What Do We Expect of the National Bureau of Investigations?
Before setting about creating the National Bureau of Investigations (NBR), we should answer a fundamental question: What do we expect of it? If it is conceived as yet another law enforcement agency, it will only cause serious problems without producing the desired result. As it is, Ukraine already has many structures authorized to use secret investigation and surveillance methods to fight crime; there were significantly fewer in the Soviet period. Today we have a system of laws regulating this sphere. Ukraine is a member of Interpol and has signed bilateral agreements on cooperation to fight all forms of crime with Russia, the US, and nearly all the European countries, and many others besides. These agencies include not only the Security Service (SBU), Interior Ministry, and General Prosecutor’s Office, but also the customs service, border guards, tax police, etc.
Presently, much of the work of Ukraine’s three intelligence services involves fighting international organized crime, primarily terrorism, drug trafficking, and money laundering. Moreover, the SBU, Interior Ministry, and Defense Ministry have special forces capable of launching the most complex and large-scale operations to combat organized crime. In terms of numerical strength and technical capabilities, these agencies do not need to be expanded any further, perhaps only revamped.
Until recently Ukraine had a Coordinating Committee on Combating Organized Crime. There is also an ad hoc parliamentary committee on organized crime, as well as a number of investigative commissions.
All of the above leads to the conclusion that the fight against the most dangerous crimes can be made more effective in ways other than by creating another in a series of structures of which we have lost count.
In my view, before approving the decision to create the NBR, two key questions must be answered: the first concerns the powers of the new structure and the second, the scope of its activities. There are other problems, but they are not as critical to this decision.
What do the problems of scope and powers mean? It means that the new structure will (or will not) have the right to conduct investigations and surveillance, wherever this may be necessary; including any structure of the government, parliament, presidential structures, not to mention the Interior Ministry, Security Service, Tax Administration, customs service, and oblast state administrations. Will the NBR have the right to send its operatives on deep undercover missions into all state structures, wherever necessary? Who will conduct independent prosecutorial oversight to ensure that this organization remains on the right side of the law, given the fact that in the past few years the post of Prosecutor General has been much politicized and is never held for a long time? Will it be a special prosecutor elected by parliament for seven years, much like the chairman of the Accounting Chamber? After all, this person will have access to the most important national secrets.
Will the NBR independently control communications, conduct secret searches and other operations envisioned by the Law on Operative and Investigative Activity? Or will this be done by the Security Service at the request of the NBR? These are completely different things in terms of conspiracy and spending of resources.
Will the NBR have access to all necessary documents that are in the possession of other law enforcement agencies, or the right to take possession of them and use them in its investigations if the case so warrants? Or will a different structure be doing this and issuing orders for such materials to be made available to the NBR? This is a very sensitive issue that, if not handled with great care, may cause tension and counterproductive rivalry among the various uniformed services.
Will the NBR have regional offices or only bigger centers in problem areas, and how will this agency establish cooperation with local law enforcement services? Or will there be no such centers in the beginning? Will they be subordinated in any way to the oblast authorities, for example, in terms of obtaining apartments for operatives? In general, how will the whole infrastructure — cars, apartments, resort centers, premises, and other resources — be organized?
These are just some of the questions that have to be sorted out before creating the NBR. Most of the answers lie in the plane of what is called the political will of the country’s supreme leadership, i.e., Ukraine’s President Viktor Yushchenko, to whom this agency will be directly accountable. Clearly, the president cannot personally oversee this structure on a daily basis, which is why there should be an intermediary between him and the NBR to do this for him. This also raises a number of complex issues, and not only the problem of rivalry.
Without a doubt the new structure must not become a punishing sword of the revolution. Therefore, we must decide beforehand who else may be allowed to oversee the NBR’s operations. It could be the parliamentary speaker and the chairman of the Accounting Chamber, who would hear the report of the NBR director once a month or according to another schedule together with the president. No one else would be able to demand reports from the NBR heads. In individual cases, as determined by the president, NBR operations in the most critical spheres could be reviewed at a closed meeting of the National Defense and Security Council of Ukraine.
It is also crucial to resolve the problem of the illegal accumulation of initial capital and the problem of the so-called first million. Will the NBR address this issue or not? Or will such capital come under a kind of amnesty? Many people are familiar with the conditions in which today’s leading Ukrainian businesses started to form. If these businesses are exposed to current laws and political passions, a bacchanalia of revenge may erupt. This is a very complex problem, but it can and must be resolved. It is especially relevant now that a bill on the NBR is waiting to be passed by parliament. Many current and former lawmakers have the kinds of problems mentioned here.
It is also crucial to choose the right name for what is currently known as the NBR. This structure will not be similar to the American FBI, which is not necessary. Moreover, the word “bureau” in English has a different connotation than its Ukrainian analog. Imitation will not bring greater efficiency, and such a name is no deterrent to criminals. The name has to be chosen after we decide what it is we want to create, after considering the problems described above.
In deciding whether to create such a structure, we should not forget that professionals of the highest order will have to staff it. How to man the new agency is a separate and very complex question. However, the higher the professional’s level, the more painful it will be for him to receive orders from his superiors, such as “leave citizen X alone, destroy the file on such and such a suspect, and close the case of such and such a group.” In the course of his work he will find out more about certain individuals than is necessary for the investigation of a particular case. Very often these will be prominent individuals, who occupy posts in the government or parliament, or their relatives. Their small sins or large transgressions that involve sums of money that are thousands or millions of times higher than his salary will erode his professional integrity.
It should be realized from the outset that this structure will become a target not only for regular criminals but also white-collar criminals, who will pay any price to plant their own people inside the NBR. Therefore, we have to decide how to ensure the safety of the newly-created structure and find a golden mean between efficiency and professionalism. International experience should come in handy here.
A very important aspect is the system of incentives for the personnel of the new structure. Will it have military ranks and bonuses for the higher ranks? What adequate bonuses will be envisioned for civilian employees? Or will there be no military ranks at all? What about all those who already hold military ranks?
Without a doubt, these and many other problems may be resolved. This means that there is a need for a fundamental reform of the whole system of the country’s uniformed services. Most importantly, we have to ascertain whether the new government really wants to step up the fight against crime and is therefore ready to become transparent at all levels. If not, this will be merely another campaign with a political undertone with very dangerous consequences.
