For years, supervision of Dutch intelligence and security services has been struggling with problems. Some supervisors have resigned their task through newspaper interviews, or threatened with it; Service heads and ministers complained that this same supervision limits the strength of the secret service.
Since the introduction of the Intelligence and Security Services Act in 2017, the Dutch Secret Services and their independent supervisors- the Assessment Committee on Powers and the Commission of Supervision of Intelligence and Security Services- about the use of major spy resources: under what conditions can they ignore, on a large hacks or Internet Kabels?
In a general sense, supervision does not function, but in a few essential areas does not, says lawyer and university professor of legal science Rowin Jansen (Radboud University). On Monday, September 29, he will be awarded a PhD on the supervision of the Dutch intelligence services. Never before, the supervisory system, on the basis of open sources and discussions with ministers, the services and supervisors, has been survived.
‘Our secret services have far -reaching powers and you have to monitor very strictly’
It is possible, by the way, says Jansen. Supervising the secret work of intelligence services within a constitutional state based on transparency and control of the government is not necessarily contradictory. “You have to see those services as a shield for the same democratic legal order. They operate on the edge of the rule of law to be able to protect it. Our secret services therefore have far -reaching powers and you have to watch very strictly.”
The discussion about supervision has been going on for years on the ‘unfocused’ and thus on a large scale to tap internet cables – the main reason for adjusting the outdated intelligence law in 2017. Jansen: “That debate derailed and did not return to the rails.” . Under the new law, intelligence services can drag bulk data from internet cables on a large scale for the first time.
That led to political arguments and even an advisory referendum in 2018. Political promises to put the tapping under sharp supervision, turned out to be technically unfeasible and thereby laid the germ for the current patrons, Jansen sees. The Intelligence Act has remained ‘an extension project’, he writes in his dissertation Supervision of the AIVD and the MIVD.
“Large parts of supervision do work,” says Jansen in conversation with NRC. “But around the tapping of internet cables, the law has become too complex and impracticable.”
In the debate about the new law, called the ‘Sleep Act’, it was only about draining. What consequences did that have?
“The fact that the discussion derailed because it was only about draining the cables, the data traffic of full neighborhoods and neighborhoods. The entire country could be placed under the tap of the services, was the fear. But that law regulates everything the services do, such as telephone taps, hacking, going into a house, follow, etc.
“Moreover, draining is much less simple than it was suggested. It is difficult, expensive and focused on actors or targets abroad. Because if the services, just as flat, want to follow someone in the Netherlands, there are easier methods for that. You can request information from the municipality. You can listen to the phone. You can penetrate the computer. ”
Is that the reason that the services barely drain the cable seven years later?
“In the core, it is. A lot of what is going wrong in The Hague, is reflected in this file: steering based on gut feeling, media pressure and framing. And then trying to translate into political requirements that are not well -executable. It has not been warned about that, but there has not been a few eye for that implementation – both with the services and the supervisors.”
Is there too much distrust of politicians about the secret work of the services?
“Politicians are increasingly tending to keep clean hands on an inherent messy terrain. The discussion about this current law has been significantly conducted from distrust. And that distrust has been translated into all kinds of political requirements. That has not proved to be workable.”
The climax of the social discussion about the ‘trawl law’ was the advisory referendum in March 2018. A narrow majority (of fewer than 3 percentage points) of the Dutch voted against the introduction of the law. With political promises, ministers tried to get the rooms.
Jansen: “The cabinet said that it wants to make cable interception and to make it as small and focused as possible. While it is bulk interception: the incorporation of data. You can try to make that very small with political promises, but it just isn’t.”
To get the law through it, the government promised, among other things, to strengthen supervision – in addition to the CTIVD. A review committee was added. For example, if the services want to tap a cable, they must present it to the TIB.
In the ‘normal’ intelligence work, such as eavesdropping, searching DNA research and homes, the TIB approves around 95 percent of the applications-in 2024 around 4,500. But with the cable interception, the ‘towing network’, many requests are rejected.
According to Jansen, the cabinet promised that the TIB would submit any request for a cable cap “a full test”: not only whether it is right, but also whether there is no alternative possible. “So of course the TIB started to do that. But that can lead to micro management. While, to focus it: a defense supervisor is not involved in the number of bullets that troops take behind enemy lines?”
Did those specific effects of the law not made the desired transparency and brightness?
“Those political commitments were very much tied to technology and for a while. For example, the services would not watch in data from streaming services, but what if it now appears that terrorists communicate via YouTube comments?
“Another exception was about filtering out the Netherlands-Netherlands traffic, to say: internet communication under the Netherlands. Then it turned out that the Russian military secret service had hacked Dutch routers and carried out attacks via those Dutch devices.”
What should happen then?
“I think that government agencies always deserve a certain degree of trust. Of course you have to follow them very critically. But building a system of distrust against your own government service does not seem sustainable to me.”
The political distrust results in “bricked and mapped laws and underlying documents with political commitments.” Jansen believes, because the detailed definitions of implementation powers, take the view of what intelligence work is in the base: national security.
What exactly falls under that national security is never defined, that is now a completely open norm. You can intuitively put everything under that everyone will say: that is obviously national security. Such as protecting state security, the state itself and state secrets. After that it becomes a bit more vague. Take terrorism. It is highly dependent on what terrorism is at that time. ”
Like the motion adopted last week that Antifa is a terrorist organization?
“Yes. You see that a container concept is often chosen to hiss something, depending on what politics thinks at that time. On the one hand, I still see clear definitions at services themselves: they monitor what their tasks are. Precisely through the supervision of the services. But on the other hand, the domain of national security now knows many more players without that clear supervision.”
For example?
“The NCTV (National Coordinator Terrorism and Security). There were sixty people and now more than three hundred FTEs at the founding. They always say: we are not an intelligence and security service. They are not formal either, but they are in the secret meetings of the ‘Commission-Dersiekem. The Chamber Committee for the Commission for the Social Commission Social Commission Social Commission Social Commission Social Commission Social Commission Social Commission. Intelligence and security services are delimited to the AIVD and the MIVD.
According to Jansen, the legislator must “put more handles on paper.” Not about the technical implementation, but about the fundamental demarcation of the field of work and of the organizations around it: “Where does public order stop? Where does criminal law start? Or: where does national security start?”
‘It is always looking for a balance: between safety and individual fundamental rights protection’
In 2028 a new intelligence law must take effect. What is possible in that?
“Anyway, the supervisory system must be reformed. We live in a time that is increasingly crawling from peace to war. That new law will have to offer room for the intelligence and security services to build strategic information positions, certainly with regard to abroad. It will always be a balance: between the safety striving and individual protection protection.
“I think that you have to place both forms of supervision – in advance and afterwards – in one instance in one instance. With two different supervisors in the same domain you organize your own institutional competition. That new single supervisor must then have the authority to brake hard and say binding: until here and no further.”
But, he adds: “What really worries me is that under the Cabinet Schoof has been controlled for considerable cuts on supervision. Of course it cannot be the intention that politics will try to curtail supervision through the budget road.”
Does that new law have to be submitted to the population again in a referendum?
“It is not up to me to discuss the instrument of a referendum. But in this file, fundamental rights protection and safety striving come together in a complex law. If you are going to reduce that to a question – are you for or against? – then you miss a lot of nuance.”
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