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Counter-Terrorism - International Law and Practice edited by Salinas de Frías, Ana María; Samuel, Katja; White, Nigel D

Part V Non-Judicial Responses, 34 Parliamentary Oversight of Counter-Terrorism Policies

Jarmo Oikarinen

From: Counter-Terrorism: International Law and Practice

Edited By: Ana María Salinas de Frías, Katja Samuel, Nigel D White

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 07 December 2019

Subject(s):
Terrorism — Prosecution — Rule of law

(p. 936) 34  Parliamentary Oversight of Counter-Terrorism Policies

1.  Why Parliamentary Oversight?

The aim of this chapter is to explain the concept of parliamentary oversight in the context of counter-terrorism policies. A closely related objective of the analysis is to identify democratic standards and good practices within the context of counter-terrorist responses which could contribute to achieving a proper balance between operational demands, efficient decision-making, and the related needs of confidentiality on the one hand; and the democratic requirement of appropriate oversight of counter-terrorism policies on the other.

As stated in the Declaration and Programme of Action of the World Conference on Human Rights in 1993, the acts, methods, and practices of terrorism ‘are activities aimed at the destruction of human rights, fundamental freedoms and democracy’.1 It is therefore all the more important that the perspective of safeguarding and strengthening the constitutive elements of democratic polity is maintained in reacting to terrorist atrocities and in devising security counter-measures to thwart future attacks. In order to ensure this distinction between democratic states and the actions of law-breakers, the rule of law needs to be asserted as a cornerstone principle to which the legitimacy of a state’s counter-terrorism actions should be bound by its adherence to an appropriate democratic legal regime.

In approaching the questions of what is parliamentary oversight, what is its added value, and what are the main problems in making it efficient, this chapter adopts as its points of departure two perspectives which have emerged during recent years in (p. 937) the debate on the relationship between democracy and terrorism: first, the Club of Madrid’s focus in its deliberations during the 2005 International Summit on Democracy, Terrorism and Security (8–11 March 2005) on ‘how the foundations of democratic governance can be turned into assets rather than obstacles in the struggle against terrorism’;2 and second, the reports of the Eminent Jurists Panel in 2009 (EJP Report) and of the UN Special Rapporteur Martin Scheinin (with a mandate to promote and protect human rights and fundamental freedoms while countering terrorism) in 2010, both of which stated that in order to guard against harmful excesses (such as those associated with extraordinary rendition), government agencies involved in counter-terrorism should be made subject to a combination of effective internal and external controls, including effective parliamentary oversight.3

2.  Parliamentary Oversight

2.1.  Normative Framework

From the point of view of classic democratic theory, the role of parliamentary oversight can be framed in terms of separation of powers between the legislature (parliament) and the executive (government).4 In effect, parliaments should possess and exercise a separate authority in a democratic political system to scrutinize the actions taken under the executive government’s authority. Although democratic systems do differ significantly, for example between parliamentary and presidential models, the legislature-executive relationship remains an important one, especially during crisis periods which are more conducive, almost by default, to shaping public attitudes into a greater acceptance of strengthening the power of the executive—which may have a seriously disruptive effect on the constitutional balance in democratic systems.5

(p. 938) That said, it is recognized from the outset that there is no single normative framework for parliamentary oversight and accountability for counter-terrorism policies. Even among well-established democracies, the role of parliament regarding the oversight over, and scrutiny of, the executive government differs significantly from one country to another. For example, in most European political systems that are based on parliamentarism, majority governments have been the norm in recent decades, creating a de facto political bond between the party or parties in the government and the majority in the parliament. In contrast, in the United States (US), the executive and legislative branches are more detached from one another. This is also the case in the European Union’s (EU) decision-making system, where the European Parliament has a distinct role, albeit the EU system is more a reflection of specific power-sharing agreed in the Union’s founding basic treaties than a realization of the principle of separation of powers. Although individual situations vary, it is clear that systemic differences may also have an impact on the will and capacity of parliament to act independently of the executive in carrying out its parliamentary oversight functions.

A recent survey of oversight mechanisms with regard to EU policies in the 40 national parliamentary chambers of the 27 EU Member States is revealing in terms of the diversity of approaches. Parliaments’ powers range from those having the power to formulate a binding mandate for government policies, to those who only receive ex post information from the government after decisions have been taken. Analyses of parliamentary practice across Europe also uncover a wide spectrum between oversight systems which are clearly document-based (limited to the scrutiny of official documents) at one extreme, and procedural systems (which include parliamentary follow-up and scrutiny of policy planning, negotiations, or operational matters) at the other.6

Recent analyses of national oversight mechanisms do nevertheless offer useful comparative information that makes it possible both to identify basic models of parliamentary oversight that have been adopted, and to allow for analysis on how to organize confidential cooperation between executive agencies and the relevant parliamentary bodies designated for their oversight in democratic systems. Moreover, the historical experience also points to common problems and challenges. While it is noted that much of the existing literature is based on the practices and experiences of well-established Western democracies, the Inter-Parliamentary Union (IPU) and the Geneva Centre for the Democratic Control of Armed Forces (DCAF) have made commendable and important efforts in recent years to define (p. 939) more clearly the concepts involved and to spread awareness of these basic democratic standards more globally, including in newly democratic as well as less democratic countries.7

2.2.  Benefits of Parliamentary Oversight

At the most profound level, parliamentary oversight of counter-terrorism policies should be motivated by the same general concept of democratic legitimacy that is the foundation of parliamentary powers in general. On the one hand, the ultimate authority and legitimacy of agencies involved in counter-terrorism in democratic societies should be derived from constitutional and legislative approval of their powers, operations, and expenditure by the parliament. On the other hand, the existence of appropriate parliamentary oversight mechanisms will strengthen the public legitimacy of these agencies as actors within democratic states.8

Apart from democratic legitimacy, it is possible to point to other benefits of parliamentary oversight, not least the functional utility of having a privileged, but broadly based parliamentary oversight body as an interlocutor in discussions on counter-terrorism policies and even operations. First, the existence of appropriate parliamentary oversight mechanisms can contribute to the awareness and expertise on counter-terrorism policies within parliament, thus enhancing its ability to take appropriate decisions regarding the legal base and budgetary resourcing of, for example, the relevant government agencies. Second, parliamentary oversight has the double benefit of enhancing the critical debate on basic policy choices and making the likely scope for misunderstanding, misinformation, and partisan politics narrower. This should help guard against drastic party politically motivated pendulum swings in policy (whether in an overly restrictive or overly permissive direction) even in the context of a change of ruling government, making sustained and consistent long-term action more likely. Third, as a non-judicial mechanism, parliamentary oversight can provide continual feedback for the relevant government services, and consequently contribute to the clarity and effectiveness of their mandate.9

(p. 940) 2.3.  Context of Democratic Governance

The role of parliamentary oversight needs to be placed within the broader context of democratic governance, oversight, and transparency regarding the various non-judicial oversight and accountability layers of counter-terrorism policies, the principal components of which include: (1) a system of internal oversight based on a code of conduct within the relevant government services themselves engaged in counter-terrorism action; (2) effective political control of these services by the executive government that ensures democratic control and accountability; (3) parliamentary oversight over the government and its relevant services with the right to set up ad hoc committees of inquiry when necessary; (4) an appropriate public transparency regime that will allow for general monitoring by civil society actors, scrutiny by a free media, and eventual declassification of documentary archives within a reasonable timetable.10

Considering this context, parliamentary oversight bodies are to some extent dependent upon, and often constrained by, their level of access to operational information on executive activities (and consequently on the level of influence that they can exert over the government with respect to the conduct of its agencies). However, this is to some degree mitigated by other sources of information available to them, not least from the investigatory scrutiny by civil society and the media (as well as from possible judicial processes) of exercises of executive power. The specific role of parliamentary oversight is therefore linked to more general considerations regarding the transparency of counter-terrorism policies; nevertheless, an important distinction exists between parliamentary oversight and the public’s right to know. In a sensitive area of policy such as counter-terrorism, parliamentary oversight requires a certain political maturity and institutional professionalism from parliamentary bodies to act responsibly regarding the line between legitimate public access and necessary confidentiality.11

2.4.  The Challenge of Coordinated Parliamentary Oversight of Counter-Terrorism

The oversight of specific counter-terrorism policies is, in a very fundamental way, further complicated by the multi-faceted nature of potential terrorist threats and, consequently, by the very different types of efforts mobilized to counter those threats. Any broader treatment of the subject has to take into account the specific nature of democratic oversight over the various government agencies that carry out counter-terrorism policies. Crucially, this involves the work of those intelligence (p. 941) agencies and specialized law enforcement or military units tasked to collect, treat, and distribute information concerning potential or actual threats, or to act upon that information. But it also covers to some degree the work carried out, for example, by police, justice, immigration, and border security services, not least any information sharing activities between them.12 Coordinating all of these activities in a coherent manner is a major challenge for the executive. With that in mind, the question of ensuring coordinated and coherent oversight by a representative parliament, which involves a multitude of political and institutional interests, will have to be approached with a sense of realism as to what is both practically and politically possible.13

