of Inquiry in Canada: A Study of Investigative Techniques” (master’s thesis, University of Toronto, 1940); James Douglas Maxwell, “Royal Commissions and Social Change in Canada, 1867–1966” (PhD thesis, Cornell University, 1969). 12. For example, Allan Manson and David Mullen, eds., Commissions of Inquiry: Praise or Reappraise? (Toronto: Irwin Law, 2003); and A. Paul Pross, Innis Christie, and John A. Yogis, eds., Commissions of Inquiry (Toronto: Carswell, 1990). 13. Russell J. Anthony and Alastair R. Lucas, A Handbook on the Conduct of Public Inquiries in Canada (Toronto: Butterworths, 1985); Janet R. Smith and R. Anne Patterson, Manning a Royal Commission—A Planning and Organization Model Derived from the Experience of the Royal Commission on National Passenger Transportation (Ottawa: Canadian Centre for Management Development, 1994).

Public Inquiries in Canada

51

14. Nicholas d’Ombrain, “Public Inquiries in Canada,” Canadian Public Administration 40, no. 1 (Spring 1997): 86–107; J. E. Hodgetts, “Should Canada be DeCommissioned? A Commoner’s View of Royal Commissions,” Queen’s Quarterly 70, no. 4 (Winter 1964): 475–90; David Orr, “Public Inquiries and the Jury Trial,” University of New Brunswick Law Journal 43 (1994): 409–14; Kent Roach, “Public Inquiries, Prosecutions, or Both?” University of New Brunswick Law Journal 43 (1994): 415–26, and “Canadian Public Inquiries and Accountability,” in Accountability for Criminal Justice—Selected Essays, ed. Philip C. Stenning (Toronto: University of Toronto Press, 1995), pp. 268–93; Liora Salter, “The Role of the Public in Scientific Determination of Policy: The Canadian Inquiry Process,” University of Toronto Law Journal 31, no. 4 (Autumn, 1981): 343–62, and “Fairness in the Canadian Inquiry Process,” in Fairness in Environment Assessment (Edmonton: Canadian Institute for Resource Law, 1983), and “The Public of Public Inquiries,” in Policy Analysis in Canada: The State of the Art, ed. Laurent Dobuzinskis, Michael Howlett, and David H. Laycock (Toronto: University of Toronto Press, 2007), pp. 291–314; Liora Salter and Debra Staco, Public Inquiries in Canada (Ottawa: Science Council of Canada, 1981); Bryan Schwartz, “Public Inquiries,” Canadian Public Administration 40, no. 1 (Spring 1997): 73–85. 15. George Fletcher Henderson, Royal Commissions in Canada 1867–1966—A Checklist (Toronto: University of Toronto Press, 1967). 16. See the work of the Law Reform Commission of Canada as cited in notes 5 and 7. See also the work of the provincial Law Reform Commissions—for example, Alberta Law Reform Institute, Proposals for the Reform of Public Inquiries Act (Edmonton: Alberta Law Reform Institute, 1992). 17. See, for example, T. Alexander Hickman, “Wrongful Convictions and Commissions of Inquiry: A Commentary,” Canadian Journal of Criminology and Criminal Justice 46, no. 2 ( January 2004): 183–87; and Kent Roach, “Canadian Public Inquiries and Accountability,” in Accountability for Criminal Justice—Selected Essays, ed. Philip C. Stenning (Toronto: University of Toronto Press, 1995), pp. 268–93. 18. See, for example, Tamar Witelson, “Declaration of Independence—Examining the Independence of Federal Public Inquiries,” in Commissions of Inquiry: Praise or Reappraise? ed. Allan Manson and David Mullen (Toronto: Irwin Law, 2003), pp. 301–60. Of course, legal scholars were not the only ones to focus on commission independence. See the views of a former commissioner, Peter Desbarats, “The Independence of Public Inquiries,” Alberta Law Review 36 (1997): 252–58. 19. See several of the essays in parts 5 and 6 in Allan Manson and David Mullen, eds., Commissions of Inquiry: Praise or Reappraise? (Toronto: Irwin Law, 2003). 20. See: J. E. Hodgetts, “Royal Commissions of Inquiry in Canada,” Public Administration Review 9, no. 1 (Winter 1949): 22–29. 21. See, for example, Peter Aucoin, “Contributions of Commissions of Inquiry to Policy Analysis: An Evaluation,” in Commission of Inquiry (see note 12), pp. 197–207. For other articles on the contribution of commissions to policy analysis, see J. C. Courtney, “In Defence of Royal Commissions,” Canadian Public Administration 12, no. 2 (1969): 198–212, and V. S. Wilson, “The Role of Royal Commissions and Task Forces,” in The Structures of Policy Making in Canada, ed. G. Bruce Doern and Peter Aucoin (Toronto: Macmillan, 1971), pp. 113–29. 22. Alan Cairns, “Reflections on Commission Research,” in Commissions of Inquiry (see note 12), pp. 87–108.

52

Commissions of Inquiry and National Security

23. Ed Ratushny, “In Inquiries We Trust,” Globe and Mail, November 23, 2009. 24. See Neil Bradford, “Writing Public Philosophy: Canada’s Royal Commissions on Everything,” Journal of Canadian Studies 34, no. 4 (Winter 1999/2000): 136–67. 25. See, for example, Liora Salter, “The Role of the Public in Scientific Determination of Policy: The Canadian Inquiry Process,” University of Toronto Law Journal 31, no. 4 (Autumn 1981): 343–62; “Two Contradictions in Public Inquiries,” in Commissions of Inquiry (see note 12); and “The Complex Relationship between Inquiries and Public Controversy,” in Commissions of Inquiry: Praise or Reappraise? ed. Allan Manson and David Mullen (Toronto: Irwin Law, 2003), pp. 185–209. 26. See Liora Salter, “The Public of Public Inquiries,” in Policy Analysis in Canada: The State of the Art, ed. Laurent Dobuzinskis, Michael Howlett, and David H. Laycock (Toronto: University of Toronto Press, 2007), pp. 291–314. 27. Ibid., p. 311. 28. See Kenneth Kitts, Presidential Commissions and National Security—The Politics of Damage Control (Boulder, CO: Lynne Rienner, 2006); and Glenn Hastedt, “Foreign Policy by Commission: Reforming the Intelligence Community,” Intelligence and National Security 22, no. 4 (August 2007): 443–72. 29. See Amy Knight, How the Cold War Began: The Igor Gouzenko Affair and the Hunt for Soviet Spies (New York: Carroll and Graf, 2005), p. 63. 30. Reg Whitaker and Gary Marcuse, Cold War Canada: The Making of a National Insecurity State, 1945–1957 (Toronto: University of Toronto Press, 1994), p. 42. 31. Ibid., p. 56. 32. Ibid., p. 58. 33. A small sample of some 6,000 pages of transcripts have been reprinted and somewhat sanitized in Robert Bothwell and J. L. Granatstein, eds., The Gouzenko Transcripts—The Evidence Presented to the Kellock-Taschereau Royal Commission 1946 (Ottawa: Deneau, 1982). 34. See Canada, Commission of Inquiry into Complaints Made by George Victor Spencer, Report (Ottawa: Queen’s Printer, July 18, 1966). 35. See Canada, Commission of Inquiry into Matters Relating to Gerda Munsinger, Report (Ottawa: Queen’s Printer, September 1966). 36. See Canada, Royal Commission on Security, Report (Ottawa: Ministry of Supply and Services Canada, June 1969). 37. It should be noted that at the time the McDonald Commission was established there were already several provincial inquiries involving members of the RCMP in Nova Scotia, New Brunswick, and Alberta in addition to the Keable Commission in Quebec. 38. See Reg Whitaker, “Apprehended Insurrection? RCMP Intelligence and the October Crisis,” Queen’s Quarterly 100, no. 2 (Summer 1993): 383–406. 39. John Sawatsky, “Trail of Break-In Leads to RCMP Cover-Up,” Vancouver Sun, December 7, 1976, p. 1. 40. See John Sawatsky, Men in the Shadows: The RCMP Security Service (Toronto: Doubleday, 1980), p. 279. 41. Government of Quebec, Ministère de la Justice, Commission d’enquête sur des opérations policières en territoire québécois, Rapport (Quebec, Ministère des Communications, 1981). 42. See Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (Ottawa: Ministry of Supply and Services Canada, 1981).

Public Inquiries in Canada

53

43. See Reg Whitaker, “Canada, the RCMP Scandals,” in The Politics of Scandal: Power and Process in Liberal Democracies, ed. Andrei Marcovits and Mark Silverstein (New York: Holmes and Meier, 1988), pp. 38–61. 44. For a discussion of these matters see Murray T. Rankin, “Burning Barns and Keable: Can a Provincial Crime Inquiry Probe the RCMP? Supreme Court Law Review 1 (1980): 381–400. 45. See Jeff Sallot, Nobody Said No: The Real Story about How the Mounties Always Get Their Man (Toronto: James Lorimer, 1979), pp. 106–7. 46. Juliet O’Neill, “Canada’s Dossier on Maher Arar,” Ottawa Citizen, November 8, 2003, p. 1. See also Ian Austin, “False Accusation Sharpens Canadian Press Debate,” New York Times, October 2, 2006. 47. For a detailed assessment of the Arar Commission’s findings and contribution see Reg Whitaker, “Arar: The Affair, the Inquiry, the Aftermath,” Institute for Research in Public Policy, IRPP Policy Matters 9, no. 1 (May 2008): 1–43. 48. “U.S. Court Rejects Maher Arar’s Right to Sue Washington,” Toronto Star, November 3, 2009, p. A16. 49. Stuart Farson, “Accounting for Disaster: The Quest for ‘Closure’ after Aerial Mass Murder: The Downing of Air India Flight 182 in Comparative Perspective,” in Understanding Terror: Canadian Perspectives, ed. Karim-Aly Kassam (Calgary: University of Calgary Press, 2010), pp. 67–99. 50. It should be noted that this process has been followed again more recently by Prime Minister Stephen Harper regarding a possible public inquiry into the Mulroney-Schreiber Affair. See Campbell Clark and Daniel Leblanc, “PM Stalls Inquiry until MPs Finish Probe,” Globe and Mail, January 12, 2008. 51. See Canada, The Report of the Honourable Bob Rae, Independent Advisor to the Minister of Public Safety and Emergency Preparedness, on Outstanding Questions with Respect to the Bombing of Air India Flight 182 (Ottawa: Public Safety and Emergency Preparedness Canada, 2005). 52. For available information to date, see the Web site of the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, at http:// www.majorcomm.ca/en/. 53. At the time of writing the commission has made its report to the government, but it is yet to be made public. 54. See Dominique Clèmont, “Spies, Lies, and a Commission: A Case Study in the Mobilization of the Canadian Civil Liberties Movement,” Left History 7, no. 2 (Fall 2000): 53–79. 55. Canada, Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati, and Muayyed Nureddin (Ottawa: Public Works and Government Services Canada, 2008). 56. See Canada, Supplement to Public Report (Ottawa: Public Works and Government Services Canada, 2010). 57. D. Marty, “Canada’s Arar Probe Is a Model for Europe,” Globe and Mail Online, August 14, 2007. 58. See Reg Whitaker, “Designing a Balance between Freedom and Security,” in Ideas in Action: Essays on Politics and Law in Honour of Peter Russell, ed. Joseph F. Fletcher (Toronto: University of Toronto Press, 1999), pp. 126–49. 59. See Ontario, Canada, Walkerton Commission of Inquiry into the Contamination of the Walkerton Water Supply and into the Safety of Ontario’s Drinking Water, reports available at http://www.attorneygeneral.jus.gov.on.ca/english/ about/pubs/walkerton/.

54

Commissions of Inquiry and National Security

60. See Canada, Commission of Inquiry into the Sponsorship Program and Advertising Activities, reports available at http://epe.lac-bac.gc.ca/100/206/301/ pco-bcp/commissions/sponsorship-ef/06-02-10/www.gomery.ca/en/phase1 report/default.htm. 61. C.E.S. Franks, Parliament and Security Matters (Ottawa: Ministry of Supply and Services Canada, 1979). 62. Stuart Farson, “Restructuring Control in Canada: The McDonald Commission of Inquiry and its Legacy,” in Controlling Intelligence, Glenn Hastedt (Frank Cass: London, 1991), pp. 155–85. 63. Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Second Report, Freedom and Security under the Law, vol. 2 (Ottawa: Ministry of Supply and Services Canada, 1981), p. 892. 64. See Stuart Farson and Reg Whitaker, “Democratic Deficit be Damned: The Executive Use of Legislators to Scrutinize National Security in Canada,” in Strategic Intelligence, vol. 1, Understanding the Hidden Side of Government, ed. Loch K. Johnson (Westport: Praeger Security International, 2007), pp. 65–88. 65. Peter Desbarats, Somali Cover-up: A Commissioner’s Journal (Toronto: McClelland and Stewart, 1997). Two of the important consequences of this inquiry were the disbanding of the Parachute Regiment and the establishment of the Military Police Complaints Commission. 66. Reg Whitaker, “Enough with the Inquiries: Canada Needs One Permanent Accountability Process for Security and Intelligence Issues,” Ottawa Citizen, August 31, 2009. See also our “Accountability in and for National Security,” IRPP Choices 15, no. 9 (September, 2009).

CHAPTER 4

The Politics of Commissions of Inquiry into Security and Intelligence Controversies in Britain Mark Phythian

A variety of forms of inquiry have been utilized in Britain to investigate security and intelligence-related controversies. This chapter discusses key aspects of the various options, ranging from statutory inquiry, ad hoc nonstatutory inquiries, the use of the Security Commission and, more recently, the Intelligence and Security Committee (ISC), to the use of ad hoc committees of privy counselors, before going on to consider the politics of such inquiries and the purposes they serve. Inquiries are responses to an event or development that raises normative questions about the operation of the state, as well as of the government of the day. The cases discussed in this chapter include the possibility of a government minister being compromised by a foreign espionage operation, the possibility that the government was complicit in a covert trade in arms-making equipment with Iraq in defiance of formal guidelines and was willing to see innocent businessmen jailed to conceal it, and that either the government misrepresented the threat posed by Iraq in making the case for war or intelligence failed in that it presented an erroneous picture that led the government to war. As in these cases, official inquiries tend to be conceded where instruments of government are considered to have failed and existing mechanisms are not considered sufficient—essentially, sufficiently independent, but also in terms of expertise—to investigate the matter in a way that will restore confidence. In Britain, the fullest possible form of inquiry has been a public inquiry held under the terms of the Tribunals of Inquiry (Evidence) Act 1921. Such an inquiry had the power to enforce the attendance of witnesses, examine them under oath or affirmation, and compel the production of documents.

56

Commissions of Inquiry and National Security

This was the form of inquiry used in 1963 under Lord Radcliffe to investigate the Vassall spy affair and, from 1998, under Lord Saville to investigate the events of Bloody Sunday ( January 30, 1972) in Londonderry. Because this is the fullest form of inquiry it can also be the most lengthy and expensive, creating a disincentive to resort to this option. Indeed, Lord Saville’s Bloody Sunday Inquiry has come to exemplify the delays and costs such an inquiry can generate—the decade-long inquiry cost in excess of £200 million.1 While it is not the intention of this chapter to consider inquiries in relation to events in Northern Ireland (the subject of chapter 5), it is worth noting that this form of inquiry has been affected in recent years by legislation that has increased ministerial influence over the inquiry process. This was a direct consequence of the British and Irish governments’ decision to invite a former Canadian Supreme Court justice, Peter Cory, to conduct a review of six cases involving allegations of security service collusion in relation to the conflict in Northern Ireland, including the murder of Belfast solicitor Patrick Finucane, and to make recommendations on any need for inquiries. In doing this, they agreed to act on Cory’s recommendations. In 2004, Cory reported that he had uncovered sufficient evidence of collusion to warrant a public inquiry and recommended one should be established as soon as possible. Seemingly in response, the British government passed the Inquiries Act 2005, of which sections 19 and 20 give government ministers the power to restrict public access to information and to order that all or part of ‘public’ inquiries should be held in private.2 Cory has himself observed that no self-respecting Canadian judge would agree to participate in such an “Alice in Wonderland situation.”3 Nor was he alone. Lord Saville wrote to Department of Constitutional Affairs Minister Baroness Ashton, warning that “this provision [i.e., sections 19 and 20] makes a very serious inroad into the independence of any inquiry and is likely to damage or destroy public confidence in the inquiry and its findings, especially in cases where the conduct of the authorities may be in question.”4 He made it clear that neither he nor his fellow Bloody Sunday Inquiry judges would be prepared to sit on an inquiry established under such terms. Human rights organizations such as Amnesty International also voiced their concerns. Amnesty called on all judges, whether in the United Kingdom or other jurisdictions, to boycott inquiries constituted under the 2005 Act and called for its repeal with the following comment: The Inquiries Act 2005 undermines the rule of law, the separation of powers and human rights protection. It cannot be the foundation for an effective, independent, impartial or thorough judicial inquiry in serious allegations of human rights violations. Nor would it provide for public scrutiny of all the relevant evidence . . . [it] deals a fatal blow to any possibility of public scrutiny of and accountability for state abuses. Any inquiry under this legislation would automatically fall far short of the requirements in international human rights law and standards for effective remedies for victims of human rights violations and their families.5

Security and Intelligence Controversies in Britain

57

Hence, via the 2005 Act, the principle of the separation of powers was weakened and the independence of the statutory inquiry compromised, seemingly with the immediate aim of exercising a degree of control over the nature and course of any inquiry into the murder of Patrick Finucane.6 A second form of inquiry that governments can turn to is the ad hoc non-statutory inquiry, such as that chaired by Lord Denning in 1963 into the Profumo affair, and greatly discredited as a result, but revived in the case of Sir Richard Scott’s 1992–96 inquiry into the Matrix Churchill armsto-Iraq affair and again in the case of the Hutton Inquiry into the circumstances surrounding the death of government scientist Dr. David Kelly in the wake of the Iraq weapons of mass destruction (WMD) controversy. From the mid-1960s, the Security Commission offered a third, and the most favored and discrete, route to investigating security and intelligencerelated controversy. These ad hoc committees of privy counselors have been used, as in the 1983 Franks Committee’s review of the origins of the 1982 Falklands War, the Butler Inquiry into intelligence on WMD, and the 2009–10 Chilcot Inquiry into the Iraq War. THE 1963 DENNING INQUIRY The story must start with Lord Denning. In 1963, the Macmillan government, from a position of considerable weakness, set up a non-statutory ad hoc investigation, to be conducted solely by Lord Alfred Denning, the master of the rolls, to investigate the security implications of the Profumo affair—the term given to the sexual relationship Minister of War John Profumo conducted with call girl Christine Keeler, then living with society osteopath Stephen Ward, at approximately the same time as she was involved with Soviet naval attaché and intelligence officer Captain Eugene (Yevgeny) Ivanov—which culminated in Profumo’s resignation after he admitted to misleading the House of Commons over his conduct. Ward, who was charged with a number of offences under the 1956 Sexual Offences Act, committed suicide at the end of his 1963 trial, a month before the publication of Denning’s report.7 Denning’s terms of reference required him to investigate the circumstances leading to Profumo’s resignation, “examine the operation of the Security Service . . . and to consider any evidence there may be for believing that national security has been, or may be, endangered.” In doing this, the Denning report cast a salacious eye over the sexual conduct of the upper classes and Ward’s role in facilitating it. By the second page of the report, Denning, simultaneously shocked and fascinated, was breathlessly recounting how Ward used to pick up pretty girls at the age of sixteen or seventeen, often from night clubs and induce them to come and stay with him at his house in London. He used to take these girls down at weekends to his cottage. He seduced many of these

58

Commissions of Inquiry and National Security

himself. He also procured them to be mistresses for his influential friends. He did not confine his attention to promiscuity. He catered also for those of his friends who had perverted tastes. There is evidence that he was ready to arrange for whipping and other sadistic performances. He kept collections of pornographic photographs. He attended parties were there were sexual orgies of a revolting nature.8

This kind of detail—and Denning provided much of it—ensured that the report was a bestseller, selling 100,000 copies in its first three days of publication. Coming just three months after the release of the second James Bond film, From Russia with Love, it seemed that fact and fiction were colliding. More significantly, Profumo also afforded the reading public their first glimpse of the Security Service (MI5), explaining the nature of ministerial control and revealing the existence of, and publishing for the first time, the 1952 Maxwell Fyfe Directive, which constituted the guidance under which MI5 then operated. Subsequently, however, the Denning inquiry became a reference point for how not to conduct an inquiry if the public was to have confidence in its conclusions. As Denning himself commented, this form of inquiry meant that he was at one and the same time “detective, inquisitor, advocate and judge,” sitting alone, in secret, and relying on the testimony of at times questionable witnesses without providing any facility for crossexamination. As he himself reflected, “I saw Ministers of the Crown, the Security Service, rumour-mongers and prostitutes. They all came in by back doors and along corridors secretly so that the newspapers should not spot them. Some of the evidence I heard was so disgusting—even to my sophisticated mind—that I sent the lady shorthand writers out, and no note of it was taken.”9 This format meant that Denning was unlikely to provide a satisfactory report into the affair. One legacy of the form of the Denning inquiry and the nature of its report was the range of theories and claims about MI5’s role in the saga to which it gave rise. Within these, the key questions were whether Ivanov was using Ward to acquire sensitive information necessitating MI5’s involvement, whether Ward was working with MI5 to encourage Ivanov to defect to the West, or both. While Denning raised the possibility of MI5 working to secure Ivanov’s defection, his narrative focused on Ward as a security risk. In this, it may be that Denning’s view of Ward (“he was utterly immoral”) predisposed him to conclude as he did. However, in his 1982 book A Matter of Trust: MI5, 1945–72, Nigel West stated that MI5 had targeted Ivanov as a possible defector or blackmail target shortly after his March 1960 arrival in London.10 MI5 sought to use Ward to set up a “honey trap” via the girls he provided for society parties to ensnare Ivanov. To this end, an MI5 officer, “Woods”—later identified as MI5 counterintelligence officer Keith Wagstaffe—arranged to meet Ward in June 1961 to recruit him as an agent, to which Ward agreed. West claimed that Denning had known nothing of this entrapment operation. Subsequent accounts also

Security and Intelligence Controversies in Britain

59

suggested a wider intelligence dimension than acknowledged by Denning.11 Building on the lead provided by West, a Sunday Times team subsequently tracked down Wagstaffe and a “more senior MI5 officer involved in the operation.” “Nowhere in the Denning report,” the latter reportedly said, “does it say that Ward was acting under our instructions. That is very unfortunate.”12 Denning rejected these claims.13 The legacy of confusion that the Denning report bequeathed14 was added to by Christine Keeler, whose three memoirs, published in 1983, 1989, and 2001, contain differing accounts of the events of 1961–63, the last of which introduced new claims—that she was made pregnant by Profumo, necessitating a risky abortion, and that Ward was, in fact, a Soviet spy who wanted her killed.15 Hence, this was one area where Christopher Andrew’s authorized centenary history of MI5, published in 2009, could be expected to bring useful clarification. On the basis of his access to the MI5 archive, Andrew concluded that “Denning’s . . . judgement, though challenged by numerous conspiracy theorists, has stood the test of time.” While such a conclusion rests on the assumption that the MI5 archive represents a complete record, it does raise the possibility that procedures widely regarded as being inappropriate and never to be repeated did nevertheless capture an accurate version of events.16 At the same time, such a conclusion would have carried more authority had Andrew addressed the evidence collected by authors like Knightley and Kennedy and Summers and Dorril, which points to a more critical assessment of Denning’s method and findings. In the short term, the Denning report successfully defused a potentially explosive situation, a fact well captured in a contemporary cartoon by Daily Mail cartoonist Leslie Illingworth. In this, the Denning report was represented as a bomb that didn’t go off, with a satisfied Prime Minister Harold Macmillan confirming that the area was safe while the watching Labour Opposition waited in anticipation of the blast that never came.17 The Denning report, however, would not be enough to save either Macmillan or the Conservative government, which lost the subsequent general election. POST-DENNING The 1966 report of the Salmon Commission on tribunals of inquiry set out six cardinal principles for the conduct of official inquiries, regarding most of which the Denning inquiry fell well short, and recommended that the experience of Denning should not be repeated.18 The aftermath of the Profumo affair also saw the creation, in 1964, of the Security Commission, an ad hoc body established by the executive to investigate specific security breaches, albeit without the benefit of an independent investigative arm. It has met in private, been assisted by a secretariat drawn from the Cabinet Office, and reported to the prime minister, who has published its

60

Commissions of Inquiry and National Security

reports subject to the removal of sensitive information. The reports are no more than advisory, leaving complete prime ministerial discretion over the nature of any response. As characterized by Lustgarten and Leigh, the commission “is a device at the service of the Prime Minister, owing its existence to successive occupants of that office, and acting only at the summons of, and under the terms of reference laid down by the incumbent.”19 The secrecy with which it operated, together with its limited investigatory reach and proximity to government, raised questions about its capacity to uncover uncomfortable truths about MI5 (as, indeed, has its firmly establishment nature). These questions even extended to those Security Commission reports critical of MI5, such as the May 1985 report into former MI5 officer Michael Bettaney, convicted in 1984 under the Official Secrets Act of trying to sell secrets to the Soviet Union. For example, in late 1988, Rupert Allason MP was critical of the Security Commission: The Security Commission has often been mentioned as having some kind of oversight role, yet within the Security Service it has been suggested that the commission is nothing more than a stable-locking operation. I suggest that anyone who does not agree with that reads the Security Commission report on Michael Bettaney, which illustrates one of the dilemmas placed before the commission. The report contains the statement that Bettaney’s erratic behaviour drew attention to him and he was therefore denounced by colleagues, and that that was how the investigation was pursued. What seems odd about that is that we now know in the light of subsequent events that it was Oleg Gordievsky in the Soviet embassy, the KGB resident in London, who tipped off the security authorities to the existence of a traitor in their midst. That prompts the following question: did the Security Commission lie when it stated that Bettaney’s investigation had been initiated as a consequence of the diligence and vigilance of his colleagues? Alternatively, were they lied to, with the best of motives, because the Security Service wished to protect a source? That is a very difficult operational dilemma, but again it calls into question the system of reporting and the difficulties of oversight.20

Still, at the same time Conservative MP Jonathan Aitken considered “even the expurgated version” of the report “one of the most scathing indictments of the quality of management of any Government organisation this century.”21 As he recounted for the benefit of the House of Commons in January 1989: What emerged from the Security Commission’s report on the Bettaney case is that throughout the Security Service many officers had been deeply anxious about the conduct of Michael Bettaney, his possible treachery and his instability. I treasure the memory of the report by the Security Commission on a Mrs. X, an employee of the Security Service, who was cloaked in suitable anonymity. She had gone to a party with Mr. Michael Bettaney and a woman friend and Mr. Michael Bettaney had, in the course of the party, drunk two bottles of neat whisky, set fire to himself and announced that he would much rather be working for the Russians. Despite

Security and Intelligence Controversies in Britain

61

that, back at the office the following morning Mrs. X felt unable to tell anybody about this dimension of Bettaney’s instability, insecurity and unworthiness to be a member of the Security Service because there was no one to tell.22

The Security Commission retains its role, albeit an infrequent one in the era of oversight by the parliamentary Intelligence and Security Committee, which anticipated supplanting it.23 Nevertheless, by the time of the 1988–89 debate on the Security Service Bill, a device which had been viewed as a reasonably effective safety valve since the mid-1960s was coming to be seen as part of the problem rather than the solution. THE SCOTT INQUIRY The Scott Inquiry would be a landmark event in the British experience of inquiries involving security and intelligence issues. Its background lay in October 1990, some two months after the Iraqi invasion of Kuwait, when Customs and Excise officials raided the premises of Matrix Churchill Ltd. (MCL), a machine tool manufacturer and one of a number of British companies trading in dual-use (i.e. civil/military) equipment with Iraq, and charged three of its executives with having deceived the government as to the nature of the machines they were exporting—to having knowingly exported arms-manufacturing technology they had claimed was intended for civil use.24 However, in November 1992, their trial collapsed spectacularly after it was revealed in court that two MCL executives had provided information on their trade with Iraq to MI5 and then MI6, and hence the government knew what was going on. Under cross-examination, former Trade and Defence minister Alan Clark revealed that the government had, in effect, connived in the breach of its own regulations and was aware of the true nature of the machines being exported. In response, the government established the Scott Inquiry. In understanding why the government conceded so wide-ranging an inquiry as that represented by the Scott Inquiry, it is important to note that the collapse of the MCL trial came shortly after a Trade and Industry Select Committee (TISC) inquiry into another aspect of the under-the-counter trade with Iraq, this one involving the so-called supergun. While the TISC supergun investigation secured a high degree of cooperation from a number of businessmen and engineers involved in the often subterranean defense-related trade with Iraq, it failed to secure the cooperation of key governmental players, with the result that its investigation was only partial and left a range of unanswered questions and a residue of suspicion. For example, witnesses from Customs and Excise and the Department of Trade and Industry (DTI) consistently refused to provide information that might relate to the intelligence services. When asked by a committee member whether the DTI had known about the supergun contract but had been requested by the intelligence services to allow it to proceed until the

62

Commissions of Inquiry and National Security

last minute “for the sake of surveillance,” a DTI official replied that “it is not the place of a government department to discuss matters of the intelligence service in public.”25 While a Customs official confirmed that Customs became aware of the supergun project just a week prior to its seizure as a result of a tip-off from within the “inter-departmental machinery,” he declined to locate the source of the tip-off any more precisely, explaining that he was, “constrained in going any further in identifying certain parts of government.”26 As the committee explained in its report, Customs’ limited cooperation had a significant impact on their ability to investigate the issue: “As a consequence of Customs’ unwillingness to reveal the circumstances in which they first commenced and then later dropped criminal proceedings, the Committee has no means of deciding whether either decision was justified.”27 The role of intelligence was writ large in this case, and governmental unwillingness to provide evidence relating to it or facilitate the appearance of witnesses proved an insurmountable barrier. Those businessmen and engineers who gave evidence presented a picture of close intelligence– defense industry liaison with regard to Iraq and Iran, both during and after their 1980–88 war. However, their evidence was not always consistent and raised a series of questions that the TISC could not answer without a greater degree of executive branch cooperation, particularly over evidence from the security and intelligence agencies. In its March 1992 report, it observed that “the Committee has not had access to intelligence sources and several witnesses have made it clear that such access cannot be permitted. We believe the long range gun affair raises serious and important questions about the accountability of the intelligence services both to Ministers and to Parliament.”28 Hence, the skepticism that was a legacy of this inquiry, together with the nature of the charge against the Conservative government of John Major (that it had conspired to send innocent businessmen to jail) and, crucially, the weakness of the Major government (and the effectiveness of the Opposition on this issue), resulted in Scott’s terms of reference being particularly wide-ranging. As Major explained: The terms of reference have not been restricted to Matrix Churchill. They include the supergun and other defence and dual-use sales. . . . All Ministers who are called will give evidence. All civil servants who are called will be instructed to co-operate. All papers that the Inquiry calls for will be made available. Lord Justice Scott will be entirely free to decide on the publication of his report and of the evidence he takes.29

This sat in stark contrast to the situation the TISC had faced in relation to the supergun. As Scott himself noted, this degree of discretion regarding publication was unique, as “in every other comparable inquiry the ultimate decisions regarding publication have been taken by the govern-

Security and Intelligence Controversies in Britain

63

ment of the day.”30 Moreover, although this was an ad hoc non-statutory inquiry rather than one set up under the terms of the Tribunals of Inquiry (Evidence) Act 1921, president of the Board of Trade Michael Heseltine had, at the outset, told the House of Commons that “Lord Justice Scott knows that if he feels unable to obtain satisfactory attendance or answers, he is free to ask the Government to convert the inquiry into a 1921 Act inquiry. If he asks, the Government will agree to his request.”31 Moreover, the Official Secrets Act could not be used as a basis for declining to give evidence, and Scott made it clear that he would decide whether and when the inquiry should move into closed session.32 In short, Scott was granted unprecedented power over his inquiry, the power to insist on seeing all government documents he felt necessary, and, crucially, how much of them to reveal in his report. These powers far exceeded those of a select committee and were the cause of much nervousness across the executive branch, especially as the inquiry moved toward the drafting stage.33 By the end of the inquiry, Scott had sat in public session for over 430 hours and in closed session for over 60. The inquiry had gathered over 200,000 pages of documents and heard evidence from 61 witnesses in 87 days of public hearings and from a further 21 in closed session. This thoroughness meant that the report took over three years to produce, although delays in obtaining documents from government departments added to the length of the inquiry. The report itself, published in February 1996, spanned five volumes and ran to over 2,000 pages. There was much damning detail within these pages that was highly critical of aspects of the Major government’s conduct. However, the organization of the report and language in which it was written meant that the Major government was able to deflect much of the criticism. For example, although the report contained a set of recommendations, there was no comparable set of conclusions. Along with the report, the government issued a press pack containing 10 separate briefings and running to 72 pages. These effectively presented the government’s version of Scott’s conclusions. To take just a couple of examples, the press pack claimed that the report concluded there had been “no deliberate misleading of Parliament.” In reality, the report was critical of the way in which the government concealed information from Parliament, stating that “the answers to PQs [parliamentary questions], in both Houses of Parliament, failed to inform Parliament of the current state of Government policy. . . . This failure was deliberate.” The press pack stated that the government “welcomes the clearing of its good name.” In reality, among several criticisms, Scott found that ministers “failed to discharge the obligations imposed by the constitutional principle of Ministerial accountability.”34 However, locating Scott’s criticisms across the 2,000-page report was a laborious task and not one people were likely to undertake lightly. Scott made a number of intelligence-related observations in his report that suggested areas of intelligence failure, one of which remained secret

64

Commissions of Inquiry and National Security

“in the national interest.” He highlighted areas where intelligence reports did not get to all appropriate readers; recommended that systems should be put in place to enable access to relevant historical intelligence information so as to avoid relying on memory and thereby ensure the adequacy of hand-over briefings; recommended that each departmental customer should regularly review its declared intelligence requirements and question whether it was receiving all relevant reports; and, more worryingly, that it should not be possible for submissions to ministers to attribute to an intelligence agency views or opinions that agency did not hold and might repudiate.35 In one of its earliest annual reports (1996), the ISC would report that the agencies and their Whitehall customers had accepted the shortcomings identified by Scott and outlined the steps they had taken to rectify them. However, Scott’s recommendations on reform of the export licensing system would be ignored by successive governments. INQUIRING INTO IRAQ: THE HUTTON, BUTLER, AND CHILCOT INQUIRIES Aspects of the Blair government’s case for war in Iraq made during 2002–03 and the role of intelligence in it have been the subject of three official inquiries in Britain, as well as inquiries by the House of Commons Foreign Affairs Committee (FAC) and the ISC. It was the suicide of government scientist Dr. David Kelly, after being exposed as the source of a claim that the Blair government had “sexed up” its September 2002 dossier on the threat posed by Iraqi WMD, that led a visibly shaken Blair to announce the establishment of an inquiry under a former lord chief justice of Northern Ireland, Lord Hutton. At the center of the inquiry was the government’s September 2002 dossier and the question of whether it had indeed exaggerated the threat posed by Iraqi WMD. The public hearings conducted by the Hutton inquiry and the evidence available to it, notably internal Downing Street e-mail traffic, suggested that a critical judgment was inevitable. This traffic showed that officials within Downing Street involved in the drafting of the dossier were unhappy with what they termed the “Scarlett version” of the dossier—that which Chairman of the Joint Intelligence Committee John Scarlett had prepared—and appeared to show that “sexing up” had indeed occurred. For example, in a September 10 e-mail between Downing Street staffers Daniel Pruce and Mark Matthews, Pruce advised, We make a number of statements about Saddam’s intentions/attitudes. Can we insert a few quotes from speeches he has made which, even if they are not specific, demonstrate that he is a bad man with a general hostility towards his neighbours and the West? . . . Much of the evidence we have is largely circumstantial so we need to convey to our readers that the cumulation of these facts demonstrates an intent on Saddam’s part—the more they can be led to this conclusion themselves rather than have to accept judgements from us, the better.36

Security and Intelligence Controversies in Britain

65

These coexisted with more despairing e-mails such as this sent to Press Secretary Alastair Campbell by Philip Bassett a day earlier: “Needs much more weight, writing, detail, and we need to find a way to get over this a) by having better intelligence material, b) by having more material (and better flagged-up), and c) more convincing material.” On September 11, Daniel Pruce emailed Alastair Campbell: “I think we need to personalise the dossier onto Saddam as much as possible—for example by replacing references to Iraq with references to Saddam. In a similar vein I think we need a device to convey that he is a bad and unstable man . . . a few quotes from Saddam to demonstrate his aggressive intent and hatred of his neighbours and the West would help too.” The same day Tom Kelly emailed Alastair Campbell, commenting on the current draft and again emphasizing the importance of demonstrating intent: This does have some new elements to play with, but there is one central weakness—we do not differentiate enough between capacity and intent. We know that he is a bad man and has done bad things in the past. We know he is trying to get WMD—and this shows those attempts are intensifying. But can we show why we think he intends to use them aggressively, rather than in self-defence. We need that to counter the argument that Saddam is bad, but not mad. . . . The key must be to show that Saddam has the capacity, and is intent on using it in ways that threaten world stability, and that our ability to stop him is increasingly threatened.

However, when the Hutton report was published on January 28, 2004, it exonerated the government of any bad faith in relation to the production of the dossier. Any governmental relief at this outcome, however, was short-lived. On that same day in Washington, DC, arms expert David Kay, the man charged with leading the postwar hunt for Iraq’s WMD, testified that Saddam had destroyed all such weapons, possibly even as early as 1991. Blair’s postwar confidence that WMD would be recovered was shown to be misplaced, and the intelligence he had consistently cited as indicating the urgency of dealing with the Iraqi threat was again called into question. In the wake of Kay’s testimony, pressure quickly built in the United States for an inquiry into prewar intelligence on Iraq, and, having failed to dissuade the United States from holding its own inquiry, Blair felt obliged to follow suit and announce a further inquiry, to be conducted by a team of privy counselors led by former cabinet secretary Lord Butler. By this time, existing mechanisms had proved themselves inadequate to the task of uncovering the truth of the matter—in no small part due to the nature of the cooperation they enjoyed from the executive—leaving Blair with few options. The five-member Butler team included two members of the ISC who had investigated intelligence on Iraqi WMD—senior Conservative backbencher Michael Mates and ISC chair Ann Taylor—along with Sir John Chilcot, a former Northern Ireland permanent secretary, and Field Marshal the Lord Inge, a former chief of the defense staff. The

66

Commissions of Inquiry and National Security

Butler team was to add valuable information to the public record concerning Joint Intelligence Committee ( JIC) assessments of Iraqi WMD (to which the earlier FAC and Hutton inquiries had not enjoyed access, and not all of which had been released to the ISC, apparently due to an oversight), the creation of the Downing Street dossier, and the nature of intelligence failure in this case.37 The report was to be the most critical on the Iraqi WMD controversy to date. It was critical of the government’s use of intelligence in the September 2002 dossier and critical of Tony Blair’s parliamentary presentation of this intelligence as “extensive, detailed and authoritative”38—something the Butler inquiry found not to be the case. At the same time, however, the inquiry was clearly reluctant to apportion blame for the Iraq failure. Butler’s own view was that it was not the inquiry team’s job to bring down the government. Once the information had been presented by the inquiry, it would be the job of either Parliament or the public. Subsequently, in giving evidence to the Public Administration Select Committee, he explained: We felt the proper place where government should survive or fall was in Parliament or with the electorate. It would have been a heavy responsibility and one where I think it would have been improper for us to say the government should resign on this matter. . . . Whether the Prime Minister survived was not really an issue for us. What we wanted to do was to give a balanced, factual picture. I return to the balance and the balance was that we believed that the Prime Minister and the government acted in good faith when they said that they believed that Saddam had proscribed weapons including biological and chemical weapons. We believed that they should at the same time have said that the intelligence which underlies this is thin. We wanted to give that balanced, fair, factual picture and then I think it is a matter for political debate and for Parliament and the public to take it on from there.39

Hence, there remained a sense that although, through serial inquiries into the case for war with Iraq, the country was moving toward a public truth in understanding how it had come to pass, it had yet to fully arrive at it. The most alarming intelligence assessments concerning the threat said to be posed by Iraq had been revealed to be inaccurate, and government presentation of the case had been shown to be in advance of the intelligence, which had in any case been exposed as thin rather than “extensive, detailed and authoritative.” As a consequence, the September 2002 dossier—in effect, setting out the government’s case for war—had been discredited. Moreover, leaked documents suggested that Blair had committed to support a U.S. war to remove Saddam Hussein from power as early as April 2002. These also suggested that the invasion was illegal under international law, as a number of critics had consistently maintained. This sense of unfinished business, and the need for some explanation of the absence of planning that had contributed to the post-invasion anarchy in Iraq, fuelled demands for a further, wider inquiry. Initially, the gov-

Security and Intelligence Controversies in Britain

67

ernment deflected calls for any such inquiry on the basis that it would undermine troops serving in Iraq, but as these troops were withdrawn this rationale ceased to apply. Under increasing pressure, Prime Minister Gordon Brown finally announced a further inquiry in June 2009, to be conducted by a group of five privy counselors and chaired by Sir John Chilcot, previously a member of the Butler inquiry team. As with the Butler inquiry, the model was to be the Franks inquiry into the circumstances surrounding the 1982 Argentine invasion of the Falklands Islands. The Franks inquiry had heard evidence behind closed doors and published none of its evidence. As Brown explained to the House of Commons in announcing the inquiry: “Like the Franks inquiry, this inquiry will take account of national security considerations—for example, what might damage or reduce our military capability in the future—and evidence will be heard in private. I believe that that will also ensure that evidence given by serving and former ministers, military officers and officials is as full and candid as possible.”40 THE POLITICS OF OFFICIAL INQUIRIES INTO SECURITY AND INTELLIGENCE CONTROVERSIES What can we say of the politics and purposes of these inquiries? In terms of their origins, inquiries into security and intelligence controversies have seldom been a consequence of a government’s desire to find out for itself what happened in a particular case, although the Denning inquiry into the Profumo affair is a partial exception in this respect. Indeed, an implicit or explicit aim of most is, in the language of Watergate, to determine what the government knew and when. The essential political calculation underpinning recourse to inquiries is that the severity of a controversy is such that holding an inquiry is considered necessary—that is, the prevailing political context (understood as the strength of government’s majority— not just in terms of its size, but also in relation to the loyalty of its own members of Parliament to the leadership and the effectiveness of the Opposition—position in the electoral cycle and media and general public reaction) leads the government to calculate that the damage caused by any revelations or critical conclusions that an inquiry might make or arrive at is likely to be less than that caused by resisting pressure for an inquiry. Of the cases discussed here, this was certainly the case with respect to the Franks, Scott, Hutton, Butler, and Chilcot inquiries. Hence, the nature of the Franks inquiry into the circumstances surrounding the Argentine invasion of the Falkland Islands in 1982 was partly determined by the strength of the Thatcher government in the immediate post-Falklands period, which allowed it to effectively manage the arrangements for an inquiry that could be expected to hear evidence critical of government and intelligence conduct in the lead-up to the war. At the same time, in an era before the introduction of formal intelligence

68

Commissions of Inquiry and National Security

oversight in Britain, there was much less expectation that such an inquiry should be held in whole or part in public. Had the war been lost the situation would, of course, have been very different. The Major government’s creation of the Scott inquiry came in the context of a government divided over Europe and engulfed by serial sleaze scandals. This governmental weakness combined with the seriousness of the charge against the government (that it conspired to send innocent men to jail) and Major’s own belief that “there was nothing to hide”41 led to the broadest possible terms of reference—terms that Scott was invited to amend as he saw necessary, which he did, considerably extending the remit of his inquiry in the process. The Chilcot inquiry into the Iraq war was also conceded from a position of weakness. The Brown government was divided, trailing in opinion polls as the end of the Parliament and the need to hold an election neared and confronted by a revitalized Opposition. In this context, the attempt to have the inquiry held behind closed doors in the manner of the Franks inquiry met with a wide range of criticism and was abandoned in favor of a public inquiry. Whereas all major parties had consented to the form of the Franks inquiry, in this case both main opposition parties objected, as did the families of soldiers killed in Iraq and senior military figures.42 Moreover, the chairs of the two previous official inquiries into Iraq— lords Hutton and Butler—also opposed an inquiry held in private, further diminishing the legitimacy of the proposal. Butler told the House of Lords that the Government’s political interest in an inquiry in the form proposed by the Prime Minister is obvious. The Government have conceded the inquiry which they promised, and the arrangements proposed for it ensure that we will hear no more about it until after the general election. The question is whether the Government have allowed their political interest to overcome the national interest.43

Given the threat of the Conservative Party joining forces with Labour MPs unhappy with the application of the Franks model, and the very real possibility that the government would be defeated in a vote in the House of Commons on the format of the inquiry and forced to hold it in public, Brown backtracked and asked Chilcot to hold as much of the inquiry in public as possible. Hence, the government controlled the timing in that the report would not appear until shortly after the forthcoming general election but had ultimately been too weak to determine the format. The evidence of the British experience is that Kenneth Kitts’s conclusion about the purpose of U.S. presidential commissions also applies to commissions of inquiry into security and intelligence controversies here. Kitts’s analysis led him to reject the idea that presidential commissions were primarily fact-finding missions and to instead view them primarily as a form of damage control.44 However, this process of damage limitation

Security and Intelligence Controversies in Britain

69

is not necessarily confined to a particular administration. Depending on the severity of the issue, the credibility of the entire political system can be at stake—and it would be no exaggeration to say that this was the case in the crisis of trust in politics in Britain engendered by the Iraq war decision and subsequent revelations about its basis in fact and understandings of its legality. Such a broader understanding of damage control is consistent with Frank Burton and Pat Carlen’s argument that the purpose of inquiries is “to represent failure as temporary, or no failure at all, and to reestablish the image of administrative and legal coherence and rationality.”45 Following on from this insight, Phil Scraton has argued that “those official inquiries that focus on unreasonable force, negligent acts or omissions, or miscarriages of justice perpetrated by state institutions are under considerable pressure to receive and effectively incorporate criticism while guaranteeing legitimacy and renewing authority.”46 The inquiries discussed in this chapter clearly fall within these boundaries. Where inquiries are held, their clear independence from government is crucial in bestowing on them the degree of legitimacy necessary to facilitate some diffusion of the initial controversy and general acceptance that a public truth will be arrived at by the end of the process. The appearance of impartiality is an important dimension of this, hence the recourse to judges and privy counselors to conduct inquiries. However, through the appointment of judges to undertake inquiries, or of privy counselors to serve on commissions of inquiry, British governments attempt to control the process in the same way that, for example, U.S. administrations have done. For some commentators, the cards are stacked in the government’s favor from the outset given that the “great and the good,” with a track record of dependable public service, are selected to chair or provide “expert” guidance. Technically their “independence” is beyond reproach but they are recruited from “mainstream” public life—achievers within the status quo. Supported, serviced and resourced by government departments, they are plumbed into the ideological “ways of seeing” and political “ways of doing” that constitute the routine expressions of civil service practice.47

Nevertheless, because an inquiry, once conceded, represents a risk to an official truth, governments still seek to manage that risk through careful selection from within this talent pool. For all of John Major’s protestations that Sir Richard Scott was selected to conduct the arms-to-Iraq inquiry because of his liberal reputation, he was also regarded as a “safe pair of hands,” having grown up in South Africa as the son of Lieutenant-Colonel C.W.F. Scott. Lord Hutton was a former lord chief justice of Northern Ireland and Diplock Court judge.48 The five-member Butler inquiry included two members of the ISC who had produced a limited report into intelligence on Iraqi WMD, including ISC chair and former member of the Blair government Ann Taylor, a supporter of the 2003 invasion of Iraq. The

70

Commissions of Inquiry and National Security

membership of the Chilcot inquiry also included two members who had supported the 2003 war, professor of war studies Sir Lawrence Freedman and historian Sir Martin Gilbert. In a December 2004 newspaper article, Gilbert compared Tony Blair to Winston Churchill and argued that with the passage of time, George W. Bush and Blair may well “join the ranks of Roosevelt and Churchill.”49 This is not to say that governments always succeed in exercising some control over inquiries through appointments to them—there is no way of predicting how individuals will act once they have assumed the role—but it would be naive to imagine that they do not seek to do so. Similarly, governments seek to exercise a degree of control through careful drafting of an inquiry’s terms of reference. As noted earlier, the relative strength of the government is a key variable in determining how much control can be exercised in this way. Either the terms of reference can be so tightly drafted as to exclude much of public interest (as, for example, with the Hutton inquiry) or so widely drafted that the key issues of public interest form a part rather than the whole of the inquiry’s remit (as, for example, with the Butler inquiry and, arguably, the Chilcot inquiry). In this case, any damaging findings may be offset to a degree by more positive assessments, leaving the overall report appearing less critical than might have been the case. If these commissions of inquiry were introduced by governments as genuine fact-finding missions, it would be difficult to explain the effort invested in spinning the contents of the reports once they appear. It might also be expected that more of their recommendations would be implemented. However, once an inquiry has delivered its report, its work is done and it no longer exists to lobby for implementation. Its recommendations can easily become orphans. Moreover, if these inquiries were regarded by government as fact-finding missions, it would also be difficult to explain the limits to cooperation that are a feature of the inquirygovernment dynamic once an inquiry is conceded—for example, the slow pace of response to requests for documents, the non-provision of documents and/or “discovery” of previously lost documents toward the end of an inquiry process, and so forth. These are a form of obstruction, albeit at the low end of the scale. The higher the stakes and/or the more serious the issues under investigation, the more overt the obstruction, with the most serious cases of obstruction occurring in relation to Northern Ireland and specifically in relation to allegations of collusion.50 The Scott inquiry is a good example of an inquiry that suffered from persistent low-level obstruction. Scott did not see himself as being involved in a process of fact finding on behalf of the Major government. Rather, he saw one of the main purposes of his inquiry (and of many others) as being “the allaying of public disquiet.”51 This is an important dimension and illustrates how commissions of inquiry have more than one purpose, in that different groups have different understandings of their purpose and

Security and Intelligence Controversies in Britain

71

different hopes in the outcome. In this respect, commissions of inquiry can be viewed as a form of truth and reconciliation process. As Lord Butler observed during the controversy over whether the Chilcot inquiry should take evidence in public or behind closed doors: There must be two purposes to a further inquiry. One is to learn lessons from the policy decisions taken in connection with the Iraq war. The second is to act as a sort of truth and reconciliation process for those, including the bereaved, who think that they were misled, even deceived, about the Government’s reasons for joining the war . . . there is no prospect that an inquiry conducted entirely in private can purge the national feeling of mistrust.52

This process of purging can be achieved to an extent by the airing of evidence and expert opinion in public. Even if the ultimate report steps back from apportioning blame53 or, as a result of its organization or the language it employs, is capable of being interpreted in a variety of ways, access to the raw evidence can allow interested parties to construct their own alternative report. For example, many who were surprised by the conclusions of the Hutton report given the evidence heard by the inquiry were able to use this information to construct a different analysis. This process has been aided by the extent to which commissions of inquiry have progressively taken advantage of new technologies. In the 1990s, Scott published evidence (though not all that he received) on a CD-ROM made commercially available. A CD of the Hutton report was included inside the print edition, facilitating searches of the text. Hutton also made documents and oral evidence available on a dedicated Web site that still exists well after the conclusion of the inquiry, while the Chilcot inquiry Web site streams its public sessions live and archives these alongside transcripts of evidence and various documents. These developments help explain why the 2005 Inquiries Act is potentially so damaging to British political culture— inquiries into security and intelligence controversies conducted under its terms are unlikely to leave this kind of footprint. At this point it is also worth reflecting on the implications of the creation of the ISC for the government’s approach to the establishment of official inquiries into security and intelligence controversies. Via the ISC the government created a body more at arm’s length from government and with a greater degree of legitimacy than the Security Commission that the government could ask to investigate security and intelligence controversies. Because the ISC always met in private; had limited time given that its members were all serving parliamentarians with other responsibilities; consisted of members who had all signed the Official Secrets Act; and reported directly to the government, which could exclude any information from its reports deemed sensitive on national security grounds, this represented an option that was easier to control than an official inquiry and hence represented less of a risk. Moreover, there was no risk of controversy over

72

Commissions of Inquiry and National Security

whether an inquiry by the ISC should be held wholly or partly in public because the ISC’s established modus operandi was to meet and take evidence in private. On this basis, the committee served as a safety valve for the first decade of its existence, investigating embarrassing issues in private before publishing brief, terse reports (for example, into the Melita Norwood espionage controversy) and, from the government’s point of view, providing a satisfactory alternative to an official inquiry in instances where the controversy was so great that an inquiry was unavoidable (e.g., the Iraqi WMD affair and the July 7, 2005, [7/7] London bombings). This means, however, that with the creation of the ISC an official inquiry into security and intelligence controversies is only likely to be conceded once the issue has been investigated by the ISC and the ISC’s report has subsequently been discredited—unfortunately, a not-uncommon occurrence. For example, this was the case with regard to the ISC’s inquiry into intelligence on Iraqi WMD, which preceded both the Butler and Chilcot inquiries.54 Hence, the point of political last resort at which governments reach for the inquiry option has, with the advent of the ISC, further receded. Still, at this point the aforementioned fundamental political calculation applies, and in this context there has been one case where the calculation of the political damage that would result from an official inquiry was such that the Blair government responded to a discredited ISC report with a request that it reinvestigate the issue rather than risk a public or part-public inquiry into it, despite widespread public support for such an inquiry. This was the case of the 7/7 London bombings. The ISC had investigated and reported on it in May 2006. However, the April 2007 conviction of five men in relation to a bomb plot led to further information being made public and suggested that lead 7/7 bomber Mohammad Sidique Khan had been under more extensive surveillance than previously suggested, raising questions of possible intelligence failure and the accuracy of the ISC’s conclusions. In this context, calls for a public inquiry, which had been voiced persistently since the bombings, were renewed. However, the government remained reluctant to initiate any process that would explore the question of why the bombings had occurred as opposed to how and hence focus on the Iraq war as a motivating factor. Any such discussion that linked the 7/7 bombings to the Blair government’s decision to participate in the invasion of Iraq—a link made in the martyrdom videos of two of the 7/7 bombers—was likely to have electoral consequences and could undermine confidence in the operation of the state. In response to calls for a public inquiry, Blair offered a combination of reasons for his refusal to establish one that in essence recognized this reality: I have ruled out having another “proper independent” inquiry. The fact is that the Intelligence and Security Committee went into all the issues in immense detail. . . . We have to be clear about the reason why people want another inquiry. I totally

Security and Intelligence Controversies in Britain

73

understand both the grief of the victims of 7/7 and their anxiety to have another inquiry, but the reason why people want another inquiry is for it to reach a different conclusion. That is understandable, but in circumstances where the ISC has had access to everything it needed, and could have access to anything else it needs, it would not be responsible for us to have a further full independent inquiry that would simply divert the Security Service, the police and others from their task of fighting terrorism. . . . If we now say, effectively, that the ISC inquiry was not adequate and if we hold another inquiry, I have to tell the right hon. Gentleman that we shall simply cause great anxiety and difficulty in the service [MI5] and we shall not get any more truth—because the truth is there in the ISC; what we shall do is undermine support for our security services and I am not prepared to do that.55

The possibility of inquiries into security and intelligence controversies that involve intelligence partners—principally the United States— has also been a contentious issue. To take an example involving possible complicity in the use of torture, a 2005 ISC report on the handling of ‘war on terror’ detainees by British intelligence personnel told of how the security and intelligence services “operated a culture that respected human rights” and that “coercive interrogation techniques were alien to the Services’ general ethics, methodology and training.”56 However, the evidence seen by the Court of Appeal in the case of one detainee, Binyam Mohamed, completely undermined this claim.57 In this context, in a March 2010 report, the parliamentary Joint Committee on Human Rights concluded, “the case for setting up an independent inquiry into the allegations of complicity in torture is now irresistible.”58 At the same time, the All-Party Parliamentary Group on Extraordinary Rendition and human rights groups Amnesty International UK, Human Rights Watch, Liberty, and Reprieve published a joint letter calling for a public inquiry chaired by a judge or former judge. However, Labour ministers resisted the pressure, continuing to point instead to the ISC as a credible vehicle for investigating such issues.59 Nevertheless, following its victory in the 2010 general election, the incoming Conservative-led coalition government moved quickly to establish a judge-led inquiry into possible complicity in torture. Given that it was out of office throughout the period in question no political blame or damage could attach to it in the event of a critical report at the end of the inquiry. Rather, it gained political credit for its greater openness in establishing it. All of this provides further reason as to why the ISC must either be reformed—preferably as a select committee of the House of Commons—so that it too operates at least partly in public, or should stop being used as an inquiry body of first resort by governments keen to manage the inquiry process and minimize the potentially damaging consequences of security and intelligence controversies. At the same time, it must be recognized that inquiry situations involve contests over truth—contests between governments, which usually only concede as a last resort, and those calling for an inquiry, and thereafter between inquiry teams and government as the latter seeks to manage the inquiry and so limit the damage. As noted earlier,

74

Commissions of Inquiry and National Security

in the majority of the cases discussed here governments had arrived at their own truth about these matters in advance of the inquiries being appointed and were not interested in any alternative truths that would contest this official truth (the Denning inquiry being something of an exception). As Ministry of Defence civil servant Ian McDonald told the Scott Inquiry: “Truth is a very difficult concept.”60 In these cases, it is also a highly contested one. NOTES 1. “Bloody Sunday Inquiry: Questions and Answers,” http://www.bloodysunday-inquiry.org/questions-and-answers/ (accessed July 6, 2010). 2. United Kingdom, Inquiries Act 2005, http://www.opsi.gov.uk/acts/acts 2005/pdf/ukpga_20050012_en.pdf (accessed July 6, 2010). 3. Peter Cory, letter to U.S. Congressman Chris Smith, March 15, 2005, http:// www.patfinucanecentre.org/cory/pr050315.html (accessed July 6, 2010). Cory explained: “It seems to me that the proposed new Act would make a meaningful inquiry impossible. The commissions would be working in an impossible situation. For example, the Minister, the actions of whose ministry was to be reviewed by the public inquiry would have the authority to thwart the efforts of the inquiry at every step. It really creates an intolerable Alice in Wonderland situation. There have been references in the press to an international judicial membership in the Inquiry. If the new Act were to become law, I would advise all Canadian judges to decline an appointment in light of the impossible situation they would be facing. In fact, I cannot contemplate any self respecting Canadian judge accepting an appointment to an inquiry constituted under the new proposed act.” 4. “The Inquiries Bill: The Wrong Answer,” Joint Statement, March 22, 2005, http://www.patfinucanecentre.org/pf/inqubill/js050322.html (accessed July 6, 2010). 5. Amnesty International, “Amnesty International Urges Judiciary Not to Partake in Inquiry Sham,” Press Release, April 25, 2005, http://www.amnesty. org/en/library/asset/EUR45/010/2005/en/22c6178e-d4fb-11dd-8a23d58a49c0d652/eur450102005en.pdf (accessed July 6, 2010). 6. See chapter 5 in this volume for a more detailed analysis. The reaction to the act, and the possibility of the government being embarrassed by a boycott by judges and the refusal of the Finucane family to cooperate with any inquiry established under the terms of the 2005 Act, have left the Finucane case in limbo. 7. See Ludovic Kennedy, The Trial of Stephen Ward (London: Victor Gollancz, 1964). 8. Lord Denning’s Report, Cmnd. 2152 (September 1963). Reprinted in abridged form as Denning, John Profumo and Christine Keeler 1963 (London: The Stationery Office, 1999). Quote at p. 2. 9. Cited in Anthony Summers and Stephen Dorril, Honeytrap: The Secret Worlds of Stephen Ward (London: Weidenfeld & Nicolson, 1987), p. 210. For further detail on Denning’s method, see Phillip Knightley and Caroline Kennedy, An Affair of State: The Profumo Case and the Framing of Stephen Ward (London: Jonathan Cape, 1987), p. 250. See also Lord Denning, Landmarks in the Law (London: Butterworth & Co, 1984), pp. 351–65.

Security and Intelligence Controversies in Britain

75

10. Nigel West, A Matter of Trust: MI5, 1945–72 (London: Weidenfeld & Nicolson, 1982), ch. 6. 11. Knightley and Kennedy, An Affair of State; Summers and Dorril, Honeytrap. 12. Knightley and Kennedy, An Affair of State, p. 253. 13. “I do not accept this for one moment. I was in a position to know all about him. He was the villain of the piece. It is quite ridiculous to suggest that he was working for MI5.” Denning, Landmarks in the Law, p. 361. 14. West, in the guise of Rupert Allason MP, came back to the theme of Denning having been misled by MI5 during the December 1988 debate on the Security Services Bill, telling the House of Commons, “Lord Denning, for instance, was taken for a ride by the Security Service. That was the view of many senior officers at the time. A little pantomime was prepared—a completely bogus operation—for him to witness, which he describes in the report in glowing detail. That is another example of a single person being duped by the Security Service.” Hansard Parliamentary Debates, December 15, 1988, col. 1152. 15. Christine Keeler with Sandy Fawkes, Nothing But . . . (London: New English Library, 1983); Christine Keeler, Scandal! (London: Xanadu Publications, 1989); and Christine Keeler with Douglas Thompson, The Truth at Last (London: Sidgwick & Jackson, 2001). Compare these with Captain Yevgeny Ivanov, The Naked Spy (London: Blake Publishing, 1992), for which Keeler penned a foreword. For peripheral color, see Mandy Rice-Davies and Shirley Flack, Mandy (London: Michael Joseph, 1980). See also David Profumo, Bringing the House Down: A Family Memoir (London: John Murray, 2006). 16. Christopher Andrew, The Defence of the Realm: The Authorized History of MI5 (London: Allen Lane, 2009), p. 499. 17. The cartoon is available at http://cairsweb.llgc.org.uk/images/ilw1/ ilw3696.gif, (accessed July 6, 2010). 18. See Laurence Lustgarten and Ian Leigh, In from the Cold: National Security and Parliamentary Democracy (Oxford: Clarendon Press, 1994), p. 471; A.E.W. Park, “Royal Commission on Tribunals of Inquiry,” Modern Law Review 30, no. 4 (1967): 426–31; Richard Scott, “Procedures at Inquiries: The Duty to be Fair,” Law Quarterly Review 111 (1995): 595–616. 19. Lustgarten and Leigh, In from the Cold, p. 478. 20. Hansard, December 15, 1988, col. 1153. 21. Ibid., col. 1131. 22. Hansard, January 17, 1989, col. 299. See also Andrew, The Defence of the Realm, pp. 714–24. 23. In the period since the ISC was established, the Security Commission has conducted an investigation into the case of Michael John Smith (1995). Smith continues to contest his conviction and the conclusions reached by the Security Commission. The Security Commission report is available at http://cryptome.org/ michael-smith.htm (accessed July 6, 2010). In February 2000, it published a report into Stephen Hayden, Report of the Security Commission, February 2000 (Cm. 4578), http://www.archive.official-documents.co.uk/document/cm45/4578/4578.htm (accessed July 6, 2010). 24. See David Leigh, Betrayed: The Real Story of the Matrix Churchill Trial (London: Bloomsbury, 1993); Paul Henderson, The Unlikely Spy (London: Bloomsbury, 1993).

76

Commissions of Inquiry and National Security

25. Mark Phythian, “Britain and the Supergun,” Crime, Law, and Social Change 19 (1993): 368. 26. Ibid. 27. Trade and Industry Select Committee, Exports to Iraq: Project Babylon and Long Range Guns, Cm. 86 (London: HMSO, 1992). 28. Ibid., para. 149. 29. Hansard, November 10, 1992, col. 76w. 30. Sir Richard Scott, Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions, HC-115 (London: HMSO, 1996), para. A2.10. 31. Hansard, November 23, 1992, cols. 650–51. 32. As Scott told Sir Robin Butler, head of the Civil Service, “The test which I intend to apply in order to decide whether a hearing should be in closed session is whether the public disclosure of the documents or information in question would cause serious injury to the interests of the nation. I shall of course consider representations from Departments or witnesses who wish to submit that the hearings should move into closed session in other circumstances. But I shall not direct that hearings be held in closed session unless I feel able to conclude that the public interest in an open hearing is outweighed by the public interest in protecting from disclosure in public the documents or information in question.” Scott, Report, Appendix A, Part D1(i). 33. See Mark Phythian, Arming Iraq (Boston, MA: Northeastern University Press, 1997), pp. 279–81. 34. For more detail, see Phythian, Arming Iraq, pp. 303–9. 35. Scott, Report, para. K7.7. 36. This and subsequent quotes from Downing Street e-mails are taken from Mark Phythian, “Hutton and Scott: A Tale of Two Inquiries,” Parliamentary Affairs 58, no. 1 ( January 2005): 124–37, which provides a more detailed analysis of the Hutton inquiry. 37. For a more detailed analysis, see Mark Phythian, “Flawed Intelligence, Limited Oversight: Official Inquiries into Pre-War UK Intelligence on Iraq,” in Intelligence and National Security Policymaking on Iraq: British and American Perspectives, ed. James P. Pfiffner and Mark Phythian (Manchester, UK: Manchester University Press, 2008), pp. 191–210. 38. Hansard, September 24, 2002, col. 3. 39. Public Administration Select Committee, Minutes of Evidence, October 21, 2004, http://www.publications.parliament.uk/pa/cm200304/cmselect/cmpu badm/606/4102102.htm (accessed July 6, 2010). 40. Hansard, June 15, 2009, col. 23. 41. John Major, The Autobiography (London: HarperCollins, 1999), p. 560. 42. For example, Sir Mike Jackson, head of the army at the time of the invasion of Iraq, argued, “They say they are modelling this on the Franks inquiry into the Falklands War. Well that was 30 years ago in a very different world. The main problem with a secret inquiry in the current climate of suspicion and scepticism about government is that people would think there is something to hide.” Kim Sengupta and Michael Savage, “Generals Go to War over Iraq Inquiry,” The Independent, June 17, 2009. 43. Hansard, House of Lords, June 18, 2009, col. 1245.

Security and Intelligence Controversies in Britain

77

44. Kenneth Kitts, Presidential Commissions and National Security: The Politics of Damage Control (Boulder, CO: Lynne Rienner, 2006). 45. Frank Burton and Pat Carlen, Official Discourse: On Discourse Analysis, Government Publications, Ideology, and the State (London: Routledge & Kegan Paul, 1979), p. 48. 46. Phil Scraton, “From Deceit to Disclosure: The Politics of Official Inquiries in the United Kingdom,” in Crime, Truth, and Justice: Official Inquiry, Discourse, Knowledge, ed. George Gilligan and John Pratt (Cullompton, UK: Willan, 2004), p. 64. 47. Ibid., pp. 48–49. 48. These courts tried individuals accused of paramilitary offences without a jury. 49. Martin Gilbert, “Statesmen for These Times,” The Observer, December 26, 2004. 50. John Stevens, Stevens Inquiry 3: Overview and Recommendations, 2003, http:// news.bbc.co.uk/1/shared/spl/hi/northern_ireland/03/stephens_inquiry/ pdf/stephens_inquiry.pdf (accessed July 6, 2010). See also the experience of John Stalker in investigating allegations of a Royal Ulster Constabulary shoot-to-kill policy. John Stalker, Stalker (London: Penguin, 1988). 51. Scott, “Procedures at Inquiries,” p. 615. 52. Hansard, House of Lords, June 18, 2009, col. 1245. 53. In announcing the creation of the Chilcot inquiry, Gordon Brown made it clear that “the committee will not set out to apportion blame or consider issues of civil or criminal liability.” Hence, the apportionment of blame (otherwise known as identification of responsibility) can be placed outside an inquiry’s terms of reference. Hansard, June 15, 2009, col. 24. 54. The Saville inquiry was different in that it followed an earlier public inquiry into Bloody Sunday and was clearly understood to be a part of the post-1998 Good Friday Agreement truth and reconciliation process. 55. Hansard, May 2, 2007, col. 1504. 56. ISC, The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay, and Iraq, Cm. 6469 (London: TSO, 2005), para. 39. 57. See the judgment: Between: The Queen on the Application of Binyam Mohamed—and—The Secretary of State for Foreign and Commonwealth Affairs, February 26, 2010, http://www.judiciary.gov.uk/docs/judgments_guidance/mohamedjudgment-26022010.pdf (accessed July 6, 2010). 58. Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Bringing Human Rights Back In, HC 111 (London: TSO, March 2010), p. 3. 59. See, for example, David Miliband and Alan Johnson, “We Firmly Oppose Torture—But It Is Impossible to Eradicate All Risk,” Daily Telegraph, August 8, 2009. 60. Richard Norton-Taylor, Truth is a Difficult Concept: Inside the Scott Inquiry (London: Fourth Estate, 1995), p. 25.

CHAPTER 5

Inquiring into Dirty Wars: A “Huge Smokescreen of Humbug”? Peter Gill

This chapter examines some of the many inquiries carried out over the past 40 years with respect to security aspects of the Northern Ireland (NI) “Troubles.” Specifically, it deals with those into “collusion” between UK security forces and various paramilitary groups. Less euphemistically, collusion has involved a variety of criminal offences up to and including murder, and the inquiries go to the very heart of the question of what is permissible counterterrorist policy in a liberal democracy. The central issue discussed in this chapter is whether, despite the general legalization of intelligence in last quarter century or so, counterterrorism is the last redoubt where illegal executive action is tolerated. This question is not just of historical interest for the purposes of furthering reconciliation in NI; counterterrorism is again at the center of UK security policy, and we must be alert to the possibility that even in established democracies the formal rule of law can cloak organizational malfeasance. Is plausible deniability still regarded as an essential component of counterterrorist intelligence? Collusion with indigenous paramilitary groups, long a central feature of British counter insurgency, as documented by Brigadier Frank Kitson,1 is facilitated where counterterrorism is the responsibility of specialist (police and/or military) squads—such as 14 Intelligence Company, the Force Research Unit (FRU), and Royal Ulster Constabulary (RUC) Special Branch E4—plus intelligence agencies where organizational cultures of elites at the sharp end of state policy with de facto legal impunity develop. The Ulster Volunteer Force (UVF, founded in 1966) and Ulster Defence Association (UDA, 1972) were the main Loyalist paramilitary squads in NI.2 They were not simply creations of the state: they acted autonomously as

Inquiring into Dirty Wars

79

the defenders of the Loyalist community of Ulster against the Republican insurgency and the suspected appeasement of British politicians and were responsible for 29 percent of the 3,636 conflict-related deaths between 1966 and 1999. State forces were responsible for 10 percent of the deaths, but, for present purposes, the crucial element is the relationship between state forces and loyalist paramilitaries, which was based on a simple coincidence of interest: as insurgents against the state, Republicans were the common enemy. The relationship took different forms: for example, many Loyalist paramilitaries joined the locally raised regiment of the army, the Ulster Defence Regiment, while the recruitment of UDA members as informers facilitated not just state information gathering but also enabled handlers to update the UDA’s own files on Republican activists, as revealed in the trial of Brian Nelson. After being discharged from the British army, Nelson was a member of the UDA from 1974 until 1983, when he left the UDA and went to live in Germany. He offered his services to the FRU in 1987 when he returned to NI and was recruited as an informer as he rejoined the UDA, becoming an intelligence officer.3 During the 1980s, allegations of such collusion became increasingly significant; early evidence in the Republican newspaper An Phoblacht was dismissed as propaganda by the British government but the circumstances of the killing of Pat Finucane, a Catholic lawyer, by Loyalists in February 1989 were such as to give much substance to the claims.4 John Stevens (then a deputy chief constable) was appointed in September 1989 to investigate the allegations, which led to 43 convictions. A summary of the report of this first Stevens inquiry was published: while there had been collusion between members of the security forces and Loyalist paramilitaries, any collusion was “restricted to a small number of members of the security forces and is neither widespread nor institutionalised.”5 The issue came to wider attention when journalist John Ware made his first television program centered on Brian Nelson in 1992; in April 1993, after further sustained criticism from the nationalist community, Stevens (now a chief constable), was appointed for a second time to investigate possible collusion, but on completion his report was not published. One year after the 1998 Good Friday Agreement, he (at the time a metropolitan police commissioner) was appointed for a third time, specifically to examine the murders of Finucane and Brian Lambert, a Protestant student murdered in Belfast in November 1987, as well as some issues of agent handling.6 The tone of the brief report on the Third Enquiry is one of extreme exasperation, and Stevens had clearly revised his earlier view that collusion was not systematic. Stevens sent 20 files to the NI Public Prosecution Service (PPS), but four years later the PPS announced that no charges would be made.7 Former Canadian Supreme Court justice Peter Cory was appointed as a result of the Weston Park negotiations in 2001, which were part of the ongoing process to implement the 1998 Good Friday Agreement in NI. The appointment of an internationally recognized judge from outside the United

80

Commissions of Inquiry and National Security

Kingdom was essential if the inquiries were to have legitimacy in the continuing peace process. While Stevens aimed to produce evidence that could be used in prosecution, Cory was to examine six specific cases of “disputed killings” and assess whether there was sufficient evidence of collusion so as to warrant public inquiries. Cory defined collusion thus: [Government agencies] must not act collusively by ignoring or turning a blind eye to the wrongful acts of their servants or agents by supplying information to assist those servants or agents in their wrongful acts or by encouraging others to commit a wrongful act.8

His reports identify typical acts of collusion: making information available to counter-gangs that assist them in targeting opposition (often via informers or by leaking documents); failing to pass credible threat information on to those who could act; and turning a blind eye to the criminal acts of informants, including conspiracy to murder. Cory delivered his reports to the Irish and UK governments in October 2003, and most were published in April 2004. Before we examine his findings, we need to consider some more general issues related to inquiries.

WHAT ARE INQUIRIES FOR? There is a central paradox in analyzing this issue: formally, Northern Ireland, as part of the United Kingdom, has been a democracy for a long time and therefore cannot be viewed from the same perspective as, say, a previously authoritarian regime in which human rights abuses were acknowledged to be widespread and against which there was no citizen expectation of redress. In long-standing democracies, serious abuses such as collusion in murder by state officials should not happen, at least not with impunity. But in a conflicted democracy such as NI, while the extent of rights abuses may not be as great as in authoritarian regimes, their corrosive impact on legitimacy may be proportionately much higher. Further, we can expect serious institutional resistance to any acknowledgement that key security agencies were involved in such strategies.9 In other words, inquiries take place within particular political contexts and often follow official denials of malfeasance. Stan Cohen identified three main types of denial: classic, which takes various forms, such as “nothing is happening,” “what is happening is really something else,” or “what is happening is justified.” Second, states may go on the counteroffensive—for example, by discrediting critics; and third, they may partially acknowledge the problem while arguing it was isolated and corrective measures have been taken.10 These types may occur in sequence or simultaneously, and inquiries can play an important part as states seek to redefine, justify, deny responsibility for, or just move on from some unfortunate departure from the rule of law.

Inquiring into Dirty Wars

81

Intelligence is essentially about the production of knowledge as the basis upon which action might be taken (or not); so, in theory, are inquiries. The broadest context for this discussion is that, despite their evident differences, both are exercises in information control: they are attempts to get information, a mixture of open knowledge and secrets; analyze its meaning; and disseminate conclusions and judgments to those who might act upon them.11 In this process, it should be expected that there will be resistance to information gathering from those who may prefer to keep their actions private, whether they be private citizens or state officials. When crises or scandals erupt, establishing inquiries has several advantages for government: it removes the issue at least temporarily from politics; gives the impression that ministers share public concern; and buys time, allowing interest to wane. While independent, inquiries can still be controlled through appointments, terms of reference, and timing of publication.12 They are not criminal investigations the result of which people may be prosecuted, although the material they uncover may provide the basis for subsequent prosecutions, but are concerned more with the examination of systems and processes. Therefore, it has been argued that their main function is to maintain confidence in the state’s rationality when “discreditable episodes” occur by reconstructing them as temporary failures or aberrations or to reestablish the image of administrative coherence.13 Thus, inquiries are an aspect of “crisis management.”14 But they do offer space for critics. In some contexts, such as NI, can they act as a “form of social repair,”15 even though this process is complicated by different forms of truth? Inquiries are demanded often on the basis of people wanting to know the truth, whereas many people feel they already know it; what they want is to have the truth acknowledged or the state to own up.16 More generally, however, can inquiries into intelligence act as democratic espionage—that is, improve public knowledge and thereby not just intelligence policy but also control and democratic oversight? KEY VARIABLES AND VARIATIONS In seeking to explain why inquiries take the course they do, we need to consider questions of both structure and agency. Key elements of the former are the terms of reference; this is the most important question. What is included and excluded, and how precisely are they drawn? Different forms of inquiry will be differently empowered to access information, but even where the formal powers are extensive, inquiries will still face informal gatekeepers who may prevent access—the tortuous course this may take is illustrated in this chapter by the inquiry into the murder of Loyalist Billy Wright while he was in prison. Inquiries into security and intelligence matters are especially sensitive, and inquiries must take great care with their own procedures so that they do not allow themselves to be discredited by the subjects of an unwelcome inquiry. For example, embarrassment was

82

Commissions of Inquiry and National Security

caused to the inquiry into the murder of Rosemary Nelson, another Catholic lawyer, over missing data in May 2008.17 Inquiries must also take care to safeguard the rights of individuals: “process is crucial” if inquiries are to be accepted as legitimate.18 In respect of agency the key issues are membership: judges are frequently chosen to head inquiries on the basis of their reputed independence and skill at handling large bodies of evidence, and other members will come from the so-called army of the “great and good,” many former civil servants. In some cases experts will be used, but whoever is chosen the most important thing will be that they are seen as independent and harboring no career expectations. Matters of organization and staffing will clearly affect the ability of the inquiry to do its job, but, whatever the details, the political will of the members is crucial. Various types of inquiry have developed in the United Kingdom. Royal commissions are established from time to time for issues of broad policy rather than specific events. They are often noted for producing good research but not much action. Intelligence never has been the subject of a Royal commission, but most other forms of inquiry have dealt with it at one time or another.19 Statutory inquiries may be set up by ministers under specific statutes such as police or prisons acts: the Billy Wright inquiry discussed in this chapter was initially an example of the latter. Departmental committees of inquiry (also known as non-statutory inquiries) are also normally appointed by and report to ministers—for example, Lord Justice Scott into arms to Iraq in 1990s and Lord Hutton (a former NI lord chief justice) into the death of David Kelly in 2003. Hutton was mainly remembered for his decision to publish almost all evidence submitted immediately on the inquiry Web site rather than his findings, which were widely disregarded.20 Non-statutory inquiries can be set up by others; for example, the Independent Broadcasting Authority set up an inquiry into the controversies surrounding “Death on the Rock” concerning the shooting of a Provisional Irish Republican Army (PIRA) Active Service Unit by the Special Air Service (SAS) in Gibraltar in 1988. Thames TV broadcast a documentary seven weeks later that, contrary to the assertions of the government at the time that the SAS acted because they believed their own lives and those of others were under threat, included a number of witnesses saying the IRA team had been shot when they could have been arrested.21 Committees of privy counselors have been appointed regularly—for example, Franks into the Falkland Islands invasion in 1982; Butler into intelligence on Iraqi WMD in 2004, and Chilcot’s somewhat wider inquiry into Iraq during 2009–10.22 The largest gun in the armory of inquiries was the Tribunals of Inquiry (Evidence) Act 1921, which would empower the inquiry to take evidence under oath and to command the production of papers and persons. A notorious example of one such in the NI context was the initial inquiry into Bloody Sunday—when 14 people were shot dead by paratroopers as they dispersed a banned march in Londonderry—by Lord Widgery

Inquiring into Dirty Wars

83

in 1972, which was rapidly and generally acknowledged as “a complete and utter whitewash.”23 After New Labour came to power in 1997, it responded to demands from NI republicans and nationalists for a full and independent inquiry. Ironically, Powell reports that some years later, Martin McGuinness said he did not know why the government had done this, since an apology for the deaths would have sufficed!24 The new inquiry, chaired by Lord Saville, was certainly thorough, with costs to September 2009 reportedly £189 million, approximately 50 percent of which was spent on lawyers.25 The costs and delays of the Saville inquiry were to be much quoted by ministers in justifying their decision to repeal the 1921 Act and replace it with an inquiries act. The bill was introduced first to the House of Lords where it was presented as little more than a timely tidying up of the sometimes confusing mixture of powers to establish inquiries and one that had been under consideration for some years. However, there was some indication that the government wanted speedy legislation: Accordingly, we are now in a position to propose legislation that will provide a comprehensive statutory framework for major inquiries across the United Kingdom. The Bill is suitable for the whole range of major inquiries. We want the benefits of this framework to be available as soon as possible for any future inquiries that may be called.26

Indeed, they did. Pat Finucane’s murder was perhaps the most controversial of all the collusion cases, and Cory concluded there was “strong evidence that collusive acts were committed by the army (FRU), the RUC SB and the Security Service. I am satisfied that there is a need for a public inquiry.”27 So the case went to the very core of the security state, and the government was unwilling for an inquiry to proceed under the 1921 Act. The Northern Ireland minister had made an announcement almost three months earlier after Ken Barrett was convicted of Finucane’s murder: The Government has concluded that steps should now be taken to enable the establishment of an inquiry. . . . In order that the inquiry can take place speedily and effectively and in a way that takes account of the public interest, including the requirements of national security, it will be necessary to hold the inquiry on the basis of new legislation which will be introduced shortly.28

The initial response from the Opposition in the House of Lords criticized the wide grant of secrecy in terms of public access or the possibility of withholding parts of the report but was generally welcoming. Lord Howe of Aberavon injected a more critical tone, pointing out the indecent haste since a House of Commons select committee that had also been reviewing inquiries had not yet reported.29 The first detailed reference to NI actually came from Baroness Park, a former Secret Intelligence Service (MI6) official, railing against the government’s continued concessions to Provisional IRA and

84

Commissions of Inquiry and National Security

making much criticism of Cory’s inquiries for not giving the police or army a chance to respond: Relentless public exposure of the forces of law and order, in the guise of inquiries, who will, on the Cory model, be given no chance to defend themselves, will serve very well to demoralise public servants. I fear that the interesting reason why the Bill has been introduced now is the context of Northern Ireland and the Government’s need to offer concessions.30

This was perhaps ironic since the more general conclusion was that the reason for the government’s haste was precisely to resolve the problem of how to protect state servants from exposure. It was March 15, 2005, before the bill received its second reading in the House of Commons, by which time the government had to deal with the problem of getting the legislation enacted before the anticipated May general election (or starting the whole process again after the election). By contrast with the House of Lords, the minister had hardly started his recitation of the official background to the bill when the Finucane case was raised by a Labour MP, Kevin McNamara.31 The overall criticism of the bill related to the general increases in ministerial control compared with the predecessor 1921 Act and the diminution of any parliamentary role. In particular, ministers would have the power to suspend an inquiry before its conclusion (s. 14); to restrict attendance of individuals or disclosure/publication of evidence by the inquiry (s. 19); and to determine whether material should be withheld from the report “in public interest” (s. 25).32 Still, the government had their way with the third reading on the penultimate day of Parliament. But the government was thwarted in its plan to establish an inquiry into Finucane’s murder: his family wrote to all senior UK judges urging them not to agree to sit on an inquiry based on the new act. They cited a letter already sent by Lord Saville to the government: This provision [for a minister to restrict attendance at an inquiry or to restrict disclosure or publication of evidence] makes a very serious inroad into the independence of any inquiry; and is likely to damage or destroy public confidence in the inquiry and its findings, especially in any case where the conduct of the authorities may be in question. As a judge, I must tell you that I would not be prepared to be appointed as a member of an inquiry that was subject to a provision of this kind.33

Similarly, Cory, speaking to U.S. congressional hearings, said it would “make a meaningful inquiry impossible” and that he could not imagine any self-respecting Canadian judge accepting an appointment under the act.34 In this case, the impasse over the conditions of the 2005 Act remains unresolved; indeed, it seems increasingly unlikely that an inquiry into Finucane’s murder will ever take place.35 Fears that a Finucane inquiry under the 1921 Act might exceed even the Saville inquiry in length and cost were clearly a factor in government preparation of the Inquiries Act, but it is difficult

Inquiring into Dirty Wars

85

to avoid the conclusion that the central factor was the “deeply embedded opposition in elements of the British political and military establishment to exposing military and other security personnel to public scrutiny.”36 Courting further controversy, the government has extended the potential umbrella of the Inquiries Act to coroners’ inquests. These are another mechanism by which controversial deaths can be investigated, although they are conducted within a fairly narrow remit of establishing how, when, and where the deceased came to his death. Article 2 of the European Convention on Human Rights (ECHR) requires full, effective, and transparent investigation of any deaths caused by state agents and thus potentially increases the significance of inquests, although it does not normally have retrospective effect prior to coming into force in October 2000. There have been a number of cases in Northern Ireland.37 Most recently, the government proposed a number of changes to inquests including that they might take place in secret if matters of, for example, national security, were to be discussed. The government backed off from this in the face of much criticism but has achieved the same objective by having the rules changed so that the lord chancellor can order an inquest replaced by an inquiry under the Inquiries Act 2005.38 These inquiries are all characterized by their temporary nature, even if they may stretch over several years, but we should note that there are also forms of permanent inquiry into intelligence. In the United Kingdom, the main one is the committee of parliamentarians known as the Intelligence and Security Committee (ISC), but it is not discussed here, mainly because it has never inquired into Northern Ireland matters. It has investigated recent controversies such as Iraq, 7/7, and UK involvement in extraordinary rendition, not always to great acclaim.39 There is a permanent body that is discussed—the Police Ombudsman of Northern Ireland (PONI), which was established under Police (NI) Act 1998 to receive public complaints, carry out inquiries, and make recommendations where appropriate to the public prosecutor and Policing Board. As we shall see, this office has been a significant innovation. NORTHERN IRELAND, COUNTERTERRORISM, AND INQUIRIES The context for these inquiries is the general shift toward legalization of intelligence in the United Kingdom with the passage of the Security Service Act 1989 and the Intelligence Services Act 1994, coincident with a significant moment in the peace process—the first PIRA ceasefire was also in 1994. No attempt is made here to examine all NI inquiries into police and military activities. This chapter concentrates on those specifically relating to collusion, including the use of informers,40 because, apart from their role in the continuing effort to secure peace in NI, they have the most relevance for current post-9/11 concerns with counterterrorism policy in the United Kingdom. Rolston and Scraton41 list the 25 inquiries established into

86

Commissions of Inquiry and National Security

security issues in Northern Ireland between 1969 and 2002, when Cory was appointed, and, with few exceptions, draw pessimistic conclusions: The law was used for political ends. [The inquiries] narrowed the field of inquiry, avoided obvious and objective conclusions that might show state forces in a bad light, delayed reporting to mute the impact of negative criticism of the report and ensured that security force personnel would not be prosecuted or reprimanded for their actions.42

Preeminent examples include Widgery’s whitewash of Bloody Sunday, referred to earlier, and the inquiry into six disputed killings by Royal Ulster Constabulary Special Branch in 1982 that was characterized by delays and obstruction. At first the inquiry was headed by John Stalker, a deputy chief constable, who after two years was still pursuing evidence when he was removed from the investigation allegedly because of his corrupt association with criminals in Manchester. There were suspicions that his removal was a clumsy attempt to derail the investigation, but his successor, Colin Sampson, a chief constable, went on to recommend that both RUC and MI5 officers be prosecuted for conspiracy to pervert the course of justice. Eventually the attorney general decided that no prosecutions would take place because of “considerations of national security.”43 Stalker later wrote of a police “inclination, if not a policy, to shoot suspects dead without warning rather than to arrest them.”44 There were six cases of alleged collusion investigated by Judge Cory. First, the murder by the Provisional IRA of two RUC officers, Bob Buchanan and Harry Breen, in March 1989. Cory concluded that there was evidence of leaks from the Irish Gardaí to PIRA that, if accepted, would constitute collusion and that there should be a public inquiry.45 Although the inquiry was formally established in May 2005, the Web site still contains only the chair’s opening statement.46 Second, in the case of the murder of Lord Justice Gibson and his wife, Cory found “no evidence of collusion upon which to base a direction to hold a public inquiry.”47 In four other UK cases, Cory did recommend inquiries, but, as we saw earlier, in the case of Pat Finucane an inquiry has not started. In terms of the three case that have started, to say that the process has been protracted would be an understatement. Robert Hamill, a young Catholic, was kicked to death in 1987 by a Loyalist mob in Portadown while armed RUC officers sat nearby. Cory concluded: As a result I must conclude that a public inquiry should be held to review the actions of the police during the period just prior to the disturbance, during the course of the disturbance itself, and during the subsequent investigation into the murder of Robert Hamill.48

An inquiry under the Police Act was announced on November 16, 2004, and it was formally opened in May 2005. The Northern Ireland minister

Inquiring into Dirty Wars

87

announced on March 29, 2006, that he had agreed to a request from the chair, Sir Edwin Jowitt, a retired High Court judge, to convert the inquiry to one under the 2005 Act. The inquiry rejected a request from a number of ex-RUC officers to give evidence anonymously in August 2006; following judicial review, the NI High Court ruled the inquiry decision could not be upheld, but the House of Lords reinstated the inquiry decision.49 There was a request for the inquiry’s terms of reference to be extended to include decisions taken by the director of public prosecutions (DPP), but the Northern Ireland minister, Shaun Woodward, rejected this after taking legal advice from a senior barrister who found that the DPP’s decisions had been reasonable.50 Yet the inquiry made a brief interim report in January 2010 recommending that the NI prosecution service reconsider the DPP’s decision in March 2004 to discontinue the prosecution of a former RUC reserve constable for conspiracy to pervert the course of justice.51 Rosemary Nelson was living and working in Lurgan when she was killed in March 1999 by a bomb attached to her car. She had represented many people accused of involvement in political violence, and, by the time of her death, she had herself become a target for intelligence gathering as police and other security officials regarded her as more than just a representative of PIRA members. In this context, allegations that authorities knew of and failed to prevent her murder soon surfaced. On investigation, Cory concluded: “I am satisfied that there is evidence of collusion by Governmental agencies in the murder of Rosemary Nelson that warrants holding a public inquiry.”52 An inquiry under the Police Act was announced November 16, 2004, and opened formally in April 2005; the original terms of reference referred to the Northern Ireland Office (NIO) and the RUC but, at the request of the chair— Sir Michael Morland—were extended to the “army or other state agency.” Public hearings commenced on April 15, 2008, and concluded in June 2009 after 130 days of hearings.53 Billy Wright, a dissident Loyalist, was shot by Irish National Liberation Army (INLA) paramilitaries on December 27, 1997. Given that this occurred in the high security Maze prison, it is not surprising that, again, allegations of collusion emerged. Cory concluded: My review of the relevant documents has led me to conclude that there must be a public inquiry. Taken together they have satisfied me that there is sufficient evidence of collusive acts by prison authorities to warrant the holding of a public inquiry.54

An inquiry under the Prisons Act was announced on November 16, 2004, and opened formally in June 2005. The NI minister announced on November 23, 2005, that it would be converted to one under the Inquiries Act. Wright’s father sought judicial review, but it was a year before the NI High Court ruled in December 2006 that the minister’s decision was unlawful because he had failed to take into account that the power of ministers to

88

Commissions of Inquiry and National Security

terminate such inquiries compromised its independence. This was clearly a blow to the Inquiries Act, but David Wright waived his right to seek an order quashing the minister’s decision, and proceedings re-commenced.55 In the meantime, the inquiry had already run into serious problems in obtaining documents; hearings were held in late 2006 into the destruction by the Northern Ireland Prison Service (NIPS) of many relevant documents, partly as a consequence of the closure of the Maze prison in 2000. The failure of the Police Service of North Ireland (PSNI) to hand over all requested documents was a major factor in the delay of public hearings in 2006,56 and further problems in obtaining documents from all the security agencies involved plus legal challenges, including requests from witnesses for anonymity, led to further delays in 2007.57 The serial delays in obtaining documents eventually became so pronounced that, after the suspension of public hearings in October 2007, the inquiry team produced a specific paper detailing the problems.58 It described the inquiry’s failure to recover documents regarding its list of key issues, specifically INLA informants, intelligence relating to the INLA order of battle, and surveillance of the INLA around the time of Wright’s murder. There were clearly elements of both chaotic record keeping and willful obstruction. For example, the PSNI claimed that no intelligence records were kept in hard copy after January 1996 as computerization took over, yet such copies were obtained from numerous official and other sources,59 and PSNI’s denial of any INLA sighting information was made despite the inquiry obtaining it from another agency.60 After a number of failed attempts to obtain informant information, the inquiry concluded: We had been told that there were during the relevant period [January 1996–March 1998] from our initial list, a certain number of agents or informants, three times that many agents, twice as many, half as many and, finally, a quarter as many agents.61

Nor did the product of Special Branch information gathering seem very impressive: in response to the inquiry’s formal demand for all intelligence relating to Wright’s murder from human and technical sources, a “substantial amount of documentation was provided,” but review showed that from all PSNI sources, between December 8, 1997, and mid-January 1998, “not one intelligence document giving information on the actions, intentions, associations and movements of senor INLA personnel or weapons has been recovered.”62 In all, 156 days of oral hearings ran between October 2006 and July 2009. At their conclusion, the chair indicated his hope that the report would be ready in early 2010 but added the following: I have, however, to inform you that we have been in discussion with the Northern Ireland Office about publication of our report. They have expressed a wish that we should first submit the report to them in draft. Our preferred option, for reasons

Inquiring into Dirty Wars

89

I need not go into but they are fairly obvious, is to publish our own report free of supervision by the Northern Ireland Office. Since that, it would appear, can’t be achieved, we have decided to submit our completed report to the Secretary of State for Northern Ireland whenever it is ready and couple that with the issue of a public statement. Publication, as you will appreciate, will then be in the hands of the Northern Ireland Office and passes beyond our control and our timing.63

So, even if formally established, four to five years seems to be the minimum period in which hearings might be completed and panels can begin the contemplation of their reports. Now, there are clearly a number of reasons for this including the understandable concerns of potential witnesses over the impact of their appearance, prompting requests for anonymity, and the need to ensure the circumstances under which documents are made available to inquiries do not threaten the exposure of sources and methods. However, other reasons may be less acceptable: for example, the PSNI officer in charge of producing police documents for the collusion inquiries commented in the wake of the continuing delays before the Billy Wright inquiry that police in the 1990s had “a whole host of things that came as more important to do rather than the maintenance of libraries.”64 But the inquiries proposed by Cory have not been the only ones into collusion. A central aspect of the NI peace process was the reform of policing and the Patten report,65 which led to the replacement of the RUC by the PSNI and also set up robust police accountability mechanisms including the office of police ombudsman of Northern Ireland (PONI). As a complaints investigation mechanism, PONI has almost unprecedented potential with powers up to and including powers of arrest. The first holder of the post, Nuala O’Loan, also demonstrated greater persistence, especially in the face of enormous government pressure to back off from her investigations, than is generally found among those from the “great and good,” who are normally appointed to these roles. For the purposes of this chapter, the most significant investigation—Operation Ballast—provided a rare shaft of light into informant handling processes in the context of counterterrorism and demonstrated that lack of librarianship skills was the least of the police’s knowledge management problems. As part of her investigation of a complaint about the police’s failure to investigate a specific murder, she conducted a wide-ranging inquiry into Special Branch practices in an area of North Belfast. Her findings are chilling, involving the following examples: • “Failure to arrest informants for crimes to which those informants had allegedly confessed; • The concealment of intelligence indicating that on a number of occasions up to three informants had been involved in a murder and other serious crime; • Creating interview notes which were deliberately misleading; failing to record and maintain original interview notes and failing to record notes of meetings with informants;

90

Commissions of Inquiry and National Security

• Not informing the Director of Public Prosecutions that an informant was a suspect in a crime in respect of which an investigation file was submitted to the Director; • Withholding from police colleagues intelligence, including the names of alleged suspects, which could have been used to prevent or detect crime; • Providing at least four misleading and inaccurate documents for possible consideration by the Court in relation to four separate incidents and the cases resulting from them, where those documents had the effect of protecting an informant; • Giving instructions to junior officers that records should not be completed, and that there should be no record of the incident concerned; • Destroying or losing forensic exhibits such as metal bars; • Not adopting or complying with UK Home Office Guidelines on matters relating to informant handling, and not complying with the RIPA [Regulation of Investigatory Powers Act] when it came into force in 2000.”66

OBSTRUCTION OF INQUIRIES When she retired, at the end of a seven-year term of office, Nuala O’Loan indicated that the above may not have been an isolated case because police intelligence papers were routinely destroyed within the PSNI: They conducted an operation, they had papers relating to it, and they routinely destroyed them afterwards. That was province-wide. I would say that because of the deficiency in management and supervision which I know existed, and because of the deficiency in policy and practices, there was, I think, the opportunity for similar things to have happened elsewhere but that’s as far as I will go.67

Since agencies with policing and intelligence functions live or die by the effectiveness of their knowledge management, it is difficult to excuse the extensive delays faced by inquiries, and serious questions have been raised at the extent of deliberate obstruction, including the destruction of evidence. The only possible lesson to be drawn from inquiries into collusion in NI is that they must be conducted in the realization that where people believe they are acting in the interests of national security, they will mislead oversight bodies. When the issue first came to general attention in the trial of Brian Nelson for offences committed while he was a UDA intelligence officer and an informer, Brigadier Gordon Kerr (at the time of the trial identified only as Colonel J) appeared for the defense and told the court that Nelson had been responsible for saving 200 lives. Stevens’s investigators later said the number was probably two—one of whom was Gerry Adams.68 So anxious were the subjects of Stevens’s investigation to derail his work that they set fire to his office in January 1990,69 and Stevens devotes the third, albeit brief, chapter of his report to the “Obstruction of My Enquiries.”

