Taoiseach Must Establish A Commission on the Future of State Intelligence

The Minister for Justice, Mr Flanagan has informed the Dáil that he is moving quickly to establish the Implementation Group for Policing Reform as recommended by the Commission on the Future of Policing. It is surprising that the minister is proceeding so hastily to implement a report that has glaring shortcomings, inconsistencies, and contradictions concerning intelligence and national security. These flaws can be attributed to the failure by the former Minister for Justice to appoint a national level intelligence expert to the commission.

The Commission on the Future of Policing was established to make recommendations regarding the future of policing in Ireland, this included reviewing the Gardai’s assigned responsibility for the ‘security of the state’. Membership of the commission was weighted completely towards policing. This resulted in the commission being police focused, police orientated, police cultured but lacking professionalism when it came to reviewing ‘security of the state’ requirements.

During its work the commission members, including the foreign national members, had access to state classified information. This is information that is not available to the Irish general public or to members of the Oireachtas and is redacted on the Commission’s website. The Minister for Justice has yet to explain why the commission members were appointed without first ensuring that they were positively security vetted to the required level.

None of the above however stopped the commission from making recommendations regarding Ireland’s national security which was outside its terms of reference.

Commission Report was based on a False Premise

The commission was erroneous to conflate ‘security of the state’, a function assigned to the Gardaí in the Garda Síochána Act 2005 to also mean that they were solely responsible for national security. For example, the report’s Second Principle states ‘policing and national security are not the responsibility of the police alone’, later in the report it states ‘It follows from the above that the national security function should not be lodged entirely within the police organisation’. While in legislation the Gardaí have been assigned responsibility for ‘security of the state’ nowhere in any legislation does it state that the Gardaí are responsible for national security.

To explain. While there is academic debate to the exact definition of ‘national security’ there is universal agreement that it must include military security and in recent years has also come to include economic security, energy security, lines of communications security, and most certainly cyber security.

To understand better. When Russian bombers fly down the west coast of Ireland, or if foreign armed forces land on our shores, or if Ireland’s airport control systems are hacked and put out of operation, they threaten our national security. But according to the policing commission the Gardaí have sole responsible to counter these threats. Complete nonsense on behalf of the commission. Thus with the commission having based the whole of Part 3 of their Report on this false premise it casts serious doubt on the validity of their report.

Function is Unique

Elsewhere the commission states that ‘An Garda Síochána is unusual among police in common law jurisdictions in having responsibility for the ‘security of the State’. In fact, it is not just unusual, it is unique. Denmark, not a common law jurisdiction, is often mentioned as another European anomaly where the police have dual roles. However, it should be understood that Denmark is a member of NATO, takes national security seriously, and the government has created a very clear barrier between its policing functions and state security functions.

Assigned Garda Functions are Bizarre

Most people don’t realise that Section 3A of the Garda Síochána Act 2005 (amended) incongruously assigns the following functions to the Gardaí:

• ‘counter-espionage’ (the reader should note that this involves active spying on foreign intelligence services not just countering their activity),
• ‘identifying foreign capabilities, intentions or activities within or relating to the State that impact on the international well-being or economic well-being of the State’,
• ‘co-operating with authorities in other states and international organisations aimed at preserving international peace, public order and security’.

While it is hard to believe that a Minister for Justice assigned these functions to an internal police service it is incredible that an examining commission would skip over them and not even comment. Due diligence springs to mind.

Civilian intelligence Agency

Having served in military intelligence for many years, having witnessed the weaknesses in our state intelligence system over many decades, and having analysed the emerging security threats to the state it is blatantly obvious that the state needs a major rehaul of its intelligence system. The creation of a civilian intelligence agency and creation of a fusion centre at the operational level to fuse intelligence from the myriad agencies would be a necessary start.

The Policing Commission stated however that it was ‘not convinced that it was either necessary or realistic at the present time to separate the security role from the Gardaí’. What is incredulous is that the commission does not give any reason why it was ‘not convinced’ nor does it give any rationale for its decision, merely to state it was ‘not convinced’. That type of blasé statement might be acceptable if it was coming from national intelligence experts, but it is not. It is coming from a commission that: didn’t know the difference between state security and national security; had no national intelligence expert; and ignored European best practice.

The commission does state however that a separate agency may be an option at some future point. In other words, let the hard-pressed taxpayer pour good money after bad until something drastically goes wrong then we will fix it. It appears the Commission learned nothing from Ireland's previous state failures or from our European partners.

European Best Practice Ignored.

Despite the very obvious reasons for separating the state security role from the Gardaí the commission also ignored European best practice.

• The Organisation Security Cooperation in Europe (1991), which facilitated the democratising of post-Cold War Warsaw Pact countries advised that policing and security should be separated; all the transitioning Warsaw Pact states complied.
• The Council of Europe (1999) advised that ‘internal security services should not be allowed to run criminal investigations, arrest or detain people, or be involved in the fight against organised crime, except in very specific cases when organised crime poses a clear danger to the free order of a democratic state’.
• The EU (2002) called for the creation of more similar national intelligence structures throughout the union; Ireland remains the outlier.
• The Council of Europe Venice Commission (2007) concluded that there are a number of reasons for establishing a separate civilian agency including preventing the abuse of power by too much power residing in one person’s hands. For example with our Garda Commissioners.

Garda Culture

Ever since the Morris Tribunal there have been streams of reports and articles calling for a change in Garda culture. Changing culture however is never easy. But it did work in Northern Ireland when the RUC successfully transitioned into the PSNI. It has been argued that one of the main reasons for this was due to the police service losing its intelligence role to MI5. The Future of Policing Commission itself even acknowledged that ‘those handling sensitive information are necessarily less transparent and are not as openly accountable about their work in the way that police in the community should be’. But the Commission then ignored that advice.  Those expecting a change in Garda culture will be waiting.

Strategic Threat Analysis Centre (STAC)

To the unprofessional intelligence eye, the Commission’s proposal to create a Strategic Threat Analysis Centre (STAC) and a National Security Coordinator within the Department of An Taoiseach is a good solution to not having the Gardaí ‘solely responsible for national security and as a place to pool expertise and information’.

However, the commission made another fundamental error here. It correctly identified an intelligence collection and fusion problem at the operational level of intelligence but it then came up with an analysis and coordination solution at the strategic level of intelligence. That is mind-boggling and demonstrates once again that the commission was working outside its depth.

In addition, the proposed National Security Coordinator will not be a national director of intelligence so therefore that appointee will end up being feed whatever information the various agencies and bodies wish to pass on. This can only lead to confusion and disagreements, especially between government departments. The Taoiseach’s Department as senior government department will however have to take ultimate responsibility if an intelligence disaster should occur.

Conclusion.

The Commission on the Future of Policing Report Part 3 gives the false impression that the intelligence architecture of this state has been reviewed. It has not. Part 3 of the report is seriously flawed. The Taoiseach as the person ultimately responsible for national security should without further delay establish a Commission on the Future of Intelligence tasked with conducting a state security threat and risk analysis and propose an appropriate security architecture to protect the state, businesses, citizens, and our economic well-being.