Tag: whistleblower

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Luxleaks News

Alleged LuxLeaks source Antoine Deltour comes forward, begins trial

Antoine Deltour a 28-year-old French national and former PricewaterhouseCoopers employee, has come forward as one of the alleged sources of the International Consortium of Investigative Journalists’ (ICIJ) LuxLeaks release. Deltour went public in an interview with French newspaper Liberation on Sunday.

Deltour joined PricewaterhouseCoopers as an auditor in 2008, aged 22, and resigned two years later. Before leaving, he came across evidence of complex tax arrangements PwC negotiated for clients with the approval of Luxembourg’s authorities and made copies of them. As Deltour explained to Liberation:

I copied training documents, but while searching the PwC database, I also came across these famous tax rulings. Without any particular intention or precise plan, I copied these also because I was appalled by their content.

According to a new website set up by his support committee, Deltour was contacted by a journalist in summer 2011 and the copied documents formed the basis for several broadcasts on French television the following spring. PwC made a criminal complaint in June 2012, following the broadcast.

Over two years later, Deltour is one of the alleged sources of the ICIJ’s LuxLeaks. A first tranche of documents, released on 6 November, concerned tax avoidance negotiated by PwC with a second release this month broadened the scope of the investigation to the rest of the big four accountancy firms.

LuxLeaks follows another large tax-related investigation by the ICIJ, Offshore Leaks, which was based on a 260 GB hard drive posted anonymously to a journalist. Many of these records are now available online.

Tax avoidance has become a highly controversial issue in the EU, where people are facing consecutive years of reduced public spending under austerity budgets. LuxLeaks has proven to be particularly contentious in Brussels as the new head of the European Commission, Jean Claude Junker, was the prime minister of Luxembourg at the time critical elements in its tax regime were enacted. Junker now faces a vote of no-confidence and an inquiry into his involvement in systematic tax avoidance.

Deltour says he has not been involved with ICIJ directly and, in his Liberation interview, points out that some of the LuxLeaks documents are dated later than 2010.

I’m just part of a broader movement. In LuxLeaks 1 mentions several internal documents subsequent to my departure from PWC. I am not alone. In LuxLeaks 2 it comes to records controlled by the other members of the big four [of the financial audit]: Deloitte, KPMG, Ernst & Young.

It  is unfair that Luxembourg is the only country pilloried and that only  one audit firm is singled out because these practices are systemic. I do  not like the term tax optimization, it’s a euphemism for aggressive tax planning implemented by some states and complex strategies practiced at industrial scale by some firms. Regulation will always lag behind financial engineering.

Charged with theft, professional secrecy violations, trade sercecy violations and illegal acquisition of data, Deltour appeared before a judge on 12 December. Supporters are raising awareness about Deltour’s case. A petition for Deltour, who has garnered the support of a French coalition of NGOs Platform on Tax Havens and French judge Eva Joly, among others, has more than 2,000 signatures. As the supportive blog notes, Deltour could face prison time and a heavy fine.

We will report on further developments in Deltour’s trial as it unfolds.

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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

Press release: Known Unknowns Fund launched to protect alleged sources under investigation

  • New fund will be the first to aid suspected sources before they face charges
  • An alleged source under investigation by the US government has already reached out to Courage for assistance
  • Courage Advisory Board members Daniel Ellsberg and Thomas Drake underline the importance of the new fund
  • Donations can be made online at https://staging.couragefound.org/known-unknowns-fund/#donate

Courage, the international organisation dedicated to the protection of truthtellers, today announces the launch of the Known Unknowns Fund to support suspected sources under investigation. The Fund is the first specifically designed to assist individuals who are alleged to have disclosed information of significant public value but do not yet face formal charges. The name of the fund, a play on former US Defense Secretary Donald Rumsfeld’s notorious defence of inadequate sourcing, acknowledges that many who find themselves in this situation will not be in a position to confirm their identity to the public.

Daniel Ellsberg, the Pentagon Papers whistleblower and a member of Courage’s Advisory Board said:

In the US, the administration of injustice against whistleblowers under President Obama serves to intimidate potential truth-tellers by the prospect of ruinous legal costs defending themselves under investigation, even if no indictment follows. The Known Unknowns Fund will benefit not only those who may earn suspicion of telling wrongly-withheld truths; it also serves the public interest in being so informed.

By providing support at the pre-indictment stage, Courage hopes to limit the number of cases that proceed to prosecution. The organisation has already received a request for assistance for an alleged source who is currently under investigation by the US government.

