Oversight on secret services in the Netherlands and the United Kingdom from a cultural perspective

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LEIDEN UNIVERSITY

O

VERSIGHT ON

S

ECRET

S

ERVICES IN THE

N

ETHERLANDS AND THE

U

NITED

K

INGDOM FROM A

C

ULTURAL

P

ERSPECTIVE

An empirical analysis of the institutionalization of external oversight at the end of the 20th century

THESIS

MASTER CRISIS AND SECURITY MANAGEMENT

JANUARY 2019

BY: EVA VAN WINDEN

STUDENTNUMBER: S1120182

SUPERVISOR: LIESBETH VAN DER HEIDE

SECOND READER: CONSTANT HIJZEN

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1. Introduction

“The AIVD is the best overseen service of Europe” (Bertholee, June 2017)

1.1.Introduction to research topic

Last year the head of the Dutch AIVD (Algemene Inlichtingen- en Veiligheidsdienst “General Intelligence and Security Service”) Rob Bertholee stated in an interview with the magazine ‘Maatschappij en Politiek’, that the service is “the best overseen service in Europe” (Bertholee, June 2017). The AIVD is one of two secret services in the Netherlands, the other being the Military Intelligence and Security Service (MIVD). Following Bertholee’s statement, the leading Dutch newspaper NRC, published an article which examined the factual basis (Versteegh, July 10, 2017). Kees Versteegh, author of the article, concludes that there is no material that either confirms or falsifies the statement (Versteegh, 2017). He states that this question is simply too difficult to examine. Firstly, it depends on how one defines ‘good’ oversight and how it can be measured. Bertholee is not clear on these two points and it appears that these vital questions are difficult, if not impossible, to answer (Versteegh, 2018).

The aim of this thesis is not to examine whether the statement made by Bertholee (that the Dutch AIVD is the best overseen service) is correct. As Versteegh rightfully argues, it is rather difficult to measure the ‘quality’ of an oversight system, especially when it comes to comparing countries. It is important to acknowledge that oversight bodies of different countries do not oversee exact corresponding intelligence systems; an intelligence system will likely be influenced by the national context of the country in which it is embedded, just like a political or economic system reflects its national context. Davies, an important author within the academic literature on intelligence cultures (a new theory in the field of intelligence studies that takes the national context is the central point of departure), argues the following about studying something from a cultural perspective: “(…) it provides a setting in which one can realistically expect to see through different implementations of the common task (…), the role of culture providing influences, orientations and expectations that cannot be reduced to the internal logic of those tasks” (Davies, 2004: 496). This would mean that, only if one understands the national context in which an oversight system (the ‘common task’) has established, one can tell whether or not this structure of oversight is sufficient for that state, and only then, one can start to compare different countries and this is why one can find a gap in the literature. To date, there

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is hardly any empirical research available (of any country or comparison of countries) in which oversight is thoroughly studied from this cultural perspective, taking the national context into account. This thesis aims to fill this gap by comparing two cases, the Netherlands and the United Kingdom. For a justification of the choice for these specific two countries see section 1.4 and 4.4. By applying the concept of intelligence culture (as explained, a relatively new theory within the field of intelligence studies)the early institutionalisation of oversight on secret services in the Netherlands and the UK is researched in order to gain a thorough understanding of the underlying values that have determined the selection of specific oversight bodies. In fact, it shows that what might be ‘good’ oversight for one country does not necessarily have to be ‘good’ oversight for the other country. As a result, instead of measuring the quality of the Dutch and British oversight systems it aims to show the national contexts in which these oversight systems must be seen.

1.2 Research Question

In this thesis the central research question is defined as follows: How can the concept 'intelligence culture' contribute to understand the institutionalization of external oversight on secret services in the Netherlands and the UK at the end of the twentieth century? The research question comprises three concepts that require additional explanation, viz. external oversight, institutionalization, and secret services (the concept intelligence culture will be extensively covered within the theoretical framework).

In a broad sense ‘external oversight’ means oversight not conducted by the employees of secret services themselves. The latter type of supervision would be called internal oversight.1 Thus, external oversight includes the responsible minister. In this thesis however, a narrower definition is used. The objects of inquiry are the external oversight mechanisms outside the executive (the committees and commissioners), as these are the most prominent oversight mechanisms, and generally the subject of public debate (Born & Wills, 2012: 11).

Secondly, the term ‘institutionalization’ or ‘institutionalized’ refers to the initial formal establishment of external oversight bodies. The focus here lies on two elements of institutionalization, namely the structure of external oversight bodies in terms of parliamentary versus non-parliamentary, and secondly whether the mandate is to oversee legality, efficacy, or both.

1_{Both types will be further explained in section 2.2}

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Thirdly it is pointed out that although intelligence and security services are both part of the secret realm of government, they are in fact two different types of organizations. Whereas an intelligence service is demand-driven, interests oriented, and therefore has an opposing nature, security services are intelligence-led and threat oriented which requires a defensive nature (Abels, 2018: 5). Therefore, intelligence and security services do not only conduct different tasks, they require different mind-sets of their employees (ibid.).2 External oversight bodies oversee both types of services and therefore, the overarching term ‘secret services’ is used throughout this thesis. It is stressed that in this thesis the single world ‘intelligence’ in terms such as ‘intelligence culture’, ‘intelligence system’, ‘realm of intelligence’ or ‘intelligence world’ covers both intelligence and security services.

1.3 Relevance

According to Warner oversight in the field of intelligence studies is still an under-researched topic (2009). This does not mean that it hasn’t been researched before. In fact, several inquiries have been conducted on the topic in which parliamentary and non-parliamentary oversight bodies have been compared. This often entails an analysis of the advantages and disadvantages of the two types. However, the value of such an inquiry is questionable. Every oversight body is different in practice and therefore the use of a simple list of advantages and disadvantages to see which type is superior is unsatisfactory. As mentioned in section 1.1, lacking in the academic literature on external oversight is research on the underlying motives and values that determine the choice for a specific institutional framework (including the choice for a parliamentary or non-parliamentary body). These underlying meanings however are crucial if one wishes to say anything meaningful about the quality of an oversight body in the first place. What works for one country might not work for another country.

