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Where there is no law, but every man does what is right in his own eyes, there is the least of real liberty
Henry M. Robert

SBU reform: for those in power or for society?

20 March, 2007 - 00:00

On Feb. 27 and March 3, 2007, a roundtable on “The Reform of the Security Service of Ukraine: For Those in Power or for Society?” was held on the initiative of the sociopolitical association Ukrainian Forum.

Roundtables dealing with a variety of topics are standard practice these days. In recent times a number of articles about the situation surrounding the SBU have appeared. The protracted process of replacing the leadership of Ukraine’s security service, which is regarded differently in various quarters, has drawn media and public attention to this clandestine agency.

Against this backdrop the roundtable organized by the Ukrainian Forum was unusual. To begin with, it was held behind closed doors, which is totally uncharacteristic of the current political situation in the country, where people seek to exploit any more or less significant event as an excuse to supply information or engage in self-promotion. The general public was informed about the roundtable’s results, but the higher echelons of power must be the principal recipient of the proposals voiced by its participants, since it is on them that the future of the SBU depends.

The composition and status of the roundtable participants make one sit up and pay close attention to their recommendations. Among them were members of the council of the Ukrainian Forum, including Volodymyr Horbulin (advisor to President Yushchenko and not so long ago the secretary of the National Security and Defense Council of Ukraine), Anatolii Zlenko (advisor to the prime minister, and ex-foreign minister), Heorhii Kriuchkov (Member of Parliament of the third and fourth convocations of the Verkhovna Rada and former chairman of the Parliamentary Committee on National Security and Defense), Viktor Musiiaka (Member of Parliament of the third and fourth convocations of the VR and chairman of the SBU’s Public Council), Volodymyr Semynozhenko (vice-president of the National Academy of Sciences of Ukraine, Member of Parliament of the second and fourth convocations of the VR, and former deputy prime minister), Yevhen Marchuk (the first chief of the SBU, who also held the positions of prime minister, head of the NSDC, and defense minister), Ihor Smeshko (former head of the SBU), Anatolii Mudrov (advisor to the head of the SBU), and Oleksandr Lytvynenko (NSDC staff expert).

All these people joined the roundtable because they are concerned about the situation surrounding the SBU. It is not simply the fact that the Security Service of Ukraine has been without a full-fledged, constitutionally appointed chief for more than two months.

The SBU has been “wobbling” for several years. So far, talk about reforming the SBU has taken the form of personnel reshuffles. Over the past 15 years the SBU’s central office has expanded a dozen times, which has caused functional defects. The SBU’s anticorruption and economic security divisions have become the most “attractive” (in every sense of the word), except that their performance is not very noticeable (perhaps owing to its clandestine character?). But judging by the assessments of SBU representatives, the “arms” of the SBU, its operations section, this branch is deteriorating.

There is much political corridor-talk about the fact that Ukraine’s Security Service is gradually degrading. The public thinks about it only when the latest scandal erupts after yet another high office is found to be bugged, or in conjunction with an SBU press service statement declaring yet another foreigner from a neighboring country persona non grata. Meanwhile, no one is exercising any serious control over the SBU, not even the head of state to whom it is formally subordinated. Nor is there any parliamentary control over the security agency.

In the last while, the SBU’s problems have been aggravated because this structure, which is supposed to ensure Ukraine’s national security, is increasingly becoming the hostage of political confrontations between the highest institutions of state power.

On the one hand, there is a risk that the SBU will be transformed into a parallel interior ministry, as the personnel changes in the higher echelons of the SBU in the past couple of months would indicate. This process does not seem to have ended.

According to rumors originating in the depths of the SBU, about a hundred former high-ranking militia officers are being transferred to the service. This “militiaization” is irking career SBU officers, and provoking internal squabbles and mutual distrust. However, this is not just a question of the traditional rivalry and dislike between the security service and the interior ministry. The two law enforcement agencies with seemingly related functions have different tasks and entirely different modus operandi. If the counterintelligence service, which is what the Security Service of Ukraine is supposed to be, starts becoming transformed into a “special police force,” the security service will quickly lose its uniqueness.

On the other hand, if the SBU is used, directly or indirectly, in the struggle among the president, parliamentary majority, and government, the threat of countermeasures may emerge, which will impede the security service’s normal functioning. A political rift may well emerge within this clandestine agency, which is tasked with maintaining the security of the Ukrainian state.

The trouble is that both options are fraught with the risk of ruining the service, which in turn will increase risks to Ukraine’s national security.

What should be done to preserve the Security Service of Ukraine, as well as to reform it, boost its performance, and make it serve Ukrainian society rather than individual political leaders or political forces?

In the opinion of the roundtable participants, the most important issue on the agenda was the status of the SBU: will the service remain a law enforcement agency or should it become a civil and truly special (counterintelligence) service, in line with contemporary European practice? Most of those who took part in the discussion were of the opinion that the struggle against organized crime should be removed from SBU jurisdiction and transferred to the Ministry of Internal Affairs. This would allow the service to concentrate on special counterintelligence problems, the protection of Ukraine’s statehood and sovereignty, and participation in the international struggle against terrorism.

It is also necessary to demilitarize the SBU, although this process must be gradual, to be accomplished within a certain transition period. It is extremely important to establish the status of SBU personnel as special civil servants so as to secure reliable social guarantees, incentives, and compensations for professional risks, restrictions, and other specifics of this profession. During the discussion it was noted that SBU reform cannot be reduced to mechanical reductions of its strength. Above all, it is necessary to clearly define the SBU’s functional specificity and only then proceed to regulate the qualitative and quantitative parameters of securing personnel for each of the service’s functions.