Courage’s Acting Director Sarah Harrison explained:

Courage has decided to launch the Known Unknowns Fund because there is a real and pressing need that no one else is in a position to fulfill. We have already received a request regarding someone who needs our help, as they are under investigation by the US government for being the alleged source of some important stories in the US media regarding botched counter-terrorism programmes. Up to this point, Courage has advocated for whistleblowers the public already knows about and who have been wrongly retaliated against. Alleged sources who haven’t yet been charged are in a different situation and a really difficult one – they are often in desperate need of financial and other support, but requesting it publicly can harm their legal situation. Even speaking about an investigation in public can put an individual at risk of additional prosecution. Courage’s Known Unknowns Fund aims to help those who can’t ask openly. We want to make sure that the public has an opportunity to support and protect alleged sources ahead of time, so they can get legal advice and prepare a legal team before potential charges are brought.

The experience of whistleblowers shows a clear need for this new initiative. NSA whistleblower Thomas Drake was charged under the 1917 Espionage Act and faced 35 years in prison. By the time the US government’s case fell apart, Drake had spent several years under investigation and another awaiting trial. At the sentencing hearing Judge Richard D. Bennett said that the conduct of the investigation against Drake had been “unconscionable”, likening the experience to “four years of hell.”

Thomas Drake, who is also a member of the Courage Advisory Board, said:

During my pre-trial criminal proceedings, I was advised by private counsel that my criminal defense prior to public trial would cost at least a million dollars and perhaps as much as three million. I had to prepare a legal defense from my own resources against a government criminal investigation and prosecution which had no such limitations. I went virtually bankrupt, emptied all my liquid assets, took out a second mortgage on my residence and went into severe debt paying for my private attorney over two years. I ended up declared indigent before the Court and represented for criminal defense by public defenders and by attorney Jesselyn Radack, who represented me in the court of pubic opinion as well as whistleblower advocacy and media outreach. She was my voice when I had none. If something like the Known Unknowns Fund had existed before I was indicted, I’d have been in a much better position to defend myself.

Donations to the Known Unknowns Fund can be made at https://staging.couragefound.org/known-unknowns-fund/#donate

___

The following people are available for interview and comment by emailing courage.press@couragefound.org

Daniel Ellsberg, Courage Advisory Board Member and whistleblower
Thomas Drake, Courage Advisory Board Member and whistleblower
Ray McGovern, Courage Advisory Board Member, veteran intelligence analyst and whistleblower champion
Sarah Harrison, Courage Acting Director

Categories
News Whistleblowing

Germany’s whistleblower protection among the worst in the G20, says new report

A new report on the state of whistleblower protection in some of the world’s richest countries has found that Germany ranks alongside Argentina, Brazil, India, Indonesia, Italy, Mexico, Russia, Saudi Arabia and Turkey as one of the countries that does the least to ensure that whistleblowers can speak out without fear of retribution.

The report, which was co-authored by researchers from Australian NGO Blueprint for Free Speech, Transparency International Australia, Griffith University and Melbourne University, compares G20 countries’ legal frameworks with the commitments they signed up to in the G20’s 2013-14 Anti-Corruption Action Plan, where they agreed:

to ensure that those reporting on corruption, including journalists, can exercise their function without fear of any harassment or threat or of private or government legal action for reporting in good faith

The report sets out 14 separate criteria based on the G20 agreement, other international agreements on whistleblower protection and best practice documents drawn up by intergovernmental organisations and NGOs.

What the report found

The report found that, while there had been real improvement over the past decade, serious shortcomings remained in the legal systems of most G20 countries – and those shortcomings affected most of the areas potential whistleblowers would be concerned about. Provisions for whistleblowers to remain anonymous when using internal channels to express their concerns were identified as a particular weakness across the G20, as were the rules around disclosure to third parties – including, where appropriate, the media.

The provision of independent bodies and mechanisms to deal with whistleblower complaints and to report on how legal protections were being used were also seen as poor across the countries surveyed. In addition, the authors note that where regulations exist, they tend to apply to the public sector only – governments have been much less active in ensuring that private sector whistleblowers can speak out in confidence.

Legal regimes, of course, only tell part of the story. As the report’s authors point out, the formal presence of adequate whistleblower protection laws does not in itself tell you whether they are implemented consistently, or whether “cultural or other norms [in a particular country] indirectly assist in practical protection of whistleblowers.”

