“Share without Care – Problematic intelligence sharing arrangements”
Written by Group 1 (s2433494, s1543091, s1696939, s2351048, s2401541) for the Faculty of Governance and Global Affairs (FGGA) at the University of Leiden. Wordcount: 1782.
Since the attack on the World Trade Center in the United States (US) on September 11th 2001, intelligence sharing arrangements have proliferated among nations and organisations that consider themselves allied in the fight against terror (Manjikian, 2015). Such arrangements are often informal, created on an as-needed basis and generally not subject to guidelines or common codes of conduct (Manjikian, 2015). It is therefore hardly surprising that sometimes the intelligence obtained through such channels is used for activities that are considered problematic by the sourcing party.
This also affects the Netherlands, which is closely allied with other countries through a variety of memberships and alliances, such as the European Union, NATO and the United Nations. In 2014, following the leaks of classified documents by Edward Snowden, Dutch newspaper NRC Handelsblad published an article detailing how metadata, collected by Dutch intelligence services, and shared with their American counterparts, was used to facilitate American drone strikes in the Horn of Africa. This was controversial, to say the least, as the Netherlands had declared itself unwilling to participate in such activities.
In October 2019 the Dutch Intelligence Oversight Committee (CTIVD) published a report detailing multiple serious issues of a similar nature, in some cases in direct violation of Dutch law. We will dive deeper into the issues surrounding intelligence sharing, and why the Netherlands may find it problematic to stem the flow of information to allies.
Intelligence cooperation between the Netherlands and US
International intelligence cooperation and intelligence information sharing contributes to combat terror and common enemies (Manjikian, 2015). As Lefebvre (2003) says: “no one agency can do and know everything’’. In our current society, the sharing of information has become a common practice in our daily lives. This means that within the field of security, constant monitoring of threats has become the norm (Lefebvre, 2003). Such transnational intelligence cooperation requires legal adaptation. The sharing of intelligence information between countries is essential in effectively combating security challenges. Furthermore, as different services have different specialisations, costs and intelligence techniques can be shared (Lefebvre, 2003). In other words, intelligence cooperation can provide national security services with a more complete view of threats by sharing information and knowledge between them. While highlighting the positive parts, it is important to realise that intelligence cooperation can have negative consequences as well. Challenges to intelligence cooperation include having differing threat perceptions, various legal issues or assets being compromised (Lefebvre, 2003). Other challenges include issues with power distribution between partners, as well as poor human rights records of a liaison partner which calls for a good balance between protection of own citizens and combating common threats. Furthermore, sharing intelligence can have unintended consequences, which will be discussed later.
Drone attacks and ethical implications
The documents leaked by Edward Snowden show how intelligence cooperation and intelligence sharing takes place between the Netherlands and the US. These documents have shown that the Dutch intelligence services provided the National Security Agency (NSA) with meta-data containing telecommunications of Somalian citizens. Since 2011 US drone strikes have taken place in Somalia as part of their ‘War on Terror’ paradigm, while also making use of Dutch intelligence information to do this. This news led to commotion in the Netherlands regarding the specific role of the Dutch intelligence agencies and the knowledge of how this information is used. This was partly evoked because the Dutch government publicly opposes such strategies in their foreign policy outlines (Manjikian, 2015). This case shows the practical use of shared intelligence and its consequences. Questions arise on the level of (shared) responsibility as well as ethical considerations within intelligence cooperation practices. Thus, it is vital to consider the degree of complicity in security actions executed using shared intelligence.
Manjikian (2015) distinguishes three separate types of complicity. These can be distinguished into situations where:
- Party A induces or causes someone else to commit an offense;
- Party A helps the other person to commit the offense; and
- Party A fails to prevent another party from committing an offense when legally required to do so.
To reach any conclusion as to the level of complicity that applies, the following four factors: the problem of intent, the problem of power, the problem of choice, and the problem of identity should be considered.
Analysing Dutch complicity factors in the US drone strikes
Complicity can be weighed by considering to what degree (if any) the intelligence sharing relationship is burdened by the aforementioned four factors (Manjikian, 2015). The reports by Amnesty and CTIVD identify several issues in the US-Dutch intelligence cooperation when viewed from the Dutch perspective.
Problem of intent
When intelligence information is shared with another party (intelligence service agency) it is impossible to predict how that information will be used. This can lead to the “misuse of intelligence” (Manjikian, 2015). A related concern is the different approaches used by intelligence services during wartime and peacetime. Depending on the situation, certain actions will be justified differently. The missing aspect of legal guidance has implications for shared norms and values on how to use collected information.
