COUNTERTERRORISM IN THE NETHERLANDS: ACQUITTALS

1. (SBU) Summary: Recent acquittals of Islamist terrorist
suspects in two high profile cases (see Ref A) and
increasing realization that terrorist threats affect the
Dutch homeland have prompted the government of the
Netherlands to propose more measures to strengthen
counterterrorism legislation and law enforcement. In a June
24 letter to parliament, Justice Minister Piet Hein Donner
asked for expanded definitions of terrorism-related
offenses, closing of several terrorist-financing loopholes,
more restraints on terrorist networks and improved
cooperation among Dutch law enforcement institutions. The
parliament is expected to endorse the proposals when it
resumes session at the end of August. If endorsed,
legislation will be drafted and submitted to the Council of
State and parliament for approval in 2004 or later. Despite
broad acceptance of the proposals, consensus on specific
changes will take considerable effort and time. The
proposals include many - but by no means all - measures we
have urged the Dutch to implement. We feel they are overall
positive steps toward effectively combating terrorism, but
in some areas do not go far enough. End Summary.



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TERRORISM A SERIOUS THREAT


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2. (SBU) The recent acquittal in Rotterdam of all 12
suspects charged with support of a terrorist organization
(Ref A) and a similar December 2002 acquittal of four men
allegedly involved in a plot to bomb the US Embassy Paris
(Ref B) revealed inadequacies in Dutch law and practice for
building an evidentiary case, especially with regard to the
use of intelligence. The acquittals coincided with heavy
media attention in May 2003 to the discovery of jihad
recruiting at a mosque in the southern city of Eindhoven.
In this atmosphere, Justice Minister Donner (CDA-Christian
Democratic Appeal) submitted a paper to the Cabinet on June
20 and a letter to the parliament on June 24 outlining
proposals to deal more effectively with terrorist
activities. The introduction to the paper described the
terrorist threat within the Netherlands as serious and
"anything but temporary or simple." It also reiterated
Dutch support for international cooperation and their desire
to play a prominent role in combating terrorism, an attitude
evidenced by their pioneering implementation of the
Container Security Initiative. (See Ref C)



3. (SBU) Shortly after September 11, 2001, the Dutch
government enumerated a 43-point Anti-Terrorism Plan of
Action and in November 2002 enacted a Terrorist Offenses
Bill. Those measures set a framework for improved Dutch
anti-terrorism protection and prosecution. However,
prosecutors and other law enforcement officials agree that
the post-9/11 measures aren't enough and the recent
terrorist suspect acquittals proved their point. Donner's
new proposals are a continuation of the process of
developing the Plan of Action and Terrorist Offenses Law but
go further than previous modifications. The current
proposals clearly identify two primary areas where they need
to do more: terrorist financing and law enforcement
cooperation for prosecution.



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PROPOSED CHANGES


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4. (SBU) Donner's proposals included measures designed to
expand definitions of terrorism related offenses, close
terrorist financing loopholes, restrain terrorist networks
and improve cooperation among law enforcement institutions.
Some proposals are recommended legislative changes, others
policy formulations. Among the more significant proposals
are the following:



A. Making recruiting for jihad a new, separate, criminal
offense carrying a maximum of four years imprisonment.



B. Making conspiracy to commit a terrorist offense a
separate criminal offense.



C. Redefining criminal "participation" in an organization
that pursues terrorism to include "providing financial or
other material support."



D. Allowing courts to ban terrorist organizations on asset
freeze lists and making support to a banned organization a
criminal offense.



E. Changing the 1977 Sanction Act to provide tools to
restrain activities of non-corporate terrorist networks.



F. Improving the capabilities for intelligence gathering by
the AIVD (Dutch intelligence agency)



G. Better coordination of activities and information sharing
between intelligence services and the police.



H. Developing a new system for protection of critical
infrastructure and persons.



I. Making more and better use of mechanisms to ensure
transparency and monitoring of non-profit organizations.



J. Increasing efforts to integrate immigrants into Dutch
society to prevent radicalization and extremism.



K. Urging the EU to make combating terrorism a cooperative
priority.



L. Creating a Joint Committee to Combat Terrorism made up
of all relevant departments and agencies.



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Some Things Better Left Unsaid - For Now


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5. (SBU) The Justice Minister's proposals did not include
specific measures to facilitate the use of intelligence
information as evidence. The recent acquittals of terrorist
suspects were based in large part on the courts' rulings
that uncorroborated intelligence information could not be
used as evidence. Public and political sentiment after the
acquittals favored changing the law to permit the use of
intelligence as evidence in certain circumstances. The
Secretary General of the Ministry of Justice, Joris Demmink,

SIPDIS
said in a recent meeting with Assistant Secretary of State
Beth Jones that the Ministry of Justice was "well informed
at every stage" of those cases that the evidence was "thin
or based on intelligence, which would be difficult to use
for conviction." Some experts believed the government was
using the case to demonstrate the need for new laws.



6. (SBU) Donner's proposal, however, skirted the issue. The
MOJ's explanation is that this issue is still under judicial
review (the prosecutor in the Rotterdam case has filed an
appeal against the court's decision on using intelligence as
evidence). If the appellate court accepts the intelligence
information as evidence or describes circumstances under
which it could be used, then legislative changes may not be
necessary. The June 24 proposal therefore only expresses an
intention to promote better coordination of activities and
information sharing between intelligence services and the
police (4.G. above) - an important point but not specific.
Even this has provoked warnings from parliament against the
risk that uncorroborated intelligence could be used as
evidence in court.







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COMMENT: THE RIGHT DIRECTION


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7. (SBU) The proposed measures are significant and positive
steps in tightening the Dutch ability to combat terrorism.
Specifically in the area of terrorist financing, the
proposals to redefine criminal participation to include
financial and material support, to change the 1977 Sanction
Act and to require more transparency and monitoring of non-
profits are all topics which we intend to address with the
Netherlands at the Financial Action Task Force to develop
best practices. The proposal to permit "banning" of
terrorist organizations on freeze list seems to be a more
political than substantive change. In the area of terrorist
prosecution, adding recruitment for jihad to the list of
terrorism offenses is an important concept in the
Netherlands which includes a large immigrant Muslim
population. However, this will undoubtedly create
controversy when actual legislative language is proposed
given the political sensitivities of the Dutch debate on
social integration.



8. (SBU) The proposal's lack of specific recommendations for
the use of intelligence information at trial is
disappointing given the centrality of this issue in the
recent terrorist suspect trials. It appears that the Dutch
will take on this matter in stages. This caution is
probably necessary given both political constraints and
respect for the independence of the judiciary while it
reviews the cases. His proposals were also silent on making
more effective use of infiltrants in criminal
investigations. There are strong political sensitivities in
the Netherlands against their use. Minister Donner
announced in May that he is prepared to allow the use of
infiltrants in terrorist cases under special circumstances
yet to be determined. This issue remains a frustrating
limitation on Dutch investigations and on bilateral law
enforcement cooperation.



9. (SBU) The Dutch government, a supportive ally in the
fight against terrorism, clearly recognizes the deficiencies
of some of its law enforcement mechanisms and is willing to
make changes. Facilitating these changes remains our
biggest challenge in helping the Netherlands effectively
fight terrorism. Embassy will continue to work closely with
the Dutch on these difficult issues. End Comment. RUSSEL