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Blurring the Line between Law Enforcement and Intelligence: Sharpening the Gaze of Surveillance?

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Abstract

To an ever-increasing extent, law enforcement agencies work with and rely on information obtained and passed to them by intelligence services. However, in comparison to the police, intelligent services face much less regulation or supervision. Contrasting levels of regulation and supervision pose a problem where the institutional and functional borders between intelligence and police agencies are increasingly blurred. For example: new 'hybrid' police-intelligence institutions have sprung up; information is freely exchanged between police and intelligence organisations; and information gathered by intelligence agencies is used in criminal proceedings. But an impulsive blurring of organisational boundaries is not a solution to growing fears of terrorism and serious cross-border crime. Secret or sensitive information should be used in a way that balances the need for intelligence gathering with the right of the defence to examine incriminating evidence.
Citation
Završnik,A.(2013).‘BlurringtheLinebetweenLawEnforcementandIntelligence:Sharpeningthe
GazeofSurveillance?’,JournalofContemporaryEuropeanResearch.9(1),pp.181202.
Firstpublishedat:www.jcer.net
J
ournal of Contemporary
European Research
Volume 9, Issue 1 (2013)
Blurring the Line between Law Enforcement and
Intelligence: Sharpening the Gaze of
Surveillance?
AlešZavršnikInstituteofCriminology,Ljubljana
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182
Abstract
To an ever-increasing extent, law enforcement agencies work with and rely on information obtained and passed
to them by intelligence services. However, in comparison to the police, intelligent services face much less
regulation or supervision. Contrasting levels of regulation and supervision pose a problem where the
institutional and functional borders between intelligence and police agencies are increasingly blurred. For
example: new ‘hybrid’ police-intelligence institutions have sprung up; information is freely exchanged between
police and intelligence organisations; and information gathered by intelligence agencies is used in criminal
proceedings. But an impulsive blurring of organisational boundaries is not a solution to growing fears of
terrorism and serious cross-border crime. Secret or sensitive information should be used in a way that balances
the need for intelligence gathering with the right of the defence to examine incriminating evidence.
Keywords
Law enforcement; intelligence; boundaries; criminal procedure; European Court of Human Rights; surveillance;
Central and Eastern Europe; Slovenia
The boundaries between different agencies in the control and security domain –
organisations such as the administrative authorities, special inspection services,
municipalities, the police, intelligence services, the army, private security services and
non-governmental organisations – are becoming increasingly indistinct (Bigo 2005;
Loader 2002; Bayley & Shearing 2001). This blurring has produced what some describe
as a state of ‘security androgyny’ (Easton et al. 2010) where the military adopts a more
constabulary role (Easton et al. 2010), the police adopts a paramilitary role and shifts
towards an intelligence-type of modus operandi, while intelligence work becomes ever
more engrained in everyday law enforcement, of which internal security challenges take
up a growing share (Lutterbeck 2005).
The merging or overlapping of powers between law enforcement and intelligence
agencies raises deep concerns about contemporary public policy and civil liberties.
Together with other shifts in the field of security (e.g. privatisation) the blurring may
well lead to a state of arbitrary ‘feudal security’ (cf. Wakefield 2005). The issue
addressed here is thus whether the erosion of boundaries between police and
intelligence agencies can undermine the rule of law and infringe disproportionately and
unnecessarily upon civil liberties. More specifically, the present article will address the
question of whether and how the police can bend the rules of criminal procedure by
making intelligence information available for use in court. From the perspective of
intelligence agencies, this means considering their new role in domestic security, their
relationship to the police and their freedom from the mechanisms which regulate police
operations.
The institutional separation of law enforcement and internal security from (foreign)
intelligence gathering in most cases predates the Second World War (Sweet 2010). The
line was drawn firmly by most countries after the Second World War. Subsequently, the
Cold War had enormous impact on the way security institutions themselves and the
boundaries between them developed (cf. Janssens 2010; Broesder et al. 2010; De
Weger 2010; Lutterbeck 2005; Bigo 2000; Kraska 1996). When the USA, for instance,
established the Central Intelligence Agency (CIA) within the National Security Act of
1947, the act required that the CIA have no police, subpoena, or law enforcement
powers or internal security functions. Meanwhile Central and Eastern European (CEE)
countries on the other side of the Iron Curtain separated their security actors with a
similar dividing line. Police agencies were to be concerned with internal security, while
secret intelligence services occupied themselves with threats to national security from
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‘the enemy outside’. The question of the proximity of these two fields resurfaced in the
CCE region after the collapse of the centralised authoritarian regimes in the 1990s, as
new democracies attempted building political systems based on the rule of law and
respect for fundamental human rights and liberties.
Almost everywhere one looks on either side of the Iron Curtain, in the USA from the
1970s and in CEE countries from the 1990s, liberal democracies tended to construct a
strong ‘information wall’ between intelligence and law enforcement. Moreover, law
enforcement was conceived as being a mainly reactive activity, and foreign intelligence
as a proactive one. But later, at the beginning of the twenty first century and most
notably after the terrorist attacks in New York, Madrid and London, the boundaries
started to shift again and the separation between security actors became blurred.
Seen from a longer historical perspective, the current relaxation of borders in the control
and security domain is not at all new. The influence of different agencies has varied over
time and so has the kind of work they carry out. A full account of these evolutions is
obviously beyond the scope of the present discussion. The focus here will thus be on how
law enforcement and foreign intelligence work has overlapped, in institutional,
functional, operative, technological and spatial terms, over the last two decades. We
may summarise the resulting blur as follows: institutionally, new hybrid agencies and
organs have been formed to facilitate cooperation and information exchange. In spatial
terms, law enforcement agencies have started focusing on external threats in
‘peacekeeping and stabilisation operations’ (cf. Last 2010) while intelligence agencies
began turning to domestic threats. In functional and operative terms ‘intelligence-led
policing’ is increasingly the prototype of all police work (cf. Lemieux 2008) and police
forces have been permitted to employ more invasive secret service-type powers
(examples would include digital searches with on-line ‘Trojan horses’ that fall outside the
scope of judicial overview1 and video surveillance enhanced with face-recognition or
registration plate-recognition systems).2
The blurring of these boundaries cannot be assessed simply as a positive or negative
development. It can be interpreted in several contradictory ways: as complementary or
competitive; as a trend providing a security net; or one demolishing the safety net of
human rights. Hermetically sealed dividing lines between police and intelligence lead to
unjustifiable inefficacy and inefficiency on both sides, and agencies should obviously be
allowed to exchange relevant information. But the examples to be outlined in this paper
will show that impulsively blurring the boundaries between these fields is not a solution
to growing fears of terrorism, cross-border crime and irregular migration. Walls torn-
down raise the level of ‘emergency criminal law’ (Vervaele 2005) and lead us towards a
‘pre-crime society’ (Zedner 2007).
This paper does not consider the numerous other ways in which the boundaries between
security actors are growing more indistinct, notably with the growing involvement of
military forces in domestic security operations (the ‘constabularisation’ of the military).
This is seen when armed-forces personnel undertake work developed in and for
peacetime situations, such as supporting civilian crisis management activities, enabling
the return of refugees, supporting elections, developing and maintaining infrastructure
and even escorting children on field trips or to schools (den Boer et al. 2010: 224). The
article also does not cover the increasingly important issues of intelligence obtained from
private parties and the privatisation of the intelligence network itself.
