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This subject is topical for a very long time. Instructions were given to Commission Dessens. They provided advice. Subsequently, we encountered several incidents and tragedies which coloured this
continuously. There were the shocking revelations of Snowden and recently the shocking attack in Paris. These cases reflect the balance in which this act should be created. We want an effective service
which can look at places where terrorism and radicalization are present, but we also want the guarantees to be as large as possible.
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Preface
In front of you lays the thesis ‘Dutch Intelligence Act 2017: what can be said.’ in which the creation and implementation of the Dutch Act on the Intelligence- and Security Services 2017, a period of time spanning from February 2012 to December 2018 (and onwards), is analysed. In the time of being a student in Political Science, I started to get more interested in international security and in particular the topic of ‘intelligence’. With the referendum about the Act on the Intelligence- and Security Services 2017 taking place in 2018, the decision to write my thesis about this subject was quickly made.
As I gave more substance to the intention of writing my thesis about this subject, and with the minor Intelligence Studies I followed in the back of my mind, the first name to ask to be my supervisor was Mr. Drs. Willemijn Aerdts. Her expertise, together with that of Prof. Dr. Paul Abels, proved very helpful in writing my thesis and I would like to thank them both for the opportunity and their sharing of knowledge. Writing this thesis and the subject of ‘intelligence’ proved to me very interesting and informative.
Besides direct support to my thesis, I would like to thank my parents for their long lasting support and trust in me. Also, my grandfather, who has always been so proud of me, gave me the final nudge several times in both writing this thesis and in studying. Lastly, in being foremost a very helpful mental support, I would like to thank my girlfriend for her ongoing patience and the reviewing of several papers of mine in the past, resulting in the improvement of my writing skills. Something that proved to be very necessary.
Although I am of the opinion that ‘intelligence’ remains a difficult subject, with this thesis I intended to shed more light on the way in which the recently adopted Act on the Intelligence- and Security Services 2017 was created and implemented. I hope that you enjoy reading this thesis.
Yours sincerely,
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Table of Contents
Preface ...2 List of Abbreviations ...6 1. Introduction ...8 1.1 Introduction ...8 1.2 Motivation ...9 1.3 Research question ...9 1.4 Academic relevance ...9 1.5 Societal relevance ... 10 1.6 Reading guide ... 11 2. Theoretical framework ... 12 2.1 Introduction ... 12 2.2 Problems ... 12 2.3 Agenda-setting ... 13 2.4 Agenda-Setting Models ... 14 2.4.1 Gap Model ... 142.4.2 Relative Attention Model ... 15
2.4.3 Streams Model ... 16
2.4.4 Barrier Model ... 17
2.4.4.1 Bachrach & Baratz’ four barriers ... 17
2.4.4.2 Reallocation of values or existing values? ... 19
2.5 Selection of theory ... 20
3. Methodology ... 21
3.1 Introduction ... 21
3.2 Research design & Methodology... 21
3.3 Operationalization ... 21 3.4 Reliability ... 24 3.5 Internal validity... 24 3.6 External validity ... 24 4. Analysis: Barriers ... 26 4.1 Barrier 1 ... 26
4.1.1 Barrier 1: motion Elissen ... 26
4.2 Channel of Policy Choices ... 27
4.2.1 Channel of Policy Choices: trying to generate public notice... 27
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4.2.3 Channel of Policy Choices: commission Dessens takes shape ... 30
4.2.4 Channel of Policy Choices: applying the finishing touches ... 30
4.2.5 Channel of Policy Choices: changing power relations ... 32
4.2.6 Channel of Policy Choices: large public notice ... 33
4.2.7 Channel of Policy Choices: last possibilities for the uttering of demands ... 34
4.3 Barrier 2 ... 35
4.3.1 Barrier 2: slight change of procedures... 36
4.3.2 Barrier 2: arrival of the report of Commission Dessens ... 36
4.3.3 Barrier 2: responses from Dessens and MP’s ... 37
4.4 Decision-Making Arena ... 38
4.4.1 Decision-Making Arena: response from the cabinet ... 39
4.4.2 Decision-Making Arena: response from the CTIVD ... 40
4.4.3 Decision-Making Arena: debate between the cabinet and the committee... 42
4.4.4 Decision-Making Arena: sketch of the interception system ... 47
4.4.5 Decision-Making Arena: debate about the interception system ... 48
4.4.6 Decision-Making Arena: the process outlined ... 52
4.4.7 Decision-Making Arena: the concept bill and the internet consultation ... 52
4.4.8 Decision-Making Arena: temporal oversight regulations... 54
4.4.9 Decision-Making Arena: further adjustments ... 55
4.4.10 Decision-Making Arena: advice of the Council of State and reaction of the cabinet 56 4.4.11 Decision-Making Arena: last contributions to the bill ... 57
4.3 Barrier 3 ... 58
4.3.1 Barrier 3: presentation before the House of Representatives ... 58
4.3.2 Barrier 3: presentation before the Senate... 60
4.3.3 Barrier 3: elections and a new cabinet ... 62
4.3.4 Barrier 3: a petition for a referendum ... 63
4.3.5 Barrier 3: a written response and the appointment procedure of the TIB ... 64
4.3.6 Barrier 3: what to do with a potential outcome of the referendum? ... 64
4.3.7 Barrier 3: campaign of the Head of the AIVD ... 65
4.3.8 Barrier 3: campaign of the Director of the MIVD ... 66
4.3.9 Barrier 3: campaign of the CTIVD ... 67
4.3.10 Barrier 3: campaign of scientists ... 68
4.3.11 Barrier 3: campaign of interest groups ... 69
4.3.12 Barrier 3: last debate with party leaders ... 70
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4.4 Implementation ... 73
4.4.1 Implementation: report of the TIB ... 74
4.4.2 Implementation: report of the CTIVD ... 75
4.5 Barrier 4 ... 76
5. Conclusion & Discussion ... 77
5.1 Conclusion ... 77 5.2 Discussion ... 78 5.3 Reflection ... 79 5.4 Further research ... 80 Glossary ... 81 Bibliography ... 89
Appendix A: motion Elissen/Çörüz ... 111
Appendix B: allocation of seats House of Representatives 2012 relative to 2010 ... 112
Appendix C: recommendations Commission Dessens... 113
Appendix D: allocation of seats Senate 2015 relative to 2011 ... 119
Appendix E: endorsements/rejections of the cabinet 11th of March 2014 ... 120
Appendix F: endorsements/rejections of the CTIVD 11th March 2014 ... 122
Appendix G: main lines interception system 21st November 2014 ... 123
Appendix H: Wiv 2002 compared to concept bill Wiv 20xx ... 124
Appendix I: concept bill Wiv20xx compared to concept bill Wiv20xx2 ... 130
Appendix J: amendments filed on the 14th of February 2017 ... 136
Appendix K: motions filed on the 14th of February 2017 ... 138
Appendix L: allocation of seats House of Representatives 2017 relative to 2012 ... 140
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List of Abbreviations
Abbreviation Full In English
AIVD Algemene Inlichtingen- en Veiligheidsdienst
General Intelligence- and Security Service
AMS-IX Amsterdam Internet Exchange
CDA Christen Democratisch Appèl Christian Democratic Appeal CIVD Commissie voor de Inlichtingen-
en Veiligheidsdiensten
Commission for the Intelligence- and Security Services
