In 1989, a Swiss parliamentary committee revealed that the country’s Federal Police and Federal Prosecutor’s Office had spent decades recording the activities of 10% of the Swiss population. It seems that during the Cold War, being a member of a left-wing organization, or even contacting it, raised the eyebrows of these agencies. But they weren’t alone. In time, the Swiss postal service and even private individuals began to perform this type of surveillance.
When they were finally informed about these activities, the Swiss public was predictably shocked by the scope and scale of the “Secret Files Scandal”. What concerned them then is what concerns everyone now – i.e., the often absent legal justifications for such activities and the inadequate democratic oversight exercised over those who perform them.
The “Insurmountable Tension”
The Swiss case, along with the recent revelations about the US National Security Agency’s (NSA) activities, points to what many analysts and practitioners have long argued is an indissoluble problem. Yes, secrecy is necessary to prevent ‘legitimate’ surveillance targets from knowing they are under scrutiny, and thereby changing their modus operandi. At the same time, this necessary feature of intelligence work inevitably breeds a lack of transparency and needed oversight.
When faced with this tension between protecting the interests of the state and yet preserving the privacy of its citizens, different governments have opted for different responses. Some have raised their hands, claimed the tension is insurmountable, and have privileged intelligence gathering over privacy. Other governments, however, have concluded that lack of transparency almost invites their intelligence services to hide their misconduct or lapses in judgment. As a result, they have tried to strike the ‘right balance’ between preserving national security and maintaining individual freedoms. In the wake of Secret Files Scandal, Switzerland joined the latter group. But in its particular case, what does the democratic control over intelligence actually mean?
Based on the Swiss example, what steps might one want to take in order to address the ‘insurmountable tension” we’ve just discussed? Well, four steps immediately come to mind, all of which have been taken by the Swiss government and people.
Step 1: Establish a clear-cut legal framework. In other words, define the basic mission of your intelligence services, assign their areas of responsibility, explain the reasonable limits of their desired competencies, and specify the sanctions they will suffer for violating the rules.
In the case of Switzerland, the Swiss Federal Intelligence Service’s (FIS) compliance with the law is ensured by the following organizations or bodies.
- An Independent Control Authority in the executive branch, which consists of an interdepartmental committee that reviews the legality and proportionality of the FIS’ mandate.
- A Federal Data Protection Commission, which checks the legality of the personal data collected within Switzerland.
- A Parliamentary Control Delegation, which has wide-ranging rights of inspection.
- And an Audit Office, which audits the FIS on behalf of the Finance Delegation of the Swiss Parliament.
Step 2: Ensure that civil society and the media play their roles in exercising democratic controls over intelligence gathering, especially in revealing possible misconduct that could lead to parliamentary investigations.
This form of oversight, however, must be done responsibly. In areas where information sharing is protected, the media must limit its tendency to speculate and sometimes provide false information. Indeed, as a recent interview with the head of the FIS shows, secret intelligence staff often refrain from defending themselves from spurious allegations made by the media, especially in circumstances where a rebuttal might lead to unhelpful revelations about ongoing intelligence activities.
Step 3: Scrutinize and debate intelligence legislation in public.
In this area, the Swiss case is an interesting one. Partly because of the Secret Files Scandal, the FIS has restricted competencies when it comes to surveillance gathering, and any proposed amendments to its mandate are openly scrutinized and debated in public. In fact, the preliminary draft for a new Intelligence Service Act (scheduled to become law by mid-2015) has raised alarm bells among many Swiss citizens. They worry that the proposed mandate for the FIS, which permits ‘special means of collecting intelligence’, may lead to a repetition of the Secret Files Scandal. Given these concerns, the debate on this provision is active and far from finished.
Step 4: Declassify documents in a timely fashion and make sure information about the general activities of the intelligence services is readily available.
To comply with these requirements and facilitate democratic oversight , the Swiss Federal Intelligence Service regularly publishes situation reports about threats to national security, disseminates brochures explaining its organizational structure, and invites the public to submit written requests to access to any personal data held on them by the agency.
The four steps taken by Switzerland may not all be translatable to other settings, but they show that its public, policymakers, and intelligence agencies have all learned some important lessons since the Secret Files Scandal. Yes, legislation passed in 1997 and again in 2008 clearly assigns the FIS’ mandate and areas of responsibility. Oversight duties remain firmly in the hands of government departments and the legislature, and public access is assured whenever and wherever possible. Switzerland’s media plays an important role in raising public awareness of the activities of the FIS and, indeed, sparking debate. And finally, the Swiss public takes their roles as scrutinizers and debaters of future legislation very seriously.
Despite all these exemplary steps, it’s probably true that the tension between the need for secrecy and democratic oversight will never be completely resolved. For example, current legislation places severe restrictions on the FIS’ ability to respond to instances of espionage conducted on Swiss territory. Because the country’s financial, technological and academic sectors make it an attractive location for espionage, it remains to be seen what legislative changes might occur in the future and what capabilities the FIS will be allowed to have and use.
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