This thesis intends to contribute to fill this gap in how oversight can be researched (the lack of a cultural perspective) and is therefore academically relevant. It aims to shed light on a new approach in the field, a constructivist perspective, by using the concept intelligence culture. By applying this constructivist approach, the thesis contributes to the young field of intelligence studies in general as well, as constructivism has not only been lacking in research on oversight but in all aspects of intelligence studies. Furthermore, due to its young history the field lacks a sufficient amount of empirical and comparative research and this thesis covers both elements. Finally, much research in the field has been based on American and British intelligence

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systems. Therefore, comparing the British institutional framework for oversight to the institutional framework of the Netherlands deviates from the usual path.

Of course, this academic relevance is important and valuable, but it is not the only positive feature of the study. Societal relevance is also into play. Especially in the Netherlands, oversight on secret services is currently a hot topic of public debate. The debate had risen in light of the new Dutch Act on Intelligence and Security Services that was subject of a non-binding national referendum in March 2018 and which came into force two months later. The focus in this debate lies on the protection of personal data and overseeing the use of special resources that enable secret services to collect personal data, even of non-suspected civilians if needed (Amnesty International debate, De Balie Amsterdam). According to Prof. dr. P.H.A.M. Abels (his title will be explained in subsection 1.4 and 4.4) who took part in quite a number of these public debates, people were indeed mainly concerned with this research-oriented cable interception and how this was going to be overseen by the committees that conduct external oversight on the work of the AIVD and MIVD (Appendix I). Oversight however is much more than that and therefore it is important to contribute insights to the debate from a different perspective. Knowledge about the origins of external oversight bodies (i.e. how external oversight was institutionalized) through the concept of culture can provide a deeper understanding of the phenomenon. The concept of culture shows that the existence of a universal standard for ‘good’ oversight is questionable. One must try to understand the culture in which these oversight bodies are embedded before one can make any attempt to make a grounded statement about its ‘quality’. This thesis shows for both the UK and the Netherlands the national context in which the oversight bodies that we know nowadays, were established, to help one understand the differences that one can notice between the Dutch and the British oversight systems.

1.4 Thesis structure and an introduction to the methodology

This thesis is structured as follows. Chapter 2 clarifies the theoretical framework. Section 2.1 offers a detailed discussion on the theoretical concept ‘intelligence culture’. Additionally, a number of related theoretical concepts are illustrated and a model for empirical research provided. It also includes an explanation of how the concept is defined and applied in this thesis. In Section 2.2 the phenomenon of external oversight is explained. Subsection 2.2.1 sketches the rise of oversight on secret services at the end of the twentieth century, subsection. 2.2.2 shows the position of external oversight bodies within the wider oversight system (which also

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includes internal oversight taken), and finally subsection 2.2.3 reflects more deeply on specific aspects of those external oversight bodies that are subject of inquiry in this thesis, viz. their structure and mandate.

Chapter 3 provides case descriptions of the institutionalization of external oversight in the Netherlands and the UK at the end of the twentieth century following the model provided in section 2.2. Chapter 4 outlines the methodology of the research and Chapter 5 provides a description of the intelligence cultures of the Netherlands and the UK at the time it’s first oversight bodies were institutionalized (thus placing the description in a historical perspective). Chapter 6 analyses the policy process that led up to the institutionalization of external oversight in the Netherlands and the UK at the end of the twentieth century in terms of structure (types of oversight bodies) and in terms of mandate (overseeing legality versus efficacy and which of these types is most prominent). This research is based on the hypothesis that these aspects of the institutional frameworks (structure and mandate) reflect the intelligence cultures of both countries at the time they were established. Final Chapter 7 presents the conclusion and discussion of the research and proposes ideas for further research.

Finally, one can find below a brief introduction to the methods that have been used to conduct the research and which will be further explained in chapter 4. The analytical method applied in this research is process tracing and it involves two types of data-gathering: desk-analysis and interviews.

The desk-analysis entails the use of different parliamentary and non-parliamentary documents that reveal the policy process leading up to the design of certain types of external oversight institutions.

Additionally, in May, two extensive interviews have been conducted: one with prof. dr. P.H.A.M. Abels and one with Mr. Nigel Inkster (Master of Laws). Prof dr. P.H.A.M. Abels has a vast experience with the Dutch intelligence and security system since he has worked for the services BVD, AIVD, NCTb, and NCTV. Currently prof. Abels is endowed professor Governance of Intelligence and Security Services’ at Leiden University’s Institute of Security and Global Affairs (ISGA). Recently prof. Abels took part in a number of debates on the new Dutch Act on Intelligence and Security Services (WIV 2017). As the former director of operations and intelligence for MI6 (the well-known British Secret Intelligence Service), Mr. Inkster (Master of Laws) has extensive experience with the British intelligence world and therefore has significant knowledge of the British intelligence services and its oversight. He joined MI6 in 1975 and left in 2006. Following his long-term employment at MI6 Mr. Inkster

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became the Director of Transnational Threats and Political Risk at the International Institute for Strategic Studies (IISS) in London. Both prof. dr. Abels and Mr. Inkster (Master of Laws) were willing to share interesting insights which add significantly to this thesis.

Finally, throughout the thesis some minor references to the interviews have been made (besides their contribution to the actual analysis) as some insights from the interviews were of added value to certain descriptive paragraphs in the thesis (in section 3.1 for example).

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2. Theoretical Framework

As mentioned earlier this chapter consists of two parts. Section 2.1 outlines the concept ‘intelligence culture’. The work of several experts is discussed and relevant concepts are illustrated. Also, a model for empirical analysis based on the concept ‘intelligence culture’ provided by De Graaff and Nyce will be introduced. Finally, an explanation is followed on how the concept intelligence culture will be defined in this thesis.

Section 2.2 is an account of the phenomenon of oversight in general, more specifically, an account of the external oversight mechanisms outside the executive. First, it provides an overview of the larger oversight system of western democratic countries and then shows the position of external oversight bodies relative to other oversight mechanisms (taking internal oversight and oversight by the executive and the public into account as well). Finally, the two institutional elements that are the focus of inquiry are discussed: the structure of an external oversight body (two types: parliamentary versus non-parliamentary), and the assigned mandate (overseeing legality and/or overseeing efficacy).