Instead, the article will begin by reviewing the state of existing research in the fields of
International Relations and Public Policy about security actors and changes they face in
contemporary liberal democracies. A more descriptive approach at the beginning of the
discussion will then seek to paint a ‘bigger picture’ of the institutional changes seen in
the control and security domain. The pages below then continue with a brief historical
overview of how the boundaries between two selected security actors have developed. In
order to avoid a more general discussion about overall trends in western liberal
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democracies, the article offers two country-specific case studies. The first deals with the
case of boundaries fading between two security actors in the USA, which contains the
largest network of intelligence services in the western world and has served as a model
for many of the world’s ‘emerging democracies’ and ‘transitional’ countries. Additionally,
as a protagonist in the Cold War the USA had paramount influence in the development of
(foreign) intelligence around the globe. The second case study presents the blurring of
police and secret service activity from the CEE region, specifically the former Yugoslavia
and one of its successor-states, the Republic of Slovenia. A pragmatic reason for the
selection is that the shifts being analysed here have been extremely understudied in the
CEE region (except with regard to the situations in the former war zones of Bosnia and
Herzegovina and Kosovo). A more substantive reason is that these countries have only
recently set in place new institutional arrangements for their central security actors (the
police, military, intelligence and private security industry). In the 1990s and 2000s CEE
countries underwent profound political, legal, economic and social changes, and, in the
case of the former Yugoslavia, even warfare. After the collapse of centralised political
regimes, which depending on the country and the period were mostly authoritarian,
these countries were expected to copy the institutional arrangements of the countries
standing on the ‘free’ side of the Iron Curtain. But the provision of these ‘good examples’
in the West then began spurring significant social, economic and technological changes
of their own. The ‘Western’ prototypes for ‘Eastern’ application were themselves being
profoundly revised in the face of new types of ‘asymmetrical’ security threats – threats
posed by non-state actors, terrorism, globalised organised crime, aided in part by a
revolution in information technology which brought means of surveillance beyond the
dreams of the Stasi or UDBA.
Moving on from these case studies, the article then turns to the means being used to
create and exploit the overlap of police and intelligence. It shows how institutional
blurring is occurring in the form of new hybrid police-intelligence institutions, through
enhanced cooperation and intensified information sharing and exchange between law
enforcement and intelligence agencies. It also traces the way intelligence agencies have
begun addressing internal security at the same time as new intelligence-style modus
operandi have been adopted by the police. In attempting to answer the question posed
in its title, the article then moves on to focus in more detail on the use of information
gathered by intelligence agencies in criminal proceedings. From there it tackles the
changes the two selected security actors face from a legal perspective, or more
precisely, from a criminal law perspective. It considers overview mechanisms in cases
where intelligence services provided crucial information to law enforcement agencies.
The ‘information laundering’ (Vervaele 2005) which results from this state of affairs is
presented as an outcome of the information wall between police and intelligence being
demolished; and as such the reason why the overlapping of police and intelligence
activity must be seen as a harmful policy so far as civil liberties are concerned.
EXISTING RESEARCH ON DISAPPEARING BOUNDARIES BETWEEN SECURITY
ACTORS
It has been noted frequently in recent years how the security landscape is ‘changing
profoundly’ (e.g. Easton et al. 2010) and how the boundaries between actors within the
control and security domain are blurring, overlapping or disappearing altogether.
Attention has been drawn to the important questions such trends raise with regard to
legal safeguards and respect for human rights (Easton et al. 2010; Andreas and Price
2001). Several of the essays collected in Easton et al. (2010) examine aspects of the
blurring boundaries, but focus particularly on how the military is undergoing a process of
constabularisation at the same time that the police are experiencing one of
militarisation. The focus of several parts of the book is on how the roles of the two have
evolved in peacekeeping and stabilisation operations (e.g. Janssens 2010, Last 2010).
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The book also tackles the various types of constabulary force employed as ‘bridging
actors’ between the police and military (Neuteboom 2010).
Others (O’Neill, Léonard and Kaunert 2011) point out how security policy developments
in Europe have been breath-taking both in speed and scale, and how institutional
rearrangements in the EU have gone hand-in-hand with theoretical developments in
Security Studies. The definition of security as referring to the security of the state, as
threatened by the military power of other states and defended by the military power of
the state in question (Mutimer cited in O’Neill et al. 2011), is now widely viewed as being
inadequate to cover the changing international environment that developed after the
Cold War. Since then Security Studies has been dominated by the so-called widening-
deepening debate, in which the widening dimension has focused on the extension of
security to other issues or sectors beyond traditional military concerns, while the
deepening dimension has questioned whether entities other than the state – such as the
EU, for example - should be able to claim they suffer security threats (Krause and
Williams cited in O’Neill et al. 2011). These authors raise an important question for
future research: why is it that some issues come to be socially defined as matters of
security while others escape securitisation?
The traditional institutional divides began changing as longstanding notions of internal
(domestic) and external (international) threats became obsolete. As noted by Bigo
(2005, 2000), today we are witnessing a transnationalisation of security and this in turn
has had far-reaching consequences for the rearrangement of the respective roles of
internal and external security agencies. But as Lutterbeck (2005: 232) also critically
observed, this had a profound effect on all security actors, although the research
literature to date has only been able to tackle in-depth the shifts affecting policing and
the domestification (also policisation or constabularisation) of the military. This gap is
therefore one the present article begins to fill.
Notwithstanding the lack of detailed study, a few scholars have considered the blurring
of law enforcement and intelligence agencies at a more or less introductory level.
Focusing exclusively on intelligence activities and agencies in Europe, Svendsen (2011)
observes that in the early twenty first century we witnessed greater levels of intelligence
co-operation than seen previously. He highlights ‘a plethora of overlapping international
intelligence liaison arrangements’ (Svendsen 2011: 537) that he groups in three broad
categories: bilateral relationships, multilateral Europe-centred arrangements for national
intelligence services (e.g. Club de Berne, the Counter Terrorist Group formed after 9/11,
the Middle European Conference, the plethora of NATO’s overlapping intelligence-
associated arrangements, Open source intelligence (OSINT) partnerships) and a
category encapsulating the European Union’s intelligence arrangements, which allow for
pockets of specialist intelligence liaison within the EU framework as part of the EU’s
Common Foreign and Security Policy and, as of 2010, the Common Security and Defence
Policy (e.g. the EU Satellite Centre (SatCen), the Joint Situation Centre (SitCen), the EU
Terrorism Working Group, MONEYVAL).
The increasing proximity of law enforcement and foreign intelligence activities has
received some attention in analysis of the post-Cold-War United States. For instance,
Andreas and Price (2001) claim that the American ‘national security state’ has
increasingly been transformed from a ‘war-fighting’ state into one focused on ‘crime-
fighting’ and that this shifting security agenda has led to the growing convergence of law
enforcement and foreign intelligence. Lutterbeck (2005), on the other hand, analysed
internal and external security in Europe and distinguished three shifts toppling the wall
between the two security actors: a shift in the focus of foreign intelligence agencies
towards internal (or transnational) security challenges, enhanced cooperation between
intelligence services and law enforcement bodies, and a shift towards intelligence-style
modus operandi by police agencies (Lutterbeck 2005: 238–241).
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Others have tackled the leaky boundaries between police and intelligence from the
perspective of a pluralisation of policing (Loader, 2000) or ‘plural policing’ (Crawford et
al. 2005). In discussing the ‘enhanced policing capacity in Europe’, Loader (2002: 133)
observes that the ‘core business’ of the supranational institutions, such as the European
Police Office (Europol) or the European Public-Prosecutors’ Office (Eurojust), lies
precisely in the ‘exchange of information and intelligence’. Similarly, the enhanced
policing capacity seen across Europe in the wake of intergovernmental co-operation is
attributed to policing efforts being centralised and co-ordinated. For example,
intelligence on criminal activities has become shared more efficiently than before, and
there has been the creation of a transnational police elite orientated to ‘forging common
‘solutions’ to common ‘security’ problems’ (Loader 2002: 133).