Parliamentary oversight becomes an even more demanding issue to tackle when located within the context of intensifying international cooperation in counter-terrorism, at the bilateral, regional, and multilateral levels. Certainly, increased cooperation between national and regional parliamentary bodies is undoubtedly necessary to close this potential oversight gap, even if the arrangement of such parliamentary cooperation will always be a complex undertaking.14

A different type of challenge is attributable to the growing privatization or outsourcing of security and intelligence related work by governments, in particular because here questions of oversight and accountability are no longer exclusively limited to the domain of government services.15 The questions of whether and how to regulate the sphere of private security and military companies have been a subject of growing serious debate in recent years.16 On the one hand, much attention has (p. 942) been focused on the role of armed private contractors in on-site operational activities. On the other hand, many observers have predicted the emergence of a strong privatization trend also in the intelligence field with flexible, decentralized networks of public and private information providers substituting or complementing functions which have traditionally been the function of government security services. From the perspective of parliamentary control over counter-terrorism activities, it is obviously crucial that the question of appropriate regulation is resolved in a way that will establish both clear lines of responsibility for, and appropriate levels of democratic control of, all activities carried out by private contractors on behalf of governments.17

3.  Parliamentary Oversight Bodies

3.1.  Oversight through Normal Parliamentary Practice

It is important to distinguish between the regular work of standing parliamentary oversight bodies, and ad hoc special or temporary parliamentary committees, commissions, or other non-judicial bodies of inquiry with a parliamentary dimension. Although a great deal of attention has been focused in recent years on ad hoc parliamentary committees of inquiry concerned with counter-terrorism activities, and on specialized parliamentary bodies overseeing intelligence and security services, it has to be noted that parliaments exercise significant control and influence over counter-terrorism policies and agencies through their normal parliamentary powers and activities. It could be argued that the most profound form of parliamentary oversight is linked to the ability of democratically elected representatives to legislate on the basic regulations or mandates of the executive government’s agencies (for example, law enforcement, border controls, etc), or to decide on their resourcing through budgetary processes.18

Before final debates and votes in plenary sessions occur, legislative initiatives and budgetary processes habitually pass through debates in relevant standing parliamentary committees, allowing for the members to hold ministers and public officials accountable through parliamentary questions and public or in camera hearings. Some specific measures (for example, any declaration of a state of emergency) often require support to be expressed in the form of an enhanced parliamentary majority (p. 943) under the constitution of the state due to their exceptional nature or potentially far-reaching consequences, thus requiring a vote in the plenary session of the national parliament. Standing parliamentary committees may also be given the task of overseeing counter-terrorism policies and activities on a regular basis as one particular facet of their work. This is the case, for example, with respect to the leading role in counter-terrorism oversight given to the standing Committee on Civil Liberties, Justice and Home Affairs in the European Parliament.19 This type of role might obviously require some additional features to be added to the working practices of the committee (for example, regarding access to confidential documents).20

The above generalization has to be qualified by the fact that regular parliamentary oversight mechanisms often differ significantly in mandate, powers, and organization when one moves from one sectoral agency to another, for example from the police to intelligence agencies, or from domestic to foreign policies.

3.2.  Permanent Oversight Bodies for Intelligence Related Activities

The role and activities of intelligence services in the context of counter-terrorism has been a much debated dimension in the public discussion on parliamentary oversight.21 It is undoubtedly the area where the parliament-executive relationship is under particular stress due to operational secrecy issues and the centrality of classified document sources. There are major differences concerning the specific issue of oversight when it comes to state security and intelligence services. These are linked to broader systemic differences in the parliament-executive relationship, and may also be attributable to variations in the institutional development of the intelligence community, not least in terms of its historical experiences and scope of the activities of its agencies. In any case, even among stable democracies, the extent to which the constitution or existing legislation reserves control functions to the executive, or conversely allows for parliamentary oversight, can differ significantly.

In a very general way, it is possible to distinguish organizationally between three basic types of parliamentary oversight bodies:22

  1. (1)  Oversight that is directly exercised by parliamentary bodies by integrating oversight over counter-terrorism policies (and/or relevant services) with existing parliamentary committee structures, either as a separate, sub-, or joint (p. 944) committee, or else by expanding the mandate of an existing committee to the same effect.

  2. (2)  Parliamentary oversight conducted via an intermediary body (technical committee, ombudsman, etc) outside parliament, but clearly under its authority (appointed by and reporting to the parliament).

  3. (3)  The establishment of an oversight body outside parliament, appointed by government (with parliament possibly playing a consultative role), which reports in full to the government, but only selectively to the parliament with government as an intermediary.

These three distinct approaches clearly highlight the distinctions which exist between those states where legislators themselves take on oversight of security and intelligence matters through a parliamentary body (for example, the US or Germany), and those where a committee is set up outside the parliament, whose members are not parliamentarians but report to parliament (for example, the Netherlands or Norway). In practice, the current situation in democratic states demonstrates a wider range of possibilities—including combinations of the above models, or having multiple sectoral oversight mechanisms with varying degrees of parliamentary control.23

The third model is illustrated by recent practices in the UK and France, both of which have witnessed a very dynamic period in developing institutional arrangements, where the oversight systems also remain to some degree politically debated. In the British system, members of the Intelligence and Security Committee (ISC), which was established in 1994, are appointed by the Prime Minister following consultation with the leaders of the main parliamentary opposition parties. However, the ISC reports to Parliament only indirectly via the Government (ISC reports to the Prime Minister rather than to Parliament directly), which has led to Parliament’s Joint Committee on Human Rights criticizing the ISC’s reporting practice on the basis of lack of independence, and calling for the creation of a proper parliamentary select committee. Similarly, the House of Commons Foreign Affairs Committee has argued in favour of the creation of a new oversight system that would address the ‘deficit’ in parliamentary scrutiny of intelligence and security issues.24 In the case of France, it set up the first parliamentary oversight system of its intelligence agencies as late as in 2007. The ‘Délégation parlementaire au renseignement’ is a semi-permanent body comprising eight members elected from both chambers of (p. 945) the French Parliament. As with its British counterpart, it has also been subject to criticism, mostly for its relatively weak mandate which is limited to oversight of the general activities, budget, and organization of the French intelligence services.25 These criticisms tend to validate concerns expressed by Thorsten Wetzling, in a German context but of wider validity, that any continued existence of a fundamentally ‘asymmetrical relationship’ between parliament and the executive may ultimately afford the latter tools with which to escape from parliamentary oversight efforts that it deems too intrusive.26

3.3.  Ad hoc Oversight Bodies and Inquiries

Although the practice of having a permanent oversight body for intelligence related activities is now quite widely adopted, parliaments—and sometimes governments under pressure from parliaments—have often in recent years resorted to the creation of a separate ad hoc parliamentary committee or an external inquiry to provide the necessary level of oversight. As Richard Aldrich has noted in his study on British experience of intelligence inquiries, the exact parameters of an investigatory committee’s mandate have a very strong bearing on the overall efficiency and credibility of the process.27

It is also important to note that there are a host of other normative and practical questions that may have real implications for the ability of any parliamentary body (ad hoc or permanent) to carry out their oversight functions when dealing with counter-terrorism operations. Without trying to deal comprehensively here with all aspects relating to the organization of parliamentary oversight bodies, these issues include: (1) the clarity of the legal basis, mandate, and functioning of oversight bodies; (2) the existence of any mandatory investigatory powers (including the level of cooperation required by the executive); (3) the level of access to classified information; (4) the reporting arrangements; (5) their relationship with any ad hoc investigative and judicial bodies; (6) the physical infrastructure for the practical protection of classified information handled by oversight institutions; and (7) the human and financial resources available.28

(p. 946) 3.4.  Access to Classified Information

Regarding their statutory mandate, it is clear that parliamentary oversight bodies need to have sufficient powers to obtain all necessary information and documents from the executive government and its relevant services, especially those engaged in law enforcement activities. On the one hand, a government’s ministers, who are directly politically accountable and answerable to their representative parliaments, should be fully informed about the activities of the services operating under their mandates. Second, it can be argued that truly effective oversight does require that the overseers obtain regulated access to the information processed by the agencies they scrutinize. In practice, the legitimate concerns regarding intelligence information, operational secrecy, and so forth, not least the potential risks of them being compromised, make the question of reasonable regulated access by parliamentarians to classified material a very sensitive one.29

In practice, most parliamentary oversight bodies tend to be limited to public information and structural oversight, including scrutiny of general policy, administration, and financing (for example, Britain and France). However, there are parliamentary bodies that have statutory rights to carry out some degree of operational oversight based on classified information also. The most comprehensive of these mandates allow for parliamentary committees to scrutinize even the operations of intelligence agencies. Notable examples of this latter group are US Congressional oversight committees (the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence), as well as the parliamentary panel (Kontrollgremium) of the German Bundestag. The Norwegian system has a specific mandate to audit the legality of the agencies’ actions and their respect for human rights.30

Wider scrutiny powers and access to classified information obviously give more credibility for parliamentary oversight, even despite the existence of imposed restrictive clauses, which exist in both Germany and the US, to protect the identities of certain sources of information, the details of particularly sensitive operations, or to minimize the chance of harmful public disclosure. In the most extreme case of parliamentary involvement, a parliamentary oversight body may be tasked with approving certain types of operation (for example, surveillance operations in the US). Despite differences in approach, these examples nevertheless illustrate the possibility of balancing confidentiality with parliamentary oversight, albeit at the expense of having a select parliamentary oversight body with security clearance to the exclusion of the majority of parliamentarians who are not therefore privy to all details of its findings.