CTIVD Commissie van Toezicht betreffende de Inlichtingen- en Veiligheidsdiensten
Commission of Oversight concerning the Intelligence- and Security Services
CU Christen Unie Christian Union CVIN Commissie voor de Veiligheids- en
Inlichtingendiensten
Commission for the Security- and Intelligence Services
D66 Democraten 66 Democrats 66 DIVR Defensie Inlichtingen- en
Veiligheidsraad
Defence Intelligence- and Security Council
DG Directoraat-Generaal Directorate-General
ECHR European Convention on Human
Rights
FBI Federal Bureau of Investigation
FMW Faculteit Militaire Wetenschappen Faculty of Military Sciences
GA Geïntegreerde Aanwijzing Integrative Designation GL GroenLinks GreenLeft
ICT Information- and Communication
Technology
IIS Institute for Interdisciplinary Studies
IND Immigratie- en Naturalisatiedienst Immigration and Naturalisation Service
ISGA Institute of Security and Global
Affairs
7 MID Militaire Inlichtingendienst Military Intelligence Service
MIVD Militaire Inlichtingen- en Veiligheidsdienst
Dutch Military Intelligence- and Security Service
MP Member of Parliament
NCTV Nationaal Coördinator Terrorismebestrijding en Veiligheid
Dutch National Coordinator Counterterrorism and Security
NSA National Security Agency
NSO National Signals Intelligence
Organization
PRISM Planning Tool for Resource
Integration, Synchronization, and Management
PvdA Partij voor de Arbeid Labour Party
PvdD Party voor de Dieren Party for the Animals PVV Partij voor de Vrijheid Party for Freedom RIV Raad voor de Inlichtingen- en
Veiligheidsdiensten
Council for the Intelligence- and Security Services
SG Secretaris-Generaal Secretary-General SGP Staatkundig Gereformeerde Partij Reformed Political Party
SIGINT Signals Intelligence
SP Socialistische Partij Socialist Party TIB Toetsingscommissie Inzet
Bevoegdheden
Assessment Committee Deployment Authorizations
US United States
VVD Volkspartij voor Vrijheid en Democratie
People’s Party for Freedom and Democracy
Wiv Wet op de Inlichtingen- en Veiligheidsdiensten
Act on the Intelligence- and Security Services
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1. Introduction
1.1 Introduction
On the 1st of February 2012, a Dutch member of parliament (MP) for the Party for Freedom (PVV) Elissen filed a motion in the House of Representatives, requesting the government to evaluate the Act on the Intelligence- and Security Services 2002 (in Dutch: Wet op de
Inlichtingen- en Veiligheidsdiensten, Wiv) and pay particular attention to oversight of the
intelligence- and security services (Dessens et al., 2013, p. 13). After the House adopted the motion, a long process of years commenced; debates, commission reports, media attention, and even a referendum was what it took to come to a new Wiv 2017, implemented in 2018 as a successor to the Wiv 2002. The Wiv 2002 was used for more than fifteen years and it formed the legal basis for the operations of the General Intelligence- and Security Services (in Dutch:
Algemene Inlichtingen- en Veiligheidsdienst, AIVD) and the Dutch Military Intelligence- and
Security Service (in Dutch: Militaire Inlichtingen- en Veiligheidsdienst, MIVD) (Dielemans, 2018, p. 69).
In the Netherlands, the first Wiv arose in 1987, after it became clear that the Military Intelligence Service (MID), precursor of the MIVD, spied on citizens on a large scale and affected citizens filed complaints at the European Court for Human Rights (ECHR) where after it convicted the Dutch state for offering too little privacy guarantees to Dutch citizens (Kalkman, 1998). In line with this development, in for example the United States (US) (1974), Canada (1984), Norway (1995) and the United Kingdom (1989/1994) oversight over the intelligence services began, ‘‘triggered by scandals exposed by the media, in which a country’s security services were found to have been spying on their own citizens’’ (Born, Johnson & Leigh, 2005, p. 229). Public pressure, media attention and outcries resulted in reform and better scrutinizing in how the way the services operated.
Eighteen years later from the adoption of the Wiv 1987, the Wiv 2002 was created, facilitating enhanced oversight over the services in the form of the Commission of Oversight concerning the Intelligence- and Security Services (in Dutch: Commissie van Toezicht
betreffende de Inlichtingen- en Veiligheidsdiensten, CTIVD). In 2012, the Commission Dessens
delivered its report and subsequently in 2017, the Wiv 2017 was born. As Dielemans (2018, p. 70) puts it: ‘‘the Wiv 2002 was formed in a time in which the digitalization of society as we know it was still in its infancy’’ and as it seemed, the Wiv 2002 was ripe for change. Both the activities and authorizations of the intelligence- and security services and oversight were the main subjects of discussion.
9 1.2 Motivation
Intelligence scholars often refer to the realm of intelligence as possessing some kind of exceptionalism; intelligence as something completely different from other government realms (Turner, 2004, p. 50). However, just as with any other government agency, legislation lays the foundations of the authority of the intelligence services. Phythian (2014, p. 40) states that oversight, something that is facilitated by this legislation, resulted in less exceptionalism surrounding intelligence and claims of exceptionalism surrounding the intelligence realm do not have the same amount of support as in the past. Furthermore, Phythian (2014, p. 40) states that ‘‘not all states are alike’’ and different factors constitute the intelligence culture of a country. It is possible that exceptionalism is less present in the Netherlands, compared to other countries. By means of applying the Barrier Model to the creation and implementation of the Wiv 2017, the Dutch intelligence legislation, underlying characteristics of the creation and implementation of the Wiv 2017 can be uncovered.
Moreover, Phythian (2014, p. 40) also argues that ‘‘in a liberal democratic context, intelligence can, at times, exist in tension with principles held to be core to the broader political culture’’. It was these kinds of trade-offs that created the biggest tensions in the debate surrounding the implementation and creation of the Wiv. These two complex questions, the allegedly present exceptionalism and the tension of principles, inspired me to write my thesis about this subject.
1.3 Research question
By means of applying the Barrier Model, a policy model concerned with the process of the creation and implementation of policy, to the Wiv 2017, one can uncover the underlying characteristics of the creation and implementation of the Wiv 2017 and test if the creation and implementation of the Wiv followed a normal fashion according to the Barrier Model. Therefore, the research question of this thesis will be: How can the creation and implementation
of the Wiv 2017 be characterized by means of applying the Barrier Model to the creation and implementation of the Wiv 2017? The sub-questions will correspond with the four barriers and
the intermediary phases of the barrier model, which will be outlined in the theoretical framework together with a timeline, and as such these sub-questions do not require further explanation.
1.4 Academic relevance
The literature surrounding policy making is very comprehensive. The literature of intelligence studies on the other hand is rather limited compared to the literature of Public Administration.