To sum up, the existing literature has tackled the following changing roles between
security actors with respect to: (1) a constabularisation or policisation of the military
(Broesder et al. 2010; Easton et al. 2010); (2) a militarisation of policing (Last 2010;
Kraska 2007; Lemieux and Dupont 2005); (3) an increasing role played by the
intermediary actors filling the ‘security gap’ between military and police, such as
gendarmerie forces (see Neuteboom 2010); (4) an increasing role taken on by private
security companies in peace-keeping operations and increasingly in domestic settings
(Završnik 2012); (5) a policisation of foreign intelligence work (Lutterbeck 2005); and,
(6) an ‘intelligence-isation’ of policing (e.g. Lemieux 2008).
The disappearing boundaries between security actors should be distinguished from the
boundaries between security areas (border control, police, defence, intelligence, prison
and justice reform etc.). For analytical purposes, it is important to note that the former
is an organisational divide, while the latter addresses functions that actors execute. The
convergence can thus be observed at different levels, such as at a functional level (e.g.
the growing involvement of intelligence services in domestic security missions), an
operative level (the police becoming more proactive) and a technological level (with the
police increasingly using surveillance technologies).
The present article contributes to existing scholarly work by providing additional case
studies to illustrate the disappearing boundaries between law enforcement and
intelligence agencies from CEE countries. By comparing the institutional arrangements of
the selected security actors from behind and in front of the Iron Curtain, the article will
highlight some trans-national features of the two institutions that transcend the national
specifics I shall turn to in the following sections. By comparing two examples from both
sides of the Cold War divide, it will become clear that the fundamental issue in such
institutional reconstruction work is how two legitimate interests can be balanced: namely
the state’s interest in providing security on the one hand and the individual’s right to due
process of law on the other. The proximity between law enforcement and intelligence
agencies is a matter of degree and dependent on many political, economic, even
emotional (fear of crime) and other contingent factors. These factors can be shown only
by looking in detail at the relevant features of a chosen state, its formation in statu
nascendi and its international security situation. It is historical analysis of this kind that
is taken up in the following section.
HISTORICAL OVERVIEW OF THE OSCILLATING BOUNDARIES BETWEEN LAW
ENFORCEMENT AND INTELLIGENCE AGENCIES
A distinct concept of the police force emerged in the nineteenth century as countries
sought the best means of keeping ‘streets safe’ that would simultaneously resemble and
yet be distinct from the military and operate as a kind of ‘civilised security’ (Jauregui
2010). Countries separated forces providing internal security from those providing
external security and some countries also formed a bridging actor in the form of a
paramilitary force or gendarmerie. Generally, the police focused on internal safety and
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became regulated by a legal regime of criminal procedure, while intelligence operations,
such as intercepting hostile foreign communications, fell under the remit of intelligence
services geared to monitor threats to national security from other states. Consequently,
intelligence agencies operated only under (political) parliamentary control or very limited
judicial control executed by the highest court in the jurisdiction. They have been allowed
to operate under much higher degrees of secrecy in order to protect their sources. One
immediate result of the lassitude with which their work was supervised was that while
information gathered by the police was admitted in court as evidence, that gathered by
intelligence agencies was not and could only serve as circumstantial evidence or a
prompt for further criminal investigation; which would then be conducted by the police
as criminal procedure dictated.
The boundaries between law enforcement and (foreign) intelligence that I claim are
overlapping should thus in fact be regarded as artificial from the beginning. In other
words, the law enforcement and intelligence communities have always exchanged
information, although the formalisation of the exchange and legal power of the
information being passed back and forth naturally varied with given periods and
countries. The boundaries are, as den Boer et al. put it (2010: 226), ‘a human construct
that serves specific purposes, including political, and depends on the time and place in
which they are active’.
The history of intelligence and law enforcement agencies described above is thus painted
with a very broad brush. More detail can be offered by taking into account the specific
purposes emerging at a particular a time and place. The discussion here will thus
continue by presenting two examples, those of the USA and Slovenia, the world’s largest
and most powerful democracy and a newly established sovereign state in the north of
the former Yugoslavia, which became independent in 1991. These countries are
different, if not antipodal, in several aspects. They differ not only in terms of their size
and age, but also their legal traditions (Anglo-Saxon v. Continental) and the sides they
took in the bi-polar division of the world during the Cold War. Although technically non-
aligned, Yugoslavia belonged in broader terms to what was viewed as the Communist
bloc. The last factor is crucial for two reasons. Firstly, the bi-polar division of the world
was sustained because countries in both blocs (together with the non-aligned group)
developed very similar security institutions (and, of course, engaged in very similar
activities) and secondly, the end of the Cold War was, amongst other things, a
significant cause behind the disappearance of boundaries taking place today in the
security domain.
Although the mainstream literature on the folding and breaking of these boundaries
repeatedly documents the highly problematic domestic surveillance activities of
intelligence agencies in the Eastern bloc, one should recall the intensity with which
secret services in the West also kept their own populations under observation. For
instance, the notorious Watergate affair disclosed the US government’s involvement in
domestic surveillance. Other leaks in the 1970s brought to public attention how the
American surveillance community was increasingly involved in counterterrorism,
counter-narcotics, and other non-proliferation activities carried out by law enforcement
agencies (Manget 2007). Similar events occurred during the Cold War in Western
Europe, where a secret NATO organisation called ‘Gladio’ was used to manipulate the
political climate in many European countries, (e.g. France, Belgium, Switzerland, Italy)
and to resist a Soviet invasion (Ganser 2005).
Given the extent to which intelligence agencies are involved in protecting the security of
the state, as the examples of the USA and Slovenia will show, they form an inherent part
of a sovereign state’s authority and are never subjected to normal judicial review. What
changed with the end of the Cold War was that intelligence operatives in both the
Western and Eastern blocs became deprived of their main targets. This sparked a frantic
search by these agencies for new fields of activity (Klerks 1993) and led to the walls
between the pastures of law enforcement and intelligence being undermined and
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knocked down, allowing bulls to charge freely and perhaps the occasional wolf to enter
the fold. The historical background of the two countries reveals how, despite the
manifold differences between them, the need for firm separation between the agencies
in question was at first recognised in both blocs for very similar reasons. But let us first
turn to the early United States.
Nathan Hale is usually considered the first American spy and was hung by the British
during the Revolutionary War (Sweet 2010). At the time there were no laws regulating
the intelligence community as a whole in America, but intelligence functions clearly
existed from the time before American independence. According to Sweet (2010),
intelligence in the USA has its earliest roots in the American Revolution and Benjamin
Franklin could be considered the first intelligence officer operating on behalf of the
United States. ‘[In Paris] he had a twofold mission: to get military and economic
assistance from France, and to establish and run a network of agents in London following
developments in the British government’ (Holt in Sweet 2010: 340). This early period of
unregulated intelligence in the USA is very similar to the situation in the former
Yugoslavia after the Second World War and its northern successor, Slovenia, in the early
nineties, as discussed next.
