Luglio 2003

The Netherlands as a branch of American law enforcement?

by Justus Uitermark and Peter Cohen

On 13 and 14 March 2003, government representatives, including Dutch and American law enforcement officers, held a meeting on law enforcement and terrorism. However, the agreements that were reached have little to do with terrorism. Almost all of them relate to drugs, especially ecstasy. The American enforcement agencies’ wish to have the complete and unconditional cooperation of the Dutch legal system finally seems to be fulfilled.

Despite the fact that these agreements have been formally made in the context of the “War on International Terrorism”, they should be seen in the light of a far older war, the ”War on Drugs”. The only difference is that other and more severe methods are now being employed. The new agreements fit with a general tendency of the American government, law enforcement agencies and intelligence services to have (even) less respect for the sovereignty of other countries after the attacks of September 11, 2001. The capacity and competency of their law enforcement services are being expanded because of their lack of faith in the capabilities of other countries’ law enforcement. In addition to the (secret) number of agents already in the Netherlands, the State Department will appoint a new Global Issues Officer and the Drug Enforcement Administration will install a special agent and an analyst to supervise law enforcement operations. All DEA-agents are stationed at the American embassy in The Hague and enjoy diplomatic immunity. This means, amongst other things, that American agents can not be held accountable or even questioned in case of a scandal or doubts about the functioning of the legal system, as was the case with the Van Traa parliamentary investigation.

From co-operation to fusion

Even more important than the expansion of the DEA in the Netherlands is the integration of the American system with the Dutch system. This integration takes place in three areas.
First, the exchange of the information between law enforcement agencies: “The United States and the Netherlands”, it says in the document in which the agreements were recorded, “intend to exchange and share as much as possible information regarding law enforcement cooperation.” Customs in both countries will also consult each other more often: there is talk of joint training courses and the development of a joint database to predict and analyze drug smuggling operations. The most extreme proposal for cooperation is an intended integration of the personnel of law enforcement agencies: experts from the United States and the Netherlands agreed to look into the opportunities for undertaking joint investigations of large-scale international drug organizations.
Secondly, academic research and the prevention of drug use. This subject was hardly touched upon but representatives from both countries indicate that they desire close cooperate in this area as well. The document states that the distribution of information as well as academic research serves to prevent drug use. Thus, there is no objective registration of the effects of drugs. Academic research is made to serve an ongoing policy, not to inform drug policy itself. Here we see (another) example of a Dutch tradition being lost - objective research into the effects and patterns of drug use.
Thirdly, judicial rules themselves will be altered. Thus, it is stated that ‘incompatibilities’ between both national legal systems will be ‘resolved’ in order to smoothen [legal requests and confiscation procedures. Laws and rules are regarded as purely technical matters: they can be changed according to the wishes and demands of the law enforcement services. Other considerations play no role and democratic regulation is lacking. This way to treat law and rules is in line with the way in which the document has been presented to the Second Chamber: a logical result of an exchange between experts that is beyond dispute and needs no regulation.
Factually, there is a creeping integration of both legal systems. It is not simply cooperation, but fusion. A legal system is forming in which enforcement agencies can selectively appropriate or revise the regulations in both nations, thereby escaping control from the legal systems of both countries. It is not exactly clear where this integration will take us but it is certain that it undermines the logic of the Dutch drug policy; health considerations, traditionally the cornerstone of Dutch drug policy, play no role in the document. This emergent transatlantic enforcement regime escapes the control of the Dutch national democracy: it has its own rules, its own logic, and its own dynamic.

A Transatlantic Enforcement Regime

Rules: Enforcement officers can selectively make use of rules in both countries and avoid the regulation of both national legal systems. To quote a classic but still relevant maxim: where the rules seem equal, power determines the outcome. The willingness of the Dutch government and judges to extradite suspects stands in grim contrast to the United States’ scepticism or even hostility towards countries and international institutions, such as the International Tribune in The Hague, that want to hold American citizens accountable. After all the commotion over recent extraditions of Dutch suspects, these new agreements will create even more opportunities to lower the threshold for extradition.
Logic: The emerging transatlantic regime has only the goal to trace and end drug production and trafficking, with no attention being paid to considerations other than enforcement or to interests other than those of enforcement agencies. The sovereignty of the Dutch state is being eroded as is the Dutch holistic drug policy that has traditionally paid attention not only to enforcement but also to health considerations. Already a shift is apparent. For example, there have been calls to end a policy of ‘quasi-toleration’ (in the mission statement for the previous Cabinet) and Martin Witteveen of the Unit Synthetic Drugs has stated that Dutch drug policy should be revisited: The Netherlands allegedly creates a bad image for itself by focusing on the reduction of harm associated with drug use.
Dynamic: As stated, the enforcement logic is entering other policy areas. Especially as no limits are being applied to the cooperation between the respective enforcement agencies, it can be expected that the transatlantic enforcement regime will not limit its actions to ecstasy or terrorism. In fact, US Customs have not intercepted sizeable amounts of Dutch ecstasy (or any other drug) during the last two years. In the past it was not clear whether the arrested smugglers – who had often boarded in Brussels or Paris – had obtained their ecstasy from a Dutch producer. But now it is certain that American enforcement agencies are intercepting little to no Dutch ecstasy. As the United Synthetic Drugs has itself stated that drug producers are leaving the Netherlands, these new agreements come at an awkward moment. That these steps are taken now has more to do with the uncompromising post 9/11 attitude of the American enforcement agencies and their Dutch counterparts who share their vision.

Another reason that they have been given room to make these arrangements is the enduring lack of vision on the part of Dutch representatives. It seems as if they do not know that the American thirty-year “War on Drugs” has failed in all possible respects: the costs are escalating, the use of drugs is mostly stable or increasing (and generally higher than in The Netherlands), and the prison population has grown to bewildering numbers. On top of that, human rights are routinely breached in US prisons – frequent anal ruptures are only one indicator of systematic gang and sexual violence and of the general indifference of the American authorities to the fate of prisoners. The extraditions of Dutch suspects to this prison system as well as the exchange of information and the revision of legal rules are treated as purely technical matters. For American law enforcement, however, these arrangements fit within a more general program to exercise influence outside their own borders – for them, these are not technical matters. The lack of vision on the part of Dutch representatives has led to agreements without limits. It is an open arrangement, in which the interpretation and execution will escape political or societal regulation. If we want to prevent the Dutch legal system from functioning as a branch of the American enforcement industry, it is necessary that politicians take their tasks of regulating and steering seriously. The American and Dutch enforcement agencies should not be allowed to dictate the agenda of policies before it is first clearly stated what are the policy objectives, the legitimate means and the judicial limits.

Justus Uitermark and Peter Cohen are affiliated with the Centre for Drug Research of the University of Amsterdam.