Discussion Prompt:  Why don’t intelligence oversight bodies cooperate as well as intelligence agencies? And is there reason to believe that this could be changing?

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Having compiled the experiences of a dozen NGOs around the world seeking clarity on the intelligence sharing arrangements of their countries’ secret services, the International Network of Civil Liberties Organizations has gained a detailed understanding of what prevents an effective cooperation of national oversight bodies both with civil society and one another. Oversight cooperation tends to suffer from the opacity of intelligence sharing arrangements, limited capacity, procedural challenges, and political division. In some countries though, the presence of pro-active authoritative individuals and civil society acting as a facilitator of transnational cooperation, are reasons to hope for a more effectively connected international oversight landscape.

INCLO is pleased to contribute to this discussion series on oversight cooperation. We are a network of 15 independent and leading NGOs across the world who have joined together to fight for fundamental freedoms.[1]

Our project has so far consisted of Freedom of Information requests (FOIs) in 2017 and an investigation report in 2018, followed by outreach letters to oversight bodies in 2019. Within this body of work, we have expressed our collective alarm at the lack of publicly available information about our countries’ exchange of intelligence with foreign agencies and sought engagement with oversight bodies regarding our proposed series of rights-based reforms.

In particular, INCLO has identified ongoing insufficient laws​ governing how intelligence sharing partnerships are formed or operate, insufficient government oversight​ and review of agency agreements, and insufficient transparency​ and access to information about these agreements. Based on examples from our investigations, I describe here potential specific categorical barriers to oversight body cooperation. I conclude by reasoning that barriers to cooperation might be overcome by strongly motivated individual actors within the intelligence oversight field.

Oversight outreach and engagement

Following the publication of our 2018 investigation report “Unanswered Questions”, INCLO members considered the utility of reaching out to their national intelligence oversight bodies to express urgent concern about the ongoing lack of access to information regarding intelligence sharing agreements. We detail here the various approaches taken.

No engagement

Certain INCLO members decided it would ultimately not be constructive to engage with oversight bodies due to the political climate of current administrations, the ‘black box’ nature of intelligence sharing practices, and also due to potential threats the outreach would create for certain organisations themselves. Regarding the former, in the US for example, the American Civil Liberties Union (ACLU) decided outreach with oversight was not an organisational priority and would unlikely be productive with the current administration. The Association for Civil Rights in Israel (ACRI), Agora International Human Rights Group in Russia (Agora), the Egyptian Initiative for Personal Rights (EIPR), and Liberty in the UK  similarly did not engage via this project.

No responses

Some INCLO members sent versions of our 2019 outreach letter with no response. See for example the Hungarian Civil Liberties Union (HCLU), which sent a translated letter to the head of the National Security Committee at the Parliament and to a range of ministers who had already received prior letters requesting information. This advocacy tool had little impact and they did not receive any response. Similarly, the Kenyan Human Rights Commission (KHRC) sent letters to seven relevant state institutions with no response. The Irish Council for Civil Liberties (ICCL) also sent letters to seven relevant state institutions including the Data Protection Commissioner. Here, the responses were pro forma: The Data Protection Commissioner said this matter does not engage personal data protections and was therefore outside the remit of its office. The Department of Justice responded by stating that “for security reasons it is not the practice to publicly comment on the detail of counter terrorism arrangements” but that “these arrangements are kept constantly under review”.

Extensive engagement

Dejusticia in Colombia took significant steps in engagement efforts, filing Freedom of Information requests to seven members of the Legal Monitoring Commission of Intelligence and Counterintelligence Activities. The responses mainly stated that such information was classified or, for one ex parte commission member, that no action plan had been structured to address requests. In a follow-up, Dejusticia filed a new FOI before the Ombudsman of Access to Information. The Ombudsman forced one of the congressmen to answer; however, the congressman has not responded and is unlikely to do so. The Ombudsman also ordered the Chief of Intelligence and Counterintelligence of the Military to send the case to the Administrative Tribunal. The Tribunal this spring ordered the Chief of Intelligence and Counterintelligence of the Military to disclose the information to Dejusticia. Instead, the Chief structured a response redirecting Dejusticia to different web pages which contained no information! Dejusticia in response filed a request to the Ombudsman to ask if the Chief’s lack of compliance might be sanctioned. They are still waiting for the Ombudsman to sanction the Chief.

Oversight barriers


Inactive oversight bodies neither oversee nor collaborate with each other. Our Argentinian member Centro de Estudios Legales y Sociales (CELS) for example, notes that the Congress’s Bicameral Intelligence Commission — created by the National Intelligence Law — has the responsibility to supervise the procedures of the country’s federal intelligence agency AFI for obtaining and gathering intelligence, including intelligence cooperation. However, the commission has not been very active and has never stated anything about intelligence cooperation in any of its reports.


Oversight body inactivity can in part be due to lack of capacity. This often stems from significant budget and human resource constraints. For example, in 2018 conversations with the South African Legal Resource Centre (LRC), the Chairperson of the Inspector General of Intelligence (IGI) revealed that due to constraints of this sort his office was forced to focus on its complaints function and undertake monitoring and reviewing of critical areas of intelligence gathering. Therefore intelligence sharing had not been a focus of recent oversight reports. This was despite the Chairperson confirming that he considers oversight over intelligence sharing an important part of his office’s mandate.

Procedural Challenges

Procedural challenges leading to inactivity can also hamper the ability of oversight agencies to act, either nationally or in cooperation with each other. In Colombia, for example, Dejusticia has noted that Article 19 of Law 162178 came into force in 2013 and mandated the creation of a Parliamentary Legal Commission. This Commission is intended to be in charge of monitoring intelligence and counterintelligence activities. Although this Law came into force over seven years ago, the Commission has not yet been able to carry out all its mandated activities due to claimed procedural challenges.

