Proposed new spy agency can deploy intelligence agents overseas; have sweeping powers to access information

Last Updated on Sunday, 23 April 2023, 15:08 by Denis Chabrol

The Guyana government is preparing to pass new legislation to establish a National Intelligence and Security Agency, which will report directly to the President, and can deploy agents to foreign diplomatic missions as well as collect information from any public authority despite existing that may prohibit the disclosure of such information.

According to a copy of the National Intelligence and Security Agency Bill, which has been published in the Official Gazette, the Director is empowered to deploy agents abroad. “The Director with the approval of the President may assign officers of the agency to serve as liaison officers to embassies abroad, when necessary for the fulfillment of the responsibilities of the agency,” the draft law states.

Publication of the Bill with that provision comes against the backdrop of Guyana’s territorial disputes with neighbouring Venezuela and Suriname, as well as persistently intense criticism of the People’s Progressive Party Civic-led administration by a number of persons on Social Media. Wanted bulletins have been issued for at least one of the Social media activists. Guyana is also regarded as a major destination for illegal weapons and narcotics.

While the Vienna Convention on Diplomatic Relations does not provide for sending countries to send police of intelligence agents to a foreign nation, provisi0n is made military, naval or air attachés but the receiving State may require their names to be submitted beforehand for its approval.  Agents of the proposed National Intelligence and Security Agency will be covered by the Police Act and the Defence Act.

According to the Bill, the functions of the agency are in keeping with the defence and foreign policies of the State; protection against threats from espionage, terrorism and sabotage from the activities of persons within Guyana or agents of foreign powers; protection of actions from within Guyana or agents of foreign powers intended to undermine democracy and State institutions.

The Bill states that the agency, with the approval of the President, engage, communicate and operate with foreign agencies to achieve a particular objective in the interest of national intelligence and security.

The Convention allows sending States, in this case Guyana, to freely appoint members of staff of the mission but can ask any of them to leave  or prevent them from entering that foreign country. “The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State,” the Convention states.

The Convention says he “members of the staff of the mission” are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission.

The law empowers agents of the National Intelligence Agency to carry firearms only for the purpose of defending themselves. No civil or criminal action can be taken against anyone, including lawyers, for sharing information with the agency’s spies.  In addition to using undercover intelligence to support its work, the agency will also be empowered to intercept communications in accordance with the Interception of Communications Act.

National Intelligence and Security Agency Bill proposes wide-ranging powers by the new spy agency to go after information in the possession of any public body regardless of any other law that presumably guarantees confidentiality. “The agency may request a public body for information and the public body shall, notwithstanding the Access to Information Act 2011 or any other law, make available to the agency any information requested within 48 hours or within a reasonable time stated in the request,”  the Bill states. Legal experts say a public body is any State agency ranging from a neighbourhood Council to public utilities, constitutional commissions, law enforcement agencies and the Guyana Revenue Authority.

Spies, according to the proposed law, can inspect and take notes, extracts or certified samples of any work, document, record or material stored electronically or digitally in any computer or device.

The law empowers the National Intelligence and Security Agency to be consulted by all other entities that are required to conduct intelligence for the purpose of coordinating the intelligence programmes and operations of those entities. The agency will be empowered to collect information of national security and intelligence interest to assist with decision-making and preventative actions.

The President will be responsible for appointing the Director of the spy agency and that person will have the equal position to that of a Police Commissioner or Chief of Staff.

The Opposition Leader, after consultation with other parliamentary parties, would be allowed to nominate a representative on the national intelligence committee.