10 The literature surrounding intelligence power, as ‘‘a particular kind of state power’’, developed from the 1970s onwards can be considered serious with a growing number of academic courses about intelligence in the US and Great-Britain (Herman, 1996, p. 2). In the last ten years, with the establishment of the Ad de Jonge Centre for Intelligence- and Security Studies of the University of Amsterdam and its merge with the Institute of Security and Global Affairs (ISGA) of Leiden University, the Netherlands received its own counterpart. This produced several works concerned with studying intelligence. Herman (1996, p. 3) states that ‘‘nevertheless the analytic part of this work still has the marks of a young subject’’. Furthermore, ‘‘the literature is heavily weighted towards US intelligence seen through US eyes, with much less that draws on other national arrangements and perspectives’’ (Herman, 1996, p. 3).
Hoppe (2015, p. 48) even argues that ‘‘most [intelligence] research up to 2006 (at least) is based on questionable prescriptive models followed by other ungrounded assumptions of what intelligence managers actually do. It is not built on unprejudiced empirical studies of what is actually being done’’. Thus, most of the research surrounding intelligence is only about how intelligence should be done and not about how it is done; this thesis will thus not show how intelligence acts should be created, but how they are created and as such it will contribute to the analytic part of intelligence studies.
Furthermore, since the Wiv 2017 is the third of its kind in the Netherlands, there is evidently not much written about this subject. As such, intelligence legislation is a relatively new phenomenon. By applying the Barrier Model to the Wiv 2017 and analysing this, one can uncover the underlying characteristics of the creation and implementation of the Dutch intelligence legislation, contributing to the a more comprehensive analytic part of intelligence literature. Specifically, an analysis of the characteristics of the creation and implementation of intelligence legislation of the Netherlands, as part of the national arrangements with less focus according to Herman (1996), can contribute to perspectives other than those from the US. Thus, the scientific relevancy does not lie in Public Administration, but in intelligence literature, with help from a scientific model with its roots in Public Administration.
1.5 Societal relevance
On the 9th of October 2017 it became clear that there will be a referendum about the Wiv 2017, more than 300.000 Dutch people signed a petition in favour of a referendum after an initiative of a group of students from Amsterdam (RTL Nieuws, 2017). The voter turn-out of the referendum was 6 million people, more than 50% of the eligible voters (Kiesraad, 2018). This shows how much people were interested in the act. Thus, societally speaking, this research can
11 show Dutch society whether the creation and implementation of the Wiv proceeded in a normal fashion and according the barrier model and if not, society can adjust to it and be prepared for the next time an intelligence act is proposed so that society can express their ideas about potential intelligence acts more efficient. It helps society better understand the dynamics of creating an intelligence act and how the creation of such an act is accomplished.
It also gives insight into the procedural legitimacy of the creation of the intelligence acts; possible abnormalities in the creation can be uncovered by this case study. Furthermore, as will be clear later on, the Dutch government pointed numerous times to the tension between privacy and an enhancement of authorizations for the intelligence- and security services and the implications these enhancements have for fundamental rights of the Dutch citizens. This study could contribute to a better understanding why these enhancements were necessary or not, according to proponents and opponents of such enhancement.
1.6 Reading guide
As the topic of this thesis is introduced, the following chapters will be addressed. First, the theoretical framework of this thesis will be outlined, but above all, the Barrier Model will be explained. Thereafter, in Chapter 3, the methodology of this study and the operationalization of the Barrier Model will be explained, so that in Chapter 4, the actual analysis of the process of the creation and implementation of the Wiv 2017 can take place. Chapter 4 will be divided into sub-paragraphs corresponding with the barriers and intermediary phases of the Barrier Model, which will be further explained in the operationalization. After the analysis, in Chapter 5, the conclusion will be made and the findings of the study will be elaborated on. Furthermore, the applicability of the Barrier Model will be discussed and suggestions for further research will be given.
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2. Theoretical framework
2.1 Introduction
This chapter consists of literature, theories and models about policymaking. First, ‘problems’ and ‘agenda-setting’ will be discussed, because these concepts are important to understand the discussed policy models and consequently to understand the policy making process, the creation and implementation of policy. Policy models explain how and when certain policy proposals reach the political agenda and ultimately come into effect. Furthermore, these also explain how it is possible that certain policy proposals do not even reach the political agenda or fail to come into effect. In the past decades, contributors to Public Administration theory have developed several theories and models about the policymaking process of which three will be discussed briefly; the gap model, the relative attention model and the streams model. One model, the barrier model, will be discussed more comprehensive, because this model is more appropriate to apply to the case of the Wiv 2017, as will be clear later on. Together, this literature lays the theoretical framework of this thesis.
2.2 Problems
What is most notable about policy models is that they are about problems and ideas about the possible solutions for the problems. In order to understand these policy models, one must know what these two concepts mean, so that they can be put into the context of these policy models. How one defines a specific problem (the problem definition) influences the policy that is directed on solving the problem. Thus, a policy does not only concern possible solutions to problems, but also the question about what problems should be addressed (Hoogerwerf & Herweijer, 2008, p. 21).
For example, the Wiv as a policy, could be directed at solving certain problems and the problem definition influences what problems will be addressed with the policy. For the Wiv to be changed, there first needs to be a problem definition and in the case of the Wiv, this was first delivered by the Motion Elissen. Also, on aspects of the Wiv, several actors differed on what the problem definition is. In order to understand the characteristics of the creation and implementation of the policy Wiv 2017, one must know what a ‘problem’ is.
According to Birkland, 2011, p. 10) a problem, in the context of agenda-setting and policymaking, is ‘‘a usually undesirable situation that according to people or interest groups can be alleviated by government action’’. Hoogerwerf & Herweijer (2008, p. 21) define a problem as ‘‘a difference (discrepancy) between a measure (principle, norm) and a representation of an existing or expected situation’’. According to them, policy is not only a
13 structure of purposes, means and time choices, but also an answer to a problem. Whenever a problem reaches the policy agenda, a problem becomes a policy problem (Hoogerwerf & Herweijer, 2008, p. 21).
Hoogerwerf & Herweijer (2008, pp. 181-182) make a distinction between tame- and wicked problems. Differences in opinions about policy often start with differences in perceptions of policy problems. For a part, these differences stem from the use of different information sources, for another part these differences stem from different interests (Hoogerwerf & Herweijer, 2008, pp. 181-182). Tame problems are problems that are not controversial and they do not evoke a lot of differences, there is consensus about how the problem is experienced and how to fight the problem (Hoogerwerf & Herweijer, 2008, p. 182).
Wicked problems on the other hand, are problems that are experienced differently and they are
merely a symptom of a greater problem of which the partial problems cannot be fought separately (Hoogerwerf & Herweijer, 2008, p. 182). On the basis of this, one could consider the new Wiv addressing wicked problems.
