INTELLIGENCE SECRET: LEGISLATIVE DEFINITION AND CORRELATION WITH STATE SECRET

Abstract

Based on the analysis of the Law of Ukraine «On Intelligence» in general and its legal requirements for the new category of «intelligence secret» in particular through controversy with scientists who have already expressed their views in previous publications, the authors once again drew the attention of the scientific community to this crucial legal categories and outlined approaches to clarify its legal content, direction and completeness. The author’s own opinion on the content of the legal category «intelligence secret», its relationship with the state secret, proposals for determining possible ways to establish a legal regime for handling information related to intelligence secrets, as well as proposals for liability for its disclosure. Two significant differences between state and intelligence secrets have been identified. The first difference is in the different areas they cover. If many spheres are defined for state secrets (defense, economics, science and technology, foreign relations, state security and law enforcement), then for intelligence intelligence only one area is the performance of intelligence tasks of Ukraine and the implementation of functions. The second significant difference is the possible consequences if the information is disclosed. In the first definition, it is the possibility of harming the national security of Ukraine, and in the second – the possibility of damage to the functioning of intelligence. It is substantiated that in the Law of Ukraine «On Intelligence» the legislator clearly distinguishes between state and intelligence secrets, without even hinting at the possibility that the latter may contain some part of information that can be classified as a state secret. It is proved that intelligence is not identified with intelligence information. First, they relate to various organizational forms and areas of intelligence. Second, the intelligence obtained is a state secret, while the intelligence secret appears when the former is handled. Third, on the basis of intelligence obtained, the state leadership makes important political decisions in the interests of Ukraine’s national security and defense. On the other hand, intelligence secrecy is concerned solely with the protection of information whose disclosure may harm the functioning of intelligence and access to which is restricted within the intelligence secrecy regime. It is concluded that it is necessary in the future due to scientific developments, primarily fundamental, to determine the reasonable grounds and procedures for classifying information as intelligence, to develop and adopt a number of legislative and departmental regulations on access to such information, maximum secrecy, conditions and declassification procedures, the procedure for providing it to members of the intelligence community and, in certain circumstances, representatives of democratic control by the public and society, as well as establishing responsibility for its disclosure. Key words: national security, intelligence, intelligence activities, state secret, intelligence secret.