Tag: whistleblower protections

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Journalism Legislation News Whistleblowing

Whistleblower protection case reaches US Supreme Court

Updated below

This week, arguments were made in the first federal whistleblower protection case ever to reach the US Supreme Court. The case could set a precedent for protecting whistleblowers across the board — not just for those disclosing sensitive information, but those in every government agency — who face regulation-based retaliations for exposing information in the public interest.

Robert J. Maclean is a former air marshal who blew the whistle on Transportation Security Administration (TSA) cuts to MSNBC in 2003, after seeking internal remedies. In response, the TSA reversed its decision to cut down on air marshals during overnight flights but also fired Maclean several years later for disclosing “Sensitive Security Information,” which isn’t illegal but does breach their internal regulations.

In 2009 Maclean, represented by the Government Accountability Project, challenged his dismissal at the Merit Systems Protection Board, on the grounds that “his disclosure of the text message was protected under the Whistleblower Protection Act of 1989 (WPA), because he ‘reasonably believe[d]’ that the leaked information disclosed ‘a substantial and specific danger to public health or safety.’”

The MSPB sided with the government’s view that the “WPA’s ban on disclosures ‘specifically prohibited by law’ encompassed ‘information that is specifically prohibited from disclosure by a regulation promulgated pursuant to an express legislative directive.’” However, last year a three-judge Federal Circuit panel vacated that ruling on appeal. Now the Department of Homeland Security wants the U.S. Supreme Court to overturn that ruling, claiming it “clears a path for any employee to do what [MacLean] did.”

At the Supreme Court

SCOTUSblog frames the basic question facing the Supreme Court as follows:

For a disclosure to be “specifically prohibited by law,” must an Act of Congress expressly bar that specific disclosure, or is it enough for Congress to generally delegate to an administrative agency the power to bar that specific disclosure?

A win for the Department of Homeland Security would represent a significant weakening of US whistleblower laws that, for non-classified sectors at least, are relatively well regarded.

The court heard oral arguments this week, and journalists are reporting that the government faced tough questioning from the justices, with Maclean’s case appearing to be favoured. The Washington Post writes that “the tone of the questions and comments from the justices hearing his case provided ample reason for this former air marshal to feel good about the first Supreme Court case directly involving a federal whistleblower.”

As the New York Times reports, “Ian H. Gershengorn, a deputy solicitor general, received hostile questions from most of the justices. Justice Antonin Scalia, for instance, was unconvinced by Mr. Gershengorn’s attempt to argue that the word “law” in isolation encompassed some but not all regulations.”

Furthermore,

Some justices wondered how transportation workers could tell what information was too sensitive to be disclosed. Chief Justice John G. Roberts Jr. noted that the government’s own brief had conceded that Mr. MacLean had been free to tell reporters “that federal air marshals will be absent from important flights” but also decline “to specify which flights.”

Justice Sonia Sotomayor told Maclean’s lawyer, “The facts are very much in your favor.”

Whether or when the justices will deliver a ruling remains to be determined, but follow the case’s progress here, and we will report on any updates.

Update: 22 January 2015

On 21 January, the Supreme Court ruled 7-2 in MacLean’s favour.

As SCOTUSblog’s Steve Vladeck writes, “Chief Justice Roberts quickly dispensed with the government’s theory – that the TSA regulations prohibiting unauthorized disclosure of SSI ‘specifically prohibited’ MacLean’s disclosure ‘by law.’”

Vladeck continues, commenting on the implications this case has for future whistleblowers:

the decision in MacLean clarifies that the Whistleblower Protection Act’s exemption for disclosures “specifically prohibited by law” does not apply to disclosures prohibited solely by agency regulations – or even by statutes that command the agency to promulgate non-disclosure regulations. Instead, the statute must itself bar the disclosure for the disclosure to be “specifically prohibited by law.

For now, whistleblower protections have not been weakened, though Chief Justice Roberts has invited Congress or the President, rather than the Court, to address whether to narrow them in national security cases.

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Courage News News

Courage welcomes Slavoj ŽiŞek to our Advisory Board

The Courage Foundation is excited to announce and welcome internationally renowned philosopher and author Slavoj Žižek to our Advisory Board. A senior researcher at the Institute for Sociology and Philosophy at the University of Ljubljana, in Slovenia, and the international director of the Birkbeck Institute for the Humanities, in London, Žižek has written more than eighty books, and he’s written and starred in several documentaries about his own philosophy.

In June 2014, Žižek wrote “How WikiLeaks opened our eyes to the illusion of freedom”, in which he said:

Not only have we learned a lot about the illegal activities of the US and other great powers. Not only have the WikiLeaks revelations put secret services on the defensive and set in motion legislative acts to better control them. WikiLeaks has achieved much more: millions of ordinary people have become aware of the society in which they live. Something that until now we silently tolerated as unproblematic is rendered problematic.

In September 2013, Žižek wrote an op-ed declaring Edward Snowden, Chelsea Manning and Julian Assange “our new heroes” and whistleblowing “an essential art.”

