Holding the Intelligence services in check. Can wiretaps be used in corruption cases? A mandatory public debate

The seemingly hasty decision of the PSD-PNL-UDMR coalition, which denied its initial position with a humiliating political flip-flop, has brought the secret services back into the corruption files, if the latest amendments voted in Parliament become law and are not censored by the Constitutional Court. This time only with the interceptions on national security warrants (relatively few). But the coalition has not imposed any judicial review or procedure to challenge these recordings. In other words, the intelligence services evade democratic accountability.

And so we come to the astonishment of BBC journalist Stephen Sackur who, disturbed by Minister Aurescu’s lack of logical explanations about the authorities’ secrecy, ended up asking him if Romania is a democracy.

 

Yes, Romania is a democracy. A young one, only 33 years old, with many flaws and processes influenced by unaccountable actors, yet a democracy. But the danger of a lack of transparency, of a lack of democratic accountability, exists and has reached a peak under the Iohannis regime. After all, the signal given by the president is clear: he has not given an interview for six years, the last press conference was on 5 July 2022, when one of the main topics was precisely the legislation of the secret services.

 

The treating of citizens as children in kindergarten who are incapable of understanding the reasons of the state has been made possible by the cult of secrecy that has persisted since the Communist period and has been reinforced by the personal conduct of the head of state. How else would it have been possible for a crucial decision such as possible military support for Ukraine to be kept completely secret for a year? Hence the bewilderment of the BBC journalist, confronted with an irrational refusal of dialogue on a crucial issue. Let’s be clear: no one is asking for the operational and logistical details of possible military aid to Ukraine, only for the public communication of a decision, whatever it may be. I think the public is mature enough to understand such a decision.

 

Back to the coalition decision. Please note: Parliament has decided to use intercepts made by the intelligence services on national security warrants as evidence in corruption cases (there are about 2,000 such warrants per year, according to data from the Prosecutor General’s Office), and not intercepts on judicial warrants (far more numerous, over 30,000 per year). Corruption is such a threat to democracy and national security that the decision seems right.

But the problem is the lack of filters to prevent possible abuses by the intelligence services. The literature is full of examples: even in advanced societies, lack of control over intelligence services leads to anti-democratic abuses. In Romania we have had countless examples of such behavior, the discussion is no longer theoretical.

 

In short, the judiciary must have at its disposal methods by which to challenge these interceptions, and the justice system must have the mechanisms to correct any possible slippages in the preliminary chamber. Otherwise, two problems will arise. The first – of a practical nature: the files built up by prosecutors in this way may be quashed by a possible decision of the Constitutional Court. The second of a general nature: the lack of accountability of the intelligence services.

 

However, I believe that Romania is mature enough now to finally have the discussion that has been postponed for too long: how to put the intelligence services under real democratic control. The time is ripe for several reasons.

• First of all, we are approaching the 2024 multi-election campaign, and it is time to know how political parties are positioning themselves on a crucial issue, so that citizens will exercise their vote also according to this parameter.
• Secondly, the interest in the issue was launched as early as 2022, when G4Media exclusively revealed the harmful drafts of the security laws, drafted by the secret services themselves under the coordination of the presidential office.

The discussion needs to be a robust one, with real debates involving all parties concerned: the services themselves, the executive, legislative and judicial powers, and the civil society. The challenges are all the greater in a young democracy like Romania, with a painful past linked to the influence of the secret services. Civilian oversight must be designed so as not to impede national security missions in a region dominated by hybrid aggression by Russia and its allies such as Hungary, but to protect civil rights.

 

And the debate must have a clear starting point. At the moment, the power of the intelligence services is disproportionately great in relation to civilian control.

 

Why is it so?

The secret services could be involved in criminal investigations. Interception on national security warrants can now be used in a multitude of cases – from corruption to tax evasion, from drug trafficking to crimes involving EU funds. But let’s not forget that the Constitutional Court (CCR) has ruled that corruption is not a threat to national security, and it’s unclear whether the amendments passed in Parliament stand up to the constitutional test. G4Media has also written that the High Court is considering referring the amendments to the penal codes to the CCR.

 

The secret services are involved in government decisions. SRI and SIE have a formal role, established by Government Emergency Ordinance (OUG) by the Ciucă government, in assessing foreign direct investment from non-EU countries of over €2 million, including investment in the media. The services also have a growing role in large public digitalization projects, such as the government cloud.

 

The secret services are involved in the economy by being able to open covert companies without any effective control. However, evidence from different sectoral markets shows that firms perceived to be close to or even controlled by the services are given preferential treatment and end up heavily distorting those firms.

 

Intelligence involvement in politics is also a pervasive issue. From the appointment to the CCR of figures close to the services, such as Bogdan Licu, to the appointment of dozens of ministers, secretaries of state, heads of agencies or secretaries-general who have documented links to the services – it all looks bad for democracy. Not to mention the dozens of politicians who boast in talks about their connections „in the forest to the left or to the right” (allusions to the SRI and SIE headquarters in northern Bucharest) making them various favors.

At the same time, current civilian control is deficient. Parliament’s scrutiny committees appear to be controlled more by the services themselves, and the support of activity reports in Parliament has become optional. Not to mention the fact that in control committees, typists come from the services themselves, according to a decision taken in the past by a committee head – how can an unannounced control be decided if the service is present non-stop at the proceedings?

 

Also, control from other institutions is non-existent.

 

The debate on the role of the secret services must therefore start on several levels. And with the awareness that the services have become massively professionalized in terms of the operational component. The SRI is a real partner and a valuable provider of expertise to NATO counterparts. The SIE and the Army’s intelligence directorate have been praised by General David Petraeus, former CIA director, for their contribution in Middle East theatres of war. The SPP has a formal partnership with the UN to protect foreign dignitaries and provide training and expertise.

 

Vertical control. The intelligence services need to be brought effectively under parliamentary control, because what exists now is rather formal control. Effective arrangements exist in most EU and NATO member states, they must be incorporated into the legislation and strictly enforced.

 

These include limiting the number of terms of office of directors of the intelligence services and their first deputies, as well as developing a clear mechanism for terminating their mandate.

Horizontal control. State control institutions – the Court of Auditors, the Audit Authority, the Ombudsman, the National Integrity Agency – must be encouraged to exercise their powers also in relation to intelligence services, without the absurd fear that such actions could harm them. The US example is relevant: major intelligence operations are put under scrutiny by the institutions and Congress.

 

Judicial scrutiny. Any formal involvement of the intelligence services in cases, through the provision of evidence, must be subject to filters to ensure the right of the accused to a fair trial conducted with respect for civil rights. But there is a strong current in the judiciary and in civil society demanding that the intelligence services should not be involved in criminal investigations at all, that it is not their job to provide evidence, only information. All these positions need to be debated.

 

The discussion about increasing civilian control over the special services must start from the idea that they increase their credibility, efficiency and professionalism once this control is real and effective. They would only lose their illegitimate influence in society, but this would be in the general interest of citizens.

 

And the debate must concern all of them, without favoritism and bias: SRI, SIE, STS, SPP, Army Intelligence Directorate, General Directorate of Internal Protection of the Ministry of Interior. Who will start it?

 

Translated