Surveillance under a veil of secrecy: Do oversight bodies oversee or overlook?

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

The recent revelation about the scope of spying activities has shocked even national leaders, who are generally aware of secret national security programmes and their implications. But the debate should focus on another very important point: the responsibility of our legislators, writes Vigjilenca Abazi.

Vigjilenca Abazi is a PhD Fellow at Amsterdam Centre for European Law and Governance. This op-ed was first published on on BlogActiv.

"The revelation of NSA surveillance brings a new dimension to the very old debate on government secrecy vs. citizens’ privacy:  its scope. It is the scope of surveillance that has actually surprised national leaders and led them to a strong reaction, which one could agree is intended for “public consumption” as opposed to genuine concern for privacy protection.

However, a draft UN Resolution declaring a deep concern for human right violations circulated by Chancellor Angela Merkel and President Dilma Rousseff, two national leaders whose phones were tapped, seem to raise more alarm than a mere PR response. Besides phone tapping of national leaders, in only one month 70 million French and 1.5 million Dutch citizens’ phone were also tapped.

Everyday, documents leaked by Edward Snowden help to build a mosaic story of who was actually involved, what in fact took place, and how much data has been gathered. The mosaic story is preoccupying for many reasons, but let us for a moment focus on the actors who are supposed to represent citizens’ best interests and ensure their rights are upheld: the parliaments, and especially committees charged with oversight.

Oversight generally refers to an actor scrutinising an organisation’s activities with the aim of evaluating its compliance with particular criteria, and on this basis issue recommendations or orders to the organisation concerned (see recent study on oversight).

What is the role and responsibility of oversight bodies, especially parliamentary committees, in mass surveillance?

“Congressional oversight of the NSA is a joke. I should know, I’m in Congress”, said US Congressman Alan Grayson in his recent article.  But this is not a fully satisfactory answer to our question nor does it tell us more about the responsibility of our representatives.

If anything it sounds similar to the shifting blame responses given by NSA Director Keith Alexander at the Congress hearing on 29 October (read “Europeans spy just as much”). Instead let us examine the role of oversight bodies seen at two main stages: the ongoing surveillance period and the phase after the public revelation of surveillance.

The Ongoing Surveillance

The key role of oversight committees comes precisely at this stage. Once a programme on surveillance is authorized, which is a double-edged sword, oversight committees should make sure that intelligence agencies exercise such power in strict accordance with the law and with due respect for civil rights. However, the main problem with oversight at this stage is that members of oversight committees either do not receive the classified information or they are generally poorly informed.  

Even more troubling is Congressman Grayson’s statement that the “only time that these intelligence committees disclose classified information to us, your elected representatives, is when it serves the purposes of the “intelligence community”. This stands in stark contrast to the claims of Mr Rogers, a former FBI agent, that all “committee members could wade through “mounds” of information provided by intelligence agencies” and to “say that this committee is somehow in the dark on intelligence activities is simply not accurate”.

The challenge of receiving classified information, although not small, cannot be a legitimate justification that representatives give to their electorate. Their responsibility to defend the interest of the citizens – their privacy and rights – merits more effort. One step in that direction could be a legislative reform on who should make a conclusive decision for access to classified information and ultimately hold the balance between security and liberty concerns.

Reactions after Public Revelation

The reactions of oversight bodies, this time not only in the US but also around the world and especially in Europe, are also significant to understand oversight. To start with the US, the most noteworthy step was to amend the Bill on surveillance and aim to increase transparency and oversight. However, Senate Intelligence committee member Ron Wyden already notes that amendments are cosmetic and allow for “business as usual“.

On the other side of the Atlantic, the European Parliament, by way of a Resolution, noted that it is seriously concerned about the revelations and called the European Commission to suspend the Terrorist Finance Tracking Programme (TFTP Agreement) with the US, which allows for processing and transfer of Financial Messaging Data from the EU to the US.

The Commission responded negatively to such a request stating, “the US side has provided detailed explanations and assurances”. Nevertheless, a delegation from the European Parliament went to Capitol Hill to make their message clear that “this is not a cosmetic situation” for them. Efforts are also made to “re-establish trust”.  Yet is this enough to also regain the trust of the citizens?

Beyond Oversight

What is most remarkable and requires more attention is the position and the mechanisms with which oversight bodies can be a genuine check to executive power. At this point in the debate they seem to lack teeth. Unless oversight bodies equip themselves with the right information and democratic procedures, they risk ending up not seeing what actually takes places with the agencies and programmes they authorize.

Most importantly, to regain citizens’ trust more is needed than additional instruments of transparency or bureaucratic procedures for intelligence agencies. Oversight bodies need to prove that they are doing ther job right and at the right time. Crucially, they should create space for an informed prior public debate about the decisions that citizens care most about: their privacy and security."

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