The functional transformation of the SBU should be carried out within the general context of law enforcement reform. To this end the roundtable participants noted that the requirements of the Transitional Provisions of the Constitution of Ukraine concerning the formation of a pretrial investigative system and adoption of pertinent regulatory enactments have not been met to this day. There is a direct connection between this and the issue of the place and functions of pretrial investigation in the SBU structure. In particular, it is necessary to determine on the legislative level precisely which body will conduct pretrial investigations of cases involving high treason, encroachments on Ukraine’s sovereignty and territorial integrity, espionage, disclosure of state secrets, acts of terrorism, and other crimes against the state.

Enhancing the SBU’s effectiveness largely depends on upgrading the mechanisms for coordinating the work of the Service with other bodies operating in the field of national security. For example, special attention should be paid to cooperation between SBU and other intelligence services, including the exchange of intelligence and counterintelligence data. Such coordination should be carried out by a special department of the National Security and Defense Council.

The roundtable participants agreed that divesting the SBU of its function to provide counterintelligence protection for Ukrainian diplomatic missions was a mistake. This was done under the slogan of de-KGBizing the Ukrainian diplomatic service. After all, diplomats themselves cannot carry out counterintelligence protection of their missions abroad. As a result, this function was handed over to the External Intelligence Service, which is not quite in line with its tasks and objectives, and this may lead to serious foreign political complications for Ukraine.

On the other hand, the SBU should be stripped of its authority to administer the secrecy order at state-run, military, research, and other departments, while its counterintelligence activities, aimed at protecting state secrets, should be enhanced; this must remain one of the service’s highest priorities. Secrecy order procedures should be made the responsibility of a special governmental structure.

Securing modern democratic standards must be one of the most important directions of the SBU reform. Solving this task can be helped by legislatively securing citizens’ rights in situations where their interests come into direct conflict with the needs of clandestine agencies. Above all, this has to do with the right of citizens to obtain information concerning SBU measures aimed at temporarily restricting their constitutional rights, as well as with the normative regulation of the service’s activities in handling citizens’ appeals and complaints.

Another topical problem is the legislative regulation of the use of secret electronic surveillance (audio and video monitoring) of premises and all types of citizens’ communications, secret searches, and shadowing of individuals by the SBU (and other law enforcement and special agencies) as part of their investigative work. Rigid control must be established not only over the procedure of authorizing such methods and their practical application but also over the use, storage, and disposal of data obtained in this manner. It is no secret that such information, even when it is lawfully gathered, can become subject to manipulations that are not totally legitimate. This is a challenge both for state interests and the interests of individual citizens.

Lest separate commanding and rank-and-file SBU officers use their status, authority, and information for “commercial,” political or other purposes that may harm the interests of the state and its citizens’ rights, the service’s activities must be supervised by the president to whom it is subordinated under the Constitution and the Law “On the Security Service of Ukraine,” as well as by the Verkhovna Rada of Ukraine.

However, it is also necessary to bear in mind that the security service and the sphere of national security are being discussed here. Control over the SBU requires special clearance and secrecy order, which entails responsibility for divulging classified information. Unfortunately, not everything is in order here. The participants of the roundtable cited examples of unauthorized disclosures by parliamentarians and other high-ranking state representatives.

In the course of the discussion it was noted that the highest bodies of state power - the president, parliament, and cabinet - may exercise control over the SBU within the framework of their constitutional authority, through institutions specially formed by them, particularly through their authorized representatives in the SBU. It is significant that the president signed an edict appointing his representative to monitor the Security Service of Ukraine on Feb. 28, 2007, right after the first session of the Ukrainian Forum roundtable devoted to the SBU’s problems. Without a doubt this was an important step on the road to forming a system of democratic and legal control over the SBU.

Reckoning with foreign countries’ experience (particularly the US, UK, FRG, and Russian Federation) and the current situation in the sphere of Ukraine’s security, the participants in the roundtable discussion stressed the expediency of forming a special parliamentary committee that would be tasked exclusively with supervising the security sector and exercising parliamentary control in this sphere, as envisaged by the Constitution of Ukraine. Here special attention should be paid to staffing this committee with competent and experienced parliamentarians as well as a team of topnotch experts with required clearances.

It was further noted that new political and juridical realities in conjunction with the role of the government having been essentially strengthened within the system of state power should be duly considered in the SBU’s activities. In this connection the question arises of clarifying the cabinet’s authority with regard to the SBU and its reflection in the laws “On the Cabinet of Ministers” and “On the National Defense and Security Council of Ukraine.” Other current problems include the SBU’s accountability to the government and the question of keeping the cabinet informed about matters pertaining to national security.

Specific mechanisms of administration and control of the SBU’s activity on the part of the highest bodies of state authority must be coordinated between these institutions and worked out in detail in pertinent normative-legal acts and ministerial bylaws. This is the only way to lift the mutual suspicions of part of the political forces with regard to the possible use of the SBU in the domestic political struggle.

Obviously, it is impossible to solve the SBU’s problems by replacing the chief of the service and by mechanical manipulations of its personnel. The Security Service of Ukraine requires a well thought out and systemic reform aimed at modernizing the service, securing its effectiveness in resolving national security problems, and building public confidence in the SBU. A concept of this reform is being drafted. It is important to take into account public opinion and the views of experts and former and current SBU personnel during this process.

By Volodymyr FESENKO, Ukrainian Forum