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FBIS Report: Central Eurasia 6 April 1994 RUSSIA ECONOMIC & SOCIAL AFFAIRS

Baturin on `Special Services'

Baturin on `Special Services' 944F0571B Moscow KURANTY in Russian 6 Apr 94 pp 4, 5 944F0571B Moscow KURANTY Russian CSO [Article by Yuriy Baturin, national security adviser to the president of Russia: "The Special Service That 'Came In From the Cold'"] [Text] Yuriy Mikhaylovich Baturin is a doctor of law. He was born in 1949 in Moscow. In 1973 he graduated from the airspace research department of the Physics and Technology Institute in Dolgoprudnoye. He worked in the Energiya Scientific-Industrial Association. Since 1980--in the State and Law Institute. He graduated by correspondence from the All-Union Juridical Institute and the Moscow University School of Journalism. The topic of his doctorate dissertation was computer law. In 1990 he went through internship in Washington, and since 1991 worked on the staff of G. Shakhnazarov--M. Gorbachev's aide. Since 1992--in the Gorbachev Foundation. On 17 March 1993 he was appointed a member of the Presidential Council, and in June of the same year--the Russian Federation president's adviser on legal issues. In January 1994 he was appointed the Russian Federation president's national security adviser. Since March 1994 he has also chaired the commission on supreme military positions, supreme military and supreme special ranks of the Personnel Policy Council. He has authored many works. He was one of the authors of the draft law on the mass media. "In from the cold"--this term, not quite precisely translated after Le Carre's novel was published in Russian--today reflects rather precisely the true situation of Russian security organs. The structure that kept society fettered by cold fear and mutual suspicion, and then itself experienced harsh criticism bordering on revenge, is gradually thawing, acquiring a normal human face, and becoming capable of carrying out its real tasks. Russian citizens' natural interest in the topic of special services cannot be explained by vain, idle curiosity, or by the fact that the shroud of secrecy surrounding the activities of this kind of structure always arouses interest. And not only because reforms of our security services are frequently accompanied by disturbing details. To a large extent this interest is a logical trait of an emerging civil society. A society coming out from under the state's control and intending in turn to control the latter has a vital stake in getting the maximum possible information on state structures whose activities to some or other degree affect human rights. Especially our, Russian, society. However, for well-known reasons heightened public sensitivity to the topic of special services is manifested in morbid forms. The pulling down of the Dzerzhinskiy monument in front of the KGB building in Moscow, as well as the demand to liquidate "competent organs," became the symbol of the public mood in recent times. Today we see this as somewhat romantic, but also somewhat naive. Russia is gradually regaining its historical memory. The picture of the past is emerging increasingly fully and in more detail. Of course, we do not want to return to state arbitrariness, but we also reject other things--sedition, anarchy, in other words, "grass-roots arbitrariness." The reasons for the latter are known--a weak, impotent state. The symptoms of this dangerous disease manifested themselves graphically last year, and seriously alarmed most citizens. The Russian special services felt this change in the public mood, too. By now it is possible to formulate on the whole the social order Russia's nascent civil society placed with them: to effectively ensure the security of the country and its citizens, and to protect Russia's national interests, one of the central among which is the protection of democracy. Last year, at a conference of high-ranking personnel of the central staff department of the Russian Ministry of Security [MB], President B. Yeltsin said that it puzzles him that there are legally existing organizations in the country that openly and publicly propagate ideas of seizing power and ethnic and social strife, form and train armed commando brigades, and openly operate as a mafia and control individual regions, while the MB is either unaware of this or not showing the proper initiative. Each of these questions is topical today. They represent a threat to our national security. Russian special services currently have the legal base to combat them.
