Nylander Intelligence Oversight

[Nentsia]

The existence of intelligence services, or secret services, within democracies always brings an element of tension. Democratic government is supposed to be accountable to its people, transparent, and not supposed to keep secrets from voters. At the same time, no democratic government can adequately protect itself from those who abuse the open nature of a democratic society for anti-democratic purposes without a secret service.

A democratic intelligence service is characterized by its lawfulness and democratic oversight. The intelligence services are not free to operate the way they see fit, such as Nerysia's Ministry of Security, they have to follow proceedures as described in the law - made by democratically elected politicians. Secondly, the intelligence services have to answer for their conduct and their use of taxpayers' money to the political leadership of the country.

Political and public oversight and intelligence work are difficult to combine. Intelligence operations are at their most effective when everything is kept secret. The moment our adversaries find out about the methods or details of operations, or the sources used, they will be in a position to adjust their own behaviour to make it more difficult for the intelligence services to do their job. Secrecy is an operational necessity for the security of the country. At the same time, it is important that the democratically elected politicians of Nyland have a way of checking and ensuring the intelligence services are operating within the law and doing what theyre supposed to do.

Another aspect to keep in mind is that proper oversight needs to protect the intelligence services themselves from politicians and from being abused for political ends, or from having their work become politicized. A clear example of how too much political influence on the work of intelligence services can actually hinder their effectiveness is the politicization of the CIA and its reports on Iraq, that went from being nuanced reports to becoming an echo chamber for Washington politicians that exerted pressure on the CIA to confirm their suspicions of existing weapons of mass destruction.

Before we continue...

Before we continue to discuss the democratic oversight on the FSD, I've made a simplified chart to explain how the FSD operates and what it mainly does. A description will be given below.



The National Security Council
The FSD answers directly to the executive branch. The Minister (or secretary?) of Homeland Security is politically responsible for the Federal Security Department. Together with the National Security Council, he coordinates the intelligence needs of the Nylander executive, including those of Homeland Security, the Defence Ministry, the Foreign Ministry, other intelligence services, and the President. Based on those National Security meetings, the Homeland Security minister formulates the tasks and objectives of the FSD.

Policy and Planning
The Director of the FSD plays a key role as an advisor in the Security Council and in translating the demands of policy-makers into policy. When an objective has been determined, the Director and the FSD Cabinet hold preparatory meetings to determine how to meet the objective. The relevant section heads participate in this meetings, along with legal advisers to translate policy objectives into intelligence operation plans. When planning operations, the FSD constantly has to take into account the legality, proportionality, effectiveness and available capacity of the methods that are employed.

Collection
When an operational plan has been formulated, it needs to be approved. Sometimes, because very heavy intelligence methods are employed (such as hacking computers and phones, human infiltration, or placing recording equipment in cars or homes) the Minister (or possibly the President) needs to be informed and give explicit approval. This is because these measures mean such a heavy breach of someone's privacy, it is necessary to give ultimate responsibility to a politician, who is answerable to the public.
The FSD employs various means and methods of collecting ''intelligence''. We call it ''intelligence'' and not simply ''information'', because the difference is that intelligence has restricted access and is required for decision-making. The choice of means through which the FSD collects intelligence is largely determined by how difficult it is to access particular intelligence and the importance or necessity of obtaining it, which is in turn determined by the threat posed by the target. As soon as a target is no longer of interest to the FSD, all intelligence collection operations have to be terminated immediately.

Processing
Intelligence that has been collected is still mostly raw data. It requires processing in order to be used. The FSD employs a host of specialists with various skills to help process the data that is being collected. This can range from data analysis, translation and proper storage of intercepted communications, decryption, and proper filing of raw data. The data that has been collected may be stored for a limited amount of time, after which it has to be destroyed.

Analysis
The crucial stage is the analysis stage. The FSD's experts and analysts develop hypotheses or working assumptions and then go through the processed intelligence that has been collected, in search for relevant details, patterns, and evidence to either confirm or falsify their hypothesis. If new unknowns are discovered, this results in another phase of planning, intelligence collection and processing, until the analysts have the answers they need. More often than not, we do not have the time to repeat the cycle often enough until we have all the answers. The analysts work under time pressure to deliver their estimates, analysis and warnings in time to the policy-makers or relevant authorities.

