An interesting court case related to Dutch intelligence matters reached its conclusion today, picking up quite some media coverage, such as from Steven Derix in NRC Next. The high-profile case in Haarlem was against an AIVD officer and her ex-AIVD partner concerning their alleged leaking of classified documents on Iraq to the Telegraaf, resulted in victory for the defendants. The court ruled that journalists have a right to protect the identity of the sources of their information. As lawyer Van den Elzen emphasised, ”this is a good day for press freedom,” not just for journalists but also for their potential sources.

This judgement was more or less a confirmation of an Amsterdam court ruling and the views of the Advisory Committee on Intelligence and Security Services (CTIVD) at the end of 2009. The reaction of the AIVD to the Telegraaf’s publication of a criticial article based on leaked material, which involved tapping the phones of Telegraaf journalists in order to find the source of the leak, was then ruled to be illegal and ”disproportional”.

By upholding these previous judgements, the Haarlem court effectively ruled that the evidence against the two defendants – entirely based on material obtained from the telephone taps – was also inadmissable. The court therefore stated that while it could not address the work of the AIVD per se, it could – and would – address whether the AIVD obtained its information in a legal manner. This was not so. As a result, the case would not proceed any further.

The immediate sense is that this could be an important signal for potential whistle-blowers in the future. Sources are protected – the investigative journalist is a trustworthy channel through which information can be leaked. It is true that the state prosecutors declared immediately that they will appeal and take the case to a higher level. But as lawyer Inez Weski retorted, that means returning to the Amsterdam court that delivered the original critical ruling last year, so the judges would have to overturn their previous judgement.

The question is whether the AIVD is still able to successfully push the case under the heading of national security. The prosecution tried to do so at the opening of the case in Haarlem by claiming the necessary right of the state to set an example against those who leak classified information, and also the damage that this can do to an intelligence service if it is deemed untrustworthy by partners in other services or potential partners in civil society. The court accepted that there will sometimes be cases where the rights of journalists to protect their sources will have to weighed against the demands of national security. What is interesting so far is that the law iss insisting on addressing the needs of national security on a case by case basis – there will be no blanket ruling that any material leaked will automatically allow the state to throw the book at the alleged offender(s). This particular case has not been deemed important enough for the prosecutors to use it in order to prevent future embarrassments. But if I get this right, neither are the courts saying ’we protect the freedom of the press in every single case.’ So the ‘victory for the whistle-blower’ headlines going around are true, but only until the next battle.

Lawyer Inez Weski: The Davids Report II? 

Not much to say on the coalition talks.

After the end of the first round, the signals are that Job Cohen is trying to block a right-leaning cabinet by refusing to share power with the Christian Democrats, as a result forcing the VVD to either go for broke with Wilders and the PVV or take a centre-left coalition seriously. The CDA almost unconsciously seems to go along with this by insisting that their heavy defeat at the polls means they can’t take a leading role in any discussions. “Ons past bescheidenheid” – we need to be humble – is their new, attractive party slogan.

Cohen has also suggested that another attempt should be made to form a right-wing dream cabinet VVD-CDA-PVV. While this might be awfully decent of him in terms of democratic principle, one wonders if he’s not playing games with CDA and VVD supporters and their willingness to support such a move. Cohen is after all pretty good with some sharp moves – just take a look at this.

But with the regular media already searching for something new to say on the negotiations, there is little point in this blog doing the same. So lets switch topic and go back to one of the more interesting curiosity items of news in 2009, the Telegraaf-AIVD case [An Intelligence Affair, 31 January 2010, and subsequent reports]. The reason that the case has re-appeared on the media radar screen is that the court case against AIVD officer Heleen S. and her partner, for allegedly leaking an internal report and other information to Telegraaf reporter Jolande van der Graaf, begins in Haarlem next Monday. Van de Graaf, who made good capital out of being bugged and harrassed by the Dutch state last year, has since fallen totally from any position of respect thanks to her highly inappropriate move to gain an interview with the 9 year old survivor of the Tripoli plane crash last month. But the case has since moved way beyond the ethics (or not) of journalism.