He explains why he supports these truthtellers:

…whistleblowers play a crucial role in keeping the “public reason” alive. Assange, Manning, Snowden, these are our new heroes, exemplary cases of the new ethics that befits our era of digitalised control. They are no longer just whistleblowers who denounce the illegal practices of private companies to the public authorities; they denounce these public authorities themselves when they engage in “private use of reason”.

Žižek says we “need Mannings and Snowdens in China, in Russia, everywhere,” and foresaw the need for an organisation like Courage:

…we need a new international network to organise the protection of whistleblowers and the dissemination of their message. Whistleblowers are our heroes because they prove that if those in power can do it, we can also do it.

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News Whistleblowing

Why the world needs more whistleblowers

This article was first published here by the EFF, with whom we’re collaborating for their week of action around the Necessary and Appropriate Principles

by Sana Saleem, Courage Foundation Advisory Board

During the Stockholm Internet Forum this year, a State Department representative was quick to flaunt reforms put in place by the US Government to ‘counter US mass surveillance programmes.’ However, he was unwilling to respond when faced with the simple question “If you are willing to reform laws and mend things, why not honor the man who triggered it, why not bring Edward Snowden home?”

Too often, whistleblowers aren’t valued for the reforms they instigate. Even as government worldwide are considering new ways to limit mass surveillance, there is scant discussion about the need to honor and protect whisteblowers.

The world needs more whistleblowers because those in positions of power are often expert at hiding corruption from the public. People with integrity and a desire for truth and justice within the political system are often our best hope for bringing light to this corruption.

But as much of the world’s press extensively reports on Wikileaks and the Snowden revelations, we must not dismiss the trepidation that comes with reporting the truth and exposing misuse of power. This trepidation will not dissipate unless there is a collective effort to protect and defend whistleblowers, and reform laws that allow for prosecuting them.

There’s also the pressing need to keep using the information provided by whistleblowers to push for necessary reforms and protections. Today is Day 4 of the Electronic Frontier Foundation (EFF) ‘Necessary and Proportionate’ week of action. The EFF is calling on governments to ensure surveillance law reform is guided by key principles. Today we focus on principle 4: the ‘Integrity of Communications and Systems, Safeguards Against Illegitimate Access, Protection on Whistleblowers, and Right to An Effective Remedy’.

What is meant by the ‘Integrity of Communications and Systems’ in practice? The NSA, or any other government for that matter, should not be able to compel service providers or hardware or software vendors to build surveillance or backdoors into their systems. These companies also should not collect or retain particular information purely for state surveillance purposes.

We now have confirmation that governments are going above and beyond compelling companies to build backdoors into their services. In an article posted on the Intercept this week journalist, documentary maker and Intercept co-founder Laura Poitras documents how the NSA is tapping into Germany’s largest telecommunications providers by accessing the passwords of the system administrators. This revelation was greeted with both shock and deep anger by the telco engineers. Governments need to go beyond merely not forcing companies to comply with backdoor requests, they must put an immediate stop to the accessing whole systems covertly. This point addresses the second element of principle 4, when state authorities illegitimately access personal data.

There is no possibility of protecting against this when it’s happening behind the backs of service providers and hardware and software vendors. This leaves the onus on governments, who, in democratic societies, are accountable to their citizens. The third part of this is an onus on government to protect their whistleblowers. The Obama administration, in what the Nieman Reports has labeled the “Big Chill”, is operating amid unprecedented secrecy—while attacking journalists trying to tell the public what they need to know

Former New York Times executive editor Jill Abramson:

Several reporters who have covered national security in Washington for decades tell me that the environment has never been tougher or information harder to dislodge,

Abramson said

One Times reporter told me the environment in Washington has never been more hostile to reporting.

Protection of whistleblowers is critically important for the protection of a just society. But it’s not just whistleblowers under attack: it is also increasingly difficult to advocate for whistleblowers given the government and the media’s treatment of those who seek to protect whistleblowers.

The Courage Foundation was set up to provide legal and policy support for those who have made a decision to stand up to the abuse of power, risk their career and, in some cases, family life, so that our liberties are protected. It is for this reason that the need to provide stronger protections for whistleblowers, in such a difficult climate, is incredibly important.

Finally, what happens when the state conducts illegal and warrantless surveillance against its citizens? Snowden’s revelations have revealed state intrusion into the lives of hundreds of millions of Americans and citizens around the world, without proof for suspicion. Does the legal system allow us to challenge such surveillance in court? If it does, what would happen to the US government if they were found guilty of illegally surveilling you or me? The Necessary and Proportionate principles argue for civil and criminal penalties imposed on any party responsible for illegal electronic surveillance and those affected by surveillance must have access to legal mechanisms necessary for effective redress.

Tomorrow is Friday, day 5, in which the EFF and its supporters around the world will call on governments to improve safeguards for International Cooperation and Extraterritorial Application of Human Rights Law. The Courage Foundation stands beside the EFF’s campaign and calls on all rights groups and activists seeking to preserve an Internet free from surveillance to support this campaign.