The organisation of intelligence in the former Yugoslavia followed the Soviet Union
model, separating the regular police (Milicija) and secret police (early name OZNA,
renamed UDBA in 1946 and later SDV in 1967). UDBA was an agent of communist
ideology established in each of the six republics that together constituted the federal
state. It was established in 1946 and abolished as SDV in 1990. During this period it
underwent substantial reforms, most notably in 1952 when it ceased to be a part of the
military and after abuses that surfaced in the 1960s. In 1966, the supreme political body
of the federal state (Centralni Komite Zveze Komunistov Jugoslavije) claimed that the
intelligence service should be strictly bound by the law (i.e. by the principle of legality)
and operating within the public’s oversight (Pusić 1985: 54). For an understanding of its
early role, it is crucial to contextualise its position in the wider international
transformations after World War II. The new Yugoslavia (SFRY) was then under
enormous pressure from both the Soviet bloc and the Western countries. It was not yet
a firm and cohesive entity either internally or externally. In the first 15 years after the
war, UDBA’s primary tasks related to domestic security, such as to discover and
suppress the activities of former German collaborators, pro-monarchy forces from
abroad and special agent groups that were trying to displace the governing elite and
induce a coup d'état (Pirjevec 2011). After the 1948 dispute of Yugoslavia with
Cominform (Communist Information Bureau – the international communist movement),
i.e. between Stalin and Tito, Yugoslavia leaned to the West, but remained relatively
independent of both of the blocs. It started to shape the so called ‘third way’ in the form
of the non-aligned movement that embraced three quarters of the world population soon
after its inception.
On the other hand, the Yugoslav army was another strong political actor, a state within a
state which never submitted to political or any other form of review with its own
intelligence service. Its engagement in political life surfaced only occasionally into public
view, especially in the 1980s with the rise of critical movements in the northern Yugoslav
republics of Slovenia and Croatia. The army then claimed that appeals to convert the
country to a democratic political model and submit it to the checks of a civil society were
threats to constitutional order and the sovereignty of the federal state, i.e. a prime
intelligence domain. But the noteworthy particular in this conflict, especially with regard
to the Balkan War that resulted in the 1990s, is that the Yugoslav military system
consisted not only of the centralised Yugoslav People’s Army (Jugoslovanska ljudska
armada; JLA), but included also special complementary armed divisions called the
Territorial Defence Forces (Teritorialna obramba; TO) (Bolfek 2010).
The trigger for the development of the TO occurred in 1968 when the seizure of
Czechoslovakia by Warsaw Pact troops gave a ferocious warning to Yugoslavia that its
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military and political position was precarious in the extreme (Bolfek 2010). Having
realised that Yugoslavia would not be able to defend itself from an eastern attack, the
military and political establishment decided to use the fruits of experience from Partisan
guerrilla warfare during World War Two. A new military protocol, ‘The Doctrine of Total
People’s Defence’ was drawn up, and the high command of the TO was established in
1968. A new system of Territorial Defence Forces was formed within republics,
municipalities, local communities, and even labour organisations. The TO was different
from a typical military organisation. It remained subordinate to the JLA, but the
command language was local (i.e. Slovene in Slovenia and not the official Serbo-
Croatian language) and the public accepted its members as soldiers of the individual
republics rather than the Yugoslav federation. With the decentralisation of the federal
state of Yugoslavia in 1974, the TO was further transformed to constitute the armed
forces of particular Yugoslav republics, setting the conditions for the new separate
republican armies which became so active in the 1990s (Bolfek 2010).
These two armies and their parallel intelligence agencies significantly marked the
dissolution of the federal Yugoslavia in the 1990s. When the federal authorities issued an
order commanding TO units to surrender their arms to the JLA (issued on 15 May 1990),
some TO units did hand over their weapons, but many of those established within
municipalities and local communities refused to comply. In response to the order to
disarm, a group in Slovenia called the ‘Network for the Deployment of National
Protection Forces’ (Manevrska struktura narodne zaščite; MSNZ) was formed from a
group of police officers (Milicija) and TO members who came under the command of the
Republican Secretariat of Defence and Republican Secretariat of the Internal Affairs. This
armed formation secured the country three months later by repelling an attack from the
JLA, thereby safeguarding the independence of Slovenia. The activities labelled as crimes
against the constitutional order were viewed ex post facto as heroic acts establishing a
new independent state.
This brief historical overview shows how the boundaries between different actors within
the control and security domain are predominantly determined by circumstances, time
and place. The position a particular agency occupies in the control and security domain is
always the result of how that domain has evolved in a particular country. Countries in
statu nascendi tend to rely increasingly on intelligence activities both to provide internal
stability and to secure the state’s place in the international order of states. In both
countries one can discern the type of ‘pre-legal violence’ conducted by the intelligence
agencies establishing the law, as described by Walter Benjamin in his opus. Only
gradually, as the crisis situation subsides, is it possible for the intelligence and police to
go their separate ways (e.g. after 1952 in former Yugoslavia). When this separation does
occur, in a democratic country the bulk of the intelligence community remains in some
connection with the armed forces, with each branch of the military retaining its own
intelligence departments and personnel.
Returning to our two examples, it should go without saying that there are innumerable
differences, qualitatively and quantitatively, between the security domains of Slovenia
and America. A general pattern is discernible nonetheless in a common effort to
segregate the fields of law enforcement and military intelligence. However, over the past
dozen years or so, that segregation has been placed under great strain in both countries
(Best 2007 in Sweet 2010: 340): cross-border crime, organised crime and the
sensational terrorist attacks at the beginning of the new millennium set in motion a
process which has brought the separate agencies closer again. The question to be
addressed in a later section is how the regulation of their work has evolved. As we shall
see, the proximity of both actors led to very similar safeguards and checks being set in
place in both the United States and Slovenia, and also at a European level by the
European Court of Human Rights. But first let us verify the thesis that law enforcement
and intelligence are indeed becoming ever more closely intermeshed: where is the
linkage between the agencies most manifest?
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WAYS IN WHICH THE LINES BETWEEN LAW ENFORCEMENT AND INTELLIGENCE
AGENCIES ARE DISAPPEARING
Proximity through hybrid institution and omnibus legislation
It was found that security actors could be brought closer together by forming new hybrid
institutions to connect them. Such institutions began to emerge extensively at the
beginning of the twenty first century in the majority of European countries (Lutterbeck
2005) and the United States. The main justification for such institutional rearrangements
was that they would foster information sharing and provide separate institutions with
stronger and more integrated analytical expertise.
To improve cooperation between law enforcement and intelligence communities, the US
Department of Justice created the Executive Office for National Security. This
coordinates those activities of the Justice Department that involve national security
issues, acts as a forum for developing national security policy and serves as a focal point
linking the Justice Department with other agencies on matters of national security. Other
new institutional mechanisms to facilitate better collaboration in the US context include
the Intelligence-Law Enforcement Policy Board, co-chaired by the deputy director of the
CIA and the deputy attorney general, the joint Intelligence-Law Enforcement Working
Group, and the Special Task Force on Law Enforcement/Intelligence Overseas (Andreas
and Price 2001).
The post-socialist process of economic, political and social transition which Slovenia
underwent put the smaller country in a different position. Marked by ruthless
privatisation and the denationalisation of once public property, with relatively high rates
of systemic corruption, the newly established state lacked the resources and political
determination to transform completely the institutional arrangement of its security
actors that had existed at least from the 1960s onwards. It seems that the governing
elite did not have an interest in establishing strong security apparatuses. UDBA was
disbanded, but at the same time the newly established intelligence agency (SOVA) was
left in a relatively weak position: secret documents were stolen from archives, agent
networks revealed to the public etc. If other countries changed intelligence agencies into
overwhelming (‘dangerous’) domestic security actors by deepening (e.g. with new
powers in existing working areas) and widening (in the domestic domain) their powers,
the newly established state has not been able to replace the old intelligence agency with
a strong but democratically confined guardian of national interests. The example of the
National Bureau of Investigation created in 2010 shows how even less ambitious projects
to adapt law enforcement to the increasing problems of corruption, organised crime and
other serious cross-border crime have been blocked.
