At the end of last year, the Association for Technology and Internet (ApTI) worked with Privacy International on the latter's project investigating the systematic lack of transparency surrounding intelligence-sharing agreements.
We sent the parliamentary intelligence oversight committees a briefing on the issue and an official letter. More details can be found here.
The project consists of analyzing the mechanisms available for the democratic oversight of intelligence sharing between states. In order to be able to obtain the data needed for this analysis, Privacy International contacted organizations that exercise oversight over the services involved in these data-sharing agreements.
More than 40 countries have been included in the project. ApTI took part in this process in Romania, facilitating the communication between Privacy International the bodies exercising democratic oversight over the Romanian intelligence services involved in intelligence sharing agreements, namely the SIE oversight committee and the SRI oversight committee.
The questions to both oversight committees were as follows:
- Is the government and/or are the intelligence agencies required to inform you about intelligence sharing arrangements they have made with other governments?
- Does your mandate include independent oversight of the intelligence sharing activities of your government?
- Do you have the power to access in full all relevant information about the intelligence sharing activities of your government?
- Do you have the power to review decisions to share intelligence and/or undertake independent investigations concerning the intelligence sharing activities of your government?
- Do you cooperate with any other oversight bodies, domestic or foreign, to oversee the intelligence sharing activities of your government?
The responses came in a timely manner, and to varying degrees, they unveiled a surprising state of fact. That is that both oversight committees, but especially that for SRI, admitted, in writing, that they have only perfunctory oversight over their respective intelligence services in general, and that this lack of oversight extends quite naturally to what intelligence sharing agreements these services enter and how.
Oversight committee or club of historians?
The SIE oversight committee's answer tells us from the start that the answers to our questions can be found in the international documents on cooperation agreements regarding classified information, which, according to the legal provisions in force, are public. (More details can be found at the Romanian government's ORNISS page.)
Next, they quote from Decision no. 44/1998, which contains the attributions of the committee. In short, the committee can ask for access on anything, and the service is obligated to respond, but only if it is not about "the documents, data and information related to intelligence activities concerning national security which are currently taking place or which will be taking place in the future, considered as such by the Committee, at the recommendation of the Supreme Defense Council, as well as the information which could lead to breaking of the cover of operatives, to the identification of sources, of concrete methods and means of work used in intelligence gathering, to the extent that these do not infringe on the Constitution and standing legislation."
This committee is a sort of club of historians who can get any information, as long as that information is no longer up to date. Oversight under these circumstances can’t be anything but an illusion.
But that's not all. We also find that "[...] concerning the access of the Committee's members to relevant information regarding state intelligence sharing, given its purview and the concrete situations which came to the attention of the Committee, these informations can be obtained upon request and with the accord of the involved parties." So oversight happens only if “the involved parties" agree.
Lack of effective oversight
The response of the SRI oversight committee is even more candid, and it further highlights how hamstrung these committees are. Unlike the response of the SIE oversight committee, the SRI oversight committee contains individual answers for each of the 5 questions:
1. “Is the government and/or are the intelligence agencies required to inform you about intelligence sharing arrangements they have made with other governments?”
The answer to the first question is almost identical to the entire answer received from the SIE oversight committee. It consists of quoting the powers of the committee and legislation defining their authority. It continues by mentioning the glaring caveat about how these powers are limited to historical / irrelevant information regading the current activities of the "overseen" service.
2. “Does your mandate include independent oversight of the intelligence sharing activities of your government?”
The answer to the second question clearly tells that is no committee oversight on intelligence sharing: "We repeat the statement from above, namely that the Committee's competences are exercised only in relation to the SRI, not in relation with the Government/State. As a consequence, there is no general mandate given to the Committee to perform an independent control of the intelligence sharing activities of the Government/State."
3, 4. “Do you have the power to access in full all relevant information about the intelligence sharing activities of your government?” and “Do you have the power to review decisions to share intelligence and/or undertake independent investigations concerning the intelligence sharing activities of your government?”
The answer to the third question repeats the answer from the first question. The answer to the fourth question describes, once again, the lack of actual oversight of the committee over intelligence sharing.
5. “Do you cooperate with any other oversight bodies, domestic or foreign, to oversee the intelligence sharing activities of your government?”
The answer to the fifth question contains, at the very end, a piece of information that spectacularly outlines the true power relationship between the oversight committee and the intelligence services that it should theoretically control: " Intelligence sharing between SRI and partner intelligence services from other countries are done according to the rules established through cooperation protocols between SRI and similar foreign organizations, while respecting established norms.”
So, we find out how oversight committees, which, theoretically, should provide democratic oversight of the intelligence services, do not have effective control over the activities of those services. This is not an acceptable state of facts in a democratic society.