The biggest spy scandal in Denmark’s history closed not with a bang, but with a whimper. On November 1 the Danish Supreme Court ruled that a case involving leaked state secrets could go not go ahead in secret. In response, the state prosecutor dropped the case. Thus ended a three-year attempt to prosecute Denmark’s highest ranking spy chief and a veteran defence minister. But many questions remain unanswered. Among them: how can openness be ensured in a democratic society?
In August 2020, Lars Findsen, head of the Danish foreign intelligence service, was suspended. A three-judge commission found him blameless, but he was indicted and arrested in December 2021 and jailed until February 2022, charged with leaking top-secret information. In December 2021, former Danish Defence Minister Claus Hjort Frederiksen was also charged with leaking state secrets. An unnamed third intelligence agency worker also faced charges. All charges have now been dropped.
What exactly Findsen and Hjort were accused of leaking was classified. However, there was significant press speculation, including claims that the spy chief and former minister disclosed information relating to a classified arrangement involving Danish security services and the US National Security Agency.
This public speculation appears to have informed the Danish Supreme Court’s decision to reject the prosecutor’s demand that the case go forward behind closed doors.
A state within a state?
Democratic societies require transparency in government action and procedural safeguards for criminal law defendants. But security services are necessary defence institutions that must be able to act in secret to protect the nation.
The prosecutor asserts it was required to drop its case because Danish courts did not offer necessary secrecy protection. It was ruled that certain case-related documents must be made available to the defence. The state prosecutor had strenuously resisted the provision of top secret documents to a defendant accused of leaking top secret documents. In its statement withdrawing the case, the prosecutor said that the lack of secrecy meant that the intelligence service would no longer permit its material to be used in the case.
“The Supreme Court has ruled that Lars Findsen will be able to take classified information home, without requirements on how it should be stored or who has access to it. This will, of course, significantly increase the risk of information being spread uncontrollably. Therefore, the Danish Defence Intelligence Service has informed the prosecution service that the classified information cannot be presented as evidence in a criminal case.”
This is interesting because beyond the competing questions of security, we see issues of power and authority. The prosecutor asserted it was dropping the case because it no longer had the evidence upon which the case was based, as the intelligence service had withdrawn it. This move by the intelligence service – akin to taking its ball and going home when it doesn’t like the decision of the referee – added to a concern held by some that the Danish intelligence services are developing their own self-regulating state within the Danish state.
Where does Denmark go from here?
Discussion regarding the case and its conclusion has been vigorous and heated across Denmark’s political divides. From right of centre, allegations have flourished charging that Findsen’s surveillance was politically motivated by centre-left political actors. Findsen himself suggests as much in his bestselling book, Spymasters (in Danish: ‘Spionchefen’) published in 2022.
The present government, a left-right coalition, includes parties that called for the Prime Minister’s removal over this and other politicised cases in the last elections. When the present government came to power late in 2022, it announced a second three-judge commission to investigate the case. Its remit has been expanded following the dropping of the case, though some commentators remain remain doubtful about what it can achieve.
There is also concern that a case of such significance has been frustrated by general procedural requirements blind to the specialised needs of security services. Some point to Sweden, which recently held a top-secret spy trial without incurring charges that it was operating outside democratic bounds, as a counter example for how things could be done.
This concern is reflected in public remarks made by Justice Minister Peter Hummelgaard, who is from the same centre-left party as the prime minister, addressing the dropped indictment:
“Given the legal situation established by the Supreme Court’s rulings, it will be extremely difficult to conduct criminal proceedings for breach of professional secrecy in relation to the country’s most confidential information. Regardless of the specific cases, the government considers this to be an untenable legal situation. I have therefore asked the authorities concerned to consider appropriate legislative changes in this area.”
It remains to be seen what legislative changes may be considered. The claim that the outcome indicates a system failure that must be addressed ought to be regarded with caution, however. Denmark’s Supreme Court is notoriously restrained. Even the history-making 2016 Ajos case, where the Danish Supreme Court rejected the supremacy of EU law, should be understood as a challenge of external authority.
Many Danish political actors are looking for a scapegoat. Making this scapegoat the Danish Supreme Court could set a dangerous political precedent.