The motive for the formation of the Bureau was to increase the efficiency, efficacy and
autonomy of law enforcement in detecting and investigating serious criminal offences,
for example, economic and financial crime, through a multidisciplinary approach in the
form of a one-stop office with special investigation teams based at the same location. It
was also conceived as a body to co-ordinate other institutions (the Tax Administration,
the Customs office) on a national and international level. But despite the Bureau being
merely a new criminal investigation unit of the General Police Administration, positioned
within the Criminal Police Directorate, it already faces governmental criticism on account
of its autonomy.3 Since the future of a criminal investigation unit within the police is
itself uncertain, enhanced cooperation between the law enforcement and intelligence
communities or substantial institutional rearrangements seem very distant options, a
crucial aspect for the arguments advanced in this article.
The institutional arrangement of security actors should provide a proper balance
between competing interests and not neglect interests, either by tearing down the
institutional and functional divides between security actors and putting civil liberties at
risk or, as the Slovenian example shows, by limiting the state’s legitimate interest in
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providing national security. The other means of increasing proximity between security
actors is the use of special omnibus legislation that traverses and amends numerous
regulations from a certain perspective or in pursuit of a set objective. The USA PATRIOT
Act 2001,4 rushed through Congress in October 2001, has been understood by many as
‘the most wide-ranging law passed in recent memory’ (Sweet 2010: 343). The act gave
the government significant new powers to conduct electronic surveillance of the internet
and to foster information collection and information sharing. It granted the government
wider authorities, enhanced surveillance techniques, and enabled swifter prosecutions
and the imposition of severer sentences. This was achieved by amending at least 12
federal statutes, mandating dozens of new reports, and directly appropriating USD 2.6
billion (Sweet 2010).5
The shift of intelligence towards internal security
The policisation of foreign intelligence agencies started in the early 1990s when
intelligence agencies in European countries entered various new domains previously
regarded as the preserve of the police. The Slovenian Intelligence and Security Agency
(SOVA) moved towards internal security challenges with amendments adopted in 2003,
although these changes did not significantly alter the direction of the overall trend of
undermining the power and reputation of the new agency.
But there was another unfortunate practice of the agency related to the transition
period. As we shall see later, there was a secret arrangement between SOVA and the
police allowing the former to monitor electronic communications that should in fact only
have been available to the police. But in general, SOVA’s remit was to provide
intelligence relevant for safeguarding the security, political and economic interests of the
state from foreign threats only until 2003. But the amending provisions now empower
SOVA to conduct domestic surveillance of telecommunications, albeit under the
supervision of the President of the Supreme Court of Slovenia.
The extension of the Slovenian central intelligence and security service into the domestic
security domain nevertheless offers another insight into the possible consequences of
relaxing or removing institutional boundaries. Intelligence services can also suffer from
loss of (distinct) powers and identity. A close reading of the Slovene Intelligence and
Security Agency Act (the SOVA Act hereafter) amended in 2006 indicates that SOVA’s
shift into the domestic realm was accompanied by an increasing ‘juridicisation’ of its
activities. This, I suggest, not only goes hand-in-hand with the overall trend of
undermining the power of the new Slovenian intelligence agency, but also shows how
any intelligence agency can suffer from loss of distinct identity when moving into the
new security domain. For instance, a request from SOVA to intercept the
telecommunications of an identifiable individual must be approved by the judiciary (here
the President of the Slovenian Supreme Court) and not just by the director of the
agency. Furthermore, it can only be authorised by a ‘written order issued for each
individual case’, if it is ‘very likely’ that the security of the state is at risk (Article 24 of
the SOVA Act). The introduction of a standard of proof that the agency must meet in
order to obtain this written order also pushes the intelligence agency closer to the
restraints and regulations placed on law enforcement. There is no doubt that as its
sphere of operation comes to encompass domestic security, the intelligence service
should be subjected to increased judicial review, to the same extent as law enforcement
agencies. But this can also cripple the service’s surveillance powers and also open to
question why a separate intelligence service should exist at all.
The shift of intelligence towards the field of internal security is similar in the USA.
According to Andreas and Price (2001: 41), the government started using rhetoric
explicitly in favour of changing the ‘traditional’ domains of intelligence employment as
early as July 1995, when President Clinton ordered intelligence agencies to prioritise
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such ‘transnational threats’ as organised crime in addition to their traditional concerns.
The new CIA orientation towards domestic security is reflected in the establishment of
the Director of Central Intelligence (DCI) Crime and Counter-Narcotics Center where
Drug Enforcement Administration and FBI agents are assigned to work with the CIA
(Andreas and Price 2001: 41).
The shift of police towards intelligence
The ‘intelligence-isation’ of police agencies should be read in the sense that they have
been resorting to ever more sophisticated surveillance technology in recent years, and
have been granted much more intrusive investigative powers in order to use it. In doing
so they have brought their modus operandi closer to that of intelligence agencies
(Lutterbeck 2005:240). Technologically enhanced surveillance is changing policing into
an ‘almost entirely informationalised activity’ (Loader 2002: 142). This turn goes
together with the new tendencies towards creating a ‘pre-emptive’ criminal justice model
(Zedner 2007) or ‘preventive law enforcement’ (Cole and Lobel 2007) whereby criminal
justice actors are orientated not only to crimes already committed, but also to detecting
the perpetrators of crimes that have yet to take place. Increasingly, the police ‘trawl’
through databases in order to match the names they contain against a pre-determined
profile. Such police searches are commonly intelligence-led – based on secret
information beyond the reach of legal contestation and carried out as part of European
(rather than just national) policies (Brown and Korff 2009: 125).
Another way of overcoming the boundaries between the core agencies in the control and
security domain is subtler yet still more effective. Today the quality of all police work is
measured from an intelligence perspective, or as Lemieux (2008) puts it, intelligence-led
policing has become the template for all police work. Converging the police and
intelligence communities’ cultures, guiding value systems and principles of work through
joint training programmes can raise levels of trust between agencies and thus foster the
confidence necessary for information sharing, but today law enforcement is increasingly
driven by ‘the idea that all police work, including patrol, should be intelligence led... [And
this is] causing a “minor revolution”’ (Lemieux 2008: 163).
Information sharing and exchange
Information sharing and exchange does not in itself blur the institutional barriers
between agencies, but the nature of the large-scale information sharing activities being
carried out does shed new light on the position of intelligence activities in the law
enforcement domain. The resources spent on and the knowledge developed by such
large-scale information gathering and analysis is de facto changing police officers into
intelligence actors or intelligence material users. It would be too contentious to claim
that the right to be free of unwarranted surveillance by law enforcement agencies is
being directly jeopardised. The information exchange being carried out by large-scale EU
information management systems (e.g. SIS II, VIS, EURODAC, API, ECRIS, PNR etc.)6 is
regularly facilitated horizontally, i.e. only among police personnel. But the large-scale
cross-border information management is causing the cultural borders between law
enforcement and intelligence communities to disappear.
