Author : Harsh V. Pant

Expert Speak War Fare
Published on Jun 16, 2021
Rules of engagement for retired intelligence officers

The Indian government’s new amendment to the Central Civil Services (Pension) Rules 1972 has imposed significant restrictions on the writings of retired security and intelligence personnel. The government gazette notification, stating that, “no Government servant, who having worked in any Intelligence or Security-related organisation included in the Second Schedule of the Right to Information Act, 2005, shall without prior clearance from the Head of the Organisation, make any publication after retirement”, will hinder the publishing of any domain-related material or references obtained by virtue of working in security-related organisations. While publication based on work-related information is already barred, the new order seems to prohibit writing or speaking at any forum. Undertaken by the Ministry of Personnel, Public Grievances, and Pensions, the revision of Rule 8 of the 1972 Act has served a blow to the possibility of retired intelligence officers commenting on governmental policies under the garb of “good conduct”. The rules would cover retired officials of 26 organisations including the Intelligence Bureau, R&AW, Directorate of Revenue Intelligence (DRI), CBI, NCB, BSF, CRPF, ITBP, and CISF. While the disclosure of sensitive information is rightfully deemed as unlawful in intelligence-related legal frameworks across various countries, the new regulation seems to impose an indefinite oath of silence on retired professionals.

The ideas underpinning the order are not entirely new. Previous attempts to demarcate lines of confidentiality on published work of retired intelligence officers were undertaken by the Manmohan Singh government in 2008. The 2008 order had emphasised pre-existing restrictions laid down in the Official Secrets Act (OSA) regarding the disclosure of sensitive information that could undermine the security and sovereignty of the state. While any violation of the aforementioned rule would result in a similar loss of pension rights, restrictions were limited to the divulgence of information deemed confidential by the particular organisation. Comparisons could be drawn with countries such as the United Kingdom and Australia, where the Official Secrets Act 1989 and Intelligence Services Act 2001, respectively, prohibit the unlawful disclosure of sensitive information that could jeopardise national security or the conduct of foreign policy and relations. The 2008 decision was aimed at reinforcing boundaries to preserve operational and confidential information within the traditional intelligence framework.

Comparisons could be drawn with countries such as the United Kingdom and Australia, where the Official Secrets Act 1989 and Intelligence Services Act 2001, respectively, prohibit the unlawful disclosure of sensitive information that could jeopardise national security or the conduct of foreign policy and relations

Name of Country: Rule/Law Regarding Disclosure of Information
1. United States of America

According to the official CIA rules, “all CIA officers, as a condition of employment, sign the standard CIA secrecy agreement when entering on duty.” It makes a distinction between silence regarding the disclosure of sensitive and non-sensitive information, i.e. “A secrecy agreement does not oblige officers and contractors to absolute silence, but it does require them to keep national security secrets for as long as the US government deems the information to be classified. This is a lifelong obligation.”

The publishing of books, memoirs etc. by retired personnel is permitted and appraised through a process of reviewal by the Prepublication Classification Review Board (PCRB). The Board is responsible for flagging possible sensitive information divulged by Agency officers for non-official publishing. As noted, their job is to “Balance the CIA’s secrecy agreement with the Bill of Rights.”

2. United Kingdom

The Official Secrets Act (1911, 1920, 1939, 1989) has been amended a number of times. The 1989 amendment clearly delineated the offence for unlawful disclosure of information in six specific categories. The rules apply to current and former employees of the security and intelligence services, as well as Crown Servants and Government contractors. The amendment states the maximum penalty for violation to be two years’ imprisonment, or an unlimited fine, or both.

Section 2 of the Official Secrets Act 1911 was amended due to its controversial “catch-all” nature, under which “it was a criminal offence to disclose any (emphasis added) official information without lawful authority” for all government servants across the spectrum. However, the 1989 amendment has created a distinction between various personnel. While current and former employees of security and intelligence fields are barred from disclosing any unauthorised information, Crown servants and government contractors are penalised only if found in violation of the six categories.

3. Malaysia The Official Secrets Act 1972—known as Akta Rahsia Rasmi in Malay—has been widely criticised for its effectively all-inclusive scope of what is deemed to be an “official secret”. There have been calls to distinguish between sensitive and non-sensitive information—and despite a 1986 amendment —it has been to no avail. Furthermore, there is no clear system established to detail a violation and its consequent penalty.  It is viewed as a “Broadly-worded law that entrenches a culture of secrecy in all matters relating to public administration. It contains a very ample package of broadly framed prohibitions which effectively obstruct the free flow of information from official sources.”
4. Australia The Criminal Acts 1914 introduce criminal sanctions to the breach of secrecy obligations that Commonwealth officers already owe. Section 79 prohibits the disclosure of official secrets, whereas Section 70 constitutes a much broader and more controversial scope. The clause criminalises any (emphasis added) fact acquired by a Commonwealth officer by virtue of their position or role in an organisation. While Section 70 only applied to official facts or documents, new modifications have broadened the scope to “opinion and advice that is not in documentary form.” Furthermore, the “new offences apply to everyone and not just Commonwealth officers.” This includes journalists, asylum seekers, advocacy groups, etc.
5. South Korea Article 17 of the National Information Law states that any current or former employee must not share information acquired through an organisation they have worked with without prior authorisation from their employer.

