The Parliament Hearing

Last Friday was the MH17 hearing of the committee for Foreign Affairs of Dutch Parliament in the Dutch Parliament building in the Hague. I had been  invited as an external expert to this hearing (see a previous post), with the task to brief the parliament members on what military satellite systems from what countries might have observed the disaster, and could potentially provide useful information with a view on the criminal prosecution of the case.

An audio record of the block of the hearing that featured my presence can be downloaded here (it is in Dutch of course). Related to this, I also appeared on national television that evening (video here and below) in a long item in EénVandaag, a news background program broadcast nationwide at 6 pm. After the hearing, I also did a 20-minute live interview on national radio (audio here, below the video on that page).

It was quite an experience to be in this role, a role which I never had expected to have to play when I wrote my first blogpost on this all. I spent the better part of January doing research into even the most remotely possible questions I could imagine, digging up information, checking and re-checking facts, and writing the position paper.

The full hearing itself took 8 hours (I myself only attended some two hour of these though), and the block that included me took one hour (from 12:00 to 13:00 CET). I shared this block with Paul Riemens, who is the head of Dutch air traffic control; and prof. Piet van Genderen, who is a radar expert from Delft University.

Letter by the Minister

In the evening before the hearing, the Minister of Justice and Security, Van der Steur, had suddenly dispatched a letter to Parliament in answer to questions by Omtzigt , in which he stated that the prosecutor did receive radar and satellite data, and that in their perception there was "no need" for additional requests of those. He also mentioned that the prosecutor had insight in these data "through the MIVD"  (the Dutch Military Intelligence and Security Service) by means of "ambtsberichten" (i.e. brief statements on what the data show, not the data itself). The latter suggested to me, that the data are not declassified, and perhaps will not be declassified. Which is odd and unnecessary, as well as unwise, as I will discuss later in this blogpost.

The timing (combined with the fact that similar earlier questions by MP's Omtzigt and Sjoerdsma got unanswered) suggests that the Minister's letter to Parliament was a direct response to the position papers by Van Genderen and me, so it does seem our input into this discussion had some immediate effect.

Parliament members present

Parliament members attending the block of the hearing which I participated in, were Michiel Servaes (Labour party); Harry van Bommel (Socialist Party); Pieter Omtzigt (Christian Democrats); Louis Bontes (list Bontes/Van Klaveren, a right-wing splinter party split off from Wilders' Party for Freedom); Raymond de Roon (Party for Freedom); Sjoerd Sjoerdsma (Democrats '66); and Han ten Broeke (Party for Freedom and Liberty). Chairman of the hearing was MP Fred Teeven (Party for Freedom and Liberty: who incidentally was State Secretary at the Justice and Security department at the time of the MH17 tragedy), who is vice-chairman of the parliament committee in question.

some of the Parliament members during the hearing:
 f.l.t.r. Ten Broeke, Servaes, van Bommel and Omtzigt

Hearing proceedings and questions

Riemens, Van Genderen and me all three got a few minutes to present our information to the MP's. My main message to the committee was that there are a lot of military systems, from several countries including more than one ally of our country, that might provide useful information. I briefly outlined what kind of systems might provide what information, mentioning SBIRS, but also SIGINT and IMINT.

Next, the parliament members in the committee asked us further questions and clarifications. Servaes asked me which indications I had whether the Dutch prosecutor really needed more satellite data (harking back to the suggestions in the Minister's letter of the previous evening). Related to that, Van Bommel asked me whether my plea for an attempt to get these data and get them declassified was in the interest of transparency, or had some other additional goal. He also asked whether these data might help to further restrict the location from where the missile was fired or not. Ten Broeke asked me (and Van Genderen) for my opinion on the current government position in this.

answering questions

I amongst others answered that I was not a lawyer or attorney, but that it seemed to me that declassifying the evidence was crucial in order to be able to use them for a criminal prosecution, as well as indeed in the general interest of transparency and accountability. There are so many questions around this subject, and so many (conspiracy-) theories and different views (not to speak of desinformation floating around), that the final conclusions should be verifiable to all (after the hearing, I pointed out in the radio interview that it is also very important to the families of the victims to be able to judge these results, something also pointed out in the tv item by a father who lost his son in the tragedy).

In this context I also pointed to remarks made a year ago (17 Dec 2014) by Victoria Nuland, assistant secretary of  European and Eurasian affairs in the US government, and read these out loud to the Parliament members. During a Q & A session at the American Enterprise Institute, Nuland answered questions by a Russian reporter and said that the US government had already shared data with the Netherlands, but moreover that she expected that there:

"..will be, I believe, in the context of the Dutch case, when they roll it out – they are likely to ask us to declassify some of that, and I think we will be able to help in that regard"

In other words: she not only expects a request for declassification from the Dutch government: but she also expects that the US Government will answer positively to that request!

During the hearing, and partly in response to some of the questions,  I warned the parliament members that if these satellite data would not be pursued and a request to declassify them not be made, this could possibly stimulate a lingering feeling that the Dutch prosecution left data unchecked or unreveiled. I told them that if things transpired this way (the wording of the letter by the Minister was not so encouraging in this respect) I feared that this would potentially provide handles to those parties with an interest in denying the conclusions of the investigation, to question these results.

Omtzigt asked me if there were earlier precedents of these kinds of data being declassified. There are: in the hearing I provided the examples of infrared data on meteoric fireballs (which these satellites also register) being released to astronomers for analysis; the declassification of satellite imagery in order to argue the necessity of the invasion of Iraq at the start of the second Gulf War; and China providing satellite imagery of potential floating debris in the case of the search for the missing MH370 aircraft.

Sjoerdsma asked me whether, in case the data would be declassified and supplied, our country had the expertise to independently analyse them and verify the claims made from them. For the infrared data I answered that I am not sure, so could answer neither positively nor negatively. For IMINT and SIGINT, our country certainly has that expertise, both within our own military as well as on Dutch universities.

De Roon wanted me to clarify further which countries had what satellite systems. Bontes asked me whether the fact that we were now so reliant on foreign data from foreign systems, might be an argument to start to build, as a country, surveillance satellite capacity ourselves (I think I am really not the person to answer that question).

During my answering all these questions, van Bommel additionally asked me in what phase of the criminal investigation these data should be made public, and whether it was perhaps too early for that in the current phase.

To the latter I can agree, although (again) I am no lawyer or attorney. But I can understand that perhaps, in this phase of the inquiry, the prosecutors do not want to publicly show their hand of cards.

I do have some concern though, about whether at the end of the trajectory these data are going to be made public, in the interest of verifiability. In my opinion, they should. I find the wording of the letter by the Minister of 21 January 2016 however not very promising in that respect.

The  contributions by the other invited experts contained some significant points. Van Genderen for example made very clear that having the secondary radar data is not enough. He also made very clear that Ukrainian claims that all their radar systems were down for maintenance that day, are hard to believe, as that is against what is normal. Riemens made clear that normally, the air traffic controller on duty will be heard in the investigation (which has not happened in this case) and that radar data normally are available within an hour. Later during the hearing, well-known lawyer Knoops made very clear that without the original raw (radar, satellite) data being available, the prosecution would have no leg to stand on.