Where the Law Doesn’t Go: Who’s Watching the Intelligence Agency?

by Fitri Bintang Timur

The intelligence bill is in the spotlight once again, with the House of Representatives set to address some of the remaining concerns surrounding the draft legislation.

The defense minister has warned that acts of terrorism will continue if the bill is not passed, but the public appears to be more fearful that the bill would encourage shadowy operations within the intelligence apparatus.

Many observers also fear the bill could lead to increased recruitment and weaponry procurement by the intelligence apparatus, adding to the growing intelligence budget that is already over Rp 1 trillion ($115 million).

But despite these fears, the public needs to keep in mind that intelligence operations are already taking place around us. Indonesia’s first intelligence agency was set up in 1946 as the State Secrets Agency of Indonesia (Brani), which evolved into today’s State Intelligence Agency (BIN).

Though work began on an intelligence law immediately after Suharto’s resignation in 1998, Indonesia still lacks both an intelligence law and a more encompassing national security act.

BIN’s task is to coordinate the intelligence agencies under various ministries. Intelligence activities follow a sequence of planning, gathering information, processing information and using information.

As a tool, intelligence should follow a rigid set of rules so the ruling government can only use it for the good of the country, not to perpetuate its rule. US Embassy documents recently released by WikiLeaks claimed that intelligence services had been misused to sustain the position of Susilo Bambang Yudhoyono, an allegation that has been vigorously denied by the president.

An intelligence bill would provide legitimacy for state intelligence activities. Every country in the world has intelligence agencies that might also operate in Indonesia. A bill would provide us with the legitimate means to conduct counterintelligence activities.

Intelligence also extends beyond the state. Corporate and private security agencies have private intelligence services to seek information for profit. A state intelligence agency should be present to promote national security interests in this area.

For that reason, Indonesia should draft a national security act. National security interests need to be formalized and made clear, which will then allow for the formulation of defense and security measures.

The absence of a national security act has also caused prolonged debate on the extent to which human rights are protected by law. This has led to a related debate on whether wiretapping and arrests can be conducted by the intelligence agency. The absence of a unified legal basis for these matters has weakened the effectiveness of existing laws in the defense sector, which are overlapping and unclear.

Without unified regulation, intelligence bodies are given unlimited scope to carry out operations at their own discretion.

Take for example the murder of human rights activist Munir Said Thalib in 2004. Legal action was taken to punish Pollycarpus, the off-duty pilot convicted and jailed for the killing. Muchdi Purwopranjono, a former BIN head, was tried in connection with the murder but was acquitted. But others who benefitted from Munir’s murder were never touched.

Many questions remain as to the intelligence agency’s role in the murder, the extent to which the government has addressed the issue and whether reforms have been made to prevent these kinds of crimes from occurring in the future.

Our intelligence apparatus appears to have remained basically unchanged throughout the reform era. When it comes to transparency, we know little more about BIN than the name of its chairman and the size of the body’s annual budget request.

Former President Abdurrahman Wahid only managed to change the name of the body to BIN. Former President Megawati Sukarnoputri gave the agency broader authority to deal with terrorism, but did not ask for greater accountability.

Nor did the Public Disclosure Act (KIP), which came into force last May, change things much; the intelligence agency remains tight-lipped about questionable past events. What little we have been able to read about the events here in 1966 has been more likely to come from the CIA than BIN.

All of this makes it a surprising oversight that there is still no law or policy to regulate the country’s intelligence apparatus. It is important to ensure the intelligence agency acts as a tool of the state, not an instrument of the ruling government.

The authority to perform wiretapping, for example, occupies a gray area created by the absence of legislation.

How should we oversee the authority to perform wiretapping? If granted, who will have the authority to know who is being tapped? Will it just be the president, or also members of the legislature? What if wiretapping is then used against political opponents?

The authority to conduct wiretapping could also prove counterproductive for state stability if, against the wishes of the president, members of the legislature become the subject of wiretapping.

In addition, the authority to arrest suspects for interrogation at any time in cases of terrorism could also be problematic if not carefully regulated. At present, the power to arrest suspects lies with the police. Even the police intelligence agency itself cannot simply make an arrest. The task is given to the Criminal Research Bureau (Reskrim).

If the intelligence apparatus is able to make arrests, would it not cause conflict with the police? The special ability would also create difficulties in terms of supervision, because of an absence of written orders. In addition, arresting a suspect without notifying his or her family or providing details on the alleged case could be considered a kind of kidnapping.

The task of the intelligence apparatus is to be the eyes and ears of the state. It need not work as its feet and hands as well.

Fitri Bintang Timur is a researcher for the Institute for Defense Security and Peace Studies in Jakarta.

Published in Jakarta Globe, 8 April 2011


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