Understanding legitimacy in the Intelligence and
Security domain
The Wiv2017
Fayline Nijholt 10484450
Supervisor: Anne Loeber Second reader: David Laws
22-06-2018
Master Thesis Political Science: Public Policy and Governance Word count: 18.230
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Abstract
Recently, a new law expanding the powers of the Dutch Intelligence and Security Services has become subject to opposition and in an advisory referendum the majority of citizens voted against the law. This development can be understood as the manifestation of the failure of the policy-making process regarding the law to construct sufficient legitimacy. Legitimacy is being challenged in the policy-domain of the Intelligence and Security Services due to the inherent secrecy. Therefore, this thesis asks how legitimacy is constructed in this particular domain and what lessons can be drawn from the policy-making process regarding the new law. A qualitative research design is used that includes interviews with opponents as well as proponents of the law and a content analysis of these interviews.
The aim of the research is to provide insight into the concept of legitimacy in the context of Intelligence and ways in which to improve this in the future. The main recommendation that this thesis makes for improving legitimization in the future is to ensure substantive debate between all stakeholders in the initial drafting phases of the policy-making process to enhance legitimacy. Moreover, less secrecy in the policy-domain of the Intelligence and Security Services would contribute to legitimacy. Less secrecy is possible since the policy-making process regarding the Wiv2017 has proven that more transparency is possible without compromising the operations of the Services.
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Preface
This thesis is part of my graduation from the master degree Political Science: Public Policy and Governance at the University of Amsterdam, a process that started in January and ended in June 2018. From the beginning of the research project, the subject of the Wiv2017 grabbed my attention. It really helped to already be certain about the topic for my thesis in the initial phase of the thesis process. The timing of writing about the topic of the Wiv2017 and the Intelligence and Security Services was interesting as the policy-making process was still unfolding during the research process. The referendum was held when the research proposal was due, the cabinet had to decide what to do with the outcome and the different actors involved were responding to this.
In my experience, the timing also made respondents more willing to speak to me and all the information was still fresh in the memories of the individuals involved. The interviews were not only interesting because I gained knowledge about the Wiv2017 policy-making process and the way the Intelligence and Security Services work, but I also learned a lot about what all the different stakeholders do and what the individuals do in their positions as part of the different actor groups. This provided me with new insights and interesting knowledge for my future career. Despite the interesting topic, I did need a push in the right direction when it came to identifying the ‘research puzzle’. With the help of my supervisor and literature suggestions, I managed to successfully collect my thoughts in order to write a research proposal. Deadlines set in between helped me to stay on track and get actual writing on paper.
I’d like to thank my thesis mentor for great counselling, feedback and an exceptionally positive attitude. I addition, I want to thank the second reader David Laws for his time and attention. Moreover, special thanks to my respondents who have made the time to do an interview with me and were willing to share their thoughts. I personally found the interviews very interesting and all of them were useful. Furthermore, I want to thank my fellow students for critical feedback and interesting suggestions. Lastly, I want to thank Anna Skatun for our joined study sessions.
Enjoy reading,
Fayline Nijholt
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Table of contents Part I
1. Introduction ... 5
2. Methods ... 9
2.1 Method of data selection ... 9
2.2 Method of data-analysis ... 10
2.3 Ethical issues raised by research design ... 10
2.4 Research process ... 11
3. Theoretical Framework ... 14
3.1 Intelligence and Security Domain ... 14
3.2 Legitimacy ... 15
3.3 Legitimacy and the Intelligence and Security Services... 17
Part II 4. Analysis Part 1: Legitimacy and the Intelligence and Security Services ... 23
4.1 Institutional Setting ... 23
4.2 Actor assessment ... 25
4.3 Main findings ... 28
5. Analysis Part III: Legitimacy and the Wiv2017 ... 29
5.1 Procedural Setting ... 29 5.2 Actor assessment ... 31 5.2.1 Input Legitimacy ... 32 5.2.2 Throughput Legitimacy ... 34 5.2.3 Feedback Legitimacy ... 35 5.2.4 Output Legitimacy ... 37 5.3 Main findings ... 38
6. Analysis Part III: Lessons ... 40
7. Conclusion ... 44
8. Bibliography ... 49
Appendices ... 52
Appendix I: Interview format ... 52
Appendix II: Respondents ... 53
Appendix III: Example coding ... 54
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PART I
INTRODUCTION, METHODS AND
THEORETICAL FRAMEWORK
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1. Introduction
On the 21st of March the majority of the Dutch citizens voted against the ‘Law concerning the Intelligence and Security Services' [Wet op de Inlichtingen- en Veiligheidsdiensten 2017] (Henceforth rendered 'Wiv2017') in an advisory referendum. This referendum is the result of controversy and opposition from public and private actors regarding the new law that expands the powers and capabilities of the Dutch Intelligence and Security Services. To name a few changes that the Wiv2017 entails: the law allows the Services to search for information without a particular focus; to store information for a longer period of time; and to share unevaluated data with foreign Intelligence Services (Rijksoverheid, 2015). The opposition against the Wiv2017 seems deviant in our current age of risk governance and securitization that is characterized by an increase in security measures and agencies that are relatively uncontested (Fekete, 2004, p. 8; Herman, 2002, p. 228; Kaal et al., 2009, p. 94; Terlouw, 2009, p. 8-9; Vedder, Wees, Koops & de Hert, 2007, p. 10; Wæver, 1993). How come the Wiv2017 became contested and why is this an interesting development?
The process of drafting and implementing the Wiv2017 started with the re-evaluation of the Wiv2002 in 2012, because this old law expired after 10 years. After the evaluation of the Wiv2002, a new law proposal was drafted. The draft was put up for an internet consultation in July 2015, resulting in 1100 critical reactions from public and private actors. When these reactions were processed, the draft was evaluated by the Council of State [Raad van State]. Again, this resulted in criticism that needed to be processed. After this, in October 2016, the law proposal was presented to the House of Representatives. Three parliamentary hearings were held and over 20 amendments were introduced by an MP. Two amendments were adopted and in 2017 the law was adopted. Yet, opposition in society was lingering: five students collected enough signatures to validate an advisory referendum about the Wiv2017. This was held in March 2018, resulting in a majority of votes against the law. The cabinet declared commitment to make changes to the law and the law has been operative since the 1st of May 2018. Critics argue these changes aren’t substantive and a group of NGO’s, including for example Bits of Freedom, want to start a legal procedure to stop the implementation of the law.
