Category: News

The latest news from Courage Foundation

Categories
News Whistleblowing

Swiss banking’s whistleblowers: the regulators of last resort

Swiss banks’ history of absolute confidentiality for their clients has led to the small country becoming the world’s largest centre for private banking. That secrecy is backed up by national laws: if Swiss bank employees disclose details they come across professionally, they don’t just risk losing their job — they face prison.

International initiatives to combat money laundering and tax evasion have put increasing pressure on Switzerland to break with the past and adopt greater transparency and better reporting standards. The Swiss resistance to surrendering their competitive advantage is reflected by the treatment meted out to whistleblowers from the banking sector, who – as the Economist reports this week –  have been fiercely persecuted.

Last summer Pierre Condamin-Gerbier, a former Geneva-based private banker, revealed that French budget minister and tax tsar, Jérôme Cahuzac, had hidden €600,000 in a Swiss bank account for over 20 years, despite repeatedly denying ever holding a bank account abroad. The revelation led to Cahuzac’s resignation and expulsion from France’s Socialist Party. Whistleblower Gerbier  was arrested on his return to Switzerland, released on bail in September last year and has recently appeared before a Swiss prosecutor.

This follows an extraordinary decade of retaliation against whistleblower Rudolf Elmer, a former executive with Bank Julius Baer based in the Cayman Islands, who raised concerns internally before turning to authorities and finally WikiLeaks to expose alleged complicity with tax avoidance and money laundering. Elmer and his family suffered extended close surveillance, intimidation and harassment (for which Julius Baer has already paid an undisclosed out of court settlement). Elmer has been imprisoned twice without charge, once for 187 days and once for 30 days, with periods in solitary confinement.

Rudolf Elmer, Julius Baer whistleblower
Rudolf Elmer, Julius Baer whistleblower

Swiss disclosure to international tax authorities is gradually inching forward. In October last year, Switzerland signed the OECD Multilateral Convention – an agreement to exchange information about taxpayers between tax authorities on request. But while the Swiss government has signed on to the Convention, it has failed to do anything to improve the situation of the whistleblowing bankers who have done so much do demonstrate why international agreements were needed. Secrecy laws remain in place and, as the case of Pierre Condamin-Gerbier shows, drawn out criminal proceedings and pre-trial detention for whistleblowers continue.

Whistleblower protections in Switzerland would serve the public interest more effectively than the decade-long trial Rudolf Elmer has had to suffer.

Categories
News Whistleblowing

CIA spying on its own “internal channels” for whistleblowers

McClatchy reports that the Central Intelligence Agency may be “intercepting the communications of officials who handle whistleblower cases.” The Senate Intelligence Committee’s classified 6,000-page report into the CIA’s post-9/11 interrogation programme is still yet to be published and the Committee has already accused the agency of illegally spying on that probe.

Cia-lobby-seal

Now it has emerged that the CIA retaliated against an official who cooperated with the Senate investigation, and Senate members emailed one another to accuse the agency’s inspector general of failing to investigate that retaliation – and the CIA has obtained at least one of those emails.

As McClatchy writes, “The email controversy points to holes in the intelligence community’s whistleblower protection systems and raises fresh questions about the extent to which intelligence agencies can elude congressional oversight.” If the Senate cannot investigate the CIA independently and free of retaliation fears, who can? How can intelligence agencies be held accountable if they even intercept communications into their own operations?

From internal channels to insider threats

It is already difficult enough for government employees in the US to come forward with their concerns. If intelligence community officials fear reprisal, they have even less incentive to expose wrongdoing through internal channels. US Senators Chuck Grassley and Ron Wyden have publicly warned that if public employees are committed to blowing the whistle and internal channels are compromised, it is to be expected that some will anonymously seek other ways to voice their misgivings.

Truly meaningful whistleblower protections need to include the option of a legitimate channel for confidential disclosures… However, if potential whistleblowers believe that disclosing waste, fraud or abuse means putting a target on their backs for retaliation, they will be intimidated into silence. The failure to provide such protected alternatives could result in whistleblowers choosing to make unprotected disclosures in public forums, with potential negative consequences for national security.

The CIA’s illegal monitoring of whistleblower communications has been seen as part of the Obama Administration’s Insider Threat programme, which categorically treats leaks of classified information about wrongdoing as aiding America’s enemies. Introduced in an October 2011 executive order as a direct response to US Army whistleblower Chelsea Manning’s disclosures, the programme covers “virtually every federal department and agency”, including those who are not concerned with national security matters.