2.1 INTELLIGENCE CULTURE

2.1.1 Introduction

In the introduction of The Handbook of European Intelligence Cultures the authors state that there is a British way of warfare, there is an American way of warfare, there is a British way of politics, there is an American way of politics, and thus there is a British way of doing intelligence and an American way of doing intelligence as well. For that matter there can be any number of national cultures of intelligence, which reflect the history and circumstances of the nation-state in which intelligence and security services were established (De Graaff & Nyce, 2016: 1-18) Furthermore, the authors stress that these national intelligence cultures are shaped by their country’s history and environment to such an extent that even what is understood by the word and the reality of intelligence can differ markedly per country (De Graaff & Nyce, 2016). Philip H.J. Davies, a prolific writer in the field of intelligence cultures, also explains these aspects. Davies’ central point of departure is the conception that there is no such thing as a single, universally accepted notion of what the concept of intelligence itself means (Davies, 2004). In his view, definitions of intelligence are culturally dependent (ibid.). Davies (2002)

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and Davies (2004) explain that the meaning of intelligence in the UK is rather different than it is in the USA and that this semantic difference has profound and pervasive institutional implications (ibid.). “(…) these definitions reflect, and sometimes even drive, fundamental differences in how intelligence institutions have taken shape in the two countries” (Davies, 2004: 501).

What Davies aims to show is that in order to compare intelligence systems3 in different countries, it is crucial to be aware of the ‘circumstances’ of those nation states (social, political, economic, and cultural conditions to name a few) in which national intelligence systems have developed, just like the Graaff and Nyce argued. Therefore, according to Davies, we should not occupy ourselves with the question ‘What is intelligence?’ but rather ask ourselves ‘How do different countries and institutions define intelligence and what are the consequences of those definitions?’ (Davies, 2004)

2.1.2 Intelligence functions and the intelligence system concept

Although there is no general consensus on the definition of intelligence, the function of intelligence is the same everywhere. It is crucial to understand this function if one wishes to understand the phenomenon and be able to make meaningful statements about (components of) an intelligence system (Warner, 2009). Despite the disagreement on how intelligence should be defined (as argued by Davies), common ground can be found in the view that “intelligence is a service or interaction with decision makers to help them manage – by some private or privileged means – the hazards they face in dealing with rival powers” and “(…) intelligence helps leaders act to know or shape the world around them” (Warner, 2009: 16). In other words, intelligence serves the policymaking process of a state. To get a thorough understanding of how this works, Warner argues that international relations theory can provide meaningful insights (Warner, 2009). He states that one must be aware that intelligence is essentially a realist enterprise (Warner 2009). It presupposes infinite rivalry and potential conflict (from non-violent to war) between state actors (Warner, 2009).

Warner also refers to the US intelligence expert Jennifer E. Sims who studies intelligence from a neo-realist perspective and argues that intelligence is a common and perhaps even an inevitable facet of interstate competition (Sims, 2005). Wherever there is such competition there is intelligence, and therefore it is not simply a process that serves decision makers (ibid.).

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In fact, it implies interaction between decision makers and their subordinates to collectively beat their opponents, whilst opposing actors are trying to do the same (Sims, 2005: 15-16). So, “If politics involves the competition for power, ‘intelligence’ may be best understood as a process by which competitors improve their decision-making relative to their opponents” (Warner, 2009: 17 and Sims, 2005: pp. 15-16).

Now we may ask ourselves what role do intelligence liaisons play here? Intelligence liaisons are a form of cooperation and therefore they can be seen as a liberal enterprise rather than a realist one. Sims, however, refutes such an assumption (Sims, fall 2005). She states that these intelligence liaisons are based on shared interests in working against common rivals and therefore are ultimately a derivative of international competition (ibid.). Cooperation yields decision advantage, even though during this cooperation parties involved continue to spy on each other (ibid.).Finally, Sims argues that “success is not to get everything right, it is getting enough right to beat the other side” (Sims, fall 2005: 196-201). Intelligence methods foster decision advantage by stealing secrets from opponents or adulterating the information available to rivals (Warner, 2009).

International relations theory helps to understand the function of intelligence. However, the mechanism by which sovereignties use intelligence methods is something that has not been explained by international relations theorists (Warner, 2009: 18). Warner states that this mechanism was clarified by another group of social theorists, who called it surveillance (ibid.). They intentionally do not use the English term, but the French word as employed by Foucault and others, because in French ‘surveillance’ denotes something larger than spying on people, monitoring spaces, or following suspicious characters (ibid.) As explained by Peter R. Gill and Mark Phythian, surveillance consists of two components. Firstly, it involves collecting and storing of information, and secondly, the supervision of people’s behaviour (Gill, February 2007). Therefore, surveillance is both concerned with knowledge and with power (Warner, 2009 and Gill, 2007). “Surveillance is thus a characteristic dimension of political order that encapsulates the way in which governing bodies (both democratic and autocratic) employ knowledge of their constituents and their rivals in ways to preserve and extend their power” (Warner, 2009: 18). Following this view, intelligence can be seen as just one of several forms of surveillance. The following quotes are instructive to better understand the latter:

“Every sovereignty works to understand and influence risks and uncertainties arising from the world outside the span of control of its regime and, therefore, has

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– by plan or by default – mechanisms for dealing with the larger world. That sphere of activity (i.e., understanding and influencing) is not intelligence per se; it is commerce, diplomacy, security, defence, strategy, and many other things” (Warner, 2009: 23-24).

“Intelligence is that special mode of surveillance that addresses security, secrecy and resistance; that is, it seeks to protect and extend the sovereign’s interest by secret means employed against subjects who do not want to be watched or manipulated (and who might well have the power to resist that watching and manipulation)” (Warner, 2009: 19)

The concept ‘intelligence system’ may now be defined as a structure in which this specific type of surveillance is organized and institutionalized. Intelligence services, security services and oversight mechanisms are components of this intelligence system; they are part of the overall realm of intelligence. In relation to the concept intelligence system, the concept ‘intelligence culture’ can be seen as the set of attitudes, beliefs, norms, and sentiments that give shape, order and meaning to an intelligence process (and its institutions) and they provide the underlying assumptions and rules that govern behaviour in an intelligence system. A national intelligence culture is the product of a nation’s specific circumstances (historical events, its economy, geography, strategy, technologies, ideologies, and perceptions among other elements) in which intelligence institutions have been established and developed (De Graaff & Nyce, 2016). These circumstances differ per country and this is why, according to Warner, it is important to first understand a country’s overall intelligence culture and how this shaped its intelligence system (and determines the behaviour within that system) before one is able to say something meaningful about certain components of a country’s intelligence system (a secret service or an oversight body). “When the circumstances in which the overall intelligence systems operates are understood, then the agencies, functions, and capabilities of those systems could be compared in terms of their purposes, their effectiveness, and their governance, to name only three likely areas of inquiry” (Warner, 2009:12).