This brief case description shows that the law has been, and still is, subject to opposition, controversy and public debate, despite going through a thorough process of consultation and re-evaluation. This suggests that the process of drafting, consultation, re-evaluation and approving the Wiv2017 has failed to construct legitimacy: “the acceptance of the outcome of
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referendum and its outcome can be understood as a manifestation of latent tensions in terms of legitimization of the new law. This leaves us with asking: why did the law become contested? Why was it not accepted by a large part of society? In other words, how come the law proposal regarding expansion of the powers of the Dutch Intelligence and Security Services failed to construct legitimacy? As the Wiv2017 concerns the expansions of the powers of the Intelligence of the Security Services, one might ask the question: what does the process of the Wiv2017 mean in terms of the legitimacy of the Services? This thesis will use the case of the Wiv2017 to provide insight into the construction of legitimacy in the policy-making process and to provide insight into how this relates to the legitimacy of the Dutch Intelligence and Security Services. In other words, the research objective is to develop a notion of how legitimacy is constructed in the domain of the Intelligence and Security Services.
What knowledge does existing literature provide us about legitimacy in the particular policy domain? In the policy domain of the Services there is a tension between Utilitarianism and the Deontological approach. The deontological perspective seeks legitimacy by finding the best rules for any circumstance. Following these rules strictly is more important for the overall legitimacy than the outcome of these rules. On the contrary, Utilitarianism focusses on the outcomes, the so-called 'ends justify means' perspective. The Utilitarian perspective is predominant for legitimization in contemporary Intelligence Governance. This illustrated by the extensive measures that are adopted in name of national security (Andregg, 2010, p. 8-13). However, momentum for reform in the domain of the Intelligence and Security Services is growing. This means that the predominant Utilitarian approach seems increasingly challenged by deontological arguments. This inherent tension plays a role in the case of the Wiv2017 and the Dutch Intelligence and Security Services. Moreover, when it comes to the particular policy domain of the Intelligence and Security Services, the construction of legitimacy is challenging due to the inherent aspect of secrecy (Aldrich & Richterova, 2018, p. 5-9). This secrecy means that some legitimization-mechanisms, such as enhancing transparency or citizen participation, can’t be deployed. This potentially means that certain opportunities to create legitimacy might be lacking in the policy domain of ‘the Services’. It is unclear how this is compensated in this particular domain.
To conclude, it is unclear how, despite the inherent challenges and tensions, legitimacy in the domain of the Intelligence and Security Services is constructed in practice. Therefore the goal is to find out how legitimacy is constructed in practice in the policy domain of the Intelligence and Security Services. Moreover, an additional goal is to find out what factors could contribute to constructing legitimacy in the future in the particular policy domain. The
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amount of opposition against the Wiv2017 makes it ‘the odd case out’. By looking at this deviant case, insights can be gained with regards to the construction of legitimacy under the circumstances that are inherent to the policy domain. Therefore, the research question of this thesis is: How is legitimacy constructed in the policy-making process regarding the Wiv2017
and what lessons can be drawn in relation to legitimacy in the domain of the Dutch Intelligence and Security Services? The research question will be split into the following research questions:
1) how is legitimacy constructed in the policy-making process regarding the Wiv2017 and 2) what lessons can be drawn in relation to legitimacy in the domain of the Dutch Intelligence and Security Services?
To summarize the above, the research objective is to develop a notion of how legitimacy is constructed in the domain of the Dutch Intelligence and Security Services. By looking at legitimacy in the policy-making process of the Wiv2017 as the research object, this thesis aims to say something about the concept of legitimacy in the policy-domain of the Intelligence and Security Services as a whole. This aim has been formulated because the unanswered empirical questions and the outcome of the referendum suggest that the process of drafting, consultation, re-evaluation and approving the Wiv2017 has failed to construct legitimacy.
Gaining new insights into this case is of societal relevance because of the controversy currently revolving around the Wiv2017. It is important for governmental institutions and policy-outcomes to be deemed legitimate for societal order. In addition, providing insight into this unanswered theoretical question has scientific relevance. This particular policy domain of the Services is interesting in terms of providing new insights into the construction of legitimacy due to the inherent aspect of secrecy which means that some legitimization-mechanisms, such as enhancing transparency or citizen participation, can’t be deployed. Some scholars have elaborated on the inherent problems or identifies ideal types. However, literature addressing the legitimacy of the Intelligence and Security Services does not show how legitimacy is constructed in the domain in practice and how the inherent challenges are compensated for in practice.
To make all of the above researchable a qualitative research strategy has been chosen. The concept of legitimacy is complex and has many different meanings depending on the actor, context, and more. Arguing why a certain process or outcome is or is not legitimate is subject to previous experiences, sense-making, and so on. To answer the research question of this thesis it is especially the reasoning behind finding something legitimate/illegitimate that is interesting. Therefore, a qualitative strategy offers the best opportunities to discover what entails legitimacy in the domain of the Intelligence and Security Services. Consequently, this research is
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characterized by an interpretative epistemology, meaning that this research design assumes that social interaction is subject to interpretation, experience and sense-making. Following, the ontology is constructivist, meaning that the notion of legitimacy in this case is subject to social processes instead of being a reality ‘out there’ (Bryman, 2008). Finally, the research design is a single case study, namely the policy-making process regarding the Wiv2017.
Now, what can be learned from a single case study and how will the case of Wiv17 say something about the legitimacy of the services? On the one hand, this case represents a deviancy that challenges established means of reasoning. This provides contextual and complex knowledge. On the other hand, by relating the case to the theoretical framework, it can be put into relation to other cases (Vennesson, 2008, p. 226). Most case studies aim to offer an explanation of a broader phenomenon, something larger than the case itself (Seawright & Gerring, 2008, p. 294).
Then how will the case of the Wiv2017 say something about the Intelligence and Security Services? As mentioned before, the case of the Wiv2017 is a so called ‘deviant case’ of which this thesis aims to develop an in-depth understanding in order to reveal unique features of the case(Seawright & Gerring, 2008, p. 303.). As the Wiv2017 concerns the expansion of the power of the services, understanding how legitimacy is constructed in the case of the Wiv17, can lead to insights being gained in legitimacy in the domain of the Intelligence and Security Services and perhaps about legitimacy in general. This can be referred to as an interpretive case study, which uses a theoretical framework to provide an explanation for the particular case, while at the same time re-evaluating and/or refining the theories used according to the case. Therefore, a deviant case is especially useful for re-evaluating existing theories (Vennesson, 2008, p. 227).
The thesis is structured as followed: in the second chapter, the method section will be introduced. This will elaborate on the qualitative research design in which data is collected via semi-structured interviews and analysed by means of content analysis. The third chapter will present the theoretical framework. This will give insights into the inherent challenges the Intelligence and Security Services face in terms of legitimacy and how this might be compensated. The theoretical concepts derived from the literature will offer a framework for the analysis. The fourth chapter is the analysis chapter, which will present the main findings. This chapter will elaborate on how legitimacy is constructed and deconstructed in the Wiv2017 process and suggest how this can be improved in the future. Lastly, the conclusions will be presented along with a discussion and reflection.