A series of reports by McClatchy over the past year describe a range of measures designed to encourage public officials to report on colleagues who they perceive to be exhibiting unusual behaviour. The programme has taken profiling to extreme lengths: late last year it was revealed that the personal details of 5,000 US citizens who had purchased a book on defeating polygraph tests had been retained on the off-chance that they might apply for a job in a federal agency at some point in the future.

This new controversy about the Insider Threat programme exacerbates an already deeply problematic situation for potential whistleblowers within the US intelligence community. Recent public statements by officials responsible for whistleblower protection within the NSA display a reluctance to take complaints seriously, suggesting that within that agency at least, officials see their role as containing rather than engaging with the concerns of employees.

“Don’t bother me with this”

In a recent interview for PBS, the NSA’s former General Counsel Vito Potenza admitted that he would have dismissed Thomas Drake’s criticisms of US warrantless wiretapping:

If he came to me, someone who was not read into “The Program,” right, and not a part of what we were doing and told me that we were running amok essentially and violating the Constitution and it was in that timeframe when there was an awful lot going on and we were all worried about the next [terrorist] attack, there’s no doubt in my mind I would have told him, you know, go talk to your management. Don’t bother me with this. I mean, you know, the minute he said, if he did say you’re using this to violate the Constitution, I mean, I probably would have stopped the conversation at that point quite frankly. So, I mean, if that’s what he said he said, then anything after that I probably wasn’t listening to anyway.

Drake subsequently blew the whistle to the media, and before the government’s case collapsed just days ahead of trial, he was facing an Espionage Act charge that could have imprisoned him for decades.

Similarly, Edward Snowden made enquiries within the NSA about the legality and morality of that agency’s mass, unchecked surveillance. He spoke up at least ten separate times — the Office of the Director of National Intelligence has in fact released one of Snowden’s emails. When he was ignored, Snowden was compelled to give documents detailing the NSA’s spying programs to investigative journalists.

In February this year, NSA Inspector General George Ellard, the official responsible for dealing with whistleblower communications, outlined his likely response to a complaint about the collection of US call data:

Ellard was asked what he would have done if Snowden had come to him with complaints. Had this happened, Ellard says would have said something like, “Hey, listen, fifteen federal judges have certified this program is okay.” (He was referring to the NSA phone records collection program.)

“I would also have an independent obligation to assess the constitutionality of that law,” Ellard stated. “Perhaps it’s the case that we could have shown, we could have explained to Mr. Snowden his misperceptions, his lack of understanding of what we do.”

Insufficient security or insufficient democracy?

The Insider Threat programme and the stated attitudes of the very officials responsible for facilitating internal channels draw a picture of a US administration that is deeply hostile, not only to disclosure of government information, but to internal criticism of its activities from those charged to carry them out.

Famously, President Obama has overseen the prosecution of more Espionage Act cases than all previous presidents combined. The majority of those cases concern individuals trying to blow the whistle on wrongdoing. Within their number include cases, like that of Thomas Drake, where employees have tried to make their case within the ‘official channels’ ostensibly created to facilitate internal whistleblowing.

It is ironic that the United States has responded to disclosures of illegality and abuse, not by subjecting its programmes to democratic input or ensuring that future whistleblowers have better options, but by cracking down on those who speak up and the journalism they enable. The US administration has treated whistleblowers as an issue of insufficient security rather than insufficient democracy.

Categories
Edward Snowden News

Former NSA director says Edward Snowden “blew the whistle” on US spying

Categories
Courage News Edward Snowden News

Press Release: Courage campaigns for Snowden’s continued protection in Russia

With Edward Snowden’s Russian asylum expiring in one week, Courage campaigns for his continued safety

  • Through Vkontakte (Russia’s “Facebook”) a campaign promoting asylum extension for Snowden was seen by more than 1 million users in Russia last week alone
  • 37 countries already covered by Courage’s #StandWithSnowden campaign
  • More than $90,000 in Bitcoin donations received by Courage in the year since Courage set up Snowden’s defence fund
Continue reading “Press Release: Courage campaigns for Snowden’s continued protection in Russia”
Categories
Journalism Legislation News

UK watchdog warns that terrorism laws threaten journalists and sources

The UK’s independent reviewer of terrorism legislation has said that the British government is drawing its interpretation of ‘terrorism’ too broadly, telling the BBC that the current definition “has begun to catch people it was never really intended to catch.”

gm

In a report delivered to Parliament on 22 July 2014, Anderson expressed particular concern about the possibility of journalists and bloggers having their activities made a subject of UK terrorism laws. The case of David Miranda, the partner of Glenn Greenwald, who was stopped at Heathrow airport for 9 hours in August 2013 and had his electronic equipment seized by UK police brought this issue into sharp focus. The action of UK border police was upheld by the High Court in London on 19 February 2014.