Inquiring into Dirty Wars

91

Reflecting on her investigations in North Belfast, Nuala O’Loan not only noted, as we saw earlier, the tendency for destruction of intelligence documents, but also reported the following: Some retired officers did assist the investigation, and were helpful. . . . Others, including some serving officers, gave evasive, contradictory, and on occasion farcical answers to questions. On occasion those answers indicated either a significant failure to understand the law, or contempt for the law. On other occasions the investigation demonstrated conclusively that what an officer had told the Police Ombudsman’s investigations was completely untrue.70

And so the obstruction goes on: in the early stages of the Nelson, Wright, and Hamill inquiries, the Ministry of Defence and Security Service among other government agencies demanded the return of secret documents from the Stevens inquiry. In some cases documents were sent only to be destroyed, so the Stevens investigators—likely to be called as witnesses to the inquiries—took to copying those that were returned.71 As we have seen, the Wright inquiry was plagued by obstruction: on the opening day of the hearings, lawyers outlined their problems in obtaining key files from government agencies; thousands of prison documents and journals were destroyed; and the inquiry “experienced difficulties” in obtaining documents, including delays and gaps in what was provided by PSNI, prison authorities, and the Security Service.72 Even when documents were supplied, they were chaotic: some pages missing, some documents duplicated, provided in nonchronological order, cover sheets missing and embossed with a watermark indicating they had been sent to the inquiry that sometimes rendered them illegible.73 One of the lessons here is that inquiries whose powers may well include the right to demand documents and the appearance of people cannot thereby rely on intelligence agencies to simply give them up—indeed, there is a good deal of evidence from NI that this will not happen. Therefore, serious thought must be given to the powers of investigators, after the examples of the Stevens team and O’Loan’s office, to have police powers of access, search, and seizure.74

CONCLUSION Jonathan Aitken, a former Conservative minister, talking about the SAS shooting of PIRA members in Gibraltar in 1988, said that the price of reconciling counterterrorism with the rule of law is “a huge smokescreen of humbug.”75 Now, as someone who was subsequently convicted of perjury in a libel case he brought against The Guardian newspaper and Granada Television, Jonathan Aitken certainly knows something about humbug, but was he right?

92

Commissions of Inquiry and National Security

This account of obstruction by security agencies would seem to confirm not only that agencies, perhaps unsurprisingly, but also political authorities are reluctant to acknowledge past failings. This “extraordinary psychological barrier”76—a central aspect of the denial analyzed by Cohen77—results from the political ownership of the actions of security forces. We can view Cory and Stevens as exceptions to the general rule of inquiries serving state interests because of the particular circumstances in NI as the peace process slowly gathered momentum, the extraordinary energy of Pat Finucane’s family, and the community perception that neither Pat Finucane nor Brian Lambert were members of terrorist groups.78 It can be argued that inquiries may become more generally effective because of a decline in deference (including among judges), a more specific decline of trust in securocrats (much fuelled by the Iraq WMD fiasco,) and the realization that the sky will not fall as soon as intelligence documents are made public. Hancock and Liebling argue that prison inquiries are facilitated by the growth of “managerialism,” which encourages senior managers and ministers to seek ways of controlling security officials not only just in terms of their efficiency but also in order to try to prevent future embarrassment.79 Similarly, David Dixon concludes his survey of inquiries into policing with the suggestion that “managerialism and human rights may just make unlikely but productive bedfellows.”80 But, less optimistically, we must note that prisons and police are embedded within the criminal justice process in a way that security intelligence is not. Further, growing intelligence and security networks reflect some loss of states’ traditional legitimate monopoly of violence just as increasing rights consciousness reduces their traditional room for maneuver in security matters. Faced with a crisis, therefore, it may become more likely that states will subcontract violence to paramilitaries (as in Northern Ireland) or, in more extreme cases, death squads,81 if they are able to do so and hope they can rely on plausible deniability. The main lesson to be learned from this survey is that inquiries need great thought and very careful handling. On the one hand, the work of the first PONI was remarkable in pursuing an investigation that demonstrates all the dangers of uncontrolled counterterrorist policing. It illustrated that careful attention must be paid to all aspects of agency and structure if inquiries are not to fall foul of security bureaucracies that are in a very strong position to protect their persons and papers from embarrassing disclosure. On the other hand, it might be argued that adversarial inquiries into intelligence should be avoided if possible. The official objective of inquiries is not to generate evidence that might be used in the prosecution of officials, but victims and survivors may well seek this. Consequently, as can be seen from some of the examples discussed here, public inquiries can become heavily legalized. Not only does this increase the costs, it can privilege certain views of the truth and the position of the state in controlling the flow of information. Therefore, careful consideration must be given to the role of law in intel-

Inquiring into Dirty Wars

93

ligence inquiries; the ambiguous relationship between law and intelligence (compared with, say, policing) suggests that the holistic statistical approach that has been suggested for truth commissions might be preferable to the forensic analysis of cases because it can better avoid become mired in a legalist bog. The objective would be to establish as great a degree of historical accuracy as possible with experienced and appropriately empowered investigators deploying a range of social science and statistical techniques in order to establish patterns of organizational policy and practice that resulted in abuses.82 This survey of the depressing regularity of delay, resistance, and obstruction of inquiries into the most serious of allegations against security and intelligence agencies—their collusion in murder—makes clear that there is still some way to go before states, even liberal democratic ones, necessarily regard their counterterrorism policies and activities as subject to the rule of law against their own citizens, let alone other people. Not only do the “tentacles” of emergency and repressive law stretch beyond the conflict,83 as in NI, but the difficulty of officials in acknowledging these abuses is accounted for at least in part by the continuing significance of counterterrorism in UK security policy—both internally and externally. Managers’ concerns with the morale of the troops are understandable but short-sighted, as the fresh controversy about UK security and intelligence agencies’ collusion in torture after 9/11 demonstrates. Such public trust in intelligence that remains after the Iraq WMD fiasco will only be drained further by these controversies, and, as is generally acknowledged, the cover-up is more damaging than the original crime.

NOTES An earlier form of this chapter was delivered to the Intelligence Studies panel, International Studies Association (ISA), March 2008, San Francisco. 1. Ruth Jamieson and Kieran McEvoy, “State Crime by Proxy and Juridical Othering,” British Journal of Criminology 45 (2005): 504–27. See also, for example, Frank Kitson, Gangs and Counter Gangs (London: Barrie & Rockcliffe, 1960). 2. Bill Rolston, “ ‘An Effective Mask for Terror’: Democracy, Death Squads, and Northern Ireland,” Crime, Law, and Social Change 44 (2005): 181–203, from where the summary in this paragraph is drawn. 3. John Ware, “Dirty War,” Panorama, BBC1, broadcast June 8, 1992. 4. Marny Requa, “Truth, Transition, and the Inquiries Act 2005,” European Human Rights Law Review 4 (2007): 404–26, quote at 407. 5. Conflict Archive on the Internet (CAIN), “Collusion—Chronology of Events in the Stevens Inquiries,” http://cain.ulst.ac.uk/issues/collusion/chron.htm (accessed February 11, 2010). 6. John Stevens, Stevens Enquiry: Overview and Recommendations (London: HMSO, 2003). 7. “No Charges against Police over Finucane,” Belfast Telegraph, June 25, 2007.

94

Commissions of Inquiry and National Security

8. Peter Cory, Cory Collusion Inquiry Report: Rosemary Nelson, HC473, 2003, published April 1, 2004, para. 4.203, http://cain.ulst.ac.uk/issues/collusion/ source.htm (accessed January 30, 2009). 9. Fionnula Ní Aoláin and Colm Campbell, “The Paradox of Transition in Conflicted Democracies,” Human Rights Quarterly 27 (2005): 172–213. 10. Stanley Cohen, States of Denial: Knowing about Atrocities and Suffering (Cambridge, UK: Polity, 2001), pp. 101–16. 11. cf. Peter Gill, Policing Politics: Security Intelligence and the Liberal Democratic State (London: Cass, 1994), pp. 48–55. 12. Diana Woodhouse, “Matrix Churchill: A Case Study in Judicial Inquiries,” Parliamentary Affairs 48 (1995): 24–39. 13. Frank Burton and Pat Carlen, Official Discourse: On Discourse Analysis, Government Publications, Ideology, and the State (London: Routledge, Kegan, & Paul, 1979), pp. 44–51. 14. George Gilligan, “Official Inquiry, Truth, and Criminal Justice,” in Crime, Truth, and Justice: Official Inquiry, Discourse, Knowledge, ed. George Gilligan and John Pratt (Cullompton, UK: Willan, 2004), pp. 11–25, quote at p. 15. 15. John Pratt and George Gilligan, “Introduction: Crime, Truth, and Justice— Official Inquiry and the Production of Knowledge,” in Crime, Truth, and Justice (see note 14), pp. 1–7, quote at p. 6. 16. Angela Hegarty, “The Government of Memory: Public Inquiries and the Limits of Justice in Northern Ireland,” Fordham International Law Journal 26 (2003): 1148–92. 17. A computer disc containing information sent to the inquiry was lost. Rosemary Nelson Inquiry, “Statement from the Inquiry,” http://www.rosemarynel soninquiry.org/current-key-documents/43/. The PSNI made use of this later to criticize the inquiry: “PSNI ‘pressurised’ to avoid rifts with collusion inquiries,” Belfast Telegraph, October 23, 2008. 18. Nigel Hancock and Alison Liebling, “Truth, Independence, and Effectiveness in Prison Inquiries,” in Crime, Truth, and Justice (see note 14), pp. 89–114. 19. See Gill, Policing Politics, p. 329, for list of UK intelligence inquiries between the 1950s and 1980s. 20. See Mark Phythian, “Hutton and Scott: A Tale of Two Inquiries,” Parliamentary Affairs 58 (2005), pp. 124–37; William Twining, “The Hutton Inquiry: Some Wider Legal Aspects,” in Hutton and Butler: Lifting the Lid on the Workings of Power, ed. W. G. Runciman (Oxford: Oxford University Press, 2004), pp. 29–50. 21. Lord Windlesham and Richard Rampton, The Windlesham/Rampton Report on “Death on the Rock” (London: Faber & Faber, 1989). 22. The Iraq Inquiry, “About the Inquiry,” http://www.iraqinquiry.org.uk/ about.aspx (accessed February 28, 2010). 23. Jonathan Powell, Great Hatred, Little Room: Making Peace in Northern Ireland (London: Bodley Head, 2008), p. 45 24. Ibid., pp. 45–46. Perhaps McGuinness was tweaking the lion’s tail since there had, indeed, been a long-running demand for Bloody Sunday to be revisited. 25. Reg Whitaker pointed out at the ISA Panel where this paper was first discussed that, when governments complain of the costs of inquiries, it must be remembered that a significant part of these expenses are incurred by governments themselves employing lawyers to handle, contain, and sometimes contest inquiries.

Inquiring into Dirty Wars

95

26. Baroness Ashton of Upholland, House of Lords, Hansard, December 9, 2004, col. 986. 27. Peter Cory, Cory Collusion Inquiry Report: Patrick Finucane, HC470, 2003, para. 1.293, published April 1, 2004, http://cain.ulst.ac.uk/issues/collusion/source. htm (accessed January 30, 2009). 28. Northern Ireland Office, “Statement by Secretary of State Paul Murphy MP on Finucane Inquiry,” September 23, 2004, http://www.nio.gov.uk (accessed January 15, 2010). 29. House of Lords, Hansard, December 9, 2004, cols. 990–91. 30. Baroness Park, House of Lords, Hansard, December 9, 2004, col. 1007 31. House of Commons, Hansard, March 15, 2005, col. 150 32. For fuller discussion see Requa, “Truth, Transition,” pp. 412–18. 33. Ibid., p. 404. 34. Ibid. 35. “Letter Throws Fresh Doubt on Finucane Killing Probe,” Belfast Telegraph, February 16, 2009. 36. Requa, “Truth, Transition,” p. 411. 37. The implications are discussed in Marny Requa and Gordon Anthony, “Coroners, Controversial Deaths, and Northern Ireland’s Past Conflict,” Public Law (2008): 443–51. 38. Coroners and Justice Act 2009, Schedule 1, paras. 3–4, http://www.opsi. gov.uk/acts/acts2009/en/ukpgaen_20090025_en_2#cpt1_IDARKL4D. 39. Recent analyses of the ISC include Peter Gill, “The Intelligence and Security Committee and the Challenge of Security Networks,” Review of International Studies 35 (2009): 929–41; and Mark Phythian, “The British Experience with Intelligence Accountability,” Intelligence and National Security 22, no. 1 (2007): 75–99. 40. There have been a number of different ways in which NI has sought to come to terms with the past as part of the peace process. For example, beyond the Cory collusion inquiries discussed here, in 2005 the PSNI established a Historical Enquiries Team (HET) to investigate more than 3,200 killings during 1968–98. Although employing mainly police from outside Northern Ireland, a review established that former RUC officers were still able to act as key gatekeepers of the investigations and that the Ministry of Defence regularly failed to assist with identifying soldiers involved in controversial killings. Patricia Lundy, “Can the Past Be Policed? Lessons from the Historical Enquiries Team Northern Ireland,” Law and Social Challenges 11 (Spring/Summer 2009). In January 2009, a Consultative Group on the Past recommended that the HET be incorporated into a new PSNI Review and Investigation Unit as part of a broader Legacy Commission. 41. Bill Rolston and Phil Scraton, “In the Full Glare of English Politics: Ireland, Inquiries, and the British State,” British Journal of Criminology 45 (2005): 547–64, quote at 555–56. 42. Ibid., p. 558. 43. Gill, Policing Politics, pp. 194–96. 44. John Stalker, Stalker (London: Harrap, 1988), p. 253. 45. Peter Cory, Cory Collusion Inquiry Report: Chief Superintendent Breen and Superintendent Buchanan, published December 18, 2003, para. 2.162, http://cain.ulst. ac.uk/issues/collusion/source.htm (accessed January 30, 2009). 46. Smithwick Tribunal of Inquiry, http://www.smithwicktribunal.ie/smith wick/HOMEPAGE.html (accessed January 28, 2010).

96

Commissions of Inquiry and National Security

47. Peter Cory, Cory Collusion Inquiry Report: Lord Justice Gibson and Lady Gibson, published December 18, 2003, para. 1.163, http://cain.ulst.ac.uk/issues/collusion/ source.htm (accessed January 30, 2009). 48. Peter Cory, Cory Collusion Inquiry Report: Robert Hamill, 2003, published April 1, 2004, para. 2.249, http://cain.ulst.ac.uk/issues/collusion/source.htm (accessed January 30, 2009). 49. Robert Hamill Inquiry, http://www.roberthamillinquiry.org/press/010. htm (accessed January 30, 2010). 50. Northern Ireland Office press release, March 21, 2008. 51. Robert Hamill Inquiry, http://www.roberthamillinquiry.org/press/25/ (accessed March 22, 2010). 52. Peter Cory, Cory Collusion Inquiry Report: Rosemary Nelson, para. 4.197, http://cain.ulst.ac.uk/issues/collusion/source.htm (accessed January 25, 2008). 53. Rosemary Nelson Inquiry, http://www.rosemarynelsoninquiry.org/ (accessed February 15, 2010). 54. Peter Cory, Cory Collusion Inquiry Report: Billy Wright, HC472, 2003, published April 1, 2004, para. 3.222, http://cain.ulst.ac.uk/issues/collusion/source. htm (accessed January 25, 2008). 55. Keith Parry, Investigatory Inquiries and the Inquiries Act 2005, Standard Note SN/PC/2599, House of Commons Library, 2007, pp. 7–8. 56. “Wright Inquiry Further Delayed,” Belfast Telegraph, May 3, 2006. 57. E.g., “Billy Wright Inquiry Facing Further Delays,” Belfast Telegraph, August 17, 2007. 58. The Billy Wright Inquiry, http://www.billywrightinquiry.org/filestore/ documents/Position_Paper_on_PSNIs_response_to_requests_for_information. pdf (accessed January 31, 2010). 59. Ibid., 2.4–2.9. 60. Ibid., 5.11. 61. Ibid., 3.50. 62. Ibid., 5.52. 63. The Billy Wright Inquiry, http://www.billywrightinquiry.org/filestore/ documents/transcripts/Day_156_BWI020709_web-site.txt, pp. 111–12 (accessed January 28, 2010). 64. ‘The Burning Issue: Lost Files or Smoking Gun,” Belfast Telegraph, June 5, 2007. 65. Independent Commission on Policing for Northern Ireland, A New Beginning: Policing in Northern Ireland, http://cain.ulst.ac.uk/issues/police/patten/ patten99.pdf (accessed March 1, 2010). 66. Police Ombudsman, Statement by the Police Ombudsman for Northern Ireland on Her Investigation into the Circumstances Surrounding the Death of Raymond McCord Junior and Related Matters, January 22, 2007, http://www.policeombudsman.org/ (accessed April 15, 2007), pp. 11–13. 67. As quoted in “O’Loan: Collusion Is Still a Danger,” Belfast Telegraph, November 5, 2007. 68. John Ware, “Licence to Murder,” Panorama, BBC1 broadcast, June 18 and 23, 2002. 69. Stevens, Stevens Enquiry, 3.4. 70. Police Ombudsman, Statement, pp. 5–6.

Inquiring into Dirty Wars

97

71. Sandra Laville, “MI5 and MoD Battle to Keep Secrets,” The Guardian, April 10, 2007, pp. 1, 8. 72. The Billy Wright Inquiry, transcript of hearing, May 30, 2007, http://www. billywrightinquiry.org/transcripts/23/. Also, see Sandra Laville, “Police Destroyed Papers on Billy Wright Murder, Inquiry Told,” The Guardian, May 31, 2007, p. 12. 73. The Billy Wright Inquiry, Position Paper on the Police Service of Northern Ireland’s Response to Requests for Information, January 21, 2008, paras. 7.5–7.7, http:// www.billywrightinquiry.org/filestore/documents/Position_Paper_on_PSNIs_ response_to_requests_for_information.pdf (accessed January 31, 2010). 74. And state servants are not the only people who may be reluctant to cooperate in establishing the truth; for example, Loyalist paramilitaries are also to the extent that they feel abandoned by the state to which they have been loyal and believe that the call for truth serves an insurgent Republican agenda. Bill Rolston, “Dealing with the Past: Pro-States Paramilitaries, Truth, and Transition in Northern Ireland,” Human Rights Quarterly 28 (2006): 652–75. 75. Ian Jack, “My Silence about the Terrorists Was Only Partly Cowardice,” The Guardian, March 8, 2008. 76. Ní Aoláin and Campbell, “Paradox of Transition,” p. 202. 77. See especially Cohen, States of Denial, pp. 21–50. 78. Gilligan, “Official Inquiry,” pp. 17–18. 79. Nigel Hancock and Alison Liebling, “Truth, Independence, and Effectiveness in Prison Inquiries,” in Crime, Truth, and Justice (see note 14), pp. 89–114, quote at p. 111. 80. David Dixon, “Police Governance and Official Inquiry,” in Crime, Truth, and Justice (see note 14), pp. 115–37, quote at p. 134. 81. Bruce Campbell, “Death Squads: Definition, Problems, and Historical Context,” in Death Squads in Global Perspective: Murder with Deniability, ed. Campbell and Arthur Brenner (Basingstoke, UK: Macmillan, 2000), pp. 16–18. 82. Colm Campbell and Catherine Turner, “Utopias and the Doubters: Truth, Transition, and the Law,” Legal Studies 28, no. 3 (2008): 374–95, esp. pp. 384–89. Lord Saville’s Bloody Sunday inquiry (itself used as a pretext for the Inquiries Act and increased ministerial control) is criticized for its excessive legalism in Louis Blom-Cooper, “What Went Wrong on Bloody Sunday: A Critique of the Saville Inquiry,” Public Law ( January 2010): 61–78. 83. Colm Campbell and Fionnuala Ní Aoláin, “Local Meets Global: Transitional Justice in NI,” Fordham International Law Journal 26 (2002–03): 871–92, quote at p. 892. “Emergency” legislation has been almost a permanent feature of Ireland since the Act of Union (and Northern Ireland since partition). Bill Rolston and Phil Scraton, “In the Full Glare of English Politics: Ireland, Inquiries, and the British State,” British Journal of Criminology 45 (2005): 547–64.

CHAPTER 6

The Role of Judges Ian Leigh

Judges and senior lawyers feature regularly among the cast of those called on to conduct commissions of inquiry. Since they rarely have any direct professional experience that touches on security and intelligence, it is worth considering why governments resort to inquiries chaired by judges with such regularity, what special skills lawyers may bring to the inquiry process, and whether there are also disadvantages in so employing them. This chapter begins with a brief historical survey of the use of judicial inquiries in the security field from the Cold War to the present day. The emphasis is primarily on Britain, but some examples are also drawn from Canadian and Australian experience. The reasons why judicial personnel are an attractive choice for these periodic inquiries are then explored. This section seeks to identify when the use of judges is particularly appropriate. It also identifies some of the hazards, particularly of delay and proceduralism, that can affect inquiries chaired by judges. The next section discusses the broader constitutional issues that judicial inquiries raise and the risks to the impartiality and reputation of the judiciary. A final section considers the specific difficulty of the relationship of judicial inquiries with legal proceedings. The conclusion suggests that judicial inquiries are somewhat similar to antibiotic medicines—useful when used sparingly and appropriately, but ineffective if used indiscriminately. A HISTORICAL SKETCH A brief survey reveals just how longstanding the practice of resort to judicial inquiries is in the security field.

The Role of Judges

99

In Britain, examples go back to the Second World War when Norman Birkett, then a leading king’s counsel, chaired the Advisory Committee, which reviewed cases of wartime internees; his elevation to the High Court judiciary in 1941 may have been partially connected with this service.1 During the height of the Cold War throughout the 1950s and early 1960s, a succession of security breaches were referred by governments of the day to senior judges. Lord Radcliffe, a lord of appeal in ordinary (i.e., one of the “law lords”), was a regular choice of the government for official inquiries.2 Among several other public duties he chaired a Committee on Security Procedures in the Public Service,3 a 1921 Tribunal of Inquiries Act tribunal on the Vassall case,4 a committee on recruitment to the secret intelligence service,5 and privy counselors committees and on D Notices.6 Most famous of all, perhaps, was Lord Denning’s inquiry into the Profumo affair, concerning the conduct of the secretary of state for war; the inquiry sat in the summer of 1963 in a feverish atmosphere of rumor and political tension.7 The report cleared the Security Service of wrongdoing in failing to alert the prime minister, Harold Macmillan, of John Profumo’s affair with Christine Keeler. Incidentally, however, the report cast greater light than ever before on the working of the Security Service, including publishing for the first time the administrative charter that then governed its work—the Maxwell-Fyfe Directive. Lord Denning’s working method was controversial: he interviewed in private witnesses that he selected, without giving them details of the evidence of any other witnesses or the opportunity to challenge that evidence. As Lord Denning himself put it in his report: It has the advantage that there can be no dissent, but it has two great disadvantages: first being secret it has not the appearance of justice; second in carrying out the inquiry, I have had to be a detective, inquisitor, advocate and judge and it has been difficult to combine them.8

The exercise took place in what by modern standards is a very short time frame: the Profumo inquiry lasted barely two months. More than 40 years later, it remains controversial both for the notoriety it conferred on Lord Denning, which never left him (he later described it as “my most important case”),9 and for its conclusions exonerating the Security Service.10 In the aftermath, the Royal Commission on Tribunals of Inquiry (ironically, itself an inquiry into inquiries) was later to recommend that this type of inquiry should never again be established.11 The process of using judges to inquire into security breaches became semiformalized when the Security Commission was established in 1964 as standing body to which questions of breaches of security could be referred by the prime minister.12 Since its creation, the commission has produced around 20 public reports. Of these, perhaps the most notable was that concerning MI5 officer Michael Bettaney (who had approached the Russian embassy offering to sell secrets), which raised many wider issues about the management

100

Commissions of Inquiry and National Security

of the Security Service.13 In some respects, the commission’s usefulness as a shield to deflect public controversy has diminished in recent years with the creation of the Intelligence and Security Committee; the Security Commission nonetheless remains in hibernation ready to be summoned if needed. From its inception the commission has included senior judicial figures, with generally two judges serving as members at any one time. The first chairman was Lord Justice Winn (1964–71), to be followed by Lord Simon of Glaisdale (1965–77), Lord Diplock (chairman 1971–82), Lord Bridge of Harwich (1977–85; chairman 1982–85), Lord Griffiths of Govillon (1982–1992; chairman 1985–92), Lord Lloyd of Berwick (1985–; chairman 1992–99), and Lady Justice Butler-Sloss (1992–2005). Although the commission has been less active in recent years and there are currently several vacancies, nevertheless Lord Justice Mantell (alternative chairman 2002–) continues this tradition of judicial service. Apart from the Security Commission, a second way in which individual judges have been routinely used in the security field is in a review function in relation to surveillance powers. This practice began as a reaction to allegations of abuse in the 1980s with the successive appointments of lords Diplock and Bridge as judicial monitors for the interception of communications. The office was then in effect put on a statutory basis. Under the current law, the UK intelligence and security agencies are overseen by judicial commissioners, who now work within the Regulation of Investigatory Powers Act 2000 (RIPA). The intelligence services commissioner reviews and reports upon the issue and authorization, by the relevant minister, of warrants for operations by the agencies (RIPA, s. 59). The interception commissioner (established under section 57 of RIPA) reviews the issue and authorization of warrants to intercept mail and telecommunications by the intelligence and security agencies and law enforcement organizations. There is also a tribunal, the Investigatory Powers Tribunal, which is established to investigate public complaints against the agencies or about interception (RIPA, s. 65). The commissioners report annually to the prime minister on their work, and their reports are in turn laid before Parliament. Although the commissioners and Tribunal are sufficient to satisfy the largely formal demands of the European Convention on Human Rights, there are reasons to doubt their overall effectiveness as instruments of accountability or instilling public confidence due to the tightly prescribed legal jurisdiction within which each operates. There are no publicly recorded examples of a tribunal finding against the security and intelligence services (from several hundred cases brought over nearly two decades)14 or of a finding by the commissioner that a warrant or authorization has ever been improperly issued. A further variant on judicial inquiries has been used on several occasions in Canada and Australia—inquiry by royal commissions. The allegations of the celebrated Cold War defectors Igor Gouzenko and Vladimir Petrov gave rise to royal commissions on espionage in both Ottawa and Canberra, composed in each case of judges. There was a further judicial royal commis-

The Role of Judges

101

sion in Australia under the Whitlam government when Justice Hope of the Supreme Court of New South Wales produced a series of reports on different agencies15 and further reviews in 1984.16 The inquiries so far discussed were all conducted behind closed doors with only the conclusions and recommendations made public. This is in marked contrast to the high-profile public inquiry conducted by Lord Justice Scott (as he then was) between 1992–96 into the Matrix Churchill case.17 The 1,800-page Scott report gave a definite account of the operation of the export control regime, related government knowledge about attempts to circumvent it by Saddam Hussein’s regime, and the investigation and prosecution of the Matrix Churchill defendants and similar cases. The bare statistics of the Scott inquiry show the difference between it and the behind-closeddoors inquiries discussed earlier: 80 days of public hearings were devoted to examining more than 60 witnesses (including a succession of ministers), a further 15 witnesses were examined in closed sessions, and written evidence was received from nearly 200 other witnesses. The witness testimony tells only part of the story, however; in total the inquiry team read more than 200,000 pages of documents. Despite its thoroughness, in many ways the Scott inquiry demonstrates the abiding risks of inquiry by judges. The public hearings were revealing and gave ample opportunity to subject ministers and officials to uncomfortable scrutiny. The process as a whole, however, was drawn out, exhaustive, and exhausting—it cast a shadow over nearly the whole of John Major’s second government. Damning as many of the report’s findings were on the extent of duplicity by ministers, they were couched in legalese. Notwithstanding the report’s length, remarkably it lacked an executive summary to guide its readers—so deterring all but the most dogged. This political naivety was perhaps an inevitable by-product of the choice of a commercial judge to undertake the inquiry. In a tense Commons debate on February 26, 1996, the Major government rejected some of Scott’s findings about the use of public interest immunity certificates in the Matrix Churchill case and, due perhaps to successful manipulation of the process, survived by a single vote. A skeptical Rupert Allason (Nigel West, the author of numerous books on security and intelligence) was persuaded to vote for the government by a last-minute concession on the future use of Public Interest Immunity (PII) certificates. No ministers resigned despite clear criticism in the report, some changes were quietly announced months later to the operation of public interest immunity,18 and Scott’s major recommendations for reform of arms control and export licensing remain unimplemented to this day.19 THE RATIONALE FOR ESTABLISHING JUDICIAL INQUIRIES A public inquiry into an alleged scandal or security lapse can be evaluated according to several criteria: expertise and impartiality of the inquiry

102

Commissions of Inquiry and National Security

personnel, depth of analysis of the report, procedural fairness, timeliness, economy, transparency of the process, and public accessibility of any hearings. Judicial inquiries certainly rank highly on impartiality grounds when compared to internal inquiries, those conducted by a retired civil servant, or even a departmental inquiry conducted in private by a senior lawyer. The extent to which the inquiry process and report brings political and public closure to the events surrounding its establishment is likely to depend on an amalgam of these factors. Moreover, it will be readily appreciated that pursuit of some of these concerns directly contradicts others—procedural fairness and depth of analysis are in direct tension with the speed and economy of the inquiry process, for example. Bearing these factors in mind, the principal reason why governments resort to inquiries by judges is to gain public credit by holding an impartial investigation. In the common law world, judges are on the whole trusted as neutral figures who are above the political fray. The UK government’s 2004 consultation paper Effective Inquiries affirmed the view that “it can be appropriate for judges to chair inquiries, because their experience and position make them particularly well-suited to the role.”20 As some writers term it, there is an attempt here to borrow the authority of the judiciary’s reputation for impartiality and rigor. Judges are appointed, Brian Thompson argues, “because they bring to such inquiries the symbolic qualities of independence and impartiality.”21 Judges are expert sifters of facts and are used to analyzing and reaching conclusions on complex matters. Beatson reaches the following conclusion: The “skills” argument is strongest where the task of the inquiry is solely to find facts. It is less compelling where issues of social or economic policy with political implications are involved.22

Two Canadian judicial commissions of inquiry exemplify the ability of judges on appropriate occasion to inquire thoroughly and impartially into the sometimes murky world of intelligence. The McDonald Commission of Inquiry into wrongdoing by the security branch of the Royal Canadian Mounted Police was one of the most thorough investigations in this genre.23 Its lengthy and detailed report not only catalogued abuses by the RCMP but also recommended the creation of a new civilian agency (the Canadian Security Intelligence Service) and an oversight structure incorporating a privy counselors’ committee (the Security Intelligence Review Committee) and an inspector-general that has been an influential model for similar reforms in several other countries. The O’Connor Commission report into the Arar affair similarly broke entirely new ground for a judicial inquiry in this field. Established to examine the conduct of Canadian officials in relation to the rendition of Maher Arar, it produced a forensic analysis examining in the process 21,500 government documents and 83 witnesses (including ministers, civil servants,

The Role of Judges

103

and intelligence and law enforcement officers) during some 45 days of public and 75 days of in camera hearings.24 The factual report found that Arar had been tortured by Syrian authorities and that it was very likely the supply of inaccurate information by Canadian officials concerning him to the United States that had led to the U.S. decision to remove him to Syria. Its findings resulted in an official apology and payment of compensation to Arar. Despite the failure of U.S. or Syrian authorities to cooperate and legal challenges brought by the Canadian government to parts of the procedure, the inquiry nevertheless succeeded in laying bare arrangements for international cooperation in intelligence to an unprecedented extent and made valuable recommendations for upholding legality, constitutionalism, and human rights in this most sensitive field. If these are the strengths of judicial inquiries, there is also a more negative side to the picture. On the dark side, the legal processes employed by inquiries can sometimes be lengthy and impenetrable to members of the public. There is a striking contrast, for example, between the relative simplicity, informality, and relative accessibility of the public hearings of the current Iraq inquiry chaired by Sir John Chilcot and those of earlier, judicial inquiries such as the Hutton or Saville inquiries. It is, however, an oversimplification to blame judicial chairs of inquiries for excessive proceduralism. Indeed, on occasion they have been criticized by participants for too little in the way of procedural protection. At the Scott inquiry, the former foreign secretary Sir Geoffrey Howe accused Lord Justice Scott of procedural unfairness in departing from the procedural standards to protect individuals giving testimony laid down in 1966 by the Salmon Commission following Profumo. He criticized both Scott and the inquiry counsel, Presiley Baxendale QC, describing them as a “doublebarrelled inquisition.”25 (Howe himself direct had inquiry experience in his earlier career at the Bar as counsel appearing at the Aberfan disaster inquiry.) Scott’s rejoinder was that to have allowed legal representation of witnesses in the inquiry proceedings and to have given them the right to cross-examine other witnesses would have added exponentially to both the length and complexity of an already drawn-out process.26 Bearing in mind the experience of the Saville inquiry into the events of Bloody Sunday in Londonderry in January 1972, that point seems well taken. Even before delivery of the Saville report (in June 2010), there had been repeated public criticism over the delay and the cost (in excess of £185 million) of the inquiry. In early 2010, Louis Blom-Cooper QC concluded: As to delay, the time taken to report on the tragic events of January 30, 1972 tells its own tale. Whereas Lord Widgery completed his task in 11 weeks (February to April 1972) Lord Saville has taken over 12 years. The former was slipshod, the latter the direct opposite. The conduct of the Inquiry was certainly not careless, save for its lack of concern for the time taken and the ensuing cost of completing its task.27

104

Commissions of Inquiry and National Security

There is the risk also that complexity and delay may be added to inquiry procedures as a result of legal challenges. For example, former service personnel successfully argued that their lives might be at risk if they were not granted anonymity and if they were compelled to give evidence to the Saville inquiry in Londonderry; the evidence was therefore heard in London instead.28 There is no doubt that inquiry has a duty of fairness of witnesses (and indeed not to expose them to serious danger) that has to be balanced with its search for truth. Equally, but in a rather different way, the procedures in the Arar inquiry were made substantially more complex as a result of government challenges to uphold secrecy. The commissioner, Justice Dennis O’Connor, was driven to the expedient of in effect holding parallel open and closed inquiries to reconcile the conflicting demands of public accountability and governmental secrecy. The experience led him to recommend that future similar inquiries be conducted in private, as indeed was the case with the later Iacobucci inquiry into other rendition allegations.29 The result was a much speedier inquiry than Arar without any obvious lack of independence or fairness as a result.30 THE APPROPRIATENESS OF JUDGES In countries with a written constitution embodying a separation of powers there can be a constitutional objection to judicial involvement. After the experience of the controversy surrounding the Warren Commission (chaired by the chief justice) into the assassination of John F. Kennedy, judges in the United States have been notoriously reluctant to take on inquiry roles. Indeed, Justice Blackmun went so far as to argue the following in a 1989 Supreme Court decision: The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action.31

No such rigid separation of powers exists in countries following the Westminster model. Nevertheless, general concern about the extrajudicial use of judges has tended to focus on the questions of whether the tasks that they are asked to undertake are always appropriate for judges and on the dangers of involvement in party political controversy.32 So far as the first question is concerned, judicial involvement seems most justified where a major part of the exercise is to determine the facts in an impartial fashion. Most of the aforementioned instances would fall into this category, but equally often the terms of reference of an inquiry include the making of recommendations. Moreover, some security-related inquiries have been purely policy oriented—for instance, the Radcliffe and Security Commission reports on security procedures. Here the exercise is more exec-

The Role of Judges

105

utive than judicial. Wherever an inquiry has a policy element, there will always remain at the end of the day a political choice whether to implement the recommendations made by the judge’s report. As to the second concern (fear of involvement in political controversy), there is a danger that a government faced with some pressing crisis may seek to deflect criticism and buy time by sheltering behind the appointment of a figure with an appearance of impartiality. Whatever the merits of this criticism, in some fields where judges have been asked to conduct inquiries the broadly bipartisan nature of security policy means that it applies less stringently here than in other controversial fields. A retired law lord, Lord Simon of Glaisdale, argued the following in 1996: Every time that a judge is called to conduct [a difficult and controversial] inquiry, he is embroiled in a controversial issue and his detachment may be compromised. Indeed the reputation of the judiciary as a whole may be compromised.33

The danger that involvement in such work may compromise a judge’s reputation was amply demonstrated by the controversy surrounding Lord Hutton’s report.34 The inquiry was established in haste following the death of Dr. David Kelly, who had committed suicide after being publicly identified in controversial circumstances as a possible source for a BBC news story suggesting that the dossiers of intelligence published prior to the invasion of Iraq had been manipulated for political reasons. Kelly had previously given evidence to the Intelligence and Security Committee (in private) and televised testimony to the Foreign Affairs Select Committee. The Hutton inquiry soon became the focus for a number of loosely related issues, not only in the war of words between the government and the BBC over claims that the dossiers of intelligence had been altered or were misleading, but more generally over the state of intelligence prior to the war.35 Although reports of Hutton’s hearings dominated the news during July and August 2003 and made the legal personnel involved into minor celebrities, their value perhaps lay more as an exercise in public accountability rather than in eliciting new information. Satisfying as the public spectacle of cross-examination before a law lord may seem, it is unclear that in practice it brings to light qualitatively different evidence than a parliamentary or other investigation. Unquestionably, some of the witnesses (ministers particularly) postured before the inquiry, and, although they may have found the experience of cross-examination unsettling, they nonetheless emerged essentially unscathed. The two positive outcomes of the Hutton inquiry were to quash the wilder conspiracy theories circulating surrounding Kelly’s death and the valuable service the inquiry performed in publishing much previously undisclosed documentary material on its Web site. The report was, nevertheless, widely criticized as naive and one-sided in exonerating ministers and officials of wrongdoing.36 Its publication resulted

106

Commissions of Inquiry and National Security

in the resignation of both the director-general and the chairman of governors of the BBC. On the wider questions concerning intelligence, however, the Hutton report failed to bring closure, and its findings exonerating ministers and officials have been repeatedly undermined by evidence that has continued to emerge on the shortcomings of the intelligence, both to the Butler Review37 and to the current Iraq inquiry.38 RELATIONSHIP TO LEGAL PROCEEDINGS In this final section we turn to the specific difficulties that judicial inquiries pose with regard to the judiciary’s main area of work—the conduct of legal proceedings. An undoubted difficulty posed by inquiries involving judges into security breaches concerns their relationship with criminal proceedings. Delay in holding an inquiry until the conclusion of a prosecution means postponing any necessary changes in procedures and risks undermining public confidence while a report’s conclusions are awaited perhaps following a high-profile official secrets case. On the other hand, an inquiry cannot be announced without the risk of prejudice to pending or current proceedings. In Britain these potential obstacles are overcome by including within the terms of reference of the Security Commission cases where there is good reason to think that security had been breached and by delaying the announcement of the investigation until any criminal trial has been concluded. The commission’s practice is not to take evidence from persons outside government service while proceedings are current. A second difficulty relates to the status of prejudicial material received in the course of a judicial inquiry. This became a major cause of controversy in the case of the royal commission established by the Canadian government (comprising two Supreme Court of Canada justices) following the defection of Igor Gouzenko from the Russian embassy in Ottawa in 1946.39 The proceedings of the Kellock-Taschereau Commission subsequently became notorious. A number of individuals were arrested in February 1946 and held incommunicado until their (unrepresented) appearances before the royal commission, apparently to prevent them receiving legal advice to refuse to answer questions. Those who cooperated with the commission later found that this testimony was used against them in criminal trials, whereas had they objected it would have been inadmissible.40 Apart from the specific difficulties raised by criminal proceedings there is more generally a paradox concerning the use of judges to investigate questions touching on security and intelligence. The courts themselves have long recognized that decisions based on national security are for the government and that judges have neither the necessary information nor the competence to assess these questions. Famously in the 1984 Government Communications Headquarters (GCHQ) case (concerning the legality of the government’s ban on trade union membership), Lord Diplock explained:

The Role of Judges

107

National security is the responsibility of the executive government; what action is needed to protect those interests is . . . a matter upon which those upon whom the responsibility rests, and not the courts of justice, must have the last word. It is par excellence a non-justiciable question. The judicial process is totally inept to deal with the sort of problems which it involves.41

This approach has been followed both in wartime and in peacetime in a line of judicial decisions going back to the First World War.42 Following 9/11 it has been marginally qualified in recent years. For example, where the government advances arguments that are contradictory or has chosen measures that interfere disproportionately with individual rights then the courts do now intervene—as the House of Lords’ landmark decision in the Bellmarsh detainees’ case shows.43 Moreover, new legal procedures have been introduced that allow for greater legal scrutiny, such as the Special Immigration Appeals Commission and, more generally, special advocates, who are security cleared. These innovations provide for the limited introduction of intelligence into legal proceedings in a way consistent with fair trial rights: that is, they allow some form of adversarial challenge to intelligence material even if normal trial procedures, such as full cross-examination, cannot apply. One side effect is that many more members of the Bar than previously now have some experience of involvement with legal issues involving intelligence. The influence of those experiences when these practitioners reach the Bench may be significant. Nevertheless, the longstanding constitutional objection to the judiciary overruling the government on matters of national security remains, and, indeed, in the Bellmarsh decision it was relied on by the majority of the judges in holding that they could not question the government’s assertion that there existed a public emergency. Bearing this in mind, it appears paradoxical, then, that government ministers are prepared to invite senior members of the judiciary to report on these matters with such regularity. There are clearly potential hazards in doing so. Increased familiarity with the closed world of intelligence could potentially have one of two effects on the judiciary, either to reinforce their reluctance to gainsay government assertions of national security or to make them more skeptical of these assertions. There is some suggestive evidence pointing each way. Perhaps the high point of judicial deference to governmental claims of national security in modern times came in Lord Denning’s 1977 judgment in the case of an unsuccessful challenge brought by the American journalist Mark Hosenball to his deportation on national security grounds. His Lordship stated that the rules of natural justice (which would have normally required disclosure of material to allow Hosenball to challenge the decision) had to be “modified” when security was at stake: But this is no ordinary case. It is a case in which national security is involved, and our history shows that, when the state itself is endangered, our cherished freedoms

108

Commissions of Inquiry and National Security

may have to take second place. Even natural justice itself may suffer a set-back. Time after time Parliament has so enacted and the courts have loyally followed.44

In reaching this conclusion, Lord Denning made reference to the home secretary’s accountability to Parliament and, referring to his own report on the Profumo affair, speculated that the home secretary’s information concerning Hosenball must have come from the Security Service.45 In reality, ministerial accountability was illusory, however, as the home secretary of the day sheltered behind well-worn conventions on withholding national security information to Parliament, and the government’s case itself made no claims about the Security Service. In a sweeping conclusion remarkably devoid of historical accuracy, Lord Denning stated the following: There is a conflict here between the interests of national security on the one hand and the freedom of the individual on the other. The balance between these two is not for a court of law. It is for the Home Secretary. He is the person entrusted by Parliament with the task. In some parts of the world national security has on occasions been used as an excuse for all sorts of infringements of individual liberty. But not in England. Both during the wars and after them, successive ministers have discharged their duties to the complete satisfaction of the people at large.46

The imprint of the judge’s own brush with the secret world seems fairly unmistakable in this instance. At the more skeptical end of the spectrum are the comments of Lord Scott (who had conducted the Matrix Churchill inquiry between 1992–96) in the Bellmarsh detainees’ case. While deferring to the secretary of state on whether there was a public emergency within Article 15 of the European Convention on Human Rights, Lord Scott expressed “very great doubt” whether it threatened the life of the nation and referred to the “faulty intelligence assessments” prior to the Iraq war.47 In his speech, Lord Hoffmann was still less guarded, referring to “the widespread scepticism which has attached to intelligence assessments since the fiasco over Iraqi weapons of mass destruction.”48 It is fair to assume that the close familiarity of first Lord Scott himself and then a brother law lord, Lord Hutton, with intelligence material as a result of each conducting inquiries with a substantial intelligence component may have contributed to this skepticism at the highest judicial levels. The mystery surrounding a government invocation of national security that would at one time have awed the courts and led them to defer to government had been considerably lifted through increased public and professional familiarity with the secret world. A number of other instances can be documented in which, despite having been involved in investigations into security and intelligence matters, judges have nevertheless sat to hear cases on similar or related issues.49 It is at least arguable that a judge who has inquired into a matter in an official inquiry should thereafter recuse himself or herself from sitting to hear cases on similar issues in the interests of the appearance of fairness. Where a

The Role of Judges

109

judge is publicly associated through an inquiry and report with a controversial policy field, public confidence in his or her detachment and impartiality may suffer.50 In a sense this point has nothing to do with security, but the argument can be made more strongly in that area because of the presumption that the court will not inquire into the evidence of the government’s assertion of national security interests. A judge who has special expertise in the field or knowledge acquired through other duties may at least be tempted to use it to supplement the argument in court and evidence presented that alone should influence the decision. CONCLUSION Peter Hennessy has rightly described judges who conduct inquiries as constitutional “auxiliaries.”51 Ministers inevitably call on judges at times of crisis as a kind of exceptional resource because of their public reputation for independence, thoroughness in fact finding, and their distance from the political process. In doing so, politicians may win in effect a temporary reprieve: acute public pressure is lifted, but controversy may turn out only to have been postponed until the publication of the inquiry report. The interval in some cases has stretched to several years. The short-term gain may be at the cost, however, of prolonging public disclosures and embarrassment as the inquiry proceeds. Moreover, judges are not medieval alchemists— they cannot remove the politics from an inherently controversial issue or the necessity of making a difficult policy choice following an investigation and report any more than they can turn lead into gold. A judicial inquiry has in effect to balance a number of competing demands, not least fairness, openness, and, where appropriate, secrecy. The interests of witnesses and the public interest may be diametrically opposed. This is a genuine dilemma that can be seen repeating itself in a number of highprofile inquiries. An inquiry that disregards the proper concerns of witnesses undermines its authority based on fairness. Conversely, an inquiry that too readily succumbs to claims of secrecy undermines public confidence in the exercise from the point of view of public accountability. Used sparingly and appropriately, judicial inquiries can help to restore public confidence at times of political crisis. Excessive or inappropriate use of judicial inquiries may, however, not only weaken their effectiveness but also risks damaging the integrity and reputation of the judiciary upon which the political classes draw at such moments. NOTES 1. A. Simpson, In the Highest Degree Odious (Oxford: Oxford University Press, 1992), pp. 265 and 379. 2. P. Hennessy, Whitehall (London: Fontana, 1989), p. 568. 3. Report of the Committee on Security Procedures in the Public Service, Cmnd. 1681 (1962).

110

Commissions of Inquiry and National Security

4. Report of the Tribunal Appointed to Inquire into the Vassall Case, Cmnd. 2009 (1963). 5. Hennessy, Whitehall, p. 568. 6. Report of the Committee of Privy Counsellors Appointed to Inquire into “D” Notice Matters, Cmnd. 3309 (1967). 7. Lord Denning’s Report: The Circumstances Leading to the Resignation of the Former Secretary of State for War, Mr. J. D. Profumo, Cmnd. 2152 (1963). 8. Ibid., para. 5. 9. Lord Denning, Landmarks in the Law (London: Butterworths, 1984), pt. 13. 10. P. Knightly and C. Kennedy, An Affair of State (London: Jonathan Cape, 1987); and A. Summers and S. Dorril, Honeytrap (London: Weidenfeld & Nicolson, 1988). 11. Royal Commission on Tribunals of Inquiry, Cmnd. 3121 (1966), paras. 21 and 42. 12. I. Leigh and L. Lustgarten, “The Security Commission: Constitutional Achievement or Curiosity?” Public Law (1991): 215–32. 13. Security Commission, Report of the Security Commission on the Case of Michael John Bettaney, Cmnd. 9514 (1985). 14. For a detailed breakdown by year until 2005, see HC Debs. vol. 436 (September 12, 2005), cols 435–36 w. 15. Royal Commission on Intelligence and Security, Fourth Report (Canberra: Australian Government Printing Service, 1977). 16. Royal Commission on Intelligence and Security, General Report (Canberra: Australian Government Printing Service, 1984). 17. Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions, HC 115 (1995–96). I. Leigh. and L. Lustgarten, “Five Volumes in Search of Accountability: The Scott Report,” Modern Law Review 59, no. 5 (1996): 695; F. Ridley and B. Thompson, eds., Under the Scott-Light: British Government Seen through the Scott Report (Oxford: Oxford University Press, 1997); A. Tomkins, The Constitution after Scott: Government Unwrapped (Oxford: 1998). 18. C. Forsyth, “Public Interest Immunity: Recent and Future Developments,” Cambridge Law Journal 56, no. 1 (1997): 51; M. Supperstone, “A New Approach to Public Interest Immunity?” Public Law (1997), 211–14. 19. L. Lustgarten., “The Arms Trade and the Constitution: Beyond the Scott Report,” Modern Law Review 61, no. 4 (1998): 499–514; Z. Yihdego and A. Savage, “The British Arms Export Regime: Progress and Challenges,” Public Law (2008): 546–65. 20. Department of Constitutional Affairs, Effective Inquiries (Consultation Paper, December 2004), para. 45. 21. B. Thompson, “Introduction” to Special issue on the Scott Inquiry, Parliamentary Affairs 50, no. 1 (1997): 183. 22. J. Beatson, “Should Judges Conduct Public Inquiries?” Law Quarterly Review (2005): 221. 23. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Second Report, Freedom and Security Under the Law (Ottawa: Ministry of Supply and Services Canada, 1981). 24. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar: Analysis and Recommendations (Ottawa: Minister of Public Works and Government Services, 2006), http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/maher_arar/ 07-09-13/www.ararcommission.ca/eng/26.htm; A. Wright, “Fit for Purpose? The Accountability Achievements, Challenges, and Paradoxes of Domestic Inqui-

The Role of Judges

111

ries into International Intelligence Cooperation,” in Intelligence Cooperation in an Era of Accountability and Human Rights, ed. H. Born, I. Leigh, and A. Wills (London: Routledge, 2010). 25. Lord Howe, “Procedure at the Scott Inquiry,” Public Law (1996): 445. 26. Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions, HC 115 (1995–96); Sir Richard Scott, “Procedures at Inquiries: The Duty to be Fair,” Law Quarterly Review, no. 111 (1995): 596.. 27. L. Blom-Cooper, “What Went Wrong on Bloody Sunday: A Critique of the Saville Inquiry,” Public Law 61 (2010): 10. 28. R v. Lord Saville of Newdigate, ex p B (no. 2) [2000] 1 WLR 1855; R (A) v. Lord Saville [2002] 1 WLR 1249. 29. Iacobucci Inquiry, Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati, and Muayyed Nureddin, 2008, http://www.iacobucciinquiry.ca/en/documents/final-report.htm. 30. Wright, “Fit for Purpose?” 31. Mistretta v. United States, 488 U.S. 361 (1989). 32. S. Shetreet, Judges on Trial (Amsterdam: 1976), pp. 354–63; G. Zellick, “Comment,” Public Law 1 (1972); R. Stevens, The Independence of the Judiciary: The View from the Lord Chancellor’s Office (Oxford: 1993), pp. 97–101, 113–18, 170–71; R. Stevens, The English Judges: Their Role in the Changing Constitution (Oxford: Hart Publishing, 2002), pp. 28–29, 83–85; Beatson, “Should Judges Conduct Public Inquiries?” 33. HL Debs. vol. 572 ( June 5, 1996), col. 1282. 34. Lord Hutton, Report of the Inquiry into the Circumstances Surrounding the Death of Dr. David Kelly C.M.G., HC 247 (2003–04), http://www.the-hutton-inquiry. org.uk. 35. R. Aldrich, “Whitehall and the Iraq War: The UK’s Four Intelligence Enquiries,” Irish Studies in International Affairs 16 (2005): 73–88; P. Gill, “The Politicisation of Intelligence: Lessons from the Invasion of Iraq,” in Watching the Spies: Maintaining Accountability over the World’s Secret Intelligence Agencies, ed. H. Born, L. Johnson, and I. Leigh (Washington, DC: Potomac Books, 2005); A. Glees, “Evidence-Based Policy or Policy-Based Evidence,” Parliamentary Affairs 58, no. 1 (2004): 138. 36. For Lord Hutton’s defense of his own position see, however, Lord Hutton, Evidence to the Public Administration Committee, May 13, 2004. 37. Review of Intelligence on Weapons of Mass Destruction, report of a committee of privy counselors HC898, 2004. 38. Iraq Inquiry, http://www.iraqinquiry.org.uk/. 39. Report of the Royal Commission [on Espionage] (Ottawa: E. Cloutier, Printer to the King, 1946). 40. R. Whitaker and G. Marcuse, Cold War Canada: The Making of a National Insecurity State, 1945–1957 (Toronto: University of Toronto Press, 1994), pp. 52–74; I. Leigh, “Secret Proceedings in Canada,” Osgoode Hall Law Journal 34 (1996): 113–73. 41. Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, 412. 42. L Lustgarten and I. Leigh, In from the Cold: National Security and Parliamentary Democracy (Oxford: Oxford University Press, 1994), ch. 12. 43. A v. Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 WLR 87. 44. R v. Secretary of State for the Home Department ex parte Hosenball [1977] 3 All E.R. 452, 457.

112

Commissions of Inquiry and National Security

45. Ibid., 460. 46. Ibid., 461. 47. A (FC) and Others (FC) v. Secretary of State for the Home Department [2004] UKHL 56, para. 154. 48. Ibid., para. 94. 49. Lustgarten and Leigh, In from the Cold, pp. 490–91. 50. J. Griffith, The Politics of the Judiciary, 4th ed. (London: Fontana, 1991), ch. 2. 51. Hennessy, Whitehall, p. 540.

CHAPTER 7

The Politics of U.S. National Security Commissions Kenneth Kitts

Federal government advisory commissions have a long, if somewhat uneven, history in American politics. The first panels appeared just after the founding of the republic in the late 18th century. Commissions continued to dot the political landscape in subsequent years, and the number of advisory bodies increased dramatically in the 20th century.1 Presidents, members of Congress, and even cabinet secretaries have empanelled inquiries to examine issues as diverse as society itself. Rural poverty, drug abuse, pornography, and urban riots are just a few of the topics that have been the subject of commission-based reviews. National security commissions represent one particular type of federal advisory body. They are among the newest additions to the universe of ad hoc panels. Until World War II, there was an aversion to using commissions on major issues involving foreign policy or the defense apparatus. That began to change in 1941 when President Franklin D. Roosevelt asked Supreme Court Justice Owen Roberts to head a five-member panel tasked with examining the Japanese attack on Pearl Harbor. The creation of the Roberts Commission set a precedent that others soon would follow. In the postwar era, presidents and other officials have turned to national security commissions to deal with issues ranging from domestic spying to the war in Iraq. This chapter focuses on the role and function of national security commissions in the federal advisory system. Special attention is given to the politics that lead to the appointment of these panels and their organizational dynamics. Significantly, the evidence suggests that the use of security

114

Commissions of Inquiry and National Security

commissions must be understood in the context of executive-legislative clashes over control of foreign and defense policy.

AD HOC ADVISORY GROUPS IN AMERICAN POLITICS American decision makers have long recognized the occasional need to reach outside normal bureaucratic channels for advice on difficult issues. As early as 1794, George Washington deemed it necessary to send a group of respected men to the scene of the Whiskey Rebellion in western Pennsylvania. The three commissioners were to “repair to the scene of the insurrection . . . to confer with any bodies of men or individuals” in an attempt to peacefully resolve the crisis.2 Washington’s decision set a precedent that opened the door for his successors to create specialized investigatory bodies when necessary. The early appearance of these bodies in the United States owed much to the British tradition of the royal commission.3 Royal commissions have long enjoyed greater stature than government commissions in the United States. Partly this is attributable to differences between the two countries’ political systems. The Madisonian system of separated powers contrasts sharply with the parliamentary principle of majority party control. In the United States, this means that a certain level of tension will necessarily exist between the executive and legislative branches of government. Lawmakers hold that “Congress has the right, and need, to make its own investigations and that the best advice comes from its own members.”4 Conversely, presidents have been reluctant to endorse or cooperate with congressional investigations of executive branch activities. Some scholars have argued that parliamentary systems provide a better, or at least less adversarial, environment for commission-based inquiries. Writing in 1945, Carl Marcy framed the issue succinctly: No royal commission operates without the actual or implied consent of Parliament; no royal commission would be suggested by the Cabinet unless Parliament would approve. In the United States, Congress is free to have its own commissions but lacks both the tradition and the perspective for great success. The President can, within limits, engineer his own investigations but proposals for legislation which may grow out of such investigations may be met by an indifferent Congress—made so perhaps by reason of feeling that the President has encroached on a legislative prerogative.5

Marcy’s perspective reflects the tendency of many American political scientists to look longingly at the parliamentary model as way of reducing institutional rivalry. His assessment, however, overstates the degree of unity that exists in parliamentary systems. Differences often exist between parliament and government regarding the work of commissions. Even so,

The Politics of U.S. National Security Commissions

115

differences are relative, and the dynamics of parliamentary government help keep executive-legislative clashes in check. Despite these challenges, blue-ribbon commissions have proven to be durable fixtures in American politics. They experienced something of a boom in the 20th century. Much of this expansion can be traced to the growth of the administrative state in the years following the Great Depression and World War II. Historian Hugh Davis Graham notes that executive advisory commissions have been broadly reflective of the presidency itself, enjoying “growth and power” in the immediate postwar period but also suffering from the “electoral disruptions” and partisan attacks of later years.6 When it comes to modern-day commissions in the United States, variety is the order of the day. Panels vary significantly with regard to origin, scope, duration, and composition. This lack of consistency makes it exceedingly difficult to classify or even count federal advisory committees with precision. A 1991 report by the General Accounting Office was unusually candid. “No one knows,” stated the report, “exactly how many miscellaneous boards, committees, and commissions exist at any given time.”7 The creation of federal advisory panels occurs at three levels: departmental, congressional, and presidential. Commissions created at the departmental level typically report to a cabinet secretary or agency supervisor. These bodies tend to deal with procedural questions far removed from matters of grand strategy or constitutional design. Also operating at the bureaucratic level are ad hoc interagency groups created to enhance policy coordination or resolve jurisdictional disputes between offices. The complexity of the system is compounded by legislative involvement in the advisory process. Congress has occasionally appointed its own blueribbon commissions.8 Perhaps the best-known examples of this type of group were the two Hoover Commissions on the Organization of the Executive Branch (1947–49 and 1953–55). Both of these panels were created by Congress and composed of members selected by leaders in the House and Senate. Their reports, though shared with presidents Truman and Eisenhower, were tailored specifically for congressional consumption. Some critics find congressional commissions to be particularly objectionable on grounds that lawmakers get paid to perform the very tasks—policy evaluation and oversight—that are often delegated to the ad hoc body.9 Others find value in the practice of asking “disinterested men of the highest probity” for assistance in dealing with issues “which congressional committees have neither the time nor the detachment to handle wisely and fairly.”10 The third source of authority for a commission is the president. When the departmental, interagency, and congressional panels are pared from the list of federal advisory bodies, there remain a small number—generally less than 5 percent of the total—that may be loosely classified as presidential commissions.11 And loosely is indeed the operative word. Some groups, such as the Warren Commission on the assassination of President Kennedy, are easy to classify as presidential, being created by executive order, composed

116

Commissions of Inquiry and National Security

Table 7.1 Presidential Role in National Security Commissions Type

Characteristics

Example

Strongly Presidential

• Created by executive order or other presidential act • All members appointed by president • President designated as sole recipient of final report

1975 Commission on CIA Activities within the United States (Rockefeller)

Moderately Presidential

• Created by executive order or public law • Membership is shared responsibility; president appoints a majority of members • President and Congress designated as corecipients of final report

1994 Commission on the Roles and Capabilities of the U.S. Intelligence Community (AspinBrown)

Loosely Presidential

• Created by public law with presidential consent • Membership is shared responsibility; president appoints a minority of members • President and Congress designated as corecipients of final report

2002 National Commission on Terrorist Attacks upon the United States (Kean)

Non-Presidential

• Created by public law with or without presidential consent • Congress controls membership selection • Congress designated as sole recipient of final report

1998 Commission to Assess the Ballistic Missile Threat to the United States (Rumsfeld)

exclusively of members chosen by the president, and reporting directly to the White House. Others present more of an analytical challenge. Thomas Wolanin wrote in 1975 that a commission could not be considered presidential unless all the members were appointed directly by the presi-

The Politics of U.S. National Security Commissions

117

dent.12 But that degree of White House control over commissions has become increasingly rare. By the end of the 1980s it was clear that Congress did not intend to sit on the sidelines and watch the president pack important panels with his own appointees. The 1994 Commission on the Roles and Capabilities of the United States Intelligence Community (Aspin-Brown Commission) is indicative of the change. Of the 17 members appointed to that panel, President Clinton selected only 9.13 More recently, President George W. Bush appointed only one member, albeit the chair, to serve on the commission investigating the terrorist attacks of September 11, 2001. Table 7.1 illustrates the range of presidential involvement in blue-ribbon investigations of national security issues. This recent trend of commissions created by joint executive-legislative action has given rise to talk of hybrid, or national, commissions in the United States. Because national commissions owe their very existence to both Congress and the president, they would seem well positioned to transcend the old institutional rivalries that have hindered the work of commissions past. It is a seductive idea. Could these panels at last give the United States its equivalent of a royal commission? Evidence from the case of the National Commission on Terrorist Attacks upon the United States (9/11 Commission) is not encouraging. As will be seen, that panel was buffeted by an array of political forces as broadly based and intense as any in U.S. history.

COMMISSIONS AND NATIONAL SECURITY Most previous studies of U.S. commissions have been silent on the question of using these bodies to address national security concerns.14 Partly this is a function of age. The initial works on the topic were written in an era when commissions were created to deal with issues like campus unrest, urban disturbances, and poverty. Writing in 1970, Frank Popper explained the absence of national security commissions by noting that such questions were considered “too sensitive to entrust to a group as public and as independent as a commission.”15 A 1975 congressional report was similarly dismissive. There is little problem of overlapping or duplication of advisory committees in the crucial area of the overall substance of United States foreign policy, its direction and major goals, and its relationship to national security. The principal problem may actually be whether there are significant gaps that need filling. Few advisory committees deal with the central political issues of foreign policy and national security.16

By the 1970s and 1980s, however, issues such as SALT II, the Strategic Defense Initiative, and Iran-Contra loomed large on the public agenda. These issues also generated bitter policy struggles between the president

118

Commissions of Inquiry and National Security

and Congress. As a by-product of the times, commissions began to play a more visible role in national security debates. Gerald Ford appointed a commission in 1975 to examine the Central Intelligence Agency. Jimmy Carter and Ronald Reagan followed suit, creating panels to study issues ranging from Americans missing in Vietnam to nuclear deterrence. Graham was the first to recognize the significance of this development. It has been with major policy commissions that Reagan has moved most dramatically—witness the Greenspan Commission on Social Security, the Scowcroft Commission on the MX missile, and the Kissinger Commission on Central America. Not only has President Reagan boldly reasserted the presidential initiative in commission inquiries, but he has exercised it in the crucial and sensitive areas of national defense and foreign policy which previously had been out of bounds for national commissions.17

Graham believed this expansion was a positive step. Noting that security matters had long been the focus of attention by royal commissions in the United Kingdom, he speculated that United States panels could enhance their prestige by tackling these high-profile issues.18 For the sake of historical accuracy, it should be noted that Popper, Graham, and others overstate the newness of national security commissions. In fact, blue-ribbon commissions had been used on defense and foreign policy issues prior to the 1970s, with some dating to the late 19th century.19 Moreover, President Franklin D. Roosevelt’s use of the blue-ribbon option after Pearl Harbor set a precedent that continues to resonate to this day. But most of the panels established in the first three decades after World War II were low-profile affairs. Some operated in complete secrecy.20 Others disbanded without issuing a final report.21 Consequently, it was easy to overlook these previous experiments and treat national security commissions as a new phenomenon. Significantly, there is considerable justification for suspecting that security panels might differ from their domestic policy counterparts. In 1966, Aaron Wildavsky famously observed that presidents possess greater resources, have more latitude to act, and are challenged less frequently on national security issues than on matters of domestic policy.22 As a result, the former “have consistently higher priority for Presidents.”23 This belief, formalized as the “two presidencies” thesis, has proved enormously influential in the discipline of political science. Even today, it remains the clearest statement on the relationship between executive power and national security. The importance of national security was also a central theme of Schlesinger’s The Imperial Presidency (1974).24 According to Schlesinger, presidential preoccupation with foreign affairs and defense has given rise to an expanded view of executive power—a view that has weakened the role of Congress and accorded the president more authority than the founding fathers intended. In The Personal President (1985), Theodore Lowi suggests

The Politics of U.S. National Security Commissions

119

that a key characteristic of the “plebiscitary presidency” is a desire to limit congressional intrusion into national security decision making. If the president is already under some kind of compulsion to maintain the initiative in the White House, he is least willing to share initiatives in the foreign policy field. No star was ever more jealous of the light.25

Though each of these works approaches the topic from a different perspective, there is a unifying theme: national security holds a special place in executive power prescriptions, and, as a result, presidents behave differently when these issues are in play. This suggests that presidents might be unusually attentive when commission activity extends into the arena of national security. In the early 1990s, critics suggested that the two presidencies thesis was losing its explanatory value.26 The end of the Cold War and the realities of interdependence had combined to blur the line that separates domestic and nondomestic issues. As a result, they argued, national security issues were losing their unique status. But while conceding to some modification of his original thesis, Wildavsky continued to make the case that the fundamental basis for distinguishing between the two types of policy remains intact. “The fact that foreign policy has become more like domestic policy does not mean that presidents cannot win,” he argued, “they simply must win differently.”27

BLUE-RIBBON COMMISSIONS AND THE WAR ON TERROR The terrorist attacks of 9/11 gave rise to a war on terror that has become the focal point of the American national security effort. In this environment, blue-ribbon inquiry has returned to the center stage of American politics. A host of investigatory and advisory commissions have been created to deal with national security concerns. For the purposes of this chapter, three of these panels stand out as particularly noteworthy: the 9/11 Commission, the commission on Iraqi weapons of mass destruction, and the commission on abuse of detainees at the Abu Ghraib facility in Iraq. Table 7.2 provides a summary overview of each commission in terms of structure and membership.

THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES Given the obvious comparison with Pearl Harbor, it was inevitable that the call would go out to create a special probe of the circumstances surrounding 9/11. The first discussion of a commission-based probe of 9/11

120

Commissions of Inquiry and National Security

Table 7.2 Comparison of Three Commissions in the War on Terror Method and Date of Creation

No. of Members and AppointSubpoena ment Authority Power

National Commission on Terrorist Attacks upon the United States (9/11 Commission)

Public Law 107-306

10 Members (9 appointed by congressional leaders; chair chosen by President Bush)

Yes

603 days

Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction (WMD Commission)

Executive Order 13328

9 Members (all appointed by President Bush)

No

419 days

Independent Panel to Review Department of Defense Detention Operations (Abu Ghraib Panel)

Memorandum from the secretary of defense

4 Members (all appointed by Secretary of Defense Rumsfeld)

No

104 days

Commission Name

November 27, 2002

February 26, 2004

Duration

May 12, 2004

came just one day after the horrors in New York, Washington, and Pennsylvania. Robert Torricelli, a New Jersey Democrat, stepped to the floor of the United States Senate on September 12 to urge a declaration of war against “a series of terrorist organizations.” Then Torricelli turned his attention to the question of accountability. The American people have trusted this Government through our intelligence communities to defend our Nation and its people and our varied interests. This has not occurred. It is my belief that the President of the United States should form a board of general inquiry to review the actions of the United States intelligence community and the failures which led to this massive loss of life and compromise of national security.28

Two weeks later, Torricelli announced he would pursue the idea as far as needed: “If I have to return to this Chamber every day of every week

The Politics of U.S. National Security Commissions

121

of every month,” he warned, “this Senate is going to vote for some board of inquiry.”29 Torricelli should have added “every year” to his threat, for the road to the 9/11 inquiry would take over a year and would encompass seven separate proposals. The main reason for the unprecedented delay in establishing a panel to examine the terrorist attacks was resistance from the Bush White House. Vice President Cheney took the lead in trying to thwart an investigation. A special probe, he warned, would divert time and attention away from the war on terror. The list of objections began to grow. In addition to being a distraction, a blue-ribbon inquiry would also waste resources and “tie up” key officials.30 By May, a new argument had entered the mix in the form of a charge, once again advanced most vigorously by Cheney, that another investigation would heighten the risk of leaks of sensitive information about United States intelligence. In an interview with CNN’s Larry King, Cheney expressed his concern that a new investigation would multiply potential sources of leaks and disclosures of information we can’t disclose. The key to our ability to defend ourselves and to take out the terrorists lies on intelligence. And we’re discussing such things as the president’s daily brief, which is the most sensitive product, if you will, of the intelligence community; it comes from our most sensitive and secret sources. If there are leaks from that document . . . we will lose the capacity to defend ourselves against future attacks.31

To underscore the danger, Cheney asserted that the joint House-Senate inquiry into 9/11, underway since February, had already created trouble through unwise disclosures. It is easier to describe than to explain the administration’s opposition to a blue-ribbon investigation in the months following September 11, 2001. Objectively, one could argue that for purely political reasons Bush should have acted quickly to create a presidential commission soon after the tragedy. That course of action would have taken the issue away from Congress and the Democrats. Sometimes the most obvious explanation for a phenomenon is also the best. And in the weeks and months after 9/11, the defining characteristics of Bush’s decision making were 1) a desire for maximum latitude of action and 2) an unusually strong penchant for secrecy. These two factors combined to create a visceral reaction to the idea that a group of luminaries from outside the government would be permitted to examine the executive branch and to question the administration’s actions before and on September 11. Bush’s strategy of delay and obstruction worked, and none of the seven commission proposals in the air appeared likely to pass as the first anniversary of the attacks approached. Then came a flurry of activity from an unexpected source—interest groups. But these were not typical interest groups. These were clusters of wives, husbands, sons, daughters, mothers, and fathers of 9/11 victims. Dubbed “the families” by the press, they proved

122

Commissions of Inquiry and National Security

to be an important and ultimately irresistible force for accountability in the 9/11 storyline. The growing organization and muscle of the families coincided with startling new press reports that cast doubt on administration decisions in the days leading up to the attacks. On May 15, CBS News revealed that President Bush had received an intelligence briefing on August 6, 2001, titled “Bin Laden Determined to Strike in United States.”32 For House minority leader Richard Gephardt, this was the final straw. Invoking the language of Watergate, he told the press that he would support a recent commission proposal in an effort to find out “what the White House knew about the events leading up to 9/11, when they knew it and, most importantly, what was done about it.”33 The cumulative weight of these developments began to take a toll on Bush’s political standing. An NBC News/Wall Street Journal poll in early June revealed that less than half the public thought the administration was being “open and candid” about the facts surrounding 9/11.34 Although Bush and his congressional allies were able to stall for another month, the movement had at last hit critical mass. Representative Tim Roemer sprung a legislative surprise when he revived the National Commission on Terrorist Attacks upon the United States, a reconfigured version of an earlier bill, and submitted it as an amendment to the upcoming Intelligence Authorization Act for 2003. Roemer’s amendment sparked intense debate in the House. The fight pitted Republicans loyal to Bush against an odd grouping that included most Democrats plus a handful of Republican lawmakers—many from districts around New York City—who were concerned that further delay could turn into a public relations disaster. Eventually, 25 of these Republicans broke ranks, and the Roemer amendment passed 218–189 in the wee hours of July 25.35 The Senate followed suit after the August recess, and by October 10 all that remained was for House and Senate negotiators to iron out last-minute differences in conference. But after having fought the proposal for over a year, Bush and Cheney were determined to make one last stand. They took issue with the commission’s subpoena power, arguing that 6 of the 10 members should have to agree before issuing a subpoena (Roemer’s original language specified that 5 members would be sufficient). The White House also took a dim view of the proposal that the panel be cochaired, with Bush picking one of the leaders and congressional Democrats selecting the other. Bush wanted the sole power to select the commission’s leader and made it clear to his lieutenants that he would not budge on either issue.36 In the end, Democratic conferees yielded to the administration’s demands. Congress approved the revised bill on November 15 and sent it to the White House for action. On November 27, 2002, President Bush signed Public Law 107–306, breathing official life into the National Commission on Terrorist Attacks upon the United States. Between the terrorist attacks of 9/11 and the creation of the commission, 14 months and 16 days had elapsed.

The Politics of U.S. National Security Commissions

123

The newly signed legislation called for a commission of 10 members. Of these, 2 would be selected by the Senate majority leader, 2 by the Senate minority leader, 2 by the House majority leader, and 2 by the House minority leader. The vice chair would be chosen through consultation between Democratic leaders in the House and Senate. And last but not least, 1 member—designated as the panel’s chair—would be appointed by the president. The commission was charged with examining “the facts and causes relating to the terrorist attacks of September 11, 2001.” The act specified that the commission make a final report to the president and Congress within 18 months of the bill’s signing.37 Standing beside Bush as he signed the commission into law was Henry Kissinger, the president’s choice to head the panel. Congressional Democratic leaders selected former Senate majority leader George Mitchell as vice chair. Other Democratic slots went to Tim Roemer (recently retired from his House seat), former Department of Justice official Jamie Gorelick, and Washington attorney Richard Ben-Veniste. The final Democratic seat went to Max Cleland, who only one month earlier had lost his Georgia senate seat in a bitterly contested race that saw President Bush use his clout to aid the challenger. On the Republican side, majority leaders Trent Lott and Bill Frist teamed up to appoint former senator Slade Gorton of Washington, former Nixon aide Fred Fielding, Reagan-era secretary of the navy John Lehman, and former Illinois governor James Thompson. Both Kissinger and Mitchell were embroiled in disputes regarding how much disclosure they would be required to make regarding contacts and client lists for their respective firms.38 Neither survived the controversy as commission members. Mitchell opted out on December 11, and Kissinger followed suit two days later. Senate minority leader Tom Daschle and Gephardt moved quickly to install Lee Hamilton, a former House member and seasoned veteran of Washington politics, as the new vice chair. By December 15, just two days after Kissinger’s resignation, Bush had identified a new chair for the commission: former New Jersey governor Thomas H. Kean. The first meeting of the National Commission on Terrorist Attacks upon the United States took place on January 27, 2003. The members agreed to the appointment of Dr. Philip Zelikow as the commission’s executive director. Zelikow presided over an impressively large staff. Over 60 individuals, ranging from public information specialists to attorneys to investigators, worked behind the scenes. The staff was divided into eight work teams, with each given its own assignment: al Qaeda and the organization of the 9/11 attacks, management of intelligence, counterterrorism policy, terrorist financing, border security, domestic law enforcement, transportation security, and the emergency response to the 9/11 attacks.39 The board heard its first witnesses on March 31, 2003, 19 months after the attacks and 4 months after Bush signed the commission into law. The

124

Commissions of Inquiry and National Security

session took place near the World Trade Center site (“Ground Zero”) in lower Manhattan. New York governor George Pataki was the first to appear. Next came Michael Bloomberg, mayor of New York City. Then came survivors and family members. It was an agonizing experience for all. The testimony of Lee Ielpi, while especially poignant, was indicative of the tone throughout the day: I come to you today as an ambassador for the dead and on behalf of the many others who toiled at Ground Zero. . . . My son Jonathan, a member of Squad Company 288 at the New York City Fire Department, was killed in the South Tower. I am a retired firefighter and a grieving father. I bring no agenda to this hearing. The only baggage I bear is a broken heart and a resolve that the terrible events of September 11th not be repeated.40

The relationship between the administration and the commission began to sour in the weeks following the initial public hearing. Although the specific points of disagreement shifted over time, the fundamental issue was always the same: access to documents and witnesses. It is difficult to overstate the importance of this conflict. It chewed up an enormous amount of the commission’s time—time that could have been devoted to the investigation itself. In fact, much of the story of the 9/11 Commission revolves around this conflict with the president, his advisers, and executive branch agencies. A pattern began to develop. The commission would request information from an administration that had worked diligently behind the scenes to prevent a blue-ribbon probe but now presented a facade of public cooperation. In response to these requests, the administration and the executive agencies under its control behaved erratically, granting easy access in some instances and stonewalling in others, all the while professing to support the commission in its important work. The commission’s response to administrative resistance was situational. In some cases the members agreed to enter into negotiations with the White House to resolve the issue amicably. At other times they played hardball. With delays pushing the investigation further behind schedule, panel members began to wonder aloud about their ability to meet the May 2004 deadline. Eventually the commissioners agreed to seek a two-month extension, a move that would push the deadline for the final report back to late July. Because the commission was a statutory creation, Congress would have to approve any extension of time. But Bush was very active behind the scenes. His party controlled both chambers of Congress, and, as with the initial creation of the commission, he had enough political muscle to stop any proposal not to his liking. White House officials sent mixed signals on the extension. Initially they seemed to support extra time, but only if it extended the commission past the November presidential election. At other times they seemed opposed to any change in the original schedule. Finally,

The Politics of U.S. National Security Commissions

125

on February 4, White House spokesman Scott McClellan released a statement saying that the president would support the commission’s request.41 Congress soon passed a bill to give the commission the additional two months it desired.42 On July 22, 2004, the commission presented its final report “to the president of the United States, to the United States Congress, and the American people.”43 There were no dissenting opinions or additional views filed by individual commissioners.44 The report was divided into 13 chapters, 11 devoted to description and analysis and 2 focused on the future. Chapters 12 and 13 contained 41 specific recommendations for improving security against the terrorist threat. Commission politics did not end with the issuance of the final report. There was intense maneuvering by both executive and legislative actors in the period between the press conference and the end of the year. And, as the families had feared, the commission’s report and its recommendations became entangled with the upcoming presidential election. Democratic nominee John Kerry endorsed the board’s proposals en bloc and even suggested that Congress should skip the August recess in order to get a head start on new legislation.45 Although Republicans complained that the move smacked of a cheap attempt to play on an emotional issue, Bush could ill afford to sit by and do nothing. Consequently, he sought to create a perception that the administration was moving decisively on the commission’s proposals. He appointed Chief of Staff Andrew Card to head up a task force to examine the individual recommendations.46 But for all the posturing, work on the most important piece of reform legislation, the Intelligence Overhaul Bill, almost died for want of presidential backing. Bush was not enamored of the bill and did little to drum up support among congressional Republicans.47 A key sticking point was the provision that a new post be created, the director of national intelligence (DNI), to supervise the collective effort of the intelligence community. Kean intervened to save the bill from failure. With the commission set to expire as an officially sanctioned government entity on August 21, he announced that he was looking for private funding to continue the commission’s lobbying effort. “We want to be part of the debate,” he declared. Toward that end, he and Hamilton appeared before congressional panels, hosted public meetings, and became regular fixtures on television news programs.48 In the end, their efforts succeeded. On December 17, Bush signed the Intelligence Overhaul Bill into law. INDEPENDENT PANEL TO REVIEW DEPARTMENT OF DEFENSE DETENTION OPERATIONS Blue-ribbon politics in the Bush administration did not end with the 9/11 Commission. The war in Iraq gave rise to a particularly ugly prisoner abuse scandal centered at the Abu Ghraib facility west of Baghdad.

126

Commissions of Inquiry and National Security

On May 7, 2004, Secretary of Defense Donald Rumsfeld appointed a four-member panel under his departmental authority to follow up on administrative reviews that had already taken place.49 James Schlesinger, a cabinet official from the Nixon and Ford administrations, chaired the panel. Other members included retired Air Force general Charles Horner, former congresswoman Tillie Fowler, and former secretary of defense Harold Brown. Critics found plenty to complain about. Wayne Downing, a retired fourstar army general, pointed out an inherent conflict of interest in Rumsfeld’s response. “I really doubt whether the Defense Department can investigate itself,” he said, “because there’s a possibility the secretary himself authorized certain actions. This cries out for an outside commission to investigate.”50 Former navy judge advocate John Huston echoed the sentiment, calling for a new “umbrella or overarching investigation that has the power to go wherever it leads.”51 While its membership was certainly blue ribbon, the Schlesinger panel did not rise to the level of a national or presidential commission. Organizationally speaking, the board was of the Pentagon, by the Pentagon, and for the Pentagon. The members had no subpoena power and were given only two months to conduct the entire investigation. Bush’s decision to forego a higher-profile investigation reflected a determination to keep the ugliness of the Abu Ghraib scandal at arm’s length. It also reflected his belief that the Schlesinger panel, while not universally accepted, would nonetheless suffice to ward off any attempt by Congress to create another 9/11-style probe. The Schlesinger panel issued its report to Rumsfeld on August 24, 2004. Although the panel found “institutional and personal responsibility right up the chain of command,” it attributed most of the blame to a failure of leadership at the Abu Ghraib facility. It faulted the local commanders for failing to monitor the troops assigned to guard the Iraqi prisoners of war adequately. “The night shift was off on its own,” said Schlesinger. “It was an abhorrent and horrifying crowd . . . there is no policy that encourages this kind of behavior.” Then came the most memorable line of all: “It was a kind of animal house on the night shift.”52 Other than the vague mention of institutional responsibility, however, the panel did not lay blame at Rumsfeld’s feet. In fact, it went out of its way to absolve him of responsibility. Schlesinger deemed his conduct on the issue “exemplary” and warned that his “resignation would be a boon to all of America’s enemies.” Given the circumstances of the panel’s creation, this endorsement did little to quiet the critics.53 “Rumsfeld’s Torture Panel Clears Rumsfeld,” joked one columnist.54 Even so, the report helped to defuse some of the national anger over the events at Abu Ghraib— proving once again that a blue-ribbon investigation need not be perfect to hold political value.

