<nettime> NYT > Krugman > The New Hungarian Secret Police

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<http://krugman.blogs.nytimes.com/2012/04/19/the-new-hungarian-secret-police/>

   April 19, 2012, 6:59 pm

The New Hungarian Secret Police

   Another Hungary post from my Princeton colleague Kim Lane Scheppele,
   after the jump.

   The New Hungarian Secret Police

   Kim Lane Scheppele
   Tuesday 17 April 2012

   Brad Pitt knows all about the TEK, Hungary's new counter-terrorism
   police.

   When Pitt was in Budapest last October shooting World War Z, an
   upcoming zombie-thriller, TEK agents [42]seized 100 machine guns,
   automatic pistols and sniper rifles that had been flown to Hungary for
   use as props in the movie. The weapons were disabled and came with no
   ammunition. But the Hungarian counter-terrorism police determined that
   they constituted a serious threat.

   The dead-pan seizure of movie props made TEK the laughing stock of the
   world. As David Itzkoff [43]joked in the pages of the New York Times,
   "If Hungary ever finds itself the target of an undead invasion, its
   police force should now be well supplied to defend the nation."

   Few have taken TEK seriously. But that is a big mistake. In fact, TEK
   seems to be turning into Prime Minister Viktor Orb�n's own secret
   police. In less than two years, TEK has amassed truly Orwellian powers,
   including virtually unlimited powers of secret surveillance and secret
   data collection.

   The speaker of the Parliament, L�szl� K�v�r, now has his own armed
   guard too, since the Parliament yesterday passed a law that creates a
   separate armed police force accountable to the Parliament. It too has
   extraordinary powers not normally associated with a Parliamentary
   guard. The creation of this "Parlia-military" gives Hungary the dubious
   distinction of having the only Parliament in Europe with its own armed
   guard that has the power to search and "act in" private homes.

   About the Parlia-military, more later. First, to TEK.

   TEK was created in September 2010 by a governmental decree, shortly
   after the Fidesz government took office. TEK exists outside the normal
   command structure of both the police and the security agencies. The
   Prime Minister directly names (and can fire) its head and only the
   interior minister stands between him and the direct command of the
   force. It is well known that the head of this force is a very close
   confidante of the Prime Minister.

   TEK was set up as an anti-terror police unit within the interior
   ministry and given a budget of 10 billion forints (about $44 million)
   in a time of austerity. Since then, it has grown to nearly 900
   employees in a country of 10.5 million people that is only as big as
   Indiana.

   Why was TEK necessary? When it was created, the government said that it
   needed TEK because Hungary would hold the rotating presidency of the
   European Union starting in January 2011. During the six months it held
   this office, Hungary could be expected to host many important meetings
   for which top anti-terrorism security would be necessary. But even
   though Hungary's stint in the EU chair is over, TEK has continued to
   grow.

   Eyebrows were raised when J�nos Hajdu, Orb�n's personal bodyguard, was
   appointed directly by the prime minister to be the first head of this
   new agency. Since TEK's job also included guarding the prime minister,
   some believed that Orb�n had set up the office to get his trusted
   bodyguard onto the public payroll. Patronage turns out to be the least
   of the worries about TEK, however.

   TEK is now the sort of secret police that any authoritarian ruler would
   love to have. Its powers have been added slowly but surely through a
   series of amendments to the police laws, pushed through the Parliament
   at times when it was passing hundreds of new laws and when most people,
   myself included, did not notice. The new powers of TEK have received
   virtually no public discussion in Hungary. But now, its powers are
   huge.

   What can the TEK do?

   TEK can engage in secret surveillance without having to give reasons or
   having to get permission from anyone outside the cabinet. In an
   amendment to the police law passed in December 2010, TEK was made an
   official police agency and was given this jurisdiction to spy on
   anyone. TEK now has the legal power to secretly enter and search homes,
   engage in secret wiretapping, make audio and video recordings of people
   without their knowledge, secretly search mail and packages, and
   surreptitiously confiscate electronic data (for example, the content of
   computers and email). The searches never have to be disclosed to the
   person who is the target of the search - or to anyone else for that
   matter. In fact, as national security information, it may not be
   disclosed to anyone. There are no legal limits on how long this data
   can be kept.

   Ordinary police in Hungary are allowed to enter homes or wiretap phones
   only after getting a warrant from a judge. But TEK agents don't have to
   go to a judge for permission to spy on someone - they only need the
   approval of the justice minister to carry out such activities. As a
   result, requests for secret surveillance are never reviewed by an
   independent branch of government. The justice minister approves the
   requests made by a secret police unit operated by the interior
   minister. Since both are in the same cabinet of the same government,
   they are both on the same political team.

