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I fully endorse my colleague’s report on the need to protect whistleblowers as human rights defenders. Democracy needs more of them.
UN: lack of whistleblower protection has ‘chilling’ effect on exposing wrongdoing
by Paul Farrell
People who expose wrongdoing on national security and intelligence issues around the world are often given weak or no protection and are often subject to retaliation, creating a “chilling effect on people speaking out”, a United Nations report has found.
The report by David Kaye, United Nations special rapporteur for freedom of opinion and expression, outlines an extensive case for governments to revise whistleblower laws to enhance public-interest disclosures and the flow of information, protect whistleblowers and ensure the confidentiality of sources for journalists and others who release information into the public domain.
The report makes particular reference to the disclosures of National Security Agency whistleblower Edward Snowden and the “deep and lasting impact” they have had, but notes that whistleblowers in many other areas “struggle for attention and response”.
The report puts forward a series of recommendations for nations to apply generally to whistleblowing and public-interest disclosures. It also makes particular recommendations for a framework for national-security disclosures.
It says national-security institutions enjoy secrecy “as a norm of behaviour” but notes that disclosure offence and secrecy laws “all but eliminate genuine whistle-blower protection”.
The report says, “Institutions that operate in national security, such as institutions of defence, diplomacy, internal security and law enforcement, and intelligence, may have a greater claim not to disclose information than other public bodies, but they have no greater claim to hide instances of wrongdoing or other information where the value of disclosure outweighs the harm to the institution.”
“Yet whistle-blower protections are often weak, or simply unavailable, in the area of national security and intelligence. Those who disclose wrongdoing in national-security institutions are often subject to retaliation, such as job loss or transfer, denial or revocation of security clearance, and investigation, prosecution and harsh sentencing, and they lack redress because of legal doctrines that support an infrastructure of secrecy.”
In an interview with the Guardian, Kaye urged states not to invoke national security to needlessly restrict public-interest disclosures.
“It’s really critical for states not to use the legitimate restrictions of national security to cover and resist the disclosure of all sorts of information that is in the public interest, and doesn’t really harm specific national-security interests,” he said.
He added that the range of offences for disclosures about national security were having a chilling effect on people speaking out in important areas of public debate.
“It’s very common for a state to say this is national security and therefore there’s no right to either publish this information or disclose it. So both the person who discloses the information and the source can be subject to all sorts of sanctions, sometimes criminal,” he said.
“Those are having a real chilling effect, certainly on sources, and probably to a certain extent on the journalists as well.”
Kaye’s report follows a number of high-profile cases against whistleblowers. Chelsea Manning was sentenced to 35 years in prison in the United States for her disclosure of documents to Wikileaks. The Australian government has been considering prosecuting an intelligence whistleblower over disclosures about allegations that Australia spied on East Timor during treaty negotiations.
The report advocates a policy of “full coverage” for whistleblower protection. No national security institution should be exempt from providing whistleblower protection, but rather modify it to take into account the particular nature of the institutions.
This includes providing narrowly and clearly defined prohibited disclosures, including ongoing defence plans, weapons systems, infrastructure and intelligence operations, sources and methods.
In the report, Kaye also outlines the need to limit restrictions to where a specific national-security interest would outweigh the public interest in disclosure.
He highlights areas of concern around the world of whistleblowers and sources facing “disproportionate treatment and retaliation” in other fields. The report refers specifically to the areas of asylum seeker programs, public health, environmental protection and corruption in business.
The special rapporteur urged nations to adopt legal protections for whistleblowers which provides protection broadly, focuses attention on the alleged wrongdoing, and to prevent whistleblowers from facing retaliation from governments.
Those who make public-interest disclosures are still facing harassment and intimidation around the world, and “all too often” the legal protections in place fail to hold accountable those who take action against whistleblowers.