Application to the case raises questions on the role of the Netherlands in the enablement of drone strikes and how this role was manifested. Data was shared without a legal basis, nor is it clear whether the drone attacks themselves were carried out legally. With this in mind, one could question the moral imperative of the Netherlands regarding past actions by the US and their existing conflicts. Taking into account existing knowledge, the Netherlands could have decided not to provide intelligence in this case.
Problem of power
On a global scale, the position of one national intelligence agency can influence the amount of power it has in relation to other nations’ intelligence agencies. There may be an unequal power relationship which may lead to coercive interaction. This creates a “relationship of exploitation rather than reciprocity” (Manjikian, 2015).
Looking at this case, it shows that the US has more control and power than the Netherlands. The US could carry out drone attacks at its discretion using Dutch information without the Netherlands knowing about it. In fact, the US knew that the Netherlands does not support such activities (Manjikian, 2015). From the Dutch perspective, it illustrates the problem of intent and the problem of choice. Based on the articles, the Netherlands was not aware of how Dutch information was used for certain security activities performed by another party; in this case, the US. Not being aware of this fact also has implications for having the choice to participate in these particular activities. The unequal power relationship between the Netherlands and the US can be seen, for example, in the intelligence budget that each country has available. The total US intelligence budget for 2014 was $67.9 billion, which roughly equates to €56.3 billion. In comparison, the Dutch intelligence budget, of 2014, consisted of €189 million for the AIVD, and an estimated €85 million for its military counterpart, the MIVD, making it a total of €274 million. This is not even 0.5% of the total US intelligence budget. In other words, while the Netherlands spent €16, the US spent €177 per citizen on intelligence, which is eleven times as much. This difference in spending has the possibility of creating an unequal relationship, as mentioned earlier by Manjikian (2015) and Lefebvre (2003).
Problem of choice and Problem of identity
A distinction is made between intentional wrongdoing and benefiting from collective wrongdoing (Manjikian, 2015). When looking at what choice the Netherlands has in sharing intelligence with partners, it is important to consider the aspect of moral imperative that one has. Certainly, the Netherlands could have been very cautious and proactively opt not to share any intelligence with the US at all. But an intelligence sharing agreement is usually reciprocal and it is unlikely one could easily replace a partner like the US. This begs the question: How far is one willing to go for one’s moral and ethical comfort?
Furthermore, the problem of identity stresses the impact on the image of a nation state considering intelligence actions. As Manjikian (2015) argues, who you associate with is a reflection on one’s identity. But is the US so incompatible with the Dutch sense of identity? Can the Netherlands afford to hold off relations based on high-minded ideals?
The unforeseen use of Dutch intelligence in US drone strikes not only caused political inquiries, it could also negatively affect the image of the Dutch state and trigger a reexamination of these questions. At the very least, this case shows a lack of attention to what information is shared and for what purpose.
Arguments can be made for both the second and third type of complicity. By providing intelligence information to the US, one could argue that the Netherlands played a part in the drone strikes executed by the US, which is consistent with type two. However, as it is unknown to what extent the Netherlands was aware of the executed strikes, their role in preventing these cannot be evaluated. Accordingly, the applicability of type three remains unclear. Furthermore, the Dutch services maintained their nescience stance on how the shared intelligence was used by the US.
To conclude, a few matters have to be emphasised. Because of the secretive nature of the subject, some matters remain speculative to a certain extent. Think of, for example, the actual knowledge the Dutch services had about what would happen with their intelligence on the citizens of Somalia. However, based on the facts that were found in both reports by Amnesty International and the CTIVD, and the articles by Manjikian (2015) and Lefebvre (2003), some substantial conclusions can be drawn. First of all, the Netherlands is complicit to the drone strike attacks on Somalian citizens in one way or another. The Netherlands either failed to prevent the US from executing the drone strikes, which makes them complicit at least to a minor extent. If the Netherlands did know what would happen when their intelligence would be shared with the US, they knowingly helped facilitate the drone strikes, making them complicit to a large extent. Nevertheless, the case remains difficult, as it is hard to define legal boundaries on what is ethically acceptable or not. In this sense, unethical actions can still be justified because there is no legal precedent. This case shows that there is still a lot of room for improvement, and a need for a critical public debate about the ethical and legal boundaries of security alliances and intelligence sharing. A debate in which share without care is turned into share with care.
Amnesty International. (2018). DEADLY ASSISTANCE: THE ROLE OF EUROPEAN STATES IN US DRONE STRIKES. https://www.amnesty.org.uk/files/2018-04/Deadly%20Assistance%20Report%20WEB.pdf?nnxzvq2lenq0LiFu64kg6UtyT2I8Zs3B
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