The Politics of U.S. National Security Commissions

127

COMMISSION ON THE INTELLIGENCE CAPABILITIES OF THE UNITED STATES REGARDING WEAPONS OF MASS DESTRUCTION The war in Iraq was the source of another issue that generated blue-ribbon attention. This time the controversy involved prewar intelligence estimates of Iraqi weapons of mass destruction. Specifically, by late 2003, critics were demanding to know why prewar assurances that WMD would be found in Iraq had turned out to be false. Most speculation about the disconnect focused on one of three possibilities: 1) the intelligence community had simply erred; 2) the intelligence product had been tainted by interference from administration officials; or 3) the administration had cherry-picked its way through good intelligence in order to construct a pretense for going to war. As issues go, the WMD controversy was more important than the prisoner abuse scandal since it cast doubt on the president’s integrity and decision making. The administration’s response reflected this higher order of concern. On February 6, 2004, President Bush signed Executive Order 13328 establishing a Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction.55 Among other particulars, the panel was asked to examine the intelligence community’s response to the “threats of the 21st century.” But there would be no confusion about the main focus of the investigation. The commission’s Web address said it all: www.wmd.gov.56 Everything about the WMD panel suggested that Bush and his advisors had learned a hard lesson from the 9/11 investigation. This time the White House would draft the mandate. This time there would be no public hearings. This time there would be no subpoenas.57 Moreover, Bush granted the panel a generous period of 13 months to conduct its investigation. Critics noted that the schedule was politically convenient; the commission would not issue its report until well after the 2004 presidential election.58 The executive character of the commission was best exemplified by its membership. Bush reserved all the appointments for himself. He named federal judge Laurence Silberman and former senator and governor Charles Robb as cochairs. The other seven seats went to Senator John McCain; Walter Slocombe, a Department of Defense official who had worked as a senior advisor to the provisional authority in Iraq; Richard Levin, president of Yale University; Admiral William Studeman, former deputy director of the Central Intelligence Agency; Judge Patricia Wald of the Washington, DC, Circuit Court; Charles Vest, president of MIT; and Henry Rowen, chairman of the National Intelligence Council under President Reagan. Former Clinton aide Lloyd Cutler joined in the role of counsel. The Silberman-Robb Commission delivered its final report to the president on March 31, 2005. The report was harshly critical of the intelligence community. It determined that intelligence officers had been “simply

128

Commissions of Inquiry and National Security

wrong” on the question of the Iraqi WMD program.59 Conversely, the commission found little fault with the president and his inner circle. The investigation uncovered “no evidence” that intelligence assessments had been manipulated to meet political objectives.60 Even so, a footnote at the end of chapter one offered this caveat: Our review has been limited by our charter to the question of alleged policymaker pressure on the Intelligence Community to shape its conclusions to conform to the policy preferences of the Administration. There is a separate issue of how policymakers used the intelligence they were given and how they reflected it in their presentations to Congress and the public. That issue is not within our charter and we therefore did not consider it nor do we express a view on it.61

Columnist John Dean had foreseen this dodge. At the time of the commission’s appointment he had warned that Bush’s Executive Order only pretends to look at the issue of pre-war Iraqi WMD intelligence. In fact, it does not look at what is really the issue: the use of that intelligence by policy makers. The questions of what the intelligence said, and how it was used—specifically, was it exploited or distorted?—are quite separate. Bush’s Commission will answer only the first question. And it may not be able to answer even that in a prompt fashion. (italics in the original)62

Maureen Dowd echoed the sentiment, finding it “laughable that the report offers its most scorching criticism of the CIA when the CIA was doing what the White House and Pentagon wanted.”63 David Corn of The Nation agreed that the commission had “served Bush well, but not the public.”64

CONCLUSION The example of the three Bush-era commissions helps illustrate the themes identified earlier regarding national security commissions in the United States. The case of the 9/11 panel demonstrates that even national commissions, created by joint action of the legislative and executive branches of government, can become heavily politicized. President George W. Bush missed an early opportunity to dictate the structure and scope of the 9/11 inquiry. He misjudged the situation badly and watched from the sidelines as Congress began to assume ownership of the investigation. Once the commission was underway, however, the president found his cadence and began to assert his power. Two years later, when questions arose regarding the absence of weapons of mass destruction in Iraq, Bush showed greater skill in handling calls for an inquiry. He acted quickly to defuse the issue by appointing a blue-ribbon

The Politics of U.S. National Security Commissions

129

panel to examine the WMD question. The panel had no subpoena power, and all 10 members were selected by the president without input from opposition leaders. In the end, the panel cited poor intelligence work— and not political interference from administration officials—as the main cause of the WMD failure. It was exactly the finding Bush needed to make the issue go away. Viewed comparatively, the three cases also illustrate that variety remains the order of the day when it comes to U.S. national security commissions. Panels are conceived and planned on an individual basis, with crucial structural details (membership, mandate, subpoena power, and time) being determined through political processes. Therein lies an important lesson for those who would study these commissions: decisions made on the front end of an investigation are important in determining the course of the investigation and the content of the final report. Consequently, it is essential to have a realistic appreciation of the political forces that drive the creation and construction of national security commissions.

NOTES 1. Hugh Davis Graham, “The Ambiguous Legacy of American Presidential Commissions,” Public Historian 7 (Spring 1985): 8. 2. J. C. Fitzpatrick, ed., Writings of George Washington, vol. 34 (Washington, DC: U.S. Government Printing Office, 1938), p. 31. 3. Charles J. Hanser, Guide to Decision: The Royal Commission (Totowa, NJ: Bedminster Press, 1965), pp. 225–29. 4. Hanser, Guide to Decision, p. 229. 5. Carl Marcy, Presidential Commissions (New York: King’s Crown Press, 1945), p. 5. 6. Graham, “The Ambiguous Legacy,” p. 8. 7. Principles of Federal Appropriations Law, 2nd ed., vol. 1 (Washington, DC: Office of the General Counsel, U.S. General Accounting Office, July 1991), pp. 17–18. 8. For an overview of congressional commissions, see Colton C. Campbell, Discharging Congress: Government by Commission (Westport, CT: Praeger, 2002). 9. Campbell, Discharging Congress, p. xv. 10. Alan Barth, Government by Investigation (New York: Viking Press, 1955), p. 215. 11. Annual Report of the President on Federal Advisory Committees (Washington, DC: General Services Administration, 1972–). 12. Thomas R. Wolanin, Presidential Advisory Commissions (Madison: University of Wisconsin Press, 1975), p. 7. 13. “Statement on Appointments to the Commission on the Roles and Capabilities of the United States Intelligence Community,” Weekly Compilation of Presidential Documents 31 (February 6, 1995), p. 182. 14. Frank Popper, The President’s Commissions (New York: Twentieth Century Fund), p. 10. 15. Ibid.

130

Commissions of Inquiry and National Security

16. U.S. Congress, Senate, Committee on Foreign Relations, The Role of Advisory Committees in U.S. Foreign Policy, 94th Cong., 1st sess., 1975, 16. 17. Graham, “The Ambiguous Legacy,” p. 25. 18. Ibid., p. 8. 19. In 1898, President McKinley appointed the Dodge Commission to examine charges of poor treatment of U.S. service personnel during the SpanishAmerican War. See Graham A. Cosmos, An Army for Empire: The United States Army in the Spanish-American War (College Station: Texas A&M University Press, 1998), pp. 284–86. 20. One of the more secretive groups was the four-member Special Study Group on Covert Activities (Doolittle Commission) created by President Eisenhower in July 1954. 21. President Truman created the nine-member President’s Commission on Internal Security and Individual Rights (Nimitz Commission) in January 1951. The commission disbanded under congressional pressure in October 1951 without issuing a final report. 22. Aaron Wildavsky, “The Two Presidencies,” Transaction 4 (December 1966): 7–14. 23. Ibid., p. 9. 24. Arthur Schlesinger, Jr., The Imperial Presidency (New York: Popular Library, 1974). 25. Theodore J. Lowi, The Personal President: Power Invested; Promise Unfulfilled (Ithaca, NY: Cornell University Press, 1985), p. 165. 26. Critics typically argue that Wildavsky’s thesis was contextually bound in the tightly bipolar world of the early Cold War. For an early statement of this revisionism, see Donald Pepper’s “The Two Presidencies: Eight Years Later,” in The Two Presidencies: A Quarter Century Assessment, ed. Steven A. Shull (Chicago: Nelson-Hall, 1991). 27. D. M. Oldfield and Aaron Wildavsky, “Reconsidering the Two Presidencies,” in The Two Presidencies (see note 26), p. 189. 28. Congressional Record—Senate, 107th Cong., 1st sess., September 12, 2001, S9311- S9312 [THOMAS Legislative Information System]. 29. Congressional Record—Senate, 107th Cong., 1st sess., September 26, 2001, S9846 [THOMAS Legislative Information System]. 30. Andrew Jacobs, “Traces of Terror,” New York Times, June 12, 2002, p. A25. 31. “Interview with Dick Cheney,” May 22, 2002, CNN.com Transcripts, http:// transcripts.cnn.com/TRANSCRIPTS/0205/22/lkl.00.html. 32. “Bin Laden Determined to Strike inside U.S,” declassified memo, CBSNews Online, http://www.cbsnews.com/htdocs/pdf/pdb_080601.pdf. 33. Andrew Miga, “Bush Bashed; Dems Slam President on Terror Warnings,” Boston Herald, May 17, 2002, p. 1. 34. Pollingreport.com, “NBC News/Wall Street Journal Poll, June 8, 2002,” http://www.pollingreport.com/terror.htm. 35. Among the group of 25 were 4 representatives from New Jersey, 1 from New York, and 1 from Connecticut. Roll Call 347 on HR 4628, 107th Cong., 2nd sess., July 25, 2002, U.S. House of Representatives [THOMAS Legislative Information System]. 36. Michael Isikoff and Tamara Lipper, “Cheney: Investigators, Keep Out,” Newsweek, October 21, 2003.

The Politics of U.S. National Security Commissions

131

37. Public Law 107–306, 107th Cong., 2nd sess., November 27, 2002 [THOMAS Legislative Information System]. 38. Dan Eggen, “Kissinger Quits Post as Head of 9/11 Panel,” Washington Post, December 14, 2002, p. A1. 39. National Commission on Terrorist Attacks upon the United States (NCTA), “Frequently Asked Questions About the 9/11 Commission,” http://govinfo.li brary.unt.edu/911/about/faq.htm#q3. 40. NCTA, Public Hearing of March 31, 2003, http://govinfo.library.unt. edu/911/archive/hearing1/9–11Commission_Hearing_2003–03–31.htm. 41. White House, Press Briefing by Scott McClellan, February 4, 2004, http:// www.whitehouse.gov/news/releases/2004/02/20040204–7.html#1. 42. White House, Statement on S. 2136, March 16, 2004, http://www.white house.gov/ news/releases/2004/03/20040316–9.html. 43. “9/11 Panel Releases Final Report,” transcript, Washington Post, July 22, 2004. 44. Ibid. 45. Jim VandeHei, “9/11 Panel Roiling Campaign Platforms,” Washington Post, August 9, 2004, p. A1. 46. Dan Eggen and Helen Dewar, “Hill, Bush React to 9/11 Report,” Washington Post, July 25, 2004, p. A6. 47. Michael Isikoff and Eleanor Clift, “Intel Reform: Did Bush Push Hard?” Newsweek, December 6, 2004, p. 6. 48. VandeHei, “9/11 Panel Roiling Campaign Platforms.” 49. U.S. Department of Defense, DOD Press Release No. 433–04, May 7, 2004, http://www.dod.gov/ releases/2004/nr20040507–0744.html. For a discussion of the army probes that preceded the appointment of the Schlesinger panel, see Steven Strasser, ed., The Abu Ghraib Investigations (New York: Public Affairs Books, 2004), pp. xii–xviii. 50. Bradley Graham, “Some Seek Broad, External Inquiry on Prisoner Abuse,” Washington Post, May 27, 2004, p. A14. 51. Steven Lee Meyers and Eric Schmitt, “Wide Gaps Seen in U.S. Inquiries on Prison Abuse,” New York Times, June 6, 2004, p. 1. 52. See Julian Borger, “Pentagon Blamed over Jail ‘Sadism,’” The Guardian, August 25, 2004, http://www.guardian.co.uk/world/2004/aug/25/iraq.usa. 53. Jim Garamone, “Panel Cites Direct, Indirect Responsibility for Abu Ghraib,” American Forces Press Service, U.S. Department of Defense, August 24, 2004. 54. Chris Shumway, “Rumsfeld’s Torture Panel Clears Rumsfeld,” New Standard 26 (August 2004), http://www.antiwar.com/orig/shumway.php?articleid=3450. 55. White House, Executive Order no. 13328, Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, February 6, 2004, http://edocket.access.gpo.gov/2004/pdf/04–3170.pdf. 56. Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, http://www.wmd.gov. 57. “Muscle for the Intelligence Commission,” New York Times, March 9, 2004, p. 24. 58. Mike Allen, “Bush Names Panel on Iraq Data,” Washington Post, February 8, 2004, p. A1. 59. Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, Report to the President of the United States, Letter of

132

Commissions of Inquiry and National Security

Transmittal (Washington, DC: Government Printing Office, 2005), http://govinfo. library.unt.edu/wmd/about.html. 60. Ibid., p. 188. 61. Ibid., p. 247. 62. John W. Dean, “President Bush’s New Iraq Commission Won’t Be Investigating the Key WMD Issue: How the Executive Order Fatally Limits Their Agenda,” Findlaw: Writ, February 13, 2004, http://writ.news.findlaw.com/dean/ 20040213.html. 63. Maureen Dowd, “I Spy a Screw-Up,” New York Times, March 31, 2005, p. 27. 64. David Corn, “WMD Commission Stonewalls,” Capital Games Blog, The Nation, April 1, 2005, http://www.alternet.org/story/21679/wmd_commission_ stonewalls.

CHAPTER 8

Investigative Oversight of the American Intelligence Community: Promise and Performance Glenn Hastedt

In 2002, Senator Trent Lott (R-MS) rose to the floor and spoke on the subject of special commissions, specifically the creation of the 9/11 Commission. He observed that in his opinion congressional commissions were “an abdication of responsibility.” Why, he wondered, “do we have an Armed Services Committee, an Intelligence Committee, a Government Affairs Committee, or a Foreign Affairs Committee?”1 His objections were to no avail, and in November of that year the 9/11 Commission, formally known as the National Commission on Terrorist Attacks upon the United States, was created. Two years later, when President George W. Bush signed the Intelligence Reform and Terrorism Prevention Act of 2004, which incorporated one of the key 9/11 Commission reform proposals, that of establishing a director of national intelligence, he hailed the legislation as “the most dramatic reform of our nation’s intelligence capabilities since President Harry S. Truman signed the National Security Act of 1947. Under this new law, our vast intelligence enterprise will become more unified, coordinated, and effective.”2 President Bush’s comments did not translate into a general endorsement of commissions. In signing the 2008 National Defense Authorization Act in January 2008, he issued a signing statement asserting that four different provisions of the bill unconstitutionally infringed upon his powers and that therefore he was not obliged to obey them. One of those called for creating an independent bipartisan Commission on Wartime Contracting in Iraq and Afghanistan. Had it been created, its charge would have been to “investigate waste, mismanagement, and excessive force by contractors.” The Pentagon would have been forced to provide requested information “expeditiously” to the commission. In his

134

Commissions of Inquiry and National Security

signing statement, Bush did not explain his position but only stated that he objected. As suggested by Lott’s remarks and the actions and comments by Bush, commissions are highly contentious features of the American political scene. Nowhere is this truer than with the establishment and operation of intelligence oversight commissions. These bodies are not created to manage intelligence organization but to investigate performance-related problems and provide recommendations for change. Drawing in equal parts on the secrecy of the world of intelligence and the carefully cultivated perception that commissions stand above and apart from partisan politics, recent intelligence oversight commissions have come to take on an almost mystical quality as purveyors of truth. Reality is far more complicated. Demystifying the place of intelligence oversight commissions requires a twofold analysis. First we need to be more cognizant of the political context and conditions under which intelligence oversight commissions are established and operate. For example, while pictured by their supporters as neutral and above politics (and as such capable of generating widespread popular support for their findings), this is not necessarily how they are viewed by everyone. Lott’s critical observation quoted about establishing commissions rests upon the view that it is Congress’s job to hold inquiries into the operation of the executive branch and hold it accountable for its decisions. Creating commissions is, from this perspective, both an abdi-

Table 8.1 Intelligence Oversight Commissions Commission on the Organization of the Executive Branch of the Government (1948): First Hoover Commission Dulles Report (1949) Commission on the Organization of the Executive Branch of the Government (1953): Second Hoover Commission Schlesinger Report (1971) Commission on the Organization of the Government for the Conduct of Foreign Policy (1975): Murphy Commission Vice President’s National Performance Review (1993): Gore Commission Commission on the Roles and Capabilities of the U.S. Intelligence Community (1996): Aspin-Brown Commission U.S. Commission on National Security in the 21st Century (1999): Hart-Rudman Commission National Commission on Terrorist Attacks upon the United States (2004): 9/11 Commission Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction (2005): WMD Commission

Investigative Oversight of the American Intelligence Community

135

cation of congressional responsibility and potentially erodes its powers. Second, we need to take a more discriminating look at the types of recommendations they generate and how they are received by policy makers. Before beginning this analysis, it needs to be noted that there exists no universally accepted definition of what constitutes a commission.3 Successive waves of researchers interested in different time periods have often found fault with definitions adopted by earlier scholars. Rather than select one of these definitions or try to reconcile them, we allow commissions to define themselves as relevant by the subject matter they examine: improving the quality of intelligence.4 The only definitional restrictions in place are those shared by most studies of commissions: they are ad hoc, permit the president or at least executive branch officials to appoint some of the members, and issue a public report. For the purposes of this study, these intelligence oversight commissions begin with the First Hoover Commission on government reorganization done after World War II and end with the WMD Commission that looked into the flawed intelligence estimate on Saddam Hussein’s nuclear weapons program that was central to the Bush administration’s argument for going to war with Iraq. A listing of these commissions is found in Table 8.1. CALM OR TROUBLED WATERS Looking first at context it is important to recognize that commissions do not operate in a political void. They enter into an ongoing stream of activity. Much like the origins of a river are found in the merging of small tributaries, a policy arena is the product of several different forces coming together. Typically they involve the definition of a problem, the emergence of institutions to address that problem, and the identification of strategies and policies. Once underway, a river reinvents itself daily. The changes are not necessarily visible, but over time they become clear. International crises, accidents, bureaucratic politics, personalities, new technologies, and new ideas are typical driving and shaping forces in policy arenas. Given enough time, rivers themselves disappear by either merging into larger bodies of water or vanishing into the ground as their water flow is reduced to a trickle. Changing perceptions of a problem or the proper way to address it may cause the first phenomenon to occur in policy arenas whereas shrinking budgets and public apathy may lead to the second outcome. Intelligence commissions have been injected into policy streams that varied greatly in the calmness of their waters. For some, the dominant characteristic of the existing intelligence policy stream was partisan controversy. The first three intelligence commissions depicted in Table 8.1 all were launched under these conditions, as was the most recent commission dealing with intelligence, the WMD Commission. The First Hoover Commission, the Commission on the Organization of the Executive Branch of the Government, was established on July 7, 1947, with the passage of

136

Commissions of Inquiry and National Security

the Lodge-Brown Act. Chaired by former president Herbert Hoover, its origins lay in the coming together of one long-term and one short-term factor. The long-term factor was the dramatic growth in the size of the federal government brought on by the New Deal and World War II. Where the executive branch under President Herbert Hoover employed 600,000 individuals and had a yearly budget of $4 billion, under President Franklin D. Roosevelt it had grown to employ 2,100,000 individuals and have an annual budget of $42 billion. The short-term precipitating factor was the anticipated Republican victory in the 1948 presidential election. The Hoover Commission Report was to be the basis for reorganizing the government in a “new Republican era.”5 Overlapping the life span of the First Hoover Commission was the creation of a committee of outside experts by the National Security Council (NSC) that was tasked with studying the operation of the intelligence community. The committee was chaired by Allen Dulles, an Office of Strategic Services veteran who already had briefed Congress on several occasions over the nature of intelligence and its proper organization. Dulles and most observers expected to hand the report over to a new Republican administration, and the report was to be a blueprint for reform.6 The Second Hoover Commission, the Commission on the Organization of the Executive Branch of the Government, was established in 1953. Three days after signing the legislation creating this commission, President Dwight Eisenhower named Hoover to the commission, and he was elected chair at its first meeting, not a surprising development since Hoover named all of the committee members and determined the commission’s areas of inquiry. Eisenhower invited Hoover to create an intelligence task force hoping to short-circuit any investigation by Senator Joseph McCarthy into this area. Once the danger of a McCarthyite investigation passed, the Eisenhower White House indicated it was no longer interested in an intelligence task force and that the inquiry could be called off. Hoover, however, continued with the inquiry, which was now carried out under the direction of General Mark Clark.7 Partisanship was also the dominant environmental trait when the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction was established in 2004. Iraqi pursuit and possession of weapons of mass destruction had been cited by the Bush administration as a principal reason for going to war, yet none had been found. Calls for an independent commission to investigate the intelligence on Iraqi weapons of mass destruction grew in intensity as the occupation of Iraq became more and more violent, with Americans being treated as unwanted occupiers and not welcomed as liberators. Just as with the 9/11 Commission, President Bush sought to delay the formation of a commission to look into prewar intelligence on Iraq’s WMD program, arguing such an inquiry should wait until a more exhaustive weapons search was completed. He changed his position reluctantly under mounting public

Investigative Oversight of the American Intelligence Community

137

pressure and finally established the WMD Commission on February 6, 2004, days after former weapons inspector David Kay told Congress “we were almost all wrong” about Iraq’s weapons program and a day after Director of Central Intelligence (DCI) George Tenet spoke out publicly in defense of the CIA’s “imminent threat” argument. Bush set March 31, 2005, as the due date for the commission’s report. This put it four months after the election and two months after Bush would leave office if he were to be defeated in the 2004 presidential election. After the Second Hoover Commission the subsequent three intelligence oversight commissions were established in less overtly political times, yet underlying tensions were present and easily recognized. Richard Nixon came to the presidency distrusting the CIA and convinced that it housed liberal opponents to his administration. Once in office, the Federal Bureau of Investigation (FBI) also became a target of his suspicions for its failure to bring under control either the antiwar movement or the constant leaks to the press that were coming from within his administration. In December 1970, Nixon tasked Deputy Director of the Bureau of the Budget James Schlesinger to examine the intelligence community’s organization. The Schlesinger Report was presented to President Nixon in March 1971. A little over one year later, another intelligence oversight commission, the Commission on the Organization of the Government for the Conduct of Foreign Policy, better known as the Murphy Commission, was established. One needs only to read the preface of its report to sense the political divide that separated members of the commission depending upon their affiliation. The preface spoke of the existence of an increasingly pluralistic world characterized by interdependence and rapid technological change that was blurring the boundaries between domestic and foreign policy. As a consequence of these trends, it stated that the United States needed to reorganize the way it did foreign policy. Senator Mike Mansfield (D-MT) dissented to this characterization of the problem, contending that these global conditions were already widely recognized. He asserted that “the Commission paid little attention to the circumstances in which the legislative mandate for the Commission was created” and that the most prominent feature of the period was “intense confrontation between the executive and legislative branches of the U.S. Government.” Rather than addressing these issues he characterized the commission’s study as being “a sort of elaborate management study.” Two decades later, President Bill Clinton launched a wide-ranging review of government performance under the leadership of Vice President Al Gore. The Vice President’s National Performance Review and the theme of reinventing government were widely interpreted as Clinton’s response to H. Ross Perot’s well-received campaign message of “making government work.” Once underway, it also became a vehicle for the Clinton administration to blunt the reorganization proposals emanating from a now Republican Congress.

138

Commissions of Inquiry and National Security

The next two intelligence oversight commissions were established in periods of strategic uncertainty. The first, the Aspin-Brown Commission, officially the Commission on the Roles and Capabilities of the U.S. Intelligence Community, was established after the end of the Cold War when the primary national security threat and intelligence target for the United States no longer existed. To use the language coined by Clinton’s DCI, R. James Woolsey, the United States now faced a world in which it no longer confronted a dangerous dragon but a world populated by poisonous snakes. The precipitating event in the creation of the Aspin-Brown Commission involved an attack by two such snakes: the attack on U.S. Special Forces in Mogadishu, Somalia, and the 1993 terrorist bombing of the World Trade Center. There also existed a strong residue of dissatisfaction with the performance of the intelligence community and partisan distrust between the White House and Congress. The former stemmed from the failure of the intelligence community to police itself adequately as evidenced by the seemingly endless parade of high-profile spy cases in the news, most notably Aldrich Ames, John Walker, Jr., Ronald Pelton, and Jonathan Pollard. The later grew out of the Iran-Contra investigation into the CIA’s role in supporting the Contras in Nicaragua and the sale of weapons to Iran. The second commission formed with intelligence responsibilities in this period of strategic uncertainty was the U.S. Commission on National Security in the 21st Century, better known as the Hart-Rudman Commission. Its charge was to undertake a comprehensive review of the national security environment in which the United States would operate in the 21st century.8 The Hart-Rudman Commission conducted its investigation over 2-1/2 years and divided its work into three phases, issuing a report at the conclusion of each phase. Phase I examined the nature of the world into which the United States was entering. That report was issued in September 1999. Phase II examined existing national security strategies and was released in April 2000. The Phase III report was issued in February 2001. Of all the intelligence commissions, the National Commission on Terrorist Attacks upon the United States, the 9/11 Commission, began its operation in what was perhaps the most complex setting, one that combined elements of uncertainty, partisan politics, and an acute sense of national crisis. It was more than one year after the terrorist attacks on the World Trade Center and the Pentagon that President George W. Bush and Congress created the 9/11 Commission on November 27, 2002. Political pressure for it had been slow to build. With U.S. forces engaged in a war against al Qaeda and the Taliban in Afghanistan, Republicans easily defeated efforts by some Democrats to establish an independent commission of inquiry. However, by December 2001 with victory in Afghanistan seemingly assured, senators Joseph Lieberman (D-CT) and John McCain (R-AZ) introduced legislation that would bring about the commission. The Bush administration objected, citing decisions by the House and Senate to set

Investigative Oversight of the American Intelligence Community

139

up their own studies. Upset with what they felt to be overly narrow terms of reference on the part of the congressional committees, the families of the victims of the 9/11 bombings continued to press for an independent board of inquiry. In July 2002, the House succumbed to their lobbying efforts and voted to endorse a bipartisan committee. The Senate and White House resisted until October. One of the White House’s concerns was that the commission’s report would be released in the middle of the 2004 presidential campaign and lay blame at the doorstep of the Bush administration. Accordingly, the commission’s expiration date was set for May 27, 2004. The 9/11 Commission got off to a rocky start. Both of its cochairs, former secretary of state Henry Kissinger (Republican) and former senator George Mitchell (Democrat), withdrew due to conflict-of-interest charges. They were replaced by former New Jersey governor Thomas Kean and former congressman Lee Hamilton, respectively. The commission held its first hearings in late January 2004 and by July was publicly complaining about the lack of cooperation it was receiving from the White House and Justice Department in obtaining documents and testimony from key administration officials. Another point of contention was the commission’s expiration date. The Bush administration opposed any extension but again gave in to pressure from the families of the 9/11 victims. In February 2004, a 60-day extension was agreed upon. THE CURRENTS OF WASHINGTON POLITICS From a policy analytic perspective, strategies and programs are designed to solve a problem, and their relative merits can be judged accordingly. We will adopt this perspective later in this paper. But if we keep our attention on the policy stream into which intelligence commissions are placed, what stands out is not the problem they are trying to solve but the contours of the shoreline and the protrusion of rocks that threaten to undermine their efforts. Together they can produce dangerous currents that threaten the success of presidential commissions. At any one time, four such currents can be found in the policy stream comprising Washington politics. They center on the symbolic politics associated with intelligence reform, control over and access to resources, control over the political agenda, and establishing accountability and responsibility (blame) for intelligence problems. Symbolic Politics Used in the most benign and neutral fashion, language can educate the public. This in fact is a purpose frequently ascribed to presidential commissions. In theory it is the one advanced by the bipartisan makeup of commissions and the presence of what might be described as professional commissioners on these panels. Typically enabling legislation setting up

140

Commissions of Inquiry and National Security

a commission specifies how many individuals the president, the Speaker of the House of Representatives, the Senate majority leader, or the Senate minority leader may appoint. The Lodge-Brown Act that established the First Hoover Commission specified a 12-person commission. Speaker of the House Joseph Martin, President of the Senate Pro Tem Arthur Vandenberg, and President Harry Truman each chose four members of the commission. One-half were to be Republicans and one-half Democrats. According to the legislation setting up the Murphy Commission in 1972, there were to be 12 members; 4 were to be appointed by the President with 2 coming from the executive branch and 2 from private life. The president of the Senate and Speaker of the House were each to appoint 4 members. In each case, 1 was to come from each party and 2 from private life. Often, complex political bargaining is necessary in order to set up a commission. This was the case for the Aspin-Brown Commission because both the administration and the Senate were planning to go ahead on their own with investigations into the performance of the intelligence community in the wake of the Mogadishu terrorist attacks, and neither trusted the other to conduct a neutral inquiry. In the end it was agreed that President Clinton would name nine individuals from “private life” and Congress would select eight members, four of whom would be private citizens and the other four members of Congress. Considerable bargaining also went into creating the 9/11 Commission. Agreement was reached that the White House would name its chair and that Republican senators John McCain and Richard Shelby would have veto power over one of Senate Majority Leader Trent Lott’s nominations. The 9/11 families wanted Rudman appointed. He was favored by McCain and Shelby, but Lott indicated that he would not (and did not) put Rudman’s name forward. One-time Republican senator Warren Rudman has been a prominent member of numerous presidential commissions, serving on the AspinBrown intelligence commission, the commission looking into Gulf War Syndrome, a special panel that investigated security problems in the Energy Department, the Sharm el-Sheikh fact-finding commission on Middle East violence, and cochairing the Hart-Rudman Commission on national security. Rudman is not unique. Milton Eisenhower, brother of President Dwight Eisenhower, served on some 20 commissions. From 1950–70, 7 individuals served on three commissions, and 25 served on two commissions. During the Reagan presidency, John Tower, Brent Scowcroft, Chuck Robb, and Ed Muskie all served on multiple commissions. The careful balancing of membership and the selection of trusted individuals to serve on these commissions is recognition of the fact that words matter. This is the heart of symbolic politics. Controlling the language and images of the policy debate gives a policy maker a heightened ability to advance policy options. Language can reassure the public that policy makers are aware of a problem and are addressing it. Language can also raise public concerns that all is not well and that immediate action is needed.

Investigative Oversight of the American Intelligence Community

141

The Dulles and Clark committees, neither of which had balanced or bipartisan memberships, issued reports only a few years apart that provide a sharp contrast in the use of language. Not unexpectedly, alarmist language was front and center in the Dulles Committee’s highly critical report of the operation of the CIA under the Truman administration. Dulles had taken time out from his work on the commission to campaign with Republican candidate Thomas Dewey and harbored hopes of becoming the professional head of the CIA that Dewey had told Secretary of Defense James Forrestal he would put into place in his administration.9 The report stated: The principal defect of the Central Intelligence Agency is that its direction, administrative organization, and performance do not show sufficient appreciation of the Agency’s assigned functions . . . the result is that the Central Intelligence Agency has tended to become just one more intelligence agency providing intelligence in competition with older established agencies . . . since it is the task of the Director to see that the Agency carries out its assigned functions, the failure to do so is necessarily a reflection of inadequacies of direction.10

The Dulles Report was equally unkind in its assessment of the CIA’s intelligence collection and the production of intelligence estimates, stating that the Office of Reports and Estimates was “concerned with a wide variety of activities and with the production of miscellaneous reports and summaries which by no stretch of the imagination could be considered national estimates.”11 The Clark Report painted a very positive picture of the CIA and helped counter the fear of communist penetration inside the U.S. government raised by McCarthyite rhetoric and congressional investigations by the House Un-American Activities Committee. Reporting back to the full Second Hoover Commission in May 1955, the Clark Report concluded, “we discovered no valid ground for the suspicion that the CIA or any other element of the intelligence family was being effectively contaminated by any organized subversive or community clique.” It held the director of central intelligence to be “industrious, objective, selfless, enthusiastic and imaginative.”12 On the negative side, the task force was concerned with the lack of adequate intelligence coming from behind the Iron Curtain. Resource Politics Resource politics takes as its starting point the political reality that policies are given life by people, budgets, bureaucratic routines, and jurisdictional mandates. Change any element in that equation and one changes the operation of organizations. Since virtually every reform proposal put forward contains implications for how resources are allocated, this is a frequent area in which the work of presidential commissions encounters the realities of Washington politics.

142

Commissions of Inquiry and National Security

Intelligence oversight commissions are not exception to this rule. Where symbolic politics is played out boldly in the public eye, resource politics tends to be a game played out in the shadows and is often dominated by the work of congressional committees and bureaucracies. Resource politics, however, can on occasion become very public, as it did in the case of the 9/11 Commission’s recommendation that a director of national intelligence be created. The director of national intelligence was to oversee all-source national intelligence centers, serve as the president’s principal intelligence advisor, manage the national intelligence program, and oversee the component agencies of the intelligence community. Included in this power would be the responsibility for submitting a unified intelligence budget appropriating funds to intelligence agencies and setting personnel policies for the intelligence community. The director of national intelligence’s office would be in the White House. The commission’s reform proposals met with different responses from Capital Hill and the White House. Congressional leaders promised to move quickly on overhauling the intelligence community’s structure while the White House urged caution. Acting CIA director John McLaughlin, Secretary of Defense Donald Rumsfeld, and Homeland Security Secretary Tom Ridge all spoke out against creating a director of national intelligence. With Democratic presidential candidate John Kerry endorsing the commission’s report, the Bush administration came under political pressure to do the same. It came out in favor of a director of national intelligence but with authority only to coordinate intelligence. Lieberman criticized Bush for wanting a “Potemkin national intelligence director” while then Republican senator Arlen Specter (PA) referred to it as a shell game.13 In fall 2004, the Senate and House each passed legislation establishing a director of national intelligence but differed on the powers to be given to that person. Under the Senate bill, the CIA director “shall be under the authority, direction, and control” of the director of national intelligence. In the House version the CIA director would only “report” to the director of national intelligence. The House bill also only gave the director of national intelligence the power to “develop” budgets and give “guidance” to intelligence community members. The Senate bill stated that he or she would “determine” the budget. The Senate bill would also make the intelligence budget public, require that most of the director of national intelligence’s high-ranking assistants be confirmed by the Senate, and create a civil liberties panel to prevent privacy abuses. Deadlock ensued. House Republicans led by Representative Duncan Hunter (CA), chair of the House Armed Services Committee, were adamant that the Pentagon not lose control over its intelligence budget and that the overall budget remain secret. Family members of the victims of the 9/11 attacks unsuccessfully called upon President Bush to break the stalemate in favor of the Senate’s version of the bill. Republican opposition in

Investigative Oversight of the American Intelligence Community

143

the House also did not budge, forcing Speaker J. Dennis Hastert (R-IL) to remove the bill from consideration in late November. Behind-the-scenes negotiations produced a compromise bill acceptable to House Republicans and the White House. Title One of the act stipulated that the DNI not be located in the executive office of the President. It gave the DNI the power to “develop and determine” an annual budget for the national intelligence program based on budget proposals provided by the heads of intelligence agencies and departments. The DNI is to ensure the “effective execution” of the annual budget and “monitor the implementation and execution of the National Intelligence Program.” After consulting with department heads, the DNI is authorized to transform or reprogram a maximum of $150 million and no more than 5 percent of an intelligence unit’s budget in any one fiscal year, but he or she may not terminate an acquisition program. Larger transfers may take place if the affected department head agrees. In addition, the DNI “establishes objectives and priorities for the intelligence community and manages and directs tasking of collection, analysis, production and dissemination of national intelligence.” He or she is also given the power to develop personnel policies and programs in consultation with the heads of other agencies and elements of the intelligence community. And, the DNI is tasked with establishing a National Counterterrorism Center and National Counterproliferation Center and assigning individuals to protect the integrity of the analytical process and conduct alternative analysis as appropriate. Agenda Politics Intelligence commissions can do more than make recommendations to solve problems. They can also be part of a strategy for advancing the political agendas of policy makers. Commissions are able to do so by virtue of their ability to place intelligence reforms in a broader public policy context and to educate the public about the need for action. Most often intelligence commissions have played this role when their mandate was broadly cast and intelligence reform was but one area of focus and not the sole rationale for creating the commission. One broad agenda category into which intelligence reforms have been inserted by commissions is improving the overall quality of government performance. As noted earlier, one motivating force behind the creation of the First Hoover Commission was the growth in the size of the federal government. In speaking of the commission’s work, one observer commented, “government bigness is not necessarily evil” but that “the accomplishment of national and international objectives demands efficient government machinery” and that the present system of administration was “so creaky and complex that it often cannot move to achieve . . . [these goals] without costly delays.”14 The Second Hoover Commission’s mandate was

144

Commissions of Inquiry and National Security

even more expansive. Where the first commission concerned itself with how to improve the efficiency and effectiveness of government operations, the second commission was empowered to examine the question of what government should be doing. Nonessential services were to be eliminated as well as those activities that competed with private enterprise. The Gore Report on intelligence was also part of a larger mandate to “reinvent government.” Its language was consistent with that used by the larger ongoing reform movement within the field of public administration, which sought to alter the behavior of bureaucrats rather than the formal structure and processes of the institutions they worked in.15 Rather than speak of consumers of intelligence, it spoke of customers. It spoke of the need for an overarching vision for the intelligence community and the need for a public affairs strategy. Concrete recommendations called for the DCI to convene a visionary conference to determine the intelligence community’s post–Cold War mission, to appoint a consumer ombudsman, and to appoint an integrated community congressional liaison office. A second broad agenda category is the content and conduct of foreign policy. The Murphy Report fits into this category. As noted earlier, its preface argued that given the increased interdependence of world politics, the boundary line between foreign and domestic politics was no longer as sharp or defining as it once was. Consequently, the United States needed to consider “a fresh organization of the government for the conduct of foreign policy.” Intelligence was viewed in this context. The overall tenor of its report was supportive of the intelligence community and the role it played in the foreign policy–making process although it was somewhat critical of the NSC’s oversight of it. It also identified three obstacles to the exercise of more effective leadership and oversight over the intelligence community: the multitude of agencies comprising the intelligence community, the fact that the bulk of the resources lay within the Department of Defense, and the tendency to pursue new collection technologies without closely examining their potential costs and benefits. Also falling into this category was the Hart-Rudman Commission. It was established in 1998 by Secretary of Defense William Cohen to undertake a comprehensive review of the national security environment in which the United States would operate in the 21st century. Among its overall conclusions were the beliefs that weapons of mass destruction would continue to proliferate and that the United States would become increasingly vulnerable to hostile attack on its homeland. A core recommendation was the creation of a Department of Homeland Security. Its analysis of the intelligence community began with the observation that “the basic structure of the intelligence community does not require change.” Rather than endorse calls for increasing the DCI’s power, the Hart-Rudman Commission concluded that “efforts to strengthen community management while maintaining the ongoing relationship between the DCI and the Secretary of Defense are bearing fruit.” What the commission was most interested in

Investigative Oversight of the American Intelligence Community

145

with regard to community management was that greater attention be paid to setting national intelligence priorities. In terms of intelligence collection it urged that 1) greater attention be paid to the recruitment of human intelligence sources especially against terrorism; 2) a new emphasis should be placed on collecting and analyzing economic and science/technology intelligence; and 3) greater use should be made of open intelligence sources. Accountability Politics Questions of accountability operate on multiple levels. At the macro level, accountability issues direct our attention to the White House and senior policy makers such as heads of the CIA, Department of Defense, and other agencies. At the micro level they involve the distribution of responsibility and authority within agencies. Most intense and public are the politics of accountability at the macro level. They were front and center in both the establishment and operation of the 9/11 Commission and the WMD Commission. Fearful that the 9/11 report would be critical of its handing of intelligence on terrorism leading up to September 11, 2001, the White House agreed to establish the 9/11 Commission with the proviso that its report not be issued during the presidential campaign. The WMD Commission was limited to an examination of how the intelligence community performed in making its judgment about Iraq’s possession of WMD. Off limits was any assessment of how intelligence was used by the White House. Unlike the 9/11 Commission, it did not hold public hearings or interview members of the administration. The commission’s report contained a strongly worded critique of the intelligence community that termed much of its data “worthless or misleading” and its analysis “riddled with errors.” The intelligence community itself was described as “fragmented, loosely managed, and poorly coordinated.” As a corrective the commission urged greater reliance on competitive analysis, improved information sharing, the creation of a new national proliferation center to coordinate efforts against WMD, the creation of a human intelligence directorate within the CIA, and supported the notion of a powerful director of national intelligence.16 DOWNSTREAM LANDING Having made its recommendations, it remains an open issue as to what impact a commission’s findings will have. Wide-ranging disagreement exists on this point. The two end points of the debate over the effectiveness of commissions as instruments of policy are represented by the observations that they are “so many Jiminy crickets chirping in the ears of deaf Presidents, deaf Congressmen, and perhaps a deaf public”17 and that they are “generally created by presidents who seriously want policy advice.”18

146

Commissions of Inquiry and National Security

Intelligence oversight commissions have encountered a variety of downstream landings. First, the recipient of the commission’s report is sometimes not fully anticipated. The First Hoover Commission and the Dulles Committee both began their work expecting to produce a blueprint for a Republican administration that would take office following the 1948 election. Little was done to implement the Hart-Rudman Commission’s recommendations because by the time its final report was issued the George W. Bush administration had just entered office after a bitter and controversial campaign and was interested in distancing itself from the Clinton administration as much as possible. Second, personnel changes occur that reduce the impact of proposed reforms by removing key supporters from the policy process. Schlesinger’s Report led to modest changes in large measure because Schlesinger, who moved over from his position in the Bureau of the Budget to become DCI, stayed in that position for only a short time. Anne Karalekas in her history of the CIA states that Schlesinger came to the position with a clear set of management ideas for improving the quality of intelligence. The changes he made in his limited tenure as DCI promised “to alter the Agency’s and DCI’s existing priorities.”19 Neither his predecessor (Richard Helms) nor his successor (William Colby) was as committed to the reforms contained in his report. The Dulles Report also encountered an unexpected change in personnel. Secretary of Defense Forrestal warmly received the Dulles Report and was expected to push through its recommendations. It was Forrestal who had recruited Dulles to chair the commission and who at that time had characterized the CIA as being staffed with “deadwood.” Forrestal was suffering from mental illness and resigned in March 1949 and committed suicide in May. His successor, Louis Johnson, quickly became embroiled in conflict with Secretary of State Dean Acheson and delegated the task of evaluating the merits of the report to General Joseph McNarney and Carlisle Humelsine from the State Department. McNarney took the lead and generally endorsed its conclusion that the CIA needed strengthening through internal organizational reforms and that it had not met its responsibility for coordinating intelligence. In an important dissent, McNarney rejected the notion of collective responsibility for intelligence estimates by the entire set of national security organizations through the Intelligence Advisory Committee in favor of individual responsibility by the director of central intelligence, who headed the CIA. His position was endorsed by the NSC when it adopted the Dulles Report as amended by the McNarney Report in July 1949. This change in personnel did not mean that the Dulles Report had no impact. Quite the opposite was the case. When General Walter Bedell Smith assumed the position of DCI, many of the problems identified by the Dulles report remained in place. Recommendations from the national security organizations to the NSC were often “watered-down compro-

Investigative Oversight of the American Intelligence Community

147

mises,” departmental intelligence organizations often withheld “operational” information and “eyes only” information from the CIA, and the CIA could not enforce its collection requests on other agencies.20 More vigorous implementation of the Dulles organizational reforms soon took place as Jackson joined Smith as deputy director. Dulles would also join the CIA and rise to the position of DCI. The reforms they oversaw created the foundation for the CIA’s organizational profile for the next 20 years. Third, there can be a major change in the political climate from when the commission was established. Part of the reason for the limited impact of the Murphy Commission’s report was that before it was completed, Washington politics increasingly became focused on Watergate and the CIA’s role in the break-in and covert action. These concerns spawned a series of investigations by Congress and the president. On January 4, 1975, President Gerald Ford appointed Vice President Nelson Rockefeller to head a commission on CIA activities within the United States. It reported out the same month as the Murphy Commission. Ford had hoped this inquiry would forestall action by Congress. This was not to be the case as both the Senate (the Church Committee) and the House (the Pike Committee) began their own broader investigations into allegations of CIA wrongdoing. Just before the Church and Pike committees were to release their findings, Ford again tried a preemptive move. He signed Executive Order 11905, which put into place some of the more limited recommendations of the Murphy and Rockefeller commissions. It recognized the DCI as the president’s primary intelligence advisor and spokesperson for the intelligence community, gave him added budget-making responsibility, and established an Intelligence Oversight Board to review intelligence activities. Murphy was named its first chair. The 9/11 Commission’s findings also were released in a changed political environment. Gone was the sense of urgency and crisis that once existed. This is particularly noteworthy given the scope of its proposed reforms. Overcoming the many political and institutional obstacles that stand in the way of reforms that entail a major redirection or restructuring of policies, resources, and institutions requires special circumstances. When those conditions are present we can speak of the existence of a window for reform.21 Once opened, reform windows operate in predictable ways. At their base is a pressure for action. “Confessions of impotence are not acceptable; leaders are expected to act.”22 Reorganization, or more accurately the announcement of reorganization, is a highly visible and symbolic action that addresses the political imperative of calming public fears. Not all reform windows are alike in their ability to sustain a reorganization proposal or prevent rollback once the window closes. John Keeler in his cross-national study of reform windows notes that “windows opened principally by crisis effects . . . tend to feature a perilous context for reform.” The result is a hollow mandate, one where no large-scale electoral victory has empowered or authorized the reform effort.23

148

Commissions of Inquiry and National Security

By the time the 9/11 Commission released its report the reform window opened by the events of 9/11 had largely closed. Even the events of 9/11 and the independence shown by the commission failed to generate and sustain a robust reform window. For example, speaking of the 9/11 Commission’s call to create a powerful director of national intelligence and locate the office in the White House, Congressman Jack Murtha (D-PA) commented in September 2004 that “public indifference will make Congress able to resist changes [to the intelligence community].” Earlier the Bush administration succeeded in resisting early pressures to create an independent commission and acceded only under public pressure from the families of 9/11 victims. A similar pattern of resistance and then bending to public pressure generated by these families characterized its pattern of cooperation with the commission and its endorsement of the commission’s proposal for a DNI. THE LOGIC AND COHERENCE OF REFORM PROPOSALS Quite apart from questions about the nature of the political context within which intelligence oversight commissions operate is the matter of the soundness of their recommendations. Answers to this question can be sought from two different directions. The first approach starts with an examination of the specific reforms suggested by intelligence commissions. The second looks at the underlying logic that guides the decision making of commissions more generally. Intelligence Reforms Taken as a collective, intelligence oversight commissions have not moved forward in a linear fashion, addressing one problem and then moving on to the next. Often commissions have revisited the same issue again and again. A personnel system that prevents the effective use of expertise among the intelligence community agencies has been a repeated complaint, as is dissatisfaction with the quality of scientific intelligence and the need for greater cooperation among intelligence agencies and communication between intelligence producers and consumers. Moreover, in making recommendations, intelligence commissions did not speak with one voice. Nowhere is this more evident than with calls for establishing a director of national intelligence. The 9/11 Commission was not the first or last to call for a DNI-type figure to sit atop the intelligence community. The Schlesinger Report concluded that the main hope for realizing improvements in the operation of the intelligence community lay in a “fundamental reform” of its decision-making bodies and procedures. What was needed were “governing institutions.” The DCI was seen as

Investigative Oversight of the American Intelligence Community

149

currently unable to perform a community-wide leadership role effectively because of time limitations, his multiple roles, his lack of control over intelligence community resources, the fact that he is a competitor for resources, and that he may be outranked by other department heads who report directly to the president while he reports to the National Security Council. Suggested areas of improvement included the following: • Increasing the power of the leader of the intelligence community over resources; providing that individual with a stronger staff • Consolidating intelligence collection and production activities by function • Giving increased importance to competitive intelligence analysis and creating new estimating centers • Strengthening independent review mechanisms • Increasing centralized control over military intelligence units

The Schlesinger Report identified three fundamental approaches to solving this leadership problem. The option it favored was creating a director of national intelligence who would control all major collection assets as well as research and development. The director of national intelligence would also direct the government’s principal intelligence production and national estimating center. The CIA would retain responsibility for covert action. The other two options identified were providing the director of central intelligence with a strong presidential mandate and stronger staff and creating a coordinator of central intelligence who would act as White House or NSC overseers of the intelligence community. All three were seen as having pluses and minuses, but creating a director of national intelligence was seen as having the greatest promise. The WMD Commission’s report described the intelligence community as “fragmented, loosely managed, and poorly coordinated.”24 As a corrective it urged greater reliance on competitive analysis, improved information sharing, the creation of a new national proliferation center to coordinate efforts against WMD, the creation of a human intelligence directorate within the CIA, and supported the notion of a powerful director of national intelligence.25 Aligned against these intelligence oversight commissions were others that rejected a director of national intelligence. The Murphy Commission concluded “it was neither possible nor desirable to give the DCI line authority over that very large fraction of the intelligence community which lies outside the CIA.” Instead it recommended increasing the DCI’s political clout by placing this office “in close proximity to the White House and be accorded regular and direct contact with the President.”26 The AspinBrown Commission’s report endorsed a similar conclusion decades

150

Commissions of Inquiry and National Security

later.27 It examined but rejected a restructuring proposal that would give the DCI more direct authority over the “national elements” of the intelligence community along with one that would have reduced his responsibility for the CIA so as to allow more time for community-wide tasks. Judging the contributions made by intelligence oversight commissions to improving the functioning of the intelligence community is difficult because of the stream-like quality of policy making. The ripple effect of action taken at any one point in time may not be immediately apparent, and it, in turn, is subject to future downstream activity. For example, according to the CIA’s official historian, Arthur Darlington, the Eberstadt Report that was part of the First Hoover Commission inquiry “seems not to have been read by many” and had little influence on the 1949 Central Intelligence Agency Act.28 Yet one positive impact attributed to the Hoover Commission’s work is the later creation of the Board of National Estimates as a collective body to review the quality of estimates produced. (The Hoover Commission said, “there be established within the agency at the top echelon an evaluation board or section composed of competent and experienced personnel who would have no administrative responsibilities and whose duties would be confined solely to intelligence evaluation.”)29 The Board of National Estimates was created in 1950 as part of the Office of National Estimates, a reform pushed through after members of the Dulles Report joined the CIA. Over time it became less of a communitywide coordinating and review body and more of a component of the CIA. Gradually, the Board of National Estimates became isolated from the policymaking process, and in 1973, with one-half of the board’s seats vacant, DCI Colby disbanded the Office of National Estimates and in its place created the National Intelligence Officers (NIO) system.30 NIOs were not given a staff but instead relied upon the work of the CIA and other intelligence agencies to produce intelligence estimates. That changed in 1980, when they were placed under the supervision of a newly created National Intelligence Council (NIC), given an analytic staff, and moved from under the control of the DCI to the CIA’s deputy director for national foreign assessments. Under President Ronald Reagan, the NIOs were moved back to reporting to the DIC only to have their status changed again in 1992 when DCI Robert Gates made the NIC an independent body. A similarly complicated chain of downstream events characterizes commission calls for civilian presidential advisory boards. The Clark Report called for the creation of a committee of private citizens to periodically meet and examine the work of the intelligence community. President Eisenhower acted on this recommendation in 1956, creating a President’s Board of Consultants on Foreign Intelligence Activities. In 1962, this board was renamed the President’s Foreign Intelligence Advisory Board. Eisenhower acted largely to forestall a move to bolster congressional oversight of intelligence. Similar political logic was responsible for Gerald Ford’s endorsement of several of the Murphy Commission reform proposals, including

Investigative Oversight of the American Intelligence Community

151

the strengthening of the President’s Foreign Intelligence Advisory Board. Ford did so as part of a unilateral strategy to forestall unwanted congressional action that might result from the Church and Pike committee investigations. The Gore Report called for merging the President’s Foreign Intelligence Advisory Board and the President’s Intelligence Oversight Board. Clinton acted on this recommendation by an executive order in September 1993. In March 2008, President Bush took away much of the power of the Intelligence Oversight Board.31 Under the rules established by Ford, when the board uncovered intelligence actions that were “unlawful or contrary to executive order” it had to report that finding to both the president and the attorney general. Under Bush’s executive order, its authority to inform the attorney general was deleted and the president was to be informed only if other officials were not “adequately” addressing the matter. Also changed was the requirement that the inspector generals of intelligence agencies file a quarterly report with the board. One of the 9/11 Commission’s recommendations was the creation of a Privacy and Civil Liberties Oversight Board to ensure that citizens’ rights were not violated in the war on terrorism. A compromise between Congress and the White House resulted in having a provision creating this board included in the Intelligence Reform Act of 2004. This compromise allowed the president to appoint its members and have them serve at his pleasure, although they are confirmed by the Senate. Housed in the White House, the administration exercises control over the board by the ability to deny it subpoena power and giving the attorney general veto power over any request for documents. Five months after the act was passed, the White House had not yet named members to the board or provided it with a small budget. The Privacy and Civil Liberties Board held its first meeting in March 2006 and its first public hearing in December 2006 and was only briefed by the administration on the existence of the warrantless wiretap program in October of that year, almost one year after its existence had become public knowledge. In its first report to Congress submitted in March 2007, the board noted that it had concentrated on three activities during its first year of existence: establishing organization and administrative processes, engaging in education and outreach, and prioritizing its tasks.32 Downstream politics also affected the implementation of Aspin-Brown Commission reforms. Although it did not endorse the creation of a director of national intelligence, the commission did favor giving the DCI additional tools to carry out his community role. Among the measures proposed that would aid the DCI were the addition of a deputy director for the intelligence community and a deputy director for the Central Intelligence Agency. The DCI would concur in the appointments of the directors of the National Security Agency, the National Reconnaissance Office, and the Central Imagery Office and be consulted on the appointment of the director of the Defense Intelligence Agency along with a number

152

Commissions of Inquiry and National Security

of other key intelligence officials housed outside the CIA. Intelligence analysis was to be improved by promoting closer ties between producers and consumers of intelligence, making greater use of expertise outside the intelligence community, and taking advantage of the revolution in open source material. To further these changes in operating habits the commission recommended restructuring the National Intelligence Council as a National Assessments Center. Congressional action on the recommendations of the Aspin-Brown Commission report and the House Intelligence Committee staff study led to the creation of the National Imagery and Mapping Agency and the establishment of two NSC intelligence committees as well as granting the DCI a strengthened voice in budgetary and appointment matters. It also established two deputy DCI positions as recommended and three assistant DCIs, all of who would be approved by the Senate. In signing this legislation, Clinton pointedly objected to the requirement that the DCI be consulted or concur in the appointment of certain intelligence officials and the restructuring of the NSC system. DCI John Deutch voiced his opposition to the addition of new assistant DCIs who would require Senate confirmation. Given this opposition, it is not surprising that the implementation of provisions to strengthen the intelligence system in this manner was not pursued vigorously. George Tenet, who succeeded Deutch, stated he felt his statutory power was sufficient to coordinate the work of the intelligence agencies.

The Logic of Commission Reforms Commissions have been found to search for information and solutions in quite predictable ways.33 A key element in their approach is to try and solve problems by increasing control and improving efficiency. The problem is that bureaucracies are too decentralized. What is needed is “strong managerial leadership, clear lines of authority and responsibility, manageable spans of control, meritocratic personnel procedures, and the utilization of modern techniques for management.”34 However, as the impetus behind the reform movement weakens, political considerations begin to cast their shadow over commission recommendations.35 Talk of effectiveness and centralization are joined and then surpassed by concerns that all constituencies are listened to and that there be both managerial and political control over new and restructured organizations. The 9/11 Commission’s call for a strong DNI located in the White House is fully consistent with the logic of a centralized management approach to reorganization. Clear lines of accountability would be created and a direct link to the president established. Where the Bush administration supported locating Homeland Security in the White House to keep con-

Investigative Oversight of the American Intelligence Community

153

gressional influence to a minimum, it balked at placing the DNI in the White House because doing so invited Congress in through its confirmation and budgetary powers. The countering political logic of reorganization quickly emerged here, too, as key Bush administration officials spoke out against the creation of a strong DNI. Even more significantly, an alliance between the Pentagon and its congressional overseers asserted itself and imposed its will on the reform process. Finally, advocacy of a DNI is fully consistent with the overall thrust of previous investigations of the intelligence community and the limited nature of the search for information produced by reorganization efforts. A recurring criticism was the managerial problem presented by having the DCI serve simultaneously as head of the CIA and head of the intelligence community while a large portion of the intelligence budget resided beyond this person’s reach. The solution was equally obvious to previous commissions. The two positions should be split and a new position established that would have true control of the intelligence community’s budget to provide centralized control and direction. Richard Posner notes that apparently unexamined was the experience of other countries that experienced strategic surprise and the lessons they learned. Most notably he points to Israel and the findings of the Arganat Report issued after the 1973 Yom Kippur War, which stressed the value of diversity in intelligence and rejected greater centralization as a solution.36 Other commissions, while not calling for a DNI, did embrace the logic of administrative reforms in other ways. The First Hoover Commission called for vigorous efforts to improve the internal structure of the CIA and the quality of its products. The Second Hoover Commission recommended that the director of central intelligence concentrate on the coordination of community-level intelligence efforts and leave the day-to-day administration of the CIA to an executive officer or chief of staff. The Murphy Commission called for delegating much of the DCI’s day-to-day authority for running the CIA to a deputy. The Gore Report spoke of the need for the DCI to place greater emphasis on his community responsibilities and the need for greater information sharing among community members. In an observation similar to those made by earlier commissions, the Gore Report saw a need to reform personnel policies by calling for the adoption of a common set of personnel standards and practices throughout the intelligence community as a means of furthering collaboration and efficiency. The principle of efficiency was also applied by commissions to relations between intelligence agencies and Congress. The Clark Report called for Congress to consider creating a joint intelligence committee similar to the Joint Committee on Atomic Energy. The Murphy Commission recommended creating a Joint Congressional Committee on National Security to oversee all activities in this area but wanted omitted any requirement that the president personally certify covert action operations. The 9/11

154

Commissions of Inquiry and National Security

Commission revisited this solution, putting it forward as one of two alternatives it recommended to Congress as means for organizing intelligence oversight. The other was to increase the status of the existing intelligence select committees by transforming them into standing committees with authorization and appropriation authority.37 The principal limitation to commission reform recommendations based on the logic inherent in administrative reorganization as a solution to policy problems is that not all problems have solutions. Some are “wicked problems for which there are only temporary and imperfect solutions.”38 Intelligence failures fit nicely into this category. Virtually all accounts of intelligence analysis and estimating stress that the causes of intelligence failures are multiple and that surprise is endemic to the fundamental nature of world politics. Surprise cannot be avoided in any absolute sense. There is no magic formula for anticipating the future, and intelligence analysis should not be confused with fortune-telling. Additionally, any organizational solution imposed from above or outside the organization likely will come with diminishing returns built in. As Richard Betts notes, if reforms in procedure do not fulfill day-to-day organizational needs, or should they complicate organizational decision-making procedures, they will fall into disuse or be given little more than lip service by those in the organizations. Only those reforms that are seen as providing frequent practical benefits and meeting one’s own needs will survive.39

CONCLUSION Demystifying intelligence commissions requires obtaining a clearer understanding of the conditions they operate under as well as the content of their recommendations. Only then will we be in a position to make informed and impartial judgments about their value as instruments of intelligence oversight. An inspection of the conditions under which intelligence commissions operate from their point of entry into an ongoing policy stream through navigating the politics of Washington to the circumstances under which their conclusions are presented leads to caution in making any generalizations about what constitutes the politics of a “normal” intelligence oversight commission. Three summary observations stand out. First, politics matters. Intelligence oversight commissions do not receive a free pass in conducting their investigations. They are not seen as politically neutral in spite of their tendency to be bipartisan in composition and receive words of praise by presidents upon presenting their report. Second, both intelligence commissions that advance particularly far-reaching intelligence reforms such as the 9/11 Commission and those, such as the Murphy Commission, that make modest suggestions for improving the functioning of the intelligence community, or what critics such as Senator Mansfield referred to as limited tinkering with its struc-

Investigative Oversight of the American Intelligence Community

155

ture, are equally likely to touch upon, and encounter, opposition in the major political rocks found in the waters of Washington intelligence politics. In turning to the matter of content, it is evident that intelligence oversight commission recommendations are a decidedly mixed bag falling somewhere in between the two extremes noted earlier. They have not been totally dismissed but are seldom totally embraced. It perhaps is fitting to end by citing Frank Popper’s observation that “presidents do not establish commissions to hear unrelieved criticism of their own policies.”40 To the extent that intelligence oversight commissions heed this rule, their recommendations may influence policy.

NOTES 1. Trent Lott, “Special Commissions,” Congressional Record, September 23, 2002, S9050–53. 2. GPO Access, “Weekly Compilation of Presidential Documents,” http:// www.gpoaccess.gov/wcomp/search.html. 3. Thomas Wolanin, Presidential Advisory Systems: Truman to Nixon (Madison: University of Wisconsin Press, 1975); David Flitner, Jr., The Politics of Presidential Commissions: A Public Policy Perspective (Dobbs Ferry, NY: Transaction, 1986); Amy Zegart, “Blue Ribbons, Black Boxes: Toward a Better Understanding of Presidential Commissions,” Presidential Studies Quarterly 34 (2004): 366–93; Frank Popper, The President’s Commissions (New York: The Twentieth Century Fund, 1970); and Terrence Tutchings, Rhetoric and Reality: Presidential Commissions and the Making of Public Policy (Boulder, CO: Westview, 1979). 4. Not all intelligence commissions have studied intelligence failures. The Taylor Commission set up by President Kennedy and chaired by General Maxwell Taylor looked into the Bay of Pigs covert action operation. Its report is found at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB29/index.html. 5. Frank Gervasi, Big Government: The Meaning and Purpose of the Hoover Commission Report (New York: Whittlesey House, 1949), p. 8. 6. A declassified partial version of the Dulles-Jackson-Correa Report can be found in William Leary, ed., The Central Intelligence Agency: History and Documents (University: University of Alabama Press, 1984), p. 138. 7. Richard Norton Smith, An Uncommon Man: The Triumph of Herbert Hoover (New York: Simon & Schuster, 1984), p. 411. 8. The report can be found on the Air University Web site at http://www. au.af.mil/au/awc/awcgate/nssg/. 9. Peter Grose, Gentleman Spy: The Life of Allen Dulles (Boston, MA: Houghton Mifflin, 1994), pp. 275–90. 10. The Dulles Report, in Leary, Central Intelligence Agency, p. 140. 11. Ibid., p. 138. 12. Commission on the Organization of the Executive Branch of the Government, Intelligence Activities: A Report to Congress (Washington, DC: Government Printing Office, June 1955), pp. 13–14. 13. Walter Pincus, “Intelligence Plan Reviewed,” Washington Post, August 4, 2004, p. A17.

156

Commissions of Inquiry and National Security

14. Gervasi, Big Government, p. 5. 15. National Performance Review, The Intelligence Community: Accompanying Report of the National Performance Review Office of the Vice President (Washington, DC: Government Printing Office, September 1993). 16. The report and other related documents can be found in Craig R. Whitney, The WMD Mirage: Iraq’s Decade of Deception and America’s False Premise for War (New York: Public Affairs Press, 2005). 17. Senator Ted Kennedy quoted in Flitner Jr., The Politics of Presidential Commissions, p. 2. 18. Thomas Cronin, “On the Separation of Brain and State: Implications for the Presidency,” in Modern Presidents and the Presidency, ed. Marc Landy (Lexington, MA: Lexington Books, 1985), p. 61. 19. Anne Karalekas, History of the Central Intelligence Agency (Laguna Beach, CA: Aegean Park Press, 1977), pp. 83–85. 20. Arthur Darlington, The Central Intelligence Agency: An Instrument of Government to 1950 (University Park: Pennsylvania State University Press, 1990), pp. 404–5. This document was declassified in 1989. 21. John T. S. Keeler, “Opening the Window for Reform: Mandates, Crises, and Extraordinary Policy-Making,” Comparative Political Studies 25 (1993): 433–86. 22. James March and Johan Olson, “Organizing Political Life: What Administrative Reorganization Tells Us about Government,” American Political Science Review 77 (1983): 290. 23. Keeler, “Opening the Window for Reform,” p. 478. 24. Walter Pincus and Peter Baker, “Panel Assails Intelligence on Banned Weapons,” The Washington Post, September 12, 2004, p. A5. 25. The report and other related documents can be found in Whitney, The WMD Mirage. 26. Report of the Commission on the Organization of the Government for the Conduct of Foreign Policy (Washington, DC: Government Printing Office, June 1975), p. 98. 27. Commission on the Roles and Capabilities of the Untied States Intelligence Community, Preparing for the 21st Century: An Appraisal of U.S. Intelligence (Washington, DC: Government Printing Office, 1996). 28. Darlington, The Central Intelligence Agency. 29. See Gervasi, Big Government, p. 281. 30. Karalekas, History of the Central Intelligence Agency, p. 87. 31. Charlie Savage, “President Weakens Espionage Oversight Board Ford Created,” The Boston Globe, March 14, 2008, p. A1. 32. The report can be found on the Privacy and Civil Liberties Board’s homepage at http://www.privacyboard.gov/reports/2007/congress2007. 33. Barry Sraw, et al., “Threat-Rigidity Effects in Organizational Behavior,” Administrative Science Quarterly 26 (1981): 501–24; and Eric Stern, “Crisis and Learning: A Conceptual Balance Sheet,” Journal of Contingencies and Crisis Management 5 (1997): 69–86. 34. March and Olson, “Organizing Political Life,” p. 283. 35. Stern, “Crisis Learning,” p. 73. 36. Richard Posner, Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (Lanham, MD: Rowman & Littlefield, 2005), p. 84.

Investigative Oversight of the American Intelligence Community

157

37. U.S. National Commission on Terrorist Attacks upon the United States (the 911 Commission), Final Report (Washington, DC: Government Accounting Office, 2004), p. 420–21. 38. Charles Wise, “Organizing for Homeland Security,” Public Administration Review 62 (2002): 133. 39. Richard K. Betts, “Analysis, War, and Decision: Why Intelligence Failures Are Inevitable,” World Politics 31 (1978): 71–72. 40. Frank Popper, The President’s Commissions (New York: Twentieth Century Fund, 2000), p. 9.

CHAPTER 9

Commissions of Inquiry as Agents of Change in the Israeli Intelligence Community Shlomo Shpiro

Among all government departments and organizations in a democracy, intelligence services are among the most resistant to change. Their inherent secrecy and separate organizational culture enables them to resist major changes in structure, tasks, or scope of operations even when threats and circumstances change significantly. The structure of a country’s intelligence community reflects its current priorities and threat perceptions but is also often a product of its history and past threats. In many Western democracies, governments are often reluctant to force major changes on their intelligence communities since they want to avoid a direct confrontation with the services. Instead, the common expedient solution in the aftermath of intelligence scandals or failures is adding another organizational layer of coordination, liaison, or information sharing while the basic structure remains the same. The Israeli intelligence community is a good example of this organizational longevity and resistance to change. The structure of Israel’s intelligence community dates back to the foundation of the state in 1948 and has changed very little since other than in size, although the threats it faces have changed radically over the past six decades. Even major failures and national calamities such as the 1973 Yom Kippur War or the 1995 assassination of Prime Minister Rabin brought in their wake no significant changes in the basic structure of the responsibilities of the component organizations of the Israeli intelligence community. Shying away from a direct confrontation with the intelligence services, numerous Israeli governments resorted to indirect means in their efforts to apply some changes in the intelligence community. Commissions of inquiry, established to investi-

Commissions of Inquiry as Agents of Change in Israel

159

gate intelligence failures and affairs, served for the government both as a means of responding to public pressure for an investigation and as a means of trying to implement change. This policy tool was used frequently and with varying degrees of success. This chapter examines the activities, findings, and effects of six commissions of inquiry that dealt with intelligence issues in Israel. It argues that Israeli governments perceived commissions of inquiry not only as a means of finding immediate remedies to a specific intelligence-related problem or deficiency but also as means to promote changes within the intelligence community, changes which will be more palatable to intelligence chiefs if coming from an impartial, external, and apolitical authoritative body. As such, the role of commissions of inquiry in Israel goes beyond their immediate findings in correcting specific problems and extends to serving as impartial, external agents of change, relatively immune from daily politics and political loyalties. Over the past six decades, over a dozen commissions of inquiry investigated a myriad of intelligence affairs, failures, and scandals. A detailed analysis of the activities, findings, and effects of each of those commissions would far exceed the space of this chapter. This analysis will examine six representative commissions: the Olshan-Dori Committee, the Cohen Commission, the “Commission of Seven,” the Agranat Commission, the Kahan Commission, and the Ciechanover Commission. These six commissions were chosen as representative on three criteria: their structure and legal base, chronological spread, and the structural impact of their reports on the intelligence community. In term of structure, the six case studies cover the four types of commissions used over the years in Israel: a secret commission established by the prime minister, an internal military commission, a state commission of inquiry, and a governmental commission of inquiry. In terms of chronological spread, the first three case studies took place in the 1950s and early 1960s, when Israel was a mobilized society and the security establishment enjoyed unparalleled public legitimacy. The fourth and fifth case studies took place in the 1970s and 1980s following the deep social and political changes in Israel in the aftermath of the Yom Kippur War that strongly undermined that public legitimacy. The sixth case study took place in the late 1990s, as the main threats to Israel shifted from regional wars to terrorism and weapons of mass destruction. In terms of impact, each of the six commissions presented here had different levels of impact, or even none at all, illustrating the potential but also limited power of such commissions to achieve long-lasting changes within the intelligence community. The main intelligence-related commissions of inquiry not analyzed in this chapter include the 1987 Landau Commission on General Security Service interrogations, the 1994 “Shamgar I Commission” on the massacre of Arab worshippers by an Israeli settler at a holy site in Hebron, the 1995 “Shamgar II Commission” on the murder of Israeli prime minister Yitzhak Rabin, the 2001–03 Orr Commission on police reaction to Arab civil

160

Commissions of Inquiry and National Security

unrest, the 2002 “Gandi Commission” on the murder of Israeli tourism minister Rehavam Zeevi, and the 2003 Steinmetz Commission on the Libyan nuclear program. A brief analysis of the intelligence aspects of the Winograd Commission on the 2006 Second Lebanon War is presented in the conclusions section. Each of the six commission case studies in this chapter focuses on three salient elements: the circumstances of its creation and composition, the commission’s conclusions and report, and the intelligence impact of those findings and recommendations. The concluding section analyzes the advantages and limitations of commissions of inquiry as agents of change for the intelligence community and the means by which the government sought to address the main structural problem in their findings and presents the recent creation of a Ministry of Intelligence as an attempt to address those deficiencies pointed to by many commissions on a longterm basis.1 LEGAL, POLITICAL, AND ADMINISTRATIVE FRAMEWORKS The institution of commissions of inquiry in Israel draws its origins from the British Mandate administration of the pre-independence era but has evolved in a way that reflects the changing Israeli political culture. Until 1968 there was no specific legislation on commissions of inquiry in Israel. The creation of such commissions was the prerogative of the government, and until 1968 commissions were created by executive orders of the prime minister and approved by the government of the day. The lack of legislation meant that prime ministers could determine the structure and characteristics of each commission. Indeed, almost each commission created during that period was different in it structure and procedures. Membership was determined by the government, in practice usually by the prime minister, and often included Supreme Court judges and senior military, or former military, figures. Prompted by the protracted and politically fraught inquiries into the Lavon affair (discussed in the following), a new law was enacted to place future commissions of inquiry on a unified basis. The Law on Commissions of Inquiry 1968 defines a state commission of inquiry and regulates its activities. Such a commission is appointed by the government, but its members are selected by the president of the Israeli Supreme Court.2 A state commission must be chaired by a senior judge and usually has three members, although in some exceptions a larger, uneven number of members can be chosen. A state commission of inquiry can be established on a “matter of vital public importance at the time which requires inquiry.”3 There is usually little delay between a causal event and the establishment of a commission, often only a matter of days or weeks, through in a few cases commissions were established to investigate historical events or issues of long-term policies.4

Commissions of Inquiry as Agents of Change in Israel

161

A state commission of inquiry enjoys wide legal powers.5 It can summon witnesses who are obliged to testify. It can demand and receive any documents or other evidence, has an independent mechanism for collecting information, and has the powers of a court relating to perjury.6 Witnesses appearing before a state commission have the right of legal representation and can appear with their own lawyers. Testimonies provided before a state commission cannot be used as evidence in a court of law except in criminal proceedings. Commissions are free to make findings of misconduct against individuals or institutions. Before making any report public, a state commission must inform people who may be harmed by its findings.7 In some cases, commissions warned even people who were later not included in its final report.8 A state commission decides on its own working formalities and timetable. Upon the completion of its work, it submits its report to the government, which then decides whether and to what extent to make it public. The government is under no obligation to accept a commission’s findings or recommendations. Once a report is submitted there is rarely any debate over the validity of factual findings, and the political debate revolves over the adoption and implementation of the recommendations. In general, and not only in security matters, governments tend to implement recommendations over specific persons but sometimes shy away from recommended far-reaching, and often expensive, structural changes. The Knesset, Israel’s parliament, has little authority on matters of commissions of inquiry with one exception: The Knesset Committee on State Comptrolling can, with a two-thirds majority, decide on the establishment of a state commission of inquiry. Such a decision requires the approval of the state comptroller and was only ever only used once, in 1985, to investigate a scandal relating to the manipulation of banking shares.9 In practice, the involvement of the legislative branch begins once a commission submits its findings and recommendations, which can then be debated in the Knesset. Knesset debates are also used to try and pressure governments into accepting and implementing the recommendations of commissions. Once a government decides to implement recommendations made by a state commission, the Knesset may monitor the actual implementation as part of its general role of monitoring the activities of the executive branch. In 2001, a new form of commission of inquiry was established by the Law on Government 2001.10 This new form, the governmental commission of inquiry, can be established by the government or by a minister to investigate issues under their authority. Membership in a governmental commission of inquiry is determined by the prime minister, or minister, who appoints the commission, and must not necessarily be a judge. The appointing minister also determines the commission’s terms of reference. A governmental commission does not enjoy the investigatory powers of a state commission, but if it is chaired by a former judge the government can award it similar powers. A governmental commission is not obliged

162

Commissions of Inquiry and National Security

to warn people affected by its findings before publishing its report, but in practice this is usually done.11 A governmental commission submits its report to the minister who appointed it, who then is under no obligation to implement its findings. Inevitably, public and media pressure plays an important role in such a decision. The reports of both state and governmental commissions of inquiry are usually made public, at least in part. They can, and often do, contain dissenting opinions, usually referring to recommendations. Reports are usually long and detailed, often containing hundreds of pages.12 Some parts, usually those dealing with secret issues or containing classified material as annexes, are not made public. All reports are deposited with the State Archives, and in many cases even the secret parts of reports are released to the public in later years once the information they contain is no longer considered to present threats to security. Such was the case, for example, with thousands of pages of reports and witness statements of the Agranat Commission (discussed in the following), which were set to remain closed until 2004 but were made public by 1995. The publication may include not only the actual reports but also transcripts of witness testimonies or questions submitted by commission members. In most commissions of inquiry, both state and governmental, the actual process of debate, evaluation, and formulation of recommendations remains unknown as it is carried out behind closed doors. Commission members often debate for weeks before issuing a report. They are under no formal time pressure since each committee sets its own time limits. It is rare for members to provide information, in media interviews or public speeches, on the evaluation process even long after the activities of a commission have ended. It is thus also difficult, if not impossible, to assess whether and to what degree members are under pressure by the government. The reports of most commissions of inquiry have generated considerable political and public debates, but their members, even when still active in governmental or military service, are generally considered independent. In the early years of Israel’s independence, the intelligence services enjoyed wide freedom of action away from political and public scrutiny. The first case that brought about the need for an intelligence commission of inquiry occurred in 1954, when a new president in Egypt appeared to present a major threat to Israel. What became known as the Lavon Affair was investigated by three different commissions of inquiry, and its ramifications poisoned Israeli politics for over a decade. THE LAVON AFFAIR—THREE COMMISSIONS AND NO ANSWERS In the 1950s, Egypt was perceived to be Israel’s most dangerous enemy. The rise to power of the popular and dashing president Gamal Abdul Nasser in 1953 and Egypt’s subsequent nationalization of the Suez Canal

Commissions of Inquiry as Agents of Change in Israel

163

raised fears in Israel of an impending Egyptian attack. Nasser, who as a young officer participated in Egypt’s failed invasion of Israel in 1948, promised to “throw the Israelis into the sea.” In October 1954, Egypt and Britain reached an agreement on a gradual withdrawal of British forces from the Suez Canal Zone over a 20-month period. AMAN, Israel’s military intelligence branch, feared that British withdrawal from the canal would open the way for an attack against Israel and believed that something must be done to prevent the British from leaving. Senior AMAN officers hatched a plan to use covert action in Egypt in order to prevent the British withdrawal. At the time, AMAN was running two agent networks in Egypt based on groups of young Egyptian Jews, some of whom were trained in Israel. AMAN’s plan, code named “Operation Suzanna,” called for a series of bomb attacks against British facilities in Egypt, which would demonstrate to the British government the inability of the Egyptians to ensure the security of such a key strategic area and prevent, or at least slow down, British withdrawal. AMAN’s agents attempted to place small bombs at a British cultural center and other locations, but one bomb ignited prematurely in the hands of an agent and the entire networks fell into Egyptian hands. After the ensuing trial, two young Egyptian Jews were executed and others sentenced to long prison sentences. The operation was a fiasco and had no effect on British plans in the region. The AMAN operation was not sanctioned by Israel’s prime minister, Moshe Sharet. Sharet was a weak prime minister and was all but ignored by the powerful military and intelligence establishments. Once details of the debacle became known in Israel, Sharet demanded to know who had authorized such a harebrained scheme. The head of AMAN, General Binyamin Gibli, claimed he received the approval of Defense Minister Pinhas Lavon at a private meeting between the two, while Lavon flatly denied giving any approval to such an operation.13 The argument quickly became known as the Messy Affair, with opinions strongly at odds inside the Israeli government and army between supporters of Gibli and Lavon. The affair quickly deteriorated into years of dirty defamation campaigns, lies, and counter-lies and had profound effects on Israeli politics over an entire decade. THE OLSHAN-DORI COMMITTEE Prime Minister Sharet was determined to find out who was lying, his defense minister or his head of military intelligence. In strict secrecy he ordered the formation of a commission of inquiry that became known as the Olshan-Dori Committee. Its members were Supreme Court justice Yizhak Olshan, a London-trained lawyer with extensive legal experience but little knowledge about intelligence matters, and General Yaacov Dori, a former Israel Defense Forces (IDF) chief of staff. This committee was

164

Commissions of Inquiry and National Security

the first such commission of inquiry in Israel and was established under the personal authority of the prime minister. Its mandate was simple—to determine who gave the order to activate the networks in Egypt. The committee questioned both sides at length but was unable to reach conclusive answers. Its report was very ambiguous and stated, “We were not convinced that the Head of AMAN did not receive orders from the Defense Minister. Nevertheless we are not certain that the Defense Minister did give the alleged orders.” This masterful doubletalk was of no help to beleaguered prime minister Sharet, who was under political pressure to hold those responsible for the failure in Egypt to account. Following the committee’s report, in February 1955, Lavon resigned while still maintaining he had not given the crucial order. Gibli was moved away from AMAN to command an infantry brigade. THE COHEN COMMISSION Lavon was replaced by David Ben-Gurion, Israel’s legendary elder statesman, who was also elected a few months later as prime minister. Ben-Gurion, who respected Lavon’s organizational capabilities, appointed him to head the powerful Histadrut, Israel’s trade union umbrella organization. In early 1960, former AMAN agent Avri Elad, who led one of the networks in Egypt in 1954 but had been able to escape, was put on trial for treason, accused of trying to sell secret information to the Egyptians. During the trial, Elad claimed he had been part of an IDF cover-up of the affair, having been ordered by his superiors to lie about crucial details in a way that would reinforce Gibli’s version of events. He also claimed that AMAN officers forged documents showing Lavon gave the order over the Egypt networks to protect Gibli, who had powerful backers inside the IDF and was perceived as a future chief of staff. Ben-Gurion was enraged about a possible army cover-up and ordered the appointment of a new commission of inquiry, the Cohen Commission, to get to the bottom of the affair. Its mandate was restricted to investigating whether the heads of AMAN were involved in fabricating evidence relevant to the Lavon Affair. The Cohen Commission was unique in its status since it was officially an internal military commission with no civilian judicial powers although its members were selected by the prime minister.14 This unprecedented form of commission may have been chosen by Ben-Gurion, who was also defense minister at the time, due to the commission’s need to examine top secret and highly sensitive intelligence information but probably also as an effective means of preventing any premature leaks. The commission was chaired by Prof. Chaim Cohen, a Supreme Court judge and highly respected legal expert. Its other members were General Mati Peled, who was also a trained lawyer, and a senior serving IDF officer, General Aharon Doron.

Commissions of Inquiry as Agents of Change in Israel

165

After extensive questioning of many of those involved in the affair, the Cohen Commission reached decisive conclusions. Its report, presented in October 1960, determined that senior AMAN officers lied to the OlshanDori Committee and that the first sabotage operation in Egypt had been carried out several weeks before the date on which Gibli claimed he received Lavon’s approval for the operation. The commission recommended further investigations, including the questioning of Gibli’s former secretary, in order to determine if actual documents were forged to incriminate Lavon.15 Prime Minister Ben-Gurion, however, rejected the commission’s findings, and no action was undertaken against Gibli. Details on the affair were kept out of the Israeli press by military censorship, and the Israeli public had little knowledge of the Cohen Commission investigations or its disturbing findings.16

THE “COMMISSION OF SEVEN” Despite the findings of the Cohen Commission, the Messy Affair remained a contentious issue in Israeli politics. Lavon demanded a public rehabilitation, while Ben-Gurion prevaricated and wanted to appoint yet another commission of inquiry, but this time a judicial one. The matter came before the government, which decided not to appoint a judicial commission but rather a new commission of inquiry made up of government ministers. This form of commission had some precedents and offered the advantages of being free from judicial rules and formalities and capable of swift action. The composition of the new commission was chosen in a way that reflected the widest possible consensus. It was composed of seven members representing the six political parties in the governing coalition. The commission, which soon became known as the Commission of Seven, was chaired by Justice Minister Pinhas Rosen, an experienced legal expert of impeccable reputation, and it also included Minister of Police Bechor Shitrit, who had previously been an officer and investigator in the British Mandate Police in Palestine. The five other members were all senior and respectable ministers. The Commission of Seven’s mandate was to examine all material relating to the Lavon Affair and recommend ways of ending the dispute. The commission began its work in November 1960. Its members examined all written material but did not interview any witnesses, with the exception of Gibli’s former secretary, who was interviewed in Paris. She immediately admitted to forging, on Gibli’s orders, a key document in a way that incriminated Lavon. In late December 1960, the commission submitted its report. The unanimous opinion was that Lavon did not give the order for the activation of the Egypt networks. Lavon received a public rehabilitation and Gibli was forced to leave the IDF.

166

Commissions of Inquiry and National Security

One person, however, refused to accept the Commission of Seven’s findings: Prime Minister Ben-Gurion. He attacked the commission’s work as “miscarriage of justice and forgery of the truth” and threatened to resign if Lavon was not fired from all his political positions. After extensive and acrimonious debates, on January 31, 1961, Ben-Gurion, the founder of the State of Israel and its unquestionable leader for over a decade, resigned. Lavon, too, was forced into resignation. Ben-Gurion was reelected as prime minister in August 1961 but had reached the end of his political career. He resigned again in June 1963 and tried to force another inquiry into the Lavon Affair but was forced to leave the Labour Party, the party he had founded and led for over four decades. In the Lavon Affair, three different types of commissions of inquiry sought to discover the truth of one question that became infamous in Israeli history: Who gave the order? However, none of those commissions dealt with the warped rationale, the faulty planning, or the amateurish conduct of Operation Suzanna. The logic behind AMAN’s basic assumption that British withdrawal from the Canal Zone would be halted because of a few bombs blown up somewhere in Egypt was never questioned by any of the commissions, leading to the almost inevitable conclusion that those commissions were used, or abused, for purely political purposes. While politicians quibbled over responsibilities, a dozen Israeli agents rotted for 14 years in harsh Egyptian prisons with little efforts made to secure their release. The three commissions of inquiry over the Lavon Affair did bring one key structural change in Israel’s intelligence community: Unit 131, the AMAN unit responsible for human intelligence (Humint) operations in Arab countries, was transferred to the Mossad, which became the principal Humint agency in Israel. Although AMAN was still allowed to run some limited Humint operations, mainly infiltrating agents into countries that had a common land border with Israel, this became a minor role within AMAN. Instead, military intelligence gradually evolved into a signals intelligence agency (Sigint), intercepting enemy communications and later using imagery satellites and other technological means for visual and electronic intelligence collection. Its exclusive reliance on more and more sophisticated Sigint was to cloud its assessment and bring Israel to the brink of a tragic military defeat.

THE GREATEST SURPRISE: THE AGRANAT COMMISSION AND THE YOM KIPPUR WAR On the afternoon of October 6, 1973, the armies of Egypt and Syria, reinforced by Iraqi and Libyan units, launched a massive military attack against Israel on two fronts. The Israeli army was caught by surprise, with many frontline soldiers having been sent home for the Jewish holiday of

Commissions of Inquiry as Agents of Change in Israel

167

Yom Kippur. In the south, the Egyptian army was able to cross the Suez Canal and advance deep into Israeli territory. In the north, the Syrian army captured part of the strategically important Golan Heights and threatened Israeli population centers. Most Israeli frontline units were unprepared for the fighting and suffered heavy casualties. In the weeks and months preceding the attack, Israeli intelligence had collected a large amount of information indicating an incoming attack, including increased Arab troops movements. This information, however, was ignored since AMAN’s assessment was that Arab countries would not attack Israel before they could neutralize Israel’s air superiority, an assessment that proved completely wrong. The Mossad, on the other hand, was able to obtain one conclusive warning from an agent close to the Egyptian president on the night before the attack. This warning gave the IDF a few hours to begin mobilization before its frontline units were overrun. The war lasted almost three weeks, and each side suffered thousands of casualties. During the first three days it looked as though the IDF was close to the breaking point. Israeli defense minister Moshe Dayan even feared that it would be the end of the State of Israel. However, after suffering heavy defeats in the first few days of fighting, the IDF was able to stem the tide of the war and regain territory captured by Arab armies. Israeli forces crossed the Suez Canal and threatened to advance on Cairo. The war stopped as a cease-fire was imposed by the superpowers on October 24. The 1973 war was a national calamity for Israel and the closest the country has ever come to a total military defeat. Israeli society, confident and feeling undefeatable after the easy victory of the 1967 Six-Day War, was plunged into national depression. After the war, intense public pressure was brought to bear on Prime Minister Golda Meir to investigate the catastrophic failure to warn of the impending attack and the unpreparedness of the IDF. On November 21, 1973, the Israeli government appointed a commission of inquiry to be chaired by Supreme Court president Dr. Shimon Agranat. The Agranat Commission was constituted as a state commission of inquiry and given the mandate of examining what information had been available before the war, how that information had been interpreted, and how the IDF had prepared for the war and responded in its first stages. Members were appointed by the commission’s chairman. In addition to Agranat, the commission included Supreme Court judge Moshe Landau, State Comptroller Dr. Yizhak Neventzal, and former IDF chiefs of staff General Yigal Yadin and General Chaim Laskov. The Agranat Commission interviewed 90 witnesses and received testimonies from 200 other people involved in the intelligence process and in the military and political decision making. On April 1, 1974, the commission issued its first interim report. Its main finding was the cause for the total surprise: AMAN’s belief that Egypt would not attack Israel as long as it could not counter Israeli air superiority and that Syria would not attack without Egypt. This “intelligence concept,” adopted by head of AMAN

168

Commissions of Inquiry and National Security

General Eli Zeira, overrode any information collected on the ground that suggested that Arab armies’ movements were a precursor to war.17 The commission recommended that head of AMAN Zeira and IDF chief of staff David Elazar be removed from their duties. However, the commission exonerated Defense Minister Dayan and Prime Minister Meir from any blame. It also recommended a series of changes in the intelligence community. The two key recommendations were the division of intelligence assessment, until then done exclusively by AMAN, among several intelligence bodies (“assessment pluralism”) and the appointment of an intelligence advisor to the prime minister. Despite being exonerated by the commission, intense public displeasure forced the resignation of Prime Minister Meir 10 days after the publication of Agranat’s interim report. In January 1975, the Agranat Commission published its final report. With over 1,500 pages, it was a scathing review of the intelligence failures and lack of preparedness at almost every level of the IDF. In general, the commission criticized the army but not the politicians. IDF chief of staff Elazar and AMAN head Zeira were publicly disgraced and sacked. But the crucial long-term impact of these reports was major changes that followed inside the intelligence community, mainly in the field of assessment. The Mossad’s nascent intelligence department was enlarged and its responsibilities expanded, as was the role of the Foreign Ministry’s Research Unit. Mossad intelligence assessments were now presented to decision makers side by side with those of AMAN. Although AMAN, by far the largest intelligence service in Israel, retained responsibility for the National Intelligence Estimates, it lost much of the respect of decision makers and with it its primacy in Israel’s intelligence community. The Mossad, on the other hand, which did produce a valuable warning, albeit almost too late, won political confidence and was given more weight in the security policy consultation process. Policy makers now turned more to the Mossad not only to collect information but also to carry out covert foreign policy activities.