In an interview with Vrij Nederland, S.’s lawyer Inez Weski has stated that she intends to call Jan Peter Balkenende as a witness for the defence. The reason is that she suspects the leaked information – which was critical of the AIVD’s role in assessing intelligence on the Iraqi threat in 2003 – came not from the AIVD itself but from the Ministry of General Affairs, the administrative apparatus behind the Minister President. Why? As the Davids report showed, Balkenende, via the Secretary General of the Ministry R.K. Visser, in late 2002 received two British intelligence reports which were not to be circulated elsewhere. The usual channel for this exchange of information would be via the AIVD itself to allow the Dutch service to assess the material. Both the AIVD and MIVD leadership were offended at being bypassed in this way. In the interview Weski referred to Balkenende running a “private secret service”.

The relevance of this is that the coming court case could take an interesting turn. The Telegraaf article exactly claimed that the AIVD had failed to correctly assess Iraqi possession of WMD. Weski is suggesting that the Ministry of General Affairs is the source of the article because it was exactly the Ministry that swallowed the faulty British intelligence whole, not the Dutch intelligence services. Weski: “That Telegraaf article therefore looks like it served as a lightning rod to attract attention away from the failure of the private secret service of Balkenende.”

This is no small matter. In an article on the Davids report back in April, intelligence expert Bob de Graaff pointed out that up till now the Ministry for General Affairs had largely been ignored in the whole Iraq story, with most attention going to Jaap de Hoop Scheffer and Foreign Affairs. The for-your-eyes-only documents were not the only ones that passed from London via Visser to Balkenende, and all these items – which were not disclosed to the Davids committee – were of crucial importance for setting out Dutch policy. De Graaff’s conclusion is that “a small club of civil servants without legal justification played intelligence analysts under the protection of the Minister President.” Not good.

The possibility now is that even if Balkenende doesn’t testify, the case will break open this aspect of the Iraq story a little more. Weski’s move could bring some late justice for the misused and abused intelligence services. But what looks certain is that Balkenende began his first premiership back in 2002 with the Iraq storm-clouds looming, and he’s going to end his last premiership with those same clouds still chasing him.

Cüneyt Ciftci and the German Taliban

Recently growing attention has been given to US citizens who have joined the jihad in Pakistan. But the phenomenon is not limited to Americans. The story of the men from The Hague who turned up as ‘tourists’ on the Kenya-Somalia border in July 2009 is well known. Now stories are emerging of Dutch involvement in military action against NATO forces in Afghanistan.

 The Telegraaf today includes an article on a 21-year-old Dutch-German citizen, Danny R., who has recently been killed in Pakistan. The paper is quoting Der Spiegel, which itself received the information from the German BVD. Danny had chosen the path of radical Islam in Berlin and together with a group from the city travelled to Pakistan last September. So far six known Germans have been killed in fighting in the region, and there has been a lot of attention given to the online exploits of (presumed killed) Eric Breininger / Abdulgaffar El Almani. As the Telegraaf notes, Westerners are ideal not just as reinforcements but as propaganda material for online video clips, proof that the holy war is supported by the very same nationalities as the enemy NATO forces themselves. As yet, no Dutch citizens have appeared, but it may only be a matter of time.

The Telegraaf quotes an AIVD source that there are around 15 known Dutch jihadis in the region. Alongside this and the Kenya-Somalia case, there have been two Dutch killed in fighting in Kashmir and the arrest of Wesam al-D by US forces for his involvement in IED operations. In total, several tens of Dutch citizens are involved in jihadi activities in various locations. The chosen route for going abroad appears to be via Morocco, and from their to Somalia, Yemen, Iraq, or Pakistan. Others go to attend a madrassa in Egypt.

The concern of the security services is often not just related to what these individuals do in Afghanistan-Pakistan. Following training, they can as Dutch citizens return to the Netherlands, ready to answer the call for further action. However, the AIVD source claims that these Dutch jihadis cannot easily return to the Netherlands because “they have been away too long and on return will be immediately arrested or put under permanent surveillance.”