As we’ve noted previously, legal frameworks are a particularly poor guide to what might happen in difficult cases, especially those where disclosures have a national security dimension. Some G20 countries, like the UK and Canada, explicitly exclude military and intelligence personnel from their ‘whistleblower’ definition and all the protections in law that derive from that (the report calls this “a glaring gap”). Others, like the United States, have a legislative framework that is well rated – and in theory extends to its intelligence agencies – but in practice apply very different rules, and extreme anti-whistleblower measures, when classified information is involved.

Why did Germany score so badly?

Germany’s poor score in the report might come as a surprise to some, given the country’s renowned worker representation laws and positive reaction to Edward Snowden’s revelations. But in July 2011, the European Court of Human Rights ruled that Germany’s protection of its own whistleblowers was inadequate.

Brigitte Heinisch und das Urteil des EGMR
The case was brought by Brigitte Heinisch, a nurse who brought the systematic mistreatment of elderly patients to the attention of the healthcare company she worked for. When appeals to management proved ineffective, Heinisch brought legal action against her employers and wrote a leaflet to explain what was happening in the case. The European Court ruled that the public interest in Heinisch’s disclosures outweighed her employers’ right to protect their business reputation and that her summary dismissal had been “disproportionately severe.” She was later awarded compensation by a German court.

In fact, the German legal code only offers limited protection for public officials who are reporting suspicions of corruption – and this came only after a change of the law in 2009. Germany’s employment courts offer limited redress to those who report wrongdoing in good faith, but there remains a strong bias against anonymous reporting and public disclosure. None of the legislative proposals made since the 2011 judgment have attracted the support necessary to secure a change in the law.

Read the full report here

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Courage News News

Courage joins ‘Necessary and Appropriate Principles’ week

np-logo-2The Courage Foundation is proud to announce our support and involvement with the Electronic Frontier Foundation’s Necessary and Proportionate Week of Action, leading up to the first year anniversary of the 13 Necessary and Proportionate Principles, which were first launched at the 24th Session of the United Nations Human Rights Council in Geneva on 20 September 2013. The full text of the principles is here.

The EFF has a series of articles and campaigns for various subcategories of the week, on secrecy, transparency, public oversight, combating surveillance and whistleblower protections. Join discussion of the week of action on Twitter with the hashtag #privacyisaright

The Courage Foundation is the predominant partner on today’s topic: ‘Integrity of Communications and Systems, Protection on Whistleblowers, Safeguards Against Illegitimate Access and Right to An Effective Remedy,’ advancing the tenet that “strong protection should be afforded to whistleblowers who expose surveillance activities that threaten human rights.” The United States government has cracked down on those who expose wrongdoing more than ever under the Obama Administration, with Chelsea Manning and Jeremy Hammond in prison, Thomas Drake fired and prosecuted under the Espionage Act, and Edward Snowden in Russian asylum, all for revealing important truths in the public interest about what their government does in secret and against our will.

Courage steps in to protect these conscientious people who deserve our support. We fund legal defense teams for truthtellers, keep their cases in the public light, and advocate for the public’s right to know and whistleblower protections generally. Stay tuned for Courage Advisory Board member Sana Saleem’s article: “Why the World Needs More Whistleblowers.”

Categories
News Whistleblowing

Obama: “If you blow the whistle, you should be thanked”

“If you blow the whistle, you should be thanked. You should be protected for doing the right thing. You shouldn’t be ignored and you certainly shouldn’t be punished.”

These were the surprising words of President Obama on 7 August 2014, as he signed a $16 billion bill to improve veterans’ access to medical care. The bill followed a report from the Department for Veterans’ Affairs, which confirmed many of the complaints whistleblowers had been making – waiting lists were indeed being manipulated to hide how long veterans were having to wait for medical appointments.

The White House again praised whistleblowers this week, responding to a letter sent by the Society of Professional Journalists and 37 other journalism and open government groups urging the Obama Administration to be more transparent. The letter from White House Press Secretary Josh Earnest claims that the Administration has “made important progress” in “protecting whistleblowers” and “disclosing previously classified information.” Earnest cites the 2012 Whistleblower Protection Enhancement Act as evidence that the Administration has “fought for and won better protections for whistleblowers.”

obama-meme

But the Whistleblower Protection Enhancement Act that the White House claims offers better protections for whistleblowers is limited. While the Act was recognised as a step forward by whistleblower organisations like the Government Accountability Project (GAP) and the National Whistleblowers Centre, GAP also recognised its limitations. Blowing the whistle within official channels does not guarantee public disclosure of the information and does little to facilitate what Yochai Benkler has called “accountability leaks… that challenge systemic practices.”

