Assessing Damage, Urging Action and in practice, it is clear that holding domestic intelligence agencies to account is difficult, and that that difficulty is multiplied when seeking remedies for actions carried out by transnational intelligence operations. 2. Extended powers and roles of intelligence services To examine the ways in which intelligence services in various parts of the world have extended their powers and roles, the following section looks in turn at surveillance, other data gathering powers, then at arrest, detention and interrogation powers. 2.1. Surveillance and other data gathering powers The Panel learnt at many Hearings that, in advance of, but particularly since 9/11, States have steadily increased the information-gathering powers of their intelligence services, or law enforcement agencies,146 without necessarily building in appropriate safeguards. In the US Hearing, for example, participants expressed concern about the move from surveillance practices which in the past involved oversight, towards greater surveillance with reduced or no judicial involvement. This trend is exemplified by the introduction of the warrantless Terrorist Surveillance Program (TSP) by the National Security Agency (NSA), a programme initiated by President Bush in 2001, but kept secret until media coverage in December 2005.147 The Terrorist Surveillance Program allowed the NSA to conduct electronic surveillance of suspected members of al-Qaeda, or affiliated organisations, and no warrant was required if at least one end of the communication was outside of the USA. The TSP, seemed to contradict the explicit ban on surveillance in the USA set out by the pre-existing Foreign Intelligence Surveillance Act (FISA),148 and since the Hearing, the US government has amended the FISA legislation (in June 2008) to end all ambiguity: all surveillance of communications with persons outside the US (even if that involves someone in the USA) has now largely been excluded from the previous requirement of individual judicial authorisation and scrutiny.149 Doc. S/RES/1373 (2001) and UN Security Council Resolution1465 (2003), adopted on 20 January 2003, para. 6, UN Doc, S/RES/1465 (2003). 146 This chapter focuses on intelligence agencies, but it is clear that such agencies work closely with law enforcement/border control personnel etc. and that these latter services, if not properly regulated, can take on similar attributes and cause concern. See later the Arar case where intelligence-sharing was undertaken by the Royal Canadian Mounted Police, rather than a discrete intelligence agency. 147 US White House, “Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence”, 19 December 2005. 148 The order that created NSA in 1952 confined the agency to spying on “foreign governments”. In the 1970s, the NSA and other intelligence agencies were found to be monitoring US citizens for political purposes, and the legislation was amended in 1978 to include an explicit ban on NSA surveillance in the US without a warrant. 149 While FISA previously allowed the monitoring of communications, with a special judicial warrant, on the basis of an individualised and particularised application, it now allows mass acquisition of communication orders on the basis of a determination of the Director of National Intelligence. The legislation retains limited judicial review. However, the changes do not allow courts to review individualised surveillance applications, and there is no authority on the part of the courts to supervise the implementation of the government’s 69