Intelligence, Police and Democratic Control: European and Transatlantic Collaboration

Relations between intelligence services, judicial police services and judges (investigative judges, court judges, public prosecutors…) in Europe

Heterogeneous national systems and extremely varied forms of democratic control

National systems articulating the relations between military or police-related intelligence services, judicial police services and the judiciary are very heterogeneous and depend on each country’s national trajectory, history of democracy, as well as on the relations between the executive, the legislative and the judicial powers. They also depend on the way in which inquiries are led, on the rules of procedure, as well as on the autonomy granted (or not) by the politicians to police services and military intelligence services. It is necessary to add to these elements the existence (or not) of a domestic intelligence community in which the relevant services collaborate, as well as the extent to which the latter are used to cooperate with their counterparts at the international level.

The modalities of the democratic control of the activities of intelligence services also vary. Nearly all countries, with the notable exception of France, have chosen an external type of control procedure: either by judges, or by specially accredited members of Parliament (Thuillier 2000). This modality is often considered insufficient because of the ability on the part of these services to surround their activities by a veil of secrecy. The difficulty to draw the line between the interests of the State, those of a specific government or of a specific political group (when these are not purely private interests) only adds to the problem (Peter Gill 1984- Peter Gill 2005).

It seems that the contemporary European discussion on these issues is more centred on the particular problems related to the British model (and indirectly to the US model) than on an assessment of the diversity of the existing models.

There have for long been numerous proposals suggesting to combine the best of the inquisitorial procedure - involving the judiciary from the early steps of an inquiry on - with for example an investigating judge and a judge empowered to verify the allegations of the intelligence services on a suspect without endangering the secrecy of the latter’s techniques on the one hand; and the best of the accusatory procedure that calls for a «judicialisation» of all information and that goes hand in hand with a deeper external control of the services’ activities on the other hand. In this regard, the countries of Northern Europe seem to have managed more than others to strike a balance between the necessity to keep techniques secret and the rights of the suspect. Belgium similarly took time to rethink the whole organisation of the system following the legitimacy crisis of its services. The current Belgian system includes an external control, the participation of the judiciary at all levels as well as a strong acceptance by police services of this new articulation. Indeed, the latter provides them more judicial security and removes them from the front line of political crises. Unfortunately, these proposals have been deeply affected by the discourses on the new requirements of the fight against terrorism as well as by the influence of the US administration and NATO with regards to intelligence doctrine. These reforms have thus been deviated from their original purpose.

Intra European collaboration

Intra-European collaboration has a long history. The first large meetings between intelligence services date back to the « anarchist threat » of the early 20th century (Fijnaut 1980). After World war two the meetings generally took place in a transatlantic context including Western Europe, North America, Australia, New-Zealand, and often Israel. The Bern club is among the most famous venues (Bigo 1996). This collaboration occurred through «affinities» between services and thus led to the emergence of differentiated networks: collaboration between police counter-espionage services on the one hand, and collaboration of military services within NATO on the other. One should also mention the cooperation between the English speaking countries (UE/FBI level) outside of the two previous circles. Such collaboration occurred either on an open or on a secret (Gladio network) basis. It was rapidly distinguished and differentiated from police cooperation, even in the field of anti-terrorism (Trevi….), and used other information channels. It privileged high level informal meetings as well as the purely operational dimension of intelligence. It refused the more institutionalised and legalistic approach chosen by the judicial police services. Its Europeanization in the 1980s and 1990s and its dissimilarities with the cooperation in the USA was nevertheless less pronounced than that of the police cooperation of the same period (see Interpol, Trevi and the origin of Europol, as well as Schengen : Benyon 1992, Anderson 1994 – and particularly Ken Robertson-, Bigo 1996)

