Tag: whistleblowers

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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

US government claims to be investigating new whistleblower while leaking to AP

US government officials have told CNN that it believes a new, post-Edward Snowden whistleblower is providing national security information to journalists. The claim comes after the Intercept published secret documents detailing the government’s expansion of the terrorist-tracking system that lands people on the no-fly list. As Jeremy Scahill and Ryan Devereaux report, “the Obama Administration has presided over an unprecedented expansion of the terrorist screening system.”

The Intercept reports that the documents were “obtained from a source in the intelligence community.”

But as the Huffington Post reports, the government leaked the newsworthy information to the Associated Press just before the Intercept was set to publish, “spoiling the scoop” after the Intercept had given government officials time to comment for its forthcoming report.

If the Obama Administration doesn’t mind spilling this information to AP just to reward its more favorable reporting, why did it need to be classified in the first place?

The government will now likely investigate the Intercept’s source with the hopes of silencing future disclosures. Whoever leaked to AP will, of course, face none of the repercussions that whistleblowers like Edward Snowden have experienced.

This is a double standard the Obama Administration has employed for years. Back in March, John “Chris” Inglis leaked major details about the NSA’s data collection capabilities in Iraq, just after retiring, despite the agency’s claims that such disclosures could lead to deaths. Similarly, in 2012, government officials leaked top-secret details to the New York Times about the Obama Administration’s “kill list” for targeted assassinations. When congressmembers suggested the disclosures should be investigated, the White House responded that their claims were “grossly irresponsible.”

In contrast, the Obama Administration has reacted to whistleblowers, particularly within the intelligence community, with an unprecedented string of Espionage Act prosecutions and an Insider Threat programme that aims to identify potential whistleblowers before they act. It is significant that, despite the penalties that could follow, the Intercept‘s source still decided that the information needed to be brought to public attention.

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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

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

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Edward Snowden News

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

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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.

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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.

 

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Courage News Edward Snowden News

Video: Sarah Harrison discusses Courage on Democracy Now!

Courage Foundation Acting Director and WikiLeaks Investigations Editor Sarah Harrison sat down with Democracy Now! to talk about her four months with Edward Snowden after escorting him from Hong Kong to Moscow, why she can’t return to the UK, and why we need the Courage Foundation.

Harrison explained why she would go to such lengths to help Snowden:

A few reasons. One’s sort of a general ethical point that someone had done something so brave, and they should be supported, and I felt an empathy, a natural human empathy, and wished to support. Then there’s also the fact that, I mean, I work for a publishing organization. We obviously rely a lot on sources and believe in source protection. And the last example that the world had of how the U.S. government treats a high-value source is Chelsea Manning, who they put into a cage, was tortured, sentenced to prison for 35 years in the end. And I think it’s important for the world that you can speak the truth, you can blow the whistle, and you don’t have to end up in a cage; there are people that will support you, that there are people that will take risks for you, when you have risked so much, and you can have asylum in a country.

Asked about the importance of the Courage Foundation, she said:

[It’s] for Edward Snowden’s defense and also for future Snowdens. We want to show that there is an organization that will do what we did for Snowden and as much as possible in raising money for legal defense, public advocacy for whistleblowers, so that they know when they—if they come forward, there is a support group there for them.

When asked what future Snowdens should do, Harrison advised:

I think that it is important for them to understand that there are people that will support them. I think they should reach out to organizations like the Courage Foundation that can help them—ideally pre-emptively. It would be better if we didn’t have to save someone with their face all over the front pages of every newspaper in the world. And I think that—I think it’s important that they understand that there is a public desire for the truth and that they will hopefully be seen as heroes.

See the full segment and full transcript of the interview here.

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Edward Snowden News

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