In particular, Anderson points out that the UK does not require a link to acts of violence in the way it defines terrorism, only an intent to “influence the government.”

What the Miranda judgment reveals is that the publication (or threatened publication) of words may equally constitute terrorist action. It seems that the writing of a book, an article or a blog may therefore amount to terrorism if publication is “for the purpose of advancing a political, religious, racial or ideological cause”, “designed to influence the government” and liable to endanger life or create a serious risk to health or safety.

As Anderson argues, the UK’s statutory definition of terrorism is broad enough that a blogger arguing against the vaccination of children on political or religious grounds could theoretically fall within its bounds if their actions were judged to present a serious risk to public health. Under ancilliary laws, a large swath of speech acts – including the possession of articles for a purpose connected with publication, acts preparatory to publication or even the encouragement of such acts of publication – could also be construed as offences.

The degree of discretion this “over broad” definition allows executive authorities, concludes Anderson “leaves citizens in the dark and risks undermining the rule of law,” weakens public support for terrorism legislation generally and threatens to chill “legitimate enquiry and expression” by introducing the possibility of arbitrary prosecution.

David Miranda’s appeal is due to be heard by the Court of Appeal later this year.

Categories
Edward Snowden Journalism Legislation News

Australia’s new law would criminalise Snowden reporting

Australian attorney general George Brandis has introduced an amendment to National Security Bill 2014, which he says will criminalise the removal of intelligence information from an agency but is written so broadly that it can potentially be used to punish journalists for publishing or reporting on intelligence information they discover or receive.

As the Guardian reports, according to the Bill’s explanatory memorandum, it criminalises “disclosures by any person, including participants in an SIO [special intelligence operation], other persons to whom information about an SIO has been communicated in an official capacity, and persons who are the recipients of an unauthorised disclosure of information, should they engage in any subsequent disclosure”.

This last clause effectively makes journalism — publishing and reporting on secret government documents — a crime.

The new Bill is in line with an ongoing crackdown on whistleblowing and subsequently on the journalism it enables, in the spirit of the US government’s persecution and ongoing investigation of WikiLeaks for publishing Iraq and Afghanistan war logs and State Department cables. In the US trial of Army whistleblower Chelsea Manning, military prosecutors avowed that they would have tried Manning the same way had she passed the documents to the New York Times rather than WikiLeaks.

It also recalls the abusively broad language of the 1917 Espionage Act, a conviction of which requires merely “potential” harm — no proof of actual damage caused is needed. As Pentagon Papers whistleblower Daniel Ellsberg writes, reversing Manning’s 35-year prison sentence and conviction on multiple Espionage Act counts is America’s best shot at ending the government’s use of the law to imprison truthtellers.

The Espionage Act carries a ten-year prison term, and Australia’s new bill does as well, making it a crime to “endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.” This language hypes fears of national security damage without any factual backing. Snowden-released documents have been published, excerpted from and reported on for more than a year, and American officials have been unable to point to any tangible harm as a result.

Rather than learn from this lack of damage that these documents needn’t have been classified in the first place, Brandis is moving in the opposite direction, stoking fears in an effort to dissuade whistleblowing and, more broadly, Australian journalism.

Categories
Edward Snowden News

UN High Commissioner for Human Rights says Edward Snowden should not face prosecution

Categories
Journalism News

How journalists should work with whistleblowers

The International Journalism Festival 2014 hosted a panel discussion titled Thanks Mr Snowden! The Scoop of the Century, with MI5 whistleblower and Courage Advisory Board member Annie Machon, Guardian journalist James Ball and Italian journalists Fabio Chiusi, Carolina Frediani and Omar Monestier. They discussed the journalistic process of working with sensitive documents and a high-risk source in the face of government pressures, the persecution that whistleblowers face and the role of Courage in protecting whistleblowers.

Annie Machon, who helped set up Courage, described the foundation’s inception as beginning with the need to protect Edward Snowden and future intelligence-related whistleblowers who are “automatically criminalised for exposing the crimes of others”. Machon described the “global support” that Courage aims to offer future whistleblowers, as well as the international whistleblower advocacy work of Courage.