In Search of Balance
The Statute on the Federal Counterintelligence Service was recently published in the open press, and anybody may now read it. The document directly defines the area of the service's responsibility. Among other things, it is tasked with identification, prevention, and suppression of intelligence and sabotage activities of foreign special services and organizations, as well as unlawful encroachment on the constitutional system, sovereignty, territorial integrity, and defense capability of the Russian Federation. This general definition is elaborated on in the form of a detailed list of tasks set for Russian counterintelligence. Among them: combating smuggling, corruption, international arms trading and drug trafficking, illegal armed formations, as well as illegally created or banned public associations encroaching on the constitutional system of the Russian Federation. The Russian Federation president's message to the Federal Assembly outlined the priorities as we move toward a strong state capable of ensuring conditions for safe development of the individual and protecting him from criminal encroachment. Those who see the idea of a strong state as equivalent to state arbitrariness either are not being honest or simply are not aware of the vitally important needs of modern Russian society. For instance, the need to combat runaway organized crime aimed at seizing command positions in the state. At the same time, boosting the FCS's effectiveness, as well as strengthening the state as a whole, today no longer may be based on the notorious "at any cost" principle. While constantly lamenting the lack of a law-based state and neglect of legal norms, we clearly underestimate the processes of disintegration of totalitarian traditions in Russian society, which actually served as the main pillar of arbitrariness; moreover, they continuously reproduced the need for it. During the memorable times of the Communist Party's political hegemony, the lack of detailed legislation regulating operational work was not considered a serious problem. State security officers were guided mainly by the orders of their superiors, and the latter--by the directives of party honchos (the consequences are well known). Currently the situation is already different. The very meaning of what is commonly called military discipline is changing. It no longer represents a lever one may use arbitrarily, outside of boundaries of the law. Let us put it straight: The current legal base is far from perfect. What we have so far is only the foundations for regulating special services' activities. There are many unresolved issues. In special services' practical activities, a collision frequently arises between political, operational expediency and prohibitions imposed by legal acts. Undoubtedly a contradiction between expediency and legality must be resolved in favor of the latter; however, neither should the latter be reduced to democratic slogans: It must ensure that we move along the road of long development of democratic society and remove the obstacles encountered along this road. Russian legislation is oriented to a greater extent toward protection of citizens' rights than toward giving special services freedom of action. In principle, this is correct. However, shifting the center of gravity in the matter of ensuring the vitally important interests of the individual, society, and the state at the expense of the latter, without taking into account concrete realities in the life of our society, may in the final analysis jeopardize the security of the individual as well. The priority for our lawmakers is to find the balance which would allow human rights to be guaranteed and at the same time ensure effectiveness of law enforcement organs' activities. There are problems in this respect that require their immediate attention. I will give just one small illustration. The law on operational-investigative activities permits listening to telephone conversations only with respect to a specific person, regarding whom there is information that he is at the stage of preparation of an especially grave crime or has already committed one. But what does one do if such an individual has not yet been identified? The simplest example are foreign special service stations, which operate, as high-ranking officials of foreign services contend, under the cover of embassies in Moscow. Naturally, foreign intelligence officers do not register themselves as such; they must be identified, and, given their skills, accomplishing this through regular methods is a hopeless undertaking. It is a vicious circle: In order to identify a specific individual, who intends to commit a violation of the law, an operational-technical measure is needed. But in order to obtain permission to conduct such, it is necessary to have valid information that the specific person has violated the law. There are also other examples of the impossibility of effectively conducting a counterintelligence investigation among criminals. You may ask: Then how did counterintelligence act in these circumstances? It varied, depending on the point of view of the procurator who issued the sanction. Since the new constitution has gone into effect, operational-technical measures involving individual rights are conducted on the basis of a court decision. Questions arise, however: In obtaining such a decision, is it permissible to present materials obtained as evidence for court consideration, as is done in many countries? Within the framework of which procedure? These questions, which define the specificity of special services' work, remain unanswered. On the other hand, neither are legal departments of security organs very active in helping lawmakers find a way to resolve these problems. Those abroad, on the other hand, actively seek ways to influence Russia's leadership in the direction of "fundamental reform of Russian special services." For instance, the Heritage Foundation on commission from the U.S. Congress has drafted a document with recommendations of how to bring activities of Russian special services into line with Western standards. The document proposes modification of normative acts covering counterintelligence activities, specifically, for it to stop monitoring foreign citizens' travel inside the country and cut down on the use of covert sources of information. It also recommends urging the Russian leadership to publish as soon as possible drafts of new