This collaboration was not officialised nor embedded in institutional procedures. The European police collaboration generated the third pillar, Interpol as well as first pillar instruments for customs and OLAF. However no EuroRens was ever created, nor was the participation of intelligence services to Europol very intense despite of what the latter’s first director wanted. In very much the same way, the information networks were constituted separately. Regarding the second pillar, military intelligence services collaborated via NATO more than through the EU and only very recently have they started working together via SitCen. Nevertheless, it remains difficult to get the foreign and military intelligence services in the Sitcen on the one hand and the police-services in Europol on the other, to collaborate and work together. Indeed, their scope of action and overall approach of intelligence widely differ. Hence, when insisting on their collaboration, one should bare in mind that it could create more problems than it would resolve. Collaboration can prove beneficial on general aspects, not on the continuous exchange of data. The European collaboration in matters of intelligence opted for an approach accepting national specificities. It accepted a general functional equivalence of different services of different countries rather than seeking to harmonise and to specify their competences and missions. It is even impossible to discern a lowest common denominator that could lay the foundation for a refection in terms of a «principle of mutual recognition». Indeed, such an approach would suppose to specify what kind of missions should be described by the notion of intelligence.

Thus, there is no commonly accepted European definition of intelligence, nor even a list of intelligence services (police and-or military, strategic and-or operational) comparable to the list of judicial police services given by the States. Some even refuse to recognise the existence of some services (in particular operational «action services» and the para-public structures developed by the latter). As this collaboration has no clearly defined object, it is subject to a semantic vagueness generating a voluntary ignorance of specific activities of manipulation. It uses the same notion of «intelligence gathering» for a wide variety of practices thought to contribute to the collection of information. This problem becomes particularly salient when concerning recent texts aiming to enable intelligence services to be part of data base networks constituted in terms of judicial police.

The notion of intelligence-led policing that is often mentioned does not make much sense outside of the British (and American) context. According to Mc Guire, this notion has been developed in relation to the development of data bases and the newly achieved capacity to manage large data-flows by using and applying techniques of profiling to individuals and groups with specific characteristics (Mc Guire 2000). The United States has been a pioneer in this field since the 1970s and has made it a priority in the fight against narcotics by developing common FBI, INR and DEA platforms. Within the EU, the United Kingdom followed the trend and used it to justify the existence of a National Crime Intelligence Strategy under the aegis of which local police services were to operate (Sheptycki 2003). The notion seems to have failed to break through elsewhere. Policing on the basis of intelligence appears either as trivial or as a grave questioning of the role of the investigating judge, depending on the scope given to the concept of intelligence.

This raises the question of the definition of intelligence. Does the gathering, the compilation and analysis of open information obtained through the regular press, the reading of diplomatic telegrams on activities abroad, the access to computer or manual files on convicted individuals, on released suspects, on victims, qualify as «intelligence» ? Such «intelligence» would have no specific features whatsoever as compared to information. According to Ken Robertson, intelligence supposes that the aim is the secret gathering of information concerning other people’s secrets. Thus it is wider in scope than the intelligence dictated by national security imperatives. It nevertheless presupposes an adversary or an enemy constituted by a person to be searched for and arrested; or a collective group to be neutralised and/or eliminated. The private, judicial or armed conflicts-related frame of intelligence changes the latter’s scope and thus its methods. It is hence barely possible to talk about intelligence in these various contexts as a unitary phenomenon, even if the collection and treatment of information is involved in all of them. In the judicial context, intelligence can include information gathered by the police in uniform, community based self-surveillance, the resort to informers, infiltration, undercover operations, extra-judicial phone-tapping, video-surveillance of specific districts or public areas, interception of communications, «white notes» on the opinion and rumours on a person or a group etc. Even when it goes beyond judicial police activities, its aim remains to arrest individuals, not to eliminate them. Intelligence that is gathered through interconnected data bases, through software based on the identification of keywords such as the one used by the Echelon-system, combined with counter-espionage operational activities, actions abroad that aim for mass surveillance and for the elimination of individuals fall under a logic of (secret) war.

