Categories
Legislation News Whistleblowing

British MPs say “whistleblowing is crucial” but fail to protect intelligence whistleblowers

One of the UK’s most important parliamentary committees, the cross-party Public Accounts Committee, published a report on 1 August 2014, that found whistleblowers are a “crucial source of intelligence to help government identify wrongdoing.” While identifying the retaliation that UK government whistleblowers face, the Committee failed to mention one significant category of truthtellers altogether.

The Public Accounts Committee investigation was prompted by a separate report, Making a Whistleblowing Policy Work published by the UK’s National Audit Office in March 2014. Since the Public Accounts Committee scrutinises the efficiency of public spending, their hearing on 24 March and this month’s report focused on whistleblowing in the public sector and extended to discuss private and voluntary sectors where public services are outsourced.

The Committee found that the treatment of whistleblowers is often “shocking” and “appalling” and recommended that legal and counselling services be offered. The report acknowledges the bullying, harassment and victimisation many whistleblowers endure, and recognised that it takes “remarkable courage” for employees to come forward and raise concerns.

Furthermore, the report found there had been a “startling disconnect” between policies within government purporting to encourage whistleblowers and what happens in practice, where victimisation of whistleblowers is rarely punished. The Chair of the Committee, Margaret Hodge MP, noted that in a survey of Ministry of Defence employees, “only 40 per cent of respondents felt they would not suffer reprisals if they raised a concern.”

However, the disconnect between whistleblower protections in theory and reality goes even further than the Public Accounts Committee admits as their report overlooks the specific problems with intelligence whistleblowing. As such, its recommendations do little to protect some the most prominent and threatened whistleblowers today.

What protections do whistleblowers have in the UK?

In the UK, employees may blow the whistle outside the workplace and to a prescribed official body if their employer does not have a whistleblowing procedure; if they feel their employer would cover up their disclosure; if they expect unfair retaliation; or if the employer has not taken action after a disclosure has already been made.

The Public Interest Disclosure Act (PIDA, 1998) is designed to protect workers from employer retaliation when an employee blows the whistle in the public interest. However, it does not commit employers to respond effectively to whistleblowers’ disclosures and it does not prevent employers from “blacklisting” the whistleblower, harming future employment prospects. Moreover, this Act does not apply to those who are self-employed or volunteers, or to individuals who work under the Official Secrets Act (1989) in the government, military and intelligence communities.

In the UK, the Official Secrets Act protects official information and state secrets from public disclosure. The Act was revised in 1989 to remove whistleblowers’ right to a public interest defence for unauthorised disclosures. That is, any unauthorised disclosure of information is now automatically a punishable criminal act with no defence – even if the information released is deemed to be of significant public value.

In 2002, former MI5 officer and whistleblower, David Shayler, was prosecuted for informing media of the misconduct and several alleged crimes of the security services, including evidence of complicity in an illegal plot to assassinate Colonel Gaddafi, which failed but resulted in the death of innocent civilians. While it was acknowledged in court that Mr Shayler had no viable ‘official’ avenues to pursue his concerns, that his disclosures were made in the public interest and had put no lives at risk, he was found guilty and imprisoned nonetheless.

As a result of the 1989 Act, there are effectively no whistleblowing protections for employees of the UK’s security services. At present, they even lack freedom of speech within parliament. The parliamentary committee charged with oversight of the intelligence services – the Intelligence and Security Committee (ISC) – exempts witnesses from the ‘absolute privilege’ of being able to give evidence in parliament without incrimination that applies to other parliamentary committees.

“The public interest defence should be reintroduced”

Annie Machon, a former intelligence officer who helped her ex-partner Mr Shayler in blowing the whistle on MI5, and a member of the Courage advisory board, told Courage the report was “welcome, if belated.”

Machon said:

The report doesn’t help whistleblowers who emerge from the military, central government or the intelligence services. These are the very people who are most likely to witness the most heinous state crimes, yet these are also the very people who are automatically criminalised under the draconian terms of the OSA 1989. The Official Secrets Act (1989) in the UK is drafted to stifle whistleblowers rather than protect real secrets.

At the very least the public interest defence should be reintroduced to British secrecy legislation. That is not ideal, as the whistleblower would still have to prove their case in court.

Ideally, there would be a powerful body that such whistleblowers could address their concerns to, in which they had a well-founded expectation that disclosures of criminality would be properly investigated, crimes punished and meaningful reform instituted.”

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
Courage News Edward Snowden News

Courage’s Advisory Board Stands With Snowden

With the official launch of the Courage Foundation and the one-year anniversary of Edward Snowden exposing the truth of covert mass surveillance, the Courage Advisory Board expressed their solidarity with the NSA whistleblower in a wide range of articles, television and radio interviews, press and online videos. The Courage Advisory Board members demonstrated the numerous and varied ways in which people can Stand With Snowden.

Human rights lawyer Renata Avila spoke at the launch of Courage in Berlin: “The key lesson in the case of Mr Snowden is to put back human rights at the core of our priorities.”

John Perry Barlow, co-founder of the Electronic Frontier Foundation, spoke passionately to the Courage launch via video link about his support for Edward Snowden.

John Perry Barlow addressing the Courage launch, Berlin
John Perry Barlow addressing the Courage launch, Berlin

NSA whistleblower Thomas Drake gave several talks in Europe and featured on a panel discussion on the consequences of Snowden’s revelations at Wau Holland Foundation – listen here.

Daniel Ellsberg, the US whistleblower who famously released the Pentagon Papers, spoke at the Berlin launch of Courage via video link and explains why he Stands With Snowden in this video.

MI5 whistleblower Annie Machon has given a number of talks and interviews throughout the anniversary, and has written about “The Year of Edward Snowden”.

Former CIA Analyst, Ray McGovern was interviewed along with Jesselyn Radack on Russia Today marking one year after the first Snowden disclosure – watch here.

Professor of Law at Columbia University and founder of Software Freedom Law Center, Eben Moglen explains in this video for Courage why he Stands With Snowden.

Digital rights activist Andy MĂźller-Maguhn spoke at the Berlin launch of Courage, and explains in this video for Courage why Berlin Stands With Snowden.

Writer and activist Sana Saleem explains in this video for Courage why she Stands With Snowden.

US lawyer and activist Kevin Zeese writes for Op Ed News, “Defending Our ‘Right To Know’ With Courage”.

Find out more about the Courage Advisory Board.

Categories
Courage News

Meet the Courage Advisory Board