Courage’s work is particularly valuable given the “war on whistleblowers” and the severe threats truthtellers face, Machon said, pointing to the fact that President Obama has attempted to apply the Espionage Act more times in his presidency than all previous presidents put together. Although the Espionage Act is a World War I law designed to punish spies, Obama has used it to persecute whistleblowers exposing government criminality and to deny their full and public legal defence. Machon suggests, “the only answer that our governments have to deter future whistleblowers is to crush them and for them to be seen to be crushed.”

However, Machon praised the resilience and courage of whistleblowers, adding, “we have seen whistleblower after whistleblower come out of the UK and the US over the last two decades despite the appalling experiences that each of their predecessors seems to go through.” Mr Snowden was “well aware of the risks he was taking”, she said, as he had witnessed the Espionage Act being used against NSA whistleblower Thomas Drake, CIA whistleblower John Kiriakou and military whistleblower Chelsea Manning. The whistleblowers exposed warrantless surveillance, illegal torture and war crimes, respectively, yet were themselves persecuted, with Kiriakou sentenced to thirty months in prison and Manning sentenced to thirty-five years in prison. This precedent highlights the extraordinary courage of Mr Snowden and prospective new whistleblowers. “There may be more whistleblowers in the pipeline,” Machon added.

'Thanks Mr Snowden' panel, International Journalism Festival 2014
‘Thanks Mr Snowden!’ panel, International Journalism Festival 2014

Indeed, Machon explained that one of the reasons for setting up Courage was to show potential future whistleblowers that it is possible to survive the process of whistleblowing, “even when you have the USA and the entire intelligence infrastructure of this entirely militarised country chasing you around the planet”.

Government pressure affects not only whistleblowers but the journalists they work with. James Ball, special projects editor at the Guardian who works on the Snowden documents, explained how publishing of the revelations had to be outsourced to the US to benefit from constitutional protections. “We had to battle some quite serious censorship,” Ball said. “The UK government was really putting on severe political pressure.” In addition, journalists had to work under “ridiculous precautions” during the Snowden publications due to the surveillance risks to themselves, the source and their documents. They worked in a controlled environment in a safe room with no external electronic devices allowed inside. Machon recounted her experience of blowing the whistle, when journalists saw her anti-surveillance methods as excessive: “they thought we were overly paranoid.” Of course, now, the Snowden files document the extraordinary surveillance capabilities that journalists and sources should rightly be cautious of.

Machon recommended that journalists working with whistleblowers “display immediately an awareness of the security measures you need to put in place to protect both yourself and your story, but also the whistleblower, to show that you’re serious about trying to ensure they will not be snatched and disappeared into a prison for the next thirty-five years.”

Ball concluded: “Our freedom of expression relies on our privacy. All of our data all of our communications now are online. There is no such thing as ‘digital rights’ – online rights are offline rights.”

Journalists who wish to learn how to protect themselves, their sources and their stories from surveillance can use the Centre for Investigative Journalism’s newly released free handbook, Information Security for Journalists.

Categories
Edward Snowden News

Kevin Zeese: Snowden Should Refuse to Play “Alice in Wonderland”

Kevin Zeese, Courage Advisory Board. 9 July 2014

Edward Snowden submitting to prosecution in the United States would be like Alice going into the courtroom in Wonderland.

Alice stood before the King and Queen of Hearts who served as the judges. The jurors, Alice realises, are “stupid things.” The first witness against her was the Mad Hatter who is as mad as the culture he represents. The guinea pigs who protest are immediately “suppressed” by having their mouths tied up and being put into a bag and sat on by the King so their protests cannot be heard. The most important evidence in the trial was secret, a poem whose author is unknown and which concludes:

For this must ever be a secret,

Kept from all the rest,

Between yourself and me.

Alice realised the court room, with the icons of a justice system (a judge, jury, witnesses), was really a sham that mocks a legitimate legal process.  To confirm her realisation, the King said, after the meaningless secret poetry evidence, that it was “the most important piece of evidence” and “let the jury consider their verdict.” The Queen retorts: “No, no! Sentence first; verdict afterwards.”

Last week, former Secretary of State Hillary Clinton joined the current Secretary of State John Kerry in urging Edward Snowden to come home and face prosecution. Clinton told the Guardian that he should “return knowing he would be held accountable and also able to present a defense.” When asked about whether he could really present a defense, Clinton said:

In any case that I’m aware of as a former lawyer, he has a right to mount a defense. And he certainly has a right to launch both a legal defense and a public defense, which can of course affect the legal defense.

In fact, under current US law, Snowden would face a criminal process with virtually no defense, a pre-ordained outcome and he would be silenced during the process. The law he would be charged under, the Espionage Act, provides for no real defense and the due process afforded would be inadequate, resulting in an unfair trial and a lengthy sentence.

