Lawyers and former spies agree: The new anti-espionage law is wrong

The Iranian intelligence service liquidated Iranian dissidents in the Netherlands. Chinese scientists paid for and influenced human rights research at the VU University in Amsterdam. Russian spies tried to steal information from the OPCW (UN Organization against the Proliferation of Chemical Weapons) in The Hague.

It’s all happened within the last ten years – and according to the government, it’s the tip of the iceberg. Minister Dilan Yesilgöz (Justice, VVD) therefore wants to be able to do more against foreign espionage. On July 8, just before the government went on hiatus, Yesilgöz sent a bill – quite drastic and far-reaching, according to experts – to the Council of State for advice. There is criticism from both the professional intelligence practice and the legal world.

– Endangering Dutch interests through espionage must be severely punished, said the minister. “That is why it is good that a maximum prison sentence of 8 years can soon be imposed on people who carry out espionage for a foreign government,” she writes.

Espionage should be severely punished

Dilan Yesilgoz Minister of Justice

The concept of espionage is expanded in the bill. Where a foreigner previously had to steal state secret information to risk prison, it can quickly also be punished if he or she ‘just’ lends a hand. Smuggling documents or a package across the border, blackmailing someone to help, may all be punished in the future because these activities endanger the national security of the Netherlands. So is targeting unrest through social media during national elections or inciting disruptive actions by farmers, for example, to name just a random group.

Also read this opinion piece by Hugo Vijver: Excessive surveillance damages intelligence work

The influence of the police

The plan for wider criminalization of espionage was already included in the coalition agreement of the current coalition. So far, it has been pretty quiet about the bill. Wrong, according to publicist and intelligence specialist Hugo Vijver. “I wondered: do we really want all this,” says the former defense and AIVD employee. Among other things, Vijver contributed to the Act on Intelligence and Security Services from 2017.

Pond sees three major problems. He fears greater influence from the police. It will play a greater role in detecting activities in this area. After all, the AIVD ‘only’ collects information that the police track and arrest. “I wonder if the police are interested in this,” says Vijver. It is a phenomenon with which she has little experience. “Possible espionage or unwanted influence, such as around such a human rights center at the Vrije Universiteit, often involves an extremely subtle process. The question is only when criminal acts will take place. Intelligence services are skilled and experienced in following such a process, the police are not.”

Secondly, Vijver questions the recent introduction of a ‘knowledge security’ hotline for the university world. This is ahead of the planned legislation. Researchers can report suspicious activity to the hotline. The same applies to international cooperation agreements on knowledge transfer, which can be misused by foreign powers. There may even be a reporting requirement for this.

Isn’t that approach too fixed and too general, Vijver wonders, especially for the university world that depends on the free exchange of knowledge? Vijver: “At companies such as the chip machine manufacturer ASML or suppliers to the Ministry of Defence, everyone understands the need to report to the government. But at the universities? Of course, scientists may become even more aware of the potential utility of their knowledge to foreign powers. But the services are already helping to improve that awareness with, for example, targeted information to sectors where it really matters.”

Freedom of information

While specialists from intelligence practice on the one hand and lawyers on the other often clash when assessing intelligence law, the situation is different here. Vijver’s point of criticism is in line with a recent comment from the legal trade magazine Ars Aequi on the bill. The authors wonder what problem the bill offers a solution to. They also say: “In particular, criminalizing the provision of information is contrary to the right to freedom of information.”

The Dutch bar association also sees problems and, like Vijver, considers the approach too broad. “For a rather far-reaching proposal such as the present one, the justification is scant,” wrote the trade union during the so-called internet consultation on the Administration of Justice Act. The association believes that the government does not specify and define the national interests at risk (such as vital infrastructure, integrity and exclusivity of high-quality technologies) too little; the same applies to actions that will soon become punishable if it is up to the minister. “The intended provision therefore does not provide sufficient legal certainty,” reads the executive order.

Also read: The Netherlands will not be much safer after the expulsion of 17 Russian spies

retaliation

Finally, former AIVD officer Vijver wonders whether the possible consequences for relations with large countries have been thought through. “In practice,” he says, “it may happen that mainly Chinese and Russians are arrested on the basis of the new bill. Because especially the big countries are active in these activities. Until now, they were sent out of our country if they was caught, that could change. But I don’t think major countries let any arrests pass lightly. In retaliation, they may round up and detain Dutch spies.”

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