Some EU initiatives are having a direct impact on the functional borders among agencies
in the control and security domains. At the end of May 2004, the European Commission
issued a Communication to the Council of Europe and the European Parliament the aim
of which was enhancing access to information by law enforcement agencies - EU
information policy (European Commission 2004). This would then facilitate the free
movement of information between the competent authorities of the member states. The
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Commission claimed: ‘Compartmentalisation of information and lack of a clear policy on
information channels hinder information exchange’ (European Commission 2004: 3). The
final goal of the Commission set forth in the document was ambitious: it proposed
introducing intelligence-led law enforcement at local, national and European levels.
The pro-active agenda advocated in the Communication aimed precisely at overcoming
barriers between the law enforcement and intelligence communities. The intention of the
Commission is to improve information exchange
not only between police authorities, but also between customs authorities,
financial intelligence units, the interaction with the judiciary and public
prosecution services, and all other public bodies that participate in the process
that ranges from the early detection of security threats and criminal offences to
the conviction and punishment of perpetrators (European Commission 2004: 4).
To paraphrase Haggerrty and Ericson’s notion of ‘rhizomatic surveillance’ (2000), such
‘rhizomatic data-sharing’ blurs the functional boundaries between agencies even further.
The European Criminal Intelligence Model (ECIM), the construction of which the
Commission set in motion with the Communication, is further supported by a set of
minimum standards for national criminal intelligence systems. The latter should enable
compatible threat assessments at the European level and be based on comparable core
elements for effective access, collection, storage, analysis and exchange of data and
information. The Commission claims, amongst other things, that intelligence agencies
could and should play an important role in the fight against crime and that police work
and judicial activity should both rely more on intelligence. In other words, the ECIM is a
policing plan for co-ordinating the investigation of organised crime throughout the EU, a
plan based on a method of ‘intelligence-led policing’ (cf. Brady 2007: 17).
Another instrument for the regulation adopted at the EU level for collating, analysing and
enhancing information from intelligence and police services is a special Counter-
Terrorism Task Force established within Europol. The Task Force was re-established as a
separate entity after the terrorist bombings in Madrid. This specialised unit consists of
terrorism experts and liaison officers from police and intelligence services of the EU
member states. Its brief is to collect all relevant information and intelligence concerning
the current threat of terrorism in the European Union; analyse the collected information
and undertake operational and strategic analysis; and formulate threat assessments,
including targets, modus operandi, and security consequences.
While Europol is very protective of the role it takes in specific cases, it is difficult to
assess the blurring taking place at the EU level. The concrete accomplishments achieved
through liaisons between agencies are often achieved by European counter-terrorism
officials meeting separately from EU Ministers. Deflem (2006: 346) reports how several
meetings of police and intelligence officials were held (‘EU Police chiefs’) to discuss the
Madrid attacks immediately after the bombings there in 2004. In Dublin, the European
Chiefs of Police Task Force, representing all 25 (then current and future) EU states, held
a two day conference with representatives of Europol, Interpol, and police officials of
Norway and Iceland. Coinciding with the police meeting was an additional meeting of
intelligence chiefs from five European nations (Britain, France, Germany, Italy and
Spain) in Madrid. Similarly, a few days after the 7 July bombings in London, a
confidential meeting of police, intelligence officials and forensic experts was held at
Scotland Yard.
There are two other important documents with regard to information sharing and
exchange at the EU level. First, there is the Hague Programme (European Council 2004),
which sets out the principle of availability of information and access to information and
invokes the goal of setting up and implementing a methodology for intelligence-led law
enforcement to follow at EU level. Second, there is the Treaty of Prüm (Council of the
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European Union 2005), also referred to as the Prüm Convention or the Schengen III
Agreement from 2005, adopted outside the EU framework and later subsumed into the
provisions of EU law for police and judicial cooperation by Council Decision
2008/615/JHA (Council of the European Union 2008).7 The Treaty of Prüm implements
the Hague programme. Its objective is the ‘further development of European
cooperation, to play a pioneering role in establishing the highest possible standard of
cooperation especially by means of exchange of information’ (Council of the European
Union 2005: 3). Further developments at the EU level are expected from the new
European Information Exchange Model in 2012 as indicated in the Commission’s
Stockholm Programme Action Plan (European Commission 2010).
The question that arises at this stage is why the proximity of the agencies discussed
here should be viewed as problematic in the first place. I have claimed throughout this
article that the ever-closer relationship between police and intelligence agencies
undermines the right to a fair trial. Information gathered by intelligence agencies
typically reveals concrete actions by definite individuals. Should such information be
used only to shape policy-makers’ decisions and set overall policies, or should it be used
to prosecute actual suspects? There is no straightforward and general answer to this
question. But some countries such as the USA and Slovenia have set up special
balancing procedures for cases where the interests of the state in pursuing security
collide with individual human rights. Because Slovenia is a member state of the Council
of Europe, the concern now will be to gain an overview of the European Court of Human
Rights’ decisions regarding such balancing procedures.
LIMITING THE USE OF INTELLIGENCE DATA IN CRIMINAL PROCEDURE
Information gathered by intelligence services can be used in criminal proceedings in
several ways (Vervaele 2005: 3, 24). First, such information can be used as a lead for
initiating criminal investigations. This is unanimously regarded as the least problematic
issue. Second, intelligence information may give rise to reasonable suspicion or another
standard of proof or form a sufficient basis for the use of coercive measures sanctioned
under criminal law. Such use of intelligence can be regarded as information laundering
(Vervaele 2005: 25), since the information concerned is issued by a different body to the
one which first gathered it and is wrapped in the veil of ‘confidential sources’. Third,
there is the use of information directly provided by intelligence sources as legal evidence
in criminal proceedings (through the use of secret evidence in ex parte procedures). This
is the issue that provokes the most intense debate. As with the second type of usage,
information used directly in this third manner is subject to no legal check before it is
collected, and subsequently acquires the status of legal evidence without any
safeguards.
Limiting the use of intelligence in the U.S.
The foundations for regulating intelligence and establishing its legally non-binding nature
can be traced as far back as the writings of the American Founding Fathers. Thomas
Jefferson wrote to a friend:
A strict observance of the written laws is doubtless one of the high duties of a
good citizen, but it is not the highest. The laws of necessity, of self-preservation,
of saving our country, by a scrupulous adherence to written law, would be to lose
the law itself, with life, liberty, property and all those who are enjoying them with
us: thus absurdly sacrificing the end to the means (Manget 2007).
In other words, intelligence was always supposed to be governed by a law of self-
preservation that stands above the written (state-imposed) law. The sense that the law
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of self-preservation governed secret intelligence activities, as Jefferson explained, added
to the Federal Judiciary’s reluctance to exert its jurisdiction in such areas (Manget 2007).
This reluctance to regulate intelligence activities began to dwindle later in the 1970s,
prompted by a number of cases in which intelligence deviated from its traditional role.
The activities of the executive branch at this time came under growing scrutiny from the
press, the public, Congress and the Federal Judiciary. Since then judges have fashioned
their own procedures to balance the competing interests of the state and those of an
individual falling under the state’s gaze (Manget 2007).
The Classified Information Procedures Act (CIPA) passed in 1980 began regulating the
use of intelligence and defined a procedure for balancing government’s right not to
disclose evidence against a suspect with the suspect’s right to a fair trial. In order to
avoid previous ad hoc treatments of the issue, the CIPA’s procedure set the conditions
under which classified information can be reviewed by means of regular criminal
procedures for establishing the discovery and admissibility of evidence before the said
information is publicly disclosed. Judges were allowed to determine issues presented to
them both in camera (in chambers) and ex parte (presented, that is, by only one side,
without the presence of the other party). Both interests were thus met. Classified
information was revealed to the defendant to the extent necessary to ensure a fair trial
and the government was allowed to minimise the quantity of classified information being
put at risk of public disclosure by offering unclassified summaries or substitutions for
sensitive materials.