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2. Methods
This section will elaborate on how all the questions raised in the introduction will be made researchable. In short, the research design is one of qualitative nature focusing on a single case study, namely the policy-making process regarding the Wiv2017. Data will be gathered by conducting interviews with selected stakeholders. The collected data will be analysed by means of content analysis. This chapter will give an elaborate description of the research design.
2.1 Method of data gathering
In order to answer the main research question, this question has been divided into sub-questions. To answer each sub-question, semi-structured interviews with relevant actors are conducted. This begs the question: which actors are selected and how and why? The individuals, organizations, institutions and parties that are relevant are those that have in some way been involved in the policy-making process regarding the Wiv2017 and have expressed their opinion in favour or against the new law. This includes the list of organisations that supported the referendum and the list of individuals that were invited to the parliamentary hearings (see appendix IV). This means the selection of respondents has been done in a purposive manner. These actors will help to answer the research questions by identifying how legitimacy is constructed in regards to the Wiv2017 and the Dutch Intelligence and Security Services. Actors that have been approached are for example spokespersons of political parties, public and private institutions and Civil Society organizations.
Different actor groups will be distinguished in the analysis section. Distinguishing between the different actor groups that respondents are part of is interesting because the position of a respondent might influence the stance that is taken. For instance, a politician that is a member of a political party that voted in favour of the law might not be able question the legitimacy of the law, whereas a respondent that is part of an NGO can criticize the law more freely. Results would be striking when all actors groups agree or when actor groups are critical of the law even though they have been involved in creating, approving or implementing the law. Therefore, in the analysis section the different actors groups and their stances will be reported explicitly. Ideally, a balanced amount of actors in each actor group will give the most representative impression of why the law is perceived legitimate or illegitimate.
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The interviews were transcribed using Inqscribe. The gathered data has been analysed by means of Content Analysis. On the one hand, this a form of interpretive analysis, dealing with a subjective and complex concept such as legitimacy. On the other hand this research design aims to incorporate a certain extent of standardization. Therefore, the analysis has been done by applying different steps of coding. For this the qualitative data-analysis software Atlas.ti 7 has been used. The different steps of coding are used to identify the main themes. Themes are "the
fundamental concepts we are trying to describe" (Ryan & Bernard, 2003, p. 87). There are
many ways in which certain expressions can be linked to abstract concepts. The role of theory in the analysis is important when it comes to finding themes. Themes can come from the data (inductive) or from the prior understanding that the researcher has due to a theoretical framework (a priori). In the a priori approach, themes can for example be identified prior to data-analysis from definitions formulated in literature.
An interview format often already contains preliminary themes. However, themes also emerge out of the empirical data that is analysed. The first step into discovering themes is called 'initial coding' or 'open coding' (Ryan & Bernarn, 2003, p. 88). This initial coding, results in a detailed analysis by giving every relevant piece of text a code. Secondly, all the different codes will be organized into themes. When an oversight of themes is established, this can be related to the sub-questions and the theoretical framework of thesis (Brymann, 2009). During the analyse this created ‘aha’ moments because of the way this strategy of analysis provides an overview of arguments and themes that are mentioned most often and the way in which different remarks underlie the same themes.
By analysing the interviews with respondents in this way, an overview is created in terms of what forms of legitimacy are constructed in the Wiv2017 process and according to whom. This overview of the case study on the Wiv2017 will give insights into the concept of legitimacy in the particular policy domain in general. In other words, by identifying how the construction of legitimacy worked according to different actor groups in the Wiv2017 process, we are able to create a notion of how legitimacy works in the policy domain of the Dutch Intelligence and Security Services. This in turn can be related to theoretical insights and other cases such as foreign Intelligence and Security Services.
2.3 Ethical issues raised by research design and how to cope with this
This is a political issue, the opponents and proponents are situated in political playing field with power relations, friends, foes, etc. Spokespersons might need to adhere to the views of their
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party of organisation. Moreover, for respondents to express distrust towards the Dutch Intelligence service or to argue that parts of the political process are illegitimate might feel uncomfortable and socially desirable answers might have been given (Tijmstra & Brinkman-Engels, 1978). Consequently, respondents might not always be able to say what they want or will be more nuanced than they want to be. To cope with this, the interviewee will be given a detailed description of what happens to the data and results. Also, the interviewee may choose to do the interview anonymously. Moreover, starting with ‘lighter’ questions and ending with the more sensitive one was a strategy to get respondents to share more. Another ethical question is recording the interviews. To overcome this, the interviewee needed to approve of the recording.
2.4 The research process
The selection of respondents has been done in a purposive manner. This means that respondents have been selected because they have in some way been part of the policy-making process regarding the Wiv2017. These actors have been identified by going over the policy documents to see who has been part of the policy-process. This also includes identifying the actors who delivered feedback during the internet consultation round and actors that have been invited to the parliamentary hearings. Moreover, actors have been identified by looking at the list of parties that supported the referendum (see appendix IV).
In the end, the group of respondents includes the following actor groups: political parties, advisory bodies, NGO’s, academics, media and former employee of the Intelligence and Security Services. In total a selected group of 58 institutions, organisations and individuals has been contacted via email. This resulted in 13 interviews in total, of which 4 have been held on the phone and 9 face to face. This group is made out of respondents from: 3 political parties, 1 advisory governmental body, 3 academics, 1 former employee of the Services, 2 NGO employees, 1 media outlet, 1 telecom provider and 1 foundation that represents the interests of the Dutch digital infrastructure. It was noticeable that getting into contact with government officials was difficult. Especially a request addressed to the Intelligence and Security Services themselves was denied immediately. Table 1 gives an overview of the respondents and the actor groups. A more detailed overview can be found in appendix II.
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Respondent Actor group
Respondent 1 Political Party (SP)
Respondent 2 Media (GeenStijl)
Respondent 3 Advisory Body Government (Raad van State)
Respondent 4 Political Party (PvdA)
Respondent 5 Academic (University of Leiden)
Respondent 6 Former Intelligence employee and academic (AIVD, MIVD, CITVD and Leiden University) Respondent 7 Academic (Insitute for Information Law) Respondent 8 Academic (Military Law of Cyber Security and
Cyber Operations) Respondent 9 NGO (Bits of Freedom)
Respondent 10 Political Party (PiratenPartijNL)
Respondent 11 Foundation (Stichting Digitale Infrastuctuur Nederland)
Respondent 12 NGO (Privacy Barometer)
Respondent 13 Telecom provider (KPN)
Table 1 Overview of Respondents and Actor groups
The actors groups will be grouped into a public sector and private sector. The public sector involves parties that as part of the government are directly part of the Wiv2017 policy-making process and Intelligence and Security Domain. These are the politicians, the employee of the advisory body of the government and the former employee of the Services. The private actors are respondents that belong to NGO’s, the media or the business sector. From which actor group an answer comes from is relevant because when analysing the answers of respondents, one would expect answers from the parties that are part of the public sector to argue in favour of the legitimacy of the institution and law they are involved with themselves. From the private actors one would expect to find more critical statements.