In this thesis the focus of inquiry are the external oversight bodies of the Netherlands and the UK. The intelligence cultures of these two states at the time the first oversight bodies were established are the point of departure, because in order to understand why external oversight was institutionalized the way it was in 1994 (the UK) and 2002 (the Netherlands), one must understand the intelligence cultures in which they were established and embedded. The first

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institutions for external oversight in the Netherlands and the UK will (as explained in paragraph 1.2) be compared in terms of structure (type of oversight bodies) and mandate (purpose; overseeing legality versus overseeing efficacy). What motivated the choice for a specific type of oversight body and mandate at the time? What were the underlying motives for the choices that were made? In other words, what were the national circumstances in which the external oversight bodies were established?

In the initial research phase, we will study the Dutch and British national intelligence cultures at the time the first institutional frameworks for external oversight were established. In the Netherlands this was in 2002 and in the United Kingdom in 1994. In the second stage this background information will enable us to make meaningful statements about the idea behind a specific institutional framework (type of oversight body and type of mandate). The model presented in subsection 2.1.3 will be used as a tool for conducting this analysis. Not only does it show how one can apply the concept intelligence culture to the study of certain components of an intelligence system, it also provides a more profound (and visual) description of the relationship between the concept intelligence culture and the concept intelligence system. How the model is used in this thesis is explained in subsection 2.1.4.

2.1.3 Intelligence culture: a model for empirical research

In The Handbook of European Intelligence Cultures De Graaff and Nyce offer a model that illustrates the relationship between intelligence cultures and intelligence systems (see Figure 1 below). It is a model in which intelligence systems (and components of that system, such as the different security and intelligence services and the different oversight mechanisms) are seen as part of an open social system in transition (De Graaff & Nyce: 2016). The word ‘transition’ here refers to the fact that intelligence cultures are not fixed. As an intelligence culture is the product of multiple aspects (historical events, a nation’s economy, geography, strategy, technologies, ideologies, and perceptions among other elements)that are subject to change, it is important to realise that intelligence cultures are not fixed. They can change over time and this potentially has implications for the intelligence system. Thus, an event that eventually turns out to be a major historical event can readily have an impact on a nation’s intelligence culture. The ‘war on terror’ for instance has caused western secret services to cooperate more intensely and increasingly value such liaisons (Appendix I). In other words, it influenced the ‘set of attitudes, beliefs, norms, and sentiments that give shape, order and meaning to an intelligence process (and its institutions) and which provide the underlying assumptions and rules that

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govern behaviour in an intelligence system’ (e.g. it changed certain aspects of the intelligence culture).

Figure 1: Model for Empirical Analysis (Based on De Graaff & Nyce, 2016).

The different components of a national intelligence system (in this case external oversight bodies) operate in two environments: a task environment and a value environment (De Graaff & Nyce, 2016). The task environment refers to all actors that can influence an intelligence system and/or may be influenced by the acts and products of that system (ibid.). The value environment refers to the cultural-ideological climate in which these components operate (ibid.). Interaction between a service or oversight body and its environments is interpreted in terms of input and output (ibid.): input means support or demand (threats and opportunities / perils and promises), and output means a completed product or task (which in case of the services includes the contribution to the decision-making process that leads up to certain national actions) (De Graaff & Nyce, 2016). The environments represent the elements (national circumstances) of which a national intelligence culture is the product. As mentioned in the beginning of this section these elements may comprise historical events, a nation’s economy, ideologies, ethical boundaries, and the character of political leaders among many other things. They influence and shape a nation’s way of doing intelligence. The intelligence system then is the way in which this type of surveillance4 is institutionalized as a product of those cultural characteristics. Finally, one must be aware that “what is defined as task and value (…), depends

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very much on one’s scholarly bias and how one employs this model” (De Graaff & Nyce, 2016: 1-18)5_.

As explained earlier in this section, the model also helps to understand that intelligence cultures are not fixed because intelligence systems are part of an open social system in transition. So far this has only been explained in light of the input mechanism (see above where the ‘war on terror’ was mentioned as an example). However, transition can take place through the output mechanism as well. The model shows this reciprocal relationship between an intelligence culture and an intelligence system. Intelligence failures for instance that cause policy makers to take detrimental policy measures can influence an intelligence culture in the following way. Such failures can change the importance of specific types of intelligence methods. For example, it can cause future ‘human intelligence’ or ‘signal intelligence’ to become more or less decisive in similar cases and/or operations. Also, if misuse of data by the secret services were to be revealed and to cause a scandal, this could potentially trigger a higher level of external oversight. These are examples that merely aim to show how the reciprocal relationship works, that is, that an intelligence culture is not only influenced by input but can be subject to transition through output products from the intelligence system itself as well.

2.1.4 The model applied in this thesis.

As explained earlier, in this thesis the concept intelligence culture is used as a lens through which we will study the institutionalization of external oversight on secret services in the Netherlands and the UK at the end of the twentieth century. In this period the first institutional frameworks for external oversight were established and formally put on a legal footing. The aim of this thesis is to analyse the policy process that led to these specific institutions that were established with the WIV 2002 and the ISA 1994. The word policy process refers to the debate that was held among politicians regarding how potential external oversight bodies should be shaped. Now we must define the concept intelligence culture in a way that it contributes to our understanding of this policy process. Figure 1, the model by De Graaff & Nyce, is taken as the point of departure. Admittedly, however, their model is quite vague: “what is defined as task and value (…), depends very much on one’s scholarly bias and how one employs this model” (De Graaff & Nyce, 2016: 1-18)6. The authors do not give a clear explanation of how to employ

5_{How this model is applied in this thesis will be shown in the next section 2.1.4.} 6_{Following section 2.2.1 will show how this model is applied in this thesis.}

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the model and therefore the choice has been made to use the model in the following way. The emphasis should not lie on the different environments but rather on the input/output mechanisms. The research is really about the reciprocal relationship between elements of an intelligence system and their environments. Therefore, for this inquiry, it does not matter whether one argues that political ideas about what oversight should look like belongs to the value environment or task environment. One could even argue that they belong to both. Ideas are values but political action, based upon those ideas, are tasks. What we are interested in here is the way these ideas determine the institutional shape for external oversight. In other words, we are primarily interested in the input process. This is not to say, however, that we don’t take the output process into account as well.