It was little over a year ago when Edward Snowden performed an act of remarkable conscience. Snowden’s actions have empowered a generation of us to stand up to abuses and to do the right thing, even when it’s not convenient. With the increasing power and resources of state surveillance programs, the world is in dire need of more whistleblowers to continue this fight.

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Legislation News Whistleblowing

Yochai Benkler outlines public accountability defence for whistleblowers

Harvard Law Professor Yochai Benkler has published ‘A Public Accountability Defence for National Security Leakers and Whistleblowers,’ highlighting the value that leaks of national security information bring to American democracy and emphasizing the need for a legally permissible defence for those who bring this information to light. He outlines such a defence for what he calls “accountability leaks”, acknowledging that current law defines the term “whistleblower” too narrowly. If Benkler’s proposed defence were practiced today, Chelsea Manning might have avoided such a harsh prison term, and Edward Snowden might feel safe to return home.

Benkler has previously explained how WikiLeaks, as a legitimate journalistic outlet, helped other media outlets perform a vital check on government in ‘A Free Irresponsible Press: WikiLeaks and the Battle for the Soul of the Networked Fourth Estate.’ He expanded on that article while testifying at Chelsea Manning’s trial.

In his new piece, Benkler argues that rather than technological change, a legitimacy crisis has spurred the last decade’s spate of national security leaks documenting systemic abuse:

The post-9/11 War on Terror and its attendant torture, rendition, indefinite detention, civilian collateral damage, and illegal domestic spying created a crisis of conscience for some insiders in the national security establishment. A consideration of the actual cases of
the past decade suggests that it is this loss of legitimacy of decisions that likely underlies the increase in these kinds of systemic leaks.

Although “[c]riminal liability for leaking and publishing classified materials is usually discussed in terms of a conflict between high-level values: security and democracy”, Benkler proposes “that the high-level abstraction obscures the fact that “national security” is, first and foremost, a system of organizations and institutions, subject to all the imperfections and failures of all other organizations.” Therefore, “it would be naïve beyond credulity to believe that the CIA, NSA, FBI, and Pentagon are immune to the failure dynamics that pervade every other large organization.”

Benkler explains how secrecy precludes accountability, rendering whistleblowing essentially inevitable — and necessary to keep massive organizations in check.

Secrecy insulates self-reinforcing internal organizational dynamics from external correction. … Some leaks, however, provide a critical mechanism for piercing the national security system’s echo-chamber, countering self-reinforcing information cascades, groupthink, and cognitive biases that necessarily pervade any closed communications system. It is this type of leak, which exposes and challenges core systemic behaviors, that has increased in this past decade, as it did in the early 1970s. These leaks are primarily driven by conscience, and demand accountability for systemic error, incompetence, or malfeasance. Their critical checking function derives from the fact that conscience is uncorrelated with well-behaved organizational processes. Like an electric fuse, accountability leaks, as we might call them, blow when the internal dynamics of the system reach the breaking point of an individual with knowledge, but without authority. They are therefore hard to predict, and function like surprise inspections that keep a system honest. By doing so, these leaks serve both democracy and security.

Rather than embrace these disclosures as vital and valuable, the government has cracked down harder than ever before on leakers and, to some extent, journalists who publish secret information. Benkler encourages countering this crackdown with a defence that whistleblowers could use in court:

To address this threat, I propose that Congress adopt a new Public Accountability defence as a general criminal defence, on the model of the necessity defence. The defence would be available to individuals who violate a law on the reasonable belief that by doing so they will expose to public scrutiny substantial violations of law or substantial systemic error, incompetence, or malfeasance even where it falls short of formal illegality. It is most important to the leakers themselves, but would also be available to journalists and others who participate in disseminating the leaked information.

He details what this defence would require:

(a) reasonable belief that exposure discloses a substantial violation of law or substantial systemic error, incompetence, or malfeasance,
(b)mitigation to avoid causing imminent, articulable, substantial harm that outweighs the benefit of disclosure, and
(c) communication to a channel likely to result in actual exposure to the public

Perhaps recognizing how the Espionage Act has been interpreted in the US to allow potential for harm to monopolize courtroom debate to the exclusion of discussion of the documents’ value, Benkler notes: “The significance of the disclosed violations is the most important factor, and could dominate the outcome even where other elements, in particular harm mitigation, are weaker.”

Benkler realises that such a defence is just one part of a range of necessary support measures: “full whistleblower protection would require more robust protections to avoid “punishment by process,” most importantly a private right of action against abusive prosecutors and an attenuation of the prosecutors’ qualified immunity.”

In the full article, Benkler explains in more detail how valuable national security leaks are, using bulk data collection since 11 September 2001 as an example. He further details his proposed whistleblower defence, and, finally, recounts 22 instances of leak prosecutions since World War II.

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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.”

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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, JĂŠrĂ´me 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.

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Edward Snowden News

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

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Edward Snowden News

Edward Snowden speaks to the Council of Europe on improving the protection of whistleblowers