Dissemination & Warning
The FSD's operational intelligence teams will jointly put together a report or briefing to inform policy-makers and other clients of their conclusions. The FSD's liaison officers, analysts and briefers go out to whoever needs to be made aware of the intelligence of the FSD or needs to be warned so they can be mobilized to take proper actions to reduce the threat. The FSD could, for example, send a report to the Department of Justice concerning a terrorist plot in the making that needs to be stopped. The Department of Justice can then alarm the police, arrest the suspects, and open a criminal prosecution investigation. The FSD never provides operational details about its ongoing operations to outsiders.

After this cycle, policy-makers share their feedback in meetings with the FSD Cabinet and set new intelligence objectives.

Many Roads lead to Oversight

There are differing ways in which democracies can maintain oversight on their intelligence services. Some methods are more strict, others are less so, and most countries therefore use multiple forms of oversight.

Inspector-General: Some countries, like France, have appointed a special Inspector-General for the intelligence service. His role is to be a neutral figure who stands in between the political leadership (such as a Minister) and the directors of the service. His primary role is to shield the service from political influence and abuse. He represents the staff, and is allowed to advise politicians and policy-makers.

Parliamentary/Legislative oversight: Virtually all democratic countries have a form of parliamentary or legislative oversight on the intelligence services. At the same time, the tension between secrecy and transparency is the greatest here. Lawmakers do not have security clearances, may simply quit their jobs, lack knowledge and understanding of intelligence work, or may accidentally leak classified information. In history there are many cases of legislators working for foreign intelligence services. In order to counter that risk, most countries have formed special ''intelligence committees'' or commision's, composed of a select group of expert legislators who have sworn secrecy and convene in secret behind closed doors. Within these select, secretive parliamentary gatherings, intelligence chiefs can update the legislators on important developments and answer some of their questions. The Catch 22 is that these legislators become part of the secret, theyre not allowed to share anything they hear with the public.

Independent Oversight Bodies: In order to broaden the oversight beyond a select few legislators with limited knowledge, some countries have established additional independent oversight bodies. These include countries such as the Netherlands, Germany, France, Sweden and Denmark. These usually consist of a council of appointed experts who frequently meet with the intelligence chiefs behind closed doors. The oversight body is composed of permanent experts, that are allowed to inspect any and every closed case. It looks as to whether the law was properly applied, proceedures were properly followed etc etc. It has the ability to speak to intelligence officers as well. It can also investigate complaints from civilians. Its findings and recommendations are published in reports. They are not allowed to publish classified information, which they can only use in classified reports for limited eyes. General criticisms or recommendations can be published however, and could be used for public discussion.

Legal Oversight: This is a tradition more often seen in Anglo-Saxon countries such as the UK, but also in the Netherlands, Belgium, Sweden, Germany and Italy. Legal oversight remains difficult and weak in most countries however for a specific reason. The task of intelligence services is to conduct investigations into potential or suspected threats against national security. What exactly constitutes a threat and what ''national security'' exactly means, are ultimately political questions - not legal. Especially because the responsible political executive's head will be on the block if things do go wrong, it is generally his sole responsibility for determining what is or isn't a threat against national security. On top of that, in most countries intelligence services are reluctant to share the operational details of highly vulnerable and extremely costly operations with court justices who haven't had a security clearance. Often legal courts may apply oversight after complaints have been made about the conduct of an intelligence service. In some countries, legal courts have to provide a legal warrant for the use of intelligence collection methods, but this usually still happens without sharing any classified information with the court. In the Netherlands, the legal court can be asked to give a verdict on the conduct of the intelligence service, as happened when a newspaper filed a lawsuit against the Dutch security service for eavesdropping journalists.

Ombudsman: In Europe, many countries have a so-called ''Ombudsman'', which is an independent instutition that exists to deal with complaints by citizens about their treatment by the government. Such an institution may highlight abuses or problems, but has no access to any classified information.

The question remains, how do we want to arrange oversight in Nyland?

[Nentsia]

I personally vote in favor no oversight at all. Anyone opposed?

[BrumBrum]

A mix of independent oversight with legal oversight and an ombudsmen would be good. Also there should be a warrant system for requesting information from private companies.