2.3 Agenda-setting
Some problems reach the agenda, some do not. Agenda-setting models, or policy models, have brought answers to why certain problems have successfully reached the agenda and some not. In order to understand the models that will be presented, it is important to understand the agenda-setting process so that one knows how the Wiv reached the agenda. Birkland (2011, p. 168) defines agenda-setting as ‘‘the process by which problems and alternative solutions gain or lose public and elite attention, or the activities of various actors and groups that cause issues to gain greater attention or prevent them from gaining attention.’’. Several actors play a role in agenda-setting, they can be politicians or officials, but also civilians, interest groups, organizations and the media (Hoogerwerf & Herweijer, 2008, p. 66). It is important, as Dahl (1961, in Bekkers, 2012, p. 131) states, to remember that the political power in a society is not solely in the hands of one elite, one oligarchy, but several political elites, with different power bases, which compete for power in a community. In the case of the Wiv, it is thus not only politics having influence on the agenda-setting process and policy making process.
Van de Graaf & Hoppe (1996, pp. 181-183) identify three separate agenda’s; the policy agenda, the political agenda and the public agenda. They define an agenda as ‘‘a list of topics [or problems] which at a certain moment or certain period gain attention from an actor or a group of actors’’ (Van de Graaf & Hoppe, 1996, pp. 181-182). The policy agenda is the list of topics that have the attention of the policy actor and it is the list of the topics of which the policy
14 actor is making certain arrangements to make the policy come into effect. The political agenda is the list of topics that have the attention of politicians and administrators and the public agenda is the list of topics of which the public opinion thinks it should have the attention of politicians and administrators (Van de Graaf & Hoppe, 1996, pp. 182-183). According to Van de Graaf & Hoppe (1996, p. 183) these agenda’s overlap each other and it is impossible to predict on which agenda which topic will arrive first. All situations are possible and all topics can arrive on different agenda’s first.
2.4 Agenda-Setting Models
The first model of agenda-setting that will be discussed is the gap model. Together with the relative attention model and the streams model, this model will be discussed shortly compared to the barrier model. As will be clear, the barrier model is more appropriate to uncover underlying characteristics of the creation and implementation of the Wiv 2017, since it focusses on different aspects compared to the Gap Model, the Relative Attention Model and the Streams Model. Before consideration can be made to apply the Barrier Model to the case of the Wiv 2017, these other models need to be addressed.
2.4.1 Gap Model
The Gap Model presents the chance of policy as dependent on the characteristics of the problem (Hoogerwerf & Herweijer, 2008, p. 66). According to Hoogerwerf & Herweijer (2008, pp. 66-67), if there is a relatively small difference (performance gap) between the measure, in the case of the Wiv a modernization of the Wiv, and the perceived situation, the Wiv 2002 being ‘out-dated’, policy is less necessary; possibly one can live with the problem and the investment of solving the problem does not correspond with the gravity of the problem. This model also suggests that the contribution of individuals, groups and organization to agenda-setting is subordinate to the characteristics of the problem (Hoogerwerf & Herwijer, 2008, p. 67). Policy makers react to a problem when it is serious enough and if the problem persists for a long time, one can speak about a structural problem. Policymakers make these problems a priority and they will turn to these problems first (Hoogerwerf & Herweijer, 2008, p. 67).
Hoogerwerf & Herweijer (2008, p. 68) state that whenever the gap is big, policy can still remain absent. This model thus presents a too simple representation of the reality. Furthermore, this model only tells us when problems are considered serious enough to be solved. It does not tell us more about the process of creating policy and it considers the influence of actors almost zero. Since the Wiv 2017 is already into effect, it means that the problem that is solved with the Wiv 2017 was considered serious enough to be solved. Because this thesis
15 was motivated by the allegedly present exceptionalism surrounding intelligence and the tensions of principles, it is not appropriate to apply to the case of the Wiv 2017, since it ignores a lot of factors in creating policy. Furthermore, the contribution of individuals, groups and organizations was not subordinate to the characteristics of the problem; as will be clear, this was not the case.
2.4.2 Relative Attention Model
The next model that will be discussed is the Relative Attention Model, or the Relative Attention Paradigm from Namenwirth (1973, as stated in De Vries, 2010, p. 38). This model suggests that governments devote their attention to certain problems while neglecting others because governments lack the resources to address all problems (De Vries, 2010, pp. 37-38). According to Namenwirth & Weber (1987, in De Vries, 2010, pp. 37-38) governments always address problems in phases, because of scarcity of economic resources. Attention to certain problems can be shifted by devoting more resources to a neglected problem which is surrounded by tensions, in this way the tension will reduce (1973, in Hoogerwerf & Herweijer, 2008, p. 73).
The process of the allocation of resources and attention to problems moves cyclical, it follows a certain ‘wheel of time’ which greatly correlates with the economic situation of a country (Hoogerwerf & Herweijer, 2008, p. 73). In times of economic decline, the government will devote its attention to internal problems, such as economic welfare and efficient governing. After this period, the government will then again address external problems such as norms & values and services in society (Hoogerwerf & Herweijer, 2008, pp. 73-74). Neglecting problems will lead to a more devoted attention to these neglected problems in the next phase.
Actors do not have much influence on these cycles (Hoogerwerf & Herweijer, 2008, p. 75). Furthermore, just as with the Gap Model, it does not tell us something about the process of creating policy and thus it cannot uncover underlying characteristics of the implementation and creation of the Wiv; policy making depends on the spirit of the age and therefore it does not leave room for a lot of debate. Hoogerwerf & Herweijer (2008, p. 75) state that in practice ‘‘consensus will be formed about the policy tackling this problem among elites of different political forces in periods in which a problem gets a lot of attention. It is not consensus about the reason why the policy is needed, but more of a practical agreement that the particular policy is desirable’’. Since there has been a heated debate about the Wiv 2017, this model is not appropriate to apply to the case of the Wiv 2017.
16 2.4.3 Streams Model
The third model that will be discussed is the Streams Model (Bekkers, 2012, p. 142), developed by Kingdon (1984) and inspired by the works of Cohen, March & Olsen (1972). In this model, professional organizations and government bureaucracies are seen as an organized anarchy (Bekkers, 2012, p. 142). It is called the Streams Model because it presents agenda-setting as the result of three separate developments, which flow unregularly as three streams/rivers (Hoogerwerf & Herweijer, 2008, p. 71). This model explains that sometimes unexpected developments can result in different ways of agenda-setting as the aforementioned models present; unexpected events can cause a removal of a problem from the public agenda or can cause extra attention for a particular problem (Hoogerwerf & Herweijer, 2008, p. 71). As such it emphasizes coincidence, and it emphasizes adequate reacting to changing circumstances.
According to Hoogerwerf & Herweijer (2008, p. 71) the Streams Model presents us three different streams: the attention for a problematic situation (problems stream), the political development (political stream) and the development of policy alternatives (policy stream). These three streams can come together whenever there is an open policy window; a certain political event causes a coupling of these three streams (Bekkers, 2012, p. 145). An example of a political event that can cause an opening of the policy window is the fall of the cabinet (Bekkers, 2012, p. 145). Policy entrepreneurs play a significant role in opening these policy windows. These policy entrepreneurs are ‘‘people that are prepared to take risks, for example by investing in certain solutions (…). All in the hope that when the solution catches on, they can share the success’’ (Bekkers, 2012, p. 143). All in all, policy entrepreneurs prepare society for a possible solution.
