International intelligence services work together but so should the watchdogs who keep an eye on them, writes Bini van Ginkel.
While everyone is wondering whether the American government has been sneaking a peek at their e-mails and the discussion about trading privacy for security is gathering pace, the extent to which the Dutch government is cooperating with the Americans remains unclear. The question is whether it is in a position to reprimand the American government for unlawfully violating the privacy of Dutch citizens by means of the Prism programme.
It’s an open secret that intelligence services work together. The rules of this type of international cooperation are seldom put down in a treaty. More often, conditions will be covered in a memorandum of understanding, an agreement not subject to legal checks and balances. It is therefore not known which foreign countries the Dutch government is partnered with, nor do we know anything about the modus operandi of these partnerships and the way information is gathered.
Quid pro quo
In general this kind of cooperation agreement is based on a number of principles as yet not laid down in an official framework of principles. The first is the ‘quid pro quo’ principle or you scratch my back and I’ll scratch yours. In other words, if you have something to offer you can expect something in return. A small country like the Netherlands is not likely to jeopardise its dependence on others by looking very critically at the legitimacy of information gathering.
Secondly, the information shared with state B by state A cannot be shared with state C without the express permission of state A.
The third principle is that much of the information is shared on a need to know basis. This ensures that, for instance, the circumstances under which the information has been collected will not be revealed. The final principle is one of trust. States assume that shared information has been gathered in such a way as not to contravene international law, especially human rights law.
In the lack of transparency, partly inherent in this type of work, lies the danger of abuse, hence the perception that intelligence services are above the law. In order to prevent abuse there are limits on their powers which have to be respected, and there are independent and democratic regulatory bodies to make sure these limits are not transgressed.
Although minister Opstelten insists the so-called Commission Stiekem (Sneaky) and the Commission for the monitoring of intelligence and security services form an adequate system to check whether foreign intelligence services are overstepping the boundaries, the fact is that it monitors and controls only part of the methods used by our foreign intelligence service partners.
Moreover, territorial borders have long since ceased to be natural barriers for technological developments, as the revelations of the Prism programme have demonstrated. The need to know principle and the ban on sharing information with third parties encourage a climate in which states do not hold each other responsible when a situation of abuse arises.
At a time of increased dependence and an ever-closer relationship between national and international security, it is clear we need information to keep us safe. We can only obtain this information if we cooperate with other countries. But in the interest of the state of law and human rights, agreements between states should include paragraphs on international cooperation of regulatory bodies as well.
Another option would be to adopt the Belgian model and set up a permanent committee made up of members of the parliamentary regulatory bodies of the different states who share information and best practice expertise. And it should at least be standard procedure to exercise parliamentary control on the way agreements in principle between intelligence services are shaped.
Bibi van Ginkel is a senior researcher at the Clingendael institute.
This article appeared earlier in the Volkskrant.
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