   TEK's powers were enlarged again in another set of amendments to the
   police law passed on 30 December 2011, the day that many other laws
   were passed in a huge end-of-year flurry. With those amendments, TEK
   now has had the legal authority to collect personal data about anyone
   by making requests to financial companies (like banks and brokerage
   firms), insurance companies, communications companies (like cell phone
   and internet service providers) - as well as state agencies. Data held
   by state agencies include not only criminal and tax records but also
   educational and medical records - and much more. Once asked, no private
   company or state agency may refuse to provide data to TEK.

   Before December 2011, TEK had the power to ask for data like this, but
   they could only do so in conjunction with a criminal investigation and
   with the permission of the public prosecutor. After December 2011,
   their data requests no longer had to be tied to criminal investigations
   or be approved by the prosecutor. In fact, they have virtually no
   limits on what data they can collect and require no permission from
   anyone.

   If an organization (like an internet service provider, a bank or state
   agency) is asked to turn over personally identifiable information, the
   organization may not tell anyone about the request. People whose data
   have been turned over to TEK are deliberately kept in the dark.

   These powers are shocking, not just because of their scope, but also
   because most Hungarians knowledgeable about constitutional law would
   probably have thought they were illegal. After the changes of 1989, the
   new Hungarian Constitutional Court was quick to dismantle the old
   system in which the state could compile in one place huge amounts of
   personal information about individuals. In its "PIN number" decision of
   1991, the Constitutional Court ruled that the state had to get rid of
   the single "personal identifier number" (PIN) so that personally
   identifiable data could no longer be linked across state agencies. The
   Court found that "everyone has the right to decide about the disclosure
   and use of his/her personal data" and that approval by the person
   concerned is generally required before personal data can be collected.
   It was the essence of totalitarianism, the Court found, for personal
   information about someone to be collected and amassed into a personal
   profile without the person's knowledge.

   With that Constitutional Court decision still on the books and not
   formally overruled, the Fidesz government is reproducing the very
   system that the Court had banned by creating a single agency that can
   gather all private information about individuals in one place again.
   What, one might ask, is left of constitutional law in Hungary?

   One might also ask: Are there any limits to TEK's power?

   The law specifies that TEK operates both as a police and as a national
   security agency. When it is acting as a police unit, it has the
   jurisdiction to spy on any person or group who poses a threat of
   terrorism, along with anyone else associated with such persons.
   Hungary, like many countries after 9/11, has a broad definition of
   terrorism that includes, among other things, planning to commit a
   "crime against the public order" with the purpose of "coercing a state
   body . . . into action, non-action or toleration." Crimes against the
   public order include a long list of violent crimes, but also the vaguer
   "causing public danger." In addition, TEK also may arrest "dangerous
   individuals," a term not defined in the criminal law. It is difficult
   from the text of the law itself to see any clear limits on TEK's
   powers.

   And TEK is very active. On April 7, TEK agents were called in to
   [44]capture a young man in the small village of Kulcs who killed four
   members of his family with a machete. And then, in the early morning
   hours of Friday, April 13, TEK agents conducted a major drug bust in
   Budapest, arresting 23 people. According to news reports, fully 120 TEK
   agents were involved in the drug operation, [45]raising questions about
   whether the drug bust was thought to be part of the anti-terrorism
   mission of the agency or a rather broad extension of the concept of the
   "dangerous individual." Either way, the drug ring looked like
   garden-variety crime. If that is within TEK's jurisdiction, it is hard
   to imagine what is not.

   A You-Tube video of the April 13 drug bust, made available by TEK
   itself, shows what a middle-of-the-night raid by TEK officers looks
   like, complete with the use of heavy-duty tools to cut open an exterior
   door.

   IFRAME: [46]http://www.youtube.com/embed/Trl2YSiawXk

   Given that this is the video that TEK wanted you to see, one can only
   imagine the activities of TEK that are not recorded for posterity. (It
   would be interesting to know, for example, why the audio cuts out at
   certain points in the clip, as well as what happens between the time
   that TEK breaks open the door and the time the various suspects are
   seen lying handcuffed on the floor.)

   While its videos are crystal clear, TEK's legal status is blurry, as
   some parts of its activities are authorized under the police law and
   others parts are authorized under the national security law. Different
   rules and standards apply to police agencies and to national security
   agencies. Moreover, TEK seems to have some powers that exceed those of
   both police and national security agencies, particularly in its ability
   to avoid judicial warrants. No other agency in the Hungarian government
   has both police and national security powers, and it is unclear
   precisely how the agency is accountable - for which functions, under
   what standards and to whom. What follows is my best guess from reading
   the law.