This last comment is of course the most interesting, because it suggests an all-knowing intelligence and security service that has already identified the right suspects. It is above all a good confidence-building measure to show that the threat is completely covered and will be dealt with should that be necessary. The recent declarations that the AIVD needs to expand its operations abroad to track developments that may affect Dutch national security is not entirely at odds with this comment, but it does come close. For if the service is already so effective in tracking the main threats, it does raise a question why there is a need to expand its operations.

In this context it is interesting to read the AIVD’s report for 2009 next to the equivalent report from the Military Intelligence and Security Service, the MIVD. As well as support for Dutch military operations abroad, the MIVD also produces threat analyses and “investigates potential threats and the military forces from nations that could form a threat to the security of the Netherlands and the NATO area” (p. 11). In terms of the kind of war that is going on in South Asia, where the distinction between military and civilian forces ranged against NATO is not very clear, and the international range of these forces (from training camp to terrorist) is proven, it looks as if the MIVD already presents itself as the best prepared for tracking these developments. Whereas the AIVD report talks of cooperation with around 180 other services abroad, and close cooperation with around 30 of them, the MIVD report chronicles the activities of the service across all regions of the world, including Yemen and Somalia. In his recent critique of the AIVD’s intention to expand its presence abroad, Bob de Graaff commented that competition between services can be useful for keeping each “sharp” and “services don’t always have a monopoly in knowledge.” Of course, the resources of the AIVD outstrip the MIVD. But one does end up wondering where one service might end and the other might begin.

Villa Maarheeze, the former home of the Inlichtingen Dienst Buitenland (1946-94) [Photo from here]

The 2009 annual report of the Dutch Intelligence and Security Service has caused quite some reaction in the press [see 'AIVD: Go forth and discover', 21 April, below]. The general response was positive, mixed with cynicism from some quarters. Liaison with other intelligence services abroad is vital, says Edwin Bakker of Clingendael. But you can’t liaise unless you’ve got info to trade, said Beatrice de Graaf of Leiden University, so get the agents out there. But there are limits. Liaison is one thing, running secret operations something else entirely. But even the the CIA is moving in the same direction.

Meanwhile one area of the AIVD’s domestic activities has come under increasing scrutiny. Under pressure from parliamentary questions, the Ministry for Home Affairs sent a letter to parliament on 19 April outlining that the AIVD conducted 1078 taps (telephones, internet, and hidden microphones) in 2009. The military intelligence MIVD conducted only 53. Considering the previously released figures of tapping undertaken by the police, these figures seem low. And they also involve fewer people than the figures suggest, because some people are obviously using more than one number and being surveilled in more than one way.

All the more reason to send the intelligence boys overseas to find out whats going on abroad, since the Netherlands is relatively quiet these days. But its not so simple. Bob de Graaff, Prof. in Intelligence and National Security in Utrecht, has pointed out a major flaw. The AIVD is intelligence (foreign) and security (domestic) merged into one organisation. The two parts of the service operate according to different codes: domestic security according to the rules of the democratic state, foreign intelligence according to….well, according to whatever may be necessary, says de Graaff. The two don’t necessarily fit.

The AIVD was formed in 2002 with an emphasis on domestic security. The threat of islamic radicalism at the time seemed to justify this. The Inlichtingen Diesnt Buitenland, the forerunner for foreign intelligence, had been dissolved in 1994 and was hardly resuscitated in the AIVD structure. Until last month.

De Graaff is not happy with the AIVD’s new turn. The term ‘forward defense’ used by AIVD chief Gerard Bouman to describe the greater activity of the AIVD abroad suggests to de Graaff that no thought is being given to the difference in the codes  of behaviour for domestic and intelligence operations. They are just being collapsed into one, and its offensive, not defensive. Its also way too ambitious. 