The interviews were conducted in circumstances and times that suited the respondents best, which for most of the respondents was at work. On average the interviews lasted 47 minutes.. Because the interviews were semi-structured, according to an interview format, the
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respondents received the same questions for a large part. The interview format can be found in appendix I. The strategy of the questions was to start off with questions that were more descriptive, such as asking about who was involved in which phase of the process and who decides what. After these types of questions, more normative or judgemental questions were asked such as asking about how respondents felt like their criticism was handled or how they thought the process could have been carried out differently.
Besides the questions that were prepared beforehand, other questions have been asked to attempt to discover the argumentation and reasoning behind certain comments. As more interviews had been conducted, the interview format was adjusted with the experience and knowledge gained. Some respondents provided new information and insights that provided new focus for the interview questions. For example, in the beginning one of the questions concerned the point of view the respondent had concerning the Wiv2017. These answers would be very elaborate and technical, without getting into the policy-making process. Also, these answers did not provide much new information as the standpoints of the different parties are easy to find. Moreover, with gained knowledge new questions were formulated concerning the role politicians in the House of Representatives and the Senate played.
It was noticeable how legitimacy was a sensitive topic to explicitly talk about for some respondents. This seemed especially the case for the respondents representing political parties. The answers about legitimacy of the Services and the government in general might have been affected by social desirability. Implications of this will be further discussed in the conclusion chapter. In general, respondents made a lot of time for the interviews and the atmosphere during interviews has been open. Only once a respondent said they were not able to share certain information. Furthermore, it was interesting to see how passionate and sometimes frustrated most of the opponents were.
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3. Theoretical Framework
The previous chapters have identified the research objective and how this will be made researchable. This chapter will give an overview of the literature concerning legitimacy in the policy domain of the Intelligence and Security Services. First, an elaboration on nature of the Intelligence and Security Services will be given. This is followed by a closer look at the concept of legitimacy, after which the role of legitimacy in the domain of the services will be considered. Altogether, the theoretical insights will provide a ‘lens’ for the analysis.
3.1 Intelligence and Security services
Intelligence Services according to Eskens et al. (2015): “This term at least covers all
government agencies that collect, process, analyse, and disseminate electronic communications and other types of data for national security purposes.” (p. 558). The collected information can
concern states, groups and individuals and the Services are given special powers and capabilities to gather intelligence (Sadiku & Lokaj, 2015, p. 280). Gill (2012) adds to this that these actions can be intended to maintain power, some elements will be conducted in secrecy and since it is relative to others, intelligence will provoke resistance (p. 207). Intelligence is more crucial to defence rather than offense and has become closely related to security, as it is considered to enhance this (Kahn, 2001, p. 85). Foreign Intelligence Services also cooperate and globalized intelligence networks are emerging (i.e. Den Boer & Van Buuren, 2012, p. 85; Herman, 2002, p.234).
Governments aim to reduce possible threats and risks by preventative control. In order to do so, Intelligence Services have to imagine the future. The Intelligence and Security institutions have to practice pre-mediation and have to anticipate on future events. However, this means there is a great degree of uncertainty when it comes to decision-making and policy-making. Consequently, this uncertainty makes measures more often precautionary rather than preventive (Anderson, 2010; De Goede, 2008; Gill, 2012, p. 208). Therefore, ever since the existence of Intelligence, criticism has existed about its usefulness and effectiveness (Sadiku & Lokaj, 2015, p. 282). Besides this inherent uncertainty, this particular policy domain has another inherent feature: Intelligence and Security operations are by nature secret. Secrecy is needed for effective operations. However, at the same time this secrecy makes formal and informal scrutiny challenging (Matei & Bruneau, 2011, p. 663).
In other words, Intelligence and Security Services cope with an inherent dilemma: the Services aim to ensure security and responsible government, while at the same time the secrecy
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of the methods encourages governmental distrust (Herman, 2002, p. 239). This has implications for the trust in the Intelligence and Security institutions and the acceptance of its measures. In other words, this has implications for the legitimacy of the Intelligence and Security Services. Therefore, before exploring how the Services cope with their inherent challenge, the next paragraph will elaborate on the concept of legitimacy because it is legitimacy that is challenged by this inherent tension in the policy domain. Thus before we can develop a better understanding of this tension and legitimacy in the policy domain of the Intelligence and Security Services, we want to develop a better understanding of what entails legitimacy.
3.2 Legitimacy
The previous paragraph has elaborated on the Intelligence and Security Services and introduced the inherent challenge to legitimacy in this policy domain. To create a better understanding of the inherent challenge, we first create a better understanding of the concept of legitimacy. Moreover, these theoretical insights will provide a framework for the analysis.
Easton (1965) defined legitimacy as the right to rule and the recognition by the ruled of that right (Jackson et al., 2012, p. 1051). In other words, legitimacy can be defined as: “the
acceptance of the outcome of policy processes and the quality of policy-making” (Van
Tatenhove, 2011, p. 91). To put it more detailed: the extent to which the actions of a certain actor are perceived to be in accordance with social norms and values. Institutions in the public sector fight a constant battle over policies and aim to justify their existence and powers in terms of adding to the general interest. By developing policies that generate legitimacy, institutions can secure compliance and corporation. Public consent is necessary for the justifiable use of state power. The public, whom is subjected to certain policies, needs to view these policies as just (Hoppe, 2017; Jackson et al., 2012, p. 1051-1052; Kunseler & Tuinstra, 2016 and Scharpf, 1999).
How has the Wiv2017 as a policy created legitimacy and how has this secured compliance and corporation for the institution of the Dutch Intelligence and Security Services? The majority of votes against the implementation of the Wiv2017 indicates the lack of public consent and thus legitimization. In order to gain insights of how legitimacy was created in the political process and the policy domain, we will look at four different forms of legitimacy in order to say something about legitimacy as a whole. Four forms of legitimacy are constructed in their own way in a different part of the political process: input; throughput/procedural; output and feedback legitimacy. The next section will elaborate on these four different forms that will provide a framework for the analysis.
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First of all, input legitimacy emphasizes that politics should be a reflection of the interests of the stakeholders involved. This is often referred to as ‘government by the people’. For this type of legitimacy it is crucial that stakeholders support the politicians and political rules. For example, this means that the public accepts decisions made by members of parliament because these members of parliament have been democratically chosen. Moreover, input legitimacy entails that stakeholders are able to participate in the decision-making process and different interests and preferences are represented. Including the involvement of Civil Society. Secondly, output legitimacy entails quite the opposite: the rules of the game do not matter, as long as policies and political choices promote the common welfare and general interests. This is often referred to as ‘government for the people’ (Bekkers, 2007; Van Tatenhoven, 2011, p. 92-92 and Scharpf, 1999).