laws regarding special services' activities and their financing. We, too, want clear legal regulation and civilized methods of special services' operations, but of course on a parity basis. For instance, a kind of gentlemen's agreements are reached between special services of some countries on methods that preclude violence. As to a common espionage practice--recruitment and use of agents, use of technical means for penetration and information-gathering, and so on--everything in this respect is the same as before. No agreements will remove the eternal problem of espionage. In any case it is hard to imagine reaching such agreements with terrorist organizations, organized crime groups involved in illegal arms trading and drug trafficking, and illegal armed formations. Thus, what our counterintelligence lacks is not a civilized demeanor, but rather aggressiveness, initiative, and concentration on the greatest threats to the state. The practice of years past, when, for instance, counterintelligence officers were sent to monitor compliance with trade regulations in stores and maintain order in the streets, and lately to inspect motor vehicles in search of contraband, should be completely eliminated. Special services are an expensive item for society, and therefore they must produce the maximum return. The task of counterintelligence is to select several targets that are commensurate with its great capabilities, and try to hit them. Strictly speaking, some of the tasks included in the Statute on the Federal Counterintelligence Service are not really counterintelligence but rather belong in the sphere of domestic intelligence, and all of them are part of the sphere of state security. One may argue to what extent the agency's name reflects the range of tasks it is charged with. Still, I think that this is not the main problem. The main issue is what place the FCS should take among special services in order to successfully carry out its functions. The first thing one notices in reading the statute is a certain crossover of FCS authority and that of a number of other special services, as well as of law enforcement organs. There is a temptation to concentrate efforts, for instance, on suppression of corruption in one agency--for instance, the MVD [Ministry of Internal Affairs]. But then by the same criterion the tax police should be merged into this ministry, although this is not done anywhere in the world. The simplicity of such solutions is deceptive, since the sphere of law enforcement needs a certain margin of safety. The danger of duplicating activities between special structures may be overcome by increasing the degree of their coordination and, so to say, dividing spheres of interest. There are examples of this both in our practice and foreign practice. For instance, thanks to existing agreements no particular conflicts arise between services engaged in intelligence gathering (the FIS, the GRU [Main Intelligence Directorate], the FCS, and others). A good example is the U.S. FBI, which over the past few years has concentrated its efforts--thus making it different from other law enforcement organs--on penetrating the top organizational echelons of the drug mafia. In addition, while considering the advantages of concentrating all special forces along selected directions, we also cannot dismiss another point of view presented by a number of responsible politicians, who emphasize the lack of a sensible balance of forces among organs of internal affairs and security. Thus, in an organizational sense and in the matter of interaction with other agencies the FCS occupies its own specific niche in the system of special services. What remains is the issue of coordination, but this is achievable on the basis of the existing system of working liaison between agencies participating in this work. In keeping with the FCS Statute, counterintelligence organs are subordinated directly to the head of state--the guarantor of the Constitution of the Russian Federation, and hence its sovereignty, independence, and territorial integrity. Their independence from local authorities is quite justified by the specificity of the period our country is going through and gives it sufficient freedom of action for aggressive offense against corrupt groups and anticonstitutional manifestations. Some corrections regarding counterintelligence could be made through the law on counterintelligence which is currently being drafted. In particular, it involves investigation of espionage cases. Counterintelligence needs a reliable, professionally trained investigative staff that specializes along these lines; this is a necessity, not a sign of the FCS's punitive functions. During the confirmation of the FCS Statute there were debates on this matter and, it is becoming clear, it has not been fully resolved. The idea of creating an investigative committee remains an idea, while skilled cadres capable of investigating complicated cases remain unutilized. Perhaps we should come back to this problem once again. Consider it, weigh all the pros and cons, and prepare proposals. The organizational, legal, financial, and material-technical conditions being put in place for the FCS are only half of the matter. The main part is a trained corps of counterintelligence professionals, without whom it will not be possible to get the activities of this service going effectively, meeting the demands of modern Russian statehood. Certification of Russian counterintelligence cadres has been completed recently; it showed that the FCS has sufficient potential. Evidence of this, among other things, is the recent successes in disrupting the activities of German and British agents in Russia. Any counterintelligence operation requires a lengthy preparation stage; therefore, the latest of the publicly known successes of our counterintelligence are the result of the painstaking activities that preceded them. Whether there are many such successes or not is another matter. The times when an NKVD [People's Commissariat for Internal Affairs] oblast administration received a quota for catching a certain number of Australian, Mexican, Thai, or other spies--which was always met and exceeded--are past. But if we compare the current effectiveness of counterintelligence work in Russia and, for instance, the United States, the achievements are roughly comparable. With respect to other lines of work, however, Russian counterintelligence still has a long way to go.
