“All that is needed for evil to prosper is for people of good will to do nothing”—Edmund Burke The

Whistle No. 78, April 2014

Newsletter of Australia

Article

Clearly, pointing at a number plate is important to me in the future. But also the ultimate form of dobbing. it is about the possibility of saving I told them to settle down, and oneself for more important battles that eventually they took off. I had noted possibly can be won; and the knowl- their licence number. The incident edge of karma that I did not have happened too quickly for me to be before I blew the whistle more than scared and, while I was bigger than the twenty years ago. Twenty years ago, I main hoon, twenty years of advocating thought karma was just buried in

non-violence have taken the fight out Hindu and Buddhist writings. Now I of me. I did not relish a punch-up in a think differently. Sometimes the uni- Wikipedia: Hoon is a term used in Australia and New Zealand to refer to public street at 8.30 at night. verse does the work. anyone who engages in loutish, anti- social behaviours. In particular, it is used to refer to one who drives a car or boat in a manner which is anti-social by the standards of contemporary society, that is, too fast, too noisily or too dangerously.

Why good people

do nothing But what was I to do with the licence Kim Sawyer number? I did nothing. I walked away. I exhibited exactly the same indiffer- THE other night I was taking a walk in ence that I have condemned in others. I our neighbourhood. As I was crossing was indifferent to the hoon and to the a road, a car came hooning around the possibility that he may re-offend or corner and nearly removed me from possibly worse in the future. I began to whistleblowing advocacy. question why. After all, I have spent forty years not being indifferent, helping at road accidents, revealing a neighbour to be a burglar, disciplining Kim Sawyer cheats at universities and, of course, blowing the whistle and advocating for For once I did nothing and perhaps others who blew the whistle. An understood better some of the indiffer- honours student once placed a note in ence I have suffered from. But it still my mailbox advising that another doesn’t excuse it, particularly the student had plagiarised a thesis. He collective indifference we all experi- stated “We knew you would do the ence as whistleblowers. I pointed at the number plate and right thing.” evidently one of the two in the car saw the point. They braked, and proceeded to reverse with the intention of running me down. I removed myself to the footpath, whereupon they jumped out of the car, ran up to me and threatened to break my jaw.

So why was I now indifferent? Of course, indifference is all about risk; in this case the risk that it would be my word against the word of the hoon; the risk that the hoon would target my family and I did not know his network; the risk that by taking on the hoon I would jeopardise other things more Fate of the hoons?

2 The Whistle, #78, April 2014 Media watch

Australian whistleblowers The SEC declined to comment on scheme similar to those in place in the whether any Australian-sourced tip- US. provide tip-offs for US offs led to prosecutions or current scheme amid criticism investigations, and whether the Aus- tralian tips were about US companies of laws at home operating in Australia, Australian- Criticism of laws at home comes as based companies with a US presence, figures reveal dozens of Australians or companies based elsewhere with gave tip-offs to a US scheme dealings in both countries. rewarding whistleblowers Foreign tips accounted for almost with cash incentives. 12 per cent of the 3238 tips the SEC received last year, 149 of which related Ruth Williams to the offshore bribery-tackling Sydney Morning Herald (BusinessDay Foreign Corrupt Practices Act (FCPA). section), 20 January 2014 The FCPA’s most recent scalp was Alcoa, which, along with Australian subsidiary Alumina, last week agreed to pay fines of $US384 million to settle charges that one of its units bribed officials in Bahrain. The response to the US scheme comes amid criticism of Australia’s own whistleblowing laws and how the