Thirdly, throughput legitimacy (also called process or procedural legitimacy) refers to legitimization that is derived from the quality of the procedures involving the political process. Examples of such legitimizing procedures and structures are transparency, legality, responsiveness, objectivity, fairness, deliberation, openness and efficiency (Jasanoff, 2011, p. 8). In short, this concerns how a decision is made or how a policy is drafted and implemented and by whom (Bochel, Defty & Dunn, 2010, p.1; Schmidt, 2013, p. 5). Throughput legitimacy also concerns the inclusion and degree of openness towards Civil Society (Schmidt, 2012, p. 6-7).
When procedural unfairness is experienced, such as unfair decision-making, feelings of shared group membership with the authority and the current set of rules can be eroded (Jackson, 2012, p. 1053). Citizens care about the way in which decisions are made, regardless of whether the outcome is favourable or unfavourable for them personally. Additional aspects that shape a fair process are for example: lack of bias, thoroughness, clarity, voice and respectful treatment. Procedural fairness is a crucial element for shaping the legitimacy of a certain authority and thus the acceptance of policies (MacCoun, 2005, p. 172 & 180). Schmidt (2013) argues that lack of throughput legitimacy, for example due to biased practices, incompetency or corruption, undermines legitimacy, despite of the extent of input or output legitimacy. Violating input or output legitimacy does not seems matter much for public perceptions of legitimacy. Whereas violating throughput legitimacy has major negative effects of public perceptions of legitimacy (p. 3 & 8-9).
Finally, feedback legitimacy refers to the way in which policy makers are responsive to feedback from stakeholders about the outcome and how feedback relations are institutionalized in a way that feedback provides new input into the political process. This includes the way in
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which achieved results are accounted for by the responsible policy makers (Van Tatenhoven, 2011, p. 92-92; Bekkers, 2007, p. 41-42).
We now have an idea of what constitutes legitimacy. But how does this conceptualization of legitimacy apply to the domain of the Intelligence and Security Services? As discussed in paragraph 3.1, the Intelligence and Security Services are inherently secretive which might conflict with the construction of legitimacy. The next paragraph will elaborate on this tension and explore what is currently known about the way legitimacy is constructed in regards to the Intelligence and Security Services. This is relevant for the reasoning of this thesis because ways in which legitimacy is constructed might differ in the policy field of Intelligence and Security. By developing insights into how legitimacy is constructed in regards to the Intelligence and Security Services, we can built a lens through which to look at during the analysis.
3.3 Intelligence and Security Services and legitimacy
The previous paragraph elaborated on the concept of legitimacy. This paragraph will set apart what is known about the ways in which legitimacy is constructed or compromised in the domain of the Intelligence and Security Services.
Policy-makers in the Intelligence domain are faced with balancing certain rights and rules with effective operations (Horn, 2012). Intelligence reform is a challenge for policy makers, since policies regarding Intelligence and Security need to protect democracy and need to be democratically accountable, but are at the same time inherently secretive (Matei & Bruneau, 2011, p. 656). In other words: secrecy is characterized by a paradox, it makes possible effective operations and protection of the state, while at the same time posing a threat to the democratic state (Andregg, 2010, p. 13 and Sadiku & Lokaj, 2015, p. 280). Intelligence has its own dilemma: it aims to ensure security and responsible government, while at the same time its secret methods encourage governmental distrust (Herman, 2002, p. 239).
Theories of ethics can be applied to the Intelligence domain: the Deontological approach and Utilitarianism. The Deontological perspective seeks legitimacy by finding the best rules for any circumstance. Following these rules strictly is more important than the outcome of the rules for the overall legitimacy. On the contrary, Utilitarianism focusses on the outcomes, the so-called 'ends justify means' perspective (Andregg, 2010, p. 8-13). This illustrated by the extensive measures that are adopted in name of national security, as mentioned in the first section of the theoretical framework. For example, from a Utilitarian approach, secrecy is not necessarily considered illegitimate, as long as the outcome is ‘good’ (Phillips, 2016, p. 52).
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This inherent tension between Utilitarianism and the Deontological approach is similar to the inherent tension described earlier, namely the tension between effective operations and balancing certain rights. Translating this tension into ethical approaches is relevant for the analysis of this thesis because the different forms of legitimacy can be assigned to the ethical approaches. Input, throughput and feedback legtimacy belong to the Deontological approach and an emphasis on output legitimacy is characteristic for the Utilitarian approach. In the analysis of this thesis a closer look at the case of the Wiv2017 will be taken to provide insight into how these inherent tensions have played a role in the case of the Wiv2017 and how this relates to the Dutch Intelligence and Security Services.
The fact that controversy emerged and the majority of the voters voted against the implementation of the law can be seen as the failure to construct acceptance of the Wiv2017 and therefore the failure to construct acceptance of the expansion of the powers of the Services. This might mean the deontological approach has gained ground. In contemporary Intelligence governance the Utilitarian perspective is predominant for legitimization (Andregg, 2010, p. 8-13). However, this predominant Utilitarian approach seems increasingly challenged by deontological arguments. Intelligence is seen as necessary and for a good cause, but on the other hand viewed as a dark unethical practices (Herman, 2002, p. 235). The secretive way of working is prone to be seen as unethical and makes scrutiny challenging (Phillips, 2016, p. 48). Therefore, this inherent aspect of secrecy is a necessity as well as a problematic aspect in terms of democratic accountability (Aldrich & Richterova, 2018, p.4).
The Deontological perspective argues for certain rules and mechanisms to legitimize the services, rather than just focussing on the outcome of Intelligence. When an institutions legitimacy is questioned, ‘repair strategies’ can be employed to enhance credibility, for example increasing transparency or peer review (Kunseler & Tuinstra, 2016). As described above, the inherent features of the domain of Intelligence make certain legitimization strategies challenging. This might also be the case in the Wiv2017 policy-making process. The next paragraphs elaborate on which legitimization strategies are possible in the policy domain of the Services. These theoretical insights will provide a framework for the analysis of the case of the Wiv2017.
The literature concerning legitimizing mechanisms for the Intelligence Services focusses on accountability. Checks and balances need to be put into place, to ensure Intelligence accountability. Accountability is the obligation to explain and justify one's actions (Hastedt, 2010, p. 1). Accountability is a fundamental democratic principle. Because Intelligence Services use public funds, citizens have the right to know how these are used (Sadiku & Lokaj,
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2015, p. 283). Oversight and transparency are elements that make accountability possible. Oversight ensures compliance with the law, a way to hold the services accountable. For oversight to be credible, it needs to meet democratic standards. In case of the EU these standards are set out in the ECTHR. (Eskens et al., 2015, p. 555). Oversight is most often provided by ministers, parliament, judicial bodies and independent parties (p. 560). When it comes to oversight, the political nature needs to be recognized: uncertainty exists about methods and conflicting preferences exists over outcomes. Rules that are in place depend on the existing power relations and relevant actors (Hastedt, 2010, p. 15). Of course, separation of powers also provides control over the Services, as the services do not have executive powers (Sadiku & Lokaj, 2015, p. 283).