[Nentsia]

A warrant system like in the US and the UK where the Court receives nothing and merely functions as a rubber stamp factory?

I'm sure it sounds good, but in practice serves as a slight bureaucratic delay that costs money and time.

[Ayzek]

Nyland most likely has legal and legislative oversight, the same way the US has. The FSD in particular likely reports to the Department of Interior (since you don't want it under Justice for SOME reason), plus the Office of National Intelligence. The ONI reports to the President, while the DoI probably only really has administrative oversight on paper, given it probably doesn't have any use for all that intelligence?

So the FSD likely takes orders from the ONI, who takes them from the President. It likely submits in depth reports to the ONI, limited reports to the DoI, and specialized reports to the Assembly's intelligence council.

We don't need no independent bodies. >

[Seperallis]

^

If you don't want oversight, you can always works towards that.

[Nentsia]

Yeah I want to clarify a number of issues.

My reason for not directly opting for copying US-style oversight is because the entire US system is designed to handle an organization like the FBI. But aside from the letter combination, the FSD is very different from the FBI and actually has no similar in the US. The FBI is first and foremost a federal law enforcement body, hence it falls under the DOJ. The FSD has nothing to do with law-enforcement and is in fact supposed to be kept strictly separate from law-enforcement.

The FSD follows the European model and is Nyland's equivalent of what in Canada is the Canadian Security Intelligence Service, the British Security Service MI5, Dutch AIVD, or the Swedish SAPO (which ironically enough does fall under the Swedish DOJ and is also a law enforcement agency, but trust me, you do not want to copy the SAPO and its near Gestapo-like powers).

Let me highlight some crucial differences between the FBI and the FSD:

• The FBI is a law-enforcement agency and may conduct criminal investigations. The FSD is not and may not conduct criminal investigation.
  
• The FBI may make arrests, interrogate suspects or search homes. The FSD may not make arrests, does not interrogate suspects, but is allowed to covertly (sneakily) enter someone's home to acquire information or to plant recording equipment.
  
• Everything, or almost everything the FBI does is with the aim of bringing the case to a court and present it with the collected evidence of a crime committed to get suspects convicted. The FSD will seldomly be in a courtroom. It does not investigate crimes, it does not collect evidence like fingerprints or a murder weapon.
  
• The FBI works on a case-by-case basis, going from criminal case to criminal case. Or unmasking one terrorist after another, or spy after spy. Then catch them and bring them to justice. The FSD runs on an operational basis. It is constantly running covert operations to monitor ongoing developments, against targets that remain more or less the same over many years: foreign spies, terrorists, politically motivated or state-sponsored cyber war, extremists and saboteurs.
  
• The FBI is a relatively open organization: as a law enforcement body it is sooner or later forced to provide the courts and the public insight into why or how it got to arresting some bad guys. The FBI frequently dominates the headlines and news. The FSD is a secret service. Its agents do not wear a badge and do not even tell their families where they work. Their research into the biggest threats facing Nyland is produced only for those who need to know - mostly policymakers - to make the right decisions to protect the country. The FSD's reports and the details of its operations are never shared with the public or people who have no need to know.
  

The reason why Im pushing back a little against the ''legal oversight'' option is that I'm hoping to clarify that its not gonna work the same way police officers need to get a court warrant to search someone's home. In a criminal investigation, like the FBI does, the police needs to show to the court that it followed all lawful proceedures before it can enter someone's home in search of evidence that will land their ass in jail. The FSD monitors people, groups and networks for the very reason they lack relevant information on them but they have a clue - call it a rumor even - from credible sources that there may be severe danger coming from these people. Because these people, if they are up to very dark plans, would do everything to hide their intentions and plans, the FSD needs to covertly get closer to them and take a look into their lives and activities. If the operation is betrayed, they may quickly abort or adapt their protective measures. This is why secrecy is the FSD's only and most powerful weapon. This is also why the FSD would rather not need nor seek any warrants from a court.