Illustration: Simon Bosch corporate regulator, the Australian Securities and Investments Commis- DOZENS of Australians have contacted sion (ASIC), has dealt with whistle- the US securities regulator to report blowers. suspected misconduct after it launched An ongoing Senate inquiry into a scheme rewarding whistleblowers ASIC’s performance was launched last with cash bounties. year after revelations the regulator The US Securities and Exchange took 16 months to act on a 2008 Commission (SEC) has received 39 tip-off alleging serious whistleblower tip-offs from Australia misconduct inside the Commonwealth since late 2011, when laws to “incen- Bank’s financial planning arm. The tivise” those who exposed insider bank later paid $51 million in compen- trading, market manipulation, foreign sation to impacted clients. bribery and other misconduct came Experts are now calling for a major into force. review of Australia’s private sector Figures from the SEC’s Office of whistleblower laws, dubbed “poorly the Whistleblower show that Australia regarded” by the Governance Institute has been one of its top foreign sources of Australia, including whether US- of tip-offs, ranking at least seventh for style rewards should be offered. the past two years. Canada and the UK The Governance Institute has urged were by far the biggest contributors. that a “targeted” review of whistle- The US scheme, introduced under blower laws be launched, and AJ the sweeping Dodd-Frank Wall Street Brown, from Griffith University’s reforms, gives whistleblowers 10 per Centre for Governance and Public cent to 30 per cent of any financial Policy, said it was a “logical” time to penalties paid by those pursued as a review private sector whistleblower result of their tip-offs, as long as the protections, after laws impacting gov- fine levied is at least $US1 million ernment workers and contractors were ($1.13 million). reformed last year. The SEC has so far received more Describing Australia’s whistle- than 6500 tips and paid rewards to six blower laws as “patchy, limited and far whistleblowers under the scheme, from international best practice,” The long-standing US False Claims ranging from $US50,000 to the Professor Brown said a review should Act — a Lincoln-era law beefed up by whopping $US14 million paid to an include a “serious look” at whether the Reagan and Obama administrations unnamed individual in October. Australia should adopt a reward