Transparency enables oversight and democratic control. (Eskens et al., 2015, p. 555 & Schmidt, 2012, p. 6). As Sadiku & Lokaj (2015) argue: "The provision of greater information
about the services would raise their profile in a positive way, reduce the apprehension and fears induced by secrecy, improve cooperation with the services, and thereby boost their effectiveness." (p. 285). However, due to the confidential and secretive nature of Intelligence,
such transparency is challenging. In the Netherlands this is illustrated by the nickname of the oversight commission for the Services. The 'Commission for the Intelligence and Security Services' [Commissie voor de Inlichtingen -en Veiligheidsdiensten] is often referred to as the 'Commission-Sneaky' [Commissie-Stiekem] (Nieuwenhuis, 2016, p. 85).
Government officials point out how introducing (more) transparency can be damaging to the operations of the Services as successful operations might exactly be dependent upon secrecy. In addition, added transparency can increase the risk of Intelligence politicization. This can happen in two ways. Policymakers will steer Intelligence Services to get what they want or Intelligence Services provide policymakers with information that they know the decision-makers want (Matei & Bruneau, 2011, p. 663). Thus alternative mechanisms need to be created to monitor the services, often in the form of parliamentary oversight (Sadiku & Lokaj, 2015, p. 283). However, oversight can also be carried out by third parties such as Civil Society and private corporations (Eskens et al., 2015, p. 560). Moreover, formal and informal ties with academic, non-profit and industrial communities can create openness (Sadiku & Lokaj, 2015, p. 286).
Several scholars have formulated frameworks for what entails proper accountability in the domain of intelligence. Eskens, van Daalen & van Eijk (2015) define ten standards for oversight and transparency of the National Intelligence Services. Den Boer & Van Buuren (2012) suggest ethical governance of surveillance. Such proposals for proper Intelligence
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governance include: new surveillance methods need to be scrutinized and assessed prior to their introduction; methods should adhere to the principles of proportionality and subsidiarity; methods should only be used when proven to be effective; methods should be scrutinized by parliament and civil society (Den Boer & Van Buuren, 2012, p. 96; Eskens, et al. 2015). Moreover, Hastedt (2010) emphasizes the need for an open debate between the various overseers of Intelligence (p. 15).
However, Aldrich & Richterova (2018) argue that national accountability bodies have failed and journalism or citizen surveillance have not delivered either, leaving an absence of a conceptualization of what entails accountability in the Intelligence realm (p. 5- 9). For example, when it comes to the British Intelligence and Security services, the ability of parliament to scrutinize the Intelligence Services is questioned and remains unclear (Bochel, Defty & Dunn, 2010, p. 3). Therefore, the question of what constitutes Intelligence accountability remains unanswered (Aldrich & Richterova , 2018, p. 3).
To summarize all of the above, what we know is that legitimacy in the domain of the Intelligence and Security Services can be challenging when we consider the conceptualization of legitimacy in the literature. We know that the inherent secrecy might conflict with mechanisms of transparency, oversight and accountability. Some scholars have defined what ideal standards for ‘Intelligence Legitimacy’ would look like. However, what we do not know is how, despite the inherent challenges, legitimacy of the Intelligence and Security Services is constructed in practice. The method section illustrated how this will be made researchable. The key concepts that have arisen from the literature provide an analytical framework by which the analysis can be done. This is the ‘lens’ that will be used when conducting and analysing interviews. Table 2 shows the operationalization scheme that has been made.
Through this lens the unanswered questions regarding the Wiv2017 can now be formulated more precisely. For example: “how come the vast majority of the criticism and proposed amendments have been rejected and what role does this play?” becomes: how is feedback legitimacy constructed in the domain of the Intelligence and Security Services? In this way the analysis can be structured according to the theoretical insights gained in this chapter. The analysis will evaluate how input, output, throughput and feedback legitimacy plays a role in the Wiv2017 policy-making process and the domain of the Dutch Intelligence and Security Services. As mentioned before, the actor groups are divided into public and private actors. It is interesting to see if the importance of certain forms of legitimacy differ between the different actor groups.
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Main concept Dimension Key Concepts Ethical perspective Intelligence
Legitimacy
Output Legitimacy
Outcomes/policies support/serve the general interest. Adherence to standards of proportionality, subsidiarity and goal
orientation.
Utilitarianism
Input
Legitimacy
Stakeholder participation (including Civil Society); support for political rules; interest representation Deontological approach Throughput Legitimacy Transparency; openness; legality; responsiveness; deliberation; efficiency; oversight; lack of bias; thoroughness; clarity; voice; respectful treatment;
involvement Civil Society Feedback
Legitimacy
Institutionalized feedback mechanisms; outcome is accounted for; feedback becomes new input
Table 2 Operationalization Scheme
To conclude, we know that the inherent characteristics of the Intelligence and Security Services conflict with some legitimization-mechanisms. However, it remains unclear how, despite the inherent challenges, legitimacy of the Intelligence and Security Services is constructed in practice. Therefore the goal is to find out how legitimacy is constructed in practice in the policy domain of the Intelligence and Security Services. Also, by providing such insights, we can aim to find out what factors could contribute to constructing legitimacy in the future. Part II of this thesis will present the analysis and the conclusions.
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PART II
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4. Analysis part I: Legitimacy and the Dutch Intelligence and Security Services
This chapter will analyse the nature of the concept of legitimacy in relation to the policy domain of the Intelligence and Security Services. The first sub-paragraph will elaborate on the institutional setting in order to get a better understanding of how legitimacy plays a role in the domain of the Services. The second sub-paragraph will set out the assessment made by the respondents. Attention will be paid to which specific actor group respondents and their stances belong to. Finally, the section ends with a concluding paragraph presenting the main findings.
4.1 Institutional Setting
First of all, the context in which the Services and the Wiv2017 are set matters in terms of making sense of the answers of respondents. Therefore the first section of this analysis chapter will elaborate on the context leading up to the expansion of the powers of the Dutch Services and the controversy that emerged. Especially since this research concerns a single case study, the policy context and history matter to come to a proper understanding.
