Reforming intelligence means establishing precise political objectives to be entrusted to the structures that protect state security and defining coherent legal categories. Not doing so risks allowing the perpetuation of abuses and exploitation that are dangerous for democracy by Andrea Monti – Professor of Digital Law, University of Chieti-Pescara – Initially published in Italian by Formiche.net
In purely abstract terms, regulatory reform of State’s intelligence activity should first follow the rules of legal interpretation. Therefore, it should define legal categories, first and foremost that of national security. It would allow coherent management of the Presidency of the Council of Ministers, the Ministry of the Interior, Defence, Justice and other involved actors.
However, starting from the confused Law 124/07 and up to the latest regulatory changes, Parliament and Government have systematically avoided making this choice. The Joint Parliamentary Commissions I and IX formulated an amendment to the law that creates the Agency for Cyber Security. It went precisely in this direction. However, the final text did not incorporate the proposal.
The non-choice of the legislator
Political choices are free in the definition of their purposes and therefore legally unchallengeable. However, without a robust foundation, it is highly challenging to regulate both the public side of the intelligence work and the side that does not – and must not – come into clear. It is particularly true for the activities covered in Italy by the so-called “functional guarantees” (which exclude the criminal liability of operators for certain criminal offences committed in the exercise of their functions), but above all, for clandestine operations and those subject to plausible deniability.
The escalation risk caused by the militarization of cyber attacks
These aspects of the protection of national security have always been central to the political choices of States, but today they assume fundamental importance.
The ease with which remote operations can be carried out thanks to computer viruses, hacking and sabotage of critical infrastructures of non-enemy countries implies a greater frequency and intensity of attacks. Consequently, it leads to an increased risk that errors or leaks cause escalation towards open conflicts. The accusations that the United States, on the one hand, and, on the other, China and Russia (or Iran and Israel) exchange on this domain are the best evidence of the criticality represented by the recourse to unconventional attacks, which are made more acceptable also at a political level by the fact that they do not provoke (at least, in the immediate future) bloodshed.
The extra-parliamentary management of the national security
Analyzing Italy’s recent history is a valuable starting point to focus on the problem and (perhaps) possible solutions.
Although based on de-secreted acts (and, therefore, already redacted) and on judicial investigations that have not provided complete information, these reconstructions allow to affirm that national security has been managed not only by the civil services delegated to this task. Over the years, other structures have also been deployed.
Some were created based on political agreements with other countries such as Gladio, the Italian chapter of Stay Behind). Others gained foreign support, operating in parallel with the official structures. That was the case of the Ufficio Affari Riservati of the Ministry of the Interior, and the “Noto Servizio” (Known Service), reporting to the Presidency of the Council of Ministers. Others were paramilitary groups born more or less spontaneously and then informally “enrolled” in the defence system (Organizzazione O, Armata Italiana per la Libertà). As scholars of terrorist and subversive phenomena believe, left and right wing extremists were “left to grow” and made available in case of need.
Some take-away points
Whatever the interpretations of these phenomena, there are specific take-away points to consider.
The first is that the States which, at a given moment in history, have a hegemonic position consider it legitimate to directly affect, in every way, the choices of those countries which, for various reasons, are in a subordinate position. It also includes using the said countries to conduct intelligence activities against hostile actors and proxy wars.
The second: these conditionings include creating autonomous structures within and outside of national institutions capable of carrying out violent actions at various levels of intensity, regardless of local laws.
Thirdly, these autonomous structures may have political backing or have direct contacts within the state apparatus.
Fourthly, the political level is not necessarily involved or informed in creating these structures, which can be managed directly by civil services officials.
An excerpt from the massive report of the Italian Parliamentary Commission on terrorsim effectively synthesizes, but partially, the terms of the question:
In these things, there cannot be an information chain that starts from the bottom to reach those at the top. The “controller-controlled” relation would be upset. […] In essence, there must be a double chain of information: “downward” from the head of the Government to the delegated Minister; “upward” from the head of the Service to the delegated Minister or directly to the President of the Council of Ministers. However, it should never be the Services that decide what to say to whom.
Some critical points
Although institutionally faultless, the reasoning of the Parliamentary Commission is partially flawed.
In some instances – and, in particular, in those relative to geopolitical aspects, such as, for example, extraordinary rendition or the protection of strategic interests – the State in whose jurisdiction certain events occur is itself an adversary that should remain in the dark about what is happening. Net of the personal objectives of the individual participants in terms of career and power, it could even be argued that if an apparatus of the State operates in the employ of a foreign power within the framework of international political constraints, it cannot even be qualified as ‘deviant’. It pursues objectives that go beyond national interests.
In the name of machtpolitik, therefore, the opposite is true of what Stefania Limiti writes, according to whom
The dialectic between public and ‘covered’ actions does not necessarily produce areas ‘freed’ from any possibility of democratic control, as, instead, has happened in Italy.
It is, in fact, the very nature of the protection of the national interests of a specific Country that necessitates recourse also to offensive and clandestine actions in foreign lands. In other words, the “double information chain” proposed by the Extraordinary Commission can function for covert operations – those managed confidentially, but in an institutional ambit – but not for those outside of the “right” of a State to know what is happening within its borders.
Regulatory reform of the intelligence ecosystem should confront two facts.
The first is that this ecosystem does not lend itself to Aristotelian categorization into “kinds”, “species”, “categories”, and “accidents”. The fluidity of events and objectives hardly matches rigid schemes and well-defined chains of command and, therefore, the normalization of the intelligence domain.
The second is that certain areas are, by definition, impossible to regulate. Even today, for example, the Israeli Mossad operates without any regulatory framework and accounts directly to the Prime Minister.
Consequently, regardless of the rules, it is inescapable to accept that there will always be dark zones that are not (entirely) reached by the light of law in the national security world.
What these dark zones are is now, pun not intended, quite clear. So the political issue becomes whether and to what extent certain executive activities should be outside parliamentary control.
Such an approach has, of course, a severe problem. It is suitable to allow authoritarian turns or while respecting the forms, create a government of the President (of the council). On the other hand, as history shows, laws and prohibitions have not prevented certain actors from doing ‘the right thing’ (at least for their interests).
To legally regulate covert operations and clandestine actions is, in synthesis, the barycentre of an intelligence reform which, with all due respect to spy novels, is not an activity to be carried out in black tie, sipping a stirred, not shaken Martini or, in modern times, an iced beer.