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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.”

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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.”

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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.

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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 Journalism Legislation News

Australia’s new law would criminalise Snowden reporting

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

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

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

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

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

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

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

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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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Courage News Edward Snowden Events News

Video: Sarah Harrison gives Global Media Forum keynote address

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

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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
Categories
Edward Snowden News Whistleblowing

Video: Daniel Ellsberg defends Edward Snowden from John Kerry

Just before the one-year anniversary of the NSA revelations, Pentagon Papers-whistleblower and Courage Advisory Board member Daniel Ellsberg defended Courage beneficiary Edward Snowden on MSNBC from Defense Secretary John Kerry’s claim that he’s “cowardly” for not returning to the United States. Ellsberg explains why Snowden wouldn’t get a fair trial.