Beyond the underlying logics at play, the modalities through which intelligence is gathered are diverse. The reliability of intelligence might also be highly variable. It is therefore necessary to distinguish precise information on an individual or a place from information on larger groups of suspects leaving out details concerning the individuals, the place or the date. The concept of information, which lies at the heart of the notion of information exchange, is deeply affected by the sharing of information coming from diverse sources and the reliability and accuracy of which differ. Indeed, the different pieces of information do not always confirm one another and might rather add «background noise» to real information. The situation is similar for the crucial principle of availability promoted by the EU. This principle is only meaningful if there is a common understanding of what a reliable piece of information is. Information supposes an analytical system conveying a meaning to raw facts and transforming them into intelligence. If the system is to be less and less «human» because of the large amount of collected pieces of information and because of the technical logic of their treatment, one might lose the sense of what is included in the system (see below). Thus, in order to be able to have a precise and informed discussion on the objectives of the various types of intelligence as well as on the reliability of information, it is crucial to specify the different forms of intelligence. The Parliament should encourage the Commission and the Council to make an as complete as possible assessment of the various forms of intelligence. Similarly, it should ask the Member States to give an exhaustive list of their services with a description of the related missions. The services that would not appear on the list should be considered as mercenaries if getting involved in «intelligence». Such a detailed list does not necessarily need to be published but its mere existence would guaranty a certain level of democratic control. It is of utmost importance today to promote a European reflection – independent from American pressures – on the different forms of intelligence. This could take the form of a document on the overall intelligence strategy.

Intelligence since September 11th 2001: a «mass inteligence»

All these questions have, since September 11th, been deliberately avoided by the proponents of a reinforced inter-services and international collaboration. This collaboration has transformed the objectives assigned to and associated with intelligence. It has also changed the relation between intelligence and the rule of law on the national and international levels (Bigo 2006). Mass-intelligence appeared in the 1970s with the development of data-bases and the creation of integrated and interconnected systems allowing for the quasi-simultaneous identification, verification and tracing of individuals. But there wasn’t initially a political will to make a maximum use of these technologies. On the contrary, these technologies now tend to be perceived as THE solution in the face of violent clandestine organisations engaging in mass murder. It has become the supreme measure to be implemented in times of exception by allowing for the circumvention of the «normal» rules. This is said to be necessary in order to anticipate and track the movements of terrorist suspects. Through its association with the technical capacities of biometrics, of data bases, of software and expert systems, intelligence has been given the prime role in the so-called «war against terrorism». It prevails over the judicial police and partly over the army (in the countries that do not believe in the military solution of a conventional war on the clandestine organisations’ bases). Politicians have – sometimes in very dangerous ways – tended to get closer to intelligence services by providing them with increased means. This has been done in an ill-considered manner in the hope that coercive solutions might avoid the difficult political questions associated with the «war against terrorism». It is thought that these solutions might put an end to the questioning of the state monopoly of violence on a given territory by an elusive adversary that one could call the stealthy enemy (just as the stealth airplanes) (Bigo in Vanselme 2005).

Such a mass intelligence on the transnational level supposes a global interstate collaboration similar to the one that gave rise to the ICPC at the beginning of last century. But the international police collaboration against criminality through the ICPC suffered from numerous pitfalls at its beginnings and was only able to emerge under the aegis of an ideal of a global organisation. Similarly, the USA has tried to take the lead in the contemporary collaboration. This has been done by trying place it under the register of the exception to international law. However, in spite of all the efforts, the UN has not been able to agree on a definition of terrorism that would distinguish it from violent national liberation movements, and thus depoliticise it as a crime. The EU managed to agree more rapidly on a definition, but has not accepted its correlate, a generalisation of suspicion. Indeed, the latter is inevitable if one considers terrorism as a form of war. This issue has given rise to a set of problems highlighted by the Member States’ divergent stance towards the war in Iraq. The countries that take part in the intervention in Iraq consider the attacks carried out by clandestine organisations on their own territory as having no link whatsoever with their foreign policy, whereas those countries who did not participate in the war believe this link to exist. Conversely, some countries consider themselves in a time of peace and view intelligence accordingly, whereas others consider themselves at war and therefore allow for much more intrusive and invasive practices.