Limiting the use of intelligence in Slovenia
Despite the formal separation of law enforcement agencies from the new intelligence
agency, the Slovenian Intelligence and Security Agency (SOVA), formally established as
an independent agency in April 1989, continued to focus on internal affairs for quite
some time after the declaration of independence in the early 1990s. It took two decades
for the Constitutional Court of the Republic of Slovenia to rule on a proper minimisation
procedure (or so- called ‘information-screening wall’) in decision Up-412/03 in 2011
(Gorkič and Šugman Stubbs 2010). The Constitutional Court thus finally separated the
functioning of the intelligence agency from that of law enforcement.
In the same decision (Up-412/03) the Constitutional Court revealed a secret agreement
from 9 September 1993 between the Ministry of Interior (police) and SOVA. The Court
was called upon to rule on the constitutional complaint of an appellant who asserted that
his right to privacy (vouchsafed by Article 35 of the Constitution of the Republic of
Slovenia) and privacy of correspondence and other means of communication (Article 35
of the Constitution of the Republic of Slovenia) had been violated by SOVA’s execution of
secret surveillance. The appellant was suspected of drug trafficking and a court ordered
that secret surveillance of his telecommunications be carried out. Legally, the monitoring
of electronic communications by the use of listening and recording devices must be
implemented by the police, according to an explicit provision of the Criminal Procedure
Act (then § 2 and now § 5, Article 152 of the Criminal Procedure Act). However,
according to the secret agreement, SOVA was authorised to carry out monitoring instead
of the police, because the police ‘was not in possession of listening and recording
devices’. The police, noted the Constitutional Court, is ‘the competent agency in a
democratic society vested with powers to prevent and repress crime including the
legitimate use of force’ (§ 13 of the Up-412/03 decision). By defining the agency
authorised to execute an order (an investigating judge) and the form of an order
(written), the legislator indicated that not only the ordering phase, but also the
executing phase is of great importance. The Constitutional Court held that the
appellant’s right to privacy and privacy of correspondence and other means of
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communication had been violated. The records gathered by the intelligence agency were
thus to be excluded from the new trial.
The Constitutional Court made another groundbreaking ruling effecting the proximity
between law enforcement and intelligence in Slovenia with decision U-I-271/08 from 24
March 2011, which stipulated that confidential evidence may be concealed from the
defence for three reasons: when national security is concerned; when witnesses at risk
of reprisals need to be protected; or, when police investigation methods need to be kept
secret. The minimisation procedure contested before the Court was the following: when
the police wished to conceal evidence for the above reasons, the defence could request
that the Minister of the Interior relieve a police agent or other individual assisting the
police of their duty to keep information secret (Article 56 of the Police Act). However, the
Constitutional Court held that such a minimisation procedure would violate the
defendant’s right to judicial protection, which provides everyone with the right to have
any decision regarding his or her rights, duties and any charges brought against him or
her made by an independent, impartial court as constituted by law (Article 23 of the
Constitution of the Republic of Slovenia).
The Court nevertheless admitted that the equality of arms does not require a complete
disclosure either of incriminating evidence or indeed evidence benefiting a defendant.
The rights of the defence are not absolute and evidence may be kept secret in special
circumstances, if such a measure is necessary and proportionate, stipulated the Court.
But the Court also ruled that when immunity is claimed for a document in the public
interest, it is for the court to decide whether the claim should be upheld or not. The
regulation that vested such powers in the Minister of the Interior thus also violated the
defendant’s right to defend him or herself.
The Court outlined the proper minimisation procedure to be followed until the Police act
is amended: when the prosecution claims public interest immunity for evidence and the
Minister of the Interior does not relieve a police agent or other person of their duty to
keep information secret, the Minister must inform the president of the Court of Appeal
about the situation, providing an explanation and his decision. The president of the Court
of Appeal must then trigger an ex parte procedure and notify the defence that the
procedure has begun. The minimisation procedure remains adversarial only to the extent
permitted by the nature of the concealed evidence. The president of the Court of Appeal
makes a decision after an in camera hearing and the decision is final.
The use of intelligence in the ECtHR case law
The European Court of Human Rights (ECtHR) has ruled on the use of intelligence
information in criminal proceedings in cases involving the use of evidence provided by
anonymous witnesses, undercover agents, informants and agents provocateurs. The
court’s case law unveils the growing intelligence powers discernible in ‘regular’ criminal
procedure and a permanent threat to the rights to liberty (Article 5 of the Convention for
the Protection of Human Rights and Fundamental Freedoms; ECHR) and a fair trial
(Article 6 ECHR).
Regarding the second manner in which information gathered by intelligence agencies is
used in criminal proceedings, that is when intelligence information forms a sufficient
basis for the use of coercive measures under criminal law, the ECtHR admitted in Fox,
Campbell and Hartley v. UK (1990) that in the case of terrorism intelligence is often used
that may not be made public, not even in a court of law, without endangering the
source. The central question in the case was whether authorities must disclose
information, and if so, which information in order to enable a test of the lawfulness of
the arrest in the event that it was based on confidential intelligence. The court concluded
that ‘the respondent Government has to furnish at least some facts or information
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capable of satisfying the Court that the arrested person was reasonably suspected of
having committed the alleged offence’. It subsequently decided that there had been a
violation of Article 5(1)(c) of the ECHR.
The other question that emerged before the ECtHR is who should perform the balancing
act. In Chahal v. UK (1996) the ECtHR dealt with the proper procedure to be followed
when the prosecution claimed public interest immunity. It emphasised that the balancing
exercise must be performed by the judge and not by panels without judicial competence.
The procedure on how to balance the right to disclosure of evidence with other interests,
such as national security, was tackled in R. v. Davis, Johnson and Rowe (1993) (UK) and
later by the ECtHR. The Court of Appeal held that it was not necessary in every case for
the prosecution to notify the defence when it wished to claim public interest immunity,
and outlined three different procedures to be adopted. The first procedure, which must
be followed in all cases, stressed the Court, was for the prosecution to give notice to the
defence that they were applying for a ruling by the court and indicate to the defence at
least the category of the material that they held. The defence would then have the
opportunity to make representations to the court. Second, however, where the
disclosure of the category of the material in question would in effect reveal information
which the prosecution contended should not be disclosed, the prosecution should still
notify the defence that an application to the court was to be made, but the category of
the material need not be disclosed and the application should be delivered ex parte. The
third procedure the Court set forward would apply in exceptional cases where revealing
even the fact that an ex parte application was to be made would in effect disclose the
nature of the evidence in question. In such cases the prosecution should apply to the
Court ex parte without notifying the defence.
This case was brought before the ECtHR because the defence claimed the Court of
Appeal should order the prosecution to disclose the name of any person to whom any
reward money had been paid for information given to the police. In Davis and Rowe v.
the UK (2000) ECtHR declared the trial of these appellants to have been unfair and that
Article 6 § 1 of the ECHR had been violated. The Court held that English law requires
that the prosecution authorities disclose to the defence all material evidence in their
possession for or against the accused. But the Court also asserted:
… the entitlement to disclosure of relevant evidence is not an absolute right. In
any criminal proceedings there may be competing interests, such as national
security […], which must be weighed against the rights of the accused. […] In
some cases it may be necessary to withhold certain evidence from the defence so
as to preserve the fundamental rights of another individual or to safeguard an
important public interest. However, only such measures restricting the rights of
the defence which are strictly necessary are permissible under Article 6 § 1 […]
(§ 61 and § 62 of the judgement).