   With respect to its powers authorized under the police law, it appears
   that TEK must act like the police and get judicial warrants to search
   houses, to wiretap and to capture electronic data when these activities
   are part of a criminal investigation. When TEK was arresting the
   machete-wielder and making the drug bust, it was probably acting under
   its police powers.

   But TEK only need judicial warrants when it is engaged in criminal
   investigations. It doesn't need judicial warrants when it is using its
   secret surveillance powers in security investigations. When it is
   acting as a national security agency, TEK only needs the permission of
   the justice minister to engage in secret and intrusive surveillance. Of
   course, given that the permissions and constraints are different
   depending on whether TEK is acting as a police agency or a national
   security agency, it would matter who decides whether a particular
   activity is conducted for police or national security purposes and what
   the criteria are for determining that it is one or the other. The law
   does not provide the answer to either question.

   Suppose someone believes that she has been spied upon illegally by TEK.
   What can she do to object? First, if TEK is engaged in secret
   surveillance or data collection, it is unlikely that people will know
   that they are a target, given the extraordinary secrecy of the whole
   operation. But even if one finds out that one is being watched, the
   remedies are not encouraging.

   A person aggrieved by TEK's actions may complain to the interior
   minister, and the interior minister must answer the complaint within 30
   days. But given that the interior minister is the minister who controls
   TEK in the first place, this is not an independent review. If the
   complainant does not like the answer of the interior minister, s/he may
   appeal to the Parliament's national security committee, which must
   muster a one-third vote to hear the petition. At the moment, the
   12-member national security committee consists of two-thirds governing
   party members and one-third members of all other parties combined. If
   the governing party does not want to investigate a complaint, garnering
   a one-third vote would mean uniting the whole opposition - or, to put
   it in more blunt terms, getting the Socialists to work with the
   neo-Nazis. That is unlikely to happen. Even if the national security
   committee agrees to hear a petition, however, it would take a
   two-thirds vote of the committee to require the interior minister to
   reveal the surveillance methods used against the complainant so that
   the committee can determine whether they were legal. There is no
   judicial review at any stage of this process.

   TEK operates in secret with extraordinary powers and no one reliably
   independent of the current governing party can review what it is doing
   when it uses its most potentially abusive powers. This shocking
   accumulation of power may explain the Hungarian government's abolition
   of a separate data protection ombudsman who would have the power to
   investigate such shocking accumulation of data. Instead, the data
   protection officer - a post required by European Union law - has been
   made a political appointee of the government itself. This is why the EU
   has [47]launched an infringement action against Hungary for failing to
   guarantee the independence of the office. Now we can see why the EU may
   be onto something.

   As if the powers of TEK are not enough, though, Parliament yesterday
   authorized another security service with the power to use police
   measures against citizens and residents of Hungary. The cardinal law on
   the Parliament itself contains a provision that gives the Parliament
   its own military, a Parlia-military.

   The Parlia-military is an armed police unit outside the chain of
   command of the regular military or police structures. Its commander in
   chief is the speaker of the house, L�szl� K�v�r, who served as minister
   without portfolio for the Civilian Intelligence Services during the
   first Orb�n government from 1998-2002. The Parlia-military has the
   power to guard the Parliament and the speaker of the house, as might be
   expected. But if the Parlia-military is only supposed to guard the
   Parliament and the speaker, why does it need the powers that the
   cardinal law gives it?

   The law gives the Parlia-military power "to enter and to act in private
   homes." That's literally what the law says. It is unlikely that the
   Parliament will want to conduct a plenary session in someone's living
   room, so one must then wonder just what the Parliament will do if its
   armed military enters someone's home to "act." In addition to this
   power, the Parlia-military may also make public audio and video
   recordings of people. It can also search cars, luggage and clothing. It
   can use handcuffs and chemical substances (which I assume means tear
   gas and nothing more, but the wording make it sound like the
   Parlia-military may use chemical weapons!). The draft law seems to
   imply that the Parlia-military would have to operate under the
   constraints of the police law, which would mean that it would need
   judicial warrants to conduct these intrusive measures. But that is not
   completely clear. What is clear is that Hungary now suffers from a
   proliferation of police that are under direct political control.

   Until this point, I have thought that the Fidesz government was just
   attempting to lock down power for itself for the foreseeable future,
   which was bad enough. But now, with the discovery of these new security
   services, it seems increasingly likely that the Hungarian government is
   heading toward the creation of a police state. Actually, it may already
   be there. But shhhh! It's secret.

© 2012 The New York Times Company

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