The problems of trying to get policing and national security to walk the line

IT COULD well be the case that the crises over policing and oversight that rocked the country this year could be replicated down the road in relation to the shadowy world of national security.

Justice Minister Frances Fitzgerald. 'There's no question of divesting security from the State,' Ms Fitzgerald said.

In recent months there have been steps — largely unnoticed in the media — to siphon off this nebulous world of policing from the “new era” of openness and transparency.

When the Government announced in March that it was setting up a Police Authority, there was no hint at that stage that it would be an authority for some policing, not all.

Last July, interim Garda Commissioner Noirín O’Sullivan gave the first suggestion to the public of what was unfolding: “The way I envisage it working is that the Garda commissioner would be accountable to the Policing Authority in respect of all policing matters. And on national security, the commissioner would report to the minister, the Oireachtas, and the Government.”

Last month, in an interview with The Sunday Business Post, Justice Minister Frances Fitzgerald said: “The Garda commissioner will still report to the Department of Justice on security and there’s no question of divesting security from the State, no question whatsoever.”

In recent weeks, the Oireachtas justice committee backed this approach in its report on reforming the Garda Síochána Act 2005.

“The committee acknowledges that certain information should be restricted, such as where its release to an oversight authority may threaten or compromise the security of the State.”

The report recommends that a separate “intelligence division” be established within the force and that oversight of this should rest with the minister and the Oireachtas.

It said this section, called the Intelligence and National Security Division, must be clearly demarcated from the rest of the police.

UNTANGLING POLICING FROM SECURITY

Such a scenario throws up a number of issues: One, how are the boundaries of the Policing Authority’s remit going to be set and who will make that determination?

Is there going to be a parallel system of oversight for national security/intelligence or will this area be left unreformed — opening up the possibility of crises down the road, similar to that in mainstream policing.

The issue is tricky to untangle as the Garda Síochána is both a police body and a security agency.

Ireland is unusual in this regard, with similar countries, like Denmark, having separate police and security agencies.

And within the structure and tradition of the gardaí, security and intelligence is a core function, not least because of the long-running threat to the security of the State from the various republican terrorist groups and loyalist paramilitaries.

Most men, and they have all (so far) been men, who got the top job in the gardaí served time, often lengthy periods, within the security and intelligence units of the force.

These units, while traditionally secretive, are very much enmeshed in the wider policing structures.

The deputy commissioner for operations is responsible for both operational policing and national security. The deputy commissioner has under her remit the assistant commissioner for the various national crime units and the assistant commissioner responsible for crime and security.

Crime and security has various sections. It co-ordinates policing of major events and emergency plans.

Within crime and security &is the security and intelligence section, which identities and analyses threats from terrorists (domestic and foreign) and organised crime. It houses the National Criminal Intelligence Unit on organised crime and a sister unit for terrorism.

Headed by the detective chief superintendent, it is the central point of contact for all external agencies, including the likes of MI5.

&Security and intelligence provides leads for the operational security police, the Special Detective Unit, also headed by a deputy chief superintendent. This unit also runs the witness security programme, which is for both organised crime and terrorist witnesses.

The force’s elite and heavily armed intervention squad, the Emergency Response Unit, is part of the Special Detective Unit, which it assists along with national and local policing units.

Another unit within security and intelligence& is the secretive National Surveillance Unit, which conducts surveillance operations against criminal gangs and terrorists.

The liaison and protection unit is part of crime and s&ecurity, and organises protection plans for visiting VIPs as well as arrangements with agencies such as Europol and Interpol.

The Special Detective Unit provides protection for VIPs, diplomats, and the likes of the President and the Taoiseach. The unit also provides armed protection for cash escorts.

&The liaison and protection unit also has an administrative role for the witness protection programme.

The Special Detective Unit is involved in training gardaí in crisis incidents and is where specialist Garda negotiators are based.

&Crime and security operates the Covert Human Intelligence Source; in other words, informants.

The National Source Management Unit is responsible for supervision of informants by their handlers and controllers and the analysis of that information.

HIDING BEHIND SECURITY

All of this highlights the complexities involved in demarcating where “security” ends and “policing” begins. The fear is that, as articulated recently by former commissioner of the Garda Ombudsman, Conor Brady, that An Garda Síochána may “hide behind the screen of security” in disputed issues which the authority wants to examine. Mr Brady said the force had waved the national security flag during sensitive investigations by GSOC.

What adds to the complexity is that there is no clear definition of what constitutes national security.

In September, the advert for the new commissioner said the person would report to the minister on the “security of the State”. This, it said, included terrorism, espionage, and sabotage as well as activities intended to subvert or undermine parliamentary democracy or the institutions of the State.

MI5 (the British internal security police) defines its function as broadly the “protection against threats such as terrorism, espionage, and sabotage, the activities of agents of foreign powers, and from actions intended to overthrow or undermine parliamentary democracy by political, industrial, or violent means”.

It added that successive governments have retained flexibility in its boundaries to ensure it can adapt to changing circumstances.

For example, it’s possible that much, or all, of the Covert Human Intelligence Source system could be argued to be out-of-bounds by gardaí, as it might reveal identities of informants and put their lives at risk and give criminals and dissidents too much sensitive information. It could be argued, too, that the intelligence used to tackle organised crime is out of bounds, particularly if gardaí say there are links between gangs and dissidents.

The work of units like the Emergency Response Unit and the National Surveillance Unit could also be excluded.

