Denmark’s justice minister approved charges against a former defense minister who prosecutors had previously sought to criminalize for leaking to the press. The minister intends to pursue the entire case behind closed doors.
The penalty for leaking state secrets is typically up to 12 years in prison, however, the case that Justice Minister Peter Hummelgaard Thomsen has allowed to go forward is being brought as a “judge’s case.” Prosecutors reportedly will not seek more than four years in prison.
Responding to criticism, Hummelgaard Thomsen said, "I cannot say anything about the specific case, nor do I think it is a political indictment."
"It is, of course, serious when highly classified information, which is covered by a duty of confidentiality and which is essential for the intelligence services' work to protect Denmark, is passed on to unauthorized persons,” claimed State Attorney Jakob Berger Nielsen. “It can damage the relationship with the intelligence services' business partners, weaken trust in the intelligence services, and make it more difficult for them to carry out their work.”
In 2021, Claus Hjort Frederiksen publicly discussed the fact that the Danish Defense Intelligence Service (FE) had a relationship with the National Security Agency (NSA) in the United States. It involved tapping underwater fiber-optic cables to help U.S. officials spy on political leaders in Europe, like then-German Chancellor Angela Merkel.
Hjort Frederiksen, who was a Liberal Party member of the Danish parliament, was charged with “treason” in December 2021. Although he enjoyed immunity as a parliamentary member, prosecutors attempted to have the immunity lifted but failed.
He did not run for re-election in late 2022, which cleared the way for prosecutors to make an example out of Hjort Frederiksen for speaking to the media about Danish intelligence’s cooperation with the NSA.
According to Hjort Frederiksen, the details he shared about Denmark’s cooperation with NSA were already shared by NSA whistleblower Edward Snowden in 2013. He insists what he said was well within his right to freedom of expression, especially as an elected official, and that he did not reveal “state secrets.”
Hjort Frederiksen plans to fight for open justice so the public and the press can follow the prosecution against him.
In December 2021, Denmark’s highest-ranking intelligence chiefs warned Danish media executives that publishing “state secrets” was a crime under the country’s criminal code. Officials insisted journalists who “pass on classified information” may be prosecuted.
It was not exactly clear what upset the Danish intelligence agencies, yet at the time, there were multiple investigations into national security leaks. “Four current and former employees” had been arrested and charged for “unauthorized disclosures of highly classified information.”
The “chilling effect” of the warnings troubled the World Association of News Publishers, which is a trade association of news media organizations based in Frankfurt, Germany.
Mads Brandstrup, the chief executive officer of the Danish Media Association, responded, “The intelligence services must subject themselves to public scrutiny just as any other part of government. I find this kind of approach deeply concerning, and it should have no place in a democratic society."
On January 4, 2022, according to the Committee to Protect Journalists, “The National Unit for Special Crime summoned at least seven national security reporters as witnesses in a leak investigation, according to multiple news reports.”
CPJ documented the names of the journalists who were targeted: Sebastian Stryhn Kjeldtoft, a reporter with daily newspaper Politiken; Politiken reporter Hans Davidsen-Nielsen; Ekstra Bladet newspaper reporter Thomas Foght; Lars Nørgaard Pedersen, a reporter with the daily Berlingske; Hans Mortensen, a reporter with the weekly Weekendavisen; and one reporter each from public radio broadcasters DR and Radio Loud.” [Their names were not disclosed.]
“Danish authorities should cease summoning journalists in this vague leak investigation, which puts reporters under unnecessary pressure and could have a chilling effect on national security reporting,” CPJ urged.
Swedish magazine Journalisten further outlined what led to the charges. Snowden revealed in 2014 that the NSA viewed Danish fiber-optic cables as important since “international traffic” passed through from Germany, Russia, and Scandinavian countries.
An intelligence agreement between the U.S. and Denmark was reportedly inked in the late 1990s. Data on Danish citizens was supposed to be filtered out, but it is unclear what the FE has done to protect the privacy of the country's citizens.
FE chief Lars Findsen was one of several intelligence agency employees questioned secretly by a commission for allegedly leaking information to the press. Like Hjort Frederiksen, Findsen was criminally charged in 2021. But Findsen was also initially jailed in 2022, and the secret case against him proceeded to a secret trial that year.
Authorities refused to inform the public of why Findsen was on trial, but Danish media organizations believe it was related to the “secret cable cooperation” between the U.S. and Denmark.
Hjort Frederiksen spoke to multiple Danish outlets about the intelligence partnership between Denmark and the U.S.—Weekendavisen in April 2020, Berlingske in September 2020, and TV 2 News in December 2021.
Back in 2006, Reporters Without Borders (RSF) condemned Danish authorities when three journalists from Berlingske were threatened with up to two years in prison for “publishing information leaked by a Danish intelligence officer denying that Iraq had weapons of mass destruction.”
Berlingske editor Niels Lunde and two reporters, Michael Bjerre and Jesper Larsen, were accused of “harming state security.” It was the first time the charge was brought against journalists in Denmark, according to RSF. The three journalists were eventually acquitted.
Snowden previously commented in January 2022 on how Denmark is maintaining a legal fiction and following the example of the U.S. government by acting as if the relationship between the NSA and Denmark intelligence has never been confirmed.
"When someone challenges these mass surveillance programs as a violation of our basic rights, the government says: ‘We never said this is happening. Journalists say it is happening,'" Snowden added.
"Once the cat is out of the bag, you cannot put the cat back in the bag."
There are no dates set for Hjort Frederiksen’s trial. At this point, there has been little to no response from civil society organizations, probably because Danish authorities are not targeting a journalist for publishing “state secrets.”
Nevertheless, secret trials against individuals who speak to the news media, especially former officials, greatly undermine the press’s ability to inform the public and hold power accountable for its actions.