We must remark though that it concerns the output from secret services, not the output from external oversight bodies. The latter were yet to be established (and thus were not yet operating).

In summary, by using the said model this thesis tries to show the interactive relationship between an intelligence system (specifically the external oversight component) and the environments it is embedded and operating in. The focus lies on this interaction (the input and output mechanisms) and not the environments. It is not necessary to know whether this interaction takes place with elements from the value environment or task environment in order for one to understand how input and output works. The question that remains is how to describe the intelligence culture of both the Netherlands and the UK?

As the focus of inquiry is the policy process that led to the institutionalization of external oversight bodies, the concept intelligence culture should be described in terms of the relationship between government and intelligence system. Essentially this defines the intelligence function. As explained in section 2.1.2, the purpose of secret services is to serve politicians to help them shape the world around them by providing information about their rivals in order for them to make better decisions. Intelligence exists wherever there is competition. However, how close the relationship between the government and the realm of intelligence is, differs per country.

It is the latter that we are interested in to find out. Pertinent questions that could uncover how ‘close or distanced’ the relationship between the government and the secret services was in the Netherlands and the UK at the end of the 20th century (when external oversight was first established) are the following. How much value did the Dutch and British politicians give to this type of surveillance? In other words, to what extent were the secret services used for the function they have as explained in subsection 2.1.2 and in addition, to what extent were

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contemporary Dutch and British politicians aware of what the intelligence work precisely entails? These are helpful questions if one wishes to examine the motives that underlie the choice for a specific type of institution because they are a good starting point to investigate the intended aim of such an external oversight body at the time (in the eyes of the government). In chapter 4, this relationship (keeping these questions in mind) will be operationalized. In the context of this thesis it is important to explicitly state that this thesis examines the Dutch and UK intelligence culture at the time the first institutional frameworks for external oversight were established and embedded in the law. Because intelligence cultures are not fixed but rather change over time, so the Dutch and British intelligence cultures nowadays may differ from those at the end of the twentieth century. For this reason, this thesis does not make statements about the current relationship between the government and the secret services in the Netherlands and the UK.

To summarize, this thesis examines the institutionalization of external oversight in the Netherlands and the UK by focussing on the relationship between the government and the secret services at the end of the twentieth century. We hypothesize that to a certain extent this institutionalization is determined by the relationship between the government and the secret services. The description of the relationship between the government and the secret services is based on an investigation of historical events that have shaped this relationship. The relevant historical events occurred as off the beginning of the Second World War until the turn of the 20th_{century. These specific historical events will be explained in subsection 4.1.}

Finally, the input and output mechanisms in the model by De Graaf & Nyce (see previous section 2.1.3) are central elements that show the interaction between the government and the intelligence system. However, this input and output mechanism is equally used for other variables that turn out to be of relevance along the way of tracing the policy process. Not to investigate the influence of these other variables (as this study is solely concerned with the influence of the relationship between the government and the secret services) but simply to show how this input/output mechanism works.

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2.2 EXTERNAL OVERSIGHT

2.2.1 Introduction

The rise (and formal institutionalization) of external oversight at the end of the twentieth century must be seen in light of the ending of the Cold War. As explained in section 2.1.2, intelligence can be seen as a realist enterprise that presupposes infinite rivalry and potential conflict (Warner, 2009). Ever since the Second World War, there had been intense rivalry and potential conflict escalation between western democratic states and communist countries. WWII was soon followed up by the Cold War which did not end before 1989. During a large part of the twentieth century, governments faced significant existential threats that endangered their countries’ security. In times of such existential threat the intelligence system is most present and crucial. As explained in section 2.1.2 intelligence methods are used to foster decision advantage by obtaining secret information from opponents or adulterating the information available to rivals. In times of war and conflict this can determine a win or lose. According to Inkster, in a situation of existential threat, people are less concerned with what secret services do than what they don’t do. In other words, when the security of a state (and thus its people) is subject to real danger civilians are less concerned with the methods that are used by secret services in order for the government to create decision advantage. The primary concern then is the security of the state. This does not mean however that there wasn’t criticism on the means that were used by secret services, when a number of scandals were exposed (see section 5.2 and 6.2 for more details).

When the Cold War ended in 1989 when the Berlin Wall fell, the existential threat ceased to exist and this soon created a new complicated situation. Regarding intelligence a most important question is, what does it entail in a peace time context? Secondly, which intelligence methods were allowed in this new situation and which were no longer permitted? Also, for various reasons people became more concerned with privacy and human rights and the impact that intelligence methods had on these cultural values. The importance of these values was subsequently reflected in the fact that eventually pressure from EU institutions became the most important impetus (through the input mechanism) for the establishment that in the Netherlands and the UK alike of external oversight. More specifically, it was the decision made by the European Court of Human Rights (ECHR) at the time, that intelligence and security services must be governed by statute with an oversight system and a way of dealing with public complaints (De Graaff & Nyce, 2016)

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From a cultural point of view there were several factors that led to the establishment of oversight both through the input and the output mechanism as explained by De Graaff & Nyce. The end of the Cold War changed the ideology (what does intelligence in peace time mean?) and influenced the intelligence system through the input mechanism. The EU regulation influenced the intelligence system through the input mechanism as well, but scandals (caused by actions from the secret services themselves) contributed to the adjustment of the intelligence system through the output mechanism. The primary focus of this thesis however are not the underlying reasons for the establishment of external oversight. This study is primarily concerned with the underlying reasons for the establishment of a certain type of external oversight, the choice for a specific institutional framework. Can the relationship between politics and the secret services at the time contribute to understand these choices? Before we go down that road it is important to first delve more deeply into the concept of external oversight.