The notion of a policy window is thus a notion that supposes the chaotic character of agenda-setting (Bekkers, 2012, p. 145). As earlier mentioned, this model emphasizes coincidence, ‘‘which choice is made, and even if a choice is made, depends largely on ‘coincidental’ events, on which policymakers have little influence and on which they can only respond retrospectively’’ (Hoogerwerf & Herweijer, 2008, p. 72). The results of the Commission Dessens formed the starting point of evaluating the Wiv 2002. According to Dielemans (2018, p. 70) the Wiv 2002 ‘‘sufficed in practice, but in the course of time some bottlenecks came to light, especially when it comes to the developments of communication technology’’. As such, the starting point cannot be seen as a ‘coincidental’ event; technological developments are of all times. Furthermore, this model downplays the heated debate surrounding the Wiv 2017. Together this makes the streams model not appropriate to apply to the case of the Wiv 2017.
17 2.4.4 Barrier Model
The Barrier Model is one of the four models that faced the most revisions. According to Van de Graaf & Hoppe (1996, p. 187) the roots of the barrier model lie with the works of Bachrach & Baratz (1970). They presented us a model of the political process in which societal needs and wishes had to overcome four barriers before it could be transformed in deeds by the government (Van de Graaf & Hoppe, 1996, p. 187). Just as Bachrach & Baratz, Van der Eijk & Kok (1975, in Van de Graaf & Hoppe, 1996, p. 197) distinguish four barriers:
- Barrier 1: conversion of wishes into demands;
- Barrier 2: conversion of demands into points of issue; - Barrier 3: decision-making;
- Barrier 4: implementation.
Van der Eijk & Kok (1975, in Van de Graaf & Hoppe, 1996, p. 187) have made a more precise description of the barrier model than the one from Bachrach & Baratz. Bachrach & Baratz (1970, in Van de Graaf & Hoppe, 1996, p. 187) emphasize ‘decisions’. These
non-decisions are non-decisions to – for the time being – do nothing (Hoogerwerf & Herweijer, 2008, p.
68). Originally, this model tries to explain why, despite serious and structural problems, policy does not always come into effect, or only with great delay (Hoogerwerf & Herweijer, 2008, p. 68). As the referendum delayed the implementation of the Wiv 2017, this could possibly shed light on why this was the case and what characteristics of the creation and implementation caused this. This thesis will focus on the barriers of Bachrach & Baratz as this was the first Barrier Model to be developed and it was the foundation of the further development of the Barrier Model.
2.4.4.1 Bachrach & Baratz’ four barriers
According to Bachrach & Baratz (1970, pp. 57) the first barrier is the Barrier I: Community
Values: ‘‘community values, myths, and beliefs that tend to reaffirm existing (…) policy and
therefore stand as a barrier to serious reconsideration of policy’’. The point of issue has to be in line with the norms and values of the community and as such it has got to be a legitimate issue; if not, arguments can be made that the point of issue is not legitimate and it will be used against the actor that brought the issue up (Bachrach & Baratz, 1970, pp. 58-59).
Barrier I is the gate before the Channel of Policy Choices, which ‘‘contains every demand for a policy change that receives public notice and engenders public discussion to the point that the demand becomes an issue that presses for resolution in the decision-making arena’’ (Bachrach & Baratz, 1970, p. 58). Before the demands can become issues leaving the
18 Barrier ‘‘consist[s] of procedures, customs and organizational devices’’ (Bachrach & Baratz, 1970, p. 60). According to Bachrach & Baratz (1970, p. 60), in this phase ‘‘each legislative system has (…) barriers that serve the function of selecting (…) those issues that key-decision-makers are prepared or compelled to consider for decision.’’
When the decision-makers are prepared or compelled to consider the issues for resolution, Barrier II is passed and the issues reach the Decision-Making Arena. As Bachrach & Baratz (1970, p. 60) state: ‘‘issues which survive the ideological and procedural barriers of the political system must be resolved through the process of decision-making’’. Thus, when the issue survived the two aforementioned barriers, it will face the Decision-Making Arena. Four questions are key in this phase (Bachrach & Baratz, 1970, p. 60):
1. ‘‘Who makes the decisions or, more generally, what individuals or groups play a significant role in the process?’’
2. ‘‘What do the decision-makers believe are the relevant factors and conditions that may affect their choice of a course of action?’’
3. ‘‘To what extent where the decision-makers constrained by incomplete or inaccurate information, imperfections in the network of communications linking all those involved, precedents that narrow their range of choice, their own perceptions of the problem in its setting, or the availability of resources to implement the decision?’’
4. ‘‘To what extent was each participant’s choice in the matter dictated by his sphere of competence (formal functions, ranking in the hierarchy, anticipated reactions), by the established rules as to who communicates with whom, by his viewpoint concerning what goals were sought and why, and by his own personality?’’.
However, before the issue can leave the Decision-Making Arena and the policy can be implemented in the Implementation phase, Barrier III: Defeat, Modification needs to be overcome. This Barrier III presents the last possibility to modify or defeat the intended policy change and if the barrier is passed, the policy comes into the Implementation phase (Bachrach & Baratz, 1970, p. 54). In this phase, the bureaucracy plays a great role in formulating policy. The policy can be discretionarily changed by government officials and actors can still exert influence on the policy making process; as such, it can result in defeat or modification of the policy proposal.
When the third barrier is overcome and the policy change is being implemented, the fourth barrier can still grind the policy to a halt. Barrier IV: Administrative interpretation,
Limited or no enforcement finds itself in the realm of the question if the policy results in Effective Policy Change (Bachrach & Baratz, 1970, p. 54). Government officials can interpret
19 the policy differently or can chose not to enforce the policy, e.g. because of communication problems (Bachrach & Baratz, 1970, pp. 61-62). When the policy change survives this last barrier, Effective Policy Change is the case.
Bachrach & Baratz (1970, p. 54) have developed a schematic depiction of their model:
Figure 1: simplified Barrier Model of Bachrach & Baratz (1970, p. 54) 2.4.4.2 Reallocation of values or existing values?
Bachrach & Baratz (1970, pp. 53-58) distinguish two groups that have a role in the policy making process: the persons and groups seeking reallocation of values and the persons and
groups committed to existing values. These two groups possess Sources of Power which are
outlined in Figure 2. These sources of power are important in understanding which side will win in the policy making process and if all barriers will be overcome, the side that possesses - and is willing to – use more resources will often win this battle (Bachrach & Baratz, 1970, pp. 55-56). However, the group that is committed to existing values has a slight advantage since it only has to defend the status quo and the group that is seeking reallocation of values has to overcome all four barriers (Bachrach & Baratz, 1970, p. 58).