At any rate, it is not the Whistleblower Protection Enhancement Act for which this Presidency is likely to be remembered but the intelligence whistleblowers who have faced severe reprisals on its watch. The Obama Administration, famously, has initiated eight prosecutions under the Espionage Act –  more uses of the 1917 Act than all previous US presidents combined. Former NSA employees Thomas Drake and Edward Snowden, who blew the whistle on mass surveillance; former US Army intelligence analyst Chelsea Manning, who blew the whistle on US torture and war crimes in Iraq and Afghanistan; and former CIA official John Kiriakou, who blew the whistle on US torture, are among the intelligence whistleblowers who have been charged with the Espionage Act during Obama’s Administration.

Ray McGovern, a former CIA senior analyst, founder of whistleblower group Sam Adams Associates for Integrity in Intelligence and co-founder of Veteran Intelligence Professionals for Sanity (VIPS), responded to Obama’s comments saying, “President Obama is giving hypocrisy a bad name.”

SONY DSC

McGovern, who is also a member of Courage’s advisory board, said:

Obama’s record speaks for itself; he has prosecuted more than twice as many whistleblowers – for espionage, no less – than all former presidents combined. As for those whose crimes have been whistle-blown upon, like those who did the torture, Obama continues to call them ‘patriots’. Former CIA operative John Kiriakou, who opposed torture, sits in a Pennsylvania prison because he revealed the name of one of the torturers.

Too bad Kafka is dead.

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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.

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.

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Courage News News

Courage: showing solidarity with whistleblowers and defending our right to know

In an interview by US lawyer and Courage Advisory Board member Kevin Zeese for Truthout, Acting Director of Courage Sarah Harrison talks about Courage, why the organisation was started and how it is working to protect whistleblowers.

As well as protecting individual truthtellers, Courage also defends the right to know broadly by “fighting for policy and legal changes to give whistleblowers the protections they deserve”, Harrison explained.

The ethos of Courage is to reflect the courage shown by the truthtellers it serves to protect, showing support and solidarity in spite of risks:

I think it was important to show future whistleblowers that if you come forward and expose wrongdoing, that there are people who will stand with you and help you, no matter what the cost… It is very important to show a sense of solidarity around whistleblowers.

Harrison explained how Courage was borne from her experience of helping NSA whistleblower Edward Snowden to safety and achieving his asylum in Russia:

The Courage Foundation was born from the idea that whistleblowers need protection from prosecution. When we first started to help Edward Snowden, there were many other NGOs and organizations around the world that should have been able to help him; but, when it comes to high risk people with huge persecution from places like the United States, the reality is that to move quickly and robustly to provide the support they need is actually very difficult. So after we helped Snowden, we realized that there was a need for an organization that was able to do this for future Snowdens as well.

Campaigning for asylum and international protections for truthtellers is set to be some of Courage’s core work. Harrison explained why:

It is unrealistic to expect that a country is suddenly going to put in place laws that are really going to protect someone like Snowden who comes forward with such high value classified information. It is better to focus on agreements and conventions between countries that prevent extradition so there is the ability to support a whistleblower from another country somewhere else.

Mr Snowden also reiterated the importance of protections for truthtellers at an international level in his recent testimony to the Council of Europe, 24 June 2014. Referencing the problems he faced in securing a safe haven after disclosing national intelligence of global importance, he said:

it’s critical that we need international mechanisms in these cases to distinguish between the legality of the act on national terms and the propriety of the act on global terms.

In many cases those protections are not provided on a uniform national basis and that raises the question of how our global society can provide an independent, international mechanism for arbitration and redress on matters that are of international public importance

A full transcript of Mr Snowden’s testimony can be found here.

As Mr Snowden’s temporary asylum period in Russia ends, Harrison described it as a ‘critical’ time for people to take action. She invited supporters to take part in the ‘Stand With Snowden’ campaign, recently launched by Courage, to show solidarity with Mr Snowden, and to pressure governments around the world to act and help Snowden to a safe haven.

A full transcript of Kevin Zeese and Margaret Flowers’ interview of Sarah Harrison can be found at Truthout.

Take Action – #StandWithSnowden

Upload a photo of yourself or your friends, family, and colleagues holding a sign like the one Sarah Harrison is holding below and the many more on our campaign page here. Make sure you mention where you’re from: Courage will formally approach the governments of those countries where the public support for Snowden is strongest to ask them to act.

 

#StandWithSnowden
#StandWithSnowden