The cooperation between Western services has nevertheless been construed as an absolute necessity since September 11th 2001, and even more so since the Madrid March 11th 2003 and London July 7th 2005 bombings. Arguments of national sovereignty and raison d’Etat have usually limited the collaboration between intelligence services to a general exchange of information and to intelligence on specific individuals already searched for in the frame of judicial inquiries. However, these arguments have now been swept away in the name of the imperious necessity to prevent new terrorist attacks. The latter, it is said, might next time involve weapons of mass destruction (WMDs) increasing their potential for mass murder. But the political discourses on the necessity to collaborate almost systematically now reach beyond the mere fight against clandestine organisations aiming at perpetrating mass murders. They end up including in the fight against terrorism, the fight against any clandestine organisation resorting to violence in a transnational struggle. Apart from Al Qaeda, the European list includes 48 groups using violence without necessarily having perpetrated mass murders. These include the Chechen organisations (that are since Beslan no longer legitimate as resistance organisations) as well as the Sri Lanka Liberation Tigers of Tamil Eelam (LTTE) since the 29th of May 2006 and even some radical Palestinian groups (see the list of people and organisations in JO L 144/25, 31.1.06). The list is also extended to those who claim to be nationalists or revolutionary and the scope of which is often domestic or cross-border. The collaboration is also supposed to be extended to the fight against ETA or even FLNC. Indeed, everybody has to find an advantage in this collaboration that resembles more and more a stock-exchange of public enemies. National, European, or G8 political declarations not only refer to the fight against terrorism in general but also to the links between terrorism and organised crime. In other words, the fields of activity on which to collaborate are extended and reach far beyond the fight against a specific identifiable foe. This extension leads to a transnational surveillance of large groups of populations considered as potential enemies and to be dealt with more or less outside of the legal framework.

Towards a generalisation of the framework of «legitimate» suspicion?

In this war-like context, intelligence is seen as an extensive process that allows seeing through the unknown. It proceeds by creating surveillance-routines that correlate and interlink what would otherwise seem innocuous. Intelligence is primarily seen through its sole technical dimension. At the same time it is analysed as reaching far beyond its role as an instrument at the disposal of the police. It becomes a means to enlarge the target-populations of surveillance beyond the individuals already known by the services. It is seen as an instrument for the surveillance of «suspects» other than the ones that judicial information might have identified. It is hoped to allow spotting the enemy within that hides and lives among «us». The official discourses affirm the necessity to «judicialise» intelligence and conform it to legal requirements. However, there is a tendency on the legislative and political levels in several countries to increasingly force judges to accept that the State has the right to designate the suspects regardless of any proof or argument justifying their detention (SIAC for example). According to this stance, intelligence is linked to technologies of surveillance, to specific machines allowing for the extraction of information from the human body and for the examination of the individuals’ traces (biometry). It is linked to technologies offering the possibility via computers to collect, filter, treat, distribute and redistribute data (databases; collection, conservation and exchange of data). Intelligence appears as intelligence on masses, while simultaneously integrating technologies of «identification» and «localisation».

This approach is at the antipode of the conception of intelligence in terms of espionage. The latter conception implied to collect information intensively but on limited targets, using mostly human means and prioritising the qualitative aspects. The former is closer to a military kind of management of intelligence. It uses technological means and pre-established profiles via expert-system software. It aims at an instantaneous management of information as well as at the anticipation of the action of the adversary. But this military management can only function provided one knows the adversary and his routines. It can hardly apply to an elusive and stealthy enemy whose central characteristics are unknown. Indeed, this elusiveness raises the question of how to establish the relevant profiles.

This impasse is not yet resolved. Psychologists, behaviourialists, criminologists and sociologists have been unable to give stable criteria allowing for the identification of the actors that might to resort to violence. They have also been unable to anticipate the sequences of the relevant systems of action. Indeed, human reflexivity makes these tasks highly unlikely to succeed (Brodeur 2004, Bigo 2005). The profiling of an «indefinite enemy» rests on very weak assumptions. It is built upon stereotypes rather than on an effective knowledge of the past allowing for the «isolation» of the relevant systems of action. Therefore, traceability and anticipation are on the one hand bound to be inefficient, and on the second hand to generate arbitrariness and violations of fundamental rights. Profiling and scientific indicators are often invoked to justify practices of mass-surveillance. However, these technological tools are closer to the practices of astrologists and fortune tellers. The descriptions of the future remain arbitrary in spite of the technicality of data bases. In the absence of other criteria, the intelligence services make, either explicitly or not, connexions with Islamic proselytes and militancy. This leads to the surveillance of imams as well as of other individuals suspected of being able to convince others, especially young and deprived individuals of foreign origin with immigrant parents, to resort to violence. They are also focusing on converts. But this focalisation on the radical «believer» seems ill-suited for the understanding of violent actors. Indeed, the latter are often motivated by a political feeling of injustice embedded in a more or less religious discourse. Drawing on a literal interpretation of the discourse on the «war on terrorism», they idealise their own engagement as warriors fighting against other warriors (see the report on the attacks of 07/07 in London).