Sources of Power
Resources Priority Strategy Interaction
Status Time preference Decision Alliance
Assets Costs Nondecision Co-operation
Members Conflict
Organization Ideology Interest
20 2.5 Selection of theory
According to Hoogerwerf & Herweijer, 2008, p. 66) the presented agenda-setting models differ in the way they present the roles of citizens, interest groups, organizations and media. As I mentioned earlier, all four models presented in this theoretical framework were faced with critiques. The Gap Model presents a too simple representation of reality. Furthermore, the Gap Model and the Relative Attention Model assume that the power of actors is almost zero: the former states that problems will only be solved when the problem is big enough and the latter presents the policy-making process as cyclical in which the actors do not have a big influence. Moreover, the Streams Model presents the agenda-setting process as something wherein the three streams come together at random, by coincidental events on which actors do not have a lot of influence as well (Hoogerwerf & Herweijer, 2008, p. 72).
The presented models also differ in the way they emphasize the different characteristics of the problems (Hoogerwerf & Herweijer, 2008, p. 66). The Barrier Model, like any other model, possesses explaining power to uncover these characteristics, and as argued, the Barrier Model is the most appropriate model to uncover underlying characteristics of the creation and implementation of the Wiv 2017. The case of the Wiv 2017 is an example in which two competing sides fought for their cause, as will be clear during the analysis: the side that wanted the Wiv 2017 and the side that wanted (aspects of) the status-quo to remain. The question however remains if actors had a significant influence on the policy making process of the Wiv 2017, but it will be clear that several actors were visible during the creation and implementation of the Wiv 2017. Moreover, the four barriers Bachrach & Baratz present are practical to operationalize in order to analyse the Wiv 2017. This will become clear in the next chapter.
However, the most given critique on the barrier model is that it presents the policy making process as a linear development which is not always the case (Bekkers, 2012, p. 139). The policy making process does not always follow a structured or linear way. Furthermore, this model focusses on one topic that finds its way through the presented barriers, but several topics fight for attention; topics compete for attention while on the other hand the cognitive restraints of policymakers and politicians result in distribution of attention (Bekkers, 2012, p. 141). One thus has to take into account the shortcomings of the Barrier Model when reading this thesis.
Although there have been critiques on the Barrier Model, I expect the model will give insight in the policy making process and the underlying characteristics of the creation and implementation of the Wiv 2017 and possibly the creation and implementation of the Wiv could be in line with the assumptions of the Barrier Model. Furthermore, the application could contribute to the mentioned academic- and societal relevance.
21
3. Methodology
3.1 Introduction
In this chapter the justification for the chosen research design and methodology will be explained. Furthermore, the the barrier model will be operationalized so it can be practically used. Lastly, the reliability and validity of this thesis will be discussed.
3.2 Research design & Methodology
The question How can the creation and implementation of the Wiv 2017 be characterized by
means of applying the Barrier Model to the creation and implementation of the Wiv 2017? will
be answered in the form of a case study and will be qualitative in nature. According to Stake (1995, in Bryman, 2012, p. 66) a case study is ‘‘concerned with the complexity and particular nature of the case in question’’. The reason for choosing a case study design is because the case study design often serves as an opportunity to study a single case extensively and qualitative methods ‘‘are viewed as particularly helpful in the generation of an intensive, detailed examination of a case’’ (Bryman, 2012, p. 68). The underlying characteristics of the implementation and creation of the Wiv 2017 could be uncovered by an extensive analysis of the particular case. Considering that the research question inherently corresponds to the Wiv 2017, this research will focus on this case.
Since this thesis wants to provide an extensive analysis of one case in a qualitative way, the quantifiable Sources of Power illustrated in Figure 2 will not be analysed, but government reports, political debates, reports of interest groups, news articles, and television- and radio broadcast will be examined to reconstruct the creation and implementation of the Wiv 2017 and to uncover the underlying characteristics of this by means of applying the Barrier Model to this process. Since the goal of this research is to uncover underlying characteristics of the Wiv 2017 and the Wiv 2017 is already into effect, the Sources of Power (resources) are not relevant for uncovering the underlying characteristics of the creation and implementation of the Wiv, since this merely shows us why which side won in the policy making process and that is not the goal of this research.
3.3 Operationalization
The time period of the analysis is set in the period from the creation of Commission Dessens until the reports evaluating the application of the Wiv 2017. Exactly speaking, the period is thus from the 1st of February 2012 until the end of 2018 (Dessens et al., 2013, p. 13). Actors which played a role in the creation and implementation of the Wiv 2017 will be discussed as well. However, for feasibility and practical reasons it is not possible to discuss every actor and their
22 role in this process. In Figure 4, on the next page, the barriers which correspond with the events are outlined. This thesis will analyse the roles actors played, the positions they took in the debate and when and how this came to expression. Furthermore, the law making process of the Netherlands follows a certain general trajectory which vaguely corresponds with the Barrier Model (Rijksoverheid, 2018; House of Representatives, n.d.):
23 Figure 4: Barriers, explanation and timeline
Barrier Explanation Year Events
Barrier I:
Community Values
‘‘values, beliefs, and myths that the dominant portion of the community embraces’’
2012 • Debate about Motion Elissen.
Channel of Policy Choices
‘‘demand for a policy change that receives public notice and engenders public discussion’’ 2012 2013
• Elections, debates and public appearance(s) of MP’s;
• External events influencing the public. Barrier II: Procedures, Institutions ‘‘procedures, customs and organizational devices’’
2013 • Arrival of the report of
Commission Dessens. Decision-Making Arena ‘‘issues which survive the ideological and procedural barriers of the political system must be resolved through the process of decision-making’’
2014 2015 2016
• Decisions about what to adopt from the report of Commission Dessens; • First concept bill;
• External actors influencing the decision-making process (e.g. internet consultation);
• Second concept bill;
• Submission to the House of Representatives.
Barrier III:
Defeat, Modification
changing the policy, defeat or
modification of the policy proposal
2017 2018
• Voting in House of Representatives and the Senate and modifications to the act;
• Elections; • Referendum;
• Further modifications to the act. Implementation ‘‘the bureaucrat (…)
exercis[ing] power, authority, and influence – and, in extreme cases, force – to achieve policy preferences.’’
2018 2019(?)
• Act goes into force; • First reports about the
implementation;
• Additional reports about the implementation. Barrier IV: Administrative interpretation, Limited or no enforcement interpreting the policy differently or choosing not to enforce the policy
24 3.4 Reliability
Reliability is concerned with answering ‘‘the question of whether the results of a of a study are repeatable’’ (Bryman, 2012, p. 46). As earlier mentioned, government reports, political debates, reports of interest groups and news articles will be examined to uncover the underlying characteristics of the creation and implementation of the Wiv by means of applying the Barrier Model to the case of the Wiv 2017. The findings coming from these documents will be compared with the other documents, and as such these will be triangulated, that is ‘‘the use of more than one method or source of data in the study of a social phenomenon so that findings may be cross-checked’’. It can thus result in greater confidence in findings.
