That, ultimately, is the critical flaw or design defect intentionally integrated into every system, in both politics and computing: the people who create the rules have no incentive to act against themselves.
— Edward Snowden, Permanent Record
In recent weeks, two stories involving whistleblowers exposing alleged human rights abuses have stirred global controversy. First is CNN’s report on Israel’s Sde Teiman detention center and military base, which houses around 70 Palestinian detainees. The accounts of three Israeli whistleblowers and more than a dozen former Palestinian detainees allege severe mistreatment, including physical and psychological torture and wanton medical malpractice. As one whistleblower describes, “They stripped them down of anything that resembles human beings.” Abuses, another claims, “were not done to gather intelligence. They were done out of revenge.”
Second is the sentencing of ex-military lawyer David McBridge—who leaked the notorious 2017 ‘Afghan Files’, detailing potential war crimes—to nearly 6 years in jail by an Australian court. The Afghan Files allegedly reveal 39 unlawful killings, including of unarmed men and children, by Australian Defense Forces (ADF).
In both cases, the whistleblowers leaked information about alarming human rights abuses directly to the media, bypassing internal reporting channels and legal procedures. In choosing the extra-legal route, the Israeli whistleblowers and Mr. McBridge risked serious legal repercussions and employment retaliations, notwithstanding community and public ostracization, which manifested as a prison sentence for the latter. Justifying the sentencing of Mr. McBridge, Australian Supreme Court Justice David Mossop pronounced, “There is no aspect of duty that allows the accused to act in the public interest contrary to a lawful order.” The contention that whistleblowers should only exercise their duty within the bounds of the law—however extraordinary the moral cause—seems to be the default government position whenever an especially brazen whistleblower ignites public scandal. Commenting on Edward Snowden, who was charged with espionage for leaking massive NSA-run surveillance programs in 2013, then-President Obama remarked, “If any individual who objects to government policy can take it in their own hands to publicly disclose classified information, then we will never be able to keep our people safe or conduct foreign policy.”
Of course, the threats whistleblower vigilantism poses to national security and the integrity of intelligence systems should not be dismissed. Secrecy is necessary for defense and intelligence strategies to succeed in both staving off adversarial threats and protecting the security of personnel. But, the leap of faith in government self-discipline has its limits. The glaring question remains: when the government is both the perpetrator and judge of its own misconduct, with strong incentives to keep abuses concealed, what measures should a potential whistleblower take? Without extra-legal disclosures, serious government-perpetrated human rights violations may never reach public awareness. Although they may contravene domestic law, these disclosures are crucial in upholding international law and generating responses, as evinced by the influence of Snowden’s leaks in prompting a UN investigation into surveillance programs.
Since the world’s first whistleblower law in the US, which was enacted in defense of military whistleblowers, protections for those in both the private and public sectors have undergone significant enhancements, both domestically and abroad. This is except for classes of individuals who share similar circumstances and moral causes as those who inspired the original whistleblower law in the first place—namely those in intelligence and military. It should be expected that governments would not be especially keen on equipping whistleblowers with the means to expose government wrongdoing. But, with the advent of international bodies and laws—whose raison d’être is to uphold universal principle against the excesses of state self-interest—there is now a more appropriate home for military and intelligence whistleblowers beyond the very government they are blowing the whistle on.
The Origins of Whistleblowing—A Revolutionary Act
In 1777, merely a year into the Revolutionary War, ten USS Warren sailors and marines held a clandestine meeting, the outcome of which would test the nascent republic’s loyalty to principle against tyranny. In the meeting, the perturbed revolutionaries traded concerns about the behavior of the first U.S. naval commander, Commodore Esek Hopkins. Hopkins, they alleged, subjected British prisoners to grueling torture. Despite incurring major risks of retaliation from the powerful Commodore and without any whistleblower law to ground legal recourse, the men agreed to voice their concerns to the government. Before the Second Continental Congress, Marine Captain John Grannis ‘blew the whistle’ (in modern terms) on their commander’s misconduct, condemning his behavior as “inhuman and barbarous.” Amidst a longshot war, the Congress decided to affirm the principles of the Revolutionary cause despite potentially jeopardizing its wartime interests, moving to suspend Commodore Hopkins for his abuses. Further, on July 30, 1778, prior to the Constitution, the Congress unanimously passed what is possibly the world’s first whistleblower law:
That it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.
However, perhaps most stunning is the government’s decision to, in effect, expose itself. Convinced that the whistleblowers’ act constituted not betrayal but exceptional loyalty to the public interest, the Congress proceeded to release their petitions about Commodore Hopkins, further risking international embarrassment, vulnerability, and wartime interests. Transparency and public trust, in their decision-calculus, took precedence.