The context goes back to the idea of a risk society conceptualized by Beck (1992) and Giddens (1990). The concept of risk society means we are increasingly preoccupied with the future and increasingly able to predict the future, creating the notion of risk. Moreover, due to modernization we have to deal with ‘manufactured risks’: risks created by human action (Giddens, 1999). A consequential development associated with this risk society is the development of risk governance as an effort to cope with these new and complex risks in the current age (Renn, Klinke & Asselt, 2011, p. 231). However, one of the problems with risk governance is the social amplification of risks, meaning that relatively minor risks as identified by experts, can elicit a strong public reaction that has substantial effects on the governance measures that are taken. This can lead to disproportional measures (Kasperson, 2015, p. 458). A policy field that is affected by such risk amplification and disproportional measures is that of Intelligence and Security. Since the 9/11 attacks the issue of security has become a political top priority and a large amount of security measures and security services have been implemented. This trend is referred to as ‘securitization’ (Fekete, 2004, p. 8; Herman, 2002, p. 228; Kaal et al., 2009, p. 94; Terlouw, 2009, p. 8-9; Vedder, Wees, Koops & de Hert, 2007, p. 10; Wæver, 1993). The American Patriot Act is illustrative of this. In the Netherlands an example of this is the Terrorist Offences Act ['Wet Terroristische Misdrijven'], implemented in 2004 (Vervaele, 2005, p. 409).
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human rights such as privacy or freedom of speech (Amnesty International, 2017). A suggested explanation for this ease is that policy proposals are easily legitimized when a potentially severe security threat is identified such as terrorism (Den Boer & Van Buuren, 2012, p. 90; Herman, 2002, p. 228; Kaal et al., 2009, p. 91; Terlouw, 2009, p. 13; Van der Woude, 2010, p. 403). Consequently, the number of Intelligence and Security Services and their powers have increased over the past decades.
The Intelligence and Security Services have increased their powers over the past decades due to the trend of securitization. Supported by the process of digitalization, citizens are increasingly subjected to permanent surveillance, justified on the basis of national security (Den Boer & Van Buuren, 2012, p. 85 & 90).This trend of securitization is partly supported by incidents such as terrorist attacks, that by creating fear legitimize security measures. When we look at the specific context of the Wiv2017 this means that according to the Eurobarometer 464b,Dutch citizens feel like the EU has become a less safe place to live in and 81% thinks terrorism is the biggest threat (European Commission, 2017, p. 7 & 17). Furthermore, the “Risk and Crisisbarometer” [Risico- en Crisisbarometer] made by the NCTV (2017) shows that 72% of Dutch citizens understand that the government needs to take security measures in order to prevent terrorist and cyber-attacks, that influence the privacy of individual citizens (p. 32). Despite the intrusiveness of many Intelligence techniques, public discussion has remained relatively absent (Den Boer & Van Buuren, 2012, p. 95 & Herman, 2002, p. 232). However, revelations and scandals, such as those of Edward Snowden, have raised criticism and questions. Revelations showed services have engaged in activities that go beyond their mandate (Sadiku & Lokaj, 2015, p. 280). The Netherlands is one of the few countries in which the topic has become the focus of political scrutiny by the parliament (Vervaele, 2005, p. 411-412). Eurobarometer 431 (European Commission, 2017) shows that 73% of Dutch citizens have heard of recent revelations about government agencies collection personal data on a large scale for the purpose of national security (p. 23). For 43% of the respondents this has a negative impact on the trust in how their online data is used (p. 26).
Momentum for reform of the Intelligence Services seems to be growing. An example of this is the replacement of the Patriot Acts by the USA Freedom Act (Eskens et al., 2015, p. 555). Gill (2010) argues that in the past 30 years considerable progress has been made into subjecting Intelligence to democratic control and oversight, for example the rules set out by the European Union Commission of Human Rights (EUHCR) (p. 217-220; Nieuwenhuis, 2016, p. 78). This divides human rights into different categories and specifies under which conditions these rights may be infringed (Phillips, 2016, p. 56). However, the Intelligence domain has not
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been an area for mainstream reform and is often viewed with suspicion. Yet, the Services require proper legislation in order for citizens to have confidence in the Services and how the Services are scrutinized (Martin, 2007, p. 557-560). Therefore, the powers and capabilities of the Dutch Services need to adhere to three standards: proportionality, subsidiarity and degree of goal orientation, as mentioned in the theoretical framework (Rijksovereid, 2018, p. 10).
What do we learn from this section? As discussed in the theoretical framework, different ethical perspectives on what legitimizes the Services and their operations apply. These perspectives are Utilitarianism and the Deontological approach. According to Andregg (2010), the Utilitarian perspective is predominant for legitimization in contemporary Intelligence Governance (Andregg, 2010, p. 8-13). This illustrated by the extensive measures that are adopted in name of national security, as described as the securitization trend above. However, as described above, momentum for reform in the domain of the Intelligence and Security Services is growing. This means that the predominant Utilitarian approach seems increasingly challenged by Deontological arguments. The Deontological perspective argues for certain rules and mechanisms to legitimize the services, rather than just focussing on the outcome of Intelligence. What can the case of the Wiv2017 tell us about this tension in regards to the Dutch Intelligence and Security Services? What stance do the actors from different actor groups take in terms ethical perspective? Is momentum for a Deontological approach still growing and what does this mean in terms of legitimacy in the domain of the Dutch Intelligence and Security Services? The next section and chapters will answer these questions.
4.2 Actor assessment
Before saying something about what constructs or deconstructs legitimacy in the domain of the Intelligence and Security Services, this paragraph aims set out a notion of how the legitimacy of the Dutch Intelligence and Security Services is regarded by the actors involved in the policy process regarding the Wiv2017.
The vast majority of the respondents across all actors groups state that there is generally no serious distrust towards the Dutch Intelligence and Security Services. For example, respondent 7 (Academic) argues: “The rapports [of the CITVD] indicate that the Services
follow the rules. There is little factual argumentation suggesting that the Services are rogue or anti-democratic.” Despite revelations about foreign and domestic Intelligence and Security
Services, most respondents argue that they trust the Dutch Services to not go beyond their mandate. Moreover, all of the respondents indicate that the discussion that revolved around the Wiv2017 concerns the powers and abilities of the Services, and not the existence of the
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Services. “For us the question has never been: do we trust the AIVD and MIVD? The question
is: what powers do we think that the Intelligence and Security Services should have in our free, open, democratic society” (Respondent 9, NGO). There is consensus about the need for the
Services and the importance of their work. It is the expansion of the powers of the Services that is up for discussion.
When analysing these answers, one would expect such answers from the parties that are part of the public sector (politicians, employee of advisory body government and former employee of the Services) to argue in favour of the legitimacy of the institution and law they are involved with. From the private actors (NGO’s, media and business sector) one would expect to find more critical statements. Therefore, it is striking that the actor groups who have been most critical about the Wiv2017, do not seriously question the overall operating of the Services. Perhaps this is because socially desired answers are given. Legitimacy is a complex and loaded topic. Maybe it is unlikely that respondents would call a policy or governmental institution illegitimate. Some respondents, as part of an actor group officially supporting of the new law, are not in the position to openly criticize Wiv2017, the Services or the policy-making process. For example, politicians might be more likely to give socially desirable or politically correct answers. As the interviews will be recorded if agreed upon, the knowledge of being recorded might also influence the answers given by respondents, making respondents more likely to give socially desired answers.
