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Whistleblowing in the Security Sector

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Whistleblowing in the Security Sector Blowing in the Wind? Whistleblowing in the Security Sector Benjamin S. Buckland and Aidan Wills (DCAF) Working Draft (September 2012) Not for citation without prior permission 1 Contents Contents ....................................................................................................................................................................... 2 List of Acronyms ...................................................................................................................................................... 5 1. Introduction .......................................................................................................................................................... 8 1.1 Scope and definitions ................................................................................................................................. 9 1.2 Context and relevance ............................................................................................................................. 12 1.2.1 Timeliness ............................................................................................................................................ 12 1.2.2 The special case of the security sector ..................................................................................... 15 1.2.3 Whistleblowing and accountability ........................................................................................... 17 1.2.4 Whistleblowing and human rights ............................................................................................ 20 1.3 The legal framework ................................................................................................................................ 21 1.4 Structure of the study .............................................................................................................................. 24 2. Obstacles to whistleblowing ........................................................................................................................ 25 2.1 Inadequate legal framework ................................................................................................................. 25 2.2 Adverse consequences ............................................................................................................................ 26 2.2.1 Prosecution.......................................................................................................................................... 26 2.2.2 Retaliation ............................................................................................................................................ 28 2.2.3 Lack of faith in procedures and mechanisms ........................................................................ 29 2.2.4 Increasing reach and strength of state secrecy laws .......................................................... 30 2.2.5 Judicial deference to the executive on national security. ................................................. 30 2.3 Practical impediments ............................................................................................................................ 31 2.4 Cultural aversion to whistleblowers ................................................................................................. 33 3. Coverage of protected disclosure legislation ........................................................................................ 35 3.1 Types of wrongdoing ............................................................................................................................... 35 3.2 Classification and confidentiality........................................................................................................ 39 2 3.3 Motive ............................................................................................................................................................ 40 3.4 Proof ............................................................................................................................................................... 42 3.5 Who may make a disclosure? ............................................................................................................... 43 3.6 An obligation to make a disclosure? .................................................................................................. 45 4. Internal disclosures ......................................................................................................................................... 47 5. Inspectors general ............................................................................................................................................ 50 6. Disclosures to independent oversight bodies ....................................................................................... 54 6.1 The importance of external channels for making disclosures ................................................ 56 6.2 Disclosures to parliament ...................................................................................................................... 58 6.3 Disclosures to specialised non-parliamentary oversight bodies ........................................... 62 6.4 Accessing independent oversight bodies ........................................................................................ 65 7. Reprisals ............................................................................................................................................................... 70 8. Protections........................................................................................................................................................... 77 8.1 Legal protections against reprisals .................................................................................................... 77 8.2 Confidentiality ............................................................................................................................................ 79 8.3 Penalties for retaliation against whistleblowers ......................................................................... 80 8.4 Capacity of internal and independent bodies to provide protection ................................... 82 8.5 Burden of proof regarding retaliation .............................................................................................. 82 9. Disclosures to the media and public at large ......................................................................................... 84 9.1 The media as a (more effective) last resort? .................................................................................. 85 9.2 Disclosures to the media outside the security sector ................................................................. 86 9.3 Disclosures to the media by security sector personnel ............................................................. 88 10. Criminal law defences for unauthorised disclosures to the media and public at large .... 91 10.1 Necessity and other defences ............................................................................................................ 92 10.2 Public interest defence ......................................................................................................................... 94 10.2.1 Why the public interest defence matters ............................................................................. 95 3 10.2.2 The components of a public interest defence ..................................................................... 96 10.2.3 Arguments against the public interest defence .............................................................. 103 11. Conclusions .................................................................................................................................................... 109 Annex 1: Selected Whistleblowing Cases ................................................................................................. 113 Bibliography ......................................................................................................................................................... 119 4 List of Acronyms ACLU – American Civil Liberties Union AFP – Australian Federal Police CIA – Central Intelligence Agency CSE – Communications Security Establishment CSRA – Civil Service Reform Act CTIVD – Dutch Review Committee on the Intelligence and Security Services DCAF – Geneva Centre for the Democratic Control of Armed Forces ECHR – European Convention on Human Rights ECtHR – European Court of Human Rights ETA - Euskadi Ta Askatasuna EU – European Union FAIR – Federal Accountability Initiative for Reform FBI – Federal Bureau of Intelligence HMSO – Her Majesty's Stationery Office ICCPR – International Covenant on Civil and Political Rights ICWPA – Intelligence Community Whistleblower Protection Act IG – Inspector General IGIS – Inspector General of Intelligence and Security 5 IPCC – Independent Police Complaints Commission ISC – Intelligence and Security Committee KIA – Kosovo Intelligence Agency LPSK – Witness and Victim Protection Agency MP – Member of Parliament MSPB – Merit Systems Protection Board NSA – National Security Agency NSW – New South Wales OSA – Official Secrets Act OSC – Office of Special Counsel OSF-JI – Open Society Foundations, Justice Initiative PID – Public Interest Defence PIDA – Public Interest Disclosure Act PACE – Parliamentary Assembly of the Council of Europe PSDPA – Public Servants Disclosure Protection Act POGO – Project on Government Oversight
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