2.2.2 Shared Features of Western Democratic Oversight

Before describing the relevant aspects pertaining to external oversight bodies in section 2.2.3, it is important to understand the position of external oversight bodies within the overall oversight system on intelligence and security services of a nation state. To this end Gill (1994) provides a useful model.

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Figure 2 shows the oversight system of western democratic states. This model makes a primary distinction between internal oversight (first column under the heading Agencies) and external oversight (columns 2 (Executive branch) and 3 (Other State Institutions). Internal oversight refers to overseeing by the intelligence and security services themselves. The following quote from Gill is instructive to explain the function of internal oversight:

“Regarding ‘level’ one, it may seem odd to talk of oversight functions within agencies themselves but if oversight is only an external function then it becomes easier for agencies to see it as something troublesome that should be resisted. Instead, ideas of propriety must be internalised within the culture of agencies” (Gill, 2003: 6).

Although internal oversight is necessary, according to Gill it is not sufficient to ensure that democratic values are maintained (ibid.). Internal oversight must therefore be backed up by external oversight (situated at levels 2 and 3). External oversight thus is controlled and managed outside the intelligence and security services grasp. In most western countries, one or more ministers are primarily responsible to oversee intelligence and security agencies (see level 2); the (independent) external oversight bodies are represented at level 3 (within the blue circle). The dotted line between levels 2 and 3 symbolizes the variety of external oversight bodies.

As mentioned in the Introduction external oversight bodies can be divided into two types. The first type, parliamentary oversight bodies, consists of members of parliament and therefore these are not entirely independent from the political process. The second type, the independent expert body, is an oversight body fully independent from the executive level. It is therefore situated at level 3, the level of state institutions other than (political) executive bodies that are entirely independent from the executive and the intelligence process. In Figure 2 the dotted line from the third to the second level represents the fact that some external oversight bodies are parliamentary and therefore fall in between the executive (political) level and level 3, other state institutions.

Finally, the fourth level shows that secret services are always to some extent overseen by citizens as well. This is currently shown by the lively public debate in the Netherlands. However, this fourth dimension cannot strictly be regarded as official oversight, as law does not implement it.The added blue circle, which covers the external oversight committees (both parliamentary and independent expert bodies), indicates the research objects of this thesis. Now that we have illustrated the position of external oversight relative to the broader oversight system of a democratic state, we will in the following section discuss more deeply the different

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structures (types of external oversight bodies) and the different mandates, which are the two focal institutional elements of inquiry.

2.2.3 External Oversight Bodies

2.2.3.1 Structure: type of oversight body

The difference between a parliamentary body and an independent expert body are briefly described in the previous section 2.2.2. Figure 2 shows that an independent expert body is entirely independent from the executive. The dotted line therefore implies that the parliamentary committee is not totally independent as it falls in between column 2 and 3. An increasing number of states have established independent expert bodies in addition to some sort of parliamentary oversight (Directorate-General, 2011: 89-90). These external expert bodies can either be a committee or an individual commissioner supported by a staff (ibid.). These are permanent bodies established through legislation and they conduct oversight on a comprehensive and even full-time basis (ibid.). Their staff members often have a legal background (ibid.). Though (as explained in paragraph 1.3) the aim of this thesis is not to investigate the effectiveness (quality) of the Dutch and British oversight bodies, it may be useful to briefly look at the often-listed advantages and disadvantages of the two types of external oversight bodies. It may be helpful for to understand the implications of being entirely placed in column 3 in Figure 2 or being connected to column 2 at the same time.

It is often argued that independent expert bodies have a number of advantages over parliamentary oversight bodies. In addition to the explanation above Figure 2 shows that independent expert bodies are usually independent from political parties and political influence (Wills, 2007: 42). Parliamentary oversight on the other hand is not free from political control and therefore it may become politicised. Needless to say that this is a potential threat to the essence of intelligence. Politicization can prevent essential and sensitive intelligence from becoming input for decision makers in case politicians do not like the information. Politicization can also cause cherry picking by politicians. To mention just one dramatic example of politicized intelligence: the search for weapons of mass destruction in Iraq by the American Iraq Survey Group (Kippin, March 9, 2016). The politicization of intelligence “(…) is a particular problem for members of parliament belonging to the governing party” as “they may be unwilling to investigate particular activities of the intelligence services that could reveal findings that are damaging or embarrassing for the executive” (Wills, 2007: 42-43). “By

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contrast, members of opposition parties may exploit their position to attack the government” (ibid.). Members of independent expert bodies are less likely to leak sensitive information for political purposes (Wills, 2007: 43). Furthermore, parliamentarians have other duties as well, while members of expert bodies can exclusively focus on the oversight of secret services. Also, as members of expert bodies are not restricted by the period they are in parliament, they can remain longer (ibid.). The longer they are in their job, the more knowledge and expertise they will develop in the field of intelligence, and this will likely benefit their work. An advantage of parliamentary oversight bodies though, is that they tend to have more democratic legitimacy as they consist of parliamentarians who are elected by the people. In addition, they are in a better position to directly influence intelligence services and the executive (Wills, 2007: 42).

2.2.3.2 Mandate: oversight on legality versus oversight on efficacy

According to M. Caparini an oversight body can have two types of mandate. They can either be tasked to oversee legality or to oversee the efficacy of the work conducted by secret services. In some cases, external oversight bodies have the mandate to do both.

“(…) intelligence control and oversight in the democratic state, (…), is to enable agencies to produce effective security intelligence while ensuring that they operate within the law and in a way that is consistent with democratic norms and standards” (Caparini, 2008: 4).

To this we may add that in some countries financial oversight is included in the task field of external oversight bodies as well. In other countries, this is the task of other governmental bodies. Financial oversight (formally called oversight on the ‘efficiency’ of secret services) falls outside the scope of this study as do some other activities that are not directly concerned with the core business of secret services (e.g. dealing with citizens’ complaints).

What exactly entails overseeing legality and efficacy? The mandate to oversee legality may be quite straightforward, but the mandate to oversee efficacy is less clear.