Moreover, part of the respondents emphasise that the potential threat or danger of the Services shouldn’t be exaggerated. This is illustrated by elaborating on the budget and recent numbers that have been published about the number of phone taps the AIVD does yearly. For example: the extra budget that the Services received for the expansion of their powers, does not realistically make widespread surveillance possible, as suggested by some critics. Therefore Respondent 7 (Academic) argues: “all these doomsday scenarios are actually based on little
factual argumentation”. Moreover, a corresponding argument is made: “the employees of the Services are citizens of this country too and they also care about what happens to this country”
(Respondent 6, Academic and Former Services Employee). Indicating that it is not realistic that employees would engage in violations of human rights on a large scale. This also supported by a respondent from an NGO, a respondent who works for a media outlet and an academic. Again, it is striking that the actor groups who have been most critical about the Wiv2017, do not seriously question the overall operating of the Services.
Besides this, all respondents across actor groups acknowledge that the subject of national security and the Secret Services is a tricky one. Doing well and getting it right seems
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out of question in the policy domain of the Services and national security: “Security Services
are in a very difficult position. If a terrorist attack takes place and the Services did nothing everybody is angry. If they act and turns out nothing was happening everybody is angry too.”
(Respondent 3, Advisory Government Body). Consequently, respondent 7 (Academic) argues that this also means that the responsible minister and other politicians don’t like to be associated with the Services and the subject of national security: “If you [as parliament] change the law
and something happens, you get the blame.”. The respondent argues that therefore politicians
would rather take excessive measures than too little measures, by means of covering themselves. “But that’s a typical reflex of politics, like if we [politicians] do this [expanding powers of Intelligence and Security Services] then at least they can’t say we [politicians] didn’t
take it [threats to national security] seriously” (Respondent 6, Academic and Former Services
Employee).
Moreover, respondents across actor groups indicate that the importance of a conflicting concept namely privacy has increased over the past years, making Intelligence operations a sensitive topic. Respondent 6 and former employee of the Services states: “I mean, the 10 years
that I worked at the Services, I don’t think I ever heard the word privacy”. This has changed.
Respondent 2 (Media) says: “if you touch my privacy, I want to say something about it”. The increased importance and emphasis on privacy is argued to partly be due to the amount of data every person shares online on a daily basis accompanied by the “unspoken fear in regards to
what is done with that [amount of data shared online]” (Respondent 6, former employee of the
Services). Factors that contribute to this are the digitalization of services in general and the popularity of social media. Moreover, recent scandals concerning for example Facebook, feed the discussion about privacy. The analysis of the answers of the different actors shows that increased importance of privacy is a factor influencing the legitimation of the powers of the Intelligence and Security Services.
Lastly, a number of respondents argue that legitimacy is especially important but also delicate in the policy field of the Intelligence and Security Services. Respondent 7 (Academic) argues that the government needs to legitimize why special capabilities such as phone taps should be used. The constitution decides that citizens are to be protected from their government and if the government wants to infringe certain rights due to special circumstances, this needs proper legitimization: “Trust is very important and trust is hard to gain but easy to lose [vertrouwen komt te voet en vertrekt te paard] (…) this is a policy area in which this delicate
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states that this trust is in fact crucial for facilitating special operations of the Services, as certain operations such as placing phone taps and hacking are dependent on public cooperation.
4.2 Main findings
What do we learn from this section? That none of the respondents across all actor groups raise serious questions when it comes to the Intelligence and Security Services is interesting. If the Dutch Intelligence and Security Services are to be trusted, then how come expansion of their powers became controversial? For politicians, a former employee and an employee of an advisory governmental body to not be too critical might be more understandable. But that NGO’s and Academics as the main criticizers of the Wiv2017 argue they trust the Services is striking. This might be the case because the legitimacy of a governmental institution is a sensitive topic that leads to socially desirable answers. Moreover, when it comes to the increased importance of privacy, this means that the Utilitarian approach is not sufficient any longer. It is not only the outcome of the process that matters, namely national security, but it also matters that the operations create legitimacy. In this case meaning that the methods of the Services don’t compromise privacy (too much). This argumentation is in line with the Deontological approach to ethics.
To draw conclusions, it seems that the legitimacy of the Services and the employees themselves isn’t seriously questioned. Then why did the adoption of the Wiv2017 become contested? Why can’t the Services be trusted with an expansion of their powers and capabilities when they seem to be trusted in general? To answer these questions, the next analysis section will look at which factors have played a role in the (de)construction of legitimacy during the process of the Wiv2017.
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5. Analysis part II: Legitimacy and the Wiv2017
This chapter will analyse how legitimacy has been constructed during the policy-making process regarding the Wiv2017. The first sub-paragraph create a better understanding of the procedures involved in the policy making process and which actors were or were not involved in which policy-making phase. The second sub-paragraph will set out the assessment made by the respondents. This will be done by going about the analysis per form of legitimacy and also per actor group. Finally, the section ends with a concluding paragraph presenting the main findings.
5.1 Procedural setting
The standards the Intelligence and Security Services need to adhere to, such as proportionality, subsidiarity and degree of goal orientation as mentioned before, were set down in the old “Law concerning the Intelligence and Security Services 2002” [“Wet op de Inlichtingen- en Veiligheidsdiensten”] (Henceforth rendered ‘Wiv2002’) amongst other standards. In 2006, after the terrorist attacks in Madrid in 2004, the so-called ‘Post-Madrid Law’ was proposed. This law proposed and expansion of the powers of the Services. Eventually, in 2011, this law was rejected after criticism and doubts (Muller & Voermans, 2017, p. 102). The starting point of the analysis of this thesis will be 2012. Because in 2012, the old law Wiv2002, depicting the powers of the Dutch Intelligence and Security Services, had existed for 10 years. After the 10-year anniversary, the Dutch House of Representatives [de Tweede Kamer der Staten-Generaal] requested an evaluation of the Wiv2002.
An evaluation commission named ‘Commissie-Dessens’ was assigned to take on the evaluation. In 2013 the Commissie-Dessens presented its rapport to the Senate [de Eerste Kamer der Staten-Generaal], the House of Representatives and to the broader public (Rijksoverheid, 2015, p.4). The commission argues that technological developments of the past decade ask for an adjustment of the powers and capabilities of the Services in order to ensure national security (Rijksoverheid, 2015, p. 5). Due to the number of changes that needed to be made to Wiv2002, the decision was made to write an entirely new law: the ‘Wivxx’ (Rijksoverheid, 2015, p.8).
Starting on the 2nd of July 2015, the draft of the Wivxx was submitted to two months of internet consultation. This resulted in 1100 critical reactions coming from a variety of private and public actors. A new draft was completed in April 2016, which included an extra oversight commission. This new draft was sent to the 'Council of State' [Raad van State] for evaluation.