LEBANESE NIGHTMARE: THE KAHAN COMMISSION AND THE SABRA AND SHATILA MASSACRES IN LEBANON A country of three competing religions and ethnic groups—Muslims, Christians, and Druze—Lebanon has suffered political instability since its independence in 1943. Conflict between the rival factions erupted in 1975 into a full civil war. Southern Lebanon was controlled by the Palestine Liberation Organization (PLO) and various Palestinian terror organizations that used it as a base for launching attacks into Israel. Beleaguered Christian militias in the south covertly approached Israel for help. The

Commissions of Inquiry as Agents of Change in Israel

169

Mossad was given the task of preventing the collapse of the Christian Phalange militias in southern Lebanon, first by providing them with arms, later by more direct means such as training and funding, and later still through direct military intervention. Senior Mossad officials considered the Lebanese Christians as potential allies and dreamed of a relationship that would one day culminate in a peace accord between Israel and Lebanon. The Mossad’s involvement in Lebanese politics increased after a massive Israeli military incursion into Lebanon in retaliation for PLO terror attacks in 1979. Israel’s main ally at the time was Bashir Gemayel, the charismatic leader of the Christian Phalange militias.18 Following a Palestinian assassination attempt against Israel’s ambassador in London, Israeli forces invaded southern Lebanon in June 1982. It was to be the beginning of 18 years of Israeli occupation of the south. Israeli forces advanced toward Beirut, aiming to expel the PLO from its Lebanese strongholds. In August 1982, most of the PLO units were evacuated from Beirut through international mediation. On August 23, Bashir Gemayel was elected president of Lebanon amidst talk of an impending peace accord with Israel. However, Gemayel was assassinated by a powerful bomb while making a victory speech to his loyal Phalange troops two weeks later. Immediately after Gemayel’s murder, Israeli troops surrounded west Beirut but refrained from entering the former PLO areas. At the same time, the Phalange militias, who had lost their popular leader, invaded the Sabra and Shatila refugee camps, home to thousands of Palestinian refugees, and began massacring the local civilians. In two days of frenzied killings, Phalange troops slaughtered hundreds of civilians in revenge for the death of Gemayel. The Israeli army moved into the camps only when the Phalanges had left. It is estimated that between 700 and 800 Palestinian civilians were killed by the Phalanges.19 Once information on the massacre became known in Israel, a huge public outcry forced the government to act. In an unprecedented step, 400,000 Israelis demonstrated in Tel Aviv calling for an investigation into Israel’s role in the massacre. It was by far the largest demonstration ever in Israel. Within days, Prime Minister Menachem Begin appointed a state commission of inquiry to be chaired by the president of the Supreme Court, Yitzhak Kahan. The mandate of the new commission was formulated in a broad way, to “investigate all the facts and factors connected to the acts of horror committed by Lebanese forces in the civilian population at the Sabra and Shatila camps.” The other two commission members were Supreme Court judge Aharon Barak and retired general Yona Efrat, a former assistant to the IDF chief of staff who was perceived distant enough from the security establishment to ensure independence. The Kahan Commission conducted intensive investigations. It interviewed 58 witnesses and demanded, and received, numerous documents

170

Commissions of Inquiry and National Security

from the intelligence community, the IDF, and other bodies. It also collected evidence outside Israel. Most of its meetings were conducted behind closed doors, and the protocol later published only deals with the open hearings. Prime Minister Begin later said that his testimony before the Kahan Commission was the most traumatic event of his life. In February 1983, the Kahan Commission presented its findings and recommendations to the government. Much of its report was classified, but the main findings and recommendations were made public.20 In its report, the commission cleared Israeli forces from any responsibility for the actual massacre. However, it placed the responsibility for the lack of action and lack of warning squarely on the shoulders of senior IDF officers, both on the ground in Beirut and in Israel. The report criticized the activities of the IDF chief of staff and other senior officers for not doing enough to stop the massacre once some information filtered through as to what was happening inside the camps. It determined that the head of AMAN, General Yehoshua Saguy, did estimate correctly the threat of the Phalanges’ entrance into the camps but did not warn strongly enough of the threat of a massacre and therefore should be fired. Its strongest recommendation related to Defense Minister Ariel Sharon; the commission ruled he was unfit to hold that position and recommended that he should be removed. The report also criticized the activities of politicians, including Foreign Minister Shamir, for not acting quickly enough once they learned of the killing of civilians. Regarding the head of the Mossad, Nahum Admoni, the commission found that he failed to “provide an unequivocal warning about a possible massacre” when briefing the government before the event but that this “should not be held against him.”21 The Kahan report caused a major political upheaval in Israel. Saguy and other officers resigned. Defense Minister Sharon, who refused to resign, was moved to the post of minister without portfolio. Sharon carried the negative stigma of the Kahan recommendations throughout his later political career. Even when elected prime minister by a large majority in 2003, he could not fulfill at the same time the position of defense minister, a dual role common in Israel, since the Kahan recommendations were still valid. Beyond its immediate findings, the lasting importance of the Kahan Commission is that it applied not only legal but also ethical and moral criteria in its investigations, findings, and recommendations. For the first time, a state commission of inquiry determined that inefficiency and lack of ethical wisdom or moral foresight are issues for which individuals should be held accountable. The results were not structural changes but a deeper realization within the intelligence community of the need to apply ethical and moral criteria in policy formulation. For many, the Kahan report signaled the end of the Mossad’s Lebanese adventures. In 1985, Israeli forces withdrew to southern Lebanon, and Israeli intelligence’s involvement in Lebanese politics declined steadily until Israel’s final withdrawal from Lebanese territory in May 2000.

Commissions of Inquiry as Agents of Change in Israel

171

FAILING TO KILL: THE CIECHANOVER COMMISSION ON THE MOSSAD’S FAILED ASSASSINATION IN AMMAN In the mid-1990s, the Hamas terror organization began a campaign of suicide bombings against Israeli targets in an effort to derail the Oslo peace process between Israel and the PLO. On July 30, 1997, a suicide bomber exploded in a busy Jerusalem market; 16 people were killed and almost 200 injured. Prime Minister Benjamin Netanyahu summoned the head of Mossad, Dani Yatom, and demanded urgent action against the Hamas. The Mossad recommended the assassination of Hamas leader Khaled Mashal, who was living in the Jordanian capital Amman. Preparations for the operation were accelerated after another deadly suicide bombing five days later. Little attention was given to the risk to the fragile IsraeliJordanian relations, though the operation came only three years after both countries had signed a fragile peace agreement. A Mossad assassination team was dispatched to Amman but had little time to carry out reconnaissance around Mashal’s office and residence. The Mossad decided to use a chemical weapon that would be sprayed surreptitiously at the target person, hoping that the cause of death would remain undetected. On September 25, 1997, the team carried out their mission. Two agents approached Mashal as he arrived outside his office, pretended to open a can of sparkling drink, and covertly sprayed him with the poison. However, Mashal’s bodyguard noticed that something was amiss. He was able to chase the agents and, with the help of passersby, held them until police arrived. The Mossad agents, who posed as Canadian tourists, were arrested and their cover quickly blown.22 Mashal was taken to the hospital in serious condition. King Hussein of Jordan, outraged at the attack, informed the Israeli government that if Mashal should die he would have the two Mossad agents executed. Prime Minister Netanyahu ordered the Mossad to provide the Jordanians with an antidote to the poison, which saved Mashal’s life. In a deal brokered with Jordan, Netanyahu was forced to release Hamas spiritual leader Sheik Ahmed Yassin and 70 other senior Hamas operatives who were imprisoned in Israel. The foiled assassination attempt was perhaps the Mossad’s worst operational fiasco and caused a severe rupture in Israel’s relations with Jordan. It also severely strained Israeli-Canadian relations, as the use of forged Canadian passports was not taken lightly by the Canadian government. The public outcry over the Mashal affair forced the government to appoint a commission of inquiry. Prime Minister Netanyahu chose to appoint a governmental commission, not a state commission, chaired by Yossi Ciechanover, a lawyer and former director general of the Foreign Ministry. Other members were retired general Dan Tolkovsky, former commander of the Israeli Air Force, and former chief of the Israeli Police, Rafi Peled. The Ciechanover Commission was called upon to investigate

172

Commissions of Inquiry and National Security

an issue never before dealt with in public in Israel, the state’s official assassination policy. This extremely sensitive issue quietly enjoyed wide tacit political support for decades as an ultimate means against the highest levels of threats against the state. The commission’s mandate called for it to investigate the decision-making process and approvals before the operation, as well as the planning, preparations, and actual execution of the attack. It was not mandated to investigate either the way the crisis was handled after the Mossad agents were captured or the ensuing diplomatic crisis with Jordan. The Ciechanover Commission began its work on October 7, 1997, and conducted its hearings behind closed doors. It interviewed 37 witnesses, including Mossad officials, field agents, and politicians. Commission members were forbidden from giving media interviews, and its work was generally carried out in secrecy. In February 1998, the commission presented its report to the government. In it, the commission determined that the target and location of the operation were legitimate, in accordance with a government decision to hit terrorist leaders wherever they might be. The reasons for the failure were hasty and faulty preparations, including incomplete collection of information on the ground in Amman, lack of sufficient responses for any problems during the attack, and the absence of a creative escape plan. It also criticized the lack of sufficient coordination between the Mossad and other intelligence services. The commission’s recommendations were divided into structural and personnel issues. Structural recommendations included the need for a reorganization of the Mossad’s operations branch, ways to improve the liaison and coordination between the various intelligence services, and other structural changes within the Mossad that were not made public. The commission considered the possibility of recommending the establishment of a national security council along the lines of the United States but decided that such a step would be impractical under current conditions. Instead it recommended the appointment of a special assistant for intelligence matters to the prime minister, in rank equivalent to a general, to coordinate the prime minister’s interaction with the intelligence community. When it came to personnel recommendations, the commission chose to walk a tightrope between the need to criticize what was obviously a very bad show, on the one hand, and the risk of harming Mossad morale and adversely affecting future operations, on the other. Indeed, the commission stated that if strict disciplinary measures were undertaken against the planners of the operation it could harm the capabilities of the Mossad.23 Majority opinion in the report criticized the activities of head of Mossad Yatom but said that any decision regarding his future was to be left to the government. The minority opinion (Peled) recommended removing Yatom from his post.24

Commissions of Inquiry as Agents of Change in Israel

173

The Mashal affair was investigated by two further commissions of inquiry. The first was an ad hoc committee appointed by the Knesset Subcommittee on Secret Services. Its six members were the Knesset members of the subcommittee. Five of those members determined that Yatom could continue in his position as head of the Mossad and only one member, in a minority opinion, argued that he should resign. Regarding the performance of Prime Minister Netanyahu, four members found that he made errors but did not call for his resignation. Some sources suggested later that members refrained from calling for Netanyahu’s resignation due to political calculations.25 The other commission to investigate the Mashal affair was an internal Mossad commission. No details were made public on its findings or recommendations. Relatively little is known about the implementation of the Ciechanover Commission recommendations regarding the structure of the Mossad, but there are indications that most of them were put into effect. Dani Yatom remained in his post as Mossad head but resigned five months later over another operational failure, the arrest of a Mossad agent in Switzerland while trying to tap the phone line of a Hezbollah activist.26 Internal resistance from within the security establishment may have had a hand in blocking the appointment of a senior officer as the prime minister’s advisor on intelligence, and the post was filled by a mid-level officer with the rank of colonel who answers to the prime minister’s military secretary.27 The effects of the Ciechanover recommendations led to the establishment of a National Security Council, in March 1999, and to the tightening of political controls over the intelligence community and especially on the planning and approval of covert action.28 CONCLUSIONS: COMMISSIONS OF INQUIRY AND CHANGES IN THE ISRAELI INTELLIGENCE COMMUNITY The intelligence commissions of inquiry analyzed in this chapter were used as political safety valves, to address wide public discontent over specific intelligence-related issues, and to remedy specific faults in intelligence work. Their investigations principally focused on identifying causes and responsibilities for specific failures. Their reports were generally received in a positive way by the public, the media, politicians, and the security establishment. Their investigations, even when conducted behind closed doors, contributed to a better understanding of the causes of failure in a transparent and educative way. Most commission reports did not mince their words when it came to attributing personal responsibilities or to recommending measures against individual people. They provided an acceptable truth, a thorough account of the failure, and practical means of rectifying it.

174

Commissions of Inquiry and National Security

Until 1968, the structure, membership, status, and procedures of a commission were composed in a seemingly haphazard way by the prime minister or government of the day. After the 1968 legislation, members were appointed by the president of the Supreme Court, a position that is not a prime ministerial appointment and thus effectively immune from political pressure.29 It is almost impossible to assess why specific persons were chosen to sit on such commissions: openly because of their integrity and professional experience, covertly perhaps also because of political calculations and hopes they will be moderate when judging the political leadership. However, there have been no instances of an overt or even discernable effort to influence the work or findings of a commission of inquiry. Even covert means of influence, such as a later favoritism toward a member who was modest in his or her criticism, are practically nonexistent. Commissions of inquiry in general maintained their integrity and did not become part of the system they tried to investigate. Two elements limited the work and long-term usefulness of intelligence commissions of inquiry: their limited research resources and their short existence. Early commissions, such as the Olshan-Dori Committee, the Cohen Commission, or the Commission of Seven, had very limited means of research at their disposal. Indeed, these were often nothing more than a few secretaries and stenographers with the relevant security clearance. Members had to rely on their personal influence to illicit the truth from witnesses and other evidence. In later years, commissions were provided with more robust research staff who could actually carry out research in preparation to the questioning of witnesses. This greatly enhanced the ability of commissions to present penetrating questions and to detect flaws in people’s accounts of events. But even a competent research staff is overwhelmed when investigating the complexities of such massive actions as major wars, involving hundreds of units and hundreds of thousands of people. Their investigations were therefore more effective when the mandate was quite narrow or when the scope of action investigated was short and limited. Once the work of an intelligence commission of inquiry is over, it literally disappears. Its members return to their ordinary jobs and their staff members return to the various government departments they came from, to the academia, or to their homes since many are often retired.30 The task of monitoring the implementation of their recommendations becomes that of the executive branch, which may not always be prompt or thorough enough and may not even fully understand the logic behind specific recommendations. Recommendations over personal responsibility were relatively easy to implement, since the relevant people were removed from their position, either fired or moved to another job, as specified by the relevant commission. But in cases of structural recommendations it was up to the government of the day not only to make immediate changes but also to ensure their longevity. This problem is well illustrated by the saga over the appointment, and disappearance, of a prime minister’s advisor

Commissions of Inquiry as Agents of Change in Israel

175

on intelligence as a key liaison and coordination link between individual intelligence services and the prime minister. Beyond their function as a political safety valve and means of addressing specific intelligence problems, intelligence commissions of inquiry in Israel have again and again come to grips with one fundamental problem in the structure of Israel’s intelligence community: the direct subordination of the intelligence services to the prime minister. Any prime minister of the day is routinely overworked and has little time to dedicate to intelligence matters. And since the level of secrecy of some intelligence issues precludes the involvement of most people on a prime minister’s staff, this resulted in a lower involvement in general of the executive branch in the strategic and tactical management of the intelligence community. While personal relations between a prime minister and the heads of the intelligence services could be excellent, there was always only a limited amount of time and effort that any prime minister could dedicate to intelligence management. The lack of a professional mediating link between the intelligence service and the prime minister was highlighted in many reports by numerous commissions of inquiry. Responses to these recommendations fell short of providing a long-term, permanent solution. What often happened was the appointment of someone as the prime minister’s advisor on intelligence, but when that specific person resigned or retired, the position remained vacant and in practice disappeared. A report by the Israeli state comptroller points to at least three such occasions in which an advisor was appointed but the post was abandoned once the incumbent left.31 This situation lacked any continuity or organizational memory and meant that such an appointment was not taken seriously by the heads of the intelligence services and thus did not carry the political weight needed to ensure effective controls. The 2006 Second Lebanon War provided further impetus to efforts aimed at providing the prime minister with a functional and effective mechanism for managing intelligence. The 2006 war was investigated by the governmental Winograd Commission of Inquiry.32 Although not appointed specifically to deal with intelligence issues, the Winograd Commission did make some recommendations in its report relating to intelligence within its wider investigation of the political and military aspects relating to the war.33 In its final report, presented on January 30, 2008, the commission recommended that the political leadership should be provided with “wide, deep, long term, summarized and updated politicalmilitary intelligence.” It highlighted the need to enhance the interaction between political decision makers and the heads of the intelligence community, including more frequent meetings and a better definition of the types of intelligence required by the government. It also recommended that the nascent National Security Council, founded in 1999 but as yet little involved in intelligence matters, should play a more active role in intelligence assessments.

176

Commissions of Inquiry and National Security

After decades of commissions of inquiry, debates, and recommendations, the Israeli government decided on March 5, 2009, to establish a Ministry of Intelligence to be headed by the deputy prime minister.34 This is nothing short of a structural revolution, the first major step in altering the overall structure of Israel’s intelligence community since 1952. The new ministry will be a one-stop shop replacing the unclear and often overlapping boundaries of responsibilities between individual services and the prime minister.35 It is a step that goes way beyond any commission’s recommendations in reflecting an understanding of the deficiencies of the current system and providing a deep, permanent, and budgeted solution. It remains to be seen how the establishment of this new ministry, planned to take place over the years 2010–12, will influence the activities of the intelligence community and its interaction with decision makers. In the volatile and unstable Middle East, where armed conflict is often lurking behind a corner, the new ministry may have to prove its value earlier than expected. NOTES 1. The author would like to express his sincere thanks to Dr. Jonathan Rynhold, to his research assistant Adi Frimark, and to the helpful and professional staff at the Israel State Archives. 2. Law on Commissions of Inquiry 5629–1968. 3. Ibid., article 1. 4. Examples include the 1982 Bechor Commission, established to investigate the murder of Zionist leader Haim Arlozorov, who was killed in Tel Aviv in 1933, and the 1988 Netanyahu Commission, established to investigate long-term public health policies. 5. For an extensive analysis of those powers, see Avigdor Klagsbald, State Commissions of Inquiry (Tel Aviv: Sarigim Leon, 2001). 6. Law on Commissions of Inquiry 5629–1968, articles 9, 11, 20. 7. Ibid., article 15d. 8. The Orr Commission sent warnings to 14 people, but some of them did not appear in its final report. 9. The Beiski Commission on Banking Shares Manipulation 1985. 10. Law of the Government 5651–2001. 11. For example, by the Zeiler Commission on Organized Crime. 12. Since some parts are unpublished it is difficult to assess how long reports are, but the level of detail, often referred to as the “resolution” of a report, is very often quite extensive. For example, the author examined hundreds of pages of the Agranat Commission in which, in the analysis of major battles, even the movements of small units were analyzed and followed up. 13. Much later in his life, Gibli claimed the person responsible for the order was Chief of Staff Moshe Dayan, who was abroad at the time of the debacle in Egypt. See Boaz Gaon, “Gibli on the Messy Affair: Dayan Gave the Order,” NRG News, October 6, 2008.

Commissions of Inquiry as Agents of Change in Israel

177

14. In Israel the IDF has its own independent courts martial system for trying military offences. It works separately from the civil courts and is staffed by military judges operating under military law. 15. The secretary, Dalia Carmel, was by then living abroad and could not be questioned by the commission. 16. The reasons for Ben-Gurion’s support to Gibli are unknown. Perhaps he genuinely believed that Lavon was responsible for the intelligence failure and that Gibli was being framed. In 1968 he met with the AMAN agents who had been imprisoned in Egypt for 14 years. As the meeting drew to a close, Ben-Gurion, by then a frail old man, said to them, “You were sold out . . . Lavon has lied . . . don’t let that be forgotten.” Aviezer Golan, Operation Suzanna (Tel Aviv: Idanim, 1976), p. 358. 17. Major parts of the Agranat Commission’s reports were closed to the public for 20 years. Some material was released for publication in January 1995, and most of the protocols were released in September 2006. Some parts are still secret. The Agranat reports, comprising over 2,200 pages, together with over 9,000 pages of testimonies and evidence, are available for viewing at the IDF Archives. 18. The only time the Mossad openly referred to its cooperation with Gemayel was an article by a former deputy head of Mossad who was directly responsible for those relations. See Nachik Navot, “Treasuring the Memory of Bashir Gemayel,” Haaretz, February 20, 2009. 19. The real numbers are unknown as most of the bodies were hurriedly buried in mass graves. The Kahan Commission, using UN and Lebanese sources, estimated 460 people killed (report marked as Item 151 in the Kahan Commission report), but estimates made by Israeli intelligence are significantly higher. 20. In 2002, the Israeli Supreme Court decided not to release the secret parts of the Kahan report, which comprise several thousand pages. For the Israeli government’s arguments why the protocols should remain secret, see “Attorney General’s Office: Do Not Reveal the Kahan Commission’s Protocols,” Nana News, February 1, 2001. 21. The published version of the Kahan Report is available via the Israeli Ministry of Foreign Affairs Web site at http://www.mfa.gov.il/MFA/Foreign%20 Relations/Israels%20Foreign%20Relations%20since%201947/1982-1984/104%20 Report%20of%20the%20Commission%20of%20Inquiry%20into%20the%20e. 22. Jordanian police alerted the Canadian consul in Jordan, who spoke with the two and quickly realized they were not Canadians. 23. Dror Marom, “Ciechanover Commission Report: Strict Measures Against Responsible Could Harm Mossad Capabilities,” Globes, February 17, 1998. 24. The report was to remain secret, but commission members were allowed to provide general findings and recommendations in a press release. For the findings see Ron Ben-Yishai, “The Operation in Jordan Was Justified,” Yediot Acharonot, February 2, 1998. 25. Under its procedures, the Knesset Subcommittee on Secret Services can form an ad hoc commission of investigation comprising the subcommittee’s members. Shlomo Shpiro, “ Intelligence and Civil Liberties in Israel,” Cambridge Review of International Affairs 19, no. 4 (2006): 639–42. See also Amir Oren, “In the Dark It’s Not Bad to be Head of the Mossad Meir Dagan,” Haaretz, March 26, 2010. 26. Yossi Melman, “Back to the Crime Scene,” Haaretz, September 26, 2007.

178

Commissions of Inquiry and National Security

27. The positions of prime minister’s advisor on intelligence and that of his deputy have been exempted from the general civil requirements regarding their recruitment in an open procedure. Official Government Publications (Yalkut HaPirsumin), No. 2418, p. 1320. 28. Government Decision No. 4889 of March 7, 1999. 29. The president of the Supreme Court is selected by a committee in which current judges have a majority. 30. Nowhere perhaps is such a disappearance better illustrated than with the Web site of the Winograd Commission. The domain name registration of the site (www.vaadatwino.co.il) was allowed to lapse less than two years after it submitted its final report and was bought for a few dollars by private citizens, who continue to display some of the commission’s material mixed with their personal observations and blogs. 31. State Comptroller and Ombudsman, Report on the National Security Council, 2006. 32. Members of the commission were Judge Eiyahu Winograd (chair), Prof. Ruth Gabison, Prof. Yehezkiel Dror, General (ret.) Chaim Nadel, and General (ret.) Menachem Einan. 33. Only 10 pages out of the over 600 pages of its final report dealt with intelligence. It was therefore not defined as an intelligence commission of inquiry and was not included for more detailed analysis in this chapter. 34. Statement by the government secretary, Zvi Hauser, January 31, 2010. 35. The first annual budget of the new Ministry of Intelligence will be 4.8 million Shekels (around $1.4 million). Zvi Lavie, “Additional 790.000 Shekel to Olmert Office,” YNET/Yediot Acharonot, May 4, 2010.

CHAPTER 10

Legislative Commissions of Inquiry in Spain Antonio M. Díaz Fernández

THE LEGAL FRAMEWORK FOR COMMISSIONS OF INQUIRY IN SPAIN Spain is a parliamentary monarchy that has two legislative chambers: the Congress and the Senate. The former, with 350 deputies elected from across the country, has the prime role in the legislative process. The latter is composed of 264 senators, in part elected under universal suffrage and in part appointed from the autonomous regions. The proportional formula in the election of deputies was motivated by a desire to avoid undue fragmentation of political forces in Parliament and to engender governments supported by a parliamentary majority. However, over the last 30 years the system has moved towards bi-partyism with the presence of different nationalist groups that lend intermittent support to either of the two mainstream parties. References to parliamentary commissions of inquiry appear for the first time in Spain in the Spanish Constitution of 1978. Under article 76.1, the Constitution establishes that “Congress and the Senate and, when appropriate, both Houses jointly, may appoint fact-finding committees on any matter of public interest.”1 Although this was the first time that these commissions of inquiry (hereafter CI) appeared in the Constitution, insofar as the wording of the article is concerned, the description of the CI made by the elected representatives was not appropriate. Short on detail as to why these commissions may be appointed, and what their objectives and end purpose may be, recourse to the procedural rules of Parliament and the Senate and interpretations by the legal services of Congress have

180

Commissions of Inquiry and National Security

been necessary over the years. The specific objective of these commissions is poorly defined. Looking at the different rules in use, this objective could be a “trabajo concreto” (specific piece of work), an “objetivo determinado” (defined objective), or an “asunto de interés público” (a matter of public interest), although this is very unsatisfactory.2 However, what is clear in our constitutional framework is that the only avenue for inquiries in Spain is through the legislature. As pointed out by Molas and Pitarch, “la función de control en el parlamentarismo democrático contemporáneo es una función fundamentalmente de información” (the supervisory role in contemporary democratic parliamentarianism is fundamentally concerned with the role of information);3 thus, the CI represent a further supervisory mechanism, and information is an instrument of theirs in order to ask about proceedings that would otherwise remain hidden.4 We are not therefore looking at bodies with a high degree of autonomy in their structure and operation. In essence, the CI is a recognized way of presenting carefully considered evidence to Parliament that will assist parliamentarians in their work; the transcendence that its findings might come to have in the face of public opinion is quite another matter. What is certain is that the likelihood of a CI actually getting to the bottom of an affair by itself is scant. As a result, its supervisory role is only upheld insofar as its investigative activity is accompanied by other parallel processes of judgment, such as those that often simultaneously unfold in the media, in the criminal courts, and even in the debate over the use of sanctioning instruments by the administration.5 The relationship between Parliament and the justice system has not been a calm one, as can be seen in the three commissions examined here. In principle, compatibility exists between the CI and judicial mechanisms, and by virtue of the distribution of competence they pursue different ends: political responsibility versus criminal responsibility, although there is some overlap,6 to the point that this led to the premature closure of the CI on the Grupos Antiterroristas de Liberación (GAL), as we shall see later on.7 Hence, the drafters of the 1978 Constitution qualified the conclusions reached by a CI, with a view to maintaining the independence of the courts and trying to limit the effect of these investigations on their own role as an instrument of parliamentary supervision.8 Thus, article 76.1 was worded to indicate that the conclusions of the CI “shall not be binding on the Courts, nor shall they affect judicial decisions, notwithstanding the fact that the results of investigations may be referred to the Public Prosecutor for that office to take appropriate action whenever necessary.” In this sense, it would therefore be acceptable for the resolutions and decisions of the courts to differ, and even to contradict, the conclusions of a commission of inquiry.9 To understand the structure of the CI when faced with the lack of detail in the constitutional rules, we have to refer to article 52.1 RC. This states that the following bodies may request a CI: 1) at a plenary session of the

Legislative Commissions of Inquiry in Spain

181

Chamber by a simple majority; 2) at the behest of the government;10 3) at the request of the Mesa del Congreso, or Bureau, (a cross-party parliamentary steering committee);11 and 4) at the request of two parliamentary groups12 or one-fifth of all deputies.13 It is not therefore an instrument of great use to minority groups. As for its constitution by the Senate, the proposal, according to article 59 RS, may be put forward either by the government or by 25 senators who do not belong to one group alone. In this case it is a more favorable mechanism for minority groups as a high number of deputies is not necessary, although it does require them to belong to more than one parliamentary group. Nevertheless, due to the weak role of the Senate in contrast with the Congress in the Spanish constitutional system, this greater facility to establish a CI does not imply greater controlling power on the part of minority parties. There are two ways of deciding on the composition of a CI: 2) proportionality according to the number of seats or 2) equal representation, one member per group, regardless of overall representation. Spain chooses proportional representation according to the contents of articles 40 RC and 51 RS. The Mesa, or Bureau, is an important body in the structure of a CI. As there is no specific regulation, an interpretation by analogy must be drawn from the provisions of article 42 CR, which states the following: “1. Las comisiones serán convocadas por su presidente, de acuerdo con el del Congreso, por iniciativa propia o a petición de dos Grupos parlamentarios o de una quinta parte de los miembros de la Commission” and “2. El presidente del Congreso podrá convocar y presidir cualquier Comisión, aunque sólo tendrá voto en aquellas en las que forme parte” (1. The commissions will be convoked by their president, with the agreement of Congress, by specific initiative or at the request of two parliamentary groups or one fifth of the members of the Commission and 2. The president of Congress may convoke and preside over any Commission, although he will only have a vote in those of which he forms part). Neither is there any indication of the selection procedure to be followed by the Bureau nor of the number of members that should constitute it. Reference must therefore be made to article 41 RC, which indicates that “las Comisiones, con las excepciones previstas en esta Regulación, eligen de entre sus miembros una Mesa compuesta por un Presidente, dos vicepresidentes y dos secretarios. La elección se verificará de acuerdo con lo establecido para la elección de la mesa del Congreso, adaptado al distinto número de puestos a cubrir” (the Commissions, with the exceptions envisaged in this regulation, will select a steering committee from among their members composed of a president, two vice-presidents and two secretaries. The selection will be verified in accordance with the rules established for appointment to the Bureau, adapted to take account of the different number of places to cover.) The problem arises if the plenary session or the parliamentary business committee decide that the commissions are not constituted in accordance with the principle of proportionality, as has been

182

Commissions of Inquiry and National Security

the norm ever since the II Legislature (1982–1986), but on the basis of one or two representatives by parliamentary group. With regard to the selection of the presidents, vice presidents, and secretaries, it indicates that this will be done in accordance with the rules on the constitution of the Bureau, which becomes inapplicable, as they do not apply the criteria of proportionality. For this reason, current practice is for the majority group to assume the presidency, the largest minority group to take up the vice presidency, and the post of secretary is given to one of the minority groups. However, practice has shown that none of the presidencies of the CIs in matters concerning national security have fallen to the majority parliamentary group, not even to the second group; rather, they have been taken up by minority groups. Decisions in the CI are adopted, according to article 52.3 RC, in accordance with the criterion of weighted voting, which, as with other examples, is not adapted to the particularities of the CI. For example, the rule that requires one-fifth of all members to request the convocation of the commission should be reviewed because, if a CI is constituted under the rule of an equal number of representatives per group, the case could arise of the majority group being unable to convoke a CI. But as pointed out by Villacorta Mancebo,14 the “master key” of the president of the Congress serves that purpose, allowing him to convoke any committee. The work plan of the CI is contained in article 52.2 RC, which indicates that “las Comisiones de investigation elaborarán un plan de trabajo” (the Commissions of Inquiry shall draw up a work plan). It is established as an obligation for the commission in this article, but the rule does not establish what the guidelines will be. For this reason, a request for a decision was sought from the legal services of the Congress of Deputies, whose answer was that “parece claro que en el plan de trabajo debe inscribirse la totalidad de las actuaciones que la comisión acuerde o haya acordado realizar, con la mención de las circunstancias de lugar, tiempo y forma de su realización, sin perjuicio de la posible revisión ulterior del plan a la vista del desarrollo de las propias actuaciones” (it appears clear that all measures that the commission has agreed or has agreed to undertake should be written into the work plan, with a reference to the circumstances of the time, place and manner of their execution, notwithstanding a possible later review of the plan in view of progress on the measures themselves).15 Article 52.2 RC differentiates between preparation and approval, and the decision itself acknowledges that it is not a deliberate omission. Without prejudging the capacity of the commission, the reason is that, due to the plurality of situations that can arise and the relevance of the plan, it will be the Bureau, as the Plenary opened the investigation, that will approve the plan with the objective of ensuring it does not stray from the mandate given to the commission. The agenda is contained by analogy in article 67.2 RC, which states that it will be fixed by the Bureau, in agreement with the president of the lower Chamber, which means that the decision is taken by the CI

Legislative Commissions of Inquiry in Spain

183

but in agreement with the presidency, thereby avoiding any overlap with other parliamentary business. In view of the important mission of the CI, it is understandable that they be granted exceptional powers. Article 109 of the Constitution states that “the Houses and their Committees may, through their respective Speakers, request whatever information and help they may need from the Government and Government Departments and from any authorities of the State and of the Autonomous Communities.” This role is an important one, as it is not a question of parliamentary supervision of the government but of autonomous supervision by the Chamber, hence the importance of it being allowed to address whomsoever it considers necessary for assistance and to gather information. To that effect, article 76.2 of the Constitution states that “it shall be compulsory to appear when summoned by the Houses. Penalties which may be imposed for failure to comply with this obligation shall be established by law.”16 The obligation of the government and of the public administration to supply information to Parliament is therefore quite clear, but it is not absolute. The restrictions that may be placed on the release of information by the executive are still considerable, simply on the grounds of national security. There is a debate within Spanish law on the limits of such releases, but what appears clear is that both government and the administration should communicate as much to Parliament if they have a problem over supplying a piece of information, but this does not imply that they have the final decision, which lies with Parliament.17 They may also request the appearance of people who, in accordance with article 3 of the Organic Law of 1984, will have to take the relevant oath or promise before declaring and, if they fail to testify truthfully, will commit an offence as defined in the penal code.18 The reasons usually put forward are on the grounds of national security or state secrets—precisely the matters examined in this chapter. It is true that certain precautions should be adopted in matters where public knowledge could compromise the objectives of the state, but it is also true that Parliament, which upholds the sovereignty of the people, cannot be excluded from precise information on certain matters that refer essentially to the “security and defence of the State.”19 At first, the purpose of the Law on Official Secrets, of April 5, 1968 (prior to the Constitution of 1978), favored the government, while over time access to classified or secret information has become more flexible. This regulation was modified one month after the Constitution through Law 48/1978, of October 7, which establishes under article 10.2 that “la declaración de materias clasificadas no afectará al Congreso de los Diputados ni al Senado, que tendrán siempre acceso a cuanta información reclamen, en la forma que determinen los respectivos Reglamentos, y, en su caso, en sesiones secretas” (the classification of material as secret will apply neither to the Congress of Deputies nor to the Senate, which will always have access to the information they request, in the form that is specified in the respective Regulations, and, if

184

Commissions of Inquiry and National Security

necessary, in secret sessions). The void in the rules and regulations of both Chambers was cleared up by two decisions of the Chambers of December 18, 1986, and June 2, 1992. In accordance with their content, the information will be made available, but only to the committee on official secrets on which the spokespersons of the different parliamentary groups have a seat; nevertheless, the government may request that the committee communicate the information to the commission that is requesting the information. For its part, Parliament has the right, according to article 7 RC, to receive information, but this right is restricted in cases of national security.20 The limits on restrictions or the amount of information that may be released by the administration has been made more flexible with the Law of Government of 1997, of November 27, which under article 26.2 recognizes that “todos los actos y omisiones del gobierno están sometidos al control politico de las Cortes Generales” (all acts and omissions of the government are subject to the political supervision of Parliament). Once again, though, this more flexible limit is curtailed by article 7.2 RC, which allows restrictions on the grounds of national security, thereby generating a vicious circle between both regulations. A discussion is generated in this way between government and Parliament, which will regulate access by the Chamber to the actions and the decisions of the executive. On this point, a distinction should be made between nonpublic sessions and secret sessions. In the former case, the mass media can attend, which may keep the public informed of events; in the case of secret sessions, only those sitting on the commission may attend.21 In order to compensate for this lack of transparency, article 96.2 RC establishes that the minutes of the sessions will be published except for those held in secret, for which only one typed copy shall exist; the public may neither attend, nor receive information through the media, nor read the minutes. Article 60.3 and 5 RS establishes that “3. Las conclusiones de estas comisiones serán publicadas salvo que, en caso necesario, se acuerde lo contrario para la totalidad o parte de las mismas. No serán vinculantes para los Tribunales ni afectarán a las resoluciones judiciales” (The conclusions of these commissions will be published except where, in case of necessity, it is agreed not to do so for all or part of them), and “5. El resultado de las investigaciones será comunicado, en su caso, al Ministerio Fiscal para el ejercicio, cuando proceda, de las acciones que correspondan” (The findings of the investigation will be communicated, where necessary, to the Justice Ministry, for it take the appropriate measures, where applicable). The shortcomings that were highlighted in both commissions (i.e., into the activities of Luis Roldán and GAL) during those years led Congress to approve a reform of the RC, of June 16, 1994.22 Up until then, the secrecy of CI sessions had been imposed. The new article 64.3 RC stated that “serán secretas, en todo caso, las sesiones y los trabajos de la Comisión del Estatuto de los Diputados y de las comisiones de investigación” (in all cases, the sessions and the work of the Commission on the Status of the Deputies

Legislative Commissions of Inquiry in Spain

185

and of the commissions of inquiry will be held in secret), but article 64.1 established the private nature of sessions held by the other parliamentary commissions as a general principle. It was furthermore decided that the CI should adopt its decisions on the basis of weighted voting (i.e., that the vote of each commissioner carries a different weight based upon the number of seats in the Chamber), and stiffer penalties were introduced for those deputies who failed in their duty of secrecy. However, the possibility of the commission being convoked by the minority group, or the possibility of the majority group having to accept it, was not modified; this rendered the mechanism ineffective throughout the II, III, IV, and V legislatures, which had strong Socialist Party majorities. In the final report, the information that is gathered must be systematically presented and, in addition, value judgments must be made on the facts that have been investigated or inspected and, depending on the content of the agreement to open an inquiry, such opinions should perhaps formulate proposals de lege ferenda.23 A distinction must be made between the ad intra and the ad extra effects of Parliament. This is because “las conclusiones de una CI no son la ‘verdad social’ sino la ‘verdad parlamentaria’ que es algo completamente distinto (the conclusions of a CI are not the “social truth” but the “parliamentary truth” which is something completely different),24 given that there is no greater truth in a constitutional state than that decided by the courts and tribunals in an adversarial process with all due safeguards. In conclusion, the Spanish system has the following features: • Investigative authority is generically attributed to the Chambers on all matters • The independence of the investigative tasks carried out by the parliamentary commissions and judicial functions remains unaltered • The CI were not accorded the same powers as the judicial authorities • The activities of the CI and of the courts were not envisaged to start at the same time; in fact, the conclusions would be communicated to the justice ministry, if necessary, though that would not convert the CI into the body that reported the existence or otherwise of a crime • The matter should be of public interest and social transcendence

What follows is a study of the three CIs that have been convoked in Spain in the field of national security: 1) the commission of inquiry into the activities of the director general of the Guardia Civil, 2) the GAL case, and 3) the terrorist attacks on Madrid of March 11, 2004.25

COMMISSION OF INQUIRY INTO THE ACTIVITIES OF LUIS ROLDÁN On March 1, 1994, a CI was opened in the Congress of Deputies with the purpose of shedding light on the management of the budgets of the

186

Commissions of Inquiry and National Security

general directorate of the Guardia Civil for which its director, Luis Roldán, had been responsible since 1986.26 The presumed irregularities had been uncovered by the newspaper Diario 16 and were taken up by another newspaper, El Mundo. They coincided with the judicial investigations carried out by Judge Baltasar Garzón into the case of the GAL. Allegedly, Roldán made off with tens of millions of Euros in the form of bribes, commissions, and corrupt civil works tenders. In February 1998, the Audiencia Nacional (National Court) sentenced him to 28 years’ imprisonment for the crimes of misappropriation of public funds, bribery, tax evasion, and fraud. In the face of the alarming news through the media, as well as relentless attacks by the Partido Popular against the Partido Socialista in government at the time, 77 deputies from the Grupo Popular proposed the opening of a CI. Congress approved its constitution under the presidency of the (minority) Catalan group; it was composed of 14 deputies, two from each parliamentary group. At the start of the work, the need for a steering committee was proposed, although they finally voted that the CI would only have a president. With regard to the voting system, weighted voting was selected in accordance with what was suggested during the plenary session in which the constitution of the CI was approved. The commission was to have three months to undertake its work. The work plan agreed to gather information over time as the appearances before the CI took place. Having considered the compatibility of secret votes and weighted voting, the legal services of Congress decided that both were incompatible as weighted voting could not be applied without knowing which deputy had voted. Various financial and public entities supplied information to the CI, and 73 of the 76 appearances before the commission were held in public session. Roldán appeared before the deputies on April 5 for more than 12 hours, denying all the accusations laid against him of misappropriation of public funds, influence peddling, tax fraud, and swindling, and on April 27, the court withdrew his passport. However, despite this precautionary measure, he failed to reappear as scheduled, and some days later he was found to have fled the country. He would finally be arrested in Thailand on February 27, 1995, the CI having concluded its work, in what appeared to be a surrender agreed to with the government. The plenary session report was delivered on July 5, 1995.27 Its 22 conclusions may be divided into various sections relating to criminal matters (1 and 2), those in the administrative-legal field (3 to 9), political responsibility (10), and recommendations on future measures to be adopted (11 to 22). Among the conclusions, the following may be highlighted: • Reasonable grounds to suspect criminal activity in the actions of Luis Roldán were found, for which reason it was proposed to pass some of the statements made by witnesses as well as the documentation and records of the proceedings held in the commission to the state prosecutor.

Legislative Commissions of Inquiry in Spain

187

• A series of legal modifications was suggested with a view to closing the loopholes that had justified the direct approval of public contracts, bypassing public tendering principles and justifying as much on the grounds of security and urgency. • The commission, aware of the lack of resources, urged the Chamber to draft a more specific development of article 76 of the Constitution by revising article 52 RC. The constitutional role of the CI as an instrument for the political supervision of matters in the public interest would therefore be reinforced, as would its operational channels and its regulatory and administrative framework, and working or procedural methods would be better defined. Nevertheless, rather than placing the blame on a dearth of instruments, the Grupo Popular blamed the difficulties on blocking tactics by the government and a lack of diligence when providing information, as well as on the unwillingness of highly placed civil servants and members of government to appear before the commission.

The different parliamentary groups made suggestions during the subsequent debate of the report. Agreement was reached except on conclusion 10 (political), which stated that during the CI facts were revealed that had made it necessary for high-ranking civil servants in the Ministry of the Interior to accept political responsibility. The Grupo IU put forward its particular opinion and pointed out that, as it was a political appointment, the minister of the interior—who had appointed Roldán, had failed to supervise him, and had allowed him to flee the country—should be held responsible, without mentioning the ministers of defense. For its part, the Grupo Mixto called for political responsibility to be accepted by the president of the government, the three ministers of the interior, the two ministers of defense, the state prosecutor, the director of CESID (Centro Superior de Información de la Defensa), top managers of the information services of the police and the Guardia Civil, and high-ranking members of the Intervención General del Estado (State Auditors and Comptrollers). Faced with such serious concerns over their content, the political conclusions were modified to say that the appointment of Luis Roldán as director general of the Guardia Civil involved serious negligence because it had been done without the appropriate information, which was freely available and should be required at all times due to the importance of the Guardia Civil to state security, and without the necessary supervision over his actions. The government of the nation would be politically responsible for the negligence in application of article 108 of the Constitution, which states that “the Government is jointly accountable to the Congress of Deputies for its political management.” Congreso also agreed in a plenary session that “habiéndose apreciado y aparecido en el transcurso de la investigación datos sobre irregularidades diversas que superan los límites del mandato que recibió la Comisión y habiéndose denunciado públicamente en los medios de comunicación otros usos ilegales de dinero público, procede que la Comisión reanude sus tareas para continuar investigando con el fin de completar su informe” (information having been brought to

188

Commissions of Inquiry and National Security

light and noted in the course of the investigation on various irregularities that go beyond the limits of the mandate given to the Commission and in view of other illegal uses of public funds publicly reported in the media, it would be advisable for the Commission to reconvene to continue its investigation with a view to completing its report), although its activities were never continued. It also indicated that all these acts of misappropriation of public funds, influence peddling, tax fraud, and swindling could not have been undertaken by one single person, that it had not been possible to clarify this matter due to time limits and resources, and that, if necessary, it would have to be clarified by the Tribunal de Cuentas (Accounts Courts) and the Tribunales de Justicia (Courts of Law). The plenary of the Congress of Deputies noted the substantial contribution of facts and testimony from the investigative teams belonging to the different communications media and thanked them for information that had a special relationship and relevance with the matters under investigation. COMMISSION OF INQUIRY INTO THE GRUPOS ANTITERRORISTAS DE LIBERACIÓN (GAL) Between 1983 and 1987, the Grupos Antiterroristas de Liberación, as they called themselves, committed a series of 23 murders and other criminal activity against the structure of the terrorist group Euskadi Ta Askatasuna (ETA), principally in the French provinces close to the Basque region. The GAL were armed para-police groups that carried out what has been called State terrorism, or waged a “dirty war,” and were, supposedly, created and managed by high-ranking civil servants in the Ministry of the Interior. Up to the present day, doubts still exist and accusations fly between politicians as to whether this was an activity inherited from the transition and generated by the government of Unión de Centro Democrático (UCD) or whether it was stimulated by the government of the PSOE (Partido Socialista Obrero de España) under Felipe González. On this latter point, the debate considered whether or not González ordered, had knowledge of, or tolerated such acts. In January 1988, the Audiencia Nacional (National Court of Spain) found reasonable grounds to suspect criminal activity in the actions of subcommissaire José Amedo, who, during a trial held in Lisbon, had been implicated in murders by Portuguese mercenaries linked to the GAL who stated that Amedo had contracted them to attack ETA members in the south of France. They were condemned to 17 years imprisonment for each of the six cases of attempted murder in which they had participated as instigators and on lesser charges of illegal association and forged identity documents. The court preferred the definition of illegal association rather than membership of a terrorist organization, which was in agreement with the idea advanced by the Ministry of the Interior that considered the GAL

Legislative Commissions of Inquiry in Spain

189

as “grupos de delincuentes inconexos entre sí” (groups of criminals with no links between each other) and not as terrorists. The judgment pointed out that it was not possible to identify the internal structure, the hierarchic levels, or the sources of funding of the GAL, and so the identity of those in charge of the two agents was left unresolved. In July 1993, Judge Baltasar Garzón reopened the investigation into the abduction of French citizen Segundo Marey and, at the same time, looked into the scandals that had been uncovered in connection with the diversion of secret funds in the investigation that was unfolding into the ex-head of the Guardia Civil, Luis Roldán, to see whether there was any reference to Amedo and the GAL. Various political parties made clear their concerns over the political repercussions of reopening the GAL case. Rodrigo Rato, spokesperson of the Partido Popular in Parliament, declared, “No estamos ante un tema judicial y penal sino ante un tema político muy serio que puede afectar a instituciones muy importantes de nuestro sistema Parece imprescindible que el Gobierno, dé explicaciones al Congreso sin que sea obligado por la oposición” (We are not facing a judicial or criminal matter, but rather a very serious political one that might affect very important institutions in our system. It appears essential that the Government provide Congress with an explanation without being obliged to do so by the opposition).28 On February 17, 1995, Judge Garzón imposed unconditional custody on Rafael Vera, the number two at the Ministry of the Interior, who had been in charge of the fight against terrorism for nine years with two other ministers, Barrionuevo and Corcuera, and accused him of misappropriation of funds and capital evasion for the alleged handover of 1.2 million Euros to the wives of Amedo and Domínguez and for concealing and financing the abduction of Segundo Marey in 1983. On February 20, the Audiencia Nacional agreed to reopen the main proceedings of the GAL case, known as the caso Amedo, with no constraints placed on the investigation, and to refer it to Judge Baltasar Garzón. In May, Amedo handed over a 20-minute tape to Garzón of a conversation that he had recorded in secret that purportedly gave the impression that Felipe González and the civil governors of the Basque Country were aware of the GAL. Toward the end of September 1995, amidst the judicial proceedings in the GAL case, Izquierda Unida (IU), supported by the Partido Popular (PP), proposed the constitution of a CI in Congress.29 In the face of opposition from PSOE and CiU (Convergencia i Unió), its creation was blocked by only one vote, which is why PP, IU, and other formations decided to constitute it in the Senate. It was therefore set up on November 8, 1995, with the support of the Grupo Popular, Coalición Canaria, Partido Nacionalista Vasco (PNV), and the Grupo Mixto, and, in short, with the Partido Socialista and Convergencia i Unió30 voting against, giving an overall result of 17 to 15. The purpose of the CI, in accordance with the minutes of the session, was “determinar responsabilidades políticas que resulten de la

190

Commissions of Inquiry and National Security

creación, actuación, financiación y encubrimiento de los Grupos Antiterroristas de Liberación” (to clarify political responsibility arising from the formation, operation, financing and concealment of the Grupos Antiterroristas de Liberación).31 They agreed that a senator from a minority political party, Coalición Canaría, would chair the commission, as this political grouping had not existed at the time the events took place; as it was located in the Canary Islands, a long way from the scene of the terrorist struggle; and because it was the only one that had not proposed the establishment of the commission. The commission was composed of 32 senators, and the vice presidents and secretaries were shared between the PSOE and the PP. The Bureau and the Board of Spokespersons were asked to draw up a work plan within four days, and they met the following day to start their work. The meetings lasted into the early hours of the night and were very tense; the PSOE even went as far as to prepare a report arguing the unconstitutional nature of the commission. Finally, it was agreed to start with the request for diverse information and 18 appearances, which were voted on jointly, divided into five days. The first appearances took place on November 27, it being common knowledge that certain civil servants from the Ministry of the Interior had no intention of appearing.32 On the evening before the second day, a rapid succession of events began when 13 socialist senators asked them not to appear, basing their arguments on articles 61.1.2 and 71.2 of the RS, which allow modifications to the agenda.33 The spokesperson of the Grupo Socialista alleged that “no parece razonable ni parece conveniente para el sumario que se instruye en el Tribunal Supremo que coincidan en las mismas semanas la declaración ante esta Comisión con anterioridad a la declaración ante el Tribunal Supremo ya que podría perjudicar tanto el sumario que se instruye en el Tribunal Supremo, como, posiblemente también, los trabajos de investigación de esta Comisión” (it neither appears reasonable nor does it appear advisable for the proceedings that have commenced in the Supreme Court that declarations should coincide over coming weeks before this Commission before being made to the Supreme Court, as it could influence the proceedings in the Supreme Court and possibly, the investigative work of this commission as well).34 The Grupo Socialista claimed that the judges had already advised certain witnesses that their evidence was sub judice. The Grupo Popular and the Grupo Mixto disagreed, maintaining that the sub judice warning did not affect the work of the commission as pointed out by the Constitution itself, which establishes the compatibility of both the judicial and the parliamentary channels. It may be assumed that these points had already been discussed during the negotiations over the work plan and that, in the end, the Socialists had never been in favor of either the commission or the witnesses and that finally, acting out of pure cynicism, they had established unsustainable legal pretexts to hamper the work of the commission. Following

Legislative Commissions of Inquiry in Spain

191

intense discussion, it was decided to ask Congress to delay the opening of the CI by 14 votes in favor, 1 against, and 17 abstentions. Following the vote, the PP spokesperson, Ángel Acebes, concluded that there had been no political will and that to call for a delay when the Christmas holiday was so close would make it impossible for the CI to continue working, a ridiculous situation in which his group did not wish to participate. On this point, the Partido Popular made an unexpected maneuver; having sponsored the CI, they threatened to withdraw and to request its closure if this continued.35 On December 21, 1995, a plenary session of Congress approved the dissolution of the commission with 215 in favor, 8 against, and 3 abstentions.36 The Grupo Popular alleged that the Partido Socialista and Convergencia i Unió had right from the start opposed the creation of the commission, while accusing the PNV of having joined their ranks.37 The PNV acknowledged that just before the Christmas break was a bad moment for postponement but opposed the CI’s dissolution and said it had a list of 23 people it would like to appear before it on account of documentation it was waiting to receive.38 In addition, they regretted the great emphasis placed on the appearances and the nonexistent emphasis on the reception of documentation. The Grupo Mixto pointed out that the PNV was not asking for holders of political office to appear but only the police, thereby protecting President González, and the Grupo Socialista hardly proposed any appearances in the work plan. This group also expressed its surprise in the face of the rapid reaction of the PP that, rather than reforming the CI, it had decided to agree in its dissolution. To date, there are still contradictory opinions over whether the PP took advantage of the opportunity offered by the socialists to dissolve the commission or whether there were indeed other reasons. For the PSOE, the commission was dissolved due to legal disqualification and not because of conspiracy while, for the PP, the PSOE boycotted it three days before the appearance of the political leaders who had held final responsibility over those years: Barrionuevo, Serra, Elgorriaga, and Sanjuán. The issue disappeared swiftly from the media. One month later, the newspaper El País accused the PP of having dissolved the commission after it had found out that key figures who might damage its interests, such as General Sáez de Santamaría, would be called to testify.39 The reasons, according to El País, were in harmony with declarations made by Manuel Fraga, a former conservative leader and a minister under Franco who, a few days after the constitution of the commission, had declared that “es hora de acabar con ese asunto cuanto antes. . . . Pero que ese tema hay que resolverlo entre los jueces, el Gobierno, la sociedad española y los medios de información. Y punto” (it is time to put an end to this matter as soon as possible. . . . But this issue has to be resolved between the courts, the government, the Spanish society and the media. And that is all).40 The newspapers continued to report from time to time on the judicial proceedings against

192

Commissions of Inquiry and National Security

the GAL, and, in 1996, IU attempted to revive the matter, but it met with the same response. The way in which the work of this CI unfolded reflects a functional problem that had to be solved in a great many cases and negotiated in others; for example, the replacement of its members by others from the same group; the public or secret, behind-closed-doors nature of the sessions; the ability to reach agreements; and the regulations governing the meetings of the Bureau and the Board of Spokespersons, among others. Differences became apparent between this type of commission, which for the first time emerged in the Senate, and those created in Congress, but in large part the problems arose from the difficulty of gathering information. The senators complained they were told nothing new that they had not found out about through the media. The government used the Law on Official Secrets not to pass on these documents, while the PP argued that it did not understand how official secrets could be used in such a significant political affair.41 It went on to point out that if the PP was to form the government after the elections in March of the following year, those secret documents would be immediately declassified, something they failed to do after gaining power in 2000 when they understood that they were setting a precedent for the future should they too also be asked to declassify certain documents. According to some politicians, the government took that course of action for reasons of state, as the documents contained evidence that would have implicated politicians from the PSOE in the dirty war against ETA. The thoughts expressed one decade earlier by Professor Pérez-Ugena are compelling: “La participación de los órganos parlamentarios en complejas funciones de enjuiciamiento no favorece a la institución que representa a la soberanía nacional cuya capacidad investigadora se muestra invariablemente inferior a la prensa y a las de los órganos judiciales, yendo a remolque de ambas, y que en el desarrollo de toda función parece relegada a la secundaria y desvirtuada función de ser un puro escenario físico donde acaece hechos que alimentan la actividad de los agentes reales de control social y jurídico” (The participation of parliamentary organs in a complex judgmental role does nothing to favor the institution that represents national sovereignty whose capacity for investigation is invariably inferior to that of the press and the judicial organs, it being towed along by both, and in the development of all of its functions it appears to be relegated to the secondary and distorted role of being a purely physical stage where events take place that feed the activity of the real agents of social and legal supervision).42

COMMISSION OF INQUIRY INTO MARCH 11, 2004 In a plenary session of May 19, 2004, the Congress of Deputies debated two proposals to constitute a CI. The first, at the request of 75 deputies of

Legislative Commissions of Inquiry in Spain

193

the Grupo Popular, was to clarify the truth surrounding the events that took place from March 11–14, 2004, as well as those preceding and subsequent to the main events that are coherent with that purpose.43 At the same time, the Socialist parliamentary groups in Congress of Esquerra Republicana (ERC), Basque (EAJ-PNV), Izquierda Verde, Izquierda Unida, Iniciativa per Catalunya Verds, and the Grupo Mixto requested the constitution of a CI to clarify the events leading up to and following the terrorist attacks of March 11 that had some connection with them, and the action taken in response to the attacks by the powers of the state, as well as the implications that such acts have had and will have in the future for public security. The political struggle underlying this CI expressed itself in the most forceful and harshest possible terms. On the one hand, the government of Aznar accused the Socialist Party of having manipulated the events of March 11–14, and the Socialists in turn accused Aznar of having lied by pointing to ETA as the guilty party knowing full well that it was al Qaeda, with the war in Iraq as the remote origin of the attacks. In either case, both sides attributed the electoral upheaval to the terrorist attacks, some emphasizing the origin of the perpetrators and others the way in which the crisis was managed. Thus, this commission was strongly marked from its inception because it was not looking for failings in the security system. Rather, the Commission on 11-M constituted a series of reprisals between PP and PSOE over the loss of the elections of March 14, 2004, an argument that infected the public and that continues to this day. The constitutive session took place on May 27 with the comprehensive objective of finding out what happened before, during, and after the attacks in Madrid.44 The CI was composed of five deputies from the Grupo Socialista, five from the Grupo Popular, one from the Grupo Catalán Convergencia i Unió, one from the Grupo de Esquerra Republicana (ERC), one from the Grupo Parlamentario Vasco (EAJ-PNV), one from Izquierda Unida, one from the Grupo Coalición Canaría, and one from the Grupo Mixto. The commission would have to complete its work within a period of two months from its constitution but was able to extend that deadline by agreement among its members, as was done in view of the complexity of the issue. The calendar for its sessions, as well as its working methods and the requested appearances, were approved by the commission once it had been set up, and it was agreed that voting would be weighted. All the political formations were of the opinion that work should begin after the European elections of June 13, 2004, in order to avoid politicization and that the sessions should be open to the public, except if stated otherwise in the regulations.45 This CI was marked by deeply entrenched positions and a search for information. With respect to the search for information, the media had wanted to institute a parallel trial, and the government had been slow to present information. It was even accused of having delayed its delivery,

194

Commissions of Inquiry and National Security

with some pieces of information even appearing later or as leaks to the press. Moreover, the clash with the ongoing judicial procedure was hardly peaceful.46 Judge Garzón appeared on July 15 and specified that he had permission from the governing body of the judiciary—el Consejo General del Poder Judicial—but was subject to certain restrictions on the information he might release that related to proceedings underway in his court or that he might have received from another Spanish or foreign judicial body or on account of the office he held. The ex-director of the intelligence services, Jorge Dezcallar, declared along the same lines, four days later,47 and the director general of the police indicated to the Conservative deputy, Del Burgo, on July 22 in reply to questions on the relationship with Moroccan extremism, that “estas cuestiones, y sin ánimo de obstaculizar los trabajos de la Comisión, están judicializadas. Por una parte, están judicializadas y, por otra, pertenecen a la investigation policial, en sentido estricto. Por razones obvias de discreción, y para no malograr el resultado de las mismas, yo no le puedo decir nada.” (These questions, and without wishing to hinder the work of the Commission, are subject to judicial proceedings. On the one hand, they are under the jurisdiction of the courts and, on the other they are part of a police investigation, strictly speaking. For obvious reasons of discretion and so as not to distort their results, I can not say anything.) Furthermore, the consequences of this duality of supervisory organs for the politicians was intense. On July29, Alfredo Pérez Rubalcaba, spokesperson of the Grupo Socialista, in reply to the question as to whether he thought that there had been negligence, said that “ésta es una Cámara política, donde se juzga la responsibility política de los governance” (this is a political Chamber, where the political responsibility of Governments are judged). Jordi Jané, a CiU deputy, declared along these lines, on December 15, that “nosotros no éramos partidarios de una Comisión de investigación porque veíamos riesgo de confrontación política, que siempre existe en el Parlamento. Todos queremos saber la verdad, qué pasó, cómo pasó, claro que si, pero en muchas ocasiones dudamos de que una comisión de investigación en el Parlamento fuera la mejor respuesta, atendiendo a que la confrontación política en muchas ocasiones lo empaña todo.” (We were not supporters of a Commission of Inquiry because we saw the risks of political confrontation, which always exist in Parliament. We all wish to know the truth, what happened, how it happened, of course we do, but on many occasions we doubted whether a commission of inquiry in Parliament would be the best response, bearing in mind that political confrontation often tarnishes everything.) Nevertheless, Professor Pérez Royo, while acknowledging the very real difficulties of political cohabitation, asked when a CI would ever be justified, if not in a case like this.48 But it is necessary to distinguish, he continued, between the political and the judicial truth. The latter does not worry the public and is limited to what is punishable; the former is more extensive. In reality they are two separate investiga-

Legislative Commissions of Inquiry in Spain

195

tions that, as far as possible, should be undertaken separately. One thing is to investigate the degree to which Spanish society was prepared to face international terrorism and another very different matter is to investigate the actions of the government from 7.45 a.m. on March 11 up until the moment at which the electoral colleges opened on March 14. The embarrassing spectacle experienced in the commission, filled with accusations, jibes, and jeers, was silenced by Pilar Manjón, president of the Asociación de Víctimas del 11-M (Association of Victims of 11-M), in one of the most serious and deeply felt speeches made to the Chamber.49 Her sentences echoed through the Chamber: “No podemos admitir que se nos utilice como arma política entre partidos, no podemos admitir, de ninguna manera, que utilicen de manera sistemática a nuestros heridos y afectados, y mucho menos a nuestros muertos, como culpables de la derrota electoral de algunos, o del billete de triunfo de otros. Ellos, para su desgracia, no pudieron votar. Algo hicimos mal, alguien se equivocó, algunas personas debieron cometer graves errores para que los malditos pudieran preparar y llevar a cabo tamaña asesina tropelía.” (We cannot accept that we be used as a party political weapon, we cannot accept, in any way, that they systematically use our wounded and afflicted, and much less so, our deceased, as guilty of the electoral defeat of some people, or as the victory ticket for others. They, in their misfortune, were not able to vote. We did something badly, somebody made a mistake, some people must have committed serious errors for these evil people to have been able to prepare and commit murderous carnage on such a scale.) The deathly silence that descended on the deputies was answered with excuses from all of the groups. The words of Agustí Cerdá, an ERC deputy, accurately summed up the situation: “Muy pocas veces en esta sala se escucha hablar con el corazón; y con el mismo corazón le pido disculpas en nombre propio y en nombre de nuestro grupo por si alguna vez hemos utilizado su dolor como arma arrojadiza, nuestras más sinceras disculpas” (Very few times in this chamber do we hear words that come from the heart; and from the heart, I apologize in my name and in the name of my party, if at some time we have used your pain as a throwing weapon, our most sincere apologies). In March 2005, the commission approved the recommendations that it would put to the government on the adoption of new security measures aimed at preventing attacks such as those of 11-M and on improvements to the care of victims.50 These recommendations received cross-party support from all the parliamentary groups except for the Grupo Popular, which abstained from participating in the vote, as it clearly pointed to the guilt of the former government due to its negligence. The Partido Popular requested new appearances and the continuation of the work of the commission, although both requests were turned down. On April 6, 2005, the Grupo Popular submitted a document to Congress titled “Propuestas para la reflexión de la Comisión del 11-M” (Proposals for the Consideration of the Commission of 11th March),51 in which it set out 17 questions that,

196

Commissions of Inquiry and National Security

in its judgment, lacked a response.52 The PSOE, for its part, in its conclusions, accused the former government of a serious lack of foresight that, in part, made it possible to commit the attacks. It also concluded that after the attacks, the government of the Partido Popular had manipulated the information for obvious electoral purposes. The final vote on the individual conclusions of each parliamentary group took place on June 22, 2005, and met with the rejection of all groups, except the group making the proposal. The Grupo Popular arrived at its conclusions with respect to support for victims and future measures to help them, but an enormous inability to establish in an objective way what the facts were, and, in consequence, to prevent them in the future, was evident. The conclusions of the commission were approved in a plenary session by 184 votes in favor, 145 against, and 1 abstention, with the Grupo Popular voting against all the other parties. This was owing to the conclusions that stated that the government of Aznar had not foreseen the threat of radical Islamic terrorism in a satisfactory manner and had manipulated the information on the perpetrators of the attacks over the following days, stressing that they were speaking about ETA while the police investigation was moving away from that hypothesis. Nevertheless, and as has been the practice in these commissions, a deadline of 48 hours was given to present individual submissions that were transformed into lengthy texts where the same positions each group had held since the very first day were outlined. Thus, after 57 appearances spread over hundreds of hours and 11 long months of work, the position of the groups remained unchanged. On June 30, the CI into the most serious attacks in the history of Europe was closed with many dark clouds hanging over it and with the political class incapable of offering the public explanations or reassurance. CONCLUSIONS The three CIs that may be considered to lie within the scope of national security all began once the events had made an impact via the media, although in some cases they had been brewing for years, as was the case for both Roldán and the GAL. The CI is a novel instrument within the Spanish parliamentary tradition and is essentially exclusive to the legislative branch, which is why party dynamics in Parliament decide the composition and guidelines of CIs. This is owing to Spain being a parliamentary system in which the government has an automatic majority in the two Chambers, for which reason it is not a government-parliament but a government-opposition dialectic. The terms of reference are established by the CI and are the center point of the dispute where witnesses are rejected as well as different pieces of evidence or documentation are submitted in debates behind closed doors. There has been no problem up until recently over not publishing documentation or keeping it secret because the truth is that the information has

Legislative Commissions of Inquiry in Spain

197

come through the media and not the commissions. A CI is empowered to go about its work and to broaden or reduce the scope of its proceedings, without losing sight of its set objective; the problem is the political direction taken by the commission members. Let us not forget that commission members are not independent from their parliamentary groups and are leading figures on occasion. Added to this is the absence of figures such as a rapporteur to prepare the tasks or guide commission members in an independent way. Expert and technical witnesses have had a lesser role in CIs, and the greatest attention has centered on gathering testimony from politicians and civil servants. The regulations indicate that unless the material is secret it may be consulted, and the tendency is for it to be made public along with transcriptions that can be consulted on the Internet. CIs have the power to require evidence and call witnesses from all walks of life; the problem arises from the pace of their work and the depth of their resources in comparison with the justice system and the media. The Constitution itself covers the rights and freedoms of witnesses, and there was even a subsequent modification of the regulations to complement it that establishes that the witnesses are under obligation to attend and speak under oath, implying the risk of committing a criminal offence. The Law on Official Secrets helps the commission members secure the release of certain documentation, although any further access is generally very complicated, such that the information made available to them is always limited. But the principal problems are the absence of political will, short duration, and insufficient capacity to access people and documents. It is the political parties themselves opposing certain appearances that derails the CI right from outset. If there is a defining feature of the inquiry process, it is that the positions of the different groups are equally firm at the beginning and at the end, without the commission itself having served any practical purpose whatsoever. The final reports can include particular opinions, as has been the norm. In the case of 11-M, this is where the greatest disparity of individuals is found. The final report and the conclusions are drawn up by the members of the commission, who then vote on them. At a technical level, the reports have more impact on the media than on the administration, the learning curve being very limited. Legislative reforms have been introduced as a consequence of CIs, such as financial controls in the case of Roldán, or controls over explosives following 11-M, but one cannot really talk about pre- and post-commission scenarios. In fact, these commissions are never seen as important milestones because of the measures they may have introduced or because of their clarification of the facts. In short, without judicial powers and with information that is supplied by the media, the impact of CIs, in social terms, is minimal. It could be argued that rather than a genuine fact-finding body, the CI is merely a mechanism of political control because, as is openly acknowledged, the ability of the media to establish what took place is much greater than their own.

198

Commissions of Inquiry and National Security

They serve more as a forum for political infighting than as a body for supervising the political actions of the government. GLOSSARY Centro Superior de Información de la Defensa (CESID) —at the time, the coordinating body of the Spanish intelligence services; since 2002 known as the Centro Nacional de Inteligencia (CNI)

Parliamentary Groups Coalición Canaría (CC) — Canary Island party Convergencia i Unió (CiU) — Catalan nationalist party Esquerra Republicana (ERC) — minority Catalan nationalist party Grupo Mixto — parliamentary group for deputies who do not wish to join any of the existing political groups but who do not have the necessary support to form a new group Izquierda Unida (IU) — minority left-wing party Izquierda Verde (IV) — national green party Iniciativa per Catalunya Verds (ICV) — Catalan green party Partido Nacionalista Vasco (PNV) — Basque nationalist party Partido Popular (PP) — national Conservative party Partido Socialista Obrero de España (PSOE) — national Socialist party

NOTES 1. All quotes from the Spanish Constitution in this article are taken from the English translation available on the Web site of the Spanish Constitutional Court at http://www.tribunalconstitucional.es/es/constitucion/Paginas/Constitucion Ingles.aspx. Although the English version of this article refers to committees, the most appropriate term is commission (comisión), which in Spanish describes these types of organism more accurately. The dictionary of the Royal Spanish Academy defines commission as “a group of persons charged by the law, or by a corporation or authority, to exercise certain permanent responsibilities or to contribute to some specific matter.” The indiscriminate use of committee and commission may also be seen in the English text of articles 109 and 110. 2. 51 Regulation of the Congress of Deputies RC; 49.5 Senate Rule SR; 76 Spanish Constitution CE and 59.1RS. All quotations that appear in English are unofficial translations, solely for the purposes of this chapter. 3. Isidre Molas and Ismael Pitarch, Las Cortes Generales, en el sistema parlamentario de gobierno (Madrid: Tecnos, 1987), p. 37. 4. Ricardo Medina Rubio, La función constitucional de las Comisiones parlamentarias de investigación (Madrid: Universidad de Alicante-Civitas, 1994); and Joaquín García Morillo, El control parlamentario del Gobierno en el ordenamiento español (Madrid: Publicaciones del Congreso de los Diputados, 1985), pp. 148–49.

Legislative Commissions of Inquiry in Spain

199

5. Juan A. Santamaría Pastor, “La actividad del gobierno y de la Administración Pública como objeto del control parlamentario,” VI Jornadas de Derecho Parlamentario (Madrid: Senado, 1995). 6. Cristina Rodríguez Coarasa, “Actividad parlamentaria y proceso judicial: Delimitación de competencias de las Comisiones Parlamentarias de investigación,” Revista de la Facultad de Derecho de la Universidad Complutense 87 (1997): 259–86, esp. at p. 282. 7. Manuel Abadía Vicente, et al., “Comisiones parlamentarias de investigación y Poder Judicial: Debate,” Anuario de derecho constitucional y parlamentario 6 (1994): 153–76. 8. Luis Sánchez Agesta, “Artículo 76,” Constitución Española. Edición Comentada (Madrid: Centro de Estudios Constitucionales, 1979), p. 187. Coarasa, “Actividad parlamentaria y proceso judicial,” p. 281. 9. Fernando Santaolalla López, “Comisiones de investigación,” in El Parlamento y sus instrumentos de información: preguntas, interpelaciones y comisiones de investigación (Madrid: Edersa, 1982), pp. 151–263, esp. at p. 256. 10. Something quite unusual, as the motive for setting up a CI is generally the wish of the legislative arm to supervise the executive. Nevertheless, this option could not be eliminated as it would deprive the government of the possibility of creating a state of opinion that can be undertaken by the legislative branch. 11. A collegiate body with a formula for selecting its members that guarantees the representation of minority parliamentary groups such that its decisions will, at least implicitly, meet with the general approval of the Chamber. 12. The members of the two Chambers are organized according to their ideological affinity or membership of any one political party. The minimum is 15 deputies, although a parliamentary group could be formed by political groupings with no less than 5 deputies, which either represents 15 percent of all votes cast in the electoral district in which they were candidates or 5 percent of the national vote. Deputies who do not wish to align themselves with existing groups have to form part of the Grupo Mixto. 13. The rules that appear in the 1977 Provisional Rules of the Congress of Deputies on who may request a CI were stiffened due to the extraordinary nature of these committees. See Santaolalla, “Comisiones de investigación,” p. 249. 14. Luis Villacorta Mancebo, Hacia el equilibrio de poderes. Comisiones legislativas y robustecimiento de las Cortes (Valladolid: Universidad de Valladolid, 1989), p. 182. 15. Decision at the request of the commission of inquiry on “incompatibilidades y tráfico de influencias acerca de sus competencias, procedimientos de actuación y medios legales a su alcance” (incompatibilities and influence peddling concerning its competencies, administrative procedures and the legal remedies available to it), Revista de las Cortes Generales 14 (1998): 131. 16. At a later date, there were two legislative reforms that established valid requirements for requiring the presence of people and the obligation of the tax administration and banking and financial entities to supply information. Thus, on the one hand, the Ley Orgánica 5/1984, de 24 de mayo, de comparecencia ante las comisiones de investigación del Congreso y del Senado o de ambas Cámaras (Organic Law 5/1984, of 24 May, on appearances before commissions of inquiry of the Congress and the Senate or both Chambers), BOE num. 126/1984, May 26,1984, and on the other, the Real decreto-ley 5/1994, de 29 de abril, por el que se regula la obligación de comunicación de determinados datos a requerimiento de las comisiones parlamentarias de Investigación

200

Commissions of Inquiry and National Security

(Royal decree-law 5/1994, of 29 April, in regulation of the obligation for the communication of certain information required by parliamentary commission of inquiry). 17. Ernesto García Trevijano, “Materias clasificadas y control parlamentario,” Problemas actuales del control Parlamentario, VI Jornadas de Derecho Parlamentario (Madrid: Congreso de los Diputados, 1995), p. 534. 18. For more detail, see Juan José Vázquez-Portomeñe, Falso testimonio ante comisión parlamentaria de investigación (Madrid: Ed. Atelier, 2006). 19. León Martínez Elipe, Parlamento e información: acceso parlamentario a la documentación, audiencias extra-parlamentarias, comparecencias (Cizur Menor-Navarra: Aranzadi, 2002), p. 227. 20. For a detailed study, see León Martín Elipe, Parlamento e información: Acceso parlamentario a la documentación, audiencias extra-parlamentarias, comparecencias (Cizur Menor-Navarra: Aranzadi, 2002), p. 227; Ignacio Astarloa, “Comparecencia ante las Cámaras,” Enciclopedia Jurídica Básica, vol. 1 (Madrid: Ed. Civitas, 1995), p. 1162. 21. For some thoughts on whether the commissions should be held in public or behind closed doors, see José Luis Gil y Gil, “Las comisiones parlamentarias de investigación,” Proyecto social: Revista de relaciones laborales 8 (2000): 147–62. 22. Boletín Oficial de las Cortes Generales, Congreso de los Diputados, Serie E, num 75–5, June 18, 1994. 23. Rosario García Mahamut, Las Comisiones Parlamentarias de investigación en el derecho constitucional español, (Madrid: McGraw-Hill, 1996), p. 159. 24. Javier Pérez Royo, Curso de Derecho Constitucional (Madrid: Marcial Pons, 1995), pp. 512–13. 25. The first CI relating to national security in Spain’s democracy was the Special Commission of Inquiry into the Situation concerning Public Order and Terrorist Activities. Formed on June 19, 1979, it completed its work on August 31, 1982. It has not been possible to locate the final report, nor the reasons for its dissolution. 26. The Guardia Civil is the second law enforcement body in Spain, with over 65,000 personnel. Founded in 1844, it is responsible for security in rural areas, ports, airports, and trunk roads. 27. Final report (in Spanish) available at http://www.senado.es/legis5/publi caciones/pdf/congreso/bocg/E_078.PDF. 28. “El PP pide explicaciones al Gobierno” [The PP asks for an explanation from the Government], El País, December 20, 1994. 29. In fact, one week earlier, another attempt had been made to open a CI due to irregularities committed in the barracks of the Guardia Civil at Intxaurrondo by General Enrique Rodríguez Galindo (the anti-ETA tsar in the Basque Country) and the Guardia Civil’s connection with the dirty war against ETA. The proposal had been drafted by IU and PNV and had the support of the CiU and Coalición Canaría. However, the 40 votes in favor of this initiative in Congress were a long way from the 277 against. The spokesperson for the PP, Javier Peón, said that his party had not voted in favor because political responsibility clearly fell at the door of Felipe González and because the proposal to open the CI asked for criminal responsibility to be established, which is beyond the remit of the lower Chamber in the view of the Grupo Popular. 30. Constitution (in Spanish) available at http://www.congreso.es/public_ofi ciales/L5/SEN/DS/CO/CS0238.PDF.

Legislative Commissions of Inquiry in Spain

201

31. According to the minutes of sessions held at the Senate. Commission of Inquiry to determine political responsibilities arising from the formation, operation, and financing of the GAL, chaired by Juan José Laborda Martín. Session held on Wednesday, November 8, 1995 (in Spanish), http://www.congreso.es/public_ofi ciales/L5/SEN/DS/CO/CS0238.PDF. 32. Opinion against appearing before the commission (in Spanish), http:// www.senado.es/legis5/publicaciones/pdf/ senado/bocg/I0347.PDF. 33. Modification of the Work Plan (in Spanish), http://www.congreso.es/pub lic_oficiales/L5/SEN/DS/CO/CS0252.PDF. 34. http://www.congreso.es/public_oficiales/L5/SEN/DS/CO/CS0252.PDF. 35. http://www.congreso.es/public_oficiales/L5/SEN/DS/CO/CS0252.PDF. 36. Proposal for a report and dissolution (in Spanish), http://www.congreso. es/public_oficiales/L5/SEN/DS/PL/ PS0102.PDF. 37. In August 1996, the government of José María Aznar refused to hand over documentation held by CESID, which was sought by the courts in order to continue their investigation into different cases linked to the GAL, arguing that it would endanger state security, a stance that was contrary to that which it defended from the opposition when it accused the government of Felipe González of hiding behind the shield of state security to protect its own interests. 38. http://www.congreso.es/public_oficiales/L5/SEN/DS/PL/PS0102.PDF. 39. “El PP liquidó la ‘comisión GAL’ tras saber lo que iba a declarar el general Sáenz de Santa María” [The PP wound up the ‘GAL Commission’ after finding out that General Sáez de Santa María was going to declare], El País, January 26, 1996. 40. Declarations made to the press agency Europa Press, June 9, 1996. 41. http://www.congreso.es/public_oficiales/L5/SEN/DS/PL/PS0102.PDF. 42. Ávaro Pérez-Ugena, “Comisiones de investigación y poder judicial: la intromisión parlamentaria,” Revista de la Facultad de Derecho de la Universidad Complutense 86 (1994–95): 409–21. 43. http://www.congreso.es/public_oficiales/L8/CONG/BOCG/D/D_020.PDF. 44. Session num. 1 (in Spanish) held on Thursday, May 27, 2004, on the subject of March 11, 2004, http://www.congreso.es/public_oficiales/L8/CONG/DS/ CI/CI_001.PDF. 45. In application of article 64.4 of the Regulations of the Chamber, the records for session numbers 38 to 49 of this commission of inquiry were not published. 46. “La respuesta cabal de un Estado de Derecho a la terrible agresión terrorista padecida por el pueblo de Madrid en la mañana del pasado 11 de marzo, ha de consistir sobre todo en el esclarecimiento de los hechos criminales, la detención de sus autores, cómplices e inductores y la depuración de todas las responsabilidades ante los Tribunales de Justicia. Pero más allá de la exigencia de las responsabilidades penales ante un suceso que ha conmocionado de tal manera a la ciudadanía española y a la comunidad internacional y ha tenido innegables consecuencias políticas, el Congreso de los Diputados no puede ser insensible al amplio debate abierto en la opinión pública acerca de todas las circunstancias concurrentes en los atentados; de si existían indicios de consistencia y fiabilidad suficientes que aconsejasen la adopción de medidas de seguridad preventivas excepcionales, de la adecuación y diligencia de las iniciales averiguaciones policiales y de los servicios de información; y de los flujos de información generados por aquellas averiguaciones;

202

Commissions of Inquiry and National Security

de su divulgación por el Gobierno, por formaciones políticas y por los medios de comunicación, de las trasgresiones de las previsiones legales sobre el desarrollo de la jornada de reflexión.” (The full response of the Rule of Law to the terrible terrorist attack suffered by the people of Madrid in the morning of 11 March past has to consist above all in the clarification of the criminal acts, the arrest of their perpetrators, accomplices and instigators and the attribution of all responsibilities in the Courts of Justice. However, beyond the demand for criminal responsibilities, in the face of an event that has moved the Spanish public and the international community so deeply and has had undeniable political consequences, the Congress of Deputies cannot remain insensitive to the wide-ranging public debate on all of the concurring circumstances of the attacks: whether there were reasonable and sufficiently consistent and trustworthy grounds that suggested the adoption of exceptional security measures of a preventive nature, on the appropriateness and the diligence of the initial police investigations and on the information services, and the flow of information generated by those investigations; on their divulgation by the Government, by political formations and by the communications media, on the infringements of legal provisions throughout the course of the following day of reflection.) 47. “La legislación sobre secretos oficiales, la Ley del CNI, de 2 de mayo de 2002, artículos 5 y 11, y el Código Penal, evidentemente, me obligan a guardar secreto sobre una serie de materias que he conocido por razón de mi cargo y que el Consejo de Ministros no ha desclasificado. En consecuencia, les ruego que tengan en cuenta esta circunstancia, por la situación legalmente un tanto esquizofrénica en la que me encuentro: por una parte, deseo colaborar, deseo contestar a sus preguntas, estoy aquí para ello, y al mismo tiempo tengo unas limitaciones que me afectan a mí pero que también afectan a Sus Señorías, porque todos tenemos que respetar la ley.” (Legislation on official secrets, the Law of the CNI, of 2 May, 2002, articles 5 and 11, and the Penal Code, evidently, oblige me to remain silent over a series of matters that I know of by reason of my position and that the Council of Ministers has not declassified. In consequence, I would ask them to take these circumstances into account, because of the situation in which I find myself that is a little schizophrenic, legally speaking: on the one hand, I wish to collaborate, I wish to answer your questions, that is why I am here, and at the same time I am subject to some restrictions that affect me but that also affect the honourable members of this Commission, because we all have to respect the law.) 48. Javier Pérez Royo, “La verdad parlamentaria” [The parliamentary truth], El País, May 1, 2004. 49. http://www.congreso.es/public_oficiales/L8/CONG/DS/CI/CI_023.PDF. 50. The most complete compilation of documentation on 11-M is on the special page of the newspaper El Mundo (in Spanish), http://www.elmundo.es/ documentos/2004/03/espana/atentados11m/index.html 51. “Proposals for the Consideration of the Commission of 11th March,” http:// www.ociocritico.com/oc/actual/canales/diario/nacional/propuestas_reflexion_ pp_11m.pdf. 52. One year later, the deputy Del Burgo published this material in the format of a book with the title 11-M: Demasiadas preguntas sin responder (Madrid: La Esfera de los Libros, 2006).

CHAPTER 11

Cover Up or Dig Up? Inquiries into Security Services in Welfare States: The Cases of Norway, Sweden, and Denmark Janne Flyghed

For as long as secret police work has been carried out, its legitimacy has been the subject of debate. One of the central issues has been whether the infringement of individual integrity is proportionate to the effectiveness of the work itself. Is what we as citizens lose in the form of integrity proportionate to what we gain in the form of protection? One of the difficulties in this context is that very little is known about the work conducted by these organizations, which are almost by definition screened from external inspection. What do we actually know about how they handle their classified information? With no more than a vague perception of what these organizations do, it is very difficult to assess whether the balance between integrity and effectiveness is to be regarded as acceptable. An opportunity to gain some insight into these organizations is provided when isolated scandals blow up and lead to the establishment of public inquiries, which are then conducted with varying degrees of thoroughness. This chapter analyses how, after decades of debate, three Scandinavian countries, Norway, Sweden, and Denmark, ventured to analyze their respective intelligence and security services. Since the beginning of the 1950s, there has been an intermittent discussion and debate on the illicit monitoring and registration of Danish, Swedish, and Norwegian citizens by each respective country’s intelligence and security services. Was it really possible that “our own” secret police used their powers to collect information about our political opinions? This discussion has revolved around a number of questions of fundamental significance for democracy and governance in accordance with the rule of law. In this context, the proportionality between national security and the civil

204

Commissions of Inquiry and National Security

rights of citizens constitutes a central issue. To what extent can infringements of individual integrity be justified by reference to the need to protect national security? At bottom, this is a question of the ability of democracies to defend themselves without resorting to the methods of dictatorship. One concrete issue has been that of the extent to which the security and intelligence services of central government have been employed for purposes other than those for which they are intended. Has the central government, or its organs, engaged in the registration of political opinions? Registering anyone purely on the grounds of their political sympathies is a criminal offence in all three countries. This is a particularly sensitive issue in these countries since, during the majority of the postwar period, all three have developed an international reputation as strong proponents of the welfare state, a state that safeguards both its citizens’ material well-being and their civil rights and freedoms. There is, however, one substantial difference. Norway and Sweden have been led by Social Democratic governments, especially during the first three decades after the Second World War—a period that can be characterized as a social democratic hegemony. Denmark, on the other hand, has mostly been led by different coalitions, consisting of Social Democrats, Conservatives (Det Konservative Folkeparti), and Liberals (Venstre). When it comes to security-policy, though, there has been quite a strong consensus between these parties; a common view that it is possible to trace back to their positive attitude toward Denmark joining the North Atlantic Treaty Organization (NATO) in 1949.1 It is also worth remembering that the minister responsible for the Danish secret police for two-thirds of the period (28 years), the minister of justice, has been a social democrat.2 Throughout the whole period, the Department of Justice, and especially the minister of justice, had a key role when it came to the activities of the secret service.3 Despite the public inquiries that have been carried out over the years, satisfactory answers to the aforementioned questions have never been forthcoming. New information has continuously come to the fore, especially when new scandals have been revealed. Therefore, new questions have emerged that have shown that the inquiries conducted have been inadequate or incomplete. The inquiries have had neither the mandate nor the competence necessary to illuminate the nature of the problem. In addition, those appointed to lead these commissions have in certain cases been persons closely allied with those wielding the political power of the state. To a large extent, such inquiries have been appointed as a means of attempting to neutralize the underlying criticisms. The objective has then been twofold. On the one hand, an inquiry takes time, which it is hoped will allow the public debate to fade into the background; on the other, the politicians responsible are able to avoid discomfiting questions by reference to the fact that one doesn’t want to anticipate or prejudice the outcome of the ongoing inquiry. Inquiries of this kind have therefore primarily been for show and represent an attempt to whitewash a dirty past.

Cover Up or Dig Up? Inquiries into Security Services in Welfare States

205

In Denmark, Sweden, and Norway, however, the 1990s witnessed reviews of the work conducted by the security and intelligence services that proceeded on the basis of much higher aspirations. In Norway, these resulted in the so-called Lund Report (so named after the inquiry chairman, Ketil Lund). In Sweden, the Commission of Inquiry into the Security Service (Säkerhetstjänstkommissionen) presented its report at the end of 2002, all in all a total of slightly over 3,300 pages.4 And in Denmark, a special commission worked for 10 years, finally ending up in June 2009 with 16 volumes consisting of 4,400 pages (Undersøgelseskommissionen vedrørende Polititets Efterretningstjeneste).

THE CULTURE OF DENIAL AND THE “AT-LEAST” APPROACH Stanley Cohen established the concept of the spiral of denial as a means of describing a strategy, primarily employed by those in power, to counter assertions of impropriety.5 The spiral is comprised of three stages. Stage one involves a categorical denial. The allegations are false. It never happened! If it then emerges that something did actually happen, stage two involves claiming that what happened isn’t what it seems. Both the posited extent and the classification of the phenomenon are incorrect. Should it ultimately emerge that what had at first been denied had in fact really occurred, the final, contorted stage of the spiral remains. This, the ultimate solution, involves referring to some greater good—national security, the fight against terror, or some other, similar phenomenon—claiming that the measures taken were in fact necessary. Cohen’s spiral of denial fits well with the actions of both the Swedish and Norwegian Social Democrats with regard to the work of the security services, and to a certain extent to the political establishment in Denmark. Over the years, they have gradually retreated from their original position of complete denial of involvement in any form of improper use of the state security organizations (primarily in relation to the registration of political sympathies), first making certain admissions, although pointing out that these activities were neither of the scope nor of the nature that had been claimed, only finally to make a fuller acknowledgement of their involvement in activities of this kind with the justification that their actions were necessary in order to keep subversive communist elements under control. Within the context of this chapter, it is of course not possible to provide a complete picture that would do justice to all the work conducted within the context of these three inquiries. Instead, I would like, on the basis of a number of specific, central themes, to discuss the overall problem—that of the balance between national security and the personal integrity of the individual. It will hopefully be possible to get a glimpse of what you can achieve in terms of knowledge through these kinds of commissions.