(p. 947) Wider access to information also comes with obligations. Commensurate with any increased access by parliamentary oversight bodies is the accompanying requirement to set up and maintain the technical framework (establishment of a secure infrastructure) and expertise to handle classified material and protect it from unauthorized disclosure. This raises such issues as appropriate levels of vetting and security clearance of oversight body members and their staff. In his report on good practices, UN Special Rapporteur Martin Scheinin has mentioned as an alternative that members of the parliament could be required to sign a non-disclosure agreement, but emphasized that, ultimately, the appropriate handling of classified information by oversight institutions also relies upon the professional behaviour of the members of the oversight institutions.31 An additional challenge could be establishing and enforcing appropriate disciplinary sanctions in cases of any unauthorized disclosure (a complex question, especially in light of the parliamentary members’ customary immunity provisions which exist within democracies).

4.  Parliamentary Oversight in Practice

The involvement of parliaments as oversight bodies for counter-terrorism action entails a variety of challenges. In terms of the organizational challenges and efficiency, it is necessary to make the distinction between the formal processes and the actual results (accountability outcomes) that ultimately establish and maintain the democratic credibility of any oversight system. One significant, highly controversial, and illustrative recent case is the Central Intelligence Agency’s (CIA) rendition and detention programme.32 As is made clear by the analysis that follows on practices within the US and Germany—two countries which both have a relatively strong parliamentary oversight body—even where statutory powers of oversight exist, ultimately genuine political will is needed to achieve a real impact in terms of political accountability.

4.1.  US Congress

In the US Congress, the Senate Select Committee on Intelligence and House Permanent Select Committee on Intelligence enjoy very powerful statutory mandates covering the legality, propriety, and efficiency of the entire US intelligence machine—including operational details. Due to the scale of US government intelligence operations, these committees also have comparatively high levels of human and financial resources at their disposal. However, despite the positive results of the (p. 948) oversight mechanism in its earlier history,33 the intelligence oversight committees appear to have failed to investigate seriously, or at least adequately, some of the major counter-terrorism policy cases of recent times, most notably the CIA extraordinary rendition programme (with the exception of one closed hearing of the Senate Select Committee on Intelligence in February 2007).34

In particular, the only public hearings held specifically on issues of extraordinary rendition in the US Congress were arranged by Subcommittees of the House Foreign Affairs and Judiciary Committees after the President’s party had lost control of the Congress. The first one took place in April 2007—in response to diplomatic and political pressure created in the wake of the European Parliament’s related report35—in which no US executive government witnesses participated, with the exception of one former CIA operative who testified.36 The second public hearing, which took place in October 2007 to consider the case of the Canadian citizen Maher Arar, was again organized without any participation by or scrutiny of those executive agencies involved.37 A third one, in June 2008, was able to summon the US State Department’s legal counsel, John Bellinger, regarding the relationship between diplomatic assurances and renditions.38 However, the real oversight powers (p. 949) of the Congress’ powerful standing committees on intelligence seem to have been left mostly unused.39

4.2.  Germany

In Germany the Kontrollgremium, the oversight panel of the Bundestag, also has a strong mandate to oversee the activities of security and intelligence services. As with its US counterpart, it may also summon members of the intelligence community for questioning. Moreover, it can task experts to investigate specific cases of concern.40 However, the main parliamentary inquiry into recent German involvement in counter-terrorism operations was not carried out by the Kontrollgremium. Instead, the Parliament resorted to setting up a special parliamentary inquiry. The subsequent three year inquiry was unable to find solid evidence which substantiated alleged German complicity or negligence in the renditions of a number of German citizens or residents.41

Nevertheless, the process did have positive consequences as several of its proposed reforms of the German oversight mechanism were implemented through legislation in 2009. The modifications included: the addition of new staff to assist the parliamentary oversight panel, Kontrollgremium; provision for the panel to have intelligence agency personnel testify at hearings; and the right to receive a direct and timely response from the Government to the panel’s requests/queries.42 Additionally, following parliamentary debates on the Government’s cooperation with the special parliamentary inquiry on extraordinary rendition, the Constitutional Court ruled in July 2009 that the Government had breached the German Constitution in restricting the evidence it had provided to the inquiry without giving sufficient justifications.43 Most observers have considered the results mixed, noting unquestionable results coupled with failures, not least in terms of obtaining answers to all (p. 950) relevant questions. The politicization of the issues on a partisan basis has also been cited as a problematic feature of the processes.44

4.3.  Other Recent Practice

Perhaps most controversially, parliamentary oversight has itself become a subject of public scrutiny, illustrated by the cases of alleged Polish, Romanian, and Lithuanian compliance with the CIA rendition programme. In 2005, following an inquiry by the Parliamentary Special Services Committee (Komisja do Spraw Służb Specjalnych) into these allegations, the Polish Parliament Sejm categorically denied Poland’s involvement in the CIA’s rendition and secret detention programmes. In a similar fashion, the Committee of Inquiry set up by the Senate of Romania, which finalized its report on 5 March 2007, held that the accusations against Romania in the context of CIA flights were groundless. The accuracy and validity of both of these inquiries have since become seriously questioned following a series of disclosures of new information.45 In contrast, the parallel Lithuanian parliamentary inquiry demonstrated the potential of effective parliamentary oversight by producing a landmark report in 2009 which included a public acknowledgment of the existence of secret detention facilities in Lithuania.46

5.  International Oversight of International Counter-Terrorism Cooperation

Democratic governments are increasingly engaged in inter-state cooperation in their counter-terrorism policies. That cooperation, on different levels, involves both bilateral arrangements as well as different types of multilateral or regional structures. The international networking in which states and their law enforcement, security, and intelligence agencies engage is a legitimate and undoubtedly necessary response to the security problems linked to international terrorism. As increasingly transnational threats have required a parallel networked response, it can be argued that existing national democratic oversight bodies need to engage in networked (p. 951) oversight, not only with each other, but also in cooperation with regional parliamentary bodies where these exist and have a meaningful mandate. Networks of national oversight institutions or strengthened regional parliamentary bodies are becoming necessary to fill in the possible gaps in oversight and to coordinate an effort to establish best practices as to the regulation of the relationship between the executive government and parliamentary oversight bodies.47

There is an obvious role for national parliaments to provide a degree of oversight over international cooperation in counter-terrorism policies—most logically by ratifying international agreements, by adopting the domestic legislation relevant to international cooperation of government agencies, and by supervising the practices adopted within the legal framework. Nevertheless, taking into account the developments of the past decade, it is valid to ask the question whether there exists a danger of an accountability gaps as regards parliamentary oversight on international cooperation in counter-terrorism. The worst outcome would be that this would lead to some type of ‘forum shopping’ by governments—in effect opting to act internationally, or only with particular states, if this means fewer legal checks or less intensive supervision in terms of parliamentary oversight.

Part of the correct response by national parliaments and the European Parliament to the challenge of international counter-terrorism cooperation is undoubtedly to strengthen existing levels of oversight dialogue and collaboration between these representative bodies. In trying to develop cooperation further, the parliaments will themselves face the dilemma whether and how they can share information that they have acquired in the course of such exchanges amongst their own law enforcement, security, or intelligence services. But even if that type of confidential cooperation might inevitably be limited, parliaments can exchange information and suggestions on ‘best practices’ in general terms, for example on trends and problems, and make available to one another any published evidence from equivalent investigations and reports.

5.1.  International Cooperation of National Parliaments

Much of the existing cooperation between national intelligence oversight bodies has been focused on the biannual International Intelligence Review Agencies Conference that was started in 1997. Originally a gathering of some of the NATO countries’ oversight bodies (in addition to Australia and New Zealand), these conferences have since broadened into a somewhat wider arrangement. However, according to a recent (p. 952) analysis, it has proved challenging to develop genuine practical cooperation between oversight mechanisms on this basis. It is nevertheless important to note that exchanges of views do undoubtedly contribute to the sharing of good practices.48 A comparable model, with somewhat similar benefits and challenges, has been adopted at the EU level in terms of conferences for parliamentary committees dealing with the oversight of intelligence and security services of EU Member States. The sixth, and latest, of these conferences took place in Brussels in October 2010.49

5.2.  Regional Parliamentary Bodies

The regional parliamentary bodies provide another example of international parliamentary oversight. The role played by the Parliamentary Assembly of the Council of Europe (PACE) and the European Parliament in the case of the CIA rendition programme gives insights into both the potential and limitations of two very different types of regional parliamentary bodies.

With respect to the former, the PACE is an assembly of national parliamentarians who convene in committee and plenary meetings from time to time, while their normal daily political work takes place within the national context. This arrangement can draw upon the democratic legitimacy of national parliamentary institutions, but is weakened by the fact that the assembly and its committees do not constitute in themselves a full-time parliament. However, the credibility of the PACE—and especially its Committee on Legal Affairs and Human Rights—is strengthened by the role of the Council of Europe as the guardian of the European Convention of Human Rights 1950 (ECHR) which gives PACE both focus and key rule of law principles that underpin its work.