On 14 June, federal prosecutors in Alexandria, VA, filed espionage charges against Edward Snowden. He became the eighth person to be charged under the 1917 Espionage Act during the Obama presidency, more than double all previous presidents combined. Under the three current felony charges, Snowden faces up to 30 years in prison. The prosecutors could add additional charges when Snowden is indicted.

Recent court decisions, including the prosecution of Chelsea Manning, have interpreted the Espionage Act to not require proof that the person accused intended to commit espionage. If the person intended to blow the whistle on illegal activity and was acting in the public interest, as in the case of Snowden and the NSA, that would not be a defense.

Former US intelligence officials had given Snowden an award for integrity in intelligence. A judge on the FISA surveillance court, David Saylor, acknowledged, “The unauthorized disclosure … have engendered considerable public interest and debate…” Even the Director of National Intelligence, James Clapper, acknowledged “I think it’s clear that some of the conversations this has generated, some of the debate, actually needed to happen.” And the reporters who worked with Snowden to publish the documents won the top journalism award, the Pulitzer Prize for Public Service. None of this would be relevant in court under the Espionage Act.

The jury would not be allowed to consider how the leaks were a public service, not espionage. Unlike other criminal laws violation of the Espionage Act is a strict liability law — there is no defense for a whistleblower who has admitted they leaked the documents, i.e. the fact of the leak is espionage even if the intent was to serve the public interest by exposing crimes by the government. As a result, even though Snowden was not a spy committing espionage — in the traditional sense of the term as someone spying for a foreign enemy — the law could still be applied to him.

In addition, rather than due process allowing a legitimate defense as the Constitution requires, his trial would rely on warped procedures that actually prevent the basics of a fair trial. It is very likely that Snowden would be denied bail and held in prison pending trial despite the Constitution providing for a right to bail, especially since he fled the nation and sought political asylum in a foreign country. Being incarcerated pending trial makes mounting a defense very difficult and would preclude communication with the public and the media. Clinton has it backward: unlike his current situation, where Snowden can explain himself and the importance of documents being released, he would be silenced.

As in Manning’s and other national security cases, it is likely that much of the evidence in the trial would be classified as secret which would severely limit the number of people who can see it and prevent the public and the media from seeing all of the evidence, despite the Constitution requiring a public trial. As in Chelsea Manning’s case, large portions of the trial would be out of public view because the government would claim national security secrets would be breached if the trial were completely public. This would keep the public uninformed of the real nature of the facts and in the dark when the inevitable conviction results. Pundits supporting the security state would say: “Well, you can’t criticise the verdict because you do not know what the judge and jury knew; you did not see all the evidence.”

Finally, the trial would be held in federal court in Alexandria, Virginia. This is where the grand jury has been based. The jurisdiction of this court includes the Pentagon, Pentagon City, Crystal City and Rosslyn, areas concentrated with military, security and intelligence contractors as well as people working in the Pentagon and their relatives. The Alexandria federal court is known to be very much a pro-security state court in part because of the make-up of the jury pool. Is this the “impartial jury” the Constitution envisions? It would be impossible for Snowden to get a fair trial.

Why should Snowden submit to a judicial process that would be so unfair and obviously unjust? Surely Clinton, a former lawyer, and Kerry are well aware that Snowden would be prosecuted in a phony Kangaroo court where the deck would be stacked against him, so their comments are false rhetoric, like Kerry calling on Snowden to “man-up,” comments designed to confuse the public. They know that what they are suggesting would result in Snowden facing an unfair prosecution with a pre-ordained conviction resulting in a lengthy sentence.

Should Edward Snowden submit to this mocking of legitimate trials, where there is no real due process or any opportunity to prove his innocence? That is what US security state trials have become. A sham of justice, something that Edward Snowden should never submit to.

Kevin Zeese is an advisory board member of the Courage Foundation. He is an organiser with Popular Resistance, serves as the Attorney General of the Green Shadow Cabinet and on the steering committee of the Chelsea Manning Support Network.

 

Categories
Courage News Edward Snowden Events News

Video: Sarah Harrison gives Global Media Forum keynote address

At last week’s Global Media Forum, WikiLeaks Investigations Editor and Courage Foundation Acting Director Sarah Harrison gave the keynote address, entitled “The Battle Against Unaccountable Power”, which covered whistleblowing, publishing, and press freedom. Harrison stressed the the value of publishing source documents in full and in searchable formats, using transparency to hold the powerful to account and the importance of combating government claims that overstate threats to national security.