206

Commissions of Inquiry and National Security

Among the more important questions that have emerged repeatedly over the course of the last four decades are those of whether there has been an unlawful registering of individuals’ political sympathies—whether special powers, primarily through the use of telephone taps, have been employed in order to substantiate suspicions of criminal activities or rather in order to collect surplus information (i.e., all information that arises in connection with monitoring activities but that was not directly sought after). A further question when it comes to Norway and Sweden has been whether the Social Democrats have used elements of the state monitoring apparatus to the advantage of their own party. Another important question is how, and how effectively, the control of the security services has been carried out. How then are we to read commissions of inquiry into the security services? Can we assume, especially when it comes to such voluminous documents as the Lund Report and the Swedish and Danish commissions, that everything has now been thoroughly investigated once and for all? The answer is, of course, no. It is somehow in the nature of the beast that the absolute truth about clandestine operations can never be laid bare. Despite the fact that these inquiries are unique in terms of both the approach employed and the amount of resources made available to them, much remains unclear. Documents are missing, individuals in possession of information have died, and others still alive who have been interviewed by those working for the inquiries have not wanted to divulge, or have not been able to divulge, the full extent of their knowledge. Faced with material of this kind, it is therefore appropriate to employ what I have chosen to refer to as the “at-least” approach. If information emerges about serious improprieties in the work of the security police, for example, this provides evidence that this is “the least” that has happened; the evidence reflects a minimum level, as it were. To illustrate the approach, I turn to an example taken from my doctoral dissertation, Rättstat i kris (Constitutional State in Crisis),6 which examined the activities of the Swedish security services during the Second World War. I succeeded in obtaining information on the security services’ collaboration with the Gestapo. In the archive maintained by the security police, I was able to read correspondence between the general security service of the day and its German counterpart, primarily the Sicherheitsdienst and the Gestapo. This is not to say that I am certain I was given the opportunity to see everything. The methodological point here is that I was able to draw the conclusion that the nature of the informational exchange that took place between the Swedish and German security services during Nazi Germany’s most successful years was “at least” as damning in its extent as was indicated by the documents to which I had been granted access. It could not, at least, have been any less so. FIRST NORWAY . . . In Norway it is the Parliament (Stortinget) that appoints a commission of inquiry. The Parliament lays down the terms of reference of the commis-

Cover Up or Dig Up? Inquiries into Security Services in Welfare States

207

sion and the specific procedures for its work. It should be possible for the terms of reference to allow an assessment of responsibilities in so far as such assistance is required by the Stortinget. The extent to which the commission is to be bound by the general rules and guidelines that apply to public commissions of inquiry should be specified. Furthermore, an assessment should be made of whether the commission requires statutory authority in order to ensure the necessary access to information and documents. A commission of inquiry appointed by the Parliament shall consist of persons with the necessary professional competence and integrity. The commission shall carry out its duties independently of the Stortinget. The commission of inquiry shall report directly to the Stortinget. The report shall be public unless special considerations indicate that it should be wholly or partly confidential. Before the Stortinget makes its final assessment of a report, it should be submitted to the government for written comment. In February 1994, the Norwegian Parliament appointed the Lund Inquiry (LI), and after more than two years, in the beginning of May 1996, it presented its extensive report. The report constitutes a detailed treatment of the possible unlawful monitoring of the country’s own citizens from the time of the Second World War to the day they delivered their report. The inquiry was given wide-ranging powers. It was also given a generous budget, which among other things made it possible for the commission to build an administrative staff of 20 assistants, consisting mainly of lawyers, policemen, and historians. An important memento is that the commission was constituted in opposition to the minority government led by the Social Democrats. It was granted access to classified material covering events as recent as the inquiry desired, it was given the power to examine witnesses under oath if necessary, and it was provided with substantial resources. In the end, the inquiry’s findings were somewhat sensational. In addition to flagrant breaches of existing regulations by the security police, it also emerged that the Social Democratic Workers’ Party (Socialdemokratiska Arbeiderpartiet) had confused national security with interests of a purely party political nature. They had quite simply used parts of the state apparatus to their own advantage. According to the inquiry this had involved the “preferential treatment of the party of government to the direct disadvantage of the communists.”7 The use of hidden microphones had been prohibited throughout the period covered by the inquiry. In spite of this, Politiets OvervåkningsTjenst (POT, the Norwegian Police Security Service)8 monitored meetings of both communists and other radical leftists. Among the more spectacular findings was that Folkets hus (the People’s Hall) in Oslo had been systematically monitored in this way, irrespective of whether the premises were being used by trade unions, peace organizations, or those involved in other forms of activity.9 A tape recorder located on the seventh floor of the building was used to store all the information gathered. At several occasions the social democratic under-secretary of state was there in person to listen. The concept of “listening to the movement” was thus given a whole new meaning.

208

Commissions of Inquiry and National Security

POT frequently made use of so-called surplus information, information that had nothing to do with the suspicions that had provided the grounds for the monitoring efforts. In the first instance these monitoring activities involved collecting information on the activities, leaders, members, and sympathizers associated with groups perceived to constitute a potential threat, and thus they were not focused on exposing concrete criminal activities.10 Within the focus for the surveillance stood different kind of communist organizations, the peace movement, and even some people belonging to the left bloc within the Social Democratic Party.11 The inquiry stated that the Norwegian state’s registration of communists and communist sympathizers through this monitoring had been very extensive. Nor had its extent started to decline until 1989.12 One remarkable fact in this context is that POT had also registered minors. The registration of school pupils had involved the use of informants, themselves probably drawn from “among the pupil body.”13 In the so-called subject archive of the security police, lists were found of children who had traveled with their parents to Albania in the 1970s. An 11-year-old was registered in 1973 as a likely participant at a summer camp. An extraordinary example of the secret service monitoring of Norwegian citizens was revealed 25 years later. It was discovered that one of the members of the commission, history professor Berge Furre, had been monitored while he was working for the commission.14 The Lund Report questioned whether the security services had really understood where their own best interests lay in relation to the question of secrecy. Several of the rumors that circulated about the work of the security services, for instance, were found to be groundless. One example may be found in the contention that the Norwegian Police Security Service year after year systematically monitored the conversations of members of the government and other politicians. The fact that these rumors were able to gain a foothold and “poison the political and parliamentary environment” was mainly a result of the lack of external monitoring. “The situation that led to the appointment of the Commission of Inquiry shows that secrecy may be the service’s worst enemy.”15 According to the inquiry, one means of countering this would be to open up the closed system and make it accessible to experts with a critical inspection function, and not only at the highest levels but also among subordinate officials within the service. It is not only within the higher echelons of the service that the contents and direction of its activities are decided. There are two types of principal problems associated with monitoring the work conducted by security services. On the one hand, unclear regulations may produce gray areas. On the other hand, clear regulations may exist but may then be breached by security services. The security services themselves are only at fault in the latter case. Political leaders, on the other hand, should be held responsible in both instances. One problem that has consistently featured is that the organs of political power have never

Cover Up or Dig Up? Inquiries into Security Services in Welfare States

209

succeeded in establishing regulations that clearly define the powers of the security services. The Norwegian inquiry found parliamentary control, which should constitute the democratic guarantee against abuses and transgressions, to be sadly wanting. Court judgments permitting monitoring activities were taken on the basis of extremely poor evidence, and the courts have year after year automatically acquiesced in the extension of the warrants required.16 . . . THEN SWEDEN . . . In Sweden commissions of inquiry are appointed by the government, and the government also provides each commission with a set of guidelines for its work. These terms of reference set out the questions to be examined by the commission, define the problems to be addressed, and set a closing date for the inquiry. Committees normally include experts familiar with the area or matter to be examined and, in some cases, politicians. The commission submits its proposals in the form of a report to the government. The report is then published as part of a series called the Swedish Government Official Reports (SOU). If a government ministry has carried out the inquiry, the report is published in a series called the Ministry Publications Series (Ds). After a commission of inquiry has submitted its proposals and recommendations in a report, the government forwards the report to the relevant authorities, advocacy groups, and the public in order to receive their comments. This is known as the referral of a report for consideration. When the Lund Report was made public in May 1996, demands were made for a similar study of the situation in Sweden. The Social Democratic government argued, however, that these questions had already been investigated in Sweden.17 Just over a year later, in the autumn of 1997, the Swedish security police (Säpo) file on a carpenter named Torsten Leander was made public. Leander’s case had been the subject of debate in Sweden since the end of the 1970s. He was refused a temporary position as a museum technician at the Naval Museum in Karlskrona when the background checks conducted by Säpo classed him as a security risk. He was given no explanation as to why. When the contents of his classified file were finally made public, it was found to contain nothing other than completely legitimate political activities.18 This further fuelled the debate surrounding the need for an inquiry along the lines of that conducted in Norway. The government tried to appease the critical voices by doing something that in the Swedish context was quite extraordinary. In December 1997, it decided to give 20 million Swedish crowns (approx. two million Euros) to the Swedish Council for Research in the Humanities and Social Sciences (HSFR) for the purpose of carrying out an in-depth research project on the Swedish military security and intelligence (MUST) from 1920 until the beginning of the 1980s. The project raised several fundamental questions among the researchers: Would it really be possible to get access to the information?

210

Commissions of Inquiry and National Security

Why only military security and intelligence? And why stop at 1980? The government promised that the Official Secrets Act would not stand in the way of access to archives: “It goes without saying that researchers should have access to the archives . . . the responsible authorities [would be instructed] to assist the researchers [and] to adopt an extremely open attitude.”19 But it soon became clear that the researchers were being denied the files and documents they would like to see. The agencies used every excuse to delay or deny access, and protests to the various ministries brought no change. “In January 1999, Janne Flyghed, one of the key researchers, resigned from the project saying: ‘If we are not given the chance freely to study the material, there is a risk that our research will be part of a cover-up project.’”20 Finally, in March 1999, an inquiry into the work of the Swedish security services, which had previously been declared completely unnecessary, was appointed. The inquiry was to be given unrestricted access to the archives and was to be allowed to examine documents as recent as the inquiry itself deemed appropriate. The major part of the work was carried out by academic researchers, who were also responsible for the important additional reports.21 The commission should scrutinize both the civil security service (Säpo) and their military counterpart. Here I will primarily focus on the latter. The government bill that established the inquiry stated that no “comprehensive and exhaustive survey of domestic security political intelligence activities” had previously been conducted in Sweden.22 In appointing this inquiry, the politicians responsible completed a full U-turn. It is worth remembering that the inquiry came about despite the fact that the Social Democrats had consistently done everything possible to delay the process that led to its appointment. Those responsible for driving this process forward had instead been academics, social commentators, and certain sections of the media. According to the inquiry’s investigators, the view of Säpo on the importance of registering political sympathies was summarized in a working directive dated October 1953. The register constitutes our memory. Let it know what you have collected. Notes kept in the desk drawer may possibly have enriched your own knowledge, but not the knowledge of the division. Make sure therefore that information is registered! It is only then that you improve the division’s ability to answer the continuously recurring questions: Who is this and what is known about them? (italics in the original)23

This directive was apparently followed. The security police conducted a very comprehensive registration of political sympathies up until 1969, and the intensity of the surveillance decreased only when the monitoring of the largest Swedish political party located to the left of the Social Democrats, namely the Left Party Communists (Vänsterpartiet kommunisterna),24 was largely abandoned.25 The directives on registering political sympathies, which were tied to the conduct of background checks for certain state

Cover Up or Dig Up? Inquiries into Security Services in Welfare States

211

employees, were nonetheless retained until as late as 1998.26 Since the beginning of the 1950s, several hundred thousand individuals had been registered, often on rather flimsy pretexts.27 So-called working registers were maintained in order to collate information collected purely as a result of the fact that the individuals in question entertained subversive political opinions. This was an unmistakable case of the registration of political sympathies. “Entries were to be retained in the working register and supplemented until such time as the assembled information was sufficient to meet the requirements for registration in the central register.”28 Thus on the basis of this directive, everything that the security police perceived to be useful information could be kept in the classified working register. “We may not register him, but we can on the other hand insert him into our working notes.”29 Should it then emerge that there were real (i.e., lawful) grounds to register a given individual, the collected information could then be transferred to the legally regulated register. According to the Säkerhetstjänstkommissionen, the notes retained in the working register have, since the end of the 1960s, constituted a free zone for the compilation of information that, according to both the 1969 background checks proclamation and the 1977 constitution, was not permitted to constitute grounds for registration. Information from the working register was provided by Säpo in connection with background checks, in direct contravention of the Swedish constitution. This resulted in a large number of cases where the information provided by Säpo included “political information where it is doubtful whether the individuals being subjected to these checks would have been able to anticipate that their political activities would result in their being regarded as a security risk.”30 Since the process was classified as secret, there was no opportunity to correct inaccuracies in the information registered. The Säkerhetstjänstkommissionen (STK) states that it had clearly been more important “to satisfy the need to maintain the secrecy of the directives than to ensure the observance of the legal rights of those being subjected to checks.”31 The STK has stated that in order to prevent any external inspection of their registration activities, Säpo consistently designated sensitive information for inclusion in the working registers. If a situation arose where there was a suspicion that one of these registers might be exposed to the light of day, then a new register, with a new designation, was initiated. In addition, old registers continued to be maintained despite the fact that the legislature introduced new, and more strictly regulated, registers. This was the case, for example, when the so-called Säpo register was initiated in 1998—this was a register that Säpo maintained purely for the sake of appearances because it was required by law.32 In practice, the operative register remained as before the central register and the officers’ working notes. The use of telephone taps has clearly provided the most important source of information for the security police. During the 1960s, the use of telephone taps could produce up to 70 tapes of recorded conversations per

212

Commissions of Inquiry and National Security

day.33 Despite the fact that these extensive monitoring activities produced enormous amounts of information, no criminal activity could be substantiated.34 The measures did not result in criminal charges in a single instance, and this despite the fact that periods of monitoring sometimes lasted for seven to eight years.35 However, the method was not used with the objective of substantiating suspicions of criminal activity. The telephone taps were employed almost exclusively as an instrument in the context of general monitoring activities and collecting surplus information. The reports of the STK show very clearly that the principal objective has been that of collecting surplus information.36 Säpo determined as early as the 1950s that all “surplus information collected by means of telephone taps of communist organisations should be retained in the form of anonymous reports in special informant files.”37 Over time, this practice has generated enormous quantities of information. Thus according to the security police, the monitoring of individuals who are themselves of interest has been used as a pretext also for monitoring other individuals.38 Despite the fact that the number of instances of authorized monitoring has not been particularly large, this practice has meant that the telephone conversations of thousands of individuals have been monitored and have found their way into the registers maintained by the security police. According to the inquiry, the abuse of surplus information continued right up until that time (i.e., December 2002).39 In connection with monitoring activities conducted since the 1990s, the offence classification “unlawful organisational activity” has been employed in order to get prosecutors and courts to accept the clandestine monitoring of individuals suspected of crimes of a violent nature in cases where there is no legal basis for the conduct of such monitoring on other grounds.40 According to the inquiry, the security police have allowed considerations of efficacy to outweigh the protection of personal integrity nominally assured by legislation.41 . . . AND FINALLY DENMARK The Politiets Efterretningstjeneste (PET, Danish Security and Intelligence Service) have from time to time during the postwar period been the subject of intense debate and criticism.42 As in the neighboring countries, the issue has been whether the security service has been involved in illegal surveillance of political organizations and monitoring of citizens’ political opinions. One response has been to establish commissions of inquiry. However, their main purpose has not been to really investigate whether the allegations were true or not but to appease the critical voices. When such reports are delivered, most of the questions remain unanswered. According to Preben Wilhjelm, former MP for the Liberal Party, there have been approximately 300 different kinds of initiatives in the Danish Parliament since 1947, all with the purpose of bringing PET under democratic control.43 He gives a comprehensive description of the Danish debate and summarizes the

Cover Up or Dig Up? Inquiries into Security Services in Welfare States

213

inquiries that were conducted up until 1998.44 He also lines up 22 occasions between 1945 and 1998 when the secret service has been accused of committing “problematic operations.”45 Wilhjelm concludes that it is possible that some of these operations might have been cleared by the Department of Justice; but “if that is the case, it must be disentangled by a Commission of Inquiry.”46 In June 1999, a commission of inquiry was finally established by the Danish Parliament (Folketinget) through a special law.47 According to section 3 of the law, the main task for the commission was to describe the security service’s monitoring of political parties and movements between 1945 and 1989 and cast light upon the extent the security service had followed the rules and guidelines put down by Parliament and the government. The commission was led by one lawyer ( judge), two professors of law, and two historians. To assist them they had a staff of 13 collaborating researchers, some of who were also responsible for specific parts of the report. The commission delivered its voluminous report, consisting of 16 volumes, to the minister of justice 10 years later. There are two major differences between the Danish commission and the ones from Norway and Sweden. The Danish one did not scrutinize the military security service, only the civil security service. Another, more important, difference is that it covers a shorter period of time. It has the same starting point, 1945, but ends in 1989. But during their work the commission decided to make a minor extension of this time limit.48 In Norway and Sweden, the period covered ended when the commission first delivered its report. It would have been of great interest if the Danish commission had discussed the important post–Cold War period. The reason is twofold: Have there been any changes in the priorities when it comes to this kind of police work before and after the Berlin Wall fell? And what impact did the new security concept, which arose when the Cold War became history,49 have on security policing? Considering that the Danish commission only completed its work in 2009, it could furthermore have discussed the effects of the war on terror that was declared after 9/11. Concerning monitoring and registration of Danish citizens, the commission concluded that there had been a discrepancy between the official picture presented by the government and the secret service praxis. “This discrepancy came to be a permanent phenomenon during the whole Cold War period. Changing ministers of Justice maintained one thing outwards, but PET imposed something else inwards.”50 This is of importance when it comes to understanding why the Danish commission didn’t find much reason for criticizing the secret service for not following the rules.51 PET had political approval from the Department of Justice and different governments for almost everything it did.52 In the early 1960s, criticism of PET led to the establishment of a standing committee (Wamberg-udvalget) with the purpose of increasing control over PET.53 At that time there were, according to PET itself, approximately 250,000 to 300,000 persons in PET’s register.54 Most of them were members

214

Commissions of Inquiry and National Security

of different kind of communist organizations. Besides appeasing critics, the commission pointed out that this standing committee was also a way for the three governmental parties to “try to protect PET, so they could continue in a way the Social Democrats, Liberals and Conservatives had agreed upon.”55 The commission concluded that irrespective of which of the three parties the minister of justice represented, they all accepted PET’s praxis when it came to registration, and they didn’t follow the demand from the standing committee to inform Parliament and the public of this praxis.56 According to Ole Stig Andersen, head of PET from 1975 to 1984, PET and Wamberg-udvalget had an almost symbiotic relationship, where both sides had a good understanding of the interests of the other.57 In 1968 the Danish government decided that it was explicitly prohibited for PET to monitor and store information about Danish citizens solely on the basis of legal political activity.58 But PET apparently had no problem with finding other reasons for registration, which meant that they could add even legal political activity.59 When it came to registration PET frequently used working registers in largely the same manner as in Sweden. In that way it was possible to store information on the citizen’s political sympathies even though it was not in line with PET’s instructions.60 The commission criticized PET for “hiding information in working files” to keep it away from Wamberg-udvalget.61 Even in Denmark there has been a close connection between the secret service and the Social Democratic Party. There was, for example, formalized cooperation between PET and AIC (Arbejderbevaegelsens Informationscentral, the Labour Movements Information Central). In the struggle to have control over local trade union activity, the Social Democrats collected through AIC information about communists and communist activities. Already in the 1940s, AIC had over 1,000 informants in different workplaces in Copenhagen alone, and its successor, Arbejderbevægelsens Faglige, Politiske Sekretariat, had in 2001 approximately 8,000 contacts in different workplaces.62 The commission concluded that this was an effective way for the Social Democrats to maintain their dominant position within the trade unions.63 The information gathered by AIC was of great interest for PET, especially throughout the Cold War. The commission writes that at least until the mid-1960s, PET was “dependent on the AIC” to get accurate information.64 The origin of this cooperation goes back to Germany’s occupation of Denmark during the Second World War when personal connections were formed and informal networks between PET and some Social Democratic politicians were established. THE SOCIAL DEMOCRATS—“LISTENING TO THE MOVEMENT” One important issue is that of whether the Norwegian, Swedish, and Danish Social Democratic Labour Parties confused the interests of the party

Cover Up or Dig Up? Inquiries into Security Services in Welfare States

215

with the issue of national security. There seems to be no doubt that parts of the apparatus of the state were used to gain party political advantage, in particular in relation to the communists. “Clear evidence of this can be found in a number of reports from the beginning of the 1960s which were found by the Inquiry in the Säpo archive, reports which amongst other things relate to the internal situation within the Communist Party.”65 The Swedish inquiry states further that “the party was able by this means to profit from the use of intelligence collected by public employees.”66 As regards the collection of intelligence relating to leftist groups throughout the 1970s, the purpose appears primarily to have been that of providing support for Social Democratic union activity by obstructing communist organizations. “This clearly involves the confusion of the interests of the party with those of the state.”67 The Norwegian inquiry came to the same conclusion.68 Exactly how long and to what extent is unlikely ever to be made completely clear. Here it is sufficient to note that activities of this kind have been conducted, something that has otherwise consistently been denied. It is also worth remembering that the Social Democratic parties from all three countries, already by the 1930s and 1940s, had established a close cooperation with one main objective: to control the communists.69 POLITICAL CONTROL IN THE WELFARE STATE There are at least three major risks associated with security services in a liberal democratic context: 1. The security services become the servant of the government and are used to maintain a party or individual in power. 2. The security service may evolve into an independent organization deciding its own priorities and targets. 3. The security service can be oppressive in its means and methods, even where the politically responsible authorities have actually dictated the aims and tasks.

Which of these risks can be said to have been realized in these cases? First of all, there is no real evidence that they have evolved into a form of state within the state (i.e., that these organizations might have begun to live a life of their own), which constitutes a threat to the constitutional system. It is quite beyond doubt, however, that they did employ incorrect, from time to time even unlawful, methods, particularly in relation to the exploitation of surplus information and the work conducted to produce and maintain various registers. Quite clearly, in the Scandinavian countries the security services have in part been employed as a tool of those wielding political power. To these three points, a fourth should be added; namely, that the security services’ activities are extremely difficult to monitor. Here the Norwegian and Swedish inquiries present cutting criticism, primarily directed at those with political responsibility for the security services. The parliamentary control of these activities has been extremely poor, something that has to

216

Commissions of Inquiry and National Security

a large extent been the result of a fifth deficiency—namely, the vagueness of the relevant regulations, which has left the field open to extensive interpretations as regards to how such activities may be conducted. On these two last points Denmark differs to some extent. The Danish government fulfilled to a certain degree its political responsibility to control the secret service, even though it did not inform the Parliament and much less the public. The comprehensive silence that characterizes every aspect of this type of police work constitutes a major problem. The report of the Lund Inquiry in Norway maintains that employees thereby lost “the corrective that resides in the public exchange of information and the discussions conducted in society at large.”70 The key problem lies in the use of the term “national security.” The deference to national security has a dumbfounding effect. “The desire to avoid doing anything that might harm this security and to defer to the experts who claim to be abreast of the relevant risk factors, becomes compelling; critical questions are left unasked, the need not to know takes over.”71 There is a major risk in a closed system of this kind of the development of praxis that will lead to infringements and the perpetration of direct injustices against individuals and groups. This has been a pervading problem in all three countries. How then should the examples provided by these three Scandinavian countries be understood? One interpretation would view the findings of the inquiries as something we would not have expected to find in liberal democracies of this kind; and, if this is the situation in these welfare states, what must it be like in more totalitarian states? It is possible, however, that the reverse is true—in other words, that it is precisely in states with a long tradition of democracy that abuses of this kind are to be expected. From this perspective, a consensus has been established on the subjects of monitoring and integrity. The citizens have too much faith in the welfare state and have for too long confused the state with society as a whole. In summary, the Norwegian, Danish, and Swedish experiences show that a large part of the work conducted by these monitoring organizations has from time to time been focused on political activities of a kind that must be accepted as legitimate in the context of a democratic society. Over the course of at least the past 25 years, there has been nothing to justify the general monitoring of the political organizations, and their memberships, on which so much time has been spent. The extensive monitoring and registration of more or less politically active individuals that has been undertaken by the security services has had very little to do with national security. It is rather the case that the violations of individual rights committed by the security services themselves constitute the greater long-term threat to national security. Clearly, this at times exceptional practice has over the years come to be normalized. By extension this becomes a question of the legitimacy of the existing political system itself. And there is nothing more likely to undermine democracy and the rule of law than tendencies that create uncertainty

Cover Up or Dig Up? Inquiries into Security Services in Welfare States

217

as to whether or not what one is doing is the object of security service attentions. A review of the Norwegian, Danish, and Swedish inquiries confirms that the age-old truth—that those who are appointed to positions of control must themselves be subject to constant controls—is more relevant today than it has ever been. One contribution to such control is to appoint a commission of inquiry. A prerequisite for such a commission fulfilling this purpose is that it gets the necessary tools; in other words, that it will get access to all relevant information, documents, files, and so forth. If that is not the case, an inquiry will, instead of helping us understand by digging up, be part of a cover up. But after reading these Scandinavian inquiries, it seems like the only thing we learn from history is that we don’t learn from history.

NOTES 1. PET 2, p. 78. Abbreviations are used in place of often long publication titles in these footnotes—full references are given in the bibliography at the end of the chapter. 2. PET 1, pp. 26–27. 3. PET 16, pp. 29–30. 4. SOU, pp. 87–95. 5. Cohen 1993; Cohen 2001. 6. Flyghed 1992; 2002. 7. LI 1996, p. 577. 8. The former name of the Norwegian Police Security Service was Politiets Sikkerhetstjeneste (PST). 9. LI 1996, pp. 175 and 345. 10. Ibid., p. 20. 11. Ibid., p. 244. 12. Ibid., p. 15. 13. Ibid., p. 13. 14. Flyghed 1997, p. 25. 15. LI 1996, p. 590. 16. Ibid., p. 352. 17. Interpellation 1995/96, p. 237. Answered March 6, 1996, by Minister of Justice Laila Freivalds. Protocol 1995/96, p. 104. 18. Töllborg 1997. 19. Statewatch 10, no. 5 (2000). 20. Ibid. I never entered the project because of the uncertainties of getting access to classified information and in the end returned three years’ full-time research funding. In June 1999, Dennis Töllborg, another of the key researchers, left the project: “You cannot really take a salary when the subject of your research is blocked with such force and by such forces” (Statewatch vol. 10, no. 5 [2000]). 21. SOU, pp. 88–95. 22. Prop. 1998/99, 140,10. 23. SOU (88), pp. 103–4. All translations from Swedish, Norwegian, and Danish are done by the author.

218

Commissions of Inquiry and National Security

24. This party has functioned as a supporting member of Social Democratic minority governments during a large part of the postwar period. 25. SOU (89), p. 125. 26. Ibid., p. 126. 27. SOU (87), pp. 29 and 367. 28. SOU (89), p. 134. 29. Ibid., p. 144. 30. Ibid., p. 223. 31. Ibid. 32. SOU (91), p. 362. 33. SOU (95), p. 283. 34. See, e.g., SOU (91), p. 117. 35. SOU (91), p. 121. 36. SOU (93), pp. 77–78. 37. SOU (88), p. 236. 38. SOU (95), p. 283. 39. Ibid., p. 385. 40. SOU (87), p. 25. 41. Ibid., pp. 26–27. 42. PET 1, p. 12; PET 16, pp. 38–39, 48. 43. Wilhjelm 1999, pp. 305–15. 44. Ibid., ch. 4. 45. Ibid., p. 270. 46. Ibid. 47. Lov nr. 359 June 2, 1999. 48. PET 1, p. 23. 49. Flyghed 2005. 50. PET 16, p. 28. 51. Ibid., pp. 64, 102. 52. Ibid., pp. 30, 47. 53. PET 1, p. 117. 54. PET 16, p. 39. 55. Ibid., p. 49. 56. PET 3, p. 303. 57. PET 16, p. 51. 58. Ibid., p. 42. 59. Ibid., p. 43. 60. PET 1, p. 62. 61. PET 16, p. 53. 62. PET 8, p. 30. 63. Ibid., p. 15. 64. PET 4, p. 157. 65. SOU 2002: 87, p. 42. 66. Ibid., p. 43. 67. SOU (91), p. 196. 68. LI 1996, p. 577. 69. PET 2, p. 80. 70. LI 1996, p. 587. 71. Ibid.

Cover Up or Dig Up? Inquiries into Security Services in Welfare States

219

BIBLIOGRAPHY Cohen, Stanley. (1993). “Human Rights and Crimes of the State: The Culture of Denial.” Australian and New Zealand Journal of Criminology 26 (2): 97–115. Cohen, Stanley. (2001). States of Denial: Knowing about Atrocities and Suffering. Cornwall, UK: Polity Press. Flyghed, Janne. (1992). Rättsstat i kris: Spioneri och sabotage under andra världskriget [Constitutional state in crisis: Espionage and sabotage during the Second World War]. Stockholm: Federativs. Flyghed, Janne. (1997). Säkerhetspolisen och det demokratiska samhället [The Security Police and the Democratic Society]. Retfærd, Nordisk Juridisk Tidskrift 20 (5): s.13–26. Flyghed, Janne. (2002). Außenpolitik und Recht: Spionage und Sabotage in Schweden während des zweiten Weltkrieges [Foreign Policy and Law: Espionage and Sabotage in Sweden During the Second World War]. Zeitung für Neuere Rechtsgeschichte 24 (3/4): 312–26. Flyghed, Janne. (2003). Normalising the Exceptional—The Case of Political Violence. Policing and Society 13 (1): 23–41. Flyghed, Janne. (2005). Crime-Control in the Post-Wall Era: The Menace of Security. Journal of Scandinavian Studies in Criminology and Crime Prevention 6:165–82. Töllborg, Dennis. (1997). The Leander Case in Reflection When We Know the True Story. In National Security and the Rule of Law, ed. Dennis Töllborg, pp. 179–97. Göteborg: Centrum för Europaforskning, Göteborgs Universitet. Wilhjelm, Preben. (1999). Demokratiets vogtere: 50 års bestraebelser på kontrol med efterretningstjenesten [The Guardian of Democracy: 50 Years of Efforts to Control the Security Service]. Copenhagen, Centrum.

Official Documents Norway Dokument nr. 15. March 1996. Rapport til Stortinget fra kommisjonen som ble nedsatt av Stortinget for å granske påstander om ulovlig overvåkning av norske borgere [Document no. 15. Report to the Norwegian Parliament from the Commission Appointed by Parliament to Examine Allegations of Unlawful Monitoring of Norwegian Citizens] (the Lund Report). (Cit. LI 1996).

Sweden Säkerhetstjänstkommissionen [the Commission of Inquiry into the Security Service] (Cit. SOU 2002): 87. Rikets säkerhet och den personliga integriteten. Betänkande av säkerhetstjänstkommissionen [National Security and Personal Integrity. Report from the Commission of Inquiry into the Security Service]. SOU 2002: 88. Politisk övervakning och personalkontroll 1945–1969. Forskarrapport till säkerhetstjänstkommissionen [Political Monitoring and Background Checks 1945–1969. Research Report to the Commission of Inquiry into the Security Service]. SOU 2002: 89. Politisk övervakning och personalkontroll 1969–2002. Forskarrapport till säkerhetstjänstkommissionen [Political Monitoring and Background Checks 1969–2002. Research report to the Commission of Inquiry into the Security Service].

220

Commissions of Inquiry and National Security

SOU 2002: 90. Den farliga fredsrörelsen. Forskarrapport till säkerhetstjänstkommissionen [The Menacing Peace Movement. Research Report to the Commission of Inquiry into the Security Service]. SOU 2002: 91. Hotet från vänster. Forskarrapport till säkerhetstjänstkommissionen [The Threat from the Left. Research Report to the Commission of Inquiry into the Security Service]. SOU 2002: 92. Det grå brödraskapet—en berättelse om IB. Forskarrapport till säkerhetstjänstkommissionen [The Grey Brotherhood—A Story of IB. Research Report to the Commission of Inquiry into the Security Service]. SOU 2002: 93. Övervakningen av SKP-komplexet. Forskarrapport till säkerhetstjänstkommissionen [The Monitoring of the SKP-Complex. Research Report to the Commission of Inquiry into the Security Service]. SOU 2002: 94. Övervakningen av nazister och högerextremister. Forskarrapporter till säkerhetstjänstkommissionen [The Monitoring of Nazis and Right Wing Extremists. Research Reports to the Commission of Inquiry into the Security Service]. SOU 2002: 95. Forskarrapporter till Säkerhetstjänstkommissionen [Research Report to the Commission of Inquiry into the Security Service].

Denmark Politiets efterretningsvirksomhed på det politiske område 1945–1989. (Cit. PET + vol. no.) Bind 1 indledning. PET-kommissionens nedsættelse og kommissorium grundlaget for kommissionens beretning hovedpunkter i stiftelsen af, reglerne for og kontrollen med PET. Bind 2 PET’s Grundlæggelse og registreringer på det politiske område 1945–1968. Bind 3 regeringserklæringen og PET’s registreringer på det politiske område 1968–1989. Bind 4 PET’s virkemidler. internationalt samarbejde, kildeføring, aflytning mv. Bind 5 stay-behind og firmaet efterretningsvæsen og private antikommunistiske organisationer i danmark 1945–1989. Bind 6 PET’s overvågning af danmarks kommunistiske parti 1945–1989. pet, de danske kommunister og østlig efterretningsaktivitet. Bind 7 PET’s overvågning af politiske partier 1945–1989. pet, folketingets partier og østlig efterretningsaktivitet. Bind 8 PET’s overvågning af arbejdsmarkedet 1945–1989. fra samarbejde til overvågning aic, fagbevægelsen og faglige konflikter under den kolde krig. Bind 9 PET’s overvågning af den antiimperialistiske. Venstrefløj 1945–1989. Trotskister, maoister, appel-gruppen, fælles kurs klubben, skolesamvirket tvind, den røde højskole samt solidaritetsbevægelser. Bind 10 PET’s overvågning af protestbevægelser 1945–1989. Fra atomkampagnen til bz-brigaden. Bind 11 PET’s overvågning af den yderste højrefløj 1945–1989. Bind 12 Operation Zeus. Bind 13 KGB’s kontakt-og agentnet i danmark. Sagerne i PET’s arkiv vedrørende arne herløv petersen og jørgen dragsdahl. Bind 14 PET’s virksomhed i forhold til grønland og færøerne. Bind 15 Mindretalsudtalelse og juridiske notater. Bind 16 Sammenfatning af kommissionens arbejde og resultater.

CHAPTER 12

Commissions of Inquiry in South Africa’s Intelligence History 1960–2005 Kevin A. O’Brien

South Africa’s approach to intelligence today evolved out of the intelligence dispensation,1 which existed under the apartheid regime; as such, it has both unique characteristics for a democratic system and the failings and foibles of a transitional state following liberation. While that transitional period can now be said to be over, many of the problems of the transition remain. In this sense, while the institutions and mandates that underpin the intelligence function appear to be strong on the surface, upon further examination these can be found to be weak and problematic at best, despite significant moves—in the form of new legislation and the establishment of new oversight and accountability-related bodies—in the early 21st century to make up for such serious shortfalls. During the period from 1960 (the effective beginnings of both South Africa’s postcolonial intelligence history and the violent struggle against apartheid) to 1990 (the year in which the transition to a post-apartheid South Africa began)—and under the successive leadership of prime ministers Hendrik Verwoerd and B. J. ( John) Vorster and presidents P. W. Botha and F. W. de Klerk—South Africa was a security state. While nominal political authority and power rested with the elected ministers who composed the Cabinet, this was not the ultimate reality of the situation. By 1970, the true center of power resided in the central security structures of the government, led by the State Security Council (SSC); while the Cabinet oversaw and acquiesced in all major decisions affecting the country, the SSC—composed of government bureaucrats (or “securocrats”) and security force officials—was the super-Cabinet. Through such mechanisms, all recommendations and decisions that affected the governing of the country

222

Commissions of Inquiry and National Security

were made—ultimately, the SSC and its associated bodies (the national, regional, and local Joint Management Centres run by national intelligence and security force officials) ran the policies of “Total National Strategy” and “Total Counterrevolutionary Strategy” that ran South Africa.2 In order to implement such strategies successfully—both as judged by the state’s ability to counter the liberation movements’ attempts to overthrow the apartheid state and in terms of whether the state intelligence structures and their leaders were able to provide clear, unpoliticized intelligence to the political leadership—the clear support of the intelligence community as a whole had to be guaranteed in South Africa. From the establishment of the SSC—and its initial operational arm, the Bureau for State Security (BOSS)—the strong central role of the South African intelligence community in both the policy-making process of the state security apparatus and the decision making of the Cabinet (partly through its growing subservience to the state security structures) had been clear. During this time, the apartheid government continuously reformatted the intelligence dispensation of a country engaged in a counterrevolutionary strategy against a number of national liberation movements, based both domestically and externally. Within this constant process of reformation, a significant role was played by government commissions of inquiry— such as the Potgieter Commission (1969–72), which effectively established the security and intelligence dispensation of the apartheid state, including BOSS, and the Public Service Commission, which terminated BOSS in 1978 and created the National Intelligence Service (NIS) in 1979—that sought, not always successfully, to assess the nature and extent of the insurgency or, later, revolutionary forces arrayed against the apartheid state and develop the necessary intelligence capabilities to support that counterrevolutionary strategy. Given this history, when change was to come in the late 1980s/early 1990s, the intelligence community had to support the changes in order for them to be implemented. Following the collapse of the government’s counterrevolutionary strategy in 1990, the Pretoria government—in cooperation with the now-legal African National Congress (ANC) and other liberation movements—moved, through the 1990 Harms and 1994 Goldstone commissions, to investigate claims that its security forces had engaged in illegal covert activities. At the same time, the government began to develop an intelligence dispensation for a post-apartheid political and security environment; this process was led by a new commission centered on the body governing the transition from apartheid to democracy—the Transitional Executive Committee (TEC) and its Sub-Council on Intelligence (1992–94), which established the new intelligence dispensation post-apartheid—the effects of which continue to be felt to this day. In the aftermath of the transition in 1994 and under a new government, the new South African Government of National Unity (GNU) upheld a promise made during the transition to introduce a truth and reconciliation com-

Commissions of Inquiry in South Africa’s Intelligence History

223

mission (TRC) to investigate human rights violations and crimes against humanity committed by both the apartheid government and liberation movements during the period from 1960 to 1994; representing a different type of commission of inquiry, the TRC nevertheless played a significant role in determining both the culture and the direction of the post-apartheid security and intelligence dispensation at a time of significant upheaval within its ranks. Finally, in 1996, the GNU struck the Pikoli Review Commission to reconsider much of the intelligence dispensation created by the TEC in light of its first years of implementation—a process of tinkering that continues to this day. This chapter will examine the role played by such commissions of inquiry within South Africa’s intelligence history, with a specific focus on these seven—as well as reference to others. It will do so within the wider context of the history of South Africa’s intelligence dispensation across this period, examining both the historical narrative of its development—as understanding South Africa’s intelligence dispensation today requires an appreciation of where it has come from—as well as significant issues surrounding the policies and strategies that governed that dispensation. It will examine the transition from the apartheid state to the new democratic one—and the massive impact this had on South Africa’s intelligence and security dispensation. It will conclude with an appreciation of the challenges still being encountered by South Africa’s leaders in securing a truly democratic, transparent intelligence community today. THE EARLY DEVELOPMENT OF SOUTH AFRICAN INTELLIGENCE AND THE POTGIETER COMMISSION During the early days of apartheid—following the 1948 election victory of the Afrikaner National Party and through its evolution when South Africa declared itself a republic in 1961—intelligence was a limited function, in the sense that while its whole authority and responsibility rested with one individual—Brigadier “Lang” Hendrik Van den Bergh, initially head of the Security Branch and later of BOSS—its capabilities remained fledgling at best. This was largely due to the legacy of South Africa’s growth over the first half of the 20th century. From the establishment of the Union of South Africa in 1910 through to its establishment as a Republic and departure from the Commonwealth in 1961, South Africa did not possess an independent intelligence service, rather relying almost entirely on British Intelligence. In 1957, with the growth of South Africa’s continental interests and the reorganization of the Union Defence Force into the South African Defence Force (SADF), the government established a subsection for intelligence within the SADF with responsibilities for collection, interpretation, and dissemination of intelligence of both military and strategic value; this led to the establishment of the Directorate of Military

224

Commissions of Inquiry and National Security

Intelligence (DMI) in July 1962—with functions of military intelligence, military security, national strategic intelligence, and counterintelligence— following the loss of British intelligence support to South Africa in 1961.3 The only other intelligence actor in South Africa to this point was the South Africa Police’s (SAP) Special Branch (later Security Branch)—developed and run on the basis of a colonial policing organization. With the establishment of a military intelligence function in the SADF, the traditional hegemony of the Special Branch over intelligence in South Africa was lost; they did not, however, give way easily. Instead, increased rivalry and poorly delineated mandates led to infighting within the intelligence community, including incidents of spying on each other (an aspect that would continue into the post-apartheid era). Important and relevant information was withheld by one side from the other; agents of either side were exposed; and political back-stabbing within the government arena grew. This all at a time when violent and militant opposition to the apartheid government was growing, in the form of both domestic opposition—centered on the ANC and the South African Communist Party (SACP) and their joint armed-wing Umkhonto we Sizwe (“Spear of the Nation”); the breakaway Pan-Africanist Congress and its Azanian People’s Liberation Army (APLA); and the African Resistance Movement (ARM), a group of radicalleft whites whose bombing campaign between 1962 and 1964 mobilized the security establishment against such future action4—and internationally, as global opposition to South Africa grew in the aftermath of the 1960 Sharpeville Massacre and the 1964 Rivonia Trial of ANC leaders. Throughout this time, South Africa continued to rely on a number of existing intelligence-sharing relationships—including with the United States, Switzerland, Portugal, France, Rhodesia, West Germany, and (later) Israel, as well as remnants of its relationship with the United Kingdom.5 If the Republic was to develop the capability to defend itself independently, which in turn required a strong threat-assessment capability built on strategic intelligence analysis, such problems would have to be terminated. In 1963, a State Security Committee was formed as a central intelligence coordinating structure. It failed, however, to end the infighting between the Directorate of Military Intelligence (DMI) and Special Branch, partly due to ineffective administration and partly due to the fact that it merely served to represent the security forces’ interests within the Cabinet, rather than coordinating them—but mostly due to the dominance of the Security Branch, under Van den Bergh, in all security matters. In response, in 1966, the State Security Advisory Board (SSAB) was formed with the aim of introducing new measures to ensure greater coordination of intelligence activities, thus—it was hoped—ending the rivalries.6 With the same problems as its predecessor, the SSAB also failed to achieve this, largely because Vorster did not want to end the dominance of the Security Branch.7 To compensate for the perception that the Republic’s intelligence needs were not being met by the fledgling DMI, Verwoerd ordered Van den Bergh

Commissions of Inquiry in South Africa’s Intelligence History

225

to establish a separate intelligence agency outside of the Security Branch’s day-to-day interests that would be responsible for a national intelligence function.8 Initially, this was formed around Republican Intelligence (RI) in 1962 and led by Van den Bergh; as a direct offshoot of the Security Branch, this unit achieved little as it was hampered by the growth of DMI and failing relations with Britain, as well as its almost-entirely covert existence (alongside both the more overt and robust Security Branch and the remnants of the old SAP Special Branch). A new agency was required to fulfill the needs of the growing security establishment for national security intelligence on internal and external threats. In mid-1968, the Cabinet agreed to the establishment of a centralized intelligence service. This was BOSS—the Bureau for State Security— constituted subsequently under the 1969 Public Service Amendment Act and formed officially on May 13, 1969, with the mandate to “investigate all matters affecting the security of the state, to correlate and evaluate the information collected and, where necessary, to inform and advise the government . . . [and] to perform such other functions and responsibilities as may be determined from time to time.”9 At the same time, on October 1, 1968, Van den Bergh was appointed as Vorster’s “security advisor.” Both moves were a prelude to the establishment of the new secret service directly under the prime minister.10 While the Public Service Amendment Act laid out the establishment of BOSS, it did not formalize in statute its functions and brief. There were also ongoing clashes between the various security chiefs over the preeminence of each agency (Security Branch, DMI, and BOSS). To compensate for this, Vorster appointed the 1970 Potgieter Commission (the Commission to Inquire into Certain Intelligence Aspects of State Security) to determine the current and anticipated functions of the state’s security apparatus, deconflict and clarify those functions, and produce guidelines to support each mission. The commission would “set the scene for the institutionalisation of the South African security community during the 1970s and 1980s.”11 Viewed as a “foregone conclusion” by the then deputy chief of military intelligence—General Hein du Toit—it was seen to be heavily favored toward Van den Bergh and the Security Branch, a view that its outcome supported.12 The commission, chaired by South African Justice H. J. Potgieter, took as its starting point the significant body of strategic thought growing within the apartheid security apparatus—and most particularly within DMI— concerning counterinsurgency tenets and practices; as such, its vision was restricted to appreciating the development of a national security intelligence function within such tenets, heavily predicated on what Seegers has referred to as the “follow the ANC” counterinsurgency imperative to which it stuck.13 It noted that the continuous confusing of functions between DMI and the Security Branch was presenting a danger to the security of the state and granted full responsibility for countering the liberation movements’

226

Commissions of Inquiry and National Security

“armed struggle”—or “total onslaught,” a phrase used for the first time in the 1971 report of the Potgieter Commission—to the Security Branch, both within and externally to South Africa, a result that riled DMI to no end.14 The concept of South Africa’s “national security” was also first introduced in the Potgieter Report, which, noting that “enemies were seeking to overthrow the status quo in South Africa,” went on to state that enemies were active in many spheres . . . trying to attack in all fields . . . [including] (i) military; (ii) political; (iii) economic; (iv) social; (v) educational; (vi) psychological; (vii) subversive; (viii) terrorism; (ix) sabotage; and (x) espionage. . . . An onslaught may be made on the security of the State in each of these spheres.15

Overall, the national security strategy of South Africa was built on two premises: first, it was “directly influenced by the ANC’s strategy of revolutionary warfare”; second, it was “expected of the RSA security forces to maintain law and order and create a stable environment in which the RSA Government could bring about evolutionary political change in the country.”16 Therefore, in the view of the apartheid securocrats, their strategy flowed from the decision by the ANC to conduct a revolutionary war against South Africa; the internal environment was but an offshoot of this first problem. As a result of its report, the 1972 Security Intelligence and State Security Council Act laid out both the mission of BOSS (as a national security agency) and the establishment of the SSC—“under” the Cabinet—as the operational center of the government’s security strategy. Under the Security Intelligence and State Security Council Act, BOSS would serve as the central evaluation point for all departmental intelligence gathered by all departments in the South African government. The establishment of BOSS was not, however, without its problems: according to the Potgieter Report, BOSS was to have no executive powers: The Bureau merely intends to collect and handle intelligence . . . should any form of operational action be required as a result of the intelligence, the Bureau neither desired nor needs any powers to take such action . . . operational action following upon intelligence, such as arrest, should be left to the organs of state whose statutory function this is.17

Therefore, BOSS was to be solely an organization for the centralized coordination, assessment, and dissemination of intelligence; this was not to be the case, however: BOSS would become not only an operational unit—alongside the SAP and SADF—but would develop into (in many respects) a private intelligence and operations organization for the prime minister, through his protégé Van den Bergh. Charged with the “formulation and implementation of national policy and strategy in relation to the security of the Republic,”18 the SSC was

Commissions of Inquiry in South Africa’s Intelligence History

227

the hub of planning for the “Total National Strategy”—later the “Total Counterrevolutionary Strategy”—and the National Security Management System (NSMS), which came to govern every aspect of South African society under a security paradigm, underpinning and supporting this total strategy across South Africa and South-West Africa.19 While the SSC was but one of four Cabinet committees, it was by far the most powerful: as an extremely wide range of topics could be construed as having an impact on the security of the state, the SSC included consideration of nearly every facet—military, economic, cultural, social, political, and so forth—of the Republic’s life.20 As the ANC/SACP gathered strength in exile and formulated a strategy for overthrowing the apartheid state—while, at the same time, the SouthWest African People’s Organisation (SWAPO) launched a guerrilla war against South Africa in South-West Africa (Namibia) and the insurgency against white-minority rule in Rhodesia heated up—South Africa’s governance structures become pinned to national security considerations. While the SSC and BOSS became the hubs around which, respectively, security policy and operational security considerations played out, other agencies continued to press the dominance of their domains. As BOSS became the dominant security agency domestically—as well as being responsible for overseas intelligence collection and the central analytic and assessments processes—Defence Minister Botha promoted DMI’s role as the leading strategic thinking and formulation entity in the government. This dominance of both the strategic thinking behind the state’s counterinsurgency (later counterrevolutionary warfare) strategy and, subsequently, the operational counterinsurgency (COIN) environment in South-West Africa after 1973 led to the rise of an intelligence and special operations infrastructure in the SADF that grew into one of the most complex operational intelligence and clandestine/covert action capabilities ever seen. Replicating a number of other countries’ counterinsurgency strategies, the South African government devised its “Total National Strategy” to fight the growing ANC/SACP insurgency, and operationalized the strategy through a growing number of covert “specially tasked” units developed to fight the insurgency. One of the activities of BOSS—and later other covert units in the South African security forces—was the surveillance and infiltration of anti-apartheid movements abroad, as well as of individuals engaged in activities against South Africa. Sometimes this was simply to keep tabs on the activities of these individuals and movements,21 and sometimes it was in order to target them for elimination: assassination—as with all covert action—offered the South African leadership an alternative, and quiet, option for silencing or removing its opponents when more overt acts were seen to be insufficient.22 In the 1960s and 1970s, BOSS deployed specialist units for assassination and other covert actions both internationally and domestically; one of these units was known as the Z-Squad.23 Other security force units dedicated to eliminating the opponents of apartheid,

228

Commissions of Inquiry and National Security

using every means available, were developed. Consequently, to support their missions over the 1970s and into the 1980s, a structured intelligenceled selection and targeting system was devised—around the State Security Council, its subcommittees (and particularly one known simply as K Committee), and securocrat operators—to facilitate operations. THE 1978 PUBLIC SERVICE COMMISSION, THE COETSEE COMMISSION, AND THE END OF BOSS BOSS, however, would not survive the 1970s. In 1978, the “Information Scandal” rocked South African politics24 and resulted in both the end to Vorster’s premiership and the rise of Defence Minister P. W. Botha to the leadership in September 1978—a period also known as the “Battle for the Intelligence Brief.”25 Within this, two trends were clearly discernible: the effort to centralize and coordinate national security intelligence and the growing dominance of the military (DMI) in the intelligence brief. This battle was waged partly between the various competing influences to succeed Vorster as prime minister (and, thus, to determine which agency would dominate politically the security establishment), but also by BOSS to ensure its own survival. While excuses relating to poor coordination of intelligence, corruption, mismanagement, and poorly defined briefs were used to justify this repositioning, the ultimate reason for this covert contest of succession was to determine which would become the lead agency under current prime minister Botha. There could be little doubt to the answer. DMI had been Botha’s pet thinking shop on issues of national security throughout his tenure as defense minister; it was only natural that it would become the central body. Wisely, however—having watched as the intelligence agencies were used for personal political gain by their masters throughout the 1970s and, as such, developed an intense institutional rivalry that did little to help the fight against the “Total Onslaught”—Botha decided to initially divide responsibilities for the intelligence brief between the agencies (DMI, BOSS, Security Branch, and Foreign Affairs), which contributed to the overall intelligence picture. DMI would become the lead agency in all respects, but the others would be responsible for clearly defined mandates in combating the “Total Onslaught.” In 1978, the Public Service Commission was committed to “rationalizing” and “cleaning” the government national security apparatus; part of this required significant changes in the overall national security dispensation, as its 1980 report to Parliament (White Paper on the Rationalisation of the Public Service and Related Institutions) noted. In order to eliminate BOSS’s potential interference with the new security priorities and to ensure that the “Total National (later Counterrevolutionary) Strategy” and the National Security Management System that underpinned it would be implemented to its fullest, Botha bluntly quelled its influence by first bringing about the

Commissions of Inquiry in South Africa’s Intelligence History

229

resignation in 1978 of its head, Van dern Bergh, and, later, by the termination of BOSS as an agency in August 1978. Two months later, in October 1978, Botha appointed one of his protégés, Kobie Coetsee, as the deputy minister of defense and national security; at the same time, he appointed Coetsee to lead a commission of inquiry to examine options to rationalize the intelligence functions and determine a future course for the strategic intelligence brief, the most important of all.26 Coetsee determined (many would argue this was already determined before the commission began its investigations) that the strategic intelligence brief should be given to DMI as a precursor to the development of a new security architecture around it and the SSC. BOSS’s functions in this regard, as they had been responsible for this brief under Vorster, were transferred to DMI, and the majority of its senior managers took early retirement. The only solution was to do away with BOSS entirely and build a new agency based on academic principles of analysis. In its place, therefore, Botha formed the Department of National Security (DONS) in August 1978, which, by 1980, became the National Intelligence Service (NIS). The mandate of the NIS—now headed by former academic Dr. Niel Barnard— was limited to research and analysis of strategic issues; its operational capabilities (such as the Z-Squads) were by-and-large terminated.27 However, the NIS was a central player in the National Management Centre and regional Joint Management Centres established under the NSMS to oversee these policies against the liberation movements. Overall, this saw a realignment of the briefs of the individual agencies: the NIS was limited to assessment and analysis, while acting (most importantly, though) as the staff for the SSC structures (previously the battleground for rival securocrats from BOSS and DMI); DMI gained responsibility over the strategic intelligence brief as well as enhancing its foreign intelligence collection capability and, later, introducing more vigorous domestic counterintelligence functions through covert units; and, finally, the Security Branch—which generally languished throughout the 1970’s period of BOSS domination—similarly enhanced its foreign intelligence collection operations but generally had little to do with strategic intelligence assessment. Supported by a growing overt and covert Special Forces and Special Tasks capability in the SADF,28 DMI dominated everything to do with South Africa’s “Total Strategy”—it advised the prime minister (later president) on all aspects of national policy and strategy, ran the Total National Strategy and the National Security Management System, and even oversaw intelligence operations based outside of South Africa across the Front-Line States (those countries that surrounded South Africa). Over the course of the next decade, this covert security apparatus would control—under Botha’s authority—South Africa’s politics, society, and counterrevolutionary strategy. Through a mixture of overt warfare in Angola and South-West Africa and covert operations both across the Front-Line States

230

Commissions of Inquiry and National Security

and inside South Africa itself, the intelligence services spent the 1980s developing ever more intricate ways to confront and eliminate their opponents, while continuing to battle over the intelligence brief bureaucratically. In the late 1970s, the SAP Security Branch reemerged from its counterinsurgency purgatory—imposed in 1973 after a number of shortcomings in its COIN operations in South-West Africa, along with the loss of its security policing and intelligence role to BOSS in the 1970s—with its establishment of two dedicated, intelligence-led COIN units: the counterinsurgency unit Koevoet (“Crowbar,” formally the South African Police Counterinsurgency Unit) formed in South-West Africa in January 1979 to “act as the eyes and ears of, and to collect intelligence for, the military” in its operations against SWAPO;29 and the Security Branch counterinsurgency unit C1—formed between 1979 and 1983 and composed of both Security Branch officers and “turned” ANC/SWAPO/Pan-Africanist Congress (PAC) guerrillas known as askaris (Swahili for “fighters”)—which would operate from its base at the Vlakplaas police-farm against these guerrillas/former comrades in a practice known as “pseudo-operations” (similar units were established at other locations).30 Similarly, in 1979, DMI reorganized the BOSS Z-Squads into Delta-40, tasked specifically with “monitoring certain external opponents of the regime with a view to their possible extinction”—in other words, an assassination unit.31 By 1986, this unit had become the Civil Cooperation Bureau (CCB).32 Other structures took shape to coordinate the activities of these units. Central to these was a key and extremely secretive committee, based in the Coordinating Intelligence Committee (KIK, or K Committee) under the SSC, known as the Teen Rewolusionêre Inligting Taakspan (Counterrevolutionary Intelligence Task Team, or Trewits), in whose monthly meetings “intelligence would be exchanged and targets identified” by Security Branch, DMI, Special Forces, and NIS representatives.33 Established in 1986, Trewits—alongside the Joint Security Staff (Geveilstaf) of the SSC— coordinated intelligence across the SSC and security force structures for the targeting of opponents; it is believed that the NIS was instrumental in providing targeting databases for each country concerned.34 All of these changes were seen as a means of meeting the need for turning the counterinsurgency activities of the state security apparatus into a counterrevolutionary program, a process that accelerated in 1985–86 as the “gloves came off” and Botha demanded the extension of all such activities, authorizing the intelligence services to take all necessary steps to crush the insurgency/liberation movement once and for all. As a result, the aforementioned covert capabilities were complemented by new counterrevolutionary (or counter-guerrilla) forces co-opted from among the Zulu-led Inkatha Movement and other domestic movements either opposed to or not controlled by the ANC/SACP. What was telling about this, however, was that despite the regime’s incorrect belief that the ANC and MK (its armed wing) were about to reach Phase Three—or People’s War—in the

Commissions of Inquiry in South Africa’s Intelligence History

231

revolutionary onslaught following the 1976 Soweto Uprising and further uprisings in the Vaal Triangle in the early 1980s, in reality the ANC had not even achieved the first organizational phase of an insurgency, a fact admitted to by its leadership in 1986.35 This combination of the most destructive covert attack yet—involving extensive assassinations of leading ANC/SACP figures and virtual nonstop raids and similar attacks against ANC/SACP offices and individuals in the Front-Line States—combined with the development of third force capabilities (covert security force units) in the Zulu and other communities (such as in the Eastern Cape), brought the ANC/SACP onslaught to a virtual halt. However, Botha’s—and apartheid South Africa’s—time was coming rapidly to a close, as South Africa’s international isolation became virtually total, with even the Reaganites in the United States forced to terminate their clandestine relationship with South Africa. Domestically, the National Party’s constituency—growing despondent with this isolation, facing too many casualties in South Africa’s border wars across Southern Africa, and looking for a way to develop a means of peacefully ending the conflict—began to push back against the country’s leadership and the securocrats. Reformists began to emerge in both the National Party and the securocracy—indeed, in 1986 and unbeknownst to most (including Botha), the National Intelligence Service opened secret negotiations with the ANC in exile.36 These accelerated through the late 1980s, growing in parallel to the secret negotiations launched between Botha’s government and the ANC’s jailed leadership in South Africa—led by Nelson Mandela—until in late 1989, with Botha’s failing health forcing him from the presidency, F. W. de Klerk became head of state and full negotiations with the liberation movements began. SEARCHING FOR THE NEW DAWN: THE END OF APARTHEID , THE HARMS AND GOLDSTONE COMMISSIONS, AND THE TRANSITIONAL EXECUTIVE COUNCIL With the recognition that neither side could win the war—and with Namibia’s independence ushered in the year before—the new government of F. W. de Klerk began to negotiate a settlement with the ANC. The end of apartheid was—in many senses—brought about by the intelligence services of both sides. On August 7, 1990, the ANC suspended its armed struggle, following its unbanning (and that of the SACP and the PAC) by de Klerk on February 2, 1990, and the release of Nelson Mandela and all other political prisoners at the same time.37 The NIS came to a position of prominence under de Klerk—finally eclipsing DMI and pushing the reactionary securocracy into the background. At the same time, and to investigate incidents of increasingly violent upheaval across South Africa blamed on the third force, in 1990, de Klerk ordered a commission of inquiry to

232

Commissions of Inquiry and National Security

investigate such activities, in particular the assassinations of David Webster, Anton Lubowski, and Griffiths Mxenge. Chaired by Justice Louis Harms and designated the Commission of Inquiry into Certain Alleged Murders, it based much of its initial evidence on the stories related by former Vlakplaas police commander Dirk Coetzee, who had defected to the ANC in 1989; however, it subsequently became clear that much of the evidence given to the Harms Commission—the first of many such commissions of inquiry into the shards of apartheid’s covert security apparatus and its continuing involvement in covert activities within South Africa and Namibia—was false or misleading, including evidence given by members of Security Branch’s covert units under oath. Although the report of the Harms Commission suggested enough evidence of problems within the Security Branch or DMI, due to the tainted nature of the evidence, it did not present de Klerk with sufficient evidence that hit-squad and assassination activities were being carried out from within the government.38 Such sufficient evidence was not to come until a serving member of the Vlakplaas C1 unit anonymously testified to the Goldstone Commission (the Commission of Inquiry into Acts of Public Violence and Intimidation) in 1994 that hit-squad activities, the training and arming of Inkatha hit squads, illegal killings, fraud, forgery, bombings, and other acts of public violence were being planned and carried out at Vlakplaas and elsewhere. In the end, however, the commission was unable to prove that these activities were tied to, or had been authorized by, the political leadership in Pretoria; such evidence was not to come until the trial of Colonel Eugene de Kock finished in October 1996.39 Regardless of this outcome, de Klerk reduced DMI’s power and position severely, while the Security Branch underwent a massive transformation into the Crime Combating and Investigation Service, focused purely on crime investigations. This, then, was truly the end of the apartheid security forces and their total dominance over South African politics and society—and the civilian spies guided in the new era. As political reform became the primary interest of the state from 1990, the Department of Constitutional Planning led the way, supported by the NIS in its alliance with the ANC’s DIS. In the negotiations toward a political settlement between Pretoria and the liberation groups, many NIS officials were transferred to the Department of Constitutional Affairs in order to “provide intelligence/policy support for [the] government negotiating team. Their intelligence experience and linkages allowed them to be utilised as key planning assets.”40 Most of the new policies and principles settled upon emerged out of informal discussions held between the NIS and the DIS in July 1993, which built on earlier meetings between the two in March of that year. However, these were almost completely derailed by two key events in this period: first, the discovery of MK’s continued operational planning—under Plan Vula—to overthrow the Republic;41 and, second, the assassination of charismatic SACP leader Chris Hani by white right-wingers in 1993. The fact that neither of these

Commissions of Inquiry in South Africa’s Intelligence History

233

events—alongside a number of other clashes and atrocities in this period— precipitated a civil war in South Africa was due to both the strength of leadership on both sides—Mandela and de Klerk—and to the bonds that had developed between each side’s spies in the ongoing negotiations. Ultimately, these negotiations resulted in the new political dispensation that came from the Conference on a Democratic South Africa (CODESA), the Transitional Executive Council, and—following the April 1994 elections— the ANC-dominated Government of National Unity. Most of the new policies and legislation emerged out of the NIS-DIS discussions in the TEC’s Sub-Council on Intelligence—it became the forum through which discussions on the future structure of the intelligence community were carried out prior to the establishment of the Government of National Unity. This was especially important because the future scope and focus of South Africa’s intelligence community were not covered in the Interim Constitution (unlike the military and police, which were) and, therefore, were not subject to the constitutional negotiations during the settlement process.42 This was largely due to the fact that the negotiators on intelligence were not prepared to have their particulars placed in the Interim Constitution when similar sections on the police and national defense forces were required. The Sub-Council on Intelligence agreed that as part of the continued approach to the philosophy of intelligence, new principles and practical requirements—including allegiance to the Constitution, subordination to the rule of law, a clearly defined legal mandate, budgetary control and external auditing, an integrated national intelligence capability, political neutrality and the separation of intelligence from policy making, a balance between secrecy and transparency, and the absence of law-enforcement powers—were included in the mandates of the services for purposes of control and accountability.43 These were in addition to the four principal mechanisms for oversight and control of the intelligence services built into the new structures: the appointment by the president of inspectors-general to oversee the services, the establishment of a parliamentary committee on intelligence (subsequently the Joint Standing Committee on Intelligence), the implementation of a code of conduct for the intelligence services, and a strict limit in definition of the briefs of each service. As is noted in the following, however, the initial prescriptions on paper did not hold up in implementation after 1994. At the same time, a Joint Coordinating Intelligence Committee ( JCIC) was established within the TEC and gave the TEC oversight of the intelligence services’ operations while day-to-day control would be left to the individual department heads, much as with the military and the police.44 The JCIC was authorized to oversee the coordination of the intelligence services, to investigate the activities of any service that appeared to contravene its mandate, and to provide intelligence information to the TEC and its other subcouncils. It would later give way to the National Intelligence Coordinating Committee (NICOC) in the post-apartheid GNU.

234

Commissions of Inquiry and National Security

SOUTH AFRICA’S POST-APARTHEID INTELLIGENCE DISPENSATION AND THE PIKOLI REVIEW COMMISSION Through all of these negotiations, it was hoped that eventually, as Mike Louw (then director-general of the NIS) stated, South Africa could have “an intelligence service at peace with itself.”45 In order to accomplish this, Louw went on to say, “the watchwords must be control, accountability and supervision. Too many people equate us with other secret organisations. We need to establish our own identity.”46 To that end, South Africa’s first post-apartheid intelligence dispensation ultimately reflected this negotiated settlement and its inherent compromises—a solution that could never solve all the problems found in both the old and new dispensations. The new intelligence dispensation that was established in 1994 was—first—crucial to the furthering of a peaceful settlement between the former apartheid government and the former liberation groups, while— second—it aimed to develop solutions for many of the problems cited in other intelligence and security services.47 Guided by a new White Paper on Intelligence released in October 1994, the new dispensation separated the foreign and domestic responsibilities of the NIS into two separate agencies—the South African Secret Service and the National Intelligence Agency, respectively—and integrated the former NIS personnel with ANC-DIS personnel, the Pan-Africanist Security Service, and others from the intelligence services of the previously independent homelands of the Transkei Intelligence Service, the Bophutatswana Internal Intelligence Service, and the Venda National Intelligence Service.48 The new dispensation also severely pruned the intelligence capabilities of both the new South Africa National Defence Force (SANDF) Intelligence Division and the new South Africa Police Service (SAPS) National Crime Investigation Service (NCIS). While many thought that the NIS should have been disbanded due to its links with the old order, many in the ANC argued for its retention due to a number of factors, the most important being the NIS contribution to the compromises that led to the settlement between the apartheid government and the ANC. As well, the NIS possessed assets and capabilities that the ANC did not want to lose, including sources, information on both the white right wing and extremists in political rivals such as Inkatha, technological capabilities, and greater professional training than those in the ANC. As well, while it was not stated openly, the NIS also possessed information of great interest to the ANC: information on the ANC itself, its leaders, and its cadres, which NIS had accrued through the placement of moles and other penetration exercises into the ANC and PAC ranks. By losing this information, the NIS could have inflicted considerable damage on the Government of National Unity.49

Commissions of Inquiry in South Africa’s Intelligence History

235

The Parliamentary Acts that supported these changes—the National Strategic Intelligence Act, the Intelligence Services Act, the Intelligence Services Control Act (originally introduced as the Committee of Members of Parliament on an Inspectors-General of Intelligence Act), the 1995 South African Police Services Act, the 1996 National Crime Prevention Strategy, and the 1995 White Paper on Defence: Defence in a Democracy—all demonstrated, on paper at least, a significant break with the past. Nevertheless, by 1996, it was clear that while the apartheid-era policies had obviously changed, in practice, many of the legacy structures and national security management processes from the apartheid era had been simply modified to fit the post-apartheid requirements of South Africa. This was most notable in, effectively, the continuation of an SSC-like capability in the newly formed Cabinet Committee on Security and Intelligence (CCSI), as well as in the NICOC structures established at both the national and provincial levels. During the transition, the JCIC of the TEC eventually gave way to the Heads of Combined Services (HOCS) committee, which became the basis for NICOC. The JCIC had been authorized to oversee the coordination of the intelligence services, to investigate the activities of any service that appeared to contravene its mandate, and to provide intelligence information to the TEC and its other subcouncils; NICOC took on this same role—reporting to the president through the CCSI and comprising the national intelligence coordinator, the director-general of each service (including the NCIS and Defence Intelligence), and, on an ad hoc basis, the inspectors-general, the deputy directors of each services, and parliamentary representatives.50 Rather than fully disband—and reject—the old SSC and NSMS structures (which had already undergone transformation under de Klerk),51 the ANC-led Government of National Unity decided to keep and reform the national coordinating structures—through a mutual agreement reached between the NIS and ANC during the TEC negotiations—to ensure the “constant flow of intelligence should not be disrupted” across the national and provincial structures, as well as in order to ensure “a balance between continuity and change.”52 A more cynical view would say that once the ANC came into control of much of the apartheid national security apparatus, it was loathe to give it up—as such, the ANC was accused of being stuck in a similar worldview mind-set to that of the securocrats at the time of the establishment of BOSS in the early 1970s. Criticized by many53 for falling far short of the “new dawn” vision outlined in the White Paper on Intelligence, one of the principal reasons for this was the failure to enshrine the mandates, areas of responsibilities, and code of conduct for the intelligence services written into the new Constitution (similar to sections on the National Defence Force and the Police Service). In the end, only their existence was constitutionally guaranteed54—leading to, among other very serious shortfalls, a dramatic weakening over the subsequent 15 years in

236

Commissions of Inquiry and National Security

the role played by parliamentary oversight of the new intelligence dispensation. Between 1994 and 1996, the new dispensation encountered many serious problems—both externally and internally.55 To determine what adjustments were required in the system, Deputy Minister for Intelligence Joseph Nhlanhla established the Pikoli Review Commission in 1996 to review progress and make recommendations for changes. The commission reviewed the intelligence services and wider dispensation for its organizational form and content; functions and allocation and utilization of resources; personnel, team building, and cooperation within the intelligence community; and capacity to fulfill functions. Its recommendations included the need for the new intelligence services to increase intelligence collection efforts against organized crime, while at the policy level further legislation was required covering private intelligence and the activities of former intelligence personnel.56 As a result, between 1998 and 2005, several amending acts were passed by Parliament with a variety of aims. The first, the Intelligence Services Control Amendment Act (Act 42 of 1999), was the most relevant to the issue of oversight, as it updated the Intelligence Services Control Act with regard to clarifying the composition of the JSCI and changing the number of inspectors-general to one. This act was followed in 2002 by a second Intelligence Services Control Amendment Act (Act 66 of 2002), which further solidified and tightened the roles of the JSCI and the inspector-general and created the minister of intelligence services; crucially, this new act also mandated that the head of each service submit an annual report to the minister and the inspector-general that outlined the “activities of that Service during that period” as well as reporting on “any unlawful intelligence activity or significant intelligence failure of that Service and any corrective action that has been taken or is intended to be taken in connection with such activity or failure.”57 Finally, it placed the new Electronic Communications Security (Pty) Ltd—established under the Electronic Communications Security (Pty) Ltd Act (Act 68 of 2002)—which supported the National Communications Centre and provided the government with a communications-security capability.58 Other new acts passed included the National Strategic Intelligence Amendment Act (Act 67 of 2002), which further amended the 1994 National Strategic Intelligence Act so as to exclude the minister as a member of NICOC; to redefine counterintelligence; to provide for security screening by the relevant members of the national intelligence structures; and to clarify the minister’s role in being responsible for advising the president and the national executive on national strategic intelligence and intelligence coordination. In addition, the General Intelligence Law Amendment Act (Act 66 of 2000) focused on labor relations and retirement and salary stipulations for employees and established an Intelligence Review Board mandated to “consider and approve any application by a former member to disclose information or material” relating to their former employ,

Commissions of Inquiry in South Africa’s Intelligence History

237

thus ensuring that a statutory body would be in place to consider how former employees used knowledge gained during their employment with the intelligence services.59 A new Intelligence Services Act (Act 65 of 2002) revisited and rewrote significant parts of the 1994 Intelligence Services Act—establishing a National Academy of Intelligence60 and an Intelligence Services Council on Conditions of Service.61 It also established clearly the powers of the minister of intelligence services62 and proposed “Offences” for all employees of the intelligence services.63 Finally, in 2003, an additional General Intelligence Laws Amendment Act (Act 52 of 2003) was tabled, which—among other things—regulated the interception and monitoring of communications (further to the Regulation of Interception of Communications and Provision of Communication-Related Information Act—Act 70 of 2002, which itself saw an update tabled in 2006), in particular the newly established Office for Interception Centres;64 established an appeals panel process responsible to the minister of intelligence services;65 and— most importantly—further supported the Intelligence Services Council, answerable to the minister and the president, “to promote measures and set standards to ensure the effective and efficient performance and implementation of policies on human resources within the Academy or the Intelligence Services, as the case may be, and to make recommendations to the Minister.”66 All in all, it is clear from the legislation tabled through the turn of the century that the parliamentarians were attempting to come to grips with not just some of the more serious problems that South African intelligence had faced during the 1990s but also with those aspects of the original acts—passed immediately at the end of apartheid and subject to the influences of the time—that had proved lacking over the previous decade. STILL SEARCHING—THE TRUTH AND RECONCILIATION COMMISSION As the new dispensation was being developed, a series of politically charged processes were underway that would—culturally, if not legally— affect the process of both building a cohesive intelligence community in the post-apartheid era “at peace with itself,” as Louw had noted previously, and test the commitment of the ANC-led Government of National Unity to transparency, accountability, and anticorruption in the public service. These processes included centrally several criminal prosecutions of former apartheid-era security force commanders and foot soldiers—such as former defense minister Magnus Malan, former Vlakplaas commander Eugene de Kock, former CCB hit man Ferdi Barnard, and former police commanders Jac Cronjé and Nick van Rensburg—and the establishment of the Truth and Reconciliation Commission. While the former trials will not be noted here,67 the framers of South Africa’s transition from apartheid to democracy—following the unbanning

238

Commissions of Inquiry and National Security

of the ANC, the SACP, and the PAC in February of 1990, which led into the multiparty negotiations known as CODESA—recognized a clear need to deal with the issue of past crimes and amnesty for such. The idea of establishing a TRC, based partly on similar models established in Chile and Argentina, was attractive, as it would allow all sides to effectively deal with the past while avoiding a Nuremberg-style witch-hunt. The ongoing issue of participation in any sort of truth process, as well as the issue of granting amnesty, was highly contentious, however: in 1990 and again in 1992, de Klerk had granted indemnity from prosecution to members of the South African security establishment, an issue that was raised by the ANC soon after assuming power in April 1994. To deal with this concern, such a truth commission would have to operate under the premise that full amnesty would be granted to all perpetrators who confessed completely to their crimes (the concept of full and complete disclosure) in return for which they would be granted amnesty, so long as they could demonstrate that the crime had a political origin. Established by the GNU on July 19, 1995, under the rubric of section 2(1) of the Promotion of National Unity and Reconciliation Act (Act 34 of 1995), the commission was mandated to function for 18 months from April 15, 1996, when it held its first sitting, with a possible extension by 6 months if required. Its primary focus was on the activities and crimes of the security apparatus of both the National Party government and the liberation movements ( gross human rights violations),68 limiting its period of interest to the time between March 1, 1960 (Sharpeville), and April 27, 1994 (the elections); previously mandated at December 5, 1993 (the formation of the TEC), this was changed in March 1997. Its scope was not limited solely to the security organizations of the conflicting sides but included, as well, an examination of the role of the media during apartheid; the activities of doctors, teachers, and other social service givers; and the actions of universities and nongovernmental organizations. There was much criticism of this move to expand the Truth Commission’s interests, as the activities of elements of civil society, such as the media and academics, did not fall within the defined mandate of the commission to investigate gross human rights violations as defined in the Truth Commission’s mandate. The objectives of the commission were defined so that they would “promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past” through a variety of means.69 These included establishing as complete a picture as possible of the causes, nature, and extent of the gross violations of human rights committed during the period from March 1, 1960, to the cutoff date by conducting investigations and holding hearings. This would include the antecedents, circumstances, factors, and context of such violations, as well as the perspectives of the victims and the motives and perspectives of the persons responsible for committing such violations. In addition, facilitat-

Commissions of Inquiry in South Africa’s Intelligence History

239

ing the granting of amnesty to persons who made full disclosure of all the relevant facts relating to acts associated with a political objective would also be a prime aim in the promotion of national reconciliation. Finally, establishing the fate or whereabouts of victims, restoring the human and civil dignity of such victims by granting them an opportunity to relate their own accounts of the violations that they suffered, and recommending reparation measures for them would be the third pillar in this process.70 In its activities, the commission was intended to facilitate, initiate, or coordinate inquiries into 1) gross human rights violations, including those that were part of a systematic pattern of abuse; 2) the nature, causes, and extent of gross violations of human rights; 3) the identity of all persons, authorities, institutions, and organizations involved in such violations; 4) the question whether such violations were the result of deliberate planning on the part of the state or a former state or any of their organs, or of any political organization, liberation movement, or other group or individual; and 5) accountability, political or otherwise, for any such violation. It was also to determine which articles had been destroyed by any person in order to conceal violations of human rights or acts associated with a political objective. Finally, it was to make recommendations to the minister with regard to the development of a limited witness protection program.71 The concrete outcome of this process would be a report—finally tabled, in seven volumes, in October 1998—providing as comprehensive an account as possible of the activities and findings of the commission, which would contain recommendations of measures to prevent the future violations of human rights.72 The TRC comprised a number of committees and individuals. Chaired by Nobel Peace Prize winner Archbishop Desmond Tutu, who was supported by Deputy Chairman Dr. Alex Boraine, the TRC included Committees on Human Rights, Amnesty, and Reparation and Rehabilitation. It also included an investigative branch, armed with extremely potent powers of intrusion and subpoena for the purposes of its investigations. Finally, the TRC acted in cooperation (at least, on paper) with the various provincial attorneys-general to cooperate on issues of mutual interest.73 In all of these senses, the TRC was a commission of inquiry of a different shade than the others assessed in this chapter—while its mandate was to investigate the past, rather than assess the workings of the present intelligence dispensation, its deliberations and outcomes would have an effect on the present and—it is starkly clear by 2010—the future. Ultimately, the TRC had a dramatic effect on both South Africa’s approach to societal reconciliation, and attempts to build a “post-racial” security establishment where the successful integration of the security forces (both apartheid-era and liberation movement) hung heavily on a number of very sensitive topics, including the admission of guilt for gross human rights violations by both sides, the end of debates surrounding the moles each side had

240

Commissions of Inquiry and National Security

placed within the opposing security apparatus, and the acceptance that recognizing such atrocities and violations by both the victims and the perpetrators would mean moving ahead in building the new country. In the end, its final reports recounted the story of the apartheid state’s covert and murderous war against its liberation movements, predicated on thousands of amnesty applications and hearings into gross human rights violations. The TRC would never achieve what was hoped of it—in large part because of, on the one hand, the extremely poor quality of the submissions by the apartheid-era political and security force leaders, which were criticized severely by the TRC, and, on the other hand, the ANC’s antagonistic attitude toward the TRC. In terms of the former, while more than 7,700 member of lower-level security force members—as well as some very high-profile ones such as de Kock—applied for amnesty for a wide-range of acts (along with thousands from the township anti-apartheid United Democratic Front movement and the Zulu-based Inkatha movement),74 almost no senior political or security force leaders applied for amnesty or testified to the TRC’s hearings, by and large refusing to accept full responsibility for the activities of their security forces during the apartheid era; instead, they blamed transgressions on the perpetrators and insisted that no orders were given, for example, to carry out assassinations of apartheid’s opponents.75 In terms of the latter, many ANC officials said publicly that they viewed the TRC as a forum for apartheid perpetrators to come forward; in their view, the ANC had been fighting a “just war of liberation” that justified any and all activities that had been carried out in this time period;76 as such, very few of its members pressed to apply for amnesty individually, while the ANC leadership claimed “collective responsibility” for its actions in exile.77 Many observers did not agree and criticized the ANC for taking such a self-righteous stance on an issue that could prove so divisive to peace in South Africa.78 At the same time, the ANC maintained that it had no need to participate in the process, as it had held its own internal commissions of inquiry (most recently, the 1990 Montsuenyane Commission) to deal with alleged human rights violations in its camps in Angola, Zambia, Tanzania, and Uganda. This initial refusal by the ANC was rejected and criticized severely by Archbishop Desmond Tutu, the chair of the TRC, and tainted severely the sense that the TRC was balanced between all sides in the anti-apartheid conflict. After much politicking, the ANC quietly agreed to send its members amnesty applications and requested that those who felt the need to do so should apply for amnesty.79 Generally, the TRC achieved a notable success: it brought South Africans, of all races and backgrounds generally, to accept that the past must be confronted in a manner in which the future could be built. However, in more direct terms—being able to state conclusively that all the graves had been uncovered, all the ghosts confronted, and all the actions known— success remained beyond its grasp, and probably always would be. The

Commissions of Inquiry in South Africa’s Intelligence History

241

downside of this process was also that, in its early days, it was heralded as the solution to the nation’s problems, but as time passed, participants and observers alike realized that this was not the case: many South Africans, faced with the world’s highest crime levels, began to ask why resources and attention were being spent on the past when the challenges of the present were so significant. Ultimately, the TRC achieved what it could—a degree of truth and a degree of reconciliation—while forcing to the surface a much greater understanding of past atrocities and policies; no process, it would seem, would ever provide a complete picture. CONCLUSION: THE LEGACY OF SOUTH AFRICA’S INTELLIGENCE HISTORY When considering its intelligence dispensation, South Africa represents a particular kind of case: that of a transitional state, moving from a number of “past countries” (as Allister Sparks put it)80 involving single-party dominance of the country’s politics—the National Party under apartheid and the ANC since 1994—to a point where multiparty democracy also involves a governance dispensation that is transparent, accountable, and free from corruption. While much of today’s ills in South Africa’s politics can be placed firmly on the seeming inability of the ANC to move from being a liberation movement—and all that implies—to a fully democratic and transparent political party, it is also a legacy of the violent past that has yet to be put to rest. This has also meant that the post-apartheid state has chosen or rejected certain options in its new intelligence dispensation due to their (real or imagined) association with that past, while retaining other aspects of the past in the new dispensation. In this sense, the evolution of South Africa’s intelligence dispensation has been neither linear nor constant—the case both before and since the 1994 transition. Within that period, the role of commissions of inquiry—in the three forms assessed here: those that examined the functions of security and intelligence to improve their effectiveness, those that explored alleged wrongdoing, and the TRC—surrounding this intelligence dispensation and its history in South Africa is stark. As explored throughout this chapter, the first two forms of commission were—first—virtually all subject to the dystopian visions inherent to the apartheid-era political dispensation, in which the various intelligence commissions fed further the Weltanschauung (worldview) of the Afrikaner-dominated securocracy that had effectively painted itself into a corner by the mid-1980s while—second—failing to root out, after 1990, the poison that existed in both the entrenched remnants of the apartheid securocracy and the now-liberated ANC security apparatus and its central role in ANC thinking, leading directly to the weak interpretation of accountability and transparency that has gripped the ANC’s governance since the collapse of the Government of National Unity in 1997. At the same time, the TRC attempted to address past human rights abuses

242

Commissions of Inquiry and National Security

by the intelligence and security forces of all sides and the manner in which these had an impact on the subsequent transition to democracy—with a constant eye on the impact that the TRC process itself was having on the contemporary and future security environment in the new South Africa. An almost universal characteristic of all such commissions, however, was that they failed to appreciate the relative nature of the security environment in which they existed and therefore failed to achieve a better—or, least, intended—outcome than they did. The clear exception to this was the Transitional Executive Council and its investigations into South Africa’s post-apartheid intelligence and security requirements, which—despite the subsequent problems encountered in that new dispensation, was the only commission assessed here to have fully appreciated both its past and the future vision it laid out. At the same time, the Truth and Reconciliation Commission—established not specifically to review dispensations or to investigate specific wrongdoings with the intent of prosecuting any found guilty and shutting down existing entities or operations, as was the case with other such investigations noted here—had far more of a sociocultural impact on the post-apartheid security and intelligence enterprise, community, culture, and workings. Indeed, further research should be undertaken into how and what impact the TRC has had in this manner on South Africa’s 21st-century approach to the intelligence and national security question. In all of these senses, South Africa is today—more than 15 years into the post-apartheid era—faced with a continuing sense of fractiousness, factionalism, lack of trust, and even corruption in its intelligence structures. Nevertheless, it is both a product of the decisions that were made—often within such commissions of inquiry—concerning the intelligence structures, from apartheid through democracy, and in far better shape than many other intelligence communities that have undergone such a transformation. NOTES 1. This term—“intelligence dispensation”—was first used in the 1995 White Paper on Intelligence, the document that presented the guiding principles for South Africa’s post-apartheid intelligence system; appearing above a new “philosophy of intelligence,” it appears to have been chosen for its catechismic overtones: see Republic of South Africa, White Paper on Intelligence, 1995, sec. 4, http://www. info.gov.za/whitepapers/1995/intelligence.htm. 2. Annette Seegers, The Military in the Making of Modern South Africa (London: Tauris Academic Books, 1996), pp. 126–32. 3. Much of this is outlined in Seegers, Military in the Making. 4. Founded in 1960, the ARM was closely tied to the National Union of South African Students. Its history is significant only in that it was involved in approximately 11 bombings and sabotage operations against the state between August 1962 and July 1964, when its leadership was arrested and tried; it was revealed,

Commissions of Inquiry in South Africa’s Intelligence History

243

however, following its most spectacular attack (on a Johannesburg train station on July 24, 1964) that the Security Branch had intelligence on its operations long beforehand. In reaction, the government and Parliamentary Opposition demanded greater cooperation and coordination between the intelligence services; it was out of these actions that the national security structures of South Africa were born. See Seegers, Military in the Making, pp. 129–31. 5. See, for example, Jeffrey T. Richelson, The U.S. Intelligence Community, 2nd ed. (New York: Ballinger, 1989), pp. 282–83. For a detailed—if slightly mad—assessment of U.S. intelligence interests vis-à-vis apartheid South Africa, see Richard Cummings, “A Diamond Is Forever: Mandela Triumphs, Buthelezi and de Klerk Survive, and ANC on the U.S. Payroll,” International Journal of Intelligence and Counterintelligence (Summer 1995). On Switzerland—with whom apartheid intelligence services had strong relations—see Peter Hug, Military, Armaments Industry, and Nuclear Relations between Switzerland and South Africa and the UN Apartheid Debate of 1948–1994, University of Bern NRP 42+—Switzerland-South Africa Study, http://www.snf.ch/NFP/NFP42+/HugE.pdf. 6. Seegers, Military in the Making, p. 131; Rocklyn Williams, Back to the Barracks: The Changing Parameters of Civil-Military Relations under the Botha and De Klerk Administrations (Colchester: University of Essex, 1992), p. 62. 7. Seegers, Military in the Making, p. 131. 8. The Security Branch’s failure to act against the sabotage and terrorist actions that had shaken the country since December 1961 was cited as one of the key reasons behind the requirement for an effective internal security intelligence organization; the 1958 Police Act had allowed the Security Police to “undertake the covert collection of information in so far as this was connected with sabotage, subversion, espionage or any other matter relating to the security of the State,” but this would not serve to centralize all the security forces’ intelligence on internal threats. See Republic of South Africa, Report of the Commission of Inquiry into Matters Relating to the Security of the State RP102/1971 (Pretoria: Government Printers, 1971), p. 9. 9. Republic of South Africa, Establishment of a New Department of State—Bureau for State Security, Government Notice No. 808 (May 16, 1969), s1–2. 10. International Defence and Aid Fund, BOSS: The First Five Years (London: IDAF, 1975), p. 10; Kenneth W. Grundy, The Militarization of South African Politics (London, 1986), p. 42; International Defence and Aid Fund, South Africa: The BOSS Law (London: IDAF, 1969), p. 1. 11. P.F.B.J. van Rensberg, “Covert Action as an Option in National Security Policy: A Comparison between the United States of America and South Africa (1961–2003)” (unpublished dissertation, University of Pretoria, 2005), p. 61, http:// upetd.up.ac.za/thesis/available/etd-06052007-080725/unrestricted/00disser tation.pdf. 12. Hilton Hamann, Days of the Generals: The Untold Story of South Africa’s Apartheid-Era Military Generals (Cape Town: Zebra Press, 2001), pp. 7–8. 13. Seegers, Military in the Making, pp. 139–43. 14. Alette J. Norval, Deconstructing Apartheid Discourse (London: Verso, 1996), pp. 181–82. 15. Republic of South Africa, Report of the Commission of Inquiry, pp. 33, 34. 16. Maj-Gen B. Mortimer, Submission IRO The Former SADF: SA Defence Force Involvement in the Internal Security Situation in the Republic of South Africa, http:// www.justice.gov.za/trc/hrvtrans/submit/sadf.htm, p. 4.