“A mandate to assess compliance with the law typically involves scrutinising an agency’s activity to assess whether or not they have complied with applicable constitutional, statutory, subsidiary and, sometimes, international law. A mandate

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to oversee the effectiveness or efficacy of agencies’ work entails an assessment of if and how agencies fulfil their statutory tasks, as well as the extent to which they meet the expectations of their customers, i.e., the executive and other government agencies. This assessmen.t is critically important for ensuring that agencies contribute effectively to the security of the state and its population”. (Directorate-General, 2011: 103-104)

In other words, the task of overseeing efficacy is directly concerned with the essential function of intelligence, as explained in subsection 2.1.2. It is to examine whether intelligence indeed improves political decision-making and therefore delivers on its tasks.

The following chapter contains a description of the institutional frameworks for external oversight in the Netherlands and the United Kingdom in terms of structure and mandate as explained in this section 2.2.3.1 and 2.2.3.2.

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3. Case Descriptions

3.1 THE NETHERLANDS

One could say that of all European countries the Netherlands have the oldest tradition of overseeing secret services (De Graaff, 2016). In 1952 the Commissie voor de Inlichtingen- en Veiligheidsdiensten (The Committee for the Intelligence and Security Services; CIVD) was established by royal decree as a parliamentary committee for oversight (ibid.). Regarding its mandate the CIVD is solely concerned with overseeing the efficacy of secret services (ibid.). Moreover, it is the only oversight committee in the Netherlands with this task. The reason for establishing this committee was not so much to create more transparency, but rather to end the parliamentary debate on the secret services that had been going on by allowing the leaders of the (five) main political parties to discuss security (and intelligence) issues in closed session (De Graaff, 2016). This was affirmed by prof. dr. P.H.A.M. Abels who also stated that the CIVD can hardly be called an oversight body in practice (Appendix I). Abels confirms that the CIVD consisted of party chairmen that were already fully occupied with their daily routines and when it came to CIVD matters, they received a lot of information (Appendix I). However, they were not able to act upon it (Appendix I). They had no staff and were not allowed to share the information with anyone outside the committee (Appendix I). Nowadays this is still the case and therefore the CIVD could be seen as some sort of political fig leaf to create the idea that the house of representatives is informed (Appendix I).

Commissie van Toezicht op de Inlichtingen en Veiligheidsdiensten (CTIVD)

Full-time and comprehensive oversight came along with the establishment of an independent expert body in 2002, in addition to the already existing parliamentary committee CIVD (WIV 2002). The new oversight body, Commissie van Toezicht op de Inlichtingen- en Veiligheidsdiensten (Committee for the Oversight on the Intelligence and Security Services; CTIVD), was from its very first day to be considered the most important one of the two oversight committees (De Graaff & Nyce, 2016).

The committee was to be solely concerned with ensuring that the Dutch secret services operate in accordance with the law and in a way that is consistent with democratic norms and

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standards (WIV 2002). The mandate in other words, was to oversee the legality of the work that secret services conduct. In the WIV 2002, this mandate is stated as follows:

“De commissie van toezicht is belast met: a. het toezicht op de rechtmatigheid van de uitvoering van hetgeen bij of krachtens deze wet en de Wet veiligheidsonderzoeken is gesteld” (WIV 2002, art. 64, paragraph 2.a) (“The committee for oversight is charged with: a. the oversight on the legality of the execution of what is stated in or by virtue of this law and the law on security investigations”).

The composition of its members reflect this mandate. Article 65 stipulates that the CTIVD consists of three members, among which a president (WIV 2002). The members are appointed by royal decree on the recommendation of the concerned ministers for a period of six years and they can be reappointed only once (WIV 2002, Art. 65). According to article 65 paragraph four, at least two members, among whom the president, are required to hold a university level Bachelor and Master’s degree in the field of Law, or to have received a doctorate in law, or the right to carry the title Master of Laws (WIV 2002).

Finally, paragraph seven of article 65 states that members of the CTIVD cannot maintain relations and fulfil functions which are undesirable with a view to a good exercise of their function within the CTIVD or with regard to the maintenance of impartiality and independency or trust in these two values (WIV 2002). These two aspects relate to what is described in section 2.2.3.1. (the advantages of an independent expert body).

Conclusion

One may safely conclude that regarding external oversight in the Netherlands the emphasis strongly lies on a non-parliamentary structure. Despite the presence of a parliamentary committee, the independent expert body CTIVD is the only oversight body that is capable of conducting oversight on the Dutch secret services on a regular and constructive basis. Because the CTIVD is mandated to fully focus on overseeing legality (it has no tasks to oversee efficacy), the institutionalization of external oversight in the Netherlands at the end of the twentieth century is characterized by the priority that is given to the legal aspect. It is not the case, however, that there is no focus on efficacy at all because the CIVD, though it is only a minor player in the Dutch institutional framework for oversight, is concerned with this task. Nevertheless, it cannot be denied that the highest priority is given to oversight on legality.

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Overseeing efficacy is entirely absent from the mandate that has been given to the independent oversight body CTIVD, and the CIVD is limited in their oversight capabilities.

3.2 THE UNITED KINGDOM

As mentioned in section 2.1.4, for the British case, the Intelligence Services Act 1994 (ISA 1994) will be taken as the point of departure. Before we move on to the ISA however, it is important to remark that this act is largely modelled on the Security Service Act of 1989 (SSA 1988) (Wadham, 1994: 916). The SSA 1989 itself followed the structure of the Interception of Communications Act of 1985, by which a commissioner was appointed to deal with citizens’ complaints concerning telephone tapping, an element that is found in both the 1985 Act and the SSA 1989 (ibid.). This was the first attempt to create some kind of external oversight mechanism in the United Kingdom (Leigh & Lustgarten, 1989). In addition, a so-called tribunal was established and put on a legal footing in the SSA 1989, again to deal with citizens’ complaints. However, as previously mentioned, the SSA 1989 will not be taken as a point of departure because the Act lacked the element of an external oversight bodies that conducted oversight on a comprehensive and full-time basis, not as a reaction to citizens’ complaints. This element arrived with the implementation of the ISA 1994.

The Intelligence and Security Committee of Parliament (ISC)

It was with the creation of the Intelligence Services Act in 1994 that with regard to the secret services, one could for the first time speak about accountability to parliament (Wadham, 1994: 925). The following articles from the ISA 1994 reveal the structure and mandate of the committee:

“There shall be a Committee, to be known as the Intelligence and Security Committee and in this section referred to as "the Committee", to examine the expenditure, administration and policy of (a) the Security Service; (b) the Intelligence Service; and (c) GCHQ”. (ISA 1994, Art. 10.1.)