De Graaff wonders why the AIVD comes with this shift in emphasis now, and speculates that it might well have to do with concerns over government cutbacks. I agree. Producing reports that say the AIVD has contributed to the neutralising of domestic threats also raises questions as to why the service, which has greatly expanded in personnel in recent years, should hang on to that position. Re-directing its attention to the great boundless abroad is a good solution, and all in the name of national security. The 9/11 Commission said that the world is a US domestic security issue. It looks like the AIVD is trying to play that game too. But as de Graaff concludes – this isn’t for the service to decide alone, its for the politicians. Yet in a time when The Hague seems to be going provincial, the AIVD is going global.

The AIVD – via its forerunners the BNV (1945-46), CV (1946-49), BVD (1949-2002) and IDB/BID (1946-94) – celebrates its 65th birthday this year. The AIVD was formed to provide intelligence and security functions both domestically and internationally: investigating threats to the state, checking those who enter positions of responsibility, protecting business and state from espionage, gathering intelligence abroad, and producing risk analyses. Yesterday it issued its report for 2009. How does it see the world?

The director, Gerard Bouman, is largely optimistic. The service has expanded rapidly since 2002 in response to the perceived terrorist threat. Bouman emphasised in his presentation that radicalism within the Netherlands has declined, but the threat from abroad remains active. This is either from Dutch citizens going abroad to training camps, or other nationalities using the Netherlands as transit point or ’sleeper’ location. Examples in 2009 were the four from The Hague who turned up on the Kenya-Somalia border as ‘tourists’, and the Christmas ‘underpants’ bomber on the Amsterdam-Detroit flight. Other notable incidents included the prevention of five American men, suspected of following a jihadi training course, from travelling from Somalia via the Netherlands to the US. Nevertheless, the report notes that “in 2009 the AIVD had no indication of a concrete threat to the Netherlands from outside” (p. 13). This opinion led to the National Coordinator for Counter-terrorism to lower its terrorist threat level from ’substantial’ to ‘limited’ at the end of last year.

With the terrorist threat declining and local jihadi radicals at least ‘disengaging’ (if not de-radicalising), the AIVD has started to look elsewhere - right- and left-extremists, and animal rights activists – but it is difficult to produce a picture of these incoherent groups that poses a threat to the state beyond what the police can deal with. More important are developing threats from foreign organisations: the report refers explicitly to Chinese interest in the defence and technical industries, a Russian focus on ”Dutch individuals who (will) play a role in policy and decision-making processes that realte to Russian interests,” and Iranian intelligence operations against dissident groups. ‘Cyber security’ is a growing concern.

What does this add up to? The focus of the AIVD is shifting from domestic to international activities. There’s not much to do at home any more. There is now talk of ‘forward defence’ – the gathering of information and intelligence beyond outside Dutch borders to ensure awareness of developing threats before they reach north-western Europe. This also involved the service being called in to provide ‘quick-response’ analyses on foreign situations at the request of the Ministry of Foreign Affairs. Since 2008 much of this activity has been focused on nuclear proliferation, with special attention on Iran, North Korea, Pakistan, and Syria.

The one development that has fuelled this more than anything is the Davids report on Iraq, mentioned briefly on page 53 but present in spirit throughout this report. The AIVD states boldly that both they and the MIVD were more cautious in their reporting on Iraqi WMD than “the then political leaders in the information they provided to the parliament.” Neither service possessed sufficient sources abroad themselves and this left them unable to counter the more alarming information being provided by the US and the UK. The message from Davids, taken up by the cabinet in February, was – get your own house in order and don’t be dependent on others for such vital information. Even if they are supposed to be your closest allies. This 2009 report emphasises cooperation – the AIVD has ‘relations’ with no less than 180 other services (p. 61) – but it also expresses a determination to answer that call. The added element to this, of course, is the wish to be more of a major player in the intelligence field, a nation to be taken seriously.

The AIVD cannot call on new funds for this global expansion – its current budget of 175 million Euro will more or less remain the same. But the service is looking – not surprisingly, given the ‘go global’ message – to expand its staff, and this will be interesting in a time of government cut-backs. Where are these extra foreign agents going to come from? Let us expect a “we can’t fulfil our mandate without extra funds” call in the not so distant future.