The national security angle could conceivably be argued in relation to some of the work of the Criminal Assets Bureau, the Organised Crime Unit, the Garda National Drugs Unit, the Garda Bureau of Fraud Investigation (cybercrime and money laundering), and the Garda National Immigration Bureau (immigrants who are suspected foreign terrorists or sympathisers).

The national security area could be expanded even more under the proposal from the Oireachtas committee, which refers broadly to “intelligence”. This could be interpreted as criminal intelligence generally, not just that relating to national security.

Unless there is a clear definition of what intelligence and national security constitutes, the new Garda authority could be truncated before it gets off the ground or spend much of its initial years and beyond fighting for its right to investigate any intelligence-related issues.

OVERSIGHT OF NATIONAL SECURITY

One high-level State body has argued that national security and intelligence should just come under the Policing Authority’s remit.

The Irish Human Rights and Equality Commission said the authority “should be authorised to oversee issues relating to national security policing”.

This includes policies and procedures which should apply when such policing impacts on human rights.

It also said GSOC should have such powers to investigate individual complaints against gardaí involved in national security.

The views of the now retired deputy director of investigations at GSOC provide an interesting insight. In a submission to the Oireachtas Justice Committee, Ray Leonard said the Garda Síochána Act 2005 “fails to differentiate between policing and state security roles”.

He said successive ministers had failed to make regulations — as provided for in the Act — which would clarify the matter. This would make clear what document or record is off-bounds and what Garda stations or building cannot be searched.

“The ability of GSOC to search stations is significantly circumscribed by the conflation of policing and state security roles,” he said.

“It is dependent on regulations being prepared by the minister. This has never been done and so the confusion as to what (or where) is, or is not, state security remains with the consequential effect of inhibiting full oversight of policing.”

Mr Leonard said a key problem was the sharing of “sensitive information”, which he said was “made difficult by confusing sensitive information with state security and a failure to understand the difference”.

He said unless the law is clarified, gardaí “will always feel there is information it should not disclose”.

The Irish Council for Civil Liberties said while national security doesn’t necessarily have to come under the authority’s remit, there needed to be absolute clarity about the definition.

“It cannot be left solely to the discretion of the Garda commissioner to determine whether or not a matter is one of ‘national security’, thereby potentially removing it from the scrutiny of the Policing Authority,” said director Mark Kelly.

“Equally, it is important to note that policing of more serious suspected offences should be intelligence-led, in the sense of gathering criminal intelligence, as opposed to intelligence regarding matters of (genuine) national security (such as the activities of dissident groups). The issue of whether or not criminal intelligence-led policing of ‘ordinary’ crimes is being used appropriately, (for example, whether adequate safeguards surround the use of Covert Human Intelligence Source) is properly one for the Policing Authority.”

He said national security and intelligence require some form of oversight: “As recent events such as the alleged bugging of the GSOC offices have demonstrated, oversight of intelligence activities by An Garda Síochána and the Defence Forces is weak, with undue reliance being placed upon cursory reviews of paperwork by ‘designated judges’.

“Far more robust scrutiny of the legality, proportionality, and accountability of intelligence activities is required, either by the Policing Authority, or perhaps through enhanced judicial oversight coupled with the creation of an Oireachtas Committee, similar to the Intelligence and Security Committee [UK]”.

LESSON FROM THE NORTH

These issues are still live across the border where the Northern Ireland Policing Board has been operating for 13 years. According to its recent annual report, the board held the chief constable to account for all aspects of police work “including covert and national security policing”.

But detailed research by the committee on the administration for justice highlighted documents from the Northern Ireland Office to the Northern Assembly which stated that on “national security matters”, the chief constable reported to the office’s secretary of state.

Where the policing board was investigating misconduct by a police officer and the case related to national security, the UK government would decide what information should be released.

The document contains a list of restrictions on what the chief constable can tell the board. But the situation is not entirely clear. It said that while the board had “no role in national security matters or related executive policing decisions”, it did need “to understand how national security issues are handled” in order to fulfil its role.

The board has questioned senior PSNI officers on national security, most recently in 2013, when an assistant chief constable briefed the board on PSNI’s work with MI5. Members raised various concerns with him in relation to national security, including how operations are decided upon and responsibility for Covert Human Intelligence Source.

What complicates the matter in the North was the transfer in 2007 of the lead responsibility for national security to MI5, who provides strategic direction to the PSNI.

The board refers to the committee’s research and said it had set up a special group to examine how it can increase its role in terms of national security.

“The effectiveness of the role of the board will necessarily have to be considered in the context of the board’s statutory remit, which is limited to holding the police, rather than the security service, to account. It is hoped the work of the Project Group, a framework can be produced which will enable the board to effectively fulfil its oversight role.”

The Patten Commission, published in 1999, was the breakthrough report that ushered in a new policing system in the North.

It recommended that covert policing — from interception, to surveillance, informants, and undercover operations — become accountable and operate within the law. It said national security should be clearly defined in legislation, that all powers of security police and intelligence services be outlined and that oversight institutions be created to oversee them.

Patten stated: “...this does not mean, for example, that all details of police operational techniques should be released — they clearly should not — but the principles, and legal and ethical guidelines governing all aspects of police work, including covert aspects as surveillance and the handling of informants...The presumption should be that everything should be available for public scrutiny unless it is in the public interest — not the police interest — to hold it back... [emphasis in original].


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