The Whistle, #74, April 2014 3 — rewards whistleblowers that report ers, including putting in place a central managed whistleblowers, “ASIC’s not companies defrauding the government tracking system for whistleblower in this alone,” pointing to ASIC’s need in a similar way to the SEC-run Dodd- reports, and providing “prompt, clear to liaise on criminal matters with the Frank scheme. and regular” communication with Commonwealth Director of Public The False Claims Act has proved whistleblowers. Prosecutions and the Australian Fed- lucrative for the US government and ASIC’s submission revealed that it eral Police. whistleblowers alike, recouping received 845 “potential whistleblower Attorney-General George Brandis $US3.8 billion in fines and penalties reports” last financial year, 129 of was unavailable for comment. for the US government in 2012–13 as which were referred to ASIC’s com- whistleblowers shared $US354 million pliance, investigation or surveillance in bounties. teams for further action. Independent Senator Nick Xeno- In response to questions from Bills in Congress crack phon and groups including the Austra- BusinessDay, ASIC declined to say down on whistleblowers lian Federal Police Association and the how many of these qualified as Maxwell Abbott Tax Justice Network have called for protected whistleblowers under the posted on PR Watch Australia to consider whistleblower current laws, citing confidentiality 20 December 2013 laws similar to those in place in the requirements. US, arguing they could help tackle Professor Brown, whose submission PRESIDENT Obama was elected on a fraud and better protect and compen- to the inquiry called for wide-scale platform that included promises for sate whistleblowers. reforms, said pressure was building for increased transparency and openness in Senator Xenophon has flagged stronger whistleblower protection laws government. Despite this rhetoric, plans to introduce legislation into the in the private sector, but warned that Obama has prosecuted more whistle- Senate modelled on the US laws, and without a co-ordinated approach, a blowers than any administration in told BusinessDay he was planning to “proliferation” of complex rules could history and overseen the massive release the draft legislation in coming result — adding costs to business and growth of the NSA’s surveillance months. He was preparing to travel to government. apparatus. In November, the Senate (S. the US at his own cost to research its “Everybody knows that [whistle- 1681) and House (H.R. 3381) Intelli- whistleblower laws. blowing] happens … but people are gence Committees each released their BusinessDay revealed last year that just on the edge of acknowledging how own version of the “Intelligence the federal Attorney-General’s de- important it really is,“ he told Busi- Authorization Act for Fiscal Year partment is researching the US laws. nessDay. “People are [afraid] that it’s a 2014.” “We are still considering the merits of bit of a Pandora’s box to facilitate or This was an opportunity for an Australian scheme and will con- encourage whistleblowing.” Congressional leadership to address tinue to work with the private sector on The previous Labor government one of the defining issues of our time this,” a spokesman said this month. launched a review of corporate whis- and either take a stand for increased Whistleblowers, including one of tleblower laws in 2009, with then transparency or continue down an those at the centre of the CBA scandal, corporate law minister Chris Bowen Orwellian path of pervasive secrecy. A have complained that the system in saying the current regime had “funda- review of each chamber’s proposed Australia leaves them vulnerable to mental shortcomings.” He revealed at legislation demonstrates that 1984 is victimisation and financial and emo- the time that just four whistleblowers the future. tional stress, and in the dark about had used the protections to provide progress on their complaints. information to ASIC. Stopping “insider threats” Decade-old laws protect corporate But despite taking submissions, the The bills contain provisions which will whistleblowers who contact ASIC project was abandoned, with the intensify efforts to stop whistleblowers from being sacked and from criminal former government saying last year or “insider threats,” no doubt inspired and civil liability, for example for that the consultations “did not reach by and his release of breach of confidentiality or defama- consensus on the need for or form of sensitive NSA documents. The House tion. But the laws only apply to a further reforms.” version of the funding bill provides narrow group, including current In its submission to the current $75 million of increased funding spe- employees — preventing, for example, Senate inquiry, the Governance Insti- cifically for classified information former employees, business partners tute, formerly Chartered Secretaries protection. According to Tom Devine, and anyone wishing to act anony- Australia, “strongly recommended” a Legal Director of the Government mously from claiming protection. separate review of whistleblowing Accountability Project, “the ’insider ASIC itself, in its submission to the laws “which recognises the involve- threat’ program is a cover for a witch Senate inquiry, called for changes to ment of multiple regulators in the hunt of whistleblowers.” the current laws — including that they process of investigating and prosecut- In a purported effort to demonstrate be extended to cover former employ- ing corporate and private whistle- support for the principles of openness ers, company advisers such as blowing.” and transparency, the House and Sen- accountants and unpaid workers such The Institute’s national policy direc- ate Intelligence Committee bills will as interns and volunteers. It said it had tor Judith Fox said that while there provide protections for “legitimate” reworked its approach to whistleblow- were concerns about how ASIC whistleblowers. But the committees