The Defence Ministry’s eavesdropping dishes at Burum in Friesland (nothern Netherlands) [Source of photo here]

Interesting recent developments in the world of security, parliamentary regulation and politics in the Netherlands. On 6 April the lower chamber of parliament passed a motion demanding that the current Minister for Home Affairs, Ernst Hirsch Ballin, make public the statistics concerning telephone tapping by the security services. At this moment only the figures from the investigative departments of the police are released.

But those figures alone have themselves raised questions in parliament: 2200 numbers a day being tapped, of which 80% mobile numbers, and this is on the rise. The civilian and military intelligence and security services (AIVD and MIVD) do not fall within this category because they don’t need to receive sanction from a judge. Previous arguments have been raised that releasing these figures will damage the operating methods of the services and so undermine security. But this is no longer satisfying several members of parliament, notably from the Socialist party.

But three days later minister Hirsch Ballin responded with a whole different suggestion. In a letter to parliament he proposed bringing an end to the rule that the AIVD must inform citizens afterwards that their telephone traffic has been tapped. The argument was that this regulation cost the service a lot of time, effort, and of course money, since many of those who have come under the surveillance spotlight are not exactly easy to trace to a residential address (even for the AIVD). The minister’s position is supported by the principal supervisory body, the Review Committee for the Intelligence and Security Services (CTIVD), because citizens have sufficient other opportunities to discover if they are being tracked, for instance with a straight-up request to the AIVD itself.

According to those who want to end this regulation, the AIVD’s effort to notify those it listens in on is not backed up by either the European Convention on Human Rights or the European Court of Human Rights. In other words, the service is already going beyond the call of duty in doing so. And in the current period of looming public spending cuts, it is duly being  targeted.

This has goaded several Socialist MPs into action. Not renowned as the AIVD’s most avid supporters, SP’ers such as Ronald van Raak have hit back by complaining that the AIVD has first failed in its efforts to notify citizens of its activities and will now be rewarded for its failure with the regulation’s removal. In retaliation van Raak calls on all Dutch citizens to enquire whether they have been tapped or not: “I call on all Dutch citizens to phone the AIVD.” Unmoved, the ministry retorted that van Raak was turning the issue into “a caricature”.

But what is the value of all this tapping, and the mountains of information that it produces? Does it enhance security? On a slightly different but related tack, the Davids report and the fall-out from Iraq continue to pop up. Most notably on 11 April, when the former head of the MIVD, Joop van Reijn, went public on the radio programme Argos concerning his view of how things went in the lead-up to the Iraq war. Thanks to the Davids report, van Reijn could now speak openly about those matters, but it is definitely the case that he would not do so unless provoked. And provoked he has certainly been. 

The trigger for van Reijn’s interview on Argos was former Foreign Minister Jaap de Hoop Scheffer’s declaration in the Volkskrant some weeks ago that he could not recall receiving opinion from the MIVD that was critical of the information coming in from the UK on Iraqi WMD. Van Reijn countered that this was untrue - criticism of the ‘45 minute’ claim was offered, and on 15 October 2002 there was an inter-ministerial meeting where this critique was once again brought forward. The advice was ignored. Van Reijn could accept this, because politics is politics – but then don’t blame the intelligence services afterwards if things don’t turn out as you want them to. That is a cheap shot, and it brought van Reijn into the studio to defend his service. Van Reijn’s conclusion went further – if you allow yourself to be led by ‘intelligence’ from another nation, as Balkenende and de Hoop Scheffer were effectively doing, that is “a fairly serious business.” Amen.

The long-awaited reports, all twenty of them, from the committees set up to explore all possibilities for cutting back on the ballooning Dutch budget deficit and the national debt finally hit the press last Thursday, nicely just before Easter to give everyone a grim feeling over the long weekend.

Established around 6 months ago, the committees were deliberately set up to allow them to look at every and any possibility. No political taboes in the way. No sections of the government escaping. Everywhere a 20% cut. The figures are disputed, but that the axe is going to fall is not doubted, its a question of when not if. The Central Plan Bureau has estimated an annual deficit of 29 billion per year on current trends. A civil servant financial study group came up with advise that the next cabinet must improve the fiscal position by 15 to 18 billion a year.

