The Circle of Secrecy

By Jane Duncan · 5 Dec 2011

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Picture credit: topsecretsoftware.com
Picture credit: topsecretsoftware.com

In a 2005 interview with academic Sandy Africa for her PhD thesis, the-then chair of the Parliamentary Joint Standing Committee on Intelligence, Siyabonga Cwele, lamented the fact that the intelligence services classified virtually all their information. This was in spite of the fact that the Intelligence Services Oversight Act only required classification of information about the identity of operatives, informants and operational methods. Cwele went on to express concern about the ways in which these practices created a “wall of secrecy” around the intelligence services.

In an ironic twist, six years later, in his capacity as State Security Minister, Cwele is championing a piece of legislation - the Protection of State Information Bill - that will most likely maintain the very “wall of secrecy” that he decried in his time as a Member of Parliament.

The debate around the Bill has focussed largely on the difficulties journalists and ordinary people will experience in seeking information about the security cluster. But there has been practically no debate about what information the Ministry should place in the public domain as a matter of course, without waiting for information requests.

In his speech on the Bill in the National Assembly in November, Cwele alleged that the country was facing a threat of information peddlers, who risked destabilising the country with false information, and that the Bill was needed to criminalise this sort of behaviour. This contrasts sharply with his statement made in the Ministry’s budget vote in June that “there are no threats to our constitutional order”. It is impossible to make sense of these conflicting messages because the Ministry does not make information available routinely about its strategic objectives, activities and results.

Presumably, the Ministry, which incorporates the civilian intelligence services, is taciturn because it assumes that its activities are, by their very nature, secret and that openness would undermine national security. South Africans have largely gone along with this assumption unquestioningly, simply accepting that intelligence activities should lie outside the public domain.

This is an incorrect assumption. The Ministry does not stand above the constitution with its requirements of open government and accountability. In justifying the Bill, Cwele has often referred to international best practice in keeping intelligence information secret, but tellingly he has remained silent on international best practice in making intelligence information publicly available.

The Dutch General Intelligence and Security Service (AIVD) is not considered to be particularly progressive politically. The Service has been accused of harassing left wing groups, while underplaying the far more real threat to national security posed by the right-wing Brownshirts.

Yet the AIVD has an enlightened approach towards transparency. The Agency is legally obliged to produce an annual report containing information about its strategic objectives, operational objectives and an annual plan. The report also identifies what they considered to be the major threats to national security in that year.

According to the latest report, the AIVD played close attention to what it termed terrorism, radicalism and extremism, clandestine intelligence activities by foreign agents and proliferation of weapons of mass destruction. While this information is very general in nature, at least it enables the Dutch to hold a debate about whether these threats are real or a fantasy of some securocrat’s imagination.

The same cannot be said for South Africa whose Ministry does not have a publicly available annual report. As national intelligence priorities are classified, only hints of Ministerial thinking can be gleaned from pronouncements like budget speeches.

Parliaments in other democracies release reports containing information on strategic intelligence priorities and policies, the listing or delisting of organisations as terrorist organisations, budgets and personnel levels. In contrast, the Joint Standing Committee's reports - which the Ministry accounts to - are threadbare, focussing mainly on operational matters in portfolio organisations.

According to the 2006 Ministerial Review Commission on Intelligence - established by the-then Minister Ronnie Kasrils in the wake of the intelligence crisis the year before - the budgets, financial reports, regulations and executive policies, strategic intelligence assessments and priorities of the intelligence services should be in the public domain. The Commission also criticised the over-broad mandate of the-then National Intelligence Agency, and called for the mandate to be narrowed through a public process. Tellingly, the government buried the report on the absurd grounds that it was leaked before cabinet and Parliament could consider it.

Operational policies on matters such as intrusive methods of surveillance, which cover principles, responsibilities and authority, should also be publicly available as these areas are not regulated by law, leaving them susceptible to abuse. Yet in a response to a request for these policies, Cwele’s spokesperson, Brian Dube, conflated operational policies (which should be available) and operational methods (which should be secret). According to Dube, “…The operational policy is the heart of the operational methods and cannot be disclosed. These are the jewels of South Africa’s intelligence”.