3.5 Internal validity
Internal validity is the ‘‘concern with the question of whether a finding that incorporates a causal relationship between two or more variables is sound’’ (Bryman, 2012, p. 712). Every model is ‘‘an abstraction from reality, a schematic depiction of the real world’’ (Bachrach & Baratz, 1970, p. 52). The validity of a model is not about mirroring a political system of a community, but about possessing enough frame of reference to explain the policy changes that are being made (Bachrach & Baratz, 1970, p. 52). However, there are multiple other models, such as the Gap Model (Hoogerwerf & Herweijer, 2014, p. 52) that have their own explaining powers. When one looks at the literature on policy making, one comes to the conclusion that the Barrier Model is one of the dominant models for explaining the policy making process.
3.6 External validity
External validity is the ‘‘concern with the question of whether the results of a study can be generalized beyond the specific research context in which it was conducted’’ (Bryman, 2012, p. 711).When it comes to generalizability, it is not possible to generalize the findings of this research to the full ‘population’, as one of the goals of this thesis is to see whether the creation of the Dutch intelligence act is according to the assumptions of the Barrier Model, the applicability of the Barrier Model does not deliver a full answer to whether all creations and implementations of intelligence acts act according to the principles of this model. Since it is not possible to say with a 100% certainty that – in the instance that the Barrier Model is (or is not) applicable to the case of the Wiv 2017 – the policy making process of intelligence legislation is different from other policy making processes of legislation. However, this research delivers a start to explaining whether the policy making process of intelligence legislation in general
25 can be regarded ‘normal’ and according to the Barrier Model or not, but more research needs to be done to come to more satisfying conclusions.
Furthermore, since this research only looks at the case of the new Dutch intelligence act, no conclusions can be made about the policy making processes of intelligence acts in other countries and potential abnormalities surrounding these processes. It could be that the policy making processes in other countries are different, for example because of other customs or a different political- or intelligence culture. To make conclusions about the differences between the agenda-setting processes of intelligence legislation between countries, a comparative research design would be appropriate. As Bryman (2012, p. 71) states, ‘‘one of the standard criticisms of the case study is that findings deriving from it cannot be generalized.’’ However, since there is such a small amount of literature surrounding intelligence legislature, this case study will deliver an extensive analysis on one unique and exceptional case.
26
4. Analysis: Barriers
This chapter contains the analysis of the Barrier Model, from Barrier I to the question whether there was actual Effective Policy Change. Following the timeline outlined in the operationalization, this chapter will be divided into sub-paragraphs containing the events corresponding to the Barrier or phase in which the events take place. Before every Barrier and phase, a short recap of theory will be presented so that the following analysis can be put into the context of this theory. After the analysis, conclusions will be made in Chapter 5.
4.1 Barrier 1
As the concerned actors are identified in the glossary and will be during the analysis,
‘‘the analyst should [now] concern himself with the degree to which the persons and groups, separately or in various combinations, attempt to reinforce prevailing community values, myths, and beliefs that tend to reaffirm existing (…) policy and therefore stand as a barrier to serious reconsideration of policy.’’ (Bachrach & Baratz, 1970, p. 57)
This is Barrier 1: Community Values: ‘‘values, beliefs, and myths that the dominant portion of the community embraces’’ (Bachrach & Baratz, 1970, pp. 58-59). It contains the debate concerning the motion Elissen, the reason for the creation of Commission Dessens.
4.1.1 Barrier 1: motion Elissen
The first parliamentary debate in the Chamber Committee of the Interior concerning the Wiv was held on the 1st of February 2012 (Elissen et al., 2012). This was the first time reallocation of values was proposed and as such the start of the policy making process. Some interesting remarks were made during the debate albeit that only one speaker for the PVV, Elissen, signed up.
Elissen started with arguing that the system of control over the intelligence- and security services is a difficult subject, making it important that one should stay aware that it still works well (Elissen et al., 2012, p. 3). In light of this, Elissen (in Elissen et al., 2012, p. 3) filed a motion ‘‘requesting the government to conduct an evaluation on the Act on the Intelligence- and Security Services 2002 (Wiv 2002) and pay particular attention to the oversight on the intelligence- and security services’’ (Elissen, in Elissen et al., 2012, p. 3, see Appendix A). The MP for the SP, Van Raak, found this a ‘very good’ proposal, but presented some additional suggestions, concerned with the possibilities of the CTIVD, the efficiency of the intelligence- and security services and the control of the House of Representatives over the services, which could be added to the evaluation. Elissen reacted positively and was happy to take over the
27 suggestions of Van Raak, finding an ally also seeking reallocation of values. Minister Spies on the other hand took a sceptical stance, but in principle had a positive view: ‘‘Who could be against it?’’ (Spies, in Elissen et al., 2012, p.4). Conditionally, she was also seeking reallocation of values: the Minister promised to give a written response after elaboration with the three other responsible ministers, but did not want to walk ahead of things by promising an evaluation commission.
The other present MP for the VVD, Hennis-Plasschaert, was against the proposal in its completeness. She found the motion unnecessary and superfluous, it could lead to unnecessary extra work. At this moment, the VVD was against the motion and committed to existing values. Elissen sustained the motion to submit it to the full House of Representatives and on the 19th of March 2012, the Minister sent her written response to the Speaker of the House of Representatives in which she stated that after deliberation in the Council for the Intelligence- and Security Services (RIV) the involved ministers are supportive of an evaluation of the Wiv 2002 after the planned changes of the Wiv 2002 (Spies, 2012, p. 1). This law amendment is planned to be presented to the House in 2013, so that the evaluation can be started after that; before the summer a proposal for the way in which the evaluation will be shaped will be presented (Spies, 2012, pp. 2-3). This written response made the government supportive of the proposal of Elissen; the next actor seeking reallocation of values. A month later, on the 17th of April 2012, the now changed1 Motion Elissen/Çörüz, was accepted by almost the entirety of the House except for the VVD and Brinkman making Barrier 1 relatively easy to pass with only the largest party (see Appendix B), the VVD, committed to existing values. As such, this was the only party that wanted the status-quo to remain.
4.2 Channel of Policy Choices
As Barrier 1 was passed, the demand for reallocation of values reached the Channel of Policy
Choices, containing ‘‘every demand for a policy change that receives public notice and
engenders public discussion’’ (Bachrach & Baratz, 1970, p. 58). The actors will now try to create public notice and engender public discussion. And so they did.
4.2.1 Channel of Policy Choices: trying to generate public notice
In an Order of Business two days later from the adoption of the motion, Elissen (in Arib et al., 2012, p.8), also at the request of Van Raak, requested a General Debate about three topics: the
28 statement made by the chairman of the CTIVD in the television programme EenVandaag2 a
day earlier, the report of professor Fijnaut3 about the control and oversight on intelligence- and security services presented a day earlier and the adopted motion Elissen/Çörüz. During this procedure, Hennis-Plasschaert (in Arib et al., 2012, p.8) made it sound as Elissen also requested a written response from the cabinet, which was not the case. Hennis-Plasschaert continued to say that she supported a written response, but not a General Debate. Çörüz (in Arib et al., 2012, p.8) agreed with Hennis-Plasschaert, but was willing to support a General Debate if the written response was not satisfactory. The General Debate got rejected and the attempt to generate public notice failed.