"Feel the Difference"
Almost none of those who support the creation of a law-based state argue, for instance, the need for a democratic state to have such a special service as foreign intelligence. No wonder. Intelligence organs as a rule do not work against their own citizens--their activities are aimed outside, and this situation almost everywhere is codified in the law. This means that when the interests of the state do not conflict sharply with the interests of its citizens, as is the case with intelligence, the problem of special services violating rights and freedoms does not look all that topical. The main heat of criticism is reserved for domestic intelligence used in combating terrorism, organized crime, etc., as well as counterintelligence. But while the former, which is frequently associated with political surveillance, is simply rejected as an instrument of a totalitarian state, counterintelligence seemingly is permitted to exist but under a constant fire of criticism from all sides: from the authorities--for being passive in uncovering and preventing internal threats against the state; and from the public--for attempts to expand its sphere of functions. Against this background the public is offered time and again novel but rather lightweight reasoning on the ways to reorganize Russia's security organs. In it, the authors usually work mainly from two premises: the need to remove the threat to democracy presented by the heirs of "competent organs" and foreign experience of building a special service. Let us leave aside at this point deliberate attempts to mislead the public. The reason the authors of reform schemes do not understand the substance of the issue, in my opinion, is that they apparently incorrectly formulate their goal. After all, if the goal is to remove a potential threat presented by special services, the easiest way to achieve it is to liquidate them. In other words, the best cure for a headache is the guillotine. If, however, the task is to create a democratic state that possesses all means of maintaining its stability, the solution should be sought in the balance of strength and efficiency of special organs and the ability to keep them under control. In this, it would be wrong to disregard extensive foreign experience--without, of course, succumbing to the other extreme of automatically copying other models without consideration for the important special features of Russian reality. Since there is an opinion that MOSKOVSKIY KOMSOMOLETS forecasts usually come true, let us take as an example information received by the newspaper from a "reliable" source about potential disbandment of the FCS and the transfer of its component administrations to various ministries and agencies. (Actually, this version was mentioned in other publications as well.) The economic counterintelligence administration allegedly will go to the Ministry of the Economy. The counterintelligence operations administration will find its rightful place in the Ministry of Justice and will become something like a Russian FBI. Everything almost like in the United States. But that is the point--almost. It would be appropriate to recall that many ministries which have similar or even identical names here and abroad carry out different functions. For instance, the U.S. Department of the Interior deals with land development, management of natural resources, and is in charge of natural preserves. The American Department of Justice is more like the Russian general procuracy. It is responsible first and foremost for monitoring compliance with federal laws, represents federal organizations in civil litigation, and acts as a prosecutor when violations of the law are committed. By the way, the head of this organization is at the same time, using our terminology, the general procurator of the United States of America. "Feel the difference," as the famous commercial tells us. Besides, the FBI, strictly speaking, is not so much counterintelligence, which is the task of only one of the bureau's many services, as it is a special combination of a special service and a law enforcement organ. Along with counterespionage, the FBI's tasks include: combating bank robberies, aircraft hijacking, bribery, and corruption; kidnapping investigations; and other functions. Thus, implementing the project "Let Us Do As They Do in the West" may lead to the situation described in a fairy tale, where the genie Khottabych made a precious-metal telephone apparatus. It looks like a real one, but you cannot make a call on it. This is the kind of "counterintelligence apparatus" we may get under this version. In order to avoid this we would have to make dramatic modifications to the functions of the Ministry of Justice, special services, and law enforcement organs. But this is already reorganization on a much greater scale, which will demand an all-out reshaping of the structure of executive authority. When are we to work then? And how much will such a "reorganization"--performed for the sole purpose of bringing it more or less closer to the American original--cost the taxpayer? Continuing the polemics with such a proposal, it would make sense to ask one more, most important, question: Will such a structure work effectively in our conditions? An example of a more or less successful reorganization of security organs along Western models is the separation of the Foreign Intelligence