The 2021 amendment seems to constrain debate in the highly-skilled realm of intelligence where nothing can now be written without prior permission. A clear specification for government personnel that have worked in any security or intelligence-related organisations included in the Second Schedule of the RTI 2005 exclusively targets a group of special experts in the field of national and foreign security. However, there are several other sensitive ministries like the Ministries of External, Defence and Home Affairs and departments like the Defence Research and Development Organisation (DRDO) and Indian Space Research Organisation (ISRO) of the government that are responsible for handling official state secrets. Moreover, it has become increasingly customary for non-intelligence officials—such as retired armed forces personal, DRI, and Enforcement Directorate (ED) officials—to engage in public commentary on matters related to intelligence and security. However, no form of penalty has been implied for such officials in the new amendment.

It has become increasingly customary for non-intelligence officials—such as retired armed forces personal, DRI, and Enforcement Directorate (ED) officials—to engage in public commentary on matters related to intelligence and security. However, no form of penalty has been implied for such officials in the new amendment.

It is not the idea of restricting the disclosure of sensitive information that ought to be deemed problematic. The nature of and high stakes involved in the maintenance of national and foreign security vis-à-vis an increasingly unstable international security environment certainly justifies the need to set boundaries. The prevailing regional and global situation is fraught with grave security risks. The COVID-19 pandemic has further diversified the meaning and scope of security. The technological revolution has reoriented the manner in which information is shared and interpreted, further fuelling the spread of disinformation, dissension, and disloyalty within and between governments and societies. Whilst the intelligence world is not devoid of adapting to such changes, the relative secrecy underpinning the operation and collection of intelligence must remain paramount. In the same vein, the ideas and notions put forth by retired personnel reflect long-standing practices and efforts to assess a world plagued with ever-changing risk and uncertainty. However, any amendment in the Pension Rules should rightfully be aimed at preventing any infringement of the OSA by any retired Government officer without seemingly stifling their analyses, historical perspectives, and suggestions based on non-classified material. The practice of retired government officers contributing to the academic or policymaking sphere should be regarded as valuable for young and experienced professionals alike.

Contrastingly, there is a global shift towards greater openness in the business of intelligence. Without undermining the need for confidentiality and security—published works, seminars, or academic courses conducted by retired intelligence officers are considered crucial for shaping future policies. Countries such as the United Kingdom, United States, and even Israel, have followed suit. Retired CIA chiefs have written memoirs and autobiographies that are subject to review by the CIA’s Prepublication Classification Review Board (PCRB).  Although the need to be vetted remains present, the PCRB and intelligence world in general upholds the idea of seasoned security experts sharing their knowledge. More importantly, the PCRB remains a body within the CIA that is somewhat independent of the government’s political control. Establishing a body such as the PCRB rightfully forges a balance between the CIA’s secrecy agreement and the American Bill of Rights.

The nature of the intelligence world demands certain pieces of information to remain classified and confidential for some lengths of time, at times ning decades. Therefore, the yardstick to measure openness and freedom of expression stems not from the communication of state secrets but from the possibility of communicating experiences, ideas, and suggestions in general. With the increasing ambiguity between politics and intelligence within a convoluted international framework, the incorporation of (hopefully) objective analyses from retired intelligence officers are of great value. However, the latest move by the government seems to stifle criticism and commentary, which, by itself, does not even amount to dissension. Muzzling the views of experts in a field as vital as intelligence can be counterproductive. Informed debate on intelligence is essential for effective policy. In India, there is, in any case, a paucity of academic and non-governmental engagement with intelligence matters. It is vital for a democratic state like India to let the discourse remain open and exchange free flowing information to the extent possible to tackle national security issues effectively.


Mahi Khanna is a research intern at ORF.

The views expressed above belong to the author(s). ORF research and analyses now available on Telegram! Click here to access our curated content — blogs, longforms and interviews.

Author

Harsh V. Pant

Harsh V. Pant

Professor Harsh V. Pant is Vice President – Studies and Foreign Policy at Observer Research Foundation, New Delhi. He is a Professor of International Relations ...

Read More +