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.

The draft version of the letter that the ruling Dutch cabinet will send to parliament shortly, outlining its official response to the Davids report, has been leaked to the Dutch media broadcaster KRO Reporter, which has duly placed it on its website:

http://reporter.kro.nl/dossiers/irak/irak_feb2010.aspx

The letter, which dates from 20-21 January and covers 26 pages, states that the Davids report offers ‘guidance’ (leidend) but that not all of its content is acceptable for the cabinet. It disagrees with the criticism that Balkenende didn’t give sufficient leadership on the issue and that he came to the dossier long after it had effectively already been decided.

The letter also makes an interesting comment on the role of the civil and military intelligence services, the AIVD and the MIVD. According to the cabinet, there was a ‘tension’ (spanning) between the determinations of the Foreign Minister, Jaap de Hoop Scheffer, concerning the threat level from Iraq, and the positions taken by the two services. De Hoop Scheffer has denied that there was any difference of opinion on this crucial question. The letter therefore seems to distance the cabinet from his position.

However, it does back him up by disagreeing that he decided Dutch foreign policy on his own. The letter denies that Dutch foreign policy was effectively decided in a 45-minute meeting at the Foreign Ministry in August 2002, and that from that point on there was no intention of deviating from support for the US-UK line. The Davids report claimed that after the 45 minute meeting, de Hoop Scheffer sent a letter to parliament on 4 September 2002, without discussion with the rest of the ruling cabinet, outlining the Dutch position towards Iraq and WMD. The current draft letter states that due to parliament’s demand for an explanation and an imminent trip to Washington on the 6th, de Hoop Scheffer simply didn’t have enough time to do otherwise. In contrast to the question of the intelligence services, this is evidently a full defence of his position.

In an interview on the radio a week ago De Hoop Scheffer [see 'De Hoop Scheffer: NL must stay in Uruzgan,' The Holland Bureau, 26 January] stated that he would respond to Davids when he felt the time is right. If this letter is delivered to parliament in its current form, this may well be the moment for his response.

It questions the criticism of Davids that the cabinet in 2003 should have informed the parliament earlier about the Host Nation Support agreement, concerning the transport of US military hardware and personnel through Rotterdam and Schiphol airport [see 'Reflections on Davids: III,' The Holland Bureau, 18 January], or the US request for Dutch military assistance on 15 November 2002. Security issues prevented this. 

The KRO press release announcing the draft letter finishes with an interesting conclusion. The letter begins with a note about collective ministerial responsibility. The cabinet seems to be facing the repercussions of Davids and Iraq now as a collective unit, and not as an entity split by party divisions still fighting out the battles of 2002-2003. In terms of the longevity of the current cabinet, this speaks volumes. It has all the markings of a statement of intent to hit back at the opposition’s gloating over an apparently falling cabinet, and to keep going all the way to the end of its mandate in Spring 2011.

On 28 March 2009 the Telegraaf published an article that claimed the Dutch Intelligence Service (AIVD) had failed to correctly inform the ruling cabinet in 2002-2003 about the threat from Iraq. The article said that the Service had simply passed on intelligence it had received mainly from MI6 (which MI6 was simply passing on from the Americans)without checking it in any way. As a result, declared the Telegraaf, the WMD claim was fed unfiltered into the Dutch decision-making process. 

The article caused a lot of unrest at the AIVD itself, because it was clearly based on a leak. A secret self-assessment of the Service’s involvement in the Iraq affair had been passed to the journalist Jolande van der Graaf. An investigation followed (involving the phone-tapping of the paper’s editorial staff and the surveillance of the journalist), leading to the arrest of an employee and her ex-employee partner on 18 June and van der Graaf’s house being searched. The paper fought back, getting a court injunction against phone-tapping and against the Service using any of the material they had gathered through their surveillance. But as the case continued, the focus turned to Minister of the Interior Guus ter Horst, who was the one responsible for allowing the surveillance in the first place. And that could only be allowed if state security was at stake, which it wasn’t, because it was all about Iraq in 2003. So far, though, Telegraaf-Gate hasn’t forced her resignation.

There is plenty of smoke and mirrors in this case, as one would expect with an intelligence agency being involved. It remains unclear why a member of the AIVD would leak a report that would bring the Service into disrepute, as the Telegraaf article did. And as the (effectively illegal) surveillance of the journalist showed, she continued to stay in touch with her AIVD contacts, so they can’t have been upset by the way their information was used. The internal report that was leaked was prepared exactly for the upcoming Davids committee investigation that was just getting moving in March 2009. Was the idea to get the information into the public domain quickly, to influence the investigation? Or just to make sure it did get into the public domain? But then why, if it was so negative?   

The Davids report did after all deliver a somber judgement on the role of the Dutch civil and military intelligence services in 2002-2003. Lacking sources themselves, they had little choice but to work with the material comin gin from MI6. But Davids records clearly that this material was not accepted at face value by either AIVD or the military’s MIVD. There was in fact much scepticism of the claims being made about Iraqi WMD capabilities and supposed links with AlQaeda. In other words, the Dutch services could sense that there was some serious political spin going on in the UK and the US, and they were not falling into line behind it. But their advice was ignored by the political leadership.

On the one hand this might be understandable because the Dutch services were dependant on others for sources of information, But on the other hand it displayed a total unwillingness on the part of prime minister Balkenende or the Foreign Ministry to address the fact that their own services were pointing out the political manipulation of sensitive material. If they acknowledged that, they would have had to abandon their support for the US-UK offensive. And that was out of the question.