And thats the first issue about these reports. There is no fully functioning government right now, only a ‘demissionair’ cabinet that keeps things ticking over until a new formation emerges out of the elections in June. So these reports have landed in the middle of an already tight electioneering battle. Nice timing. They don’t point the way for a ruling cabinet, but offer instead a backdrop for all the parties to profile themselves against. There are big differences of opinion. The Christian Democrats aim for 18 billion, the GreenLeft 12 billion, the Socialists 10, and so on, each party choosing its favourite target. We will all be paying more ‘own risk’ fees for health care. We may even lose our tax relief on mortgages (eventually). A whole section of local government – the provinces – could be swept away, bringing 1.8 billion savings. The Netherlands has made itself into a massive experiment.

Two things about this whole process don’t feel so good.

The first is the fact that much of the hole in the state finances came among other things from pouring billions into several banks over the past 18 months: Fortis, ABN, ING. Yes we need the banks, without banks an economy can’t move. But it feels pretty sad if the largest share of the costs accrued from this (ongoing) rescue operation are merrily passed on to the ordinary citizen. Ah, but unemployment, projected to hit 10% in the Netherlands, remains stubbornly between 5 and 6. So the Keynesian rule that you don’t cut back during a downturn can apparently be ignored. The state, having taken on the debt of the banks, passes it on to the people without being able to ensure that the banks won’t carry on pre-2008. Meanwhile the bonuses continue to flow. A golden opportunity for effective reforms was therefore missed.

 The second is that the relative position of the Netherlands internationally is not so bad at all. True, the national debt has risen from just above 50% of GDP in 2007 to around 75% now, and will continue to rise. But that still places it below Germany, the rule-maker when it comes to setting budget targets in Europe, never mind France, which is now around 100%, or Italy, around 130%. From the major economies in the EU only Spain comes out better. Recent figures also suggest that the Dutch industrial sector is starting to see an increase in orders. Its current account balance actually improved slightly from 2008 to 2009. Is this the right time to start undermining the chance of recovery for the sake of fiscal purity and abstract economic theory? No its not.

True, the reports are purely advisory, not policy. But they are proof of how nervous the Dutch state gets when figures start diving into the red. With this exercise the Netherlands is way ahead of everyone else in terms of seriously assessing what has to be cut to balance the books. Way ahead. No other nation has so far attempted to get a grip on everything like this. The UK has a far worse position but coming elections have exactly swept any serious discussion from the table (ironic really, when you think about it) as both Labour and Conservatives look to protect their interests. Obama has now also created a bipartisan to look at options, but in doing so he effectively removed the problem (temporarily) from his agenda. In big contrast, a strong hint of ‘best student in the class’ is once again emanating from the Hague.

Will cuts hit every corner of government? Yes they will. Even the intelligence and security service, the AIVD, since 9/11 a massively expanding operation, will take its share. Recent figures from the Ministry of Home Affairs indicate a budget of 176 million Euro for the AIVD this year, but this will decline to around 171 million by 2014. However, in 2000 its budget stood at around half that amount. So the cuts are likely to be minimal in comparison with other areas of government. The security of the nation must come above everything else, after all (I wonder for instance if this round of cuts will have any impact on major defence projects like the Joint Strike Fighter). And compared to the US, its cheap. Recent figures indicate a total budget for all 16 institutions in the US intelligence community of around $75 billion a year, and that is the public figure – there is plenty more invested via the ‘black budget’.

It used to be that Western intelligence services had to look out for leaks to the Russians. Now anything is possible. Ideological conviction has long been replaced by greed, as those with secrets look for the highest bidder. Aldrich Ames sold information from the CIA for years for no other reason than the benefits of an extra Kremlin paycheck. A court case running in London at the moment shows that there are no limits to this kind of behaviour.

Daniel Houghton worked for MI6 from September 2007 to May 2009. His departure from the Service remains unexplained, but it has turned out that he left with digital files from MI5 covering security and intelligence gathering techniques and the details of 300 British agents. And ten months later, on 1 March 2010 at a London hotel, he allegedly tried to sell this information to representatives of a foreign service for £900,000.