The European Parliament, by contrast, is today a full-time parliament with significant budgetary and legislative powers within the decision-making structure of the EU. The differences in comparison to national parliaments are nevertheless still significant—especially considering the limited set of EU powers in the most sensitive operational counter-terrorism activities involving national security and intelligence services.50 However, the emergence of justice and home affairs as an increasingly important area of European integration has been followed in recent years by a multi-faceted EU counter-terrorism strategy. As the EU has developed into a distinct political system with its own legislative powers in the field of internal security and an emerging foreign and security policy identity, the role of the European Parliament as provider of democratic oversight has developed in parallel. The latest changes (p. 953) brought about by the Lisbon Treaty confirm Parliament’s role as co-legislator on European level counter-terrorism issues, and as a major player in relation to international agreements with third countries.51

5.3.  The Lessons of the Extraordinary Renditions Case52

Both the European Parliament’s and Council of Europe’s oversight systems reacted very quickly to the disclosure of alleged CIA use of secret prisons in Europe, especially Eastern Europe, by the Washington Post on 4 November 2005.53 In some respects, the distinct characters of the PACE and the European Parliament contributed positively to the overall parliamentary oversight of CIA renditions, not least in terms of drawing public attention to a foreign agency’s exercise of its public power (for example, the use of special investigative means, arrest, detention, and interrogation) in another state’s territory.

More specifically, the Council of Europe’s Commissioner for Human Rights, Gil Robles, called for an investigation into the allegations; and René van der Linden, President of the PACE, asked the PACE Committee on Legal Affairs and Human Rights to examine it. Additionally, the Council of Europe’s Secretary General started an investigation under Article 57 ECHR that gave him the authority to demand from its States Parties details on how their counter-terrorism policies were complying fully with their legal obligations under the ECHR.

(p. 954) Meanwhile, within the Parliamentary Assembly, the Committee on Legal Affairs and Human Rights had selected Dick Marty as the rapporteur on the alleged CIA flights and prisons. Under Marty’s rapporteurship, a questionnaire was sent to national governments regarding the regulation and oversight of intelligence operations (including flights) on their soil. The inadequacies of the responses not only made it impossible to disregard the mounting circumstantial information about the rendition programme, but also highlighted the apparent lack of adequate national and regional oversight of these and other international intelligence activities more generally. Consequently, one significant recommendation of the Marty Report was that the democratic oversight of national and foreign intelligence services operating on their territories be improved.54 While the proceedings of the PACE investigation were not conducted in public, the resultant public reports of the Committee, coupled with those of the Parliamentary Assembly, made significant waves which led to these issues being placed firmly on to European public and political agendas.

The European Parliament was not far behind the PACE in addressing the controversy. Following a debate on whether to create a ‘temporary committee’ or ‘temporary committee of inquiry’ (with a stronger investigatory mandate), the ‘Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of prisoners’ (known TDIP) began its work in early 2006. Compared to the PACE process, the European Parliament procedure was both broader in scope and more reliant on public hearings, thus in procedural terms making a greater effort to link parliamentary oversight with the public’s right to know. Additionally, not only did it examine such issues as EU Member State complicity and the control of foreign agency operations in Europe, but it also raised issues linked to the UN Convention against Torture 1984, EU-US treaties on extradition and mutual legal assistance, and the issue as to whether the EU or the US should accept diplomatic assurances against torture.

In its final stages, the TDIP benefited not only from being able to consider the first completed PACE report, but also from an increasingly wide range of sources collected by major human rights non-governmental organizations and the available European flight control data. In January 2007, after 33 public hearing sessions totalling over 110 hours and involving over 200 witnesses or other interlocutors,55 the TDIP adopted the final report prepared by its rapporteur, Claudio Fava.56 This led to the adoption of a critical resolution by the European Parliament in its plenary session on 14 February 2007.57 Although the result was clear, the fact that the resolution was adopted by 382 MEPs voting in favour and 256 against also (p. 955) testifies to the political sensitivities involved. The resolution instructed the Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) to take action to follow up on the work of the TDIP in order to check whether EU institutions and its Member States subsequently implemented the Parliament’s recommendations. The report further stated that the EU Council’s failure to act could be in breach of the principles and values on which the EU is based, implying the possibility of sanctions under Article 7 Treaty on European Union (TEU).

The response by the different branches of the US Government indirectly confirmed the impact of this European level of parliamentary oversight. In particular, the Senate Select Committee on Intelligence held an in camera hearing on renditions in February 2007.58 Then, in March, the then CIA director, Michael Hayden, took a very unusual step in convening a group of European ambassadors in Washington, DC in an effort to defend the actions of the CIA, and to criticize the European Parliament’s report for overestimating the number of detainees involved in the renditions programme.59 In April, the US Congress’ Subcommittees of the House Foreign Affairs and Judiciary Committees had a joint meeting with a specific focus on the European Parliament’s report and heard the statements of several MEPs active in the TDIP.60 Finally, in May 2007, the Homeland Security Secretary, Michael Chertoff’s, visit to the European Parliament indirectly testified to the positive impact that the public deliberations of a regional parliamentary body may have on these issues.

Although both the TDIP report and the PACE investigation were obviously restricted to some degree by their inability to access fully all relevant classified materials, the information that has emerged subsequently regarding the rendition programme appears to validate the thrust of both reports. Moreover, without these actions, the democratic response to this controversy would have missed something crucial in terms of clearly reaffirming the importance of adhering to the rule of law in counter-terrorism responses, and of ensuring the democratic legitimacy of their related policies. This European experience in regional parliamentary oversight might be of value for other regional organizations and their parliamentary components, such as for the African Union which is currently in the process of setting up its own counter-terrorism centre in Algeria.

5.4.  Oversight of EU Cooperation with Third Party States

As is evident from the discussion so far, any reliance upon foreign security services as sources of intelligence or of other types of assistance for counter-terrorism purposes (p. 956) raises potentially difficult issues of oversight. These issues become arguably even more complex—whether politically, legally, or morally—when any such cooperation takes place with third party partner countries which are less democratic in nature, and which therefore have less well developed oversight mechanisms, if any at all. Whilst established democratic states are not immune from the perpetration of human rights abuses, as examples of recent state practice considered here have illustrated, nevertheless it is an established fact that human rights abuses are more likely to emerge in overtly authoritarian regimes, or in countries with transitional or fragile democracies. This is partly attributable to the mutually reinforcing nature of democratic and human rights.

An important challenge that needs to be covered in this context for reasons of completeness, but which it is not possible to go into in great detail here, is the issue of what parliamentary oversight is possible or should exist when a regional organization or Member States of a regional organization like the EU cooperate with third party states which are clearly not subject to the same regulations, standards, or existing institutional oversight mechanisms.

An additional tension for Member States of a regional organization like the EU is that they are subject not only to any domestic and constitutional limitations, but also to any additional obligations imposed or guidelines published by that regional organization. Consequently, any counter-terrorism engagement with third party states with problematic human rights and rule of law records poses at least a significant risk of breaching domestic, regional, or international legal requirements. The need for effective parliamentary oversight of any such cooperation is therefore all the greater. Highlighting one obvious area of concern, Human Rights Watch recently called for those states seeking such cooperation, for example EU Member States, to ensure that their national intelligence services are in possession of clear guidance as to what constitutes appropriate engagement with partner services, and that intelligence cooperation arrangements with such third countries include clear human rights stipulations to avoid complicity with torture.61

The need for clarity in this area is compounded by the explicit policy objective to intensify counter-terrorism cooperation as laid out by UN Security Council Resolution 137362 and by the EU Counter-Terrorism Strategy 2005.63 The urgency to engage in counter-terrorist activity around the world was manifest in the EU Counter-Terrorism Strategy statement that ‘co-operation with and the provision of (p. 957) assistance to priority third countries—including in North Africa, the Middle East and South East Asia—will be vital’.64 The actual level of implementation regarding the stated intention to integrate counter-terrorism cooperation with EU external policies remains debated and the record is clearly mixed. There is little doubt, however, that the question of how to reconcile these policy objectives with the strong EU commitment to human rights still requires careful thought. Otherwise, as Susan Alegre has stated, rule of law and human rights may appear to be only ‘a political gloss on the counter-terrorism strategy rather than a serious practical and legal issue to be addressed’.65 Similar problems relating to intertwined but potentially conflicting policy objectives may easily arise between development and counter-terrorism cooperation also—as the European Court of Justice (ECJ) case on an EU-funded border management project in the Philippines (brought to the Court by European Parliament) already testifies.66

One specific way in which parliamentary oversight mechanisms may be introduced or strengthened in this context is to utilize the opportunities offered by security sector reform assistance. EU policy in this context has been guided by the EU Council Conclusions on a Policy Framework for Security Sector Reform,67 and the European Commission’s Concept for European Community Support for Security Sector Reform, both agreed in 2006. The EU support concept ties security sector reform to conflict prevention, conflict resolution, and the fight against terrorism, whilst underlining the EU’s commitment to its constitutive principles, including the rule of law and human rights. In the quest to achieve an optimal balance between these two aspects of the EU approach, the focus on the governance aspects of security sector reform, including strengthening parliamentary oversight, judicial independence, and media freedom, is crucial.68

The EU approach is broadly in line with the conceptual framework of the security sector reform policies being promoted by the IPU, which tie efficiency reforms to accountability reforms, including adoption of basic principles of parliamentary oversight. (p. 958) As the IPU handbook on security sector reform notes, ‘in the light of the present fight against terrorism, the tension between liberty and security may present parliaments with serious challenge. Yet, it is absolutely essential that balancing liberty and security should not be the exclusive responsibility of the executive and that, as a representative and guarantor of people’s rights, the parliament should exercise close oversight in this respect.’69 Whilst such recommendations are not legally binding, and such an approach is limited to a post-conflict environment when security structures are being rebuilt, nevertheless they represent important steps in the right direction, not least as such states—for example Iraq and Afghanistan—may be key third party states for inter alia counter-terrorism cooperative purposes.