244

Commissions of Inquiry and National Security

17. Republic of South Africa, Report of the Commission of Inquiry, p. 46. 18. Kenneth W. Grundy, The Militarization of South African Politics (London: I. B. Tauris, 1986), p. 49. 19. South Africa was run with every element of society geared toward fighting the war—resulting in the total and integrated coordination of every sector of society into a nationally managed security architecture (whose aspects would include the military, political, social, welfare, economic, etc) to oversee the implementation of this total national strategy. 20. Gavin Cawthra, Brutal Force: The Apartheid War Machine (London: International Defence and Aid Fund, 1986), p. 37. 21. For discussions of the activities of BOSS abroad, see James Barber, “BOSS in Britain,” African Affairs 82, no. 328 ( July 1983): 311–28; and Gordon Winter, Inside BOSS: South Africa’s Secret Police (London: Penguin Books, 1981). 22. For a full account of how South Africa’s intelligence structures became embroiled in a policy of assassination, see Kevin A. O’Brien, “The Use of Assassination as a Tool of State Policy: South Africa’s Counter-Revolutionary Strategy 1979–92,” parts 1 and 2, Terrorism and Political Violence 10, no. 2 (Summer 1998): 86–105, and 13, no. 2 (Summer 2001): 107–42. By one account, over the period 1977 to 1989, more than 50 opponents of apartheid were assassinated by elements of the security forces; another account cites 60 deaths. See Patrick Laurence, Death Squads: Apartheid’s Secret Weapon (London: Penguin Books, 1990), p. 2, as well as Stephen Ellis and Tsepo Sechaba, Comrades against Apartheid: The ANC and South African Communist Party in Exile (London: James Currey, 1992), p. 115. 23. The Z-Squad was probably set up and deployed in 1966–67 by Van den Bergh. Winter maintains that the reason the BOSS assassination unit was known as the Z-Squad was because “Z is the final letter in the alphabet. It’s South Africa’s ‘final solution.’” Winter, Inside BOSS, p. 312. 24. The Information Scandal in 1977–78 surrounded the murder of a leading National Party politician and the web of corruption and misuse of funds within the Department of Information, led by Dr. Connie Mulder (tipped as the man to succeed Vorster as prime minister), which was revealed by journalists investigating the murder; Van den Bergh had worked with Mulder on establishing a détente policy for the region through a secret slush fund to “win over or buy out” African, European, and North American opinion makers. The scandal emerged after it was revealed that participants in the Department of Information had used the slush fund for their own aggrandizement; it was Van den Bergh’s attempts to protect Mulder, often through the intimidation of government investigators, that led to his own fall in this scandal. The SADF used the scandal against Mulder to the benefit of their own patron, Defence Minister Botha. For a good account, see Deon Geldenhuys, The Diplomacy of Isolation: South African Foreign Policy Making ( Johannesburg: SAIIA, 1984), pp. 84–88. See also Allister Sparks, The Mind of South Africa: The Story of the Rise and Fall of Apartheid (London: William Heinemann Ltd., 1990), p. 308; M. Rees and C. Day, Muldergate: The Story of the Information Scandal (London: MacMillan, 1980); and James Sanders, Apartheid’s Friends: The Rise and Fall of South Africa’s Secret Services (London: John Murray, 2006), pp. 94–107. 25. James Roherty, “Managing the Security Power Base in South Africa,” South African International Quarterly (Oct 1984): 61. 26. Grundy, The Militarization of South African Politics, p. 44; Williams, Back to the Barracks, p. 130.

Commissions of Inquiry in South Africa’s Intelligence History

245

27. Grundy, The Militarization of South African Politics, p. 44. 28. For an extensive examination of the SADF’s intelligence and special operations capabilities, see Kevin A. O’Brien, “Special Forces for Counter-Revolutionary Warfare: The South African Case,” Small Wars and Insurgencies 12, no. 2 (Summer 2001): 79–109. 29. Denis Herbstein and John Evenson, The Devils Are Among Us: The War for Namibia (London: Zed Books Ltd, 1989), p. 66. 30. For a detailed examination of the SAP’s intelligence and security structures and operations, see Kevin A. O’Brien, “Counter-intelligence for CounterRevolutionary Warfare: The South African Police Security Branch,” Intelligence and National Security 16, no. 3 (Autumn 2001): 27–59. See also Ellis and Sechaba, Comrades against Apartheid, p. 116; and Jacques Pauw, In the Heart of the Whore: The Story of Apartheid’s Death Squads (Halfway House: Southern Book Publishers, 1991), pp. 122–23. 31. Vrye Weekblad, March 9, 1990, as quoted in Williams, Back to the Barracks, p. 225. 32. See O’Brien, “Special Forces for Counter-Revolutionary Warfare,” for an examination of the CCB and its position in the specialist units of the apartheid security forces. 33. Republic of South Africa, Report of the Truth and Reconciliation Commission 2:3, “The State inside South Africa between 1960 and 1990,” Appendix 5, http:// www.polity.org.za/govdocs/commissions/1998/trc/2chap3.htm; African National Congress, ANC Submission to the Truth and Reconciliation Commission 4.9.1 (August 1996), http://www.anc.organisation.za/ancdocs/misc/trcall.html; Jacques Pauw, Into the Heart of Darkness: Confessions of Apartheid’s Assassins ( Johannesburg: Jonathan Ball Publishers, 1997), p. 195; confidential interview, former NIS officer, London, October 26, 1998. 34. Stephen Ellis, “The Historical Significance of South Africa’s Third Force,” Journal of Southern African Studies 24, no. 2 ( June 1998): 274; Republic of South Africa, State Security Council Hearing—Submission of Dr Neil Barnard, http://www. truth.org.za/HRVtrans/security/ssbarn.htm. 35. Ellis, “Third Force,” p. 271; Chris Alden, Apartheid’s Last Stand: The Rise and Fall of the South African Security State (London: MacMillan Press Ltd, 1996), p. 216. 36. Mark Shaw, “Spy Meets Spy: Negotiating New Intelligence Structures,” The Small Miracle: South Africa’s Negotiated Settlement, ed. Steve Friedman and Doreen Atkinson. South African Review (London: Ravan, 1994), pp. 259, 261, 262. This first meeting was carried out in Switzerland between then NIS deputy-director-general M.J.M. (Mike) Louw (later director-general of the new South African Secret Service) and Thabo Mbeki (president) and Jacob Zuma (former head of ANC National Intelligence Department and most recently deputy president) from the ANC. The Swiss government was not informed of these meetings, code-named Operation Flair by the NIS, held in Geneva and Berne. In order to guide this process, a steering committee was established in Berne consisting of NIS/NP and ANC-NAT/ Executive Committee personnel. These included Louw, NIS director-general Neil Barnard and chief of operations Maritz Spaarwater, and Fanie van der Merwe of the government Department of Constitutional Development from the government side, and Mbeki, Zuma, ANC-NAT head Nhlanhla, and ANC Executive Committee member Aziz Pahad from the ANC side. Later, the NIS secretly flew these individuals, now joined on the steering committee by SACP head Joe Slovo and the

246

Commissions of Inquiry and National Security

head of the ANC’s legal department, Pennell Maduna, to Cape Town in preparation for the Groote Schuur meetings in May 1990. For a full discussion of this process, see Allister Sparks, Tomorrow Is Another Country (London: Heinemann, 1995), pp. 54–56, 109–19. There have been indications that as far back as 1986 the NIS had arranged meetings between the ANC and NP, as well as participating in their own secretive talks with ANC Department of Intelligence and Security In addition, former minister of law and order Hernius Kriel reportedly stated in early 1995 that he had held secret meetings with Nelson Mandela and other senior ANC leaders in 1985 while they were still in prison. 37. Shaw, “Spy Meets Spy,” pp. 257–59. 38. See Republic of South Africa, Commission of Inquiry into Certain Alleged Murders (Harms Commission) (Pretoria: Government Printer 109, 1990). 39. De Kock was found guilty of six counts of murder, one of attempted murder, and numerous other counts of assault, fraud, arms trafficking, and narcotics trafficking and was sentenced to two life sentences plus 212 years. De Kock submitted an application for amnesty to the Truth Commission, which provided even more insight than the evidence at his trial had regarding the apartheid regime’s covert machinery. See Jim Day, “De Kock Reveals Plan to Murder Nujoma,” Electronic Mail and Guardian, May 16, 1997. See also De Kock’s autobiography, as told to Jeremy Gordin, A Long Night’s Damage: Working for the Apartheid State (Saxonwold, South Africa: Contra Press, 1998). 40. Robert D’A. Henderson, “South African Intelligence under de Klerk,” International Journal of Intelligence and Counterintelligence 8, no. 1 (Spring 1995): 79. 41. See Tim Jenkin, “Talking to Vula: The Story of the Secret Underground Communications Network of Operation Vula,” Mayibuye (May–October 1995), http://www.anc.org.za/ancdocs/history/vula.html; and Robert D’A. Henderson, “Operation Vula against Apartheid,” International Journal of Intelligence and CounterIntelligence 10, no. 4 (Winter 1997): 418–55. 42. Shaw, “Spy Meets Spy,” pp. 268–69. 43. Republic of South Africa, White Paper on Intelligence (October 1994), pp. 9–10, 13–14. 44. Participants in the discussions included the NIS, DIS, and representatives from the services of Transkei, Venda, and Bophutatswana. Initially, the ANC had asked for managerial control through this body over the day-to-day functions of the intelligence community; the NIS opposed this. This compromise was written into the mandate of the Transitional Executive Council Act. Republic of South Africa, Transitional Executive Council Act (Act 151 of 1993); Shaw, “Spy Meets Spy,” p. 263. 45. Shaw, “Spy Meets Spy,” p. 269. 46. Rex Gibson, “Memoirs of an Invisible Man,” The Star International Weekly ( Johannesburg), January 26–February 1, 1995, p. 13. 47. For a full discussion of the post-apartheid intelligence dispensation to 2005, see Kevin A. O’Brien, “South Africa,” in PSI Handbook of Global Intelligence National Approaches, vol. 2, ed. Stuart Farson, Peter Gill, Mark Phythian, and Shlomo Shpiro (Westport, CT: Praeger Security International, 2008), pp. 619–49. 48. Although the independent homelands of Transkei, Bophutatswana, and Venda had intelligence services (civilian and military), Ciskei did not; its International Research Bureau, which later became the Ciskei Intelligence Service, was disbanded in August 1991 due to (at best) questionable covert activities: Sandy

Commissions of Inquiry in South Africa’s Intelligence History

247

Africa, “The Role, Prospects, and Expectations of the TBVC Intelligence Services During an Interim Government Period,” Strategic Review for Southern Africa: Security and Intelligence in a Post-Apartheid South Africa XIV, no. 2 (October 1992): 79. For a brief discussion of the PASS, also known as the PAC Intelligence and Security Department, see Tom Lodge, “A Profile of the Azanian Peoples’ Liberation Army,” in About-Turn: The Transformation of the South African Military and Intelligence, ed. J. K. Cilliers and Markus Reichardt (Midrand, South Africa: Institute for Defence Policy, 1996), p. 109. 49. Shaw, “Spy Meets Spy,” p. 265. 50. Republic of South Africa, White Paper on Intelligence (October 1994), p. 15; National Intelligence Agency, Guiding Principles of the New South African Intelligence Dispensation (Pretoria: Government Printers, 1995), pp. 19–20; Republic of South Africa, National Strategic Intelligence Act (Act 39 of 1994) (December 1994), s4(2). 51. There was much controversy surrounding the National Coordinating Mechanism that then state president de Klerk instituted in 1991 to replace the NSMS; many critics posited that it was simply the NSMS under a different name, given its similar structures and control. De Klerk reigned in the State Security Council and the securocrats that had controlled it, replacing its authority with a new National Security Committee (NSC) functioning under the Cabinet Committee on Security Affairs (CCSA). The NSC was soon redesignated the Coordinating Intelligence Committee. Henderson, “South African Intelligence under de Klerk,” p. 59. 52. Sharon Chetty, “Meeting the Government’s Needs is Sigxashe’s Aim,” The Star and SA Times, December 20, 1995, p. 7. 53. Not the least by this author—see Kevin A. O’Brien, “Controlling the Hydra: A Historical Analysis of South African Intelligence Accountability,” in Who’s Watching the Spies? Establishing Intelligence Service Accountability, ed. Hans Born and Loch K. Johnson (Washington, DC: Potomac Books, 2005); and Kevin A. O’Brien, “South Africa’s Evolving Intelligence and Security Structures,” International Journal of Intelligence and Counterintelligence 9, no. 2 (Summer 1996): 187–232. 54. Under the new Constitution, the role of the intelligence and security services in South Africa was made clear. Section 185 of the Constitution indicates that the intelligence services must be monitored, coordinated, and controlled largely in conjunction with those principles laid out in the National Strategic Intelligence Act, the Intelligence Services Act, and the Intelligence Services Control Act, including multiparty parliamentary oversight of the services, civilian oversight through an inspector-general, and coordination of all intelligence (including defense and police) activities in South Africa. Furthermore, the security services have been prohibited from attempting to influence, positively or negatively, the political process. Section 187 of the draft Constitution includes statements to the effect that, “The security services must act, and must teach and require their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic” (s187(6)), as well as “neither the security services nor any of their members may perform their functions in a manner that (a) prejudices a political party interest that is legitimate in terms of this Constitution; or (b) furthers any private interest of a political party” (s187(7)). 55. For a discussion of these problems, see Kevin A. O’Brien, “South Africa’s Evolving Intelligence.”

248

Commissions of Inquiry and National Security

56. South African Secret Service, “Transforming the South African Secret Service,” http://www.sass.gov.za/content.asp?include=docs/reports/tenyear/sec tion3.html. 57. Intelligence Services Control Amendment Act (66–2002), s7(11)(h). 58. Electronic Communications Security (Pty) Ltd Act (Act 68 of 2002): s7; Ronnie Kasrils, MP, “South African Intelligence Services: Towards Meeting the Challenges of the 21st Century—Ten Priorities for Immediate Action” (speech on the Occasion of the Secret Services Debate, Cape Town, June 23, 2004), http://www.intel ligence.gov.za/Speeches/BudgetVote2004.htm. 59. General Intelligence Law Amendment Act (66–2000), s18–22B. 60. Intelligence Services Act (65–2002), s5. 61. Intelligence Services Act (65–2002), s22. 62. Intelligence Services Act (65–2002), s12. 63. Intelligence Services Act (65–2002), s26. 64. General Intelligence Laws Amendment Act (Bill 47 of 2003), 2(b). 65. General Intelligence Laws Amendment Act (Bill 47 of 2003), 8(c). 66. General Intelligence Laws Amendment Act (Bill 47 of 2003), 14. 67. For a discussion of the linkages between these criminal trials and the TRC processes, see Kevin A. O’Brien, “Truth and Reconciliation in South Africa: Confronting the Past, Building the Future?” International Relations (August 2000): 1–16. On the TRC specifically, see also Francois du Bois and Antje du Bois-Pedain, eds., Justice and Reconciliation in Post-Apartheid South Africa (Cambridge, MA: Cambridge University Press, 2008); James L. Gibson, Overcoming Apartheid: Can Truth Reconcile a Divided Nation? (New York: Russell Sage Foundation, 2004); Terry Bell (in collaboration with Dumisa Buhle Ntsebeza), Unfinished Business: South Africa, Apartheid, and Truth (Observatory, South Africa: Redworks, 2001): chs. 9–13; Antjie Krog, Country of My Skull (London: Random House, 1998); Richard A. Wilson, The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State (Cambridge, MA: Cambridge University Press, 2001); and Elizabeth Stanley, “Evaluating the Truth and Reconciliation Commission,” The Journal of Modern African Studies 39, no. 3 (2001): 525–46. 68. “Gross human-rights violations” in this context are defined as “the killing, abduction, torture or severe ill-treatment of any person by someone acting with a political objective; it includes, among others, the planning of such acts and attempts to commit them,” Truth and Reconciliation Commission, Explanatory Memorandum to the Parliamentary Bill (Pretoria: Truth and Reconciliation Commission, 1995), http://www.justice.gov.za/trc/legal/bill.htm. 69. Republic of South Africa, Promotion of National Unity and Reconciliation Act [PNUR Act] (Act 34 of 1995): s3(1). 70. PNUR Act, s3(1). 71. Dullah Omar, Justice in Transition, http://www.truth.org.za. 72. PNUR Act, s3(1); Omar, Justice. 73. While this cooperation is theoretically the case, there have been a number of clashes between the various stakeholders in this process. For the most spectacular of these, see “Why McNally Lost the Malan Trial,” Electronic Mail and Guardian, October 18, 1996, http://pubweb.web.co.za/mg/news. 74. More than 2,500 submissions were received on the final day for amnesty applications alone: “7,700 Amnesty Applications Received by Midnight Deadline Saturday,” SAPA, May 10, 1997. Initially, a large percentage of those applications

Commissions of Inquiry in South Africa’s Intelligence History

249

received were from individuals already imprisoned for crimes, rather than those seeking amnesty from prosecution. 75. Indeed, it was only in the submission by former SAP commissioner Johan van der Merwe that a senior member of the security forces not only claimed responsibility for the actions of those under his command but also revealed considerable information about the covert activities carried out by the security forces: Inigo Gilmore, “Former Police Chief Says Botha Ordered Bombing,” The Times, October 23, 1996, p. 14. Similarly, in testimony by former minister of defense Magnus Malan, he “accepted full responsibility for actions taken by troops under [my] command, including raids into neighbouring states when innocent civilians were killed”: Ray Kennedy, “Ex-Minister Takes Blame for Killings by Apartheid Troops,” The Times, May 8, 1997, p. 14. 76. See African National Congress, Statement to the Truth and Reconciliation Commission, August 1996, http://www.anc.org.za/ancdocs/misc/trcall.html, particularly s3.3 (“Just struggle in the international context”) and s6 (“Did the ANC perpetrate any gross human-rights violations?”); African National Congress, Further Submission and Responses by the African National Congress to Questions Raised by the Commission for Truth and Reconciliation, May 12, 1997, http://www.anc.org.za/ ancdocs/misc/trc2.html. 77. The ANC leadership did apply strongly for amnesty, though, including then deputy president Mbeki; ministers Modise, Omar, Maharaj, and Skweyiya; and approximately 30 other senior ANC leaders: David Beresford, “Hopes of Truth about ‘Dirty War’ against ANC,” Electronic Mail and Guardian, May 13, 1997. 78. Paul Taylor, “S. Africa’s Past Horrors Pose Questions about Future Justice,” Washington Post, March 4, 1995, pp. A1, A22. 79. This commission determined that at least 22 suspected spies had been executed, or allowed to die through neglect, in ANC camps in Angola, Zambia, Tanzania, and Uganda: ‘Tutu begins Inquiry into Rights Violations,” The Globe and Mail, April 16, 1996, p. A16. 80. Sparks, Tomorrow Is Another Country.

CHAPTER 13

Commissions of Inquiry into National Security and Defense Affairs in the Southern Cone: The Cases of Argentina and Chile José Manuel Ugarte

In Latin America the creation and operation of commissions of inquiry on security and defense matters has not been a common occurrence. In general, this can be explained by the fact that in most countries of the region, the development of civil-military relations has been limited. Hence, the security and defense institutions—armed forces and intelligence organizations— have been reluctant to be controlled by the political power. Moreover, such political power showed a poor capacity, and even limited intention, to exercise both the leadership and control of said institutions. This is a reality that is going through a slow process of change. Specifically, efficiency and effectiveness in matters of security and defense have not often been considered a priority by the governments of the region. In addition, the region has suffered from only a small number of international armed conflicts. Therefore, there have been only a limited number of commissions of inquiry on national security affairs, not only in the executive branch, but also in the legislative branch. Undoubtedly, the Commission for the Assessment and Evaluation of the Responsibilities in the South Atlantic Conflict (Comisión para Análisis y Evaluación de las Responsabilidades en el Conflicto del Atlántico Sur—CAERCAS) was the exception to the rule. This commission was created in Argentina after the country was defeated in 1982 at the hands of the United Kingdom in the Malvinas (Falklands) conflict. It is necessary to take into account the fact that the commission was created by a military government after it had suffered a military defeat; these circumstances consequently led it to analyze the causes that gave rise to such a result. The tasks carried out by this commission will be analyzed throughout this chapter.

Commissions of Inquiry into National Security in the Southern Cone

251

Years later, another noteworthy exception took place in the Republic of Ecuador with the creation of the Commission to Investigate the Military and Political Intelligence Services in Ecuador (Comisión para la Investigación de los Servicios de Inteligencia Militares y Policiales Ecuatorianos), established by the president of the Republic, Rafael Correa Delgado, by Decree no. 1080/2008 and designed to “investigate, evaluate and prepare an intelligence report about the infiltration of the foreign intelligence services in the intelligence services of the Armed Forces and of the National Police; agree on criteria about possible civil, criminal and administrative liabilities that the people who were investigated could have” and, among other aspects, “offer recommendations about structures, policies and rules related to intelligence services.”1 The commission’s recommendations led the executive branch to introduce a bill before Congress that included the creation of a civil intelligence organization that would have the capacity to coordinate police and military intelligence organizations. The bill was subsequently passed by Congress. In Latin America, there have also been several commissions of inquiry on facts concerning security and defense matters that have been dedicated specifically to human rights. The truth commissions (comisiones de verdad) created in several Latin American countries were the result not only of the end of the East-West Cold War conflict and the demise of the military governments that prevailed in the region between the 1950s and 1980s, but also of the resolution of violent civil conflicts that were mostly a consequence of the international Cold War environment. In some cases, the creation of these commissions was promoted by peace agreements fostered by the United Nations that were signed between governments and insurgent organizations, as with the case of the Truth Commission in El Salvador (1992–93) and the Historical Clarification Commission (Comisión para el Esclarecimiento Histórico) in Guatemala (1997–99). In other cases, they were created at the government’s own initiative, as in Bolivia with the National Commission of Inquiry into Disappearances (Comisión Nacional de Investigación de Desaparecidos Forzados) appointed by President Hernán Siles Suazo on October 28, 1982, by Supreme Decree No. 241. This commission was the first of this kind created in Latin America. It worked from 1982 to 1984 but could not issue a final report because it was dissolved before its investigation concluded. The National Commission on the Disappearance of Persons (CONADEP) was established in Argentina by supreme decree of President Raúl Alfonsín in December 1983. The task of this commission will be analyzed later in this chapter. Another example is the Peruvian Truth and Reconciliation Commission (Comisión de la Verdad y la Reconciliación) set up by Supreme Decree No. 065-2001-PCM in June 2001 and Supreme Decree No. 101-2001-PCM (August 31, 2001). The commission signed its final report on August 27, 2003. There was also a truth commission in Panama, appointed by Executive Decree No. 2, issued by President Mireya Moscoso on January 18, 2001. It is also worth mentioning the

252

Commissions of Inquiry and National Security

Chilean National Commission for Truth and Reconciliation (Comisión Nacional de Verdad y Reconciliación) created by Supreme Decree No. 355/1990 and the National Commission on Political Imprisonment and Torture (Comisión Nacional sobre Prisión y Tortura), which was also established in Chile by Supreme Decree No. 1040/2003. The National Commission for Truth and Justice (Comisión de la Verdad y la Justicia), created in Haiti by decree of President Jean-Bertrand Aristide (December 17, 1994) in order to “reveal the truth as a whole about the most serious violations of human rights committed between September 29th 1991 and October 15th 1994, in and out of the country,” and the Paraguayan Truth and Justice Commission (Comisión de Verdad y Justicia), created by Act 2225/03 in October 2003 to investigate the violations of human rights committed from 1954 and which submitted its final report on August 28, 2008, and the Truth Commission (Comisión de la Verdad) in Ecuador, created by Supreme Decree No. 305 on May 3, 2007, provide further examples of this phenomenon. In other cases, inquiries were led by the Catholic Church, like the one in Brazil that led to the publication of Brasil Nunca Mais (Brazil: Never Again). In Uruguay, a parliamentary commission created in April 1985—the Investigative Commission on the Situation of Disappeared People and its Causes (Comisión Investigadora sobre la Situación de Personas “Desaparecidas” y sus causas)2—made it possible to publish an official list of 164 people “disappeared” between 1973 and 1982. In October 1987 a second parliamentary commission was established to investigate the assassination of Senator Zelmar Michelini and of the president of the Chamber of Deputies, Héctor Gutiérrez Ruiz. The commission concluded that the military was responsible for crimes against humanity and genocide.3 In Uruguay, the Peace and Justice Service (Servicio de Paz y Justicia, SERPAJ)—a nonprofit organization of Christian inspiration—carried out an investigation, published in 1989 in Montevideo under the title Uruguay: Never Again: Report on Human Rights and Violations (1972–1985) (Uruguay, Nunca Más. Informe sobre la violación de los derechos humanos). Subsequently, Uruguayan president Tabaré Vázquez, in compliance with the fourth section of Act No. 15.848, entrusted three historians with the task of conducting an Investigación Histórica sobre Detenidos Desaparecidos, which was published by the government in 1997 in five volumes. Although the focus of these investigations was on violations of human rights, it could be argued that these commissions really constituted commissions of inquiry on security and defense affairs—the fact is that the performances of the armed forces, security forces, and police institutions were fundamental to the commissions’ tasks. These commissions detailed the serious and systematic circumstances of cruelty committed by armed forces, security forces, and police institutions; the civil organizations that collaborated with them; and also, in several cases, their opponents. Moreover, they describe in different reports the doctrinal military and security conceptions that were a dominant element in the aforementioned cruelty cases—in other

Commissions of Inquiry into National Security in the Southern Cone

253

words, continental security and ideological frontier doctrines, doctrines on national security, and counterinsurgent doctrines.4 Furthermore, these commissions set forth other aspects of the strategy of the armed forces in Latin American countries to face the insurgent groups, and they also offered recommendations on changes in military doctrine that were expressed in terms of the design, dimension, composition, deployment, and training of the armed forces in a manner designed to prevent the repetition of the circumstances that had led to the establishment of such commissions.5 There are similarities in the background and origins of these commissions and bodies—easily explained by reference to the general applicability in Latin America of the aforementioned doctrines. There were also broad similarities in the proposed remedies. Now that we have established this Latin American context, we will go on to examine particular cases in Argentina and Chile in greater detail.

COMMISSIONS OF INQUIRY ON DEFENSE AND SECURITY AFFAIRS IN ARGENTINA Commission for the Assessment and Evaluation of the Responsibilities in the South Atlantic Conflict (CAERCAS) CAERCAS was created by statute enacted on December 2, 1982, by the military junta, the principal de facto governmental body at that time in Argentina. Its creation took place a few months after the military conflict between Argentina and the United Kingdom came to an end. Under the terms of the statute, CAERCAS assumed “the power to analyze and evaluate the responsibility . . . regarding the way the armed conflict in the South Atlantic was handled in terms of politics and strategy.” CAERCAS was to “advise the Military Junta about its performance and to fulfill the purposes set forth in the CAERCAS constitutional document.” It also stated that CAERCAS should submit a report to the military junta containing its opinion on the military’s performance in the exercise of its functions with respect to the armed conflict in terms of politics and strategy, and on individual responsibility, including in a criminal or disciplinary context. At the commission’s discretion such cases should be investigated and judged by the respective ordinary or military jurisdiction. Hence, CAERCAS constituted an authentic commission of inquiry whose task consisted of evaluating not only the way the conflict was handled in terms of politics and strategy but also the responsibility of those involved in the conflict, who should be investigated and judged by the respective ordinary and military jurisdiction. In compliance with the aforementioned statute, the very same day the military junta itself announced Resolution No. 15/82, appointing the six members of CAERCAS. Later, one of them was appointed president of the commission: Lt. Gen. (Ret.) Benjamin Rattenbach, whose surname was

254

Commissions of Inquiry and National Security

henceforth used by the media, Parliament, and the public in referring to the CAERCAS report. He was the most senior practicing and prestigious military officer (then retired) within the military.6 The work of the commission was carried out between December 3, 1982, and September 30, 1983. Then it was reduced by the imminent restoration of democracy in Argentina on December 10, 1983. In a note addressed to the military junta, Rattenbach stated, “Since the beginning, in the Commission there were two different criteria regarding the way the report should be submitted: one of them stated that the requirements imposed by the Junta in its Statute had to be fulfilled . . . and the other expressed that it was not necessary to abide by that requirement.”7 Thanks to these two dissimilar criteria, there were differences that Rattenbach tried, unsuccessfully, to clear up. Augusto Rattenbach, son of the president of the CAERCAS, subsequently asserted that the essence of said differences lay in the fact that “my father wanted to do something short and forceful, in order that the country knew what had happened. The other members of the commission wanted an analysis, that is to say, something less forceful.”8 Based on his father’s confidences, Augusto Rattenbach commented that the prevailing atmosphere in the CAERCAS during the investigation was tense, due to these differences and also to “the interrogations, which were really tough. Galtieri9 and every person responsible for the war was put in the dock.” CAERCAS’s final report comprised a total of 17 volumes; 1 of them was dedicated to the report itself, 10 volumes consisted of the Appendices, 5 volumes included the Declarations, and 1 volume comprised the official document stating the conclusion of the tasks entrusted to the commission. The report went through unauthorized changes after its authors submitted it to the military junta, according to Rattenbach,10 who signed it and also expressed his dissent.11 Subsequently, Rattenbach was alleged to have written a document of self-criticism that expressed his worries about the future of some officers, as well as the fact that the army was considered guilty of the defeat. Thirteen years after Rattenbach’s death this document was published in an article that included a handwriting expert’s analysis and confirmation that it was the signature of the alleged author.12 However, Rattenbach’s son distrusted the authenticity of this document since its contents seemed to have little in common with the content of the Rattenbach report.13 The Rattenbach report was referred, after its presentation, to an advisory board that would evaluate the actions carried out regarding the Malvinas (Falklands) conflict. It was difficult to make decisions because of the fact that the military government was coming to an end. Finally, it was decided not to give any consequence to the report.14 Additionally, on November 23, 1983, the magazine Seven Days (Siete Días) leaked the conclusions of the report, creating a great impact.

Commissions of Inquiry into National Security in the Southern Cone

255

It is important to note that apart from the publication made by such magazines, the report was never officially published, although there are unofficial copies on the Internet. According to the report’s text, only 10 copies were made, destined for the military junta, each commander in chief of the armed services, and each member of CAERCAS. It seems clear that although the armed forces were willing to judge and sentence military officers who were considered the main war culprits, they were also determined to hide the report.15 Regarding the report itself, its most significant consequence was to make a frank, honest, and severe self-criticism of the Argentine armed forces— thanks to the prestigious retired military who joined the commission—not only in relation to the political and military mistakes committed in the Malvinas (Falklands) War but also the limitations of the armed forces from a military point of view. A prominent aspect of the report was a detailed description of the causes of the conflict, the prior negotiations, and the political, diplomatic, and military actions taken by the enemy. In addition, there is also a remarkable third part of the report, Critical Evaluation and Analysis (Evaluation y análisis crítico). Within this section we find chapter 7, “The Performance of the Armed Forces Itself” (El accionar de las fuerzas propias). Although there were some criticisms about the decision to withdraw the sea fleet after the cruiser General Belgrano was sunk, there were also compliments paid to naval aviation and to the planning and implementation of the operations of the Strategic Air Command (Comando Aéreo Estratégico) and of the South Air Force (Fuerza Aérea Sur). This section noted that despite the fact that the latter lacked training to face an air-sea war, which was attributed to the inadequate division of jurisdictions between the air force and the navy, it still caused serious damage to the enemy. It was also stressed that the Air Command for Military Transportation (Comando Aéreo de Transoporte) acted with professionalism and bravery, specifically in the implementation of the aerial bridge between the disputed islands and the continent. However, the insufficient training and instruction of certain elements of the army were emphasized, and it was pointed out that the conscript soldiers who joined the army that year did not complete their basic training, while the previous class had already been retired. As a consequence, soldiers who were not well trained to shoot and undertake combat were sent to the conflict. These factors, the report concluded, conspired against an efficient performance. Nevertheless, in the army, the field artillery and antiaircraft artillery, the command units, the cavalry reconnaissance squadron, the helicopters, some elements of support in combat, and especially the 25th Regiment of Infantry, demonstrated high levels of training and professionalism, as well as an adequate leadership of the commandoes’ performance. Above all, the lack of cooperation within the armed forces was stressed, despite the fact that joint and specific strategic operational commands had

256

Commissions of Inquiry and National Security

been established. In practice, it was common to find that commanders of units depending on the joint command communicated directly with the commander of their respective armed services, thus ignoring the authority of the joint commander. Furthermore, it was often the case that the commander of the armed service directly adopted decisions that were the jurisdiction of the joint commander. Regarding intelligence, it was stressed that national strategic intelligence was not able to foresee the reaction of the United Kingdom or evaluate its political, economic, and military abilities and that it could not anticipate the attitude that the United States would adopt. In reference to strategic military intelligence, the lack of an adequate evaluation of the military capabilities of the United Kingdom was highlighted, showing that military intelligence had been previously focused, almost exclusively, on Chile and internal subversion. However, the joint chiefs of staff’s evaluation of the opponent’s capabilities had turned out to be quite accurate. It was emphasized that the intelligence elements of each armed service had sought to individually solve the problems they faced without coordination with the others, resulting in reciprocal compartmentalization. Strategic operational intelligence suffered from similar difficulties and limitations. Furthermore, there was no knowledge of the field, geographically speaking, which led to inefficient use of resources. Furthermore, counterintelligence did not receive the attention that it deserved, which allowed the enemy to obtain useful information for its own purposes. One of the more highlighted aspects of the report was political responsibility, which at that moment was in the hands of the military junta. In this regard, the report pointed out that although the original purpose of the military occupation of the islands—to force the United Kingdom to follow up with negotiations—was adequate, the timing was bad, both because the United Kingdom was planning to withdraw its surface fleet from the area in order to concentrate on a nuclear submarine fleet and also because the Argentine armed forces were not well prepared for an armed conflict of this nature. The junta was also criticized in that it had the opportunity to reach a respectable and adequate negotiated solution to the conflict but failed to take advantage of it. In short, the Rattenbach report constituted an objective and vivid document of lessons that the South Atlantic Conflict offered. These were captured and reflected in National Defence Act No. 23.554, which incorporates the conclusions of the report.16 National Commission on the Disappearance of Persons (CONADEP) Not long after CAERCAS achieved its objective, the military government came to an end on December 10, 1983. Only five days after taking office—on December 15, 1983—President Raúl Alfonsín issued Decree No. 187/83, by

Commissions of Inquiry into National Security in the Southern Cone

257

which he created the National Commission on the Disappearance of Persons (CONADEP), charged with clarifying the facts relating to the disappearance of people during the period of military rule. CONADEP comprised a group of distinguished people, among whom were well-known human right activists, scientists, writers (such as Ernesto Sábato, who presided over the commission), jurists, journalists (like Magdalena Ruiz Guiñazú), clerics of different religions (such as rabbi Marshall Meyer), three deputies, and three senators appointed by their respective chambers of the National Congress. Although the purpose of CONADEP was not the pursuance of investigations on national defense, its investigations of necessity focused on aspects of the performance of the armed forces, security forces, police institutions, and intelligence organizations as these related to the fight against the armed insurgency and other forms of opposition to the military government. For that reason, although CONADEP, as was shown in its report Never Again (Nunca Más), had a priority interest in human rights, it also addressed issues relating to the military and security. It highlighted the methods employed by the military government to fight insurgent organizations, which were ethically and politically reproachable, and showed that the state had adopted analogous methods to those used by such organizations. CONADEP had the merit of inaugurating the cycle of truth commissions that, later, would be included in the programs and recommendations made by the United Nations in the context of states undergoing post-dictatorship or post-humanitarian catastrophe transitions. In fact, the field of its investigations was restricted to the phenomenon of disappearances as a form of state terrorism, without analyzing either the causes of the conflict or the felonies committed by the insurgent organizations. Its evidence was mainly based on the testimony of witnesses who were held in clandestine detention centers established by the military government and who survived such experience, of close friends and relatives of those killed or disappeared, and even of military and police officials who participated in or witnessed what happened. The commission established a pattern of state behavior in response to insurgent organizations that consisted of clandestine kidnapping by military, police, or intelligence officials while the armed forces officially denied that these people had been arrested. Thus, these people were labeled as “disappeared.” Torturing captured people was implemented as a means of obtaining information; in a lot of cases, they were physically eliminated. The survivors—depending on whether they had participated in said organizations or not—were held under arrest at the executive branch’s disposal, according to the powers of the state of siege, and they were prosecuted—without trial—in very few cases, or even set free. The commission’s proceedings brought about knowledge of the existence of numerous clandestine detention centers, which operated not only in police and military units but also in houses and shops used by intelligence organizations.

258

Commissions of Inquiry and National Security

Based on reports and testimonies, CONADEP confirmed that there were at least 8,960 disappeared people still unaccounted for and highlighted the possibility that the actual number could be even greater. Unlike later truth commissions, it did not try to recreate totally the tragic situation of the armed clashes that Argentina suffered in the 1970s, since its mission was limited to determining the fate that befell the disappeared. In short, the report had a fundamental importance in relation to human rights but was also valuable from the military and defense history point of view, since it showed the methodology used by the armed forces in their fight against insurgent organizations, contributing, through the public knowledge of what had happened, to creating the necessary conscience, in both civil and military spheres, in order to avoid this terrible methodology being applied again.

COMMISSIONS OF INQUIRY ON DEFENSE AND SECURITY AFFAIRS IN CHILE Truth and Reconciliation Commission (Rettig Commission) As mentioned earlier, Supreme Decree No. 355/1990 of the executive branch of the Republic of Chile created the Truth and Reconciliation Commission—known as the Rettig Commission (Comisión Rettig) after Raúl Rettig Guissen who presided over it—in order to “contribute to the global clarification of truth on the most serious violations to human rights committed in the last years, whether or not in the country, if said violations are related to the Chilean State or national political life, in the pursuit of collaborating on the reconciliation of all Chilean people, and without detriment to the judicial proceedings—that may arise from such facts.” The commission was also entrusted to “establish an outlook, as detailed as possible, of the serious facts aforementioned, their backgrounds and circumstances.” Unlike the Argentine CONADEP, the Chilean commission had to investigate serious violations of human rights committed by both the state and individuals; that is to say, it had to obtain a comprehensive outlook, as detailed as possible, related to such violations committed between September 11, 1973, and March 11, 1990—from the overthrow of President Salvador Allende in a coup carried out by elements of the Chilean armed forces headed by Field Marshal Augusto Pinochet to the return to democratic government signaled by the election of President Patricio Aylwin. The detailed outlook included the backgrounds and circumstances of such facts; that is to say, it was aimed at knowing the facts that happened before the coup and that could help to explain the tragedy lived in the country. Apart from the detailed outlook, the commission had to gather information that allowed it to individualize the victims and establish their domiciles or whereabouts; suggest the judicial steps necessary to repair and vindicate

Commissions of Inquiry into National Security in the Southern Cone

259

the victims; and advise on the legal and administrative measures that, in its opinion, should be adopted to avoid or prevent the commission of new serious violations of human rights. Its powers were limited to receiving the background information that possible victims, successors, and relatives and human rights organizations could provide; requesting reports and documents from governmental entities; and carrying out inquiries and proceedings in order to fulfill its objectives; but without having the capacity to force people to appear before the commission (subpoena powers) or obtain documents by force. The commission was made up of jurists related to Christian Democracy and left-wing parties, as well as a former minister of the Supreme Court, a historian, a jurist with conservative ideas, a political scientist, and an important female jurist. It had to complete its task within a nine-month period— and it did—with the submission of a report in which it had to state the conclusions reached, based on the elements obtained, “according to honest discretion and conscience of its members.” The investigation took place through several audiences with those summoned. The commission also had to go to the country’s provinces whenever it was necessary to obtain statements, information, or data. The commission also referred to the preexisting situation in the country before September 11, 1973, understanding that such a situation had led to an institutional break and a division between Chileans that increased the possibility of human rights violations. It also stressed that it verified the existence of cases of detained/disappeared people, a phenomenon characterized by the detention of people accompanied by the deliberate concealment and denial of such detentions, showing two fundamental patterns of behavior. The first, detention, occurred in the months immediately following September 11, 1973, and involved the detention of people by uniformed units, sometimes accompanied by civilians, and immediate execution. The second, disappearance, occurred mainly between 1974 and 1977 when the National Intelligence Directorate (Dirección Nacional de Inteligencia, DINA)—an intelligence organization created during the military government and discussed in the following—was primarily involved. The commission also determined the existence of murders committed invoking a law called Ley de Fuga—that is to say, under the excuse that the murders were committed when detained people tried to escape. It determined the existence of deaths alleged to have been caused by the state in the performance of its work to preserve public order and during curfew, as well as deaths caused by officers on the grounds of personal revenge or personal reasons. Cases of death because of torture were also established. Cases of murder plotted by individuals for political reasons were established. The commission also asserted that there were people who had died in armed clashes; nonetheless, they were regarded as victims. Nevertheless, with regard to its mission, the commission did not attribute guilt to

260

Commissions of Inquiry and National Security

individuals, nor did it include the names of alleged culprits in its report; instead, it identified the military element or public organization that would have been responsible. Regarding the situation that occurred in Chile on September 11, 1973, the report emphasized that there was a sharp polarization between Allende’s government and the opposition, showing that there were sectors that preferred armed confrontation to any other way of negotiation. The report stressed the link between developments in Chilean politics and the wider East-West conflict—also a factor in internal developments in other Latin American countries. The implementation and the performance of court martials (consejos de guerra) to judge civilians were also highlighted. Although there were no rebellious military forces that could legally make possible its performance, based on the assimilation carried out by the decree-law imposing the state of siege due to the alleged internal rebellion creating an internal war situation, civilians were judged by military justice. Since there was only a limited, partial, and poorly coordinated armed resistance during the first days after the coup, most of the actions of the armed and security forces in those days consisted of detentions of opposition leaders, national and local public officers belonging to the toppled government, union and civilian leaders, and alleged agitators, who were transferred, directly or some time later, to military units. There were ships that worked as prisons, and detentions fields— prominent among which was the National Stadium, used because of the sheer number of people under arrest. In these detention fields, people were interrogated under torture and subjected to various humiliations, including rape. Some of those convicted by the court martials were transferred to prison, and others were executed while they were detained, either because they were sentenced to death by such courts or simply because they were clandestinely sentenced to death. The importance of DINA—a group created by officers of the armed forces that was extremely ideologized and characterized by an anticommunism of exceptional virulence—was highlighted in this process. It constituted a military intelligence organization with broad powers covering external and internal intelligence and counterintelligence.17 It was created formally by Decree-Law No. 512 on June 14, 1974, although it started to work as DINA Commission at the end of 1973 and constituted a fundamental element of what was characterized as the second stage of the repression, including its coordination with the intelligence organizations of Argentina, Paraguay, and Uruguay via Operation Condor. Apart from gathering and analyzing information, the organization was responsible for kidnappings, torture, rape, and other humiliations and executions; running semi-clandestine and clandestine detention centers; and carrying out disappearances. It worked not only in the country but also abroad, playing a lead role in actions against Chileans living abroad, such as the assassinations of Orlando Letelier and Ronnie Moffit in Washington and of Carlos Prats in Argentina. The com-

Commissions of Inquiry into National Security in the Southern Cone

261

mission stated that DINA was “an organization with practically omnipotent powers, which allowed it to affect the basic rights of a person and even use its power to hide its actions and go unpunished,” highlighting the fact that “it was protected from being controlled” and showing that, in practice, it responded exclusively to the president of the Republic. The report also pointed out that international criticism led to the dissolution of DINA by Decree No. 1876 on August 13, 1977, and, on the same day, it was replaced by the National Information Central (Central Nacional de Información, CNI) by Decree No. 1878. This was a new military intelligence organization submitted to the authority of the interior minister that also had broad powers. With regard to the practices of the CNI, although at the beginning it shared similar characteristics with DINA, later it reduced its operational activity and focused on political intelligence, although it did not stop taking illegal repressive actions.18 Nonetheless, the armed struggle started by the Communist Party, through the Frente Patriótico Manuel Rodríguez (FPMR) and the Movimiento de Izquierda Revolucionaria (MIR), led to a worsening of the illegal repressive actions taken mostly by the CNI. In the report, the commission also referred to the human rights violations committed by individuals under political circumstances, and it noted that between late 1977 and March 1990 there were 93 victims of human rights violations. Those violations were attributed to the MIR and the FPMR and, toward the end of the period, a new group called Mapu Lautaro was added to the list. These organizations struggled clandestinely against the military regime. Different ways to repair the moral and material damage caused to the victims were also proposed. Unlike its Argentine counterpart, Never Again, the report analyzed not only the violations of human rights committed by elements of the state or those who had acted under the military government’s orders or in support of it—incomparably more serious, because of the number of violations and the entities that committed them and because they came from the state itself—but also those violations produced by guerrilla organizations, giving a more complete and well-balanced overview of the serious circumstances endured by Chile during the period. Another interesting result of the comparison is the striking similarity between the strategies and techniques used in both countries during the illegal repression regarding disappearances and torture—some forms of torture were common to both cases. Such similarity in techniques seems more than mere chance and could be viewed as a consequence of the connections between Latin American military governments during the Cold War East-West conflict. The National Commission on Political Imprisonment and Torture This commission was created by President Ricardo Lagos Escobar as part of his proposal on human rights, called No hay mañana sin ayer (There is no tomorrow without yesterday). It was presented in August 2003 and

262

Commissions of Inquiry and National Security

included, among other measures, the creation of a “commission to draw up rigorously a list of the persons who suffered from depravation of freedom and torture on political grounds.” This measure became a reality via Supreme Decree No. 1040/2003, which stipulated the creation, as an advisory body of the president of the Republic, of a National Commission on Political Imprisonment and Torture (Comisión Nacional sobre Presión Política y Tortura), which would have the exclusive objective of determining, according to the presented backgrounds, the identities of those who had suffered deprivation of freedom and torture for political reasons, because of actions taken by agents employed by the state or by people at the service of the state, in the period between September 11, 1973, and March 10, 1990 (section 1). In practice, this commission tended to fill the gap left by the Rettig Commission, since the latter was entrusted with a mission limited to investigations of deaths during the military government, without including imprisonment, kidnapping, or torture. It comprised eight citizens appointed by the president of the Republic, and Bishop Sergio Valech Aldunate headed the commission. It included experts on human rights, jurists, a psychologist, and militants of several parties with various political orientations. The commission’s task included the reception of testimonies, receiving them from people who appeared voluntarily because they considered themselves to have suffered from imprisonment and torture for political reasons. Another task was to interview those people—welcoming the person said to have been affected, listening to the grounds that motivated such testimony, obtaining the respective information and statement, and receiving the documents that could support the statement, if there were any. The commission’s task also covered the analysis of the case, examining all the testimonies as a whole; corroborating the information with reliable sources; investigating the documents; asking for references from human rights organizations, victims’ organizations, and public entities; investigating the references and witnesses; validating them through investigation of available data; and interviewing them again if the previous steps had proved unsatisfactory. People who declared were received not only in the city but also in the provinces; testimonies were also received from abroad. A total of 33,221 detentions were confirmed, with 27,255 of those people considered victims. It was concluded that among the people held under arrest on political grounds, 94 percent were victims of torture. Regarding the conclusions reached by the commission, besides the aspects before mentioned, some of the aspects covered in the Rettig Commission report were also restated. The report included statistics referring to the distribution of political imprisonment and torture during the period, the geographical location, the institutions involved, and the number of facilities in which people were detained. It also included a description of the torture methods most frequently implemented and an analysis of the psychological, physical, and economic consequences caused by detention and torture.

Commissions of Inquiry into National Security in the Southern Cone

263

Congressional Commission of Inquiry Related to the Acquisition of Mirage Elkan Aircraft and Leopard I Tanks On April 7, 2009, the Chilean Chamber of Deputies officially created a commission of inquiry entrusted with analyzing the alleged illegal commissions that would have been paid in the purchase of 25 Mirage Elkan aircraft that the Chilean government had bought from Belgium. Deputy Jorge Ratud was appointed president of the commission. The subject under investigation was the acquisition by Chile of 25 Mirage V aircraft from Belgium to replace existing Hawker Hunter fighterbombers, which were about to be decommissioned. The aircraft were updated in Belgium according to the Mirsip (Mirage Elkan) program. The purchase began with a letter of intent between the Chilean and Belgian governments and the Sabca Company on February 28, 1994, and it was authorized by Decree No. 7/1994. The transaction was initiated during the administration of Patricio Aylwin and completed during the presidency of Eduardo Frei Ruiz-Tagle, at the time of the investigation a senator and the declared presidential candidate of the ruling coalition, Concertación. This increased public interest in the investigation. The trigger for the investigation was the fact that What’s Up (Qué pasa) magazine had made public the discovery of documents found in Belgium relating to the alleged payment of US$15,000,000 in illegal commissions by Sabca in the interest of Chilean authorities, as well as an investigation by the Chilean criminal justice authorities into the alleged embezzlement of public funds. During the investigation, the Chamber of Deputies considered it necessary to extend the commission’s powers at the request of the opposition. Hence, the commission also analyzed the acquisition of 202 Leopard I tanks from Holland in 1998 during the presidency of Eduardo Frei Ruiz-Tagle, when the minister of defense was Edmundo Pérez Yoma. Criminal justice proceedings were also begun with respect to this acquisition, prosecuting two retired military personnel owing to the alleged payment of about US$600,000 dollars in illegal commissions. The commission carried out its task by summoning the main characters in the episode: former president Frei (who sent a document), ministers of defense, a former commander in chief of the armed forces and another of the army who were in position during the period in which the acquisitions took place and who were involved in the purchase, legislators, and even a Belgian deputy defense commissioner, Juliette Boulet. The commission also asked the governmental organizations involved for official documents regarding the investigation and asked the minister of defense to submit the secret records of the Superior Council of National Defence (Consejo Superior de Defensa Nacional, CONSUDENA), which was responsible for the analysis of the purchases of military equipment. The military involved in the purchase were former commander in chief of the Chilean Air Forces (FACH) Ramón Vega19 and former vice commander

264

Commissions of Inquiry and National Security

in chief of the army Guillermo Garín,20 as well as the head of general staff of the army and the director of Factories and Arsenal of the State (Fábricas y Maestranzas del Estado, FAMAE) at the time of the investigation, respectively Juan Miguel Fuente-Alba and Antonio Cordero,21 who stated that the purchases were adequate and reasonable because of material quality and cost effectiveness. Nevertheless, some discrepancies were apparent in the statements of the former president and former ministers of defense—who stated that decisions were made on the basis of the kind of materials, the supplier, and the price and that these decisions were exclusively the responsibility of the commanders in chief of the respective forces, while the minister of defense’s and president’s task was limited to ratifying these decisions once made (an opinion confirmed by retired members of the military such as Brigadier Jorge Pantoja, of CONSUDENA22)—and the position adopted by former senator Ramón Vega, one of the main characters accused over the purchase of the Mirage aircraft, who affirmed that the political role was the most important one. Furthermore, legislators from the opposition parties tried to demonstrate the existence of political connections between the governments of Chile and Belgium. In short, the opposition considered the Chilean political authorities responsible for both equipment purchases. An evaluation of this inquiry—still to report at the time of writing—shows that the primary concern that guided its activity consisted of the investigation of alleged facts of corruption, consisting of irregular commissions allegedly paid in the acquisition of weapons. However, considerations regarding the efficiency and effectiveness of the materials purchased were also taken into account by the commission in its investigation, even though they were not the main purpose of research.

CONCLUSIONS As this chapter shows, commissions of inquiry into security and defense affairs in Latin America have been mostly focused on clarifying human rights violations attributed to the armed forces during the Cold War EastWest conflict, or later in cases of repression against terrorism, as was the case in Peru. There have been a few exceptions to this rule, such as the Argentine CAERCAS, the Ecuadorian research commission on infiltration of foreign intelligence services created by Decree No. 1080/2008, and the Chilean Research Commission Mirage-Leopard (Comisión Investigadora Mirage-Leopard). Alongside these, truth commissions have played a major role in confirming the essential nature of the strategies employed by the Latin American armed forces to carry out tasks involving repression against terrorism and political dissent during the East-West conflict. The nature of said strategies have their roots in French and American counterinsurgency doctrines.

Commissions of Inquiry into National Security in the Southern Cone

265

Changes are taking place in various Latin American countries with regard to the tightening of the degree of civil control exercised over the armed forces and the development of defense ministries. These allow us to foresee a future in which the economics of defense—issues of efficiency and effectiveness—will be of greater interest in the defense field. Thus, in the future there will be more commissions of inquiry on national security and defense affairs, whose activities will be aimed at assuring that the aforementioned values are a part of defense activities.

NOTES 1. The creation of this commission was the result of the Colombian raid inside Ecuadorian territory on March 1, 2008, which led to the death of one of the leaders of the Colombian insurgent organization Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, FARC) and the death of FARC militants. The Ecuadorian government questioned its intelligence organizations due to the fact that they failed to alert the government in advance of the raid. 2. Neil J. Kritz, ed., Transitional Justice—How Emerging Democracies Reckon with Former Regimes (Washington, DC: United States Institute of Peace, 1995/2004), p. 29. 3. Sandrine Lefranc, Políticas del Perdón (Bogotá: Grupo Editorial Norma, 2005), pp. 52–53 (footnote). 4. On these doctrines, see José Manuel Ugarte, Los conceptos jurídicos y políticos de la seguridad y la defensa: Un análisis orientado a América Latina (Buenos Aires: Plus Ultra-Librerías Yenny, 2005). 5. See, as an example of this aspect, the conclusions and recommendations of the final report titled Memory of Silence (Memorias del Silencio) carried out by the Commission for the Historical Clarification in Guatemala (Comisión de Esclarecimiento Histórico de Guatemala) to “promote legislative measures that established fundamental principles in order to establish a proper relationship between the Army and civilian society in a democratic system and to stress the necessary subordination of the Army to civilian authority, the adequacy of military regulations and to ensure the compliance with the constitutional mandate regarding human rights, the exercise of discipline within the law, to assure the non-partisan position of the military institution and the restriction of its role to external defense matters.” 6. On this and other aspects, see Alberto Amato, Malvinas, una herida abierta [Malvinas, an Open Wound] and “Los juicios. Una autocrítica que a los militares no les gusto y quisieron ocultar” [Trials: A Self-Criticism That the Military Did Not Like and Wanted to Hide], Clarín, April 1, 2007. 7. Letter from Lt. Gen. Rattenbach to the military junta, September 23, 1983, quoted by Amato, Malvinas, an Open Wound. 8. Pablo Mendelevich, “Augusto Rattenbach: ‘The Rattenbach Report Was Adulterated’ ” [El informe fue adulterado], interview with Augusto Benjamin Rattenbach, La Nación, Approaches (Enfoques) section, April 2, 2006. 9. Lieutenant General Leopoldo Fortunato Galtieri, Argentina’s de facto president and head of the military junta during the war.

266

Commissions of Inquiry and National Security

10. In an interview conducted by a Buenos Aires newspaper (“Malvinas, 25 Years Later” [Malvinas, 25 años después], Clarín, April 7, 2007), the journalist Alberto Amato said that Col. Augusto Rattenbach, the son of the CAERCAS president , stated— during the interview—that his father told him that when he asked for the report as a memory aid to provide testimony in a military summary proceeding, he noted that three pages had been altered and several references had disappeared, such as those relating to the surrender without a fight of the Georgia Islands and the military criminal liabilities of those responsible for initiating the conflict. Without ignoring the importance of this circumstance, the fact is that the key elements of the report remained intact and were of great value in bringing about further defense reforms. See Mendelevich, “Augusto Rattenbach.” Although in the interview it was explained that the adulteration was to change the references to the actions of Lt. Cdr. Alfredo Astiz to try to relieve him of the charges, this leads to the conclusion that, essentially, the existing publications and copies of the report are genuine. 11. According to the interview in note 10, Rattenbach signed the original report in disagreement with its orientation, structure, size, and time invested for presentation but agreed with the content, including the part in which they defined the responsibilities. 12. General Enrique Juan Ottino, “Malvinas War, the CAERCAS’s Final Report: The Signature of Lt. Gen. Rattenbach Dissenting and His Posthumous Criticism,” in Annals of the Institute of Argentine Military History (Buenos Aires: Institute of Argentine Military History, 1997). 13. “Malvinas, 25 Years Later.” 14. Ibid. 15. Mendelevich, “Augusto Rattenbach.” 16. The report was quoted in the parliamentary debate of the mentioned Act. V Session of the Chamber of Deputies on August 15, 1985, Chamber of Deputies, Journal of the Sessions (Diario de Sesiones), 1985, pp. 3428 and ff. 17. According to the decree, the organization’s mission would be to “gather all the information on a national level, from different fields of action, in order to provide the intelligence required for policy formulation, planning and the adoption of measures aimed at the safeguarding of national security and the development of the country.” According to secret sections of Decree-Law No. 512, the organization also had powers to search and arrest. 18. Section 1 of Decree No. 1878/77 established that the powers of the CNI included, “to collect and process all information at the national level from the different fields of action that the Superior government needed, so as to formulate policies, plans and programs . . . and . . . the adoption of measures necessary to safeguard national security, and the normal development of national activities, and the maintenance of the institutions set up.” As can be seen, the CNI had virtually unlimited powers in terms of gathering information and production of intelligence, but it also had important operational competence. 19. Journal of the 3rd Session of the Commission, April 30, 2009, Chamber of Deputies. 20. In his statement at the 15th session of the commission, September 3, 2009. 21. In his statements at the 14th session held on August 20, 2009. 22. Journal of the 11th Session of the Commission, July 30, 2009.

CHAPTER 14

European Parliament and Parliamentary Assembly of the Council of Europe Inquiries into Intelligence and Security Issues Aidan Wills

Inquiries into the activities of security sector actors have traditionally been the prerogative of national institutions. However, in the past decade we have witnessed an increasing number of international inquiries into matters of security. International organizations, such as the United Nations, the European Parliament (EP), and the Parliamentary Assembly of the Council of Europe (PACE), have undertaken inquiries to investigate security activities ranging from assassination to the interception of wireless communications and the arbitrary detention and illegal rendition of suspected terrorists.1 There are four notable features common to many of these international initiatives: first, they have examined issues that are alleged to have involved many states; second, they have been initiated as a response to the perceived failure or inability of national institutions to investigate activities of concern; third, the inquiries have been multinational in terms of their composition; and finally, they have been initiated by entities that are independent from those responsible for the activities under investigation. These characteristics make international inquiries significantly different from inquiries at the national level. Yet, in spite of the gradual expansion of the universe of cases, very little research has been done on international inquiries as a distinct subject of study.2 This chapter will examine three inquiries carried out by regional parliamentary assemblies in Europe: 1) the EP inquiry on the Echelon interception system (the Echelon inquiry); 2) the EP inquiry on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (the TDIP inquiry); and 3) the PACE inquiry on secret detentions and illegal transfers of detainees involving Council of Europe (CoE)

268

Commissions of Inquiry and National Security

member states (the PACE inquiry).3 The first half of the chapter will explore the three inquiries in detail. This will include discussions of the following dimensions: the circumstances leading to their establishment, their legal basis, their mandates, the processes through which the inquiries gathered information, their reporting, and the follow-ups to these inquiries within the European Union (EU) and CoE. The second half of the chapter will evaluate the role played by the three inquiries in four areas that are widely identified in the existing literature: compiling a factual record of given activities; public education and awareness raising; promoting institutional and policy change; and holding individuals and institutions to account. In addition, the role played by the European inquiries in promoting investigations at the national level will be considered. It will be argued that, on the one hand, these inquiries were largely ineffective in holding individuals and states to account and in promoting institutional or policy change. However, on the other hand, they served an important role in fostering panEuropean awareness of the issues they addressed and contributed to pressure on national authorities to undertake their own inquiries. This chapter will conclude by offering some reflections on the role of international inquiries vis-à-vis that of national inquiries. It will be submitted that international inquiries into security sector activities are best viewed as complimentary to national inquiries; on the basis of the inquiries examined here, they do not represent viable alternatives.

BACKGROUND Triggers The Echelon inquiry was set up in July 2000 in light of the findings of a series of reports commissioned by the EP’s directorate-general for research (in 1997 and 1999) on the so-called Echelon communications interception system. These reports raised concerns about the scope of the interception of communications, the implications for privacy, and, most importantly from the point of view of many members of the European Parliament (MEPs), the potential use of the system for industrial espionage against EU member states.4 By commissioning the expert studies (prior to the inquiry), the EP ensured that it was at the forefront of efforts to investigate Echelon. The studies provoked significant European media interest in Echelon and ensured that the issue appeared on the radar screens of national parliaments in the late 1990s, in advance of the EP’s own inquiry. The TDIP and PACE inquiries were primarily triggered by high-profile media allegations—made in the United States—about the use of European states for the secret detention and rendition of suspected terrorists by the United States.5 Both assemblies indicated that the gravity of the allegations and ensuing public concern required them to act.6 In addition, the EP’s decision to set up the TDIP was also a reaction to the establishment

European Parliament and Parliamentary Assembly Inquiries

269

of the PACE inquiry several months before.7 Members of the TDIP inquiry made reference to the institutional imperative of not being sidelined by the PACE on an issue of major European concern.8 Nevertheless, both assemblies reacted relatively quickly to establish inquiries in the wake of serious allegations that implicated a number of EU member states. Indeed, they moved to examine the issues of secret detention and rendition in Europe before the national parliaments (or other authorities) of most of the states implicated in the allegations that had surfaced in the media. Legal Status and Composition The three inquiries discussed in this chapter were initiated and undertaken by European parliamentary assemblies.9 The two EP inquiries were carried out by temporary committees of the EP that were created by resolutions of the EP for the exclusive purpose of examining these issues.10 Both temporary committees were very large entities: the TDIP included more than 100 individuals (48 committee members, 46 substitutes, and a secretariat of 12), and the Echelon inquiry involved more than 70 (36 committee members, 32 substitutes, and a secretariat of 6). The composition of EP temporary committees generally reflects the overall composition of the parliament. Temporary committee members are nominated by their political groups within the EP, while the committee chairs and rapporteurs are selected by the EP’s Bureau on the basis of deals brokered between the largest groups. The large size of the temporary committees had important implications for the inquiries both during the process of gathering information and in their reporting—this will be discussed in more detail later in the chapter. It is debatable as to whether the EP had a choice of legal instruments for investigating the issues examined by the Echelon and TDIP inquiries. The EP can create temporary committees to examine almost any matter.11 Yet, it may also establish committees of inquiry to examine alleged contraventions of European Community (EC) law or “mal-administration” in the application of this law.12 There are significant differences in the investigative powers available to temporary committees and committees of inquiry. While the former have very few powers, the latter enjoy considerable investigative powers to access relevant documentation and secure the cooperation of EU and member state officials. At the time of the Echelon and TDIP inquiries, security matters, such as those dealt with by the TDIP and Echelon inquiries, were the exclusive sovereign prerogative of member states and did not ordinarily fall under EC law. Nevertheless, the EP indicated that, in its view, it would have been legally possible to establish full committees of inquiry to examine the issues addressed by the TDIP and Echelon temporary committees.13 This was, however, largely academic because there was no political support for creating a full committee of inquiry. Ultimately, this distinction may have made little difference

270

Commissions of Inquiry and National Security

in terms of the powers available to the two EP inquiries because even under regulations that apply to committees of inquiry, states are permitted to withhold information for reasons of secrecy or public and/or national security.14 The PACE inquiry was undertaken by Dick Marty, a Swiss senator and (at the time) chair of PACE’s permanent Committee on Legal Affairs and Human Rights (LAHRC). Marty’s inquiry into rendition and secret detention was just one—albeit high profile and comprehensive—of numerous investigations the LAHRC undertakes each year through its system of rapporteurships.15 The inquiry was established on the basis of a motion for resolution (sponsored by Marty), and after having received the requisite approval from the assembly’s Bureau. No plenary vote was required to establish the inquiry. Given the broad range of contemporaneous investigations, the LAHRC’s involvement in the inquiry was minimal, and the inquiry had extremely limited human and financial resources.16 The lack of resources had important implications for the inquiry. The individuals involved were extremely overburdened, and Marty did not have the resources needed to pursue all possible avenues of investigation.17 However, the small size of the inquiry also ensured that it was highly nimble, relatively leak proof, and altogether well suited to collecting and handling sensitive information.18 The legal basis for the PACE inquiry was the assembly’s rules of procedure, which permit its committees to examine any matter within their terms of reference; for the LAHRC these terms are expansive and extend to “all legal and human rights matters which fall within the competence of the Council of Europe.”19 Yet the PACE’s committees have almost no legal powers to assist them in their work. Mandates The mandates of the two EP inquiries were clearly articulated in their founding resolutions. The principal components of the Echelon inquiry’s mandate were as follows: 1) to verify the existence of the communications interception system known as Echelon; 2) to assess the compatibility of such a system with (European) Community law; 3) to ascertain whether European industry is put at risk by the global interception of communications; and 4) to make proposals for political and legislative initiatives.20 This mandate was relatively uncontroversial insofar as it did not explicitly task the temporary committee with examining the involvement of any particular state. The EP mandated the TDIP committee to collect and analyze information to find out the following: 1) whether the United States or other third countries carried out abductions, extraordinary renditions, secret detentions, or torture on the territory of EU member and candidate states; 2) if such actions were a violation of the Treaty on European Union and/

European Parliament and Parliamentary Assembly Inquiries

271

or a host of other international treaties and agreements to which the EU and its member states are party; 3) whether EU citizens or other persons under the jurisdiction of EU member or candidate states were subjected to the aforementioned activities; 4) whether states and/or their officials or EU institutions were involved or complicit in these activities through their actions or omissions; finally, 5) the TDIP was asked to put forward relevant recommendations concerning political, legal, and administrative conclusions. From this, it is clear that the TDIP inquiry had the most comprehensive mandate of the three inquiries examined in this chapter. It is noteworthy that only the TDIP inquiry was explicitly mandated to examine the role of specific states and individuals in given activities. Unlike the two EP inquiries, the PACE inquiry’s mandate was never articulated in a single document. The inquiry was incrementally mandated by the LAHRC to take particular procedural steps; however, Marty was left to determine the substantive scope of the inquiry’s work. Marty’s interpretation of the mandate has to be extrapolated from a range of documents. His motion for resolution—the procedural trigger for the inquiry—called for an investigation of “the alleged use of airspace, airports and other facilities in Council of Europe member states to transport illegally detained suspected terrorists” and “to verify . . . whether secret detention centers existed and/or still exist.”21 The inquiry’s interpretation of its mandate is clarified in its two reports. The first refers to the grandiose aims of ascertaining “the truth,” reaffirming the values of the Council of Europe, and guarding against repetition.22 However, the second report best captures the essence of the inquiry’s mandate, stating that “our task is clear: to assess . . . allegations of serious human rights abuses committed on the territory of Council of Europe member states, which therefore involved violations of the ECHR.”23 The protection and promotion of human rights is one of fundamental raisons d’être of the Council of Europe, and it is therefore unsurprising that the PACE inquiry’s remit was significantly narrower, focusing almost exclusively on human rights.24 The mandates of two EP inquiries were clearly broader than that of the PACE inquiry, both in terms of substantive focus and the range of tasks they were mandated to undertake. Nevertheless, the three inquiries shared several notable characteristics. First, all were mandated to undertake a process of fact finding to verify whether given activities had taken place. In all three cases, the activities under investigation were alleged to have involved a number of states. Perhaps more significantly, the inquiries were implicitly mandated to examine the activities of third states—that is, states that were/are not members of the EU or CoE. While only the TDIP’s mandate makes explicit reference to addressing the activities of non-EU/CoE member states on European territory, this is implied in the mandates of the Echelon and PACE inquiries insofar as they addressed activities that were assumed to be led by the United States. The second matter that is included in the mandates of all three inquiries is an evaluation of the legality

272

Commissions of Inquiry and National Security

of the activities examined. Finally, all three inquiries had a mandate to recommend measures to prevent the reoccurrence of the activities under investigation. The two EP inquiries were given clear instructions to make such proposals, while the PACE inquiry’s reference to preventing repetition implies a similar role.

INQUIRY PROCESS Investigative Powers The documents establishing the three European inquiries make little or no reference to the methods or powers available to them. Moreover, the assemblies’ rules of procedure—upon which the inquiries were based— provide very limited guidance on the powers or tools at the disposal of temporary committees (in the case of the EP) and committee rapporteurs (at the PACE). As a result, the inquiries had to fashion their own working methods. This had the advantage of affording them considerable flexibility in deciding how to collect information. At the PACE inquiry, Marty was able to design his own working procedures, turning to the LAHRC (which he chaired) whenever authorization was required. The rapporteurs and chairmen of the EP inquiries also enjoyed some flexibility; however, they were constrained by the need to obtain the agreement of the majority committee members on all significant procedural decisions. Notwithstanding their capacity to develop their own inquiry methods and procedures, neither the temporary committees of the EP nor the PACE’s committees possessed any genuine investigative powers. Consequently, none of the inquiries examined here had powers of subpoena, the ability to hear witnesses under oath, or the capacity to compel the release of documents.25 The inevitable consequence of this lack of powers was that all of the inquiries had to rely on the cooperation and goodwill of national governments and international organizations (such as NATO) in order to obtain the necessary information. This cooperation was rarely forthcoming; ultimately, their lack of investigative powers was a significant weakness of all three inquiries that limited their ability to collect the information necessary to fully investigate the issues within their mandates. Indeed, each inquiry made reference to the lack of sufficient information as an impediment to their capacity to reach definitive or exhaustive conclusions.26 This debilitating lack of investigative powers was compounded by insufficient cooperation from the relevant interlocutors—that is, officials from national government and international organizations. The failure of these officials to cooperate was particularly detrimental to the work of the TDIP and PACE inquiries, both of which made direct reference to this in their final reports.27 For example, more than 70 individuals (mostly state officials) are known to have either refused or ignored the TDIP’s requests

European Parliament and Parliamentary Assembly Inquiries

273

for them to either appear before the inquiry and/or to provide information. Moreover, at least two prominent officials were later shown to have given misleading testimony to the committee.28 Perhaps more surprisingly, the TDIP was unable to acquire official documents from other EU institutions through official channels.29 The PACE inquiry faced similar obstacles, and members of the inquiry highlighted the failure of NATO to provide requested documentation as having been particularly detrimental to their work.30 While a lack of investigative powers undoubtedly hindered the work of all three inquiries, this must be placed in the broader context of the challenges faced by national inquiries. It should be recalled that many national inquiries (including several examined in this volume) do not posses genuine investigative powers. More importantly, we should remain mindful of the legal reality that even if the inquiries had been equipped with full investigative powers, these powers would not have extended to the American officials, who developed and ran the rendition and secret detention programs, or the Echelon interception system. Indeed, national inquiries into rendition and secret detention have been hamstrung by jurisdictional limitations. The Arar inquiry in Canada and the German Bundestag’s inquiry into various aspects of rendition and secret detention were both unable to secure the cooperation of U.S. officials, which would have enabled them to undertake a more complete assessment of the activities under investigation.31 Arguably, the European inquiries were better placed in this regard because they were at least able to access information provided by a range of states and officials (that did cooperate) in a way that a national inquiry could not. In spite of the fact the TDIP, PACE, and Echelon inquiries were restricted by their limited legal powers to collect information and the noncooperation of key actors, they were still able to harvest significant amounts of information on the basis of which they compiled their reports. We shall now review the process through which they gathered information. Hearings Committee hearings were one of the primary methodologies used by the EP inquiries. They held numerous hearings (130 in the case of the TDIP inquiry) at which a broad range of relevant stakeholders gave testimony.32 The vast majority of these hearings were public, and, in the case of the TDIP inquiry, testimony was published on the Internet. The TDIP held only one hearing behind closed doors (at the request of the individual concerned); however, the Echelon inquiry held an unspecified number of hearings behind closed doors whenever it was deemed to be “in the interests of obtaining information.”33 Carlos Coelho, who chaired both inquiries, sought to avoid the use of in camera hearings because they were seen to be inimical to the EP’s proclaimed commitment to transparency. Nevertheless,

274

Commissions of Inquiry and National Security

the insistence upon public hearings came at the cost of witnesses failing to provide information that was not already in the public domain. According to one member of the TDIP inquiry, the chair and rapporteur sought to reconcile the competing demands of transparency and sensitive information by holding off-the-record meetings with witnesses after they had provided official testimony.34 By contrast, the PACE inquiry held a small number of committee hearings at the beginning of its mandate (primarily with representatives of NGOs), but later opted for private meetings. Two factors motivated this decision: first, the LAHRC handles so many contemporaneous rapporteurships that it is unable to hold multiple hearings for each; and secondly, members of the inquiry were aware that they would obtain more information from small, off-the-record meetings.35 Consequently, there is no public record of the dates, locations, and participants in these meetings, and the minutes were not made public. Role of Parliamentarians The three inquiries discussed here were all undertaken by or located within committees of parliamentarians. Members of the EP are directly elected at the regional or national level and are generally members of national political parties (as well as their EP groups). Members of the PACE are members of national parliaments nominated as delegates to the PACE by their legislatures. In both cases, parliamentarians are well placed to serve as a bridge or channel between the national and European levels. This placed members of the EP temporary committees and the PACE’s LAHRC committee in a particularly important position in the context of international inquiries that sought to examine activities in a range of jurisdictions. Many members of the EP inquiries (particularly those from governing parties) used their positions to further national interests, which often entailed obstructing the work of the inquiries.36 However, some members (primarily of the TDIP inquiry) used their positions to procure information from sources in their own countries, which they then fed into the inquiry; this information gathering was often accompanied by efforts to pressure their own governments and parliaments to investigate the impugned activities. Several members of the TDIP committee went as far as to undertake their own in-depth investigations and even brought cases against their own governments to secure the release of information.37 By virtue of their status and connections within their own countries, these MEPs were much better placed to gather information about the activities of their national authorities than any European entity. Members of the PACE’s LAHRC were apparently almost unanimous in their support for Marty’s investigations. A number of committee members also happened to be the heads of their national PACE delegations; this placed them in an ideal position to seek information from their national

European Parliament and Parliamentary Assembly Inquiries

275

authorities and to place pressure their own parliaments to investigate the issues at hand.38 The fact that international parliamentary inquiries are made up of parliamentarians from a range of states places them in a unique position to extend the influence and investigative reach of these inquiries to numerous jurisdictions. Use of Anonymous Sources No state or international organization officially provided any of the inquiries with classified information. However, both the TDIP and PACE inquiries were supplied with information by whistleblowers from within the American and European security and intelligence communities.39 Given the secretive nature of the issues under examination, access to information of this nature was essential to the inquiries’ work. Yet the collection and use of secret information presented significant procedural and political challenges to both the EP and the PACE. Neither body had established procedures in place for handling and using secret information, and the inquiries’ founding documents offered little in the way of guidance. For example, there were no procedural rules that permitted EP (temporary) committees to keep information secret or to draw upon anonymous sources. On a more practical level, they did not have secure communications equipment, premises, or information technology systems available.40 This presented major problems for both inquiries and meant that they had to devise, on the fly, their own procedures for dealing with these matters. Information provided by whistleblowers and other anonymous sources was central to the work of the PACE inquiry. Members of the inquiry were in contact with more than 30 individuals, principally from the U.S intelligence community. These individuals provided information that enabled the inquiry to both corroborate claims made elsewhere and to interpret data from European air traffic control authorities.41 The PACE inquiry was criticized in some quarters for granting anonymity to all whistleblowers who wanted their identities to be kept secret. However, this was deemed to be essential in order to protect the individuals concerned and to enable the inquiry team to cultivate a network of individuals willing to furnish them with information.42 Despite the fact that the PACE inquiry took place under the auspices of a committee of an international parliamentary assembly, it was remarkably well suited to handling this type of information by virtue of its small, professional team. The TDIP inquiry also used whistleblowers but to a much lesser extent than the PACE inquiry.43 This was in part because there was strong opposition within the EP to use anonymous sources, but also because would-be providers of information did not trust the EP to safeguard their identities and information appropriately.44 This is perhaps unsurprising given that the EP is an enormous bureaucracy staffed by individuals from 27 states and renowned for its leaks. Indeed, one member of the TDIP inquiry

276

Commissions of Inquiry and National Security

summed up this predicament cogently in describing the EP as “too much of a heavy machine” to handle anonymous sources.45 Others asserted that the EP was right to limit its use of anonymous sources because it was at odds with the EP’s espousal of transparency and unnecessary for an exercise that was not about uncovering “forensic” details.46 Notwithstanding these comments, it should be noted that leaked documents from the EU Commission were one of the key sources of information for the TDIP. These included the minutes of an EU Council meeting that demonstrated that EU member states were cognizant of the U.S.-led rendition program.47 Missions and Field Visits A final information-gathering method used by all three inquiries was missions and field visits to countries of interest. For the Echelon and TDIP inquiries these were public, high-profile missions that consisted of delegations of as many as 30 MEPs and staffers. Both inquiries used these missions to hold meetings with relevant national interlocutors, and, in most cases, they also met with members of national parliaments. It is noteworthy that both the TDIP and Echelon inquiries undertook missions to the United States; however, they faced substantial difficulties in getting access to the relevant stakeholders in Washington, DC.48 Nonetheless, some members of the TDIP inquiry claimed that the missions yielded key information because they were able to meet (former) intelligence service officials who revealed information that highlighted inconsistencies in official government responses to questions raised by the inquiry.49 The motion for resolution that led to the establishment of the PACE inquiry explicitly authorized Marty and his team to visit relevant countries during the course of their work. Members of the PACE inquiry traveled to a range of countries, but in contrast to the EP inquiries, these visits took the form of below-the-radar, off-the-record meetings with national officials and victims of rendition and secret detention. The meetings held during these visits were part of what Marty termed his “intelligence work” and are claimed to have been crucial for the collection of information.50 Information from NGOs and Investigative Journalists All three inquiries discussed in this chapter made extensive use of nongovernmental organizations (NGOs) and investigative journalists as sources of information. Each inquiry called upon NGOs and investigative journalists to provide testimony and made extensive use of their reports. Indeed, the TDIP and PACE inquiries made direct reference to allegations made in the media as having triggered their own investigations, and much of their work was based on information gleaned from the reports of investigative journalists and NGOs.51 PACE rapporteur Dick Marty captured the importance of NGOs and journalists to these inquiries:

European Parliament and Parliamentary Assembly Inquiries

277

The work undertaken by a number of NGOs has proven invaluable and[. . . more detailed and reliable than the information provided by governments, . . . without the work undertaken by these organisations [the NGOs] and the investigations of competent and tenacious journalists we would not be talking about this affair [secret detention and rendition].52

Such was the reliance of the TDIP inquiry on investigative journalists that Richard Aldrich has suggested that it was effectively “piggybacking” on their work.53 The Echelon inquiry also relied heavily on the reports of investigative journalists such as Duncan Campbell, as well as NGOs like the Menwith Hill Women’s Camp. One observer has suggested the Echelon inquiry’s reports represented the repackaging of this knowledge.54 The inquiries’ reliance upon journalists and NGOs is unsurprising given that these actors had already carried out their own investigations into the same activities and were arguably better placed to collect information from anonymous sources. REPORTING Each of the three inquiries published two reports that were made public in their entirety. At the EP, the Echelon inquiry published a draft report and an amended final version several months later. The TDIP produced an interim report containing preliminary findings (which was a requirement in order for the EP to extend the inquiry’s mandate for a further 6 months) and a final report after 12 months. The reports of the two EP inquiries were first adopted by the temporary committee and then passed as resolutions of the EP plenary, following a series of amendments.55 It is noteworthy that the drafts produced by the Echelon and TDIP rapporteurs were subject to numerous amendments within the committees. Members of these inquiries have acknowledged that this ultimately resulted in lowest common denominator outcomes.56 This illustrates one of the principal limitations of inquiries undertaken by multinational bodies that have to accommodate myriad national interests and viewpoints. Yet, in spite of this limitation, the fact that a directly elected assembly—representing more than 400 million people—adopted the reports of these inquires ensured that they carried significant weight. The PACE inquiry’s two reports were adopted by the LAHRC; the assembly’s plenary later adopted detailed resolutions on the basis of each report.57 The two stand-alone reports focused on different dimensions of the issues under investigation: the first centered on rendition flights, and the second examined secret detention facilities in Europe. In contrast to the EP inquiries, the PACE inquiry’s reports were almost exclusively the prerogative of Dick Marty and his small team; the reports required the approval of the LAHRC, but relatively few amendments were made.

