Operational effectiveness of the AIVD and MIVD under pressure
Little thought for implementation during preparation of the Intelligence and Security Services Act 2017
Preparation and introduction of the Intelligence and Security Services Act paid too little attention to how the General Intelligence and Security Service (AIVD) and the Netherlands Defence Intelligence and Security Service (MIVD) would implement the act. The two services need additional capacity to put new safeguards in place to protect public privacy. They accordingly have less time for their core task of carrying out investigations in the interests of national security. An audit by the Netherlands Court of Audit has found that the operational effectiveness and future resilience of the AIVD and MIVD are coming under pressure.
An important aspect of the new Intelligence and Security Services Act (WIV 2017) is the introduction of cable interception. The interception of communications on internet cables can potentially produce a wealth of information and increase the services’ effectiveness. Since the new act came into force, however, technical and legal complications have prevented the use of cable interceptions. The increased effectiveness expected of this new form of intelligence gathering has not yet been realised.
The WIV 2017 introduced both cable interception and additional safeguards on the regularity of intelligence gathering. For example, the AIVD and the MIVD must have specific reasons to use their special powers. The Investigatory Powers Commission (TIB) assesses in advance whether the use of certain powers authorised by the minister would unnecessarily intrude into the personal lives of citizens. If the TIB decides it would, the services may not use those powers. Another new safeguard is that information gathered through the new powers must be assessed as to its relevance. The requirements on international cooperation have also been tightened up. The ministers and parliament underestimated the practical consequences of the WIV 2017 for the services’ operations.
Less time for investigation
The additional safeguards have made application procedures more complex. More time is needed for the regularity assessment or approval by the services’ own directors, for consultation with the TIB on certain applications and for the internal approval line ahead of the TIB’s assessment. The assessment and possible destruction of the data collected also require capacity. Owing to the increased administrative burden, less time is available to carry out investigations, particularly by operational teams that wish to use telephone taps or hacking powers to counter new or covert threats. This weakens the AIVD and MIVD’s intelligence position.
The Court of Audit found that speed had come before substance during the preparation of the act. The ministries concerned (Interior and Kingdom Relations, and Defence) did not carry out a feasibility test. As a result, the preparation and debate of the new act paid insufficient attention to the financial consequences, the regulatory burden and the operational consequences for the AIVD and MIVD. The two services also did not have an appropriate budget to implement the WIV 2017. The additional funds the two services were awarded were received too late in the year and were therefore used for other purposes.
The law forces, time presses, practice compels
Implementation of the WIV 2017 has not yet been completed and still requires incidental and structural capacity, also from support departments including Legal Affairs and IT. The Court notes that the problems implementing the WIV 2017 are due to the imbalance between political and other ambitions on one hand and the available time and human and financial resources on the other. Unfortunately such imbalances are not uncommon in the performance of public tasks. The intelligence and security services are no different in this respect from other implementing organisations. The Court recommends that the Minister of the Interior and Kingdom Relations and the Minister of Defence carry out a feasibility or comparable test in good time when amending the law. This would provide the ministers concerned and parliament with assurances that the quality of operations would not be adversely affected when tasks were added or implemented differently. The Court finds it positive that a feasibility test was carried out following the Jones-Bos committee’s evaluation of the WIV 2017.