Service into an independent agency. The relatively low cost of this undertaking (and there is cost attached to everything) is the result first and foremost of the fact that its predecessor--the First Chief Directorate--had quite considerable autonomy even when it was part of the KGB. The Border Troops were split into a separate service without any particular complications for the same reason. However, such a straightforward "improvement" of counterintelligence is impermissible. First, even within one counterintelligence service, coordination of activities against diverse foreign services aiming at different objects and persons in Russia already represents a rather complex problem, which even now is being handled with difficulty. What will happen then if counterintelligence were broken up into independent agencies responsible for individual foreign services or objects or, even worse, both attributes at the same time? A complex and very expensive setup for control and coordination of all domestic special services will be required--something like a Ministry of Coordination. Second, in additional to actual operational units, counterintelligence has support units--such as technical support for operations--which in their current state simply cannot be divided. This means that additional money will be needed to create their own, "pocket" technical services, or the aforementioned units will have to be given the status of interagency bodies, with the resulting need for an additional bureaucratic structure. The situation is the same with respect to reference records and information funds, dividing which and subsequently working with them presents an awesome problem. Third, what do we do about local counterintelligence organs in republics, krays, and oblasts? Divide them by offices-"departments"? In principle, we could experiment, using any model of building a system of national security organs--German, American, French, or some other. But this is a costly undertaking for our current situation, with the Ministry of Finance trying to save every ruble. It is even more impermissible in the atmosphere of political instability, where each imprudent move causes thunderous reverberations. Reforming the special services is normal practice even in the life of states where democracy is an established practice and problems of distribution of authority have been resolved. But nowhere in the world will we find reorganization for the sake of reorganization. New geopolitical realities and the emergence of new threats after the end of the "cold war"--all this requires from any state greater attention to special structures. Reorientation of special services is quite natural. The organizational capabilities, technical equipment, and financial resources of criminal organizations in a number of instances are on par with those of the intelligence services of some countries. For instance, the income of South American drug cartels is comparable to the budget of the U.S. CIA. One can hardly hope to successfully uncover and disrupt extremely secret activities of criminal groups without using special methods and means. One can hardly find a country these days where the tasks of special services, as well as organizational methods of carrying them out, are not being revised to some or other extent. Our country is no exception in this respect. It has tried a great variety of forms--from the VChK [All-Russian Special Commission for Combating Counter-Revolution, Sabotage, and Speculation], OGPU [United State Political Directorate], NKVD, NKGB [People's Commissariat for State Security], MGB [Ministry of State Security], and KGB to MSB [motorized-rifle battalion], AFB [Agency for Federal Security], MBVD [Ministry of Security and Internal Affairs], MB [Ministry of Security], and finally FCS. There have also been attempts to merge the special services with neighbor organizations. For instance, an Information Committee under the USSR MFA [Ministry of Foreign Affairs] was created and functioned, and even had its own intelligence school. One can only be amazed at the variety of forms. It seems that only the word "bureau" (if we leave aside the Komintern [Communist International] intelligence service) has not been used in the names of domestic security organs. It is a rare ministry or agency that can boast a history so replete with numerous transformations. It is expected that we learn lessons from the past. One of them is that any reform, in addition to planned positive results, inevitably produces negative ones as well. First of all, with respect to cadres. A special service is not just buildings, equipment, and methods of operation--it is first and foremost professionals. If they leave, succession is broken; the ability to self-reproduce is lost, which is absolutely counterproductive for a self-contained organization, which special services always are. One must also mention persons who assist security organs, including on a covert basis. Successful use of a covert agent network, without which special services' operations are impossible, is predicated first and foremost on public awareness of the tremendous role of these specific state structures, which they play in protecting the civil society. Let us draw some conclusions. For instance, how delicate is the sphere of national security, which to a considerable extent is linked with the general problem of distribution of