6.  The Future of Parliamentary Oversight at the European Level

6.1.  Parliamentary Oversight and the EU Counter-Terrorism Strategy

At the European level, there has been a strong emphasis on developing a common counter-terrorism strategy. In order to meet the challenge of international terrorism networks, EU Member States have sought already to increase the exchange of information between domestic intelligence services and law enforcement bodies. At the regional level also, the collection, storage, and sharing of data on terrorism and counter-terrorism matters within EU institutions, and between Member States and third countries (including the US), has been streamlined and extended. At the same time the EU Counter-Terrorism Strategy 2005 has sought to accommodate security and human rights concerns.70

The strong stance of the European Parliament has contributed to the emphasis given to human rights and oversight within the EU’s own counter-terrorism strategy: (1) ‘to combat terrorism globally while respecting human rights, and make Europe safer, allowing its citizens to live in an area of freedom, security and justice’;71 and (2) that ‘[t]he EU should pursue its goals in a democratic and accountable way. Political oversight of the Strategy and regular follow-up will be essential.’72 Political oversight in this context means high level political dialogue between the Council, Commission, and the European Parliament twice a year ‘to allow the three Institutions (p. 959) to consider progress together and promote transparency and balance in the EU’s approach’.73

Such commitments within the EU Counter-Terrorism Strategy did not automatically resolve the oversight challenges in practice: the biggest question was how to ensure oversight on an issue where: (1) competencies are shared between the EU and national governments; and (2) where EU action could take place through Community as well as intergovernmental ‘Third Pillar’ legislation—or through foreign and security policy decisions (all options entailing a different role for the European Parliament). These oversight challenges were duly noted by the EJP Report in the following terms:

In the European context, there is the added problem … that many information sharing measures adopted within the European Union are placed within the inter-governmental pillar of the European Union Treaty (the area of Justice and Home Affairs). The fact that this function is located in the Third Pillar, as it is called, mirrors many of the negative trends the Panel saw at the domestic level: decisions are thereby subject to limited control of the judiciary (in this case European Court of Justice) and do not require approval by the legislature (the EU Parliament).74

In effect, the EJP was pointing to a possible parliamentary oversight gap relating to the EU’s Third Pillar counter-terrorism legislation, at least some of which might have had quite far-reaching legal consequences, such as the EU Framework Decisions on the European Arrest Warrant, Joint Investigation Teams, and on Combating Terrorism (all in 2002).75 Prior to the entry into force of the Lisbon Treaty in 2009 (which ended the pillar system),76 such concerns were not unfounded. For example, in the case of the EU-US agreement on Passenger Name Records (PNR), a European Parliament challenge regarding the appropriate legal basis, and the consequent ECJ judgment actually caused the Council to change the legal basis from the First to the Third Pillar, where the data protection regime was much more limited than in the First Pillar (and the European Parliament had no legislative veto power),77 thereby reducing rather than increasing the ability of the EU level parliamentary body to scrutinize the agreement. However, it has to be noted too that while the EJP Report was correct to point out the limited role of the European Parliament in respect of (p. 960) Third Pillar legislation (under the Treaty of Nice), those EU Member State ministers who represented their governments within the EU Council and therefore held the decisive legislative power available under the Third Pillar nevertheless remained subject to parliamentary oversight by their respective national parliaments.

6.2.  Impact of the Treaty of Lisbon on EU Parliamentary Oversight

The changes brought about by the entry into force of the Lisbon Treaty were significant, not least in abolishing the Third Pillar and bringing any legislative issues on police and other criminal cooperation matters within the scope of co-decision-making by the EU Council and European Parliament. More specifically, Article 83 Lisbon Treaty states that the ordinary legislative procedure will apply regarding directives on combating terrorism and organized crime, thus making the European Parliament an equal co-legislator with the EU Council on these matters.

A closely related important evolution concerns EU international agreements relating to the fight against terrorism. Prior to the Lisbon Treaty, these agreements were commonly based on Articles 38 and 24 TEU, which did not foresee any European Parliament involvement. However, as Article 83 Lisbon Treaty makes the European Parliament a co-legislator in this area, it also means that international agreements falling into this policy area should be subject to the same parliamentary consent procedure—thus giving the European Parliament a de facto veto right on EU international agreements in this policy area.

That these new parliamentary oversight powers were intended to be treated with sincerity became clear in February 2010 when the European Parliament effectively forced the re-negotiation of the EU-US international agreement on the transfer of data to the US Treasury’s Terrorist Finance Tracking Programme (TFTP). The agreement was originally adopted on 30 November 2009, but was then suspended after the European Parliament voted against it in February 2010. This was mostly out of concern for data privacy linked to the idea of sharing European banking information of the SWIFT banking network with US government officials.78 Consequently, a new round of negotiations was conducted in light of the recommendations that the European Parliament issued in its resolution on a future (p. 961) EU-US TFTP agreement on 5 May 2010.79 Finally, a revised TFTP agreement was approved by the European Parliament in July and entered into force on 1 August 2010.80

Another important evolution of parliamentary oversight concerns the European Police Office, Europol, which is the EU law enforcement organization responsible for the collection, exchange, and analysis of criminal intelligence. It was originally established by means of an intergovernmental convention, before EU Member States took a decision at the EU Council in 2009 to establish Europol as an EU agency from January 2010 onwards. Moreover, Article 88 Lisbon Treaty makes it clear that Europol’s legal framework—including its structure, operation, and tasks—will be jointly agreed by the European Parliament and the Council by means of regulations which will ‘also lay down the procedures for scrutiny of Europol’s activities by the European Parliament, together with national parliaments’. This emphasis on parliamentary oversight does carry real weight as Europol’s role in counter-terrorism cooperation inside the EU has been significant and it has been instrumental in the EU’s efforts to establish police and law enforcement cooperation with the US in this policy area.81

Europol’s new position under the Lisbon Treaty has also prompted the European Commission to evaluate the possible alternative arrangements to carry out the treaty commitment to parliamentary oversight ‘by European Parliament, together with national parliaments’. In its Communication of December 2010, the European Commission outlines three possible formats to involve national parliaments in the process:82

  1. (1)  using the existing inter-parliamentary Conference of Parliamentary Committees for EU Affairs (COSAC) as a forum for exchanging ideas, information, and best practice on national parliamentary scrutiny of Europol;

  2. (2)  establishing a Joint Committee with members drawn from the relevant specialist committees at the European Parliament and national parliaments;

  3. (p. 962)
  4. (3)  using existing formats of inter-parliamentary meetings involving members of the European Parliament and of national parliaments to strengthen cooperation on Europol.

Although this type of inter-parliamentary oversight cooperation will in any case be a complex and challenging task, the pressure to respond to the internationalization of counter-terrorism cooperation is likely to sustain such momentum. Inside the EU, the adoption of EU internal security should add more gravity to parliamentary cooperation.83

In addition to the European Parliament and national parliaments, there is much as yet untapped potential here with such institutions as the PACE, and the Parliamentary Assembly of the Organization for Security and Cooperation in Europe (OSCE-PA) which is composed of national parliamentarians, to increase and further strengthen parliamentary oversight structures at the regional or international levels. The meeting held in Brussels in 2008 between the relevant committees of the European Parliament, EU Member States’ national parliaments, and the PACE rapporteur on counter-terrorism, seemed to indicate willingness by the parliamentary bodies to search for ways to move in this direction.84

7.  Conclusions and Recommendations

As many high level analyses have argued in recent years, it is crucial that government agencies involved in counter-terrorism are subject to a combination of effective internal and external controls (both judicial and political). This is a requirement that should be filled in part by effective parliamentary oversight. It can be argued that each oversight mechanism needs to play its role in a democratic society to achieve an appropriate level of oversight and accountability to support the democratic legitimacy of counter-terrorism policies. The mandates and powers of different oversight institutions should therefore be systematized as far as practically possible in order to avoid oversight gaps in any particular area.

