NOTE: THIS IS NOT GOOD!
yahoo News : http://za.news.yahoo.com/south-africas-china-moment-spies-bid-powers-220000219.html
A storm is brewing over a draft Bill to be processed by Parliament this year that will legalise the bugging of citizens without a warrant in some circumstances and widen the scope of "counterintelligence" activities.
The Intelligence General Laws Amendment Bill has been attacked as "a major U-turn in government policy" and for largely ignoring the recommendations of the 2008 Matthews Commission, which highlighted unconstitutional provisions in South Africa's intelligence laws.
Against the backdrop of other planned legislation that bolsters spies and weakens civil society, including the Protection of State Information Bill (the secrecy Bill), fears were expressed that the legislation is part of a broader drift towards a "security state" under President Jacob Zuma.
It is seen as marking the transformation from an intelligence mindset where the intelligence services are neutral gatherers of information which is passed to the executive to adjust policy or take action, to a state security mindset in which the agency views its role as countering "enemies of the state".
Published in the Government Gazette late last year, the Bill seeks to create a single intelligence body, the State Security Agency (SSA), by amalgamating existing intelligence structures, including the National Intelligence Agency (NIA) and the South African Secret Service (SASS).
It also gives legal recognition to the little-known National Communications Centre, which has the capacity for bulk interception of communications and will be subject to minimal legal restraint. The NIA is responsible for domestic intelligence gathering and the SASS for intelligence gathering abroad.
'Excessively secretive'
This week intelligence expert Laurie Nathan, director of Pretoria University's Centre for Mediation, called for the Bill to be the subject of public hearings and added that the joint standing committee on intelligence, whose members would dominate the ad hoc committee that would process the Bill, was "excessively secretive".
"The parliamentarians on this committee are reluctant to play a rigorous oversight role, which is their constitutional obligation, and there's a failure to involve Parliament and the public in the oversight process," Nathan said. The standing committee had refused to discuss the Matthews Commission report on the grounds that "it had not been properly presented to Cabinet by former intelligence minister Ronnie Kasrils", he said.
Nathan served on the commission.
Standing committee chairperson Cecil Burgess, who also led Parliament's ad hoc committee on the secrecy Bill, could not be contacted for comment this week.
Brian Dube, spokesperson for State Security Minister Siyabonga Cwele, said on Thursday that the Matthews report had been taken into account in drafting the Bill, which was "a critical step in the quest to provide a sound legal footing for government's efforts to develop a new intelligence dispensation … geared for the dynamic and evolving challenges of the 21st century".
The Bill amends three existing intelligence laws and repeals another to accommodate the establishment of the SSA. Its purpose, it says, is "to address the proliferation of security structures" that had "the unintended consequence of duplicating several support functions" and "a negative effect on service delivery of the intelligence services".
However, the proposed concentration of power prompted complaints by the Democratic Alliance's spokesperson on intelligence, David Maynier, that the government was reversing the approach of the 1995 white paper on intelligence, which stated that the most significant departure from the apartheid dispensation was that, "instead of one centralised, national civilian intelligence organisation, there will
be two".
This arrangement, according to the white paper, "will not only ensure that the new intelligence dispensation in South Africa corresponds with general international trends but will promote greater focusing, effectiveness, professionalism and expertise in the specialised fields of domestic and foreign intelligence".
Maynier, one of the DA's representatives on the ad hoc committee, said his party was still studying the legislation.
Boss is back
"But," he said, "it takes us back to the bad old days of the Bureau for State Security -- Boss is back.
"What worries me is that there seems to be a process of 'Stasification' under way in the state security department. The spooks appear to be becoming more centralised, more politicised and more secret."
Likely to cause controversy is a provision in the Bill allowing the SSA to intercept "foreign signals intelligence". This will, for the first time, provide a legal basis for the work of the National Communications Centre, an obscure, high-tech facility set up in Gauteng in the 1990s. By 2008 it boasted a staff complement of about 300.
The centre's telecommunications and computer equipment can intercept and analyse large volumes of voice and internet traffic, both indiscriminately by listening for keywords and in a targeted way by focusing on individual phone numbers, email addresses and even voice prints.
