An Amsterdam court has ruled that the Dutch secret service (AIVD) illegally tapped the telephone of journalist Jolande van der Graaf, while investigating a departmental leak. The AIVD will appeal the decision, leaving open the question of whether the agency crossed the line.

On March 28th, Dutch newspaper De Telegraaf published a story claiming that, in the run-up to the Dutch government’s decision to support the 2003 American-led invasion of Iraq, the AIVD passed on misleading information to the Dutch cabinet.

The article contained information from classified AIVD documents that Ms van der Graaf had apparently received from an informant within the secret service. When the article was published, the AIVD began an investigation into the leak, including surveillance of Ms van der Graaf and a tap on her telephone, as well those of De Telegraaf’s editor-in-chief, Sjuul Paradijs, and his deputy, Joost de Haas.

Illegal surveillance
De Telegraaf filed a complaint against the AIVD for illegal surveillance, arguing that such measures should be undertaken only when there is an imminent threat to national security. As the documents pertained to events that took place many years previously, lawyers for De Telegraaf assert that no such immediate threat to the Dutch state exists. On Thursday, an Amsterdam court ruled in favor of Ms van der Graaf and De Telegraaf. 

Most severe means
The complaint against the AIVD was supported by the Dutch Editors’ Society. Arendo Joustra is a member of the group and he says the secret service clearly abused its authority:

“They used the most severe means to spy on her. Means which are usually only reserved for terrorists or attacks on the state. But this is really not the case right now…”

The AIVD supports its decision to tap Ms van der Graaf’s phone and spy on the two editors, by citing the classified status of the documents in question. They argue that Ms van der Graaf was disseminating state secrets. The Amsterdam court disagreed, ruling that the AIVD may not make use of the information from the telephone taps and that the AIVD Supervisory Committee should investigate the matter.

The court found the surveillance of Mr Paradijs and Mr de Haas even more dubious, as the two are only tangentially linked to the leaked documents. Mr Joustra says this case should warn Dutch journalists to better safeguard their confidential sources.

Chilling effect
The AIVD asked Ms van der Graaf to return any secret document she possesses. When she refused to do so, the secret service raided her home and seized a number of items. Mr Joustra says such actions can have a chilling effect:

“This is the danger we are talking about: that people who give information to journalists might be more careful if they expect that the secret service is listening in to conversations.”

Listen to the Newsline interview with Arendo Joustra in full:

Minister
It’s unlikely that the controversy surrounding the AIVD investigation into De Telegraaf will die down soon.  Not just because the secret service intends to appeal the ruling, but because the AIVD is a division of the Interior Ministry and any wiretapping must be approved by Interior Minister Guusje ter Horst – and it’s almost certain Ms ter Horst will be called on to explain the case in parliament when it returns from recess in September.  

In another case concerning the same issue, a judge in Haarlem decided that the AIVD was right to search the house of journalist van der Graaf. According to him, a journalist should not be in possession of classified material. When she refused to return the material, a house search was lawful.