Strengthen democracy, hug a spy

The attitude we in free societies take toward the security agencies is a critical part of our security.

If there’s anything we’ve learned from horrors like the nightclub shootings in Orlando, the truck attack in Nice, and the beheading of a priest in Rouen, it’s that our security services are far from perfect. We have learned, for example, that Adel Kermiche, one of the killers of Father Jacques Hamel, wore an electronic tag because he had been recognized as potentially dangerous, but a judge had allowed it turned off for four hours, time Kermiche used to murder the priest. Clearly, there is no obvious path to ensure security for European or North American states, currently the targets of choice for jihadists. But what we’re seeing now is a shift in attitudes toward intelligence-gathering services.

“Public opinion in Belgium, France and other European countries threatened by jihadist attacks has swung dramatically toward security,” write two U.S. security experts, Michele Flournoy, a former undersecretary of defense, and Adam Klein of the Center for a New American Security in Foreign Affairs.

The attitude we in free societies take toward the security agencies is a critical part of our security. In the past year, while researching Journalism in a Time of Terror, an upcoming book for the Reuters Institute, I interviewed past heads of the West’s three main external intelligence services: John McLaughlin, (briefly) head of the CIA; Pierre Brochand of the French DGSE, and Sir John Scarlett of the UK’s MI6. All stressed their agencies’ adhesion to democratic norms – necessary, in their views, for their existence.

McLaughlin agrees that the secret services fit awkwardly into democracies, but says it is clear that they are necessary to protect democratic practices. Yet, observing that leaks and revelations have caused large expense and disruption, he ended by asking the news media, a little despairingly, “How hard do you want my job to be?” Scarlett also asked a rhetorical question. When pressed on the potential the services had for suborning democratic life, he asked, “Who would do it? Where do we get our staff? The same, generally liberal society as anyone else.”

Brochand, in the French tradition of the intellectual as state official, said that the DGSE he commanded from 2002-2009 suffered from a lack of trust, and “if you think about it, the sole real asset of an intelligence service is its credibility, which stems from trust.” Society has become “individualistic” and has called for “transparency” everywhere, even in services that could not grant it. “We tried to show [ journalists] we were not the monsters they expected us to be, but devoted professionals, doing our best in a difficult world.”

There are differing ways to react to terrorist violence. They range from Donald Trump’s demand — based on his belief that one in four Muslims are violent jihadists — that Muslim entry into the United States be temporarily suspended, to German Chancellor Angela Merkel’s flat refusal to close the door on refugees. From Catholics and Muslims coming together in Rouen Cathedral last Sunday to mourn the murder of Father Hamel, to a crowd in Nice booing French Prime Minister Manuel Valls after a minute’s silence for the 84 killed. Separation and inclusion; forgiveness and anger. The attitudes presently co-exist, but there’s little doubt that the separationanger response will win out if the spate of violence that marked July in France and Germany continues, and grows worse.

The French National Assembly’s commission of inquiry into the 13 November attacks in Paris, after six months of hearings, debate and drafting, harshly criticized the “superabundance of acronyms” that characterize the country’s many security services. It called for a streamlined, centralized and more powerful security organization. The German government’s attitude of continued openness has had strong public support but is dependent on an abatement of terrorist incidents.

We can now assume the seriousness of the militants’ ambitions; their possible acquisition of weapons of mass destruction; the attraction they have for some, especially young Muslim men, and their deliberate efforts to worsen relations between the settled and recent immigrant populations.

As Philip Bobbitt has written, “terrorism itself might become a threat to the legitimacy of those states that depend upon the consent of the governed.” We need to enfold the secret services, in the front line against that threat, fully and explicitly within the institutions of the democratic state. The relationship between them and civil society will, and should, be at times scratchy. But they are as important as a free press. The Delhi High Court has given a historic verdict stipulating the nature of functions assigned by the Constitution to various functionaries of the Delhi government. The High Court has made it clear that it is the Lt Governor who primarily calls the shots and the elected government cannot implement decisions without his approval in specific cases. In other words, the Lt Governor is supreme and is not bound by the advice of the Chief Minister and his council of ministers.