The European Parliament should have a discussion on the efficiency and legitimacy of this conception of intelligence. It cannot be considered as a self-evident practice upon which to build policies. Although the intelligence-practices before September 11th were somewhat undemocratic, the faux pas were limited and in Europe they rarely reached that of the Cointelpro programme. The relation between politicians and intelligence services was organised through a series of criterions enabling the services to benefit from a certain secrecy within pre-defined limits and while always being supervised by national politicians (except for transnational networks such as the Gladio network). But this relation is now being destabilised by the requested level or transnational integration, by the always higher technological bid on mass surveillance it is associated with, as well as by the «futurologic» preventive and pro-active anticipation.

The democratic control of intelligence services in the context of «transnational integration» cannot limit its own scope by accepting the principle of national fragmentation, by under-estimating the role of private interests linked to the development of technologies of surveillance or by being blind to the interests of the «most important» States to centralise and coordinate intelligence to their own advantage. In very much the same way, it cannot neglect the fundamental changes undergone by intelligence services in a context in which they are asked to foresee the unpredictable, allowed to extend their reach to new fields, given a specific voice within the public debate and granted more powers to act. The contemporary blurring of the distinction between the guilty and the suspect leads to an erosion of the principle of presumption of innocence. The judicial and police systems tend to adapt to the logics of intelligence instead of «judicialising» the latter. This general trend has been observed by the court judges in most of the countries concerned by it. Even the conservative judges have reacted on this aspect that concerns their own sphere of competence. Moreover, the questions raised in relation to fundamental rights and civil liberties are all linked to this tendency. What is at stake is thus the very foundations of democracy and its difficult relation to the State as well as to the issue of the efficiency of the government apparatus. Issues of habeas corpus, presumption of innocence, fair trial, and freedom of opinion are at the heart of the topic and reach far beyond the crucial question of the protection of personal data.

Intelligence is fundamental to limit the possibility that clandestine organisations might be able to pursue their criminal project. However, it cannot guarantee absolute security. One can only tend towards this «ideal» in political discourses. There will always remain margins of uncertainty. The necessary intelligence is the one that enables to unveil a guilty person, not the one that generalises suspicion. The collaboration between intelligence services must thus be encouraged between democracies but within well defined frames. The importance of this collaboration should in no way justify that one of the partners may act with impunity on the territory or the air space of another partner. Within the scope of this note, the risks linked to the cooperation in matters of intelligence with non democratic third countries will not be developed upon. Rather this note will try to centre the analysis on the relations within the European and transatlantic frames. These risks are already significant and documented.

The transatlantic collaboration and the problems it generates

The US administration’s and intelligence services’ practices regarding the abduction in Europe of suspects sent to countries known to resort to torture on prisoners are now well known. They are often euphemistically described as « renditions ». These abductions, and the related secret detentions and displacements to countries known for their use of torture, are no aberrations. They are the outcome of an approach focusing on mass intelligence and the correlative extraction, by any means, of information in extra judicial zones. The aim is to give a more complete picture of adversary groups that could not be defined precisely enough through a judicial approach alone. The justification given is that one cannot take the risk of leaving a guilty person free only in order not to imprison 100 innocent people. This is what the US administration claims to be its right to the freedom to act and to limited collateral damage in terms of human rights.