No specifically designated oversight body

Of course, there is reduced opportunity for international cooperation amongst oversight bodies if they do not exist as a discrete entity nationally to begin with. In Ireland, for example, ICCL notes there is no parliamentary or independent body oversight of intelligence sharing functions, so in practice these functions are only controlled by oversight of an already busy executive with arguably ineffective qualifications. Further, while the Data Protection Commissioner is qualified and also has a limited power to review surveillance and intelligence sharing, there is a general exclusion in national law which provides that data protection law “does not apply to…personal data that in the opinion of the Minister [for Justice] or the Minister for Defence are, or at any time were, kept for the purpose of safeguarding the security of the State”.

Political division

For those national bodies that exist, they can be hampered by significant political hurdles at home. The HCLU notes that there is no effective oversight of, or engagement with, intelligence sharing issues currently in Hungary. Rather, the National Security Committee at the parliament that oversees National Security Services has become caught in intense political battles that have dismantled its mandate. The head of the opposition party is on the Committee and their presence has led governing parties to refuse to participate in the Committee’s work. Further, according to the narrative of governing parties, the opposition parties themselves pose a threat to national security. Similarly, in South Africa, the IGI chair has accused the State Security Agency (SSA) of hampering his mandate through noncooperation and barring access to documents and information.


International human rights law requires that international intelligence sharing agreements are guided by adequate laws, oversight, and transparency. This provides necessary protection for our enshrined human rights including privacy, freedom of expression, freedom of association, and access to information. Continuing to shroud these arrangements in secrecy removes the public’s ability to challenge agencies’ actions, troubling the rule of law.

These democratic barriers to understanding intelligence agency cooperation similarly shroud the nature of intelligence oversight cooperation. And so, the opacity around governance of intelligence sharing sometimes rivals the opacity attached to intelligence sharing practices themselves. See for example in India, where the level of oversight provided by the Joint Intelligence Committee of the government of India is entirely unclear. See also Russia, where Agora explains that Article 13 of the Federal Law “On the Federal Security Service” states that all specific provisions and information about such cooperation are classified.

We must also remember that the barriers posed to public understanding present no issue for intelligence sharing agreements themselves. Recall the collaborations between Kenya and the US, or Kenya and Israel. The KHRC reminds us of prominent examples: during a 2016 official state visit, Israeli Prime Minister Benjamin Netanyahu said that Israel would cooperate with Kenya on intelligence matters related to terrorism and in May 2017, US Ambassador Bob Godec acknowledged that the US provides technical assistance to Kenya’s security services in relation to a variety of policing skills, which include terrorism investigations and intelligence gathering. Furthermore, in June 2017, Kenya’s Ministry of Information Communication Technology stated that Kenya and the US had agreed to collaborate on matters of cybersecurity and digital economy.

Promising engagements

Canada is celebrating the 2019 appointment of its first ever intelligence commissioner. The CCLA placed INCLO’s Intelligence Sharing report in front of the Chair of Canada’s new National Security and Intelligence Review Agency (NSIRA), Murray Rankin, who visited the CCLA’s offices as part of his engagement efforts in this incumbent role. The Chair was receptive to INCLO’s messaging and is currently determining how best to approach NSIRA’s mandate. The key feature of the organisation will be to follow threads across agencies, for example when the Communications Security Establishment (CSE) assists the Security Intelligence Service (CSIS), a capacity lacking in Canada’s former siloed review agencies.

In South Africa, when the LRC was not initially successful with FOI requests they subsequently met with IGI Chairperson Dr. Setlhomamaru Dintwe to raise concerns about international intelligence sharing, to discuss inadequacies in state oversight, and to address the lack of effective oversight of secret surveillance. During the meeting, Dr. Dintwe confirmed that the IGI was the oversight body entrusted with investigating complaints about alleged abuses or malfeasance within the SSA. He expressed his frustration at the compromised institutional independence of his office, including the lack of an independent budget and a revoked security clearance into investigations of alleged abuse of office by the SSA director general. The IGI has expressed its desire to work closely with the LRC, suggesting a level of cooperative spirit towards international cooperation too.


Those authoritative individuals most willing to engage with civil societies, for example in Canada and South Africa, might be the strongest predictors of cooperative behavior between oversight bodies. In both these countries, the oversight agency leads’ demonstrated willingness to engage in a proactive manner suggests a similar capacity to engage with like-minded bodies overseas. South Africa in particular has been proactive in seeking new solutions to the problems of agencies acting without adequate oversight, including those seeking to specifically preclude effective oversight, by seeking recourse to the courts. This level of initiative might be further demonstrated within a forum or working group of international bodies. Civil society organisations with the capacity to set up a working group or discussion forums might just be the necessary fulcrum needed to open up discussion and cooperation on the international stage. However, it is inherently problematic where the solutions we must rely on are the work of civil society organisations, rather than openness and transparency coming from the relevant bodies themselves.

[1] Participating INCLO members are: Agora International Human Rights Group (Agora) in Russia, the American Civil Liberties Union (ACLU), the Association for Civil Rights in Israel (ACRI), the Canadian Civil Liberties Association (CCLA), the Centro de Estudios Legales y Sociales (CELS) in Argentina, Dejusticia in Colombia, the Egyptian Initiative for Personal Rights (EIPR), the Hungarian Civil Liberties Union (HCLU), the Irish Council for Civil Liberties (ICCL), the Kenya Human Rights Commission (KHRC), the Legal Resources Centre (LRC) in South Africa, and Liberty in the UK. This project commenced before the Human Rights Law Centre in Australia and KontraS in Indonesia joined INCLO.