Global Precedent
In backing the whistleblowers, the Continental Congress not only set a formative legal precedent for both public and private whistleblower protections, but engendered a spirit of prizing whistleblowers as champions of the public interest rather than degrading them as ‘squealers’ or ‘snitches’. In enacting the 1778 Whistleblower Protection Act, just two years after the Declaration of Independence and still a decade before the Constitution was ratified, the Continental Congress not only laid the ground for a series of landmark whistleblower acts —such as the 1863 False Claims Act (‘Lincoln’s Law’), the 2002 Sarbanes-Oxley Act, and the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act—but it also set a global precedent.
Some legal protections for whistleblowers now exist, at least nominally, in 170 nations and self-governing territories. The stronger examples include Korea, Australia, Japan, and South Africa, many of which are either directly or indirectly inspired by the United States’ unusually robust array of whistleblower laws. At the international level, laws like the United Nations’ Convention Against Corruption (2003) and the OECD’s Anti-Bribery Convention (1999) have proven critical in setting global standards, encouraging member states to implement more effective and comprehensive whistleblower protections. Although there is no universally accepted framework for whistleblower law—let alone a common definition for ‘whistleblower’ across countries—most laws concern preventing and punishing retaliation perpetrated by employers. A select few countries also offer monetary incentives and confidential reporting channels.
Global Failure
Despite the growing global consensus supporting stronger protections for whistleblowers, one alarming yet persistent gap remains—protections and effective reporting channels for whistleblowers seeking to expose government-perpetrated military and intelligence abuses. The precarious situation that this class of whistleblowers face has stoked considerable controversy, particularly in the US, which is at the same time regarded as the vanguard of whistleblower protection.
Daniel Ellsberg, who leaked the Pentagon Papers in 1971, was charged with violating the Espionage Act, carrying a potential sentence of 117 years. Due to government mishandling and an unusually strong defense, Mr. Ellsberg’s charges were dismissed. Chelsea Manning, who released thousands of incriminating military misconduct to WikiLeaks in 2010, was similarly convicted of espionage and served 7 years until her sentence was commuted by President Obama. Wary of a legacy of unfriendly behavior to those before him, Edward Snowden fled to Russia after being charged with two counts of espionage. He has lived there since, unable to return for fear of having his prosecution resumed. Notable crackdowns and retaliations against military and intelligence whistleblowers have occurred beyond the US in countries like the UK, Thailand, and, as mentioned earlier, Australia.
President Obama defended the charges of espionage against Mr. Snowden by citing his Presidential Policy Directive 19 (PPD-19), which supposedly carved out more protections for intelligence community whistleblowers that Mr. Snowden should have utilized. However, it is likely that Mr. Snowden would have not enjoyed much protection—much less his objective of informing the public about mass privacy infringements—under the directive due to severe faults ripe for circumvention. Opposing the directive, the National Whistleblower Center points to the fact, among others, that the American government grants the responsibility of protecting the whistleblower to the agency (e.g., the NSA) heads, the same authorities who have incentives to retaliate against the whistleblower. Further, even if Snowden did wish to legally file allegations against the government, the nature of the classified information means that he would have scant evidence on which to stand.
Although the exact character of regulatory frameworks, such as sanctioned internal reporting methods and anti-retaliation measures, vary across countries, the primary issue is the same. For instances of private sector misconduct and instances of defrauding the government, the government has clear incentives to encourage and protect whistleblowers and launch investigations. In fact, the whistleblower programs housed by the IRS, SEC, and DOJ in the US and some of their counterparts in other countries are unusually robust. They not only offer whistleblowers protection through anonymous reporting and complimentary anti-retaliation laws, but they incentivize whistleblowers to come forward by providing monetary rewards, recognizing that agencies perform their jobs better when more whistleblowers submit useful information. In contrast, the government allowing individuals to blow the whistle on its own abuses and pursuing investigations yields no self-serving benefit, only potentially jeopardizing security strategy and risking international embarrassment.
Whistleblowing, Internationalized
Given governments’ incentives not to protect government-abuse and national security whistleblowers but to silence them, international bodies are better positioned to accept claims of government misconduct and offer protections. For example, the Office of the United Nations High Commissioner for Human Rights (OHCHR), through HRC Resolution 5/1 passed in 2007, offers an online portal for individuals to confidentially submit complaints of human rights violations by any UN member. These complaints are initially screened and, if determined to be admissible, relayed to the accused state for its response. The case is then passed to two Working Groups and, in turn, to the Human Rights Council (HRC), all behind closed doors to prevent leaks and public embarrassment. The Human Rights Council may continue to keep the case under review, make the case public, or recommend the OHCHR to facilitate cooperation and advise the accused country.
