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.

[The court in Haarlem]

The state prosecutor opened the case against former AIVD officers Helene S. and Hans H. yesterday by demanding that they serve three and two years in prison respectively for leaking state secrets to the Telegraaf. The two are supposed to have been the source for the infamous Telegraaf article ‘AIVD faalde rond Irak’ that was published on 28 March 2009, since one of the journalists responsible for the article, Jolande van der Graaf, had visited them at home prior to that date. While a subsequent search of de Graaf’s home did not produce any suspect materials, a search of the home of Helene S. did, namely five documents, but none of them were related to the Iraq-Telegraaf case.

Testifying as a defendent, Helene S. claimed that she did not know how those documents came to be in her house. When questioned, the journalists didn’t offer any further information and refused to answer about their source(s). Speaking for the defendants, lawyer Inez Weski spoke out that the state prosecutor’s office had decided very quickly that the leak had come from these individuals. To prove the point that there was actually nothing in the article that could not have been found from material already in the public domain, she handed the prosecutor two boxes full of possible sources that the journalists could have used.

The case has all the markings of ‘making an example’. The prosecutor admitted that the leaked information wasn’t exactly “world news,” but it was more a matter of principle – “The leaking of state secrets is indeed extraordinarily serious.” He also escalated the proceedings by stating that if such leaks occur, the AIVD will lose important contacts because they will fear that their information can potentially end up “on the street.” The very ability of the service itself was therefore being brought into question. A minor case is therefore being expanded into a major breach of security.

Where this will go depends a lot on how far Weski is able to shift attention to other possible sources of the leak – such as the Ministry for General Affairs. Without this the lack of a water-tight defence could prove a problem. We will have to wait and see if she succeeds in hauling Minister-President Balkenende into the courtroom.

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.