The reports of the oversight body for intelligence, the Inspector General of Intelligence, are not available publicly, although they should be, with the areas not capable of disclosure being redacted. In the Netherlands, the Review Committee on Intelligence publishes a report that contains a public section and a classified section. The report contains information about the activities of the civilian and military agencies and investigations into possible abuses of the intelligence services, as well as policy recommendations.

Furthermore, the South African Ministry and portfolio organisations have been exempted from producing information manuals since 2005, which makes it even more difficult for potential information requesters to access information.

In addition, the Joint Standing Committee meets largely behind closed doors, which means that the Committee operates with the presumption of secrecy, with openness being the exception, rather than the other way round. This means that the oversight structures operate within a circle of secrecy.

In effect, there is a constitutionally indefensible information blackout on the intelligence services. This blackout is dangerous as it creates space for abuse of this most sensitive area of government. In spite of the fact that the Zuma administration promised to bring the abusive practices under Mbeki to an end - when the intelligence services were used to spy on political opponents - there is no telling whether this has actually happened, clearly Zuma is determined to keep people guessing.

The recent resignations in the Ministry's portfolio organisations strongly suggest an intelligence community that is rife with internal power struggles, which present a clear and present danger to South Africa's national security.

Transparency and national security are interdependent concepts. As Laurie Nathan has argued, a democratic understanding of national security “…provides a compelling basis for openness rather than secrecy”. It is not something that has to be balanced against rights and freedoms. A democratic approach to national security encompasses and embraces rights and freedoms”. He has argued that rather than being based on amorphous notions of national security, secrecy should be designed to prevent specific and significant harm that might arise from public disclosure.

Why has Cwele undergone a Paul-to-Saul conversion on the question of transparency in a short space of six years? Should it be ascribed to individual regression?

The ANC finds itself caught in a contradiction that has been sharpened by the 2008 global recession. In government, it is not creating employment fast enough. Zuma admitted recently that the government finds it difficult to sustain the welfare budget. There are signs of the ANC gradually losing electoral support, and any attempt to cut the welfare budget will hasten the party’s demise at the polls. The intelligence services will probably have made such threat assessments as their overly broad mandate allows them to function as state watchdogs of society.

But the current elite linked to the ANC’s leadership do not have an independent source of wealth-creation outside the state. Black economic empowerment has largely failed to make significant inroads into the still white-dominated private economy. If they lose control of the state, they lose everything. 
â€Some may have even decided that if they cannot rule through consent, they may need to resort to coercion. But given that Cwele has, himself, admitted that there are no major threats to national security, threats must be manufactured to justify a shift in power and resources from welfare to state security, and an increase in the coercive capacities of the state.

The national security state had its origins in the Truman administration in the United States, which used the bogey of communism to militarise the state, and shift public spending away from the welfarist 'New Deal' towards national security. But Zuma's security 'hawks' cannot use the threat of communism to justify a similar shift; neither can they draw on recent memories of fascism.

So their solution is to create a deliberately ill-defined sense of threat, posed by a hotchpotch of foreign spies and Right 2 Know campaigners. The lockdown on intelligence priorities makes it impossible to consider the adequacy of government’s threat assessment, which allows them to sex up the extent of the threats.

It would appear that a new class of national security managers is emerging, and assuming greater prominence in national policy making. To justify their existence, they are fashioning a new ideology of semi-war.

Tactically, civil society should respond by demanding intelligence information that should rightfully be in the public domain, and building public confidence to hold this most secretive sphere of government to account. Only then can there be an intelligent debate about whether there are threats to national security, and if they are, what the real sources of these threats are.

Professor Duncan is Highway Africa Chair of Media and Information Society, School of Journalism and Media Studies at Rhodes University.

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