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Italy: Law reforms intelligence services

28 March 2012

The new intelligence services law received its unanimous final approval in the senate's constitutional affairs committee on 1 August 2007. This follows a long catalogue of scandals including involvement in CIA renditions, unlawful monitoring of the activities of politicians, authorities, businessmen and, most recently, lawyers, members of the judiciary and NGOs, and the planting of scares and false information in the media while having journalists as paid informants. SISMI, the military intelligence service, had been at the centre of the scandals, and its director Nicolò Pollari, who is on trial in connection with the Abu Omar rendition, was replaced in November 2006.

The concerns raised by the scandals and judicial proceedings involving the intelligence services among the political class were two-fold: on the one hand, there was the degree of autonomy that allowed the carrying out of activities straying from their remit, such as renditions, misinformation, including the misleading of judicial investigations and unlawful information gathering and surveillance activities resulting in the compiling of dossiers; on the other, the embarassment and loss of credibility caused by judicial proceedings, increasingly serious revelations and the disclosure of secret or confidential information liable to be harmful for Italy's security, including through the loss of trust in Italian security information services by foreign agencies with which they co-operate.

The new law changes the bodies and institutions tasked with intelligence activities, places them more closely under the prime minister's authority and introduces far more detailed procedures with regards to state secrets, cooperation with police forces and public administrations, judicial investigation of the conduct of secret service personnel and the regulation of the instances and procedure for undertaking acts normally deemed illegal and the acquisition of secret documentation by oversight bodies or judicial authorities, than was previously the case under law 801 of 24 October 1977.

New information system for security

The reform replaces the current intelligence services, SISMI (military secret service, run by the defence ministry), SISDE (for the defence of democratic institutions, run by the interior affairs ministry) and CENSIS (co-ordination, analysis and direction, under the authority of the prime minister's office, which was ultimately responsible for the intelligence structure), with a new "information system for security". It will comprise the Agenzia informazioni e sicurezza esterna (AISE, external information and security agency), Agenzia informazioni e sicurezza interna (AISI, internal information and security agency), the Dipartimento delle informazioni per la sicurezza (DIS, security information department) and the Comitato interministeriale per la sicurezza della Repubblica (CISR, interministerial committee for the security of the Republic), an advisory, proposal and deliberation body establishing policy guidelines and objectives chaired by the prime minister and comprising the ministers for foreign affairs, home affairs, defence, justice and economy, which already existed under the previous law. The DIS general director will act as secretary of this body.

The reform thus changes the structure from one in which SISMI was a barnch of the defence ministry and in charge of information and security activity for the military defence of the state's independence and integrity from any danger, threat or aggression, and SISDE was part of the interior ministry and tasked with defending the democratic state and the integrity of the institutions established by the constitution from anyone intending to attack or subvert them, to one in which the main distinction is between internal and external security. AISE will only be able to conduct activities within national territory in co-ordination with AISI, and the same applies to AISI activities abroad. Neither will be directly run by the military, which will be able to avail itself of the Reparto informazioni e sicurezza dello Stato maggiore della difesa (RIS), which is not part of the "information system for security", and whose function is limited "exclusively" to activities of a technical military and military police nature, particularly with regards to collecting information to protect armed force outposts and activities abroad, in co-ordination with AISE.

The information services (DIS, AISI and AISE) may request cooperation from any public administration and providers of public utilities, which may be logistic, in order to carry out their institutional functions and may stipulate agreements with them, as well as with universities and research bodies. The police, armed forces, judicial police and public security officers and strategic antiterrorist analysis committee are instructed to lend them "any possible co-operation". A procedure is also established for the prime minister to request information covered by the secrecy of proceedings from judicial authorities when these are considered indispensable for the carrying out of the intelligence agencies' functions, which judges may transmit on their own initiative. The law also envisages the adoption of a regulation including provisions to guarantee the information services access to the computer archives of public administrations and public utility providers, with technical means of monitoring what personal data was checked after the event.

The intelligence services are forbidden from employing or commissioning advisory or co-operation services from elected politicans at the European, national, regional and local level, members of governing bodies or constitutional bodies, judges, religious ministers and journalists.

The security information system will be under the direct authority of the prime minister, responsible for appointing their directors (for four-year terms, renewable once) and deputies, for co-ordination, policy and issuing directives, and may appoint a minister or undersecretary to fulfil specified functions pertaining to this role. DIS will co-ordinate the entire security information activity, ensuring unity in the planning of activities to obtain information, analysis and operational activities, promoting information exchanges between AISI, AISE and police forces, while verifying the results obtained by AISI and AISE and presenting annual reports to CISR. It will have an investigation office to verify that security information activities comply with laws and regulations, and with directives and provisions issued by the PM, with powers to conduct internal investigations into specific incidents and conduct, including the correct application of provisions on the protection of secret information.