The reports of the European Council and Parliament clearly show the collaboration between the CIA and several European intelligence services with regards to the transfers and renditions (displacements) of individuals detained without trial. These practices are generally linked to «debriefings» said to be necessary in order to win the «war on terror». It appears that some of these persons have been submitted to torture and other inhuman and degrading treatments (Marty European Council 22/11/2005- Marty 22/01/2006, Claudio Fava report for the European Parliament 2006). The collusions between the CIA and different military intelligence services are currently being scrutinized and Marco Mancini, director of operations at the Italian SISMI, has been arrested on the 4th of June 2006 for the «rendition» of Hassan Mustafa Osama Nasr (Aka Abu Omar).

Similar observations have been made concerning the exchange agreements related to the PNR: the US administration has refused to follow the internal rules that were part of the conditions set for these agreements to be signed. The aim of the US administration is to avoid being bound by interstate relations. The objective is to exercise an as direct control as possible on European populations by establishing registers of all individuals travelling worldwide and transiting through the US territory, regardless of the approval (or not) given by the European governments. (Guild-Brouwer 2006). The Total Information Awareness project is far from having disappeared.

This seems to be confirmed by the secret agreement made between the United States and SWIFT (’Society for Worldwide Interbank Financial Telecommunication’), a Belgium based company. According to the terms of this agreement, the Americans would have access to the financial transactions of hundreds of thousands of EU citizens having bought the services of this company (EP Resolution of 07/06 and comment by Statewatch).

Numerous European officials feel they are treated as informers rather than partners. Indeed American officials do not seem to accept the idea that the collaboration that enables them to gain access to data on the European population has to go hand in hand with a certain control on the part of the Europeans on their internal system and on the way this data is being used (Bigo 2005, Mitsilegas 2005).

The US administration can no longer hide behind the principle of national sovereignty and of the right to secrecy, while at the same time requesting cooperation clauses from its partners that allow for the US to act as it wishes.

The problem is not limited to one specific sector. It does not only concern the CIA or the Homeland Security department. It is not only related to the obvious weaknesses of the provisions related to personal data protection. It cannot solely be blamed on the tendency on the part of American leaders to consider themselves as the natural leaders of a coalition and to refuse a more balanced relation with its partners. The problem relates to the way in which one conceives the relation between judicial police operations, the respect of the rule of law and intelligence gathering.

Mass intelligence almost inevitably gives way to operations that are carried out outside of any legal framework. This intrusive conception of intelligence, extending the principle of suspicion to an ever-growing group of individuals on the basis of information of dubious accuracy, weakens the rule of law at the domestic and international levels. This mass intelligence is said to be the solution to transnational political violence. Through the imperatives of the «war on terror» it justifies a doctrine legitimating practices of exception. The latter contravene to fundamental rights protected by the jus cogens. This is not acceptable. This doctrine leads the European countries to cooperate in the name of old solidarities, while disregarding their own values and conceptions. Some of the current trends in Europe however reveal a temptation to adopt this logic of mass surveillance and suspicion. This is all the more worrying as this logic inevitably leads to human rights violations, while never achieving the expected efficiency in terms of the quelling of political violence. This American doctrine is also that of NATO as shown by the practices of the NATO-forces in the Balkans. The handing over of several prisoners to the US in spite of the negative decision of a Bosnian court is in this regard revealing. The probability that a secret detention centre, comparable to the one at Guantanamo, is run at Camp Bondsteel in Kosovo might also be illustrative of this trend. Some European countries that supported the war in Iraq share some aspects of this doctrine.

The US administration’s repeated refusals to acknowledge the extent to which it has been involved in human rights violations only adds to the problem. The discourse of exception, that many US officials consider to be justified by the terrorist threat, is still used in order not to have to change their system. They thus seek to legitimate what has been done. Even when they are questioned by US courts, they try to draw advantage from the slowness of the judicial system in order to continue as long as possible...

Conclusions

In the clearest terms, on issues of intelligence and European and transatlantic collaboration, the European Parliament.

Must solemnly remind that the reference to the war on terror doesn’t give additional prerogatives or rights to intelligence services in Europe, that their leaders are accountable to the Courts for the actions they carry out or allow, especially when the latter are detrimental to the fundamental rights.

