Spies bid for new powers

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A draft Bill to be processed by Parliament this year will expand the ability of the state to “bug” citizens without a judicial warrant and widen the scope of “counterintelligence” activities. The Mail & Guardian newspaper reports today the Intelligence General Laws Amendment Bill has been attacked as “a major u-turn in government policy” and for largely ignoring the recommendations of the 2008 Matthews Commission, which highlighted unconstitutional provisions in South Africa’s intelligence laws.

Against the backdrop of other planned legislation that bolsters state security agencies and weakens civil society, including the Protection of State Information Bill (the secrecy Bill), fears were expressed that the legislation is part of a broader drift towards a “security state” under President Jacob Zuma.

It is seen as marking the transformation from an intelligence mindset where the intelligence services are neutral gatherers of information which is passed to the executive to adjust policy or take action, to a state security mindset in which the agency views its role as countering “enemies of the state”, the paper reports.

Published in the Government Gazette late last year, the Bill seeks to create a single intelligence body, the State Security Agency (SSA), by amalgamating existing intelligence structures, including the National Intelligence Agency (NIA) and the South African Secret Service (SASS). It also gives legal recognition to the National Communications Centre, which has the capacity for bulk interception of communications and will – according to the M&G – be subject to minimal legal restraint.
‘Excessively secretive’

Intelligence expert Laurie Nathan, now director of Pretoria University’s Centre for Mediation, called for the Bill to be the subject of public hearings and added that the joint standing committee on intelligence, whose members would dominate the ad hoc committee that would process the Bill, was excessively secretive. “The parliamentarians on this committee are reluctant to play a rigorous oversight role, which is their constitutional obligation, and there’s a failure to involve Parliament and the public in the oversight process,” Nathan said. The standing committee had refused to discuss the Matthews Commission report on the grounds that “it had not been properly presented to Cabinet by former intelligence minister Ronnie Kasrils”, he said. Nathan served on the commission.

Standing committee chairman Cecil Burgess, who also led Parliament’s ad hoc committee on the secrecy Bill, could not be contacted for comment this week, the paper says. Brian Dube, spokesman for State Security Minister Siyabonga Cwele, said yesterday that the Matthews report had been taken into account in drafting the Bill, which was “a critical step in the quest to provide a sound legal footing for government’s efforts to develop a new intelligence dispensation … geared for the dynamic and evolving challenges of the 21st century”.

However, the proposed concentration of power prompted complaints by the Democratic Alliance’s David Maynier that the government was reversing the approach of the 1995 White Paper on intelligence, which stated that the most significant departure from the apartheid dispensation was that, “instead of one centralised, national civilian intelligence organisation, there will
be two”. This arrangement, according to the white paper, “will not only ensure that the new intelligence dispensation in South Africa corresponds with general international trends but will promote greater focusing, effectiveness, professionalism and expertise in the specialised fields of domestic and foreign intelligence”. Maynier, one of the DA’s representatives on the ad hoc committee, said his party was still studying the legislation. “But,” he said, “it takes us back to the bad old days of the Bureau for State Security – BOSS is back.
“What worries me is that there seems to be a process of ‘Stasification’ under way in the state security department. The spooks appear to be becoming more centralised, more politicised and more secret.”

Foreign signals intelligence

Likely to cause controversy is a provision in the Bill allowing the SSA to intercept “foreign signals intelligence”. This will, for the first time, provide a legal basis for the work of the National Communications Centre, an obscure, high-tech facility set up in Gauteng in the 1990s. By 2008 it boasted a staff complement of about 300. The centre’s telecommunications and computer equipment can intercept and analyse large volumes of voice and internet traffic, both indiscriminately by listening for keywords and in a targeted way by focusing on individual phone numbers, email addresses and even voice prints.

To date, the centre has operated outside national legislation, including the Regulation of Interception of Communications and Provision of Communication-related Information Act (RICA), which allows interception only with a judge’s warrant. It has relied on the loophole that it supposedly intercepts “foreign” communications only, which is not regulated by domestic law.

However, in practice, the centre has defined “foreign signals” to include cross-border communications where one of the parties is in South Africa and the other abroad. And, because of the globalised nature of internet traffic, many emails, voice-over-internet conversations and communication via social media such as Facebook and Twitter — even if both end parties are in South Africa — would also be vulnerable.

The current Bill attempts to introduce a definition of “foreign signals intelligence” that will allow the warrant-free tapping of cross-border communications to continue. The definition includes “any communication that emanates from outside the borders of the Republic or passes through or ends in the Republic”.

The centre’s capabilities have been abused in the past to target South African citizens. The 2005/2006 investigation by Inspector General of Intelligence Zola Ngcakani of the “hoax emails” saga — an example of the intelligence services being dragged into the ANC succession battle — found that the centre had been used to target individuals domestically.

Nathan said this week that he was concerned that the Bill failed to address other constitutional defects identified by the commission, including the failure of intelligence statutes to regulate all intrusive operations. Merely by its definition of key terms, the draft legislation conferred “substantive powers on the intelligence services”, he said.

An analysis of successive intelligence laws underlines the gradual widening of the counterintelligence function in legislation. The National Strategic Intelligence Act of 1994 defines counterintelligence as “measures and activities conducted, instituted or taken to impede and to neutralise the effectiveness of foreign or hostile intelligence operations, to protect classified intelligence and to counter subversion, sabotage and terrorism aimed at, or against personnel, strategic installations or resources of the Republic”.

This was amended in 2003 to extend the protection of intelligence from classified intelligence only to any intelligence, to add treason to the activities to be countered, and to add security screening to the counter-intelligence function. The current Bill broadens the concept of counterintelligence by adding sedition to the activities to be countered, widens “terrorism” to “terrorist and related activities”, and removes the requirement that the subversion, sedition, treason, terrorist and related activities must be directed at personnel, installations or resources of the state. Nathan said that a further problem was that the terms “impede”, “neutralise” and “counter” were not defined.



But in one respect, the Bill was an improvement on existing intelligence law, Nathan said: it borrowed almost verbatim the definition of national security proposed by the Matthews Commission. This excluded “lawful political activity, advocacy, protest or dissent” from the list of threats to national security.