Clarifying procedures and the regime of state secrets

The commission of illegal acts by intelligence officers, detailed in the law and excluding license to kill, will have to be authorised, case by case, by the PM or delegated authority, on the basis of them being indispensable to carry out the agencies' purposes in compliance with a principle of "special cause for justification" for such conduct, as part of an "authorised operation". Such permission will have to be motivated, in writing, and may be subsequently revoked. In cases of "absolute urgency" that do not allow the normal procedure for authorisation to be followed, agency directors may authorise the activities, informing the PM and DIS "immediately", and explaining the reasons for such a course of action.

The principle of justification is not applicable to actions:

"endangering or harming life, physical integrity, individual personality, personal freedom, moral freedom, the health or safety of one or more people".

The "special cause for justification" is based on an activity being "indispensable" to secure an operation's objectives, "proportional", involving a public and private interest assessment, and being carried out in such a way as to cause minimum possible harm to the affected parties. Activities that are normally illegal are forbidden in the offices of political parties, in regional parliaments or councils, trade union offices, or if they target professional journalists. This special justification is not applicable to offences against the administration of justice, unless they are conducts of "aiding and abetting" that are indispensable for the institutional purposes of the intelligence services and comply with procedures, except for cases involving false testimony before judicial authorities, concealing evidence of a crime or where there is an intention to mislead investigations. If unlawful actions are carried out on behalf of the intelligence services by people who are not part of them, and their co-operation was indispensable and complied with procedures, they will have the same guarantees as intelligence officers. Three to ten-year prison sentences are envisaged for officers who illegally fix the conditions for such an authorisation to be granted.

If such authorised illegal actions lead to preliminary judicial investigations, court hearings or trial, the corresponding agency director tells the judicial authority about the existence of "special cause for justification", and the latter will ask the PM to confirm whether this is the case, while safekeeping the secrecy of related documents. The PM has ten days to respond, detailing the reasons for such authorisation, if it exists. In this case, proceedings are shelved or defendants are acquitted. When an agent declares that the activity was authorised at the moment of their arrest or when they are caught in the act, they are held in judicial police offices "for the minimum necessary time", and no more than 24 hours, while DIS is asked to confirm this circumstance.

Norms are also introduced allowing the use of false identities by intelligence service officers or the carrying out of false economic activities. The collection and processing of information must be carried out exclusively to pursue the security information system's objectives, and three to ten-year sentences may be incurred for compiling illegal dossiers outside of this precept, with secret archives also forbidden.

State secret status will cover:

"documents, news, activities or any other thing"

whose disclosure may be liable to harm the state's integrity, including with regard to international agreements, to the defence of institutions, to the independence of the state in relation to others, and with regards to its relationship with other states, and to the military preparation and defence of the state. Only authorities responsible for carrying out indispensable functions in relation to these informations or "things" will be made aware of them, and the documents will be stored in such a way as to prevent their manipulation, removal or destruction. Declaring news, documents, acts or "things" a state secret, lasting for 15 years, renewable to 30, will be the PM's exclusive prerogative, and may not be applied to activities involving subversion or to attacks aimed at causing deaths. The PM may remove the requirement of secrecy when the reasons motivating it no longer apply. The same happens following consultation with the interested parties, in the case of information covered by international agreements or affecting the interests of foreign states or international organisations, unless exceptionally serious reasons prevent this.

Information and acts concerning terrorism or subversion against institutions are excluded from the regime of state secrets, and the Constitutional Court may not be denied access to documents on the basis of them being state secrets. Provisions on the state secrets regime envisage an Ufficio Centrale per la Segretezza (UCSe, central office for secrecy) set up as part of DIS to organise and control the application of norms on the protection of state secrets with power to issue special permits to consult security information to screened individuals offering "certain reliability of scrupulous loyalty to the institutions… and rigorous respect for secrecy".

Four secrecy classifications are imposed to limit access to specified information to individuals requiring to know it to carry out their institutional functions. They are segretissimo (extremely secret), segreto (secret), riservatissimo (extremely reserved), and riservato (reserved), and when imposing the classification, the relevant parts of documents leading to classification will have to be detailed, with the level of secrecy applying to each part specified. The level of secrecy is lowered by one after five years and ceases to be applied after ten years, unless the person who classified the material extends this period further, which can only be done by the PM after 15 years. Judicial authorities may have access to these classified documents for judicial proceedings, when they are not state secrets, and may allow interested parties to view them, although they are not allowed to extract copies. Sentences of one to five years are envisaged for anyone who illegally destroys DIS or intelligence service documents in any stage of declassification.

