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BIN in the shadows of ultra vires
There is no single article that provides space for a task force to carry out combat duties like the Rajawali troops.
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he public was shocked again by the recent maneuver of the State Intelligence Agency (BIN) through the appearance of the Rajawali troops. Of many comments in response to the event, some wonder why the Rajawali troops are not clearly defined by their profile, qualifications and designation. The public only knows the troops demonstrated their skills during an inauguration ceremony held by the State Intelligence College (STIN).
From these facts, sharp observation is needed to identify the problem behind the troops’ title. First, does BIN have the authority to form special forces or units that qualify as combatants? Second, what justified the formation of the troop? Finally, what kind of solutions are in store?
Article 30 of Law No.17/2011 on BIN says the agency exercises a series of powers, one of which is the authority to form a task force. This is specified further in the implementing regulation, namely Presidential Decree No. 90/2012, Article 4 Letter e of which states that BIN has the authority to form a task force. The two regulations provide an understanding that the formed task force is in the capacity to carry out the duties of BIN.
The BIN Law stipulates five main tasks of the spy agency, namely (1) conducting studies and formulating national intelligence sector policies, (2) delivering intelligence products as material for consideration in determining government policies, (3) planning and implementing intelligence activities, (4) making recommendations related to foreign individuals and/or institutions and (5) providing considerations, suggestions and recommendations related to the security of the government administration. In addition, Article 3 of the 2012 Presidential Decree adds that BIN’s duties include coordinating the delivery of intelligence.
Thus, the formation of a task force by BIN must comply with the mandate of the prevailing law, which defines these tasks as more inclined to the review of policies, the distribution of intelligence products for consideration in policy-making, coordination, and planning and intelligence activities. In other words, there is no single article that provides space for a task force to carry out combat duties like the Rajawali troops. Thus, the establishment of the Rajawali special forces is inconsistent with BIN’s duties.
Even if the Rajawali special forces were to emulate the paramilitary unit of the Central Intelligence Agency, or Special Activities Center-CIA, the BIN unit needs reviewing. The Rajawali special forces are not comparable to the CIA’s paramilitary unit for several reasons.
First, the US legal instruments related to the intelligence sector detail the activities of the intelligence community, including the CIA, through the National Security Act (1947), the CIA Act (1949), and Executive Order 12333 regarding US intelligence activities.
At least the formation of the CIA’s paramilitary unit followed the legal procedures and was in line with the constitutional design. Besides, the CIA’s operational area has been clearly defined, namely supporting the foreign policy.
The lesson we can learn from the CIA in the context of the intelligence ecosystem in Indonesia is that the legal rules governing the intelligence community, including BIN, must be regulated in detail and follow the rule of law, thereby preventing broad interpretation of existing duties and authorities.
Second, intelligence oversight in the US is carried out in layers by both the Senate and the House of Representatives. This is a sign of the checks and balances mechanism that is in place to protect the freedom of citizens from the amount of state power and to prevent counterproductive foreign policies. In addition, regarding the operation, mission or intelligence policy of the CIA, there is a checks and balances mechanism carried out by the CIA director and the attorney general as stipulated in the Attorney General Guidelines, which help ensure that the CIA is involved in foreign intelligence, counterintelligence and covert missions that support national security goals in a way that respects Americans’ right to privacy and civil liberties.
In the Indonesian context, BIN falls under external supervision of two institutions, namely the House of Representatives through Commission I and the District Court regarding the validity of wiretapping. However, in synchronizing and controlling the policies formulated, with the passing of Presidential Decree No.73/2020, the coordinating minister for political, legal and security affairs no longer coordinates BIN. In other words, there is no filter on policies or actions taken by BIN. Thus, the synchronization and control of BIN policies is directly under the President. Therefore, the President’s leadership is key.
Finally, the National Security Act (1947) and Executive Order 12333 constitute a legal umbrella for controlling and coordinating security actors and the intelligence community in the US, so that each actor has a complementary role and task, while ensuring intelligence activities remain within the corridors of national security and do not violate the privacy of citizens.
In contrast, in Indonesia, policymakers have remained unable to formulate a national security legal umbrella that clearly defines the duties, functions and authorities of national security actors and coordination among them.
Thus, the public appearance of the Rajawali special forces is just the tip of an iceberg that illustrates the incomplete legal framework governing BIN and the relations, duties and functions of national security actors. In addition, the troops’ formation reflects ultra vires which is defined as an action that goes beyond the mandate.
BIN, as other state institutions, should exercise its authorities intra vires, or in accordance with its given mandate. One of the country’s founding pillars is the rule of law, after all.
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The writer is political and social change researcher at the Centre for Strategic and International Studies (CSIS) Jakarta.