278

Commissions of Inquiry and National Security

A full evaluation of the inquiries’ findings is beyond the scope of this chapter; however, some brief remarks will be made on their main findings, as well as the general nature of their reports. The Echelon inquiry demonstrated (as was already known) that a global communications interception system existed, and that the UK and Germany had been complicit in this system.58 The TDIP inquiry’s report provided a broad outline of the U.S.-led renditions of suspected terrorists in Europe and concluded that a significant number of European states were complicit in these activities.59 The PACE inquiry’s reports went further by not only providing in-depth analysis of the renditions network, but also by demonstrating—to a “high degree of probability”—that secret detention centers had existed in Romania and Poland.60 The reports of the TDIP and PACE inquiries also dedicated significant attention to the failure of national governments to investigate allegations pertaining to secret detention and rendition and to national authorities’ lack of cooperation with their own investigations. The reports of the Echelon and PACE inquiries are rich in detail and read more like specialist academic tomes, rather than the reports of parliamentary inquiries. The PACE inquiry’s reports are almost forensic in their discussion of secret detention and the complex network of rendition flights. They remain some of the most comprehensive documents published on these phenomena. Similarly, Steve Wright has described the Echelon report as providing “some of the best most informed organised knowledge on the existence of Echelon, its activities and limitations.”61 By contrast, the reports of the TDIP inquiry use broader brushstrokes and are noticeably less detailed in their analysis. Both the interim and final reports focus on making general political statements rather than compiling a detailed record of secret detention and rendition. It is noteworthy that none of the reports of the three inquiries examined here were subject to vetting or redaction by any national government or the branches of the EU and CoE that include representation from national executives (the EU’s Council of Ministers and the CoE’s Committee of Ministers). This ensured that the inquiries were relatively independent in their reporting. Nevertheless, national executives were able to exert an influence on the final (adopted) versions of the reports because states were able to use their MEPs/MPs to introduce amendments. Large states such as the United Kingdom (TDIP) and Germany (PACE) used the threat of their MEPs/MPs voting against the final resolutions to ensure that accusations leveled against them in the reports were expunged or softened.62 However, this strategy did not prevent the publication of this information. At the PACE inquiry, Dick Marty enjoyed almost unlimited freedom to publish what he saw fit in his two reports. While the TDIP rapporteur was more constrained by the need to secure the agreement of the other members of the temporary committee, he was able to publish information through a series of working documents that were not subject to committee or plenary approval.63

European Parliament and Parliamentary Assembly Inquiries

279

The three inquiries differed significantly in their approach to the publication of information gathered during the course of their work. The TDIP inquiry was most comprehensive in this regard. It provided lists of all meetings and hearings that took place, verbatim minutes of all committee hearings, as well as detailed notes of other meetings, including those that took place during the overseas missions. The TDIP rapporteur’s working documents also contain significant amounts of information provided by witnesses and other interlocutors. In spite of this proclaimed policy of transparency, we have already noted that the TDIP also held undocumented/undisclosed meetings with a variety of witnesses and received information from a number of whistleblowers and leaks.64 The Echelon inquiry’s approach to the publication of evidence was more ambiguous. Its report is comprehensively referenced but it did not publish transcripts of hearings and even withheld the minutes of many of its meetings. The PACE inquiry was unable to publish much of the raw information it received or details of the individuals who provided it. This is unsurprising given that the inquiry made extensive use of whistleblowers and off-therecord interviews and visits and had promised to protect these individuals’ identities.65 This policy enabled the PACE inquiry to gather information that was not volunteered to the TDIP inquiry and ultimately enabled it to draw more comprehensive conclusions than the TDIP. However, the PACE inquiry’s decision not to disclose many of its sources has given rise to the criticism that the inquiry was unable to substantiate many of the claims made in its reports. FOLLOW-UP TO INQUIRIES AT THE EU AND THE COUNCIL OF EUROPE The follow-up to the Echelon and TDIP inquiries within the EP has been insignificant. The EP has not revisited the issue of Echelon since it passed its resolution in late 2001. It has, however, retained an interest in the issues of secret detention and rendition. In February 2009, the EP passed a resolution that took stock of developments since the TDIP inquiry, chastised states for their ongoing failure to initiate proper investigations, and implored them to implement the inquiry’s recommendations.66 In spite of this resolution, a working group, set up to examine the implementation of the TDIP’s recommendations, made little progress largely because of the 2009 EP elections. Elsewhere in the EU machinery, the council has failed to address the TDIP’s findings and recommendations and is under no obligation to do so. At the CoE, the Committee of Ministers (CoM) issued a predictably bland reply to the reports of the PACE inquiry and the assembly’s resolution. The CoM failed to even condemn the practices documented in the two reports; this drew fierce criticism from Dick Marty.67 The PACE itself has not taken further steps to reexamine the issues addressed by its

280

Commissions of Inquiry and National Security

inquiry. One individual involved in the inquiry indicated that members of the PACE’s LAHRC had little appetite for further investigations of secret detention and renditions. It was suggested that the PACE had achieved as much as it could through its inquiry and it remained the prerogative of national institutions to undertake proper investigations.68 The follow-ups to the three inquiries discussed here have demonstrated that neither the EP nor the PACE is equipped to build upon the work of such initiatives. These assemblies cannot require governments or European institutions to take heed of their findings, and they may not have either the resources or the political will to follow up on highly sensitive matters that run to the heart of national sovereignty. AN EVALUATION OF THE PACE, TDIP, AND ECHELON INQUIRIES As we have already noted, very little research has been done on the functions of international or regional inquiries. Therefore, in evaluating the work of the TDIP, PACE, and Echelon inquiries we shall draw upon the literature on national inquiries, which provides a useful framework for evaluating the inquiries discussed in this chapter. The literature on inquiries and public accountability more generally highlights numerous functions served by inquiries. In this section we will focus on just four of these: establishing a factual record of particular events or activities, providing information to the public about the activities of governments, holding individuals or institutions to account, and providing lessons for institutional or policy change.69 In addition, we shall examine the role of the European inquiries in promoting inquiries and other investigations at the national level. The PACE, TDIP, and Echelon inquiries will be evaluated according to their role in each of these five areas. This evaluation will highlight a number of the strengths and weaknesses of international inquiries and will also draw comparisons with inquiries at the national level. Compiling a Factual Record It is widely accepted that one of the principal functions of inquiries is to provide a factual record of particular events or activities. Indeed, fact finding was at the center of the mandates of all three inquiries examined in this chapter. Yet, by their own admission, the factual record compiled by the three inquiries was incomplete. The EP inquiries failed to reach comprehensive conclusions on a number of the main issues that they examined.70 The Echelon inquiry was unable to substantiate many of the allegations that had been made about the purported uses of the Echelon system; more specifically, the inquiry could not ascertain whether or not the interception system had been used to conduct industrial espionage against European companies.71 Unlike the PACE inquiry, the TDIP inquiry

European Parliament and Parliamentary Assembly Inquiries

281

was unable to reach conclusions on whether or not secret detention centers had existed in Europe, which flights involved the rendition of terrorists, or how many people were transported. Moreover, the TDIP did not fully address the use of military flights for renditions; this is widely seen to have been a major gap in their findings.72 In addition to the gaps in the EP inquiries’ findings, there are significant doubts as to whether the reports of the two inquiries provided any information or findings that had not already been placed in the public domain by NGOs and the media.73 The PACE inquiry provided more comprehensive findings, which, at the time, were the most complete of all accounts of rendition and secret detention in Europe. Nevertheless, the PACE inquiry conceded that its findings were, in all likelihood, incomplete. This has been confirmed by subsequent revelations about various aspects of the U.S.-led rendition and secret detention program that it failed to uncover.74 Ultimately, it was inevitable that the three inquiries examined here were unable to compile exhaustive findings because none of them had access to the complete factual landscape. As we have seen, this was the result of them lacking investigative powers to access the relevant officials and information. This weakness was accentuated by a lack of cooperation from national governments and some international organizations. For the EP inquiries, these limitations were exacerbated by the fact that the EP is not an appropriate mechanism for undertaking inquiries into highly sensitive matters pertaining to national security. A combination of the large size and heterogeneous composition of the EP’s temporary committees, as well as the EP’s reluctance to gather and make use of secret information, limit its capacity to gather the information needed to compile a factual record. Yet, in spite of their inability to compile exhaustive findings, the inquiries addressed in this chapter demonstrated that international/regional inquiries are well placed to harvest and collate information from a diverse range of sources from a number of states. Indeed, the multinational makeup and reach of these inquiries enabled them to extend their investigations far beyond what could be done by a national inquiry. As we have seen, all three inquiries received testimony from or interviewed individuals from a range of states and visited a variety of states. Notwithstanding the failure of many individuals and institutions to cooperate, this enabled the inquiries to compile information from a range of stakeholders in a variety of states. This was particularly important given that all of these inquiries examined activities that were inherently cooperative endeavors, encompassing actors and elements from several states. Awareness-Raising Another core function of inquiries is to generate public awareness of the issues that they examine.75 The three European inquiries excelled in this role. They were able to raise awareness of issues on a pan-European level

282

Commissions of Inquiry and National Security

by virtue of their location within international parliamentary assemblies, their multinational composition, and reporting in numerous European languages.76 The inquiries’ capacity to generate pan-European awareness of the rendition and secret detention of suspected terrorists, and the Echelon system, was greatly enhanced by their judicious use of the international media.77 International inquiries are uniquely placed in this regard because they have the capacity to transcend national borders to gather information from a range of jurisdictions, collate it, and then publish reports for a multinational audience. Hence, Richard Aldrich’s observation that these inquiries served as “transmission belts” for information.78 It is noteworthy that the inquiries not only promulgated general findings but also disseminated information and recommendations that were tailored to audiences in specific states. These included conclusions about the involvement of national authorities in particular activities and, in the case of the PACE inquiry, the naming of national officials alleged to have been complicit therein. By reaching out to audiences across Europe, the inquiries were able to generate further interest at the national level. For example, Steve Wright suggests that the package of organized knowledge compiled by the Echelon inquiry has served as an important catalyst for generating subsequent public interest in the issue.79 Equally, the TDIP and PACE inquiries’ role in generating public awareness of rendition and secret detention in Europe is widely credited with having generated additional pressure on national authorities to undertake their own inquiries into these activities. This subject will be discussed in more detail in the following. Holding Individuals and Institutions to Account Inquiries can serve to hold officials and institutions to account for their actions. This generally requires that there is a legally established accountability relationship between an inquiry body and the individuals or institutions it seeks to hold accountable. Such relationships are usually enshrined in statute and/or in the document that establishes an inquiry and its mandate. An accountability relationship implies that an inquiry has the right to call given actors to account and that they are obliged to render an account.80 Investigative powers are usually available within this framework. The three inquiries examined in this chapter did not have established accountability relationships with states or international organizations and as a result were not in a position to call them to account. In the realm of security, neither the PACE nor the EP has established accountability relationships with these actors or, indeed, the capacity to establish accountability relationships on an ad hoc basis. Consequently, they have no power to secure access to information held by states and international organizations or to require their officials to appear before them. As we have seen,

European Parliament and Parliamentary Assembly Inquiries

283

this limitation was particularly detrimental to the work of the TDIP and PACE inquiries. In contrast to many national inquiries, governments were neither responsible for nor supported the creation of these inquiries. This meant that governments owed the inquiries little in the way of attention or compliance. At the national level the chains of accountability and responsibility between government and an inquiry are more clearly established, regardless of the legal basis for the inquiry or which institution undertakes it. Indeed, there is a “principal-agent logic” inherent to most national inquiries whereby the state, as the agent, has a political and/or legal obligation to render an account to an inquiry as the principal.81 This makes it more difficult for a government to stonewall requests for information or witnesses and subsequently to disregard an inquiry’s reports and recommendations. All of this is absent from the relationship between national governments and inquiries that take place at the European level. Promoting Institutional and Policy Change A further role played by inquiries is bringing about change in policies and practices, usually with the aim of preventing the reoccurrence of the activities that led to an inquiry. The reports of the PACE, TDIP, and Echelon and/or the accompanying resolutions made comprehensive recommendations to national governments and their intelligence services, parliaments, and European institutions. These recommendations focused on legal and institutional reforms and new international standards to prevent the reoccurrence of the activities that had given rise to each inquiry.82 Yet, it is important to note that neither the temporary committees of the EP nor PACE committees can issue findings or recommendations that are binding upon any European institutions or member states; in the words of the vice chairman of the TDIP, Cem Özdemir, they produced “findings without teeth.”83 In the context of national security, it is invariably difficult to assess the impact of inquiries’ reports and recommendations on state bodies because researchers don’t generally have access to internal policies and guidelines or changes therein. However, there is little evidence that either national governments or European institutions have heeded the recommendations, or indeed the more general findings, of the TDIP, PACE, and Echelon inquiries. This is best illustrated by the lack of response to the inquiries’ reports from most national governments: they have simply ignored the findings and recommendations of the inquiries. This lack of impact has been particularly noticeable in the case of the Echelon inquiry. States continue to use strategic interception systems as a means for gathering intelligence, and it seems highly probable that the United States and its allies continue to operate the system that was once labeled “Echelon.” Debate about the Echelon system largely disappeared

284

Commissions of Inquiry and National Security

with the events of September 11, 2001, and the subsequent focus on the threat posed by international terrorist groups. The following passage provides a cogent summary of the impact of the Echelon inquiry: “A year of hard work boils down to this: Echelon exists and the Europeans don’t like it, but there isn’t much they can do except wring their hands in impotent fury as the Americans continue spying on whomever they please.”84 Meanwhile, many governments and successive presidencies of the EU’s Council have continued to deny the allegations and/or made explicit statements rejecting the findings of the TDIP and PACE inquiries.85 There have, however, been several notable developments in the policies of the U.S and European governments on the rendition and secret detention of suspected terrorists. It is widely believed that U.S.-run secret detention facilities in Europe were closed in 2005.86 This decision was probably precipitated by their exposure through the same media stories that triggered the establishment of the TDIP and PACE inquiries and cannot therefore be attributed to the inquiries, which began in early 2006. Yet, in 2008, the U.S. government admitted to its continued use of secret detention facilities and rendition, and strong suspicions remain that the United States has continued to render suspected terrorists through European territory and airspace.87 Upon taking office in 2009, the Obama administration ordered the closure of all U.S. secret detention facilities.88 In the same year a number of European states took steps to prevent the use of their territory/airspace for possible rendition flights.89 For example, in the UK—one of the states whose territory is alleged to have been used for rendition flights—proposals have been tabled in Parliament for the use of British territory and/or the involvement of British officials in extraordinary rendition to be explicitly outlawed.90 While these developments cannot be directly attributed to the TDIP and PACE inquiries, it may be argued that the inquiries contributed to the pressure on governments to make policy changes.91 Promoting Inquiries at the National Level The PACE and TDIP inquiries are widely claimed to have served an additional function that is unique to international inquiries: they encouraged national authorities to initiate their own investigations.92 Both inquiries made direct appeals to national governments and parliaments to undertake their own inquiries into alleged cases of rendition and secret detention on their territory.93 They not only implored national authorities to undertake such inquiries but also set out minimum standards for such investigations. For example, the PACE inquiry exhorted national inquiries to publicize fully their methods and results, and the TDIP inquiry demanded that these inquiries be independent and question the full range of relevant stakeholders.94 Since the publication of the TDIP and PACE inquiries’ reports, a raft of national judicial, parliamentary, and executive bodies in Europe and the United States have initiated inquiries into various aspects of rendition

European Parliament and Parliamentary Assembly Inquiries

285

and secret detention.95 Again, it is difficult to establish any direct connection between the work of these inquiries and the investigations that were set up in a number of European states. However, there is little doubt that the PACE and TDIP inquiries served to increase the pressure on national authorities to launch their own inquiries. Finally, it is noteworthy that the TDIP and PACE inquiries demonstrated the potential of international inquiries to promulgate findings that can serve as a foundation for subsequent national investigations. CONCLUSION This chapter has examined three inquiries undertaken by European parliamentary assemblies; two addressed the rendition and secret detention of suspected terrorists in Europe, and the third, an interception of communications system. These initiatives are part of a growing set of international inquiries into the activities of security sector institutions. It is evident that the inquiries discussed in this chapter were limited in their capacity to gather information and compile a factual record of the activities they examined. Equally, they were unable to hold national governments and officials to account or bring about tangible changes to policies and practices at the national and international levels. Yet, in spite of these limitations, the TDIP, PACE, and Echelon inquiries served to generate pan-European awareness of the issues they examined and played an important role in pressuring national authorities to initiate their own investigations. Given that international inquiries are likely to become an increasingly common feature of the security governance landscape, this latter function of international inquiries merits further academic attention. The preceding analysis has demonstrated that, in contrast to their national counterparts, international inquiries are uniquely placed to examine and report on activities that take place across a range of jurisdictions and involve the authorities of a number of states. As international cooperation between security sector institutions continues to grow exponentially, the need for international inquiries that can venture beyond the blinkered purview of national inquiries is only likely to increase. Nevertheless, international inquiries are unlikely to displace national inquiries as the primary mechanisms for the investigation of security sector activities. Indeed, on the basis of the inquiries examined in this chapter, it is clear that they are ill equipped for this role. The primary reason for this is that international inquiries do not generally have established accountability relationships with national authorities or international organizations and hence do not benefit from investigative powers or the cooperation of these authorities. As we have seen, this has implications for the traction of their findings and recommendations, which, in the absence of an accountability relationship, can be easily disregarded. In conclusion, international inquiries are an emerging phenomenon that are best viewed as mechanisms that can promote national

286

Commissions of Inquiry and National Security

inquiries, compliment their work, and collate findings from inquiries in a range of jurisdictions. International inquiries are not yet a viable alternative to national inquiries into the activities of security sector institutions. NOTES This analysis of the European Parliament and Parliamentary Assembly of the Council of Europe inquiries into illegal transfers and secret detentions draws extensively on in-depth interviews conducted by the author with seven members of the Temporary Committee on the Alleged Use of European Countries by the CIA for the Transport and Illegal Detention of Prisoners (TDIP) and three from the PACE inquiry in September (Brussels and Geneva) and October (Strasbourg) 2008. All information obtained from these interviews is referenced anonymously. The author would like to record his thanks to these individuals. 1. See, for example, United Nations International Independent Investigation Commission (UNIIIC), http://www.un.org/apps/news/docs.asp?Topic=Lebanon& Type=UNIIIC+Report (accessed April 24, 2010); Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, Alleged Secret Detentions and Unlawful Inter-State Transfers of Detainees Involving Council of Europe Member States, Doc. 10957 (Strasbourg: June 12, 2006) (hereafter cited as PACE First Report), and Secret Detentions and Illegal Transfers of Detainees Involving Council of Europe Member States: Second Report, Doc. 11302 rev (Strasbourg: June 11, 2007), p. 7 (hereafter cited as PACE Second Report); European Parliament, Report on the Existence of a Global System for the Interception of Private and Commercial Communications (ECHELON Interception System), A5-0264/2001 (Brussels/Strasbourg: July 11, 2001) (hereafter cited as Echelon Report); European Parliament, Report on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners, A6-0020/2007 (Brussels/Strasbourg: January 30, 2001) (hereafter cited as TDIP Final Report). 2. Notable exceptions include Thorsten Wetzling, “European Counterterrorism Intelligence Liaisons,” in PSI Handbook of Global Security and Intelligence: National Approaches, ed. Stuart Farson, Peter Gill, Mark Phythian, and Shlomo Shpiro (Westport, CT: Greenwood, 2008), pp. 498–529; Richard Aldrich, “Global Intelligence Co-Operation versus Accountability: New Facets to an Old Problem,” Intelligence and National Security 24, no.1 (2009): 26–56. Hans Born and Aidan Wills, “International Efforts to Narrow the Accountability Gap: The European Parliament and Parliamentary Assembly of the Council of Europe Inquiries into Illegal Transfers and Secret Detentions,” in International Intelligence Cooperation and Accountability, ed. Hans Born, Ian Leigh, and Aidan Wills (London: Routledge, 2010). 3. It should be noted that these initiatives were not labeled as inquiries by their respective institutions and did not constitute inquiries in the legal sense of the word; nevertheless, we shall follow other chapters in the book by adopting this term. 4. European Parliament, Scientific and Technology Options Assessment (STOA), Studies on the Development of Surveillance Technology and Risk of Abuse of Economic Information, 4 vols. (Luxembourg: October 1999), available at http://www.europarl. europa.eu/stoa/publications/studies/default_en.htm. 5. European Parliament, Resolution on the Presumed Use of European Countries for the Transportation and Illegal Detention of Prisoners by the CIA, December 15, 2005, P6_TA (2005)0529; Dana Priest, “CIA Holds Terror Suspects in Secret Prisons,” Washington Post, November 2, 2005. Interview with a member of the TDIP 1,

European Parliament and Parliamentary Assembly Inquiries

287

Geneva, August 26, 2008 (hereafter cited as Interview TDIP 1); Interview with a member of the TDIP 2, Brussels, September 23, 2008 (hereafter cited as Interview TDIP 2); PACE First Report, pp. 9–10. 6. Parliamentary Assembly of the Council of Europe, “Press Release: Alleged Secret CIA Detention Centres—René van der Linden Calls for Full Co-Operation with PACE Inquiry,” November 17, 2005; Interviews with members of PACE; Interview TDIP 1; Interview with a member of the TDIP 4, Brussels, September 23, 2008 (hereafter cited as Interview TDIP 4). 7. European Parliament, Resolution on the Presumed Use of European Countries; Interview with a member of the TDIP 5, Brussels, September 24, 2008 (hereafter cited as Interview TDIP 5). 8. European Parliament, Decision Setting Up a Temporary Committee on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners, P6_TA(2006)0012, January 18, 2006; Interviews TDIP 1, 2. 9. The European Parliament is the parliament of the European Union and is made up of directly elected members; at the time of the Echelon inquiry it consisted of 626 members from 15 states, and at the time of the TDIP inquiry the EP was made up of 732 members from 25 states. The Parliamentary Assembly of the Council of Europe is made up of nominated national members of parliament from the Council of Europe’s 47 member states. 10. For the Echelon inquiry see, European Parliament, Resolution Setting Up a Temporary Committee on the Echelon Interception System, B5-0593/2000/rev, July 5, 2000; for the TDIP inquiry see European Parliament, Decision Setting Up a Temporary Committee on the Alleged Use. 11. Richard Corbett, Francis Jacobs, and Michael Shackleton, The European Parliament, 6th ed. (London: John Harper Publishing, 2005), pp. 142–43, 295–96. 12. European Parliament, Rules of Procedure for the 6th Term of Parliament, Rule 175 (Brussels/Strasbourg: 2004); Echelon Report, pp. 22–23. 13. European Parliament, Resolution on the Presumed Use of European Countries, December 15, 2005; Echelon Report, pp. 22–23. 14. Decision of the European Parliament, the Council, and the Commission on the Detailed Provisions Governing the Exercise the European Parliament’s Right of Inquiry, April 19, 1995, Article 3(4). 15. According to a member of the inquiry interviewed for this research, the inquiry examined in this chapter was one of approximately 50 investigations being carried out contemporaneously by the LAHRC. Interview with a member of the PACE inquiry 2, Strasbourg, November 6, 2008 (hereafter cited as Interview PACE 2). 16. The inquiry’s human resources consisted of Marty, one special adviser, and two members of the LAHRC secretariat who worked on the inquiry on a part-time basis. The budget allocated to the inquiry has never been officially calculated. 17. Interviews PACE 1, 2, and Interview with a member of the PACE inquiry 3, Strasbourg, November 6, 2008 (hereafter cited as Interview PACE 3). 18. Interviews PACE 2, 3. 19. Parliamentary Assembly of the Council of Europe, Rules of Procedure, 44.1 (Strasbourg: January 2008); Parliamentary Assembly of the Council of Europe, Terms of Reference of Assembly Committees, sec. 2: Committee on Legal Affairs and Human Rights (AS/Jur), 1 and 2 (v) (Strasbourg: January 2008). 20. European Parliament, European Parliament Decision Setting Up a Temporary Committee on the ECHELON Interception System, B5-0593/2000, July 5, 2000, p. 1.

288

Commissions of Inquiry and National Security

21. Parliamentary Assembly of the Council of Europe, “Alleged Secret Detention Centres in Council of Europe Member States,” motion for resolution, November 23, 2005, Doc.10748, paras. 8 and 9. 22. PACE First Report, p. 11. 23. PACE Second Report, p. 7. 24. Statute of the Council of Europe, London, May 5, 1949; Committee of the Ministers of the Council of Europe, Action Plan, CM(2005)80, Warsaw, May 17, 2005. 25. PACE First Report, p. 11; PACE Second Report, pp. 7–8. 26. TDIP Final Report, p. 33; Echelon Report, p. 135; PACE First Report, p. 11; PACE Second Report, p. 9. 27. PACE Second Report, pp. 8–9; TDIP Final Report, p. 34. 28. TDIP Final Report, annex; see also Ben Russell, “Hoon ‘Unhelpful and Evasive’ about American Renditions Flights, Say MEPs,” The Independent, October 7, 2006; TDIP interviews. 29. Interview TDIP 5. 30. Interview PACE 2; PACE Second Report, pp. 8, 9, 12, 18–22. 31. Andrea Wright, “Fit for Purpose? Accountability Challenges and Paradoxes of Domestic Inquiries,” in International Intelligence Cooperation and Accountability (see note 2). 32. Echelon Report, pp. 150–51; TDIP Final Report, pp. 37–69. 33. Echelon Report, p. 23; Interview TDIP 7. 34. Interview TDIP 7. 35. Interviews PACE 2, 3. 36. Interviews TDIP 2, 4. 37. A notable example was Portuguese member of European Parliament Ana Maria Gomes, who conducted her own research at American bases in the Azores. She was able to uncover evidence that one particular base was used as a stop off for rendition flights. See Elaine Sciolino, “No Proof of C.I.A. Illegality, Portuguese Premier Says,” New York Times, February 13, 2007; and Interview TDIP 2. 38. Interviews PACE 1, 2, 3. 39. It is not known whether the Echelon inquiry also made use of these sources, but no such references are made in the documents produced by the inquiry. 40. Interview TDIP 7, Interviews PACE 2, 3. 41. Interviews PACE 1, 2. 42. Interview PACE 1. 43. The TDIP received information from approximately five whistleblowers from the intelligence community; information provided by these individuals is not referenced in the TDIP inquiry’s reports. Interviews TDIP 1, 7. 44. Interview TDIP 7. 45. Interview TDIP 5. 46. Interviews TDIP 1, 7. 47. Interviews TDIP 1, 7. 48. Angus Roxburgh, “EU Investigators ‘Snubbed’ in U.S.,” BBC News, Friday, May 11, 2001; Interview TDIP 1. 49. Interview TDIP 3. 50. Interviews PACE 1, 2; PACE Second Report, p. 8. 51. Aldrich, “Global Intelligence Co-Operation versus Accountability,” p. 48. 52. PACE First Report, pp. 11, 48. 53. Aldrich, “Global Intelligence Co-Operation versus Accountability,” p. 48.

European Parliament and Parliamentary Assembly Inquiries

289

54. Steve Wright, “The ECHELON Trail: An Illegal Vision,” Surveillance & Society 3, no. 2/3: 213. 55. European Parliament, Resolution on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners, P6_TA-PROV(2007)0032, February 14, 2007; European Parliament, Resolution on the Existence of a Global System for the Interception of Private and Commercial Communications (Echelon Interception System), A5-0264/2001, September 5, 2001. 56. See remarks of Echelon committee chairman Carlos Coelho, cited in Steve Kettmann, “Echelon Furor Ends in a Whimper,” Wired, March 7, 2001; Interview TDIP 3. It is noteworthy that only the Echelon inquiry gave committee members the opportunity to draft alternative opinions, which were annexed to the report adopted in committee. 57. Parliamentary Assembly of the Council of Europe, Resolution on Alleged Secret Detentions and Unlawful Inter-State Transfers of Detainees Involving Council of Europe Member States, Res. 1507(2006), June 27, 2006; Parliamentary Assembly of the Council of Europe, Resolution on Secret Detentions and Illegal Transfers of Detainees Involving Council of Europe Member States: Second Report, Res. 1562 (2007), July 27, 2007. 58. European Parliament, Resolution on the Existence of a Global System for the Interception, A-C and 26. 59. Silvia Borelli, “Rendition, Torture, and Intelligence Co-operation,” in International Intelligence Cooperation and Accountability (see note 2). 60. Parliamentary Assembly of the Council of Europe, Resolution on Secret Detentions and Illegal Transfers, para. 2; PACE Second Report, pp. 7, 10, 17–50. It should be noted that the Draft Resolution (para. 2) outlined in PACE’s Second Report expresses these findings in more certain terms, referring to “clear and detailed confirmation . . . that . . . detention centers operated by the CIA have existed for some years in the two countries (Romania and Poland)” and that Polish and Romanian officials had colluded in establishment of these facilities. 61. Steve Wright, “The ECHELON Trail,” p. 213. 62. Interview PACE 2; “Dirty Work and Clean Hands,” The Guardian, February 15, 2007. 63. See TDIP Committee record of working documents at http://www.eu roparl.europa.eu/comparl/tempcom/tdip/working_docs/default_en.htm (accessed March 3, 2010). 64. Interviews TDIP 2, 5, 7. 65. PACE First Report , p. 11; PACE Second Report, p. 48. 66. European Parliament, Resolution on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners, P6_TA(2009)0073, February 19, 2009. 67. Parliamentary Assembly of the Council of Europe, “Press Release: Dick Marty Slams European Governments for ‘Hypocrisy’ over Secret Detentions,” April 4, 2008; Interviews PACE 2, 3. 68. Interviews PACE 2, 3. 69. See, among others, Nicolas d’Ombrain, “Public Inquiries in Canada,” Canadian Public Administration 40, no.1 (March 1997): 86–107; Peter Gill, “Inquiring into Dirty Wars: A ‘Huge Smokescreen of Humbug’?” (paper presented at the International Studies Association Annual Conference, San Francisco, March 2008); Andrea Wright, “Fit for Purpose?”; Dominic Elliot and Martina McGuinness, “Public

290

Commissions of Inquiry and National Security

Inquiry: Panacea or Placebo,” Journal of Contingencies and Crisis Management 10, no.1 (March 2002): 14–16; Mark Bovens, “Analysing and Assessing Accountability: A Conceptual Framework,” European Law Journal 13, no. 4 ( July 2007): 447–68; Mark Bovens, Thomas Schillemans, and Paul ‘T Hart, “Does Public Accountability Work? An Assessment Tool,” Public Administration 86, no. 1 (2008): 225–42. 70. TDIP Final Report, p. 33. 71. European Parliament, Proceedings on the Plenary Debate on the Echelon Report, September 5, 2001, A5-0264/2001. 72. Interview TDIP 5, 2. 73. See, for example, Alex Duval Smith, “Senior EU Officials Accused of Covering up Secret CIA Prisons for Terror Suspects,” November 29, 2006; Interview TDIP 3; Steve Kettmann, “Echelon Furor Ends in a Whimper.” 74. See, for example, UN Human Rights Council, Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism, A/HRC/13/42, February 19, 2010; European Parliament, Resolution on the Alleged Use of European Countries by the CIA; Miguel Gonzales, “EE UU avisó a Aznar del paso por España de presos para Guantánamo,” El Pais, November 30, 2008. 75. Bovens, “Analysing and Assessing Accountability”; Bovens, Schillemans, and ‘T Hart, “Does Public Accountability Work?” 76. See, for example, Anton Buland, “The Bark Is in Its Bite: The TDIP and the European Parliament’s Voice in European Foreign Policy,” Bologna Center Journal for International Affairs, 2007. 77. Buland, “The Bark Is in Its Bite”; Interviews TDIP 5, 7. 78. Aldrich, “Global Intelligence Co-Operation versus Accountability,” p. 50. 79. Steve Wright, “The ECHELON Trail,” p. 210–13. 80. Mark Philp, “Delimiting Democratic Accountability,” Political Studies 57, no. 1 (March 2009): 30–35; Richard Mulgan, Holding Power to Account: Accountability in Modern Democracies (Basingstoke, UK: Palgrave MacMillan, 2003), pp. 10–33. 81. Robert D. Behn, Rethinking Democratic Accountability (Washington, DC: Brookings Institution Press, 2001); see also Mulgan, Holding Power to Account. 82. See European Parliament, Resolution on the Existence of a Global System for the Interception, paras. 1–43. 83. Cited in Buland, “The Bark Is in Its Bite.” 84. Kettmann, “Echelon Furor Ends in a Whimper.” 85. Amnesty International, State of Denial: Europe’s Role in Rendition and Secret Detention (London: AI, 2008), p. 28. Leigh Phillips, “EU Countries Obstructing Investigators into CIA Renditions, Report Says,” EUObserver.com, June 25, 2008. 86. Interview PACE 1; PACE Second Report, p. 43. 87. Interview TDIP 2; Mathias Vermeulen, “Don’t Ask, Don’t Tell: Renditions under the Obama Administration,” in Extraordinary Renditions and the Protection of Human Rights, ed. Manfred Nowak and Roland Schmidt (Vienna: Neuer Wissenschaftlicher Verlag, 2010), pp. 61–78. 88. Scott Shane, “Obama Orders Secret Prisons and Detention Camps Closed,” New York Times, January 22, 2009. 89. Ibid. 90. Richard Norton-Taylor, “Proposals to Outlaw Extraordinary Rendition in the UK Drawn Up,” The Guardian, November 5, 2009. 91. Hans Born and Aidan Wills, “International Efforts to Narrow the Accountability Gap: The European Parliament and Parliamentary Assembly of the Council

European Parliament and Parliamentary Assembly Inquiries

291

of Europe Inquiries into Illegal Transfers and Secret Detentions,” in International Intelligence Cooperation and Accountability (see note 2). 92. Silvia Borelli, “Rendition, Torture, and Intelligence Co-operation,” in International Intelligence Cooperation and Accountability (see note 2); Buland, “The Bark Is in Its Bite”; Born and Wills, “International Efforts”; Interview PACE 2. 93. TDIP Final Report; PACE First Report, p. 60, PACE Second Report, pp. 54–60; Parliamentary Assembly of the Council of Europe, Resolution on Secret Detentions and Illegal Transfers, p. 18. 94. TDIP Final Report, pp. 21–27; PACE Second Report, p. 56. 95. Claudia Hillebrand, “The CIA’s Extraordinary Rendition and Secret Detention Programme” (Clingendael Security Paper No. 9, Clingendael Institute, the Hague, April 1, 2009); Denise Bentele and Georgios Sotiriadis, “Pending Investigations and Court Cases,” in CIA—“Extraordinary Rendition” Flights, Torture, and Accountability—A European Approach (Berlin: European Center for Constitutional and Human Rights, 2008), pp. 28–101.

CHAPTER 15

The United Nations Iraq Oil-for-Food Inquiry Reid Morden

Henceforth, the most comprehensive coercive economic measures ever devised by the UN were tempered by the largest humanitarian relief operation in the UN’s history. —Peter van Walsum, Netherlands ambassador to the United Nations1 While many questions concerning Oil-for-Food remain unanswered, one conclusion has become abundantly clear: Kofi Annan should resign. . . . I have arrived at this conclusion because the most extensive fraud in the history of the U.N. occurred on his watch. —U.S. senator Norm Coleman2 Personally, I hope to God we never get another OFFP or anything approaching that kind of responsibility. It was tantamount to trying to oversee the entire import-export regime of a country of 24 million people—a tall order. —UN deputy secretary-general Louise Frechette3 I believe the time is ripe for a hard look at fundamental policy issues, and the structural changes that may be needed in order to strengthen them. . . . History will be a harsh judge: it will not forgive us if we let this moment pass. —UN secretary-general Kofi Annan4 People lie, and they lie all the time. —IIC investigator 5

Commissions of inquiry are initiated for a variety of reasons, including a genuine desire to get to the root of an issue, an equally genuine desire to

The United Nations Iraq Oil-for-Food Inquiry

293

deflect public interest in a controversial issue, or a judgment that public criticism on an issue demands a third-party review. Perhaps all three of these considerations figured in UN secretary-general Kofi Annan’s decision to launch an inquiry into the UN’s Iraq Oil-for-Food Programme (OFFP). However, the last cited was the most likely. For the thrust and rationale for the inquiry, one must take a quick look at the history and background of the OFFP. Broad sanctions on Iraq were imposed by Security Council Resolution 6616 in 1990 following the Iraqi invasion of Kuwait. The sanctions required UN member states to end all purchases from Iraq, including purchases of oil, and to cease exports of nonhumanitarian goods to Iraq. A committee of the Security Council, inevitably known as the 661 Committee, was set up to monitor the sanctions. Subsequently, reports accumulated of critical shortages of food and medicines in Iraq imposing severe hardship on large and vulnerable segments of the population. The UN itself sent two high-level missions to verify these reports. The missions, led by future Finnish president Marti Ahtisaari7 and Sadruddin Aga Khan, executive delegate to the UN secretary-general,8 confirmed the widespread adverse impact of the sanctions on parts of the Iraqi population, especially women and children. In response, as early as 1992, proposals were developed to permit oil exports, under carefully controlled circumstances, to finance the purchase of “humanitarian goods” (e.g., food and medicines). Ultimately these proposals were deemed not acceptable by the Iraqi regime on the somewhat dubious grounds that they represented an infringement of Iraq’s sovereignty. However, it must be acknowledged that the argument of sovereignty infringement was received with a degree of understanding by some members of the Security Council. Continued humanitarian concerns led the Security Council to try again in 1995, passing a new oil-for-food resolution. Again, Iraqi reaction was initially negative. This time the regime judged, with some justification, that, for a variety of reasons, support for sanctions was dropping. Matters then took a decidedly different turn with the defection of Saddam Hussein’s sonin-law, who brought with him documentation that indicated that Saddam’s weapons of mass destruction program was alive and well. With this defection, prospects nosedived for either lightening or removing sanctions, and Iraq agreed to negotiate a memorandum of understanding (MOU) with the United Nations. Actual negotiation of the document that would shape the OFFP was placed in the hands of then secretary-general Boutros Boutros Ghali. Many would argue that this MOU contained the seeds of much of what ultimately went wrong with the OFFP, as its provisions left the Iraqi authorities very substantial discretion. Most importantly, Iraq ultimately influenced the pricing of crude oil and made the choice of both purchasers of oil and sellers of humanitarian goods (later expanded to encompass spare parts for the petroleum industry).9 This fundamental flaw was equivalent

294

Commissions of Inquiry and National Security

to presenting the Iraq government with a license to manipulate the OFFP for its illicit financial benefit. In addition, the MOU made no provision for any evaluations of the functioning of the OFFP. The program design contemplated and maintained a number of verification procedures over both the oil exports and goods purchases. These were administered in large part by the UN contractors, the flawed selection of which is the subject of one of the Independent Inquiry Committee’s reports. The Security Council, mainly through its 661 Committee, maintained general and, as it turned out, largely ineffectual oversight. To the extent that the 661 Committee and its parent, the UN Security Council, had a focus, it was largely directed at ensuring that the OFFP did not inadvertently provide a vehicle for the purchase of military equipment or so-called “dual use” materials that might facilitate production of weapons of mass destruction. The absence of Iraqi weapons of mass destruction and fulfilling the basic food and medicine needs of the Iraqi people have been cited as indicative of the OFFP’s success. Originally designed to be a short-term response to humanitarian concerns, the OFFP, in fact, became a long-running, almost quasi-permanent UN program. However, as the OFFP continued, it became evident that both the oil exports and humanitarian imports under the program were accompanied by illicit activities (e.g., smuggling and kickbacks) that increasingly undermined the purposes of the program and eroded support for its maintenance. Persistent allegations of mismanagement and corruption within the UN itself prompted the secretary-general to appoint the Independent Inquiry Committee (the IIC) in April 2004. The IIC took on an enormous task conducting an impartial and intensive review of the administration and management of the OFFP. The sevenyear program, administered by thousands of employees of the UN and its related organizations, involved over $64 billion10 in transactions with parties in at least 88 countries. The IIC found pockets of, but not wholesale, corruption within the UN. It named over 2,000 companies that had made illicit payments to the Iraqi regime in order to do business under the OFFP. It uncovered deep and disturbing laxity in UN management and auditing practices and concrete examples of rapaciousness by agencies of the UN system that were assigned operational projects funded by the OFFP.11 THE LAW OF UNINTENDED CONSEQUENCES When Kofi Annan determined in the spring of 2004 that a third-party inquiry into the OFFP was necessary and approached Paul Volcker to head it, he could not have foreseen that the chain of events he was initiating would last for the better part of the next two years. The UN had commissioned inquiries in the past, including some of recent vintage. However, they were generally of limited duration and were carried out by UN staff who wrote the inquiry reports, no matter who was the titular head.

The United Nations Iraq Oil-for-Food Inquiry

295

For his part, Volcker was initially unsure whether he was ideally suited to the task, beyond being convinced that the UN had a “unique and potentially constructive role to play in world affairs.”12 However, he had earlier led both a UN advisory group on UN funding and the investigation into the Swiss holocaust accounts. Thus, when Annan persisted, Volcker acknowledged that he believed he had an instinctive grasp of the issues at play. Perhaps as important, he was quite prescient as to what would be required to conduct a credible and thorough review and made a series of points (and prerequisites) to the secretary-general before agreeing to his appointment. It is worthwhile recording these points in detail as they were central to the inquiry’s ability to carry out its eventual mandate. Volcker told Annan that a thorough investigation of the OFFP would demand the following: 1. Require a sizeable professional staff 2. Take at least a year (in fact, the inquiry consumed more than 18 months) 3. Be costly both in financial terms and in the intrusiveness to obtain official records and communications, including Annan’s own 4. Be successful only with the reality and perception of absolute independence in staffing and investigative approaches 5. Require that the Inquiry Committee’s conclusions and analyses be made public in their entirety 6. Require adequate financing to be assured from the beginning13

In addition, Volcker insisted that the legislative basis for the inquiry not rest solely on the assurances and authority of the secretary-general but that the Security Council formally indicate its support for an independent inquiry by passing a resolution which, inter alia, called on all member states to cooperate fully with the inquiry.14 THE INDEPENDENT INQUIRY COMMITTEE AND ITS STAFF The secretary-general had decided to establish the IIC as a three-member panel with Volcker as chair. As sometimes happens in inquiries, those forming the panel or governing committee do not necessarily know each other, except possibly by reputation. In this case, Volcker knew of Justice Richard Goldstone of South Africa (formerly of South Africa’s highest court) but not at all Mark Pieth, an expert in corporate bribery from the law faculty at the University of Basle. In the end, each member of the committee brought a valuable perspective to the work of the IIC. This guaranteed vigorous debate on the substance of the work program, the analyses brought forward by the investigative or forensic teams, and the conclusions and findings to be confirmed and published in the five substantive reports issued by the IIC over the course of its work.

296

Commissions of Inquiry and National Security

The UN was anxious both that the IIC hire staff as quickly as possible and that the staff reflect the multinational nature of the organization. Volcker and the other members of the IIC were in agreement. The first and vital step was the recruitment of the senior legal and investigative staff as it was generally recognized that the quality and capabilities of these individuals would make or break the effectiveness of the inquiry. There were several possibilities, but the IIC was fortunate in recruiting a trio of experienced lawyers with investigative backgrounds, all of who had spent substantial assignments with U.S. Attorneys’ offices in various jurisdictions. With the chief investigators and counsel to the committee in place, the initial slow pace of recruitment sped up. The chief investigators were given the rather daunting task of sifting through some hundreds of expressions of interest in working for the IIC from all parts of the globe. As executive director, the author asked them to keep in mind the multinational nature of the UN but stressed that priority must be given to professional competence and integrity. To some extent these strictures militated against candidates from countries where corruption inside government entities was amply demonstrated. There were also a considerable number of candidates whose very seniority detracted from their candidacy as the search at this stage of recruitment was first and foremost for hands-on investigators, not senior supervisors. At its peak, the IIC comprised well over 80 staff, drawn from 28 countries. It is also important to record that, with the exception of three or four exclusively administrative staff members on loan from the UN, none of the IIC were employees of the UN. Matters fell into place more quickly on the forensic accounting side. Under the guidance of the chief forensic officer, Frank Hydoski (who had worked with Volcker on the Swiss investigation), the IIC’s forensic requirements were outsourced on an as-needed basis. Extensive use was made throughout of Deloitte and Touche, although Hydoski called on smaller forensic firms with particular expertise, as needed. In fact, it was personnel from one of these smaller firms who detected and documented the overcharging of the OFFP by a variety of operational UN bodies to the amount of about $50 million. TERMS OF REFERENCE The IIC issued a status report in August 2004 that featured the following paragraph from Volcker’s letter to the secretary-general of April 19, 2004, accepting appointment to the IIC: Each of us well understands that serious charges so widely aired could threaten the effectiveness of the UN in contributing to a constructive resolution of the Iraqi situation and in other areas. It is the need for prompt, convincing, and truthful responses to these charges which leads to our willingness to respond positively to your invitation to serve on the Committee.

The United Nations Iraq Oil-for-Food Inquiry

297

The terms and conditions for the work of the Independent Inquiry Committee were set forth in the March 26, 2004, letter from the secretary-general to the president of the Security Council as understood by the chairman of the committee in his aforementioned letter to the secretary-general. In essence, the central issues to be addressed by the IIC were the following: 1. Whether there was mismanagement and maladministration in the execution of the OFFP by the UN, its personnel, and its agents 2. Whether any UN officials, personnel, or agents engaged in any illicit or corrupt activities in connection with the OFFP 3. Whether contractors of the UN, purchasers of oil, or providers of humanitarian aid engaged in any illicit or corrupt activities in connection with the OFFP

With these issues in mind, the committee concluded its first report with the following comment: “Our priority must be on conduct within the UN and its various organs, including allegations of corruption.”15

WORKING ARRANGEMENTS Offices At the outset, the committee envisaged conducting the inquiry from a central office in New York City and regional locations in Paris and Baghdad. The rationale for Paris lay in the volume of business done under the OFFP by corporations headquartered in western, central, and eastern Europe and that it might be more efficient to review the OFFP involvement of those companies from a European base with good external travel capacity. However, by the end of 2004, it had become clear that, partly due to the interlocking nature of many of the investigative strands, it made more sense to maintain overall control of work from New York while utilizing a small office in Paris as a liaison hub. As for Baghdad, security conditions were sufficiently difficult throughout the inquiry that a permanent office there was simply not practical, although investigative and forensic staff worked in Baghdad and other regions of Iraq for extended periods.

Investigative Teams The IIC organized its line staff into a number of investigation teams to focus on discrete aspects of the inquiry. Each investigation team included a balanced complement of legal, investigative, accounting, and technology professionals with a common background in complex fraud and corruption investigations involving multiple jurisdictions.

298

Commissions of Inquiry and National Security

Investigative Activities The IIC, throughout the inquiry, conducted its investigative pursuits in New York, Iraq, Europe, and Asia for the purpose of securing physical evidence, identifying witnesses, and conducting witness interviews. The governments of a number of UN member states (including France, India, Italy, and the United Kingdom) and ultimately the United States cooperated closely with the IIC throughout the inquiry. Some, like Russia, whose companies had considerable involvement with OFFP, did not. Witness Interviews From the outset the inquiry decided to pursue its work of gathering evidence by way of document analysis and witness interview, rather than by way of public or in camera hearings. It also quickly posted on its Web site16 the investigative guidelines under which IIC investigators would operate. This Web site remains active and can be consulted by interested parties. To that end, IIC staff identified and interviewed individuals with responsibility for establishing, operating, and managing various aspects of the OFFP on behalf of the United Nations and its related agencies. It also interviewed contractors involved in the OFFP as well as national government representatives, including personnel involved at member state missions to the UN. In the final analysis the IIC interviewed several hundred witnesses in locations across the globe. In most cases, witnesses and entities contacted by the IIC cooperated with the inquiry by producing documents and making witnesses available for interviews. Panel Hearings However, once conclusions and findings were agreed among the committee, those named were given an opportunity to be heard by a full or partial panel of the committee with respect to comments made concerning them or companies or organizations they represented. Securing and Review of Records The IIC carried out a methodical identification, securing, and screening of all UN OFFP documents and financial records, many of which were located outside of the United Nations headquarters in New York. In addition, records of United Nations contractors, third-party contractors, banking institutions involved with the OFFP, and documents held by the interim government of Iraq were also examined, sometimes in tandem with other ongoing investigations. Well over 10,000 boxes of documents, containing upwards of 15 million pages of records, were identified, and substantial numbers were screened and reviewed.

The United Nations Iraq Oil-for-Food Inquiry

299

Data Storage and Retrieval As the IIC began to screen and electronically scan materials from these thousands of boxes of documents, the scanned documents were placed in a database available to the committee and its staff. Additionally, the IIC deployed a sophisticated relational database system to facilitate the detailed analysis of electronic records, contracts, accounting records, banking relationships, vendor records, and records from the former government of Iraq. Near the end of the inquiry’s work, there was a protracted negotiation between the IIC and UN legal staff over archival and access rules for IIC documentation. With some difficulty, the IIC was able to reach an agreement over UN archival practices for IIC documents that would protect the confidentiality of witnesses and material, which was crucial to the successful outcome of the IIC investigation. Cooperation with the IIC By directive from the secretary-general, members of the UN secretariat were ordered to cooperate with the IIC and render to it all documents IIC investigators requested. For the most part they complied. The committee also entered into a memorandum of understanding for the sharing of information from the Supreme Audit Board of Iraq and the Coalition Provisional Authority for Iraq. That understanding was reaffirmed with the successor Iraqi government. The IIC also reached understandings with other entities that expressed their willingness to cooperate with the committee’s inquiry. Cooperation with Other Inquiries The IIC met with representatives from a number of national governmental investigative authorities concerned about conduct that may have occurred within their countries. The committee cooperated with these additional inquiries to the extent consistent with maintaining the integrity of the committee’s own investigation. To the extent that third-party contractors of the United Nations had been served with lawful subpoenas for documents that were otherwise subject to confidentiality restrictions in the contracts between the contractors and the United Nations, the committee anticipated that contractors would comply with such subpoena requests.

THE UNITED NATIONS IN THE OIL-FOR-FOOD SWAMP Around the world, opinions vary with respect to the UN and its place in the international firmament. For many countries, like Canada, acceptance

300

Commissions of Inquiry and National Security

of and support for the UN are long-standing and generally shared by governments and their peoples alike. Others are less enthusiastic. However, probably nowhere are differing views about the UN more passionately held and opinions more polarized than in the United States. As the OFFP inquiry began, the loudest voices belonged to the organization’s critics, largely the political right and its think tanks and media surrogates. For many among them, the UN was corrupt from top to bottom, and any inquiry outcome that amounted to less than wholesale conviction of the institution and its leadership would be a whitewash. While the Bush White House kept a discreet distance from the work of the inquiry, the Republican-controlled Congress was less reticent. At one point during the inquiry, some five committees of the House and Senate had the oil-for-food issue on their agendas and held hearings on the matter. This congressional activity inevitably had some degree of focus on the work of the inquiry, and congressional committees were extremely anxious to have inquiry personnel, especially Chairman Volcker, testify before them. This posed an immediate set of concerns within the inquiry, both of principle and, perhaps equally important, of perception. On the question of principle, as appointees of the United Nations, members of the inquiry were immune from any requirement to appear before a tribunal in any of the member states, including ultimate immunity from the subpoena powers of the U.S. Congress. Equally, any gesture in the direction of the U.S. government would have provoked charges of bias from other member states, especially given Volcker’s nationality and that of a substantial portion of the IIC staff. Volcker nevertheless saw clearly that outright refusal to Congress would simply increase the tensions between the inquiry and the U.S. government, which could have a negative impact on the work of the inquiry as it drilled down into the problems of the OFFP. He therefore indicated that, while acting for the UN, he would not formally testify before Congress or a government body of any member state but would nevertheless be prepared to brief congressional committees or the government entities of any member state, informally and not under oath. Ultimately this proved acceptable to Congress, and Volcker traveled to Washington on a handful of occasions to talk to different committees on this basis. In fact, Volcker’s appearances in Washington proved a useful conduit by which he was able to hammer home the thoroughness with which the inquiry was proceeding, while at the same time disabusing congressional members, particularly Republicans, of some of the myths widely circulating. The General Accountability Office also pursued a separate investigation into the possible improprieties of the OFFP. Episodically, the office of the U.S. Attorney for the Southern District of New York would evince interest and ultimately would arrest and sometimes try entities or individuals named or referenced by the inquiry.

The United Nations Iraq Oil-for-Food Inquiry

301

COMMUNICATION AND TRANSPARENCY A central condition for Volcker’s agreement to chair the inquiry was the assurance he sought and received from Kofi Annan that the reports of the IIC would be made public in toto, with no editorial or other intervention from the UN. Proceeding thus was at variance with UN inquiries conducted from time to time in the past. In those cases, reports were received by the secretary-general and then subject to editing and refinement by UN officials, with the final version often appearing after considerable delay. In that same context, Volcker also established the practice of presenting each status or interim report to the public through the media by way of press conferences that would be scheduled as soon as possible following the formal handover of each report to the secretary-general. Those reports, plus other germane material (e.g., investigative guidelines, IIC terms of reference, and committee bios) were also immediately posted on the IIC’s Web site. However controversial their subject matter, many inquiries can pursue their work without commenting to the media except when presenting their final reports. Those that proceed by way of public hearings can usually leave a day’s testimony to speak for itself or to witnesses who may choose to meet with the media after testimony. Not so with the IIC. Given the degree of sustained media (largely U.S.) interest in the IIC’s work and the decision of the committee not to proceed by way of public hearings, it was clear that some day-to-day interaction with the press would be necessary and that the IIC needed a professional capability to respond to those pressures. Ultimately, the IIC settled on outsourcing this requirement using an established firm based in New York City, which fielded media queries, arranged press conferences and interviews, and provided overall communications advice. Generally speaking, the writer, as IIC executive director, responded to most day-to-day queries that were not otherwise dealt with by the communications advisor.

THE ALMIGHTY SUBPOENA Americans have a love/hate relationship with the subpoena power. Few would welcome receiving one, but many see it as a symbol of effectiveness for the entity wielding the subpoena power. Critics were quick to categorize the IIC as a paper tiger because, as a UN body, it did not dispose of the subpoena. Those same critics conveniently overlooked the fact that, inside the UN, the secretary-general had instructed all employees to cooperate with the inquiry and to turn over all materials requested to the IIC. On the outside, most of the individuals and entities of interest to the inquiry were safely lodged outside the United States and were therefore beyond the reach of a U.S.-based subpoena in any case.

302

Commissions of Inquiry and National Security

CONCLUSIONS, FINDINGS, AND RECOMMENDATIONS The IIC issued its first interim report in January 2005 and its final report in October of that year. Representing work that had commenced in April 2004, these reports reflect the most thorough, most intrusive examination of the UN and one of its largest programs. They run to well over 2,000 pages, and the findings are dramatic. They touch on the probity, effectiveness, and competence of the UN secretariat, from top to bottom. Space does not permit a comprehensive retelling of the inquiry saga here. The IIC’s reports speak for themselves in considerable detail. However, the reader can also refer to Good Intentions Corrupted, a carefully researched and crafted book written by two of the IIC’s most senior investigators.17 Suffice to say that the work of the inquiry prompted further national commissions of inquiry in such countries as Australia and India. In at least one country (India), ministerial heads rolled. Prosecutors in several jurisdictions followed up the results of the IIC inquiry, launching prosecutions against individuals or corporations that had made illicit payments or otherwise acted corruptly in doing business with the OFFP. More generally, from its earliest days, the IIC believed it also had a duty to validate the Ahtisaari and Sadruddin Aga Khan missions and to make a judgment whether the program had served the purposes for which it had been established—in other words, the alleviation of the humanitarian hardships in an Iraq under sanction. To this end, the IIC established an international working group comprised of experts in the fields of health and nutrition that examined the OFFP in depth and reported its conclusions in September 2005.18 Although critical of many aspects of the OFFP, the working group concluded that its operations had substantially had a positive impact on levels of nutrition and undoubtedly had saved many thousands of lives. Largely through the leeway negotiated in the MOU with the UN by Saddam Hussein to select buyers and sellers in the OFFP, its operations were manipulated and corrupted from the start. Resolution 986 allowed Iraq to choose its oil buyers. For example, at the commencement of each 180-day phase of the program, Iraq developed a list of “allocations” identifying companies to whom it would be willing to sell its oil. Saddam Hussein personally reviewed who would receive oil, in conjunction with his Command Council, which included Vice President Ramadan, Deputy Prime Minister Aziz, and Oil Minister Rashid. For the initial three phases of the OFFP, the Command Council gave priority to internationally recognized oil “majors” and to oil contractors from Russia, France, and China. Why? Because these three countries were permanent members of the Security Council, and the Iraqi regime believed them to be more favorably inclined than others toward lifting the sanctions against Iraq. In later phases, the Command Council began to increase the

The United Nations Iraq Oil-for-Food Inquiry

303

number of special oil allocations for the benefit of particular individuals or entities that were perceived to support or be politically favorable to Iraq. As time went on, Iraq reassessed the balance of its buyer/purchaser list and moved away from political considerations toward financial benefit. The demands for kickbacks, thinly disguised in various forms, would soon follow. Among the first tasks of the secretariat at the inception of the OFFP was the hiring of the program’s three prime contractors—a bank to manage the escrow account, an inspection company to inspect the oil leaving Iraq, and an inspection company to inspect the goods arriving in Iraq under the program. Between June and August of 1996, these three contractors were chosen by processes that were the focus of the IIC’s first interim report. In all three of the initial contract awards, the evidence amply demonstrates a tainted procurement process. In 1996, there were real pressures to get the program started and to alleviate political sensitivities, especially sharp differences on the sanctions regime itself among the five permanent members of the Security Council (P5). But in the end the prescribed rules and regulations for procurement were overridden, significantly influenced by essentially political considerations. Among the inspection companies in the bidding, a Swiss company, Cotecna, opened the door on the involvement of one member of Kofi Annan’s family, his son, Kojo. Originally losing the initial bidding round in 1996, Cotecna was successful in 1998 when Kojo was still in receipt of payments from Cotecna. The secretary-general was aware of Kojo’s involvement with the company. There are two points of significance in the IIC’s findings on this issue, which predictably was portrayed by various media as demonstrating the corrupt nature of the UN and its leadership. First, Annan did not interfere in the 1998 bidding process, and there was not sufficient evidence to find that he knew that Cotecna was bidding for the contract in 1998. However, once Annan knew that Kojo was still employed by Cotecna, and that possibly Cotecna should have been disqualified from bidding, the IIC found that he acted inadequately in establishing the facts. In what is a generally unhappy story, a small ray of light is that the IIC did not find wholesale corruption within the UN secretariat or that the secretariat was operating in a sea of corruption. At the same time, those found to have acted corruptly were anything but insignificant players as they included the head of the program, Benon Sevan, and a key procurement officer, Alexei Yakovlev. The IIC also identifies in stark language that the member states, and particularly members of the Security Council, failed in their oversight of the program. The reports also lay bare the slurry of corruption engendered by the Iraqi regime’s manipulation of the program but also how at least 2,200 companies of the roughly 4,500 that did business with the program at one time or another were prepared to pay the kickbacks required by the

304

Commissions of Inquiry and National Security

Iraqis to remain as sellers and buyers of good standing on Saddam’s lists of suppliers of humanitarian goods and buyers of Iraq’s oil. As important were the IIC’s conclusions and recommendations directly aimed at the reforms needed to maintain the UN as, in Volcker’s words, “capable of commanding and maintaining the support of its member states and the public at large.”19 To quote the IIC’s report itself: Broadly, the Committee’s conclusions address the adequacy of political oversight and direction, the capacity of the Secretariat to administer its responsibilities under the Programme, the United Nations’ ability to provide financial oversight and control to the Programme, and the question of persuading the entities in the UN’s highly decentralized system to work effectively and efficiently together in an enterprise of this complexity and size. The Committee’s conclusions and recommendations are generally consonant with recommendations by others who have urged and are urging early action on UN reform. However, the Committee cannot help but note that many of these recommendations, some of which are both detailed and holistic, have in large measure lain fallow for long periods of time, some for over a decade.20

The IIC report made the point that there seemed to be a chronic aversion to responsibility within the secretariat and that the structure needed strengthening at the top. Although the secretary-general is formally the institution’s chief administrative officer, in fact he has traditionally been selected as the global diplomat-in-chief, with managerial or administrative skills running a distant second. This fact was partially recognized through the creation of the position of deputy secretary-general in 1998. However, the IIC recommended that the role of a chief operating officer should go further and its responsibilities be made more explicit. Others, from other perspectives, have observed many of the same problems. In commenting on how far the UN has fallen from the ideals at its inception, James Traub says the following: With so little actually to do, and thus to be accountable for, the UN had become a giant paper-processing factory, a stultifying bureaucracy where, save in uppermost reaches, sensible people kept their heads down. Its culture was overwhelmingly risk-averse, and politically hypersensitive.21

The IIC was also most concerned over the lack of adequate controls and audits. From the point of view of straightforward internal audits, it was clear that audit coverage was inadequate. Underfunded and tardy, the internal audit system started late, did not probe deeply or broadly enough, seemed unable to focus on critical areas, and was inadequately resourced to ensure compliance and implementation of what audit results were obtained. Matters were no better in areas of coordination across the UN system, so badly needed in managing this immense, complex multi-agency program. For all intents and purposes, there was no open sharing across agencies.

The United Nations Iraq Oil-for-Food Inquiry

305

That meant no shared planning and risk assessments both between internal and external auditors, no sharing of Iraq-based staff, and thus no overall view and assessment of the complete results of OFFP oversight, lessons learned, and so forth—either internal or external. Guarding highly prized independence and turf, UN agencies made it impossible for horizontal audits (e.g., audits of all purchasing units in all Iraq-based agencies) to be performed. As a result, accountability suffered. Oversight recommendations are often not addressed. There was no independent evaluation and monitoring of unbudgeted activities. Overall (cross-system) financial statements for OFFP were not prepared and audited. There was extensive noncompliance with polices and procedures, and managements were not required to certify that the internal control structure of their agency/program was adequate. There was little discipline to ensure the inclusion of best practices. For example, the program lacked proper use of an independent audit/oversight committee. There were unsatisfactory risk assessments—by both internal and external auditors. There was no independent review of external auditors’ capabilities and performance, no whistleblower protection policy, no sanctions for noncooperation, a lack of confidentiality, and poor disciplinary procedures. One key outcome of these inadequacies was an external audit clean opinion on defective financial statements that failed to find massive pricing fraud. In light of these findings, the IIC made a number of important recommendations that, while presented in the context of the Oil-for-Food Programme, could be applied to the UN system as a whole. Recommendations addressed the aforementioned areas of concern, but the most important was undoubtedly that to create an independent oversight board for the UN. The oversight board would have a majority of independent members. It would assume functional responsibility for all independent audit, investigation, and evaluation activities, both internal and external, across the United Nations system. It would oversee the full implementation of risk-based planning and the full coordination of planning, resource allocation, and audit follow-up across all external and internal oversight units. The board would ensure implementation of best practices, specifically with regard to creating the guidance for management to certify on the internal control structure of their organizations and reviewing the performance of certification to detail oversight activity. It would also implement a framework for assessing findings and recommendations and bring significant oversight issues to the attention of the secretary-general/agency directorgenerals and the General Assembly/agency governing bodies. Another important task for the board would be to ensure efficient use of resources to the maximum benefit of the entire UN system; ensure that necessary high-level specialized skills, such as IT and investigations, were available across the UN system; and establish funding standards and proper staffing

306

Commissions of Inquiry and National Security

levels. These governance recommendations, while common in national bureaucracies and the corporate world, have nevertheless been seen as quite revolutionary within the UN and have therefore encountered considerable resistance. The IIC did not believe that its mandate extended to an evaluation of the Iraq sanctions per se. They were also cognizant that the issue of sanctions generally was dealt with in some detail in the report of the High Level Panel, which Secretary-General Annan created toward the end of 2003.22 In it, the panel revalidates sanctions and calls them “a necessary middle ground between war and words when nations, individuals, and rebel groups violate international norms and where failure to respond would weaken those norms, embolden other transgressors or be interpreted as consent.”23 It is perhaps fitting to end this account of the investigation conducted by the IIC on the subject of sanctions, which, after all, gave rise to the OFPP. Scholars David Cortright and George Lopez have written extensively on sanctions. One of their judgments follows: In the 1930’s, the League of Nations, faced with Japanese aggression in Manchuria and Italian aggression in Ethiopia, chose not to employ the power it possessed to impose sanctions against these blatant violations of the League’s charter. This decision emasculated the League and led to increasing cynicism and declining participation by member states. Without being overly dramatic about the tenor of our times . . . the very fate of the UN as an effective global organization may hinge on its ability to use sanctions for peace and security.24

NOTES 1. Peter Van Walsum, “The Iraq Sanctions Committee,” in The United Nations Security Council from the Cold War to the 21st Century, ed. David Malone (Boulder, CO: Lynne Rienner, 2002), p. 182. Netherlands ambassador Van Walsum chaired the 661 Committee from 2000–2002. 2. Senator Norm Coleman, “Press Release, Office of Sen. Coleman, December 1, 2004,” December 1, 2004. Senator Coleman was then chair of the U.S. Senate Permanent Subcommittee on Investigations and a member of the Senate Foreign Relations Committee. 3. UN, Deputy Secretary-General Press Conference, February 15, 2005. 4. Secretary-General Kofi Annan, Statement to the United Nations General Assembly, September 23, 2003. 5. Comment by IIC investigator to author, April 15, 2005. 6. UN, Security Council Resolution 661, August 6, 1990, http://daccess-dds-ny. un.org/doc/RESOLUTION/GEN/NR0/575/11/IMG/NR057511.pdf?Open Element. 7. UN, Report of the Secretary-General on Humanitarian Needs in Kuwait and Iraq in Immediate Post-Crisis Environment, March 20, 1991, http://www.un.org/Depts/ oip/background/reports/s22366.pdf.

The United Nations Iraq Oil-for-Food Inquiry

307

8. UN Inter-Agency Humanitarian Programme for Iraq, Report to the SecretaryGeneral, June 15, 1991. 9. UN, Security Council Resolution 986, April 14, 1995, http://daccess-dds-ny. un.org/doc/UNDOC/GEN/N95/109/88/PDF/N9510988.pdf?OpenElement. 10. All dollar amounts are in U.S. dollars. 11. Unless otherwise noted, the facts set forth are drawn from IIC, The Reports of the Independent Inquiry Committee, vols. 1–5, 2004–2005, and the report of an Independent Working Group established by the Independent Inquiry Committee titled The Impact of the Oil-for-Food Programme on the Iraqi People, September 7, 2005. Many of the various reports of the IIC may be found at http://www.iic-offp.org/ documents.htm. 12. See Paul Volker, “Introduction,” in Good Intentions Corrupted: The Oil for Food Scandal and the Threat to the U.N., ed. Jeffrey A. Meyer and Mark G. Califano (Piscataway, NJ: PublicAffairs, Gorgias Press edition, 2006), p. xiv. 13. Ibid. 14. UN, Security Council Resolution 1538, April 21, 2004, http://daccess-dds-ny. un.org/doc/UNDOC/GEN/N04/317/33/PDF/N0431733.pdf?OpenElement. 15. IIC, Status Report, August 9, 2004. 16. Independent Inquiry Committee into the United Nations Oil-for-Food Programme, http://www.iic-offp.org. 17. Jeffrey A. Meyer and Mark G. Califano (eds.), Good Intentions Corrupted: The Oil for Food Scandal and the Threat to the U.N. (Piscataway, NJ: PublicAffairs, Gorgias Press edition, 2006). 18. IIC, The Impact of the Oil-for-Food Programme on the Iraqi People (report of an Independent Working Group established by the IIC), September 7, 2005. 19. “Kofi Annan: ‘Hell no,’ he won’t quit,” MSNBC, March 29, 2005, http:// www.msnbc.msn.com/id/7316534/22027217#slice-2. 20. IIC, The United Nation’s Management of the Oil-for-Food Programme, vol. 1, ch. 1, p. 60, September 7, 2005. 21. James Traub, The Best Intentions: Kofi Annan and the UN in the Era of American World Power (New York: Farrar, Straus, and Giroux, 2006), p. 31. 22. UN, “A More Secure World: Our Shared Responsibility” (report of the secretary-general’s High Level Panel on Threats, Challenges, and Change), 2004, http://www2.ohchr.org/english/bodies/hrcouncil/docs/gaA.59.565_En.pdf. 23. Ibid., para. 178. 24. David Cortright, George A. Lopez, and Linda Gerber, Sanctions and the Search for Security: Challenges to UN Action (Boulder, CO: Lynne Rienner, 2002), p. 211.

CHAPTER 16

Inside a National Security Inquiry: The Aspin-Brown Commission at Work Loch K. Johnson

In late 1994, Congress established the Commission on the Roles and Capabilities of the United States Intelligence Community, known less formally at its beginning stages as the Aspin Commission, after its first chair, Les Aspin, a former Democratic member of the U.S. House of Representatives from Wisconsin and the first secretary of defense in the Clinton administration. The impetus for the inquiry was fourfold: a concern about how Aldrich H. Ames had been able to spy for the Russians from inside the CIA for over a decade before being caught in 1994; the intelligence failures in Somalia that had contributed to the death of 18 American soldiers in 1993; a sense that the U.S. intelligence agencies were inadequately adapting to the post–Cold War world; and, finally, worry among some lawmakers that morale at the CIA had plummeted because of the Ames setback and needed an expression of public support that perhaps a commission could provide. The Aspin Commission was a hybrid panel, with President Bill Clinton selecting nine of the members and the leaders of Congress selecting eight (see Table 16.1 for the membership roster). A former director of central intelligence (DCI) has referred to the commission as “the largest and most inclusive review of the Intelligence Community [America’s 16 federal espionage agencies] since 1975 [when the Church Committee in the Senate investigated a domestic spy scandal].”1 In May of 1995, in the midst of the inquiry, Chairman Aspin died of heart failure. Two months later, he was replaced by another secretary of defense, Harold Brown, formerly of the Carter administration. Both men were able leaders, and, by August of 1995, the commission had come to the point in its probe where it was time to prepare a final report. I had begun my service

Inside a National Security Inquiry

309

Table 16.1 Members of the Original Aspin Commission, 1994* Presidential Appointees

Congressional Appointees

Les Aspin, chair (D, Wisconsin, politician)

Tony Coelho (D, California, politician)

Warren B. Rudman, vice chair (R, New Hampshire, politician)

David H. Dewhusrt (R, Texas, businessman)

Lew Allen, Jr. (NSA intelligence professional)

Norman D. Dicks (D, Washington, politician)

Zoë Baird (D, Connecticut, businesswoman)

J. James Exon (D, Nebraska, politician)

Ann Z. Caracristi (NSA intelligence professional)

Wyche Fowler (D, Georgia, politician)

Stephen Friedman (R, New York, businessman)

Porter J. Goss (R, Florida, politician)

Anthony S. Harrington (D, Maryland, businessman)

Robert E. Pursley (Air Force military professional)

Robert J. Hermann (NSA intelligence professional)

John Warner (R, Virginia, politician)

Paul D. Wolfowitz (R, defense and foreign affairs expert) *Chairman Aspin died in May of 1995 and was replaced by Harold Brown in July.

on the commission as Aspin’s special assistant (having served as his aide on the House Permanent Select Committee on Intelligence in Congress many years earlier); I remained on the panel as a member of the staff after his passing. Based on this experience, the purpose of this chapter is to provide a glimpse into the internal dynamics of a national security commission.2 Every few days in August of 1995, the Aspin-Brown Commission staff would receive from its staff director, L. Britt Snider, former counsel for the Senate Select Committee on Intelligence, an update on plans for a commission retreat that would be pivotal in determining what topics and conclusions the panel’s final report would emphasize. Snider had located a suitable venue for the sessions at the Xerox Document University Training and Conference Center in Leesburg, a modern office building located 12 miles from Dulles International Airport in the Virginia countryside. The dates for the conference would be September 14, 15, and 16, a Thursday through Saturday. “Casual dress is suggested,” advised a staff memo.

310

Commissions of Inquiry and National Security

At a staff meeting on August 28 in the New Executive Office Building (NEOB, across the street from the White House, where the commission had its staff offices and held its meetings), we gathered to discuss the subjects most likely to come up among the commissioners during the retreat. Frequently, members on a commission are attracted to whatever is in the morning headlines. The subject of economic intelligence had been given wide coverage at the time, stimulated by a peso crisis in Mexico that threatened to have a ripple effect on the U.S. economy. As a result of all the media attention to this topic, commissioners were likely to bring up that issue, we guessed. “And covert action,” predicted one of the staffers, which drew a rhetorical plea from another: “Is there any way we can talk about covert action when Senator Fowler isn’t present?” Wyche Fowler, a commissioner and former Democratic senator from Georgia, had alienated some staff aides because of his outspoken views against paramilitary operations carried out by the CIA (known as “the Agency” by insiders). A number of staffers found Fowler’s criticism of covert action hard to take; they saw merit in this secret approach to foreign policy, and he most assuredly did not. “It’s a dirty diaper pail,” Fowler said to me in a low voice after one of our commission discussions on the topic. He had a refined sense of ethics that recoiled from the “dirty tricks” that were a specialty of the CIA’s directorate of operations (DO)—almost always carried out at the insistence of various presidents over the years, it should be noted, not by the DO in a vacuum. Some on the staff had begun to refer to my fellow Georgian as “Reverend Fowler.” A few of us, though, were glad he was raising important ethical questions, which happens all too infrequently in the closed-door meetings of Washington. On the eve of the retreat (we had convened for an early one in the spring), our staff director met with Chairman Harold Brown and Vice Chairman Warren Rudman, a former Republican senator from Maine. The commission’s leaders told Snider that no votes would be taken at Leesburg; the purpose was to discuss the issues and “see where commissioners were coming from at this juncture.” The staff realized we were unlikely to gain a consensus on every issue, but the sessions with the commissioners would give us at least a sense of where each member stood, or so we hoped. Most of the staff stayed hunched over their word processors, loaned to us by the CIA. (I sometimes wondered if the machines were sending electronic impulses back to Langley that recorded every word we wrote.) One fellow on the staff, though, seemed to find more pleasure playing the card game Solitaire on the computer in an attempt to palliate his self-imposed boredom. He was a retired CIA analyst and former participant in the presentation of the Presidential Daily Brief (PDB) in the first Bush White House. A tall, pleasant man, older than the rest of us, he possessed a wealth of analytic experience, although he had what appeared to be only a pass-

Inside a National Security Inquiry

311

ing interest in the work of the commission. He rallied himself at times, however, to write a couple of solid staff papers related to analysis. One afternoon, I dropped by to see him about one of my own papers on this subject. I sat waiting while he finished his game of Solitaire. “How do you think the commission is doing?” I asked him after he had played the last card. I was curious to see if he even cared. He laughed and said, “You know what this commission is all about?” Before I could offer a reply, he answered himself: “Buying time.” He believed the inquiry was a charade, choreographed by the White House and Senator John Warner (R, Virginia, who had been instrumental in establishing the panel) to let public criticisms about intelligence failures blow over. No wonder he spent his time playing Solitaire. On September14, the commission convened for its fall retreat in Leesburg. It was likely to be a meeting of great importance for the staff, leading to a better reading of what the commissioners wanted to say in their report—if they could decide. Further, it was probably going to be the last time the staff would have most of the commissioners together for long swaths of time, concentrating on key recommendations. As it turned out, the sessions were even more useful than our first retreat at a CIA facility in rural Virginia, probably because we were approaching our report deadline and commissioners felt a greater urgency about coming to grips with their reform recommendations. The retreat began at 1:45 on Thursday afternoon, with 11 commissioners in attendance. Absent was Senator James Exon (D, Nebraska), by now a mere figment of our imaginations because he had missed almost every single commission meeting. Missing, as well, were Senator Warner; Paul Wolfowitz, a former university dean and expert on foreign affairs; and representatives Porter Goss (R, Florida) and Norm Dicks (D, Washington), both members of the House Permanent Select Committee on Intelligence (HPSCI). Even Chairman Brown was nowhere to be seen. (The Chairman finally arrived at 4:45 p.m.) It would have been wonderful to have all the commissioners there all of the time, for each of our meetings during the retreats and in our NEOB conference room. Still, as Britt Snider has pointed out, the attendance at our gatherings was better than at many previous commissions; and in January and February, when we were writing the final report, all but Senator Exon took part.3 In Brown’s absence, Rudman called the meeting to order and said, “We seek no concrete decisions, no votes. If there is a consensus, fine. Our purpose, though, is mainly to identify options.” No sense riling up commissioners at this stage—that seemed to be the vice chairman’s rule of thumb. Rudman, cochair of the budget-trimming Concord Commission in private life, signaled early in the session that he had no interest in wielding a butcher knife—or even a scalpel—when it came to intelligence spending.

312

Commissions of Inquiry and National Security

“Peace dividend?” he said. “That sounds good, but. . . . China!” In other words, unanticipated potential threats had arisen that made budget cutting for intelligence risky and inadvisable. I recalled when DCI R. James Woolsey, President Clinton’s first spy chief, told me in 1993 that the intelligence community was making major cutbacks at the insistence of Congress—far too many, in his view.4 The cuts had sliced in half the number of satellites manufactured by the United States, he complained, which had led to an even greater reduction in the number of supporting ground stations.5 Commissioner David Dewhurst, a tall, rich Texas oilman, Republican activist, and former CIA officer, agreed with Rudman’s remarks on the budget. “I see more targets than ever now,” he said. Fowler objected to this line of thought: “We may need more humint [human intelligence or old fashion spies], but less sigint [signals intelligence—mainly telephone eavesdropping]. Let’s be tough.” The Georgian was of the view that “95–99 percent of sigint was just a big waste of time and money.” In contrast, “humint is intelligence,” Fowler had remarked to me recently in the NEOB hallways. This is where the United States could make some headway—if the CIA would try harder. He remembered being told by Woolsey that, in the lead-up to the first Persian Gulf War (1990–91), the CIA had no humint assets in Iraq whatsoever. I thought Fowler was right: the intelligence agencies continued to have plenty of money for space-based spying but were short on humint and well-trained case officers to recruit agents in the field. At the very time the commission sat deliberating at Leesburg, the DO had reached a low point in its recruitment of case officers: only 25 new recruits were in training at the Farm in all of 1995.6 By the end of the decade, in 1999, the DO would reach its lowest level in terms of sheer numbers of officers, when the ranks fell by 20 percent from its high point during the Cold War.7 “What is the purpose of this report we’re writing?” Commissioner Tony Coelho, a former Democratic member of the House from California, asked. He was agitated already, and we had just started the retreat. Fowler added, “I want specificity and credibility.” “We should say the honest thing, not pull any punches,” Rudman agreed, “but let’s keep in mind that we should be realistic. Don’t put something up that will go nowhere.” “This has to be understandable to the American people,” Zoë Baird advised. A former candidate for attorney general and at the time of the commission an insurance company executive, she was one of only two women on the 17-person panel. The other woman was Ann Caracristi, a former official at the National Security Agency (NSA, the nation’s chief sigint organization). “There was so much anguish over Ames and other problems,” recalled Rudman, as he attempted to draw the commission back to its origins. “Rather than have a big fight over this on the Hill, Senator Warner wanted

Inside a National Security Inquiry

313

to move it out of the democratically controlled Congress. Anyway, let’s hear the first presentation.” One of the staff took her place at the podium, and the opening slide appeared on the projector screen—upside down. So much for all our days of practice. Her face turned red as she quickly corrected the error. At another point, the staff needed photocopies of a document to distribute to commissioners, but the Xerox machine at the Xerox Conference Center did not work. Unperturbed by these minor setbacks, the commissioners sat patiently through a series of presentations, asking a few questions now and then, sympathetic to the staff’s diligent preparation and willing to hear us out. At noon, we adjourned for lunch. In the late afternoon, Harold Brown arrived and took over the gavel, with Exon, Warner, Dicks, and Goss—all of our incumbent lawmakers— still AWOL. “Let’s focus on a few key topics,” Brown advised, “and see if we can agree on them.” He gave four examples: law enforcement and intelligence, covert action, personnel, and surveillance satellites. The temperature in the room remained normal throughout the discussion on intelligence and law enforcement, but, when covert action came up, it rapidly warmed. Opinions on this topic covered the gamut, and consensus seemed unlikely. The commission put aside (“bracketed,” in the National Security Council terminology adopted by the commission) the subject of covert action for the time being and took up the issue of space-based espionage. Dicks and Goss appeared in time for this discussion, just as Baird departed. Soon Fowler disappeared, too. I wondered if there was a fishing hole somewhere near the Xerox Center. Once at a Ditchley House conference near Oxford, England, I had observed Fowler wandering up an ornate staircase at midnight, leaving behind a black-tie gala. He soon returned, still in formal attire, but with a fishing rod in one hand and a tackle box in the other. He made his way through the partygoers to the back door of the manse and vanished into the darkness. I knew from a run I had taken earlier in the day that at the end of the expansive lawn that had swallowed up Fowler and his fishing gear was a celebrated, well-stocked pond, and I knew as well that he liked nothing better than to fish—apparently even at midnight in the middle of a party. Bob Hermann, a former NSA official and head of the National Reconnaissance Office (NRO, a spy satellite management agency), regaled his colleagues with a lengthy technical discussion of satellite spying. He went through his list of recommendations about developing a fleet of small satellites, and then turned to an issue known as “shutter control.” American firms—including Boeing in Representative Dicks’s district—wanted to sell satellites commercially, but current policy required them to retain American control over the camera lenses on the satellites. As Hermann explained, Washington export control officials could “curtail the use of any imaging system sold by a U.S. firm to a foreign purchaser, if U.S. government

314

Commissions of Inquiry and National Security

officials perceived that national security interests were being affected”— that is, if the purchaser had begun to use, or might use, the satellites and cameras against the United States or its troops overseas. This authority possessed by the U.S. government over lens control was not an attractive feature for potential buyers, and Hermann thought the policy ought to be reexamined—especially since the government in Washington could already prohibit sales to unfriendly countries through the exercise of its licensing authority. Commissioners were wary about eliminating the shutter-control provision, however, since the idea of a “bad actor” abroad having access to sophisticated U.S.-made satellite cameras was unappealing, too. Maybe it was indeed better to have shutter-control requirements as a backstop to export licensing safeguards. Torn on the proper way to go, the commission members leaned toward recommending a review of this complicated policy by the DCI and other officials, rather than taking a position themselves. Hermann nodded at this consensus view and moved to another topic: the virtues of integrating imint—imagery or photographic intelligence— and sigint collection agencies. Eyebrows soon rose at the breadth of his proposal. “We need to think boldly about Hermann’s ideas,” said Wolfowitz, a deus ex machina coming to Hermann’s rescue amid skepticism over the feasibility of the massive consolidation plan the former NSA scientist and manager had in mind. Hermann wanted nothing less than to lump together into one organization almost all of the technical collection intelligence: NSA, NRO, the CIA’s Directorate of Science and Technology (DS&T), the Central Imagery Office (CIO), and a couple of other smaller organizations. “We have no reason to be timid,” agreed Rudman. “Be a little bold.” “Wait! Imint is different from sigint,” objected General Lew Allen, Jr., a former director of the NSA. “Let’s also keep in mind that there is a boundary between boldness and common sense. Bob’s plan is too bold a step.” Many in the room were taken by surprise; evidently the NSA coalition— Allen, Hermann, and Caracristi—was not always in lockstep after all, as some (including me) had assumed. “The idea of a National Imagery Agency is in itself enough of a bold step,” Allen concluded. The envisioned NIA, a proposal floating around the national security establishment in Washington, would combine the CIO with a map-making intelligence agency and the National Photographic Interpretation Center (NPIC, stripped from the CIA). Left out of the mix—until Hermann’s ambitious consolidation plan— were the NSA, the NRO, and DS&T. Hermann seemed to pit himself against Allen and Caracristi, both of whom had outranked him at NSA. It was a contest he was unlikely to win. At least, though, Hermann had managed to settle the case among commissioners that the NRO should continue with its responsibilities for the research and development, acquisition, and operation of surveillance

Inside a National Security Inquiry

315

satellites—no small victory when considering the organization’s sagging public relations image in Washington in the aftermath of its recent cost overruns. Eventually Hermann came round to join his fellow former NSA commissioners, who eventually steered the commission away from any sweeping reforms that would touch the nation’s signals intelligence agency. “Evaluating the ‘technological health’ of NSA exceeded the capability of this Commission,” stated the final report—a preposterous statement in light of the fact that among the commissioners were Allen, Hermann, and Caracristi, aided by several senior former-NSA professionals on the staff.8 More likely they did not want to evaluate its “health” because that might have opened a Pandora’s box. Score another victory for the “NSA commissioners.” As the shadows lengthened on the lawn outside the Xerox Center, the thoughts of the commissioners moved in a dozen different directions. Rudman jumped in with the topic of economic intelligence, as the staff thought might happen, even though it was not on the agenda. (It was, however, one of the items on the list of 19 topics Congress had asked the commission to examine.) The commissioners attempted to weigh whether the CIA should spy on behalf of U.S. businesses. “Yes, let’s recommend it!” said Hermann enthusiastically. “No, let’s don’t!” retorted Dewhurst. It was great to see us in such close agreement. The discussion went on for an hour without resolution—though most leaned toward the Dewhurst side of the argument. As another commissioner and business executive, Anthony Harrington, parsimoniously stated the majority view: “The job of the intelligence agencies is to provide support to the government, not to companies in the private sector.” Brown adjourned the meeting, with instructions to return at 9:00 the next morning. The next day, Friday, the commission devoted itself to questions of organizational reform. Colorful autumn leaves piled thick in the brook outside our windows, but they seemed fewer in number than the proposals offered by commissioners on the proper institutional arrangements for effective spying. Eventually, several commissioners converged on at least one main point: the authority of the DCI was woefully inadequate to lead a “community” of 16 agencies so obviously fissile. General Allen, however, was having none of it. He looked at his colleagues as if they were a group of moonrakers and asked, “Why should we give DCIs more authority, when they have been unwilling even to analyze the various agency budgets over the years?” On Saturday, the commission conducted its wrap-up session, absent Exon, Dicks, Baird, and former Air Force general Robert E. Pursley, a softspoken commissioner with an abiding interest in military intelligence. The prickly topic this time was money. How much should the United States spend on intelligence?—a fairly basic question for security planners. And

316

Commissions of Inquiry and National Security

a related topic: should the annual budget figure for intelligence spending be made known to the public? The commission had contracted out some of our work to RAND consultants, and they were present to make a presentation on spy funding. Spending on intelligence had been reduced each year since 1991,9 and intelligence managers brought mournful pleas for additional resources with them everywhere they went in Washington. While it was true that the spy budget had decreased, it was equally accurate that the Reagan administration had piled large amounts of money on the secret agencies during the 1980s; thus, despite recent cuts, their spending base remained quite high in 1995 compared to the 1970s. From 1980–90, the intelligence budget increased by a factor of some 130 percent, in contrast to about a 40 percent rise for the defense budget during this same period.10 The community had loads of money; the problem was, it was spending it mostly on satellite hardware and then crying about not having any funding left over for humint and counterterrorism. Predictably, the debate over intelligence spending produced sparks among the commissioners, with different factions in favor of either decreasing or increasing the budget—or keeping it flat. Ever wary, Chairman Brown grew fidgety during these clashes, his right fist doubled into a ball and pumping up and down on the arm of his chair. Even the discussion about making public the aggregate budget figure for intelligence turned tempestuous, just as it had in the House of Representative a year earlier when lawmakers voted against disclosure by a margin of 221 to 194.11 The commission was beginning to resemble a town meeting in a Sicilian village. Finally, Brown said, “The staff should draft two versions,” implying the need for a simple pro-and-con dichotomy: the aggregate budget figure released to the public or kept secret. “Yes, both versions should say no,” interjected Rudman, in response to Brown’s suggestion. Fowler was seated next to Rudman, and the vice chairman slapped him playfully on the shoulder. “No, and hell no!” Fowler amended in jest, at this prodding from the vice chairman. “This is one of the more amusing aspects of this inquiry,” Rudman added, suggesting that disclosure of the annual aggregative figure was a tempest in a teapot. Brown concurred. Despite nods by the chairman in the direction of change every now and then, Tony Coelho had grown increasingly frustrated by the embrace of rosewater reforms by his colleagues. “We are in danger of becoming a status quo commission,” he finally burst out. The room fell silent for 30 seconds, but it seemed like enough time to recruit a whole ring of agents in the Federally Administrated Tribal Areas (by which I refer not to the U.S. intelligence community but to the mountainous region between Afghanistan and Pakistan). “We will have some changes,” Brown said at last, with an edge to his voice, as if Coelho and Fowler were a couple of jackanapes and he the headmaster.

Inside a National Security Inquiry

317

“According to whom?” asked Coelho, pushing the envelope parlously. “The DCI? The SecDef?” He may as well have been emptying his pipe on an open powder keg. Some people are born brave—or foolhardy. The chairman’s jaw hardened. Who had let this arrant knave into the meeting? His words laced with asperity and his brow contracting into furrows, Brown glowered at Coelho and said, “Let’s put this discussion off to later.”12 As the time approached to end the retreat, the chairman offered a summary of the three-day sessions. He observed that the commission was unlikely to make “very much change” when it came to economic intelligence. On law enforcement and intelligence, Brown said that we could “at least bring these matters to the attention of senior officials and if the officials don’t get along, we’ll buck them up to a decision authority.” As for covert action, he doubted “that we are going to say anything terribly new and startling, but we should say something and there may be a footnote”—in other words, perhaps a dissent from Wyche Fowler or Tony Coelho. “If we don’t at least address the subject,” said Fowler, “then you will open up a credibility gap.” His mendicant hopes for a close look at paramilitary operations fading, he added: “I just hope you won’t close your mind. I go back to the vice chairman’s statement about some areas of boldness; this is something that is crying out to be addressed, and it should be.” Unfazed by Fowler’s eloquence, Brown partially rolled over him and drove toward the matter of organizational reform. Here the commission was going to “suggest some changes at the margin,” the chairman suggested, “and perhaps even significant changes. They are not bold changes.” Brown expressed his belief that the DCI and the secretary of defense were determined to create a National Imagery Agency—regardless of what the commission might think. On the matter of a director of military intelligence, Brown was leery of trying to pass a new law to create such an office; let the 800-pound gorilla in the Pentagon, the SecDef, decide such matters. “It is really telling the Secretary of Defense how to run his shop,” the Chairman said, “so, as a member of the club, I’m of two minds about that.” He added, “I would not want to write this into legislation but urge the Secretary of Defense to make some changes.” As for personnel matters, “what we are talking about [downsizing] is big stuff,” Brown insisted. And on the subject of space espionage, Brown again thought that what Hermann had in mind was “big change.” The chairman wanted more information about Hermann’s plans before making any final decisions. With respect to the aggregate budget figure, “there has been discussion,” the chairman noted, “but I don’t think there has been unanimity.” “The intelligence community is overwhelmingly against [releasing the annual figure],” Rudman reminded his colleagues. Silence again filled the room, so the chairman turned to the idea of intelligence as a free good. He and Fowler had floated the idea of charging policymakers a fee for intelligence, as a way to make them take the

318

Commissions of Inquiry and National Security

information more seriously. “I’m not sure we got anywhere with that,” Brown concluded, and Fowler remained quiescent, perhaps battered enough for one day. Porter Goss entered the fray on the side of more attention to oversight. “It is important,” he pleaded. “Does that mean recommending to Congress what it ought to do?” asked Brown, warily. “Yes, I think that’s a very important thing to do.” Brown stared at Goss skeptically but said, “Having active members [of Congress] on the commission gives us something of a license to do that, and I think we should.” Wolfowitz asked for the floor and told his colleagues that his two biggest concerns were counterintelligence and the poor state of human intelligence. “These were the most spectacular failures going into this inquiry,” he observed. Rudman nodded and looked at his watch. It was time to stop. “I think we’ve made a very important start,” he concluded, smiling around the room, “but there is a lot more to be done.” As with our meetings in the NEOB and at the CIA facility in rural Virginia, I kept a record during our second retreat of the participation rates for each commissioner, jotting down a mark in my notebook each time they spoke and giving extra marks for follow-up commentary. A sense of the involvement of each commissioner at the Leesburg retreat comes from the number of questions and comments they made—though, of course, some individual comments (usually from the chairman) had greater influence and significance than others, regardless of how short they may have been (see Table 16.2). Chairman Brown dominated the Leesburg meetings, in terms of questions to the staff and his colleagues, as well as remarks of his own. Vice

Table 16.2 Commission Participation Rates at the Second Aspin-Brown Retreat, 1995 1. Brown (367) 2. Hermann (260) 3. Rudman (224) 4. Coelho (87) 5. Allen (81) 6. Friedman (73)

7. Fowler (69) 8. Harrington (59) 9. Dicks (52) 10. Dewhurst (51) 11. Wolfowitz (46) 12. Baird (42)

13. Pursley (36) 14. Goss (18) 15. Caracristi (16) 16. Warner (0) 17. Exon (0)

Source: The figures in parentheses are the number of questions and comments posed by each commissioner during the three-day retreat in Leesburg, Virginia (September 14–16, 1995), as tabulated at the time by the author.

Inside a National Security Inquiry

319

Chairman Rudman was not far behind. Hermann scored high, too, because of his prominence during the discussion on techie topics: space and satellites, NSA listening capabilities, CIO imagery. He was joined in this scientific domain by General Allen, fifth on the list. Coelho and Friedman were steady contributors, too, and Fowler weighed in regularly on a number of subjects, from budgets to covert action. Senator John Warner, so enthusiastic about the commission at the beginning, was a nonentity in these key proceedings, along with the phantom Senator from Nebraska, James Exon. Of the top seven participants, five were presidential appointees while only two—Coelho and Fowler—had been chosen by Congress. The participation rates varied according to the topics before the commissioners. Table 16.3 examines the degree of involvement of the top four participants in commission deliberations at the second retreat, arranged by subject matter. Except in the instance when Brown arrived very late (intelligence collection was the subject at hand), the chairman and the vice chairman both tallied high on these tabulations for each issue. Further, as one would anticipate in light of their interests expressed in earlier commission meetings, Baird excelled when it came to law enforcement; Fowler on covert action; Hermann on organization, personnel, and space; Allen on space; Stephen Friedman (a former Goldman Sachs executive) on analysis; and once again Allen, whom Brown had asked to head up a commission task force on the budget, on spending. In addition, Coelho, Harrington, and, when he was around (which was infrequent), Dicks exhibited substantial levels of involvement in two or more issue areas. As a general rule, the leadership steadily dominated the proceedings, yielding the floor to a few other commissioners who felt strongly about selected topics before the panel and had special expertise they could bring to bear. The commission continued to labor over its final report throughout the winter months, and then in February of 1996 it met in the NEOB quarters for a last effort at deciding on the report’s content and emphasis. Chairman Brown, the technocrat, began by sarcastically puncturing the idea of increased funding for environmental intelligence, an initiative promoted by Wyche Fowler, the humanist. “While there are hard targets [dangerous states and terrorist groups], we should spend time on the environment?” the chairman jeered. For him, health and environmental intelligence (“bugs and bunnies”) should never be a principal focus of the intelligence agencies, or even a primary one. To move Harold Brown on this proposal, Fowler would have required the lever of Archimedes. Brown’s response to Fowler’s interest in environmental intelligence put my fellow Georgian in a sour mood. Rudman left the room for a moment and returned with some cookies from the staff kitchen. “This commission needs to sweeten up,” he said, with a mischievous grin. “Here, Wyche, have about eight of these.” Fowler managed a smile for Rudman, despite Brown’s administration of an auto-da-fé.