To date, the centre has operated outside national legislation, including the Regulation of Interception of Communications and Provision of Communication-related Information Act (Rica), which allows interception only with a judge's warrant. It has relied on the loophole that it supposedly intercepts "foreign" communications only, which is not regulated by domestic law.
Et tu, Twitter?
However, in practice, the centre has defined "foreign signals" to include cross-border communications where one of the parties is in South Africa and the other abroad. And, because of the globalised nature of internet traffic, many emails, voice-over-internet conversations and communication via social media such as Facebook and Twitter -- even if both end parties are in South Africa -- would also be vulnerable.
The current Bill attempts to introduce a definition of "foreign signals intelligence" that will allow the warrant-free tapping of cross-border communications to continue. The definition includes "any communication that emanates from outside the borders of the Republic or passes through or ends in the Republic".
The centre's capabilities have been abused in the past to target South African citizens. The 2005/2006 investigation by Zola Ngcakani, inspector general of intelligence, of the "hoax emails" saga -- an example of the intelligence services being dragged into the ANC succession battle -- found that the centre had been used to target individuals domestically.
Nathan said this week that he was concerned that the Bill failed to address other constitutional defects identified by the commission, including the failure of intelligence statutes to regulate all intrusive operations.
Merely by its definition of key terms, the draft legislation conferred “substantive powers on the intelligence services”, he said.
Widening definitions
An analysis of successive intelligence laws underlines the gradual widening of the counterintelligence function in legislation.
The National Strategic Intelligence Act of 1994 defines counterintelligence as "measures and activities conducted, instituted or taken to impede and to neutralise the effectiveness of foreign or hostile intelligence operations, to protect classified intelligence and to counter subversion, sabotage and terrorism aimed at, or against personnel, strategic installations or resources of the Republic".
This was amended in 2003 to extend the protection of intelligence from classified intelligence only to any intelligence, to add treason to the activities to be countered, and to add security screening to the counter-intelligence function.
The current Bill broadens the concept of counterintelligence by adding sedition to the activities to be countered, widens "terrorism" to "terrorist and related activities", and removes the requirement that the subversion, sedition, treason, terrorist and related activities must be directed at personnel, installations or resources of the state.
Nathan said that a further problem was that the terms "impede", "neutralise" and "counter" were not defined.
But in one respect, the Bill was an improvement on existing intelligence law, Nathan said: it borrowed almost verbatim the definition of national security proposed by the Matthews Commission. This excluded "lawful political activity, advocacy, protest or dissent" from the list of threats to national security.
* Got a tip-off for us about this story? Email amabhungane@mg.co.za
A letter of understanding was issued by Lungisa Fuzile, the treasury director general, on January 24, paving the way for the investigators to begin their work.
Fuzile confirmed the letter to the Mail & Guardian, but said the treasury was "not in a position to comment on the investigation". He referred the M&G to the SIU, which was not prepared to comment.
This is the first time treasury has commissioned the SIU to investigate irregularities in the province. It follows a decision by the Cabinet on December 8 last year to effectively take over the cash-strapped Limpopo government and bring five of its 11 departments under administration.
Within weeks of the books being opened, the province was declared bankrupt and a trail of maladministration and gross abuse of public funds uncovered.
Considerable overlap
It is expected that there will be considerable overlap between the SIU investigation instigated by treasury and the probes that are already under way into the financial affairs and business dealings of ANC Youth League president Julius Malema who, together with his friend and political ally Premier Cassel Mathale, is highly influential in the province.
The two have been linked to a string of companies that have been trading off the public purse for a number of years. Last year the M&G revealed how On-Point Engineering, part-owned by Malema, had secured a programme management contract at the provincial transport department through which tenders were doled out to friends and party cronies, as well as to business partners of Mathale.
The M&G later exposed attempts on Malema's part to pressurise staff at the local health department to pay out on multimillion-rand contracts that were being investigated for fraud. Both men have also built impressive property portfolios and lived lavish lifestyles that eventually demanded scrutiny.
The SIU has not been given a deadline to complete the latest probe and it is too early to predict what consequences, if any, its findings might have.
However, in a recent radio interview, Finance Minister Pravin Gordhan said "there certainly will be consequences if there is wrongdoing, including putting people through the necessary disciplinary processes or criminal processes".
