A/HRC/10/3 page 11 between the proper authorities.23 As an element of best practice, these agreements can be submitted to oversight bodies,24 which ideally undertake a significant auditing process of the foreign intelligence agency before a State enters into such an agreement. Such an auditing process might entail field visits and consulting local non-governmental organizations on the human rights record of the agency. 3. Non-traditional powers to arrest, detain and interrogate 37. After the events of 11 September 2001, some Governments insisted that clear distinctions between intelligence and law enforcement powers were no longer tenable, arguing that the extraordinary character of the contemporary terrorist threat demands that intelligence agencies acquire new powers to interrogate, arrest and detain people. Giving powers of arrest, detention and interrogation to intelligence agencies is not as such a violation of international law, provided these agencies comply with all relevant human rights standards regarding arrest and detention and with domestic constitutional and other provisions prescribed for ordinary law enforcement agencies.25 However, the Special Rapporteur is concerned that in several countries the power shift from law enforcement agencies to intelligence agencies for countering and preventing terrorist threats was accomplished precisely to circumvent such necessary safeguards in a democratic society, abusing thereby the usually legitimate secrecy of intelligence operations.26 This shift can ultimately endanger the rule of law, as the collection of intelligence and the collection of evidence about criminal acts becomes more and more blurred.27 This leads to a situation where States begin preferring to use undisclosed evidence gathered by intelligence agents in administrative proceedings over attempts to prove guilt beyond reasonable doubt in a criminal trial. Seen in the light of the inherent limitations of intelligence information, preventive measures that deprive a person of his or her liberty must not be based solely on intelligence. In these cases, intelligence has to be turned into concrete evidence and proof after a period of time so that the affected person can challenge the evidence against him or her. If intelligence cannot be transformed into evidence over time, or the State fails to obtain new evidence, the preventive measures need to cease. 23 See e.g. the Dutch Intelligence and Security Services Act 2002, arts. 36, para. 1 (d), 40, paras. 1 and 42. 24 See e.g. Canadian Security Intelligence Service Act, section 17 (2). 25 See for instance Ocalan v. Turkey, ECHR, 12 March 2003, para. 106. 26 See for instance Russia’s law “On counter-terrorism action” of 6 March 2006 which transfers ordinary police powers to intelligence agencies while reducing the legal safeguards against the abuse of these powers, for instance in the context of communications monitoring or “stop and search” activities. 27 In the 1970s the Church Committee of the United States Senate had already pointed out that it was exactly the blurring of the distinction between law enforcement and foreign intelligence national security investigations that had led to various abuses outlined in the report, Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, United States Senate, 94th Congress, 1976.