HFHR statement on secret services reform

Legislative works on the amendments to the Internal Security Agency Act, the Intelligence Agency Act and the Secret Services Control Committee Act are ongoing. The two bills are an element of the governmental reform of secret services announced by the government in May 2013.

The HFHR notes that the scope of the proposed changes is generally limited to introducing two separate statutes on the Internal Security Agency and Intelligence Agency in lieu of the single act currently in force. In consequence, the majority of the newly proposed regulations repeat the existing laws.

The bill limits the powers of the Internal Security Agency, a portion of which will be transferred to the Police, and places the ISA under the supervision of the Minister of the Interior, instead of the Prime Minister.

The HFHR has expressed doubts regarding primarily the ISA powers to investigate, prevent and detect “extremist crimes” and the Intelligence Agency’s authority to gather “signals intelligence”, which has not been defined or described in detail in the bill.

The Foundation also objects to the list of terrorist threats that would justify entering a person suspected of being involved in terrorist crimes onto a list kept by the ISA Director. The list will include information about “persons considered logistically capable of performing a terrorist attack” or “other persons including, but not limited to, individuals considered a threat to civil aviation”. “Since the proposed piece of legislation fails to state effects of the entering of a name into the list and contains very broad and ambiguous criteria for placing individuals on the list, it is likely that the bill is unconstitutional”, says Barbara Grabowska, HFHR’s lawyer.

The proposed amendment of the ISA Act does not comply with the majority of principles of good legislation which apply to laws governing covert investigative methods and intelligence gathering, and the retention of telecommunication data. “There is strong evidence that a change is needed, for example the cases brought before the Constitutional Tribunal by the Human Rights Defender and the Prosecutor General which concern the constitutional review of laws on covert investigative methods”, says Ms Grabowska.

The proposed law will also establish the Secret Services Control Committee, a body subordinate to the Sejm. According to the bill, the Committee is to exercise control powers over the services also in respect of their operational and investigative activities. The HFHR contends that the Committee should be authorised to review international working agreements concluded by Polish clandestine services with their foreign counterparts.

The reform of the intelligence-security services supervision system also covers the abolishment of the governmental Committee for Intelligence Services (a body with a statutory footing) which is to be replaced by the Council of Ministers Committee for State Security, established by order of the Prime Minister. “In our opinion, this change in the appointment procedure will lower the rank of the new organ”, adds Barbara Grabowska.