The move by Hennis-Plasschaert, part of the VVD that rejected the motion Elissen/Çörüz and thus committed to established values, was a move that is described by Bachrach & Baratz (1970, p. 59): ‘‘persons and groups seeking to maintain established values can ignore the challenge to their position and concentrate on attempting, by resort to power or force, to silence the issue-initiator’’. By rejecting the General Debate, Hennis-Plasschaert silenced the issue-initiator Elissen and prevented the issue to receive public notice.
In an attempt to uphold the debate about the evaluation of the Wiv, Elissen (Van Zonneveld, 2012) requested the Committee of the Interior on the 19th of April for a closed hearing, which took place on the 24th of May 20124 (Van der Leeden, 2012, p.6). During this closed hearing, the committee decided to ask the Minister of the Interior and Kingdom Relations for permission to invite department officials for a public roundtable discussion. This roundtable discussion, which was not public after all, took place on the 20th of June 2012. Among others, the Chairman of the CTIVD Van Delden and the Head of the AIVD Bertholee were invited
2 The Chairman of the CTIVD, Bert van Delden (in EenVandaag, 2012), mentioned that he would want an extra
force to watch him (the CTIVD), because that aspect is too little represented. Furthermore, he pointed towards the danger that the AIVD will act independently, but the control should be firmly in the hands of the Minister. The focus in the Ministry of Interior and Kingdom Relations is lacking, because the Minister has too many responsibilities, resulting in the fact that the Chairman thinks that the Minister will find it difficult to oversee all things related to the difficult subject of the AIVD. The Chairman advocates a special advisor to the Minister, specialized in the matter of the intelligence- and security services. This special advisor could have prevented abuse of powers by the AIVD. He based his statements on the findings of Prof. Fijnaut.
3 Professor Fijnaut was asked to investigate the ten year anniversary of the oversight regime and what the oversight
regime of the CTIVD has brought forward (Fijnaut, 2012). Fijnaut (2012, p. 101) recommended in general terms a more powerful interplay between the different actors involved in oversight, seeing it as too much fragmented.
4In the open accessible documents of the House of Representatives Van Zonneveld (2012) requested, on behalf of
Elissen, a closed hearing on the 19th of April 2012. In a list of decisions (in Dutch: besluitenlijst) of the 7th of June
2012 a closed hearing is mentioned in which the committee decided to request the Minister of the Interior and Kingdom Relations for permission for a public roundtable discussion. On the 14th of June 2012 an invitation is
send to invitees for a roundtable discussion held on the 20th of June 2012. The timeline is discretionarily put
29 (Van der Leeden, 2012, p. 1). Again, the attempt to generate public notice and engender public discussion, failed.
4.2.2 Channel of Policy Choices: moderate public notice
In the meantime, on the 21st of April 2012, the cabinet fell and the Prime Minister resigned because of a conflict between the VVD, CDA and the supporting partner PVV about economic measures (Parlement.com, n.d.), changing the relations in the House of Representatives. New elections were planned for the 12th of September. Nevertheless, this had little effect on the current affairs surrounding the planned evaluation of the Wiv, as this was at this moment never a topic receiving attention during campaigns and during television debates5. This resulted in little public notice and little public discussion.
However, in a radio programme Argos, a programme of NPO Radio 1 and broadcasted on the 5th of May 2012, Van Raak (SP) & Berndsen (D66) participated in a debate concerning the control and oversight of the AIVD and the cooperation of the AIVD with foreign intelligence services with regard to the reports from Fijnaut and the CTIVD (Argos, 2012). As Van Raak earlier did in a similar fashion, he plead for monitoring the effectiveness of the intelligence- and security services by the CTIVD, and not only the legality (Van Raak, in Argos, 2012). Berndsen did not agree and said that this practice would pose a risk since it would disclose operational information. Furthermore, she pointed to ministerial responsibility: ‘‘you should be able to address the minister for mistakes made by the service, not the commission overseeing the AIVD’’ (Berndsen, in Argos, 2012). However, a sporadic consultation of the CTIVD to investigate the effectiveness and efficiency of the AIVD was acceptable for Berndsen.
Furthermore, Van Raak (in Argos, 2012) addressed the matter of the notification obligation (in Dutch: notificatieplicht), saying that this should improve as well. Also, the matter of cooperation between the AIVD and its foreign counterparts was addressed, raising several concerns from both of the members of parliament. Berndsen (in Argos, 2012) proposed an European solution to address this concern. Van Raak (in Argos, 2012) was no proponent of this, but wanted more transparency from the minister so that possible future problems could be addressed in openness.
In contrast to Elissen’s attempt to create public notice, two other members of parliament, Berndsen and Van Raak succeeded to create a certain amount of public notice. Albeit that in this phase of the creation and implementation of the Wiv there is still no large scale public
30 notice: the debate is still mainly taking place in the House of Representatives and between MP’s, the fall of the cabinet did not change this.
4.2.3 Channel of Policy Choices: commission Dessens takes shape
The Minister of Defence and the Minister of the Interior and Kingdom Relations kept their promises made and presented their written responses. The promised written response about the evaluation of the Wiv, the report of prof. Fijnaut and the statement made by the chairman of the CTIVD, were interesting: it referred to the next written response for details about the evaluation of the Wiv and it stated that in the Netherlands there is a ‘‘solid system of oversight on the intelligence- and security services, wherein the different roles and responsibilities of the various parties are well substantiated and complementary to each other’’ (Hillen & Spies, 2012, p. 2). Furthermore, the written response stated that the management of the Ministry of the Interior and Kingdom Relations is sufficiently equipped to control the AIVD (Hillen & Spies, 2012, p. 3). By this written response, the ministers ran ahead of things, since the evaluation was not even started: it became apparent after the evaluation that the conclusions of the ministers were not completely true.
The written response about the details of the evaluation of the Wiv 2002 sketched the procedure in which the Wiv would be evaluated: the evaluation will take place after a planned change of the Wiv, already in an advanced stage and planned for the beginning of 2013, concerned with Signals Intelligence (SIGINT). Furthermore, the evaluation will be essentially about two questions: 1) did the Wiv bear what the legislator intended (realisation of goals of the act) and 2) which bottlenecks and points of interest does the practical application produce (Spies, 2012, pp. 1-2). The Motion Elissen/Çörüz will be honoured as well, but in consultation with the House additional parts of the evaluation can be accentuated. The evaluation can also produce recommendations for law amendments, but the legislator decides which of these will be adopted. Moreover, the evaluation will be executed by an external party and the duration of the evaluation will be nine months maximum (Spies, 2012, p.3).
4.2.4 Channel of Policy Choices: applying the finishing touches
In a debate held on the 4th of July 2012, members of parliament uttered their demands for policy change. The first speaker during this debate Van Raak (SP) (in Berndsen et al., 2012, p. 4) posed two suggestions for topics that could also be addressed in the evaluation: 1) what a ‘state secret’ is and 2) the duration of investigations carried out by the intelligence- and security services. The next speaker posing suggestions, Elissen (PVV) (in Berndsen et al., 2012, p. 7), wanted to incorporate 1) the possibility to strengthen the position of the coordinator of the
