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Draft intelligence law threatens basic rights - parliament should drastically amend bill

Human Rights Watch - August 3, 2005

New York -- A draft law on Indonesia's national intelligence body denies basic rights to detainees and violates Indonesian criminal law and international human rights law, Human Rights Watch said in a new legal analysis today. It also improperly gives a new and expanded role in law enforcement to BIN (Badan Intelijen Negara), Indonesia's State Intelligence Body, a notoriously abusive and unreformed agency linked to many human rights abuses from the Soeharto period to the present.

In a letter to the speaker of the parliament, Agung Laksono, and the chair of the parliamentary commission considering the draft, Theo L Sambuaga, Human Rights Watch welcomed the effort to create a legal framework for Indonesia's intelligence agencies, but urged parliament to drastically amend the draft to ensure it does not lead to serious and systematic abuses. The draft is currently before Commission I of Indonesia's parliament.

The draft governs the activities of BIN and a wider "intelligence community," which is vaguely defined to include numerous government and possibly non-government entities under the direction of the BIN Director. Human Rights Watch expressed concern that the draft blurs the line between criminal investigations and intelligence activity, and conflates the role of the police and intelligence operatives. The bill also creates vague legal standards without any provision defining a role for the judiciary to oversee BIN or its activities.

"The draft law's empowerment of Indonesia's notoriously abusive intelligence services will undermine efforts to make the security services and law enforcement agencies more accountable to civilian leaders and the public," said Brad Adams, Asia Director at Human Rights Watch. "Without significant amendments, this law would be a big step backward and indicate that the government is not serious about improving the country's poor record on civil liberties."

Human Rights Watch expressed concern that the draft allows BIN to go beyond its intelligence gathering role and move into law enforcement. It allows BIN agents to "arrest" persons for up to 7 days and to "detain" persons for up to 30 days without any judicial oversight or control, without filing any criminal charges, and without allowing a detainee access to counsel or the opportunity to be heard before a judge. A draft article empowers intelligence officials to arrest, detain, interrogate, search, or restrict the movement of any person "strongly suspected" of being directly or indirectly involved in activities related to a threat to the nation -- effectively turning an intelligence agency into a police force with broad, unrestricted powers.

"Allowing an intelligence gathering agency to become involved in law enforcement confuses its role and opens the door to abuse," said Adams. "Allowing intelligence agents to detain people for 30 days without any judicial supervision or access to lawyers or family members creates the perfect conditions for torture or other mistreatment."

Human Rights Watch said that the draft provides a vague and overbroad definition of a "threat to the nation" ("ancaman nasional"). This term is the premise upon which the draft law is based. It's definition is so unclear that it is susceptible to serious abuse by overzealous intelligence agents or government officials targeting unpopular groups or individuals.

"In a country with a weak and politicized judiciary, a vague definition of national security could have serious consequences for civil liberties," said Adams. "It could easily be used to target peaceful political activists, opposition parties or groups, and indigenous groups."

Human Rights Watch also expressed concern over other provisions of the draft, including:
 

• Violations of civil liberties. The draft gives broad and poorly defined powers to conduct surveillance, monitor and seize correspondence, and electronically monitor ("bug") the conversations of those "strongly suspected" (diduga kuat) of "involvement" (terlibat) in a threat to the nation.

 
• Power of summons. Article 18(b) grants intelligence operatives a broad power to "summon" (memanggil) any person for questioning about any issue related to a threat to the nation.

 
• Warrantless searches and seizures. Article 19 empowers intelligence operatives to enter and search any building, public or private, including residences. Articles 31 and 32 empower officials to conduct raids on individuals, bodies, clothes, things, houses or other structures and seize any objects or documents "strongly suspected" of being tied to threatening activities.

 
• Excessive powers for BIN. Through the amorphous entity called the "intelligence community," the bill in effect extends the BIN Director's power into almost every branch of government, and potentially even into civil society. This dangerously and unnecessarily extends the vast powers and the near total lack of accountability of BIN operatives to a potentially endless array of official and unofficial actors. The inclusion of the Attorney General's office, the police, and the military in the intelligence community threatens to undermine any mechanisms for accountability that may exist in current law governing the military and law enforcement.

Indonesia's intelligence agencies have long been used for internal repression and political purposes. Until 1985, the foremost intelligence agency in Indonesia was the Operational Command for the Restoration of Security and Order (Komando Pemulihan Keamanan dan Ketertiban or KOPKAMTIB), which focused primarily on mounting internal security operations and collecting intelligence data. In 1985, as part of a reorganization of the armed forces, KOPKAMTIB's role was taken over by a new intelligence agency, BAKORSTANAS (Badan Kordinasi Ketahanan Nasional), the National Stability Coordination Agency. The key bodies acting in this revised structure were the ten army regional commands, and two intelligence agencies known as BAKIN (Badan Kordinasi Intelijen Negara -- State Intelligence Coordinating Agency), which was civilian, and the military BAIS (Badan Intelijen Strategis -- Strategic Intelligence Agency). Although the system of BAKORSTANAS was disbanded by presidential decree in March 2000, BAKIN and BAIS remained the two major intelligence bodies in Indonesia.

The administration of President Abdurrahman Wahid significantly increased BAKIN's budget and, in January 2001, changed the name to BIN to emphasise its operational function and the reduction of its coordinating role. When Megawati Sukarnoputri became president in July 2001, she appointed a military officer, Lieutenant General A.M. Hendropriyono, as head of BIN and elevated him to ex officio cabinet status. The Bali bombing on October 12, 2002 exposed Indonesia's lack of intelligence coordination, and prompted the Megawati government, through Presidential Instruction 5/2002, to resurrect BIN's coordination function and strengthen its operational functions.

Under pressure from BIN, the government announced in early 2004 that it intended to authorize BIN to open regional offices and institute regional coordination bodies. The revival of the Soeharto-era Regional Intelligence Coordinating Agency (BAKORINDA) has raised the specter of a return to the mobilization of the bureaucracy for intelligence purposes in order to increase surveillance and control of communities, under the pretence of intelligence gathering.

"Indonesia's intelligence services need a strong legal framework with adequate judicial and parliamentary oversight," said Adams. "But this draft would be a return to the bad old days when intelligence agencies operated as shadowy police forces. Getting this law right is a big test of the intentions of the administration of President Yudhoyono."
 

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