The added value of effective parliamentary oversight, vis-à-vis other forms of oversight, is its potential to ensure broader democratic legitimacy of policies and actions that to a certain degree need to take place outside the public eye. Parliamentary (p. 963) oversight should therefore be comprehensive enough to assess credibly the compliance of counter-terrorism policies with the law, the effectiveness and efficiency of those policies and activities, and the appropriateness of their financial and administrative practices. Even in the sensitive area of operational secrecy, as the Venice Commission of the Council of Europe has recommended, ‘although there may, exceptionally, be grounds for not notifying the parliament in advance of a transfer of authority to exercise police or security powers in a specific case, there must afterwards be full governmental accountability to the parliament for all such decisions’.85

Organizationally the requirements of effective parliamentary oversight bodies are fundamentally the same as for other oversight institutions. As UN Special Rapporteur Martin Scheinin has noted, it is important that ‘oversight institutions have the power, resources and expertise to initiate and conduct their own investigations, as well as full and unhindered access to the information, officials and installations necessary to fulfill their mandates’.86 This should include appropriate levels of cooperation by all government services with a stake in counter-terrorism action, as well as the provision of all relevant documentation and other evidence. In return, parliamentary oversight bodies need to demonstrate maturity and professionalism in their handling of classified information and personal data, not least by upgrading their technical facilities, practices, and codes of conduct as required.

Although the need for, and benefits of, efficient parliamentary oversight are clear, it is also plain to see that the challenges associated with achieving a consistent and high level of parliamentary oversight are great. Analyses of the activities of both standing parliamentary oversight bodies, and ad hoc parliamentary committees and inquiries, seem to indicate a mixed record—positive results have often been coupled with worries ranging from the lack of true political clout, to the existence of too much party political polarization on key issues. The search for best practices, not least in achieving the right balance in the parliament-executive relationship, should continue.

The same is undoubtedly true with regard to finding convenient solutions to maintain parliamentary oversight over burgeoning levels and practices of international counter-terrorism cooperation. Oversight limited to national boundaries or regional organizations is clearly not enough at a time when counter-terrorism cooperation and technical support activities link nations bilaterally and regional organizations to third countries. The efforts to improve inter-parliamentary cooperation, coupled with the demonstrated influence of regional parliamentary bodies as different as the European Parliament and PACE, point to the potential of having an international (p. 964) or regional dimension to parliamentary oversight. Doubts about the difficulties and complexities undermining the efficiency of such efforts are likely to remain. However, the comment of the UK House of Commons Select Committee on European Scrutiny in its conclusions in February 2011 regarding parliamentary oversight cooperation vis-à-vis Europol should be noted:

We accept that there is a risk that an inter-parliamentary forum involving all 27 national parliaments and the European Parliament could be unwieldy and cumbersome but do not see how a smaller body could claim to be representative. We think that the risk could be mitigated by making procedures as light and flexible as possible and minimising the call on resources.87

Such pragmatism is most likely a general prerequisite for meeting the challenges of any form of parliamentary oversight, not least that associated with global counter-terrorism cooperation. In this regard, the work already done by the IPU (and others) on standards and best practices should also be strengthened as it provides a method of dialogue and learning among different stakeholders. In step with standards and best practices, it is also crucial to acknowledge the importance of supporting the institutional development and strengthening of parliaments, which is instrumental in giving reality to proper parliamentary oversight in fragile or emerging democracies.

Footnotes:

The author works for the European Parliament, Policy Department of Directorate-General for External Policies, and writes here in his personal capacity.

UNGA, ‘Vienna Declaration and Programme of Action, World Conference on Human Rights’ (25 June 1993) UN Doc A/CONF.157/23 para 17.

Club of Madrid, ‘Towards a Democratic Response: Series on Democracy and Terrorism Volume 3’ 〈http://www.safe-democracy.org/docs/CdM-Series-on-Terrorism-Vol-3.pdf〉 accessed 14 April 2011.

International Commission of Jurists, ‘Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights: Assessing Damage, Urging Action, An initiative of the International Commission of Jurists’ (Geneva, 2009) 89 (EJP Report)http://ejp.icj.org/IMG/EJP-Report.pdf〉 accessed 14 April 2011; UNGA, ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin: Compilation of good practices on legal and institutional frameworks and measures that ensure respect for human rights by intelligence agencies while countering terrorism, including on their oversight’ (17 May 2010) A/HRC/14/46 paras 13–15 (UN Special Rapporteur Report).

M Tushnet, ‘The Political Constitution of Emergency Powers: Parliamentary and Separation of Powers Regulation’ (2007) 3 IJ Law in Context 275; F De Londras and FF Davis, ‘Controlling the Executive in Times of Terrorism: Competing Perspectives on Effective Oversight Mechanisms’ (2010) 30 Oxford JLS 19.

See, for example, J Owens and R Pelizzo, ‘The Impact of War on Terror on Executive-Legislative Relations: A Global Perspective’ (2009) 15 JLS 119.

A Maurer and W Wessels (eds), National Parliaments on their Way to Europe (Nomos Verlagsgesellschaft, Baden-Baden 2001); Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC) ‘Eighth Bi-annual Report: Developments in European Union Procedures and Practices: Relevant to Parliamentary Scrutiny’ (14–15 October 2007) 〈http://www.cosac.eu/en/documents/biannual/〉 accessed 13 April 2011.

For example, M Nowak, Human Rights: A Handbook for Parliamentarians (Inter-Parliamentary Union (IPU) and Office of the United Nations High Commissioner for Human Rights (OHCHR), Geneva 2005), especially Chapter 11: ‘The role of parliamentarians in the protection and promotion of human rights’ 63–80; P Fluri, AB Johnson, and H Born (eds), Parliamentary Oversight of the Security Sector: Principles, Mechanisms and Practices (IPU and Geneva Centre for the Democratic Control of Armed Forces (DCAF), Geneva 2003); H Born and I Leigh, Making Intelligence Accountable: Legal Standards and Best Practice for Oversight of Intelligence Agencies (Publishing House of the Parliament of Norway, Oslo 2005); I Leigh, ‘Democratic Control of Security and Intelligence Services: A Legal Framework’ (DCAF Working Paper No 119, Geneva 2003) 〈http://www.iskran.ru/cd_data/disk2/rr/022.pdf〉 accessed 13 April 2011.

Fluri, Johnson, and Born (n 7) passim and especially 19–20.

See also Born and Leigh (n 7) 77.

10  Born and Leigh (n 7) 13–15.

11  Born and Leigh (n 7) 88–93. See also M Caparini and E Cole, ‘The Case for Public Oversight of the Security Sector’ in E Cole, K Eppert, and K Kinzelbach (eds), ‘Public Oversight of the Security Sector’ (UN Development Programme (UNDP) and DCAF, Geneva 2008) 11–30.

12  On the case for public oversight with different sectoral foci, see E Cole, K Eppert, and K Kinzelbach (eds), Public Oversight of the Security Sector (UNDP and DCAF, Geneva 2008); National Democratic Institute (NDI), Democratic Oversight of Police Forces: Mechanisms for Accountability and Community Policing (NDI, Washington, DC 2005); IPU and DCAF, Parliamentary Oversight of the Security Sector Principles, Mechanisms and Practices (IPU and DCAF, Geneva 2003); A Paulus and M Vashakmadze, ‘Parliamentary Control over the Use of Armed Forces against Terrorism: In Defence of Separation of Powers’ (1997) 28 Netherlands Ybk IL 113.

13  Peter Gill has stressed in the British context the need ‘for there to be a clear division of labour between oversight agencies but they must share information in order better to inform themselves and thus collectively to punch above their interest’ in P Gill, ‘Evaluating Intelligence Oversight Committees: The UK Intelligence and Security Committee and the “War on Terror”’ (2007) 22 Intelligence and National Security 14. This is undoubtedly true in other democratic political systems as well.

14  This is especially problematic with regard to cooperation between intelligence agencies. For a thoughtful review of issues and literature, see T Wetzling, ‘The Democratic Control of Intergovernmental Intelligence Cooperation: A Literature Review’ (DCAF Working Paper No 165, Geneva 2006).

15  For journalistic treatments see, for example, the Washington Post investigative series of articles on ‘Top Secret America’ by Dana Priest and William M Arkin, published in July 2010 〈http://projects.washingtonpost.com/top-secret-america/〉 accessed 28 April 2011; and T Shorrock, Spies for Hire: The Secret World of Intelligence Outsourcing (Simon and Schuster, New York 2008).

16  See, for example, F Francioni and N Ronzitti (eds), War by Contract: Human Rights, Humanitarian Law, and Private Contractors (OUP, Oxford 2011); JJ Carafano, Private Sector, Public Wars: Contractors in Combat—Afghanistan, Iraq, and Future Conflicts (The Changing Face of War) (Praeger Security International, Westport, CT 2008); Human Rights Watch, ‘Private Security Contractors at War: Ending the Culture of Impunity’ (New York, 2008) 〈http://www.humanrightsfirst.org/wp-content/uploads/pdf/08115-usls-psc-final.pdf〉 accessed 16 April 2011.

17  See, for example, C Holmqvist, Private Security Companies: The Case for Regulation (SIPRI, Stockholm 2005) Chapter 4: ‘The Global War on Terrorism and Privatization of Security’.

18  See, for example, Fluri, Johnson, and Born (n 7) 19–24; Born and Leigh (n 7) 18–20 on legislative powers, and 96–100 on budgetary powers.

