In his thesis, Jansen analyses the system of supervision of the Dutch General Intelligence and Security Service (AIVD) and the Dutch Military Intelligence and Security Service (MIVD). This includes, among other things, the so-called ' Secret Committee' of the House of Representatives, the supervision by the Court of Audit, the specialist supervision by the Review Committee on the Intelligence and Security Services (CTIVD), the preventive supervision by the Review Committee on the Use of Powers (TIB) and the District Court of The Hague, the handling of complaints and judicial supervision.
A jumble of agencies has emerged, each of which monitors operations at different times and has different powers. The current system is the sum of ad hoc choices, explains Jansen. 'Over the past decades, new layers of supervision have been added. This was not always done in a well-considered manner. This increases the risk of overlap and gaps. There is also a lot of emphasis on requesting permission from the TIB to use powers. This sometimes hinders the start of operations. It is often impossible to map out in detail in advance how an operation will proceed. Once permission has been granted, CTIVD supervision begins, to ensure that the services do not overstep their bounds. However, there is only limited supervision at the back end, when information leaves the service and other government agencies take action or intervene.
No factory of oversight
Jansen: "We've built a system that reflects post-Cold War thinking, but that is not sufficiently aligned with today's threats. Cyber attacks and state interference are of a different order. The situation can now change so quickly that you benefit most from supervision that can monitor an operation as it unfolds. But we should not want to create a factory of oversight that dots every i and crosses every t. Good supervision requires selectivity. To a certain extent, there must be trust in the professionalism of these services."
The lawyer advocates merging the CTIVD and the TIB. "If you have two independent supervisory bodies in a relatively small domain, it is better to concentrate that expertise,’ he says. ‘Not only does that allow for the pooling of personnel and prevent institutional competition, it also creates a continuous supervisory process in which the “baton” of control can be smoothly passed from the front to the back of an operation." The system also needs a safety valve: in the future, the court should be able to make the final decision if the services and regulators cannot reach agreement.
Serious questions, serious answers
Jansen's research is based on legislation and regulations, parliamentary documents, case law and historical sources, which he used to map out the origins and functioning of supervision. He also spoke to employees of the services and supervisory authorities. They were remarkably candid. "If you ask serious questions as a researcher – how they work, what they are allowed to do and where the bottlenecks are – you will also get serious answers. Institutional issues and hypothetical scenarios can be discussed effectively. Is it permissible to hack a pacemaker? To have an informant infiltrate a foreign government? And is this more a question for independent supervisory authorities or for politicians? I never had the feeling that anything was being withheld or distorted."
Although there has been a lot of criticism of the AIVD and MIVD in recent years in the context of the ‘Sleepwet’ debate, Jansen explains that we should not underestimate how complex the field of work of the services is. "Intelligence services have to operate in the grey zone between war and peace with one arm tied behind their backs. They are dealing with opponents who have no legal or moral boundaries. That is precisely why it is important that supervision is properly organised – strict, but also workable.’ Jansen notes that the services do their work more effectively and cautiously than is often recognised today. ‘There has been strict oversight for more than twenty years, and in that time no major missteps or abuses have ever been detected. That says something about how seriously these organisations take their responsibility."