Democratic Control of Intelligence Services by Born, Hans Born, Marina Caparini

By Born, Hans Born, Marina Caparini

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In such sensitive areas, it is not up to the discretion of the executive branch alone which decides when searches and surveillance are to be undertaken. The courts play an important role in determining that such action is justified, and in imposing limits on executive power to prevent abuses. An intelligence service in democratic state must normally seek a judicial warrant when it wants to perform surveillance and other investigative procedures against a person. The warrant usually is fairly specific in the details of what type of surveillance is to be allowed, against whom, and for how long, and other terms and conditions.

This refers to the role of international actors, such as foreign governments, intergovernmental organisations and international non-governmental organisations in holding a state institutional actor to account. It could be argued that the European Court of Human Rights, for example, increasingly constitutes a ‘third dimension’ accountability mechanism for security and intelligence services of EU member states. Vertical Accountability Applying this framework to intelligence and security intelligence agencies, and starting with the vertical dimension, the executive consists of the highest political level of authority in the state, including the Prime Minister and/or President, cabinet Ministers, appointed advisers and the most senior levels of the bureaucracy.

As argued by Lustgarten, law is a secondary mechanism. Of greater and more fundamental importance are basic political values such as respect for dissenting ideas, human rights and privacy; acceptance and legitimacy of a system of effective public oversight; a concept of national security that is limited to core political values and societal interests; and strict requirements for justifying the holding back of information from parliament and the public and restricting the rights and freedoms of citizens.

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