However, it went further than this. The British ambassador at the time was deliberately passing information directly to premier Balkenende, cutting the Dutch intelligence services out of the loop. There are strong signs that the Brits did this because they knew of the scepticism amongst the Dutch, so they simply ‘stovepiped’ the necessary messages straight into Balkenende’s office. And the Brits were not the only one doing this either. Which leads to the conclusion of one analyst in the wake of the Davids report – why bother having intelligence services at all if this is what the result is?

But it even goes further than that. Analyst Peter Wieringa has pointed out that some of the information in the infamous Telegraaf article comes not from the AIVD but from the military sister service, the MIVD. And the only place where information from both services is collected is the Ministry of General Affairs – literally, the Ministry that supports the prime minister, Jan Peter Balkenende. Adding yet more smoke and an extra mirror to the affair, Wieringa is clearly speculating – and the emphasis here is definitely on speculating – that the Ministry was behind the leak in order to direct critical attention towards the intelligence services and away from the prime minister and his entourage. A remarkable claim, but Wieringa seems to know what he is talking about.

The Holland Bureau will be tracking any further revelations in this curious affair.

Commissie Davids (ANP)

The Davids Commission delivered its report today on the involvement of the Netherlands in the build-up to and actual invasion of Iraq in March 2003. The reactions so far have been revealing for their focus on premier Jan Peter Balkenende, who has never shown any interest or inclination to dig into the Iraq past. The report partly explained why.

Three principal conclusions have been drawn out from the forty-nine listed at the end:

1) There was disagreement among civil servants within the Ministry of Foreign Affairs over the legality of the Iraq invasion without a specific UN mandate.

This has been known for sure since the NRC Handelsblad published  in January 2009 Memorandum DJZ/IR/2003/158 from 29 April 2003, in which clear as day was stated that there were serious doubts within the Foreign Ministry’s legal division over the political (never mind military) support given by The Hague for the invasion. The top civil servant who sent this critical legal advice to the archive instead of to the Minister, Jaap de Hoop Scheffer, was Frank Majoor - now Dutch representative to NATO. You have to appreciate the significance here of Dutch legal advisors saying that ‘if the Netherlands ended up in a procedure at the International Court of Justice, it would lose’. In The Hague, the ‘capital of international law’, these were not idle words. The Davids report is clear: ‘The Security Council resolutions from the 1990s [1441 in particular] did not provide a mandate for the American-British invasion in 2003.’ And for the Americans, the difference between political and military support wasn’t that clear anyway.

2) Premier Balkenende was absent (as was Minister of Defence Korthals) from the deliberations within the Ministry of Foreign Affairs that led to confirming Dutch support for the invasion. Balkenende only came on the scene in early 2003, but by the then the cast had been set. This means that Foreign Minister de Hoop Scheffer (and his ministerial advisors) effectively set out the government’s policy between August and December 2002. 

Balkenende tried to brush this away in his post-report press conference this afternoon. Ah, he had been fully occupied with the following year’s budget, and oh yes, he’d been away at the major sustainable development conference in South Africa. So he was doing a spot of maths and some tree-hugging while the most serious crisis to hit the post-Cold War era was playing out across the globe? This is beyond parody.

3) The Dutch military and civilian intelligence services were cautious in their assessments of Iraq and its possession of weapons of mass destruction, but were unable to make this information have an impact within the government. 

Once again, here is the proof that intelligence lost out to politics. Useful tit-bits have been taken out of context, manipulated, and served up to parliament and public as justification for war. What is more – although the Dutch services were cautious, they were still completely reliant on Anglo-American intelligence as their main source of information. In these circumstances there was nowhere to go.

As expected, the report caused plenty of knee-jerk reactions from the opposition parties as they lined up to take a dig at Balkenende, still in power seven years (and counting) since these events took place. Above all, the premier’s assumption that he can simply respect the report but disagree with its main conclusions - and then walk away regardless – has gone down badly, none more so than with his erstwhile cabinet colleagues in the Labour party. Labour has been itching to regain a grip on the Balkenende/Hoop Scheffer/Iraq issue since it was forced to drop it in 2006 as the price for joining the current cabinet. Unless Balkenende turns up tomorrow wearing sackloth and ashes, the Labourites are not going to be satisfied.

What next? The Davids report flatly denies that Dutch military forces participated in either the preparations for or the actual invasion of Iraq, despite hard rumours and some unforgettable anomalies – such as Jan Bot standing amongst the Coalition of the Willing at a Tommy Franks press conference on 22 March 2003.

Jan Blom, far right, behind Franks. Coalition of the Willing?

Its highly likely that these suspicions won’t go away, and more revelations may come. It also looks quite likely at the moment, considering the mood amongst all the parties except the Christian Democrats, that a parliamentary enquiry will be established, which would have a more stringent mandate than Davids – something Balkenende would not be able to walk away from. 

But perhaps the most important reflection on the path the Dutch took in wandering into the Iraq fiasco come in conclusion points 14 and 16. The decision to support the invasion was based on international political considerations, and ‘in the first place these were scarcely explicitly mentioned [but ever-present] considerations for Atlantic solidarity.’ These came at a cost – this ‘Atlantic reflex’ prevaled over a more European outlook that may have enabled The Hague to play a negotiating role between Washington and London on the one hand and Paris and Berlin on the other.

Is this Atlantic reflex still in place in 2010? For some such as Minister of Foreign Affairs Verhagen with his human rights agenda – absolutely. For others – notably State Secretary for Europe Frans Timmermans –  it should be abandoned for a more flexible, rational foreign policy that recognises the common ground but that allows room for manoeuvre. Surely if Davids shows anything, its that Timmermans is right?