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“The Committee shall consist of nine members (a) who shall be drawn both from the members of the House of Commons and from the members of the House of Lords; and (b) none of whom shall be a Minister of the Crown” (ISA 1994, Art. 10.2).

In terms of mandate, the committee was tasked with overseeing efficacy. As stated in subsection 2.2.3.2 this entails “an assessment of if and how agencies fulfil their statutory tasks, as well as the extent to which they meet the expectations of their customers, i.e., the executive and other government agencies. This assessment is critically important for ensuring that agencies contribute effectively to the security of the state and its population” (Directorate-General, 2011: 103-104). Art. 10.1 of the ISA 1994 shows that another task of the committee was to examine the expenditure, but that task will not be explored in this thesis as it does not directly concern oversight on the work itself.

The Commissioner and Tribunal

In addition, a new commissioner was created by the ISA 1994. It was modelled on the commissioners of telephone tapping but had a broader task field (Wadham, 1994: 923). The commissioner had the task of keeping under review the powers issue warrants and authorizations relating to SIS and GCHQ (see section 5.2 for more information on the British secret services) (Wadham, 1994: 923). The tribunal that was put into force by the SSA 1989 had remained as well. However, because its tasks hardly differ from its tasks as stated in the SSA 1989, the Tribunal is still not relevant for this thesis. The following article from the ISA 1994 shows the mandates of the commissioner:

“The Prime Minister shall appoint as a Commissioner for the purposes of this Act a person who holds or has held high judicial office within the meaning of the Appellate Jurisdiction Act 1876” (ISA 1994).

The structure (type of oversight body) is not literally mentioned in the Act but from what we can read in subsection 2.2.3.1, commissioners are external expert bodies. The mandate clearly existing to oversee the legality of the work conducted by the British secret services.

Conclusion

In 1994, the British oversight system contained both types of external expert bodies. A parliamentary committee (the ISC), and an external expert body in the form of a commissioner.

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The first concerned with the mandate to oversee efficacy, the latter concerned with legality. Furthermore, the commissioner is required to be a retired judge, meaning that he is likely to be fully independent as his career is behind him (Appendix II). The center of gravity in the British external oversight system however lies on overseeing the efficacy as the ISC was allowed to publish its reports for the British citizens to see as well, which was not the case with the reports of the commissioner (Appendix II). Moreover, the ISC was a much bigger committee.

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4. Methodology

The central question in this thesis is how the concept ‘intelligence culture’ contributes to understand the institutionalization of external oversight on secret services in the Netherlands and the United Kingdom at the end of the twentieth century. The aim is to study the policy process that led to the choice for specific institutional elements for the different external oversight bodies, that is their structure (parliamentary or non-parliamentary) and mandate (oversight on legality, efficacy, or both). The concept ‘intelligence culture’ then is used as a ‘lens’ to analyse the said institutionalization.

For the analysis we use the input/output mechanism theory from the model provided by De Graaff & Nyce 2016 (see Chapter 2), to explain how different circumstances (specifically those relating to the relationship between the government and secret services) contributed to shape the institutional frameworks for external oversight that were given a legal footing in 1994 (United Kingdom) and 2002 (the Netherlands). In Chapter 3 it was observed that the research objects (the different external oversight bodies) for case I (the Netherlands) are the Commissie voor de Inlichtingen – en Veiligheidsdiensten (CIVD) and the Commissie van Toezicht op de Inlichtingen- en Veiligheidsdiensten (CTIVD). Relevant British committees, case II, are the Intelligence and Security Committee of Parliament (ISC) and the commissioner.

Before the relationship between the government and the secret services will be further operationalized below, it is important to make the following remark. The wording ‘contribute to understand’ is used in the research question because there is no expectation that the relationship between the government and the secret services will all by itself explain the institutionalization of external oversight in the Netherlands and the UK at the end of the twentieth century. However, there is simply not enough time to explore more variables and therefore this thesis aims to solve a piece of a larger puzzle.

4.1 ‘intelligence culture’: relationship between the government and secret services

As explained in section 2.1.4 the relationship between the government and the secret services will be described on the basis of a number of important historical events that shaped the relationship. Before we briefly describe the historical events that have been chosen, two important questions must be answered. First, how do we define the relationship and secondly, how can this be measured? What are the indicators one can look at?

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The relationship between a government and secret services is in fact quite a complex phenomenon and in a sense somewhat vague. Therefore, it has been narrowed down as follows. As explained in subsection 2.1.4, we are interested in how ‘close or distanced’ the relationship between the government and the secret services is. The focus here lies on behaviour. Keeping the questions that were formulated in subsection 2.1.4 into mind, the following three indicators will be used to measure the ‘distance’ between the government and secret services.

First, the instructions that were given to secret services by the government. Is the government clear towards the secret services with regard to solicited information? An important remark should be made here, namely that we do not imply that the work of secret services is entirely demand-driven. On the contrary, such a view would negate the very essence of intelligence work: the detection of threats yet unknown. However, in global international relations an enormous amount of information may be potentially gathered while the amount of time for analysis is restricted. Therefore, in other to adequately serve the government, secret services must have some guidelines as to what topics are high on the agenda.

Secondly (and conversely), how well were the governments aware of what the services were doing/focussing on? This question is closely related to matters of overseeing efficacy.

The third indicator is the knowledge of politicians about the type of work that secret services do. How much space (in terms of freedom to act and the chance to maintain their secrecy) is needed by the services for example? What benefits their work and what does not?

The following historical events have been chosen to describe the relationship between respective governments and secret service. For the Netherlands these are the Second World War, the period from 1945-1949, the Cold War period, and the events of 9/11. The choice for 9/11 might seem strange as we will mostly analyse documents from the 1990’s. However, it is worthwhile to discuss the 9/11 attack in 2001, as it speeded up the process of implementing the WIV 2002.

As for the Netherlands the Second World War has been chosen for the United Kingdom as the first major event that helped shape the British intelligence culture as it developed during the second half of the twentieth century. The Second World War had a rather different impact though on the British intelligence culture than it had on the Dutch intelligence culture. More details on this will be given in sections 5.1 and 5.2. Another significant event was the Buster Crabb incident in the 1960’s and the ending of the Cold War. The choice for the Buster Crabb