New Intelligence agency law
01 August 2002
On 20 February 2002 the Dutch Senate approved a new law on the Intelligence and Security Services. With the new legislation the Netherlands will have its own equivalent to MI6 (overseas intelligence agency), with far reaching powers. While the law was introduced on the premise of improving democratic control of the secret services, in practice it gives them more powers than they had before.
In June 1994, in accordance with the European Court of Human Rights, the Raad van State (the highest governmental body for the supervision of laws) ruled in favour of giving people the right to view the files created on them by the intelligence services. It also imposed democratic control of the services and stringent conditions on investigation methods.
The new law follows the European Court's decision on the inspection of security service's records. Access to one's records is allowed on condition that:
* the information is more than five years old;
* no new information has been added relating to the subject in the last five years;
* the information is not relevant to any running investigation, and that
* the sources and the methods of the intelligence services are kept secret.
With the new law the names of the intelligence services will change. The Binnenlandse Veiligheidsdienst (Internal Security Service) will become the Algemene Inlichtingen- en Veiligheidsdienst (AIVD, General Intelligence and Security Service) and the Militaire Inlichtingendienst (Military Intelligence Service) will become the Militaire Inlichtingen- en Veiligheidsdienst (Military Intelligence and Security Service). As outlined in Statewatch (vol 9 no 3 & 4), the name change implies the extension of the remits of both services.
Serious questions about the new law have been raised about the issues of democratic control and limitations on complaints about the services' conduct. Complaints can be directed to the national ombudsman (National Complaints Commission), but this institution can only give an opinion and does not have any powers to impose sanctions. An appeal against the opinion of the Ombudsman is not possible. Alongside this a new Commission for the supervision of the services will be created. It will consist of three government appointed members, who will oversee the legitimacy of the activities of the services. Its function and reports are secret.
The biggest change that the legislation introduces is the extension of the services remits to allow for wide-reaching investigation methods. Many of the activities sanctioned by the new law were already practiced by the services, although they were not covered legally. The services are now allowed to open mail without requiring the authority of a judge, rendering the right to confidentiality in communications obsolete. The constitution will have to be amended to allow for this removal of data protection rights. Further, they will be allowed to hack into computers and to record and tap all communications by phone, even in public places. In the past it was necessary to gain the authority of three ministers to tap phone lines, now the approval of only one minister is sufficient.
The services can break into a house without the permission of a minister in the following cases:
* to investigate computer or communication equipment,
* to place wiretaps and videotapes,
* to search a house and to place tracking equipment.
In other instances the services are required to seek permission from a minister, but this seems unlikely to occur as most security service activities will be covered by the preceding instances.
Furthermore, the services are allowed to use undercover agents who can commit any crime without the risk of prosecution. In defence of this measure, the government argued that limitations on them might lead to their exposure. As there are no limitations to the crimes specified, theoretically undercover agents would be allowed to commit murder to avoid being discovered by the organi