The ECtHR concluded that during the Davis and Rowe trial in the first instance the
prosecution had decided, without notifying the judge, to withhold certain relevant
evidence on grounds of public interest. Such a procedure, whereby the prosecution itself
attempts to assess how important concealed information might be to the defence and
weigh this against the public interest in keeping the information secret, does not comply
with the requirements of Article 6 § 1.
Lastly, in Edwards and Lewis v. UK (in 2003; upheld by the Grand Chamber in 2004),
the ECtHR ruled on the question raised by the third way in which information gathered
by an intelligence agency can be put to use, i.e. whether such information may be used
as a legal proof in criminal proceedings. In this case the defence was not informed of the
type of evidence involved, since it was obtained by agents provocateurs and the
prosecution applied for an ex parte procedure, but the material in question was later
used as evidence in the trial. Moreover, the undercover police officer concerned was the
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only witness called during the hearing and was questioned anonymously. It was thus
even more crucial for the defence to be able to verify whether this constituted
entrapment by the police. The ECtHR established a violation of Article 6 § 1 of the ECHR.
To conclude, the intelligence services have the task of recognising future or current
threats to the democratic legal order and subsequently alerting the competent
authorities of these threats. Law enforcement should thus be informed of the outcomes
of intelligence operation, although it remains crucial that the secret intelligence
information is used in criminal courts only under certain special conditions. Criminal
proceedings should include the so-called minimisation procedure, fashioned in a way that
both protects sensitive intelligence information and enables the defence to examine
incriminating evidence at the same time.
CONCLUSION
Discussion of the boundaries between different actors within the control and security
domain is shaped first and foremost by questions of history and place. The cases of USA
and Slovenia presented here demonstrate how when both nations gained independence,
the paths of intelligence and law enforcement were divided. The intelligence
communities then worked in separate fields for years (Best in Sweet 2010: 340) until
cross-border crime, growing organised crime and later the sensational terrorist attacks
of the early 2000s, or the shifts in perception of the real security threats posed by such
attacks, set in motion a process by which the spheres of intelligence and police work
drew closer once again.
What has changed today is that law enforcement is becoming more reliant on
intelligence and is focusing more on the task of detecting future risks of crime and
disorder. The perception that the problems of terrorism, organised crime, cybercrime,
human trafficking and other forms of serious crimes threaten the very foundations of
democratic nation states has encouraged or excused moves to close the gap between
agencies in the control and security domain. These threats, whether perceived or real,
made law enforcement officers not only the first responders but also first preventers of
crime and disorder. These changes expanded the role of intelligence and led to an
enhanced policing capacity. They facilitated the exchange of information between law
enforcement agencies and the intelligence community. They triggered the formation of
new hybrid organisations. They merged police and intelligence cultures. They raised
special far-reaching ‘omnibus’ legislation. And finally, they pushed information gathered
by intelligence services for use into criminal proceedings. This last development involved
by-passing fundamental criminal procedure rights (such as the right to a fair trial) in all
jurisdictions which have not installed a special minimisation procedure to balance the
rights of the government with the defendant’s right to due process of law. It may be
necessary to withhold certain evidence from the defence so as to preserve the
fundamental rights of another individual or to safeguard an important public interest
(e.g. not to compromise a source of intelligence or disclose the methods and means of
police work). Despite these developments, the article argues that these balancing acts
between defendants’ right to a fair trial and public interests should be performed by an
independent judicial body. Categorisations such as police, intelligence or military should
thus remain distinct and discrete regardless of the undoubted facts that the security
actors themselves are ‘only human’, and that in practice their work overlaps and
requires a great deal of communication and co-operation: those facts provide the very
reason why criminal proceedings should be protected by keeping the official and legal
lines between intelligence and law enforcement as absolute as possible.
The article does not tackle other equally important boundaries in the control and security
domain, especially not the process of privatisation of intelligence activities. With the
deepening of the financial crisis in Europe member states are forced to outsource their
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security-related tasks to the ‘free market’ and to delegate them to the European level.
But private companies are not as intensely regulated as states when conducting
intrusive, for instance, surveillance measures for their clients. And the same could be
said for the EU institutions. The biggest threat to civil liberties should be expected to
come from private and not public security agencies in the future. Future research should
also analyse other negative aspects of blurring boundaries between the two selected
security actors, not only the information laundering effect. Lastly, it would be of great
benefit if future research would also tackle the positive outcomes of blurring boundaries,
such as the trend towards increased regulation of intelligence agencies. This was only
briefly mentioned in the article, but deserves an in-depth elaboration on its own.
***
ACKNOWLEDGEMENTS
I am indebted to the Research Council of Norway for the Yggdrasil fellowship in 2012
that facilitated this article. I would like to record my gratitude also to the members of
the Working Group 4 Public Policy and the Regulation of Surveillance of the COST Action
IS0807 ‘Living in Surveillance Societies’ for providing comments on an earlier draft of
the paper and the anonymous reviewers and editors for helpful suggestions on
improving the article. I feel very much obliged to John Stubbs, who completed the line
editing that far surpasses the usual work of an editor.
1 The Bundestrojaner (‘Federal Trojan’) affair in Germany, for instance, exposed the possibilities of
Federal Police malware.
2 The New York Police Department is supposed to be launching a ‘Domain Awareness’ computer system
that links existing police databases with live video feeds, including cameras using vehicle license plate
recognition software.
3 New proposal for the Act on Police Organisation and Work (ZODP) from September 2012. More at
www.dnevnik.si/novice/slovenija/1042550385, accessed 12 August 2012.
4 PATRIOT is an acronym for ‘Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001’.
5 Similar far-reaching amending legislation was adopted in Germany, where The Counter-Terrorism Act
significantly improved the sharing of information between authorities by amending at least 14 laws.
More at
http://www.bmi.bund.de/EN/Themen/Sicherheit/Terrorismus/SichBehoerden/SichBehoerden_node.html,
accessed 16 August 2012.
6 See the Communication from the Commission to the European Parliament and the European Council,
Overview of information management in the area of freedom, security and justice (COM(2010)385 final,
20 July2010).
7 The European Council’s Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border
cooperation, particularly in combating terrorism and cross-border crime.
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This chapter outlines the transformations of surveillance in the Central and Eastern European (CEE) countries occurring as a result of profound economic, social and political change in the post-socialist transition. It begins with the socio-economic framework in which new and historically significant technologically enhanced surveillance practices (TESPs) should be understood. This chapter works from the position that flourishing multi- and cross-disciplinary surveillance studies have overlooked non-western and non-Anglophone experiences of surveillance. It fills this gap by situating the surveillance question within the field of social control theories which were highly elaborated in the CEE region. These theories approached surveillance from a different world view, with different research questions. After putting surveillance within this social control context, this chapter maps the surveillance practices seen in socialist regimes, which used it predominantly for national security purposes with labour-intensive methods and by relying on networks of informers. Some specific features of surveillance during the Balkan war are then addressed. This chapter continues by showing how a growing private sector has challenged and to some extent supplanted state-controlled agencies in carrying out surveillance, not only in the interests of national security-a notion long used by government to justify extra-judicial policing-but also of consumerism and profit. It then focuses on the development of this industry and offers examples of transformation in the border surveillance, road surveillance and consumer surveillance domains. After tackling the fundamental question of why surveillance is problematic and giving some examples of counter-surveillance initiatives in the CEE region, the author concludes by demonstrating how public awareness of intensified surveillance is increasing in the region. © 2012 Springer Science+Business Media New York. All rights are reserved.
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