According to the Council, up to 15,000 complaints are submitted each with a 95-100 percent state response rate. The OHCHR claims that this procedure has had a marked influence on causing positive actions across the globe, including releasing political detainees, granting reparations to victims, and aligning policies with international law. Although, it does not provide data substantiating this, nor does it shed light on how it protects whistleblowers from persecution beyond confidentiality.
This alternative, international-level route for whistleblowing yields clear benefits to all parties. The whistleblower is able to report abuses without disclosing their identity, protecting themselves from retaliation by their government—which is almost always forfeited when reporting to the media—thereby escaping the dreaded predicament of choosing between honoring their moral principles and losing their career or worse. On the other hand, the accused government gains the assurance of a fairer and comprehensive review process before the option of publicization becomes available, which is not the case when an individual resorts to disclosing to the media. Further, by being involved in the process, the accused nation can work with the Office to ensure unnecessary security details are not revealed if the allegations are made public.
However, there are two clear issues that fail to even meet the standard of most state frameworks and to address the important concern of public knowledge. Firstly, HRC Resolution 5/1 does not include any anti-retaliation measures or assign special protections to whistleblowers to ensure their safety and entitled rights upon being discovered. Without anti-retaliation measures, such as sanctions, there is little to deter a state from threatening or punishing—physically, financially, or otherwise—a whistleblower and from preventing further cooperation. Without effective retaliation prevention and punishment, whistleblowers would still face grave risk in reporting to OHCHR.
A possible antidote to this challenge would be amending the 1951 Convention and Protocol Relating to the Status of Refugees to extend refugee status and mandatory protections for whistleblowers facing retaliation by a State for reporting to the OHCHR. If granted refugee status, whistleblowers who have fled their home country out of fear of persecution, such as Edward Snowden, would enjoy the right to non-refoulement (the right to not be deported to a country that may persecute them). Backed by international lawyers, the NGO Blueprint for Free Speech has advocated for this amendment since 2017. Adding protection measures would decrease perceived risks of submitting a complaint, increase investigations of potential human rights violations, and, in turn, spur international law abidance and deter violations.
The second, larger limitation of the OHCHR complaint procedure is that it does not guarantee, even with agreed-upon abuses, public disclosure. Although an option, the OHCHR notes that it has made cases public in two instances: one against Kyrgyzstan in 2006 and Eritrea in 2012. Not guaranteeing public disclosure of human rights abuses, let alone only pursuing it in two instances, parts with the basic right to “receive and impart information … through any media and regardless of frontiers”, as per Article 19 of the UN Universal Declaration of Human Rights.
It also betrays the important precedent set by the first whistleblower proceedings in the U.S., where the Continental Congress voluntarily published potentially damaging petitions in the interest of democracy. For whistleblowers motivated by the necessity to publicly reveal information, such as Mr. Snowden, the closed-door nature of the OHCHR reporting process may do little to dissuade them from reporting to the media. Although some degree of secrecy is warranted to ensure the integrity of a state’s security, excessive opacity—especially in cases of rampant rights violations—erodes public trust and lays the ground for democratic backsliding. It also risks global scandals that jeopardize state legitimacy, as in the case of the NSA surveillance programs.
The OHCHR complaint procedure provides an admirable alternative to internal, state-sanctioned channels for whistleblowers who wish to expose flagrant government wrongdoing. That said, it evidently lacks the robustness, both in protection and in effect, that many of the otherwise vigilante-whistleblowers may desire in their pursuit of defending the public interest. Moreover, with scant information online advertising it as a desirable avenue and touting its potency, it may do little to catch the eyes of its target audience. In order for the program to maximize its potential as an avenue for government-abuse whistleblowers, it is imperative that the OHCHR devote more effort to publicizing the program and provide more resources and protections for those considering blowing the whistle.
In any case, one thing is clear: governments are not the appropriate agent to protect this precarious class of intelligence and military whistleblowers nor to ensure their own accountability. It is naive to expect modern states to abide by an honor system, like the Second Congress two-and-a-half centuries ago. States are now bound by international law, which military and intelligence abuses often violate. As such, whistleblowers of these violations should have accessible and strongly protected channels at the international level.
Image source: Tingey Law Firm on Unsplash