It first had to be established "whether the evidence really strongly and decisively takes us in that particular direction".
Gordhan is due to brief the National Council of Provinces on the intervention and its progress in Parliament on Thursday.
The Intelligence General Laws Amendment Bill has been attacked as "a major U-turn in government policy" and for largely ignoring the recommendations of the 2008 Matthews Commission, which highlighted unconstitutional provisions in South Africa's intelligence laws.
Against the backdrop of other planned legislation that bolsters spies and weakens civil society, including the Protection of State Information Bill (the secrecy Bill), fears were expressed that the legislation is part of a broader drift towards a "security state" under President Jacob Zuma.
It is seen as marking the transformation from an intelligence mindset where the intelligence services are neutral gatherers of information which is passed to the executive to adjust policy or take action, to a state security mindset in which the agency views its role as countering "enemies of the state".
Published in the Government Gazette late last year, the Bill seeks to create a single intelligence body, the State Security Agency (SSA), by amalgamating existing intelligence structures, including the National Intelligence Agency (NIA) and the South African Secret Service (SASS).
It also gives legal recognition to the little-known National Communications Centre, which has the capacity for bulk interception of communications and will be subject to minimal legal restraint. The NIA is responsible for domestic intelligence gathering and the SASS for intelligence gathering abroad.
'Excessively secretive'
This week intelligence expert Laurie Nathan, director of Pretoria University's Centre for Mediation, called for the Bill to be the subject of public hearings and added that the joint standing committee on intelligence, whose members would dominate the ad hoc committee that would process the Bill, was "excessively secretive".
"The parliamentarians on this committee are reluctant to play a rigorous oversight role, which is their constitutional obligation, and there's a failure to involve Parliament and the public in the oversight process," Nathan said. The standing committee had refused to discuss the Matthews Commission report on the grounds that "it had not been properly presented to Cabinet by former intelligence minister Ronnie Kasrils", he said.
Nathan served on the commission.
Standing committee chairperson Cecil Burgess, who also led Parliament's ad hoc committee on the secrecy Bill, could not be contacted for comment this week.
Brian Dube, spokesperson for State Security Minister Siyabonga Cwele, said on Thursday that the Matthews report had been taken into account in drafting the Bill, which was "a critical step in the quest to provide a sound legal footing for government's efforts to develop a new intelligence dispensation … geared for the dynamic and evolving challenges of the 21st century".
The Bill amends three existing intelligence laws and repeals another to accommodate the establishment of the SSA. Its purpose, it says, is "to address the proliferation of security structures" that had "the unintended consequence of duplicating several support functions" and "a negative effect on service delivery of the intelligence services".
However, the proposed concentration of power prompted complaints by the Democratic Alliance's spokesperson on intelligence, David Maynier, that the government was reversing the approach of the 1995 white paper on intelligence, which stated that the most significant departure from the apartheid dispensation was that, "instead of one centralised, national civilian intelligence organisation, there will
be two".
This arrangement, according to the white paper, "will not only ensure that the new intelligence dispensation in South Africa corresponds with general international trends but will promote greater focusing, effectiveness, professionalism and expertise in the specialised fields of domestic and foreign intelligence".
Maynier, one of the DA's representatives on the ad hoc committee, said his party was still studying the legislation.
Boss is back
"But," he said, "it takes us back to the bad old days of the Bureau for State Security -- Boss is back.
"What worries me is that there seems to be a process of 'Stasification' under way in the state security department. The spooks appear to be becoming more centralised, more politicised and more secret."
Likely to cause controversy is a provision in the Bill allowing the SSA to intercept "foreign signals intelligence". This will, for the first time, provide a legal basis for the work of the National Communications Centre, an obscure, high-tech facility set up in Gauteng in the 1990s. By 2008 it boasted a staff complement of about 300.
The centre's telecommunications and computer equipment can intercept and analyse large volumes of voice and internet traffic, both indiscriminately by listening for keywords and in a targeted way by focusing on individual phone numbers, email addresses and even voice prints.
To date, the centre has operated outside national legislation, including the Regulation of Interception of Communications and Provision of Communication-related Information Act (Rica), which allows interception only with a judge's warrant. It has relied on the loophole that it supposedly intercepts "foreign" communications only, which is not regulated by domestic law.