320

Commissions of Inquiry and National Security

Table 16.3 Commission Participation Rates at the Aspin-Brown Commission’s Second Retreat in 1995, by Subject Matter Subjects

Top Four Rankings (with Number of Questions and Comments in Parentheses)

A. Opening Comments/ Collection

1. Rudman (51) 2. Coehlo (19)

3. Fowler (16) 4. Harrington (13)

B. Law Enforcement

1. Rudman (26) 2. Brown (23)

3. Baird (20) 4. Harrington/Coehlo (tied at 13)

C. Covert Action

1. Brown (32) 2. Rudman (25)

3. Harrington (13) 4. Fowler/Coehlo (tied at 12)

D. Intelligence Organization

1. Hermann (49) 2. Brown (43)

3. Dicks (21) 4. Rudman (16)

E. Personnel

1. Brown (55) 2. Hermann (33)

3. Rudman (23) 4. Dicks (16)

F. Space

1. Hermann (80) 2. Brown (59)

3. Rudman (25) 4. Allen/Dicks (tied at 15)

G. Analysis

1. Brown (51) 2. Rudman (24)

3. Hermann/Friedman (tied at 22) 4. Coehlo (13)

H. Spending

1. Brown (98) 2. Hermann (57)

3. Rudman (34) 4. Allen (27)

While the commission chairman clearly had no tolerance for environmental intelligence, Fowler had one consolidation: he was not entirely alone in his interest. The vice president, Al Gore, had also asked the CIA to engage more in this activity.13 Gore spoke publicly, to the amusement of Harold Brown and a few other commissioners, about using spy satellites to track the migration of whales at sea, the extent of worldwide earthquake damages, and the effects of global warming on Arctic ice floes. The DCI at the time of the commission inquiry, John Deutch (an MIT chemistry professor on leave) had also taken up the subject of environmental intelligence, with some pushing from the vice president. Deutch established his own DCI Environmental Center, which worked with U.S. scientists in the private business and university sectors to explore how the rich imagery archives of the intelligence community might be used for ecological research. He remained enthusiastic about environmental intelligence after he left the DCI position. “I think it’s very important,” he told me in 1998. “Environmental matters are influencing economics and

Inside a National Security Inquiry

321

political relationships. It’s a natural for intelligence collection. The EPA [Environmental Protection Agency] collects nothing—zippo—on international matters. What is happening to water around the world? Food? Collection on such matters requires only a minor investment of intelligence resources. When you have satellite time available, why wouldn’t we do this?”14 Fowler was hardly the only target of the chairman’s periodic scorn. When Bob Hermann brought up again his interest in a National Assessment Center placed in a building somewhere by the White House, Brown snorted in ridicule: “This is going to be the solution to our analytic problems?” “The chairman has a certain yellow-journalism approach,” replied the good-natured Hermann, using one of his favorite expressions and absorbing Brown’s blunt judgment with less pain than Fowler had felt. As it would turn out, the wily former NRO head managed to have his National Assessment Center proposal placed in the final report, regardless of Brown’s skepticism (although the idea was never implemented). Moving through each chapter of the final report draft, the commissioners commented as they saw fit. If their suggestions perked interest in other members, discussion might lead to changes in wording—unless Brown or Rudman expressed opposition, which was the kiss of death. Time crawled by on arthritic knees as we went through the document almost line by line. At last, deep into the afternoon, Brown called for a formal vote on the commission’s final report. Not a dissenting voice was heard, and the smiling faces of the staff members lit up the conference room. On the morning of March 1, 1996, the commission’s 200-page final report—dedicated to Les Aspin, as well as to intelligence officers who had given their lives in service to the country—was ready for public release. After 12 months, 84 formal witness testimonies, and over 200 interviews from the time we began in early 1995, Preparing for the 21st Century: An Appraisal of U.S. Intelligence: Report of the Commission on the Roles and Capabilities of the United States Intelligence Community was printed, bound, and on the streets, replete with 39 proposals for reform.15 The birds would now fly where they may. The editors of the New York Times quickly dismissed the report as “anodyne” and lacking in “imagination and courage.” The commissioners had exhibited the “the spine of a rag doll,” according to the newspaper, by leaving “a flawed system essentially intact.”16 The Times was especially unhappy that we had not spent more time criticizing the CIA, nor had we called for the abolition of the scandal-ridden NRO. Further, the newspaper wanted to see deep budget cuts. I could imagine Tony Coelho and Wyche Fowler nodding their heads in agreement as they read the damning critique. Reflecting back on the commission report from the vantage point of three years, former DCI John Deutch remembered that “there were three people who liked the Aspin-Brown Commission report: the president, Tony

322

Commissions of Inquiry and National Security

Lake [the national security adviser], and myself. I thought it was a step forward. Everybody else hated it. The secretary of defense hated it; the secretary of state hated it; the attorney general hated it.”17 I asked him why this was the case. “Because when the smoke cleared,” he replied, “the commission gave the director of intelligence more authority.” He added, “But then this authority vanished virtually without a trace. It never went anywhere. Tony [Lake, the national security adviser] said to me, ‘John, you ought to push this.’ But I did not want to have a fight with Chris [Warren Christopher, the secretary of state] and Bill [Perry, the secretary of defense].” As with the Times, some intelligence scholars were likewise unimpressed with our work. In their view, the commission report offered only limited insights and reform. One critic berated the commissioners, fairly, I thought, for arguing the position “that we need everything and since everything is expensive, we need to spend just as much as before.”18 The Washington Post was kinder, noting that the commission report was “the most comprehensive, high-level government review of U.S. intelligence gathering to be conducted in nearly 20 years.” The newspaper quoted Senator Warner’s praise of the panel for its success in fending off “the ‘slash and burn’ measures” advocated by some of his fellow lawmakers.19 The intelligence community’s budget remained intact and began to move upward; the effort to disclose the aggregate budget figure was squelched; counterintelligence and counterterrorism received far less attention than warranted; the ethical limits of covert action were never defined, nor was its role in the future; the strained relations between the CIA and the FBI continued; the weaknesses in accountability went largely unaddressed; and the DCI’s powers remained stunted. It would take the tragic events of September 11, 2001, to bring about stronger demands for intelligence reform. This is not to say that the commission was without purpose. Presidential commissions have a multiplicity of functions. Traditionally, they offer symbolic reassurance, provide information to shape policy, educate experts and the general public, and allow delay (a cooling-off period) while a problem undergoes further study. Senator Warner achieved his original goal: the commission had provided a treatise on the merits of good intelligence that would help lift the CIA’s sagging morale in the aftermath of Adrich Ames’s treason. The commission retreated from an endorsement of a powerful director of national intelligence; this would have been far too bold a move for Harold Brown, a former secretary of defense himself. In what may well have been its most important legacy, the commission did give some legitimacy, though, to the idea of strengthening the authority of America’s intelligence chief at least a little, and this notion began to gain currency in reform circles, despite ongoing objections from the Pentagon. Reformers tried again in 2004 to strengthen the authority of the newly created direc-

Inside a National Security Inquiry

323

tor of national intelligence, or DNI, position, but they failed because of resistance from the Department of Defense. Support for that elusive but vital goal continues to grow and awaits the attention of future intelligence reformers. NOTES 1. Admiral Stansfield Turner, Burn before Reading: Presidents, CIA Directors, and Secret Intelligence (New York: Hyperion, 2005), p. 231. 2. This chapter is a revised fragment from the author’s forthcoming book on the Aspin-Brown Commission, entitled New Threats on the Horizon (New York: Oxford University Press, 2010). The Publication Review Board at the CIA reviewed an earlier version of the piece to ensure that no classified materials had inadvertently entered into the manuscript. None had, as I knew was the case; this is an examination of how a commission operates and is not about the substance of the secret policies it probed. The review is an understandable precaution, however, for any author who has served in government during a highly sensitive inquiry. The primary methodology used in this study is participant observation—that is, the author (the only academic on the commission’s staff) watched the proceedings carefully, took notes on unclassified remarks made by commission members and staff, and recorded participation rates by devising a system to count the number of questions and comments made by the commissioners during the proceedings. On the methodology of participant observation for studying government activities, see Richard F. Fenno, Watching Politicians: Essays on Participant Observation (Berkeley: Institute of Governmental Studies, University of California, 1990); and, for examples of the genre, see Richard F. Fenno, Home Style: House Members in Their Districts (Boston: Little, Brown, 1978); Ernest R. May, “When Government Writes History: A Memoir of the 9/11 Commission,” The New Republic, May 23, 2005, p. 31; Richard E. Neustadt, Report to JFK: The Skybolt Crisis in Perspective (Ithaca, NY: Cornell University Press, 1999); and Eric Redman, The Dance of Legislation (New York: Simon & Schuster, 1973). 3. L. Britt Snider, remark, “The Brown [sic] Commission and the Future of Intelligence: A Roundtable Discussion,” Studies in Intelligence 39 (1996): 9. 4. R. James Woolsey, interview with the author, CIA Headquarters, Langley, Virginia, September 29, 1993. 5. Ibid. 6. According to Deputy Director of Operations James L. Pavitt, remarks, Dateline NBC, NBC Television, October 17, 2004; see, also, the 9/11 Commission, Final Report of the National Commission on Terrorist Attacks upon the United States (New York: Norton, 2004), p. 90. 7. Douglas Jehl, “An Abundance of Caution and Years of Budget Cuts Are Seen to Limit CIA,” New York Times, May 11, 2004, p. A18, quoting a senior DO official, James L. Pavitt. 8. Preparing for the 21st Century: An Appraisal of U.S. Intelligence: Report of the Commission on the Roles and Capabilities of the United States Intelligence Community (Washington, DC: Government Printing Office, March 1, 1996), p. 125. 9. The 9/11 Commission, Final Report, p. 93.

324

Commissions of Inquiry and National Security

10. See Preparing for the 21st Century, p. 131. 11. U.S. Congress, Congressional Record, 103d Cong., 2d sess. ( July 19, 1994), p. H21321. 12. As historian Ernest R. May has noted with respect to the Kean Commission, the leaders on panels of inquiry in Washington do their best to avoid dissolving “into a partisan wrangle.” May, “When Government Writes History,” p. 31. 13. Loch K. Johnson, Bombs, Bugs, Drugs, and Thugs: Intelligence and America’s Quest for Security (New York: New York University Press, 2000), p. 61. 14. John Deutch, interview with the author, MIT, Boston, Massachusetts, October 29, 1998. In fact, the EPA does have an international division, but its work is limited in scope and funding. 15. Preparing for the 21st Century. 16. Unsigned editorial, “Spy Pablum,” New York Times, March 2, 1996, Wk14. 17. John Deutch, interview with the author. 18. John Prados, “No Reform Here,” Bulletin of the Atomic Scientist (September/ October 1996), p. 56. 19. In bold print in the first chapter, the commission report offered up for public consumption the theme that Senator Warner had advanced during panel’s inquiry: “Intelligence is an important element of national strength. The country should not lose sight of this amid the spy scandals and management failures of recent years.” Preparing for the 21st Century, p. 13.

Selected Bibliography

What follows is a consolidated list of key secondary works in English on security and intelligence commissions of inquiry and their contexts. As such, it has not been the intention to include individual commission reports, details of which can be found in the notes to individual chapters. Alden, Chris. Apartheid’s Last Stand: The Rise and Fall of the South African Security State. London: MacMillan, 1996. Aldrich, Richard. “Global Intelligence Co-Operation versus Accountability: New Facets to an Old Problem.” Intelligence and National Security 24 (2009): 26–56. Aldrich, Richard. “Whitehall and the Iraq War: The UK’s Four Intelligence Enquiries.” Irish Studies in International Affairs 16 (2005): 73–88. Amnesty International. State of Denial: Europe’s Role in Rendition and Secret Detention. London: AI, 2008. Andrew, Christopher. The Defence of the Realm: The Authorized History of MI5. London: Penguin Books, 2009. Avruch, Kevin, and Beatriz Vejarano. “Truth and Reconciliation Commissions: A Review Essay and Annotated Bibliography.” Social Justice: Anthropology, Peace, and Human Rights 2 (2001): 47–108. Ball, Desmond, and David Horner. Breaking the Codes: Australia’s KGB Network, 1944–1950. St. Leonard’s: Allen and Unwin, 1998. Beatson, Jack. “‘Should Judges Conduct Public Inquiries?” Law Quarterly Review 221 (2005). Behn, Robert D. Rethinking Democratic Accountability. Washington, DC: Brookings Institution Press, 2001. Blom-Cooper, Louis. “What Went Wrong on Bloody Sunday: A Critique of the Saville Inquiry.” Public Law (2010): 61–78.

326

Selected Bibliography

Borelli, Silvia. “Rendition, Torture, and Intelligence Co-Operation.” In International Intelligence Cooperation and Accountability, ed. Hans Born, Ian Leigh, and Aidan Wills. London: Routledge, 2010. Born, Hans, Ian Leigh, and Aidan Wills, eds. International Intelligence Cooperation in an Era of Accountability and Human Rights. London: Routledge, 2010. Born, Hans, and Aidan Wills. “International Efforts to Narrow the Accountability Gap: The European Parliament and Parliamentary Assembly of the Council of Europe Inquiries into Illegal Transfers and Secret Detentions” In International Intelligence Cooperation and Accountability, ed. Hans Born, Ian Leigh, and Aidan Wills. London: Routledge, 2010. Bovens, Mark. “Analysing and Assessing Accountability: A Conceptual Framework.” European Law Journal 13 (2007): 447–68. Bovens, Mark, Thomas Schillemans, and Paul ‘T Hart. “Does Public Accountability Work? An Assessment Tool.” Public Administration 86 (2008): 225–42. Bradford, Neil. “Writing Public Philosophy: Canada’s Royal Commissions on Everything.” Journal of Canadian Studies 34 (Winter 1999/2000): 136–67. Brahm, Eric. “Uncovering the Truth: Examining Truth Commission Success and Impact.” International Studies Perspectives 8 (2007):16–35. Bruneau, Thomas C., and Steven C. Boraz, eds. Reforming Intelligence: Obstacles to Democratic Control and Effectiveness. Austin: University of Texas Press, 2007. Burton, Frank, and Pat Carlen. Official Discourse: On Discourse Analysis, Government Publications, Ideology, and the State. London: Routledge, Kegan, & Paul, 1979. Campbell, Colton C. Discharging Congress: Government by Commission. Westport, CT: Praeger, 2002. Clemént, Dominique. “Spies, Lies, and a Commission: A Case Study in the Mobilization of the Canadian Civil Liberties Movement.” Left History 7 (2000): 53–79. Clemént, Dominique. “The Royal Commission on Espionage and the Spy Trials of 1946–9: A Case Study in Parliamentary Supremacy.” Journal of the Canadian Historical Association 11, n.s. (2000): 151–72. Cohen, Stanley. “Human Rights and Crimes of the State: The Culture of Denial.” Australian and New Zealand Journal of Criminology 26 (1993): 97–115. Cohen, Stanley. States of Denial: Knowing about Atrocities and Suffering. Cambridge, UK: Polity Press, 2001. De Kock, Eugene (as told to Jeremy Gordin). A Long Night’s Damage: Working for the Apartheid State. Saxonwold, South Africa: Contra Press, 1998. Desbarats, Peter. Somalia Cover-Up: A Commissioner’s Journal. Toronto: McClelland and Stewart, 1997. Doig, Alan. “45 Minutes of Infamy? Hutton, Blair, and the Invasion of Iraq.” Parliamentary Affairs 58 (2005): 109–23. Du Bois, Francois, and Antje Du Bois-Pedain, eds. Justice and Reconciliation in PostApartheid South Africa. Cambridge, MA: Cambridge University Press, 2008. Elliot, Dominic, and Martina McGuinness. “Public Inquiry: Panacea or Placebo.” Journal of Contingencies and Crisis Management 10 (2002): 14–16. Falkenrath, Richard A. “The 9/11 Commission: A Review Essay.” International Security 29 (Winter 2004–05): 170–90. Farson, Stuart. “Accounting for Disaster—The Quest for ‘Closure’ after Aerial Mass Murder: The Downing of Air India Flight 182 in Comparative Perspective.”

Selected Bibliography

327

In Understanding Terror: Canadian Perspectives, ed. Karim-Aly Kassam, 67–99. Calgary: University of Calgary Press, 2010. Farson, Stuart. “Restructuring Control in Canada: The McDonald Commission of Inquiry and Its Legacy.” In Controlling Intelligence, ed. Glenn Hastedt, 155–85. London: Frank Cass, 1991. Farson, Stuart. “Schools of Thought: National Perceptions of Intelligence.” Conflict Quarterly 9 (1989): 52–104. Farson, Stuart, Peter Gill, Mark Phythian, and Shlomo Shpiro, eds. PSI Handbook of Global Security and Intelligence: National Approaches. Vol. 1, The Americas and Asia. Vol. 2, Europe, the Middle East, and South Africa. Westport, CT: Praeger Security International, 2008. Flitner, Jr., David. The Politics of Presidential Commissions: A Public Policy Perspective. Dobbs Ferry, NY: Transaction, 1986. Flyghed, Janne. “Crime-Control in the Post-Wall Era: The Menace of Security. Journal of Scandinavian Studies in Criminology and Crime Prevention 6 (2005): 165–82. Flyghed, Janne. “Normalising the Exceptional—The Case of Political Violence.” Policing and Society 13 (2003): 23–41. Gibson, James L. Overcoming Apartheid: Can Truth Reconcile a Divided Nation? New York: Russell Sage Foundation, 2004. Gill, Peter. “The Intelligence and Security Committee and the Challenge of Security Networks.” Review of International Studies 35 (2009): 929–41. Gill, Peter. Policing Politics: Security Intelligence and the Liberal Democratic State. London: Frank Cass, 1994. Gill, Peter. “The Politicisation of Intelligence: Lessons from the Invasion of Iraq.” In Watching the Spies: Maintaining Accountability over the World’s Secret Intelligence Agencies, ed. Hans Born, Loch K. Johnson, and Ian Leigh, 12–33. Washington, DC: Potomac Books, 2005. Gill, Peter, and Mark Phythian. Intelligence in an Insecure World. Cambridge, UK: Polity Press, 2006. Gilligan, George. “Official Inquiry, Truth, and Criminal Justice.” In Crime, Truth, and Justice: Official Inquiry, Discourse, Knowledge, ed. George Gilligan and John Pratt, 11–25. Cullompton, UK: Willan, 2004. Golan, Aviezer. Operation Suzanna. Tel Aviv: Idanim, 1976. Graham, Hugh Davis. “The Ambiguous Legacy of American Presidential Commissions.” Public Historian 7 (1985): 5–25. Grandin, Greg. “The Instruction of Great Catastrophe: Truth Commissions, National History, and State Formation in Argentina, Chile, and Guatemala.” The American Historical Review 110 (2005): 46–67. Hastedt, Glenn. “Foreign Policy by Commission: Reforming the Intelligence Community.” Intelligence and National Security 22 (2007): 443–72. Hastedt, Glenn. “Towards the Comparative Study of Intelligence.” Conflict Quarterly XI (1991): 55–72. Hayner, Priscilla B. “Fifteen Truth Commissions—1974–1994: A Comparative Study.” Human Rights Quarterly 16 (1994): 598–655. Hayner, Priscilla B. Unspeakable Truths: Facing the Challenge of Truth Commissions. London: Routledge, 2002. Humphrey, Michael. “From Victim to Victimhood: Truth Commissions and Trials as Rituals of Political Transition and Individual Healing.” The Australian Journal of Anthropology 14 (2003): 171–87.

328

Selected Bibliography

Johnson, Loch K. “The Aspin-Brown Intelligence Inquiry: Behind the Closed Doors of a Blue Ribbon Commission.” Studies in Intelligence 48 (2004): 1–20. Kean, Thomas H., and Lee H. Hamilton. Without Precedent: The Inside Story of the 9/11 Commission. New York: Knopf, 2006. Keeler, John T. S. “Opening the Window for Reform: Mandates, Crises, and Extraordinary Policy-Making.” Comparative Political Studies 25 (1993): 433–86. Kitts, Kenneth. “Commission Politics and National Security: Gerald Ford’s Response to the CIA Controversy of 1975.” Presidential Studies Quarterly 26 (1996): 1081–98. Kitts, Kenneth. Presidential Commissions and National Security: The Politics of Damage Control. Boulder, CO: Lynne Rienner, 2006. Klagsbald, Avigdor. State Commissions of Inquiry. Tel Aviv: Sarigim Leon, 2001. Knight, Amy. How the Cold War Began: The Igor Gouzenko Affair and the Hunt for Soviet Spies. New York: Carroll and Graf, 2005. Knightley, Phillip, and Caroline Kennedy. An Affair of State: The Profumo Case and the Framing of Stephen Ward. London: Jonathan Cape, 1987. Kremnizer, Mordechai. “Landau Commission Report: Was the Security Service Subordinated to the Law, or the Law to the ‘Needs’ of the Security Service.” Israel Law Review 23 (1989): 216–79. Laurence, Patrick. Death Squads: Apartheid’s Secret Weapon. London: Penguin Books, 1990. Leigh, Ian, and Laurence Lustgarten. “The Security Commission: Constitutional Achievement or Curiosity? Public Law (1991): 215–32. Lustgarten, Laurence, and Ian Leigh. In from the Cold: National Security and Parliamentary Democracy. Oxford: Clarendon Press, 1994. Manson, Allan, and David Mullen, eds. Commissions of Inquiry: Praise or Reappraise? Toronto: Irwin Law, 2003. Marcy, Carl. Presidential Commissions. New York: King’s Crown Press, 1945. McKnight, David. “Partisan Improprieties: Ministerial Control and Australia’s Security Agencies, 1962–1972.” Intelligence and National Security 23 (2008): 707–25. Mulgan, Richard. Holding Power to Account: Accountability in Modern Democracies. Basingstoke, UK: Palgrave MacMillan, 2003. Ní Aoláin, Fionnula, and Colm Campbell. “The Paradox of Transition in Conflicted Democracies.” Human Rights Quarterly 27 (2005): 172–213. Norton-Taylor, Richard. Truth Is a Difficult Concept: Inside the Scott Inquiry. London: Fourth Estate, 1995. O’Brien, Kevin A. “Controlling the Hydra: A Historical Analysis of South African Intelligence Accountability.” In Who’s Watching the Spies? Establishing Intelligence Service Accountability, ed. Hans Born, Loch K. Johnson, and Ian Leigh, 199–222. Washington, DC: Potomac Books, 2005. O’Brien, Kevin A. “Counter-Intelligence for Counter-Revolutionary Warfare: The South African Police Security Branch.” Intelligence and National Security 16 (2001): 27–59. O’Brien, Kevin A. “Truth and Reconciliation in South Africa: Confronting the Past, Building the Future?” International Relations 15 (2000): 1–16. O’Brien, Kevin A. “The Use of Assassination as a Tool of State Policy: South Africa’s Counter-Revolutionary Strategy 1979–1992.” Terrorism and Political Violence. Part 1, 10 (1998): 34–51, and Part 2, 13 (2001): 107–42.

Selected Bibliography

329

Pauw, Jacques. Into the Heart of Darkness: Confessions of Apartheid’s Assassins. Johannesburg: Jonathan Ball Publishers, 1997. Philp, Mark. “Delimiting Democratic Accountability.” Political Studies 57 (2009): 28–53. Phythian, Mark. “The British Experience with Intelligence Accountability.” Intelligence and National Security 22 (2007): 75–99. Phythian, Mark. “Flawed Intelligence, Limited Oversight: Official Inquiries into Pre-War UK Intelligence on Iraq.” In Intelligence and National Security Policymaking on Iraq: British and American Perspectives, ed. James P. Pfiffner and Mark Phythian, 191–210. Manchester, UK: Manchester University Press, 2008. Phythian, Mark. “Hutton and Scott: A Tale of Two Inquiries.” Parliamentary Affairs 58 (2005): 124–37. Popkin, Margaret, and Naomi Roht-Arriaza. “Truth as Justice: Investigatory Commissions in Latin America.” Law & Social Inquiry 20 (1995): 79–116. Posner, Richard. Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11. Lanham, MD: Rowman & Littlefield, 2005. Reed, Warren. Plunging Point: Intelligence Failures, Cover-Ups, and Consequences. Sydney: HarperCollins, 2005. Requa, Marny, and Gordon Anthony. “Coroners, Controversial Deaths, and Northern Ireland’s Past Conflict.” Public Law (2008): 443–51. Roach, Kent, “Canadian Public Inquiries and Accountability.” In Accountability for Criminal Justice—Selected Essays, ed. Philip C. Stenning, 268–93. Toronto: University of Toronto Press, 1995. Roach, Kent. “Review and Oversight of National Security Activities and Some Reflections on Canada’s Arar Inquiry.” Cardozo Law Review (2007): 53–84. Rolston, Bill. “An Effective Mask for Terror: Democracy, Death Squads, and Northern Ireland.” Crime, Law, and Social Change 44 (2005): 181–203. Rolston, Bill, and Phil Scraton. “In the Full Glare of English Politics: Ireland, Inquiries, and the British State.” British Journal of Criminology 45 (2005): 547–64. Rotberg, Robert I., and Dennis Thompson, eds. Truth v. Justice: The Morality of Truth Commissions. Princeton, NJ: Princeton University Press, 2000. Sallot, Jeff. Nobody Said No: The Real Story about How the Mounties Always Get Their Man. Toronto: James Lorimer, 1979. Sanders, James. Apartheid’s Friends: The Rise and Fall of South Africa’s Secret Services. London: John Murray, 2006. Sawatsky, John. Men in the Shadows: The RCMP Security Service. Toronto: Doubleday, 1980. Seegers, Annette. The Military in the Making of Modern South Africa. London: I. B. Tauris, 1996. Shenon, Philip. The Commission: The Uncensored History of the 9/11 Investigation. London: Little, Brown, 2008. Shpiro, Shlomo. “Intelligence and Civil Liberties in Israel.” Cambridge Review of International Affairs 19 (2006): 639–42. Simms, Marian. “Models of Political Accountability and Concepts of Australian Government.” Australian Journal of Public Administration 58 (1999): 34–38. Stanley, Elizabeth. “Evaluating the Truth and Reconciliation Commission.” Journal of Modern African Studies 39 (2001): 525–46. Summers, Anthony, and Stephen Dorril. Honeytrap: The Secret Worlds of Stephen Ward. London: Weidenfeld & Nicholson, 1987.

330

Selected Bibliography

Thompson, Brian, and F. F. Ridley, eds. Under the Scott-Light: British Government Seen through the Scott Report. Oxford: Oxford University Press, 1997. Toohey, Brian, and William Pinwill. Oyster: The Story of the Australian Secret Intelligence Service. Melbourne: William Heinemann Australia, 1989. Tower, John G. Consequences: A Personal and Political Memoir. Boston, MA: Little, Brown, 1991. Traub, James. The Best Intentions: Kofi Annan and the UN in the Era of American World Power. New York: Farrar, Straus, and Giroux, 2006. Tutchings, Terrence. Rhetoric and Reality: Presidential Commissions and the Making of Public Policy. Boulder, CO: Westview, 1979. Weller, Geoffrey. “Oversight of Australia’s Intelligence Services.” International Journal of Intelligence and Counterintelligence 12 (1999): 484–503. West, Nigel. A Matter of Trust: MI5, 1945–72. London: Weidenfeld & Nicolson, 1982. Whitaker, Reg. “Apprehended Insurrection? RCMP Intelligence and the October Crisis.” Queen’s Quarterly 100 (1993): 383–406. Whitaker, Reg. “Arar: This Affair, the Inquiry, the Aftermath.” Policy Matters 9 (2008): 1–38. Whitaker, Reg. “Canada, the RCMP Scandals.” In The Politics of Scandal: Power and Process in Liberal Democracies, ed. Andrei Marcovits and Mark Silverstein, 38–61. New York: Holmes and Meier, 1988. Whitaker, Reg, and Gary Marcuse. Cold War Canada: The Making of a National Insecurity State, 1945–1957. Toronto: University of Toronto Press, 1994. Wilkie, Andrew. Axis of Deceit. Melbourne: Black Inc Books, 2004. Wilson, Richard A. The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State. Cambridge, UK: Cambridge University Press, 2001. Winter, Gordon. Inside BOSS: South Africa’s Secret Police. London: Penguin Books, 1981. Wolanin, Thomas R. Presidential Advisory Commissions. Madison: University of Wisconsin Press, 1975. Woodhouse, Diana. “Matrix Churchill: A Case Study in Judicial Inquiries.” Parliamentary Affairs 48 (1995): 24–39. Wright, Andrea. “Fit for Purpose? Accountability Challenges and Paradoxes of Domestic Inquiries.” In International Intelligence Cooperation and Accountability, ed. Hans Born, Ian Leigh, and Aidan Wills. London: Routledge, 2010. Zegart, Amy. “Blue Ribbons, Black Boxes: Toward a Better Understanding of Presidential Commissions.” Presidential Studies Quarterly 34 (2004): 366–94.

Index

Abu Ghraib Panel, 120, 125 –26 Acebes, Ángel, 191 Acheson, Dean, 146 Adams, Gerry, 90 Ad hoc investigative bodies, 2, 173; in American politics, 114 –17; Britain commissions of inquiry, 57; Canada commissions of inquiry, 33; United States commissions of inquiry, 114 –17 Admoni, Nahum, 170 Afghanistan, 133, 138 African National Congress ( ANC), 222, 224 –27, 230 –35, 237– 38, 240 –41 African Resistance Movement ( ARM), 224, 242n4 Aga Khan, Sadruddin, 293, 302 Agranat Commission, 159, 166 – 68, 176n12, 177n17 Ahtisaari, Marti, 293, 302 AIC. See Arbejderbevaegelsens Informationscentral Air India Flight bombing, 42 Aitken, Jonathan, 60, 91 Aldrich, Richard, 277, 282 Aldunate, Sergio Valech, 262 Alfonsín, Raúl, 256

“Alice in Wonderland situation,” 56, 74n3 Allason, Rupert, 60, 101. See also West, Nigel Allen, Lew, Jr., 309, 314 –15 Allende, Salvador, 258, 260 AMAN, 163 – 66, 168, 170 Amedo, José, 188 – 89 Ames, Adrich, 138 Amnesty International, 56, 73 Analytical generalizability, 12n25 ANC. See African National Congress Andersen, Ole Stig, 214 Andrew, Christopher, 19, 59 Annan, Kofi, 293 – 95, 301, 303 Annan, Kojo, 303 Apartheid, 221–22, 227–28, 231– 33, 240 Arar, Maher, 40 – 42 Arar Commission, 2, 4, 40 – 43, 102 –3, 273; Canadian Parliament and, 47– 48; establishing, 47; “independent review body,” 47; invisible elephants, 45; “top secret ” documents, 46 – 47; torture recommendations, 44 – 45

332 Arbejderbevaegelsens Informationscentral (AIC), 214 Argentina commissions of inquiry: Commission for the Assessment and Evaluation of the Responsibilities in the South Atlantic Conflict, 250, 253 – 56, 266n10; National Commission on the Disappearance of Persons, 251, 256 – 58 Aristide, Jean-Bertrand, 252 ARM. See African Resistance Movement Ashton, Catherine, 56 ASIO. See Australian Security Intelligence Organisation (ASIO) ASIO Act, 18 –19 ASIS. See Australian Secret Intelligence Service Askaris, 230 Aspin, Les, 308, 309, 321 Aspin-Brown Commission, 3, 116 –17, 134; conclusion, 149 – 50; Congressional action, 152; consultants, 316; debates, 316; final report, 319 – 23; formation, 308; inside retreat meetings, 309 –19; member participation, 318 –20; members, 309; moving in several directions, 315; reform proposals, 151 – 52 Aucoin, Peter, 32 – 33 Australia commissions of inquiry: accountability, 14, 15; agency size, 13 –14; after Cold War, 20 –24; expanding, 24; funding, 24; future, 24–25; IGIS, 15, 19; memoir accounts, 3; politicization, 14; responding to security breaches, 16; Secretaries Committee on Intelligence and Security, 20. See also Codd-Samuels Commission of Inquiry; Flood Commission; Hope Royal Commission on Intelligence and Security Australian intelligence community, 25n8 Australian Labor Party, 17–18 Australian Secret Intelligence Service (ASIS), 17, 19, 45 Australian Security Intelligence Organisation ( ASIO), 16 –18, 20 –21

Index Aylwin, Patricio, 258, 263 Aznar, José, 193, 196 Baird, Zöe, 309, 312, 315 Barnard, Ferdi, 237 Barrett, Ken, 83 Bassett, Philip, 65 Baxendale, Presiley, 103 Bedell Smith, Walter, 146 Begin, Menachem, 169 –70 Bellmarsh detainees’ case, 107– 8 Ben-Gurion, David, 164 – 66, 177n16 Ben-Veniste, Richard, 123 Berlin Wall, 213 Bettaney, Michael, 60 – 61, 99 Betts, Richard, 154 Birkett, Norman, 99 Blair, Tony, 21, 65 – 66, 70, 72 –73 Blom-Cooper, Louis, 103 Bloody Sunday Inquiry, 56, 82 Bloomberg, Michael, 124 Blue-ribbon commissions, 118, 121, 124; appointment, 128 –29; imperfections, 126; war on terror and, 119 Bolivia National Commission of Inquiry into Disappearances, 251 BOSS. See South Africa Bureau for State Security Botha, P. W., 221, 227– 31 Boulet, Juliette, 263 Bradford, Neil, 33 Breen, Harry, 86 Bridge, Nigel, 100 Britain commissions of inquiry: ad hoc investigative bodies, 57; Butler inquiry, 2, 57, 64 – 69; Chilcot Inquiry, 2, 4, 57, 64 – 67, 70 – 71; closed sessions, 76n32; Hutton Inquiry, 57, 64 – 68, 71, 82, 105 – 6; Intelligence and Security Committee, 9; judges, 99 –101; memoir accounts, 3; overview, 55 – 57; politics/intelligence controversies, 67–74; statutory, 56 –57. See also Denning Inquiry; Scott Inquiry “Brokerage politics,” 33 Brown, Gordon, 67, 68

Index Brown, Harold, 126, 308, 310 –11, 313, 316 –21, 322 Buchanan, Bob, 86 Burton, Frank, 69 Bush, George W., 21, 70, 117, 121–25, 127–28, 138 Butler Inquiry, 2, 57, 64 – 69 CAERCAS. See Commission for the Assessment and Evaluation of the Responsibilities in the South Atlantic Conflict Cairns, Alan, 33 Califano, Mark G., 302 Campbell, Alastair, 65 Campbell, Duncan, 277 Canada commissions of inquiry: ad hoc investigative bodies, 33; in camera, 45; Canadian Parliament and, 47– 48; conclusions, 43 – 49; constitutional issues, 46; delaying action, 47; dueling over domestic covert operations, 38 – 40; “first season,” 37– 38; foreign policy studies, 4; literature, 32 – 34; mass murder investigated, 42 – 43; memoir accounts, 3; national security and, 34 – 35; overview, 29 – 32; public dimensions, 33; reach of documents, 45; trial by, 35 –37. See also Arar Commission; Commission of Inquiry into the Deployment of Canadian Forces to Somalia; Kellock-Taschereau Commission; Macdonald Commission on the Economic Union and Development Prospects for Canada; McDonald Commission; O’Connor Commission Canadian Experience, 48 Canadian Parliament, 47– 48 Canadian Press, 38 – 39 Canadian Security Intelligence Service (CSIS), 42 Caracristi, Ann Z., 309, 312, 314 Card, Andrew, 125 Cardin, Lucien, 37 Carlen, Pat, 69 Carter, Jimmy, 118 Catholic Church, 252

333 CC. See Coalición Canaría Central Intelligence Agency (CIA), 1, 4, 16, 137, 145, 149, 321; criticism, 128; defect, 141; investigating, 118; praise for, 141; withholding information from, 147 Centro Superior de información de la Defensa (CESID), 187, 198 Cerdá, Agustí, 195 CESID. See Centro Superior de información de la Defensa Cheney, Dick, 121, 122 Chilcot, John, 65, 67, 103 Chilcot Inquiry, 2, 4, 57, 64 – 67, 70 –71 Chilean Research Commission Mirage-Leopard, 264 Chile commissions of inquiry: Congressional Commission of Inquiry Related to the Acquisition of Mirage Elkan Aircraft and Leopard I Tanks, 263–64; National Commission on Political Imprisonment and Torture, 252, 261– 62; Truth and Reconciliation Commission (Rettig Commission), 252, 258–62 Chrétien, Jean, 41 Christian Democracy Party, 259 “Christine Keeler Affair,” 37 Christopher, Warren, 322 Church Committee, 1, 151 Churchill, Winston, 70 CIA. See Central Intelligence Agency Ciechanover, Yossi, 171 Ciechanover Commission, 159, 171–73 CiU. See Convergencia i Unió Clark, Alan, 61 Clark, Mark, 136 Clark Report/Committee, 141, 150, 153 Cleland, Max, 123 Clinton, Bill, 137, 140, 308, 312 CNI. See National Information Central – Chile Coalición Canaría (CC), 189 – 90, 193, 198 Codd, Michael, 21 Codd-Samuels Commission of Inquiry, 20 – 21, 24 –25

334 CODESA. See Conference on a Democratic South Africa CoE. See Council of Europe Coelho, Carlos, 273 Coelho, Tony, 312, 316 –17, 319 Coetsee, Kobie, 229 Coetsee Commission, 228 – 31 Coetzee, Dirk, 232 Cohen, Chaim, 164 Cohen, Stan, 80, 92, 205 Cohen, William, 144 Cohen Commission, 159, 164 – 65 Colby, William, 146, 150 Cold War, 14, 20 –24, 44, 99 –100, 119, 213, 251, 264 Collusion, 78, 80, 85 – 87, 90 Commission for the Assessment and Evaluation of the Responsibilities in the South Atlantic Conflict (CAERCAS), 250, 253–56, 266n10 Commission of Inquiry into Certain Alleged Murders, 232 Commission of Inquiry into March 11, 2004, 192 – 96 Commission of Inquiry into the Activities of Luis Roldán, 185 – 88 Commission of Inquiry into the Deployment of Canadian Forces to Somalia, 49 Commission of Inquiry into the Grupos Antiterroristas de Liberación, 188 – 92 Commission of Inquiry into the Security Service, 205 Commission of Inquiry on Espionage, 37 Commission of Seven, 159, 165 – 66 Commission on CIA Activities within the United States, 116 Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, 120, 134; appointments, 127; demand for, 136; presidential control, 127; report, 127–28. See also Silberman-Robb Commission; WMD Commission Commission on the Organization of the Executive Branch of the

Index Government, 134 – 36. See also Hoover Commissions Commission on the Organization of the Government for the Conduct of Foreign Policy, 134, 137. See also Murphy Commission Commission on the Roles and Capabilities of the U.S. Intelligence Community, 116 –17, 134, 138. See also Aspin-Brown Commission Commission on Wartime Contracting in Iraq and Afghanistan, 133 Commissions of inquiry: circumstances surrounding creation, 5 – 6; commission process/politics of investigation, 6 –7; conclusions/ drafting report, 7– 8; evaluation of purpose, 8 – 9; political consequences/impact, 8; questions, 6; terms of reference, 6; timing, 6. See also Judges; Oversight investigations Commission to Assess the Ballistic Missile Threat to the United States, 116 Commission to Investigate the Military and Political Intelligence Services in Ecuador, 251 Committee on extraordinary rendition, 4 Communism, 3, 20 CONADEP. See National Commission on the Disappearance of Persons Conference on a Democratic South Africa (CODESA), 233, 238 Congress, U.S., 299–300, 308 Congressional Commission of Inquiry Related to the Acquisition of Mirage Elkan Aircraft and Leopard I Tanks, 263–64 Congress of Deputies—Spain, 182–83, 185, 202n46 Convergencia i Unió (CiU), 189, 191, 193, 198 Copeland, Paul, 39 Cordero, Antonio, 264 Corn, David, 128 Cortright, David, 306 Cory, Peter, 56, 80, 84, 86–87, 89, 91

Index Cotecna, 303 Cotton, James, 23 Council of Europe (CoE), 267, 271, 278 – 80 Counterterrorism, 78, 85–91, 93, 143 CSIS S. See Canadian Security Intelligence Service Culture of denial, 205 – 6 Cutler, Lloyd, 127 Daily Mail, 59 Darlington, Arthur, 150 Daschle, Tom, 123 Dayan, Mosche, 167– 68 DCI. See Director of Central Intelligence Dean, John, 128 “Death on the Rock,” 82 The Defection of Igor Gouzenko, 45 Defence Imagery and Geospatial Organization ( DIGO), 19 Defence Intelligence Organisation ( DIO), 23 de Klerk, F. W., 221, 231– 32 de Kock, Eugene, 237, 240, 246n39 Delgado, Rafael Correa, 251 Democratizing truth, 4 Denial, spiral of, 80, 92, 205. See also Culture of denial Denmark. See Norway/Sweden/Denmark commissions of inquiry Denning, Alfred, 57– 58, 99, 107– 8 Denning Inquiry: aftermath, 59 – 61; M15 and, 58 – 59; methods/findings, 59; report vivid details, 57 – 58. See also Profumo affair Department of Defense, U.S., 145 Department of Trade and Industry ( DTI), 61– 62 Deutch, John, 152, 320, 321 Dewey, Thomas, 141 Dewhurst, David, 312, 315 Dezcallar, Jorge, 194 Dicks, Norm, 311, 313, 315, 319 Diefenbaker, John, 36 – 37, 43 DIGO. See Defence Imagery and Geospatial Organization DINA. See National Intelligence Directorate—Chile

335 DIO. See Defence Intelligence Organisation Diplock, Kenneth, 100, 106 –7 Director of Central Intelligence ( DCI), 137, 321 –23; deputies, 151–52; power, 144; priorities, 146; role, 149 Director of National intelligence ( DNI), 125, 142 – 43, 148, 152 – 53 Dixon, David, 92 DMI. See South African Directorate of Military Intelligence DNI. See Director of National intelligence Dori, Yaacov, 163 Doron, Aharon, 164 Dorril, Stephen, 59 Dowd, Maureen, 128 Downstream landing, 145 – 48 Drafting report, 7– 8 DTI. See Department of Trade and Industry Dulles, Allen, 136 Dulles Report/Committee, 134, 141; amendments/adoption, 146 – 47 du Toit, Hein, 225 Eberstadt Report, 150 EC. See European Community Echelon inquiry: accountability relationships, 282 – 83; awarenessraising, 281– 82; compiling factual records, 280 – 81; follow-up, 279 – 80; hearings, 273 –74; institutional/ policy change promotion, 283 – 84; investigative powers, 272 –73; mandate, 270 –72; missions/field visits, 276; NGOs/investigative journalists and, 276 –77; parliamentarian role, 274 –75; reporting, 277– 89; status/composition, 269 –70; triggers, 268 – 69 Edwards, John, 2 Effective Inquiries, 102 Efrat, Yona, 169 Eisenhower, Dwight, 136, 150 Eisenhower, Milton, 140 Elad, Avri, 164 El Salvador Truth Commission, 251

336 Environmental Protection Agency ( EPA), 321 EP. See European Parliament EPA. See Environmental Protection Agency EP commissions of inquiry: accountability relationships, 282– 83; anonymous sources, 275 –76; awareness-raising, 281– 82; compiling factual records, 280 – 81; conclusion, 285 – 86; Echelon inquiry, 267– 85; follow-up, 279 – 80; hearings, 273 –74; institutional/policy change promotion, 283 – 84; investigative powers, 272 –73; mandates, 270 –72; missions/field visits, 276; NGOs/ investigative journalists and, 276 –77; overview, 267– 68; PACE inquiry, 267– 85; parliamentarian role, 274 –75; promoting national inquiries, 284 –85; reporting, 277–89; status/composition, 269 –70; TDIP inquiry, 267– 86; triggers, 268 –69 ERC. See Esquerra Republicana Escobar, Ricardo Lagos, 261 Espionage network, 35 –36 Esquerra Republicana ( ERC), 193, 198 ETA. See Euskadi Ta Askatasuna EU. See European Union European Community ( EC), 269 European Convention on Human Rights, 100, 108 European Parliament ( EP), 267 European Union ( EU), 4, 271, 278, 279 – 80 Euskadi Ta Askatasuna ( ETA), 188 Exon, James, 311, 313, 315, 319 Extraordinary rendition, 40 – 42 FAC. See Foreign Affairs Committee Falkenrath, Richard, 7, 11n23 Falklands War, 57, 67, 255 FBI. See Federal Bureau of Investigation Federal Bureau of Investigation ( FBI), 45, 137 Fielding, Fred, 123 “Fifth Column,” 36 Finucane, Patrick, 56, 79, 83 – 84, 92

Index Flood, Philip, 22 Flood Commission, 2; acceptance of recommendations, 23 –24; Hope Royal Commission on Intelligence and Security vs., 22; institution of, 25; on Iraq invasion, 23; report, 22; terms of reference, 22 Flyghed, Janne, 210 Folketinget, 213 Ford, Gerald, 118, 147, 150 Foreign Affairs Committee ( FAC), 64 Foreign policy studies, 4 Forrestal, James, 141, 146 Fowler, Tillie, 126 Fowler, Wyche, 310, 312 –13, 316 – 20 Fraga, Manuel, 191 Franks Inquiry, 57, 67– 68, 76n42 Freedman, Lawrence, 70 Friedman, Stephen, 309, 319 Frist, Bill, 123 Fuente-Alba, Juan Miguel, 264 Furre, Berge, 208 GAL. See Grupos Antiterroristas de Liberación Galtieri, Leopoldo Fortunato, 254, 265n9 Gandi Commission, 160 Garín, Guillermo, 264 Garzón, Baltasar, 186, 189, 194 GCHQ. See Government Communications Headquarters Gemayel, Bashir, 169 General Accounting Office ( U.S.), 115, 300 General Belgrano, 255 Gephardt, Dick, 122 German Bundestag’s inquiry, 273 Gestapo, 206 Gibli, Binyamin, 163 – 65, 177n16 Gilbert, Martin, 70 Gill, Peter, 13 GNU. See South African Government of National Unity Goldstone, Richard, 295 Goldstone Commission, 231– 33 Gomery, John, 47 González, Felipe, 188, 189, 191, 200n29 Good Friday Agreement, 79

Index Good Intentions Corrupted ( Meyer/ Califano), 302 Gordievsky, Oleg, 60 Gore, Al, 137, 320 Gore Report, 134, 151; mandate, 144; recommendations, 153 Gorton, Slade, 123 Goss, Porter, 311, 313, 318 Gouzenko, Igor, 35–37, 45, 100, 106 Government Communications Headquarters (GCHQ), 106 –7 Graham, Hugh Davis, 115, 118 Great Depression, 115 Great Seal of Canada, 31 Greenspan Commission, 118 Grupo Mixto, 187, 189 –91, 193, 198, 199n12 Grupo Popular, 186 – 87, 189 – 91, 193, 195 – 96 Grupos Antiterroristas de Liberación (GAL), 180, 184, 188 – 92 Guardia Civil, 186 – 87, 189 The Guardian, 91 Guatemala Historical Clarification Commission, 251 Gulf War Syndrome, 140 Haiti National Commission for Truth and Justice, 252 Hamas, 171 Hamill, Robert, 86, 91 Hamilton, Lee, 123, 125 Hancock, Nigel, 92 Hani, Chris, 232 Harms, Louis, 232 Harms Commission, 231 – 33. See also Commission of Inquiry into Certain Alleged Murders Harrington, Anthony S., 309, 315, 319 Hart-Rudman Commission, 134, 140, 144, 146 Hastedt, Glenn, 3, 34 Hastert, J. Dennis, 143 Hennessy, Peter, 109 Hermann, Robert J., 309, 313 –15, 319, 321 Heseltine, Michael, 63 Hezbollah, 173 Hodgett, J. E., 32

337 “Honey trap,” 58 Hoover, Herbert, 136 Hoover Commissions, 115, 134, 146; Eberstadt Report, 150; impact, 150; mandates, 143 – 44; members, 140; recommendations, 153 Hope, Robert, 17, 19, 26n17 Hope Royal Commission on Intelligence and Security, 15; consultations, 17; experiment, 15 – 20; Flood Commission vs., 22; institution of, 25; recommendations, 18 –19; reiterating, 21; report, 17–18 Horner, Charles, 126 Hosenball, Mark, 107 Howard, John, 21 Howe, Geoffrey, 103 HSFR. See Swedish Council for Research in the Humanities and Social Sciences Human rights literature, 3 Human Rights Watch, 73 Humelsine, Carlisle, 146 Hunter, Duncan, 142 Hussein, King, 171 Hussein, Sadam, 65, 66, 293 Huston, John, 126 Hutton Inquiry, 57, 64 – 68, 71, 82, 105 – 6 Iacobucci, Frank, 44 ICV. See Iniciativa per Catalunya Verds IDF. See Israel Defense Forces Ielpi, Lee, 124 IGISI. See Inspector-general for intelligence and security IIC. See UN Independent Inquiry Committee Illingworth, Leslie, 59 The Imperial Presidency (Schlesinger, A.), 118 Independent Panel to Review Department of Defense Detention Operations, 120; members, 126; prisoner abuse scandal, 125 – 26. See also Abu Ghraib Panel Information Scandal, 228, 244n24 Informers, 85

338 Iniciativa per Catalunya Verds ( ICV), 193, 198 Inkatha Movement, 230 INLA. See Irish National Liberation Army Inquiries Act (Canada), 31–32, 34, 36, 43, 84 – 85 Inquiries Act 2005 ( Britain), 56 – 57 Inspector-general for intelligence and security ( IGIS), 15, 19, 21 Intelligence and National Security, 1–2 Intelligence and Security Committee, 9 Intelligence dispensation, 221, 242n1 Intelligence Overhaul Bill ( U.S.), 125 Intelligence Oversight Board, 147, 151 Intelligence Reform Act of 2004 ( U.S.), 151 Intelligence Reform and Terrorism Prevention Act of 2004—U.S., 133 Intelligence reforms, 148 – 52 Intelligence Security Commission— Britain ( ISC), 55, 71–73 International Journal of Intelligence and CounterIntelligence, 2 Iran-Contra, 9, 117, 138 Iraq: arms to, 57, 61– 62; Commission on Wartime Contracting in Iraq and Afghanistan, 133; invasion, 21, 23, 28; Kuwait invasion, 293 Iraq Oil-for-Food Programme (OFFP), 3 – 4, 293 – 94 Iraq War, 57, 68, 125 –26 Irish National Liberation Army ( INLA), 87– 88 Iron Curtain, 141 ISC. See Intelligence Security Commission—Britain Israel commissions of inquiry: Agranat Commission, 159, 166 – 68, 176n12, 177n17; Ciechanover Commission, 159, 171–73; Cohen Commission, 159, 164 – 65; Commission of Seven, 159, 165 – 66; conclusions, 173 –76; Gandi Commission, 160; Kahan Commission, 159, 168 –70; Landau Commission, 159; legal, political, administrative frameworks, 160 – 62; long-term

Index usefulness, 174; Olshan-Dori Committee, 159, 163 – 65; Orr Commission, 159 – 60; overview, 159 – 60; prime minister and, 175; Shamgar I Commission, 159; Shamgar II Commission, 159; status, 174; Steinmetz Commission, 160; Winograd Commission, 160, 175 Israel Defense Forces ( IDF), 163, 164, 167 Israel independence, 162 Israel intelligence community, 175 IU. See Izquierda Unida IV. See Izquierda Verde Ivanov, Eugene, 56, 58 Izquierda Unida ( IU), 189, 193, 198 Izquierda Verde ( IV), 193, 198 JCIC. See South Africa Joint Coordinating Intelligence Committee Johnson, Loch K., 2, 3 Johnson, Louis, 146 Jowitt, Ewin, 87 Judges: appropriateness, 104 – 6; Britain commissions of inquiry, 99 –101; conclusions, 109; historical sketch, 98 –101; legal proceedings and, 106 –9; rationale for judicial inquiries, 101– 4; Security Commission ( Britain), 100, 104 –5; special expertise, 109 Kahan, Yitzhak, 169 Kahan Commission, 159, 168 –70 Karalekas, Anne, 146 Kay, David, 65 Keable, Jean, 39 Keable Commission, 39 Keable v. McDonald, 38 – 40 Kean, Thomas H., 123, 125 Keeler, Christine, 56, 59, 99 Keeler, John, 147 Kellock, Lindsay, 36 Kellock-Taschereau Commission, 35 – 37, 106; report papers, 45; secret transcripts, 44; Supreme Court of Canada and, 46. See also Commission of Inquiry on Espionage Kelly, David, 57, 82, 105

Index Kelly, Tom, 65 Kennedy, Caroline, 59 Kennedy, John F., 115 –16 Kerr, Gordon, 90 Kerry, John, 142 KGB, 60 Khan, Mohammad Sidique, 72 King, Larry, 121 King, Mackenzie, 35 Kissinger, Henry, 123, 139 Kissinger Commission, 118 Kitson, Frank, 78 Kitts, Kenneth, 3, 34, 68 Knesset, 161, 173 Knightly, Philip, 59 Kuwait invasion, 293 LAHRC. See Legal Affairs and Human Rights Committee Lake, Tony, 321–22 Lambert, Brian, 79, 92 Landau, Mosche, 167 Landau Commission, 159 Language, 140 – 41 Laskov, Chaim, 167 Latin America commissions of inquiry: Bolivia National Commission of Inquiry into Disappearances, 251; by Catholic Church, 252; Commission to Investigate the Military and Political Intelligence Services in Ecuador, 251; conclusions, 264 – 65; El Salvador Truth Commission, 251; Guatemala Historical Clarification Commission, 251; Haiti National Commission for Truth and Justice, 252; overview, 250 – 53; Panama truth commission, 251; Paraguayan Truth and Justice Commission, 252; Peruvian Truth and Reconciliation Commission, 251. See also Argentina commissions of inquiry; Chile commissions of inquiry Lavon, Pinhas, 163 – 64, 165 Lavon affair, 160, 162 – 66. See also Messy Affair Law of Government of 1997 (Spain), 184 Law on Commissions of Inquiry of 1968 ( Israel), 160

339 Law on Government 2001 ( Israel), 161 Law on Official Secrets of 1968 (Spain), 183, 197 Law Reform Commission of Canada, 32 Leander, Torsten, 209 Lebanon, 168 –70, 175 Left Party Communists, 210 Legal Affairs and Human Rights Committee ( LAHRC), 270, 277, 280 “Legends,” 37 Lehman, John, 123 Leigh, Ian, 60 Letelier, Orlando, 260 Ley de Fuga, 259 Libyan nuclear program, 160 Lieberman, Joseph, 138 Liebling, Alison, 92 Lodge-Brown Act—U.S., 136, 140 Lopez, George, 306 Lott, Trent, 123, 133 – 34, 140 Louw, Mike, 234, 237 Lowi, Theodore, 118 –19 Lubowski, Anton, 232 Lund, Ketil, 205 Lund Report, 205, 207– 8 Lustgarten, Laurence, 60 M15, 58 – 60, 61 M16, 61 Macdonald Commission on the Economic Union and Development Prospects for Canada, 33 Mackenzie, Maxwell, 37 Macmillan, Harold, 57, 59, 99 Madisonian system, 114 Madrid bombings, 193 Major, John, 43, 62 – 63, 67– 68, 70 Malan, Magnus, 237 Mancebo, Villacorta, 182 Mandela, Nelson, 231 Manjón, Pilar, 195 Mansfield, Mike, 137 Marcuse, Gary, 36 Marcy, Carl, 114–15 Marey, Segundo, 189 Martin, Joseph, 140 Martin, Paul, 42, 47 Marty, Dick, 270 –72, 276 – 79

340 Mass murder investigation, 42 – 43 Mates, Michael, 65 Matrix Churchill Ltd. ( MCL), 57, 61 – 62, 101, 108 A Matter of Trust: M15, 1945-72 ( West), 58 Matthews, Mark, 64 Maxwell Fyfe Directive, 58, 99 McCain, John, 127, 138, 140 McCarthy, Joseph, 136 McDonald, David, 39, 48 McDonald, Ian, 74 McDonald Commission, 2, 4, 43, 102; establishment, 47; legal difficulties, 39; public education and, 44; report papers, 45, 46 McKnight, David, 16 MCL. See Matrix Churchill Ltd. McLaughlin, John, 142 McNamara, Kevin, 84 McNarney, Joseph, 146 Meir, Golda, 167 – 68 Melita Norwood espionage controversy, 72 Memorandum of understanding ( MOU), 293 Menwith Hill Women’s Camp, 277 Mesa del Congreso, 181 Messy Affair, 163 Meyer, Jeffrey A., 302 Michelini, Zelmar, 252 Military Police Complaints Commission, 49 Mitchell, George, 123, 139 Moffit, Ronnie, 260 Mogadishu attack, 138, 140 Mohamed, Binyam, 73 Molas, Isidre, 180 Moreland, Michael, 87 Moscoso, Mireya, 251 Mossad, 169–73 MOU. See Memorandum of understanding Mulroney-Schreiber Affair, 53n50 El Mundo, 186 Munsinger, Gerda, 37 Murphy, Lionel, 17 Murphy, Robert Daniel, 147

Index Murphy Commission, 134, 137, 144, 147, 154; conclusion, 149; recommendations, 153; reform proposals, 150 – 51 Murtha, Jack, 148 Muskie, Ed, 140 Mxenge, Griffiths, 232 MX missile, 118 Nasser, Gamal Abdul, 162 – 63 National Commission on Political Imprisonment and Torture, 252, 261– 62 National Commission on Terrorist Attacks upon the United States, 116 – 17, 134; call for, 119–20; delaying, 121–22; extending, 124 –25; final report, 125; first meeting, 123; Intelligence Overhaul Bill ( U.S.) signed, 125; official creation, 122; presidential conflicts, 124 –25; structure, 123; subpoena power questioned, 122; witnesses, 123 –24. See also 9/11 Commission National Commission on the Disappearance of Persons (CONADEP), 251, 256–58 National Counterproliferation Center, 143 National Counterterrorism Center, 143 National Imagery and Mapping Agency, 152 National Information Central–Chile (CNI), 261 National Intelligence Council (NIC), 150 National Intelligence Directorate– Chile (DINA), 259 – 61 National Intelligence Officer (NIO), 150 National Security Act of 1947 (U.S.), 133 National Security Council (Israel), 173, 175 National Security Council (NSC), 136, 144 The Nation, 128 NATO. See North Atlantic Treaty Organization

Index Nelson, Brian, 79, 90, 91 Nelson, Rosemary, 87 Netanyahu, Benjamin, 171, 173 Neventzal, Yizhak, 167 Never Again (Nunca Más), 257, 261 New York Times, 321 NGOs. See Non-governmental organizations Nhlanhla, Joseph, 236 NI. See Northern Ireland NIC. See National Intelligence Council NICOC. See South Africa National Intelligence Coordinating Committee NI dirty wars inquiries: collusion, 80, 85 – 87, 90; conclusions, 91 –93; costs, 70, 94n25; counterterrorism, 85 – 90, 93; documents, 91; obstruction of, 90 –91; Operation Ballast, 89 –90; overview, 78 – 80; reasons, 80 – 81; variables/variations, 81 – 85 NI High Court, 86 – 87 9/11 Commission, 2, 4, 119, 120, 128, 134; accountability, 145; complex setting, 138 –39; failures, 14; findings, 147– 48; formation, 140; reform proposals, 133, 142 – 43, 151; report language criticism, 7, 11n23; rocky start, 139; story of, 124 9/11 terrorist attacks, 2 – 3 NIO. See National Intelligence Officer NI peace process, 80, 86, 89, 92, 95n40 NIPS. See Northern Ireland Prison Service NI Public Prosecution Service (PPS), 79 NIS. See South Africa National Intelligence Service Nixon, Richard, 40, 137 Non-governmental organizations (NGOs), 276 – 77, 281 North Atlantic Treaty Organization (NATO), 204 Northern Ireland (NI), 56 Northern Ireland Prison Service (NIPS), 88 Norway/ Sweden / Denmark commissions of inquiry: appointing, 206, 209; constant controls, 216; culture

341 of denial/”at least” approach, 205 – 6; Lund Report, 205, 207– 8; national security and, 204; overview, 203 – 5; PET inquiry, 212 –14; political control in welfare state, 215 –17; Säkerhetstjänstkommissionen, 205, 211–12; Social Democrats and, 214 –15; summary, 216 –17 Norwegian Police Security Service, 208 NSC. See National Security Council NSMS. See South Africa National Security Management System Obama, Barack, 284 O’Connor, Dennis, 41, 46, 47, 104 O’Connor Commission, 40 – 42, 102 October Crisis of 1970, 38 Office of National Assessments (ONA), 18, 22, 23 –24, 28n51 Official Secrets Act (Britain), 63, 71 Official Secrets Act (Canada), 36 OFFP. See Iraq Oil-for-Food Programme OFFP inquiry: committee/staff, 295 – 96; communication/transparency, 301; conclusions/findings/ recomendations, 302 – 6; data storage/retrieval, 299; IIC cooperation, 299; investigative activities, 298; investigative teams, 297–98; offices, 297; overview, 293 – 94; panel hearings, 298; records review, 298; subpoena power, 301; terms of reference, 296 – 97; U.S. Congress and, 299 – 300; witness interviews, 298 O’Loan, Nuala, 89 – 91 Olshan, Yizhak, 163 Olshan-Dori Committee, 159, 163 – 65 ONA. See Office of National Assessments O’Neill, Juliet, 41 Operation Ballast, 89 – 90 Organic Law of 1984 (Spain), 183 Orr Commission, 159 – 60 Ottawa Citizen, 41 Oversight investigations, 1–2, 305; accountability politics, 145; agenda politics, 143 – 45; balancing

342 members, 140; in calm/troubled waters, 135 – 39; civil liberties benefits, 13 –14; conclusion, 154 –55; contributions, 150; correct assessment, 14; downstream landing, 145 – 48; intelligence reforms, 148 – 52; language, 140 – 41; logic of reforms, 152 –54; overview, 133 –35; personnel changes, 146; resource politics, 141– 43; symbolic politics and, 139 – 41; of U.S. intelligence, 133 – 55. See also Commission on the Organization of the Executive Branch of the Government; Commission on the Organization of the Government for the Conduct of Foreign Policy; Commission on the Roles and Capabilities of the U.S. Intelligence Community; Schlesinger Report; U.S. Commission on National Security in the 21st Century; Vice President’s National Performance Review Özdemir, Cem, 283 PACE. See Parliamentary Assembly of the Council of Europe PACE inquiry: accountability relationships, 282 – 83; anonymous sources, 275 –76; awareness-raising, 281– 82; compiling factual records, 280 – 81; follow-up, 279 – 80; hearings, 273 –74; institutional/policy change promotion, 283 – 84; investigative powers, 272 –73; mandate, 270 –72; missions/field visits, 276; NGOs/investigative journalists and, 276 –77; parliamentarian role, 274 –75; promoting national inquiries, 284 – 85; reporting, 277– 89; status/composition, 269 –70; triggers, 268 – 69 El País, 191 Palestine Liberation Organization (PLO), 168 – 69, 171 Panama truth commission, 251 Pantoja, Jorge, 264 Paraguayan Truth and Justice Commission, 252

Index Parliamentary Assembly of the Council of Europe (PACE), 267– 68 Parliamentary committees, 30 – 31. See also “Poor men’s royal commissions” Partido Nacionalista Vasco (PNV), 189, 198 Partido Popular (PP), 186, 189, 191, 195, 198 Partido Socialista Obrero de España (PSOE), 186, 188 – 89, 191, 198 Partio Québécois, 38 – 39 Pataki, George, 124 Pearson, Drew, 35 Peled, Mati, 164 Peled, Rafi, 171 –72 Pelton, Ronald, 138 People’s War—South Africa, 230 – 31 Pérez-Ugena, Ávaro, 192 Perjury, 91 Perot, Ross, 137 Perry, Bill, 322 Persian Gulf War, 312 The Personal President (Lowi), 118 –19 Peruvian Truth and Reconciliation Commission, 251 PET. See Politiets Eferretningstjeneste Petrov, Vladimir, 100 Phythian, Mark, 13 Pieth, Mark, 295 Pike Committee, 151 Pikoli Review Committee, 224, 234 – 37 PIRA. See Provisional Irish Republican Army Pitarch, Ismael, 180 Plan Vula, 232 “Plebiscitary presidency,” 119 PLO. See Palestine Liberation Organization PNV. See Partido Nacionalista Vasco Police Act, 86–87 Police Ombudsman of Northern Ireland (PONI), 85, 89, 92 Police Service of Northern Ireland (PSNI), 88 – 89 Political consequences, 8 Political responsibility, 256 Politics of investigation, 6 – 7

Index Politiets Eferretningstjeneste (PET), 212 –14 Politiets OvervåkningsTjenst (POT), 207 – 8 Pollard, Jonathan, 138 PONI. See Police Ombudsman of Northern Ireland “Poor men’s royal commissions,” 30 Popper, Frank, 117, 155 POT. See Politiets OvervåkningsTjenst Potgieter, H. J., 225 Potgieter Commission, 222 –28 PP. See Partido Popular PPS. See NI Public Prosecution Service Prats, Carlos, 260 President’s Commission on Internal Security and Individual Rights (Nimitz Commission), 130n21 President’s Foreign Intelligence Advisory Board, 150 – 51 “Principle-agent logic,” 283 Prisons Act, 87 Privacy and Civil Liberties Board, 151 Privy Council Office (Canada), 38 Profumo, John, 37, 56 – 57, 99 Profumo affair, 57, 59 Provisional Irish Republican Army (PIRA), 82 Pruce, Daniel, 64 – 65 PSNI. See Police Service of Northern Ireland PSOE. See Partido Socialista Obrero de España Public inquiries, 31– 32 Public Order and Terrorist Activities Commission, 200n25 the public, 33 Pursley, Robert E., 315 al Qaeda, 41, 123, 138, 193 Rabin, Yitzhak, 158–59 Radcliffe, Cyril John, 56, 99, 104 – 5 Rae, Bob, 43 Rationale for judicial inquiries, 101– 4 Rato, Rodrigo, 189 Rattenbach, Augusto, 254 Rattenbach, Benjamin, 253 – 54 Ratushny, Ed, 33

343 RCMP. See Royal Canadian Mounted Police Reagan, Ronald, 118, 140, 150 Regulation of Investigatory Powers Act of 2000—Britain (RIPA), 100 Rettig Guissen, Raúl, 258 Ridge, Tom, 142 RIPA. See Regulation of Investigatory Powers Act of 2000—Britain Rivonia Trial, 224 Robb, Charles, 127, 140 Roberts, Owen, 113 Rockefeller, Nelson, 147 Rockefeller Commission, 147 Roemer, Tim, 122, 123 Roldán, Luis, 184 – 88, 189 Rolston, Bill, 85 – 86 Roosevelt, Franklin, 70, 113, 118, 136 Rosen, Pinhas, 165 Rowen, Henry, 127 Royal Canadian Mounted Police (RCMP), 34, 35, 37, 38, 41, 102; investigating activities of, 39; Security Service, 40; wrongdoing, 46 “Royal commission,” 31 Royal Ulster Constabulary (RUC), 78, 83; officer murders, 86; replacement of, 89 Royo, Pérez, 194 Rubalcaba, Alfredo Pérez, 194 RUC. See Royal Ulster Constabulary Rudman, Warren, 140, 309 –12, 314 –15, 317, 319 Ruiz, Héctor Gutiérrez, 252 Ruiz-Tagle, Eduardo Frei, 263 Rule of law, 34, 56, 78, 80, 91, 93, 202n46, 203, 223, 233 Rumsfeld, Donald, 126, 142 Russell, Peter, 2 Russian spies, 35 –37 Sabca Company, 263 Sabra massacre, 168 –70 SACP. See South African Communist Party SADF. See South African Defence Force Saguy, Yehoshua, 170

344 Säkerhetstjänstkommissionen, 205, 211–12 Salmon Commission, 59 Salter, Liora, 33 SALT II, 117 Sampson, Colin, 86 Sampson, Robert, 38 Samuels, Gordon, 21 SANDF. See South Africa National Defence Force Santamaría, Sáez de, 191 SAP. See South Africa Police Säpo. See Swedish Security Police SAPS. See South Africa Police Saville, Mark Oliver, 56 Saville Inquiry, 83, 84, 103 Sawatsky, John, 38 Schlesinger, Arthur, 118 Schlesinger, James, 126, 137 Schlesinger Report, 134, 146; presentation, 137; recommendations, 148 – 49 Scott, Richard, 57, 69, 70, 101, 103, 108 Scott Inquiry, 74; background, 61– 62; powers, 63; report observations, 63 – 64; terms of reference, 62 – 63 Scowcroft, Brent, 140 Scowcroft Commission, 118 Scraton, Phil, 85 – 86 Second Lebanon War, 175 Secretaries Committee on Intelligence and Security, 20 “Secret world,” 44 Security breaches, 16 Security Commission (Britain), 71, 106; judges, 100, 104 – 5; on M15, 59 – 60 Security Intelligence and State Security Council Act—South Africa, 226 Security Service, Britain, 45, 58. See also M15 Securocrats, 92, 221–22, 226, 228 – 29, 231, 235, 247n51 Separation of powers, 57 7/7 London bombings, 72 – 73 Sévigny, Pierre, 37 Sexual Offences Act of 1956 (Britain), 56 Shamgar I Commission, 159 Shamgar II Commission, 159

Index Sharet, Mosche, 163 – 64 Sharon, Ariel, 170 Sharpeville Massacre, 224 Shatila massacre, 168 – 70 Shelby, Richard, 140 Silberman, Laurence, 127 Silberman-Robb Commission, 2, 127 Simon, Lord of Glaisdale, 105 Slocombe, Walter, 127 Smith, Michael John, 75n23 Snider, L. Britt, 309, 310, 311 Social Democratic Worker’s Party, 207– 8 Social Democrats, 204 – 5, 207, 209 – 10, 214 Social Security, 118 SOU. See Swedish Government Official Reports South Africa, 3; national security, 226; as security state, 221–22 South Africa Bureau for State Security (BOSS), 222 –23; covert actions, 227 – 28; end of, 228 – 31; establishment, 225; lack of power, 226 South Africa commissions of inquiry: Coetsee Commission, 228 – 31; Commission of Inquiry into Certain Alleged Murders, 232; conclusion, 241– 42; Goldstone Commission, 231– 33; Harms Commission, 231– 33; overview, 221–23; Pikoli Review Committee, 224, 234 –37; Potgieter Commission, 222 –28; Truth and Reconciliation Commission, 237– 42 South Africa Joint Coordinating Intelligence Committee ( JCIC), 233, 235–36 South Africa National Defence Force (SANDF), 234 South Africa National Intelligence Coordinating Committee (NICOC), 233, 235 South Africa National Intelligence Service (NIS), 222, 229, 234 South Africa National Security Management System (NSMS), 227 South African Communist Party (SACP), 224, 227

Index South African Defence Force (SADF), 223, 226, 229 South African Directorate of Military Intelligence (DMI), 224, 225, 228 South African Government of National Unity (GNU), 222–23, 238, 241 South Africa Police (SAP), 224, 226 South Africa Police Service (SAPS), 234 South Africa State Security Advisory Board (SSAB), 224 South Africa State Security Council (SSC), 221–22, 226–27, 229 Soviet Union, 60 Spain commissions of inquiry: Commission of Inquiry into March 11, 2004, 192 – 96; Commission of Inquiry into the Activities of Luis Roldán, 185 – 88; Commission of Inquiry into the Grupos Antiterroristas de Liberación, 188 – 92; conclusions, 196 – 98; exceptional powers, 183; features, 185; impact, 197 – 98; legal framework, 179 – 85; motives, 199n10; presentations/ judgments, 185; Public Order and Terrorist Activities Commission, 200n25; reports, 197; terms of reference, 196; witnesses, 197 Specter, Arlen, 142 Spence, Wishart, 37 Spencer, George Victor, 37 SSAB. See South Africa State Security Advisory Board SSC. See South Africa State Security Council Statutory commissions of inquiry, 56 – 57 Steinmetz Commission, 160 Stevens, John, 79 – 80, 90 –91, 91 Stortinget, 206 –7 Strategic Defense Initiative, 117 Studeman, William, 127 Suazo, Hernán Siles, 251 Subpoenas, 301 Suez Canal, 162– 63, 166 Summers, Anthony, 59 Sunday Times, 59 Supergun, 61– 62

345 Supreme Court, U.S., 42, 113 Supreme Court of Canada, 37, 39, 43, 46, 56, 106 Supreme Court of Israel, 160 Sweden. See Norway/Sweden/Denmark commissions of inquiry Swedish Council for Research in the Humanities and Social Sciences (HSFR), 209 Swedish Government Official Reports (SOU), 209 Swedish Security Police (Säpo), 209 –11, 215 Taliban, 138 Taschereau, Robert, 36 Task forces, 29 –30 Taylor, Ann, 65, 69 Taylor Commission, 155n4 TDIP. See Transportation and illegal detention of prisoners TDIP inquiry: accountability relationships, 282 – 83; anonymous sources, 275 – 76; awareness-raising, 281– 82; compiling factual records, 280 – 81; follow-up, 279 – 80; hearings, 273 –74; institutional/policy change promotion, 283 – 84; investigative powers, 272 –73; mandate, 270 –72; missions/field visits, 276; NGOs/investigative journalists and, 276 – 77; parliamentarian role, 274 –75; promoting national inquiries, 284 – 85; reporting, 277– 89; status/composition, 269 –70; triggers, 268 – 69 TEC. See Transitional Executive Council Tenet, George, 137, 152 Terms of reference: commissions of inquiry, 6; Flood Commission, 22; OFFP inquiry, 296 – 97; Scott Inquiry, 62 – 63; Spain commissions of inquiry, 196. See also Language Thompson, James, 123 TISC. See Trade and Industry Select Committee Tolkovsky, Dan, 171 Toricelli, Robert, 120 – 21

346 Tower, John, 140 Tower Commission, 9 Trade and Industry Select Committee (TISC), 61 – 62 Transitional Executive Council (TEC), 222 –23, 231 – 33 “ Transmission belts,” 282 Transportation and illegal detention of prisoners (TDIP), 267 Traub, James, 304 TRC. See Truth and Reconciliation Commission Treaty on European Union, 270 Trebilcock, Michael J., 29 Tribunal de Cuentas—Spain, 188 Tribunal de Justica—Spain, 188 Tribunals of Inquiry Act 1921 (Britain), 55 Trudeau, Pierre, 43 Truman, Harry, 133, 140 Truth and Reconciliation Commission (Rettig Commission), 252, 258 – 62 Truth and Reconciliation Commission (TRC), 237– 42 Tutu, Desmond, 240 UKUSA Agreement, 16, 19 Ulster Defence Association (UDA), 78 – 79 Ulster Volunteer Force (UVF), 78 UN. See United Nations Underground royal commission, 4 UN Independent Inquiry Committee (IIC), 294 – 99, 301, 304 – 5 United Nations (UN), 4, 293–94. See also OFFP inquiry United States commissions of inquiry, 1; ad hoc investigative bodies, 114 –17; as advisory body, 113; conclusion, 128 – 29; memoir accounts, 3; national security and, 117–19; 9/11 Commission, 2, 4, 7, 11n23; politics of, 113 –29; presidential role, 116; Silberman-Robb Commission, 2, 127; Tower Commission, 9. See also Blue-ribbon commissions; Commission on CIA Activities within the United States; Commission on the Intelligence Capabilities

Index of the United States Regarding Weapons of Mass Destruction; Commission on the Roles and Capabilities of the U.S. Intelligence Community; Commission to Assess the Ballistic Missile Threat to the United States; Hoover Commissions; Independent Panel to Review Department of Defense Detention Operations; National Commission on Terrorist Attacks upon the United States; Warren Commission United States intelligence: Intelligence Overhaul Bill (U.S.), 125; oversight investigations, 133–55 UN Security Council, 21, 303 U.S. Commission on National Security in the 21st Century, 134, 138. See also Hart-Rudman Commission U.S. Federal Loyalty-Security Program, 37 UVF. See Ulster Volunteer Force Vancouver Sun, 38 Vandenberg, Arthur, 140 Van den Bergh, Hendrick, 223 –25, 229 van Rensburg, Nick, 237 Vásquez, Tabaré, 252 Vassal spy affair, 56, 99 Vega, Ramón, 263 Verwoerd, Hendrik, 221, 224 Vest, Charles, 127 Vice President’s National Performance Review, 134, 137. See also Gore Report Vietnam War, 16 Volcker, Paul, 294 – 95, 300 –301 Volcker Commission, 4. See also OFFP inquiry Vorster, B. J., 221, 225, 228 Wagstaffe, Keith, 58 – 59 Wald, Patricia, 127 Walker, John, Jr., 138 Wall Street Journal, 122 Ward, Stephen, 56 – 59 Ware, John, 79 War Measures Act (Canada), 35, 36, 38

Index Warner, John, 311, 313, 319, 322 War on terror: blue-ribbon commissions and, 119; commission comparison, 120; detainees, 73. See also 9/11 Commission Warren Commission, 115 –16 Washington, George, 114 Washington Post, 322 “Washminster” system, 14 Watergate Canada, 38 Watergate Scandal, 40, 147 Weapons of mass destruction (WMD), 14, 23, 57, 64 – 66, 69, 72, 93, 119, 149. See also Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction Webster, David, 232 Wesley, Michael, 14 West, Nigel, 58 – 59, 75n14, 101 “Westminster” literature, 1 Whiskey Rebellion, 114 Whistleblowers, 275 Whitaker, Reg, 36, 49 Whitlam, Gough, 101 Widgery, John, 82, 86, 103

347 Wildavsky, Aaron, 118 –19 Wilhjelm, Preben, 212 –14 Winograd Commission, 160, 175 WMD. See Weapons of mass destruction WMD Commission, 120, 134, 137, 145 Wolanin, Thomas, 116 –17 Wolfowitz, Paul D., 309, 311, 314 Woolsey, James, 138, 312 World Council of Churches, 4 World Trade Center, 124, 138 World War II, 16, 136, 206 Wright, Billy, 81– 82, 87, 91, 94 Wright, David, 88 Yadin, Yigal, 167 Yakovlev, Alexei, 303 Yassin, Ahmed, 171 Yatom, Dani, 71–172 Yom Kippur War, 153, 158 –59, 166 – 68 Zeevi, Rehavam, 160 Zegart, Amy, 3 Zeira, Eli, 168 Zelikow, Philip, 123 Z-Squad, 227, 230, 244n23

This page intentionally left blank

About the Contributors

ANTONIO M. DÍAZ FERNÁNDEZ is associate professor in political science and administration at the University of Burgos. He is a visiting researcher at the International Centre for Security Analysis at King’s College, London, and at the Brunel Centre for Intelligence and Security Studies. He was the director of the research project “Towards a European Intelligence Policy: Community or Interstate Challenge?” and currently teaches the course on intelligence services at the General Gutiérrez Mellado University Institute. He is a member of the Fundación Alternativas and has received awards from the Ministry of Defence on two occasions, in 1997 and 2003, for his research on security. He also coordinates the Spanish SAFE©COMMS project team within the Seventh Framework Program of the EU. His latest publications are The Spanish Intelligence Services (Madrid: Alianza, 2006) and European Intelligence Cooperation (Navarra: Aranzadi, 2009). STUART FARSON is an adjunct professor at Simon Fraser University in the Department of Political Science. He has also been a research consultant engaged in projects concerning strategic planning, communications research, public policy analysis, and various matters to do with national security; an advisor to the Canadian government; and an expert witness in litigation and to commissions and committees of inquiry. Between 1989 and 1990, he served as director of research for the Special Committee of the House of Commons on the Review of the CSIS Act and the Security Offences Act. Stuart is the author of numerous articles and book chapters on security, intelligence, policing, and political violence. He was coeditor of Security and

350

About the Contributors

Intelligence in a Changing World: New Perspectives for the 1990s (London: Frank Cass, 1991), Intelligence Analysis and Assessment (London: Frank Cass, 1996), and the two-volume work PSI Handbook of Global Security and Intelligence: National Approaches (Westport, CT: Praeger Security International, 2008). He recently coauthored a special study—Accountability in and for National Security—for the Institute for Research on Public Policy. JANNE FLYGHED is professor and head of the Department of Criminology, Stockholm University. His major research interests are the relationship between the use of surveillance technology and individual privacy rights. He is coauthor of Vräkt: Utkastad från hus och hem i Stockholm 1879–2009 [Evicted: Thrown out from House and Home in Stockholm 1879–2009] (Stockholm: Premiss, 2010). To the anthology SAC-syndikalisterna 100 år (Stockholm: Federativs förlag, 2010) he contributed Fosterlandsförrädare, uppviglare och terrorister: 120 års övervakning av syndikalister och anarkister i Sverige [Traitors, Agitators, and Terrorists: A Century of Surveillance of Syndicalists and Anarchists in Sweden]. PETER GILL is honorary fellow at the University of Liverpool, UK, and previously research professor in intelligence studies at the University of Salford. He is the author of Policing Politics (London: Cass, 1994) and Rounding Up the Usual Suspects? (Aldershot, UK: Ashgate, 2000) and coauthor of Intelligence in an Insecure World (Cambridge, UK: Polity, 2006). He is coeditor of the PSI Handbook of Global Security and Intelligence: National Approaches, 2 volumes (Westport, CT: Praeger, 2008) and Intelligence Theory: Key Questions and Debates (London: Routledge, 2009). His current research is into the democratization of intelligence in former authoritarian regimes, for which he was awarded a Leverhulme Emeritus Fellowship during 2010–11. GLENN HASTEDT received his PhD in political science from Indiana University. He is professor and chair of the Justice Studies Department at James Madison University. Prior to that he served as chair of the Political Science Department. He is the author of American Foreign Policy: Past, Present, Future, 8th ed. (Upper Saddle River, NJ: Pearson Education, 2010). Along with contributing to edited volumes on intelligence he has published articles on intelligence in Intelligence and National Security, the International Journal of Intelligence and Counterintelligence, and other journals. LOCH K. JOHNSON is regents professor of public and international affairs at the University of Georgia. He is the author of over 200 articles and the author or editor of 22 books on U.S. national security, including America’s Secret Power (New York: Oxford University Press, 1986); Fateful Decisions: Inside the NSC, coedited with Ambassador Karl F. Inderfurth (New York:

About the Contributors

351

Oxford University Press, 2004); Secret Agencies (New Haven, CT: Yale University Press, 1996); Seven Sins of American Foreign Policy (New York: Longman, 2007); The Oxford Handbook of National Security Intelligence (New York: Oxford University Press, 2010); and The Threat on the Horizon (New York: Oxford University Press, 2010). He has served as special assistant to the chair of the Senate Select Committee on Intelligence (1975–76); on the staff of the Senate Foreign Relations Committee (1976–77); as the first staff director of the House Subcommittee on Intelligence Oversight, Permanent Select Committee on Intelligence (1977–79); as a senior staff member on the Subcommittee on Trade and International Economic Policy, Committee on Foreign Affairs, House of Representatives (1980); and as special assistant to Chairman Les Aspin on the Aspin-Brown Commission on Intelligence (1995–96). He has been the issues director in a presidential campaign (1976), has served as a foreign policy adviser to President Jimmy Carter in the 1980 reelection campaign, and has served as a consultant to several government and policy entities, including the RAND Corporation and the 9/11 Commission on terrorism. Professor Johnson is the senior editor of the international journal Intelligence and National Security, published in London. Born in Auckland, New Zealand, Professor Johnson received his PhD in political science from the University of California, Riverside. At the University of Georgia, he led the founding of the School of Public and International Affairs in 2001. KENNETH KITTS is associate provost and professor of political science at Francis Marion University in South Carolina. His research and teaching interests focus on executive branch politics, national security decision making, and intelligence policy. The American Library Association’s Choice magazine designated his book Presidential Commissions and National Security: The Politics of Damage Control as an Outstanding Academic Title for 2006. Kitts is also the author of numerous book chapters and articles. His publications and commentaries have appeared in outlets ranging from Presidential Studies Quarterly to PS: Political Science and Politics. He received his degrees in political science from Appalachian State University (BA and MA) and the University of South Carolina (PhD). IAN LEIGH is professor of law at Durham University, specializing in public law and human rights (he is codirector of the Durham Human Rights Centre). He is the author of Law, Politics, and Local Democracy (Oxford: Oxford University Press, 2000). His other books include In from the Cold: National Security and Parliamentary Democracy (Oxford: Oxford University Press, 1994), with Laurence Lustgarten; Who’s Watching the Spies: Establishing Intelligence Service Accountability (Washington, DC: Potomac Books, 2005), with Hans Born and Loch Johnson; Religious Freedom in the Liberal State (Oxford: Oxford University Press, 2005), with Rex Ahdar; and Making

352

About the Contributors

Right Real: The Human Rights Act in its First Decade (Oxford: Hart, 2008), with Roger Masterman. His policy report Making Intelligence Accountable, with Hans Born (Oslo: Norwegian Parliament Printing House, 2005), has been translated into 13 languages. He has recently coauthored the OSCE/ DCAF Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel (Warsaw: OSCE Office for Democratic Institutions and Human Rights, 2008). He has acted as a consultant to the Organisation for Security and Cooperation in Europe Office of Democratic Institutions and Human Rights, to the Venice Commission on democratic control of security and intelligence agencies in Council of Europe states, and to the United Nations’ Development Programme on security sector reform. REID MORDEN is president of Reid Morden & Associates, which provides advice and comment on intelligence, security, and public policy issues. Among senior positions in the Canadian Public Service, he has been director of the Canadian Security Intelligence Service, deputy minister of Foreign Affairs, and president and CEO of Atomic Energy of Canada Ltd. Mr. Morden subsequently worked with such firms as Kroll and KPMG Forensic Inc. and was appointed in 2004 as executive director of the Independent Inquiry Committee into the UN Iraq Oil-For-Food program (Volcker Inquiry). He also served as an advisor to Associate Chief Justice O’Connor during the Arar Inquiry and to former Supreme Court justice Iacobucci with respect to the Internal Inquiry into the Actions of Abdullah Almalki, Ahmad Abou-Elmaati, and Muayyed Nueddin. In 2008 he was appointed to serve on the Audit Committee of the Department of Foreign Affairs and International Trade and, in 2010, to the Board of Directors of the Laurier Centre for Military Strategic and Disarmament Studies at Wilfred Laurier University. From 2002–08, Mr. Morden chaired the Board of Governors of Trent University. He has also sat on the Board of Advisors of the Homeland Security Leadership Alliance as well as the Institute for the Study of International Terrorism and Violence. He has recently stepped down as a senior research fellow of the Canadian Defence and Foreign Affairs Institute. He appears frequently on national and international media. Mr. Morden is a member of the Order of Canada, a grand officer of the Order of the Southern Cross (Brazil), and a holder of the Ian L. MacRae Award from the Canadian nuclear industry. He holds a doctor of laws (honoris causa) from Dalhousie University. KEVIN A. O’BRIEN has written extensively on South Africa’s intelligence history and dispensation, as well as on other topics related to contemporary security issues. Currently a senior analyst with the government of Canada, he was previously the director of Alesia PSI Consultants Ltd and served as a senior advisor to Western governments and critical infrastructures sectors on public security and intelligence challenges for many years. He has

About the Contributors

353

served as the deputy director/public security of RAND Europe; the deputy director of the International Centre for Security Analysis at King’s College, London; both a visiting fellow and a teaching fellow in the Department of War Studies, King’s College, London; and as an international research associate of the Institute for Security Studies in South Africa. The author of more than 45 monographs, articles, and chapters, his books From Apartheid to Democracy: South Africa’s Intelligence History 1948–2005 (London: Routledge) and The Terrorist Craft of Intelligence (London: Hurst) were published in 2010. ANDREW O’NEIL is professor of international relations and director of the Griffith Asia Institute at Griffith University, Australia. His research areas of interests include regional security and geopolitics in Asia, nuclear proliferation and arms control, Australian foreign and defense policy, and international relations theory—he has published his research across all of these areas in a range of academic outlets. Prior to taking up his first academic position in 2000, he worked as a strategic analyst with Australia’s Defence Intelligence Organisation as part of its North Asia and Global Issues branch. Between 2005 and 2007 he served on the Australian Foreign Minister’s National Consultative Committee for International Security Issues, and in 2007 he was a visiting professor at Hiroshima University. He is the editor-in-chief of the Australian Journal of International Affairs. MARK PHYTHIAN is professor of politics in the Department of Politics and International Relations at the University of Leicester, UK. His research interests are in the areas of intelligence, national security, and foreign policy. He is the author or editor/coeditor of 10 previous books, including Arming Iraq (Boston, MA: Northeastern University Press,1996); The Politics of British Arms Sales Since 1964 (Manchester, UK: Manchester University Press, 2000); Intelligence in an Insecure World, with Peter Gill (Cambridge, UK: Polity Press, 2006; with Peter Gill); The Labour Party, War, and International Relations 1945–2006 (London: Routledge, 2007); Intelligence and National Security Policymaking on Iraq: British and American Perspectives (Manchester, UK: Manchester University Press/ College Station: Texas A & M University Press, 2008; edited with James P. Pfiffner); PSI Handbook of Global Security and Intelligence: National Approaches, 2 volumes (Westport, CT: Praeger Security International, 2008; edited with Peter Gill, Stuart Farson, and Shlomo Shpiro); and Intelligence Theory: Key Questions and Debates (London: Routledge, 2008; edited with Peter Gill and Stephen Marrin), as well as numerous journal articles and book chapters. SHLOMO SHPIRO is deputy head of the Political Studies Department at Bar-Ilan University in Israel and chairman of the International Intelligence

354

About the Contributors

History Association (IIHA). Formerly director of the Israeli Government Ministries Security Unit, he was later appointed research coordinator at the Israeli Parliament (Knesset). In the years 1999–2001 he led a NATO research project on improving intelligence cooperation between NATO and Mediterranean countries. Since 2009 he has coordinated a major European Union research project on terror crisis management. He has published extensively on intelligence, terrorism, and crisis management, including coediting the PSI Handbook of Global Security and Intelligence: National Approaches. JOSÉ MANUEL UGARTE is a lawyer and specialist in administrative law and public administration (University of Buenos Aires), professor of administrative law at the University of Buenos Aires and at the Catholic University of Santiago del Estero, as well as a professor at the University Institute of the Argentine Federal Police (Master on Public Security), the University of Tres de Febrero (Specialization Career on Defence Management), and the Post Graduate School of the Prefectura Naval Argentina (Internal Security). He is a member of the Academic Committee of the Center for Strategic Studies for Defence “Manuel Belgrano” (Ministry of Defence) and a consultant to the Ministry of Defence and the national solicitor of the Treasury. He is a former participant in the program Justice in Transition (Harvard University) and a former advisor to the National Chamber of Deputies (1984–94) and the National Senate (1995–2009) on defense, security, and intelligence matters. He coauthored the Argentine National Defence Law no. 23.554 and the Internal Security Law no. 24.059 and participated in the drafting of the Law on the Restructuring of the Armed Forces no. 24.498, the Voluntary Military Service Law no. 24.429, and the National Intelligence Law no. 25.520. He is the author of Theft of Electric Power (Buenos Aires, Depalma, 1975); Internal Security (Buenos Aires, 1990); Intelligence Legislation (Buenos Aires, Dunken, 1999, and WOLA-SEDEM, Guatemala City, 2000); Citizens’ Guide to Access to Information (Buenos Aires, Foro Social para la Transparencia 2005); The Legal and Political Concepts of Security and Defense (Buenos Aires, Plus UltraLibrerías Yenny 2005); The Right of Access to Information (Buenos Aires, Foro Social para la Transparencia -La Isla de la Luna, 2007); and numerous articles in books, newspapers, and specialized magazines. REG WHITAKER is distinguished research professor emeritus at York University and adjunct professor of political science at the University of Victoria. He is the author of The End of Privacy (New York: New Press, 1999) and other books and articles on national security and Canadian politics. He served as a member of the Advisory Panel to Justice Dennis O’Connor in the Maher Arar inquiry. In 2005 he was appointed chair of the Advisory Panel to the Minister of Transport to review the Canadian Air Transport Security Authority Act and aviation security in Canada, which reported to

About the Contributors

355

Parliament in 2006. The panel also reported in 2007 to the Commission of Inquiry into the Air India Bombing on the aviation security aspects of that tragedy. AIDAN WILLS is a project officer at the Geneva Centre for the Democratic Control of Armed Forces (DCAF), Switzerland. In this capacity, he has conducted research on a range of security sector governance and reform issues; his current research focuses on the external oversight of police, armed forces, and intelligence services. He is the author of Understanding Intelligence Oversight (Geneva: DCAF, 2010),coeditor (with Hans Born and Ian Leigh) of International Intelligence Cooperation and Accountability (London, Routledge, 2010) and coauthor of handbooks on the legal and institutional frameworks for intelligence governance and the oversight of international intelligence cooperation. In addition, he has served as a consultant to the Council of Europe, the UN special rapporteur on human rights and counterterrorism, and several national parliaments. He holds a first-class honors degree in political science from the University of Nottingham and a master’s in international affairs from the Graduate Institute of International and Development Studies, Geneva.