Parliamentary oversight and judicial investigations

COPACO, the parliamentary oversight body on intelligence matters, will be allowed to remove a state secret to obtain access to intelligence service documents, if the request by its ten members (up from eight) is unanimous, to hear intelligence officers in exceptional cases following a request detailing the reasons, and will be able to obtain documents concerning parliamentary inquiries and ongoing judicial proceedings, without the confidentiality of proceedings, investigations or banking details being applicable. The judicial authority may delay transmission of documents by six months, or until preliminary investigations are completed or the reasons for the delay no longer apply, if it deems that this delay is necessary in the interest of inquiries, with an order explaining why this is the case.

COPACO will also have access to intelligence service facilities, informing the prime minister in advance, and to control the accounts and expenses of the security information system. It will receive six-monthly report on the activities of the security information services that includes an analysis of the situation and security threats, all the relevant regulations and directives issued by the PM, relevant regulations issued by the interior affairs, foreign affairs and defence ministries, instances in which activities that are normally illegal have been authorised (within 30 days from the end of an operation), requests from judicial authorities to the PM to be able to use information secured through interception of intelligence officers' communications and the resulting decisions (see below), six-monthly reports on economic management, details concerning the criteria on the basis of which personal information has been collected, six-monthly activity reports from the PM and information concerning the essential guidelines of activity.

COPACO will immediately inform the PM and the leaders of the parliament and senate if it discovers conduct contravening the rules regulating intelligence service activities, presents an annual report and may transmit urgent reports or information to parliament. The content of COPACO sessions are secret, and its members are bound by a duty of secrecy in relation to matters they learn of in the exercise of this activity. It is allowed to ask for external advisors to co-operate in its activities, provided they are not members or past members of intelligence services or individuals who have co-operated or are co-operating with foreign intelligence services.

Examination of specified information held by intelligence services by judges, limited to cases where it is "strictly indispensable for investigations", must take place in situ, and if they have "founded reason" to consider it incomplete, they may inform the PM, who is responsible for making further material available in cases where such a complaint is justified. Access to documents produced by foreign intelligence services with a non-disclosure commitment would require dialogue with the foreign authority responsible, to decide whether it should be made available or classified as a "state secret". If information is requested and the body holding it considers it to have the status of a "state secret", its transmission is suspended and it is sent to the PM, who must either confirm this status or authorise disclosure within 30 days.

When judicial authorities need to interview intelligence service personnel in relation to investigations, they must take every possible measure to protect them, setting up videoconferences where appropriate and their physical presence is not indispensable, and arranging for the contents of this participation to remain secret, except for cases where keeping the information secret would "absolutely impede" the continuation of investigations. If judges obtain service communications by members of the intelligence services through interceptions, they must keep the information secret. Once the interceptions are over, any information that the judge intends to use in a trial must be transmitted to the PM, so as to verify if any of the information is covered by a state secret. Pending the PM's reply, such information may only be used if there is a risk of evidence being tampered with or a suspect fleeing, or to prevent a crime liable to result in a four-year prison sentence from being committed. If a state secret is imposed, the judicial authority may not use the information, and can only continue proceedings if it has independent, unrelated elements on the basis of which to proceed. Proceedings are shelved if the secret information is indispensable for prosecution of a case or continuing investigations. If a witness fails to reply to inquiries by evoking a state secret, the PM is asked to confirm this, and if this is the case and the information is essential for instructing the trial, proceedings are shelved. If other indipendent and autonomous elements exist to continue proceedings, the judicial authority may do so. A state secret may not be imposed with regard to illegal conduct by members of the security information system contravening the "special cause for justification" discipline. Public officials and employees are forbidden from mentioning facts subjected to state secret, including in any stage of trial proceedings.

Corriere della Sera, 25.7.2007; Repubblica, 1.8.2007; Ddl Senato 1335 - Sistema di informazione per la sicurezza della Repubblica e nuova disciplina del segreto, available at: http://www.cittadinolex.kataweb.it/article_view.jsp?idArt=70435&idCat=54 ; Legge 24 ottobre 1977, n. 801- Istituzione e ordinamento dei servizi per le informazioni e la sicurezza e disciplina del segreto di Stato, available at: http://www.camera.it/_bicamerali/sis/norme/l801-77b.htm