Journalists as Agents

In a letter recently addressed to the Speaker of the Lower House of the Dutch parliament, and put online by FVD MP Pepijn van Houwelingen, the outgoing ministers of the Interior and Defence explain and defend the recruitment of journalists by the Dutch secret services as “agents”.

This naturally gives rise to the suspicion that the intelligence services recruit journalists not only to gather information but also to influence opinion.  Ever since the publication of Udo Ulfkotte’s Gekaufte Journalisten: wie Politiker, Geheimdienste und Hochfinanz Deutschlands Medien lenken in 2014, and the revelations contained in the Twitter Files released in 2022, the issue of secret service penetration of the media has been a matter of great concern.

Little or none of that concern is expressed in the letter, in which the two ministers discuss the recruitment of journalists as secret agents uncritically.  They refer to a report “covering operations in which the services used journalists deployed as agents in the period from 1 January 2019 to 1 January 2023” but express no concern about the possible implications for the independence of these journalists, even though they refer to them as “a pillar of democracy”. 

The letter does not specify whether these journalists recruited as agents work in the Netherlands or abroad, although there is one reference to “high risk countries”.  One might understand the recruitment of journalists as foreign spies (although the public admission of this is presumably highly damaging to the reputation and work of all Dutch foreign correspondents now) but the dangers of journalists spying on their own people, not to mention conducting the sort of psychological and propaganda operations which the CIA was originally set up to conduct, are obvious.

The text of the letter:

To the Speaker of the Lower House of Parliament

P.O. Box 20018

2500 EA The Hague

Date 28 June 2024

Subject: Presentation of CTIVD supervision reports 77 and 78 on the use of journalists as agents

Introduction

We hereby present Report No. 77 and No. 78 of the Intelligence and Security Services Regulatory Commission (Commissie van Toezicht op de Inlichtingen en Veiligheidsdiensten, CTIVD) on the use of journalists as agents of the AIVD and the MIVD (the Dutch external and internal intelligence services). We are grateful to the CTIVD for its thorough investigation covering operations in which the services used journalists deployed as agents in the period from 1 January 2019 to 1 January 2023. We endorse the CTIVD's conclusions and adopt all recommendations as further described in this letter. Some of the recommendations are applicable to both services and will be followed up jointly where possible.

In general

Under section 41 of the Intelligence and Security Services Act 2017 (Wiv 2017), the services have the ability to deploy agents. An agent is a natural person who is deliberately deployed by the services and directed to gather targeted information that is important for the task performance of the services. The services can, in principle, approach anyone, including journalists.

Journalism is an indispensable pillar of democracy. We underline the importance of journalistic independence. This importance is shown clearly in the services' use of journalists as agents, for example by testing against specific security risks and higher consent requirements. As included in the Explanatory Memorandum of the Wiv 2017, journalistic source protection plays an essential role in a democratic society. The journalist as an agent, given its important function in our rule of law, is included as a special category. Therefore, journalists – like for a number of other social functions and persons entitled to privilege – are handled as a separate policy with additional safeguards. The findings in the reports show that the services pay attention to the specific circumstances and associated extra safeguards required when deploying journalists as agents.

Recommendations

The following is first a summary of the joint recommendations that relate to both services. This is followed by the recommendations that relate specifically to one of the services.

Joint conclusions and recommendations 

The CTIVD recommends that both the AIVD and the MIVD should draw up policy and work instructions, or modify the policy and implement it in practice, on three topics.

- Source protection is one of the services' highest priorities. This is intrinsically embedded throughout the organisation. Therefore, this also applies in practice to all agents within the AIVD and the MIVD, including journalists. The CTIVD confirms in both reports that the services' modus operandi is focused on secrecy of the identity of the (journalist as) agent through internal measures. It recommends that the AIVD and MIVD should consider how the modus operandi regarding the protection of the identity of the (journalist as) agent and the internal measures already being implemented can be more explicitly set out in internal policy. 

- We deem it important to emphasise that an agent is always on the basis of voluntarily cooperating with the service. A (journalist as) agent is never obliged to share the identity of a source. The CTIVD recommends that policy should guarantee that there is a case-by-case consideration of whether it is necessary to record the identity of a journalist's source. It may be relevant for the services to have information about the source of a (journalist) agent in order to assess the reliability of the information provided by the source and to be able to guarantee its safety. The identity of the sources is not always important in this regard. Subject to the above, we adopt the recommendation. 

