Anticipation and prevention
The law of July 5, 2016 governing reorganisation of the State Intelligence Service clearly defines the agency's mission and delimits very precisely the context in which it is authorised to carry it out: the existence of a threat, or the possibility of one, to national security. This means any event or activity capable of undermining the independence and sovereignty of the state, the security and the functioning of its institutions, fundamental rights and civil liberties, the security of individuals and property, the scientific and technical capabilities or the economic interests of the Grand Duchy of Luxembourg. The scope of the agency's mission also comprises the security of foreign states or of international and supranational organisations with which Luxembourg has agreements.
The law defines the nature of potential threats to national security:
- Espionage and interference;
- Violent Extremism;
- Proliferation of weapons of mass destruction or goods linked to defence and related technologies;
- Organised crime and cyber-threats insofar as they are related to one of the preceding types of threat.
On one hand, the legislation clearly defines and restricts the scope of action of the SRE in relation to other bodies responsible for security within the country, while, on the other, it provides assurance to its inhabitants that intelligence activities are undertaken in a clear and precise legal framework.
Absence of political surveillance
The law is very clear on this point: The SRE is not authorised to conduct domestic political surveillance.
Carefully delineated operational methods
Intelligence methods can arouse certain public curiosity. While the collection of intelligence entails techniques and resources not available to the general public, the legislation clearly defines what methods may be used. They are subjected to strict conditions and precise criteria, and to constant supervision at multiple levels. They must comply with three essential principles: legitimacy (a threat that justifies the investigation), proportionality (the means employed must be proportionate to the threat), and subsidiarity (more intrusive methods are used only if less intrusive ones are incapable of achieving the goal in question).
The principle of minimal intrusion into private life
The legislation reflects the political intention to distinguish between three levels of authorisation for intelligence gathering based on the level of intrusion into the private life of individuals targeted by the operations. This rule states that measures should involve the lowest possible level of intrusion into their private life, while taking into account the principle of proportionality.
Means involving the lowest level of intrusion must be authorised in writing by the director of the SRE in response to a written request setting out their reasoning by the SRE agent responsible for the investigation.
The most intrusive operational methods, such as monitoring of telephone or postal communications, must be supported in advance by a special commission consisting of the president of the Supreme Court of Justice, the president of the Administrative Court and the president of the Luxembourg District Court. They must then be authorised by the ministerial committee, currently made up of the Prime Minister and the two Deputy Prime Ministers.
In the event of a threat of espionage, terrorism, or proliferation of weapons of mass destruction or defence-related goods, the SRE may, with the support of the special committee and upon authorisation by the ministerial committee, employ exceptional investigative methods, notably access to IT systems or to bank transactions.
To enable the SRE to organise its work as effectively as possible, the ministerial committee, at the proposal of the Prime Minister, adopts a mission letter updated annually and submitted for information purposes to the parliamentary oversight committee. This 'roadmap' enumerates the activities of the SRE and its priorities, and must be updated regularly to take account of the state of threats facing the country.