Et tu, Twitter?
However, in practice, the centre has defined "foreign signals" to include cross-border communications where one of the parties is in South Africa and the other abroad. And, because of the globalised nature of internet traffic, many emails, voice-over-internet conversations and communication via social media such as Facebook and Twitter -- even if both end parties are in South Africa -- would also be vulnerable.
The current Bill attempts to introduce a definition of "foreign signals intelligence" that will allow the warrant-free tapping of cross-border communications to continue. The definition includes "any communication that emanates from outside the borders of the Republic or passes through or ends in the Republic".
The centre's capabilities have been abused in the past to target South African citizens. The 2005/2006 investigation by Zola Ngcakani, inspector general of intelligence, of the "hoax emails" saga -- an example of the intelligence services being dragged into the ANC succession battle -- found that the centre had been used to target individuals domestically.
Nathan said this week that he was concerned that the Bill failed to address other constitutional defects identified by the commission, including the failure of intelligence statutes to regulate all intrusive operations.
Merely by its definition of key terms, the draft legislation conferred “substantive powers on the intelligence services”, he said.
Widening definitions
An analysis of successive intelligence laws underlines the gradual widening of the counterintelligence function in legislation.
The National Strategic Intelligence Act of 1994 defines counterintelligence as "measures and activities conducted, instituted or taken to impede and to neutralise the effectiveness of foreign or hostile intelligence operations, to protect classified intelligence and to counter subversion, sabotage and terrorism aimed at, or against personnel, strategic installations or resources of the Republic".
This was amended in 2003 to extend the protection of intelligence from classified intelligence only to any intelligence, to add treason to the activities to be countered, and to add security screening to the counter-intelligence function.
The current Bill broadens the concept of counterintelligence by adding sedition to the activities to be countered, widens "terrorism" to "terrorist and related activities", and removes the requirement that the subversion, sedition, treason, terrorist and related activities must be directed at personnel, installations or resources of the state.
Nathan said that a further problem was that the terms "impede", "neutralise" and "counter" were not defined.
But in one respect, the Bill was an improvement on existing intelligence law, Nathan said: it borrowed almost verbatim the definition of national security proposed by the Matthews Commission. This excluded "lawful political activity, advocacy, protest or dissent" from the list of threats to national security.
* Got a tip-off for us about this story? Email amabhungane@mg.co.za
A letter of understanding was issued by Lungisa Fuzile, the treasury director general, on January 24, paving the way for the investigators to begin their work.
Fuzile confirmed the letter to the Mail & Guardian, but said the treasury was "not in a position to comment on the investigation". He referred the M&G to the SIU, which was not prepared to comment.
This is the first time treasury has commissioned the SIU to investigate irregularities in the province. It follows a decision by the Cabinet on December 8 last year to effectively take over the cash-strapped Limpopo government and bring five of its 11 departments under administration.
Within weeks of the books being opened, the province was declared bankrupt and a trail of maladministration and gross abuse of public funds uncovered.
Considerable overlap
It is expected that there will be considerable overlap between the SIU investigation instigated by treasury and the probes that are already under way into the financial affairs and business dealings of ANC Youth League president Julius Malema who, together with his friend and political ally Premier Cassel Mathale, is highly influential in the province.
The two have been linked to a string of companies that have been trading off the public purse for a number of years. Last year the M&G revealed how On-Point Engineering, part-owned by Malema, had secured a programme management contract at the provincial transport department through which tenders were doled out to friends and party cronies, as well as to business partners of Mathale.
The M&G later exposed attempts on Malema's part to pressurise staff at the local health department to pay out on multimillion-rand contracts that were being investigated for fraud. Both men have also built impressive property portfolios and lived lavish lifestyles that eventually demanded scrutiny.
The SIU has not been given a deadline to complete the latest probe and it is too early to predict what consequences, if any, its findings might have.
However, in a recent radio interview, Finance Minister Pravin Gordhan said "there certainly will be consequences if there is wrongdoing, including putting people through the necessary disciplinary processes or criminal processes".
It first had to be established "whether the evidence really strongly and decisively takes us in that particular direction".
Gordhan is due to brief the National Council of Provinces on the intervention and its progress in Parliament on Thursday.
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