4 The Whistle, #78, April 2014 believe legitimacy in whistleblowing is result in corrections of mismanage- Pfc. not due to the accuracy of the ment or greater respect for civil In 2010, Pfc. Chelsea Manning information disclosed, how much harm liberties. (formerly known as Bradley Manning) it spares the American people, or how was working as an intelligence analyst much it benefits the democratic Thomas Drake in Iraq. He was tasked with helping the process, but rather whether or not the Former NSA employee Thomas Drake Iraqi police find insurgents attempting information is reported to proper worked on the data collection program to destabilize the fragile government authorities, such as “lawmakers, ThinThread, which was minimally and attack American forces. In the inspectors general and intelligence invasive to American’s privacy and course of his work, he came across community leaders.” was cost efficient. ThinThread was an “anti-Iraqi literature” that resulted in Notably missing from this list is the NSA counter-terrorism program de- the detention of several Iraqis. He media, and history shows that whistle- veloped during the 1990s for surveil- discovered that it was not the work of blowers who do use “proper channels” lance of phone and email that featured terrorists, but a scholarly critique of first are rarely rewarded. automatic encryption mechanisms in the corruption in the Al-Maliki order to protect privacy rights. The government. Media is a legitimate conduit for encryption features would hide sensi- Manning brought his concerns to whistleblowers tive email and phone data from NSA the attention of his superiors, but was What the Intelligence Committees analysts until a threat was identified, at told to keep quiet and help the Iraqi propose to protect in this legislation is which time the information would be police find more people who had a watered-down version of whistle- decrypted. ThinThread was never used committed similar “crimes.” In his blowing. The Government Account- by the NSA because NSA Director chat logs with Adrian Lamo, the ability Project created a composite Gen. Michael V. Hayden chose a more hacker who turned him over to the US definition of whistleblowing based on invasive and expensive program authorities, Manning described his state, federal and international cases, named Trailblazer instead. This pro- concern for innocent Iraqis and his which states that “whistleblowers gram also monitored phone and email frustration with his superiors’ dismis- speak out to parties that can influence data, but did not include the same sive attitudes as a primary motivation and rectify the situation. These parties privacy protection features as Thin- for leaking diplomatic cables to include the media, organizational Thread. Wikileaks. managers, hotlines, or Congressional Alarmed about the damage that members/staff, to name a few.” Trailblazer would do to the 4th Shamai Leibowitz Accountability will not result if Amendment, Drake reported his whistleblowers only have recourse to concerns to various superiors within their superiors within the government. the government, including his direct Providing information to the media superiors at the NSA, the NSA and watchdog groups outside the Inspector General, the Defense De- government bureaucracy must be a partment Inspector General, and both viable option for whistleblowers to the House and Senate Intelligence expose government misconduct. Committees. Regarding Edward Snowden’s Despite these efforts, Drake’s decision to forego internal reporting concerns were ignored and develop- channels and release classified NSA ment of Trailblazer continued for documents directly to the media, the several years, until it was cancelled Government Accountability Project when Hayden admitted that the commented, “By communicating with program was far too expensive. In the press, Snowden used the safest return for doing his duty and channel available to him to inform the protecting the rights of Americans to public of wrongdoing. Nonetheless, be free from unwarranted surveillance, government officials have been critical Drake was marginalized and of him for not using internal agency transferred to work on menial projects. channels — the same channels that At this point, Drake felt he had no have repeatedly failed to protect option but to disclose unclassified whistleblowers from reprisal in the information to Baltimore Sun reporter Also in 2010, Shamai Leibowitz, a past.” Siobhan Gorman regarding the data translator with the FBI, released classi- collection programs. President Obama fied documents to blogger Richard Whistleblowers betrayed by and Attorney General Eric Holder Silverstein. The documents were “legitimate channels” responded by investigating Drake for mostly transcripts of wiretaps from the Looking back to some of the more violations of the Espionage Act, which Israeli Embassy in Washington. notable cases of whistleblowers who was created to prosecute spies, not Leibowitz believed that Israel was too tried to use these “legitimate chan- those who report government miscon- aggressive in its efforts to push the nels,” it becomes apparent that the duct. American government toward military protections for whistleblowers will not action against Iran. He claims he

