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National Intelligence Agency to be progressed this year

Marvin Dames.

Movement toward establishing the National Crime Intelligence Agency (NCIA) should begin by the second quarter of this year, according to National Security Minister Marvin Dames in an interview with Perspective on the status of the intelligence agency whose act came into force last month.

Functions of the NCIA include the gathering, coordination and analysis of intelligence and providing the National Security Council with information relating to security matters or criminal activities.

Responding to our question on when the agency will be established, Dames said, “I would say that you can begin to see some assembling within the first half of this year.

“We hope to begin putting the initial pieces together certainly by the second quarter of this year.”

An integral facet of the agency’s establishment is the appointment of its director.

Part III, Section 7(3) of the NCIA Act says “a person appointed to hold the office of the director of National Crime Intelligence must possess a background at a senior level in law enforcement, national defence or intelligence gathering”.

When questioned by Perspective on reports reaching us that Commissioner of Police Anthony Ferguson is being considered for this post upon his retirement from the force, Dames would not confirm or deny such reports, stressing that those who are to lead the agency have not yet been named or chosen.

“We haven’t named a director as yet, we haven’t named a deputy director; we’re not there yet,” he replied.

According to Section 7, the director of the NCIA is appointed by the governor general on the advice of the prime minister who shall consult with the leader of the opposition before advising the governor general of who may be appointed.

The functions of the director include taking all reasonable steps to ensure “the agency is kept free from any influences or considerations not relevant to its functions, and nothing is done that might lend support to any suggestion that it is concerned to further or protect the interests of any particular section of the community, political party or with any matters other than the discharge of its functions”.

According to the second schedule of the act, the director serves for a term not exceeding five years with the eligibility for renewal.

Causes for concern

The director of the NCIA answers to the minister responsible, which raised alarm bells for civic groups and the opposition who questioned whether this provision subjects the agency to potential abuse.

Section 9 of the act empowers the minister to give written instructions to the director, who “shall, as soon as practicable after giving a direction in writing to the director, cause a copy of the direction to be given to the prime minister and the Review Committee”.

The review committee is the Intelligence and Security Committee of Parliament, a seven-member committee of House and Senate members charged with review and oversight of the NCIA and investigating complaints made against the agency.

The prime minister selects five of the members and the leader of opposition appoints two – a provision that prompted concern about the likelihood of the committee holding the NCIA accountable for its actions.

This likelihood is especially compromised if committee members chosen by the prime minister are also members of the Cabinet.

Given the NCIA’s powers of intelligence gathering, interception of communications, search and seizure, the government could have demonstrated a stronger commitment to accountability by legislating that the majority of committee members be selected by the leader of opposition.

The review committee must make an annual report to Parliament, but that report must first be submitted to the prime minister, who is empowered to have portions of the report excluded prior to it being presented.

After the passage of the NCIA bill last year, Organization for Responsible Governance (ORG) Executive Director Matt Aubry was among those who expressed reservations about potential abuse via the NCIA, pointing out that checks and balances legislation such as the Ombudsman Bill, the Integrity Commission Bill and the Freedom of Information Act (FOIA) ought to have been passed and fully enacted along with the NCIA Act.

He said, “So, we would see that the timing on this, if you had all of these in place at the same time, there’s a check and balance, there’s resources that citizens would have where currently, if this bill goes forward without the movement of the other three, it’s somewhat of an unbalanced scenario.”

Last week, Prime Minister Dr. Hubert Minnis said his administration is committed to a full enactment of the FOIA by May of this year.

The prime minister provided no information on the selection of an information commissioner to head the Freedom of Information Unit, and allocations for both are not reported in the 2019/2020 Supplementary Budget now under debate in Parliament.

As to Aubry’s argument regarding accountability for the NCIA via the FOIA, the latter exempts certain categories of records from public access.

According to the FOIA, records are exempt from disclosure if “the disclosure would prejudice the security, defense or international relations of The Bahamas” or if “the records contain information communicated in confidence between the government and a foreign government [or] an international organization”.

Section 9(4) of the NCIA Act mandates that the minister responsible “shall, in accordance with arrangements made between the prime minister and the leader of the opposition, make available to the leader of the opposition an unedited copy of any general or specific directions” he gives to the agency’s director.

It further mandates in Section 9(5) that, “The leader of the opposition shall treat as secret any directions made available to him pursuant to subsection (4).”

And the prime minister’s powers to have a matter in the review committee’s annual report to Parliament removed before it is presented is on the condition that he “considers that the matter would be prejudicial to the continued discharge of the functions of the agency”.

Outside of what the review committee is permitted to present to Parliament and given the legislated role of the NCIA, it is questionable what level of access to information the public would be provided via the FOIA about the activities of the agency.

As to the importance of the NCIA, Dames maintained that, “One of the things we need to improve on is our ability to collect intelligence.

“There are a lot of crimes that go on in our country with external connections,” he continued, “and so we are going to work with our international partners through this agency to try to get a better understanding as to the connections especially as it relates to firearms, drugs, the trafficking of persons and money laundering.”

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