Must remind that the argument of the fight against the (collective) insecurity related to terrorism by the means of mass intelligence is not per se and/ or by definition pertinent. Rather than contributing to public reassurances creating a false confidence in the situation, it must lead to a collective protection that is both effective and measurable. The argument of security is only a means to an end and the latter can only be the protection of democracy. Security cannot be considered as a principle of equal importance as democracy and liberty. This is especially the case when its effective application leads to grave forms of insecurity for the individual (the right to private life, presumption of innocence) and is prejudicial to fundamental rights. There is no balance to be found between security and liberty in times of danger. Rather the latter times underline the necessity to protect democracy and fundamental freedoms against violence and arbitrariness. The fight against violent clandestine organisations, sometimes perpetrating mass murders, cannot be carried out regardless of the rule of law and through a quasi-mimetic rivalry that ends up creating more security-problems than it resolves. .

Must insist on the fact that the European Union is founded on the rule of law and the respect of international conventions, and that its Member States are to respect the right to life (article 2), the ban on torture and on inhuman or degrading sentences or treatments (article 4), the right to protection in case of displacement, expulsion or extradition (article 19), the right to an effective appeal and a fair tribunal (article 47) and should actively protect these rights if a third country infringes on them.

Must insist on the fact that, within the EU, the personal data of an individual belongs to this individual and not to the service that has collected it. No treaty contrary to this principle can be adopted; consequently, it is up to a potential partner to change its legislation shall an agreement be reached.

Must inform the Commission and the Council as well as EU Member States negotiating on a bilateral basis that, considering what has happened, the negotiations preparing the future agreements with the US administration, independently of the specific content of these negotiations, can only be carried out provided the forms of a priori confidence previously granted to the US by the EU be suspended. Frequent and effective verification procedures must be requested, as well as a suspension clause that would take immediate effect should an agreement be violated without any doubt.

Must insist on the fact that the debates on intelligence-issues between EU Member States as well as with Third countries must be made available by virtue of the principle of transparency when these discussions concern principles and not operational modes. In the same way, when intelligence and security technologies related to mass-surveillance are concerned, the right to formulate objections to the measures prepared at the level of comitology must apply.

Should suggest the elaboration of a common strategy document on the definition, the rules, the use, and the control of intelligence; such a document should distinguish the rights (of access, of exchange…) from the duties of the various intelligence agencies; it should also list the best practices as well as the ones that are not allowed.

Must request a series of independent and contradictory assessments of the anti-terrorist measures adopted by the EU with regards to their necessity, their proportionality, the extent to which they respect fundamental rights, and focusing on the use of intelligence involved in these measures; this request should be addressed to Member States and to the Council, but also to independent researchers of the relevant services of the concerned States, while prioritising multidisciplinary research; indeed the issues at stake go beyond mere legal considerations.

Must suggest that the European Agency of Fundamental Rights be authorised to investigate on the intelligence sector when the latter infringes on fundamental rights of persons residing on the EU territory or of EU nationals.

Must debate on what intelligence is, what can legitimately be transmitted regarding an individual, as well as what can legitimately be introduced into the intelligence system. One has to take account of the fact that the sources or/and the level of relevance of information might be insufficient and can lead to disinformation rather than to information. Beyond a mere typology, it would be necessary to reflect upon the modalities of a rating-system allowing for an assessment of the reliability of intelligence. This reliability should be made dependant upon the original source of the piece of information as well as upon its points of transmission. The services providing erroneous information should be submitted to sanctions ranging from the ban from the data exchange procedure to penal sanctions As far as the traceability of information (inscribed in the principle of availability) is concerned, the accountability should be double: the accountability of the individual, especially in the case of recidivism, and the accountability of the service.

Must request the establishment of a questionnaire and ask each Member State to list all their authorized intelligence services, their specific missions as well as the existence, or not, of judicial police prerogatives and their scope. Any service that would not be listed should be considered as belonging to private forms of intelligence and thereby possibly incriminated as mercenaries. This form should go beyond the questionnaire on the fight against terrorism requested by the European Council.

Must discuss the interoperability – or not – of data bases exchanging judicial police type of information and those exchanging intelligence type of information. Parliament should also discuss the participation – or not – of intelligence services to police-related data bases. This is particularly important in the context of the development of the principle of availability.

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