The Whistle, #78, April 2014 5 brought his concerns to his superiors, indicates that it is time to increase was drowning in data. Drake’s first “who did nothing about them.” protections for whistleblowers — who position at the agency, after a career in need to provide information to the air force , was on a Gina Grey media and watchdog groups as a last project code-named Jackpot. Jackpot After witnessing appalling delinquency resort — not pull the rug out from aimed to analyze the agency’s software at Arlington National Cemetery, under them. to sniff out bugs and inefficiencies. including mishandled remains and One piece of code came to Drake’s mismarked graves, Defense Depart- attention: a data-sifting algorithm ment Contractor Gina Grey registered known as Thinthread. The program her complaints using the proper Crushing Thomas Drake had been built by the agency’s brilliant internal channels. She was fired two Andy Greenberg mathematician Bill Binney to address days after reporting these problems to the Internet’s deluge of digital infor- the commanding general of the Mili- An extract from This Machine Kills mation, and Drake assessed it as a tary District of Washington. Despite Secrets: How WikiLeakers, highly effective, scalable, and elegant findings by the Pentagon Inspector Cypherpunks, and Hactivists Aim to tool, one that might have caught the General that the Army “elected to Free the World’s Information (New needles in the digital haystack that terminate her, rather than make a York: Dutton, 2012), pages 220–225 represented 9/11 if it had only been reasonable effort to address public implemented in time. Editor’s note Andy Greenberg, a jour- affairs policy issues that she raised,” Before September 11, Thinthread nalist, interviewed individuals across her termination was upheld by Army had been dismissed as too invasive of the globe in writing his book This Secretary John McHugh, and she Americans’ privacy. Binney had re- received no compensation. She told the Machine Kills Secrets, an engaging sponded by altering the program to Washington Post’s Dana Milbank, “I account of the movement to enable encrypt all its results so that they went all the way up the channels … access to information whose secrecy is would only be made available with a This is what happens when you do not in the public interest. Greenberg court order. But after 2001, the land- that.” “sought out the history and future of scape had changed: In the bureaucratic an idea: digital, untraceable, anony- handwringing that followed America’s mous leaking.” The book contains worst-ever terrorist attack, the NSA’s revealing discussions of devious plans leadership was looking for a solution in the US to stem the “insider threat,” to match the size of its problems, not a which means the threat to powerhold- single, simple program. It launched a ers from public interest leakers. new project called Trailblazer with nine-figure resources aimed at funding The individuals tasked with rooting out private contractors to build new data- leaks … tend to compare their targets combing tools. to Robert Hanssen and Aldrich Ames, Drake would come to see the deci- spies who sold uncountable secrets to sion to pursue Trailblazer instead of foreign empires for millions of dollars. Thinthread as a corrupt, negligent, and Gina Grey In fact, the archetypal leaker is often wasteful move. “Trailblazer became a more like one NSA [National Security corporate solution,” he said when we In each of these instances, employees Agency] analyst named Thomas met in the Washington, D.C., office of Drake: a conscientious whistleblower within the government saw serious the Government Accountability Pro- repaid only with crushing legal retri- violations of legal codes and basic ject, a whistleblower advocacy group. human rights. They were motivated bution. “We disregarded the traditional not by a desire to destroy the American Drake, a thin and severe-looking strength of the NSA, solving problems government, but by a desire to help it man with a wisp of brown hair, has the with the best minds of the private abide by its own laws. However, the hard stare of someone who has dealt in sector and the government, and instead institutional pressures on their superi- serious affairs and seen them go very turned the entire project over to ors resulted in dismissive attitudes and badly. Drake’s troubles began on his industry. You always have to look at retaliation instead of the investigations first full day of work at the National alternative options. They chose not to.” and remedies that whistleblower pro- Security Agency: September 11, 2001. Over the next years, Trailblazer tection requires. They were only To the NSA, the horrors of that day doled out massive contracts: Hundreds driven to divulge important represented its gaping inadequacies in of millions went to the contractor the new millennium. The agency had information of government misconduct SAIC, which had hired a former NSA intercepted but ignored phrases in the after the “legitimate channels” were director and formerly employed the exhausted. hijackers’ communications including NSA deputy director at the time, what These House and Senate versions of “Tomorrow is zero hour,” and “The Drake describes as “a revolving door the Intelligence Authorization Act are match begins tomorrow.” The digital refined to an art form.” But even as it currently under consideration by each world’s vast and messy flood of overran its budget, Trailblazer ran into chamber. This history of failure to information had diluted those key endless delays and dead ends. By the protect legitimate whistleblowers warnings into insignificance. The NSA time the project was canceled in 2006,

