Military Unit Romania. How the new national security laws turn the country into a large military unit 

Of the package of ten national security laws already on the coalition table, three deserve special attention: the two draft laws on the organization and functioning of the Romanian Intelligence Service and the Foreign Intelligence Service and the draft law on intelligence and counterintelligence activity.

The three bills grant increased powers to the main secret services, the National Intelligence Service (SRI) and the Foreign Intelligence Service (SIE), grant immunity only to officers of the two services and not to others and oblige citizens, companies, and authorities to cooperate with the services at their request and, perhaps most importantly, turn the services back into criminal investigation bodies through a slightly more sophisticated mechanism by expanding the list of threats to national security.

As a more general observation, the draft laws mentioned reflect the trend of militarization of the state in recent years, defying democratic norms and rules, and the proper functioning of a state governed by the rule of law. It should also be noted that the new security laws have been waiting in the drawer for the Constitutional Court to change its membership, which in recent years, under the influence of the former head of DNA, Daniel Morar, has massively cut back on the powers of the secret services.

The new Constitutional Court judges will take office in a week’s time, as the era of Daniel Morar, who has become the terror of the services, will officially end in a few days. The risk that some provisions of the new bills will be struck down by the court is therefore reduced.

No one disputes the need to modernize the legal framework. Services operate under laws written 30 years ago. In the meantime, the world has changed and become more sophisticated, as have the threats faced by states. War has broken out on Romania’s border, and Russia has invaded Ukraine and is threatening the region’s security. It is therefore only natural that the services should be given effective tools that are appropriate to the new realities.

But even in these exceptional circumstances, with the war on the doorstep and hybrid attacks, it is imperative to question the limits of the powers granted to the services, in order to protect democratic balances and not to transfer all power into the hands of people who are accountable to no one for the way they exercise it and who have not been voted in to legitimately govern the state.

For example, it is worth discussing to what extent is it justified to extend the list of threats to national security to absolutely all areas of society, including health, education, research, and even cultural heritage? Wasn’t the extension of the list of threats done to allow the services to return to the status of a criminal investigation body, lost following the 2016 Constitutional Court decision?

As the draft law shows, SRI officers will be able to use the national security warrant for almost any situation, including minor cases, and the information gathered can be used as evidence, just as it was six years ago.

Next, why would there be a need for specifically designated prosecutors to investigate an SRI or SIE officer? Why shouldn’t they be investigated, if they break the law, by any other magistrates in the justice system? Why can the SRI or SIE offices not be searched without the consent of the Supreme Defense Council (CSAT) or the President of the country? No more, no less.

It does not mean that a prosecutor should be able to break down the door of the SRI or SIE offices to search them when he feels like it, but perhaps the filter should not be set so high up, precisely at the President or the CSAT, but a little lower. Why wouldn’t an opinion from the parliamentary control committee be enough? It should be noted that officers of other services, such as the SPP or STS, do not enjoy this kind of immunity, but are accountable to the law almost like any other citizen. How can this difference in treatment be justified?

It is hard to understand why the Director of the SRI is no longer required to report to Parliament, but at most the specialized committee is required, according to the new laws, to draw up a report. Here we can detect a certain arrogance on the part of the services. Increasingly aware of their increased role in the exercise of power, they are changing the balance of power by symbolic positioning: the director of the SRI or SIE no longer goes to Parliament to be questioned. Let Parliament come to the directors’ door if it has questions and curiosities.

Even more interesting is the mechanism for appointing and dismissing SRI and SIE directors. The two are nominated by the President and voted on in Parliament, but they are not term-limited. They cannot be removed unless they belong to political parties or campaign for a candidate. Obviously, no director of the secret service will make such elementary errors.

But they cannot be dismissed, for example, for mismanagement or poor performance. How so? Then, it is not clear why the Parliament, which votes for their appointment, has lost the right to initiate the dismissal of the head of the SRI or SIE? Only the president of the country can propose dismissal, but only for the impossible reasons mentioned above. In other words, a director of a secret service once appointed is accountable to almost no one and cannot be sanctioned for almost anything he does.

Finally, the introduction of the obligation for citizens, companies and public authorities to cooperate with the secret services, at their request, whatever the situation, turns Romania into one big military unit. Putting an entire country to work for them, on top of the increased powers offered by the new laws, is such an obvious anti-democratic excess.

The draft laws on national security give increased powers to the secret services, but not enough guarantees that these powers will not be abused. Formal parliamentary scrutiny as it exists today is further diluted until it disappears in the new laws, and scrutiny of how public money is used is limited. According to the law, the parliamentary SRI and SIE control committees can verify „the use of allocated financial and material resources, with the exception of the operational expenditure fund under CSAT competence”. Moreover, „the fund for operational expenditure incurred by the intelligence services/structures is exempted from further control by the Court of Auditors”.

Let’s remember that in the past there have been cases of criminal cases for theft of operational funds from MAPN and MAI. This type of criminal investigation at the SRI or SIE will no longer be possible under the new laws.

All the controversial provisions revealed exclusively by G4Media.ro are in draft laws submitted to the ruling coalition. These laws are expected to enter the government for discussion and possible approval soon. There is still time for rectification so that a much-improved version can leave the government for parliament.

It is difficult to accept that the versions on the coalition table represent the vision of the secret services that have been part of NATO and the EU for so many years, and the draft laws seem more in the image of pre-’89 security systems.

On the other hand, if they stay that way, watch out for Russian-style negotiating tactics. It is quite possible that, with the proposed draft laws, the services will demand the maximum in order to get exactly what they want in the end.

Translated from Romanian by Ovidiu H.