Apparently, the foreign service Houghton had in mind was the Dutch.

What he discovered was that the representatives were in fact undercover MI5 running a sting operation, and Houghton was arrested leaving the hotel. His case is currently being heard, and the stringent Official Secrets Act could mean he faces a couple of decades in jail. Up to last week it had been assumed that he was caught thanks to long-running surveillance by MI5. But it came out in court that there had been a tip-off from the Dutch intelligence service. Houghton apparently telephoned a Dutch contact in August 2009 to discuss a possible deal. Instead of grabbing the bait, the Dutch called MI5. Houghton has dual British-Dutch citizenship. Maybe his divided allegiance got the better of him.

Whether further details of this weird case will come out remains to be seen. The best case scenario is that MI6 knew something was up and tracked Houghton, with the use of MI5, all the way to the sting. The worst case scenario is that they were clueless that an employee quit after a remarkably short space of time with a couple of USB sticks in his possession that could have blown a couple of hundred of their agents. This is unfortunately the more likely of the two. But surely the strangest aspect is the fact that Houghton approached the Dutch with his wares. Either this was purely a money-driven operation, and he naievely thought his faniliarity with the Netherlanders would enable him to swing a deal. This is the more likely scenario. Or he genuinely had information that he thought would be specifically of interest to them.

Even the closest of allies make use of opportunities to spy on each other. Jonathan Pollard of the US Naval Investigative Service spied for Israel for cash. Economic espionage is now all over the news with China, but we’ve seen it before with Echelon, and its been a growth industry since the end of the Cold War. But if Houghton had material of value, would it make sense that his first port of call would be The Hague? The case continues on 15 April.

A small victory for openness. The editor of OnJo, the online portal for investigative journalists working with Argos, Zembla, and KRO’s Reporter, has won a court case in The Hague determining that the AIVD and MIVD should release material concerning Iraq. Up to this point the services had refused to release the requested material because they claimed it would damage the status of the Davids Commission, undermining the official investigative body on the Iraq issue.

The OnJo editor, Wil van der Schans, originally requested material on the Iraq invasion in December 2008. With the coming of the Davids Commission in March 2009, the matter was shelved by the authorities.

Yet the CTIVD ruled already in June 2009 that there was no reason why the ongoing Davids investigation should block the release of material “appropriate for the public realm” (“voor de openbaarheid geschikte”). And now the court in The Hague has ruled that even if there would be an issue of bypassing Davids, the requirement of openness, in the public interest, came first.

It is an interesting decision. OnJo represents the corner of Dutch journalism (NRC excepted) that has been most active in trying to uncover the truth behind the Dutch role in the Iraq affair. The attitude of the intelligence services was clearly that the request did not need to be taken seriously, and the coming of the Davids Commission was a useful cover. But both the CTIVD and the court say that the issue should not begin and end with the official investigation carried out by Davids. If other institutions demand openness, they should also be allowed to play their role in the public debate.  

This minor victory for investigative journalism comes at a time when exactly these institutions are under pressure to justify their existence. Public broadcasting is facing cuts as the government moves slowly towards drastic moves to reduce the budget deficit. And these commercially-orientated times, as we see everywhere in the media, the first to go is costly investigative journalism, which requires the most investment for the shortest air time. Both the radio programme Argos and the tv series Reporter are under threat. Less money, unfriendly broadcasting slots….and more commercial junk to replace them. Progress.

The Netherlands, a stable parliamentary democracy, happens to be one of the most surveilled societies, in terms of the extent to which police and security services monitor private communications. In May 2008 the Ministry of Justice released figures that stated the number of telephone taps in the second half of 2007 reached 12491 in total. That is 1681 per day. 84% of this tapping concerned mobile phones. Compare this with the news that there were 2208 taps in the United States in the whole of 2007. And the Dutch figures concerned only the police – the security services fall outside of this assessment.