authority in a state. That society's expectations, its reserve of patience, have reached the limit, and we cannot make any more mistakes. That each reorganization is another trial for professionals, and that an organizational failure, which practically undermines the authority of counterintelligence, is the worst propaganda anyone could conceive. Thus, we can hardly qualify as an informational or analytical breakthrough of some mass media the fact that they regularly spin out a version of another reorganization of the FCS. Let us emphasize that standards for special services' work are set not on the basis of theoretical models and foreign analogies, but are based on the existing state system and the tasks the state is dealing with at any particular moment in history. How and with what resources counterintelligence organs will be handling the task of ensuring national security, and what changes are necessary in the FCS structure must be defined, among other things, also at the initiative and with the direct participation of the counterintelligence service itself. On the whole, however, it may be said that the task of reorganization has been solved by the Russian Federation President's Edict No. 19 of 5 January 1994, which approved the Statute on the Federal Counterintelligence Service. These documents protect Russian special services from "cavalry attacks," from destructive temptations--wherever they may come from. It may be a paradox, but they complete the succession of continuous transformations of special services that has long acquired the attribute of ill-conceived perpetuality. The meaning of these decisions is to protect the structure necessary for society and the state from emotional, incompetent, faddish changes; to create conditions not for future reorganizations but for normal work of the Federal Counterintelligence Service in the new situation.
Access to Special Kitchen?
It is obvious that a strong state needs strong special services. For a country that wants to strengthen the state foundation, the might of the special services must be commensurate with the obstacles that will have to be overcome along this road. However, in order for special services themselves not to become such an obstacle, their activities must be subject to strict state and public oversight. The creation of such oversight is a problem for any state, since it inevitably conflicts with such an attribute of any special service as secrecy. We know, for instance, of a recent incident involving Lady N., head of the British MI-5 counterintelligence service, whom the press "tracked down" after her name was made public. In their evaluation, it would present no difficulty for numerous terrorist groups in the country to organize a kidnapping of Great Britain's counterintelligence chief from her home. This scandalous incident is another argument in favor of those who insist on preserving the British tradition of complete secrecy when it comes to special services and their personnel. British law sets very strict limitations on public access to the special services' "kitchen." For instance, it is considered a crime for any staff member (including former) to make public any information about his organization. Even committed by a regular civil servant, disclosure of information on special services may fall under a criminal statute. There is also liability for disclosing information concerning the activities of intelligence and counterintelligence organs if such a disclosure is made abroad. If we had such laws, perhaps this article could not be published. Nevertheless, the British taxpayer is not deprived of the ability to find out through parliament what his money is spent on in the case of special services. Let us note, however, that Westminster is in no hurry to introduce broad parliamentary oversight of special services and relies on a very small circle of persons who have access to the shrine, first and foremost the prime minister, who is personally responsible for the organization of activities and oversight of special organs. We should not blindly copy any democratic experience, but it makes sense to study it. Especially considering that we do not have our own traditions in this sphere. Therefore I would like to warn those who advocate comprehensive deputy oversight: A special service that is under open oversight is finished. In this respect, our lawmakers must accomplish extremely delicate work in creating and fine-tuning an appropriate oversight mechanism, and certainly do so in interaction with the judiciary and executive authorities. Within the boundaries of his authority, the president of the Russian Federation not only organizes the activities of main Russian special services, including the FCS, but also conducts oversight, and is responsible for them before society and the state. * * * Special services per se are not a threat to democracy and society. The threat stems from the desire to subordinate their activities to any one political force or, worse, political or nationalistic clan or group. In order to keep this from happening in Russia, each branch of authority should provide in an appropriate form a legal base for the activities of intelligence and counterintelligence structures. However, these structures, too--and first and foremost the Federal Counterintelligence Service that "came in from the cold"--will have to make a tremendous effort as well.