There is a very broad conception of national security wherein state spooks have come to see themselves as the main watchdog of society, almost separate and above the constitutional and democratic order
Here’s a sobering fact: none of us, whether in South Africa or in most any other democratic country for that matter, really knows what our government security-intelligence agencies (‘spooks’ for short) are up to; and, that is exactly the way the spooks want to keep it.
That’s why the recent actions of Edward Snowden - a 29-year-old former technical assistant for the United States CIA and employee of various defence contractors who worked at the government’s National Security Agency (NSA) for the past four years – are so important.
Snowden not only revealed that the NSA has been collecting the phone records of millions of customers of Verizon (one of the USA’s largest telecoms providers) under a top secret court order issued in April, but that since 2007 the NSA has been running a programme called PRISM which has allowed them to conduct both domestic and global “in-depth surveillance on live communications and stored information”. Such surveillance has targeted emails, video and voice chats, videos, voice-over IP conversations (such as skype), file transfers, login notifications and social networking details.
The revelations have created shock waves of outrage and condemnation from an increasing number of Americans and a wide range of organisations and people across the globe.
While such responses are to be welcomed, they provide confirmation of the extent to which ordinary people have scant knowledge of what their government spooks are actually doing on a regular basis. Yet, even if many are not aware of all the details, there is clearly a growing realisation that the expanding powers being given to spooks and the increasing impunity with which they are operating is undermining democracy itself.
Indeed, Snowden himself has said that the primary reasons for blowing the whistle on what is probably the most powerful spook agency in the world is “to inform the public as to that which is done in their name and that which is done against them” because “the government has granted itself power it is not entitled to … there is no public oversight.” South Africans should be paying extra-close attention, precisely because our own spooks have, for many years now, been engaging in conduct and activities of which, no doubt, the US government and their spooks would be proud.
As far back as 2006, things were already bad enough for the then-Minister of Intelligence Ronnie Kasrils to appoint a Ministerial Review Commission on Intelligence (the Matthews Commission). Crucially, the Commission’s mandate was to review the operations of all intelligence entities (excepting crime and defence intelligence) with an aim, “to strengthen mechanisms of control of the civilian intelligence structures in order to ensure full compliance and alignment with the Constitution, constitutional principles and the rule of law, and particularly to minimise the potential for illegal conduct and abuse of power”.
The Commission’s final report, which was never publicly released and which was then subsequently buried by the new Zuma government, confirmed that the spooks had engaged in conduct and activity that “undermined political rights … entrenched in the Constitution.” It also found that accountability to the public was weak, something that was “inconsistent with the constitutional tenet that all spheres of government must be transparent and accountable.” Just as importantly though, it found that the mandate of the spooks was far too broad; a fact largely attributable to an equally over-broad conception of national security wherein the spooks had come to see themselves as the main watchdog of society, almost separate and above the constitutional and democratic order.
If all of this sounds very similar to spook-worlds in places like the US, it’s because it is. At virtually the same time that the NSA was fine-tuning their mass electronic surveillance programme, the Matthews Commission stated that our South African spooks “appear[s] to be engaged in signals monitoring that is unlawful and unconstitutional” and that “some senior officials believe that it is legitimate to break the rules …” The conclusion of the report, besides calling for a public review of the intelligence mandate and several specific measures to improve accountability, critically argued that, “the right of access to information lies at the heart of democratic accountability and an open and free society. Secrecy should therefore be regarded as an exception … the intelligence organisations have not shed sufficiently the apartheid-era security obsession with secrecy.”
Since then, things have gotten worse. Led by the spooks, the Zuma government has engaged (with the active encouragement and collusion of corporate capital) in a consciously constructed and consistently applied closing down of South African’s constitutionally-enshrined right of access to information. We now have an orgy of classification. The requisite means needed for such a clampdown has been provided firstly, by the increasing centralisation of power within the Presidency and the recently constituted and ominously named, State Security Agency (SSA) as well as the militarisation of the state’s other coercive forces.
On the second count, and in a similar vein to the approach of the US government, the law itself has become both the shield and the spear of the spooks. Besides the apartheid-era Regulation of Gatherings Act, which has long been abused to frustrate and prevent people’s legitimate right to protest, we are now witnessing the ever-expanding and secretive use of the apartheid dinosaur legislation – the National Key Points Act - to hide ‘security-related’ activities taking place at any such declared site and criminalise any person disclosing ‘any information’ in ‘any manner whatsoever’ about its ‘security measures’.
Additionally, we have the Protection of State Information Bill and the General Intelligence Laws Amendment Bill (otherwise known respectively as the Secrecy Bill and the Spy Bill) waiting for President Zuma’s signature to become law. Both of these ‘almost laws’ are a retroactive spit in the face to the Matthews Commission report. Instead of catalysing accountability and transparency for our spooks they oil the wheels to move in the opposite direction. And even if there have been some positive changes to both laws as a result of hard-fought battles waged by civil society organisations and activists, we will have no way of knowing if those good parts are actually being applied and adhered to because that will be a secret too.
Any proclaimed democratic state can, and should, be judged by the way it treats its whistleblowers. In this respect, South Africa’s 21st century track record is just as bad if not worse than that of the US. There are many South African whistleblowers, living and passed who have, like the Americans Bradley Manning, Edward Snowden and numerous others, taken a stand to let us all know what our government is doing to us, in our name. On the other hand, it is the singular mark of an insecure state when it empowers its spooks to do more or less, what they want as they want, and tries its best to ensure that the people are in the dark.
* Dr. McKinley is an independent writer, researcher and lecturer as well as political activist. This article was first published by South African Civil Society Information Service.
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