Of all Ukrainian agencies, the State Security Service (SBU) had the most difficult road to reform.
The bloated service is used to throwing its weight around. Plans to curb its power have been delayed, ignored, or impeded since their introduction years ago. Until Ukraine tackles this challenge, it will not be allowed to even approach the European Union or NATO membership.
Real change may finally be on the way. In September, parliament may vote on a bill that would transform the agency into a modern, Western-style counter-intelligence service that won’t engage in corruption, harass businesses or use its power to run a nationwide protection racket.
The SBU would be drastically cut down and demilitarized. Its staff would lose the authority to investigate and prosecute, which carries a big risk of abuse.
The West is mostly happy with the legislation. But experts fear that it contains numerous loopholes that would allow the SBU to keep pulling the strings, protected by secrecy.
A painful plan
SBU reform barely saw any progress under former president Petro Poroshenko despite pressure from the International Advisory Group (IAG) that includes the envoys of the EU, NATO, and the United States.
The IAG suggested its reform roadmap in 2016. It quickly drowned in bureaucracy and opposition from the SBU leadership and Poroshenko’s administration.
Today, the SBU is the most powerful secret service in the country, similar in many ways to Russia’s FSB. It’s a strange hybrid of secret service and law enforcement agency, which has the authority to get involved in a wide range of cases that don’t involve intelligence operations.
The recent reform bill, No. 3196-D, submitted by President Volodymyr Zelensky in October 2020 has had over 2,000 amendments. It passed in the first reading in late January.
Western pressure is mounting. On July 7, the U. S. Secretary of State Antony Blinken mentioned an urgent SBU reform among the top five steps Ukraine has to make toward a successful future, referring to NATO and EU integration.
The IAG made three statements this year, calling on the Rada and the government to pass SBU reform without delay. The Western advisers repeatedly called the bill “largely in line with European and Euro-Atlantic principles and best practices.”
Narrowing scope
Under the draft law, the SBU’s scope would be narrowed to focus only on domestic intelligence and counter-espionage.
It must bid farewell to its anti-corruption department, which is ironically known for monstrous graft, as well as the organized crime unit, also stained with many high-profile scandals.
By the end of 2023, the SBU would be expected to get rid of all of its pre-trial criminal investigations except for a very limited number of cases directly tied to national security and espionage.
All organized crime and corruption functions would be given to the National Police, the National Anti-Corruption Bureau (NABU), or the recently-created Bureau for Economic Security.
“The institutional division between security services and law enforcement agencies is a strong preventer of the concentration of excessive power at one body and of the risk of uncontrolled use of covert intelligence data,” as the European Union Advisor Mission (EUAM) in Kyiv said in support of the bill on June 25.
The SBU is to give up on its own pre-trial jails, including the secret ones, which have been placed in the spotlight by journalist investigations.
Ivan Bakanov, then acting deputy chief of Ukraine’s SBU service delivers a speech during a press briefing in Kyiv on June 3, 2019. (Volodymyr Petrov)
The SBU’s staff would be cut from 31,000 to 17,000 people within a few years. According to the Kyiv Post’s sources, some 80% of SBU personnel mostly busy themselves with useless paperwork or tasks that have nothing to do with national security. This makes the rest of the SBU personnel very bitter. According to international advisers, if the SBU were in line with U.S. or U.K. agencies, it would have 5,500 employees.
“Todays the SBU staff is too numerous in terms of its aspect ratio to the country’s population,” the EUAM said. “This has become its weakness rather than an advantage as 95% of the agency’s budget is spent on salaries, which leaves almost no funds for investing in modern technologies and know-how… What matters to countering Russian hybrid threats is quality instead of quantity.”
Right now, many key SBU officials are considered members of the military, which is uncommon in the West. Under the bill, the new SBU would be overwhelmingly civilian, except for a few military service members including the elite Alpha Force special operations unit.
Last but not least, the bill wants the SBU to be more responsible to the public and parliament and submit to civilian oversight.
Not radical enough?
According to experts, even if the draft law strips SBU operatives of their power to investigate, they will still be able to gather evidence and give it to law enforcers.
This presents an issue. If the evidence is classified, defendants may be denied the right to see it, infringing on their rights to a fair trial. This throws the legitimacy of the use of undercover evidence into question.
Experts fear this might give the SBU a weapon against political opponents.
To eliminate the risk, other reforms to law enforcement and courts may be needed.
“After all, it is the judges, individually and collectively, who are to decide whether counter-intelligence data can be used at a given trial,” EUAM stated.
“As a consequence, there emerges the question of the reliability of judges, as well as of the relations between courts and the SBU, and of civic trust in the judicial branch’s ability to ensure a fair trial.”
In spite of these problems, the expert community approves of the reform plan, believing it’s long overdue.
Nonetheless, some criticize the plan for not being resolute enough and the years-long reform timetable for being overly generous.
“It is a good thing that the bill is ready to go,” said Oleksandr Lemenov, an expert with the nonprofit watchdog StateWatch.
“It’s just that it is not enough. The reform must be carried out much faster. The investigation function, as well as irrelevant departments, must be eliminated fast, all legal inconsistencies with law enforcement must be fixed faster.”
“There must be a large-scale, resolute transformation — which is not what we see here.”