19  See the Committee’s home page 〈http://www.europarl.europa.eu/activities/committees/homeCom.do?body=LIBE〉 accessed 28 April 2011.

20  Born and Leigh (n 7) 91–3.

21  For an examination of rule of law issues arising in the specific context of intelligence gathering and how increased accountability might be achieved, see G Staberock, ‘Intelligence and Counter-Terrorism: Towards a Human Rights and Accountability Framework?’, Chapter 14 of this volume.

22  Born and Leigh (n 7) 80–7; Leigh (n 7); Born and Leigh (n 11).

23  On the mandate of parliamentary oversight institutions see Born and Leigh (n 7) 80–4.

24  Gill (n 13); Human Rights Joint Committee, ‘Twenty Third Report: Allegations of UK Complicity in Torture’ HL 152 and HC 230 (2009) paras 57–66 〈http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/152/15202.htm〉 accessed 16 April 2011; House of Commons Foreign Affairs Committee, ‘Seventh Report: Human Rights Annual Report 2008’ HC 557 (2009) para 63 〈http://www.parliament.the-stationery-office.co.uk/pa/cm200809/cmselect/cmfaff/557/55702.htm〉 accessed 16 April 2011.

25  Law creating a parliamentary delegation on intelligence, Loi n°2007–1443 portant création d’une délégation parlementaire au renseignement, Assemblée nationale (9 October 2007); Délégation parlementaire au renseignement, Rapport relatif à l’activité de la delegation pour les années 2008 et 2009, Assemblée nationale No 2170 (17 December 2009); P Hayez, ‘Renseignement: The New French Intelligence Policy’ (2010) 23 IJ Intelligence and Counter-Intelligence 474–86.

26  T Wetzling, ‘L’Allemagne et le Contrôle parlementaire du Renseignement’ (Note du Cerfa 78, Comité d’études des relations franco-allemandes, October 2010).

27  RJ Aldrich, ‘Whitehall and the Iraq War: the UK’s Four Intelligence Inquiries’ (2005) 16 Irish Studies in International Affairs 73.

28  These concerns are also documented with regard to the German ad hoc parliamentary inquiries in Wetzling (n 26). See also Born and Leigh (n 7) 80–4.

29  Born and Leigh (n 7) 91–3; Born and Leigh (n 11) 11–13.

30  F Sejersted, ‘Intelligence and Accountability in a State without Enemies: The Case of Norway’ in H Born, L Johnson, and I Leigh (eds), Who’s Watching the Spies: Establishing Intelligence Service Accountability (Potomac, Dulles, VA 2005) 119–41.

31  UN Special Rapporteur Report (n 3) para 15.

32  See further H Duffy and S Kostas, ‘“Extraordinary Rendition”: a Challenge for the Rule of Law’, Chapter 21 of this volume.

33  US Senate Select Committee on Intelligence, ‘Legislative Oversight of Intelligence Activities: The U.S. Experience’, Senate Print 103–88, 103rd Congress, 2nd sess (GPO, Washington, DC 1994). Arguably the most thorough Congressional examination of the US intelligence community was conducted in 1975 by the US Select Committee to Study Governmental Operations with Respect to Intelligence Activities, also commonly known by the name of its Chairman as the ‘Church Committee’.

34  US Senate Select Committee on Intelligence, ‘Closed Hearing: Renditions’ (14 February 2007) 〈http://intelligence.senate.gov/hearings.cfm?hearingId=e655f9e2809e5476862f735da12030a2 accessed 19 August 2011. For a recent analysis of the institutional set-up by the US Congressional Research Service see FM Kaiser, ‘Congressional Oversight of Intelligence: Current Structure and Alternatives’ RL 32525 (2010) 〈http://assets.opencrs.com/rpts/RL32525_20100825.pdf〉 accessed 28 April 2011.

35  European Parliament Temporary Committee on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners (TDIP), ‘Report on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners’ (30 January 2007) A6–0020/2007 (TDIP Extraordinary Rendition Report) 〈http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A6-2007-0020&language=EN〉 accessed 17 April 2011; ‘European Parliament resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners’ (14 February 2007) (P6_TA(2007)0032).

36  US House of Representatives, ‘Extraordinary Rendition in U.S. Counterterrorism Policy: The Impact on Transatlantic Relations, Joint Hearing’ (17 April 2007) 〈http://foreignaffairs.house.gov/110/34712.pdf〉 accessed 14 April 2011.

37  US House of Representatives, ‘Rendition to Torture: The Case of Maher Arar, Joint Hearing’ (18 October 2007) 〈http://www.internationalrelations.house.gov/110/38331.pdf〉 accessed 14 April 2011.

38  US House of Representatives, ‘Diplomatic Assurances and Rendition to Torture: The Perspective of the State Department’s Legal Adviser, Hearing’ (10 June 2008) 〈http://www.internationalrelations.house.gov/110/42903.pdf〉 accessed 14 April 2011.

39  See also M Tushnet, ‘Controlling Executive Power in the War on Terrorism’ (2005) 118 Harvard L Rev 2673–82; J Owens, ‘Congressional Acquiescence to Presidentialism in the U.S. “War on Terror”’ (2009) 15 JLS 147. For a discussion on the Arar case in a related context see RJ Aldrich, ‘Global Intelligence Co-operation versus Accountability: New Facets to an Old Problem’ (2009) 24 Intelligence and National Security 39–40.

40  Deutscher Bundestag, Gesetz zur Fortentwicklung der parlamentarischen Kontrolle der Nachrichtendienste des Bundes (Bundestag 29 May 2009 and Bundesrat 10 July 2009), Bundesgesetzblatt Jahrgang 2009 Teil 1 Nr. 49 (Bonn 2009) 〈http://www.bnd.de/DE/Aufsicht__Kontrolle/Parlamentarische__Kontrolle/Gesetz,templateId=raw,property=publicationFile.pdf/Gesetz.pdf〉 accessed 28 April 2011.

41  Deutscher Bundestag, Beschlussempfehlung und Bericht des 1. Untersuchungsausschusses nach Artikel 44 des Grundgesetzes, 16/13400 (18 June 2009) 〈http://dipbt.bundestag.de/dip21/btd/16/134/1613400.pdf〉 accessed 28 April 2011.

42  Deutscher Bundestag, Beschlussempfehlung und Bericht (n 41).

43  Constitutional Court ruling, BVerfG, 2 BvE 5/06 (1 July 2009) Absatz-Nr (1–147) 〈http://www.bverfg.de/entscheidungen/es20090701_2bve000506.html〉 accessed 16 April 2011.

44  For a detailed analysis, see Wetzling (n 26).

45  BBC Our World Documentary, ‘Europe’s Secret CIA Prisons’ (October 2010), discussed at 〈http://www.bbc.co.uk/news/world-11469369〉 accessed 16 April 2011; Amnesty International (AI), ‘Open Secret: Mounting Evidence of Europe’s Complicity in Rendition and Secret Detention (15 November 2010) AI-Index 01/023/2010 〈http://www.amnesty.org/en/library/info/EUR01/023/2010/en〉 accessed 16 April 2011.

46  AI, ‘Open Secret’ (n 45); Sejmas Committee on National Security and Defence, ‘Findings of the parliamentary investigation by the Seimas Committee on National Security and Defence concerning the alleged transportation and confinement of persons detained by the Central Intelligence Agency of the United States of America in the territory of the Republic of Lithuania’ Annex to Parliamentary Resolution of 22 December 2009 〈http://www3.lrs.lt/pls/inter/w5_show?p_r=6143&p_k=2〉 accessed 14 April 2011.

47  AM Slaughter, ‘Disaggregated Sovereignty: Towards the Public Accountability of Global Government Networks’ (2004) 39 Government and Opposition 159; I Cameron, ‘Particular Accountability Problems Relating to International Co-operation between Intelligence Agencies’, Paper presented at the 6th Conference of the Parliamentary Committees for the Oversight of Intelligence and Security Services of the European Union Member States (1 October 2010) 〈http://www.parlement-eu2010.be/pdf/30sep-1okt-Thema3-Iain%20Cameron.pdf〉 accessed 28 April 2011.

48  Aldrich (n 39).

49  Belgian Senate, ‘Programme’, 6th Conference of the Parliamentary Committees for the Oversight of Intelligence and Security Services of the European Union Member States (Brussels, 1 October 2010) 〈http://www.parlement-eu2010.be/pdf/30sep-1okt-programE.pdf〉 accessed 14 April 2011.

50  B Müller-Wille, ‘Intelligence and Democratic Accountability: A Blessing, not a Curse’ (2006) 15 European Security 491–506.

51  On the specific provisions of the Lisbon treaty, see Section 6.2 below.

52  The following paragraphs draw several insights and comparative points from the analysis in Aldrich (n 39) 44–50.

53  D Priest, ‘Foreign Network at Front of CIA’s Terror Fight: Joint Facilities in Two Dozen Countries Account for Bulk of Agency’s Post-9/11 Successes’ Washington Post (18 November 2005) 〈http://www.washingtonpost.com/wp-dyn/content/article/2005/11/17/AR2005111702070.html〉 accessed 28 April 2011. See also D Priest, ‘Wrongful Imprisonment: Anatomy of a CIA Mistake: German Citizen Released After Months in “Rendition”’ Washington Post (4 December 2005) 〈http://www.washingtonpost.com/wp-dyn/content/article/2005/12/03/AR2005120301476.html〉 accessed 28 April 2011.