Remarkably, apart from long-running demands for openness from the Left, this activity is largely accepted in Dutch politics. But recently pressure has been building to make a breach in the secrecy wall surrounding the security services. The 2009 revelations of the AIVD tapping the phones of journalists at the Telegraaf [see 'Reflections on Davids: An Intelligence Affair,' The Holland Bureau, 31 January 2010 and thereafter] brought it into the public domain in a blaze of publicity. On 27 January 2010 three members of parliament submitted a motion demanding details on the extent of telephone and internet tapping by the Security and Intelligence Service (AIVD) and its military cousin, the MIVD. The response on 18 February was like seeing the tip of an iceberg – Minister for Home Affairs Guusje ter Horst, responsible for the security services, announced that the activities of the AIVD and the MIVD only represent a fraction of the total number of taps that are sanctioned by the Ministry of Justice. She also stated that while she indeed must declare information relevant for explaining certain policies, this could be refused should it damage the interests of the state.

Needless to say, giving away the details of telephone and internet taps by the security services would give away too much on their methods, and therefore falls squarely under the heading ‘national security’.

As a result, the parliament should trust in the workings of the respective oversight bodies, the Commission for the Intelligence and Security Services (CIVD) and the Review Committee for the Intelligence and Security Services (CTIVD). The CIVD is the parliamentary oversight committee for the services, which consists only of the respective leaders of the parties in parliament and is of course restricted in the information it can make public. As of 2010 the CIVD receives a review of security service activities every three months. The CTIVD (which has an English website) is an independent body established in 2002 to ensure that the activities of the security services fall within the bounds of European law (specifically to do with the protection of human rights). The Services can overcome European legal restrictions if they argue successfully to the CTIVD that they must do so in the interests of national security.

Of course, ter Horst insisted that questions of such a sensitive nature as tapping should be dealt with by these established channels and not announced for everyone to hear in parliament.

But information on security service activities can reach the public realm by a variety of channels, especially when their activities necessarily touch on the legitimate activities of businesses and other relevant parties. At the beginning of March the the National Management Organisation for Internet Providers (NBIP) released figures for 2009 that showed the AIVD and the Ministry of Justice tapped 335 times an internet or VoIP (Voice over internet Protocol) connection, involving in total more than 1.5 million end-users.  These 335 taps stretched for a total of 8920 ‘tap-days’ in 2009. This information was released via Webwereld.

NBIP was set up in 2002 in order to spread the costs of investments required for internet surveillance across participating Internet Service Providers (ISPs). The state requires that ISPs fulfill this task, and its costly. NBIP currently offers its services to 79 ISPs, among them Tele2 and BBeyond.

NBIP itself was involved in the tapping of 59 internet providers. But it can’t go any further than this – releasing details of which providers were tapped, or what the AIVD was after, would cross the line of state secrecy. But NBIP’s figures already give quite an insight into what is going on. Since the Organisation represents less than 10% of the landline and mobile provider market, these numbers can be multiplied by a factor of ten for a (very conservative) estimate of the national situation. That means a total of 3350 internet taps, stretching for 90,450 ‘tap-days’.

And these figures are on the rise. 2006 saw 69 taps on internet connections, covering 1.5 million end-users. From 69 to 335 in four years is a rise of 385%.

The Ministry of Justice announced in November 2009 that the national police corps will keep a record of all internet taps from 1 january 2010 onwards, and this information will be periodically released, as now occurs with details of telephone tapping. The first official report on internet tapping will be published this autumn. Once again, no details of AIVD or MIVD activity in this field will be made available.

Does all this surveillance lead to a reduction in criminality or subversive activities? The Ministry of Justice obviously thinks so. But ever-increasing surveillance also means ever-increasing amounts of information to be monitored. What is more interesting here is that, in a period when the German Constitutional Court ruled against a law that demands the retention of all telephone and email traffic for 6 months, and the European Parliament once again showed concerns about the transfer of Passenger Name Record (PNR) data for air passengers to the US and Australia, surveillance in the Netherlands carries on largely undisturbed. In a time when trust in the state is meant to be at an all-time low, this particular field of activity is yet to be fully challenged.