First of all, what's the court going to consider? The FSD already has the lawful right to conduct investigations into people and groups it suspects of being a threat to national security. The FSD already has the lawful right to invade people's privacy for that. The investigations do not concern criminal prosecution, but national security. What constitutes a national security threat is a political decision, hence the FSD answers directly to the executive. If a court were to stand in between that, the Nylander (democratically elected) government is essentially no longer in charge of national security policy but the judiciary is. And suppose the FSD were to supply a court with a specific request asking for permission to use a phone-tap or something, it cannot provide evidence. The very reason the FSD wants to tap someone's phone is because they need to find out whether this hint, clue, or tip they got about him is credible and he poses a threat. This element of threat analysis is a form of expertise that FSD analysts have, but for which a court judge is unfit. A judge has been trained in weighing criminal evidence and legal arguments. Not to make threat and risk analysis based on bits and pieces of information (that seem random to the non-trained viewer) but that may indicate a highly complex espionage operation from a foreign country. The information can be as random as a sequence of telephone numbers and nothing more. But a counter-intelligence analyst may have recognized a relationship between those numbers and wants a phone-tap on one of them.

A court is unprepared to decide in such a case. There are countries that use court warrants, but the court only looks if the security service and government correctly followed their own proceedures. It does not judge the case itself, only the bureaucratic process. Its a formality, and thats why in the US for example, the courts have so far never objected to any NSA request for warrants to spy on virtually the entire US population.

If that's the kind of warranting we want, I'm fine with it, but I'm already warning (to avoid RP misunderstandings) that a court warrant isn't magically gonna hold the FSD back from investigating your RP character or from hacking into his phone.

So to put it very shortly, the FBI and Courts are designed to investigate, prosecute and judge people who have committed a crime and the evidence is pointing to them. The FSD is not interested in any of that. It directs all its resources to predicting where the next crime is going to take place and how it will be done and how it can be prevented. The FSD is lucky to ever find anything as solid that it could pass for ''evidence''. It seldomly finds such concrete information - evidence that someone is plotting a crime like espionage or terror attacks. It acts on premature conclusions and suspicions, based on clues and little shards of information - information that can be interpreted and explained in a 1000 different ways. That interpreting is the job of an intelligence analyst of the FSD, not of a court judge. If the conclusion leads to ''here we have a threat'', the choices are: monitor it further to gain more knowledge of the threat; warn policy-makers to take precautions; or lastly, the threat is so acute that the DOJ and police or military are warned to come into action.

[Nentsia]

Also, on a side-note: is everyone satisfied with the name Federal Security Department? I mean, I created it and its okay'ish but Im open to better suggestions.

[Ayzek]

Federal Security Department is a fine name.

That aside, I understand where you're coming from. But such an organization is complicated by the fact that Nyland is supposed to be heavily based on the US. In practice this means that Nylanders are crazy about their civil rights, and an organization that can simply ignore them or operate "outside the law" isn't likely to fly. In theory and assuming that people could be bothered to actually man their guns or at least their voting pens. Of course, this doesn't mean the FSD is impossible, especially if we decide to tweak Nyland to make it fit--which we can do. But so long as Nyland remains US-esque, I'm doubtful the FSD would have the automatic "right" to invade privacy, nation security be damned.

Unless we really want to have a wider discussion on Nyland, warrants, even as little more than formality, would probably be best. Since the FSD isn't a law enforcement agency, we could argue it has some leeway when it comes to intelligence-gather, especially if it keeps said intelligence "anonymous"--like, it won't put a face on it unless it has something damning and can consequently confidentially request a warrant. And if it needs to investigate a public figure or group--something made it think so, right?

But unless Nyland evolves significantly, I'm skeptical a secret service that can dig into whatever and whoever it wants without a warrant and pass anything "worrying" it finds onto the cops without a warrant really fits. I don't want to get into that discussion too much, but such an organization isn't really within Nyland's civil rights structure. Probably.

We could possibly fabricate Nyland to enable it, but, as Oertha said, you could work towards no oversight. Maybe some great disaster that kills thousands goes down and Nyland's politicians respond by granting the FSD more freedom.

[Seperallis]

Kohout authorized it.

Boom, now it doesn't need to be anything similar to the US. \o/

For reference, Nyland's executive organization at time of it being created is a direct ripoff of the US system, with changes that I couldn't be bothered to write out at that time; this was done just to have something easily researchable that we could pull from, without having to create an entire government system on short notice. If you want to iron out those changes (such as the fact we don't have FBI and some others, which were rolled into Ikarius's S.H.I.E.L.D prior to President Kohout), be my guest, but past cabinets have been designated with those department names.