- The CTIVD found no reason in its investigations to assume that the deployment of the journalists in question was not voluntary. The CTIVD recommends that the services should safeguard the voluntary deployment of journalists as agents (among other things) by recording that the ‘unwitting’ deployment of journalists should only occur in exceptional situations. This should also be substantiated in the file. 'Unwitting' is a situation where a (journalist as) agent is unsure or later learns that he or she has been approached by an intelligence and security service. Being 'unwitting' is unusual and undesirable for the sake of ensuring that journalists make the conscious choice to work with the AIVD or MIVD. The internal policy describes that under circumstances it may be possible for someone to be approached as an agent without directly knowing this, where this is defensible if, for example, it is necessary for the journalist's safety. We endorse the importance of this consideration and adopt the recommendation that 'unwitting' Iatening of agents is only possible in exceptional situations with justification. The services will include this more explicitly in the policy.

Conclusions and recommendations AIVD

The AIVD has policies in place for establishing operational plans and evaluating long-term agent operations, which contributes to the service's learning capability. The CTIVD policy has not been fully complied with and, in that context, recommends an evaluation of the modus operandi regarding the drafting of operational plans.

Next, the CTIVD makes a recommendation to establish policies and work instructions to establish, or modify and Implement with respect to a number of topics: 

- The CTIVD notes that some permissions were granted only after the intended deployment period had already begun to run. It therefore recommends authorization for an agent's deployment should be granted before the deployment period begins. Of course, agent authority is not exercised if this has not already been authorised. 

- When an informant is deployed as an agent, there must be sufficient safeguards to assess and justify the deployment as a new consent request. The AIVD has already implemented a number of safeguards for this purpose. Those safeguards necessary to fully adopt the CTIVD's recommendation will be added, such as the manner of assessing and justifying an agent's deployment. 

- The CTIVD recommends that the invasion of privacy of any third parties in a deployment, including sub-sources, should be taken into account when a journalist is deployed as an agent. 

- The CTIVD states that, in accordance with internal AIVD policy, the deployment of a journalist as an agent is reapplied for annually through a request for permission. Necessity, proportionality and targeting are reconsidered. It also considers how much relevant information the deployment has yielded in the previous period. The CTIVD recommends that specific circumstances should be considered individually when deploying a journalist as an agent. 

- The CTIVD concludes that the AIVD ensures (operational) security throughout the operation when the journalist is deployed as an agent, and it describes what operational security measures are taken. There is already an internal policy on having agents travel to and deploy in high-risk areas. However, this does not apply to agents residing in a high-risk area. The recommendation is to supplement the policy with a risk assessment if agents already live in a high-risk area. 

We endorse the importance of (an addition to) policies regarding the above points and adopt the recommendations. This recommendation will be implemented on the entire special category of professional groups and persons entitled to privilege, including journalists. 

Conclusions and recommendations MIVD

The CTIVD concluded that the MIVD did not fully comply with its own policy in a number of operations. The files reviewed lacked operation reports. The information contained in these reports must be recorded for the purpose of managing, recording and accounting for the operation(s) in question. The absence of operation reports means that the MIVD has been unable to provide sufficient insight into how the safety and well-being of the officers in question was concretely implemented. The MIVD thus failed to keep a full record of the exercise of an agent's authority to deploy. The CTIVD considers this contrary to Article 31 Wiv 2017.

The CTIVD makes recommendations to eliminate these injustices. The CTIVD recommends ensuring that the file feeds of all agent operations are in order, meaning that they are complete and consistently set up. In addition, the CTIVD recommends that policies and work instructions be drafted or modified and implemented on the following topics: 

- Establishing the management of (journalists as) agents in countries or high security risk areas, as well as how to monitor and ensure the safety of agents. 

- The establishment of the procedure regarding the evaluation of agent operations. In it, the CTIVD recommends that it should be included that the filing of agent files is actively monitored. 

We endorse the importance of complete and consistent dossier management in respect of all agent operations and adopt the recommendation insofar as it relates to all current and future agent operations. The MIVD is happy to discuss the practical implementation and follow-up o f this recommendation with the CTIVD. In addition, we endorse the importance of (an addition to) policies and/or work instructions regarding the recording regarding the aforementioned points and adopt the recommendations. 
 

In conclusion 

The investigation has focused on the use of journalists as agents, but a number of findings could also be applied to the deployment of agents in general. We therefore implement the above recommendations where appropriate to agent operations in general. 

Finally, we once again underline the important function that journalists occupy in our constitutional state. We endorse the findings and recommendations in the reports with which the services can even better ensure that sufficient attention is paid to the specific circumstances and associated additional safeguards required when deploying a journalist as an agent. 
 

Minister of the Interior and Kingdom Relations, Hugo de Jonge

Minister of Defense, Drs. K.H. Ollongren