54  Rapporteur Dick Marty, Parliamentary Assembly Council of Europe (PACE) (Committee on Legal Affairs and Human Rights), ‘Alleged Secret Detentions in Council of Europe Member States: Information Memorandum II’ (22 January 2006) AS/Jur (2006) 03 rev 〈http://assembly.coe.int/Main.asp?link=/CommitteeDocs/2006/20060124_Jdoc032006_E.htm accessed 17 April 2011; Council of Europe, ‘Secretary General’s Report under Article 52 ECHR on the Question of Secret Detention and Transport of Detainees Suspected of Terrorist Acts, Notably by or at the Instigation of Foreign Agencies’ (28 February 2006) SG/Inf (2006) 5 〈https://wcd.coe.int/wcd/ViewDoc.jsp?id=976731&Site=COE accessed 17 April 2011; PACE Resolution 1507 (2006), ‘Alleged Secret Detentions and Unlawful Inter-State Transfers of Detainees Involving Council of Europe Member States’ (27 June 2006); PACE Recommendation 1754 (2006), ‘Alleged Secret Detentions and Unlawful Inter-State Transfers of Detainees Involving Council of Europe Member States’ (27 June 2006); see also the follow-up in PACE Committee on Legal Affairs and Human Rights, ‘Secret Detentions and Illegal Transfers of Detainees Involving Council of Europe Member States: Second Report’ (11 June 2007) Doc 11302 rev 〈http://assembly.coe.int/Documents/WorkingDocs/Doc07/edoc11302.pdf〉 accessed 17 April 2011.

55  For interesting practical data and details, see the US House of Representative’s Committee on Foreign Affairs, Subcommittee on International Organizations, ‘Statement of the Vice-Chair of the TDIP’ (17 April 2007) 〈http://foreignaffairs.house.gov/110/lud041707.htm〉 accessed 14 April 2011.

56  TDIP Extraordinary Rendition Report (n 35).

57  ‘European Parliament resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners’ (14 February 2007) (P6_TA(2007)0032).

58  US Senate Select Committee on Intelligence, ‘Closed Hearing: Renditions’ (14 February 2007) 〈http://intelligence.senate.gov/hearings.cfm?hearingId=2541〉 accessed 14 April 2011.

59  See Aldrich (n 39).

60  US House of Representatives, ‘Extraordinary Rendition in U.S. Counterterrorism Policy: The Impact on Transatlantic Relations, Joint Hearing’ (17 April 2007) 〈http://foreignaffairs.house.gov/110/34712.pdf〉 accessed 14 April.

61  Human Rights Watch, ‘No Questions Asked: Intelligence Cooperation with Countries that Torture’ (June 2010) 〈http://www.hrw.org/en/reports/2010/06/28/no-questions-asked-0〉 accessed 28 April 2011.

62  UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373.

63  Council of the EU, ‘The European Union Counter-Terrorism Strategy’ (30 November 2005) 7 (EU Counter-Terrorism Strategy 2005) 〈http://europa.eu/legislation_summaries/justice_freedom_security/fight_against_terrorism/l33275_en.htm〉 accessed 28 April 2011.

64  EU Counter-Terrorism Strategy (n 63).

65  S Alegre, ‘The EU Counter-Terrorism Strategy and Human Rights in Central Asia’ in E Guild and F Geyer (eds), Security versus Justice? Police and Judicial Cooperation in the European Union (Ashgate, Aldershot 2008) 279–88. For other perceptive analyses, see C Kaunert and S Léonard, ‘EU Counterterrorism and the European Neighbourhood Policy: An Appraisal of the Southern Dimension’ (2011) 23 Terrorism and Political Violence 286; G Joffe, ‘The European Union, democracy and counterterrorism in the Maghreb’ (2008) 46 JCMS 147.

66  Case 403/05 European Parliament v Commission of the European Communities (Philippines Border Management Project) [2007] ECR I-9045.

67  EU Council, ‘Conclusions on a Policy Framework for Security Sector Reform’, General Affairs Council Meeting (12 June 2006) 〈http://www.initiativeforpeacebuilding.eu/resources/Council_Conclusions_on_a_Policy_framework_for_SSR.pdf〉 accessed 28 April 2011.

68  European Commission, ‘Communication from the Commission to the Council and the European Parliament: A Concept for European Community Support for Security Sector Reform’ (24 May 2006) COM(2006) 253 〈http://eur-lex.europa.eu/LexUriServ/site/en/com/2006/com2006_0253en01.pdf〉 accessed 28 April 2011.

69  Fluri, Johnson, and Born (n 7) 104–12.

70  EU Counter-Terrorism Strategy (n 63). The Strategy commits the EU to combat terrorism globally while respecting human rights and allowing its citizens to live in an area of freedom, security, and justice. It is built around four strands to: prevent people from turning to terrorism; protect citizens and critical infrastructure by reducing vulnerabilities; pursue and investigate terrorists, impede planning, travel, and communications, cut off funding and access to attack materials, and bring terrorists to justice; and respond in a coordinated way by preparing to manage and minimize the consequences of a terrorist attack, by improving capabilities to deal with the aftermath, and by taking into account the needs of victims.

71  EU Counter-Terrorism Strategy (n 63) 6.

72  EU Counter-Terrorism Strategy (n 63) 5.

73  EU Counter-Terrorism Strategy (n 63) 17.

74  EJP Report (n 3) 71.

75  For a full list of counter-terrorism measures, see EU Counter-terrorism Coordinator, ‘EU Action Plan on Combating Terrorism’ (15 November 2010) 15893/10 ADD 1 Addendum to Note 〈http://register.consilium.europa.eu/pdf/en/10/st15/st15893-ad01re01.en10.pdf〉 accessed 14 April 2011.

76  ‘Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union’ [2008] OJ C115/01. The Lisbon Treaty was signed on 13 December 2007, and entered into force on 1 December 2009. See further 〈http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2008:115:SOM:en:HTML〉 accessed 28 April 2011.

77  On the ECJ judgment (Joined Cases C-317/04 and C-318/04 European Parliament v Council of the European Union [2006] ECR I-4721) see G Gilmore and J Rijpma, ‘Case Law’ (2007) 44 CMLRev 1081.

78  For the different stages of this confrontation between the European Parliament and the EU’s executive, see the following European Parliament resolutions: ‘European Parliament resolution on SWIFT, the PNR agreement and the transatlantic dialogue on these issues’ (14 February 2007) P6_TA(2007)0039; ‘European Parliament resolution of 17 September 2009 on the envisaged international agreement to make available to the United States Treasury Department financial payment messaging data to prevent and combat terrorism and terrorist financing’ (17 September 2009) P7_TA(2009)0016; and ‘Legislative resolution of 11 February 2010 on the proposal for a Council decision on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program’ (11 February 2010) P7_TA(2010)0029.

79  European Parliament, ‘Resolution of 5 May 2010 on the Recommendation from the Commission to the Council to authorise the opening of negotiations for an agreement between the European Union and the United States of America to make available to the United States Treasury Department financial messaging data to prevent and combat terrorism and terrorist financing’ (5 May 2010) P7_TA(2010)0143.

80  European Parliament, ‘Recommendation on the draft Council decision on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Program’ (5 July 2010) P7_TA(2010)0279.

81  W Rees, Transatlantic Counterterrorism Cooperation (Routledge, London 2006).

82  ‘Communication from the Commission to the European Parliament and the Council on the procedures for the scrutiny of Europol’s activities by the European Parliament together with national parliaments’ (17 December 2010) COM(10) 776 〈http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0776:FIN:EN:PDF〉 accessed 1 May 2011.

83  EU Council, ‘Draft Internal Security Strategy for the European Union: Towards a European Security Model’ (25 February 2010) 5842/2/10 Rev 2 〈http://register.consilium.europa.eu/pdf/en/10/st05/st05842-re02.en10.pdf; European Commission, ‘The EU Internal Security Strategy in Action: Five Steps towards a More Secure Europe’ (22 November 2011) COM(2010)673 〈http://ec.europa.eu/commission_2010-2014/malmstrom/archive/internal_security_strategy_in_action_en.pdf〉 accessed 2 May 2011.

84  In the meeting held on 6 April 2008, 22 MPs from 12 parliamentary chambers met with up to 60 MEPs. For a discussion on the meeting, see European Parliament, National Parliaments/European Parliament Yearbook 2008 (European Parliament, Brussels 2009) 21–2.

85  Council of Europe (Venice Commission), ‘Report on the Democratic Oversight of the Security Services’ (11 June 2007) CDL-AD(2007)016 〈http://www.venice.coe.int/docs/2007/CDL-AD(2007)016-e.asp〉 accessed 17 April 2011.

86  UN Special Rapporteur Report (n 3) para 13 Practice 7.

87  UK House of Commons European Scrutiny Committee, ‘National parliaments’ scrutiny of Europol’ (Committee Session of 9 February 2011) para 10.20 〈http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/428-xvi/42812.htm〉 accessed 17 April 2011.