The Aam Aadmi Party (AAP) has already decided to challenge the High Court verdict in the Supreme Court and going by the indications, top legal eagles such as Rajeev Dhavan, K.K. Venugopal, Gopal Subramanium and P.P. Rao may lead the charge when the matter comes up in the Apex Court. It is evident that the last has not been heard on the issue and the AAP will make sure that it keeps the pot boiling in order to have potshots at the Bharatiya Janata Party and its government at the Centre, given the heightened hostility between the two sides.

There is no doubt in anybody’s mind that the high court edict gives the legal high ground to the Centre and the BJP, since it is based on the interpretation of the Constitution. It has been made abundantly clear that Delhi continues to be a union territory and is not a state and therefore is under the overall control of the Centre. The matter of the fact is that the verdict is on expected lines and has thus not taken anybody by surprise.

However, while the AAP may have lost the first legal battle, it is actually looking at a larger picture—that of winning the political war. The high court order has made things easy for AAP leaders, who had made tall promises to the people of the city on way to an unprecedented victory which gave the party 67 out 70 Assembly seats and in the process also more than 50% of the total votes polled. The order has provided Chief Minister Arvind Kejriwal and his associates a political handle to whip the BJP with. This is perhaps exactly what the AAP would do in the next few months.

The diktat is extremely convenient for the AAP functionaries to explain to the people why they have not been able to accomplish what they had set out to achieve. Whatever good has happened till now has been despite the Centre, which is not allowing the AAP ministers and MLAs to function and is using every trick in the trade to give them a bad name. Junior bureaucrats at the Centre have overriding powers over the elected representatives of the people and as a consequence were in fact preventing them from pursuing pro people policies. The high court verdict has brought to fore the limitations under which the Delhi government has to function and is being made to play second fiddle to the Centre because of legal hurdles that need to be done away with in the future by a Constitutional amendment. The AAP argument is that democracy is being throttled by lacunae in the Constitution and therefore justice is not being meted out to the common man who had reposed his or her unequivocal faith in the party in the 2015 Assembly elections. The political discourse thus would override the legal interpretation by the high court, which has arrived at a correct conclusion based on the rules and norms as laid down by the Constitution. It would also give a fresh lease of life to the party, which is rapidly catching the imagination of the people even in other states including Punjab, Goa and Gujarat.

Kejriwal and company can now easily take to the streets and explain to the people that the Centre stands between the promises made to them by their party. Going by this it is quite clear that for each and everything it is the Lt Governor who is supreme. Moreover, since he has such a lofty status where was the need to have an elected government in the capital in the first place? It is obvious that Kejriwal, while taking his case to the people’s court, would make a strong plea for full statehood so as to enhance the prestige of the government which had received an overwhelming mandate.

The short point is that while the bureaucracy and some in the intelligentsia may understand the validity of the high court order in the background of the Constitutional limitations of the elected representatives, the common people who voted in the Assembly polls did not do so after reading the Constitution. They simply want things to be done expeditiously and would hold their MLA responsible if anything goes haywire. Most people rightly or wrongly have problems with the police, which in Delhi is under the Centre. Many others have to deal with officers in connection with their encroachments or dwellings at various places. Land too is under the jurisdiction of the Centre. Till now the majority would spew their ire on the elected representatives. However, the AAP henceforth would use the high court verdict to give greater clarity to the people at large on the minimal role of its government. In the process, it will put the entire blame at the doorstep of the Centre and thus seek to derive political advantage.

Kejriwal, by no means, is a political novice and perhaps realises that his time has come to beat the BJP with the high court observations thereby absolving himself of any inaction. Simultaneously, he would want to take the matter to the Apex Court in order to further test the legal grounds. He is sitting pretty and has either way nothing to lose. Between us.