6 The Whistle, #78, April 2014 it had become a $1.2 billion boon- account, the longest the service would “They had turned the U.S. into a doggle. accept. foreign nation electronically.” The Bush administration, which had pleaded with the Times not to publish the story, was humiliated and furious. A Department of Justice witch hunt set out to find the newspaper’s sources. Drake had participated in official protests against Trailblazer and also provided classified information to Congress during its investigation of intelligence failures before September 11. Those two actions were easily enough to pull him into the Justice Department’s dragnet. In November 2007, a team of armed FBI agents arrived at his home. Drake sensed that the agents had no interest in Trailblazer, and he believed

Department of Defense, Office of the that his communications with Gorman Inspector General, report on were both legal and insignificant Trailblazer and Thinthread compared to the leak that had exposed the warrantless wiretapping program. Drake says he could see the So he decided on the spot to come Siobhan Gorman monumental waste in Trailblazer from clean, and spent the day sitting with the start. “It didn’t matter if Thinthread the agents at his kitchen table, de- Even then, Drake eventually decided was better. They just wanted to spend a briefing them on his whistleblowing physical meetings would be more lot of money over many years. activities to avoid any confusion with difficult to eavesdrop, and trusted Corruption had become normalized,” their investigation. He gave the inves- Gorman enough that he believed he says. “It still chaps my lips today to tigators full access to his computers, meeting her in person would be safer. think about it: the amount of money and they carted away boxes full of his “There is no absolute anonymity wasted that never contributed to electronically,” says Drake. “There are papers. Eventually, the FBI would identify national security, and no one has ever means that make it more difficult to been held accountable.” Department of Justice lawyer Thomas identify you. But there’s always a In the early days of the program, Tamm as at least one source for The digital trail.” Drake and three other NSA officials New York Times’ expose. But Tamm Drake says he made certain to never approached one of the agency’s budget was never prosecuted, likely for fear share classified documents in his overseers on the House Intelligence that his trial would expose too many dealings with Gorman, only testifying Committee to alert her to the project’s details of the secret surveillance pro- to Trailblazer’s fiscal waste. In early overblown costs and ineffectiveness. gram that have yet to come to light. 2006, as Trailblazer was collapsing, She passed on the criticisms to others Instead, they indicted Drake. the Sun published an award-winning on the committee and even Supreme Drake was accused of illegally series of articles about the NSA’s Court Justice William Rehnquist, but taking classified papers from his office problems, including one that focused to his home under a section of the no one acted to rein in the program. on Trailblazer. In 2005, Drake faced the last resort Espionage Act, the same spy-hunting But by then, the agency was of so many ignored internal whistle- law used to indict Daniel Ellsberg and concerned about a leak of far larger blowers: digital communi- Bradley Manning. He faced ten felony proportions. A few months before, The cations with the press. He signed up charges and thirty-five years in prison, New York Times had published its for an account with Hushmail, an and his case was pursued for more than story detailing how the NSA had encrypted e-mail service, and, using a two and a half years without a trial. engaged in widespread, illegal spying proxy to disguise his IP address, began The prosecutor in the case argued that on Americans. In the post-9/11 era, the sending messages about Trailblazer’s Drake should be used to “send a mes- privacy concerns that had shelved alleged corruption to Siobhan Gorman, sage to the silent majority of people Thinthread were now an anachronism. a reporter at The Baltimore Sun. His who live by secrecy agreements.” According to the Times’ story, a new pseudonym: “The Shadow Knows.” project was now hoovering up phone Finally, just before his court date in 2011, the prosecution admitted that it With the paranoia of an NSA analyst, conversations and Internet traffic Drake took a certain amount of caution had vastly exaggerated the classifica- without the encryption and court-order in those missives. He installed four tion of the documents Drake had been protections that Thinthread had layers of firewalls on his home holding. Drake pleaded guilty to a implemented: warrantless wiretapping. network and used a 256-character misdemeanor charge that carried a year “Every line was crossed,” says Drake. password on his encrypted e-mail of probation and community service.

The Whistle, #78, April 2014 7 In the sentencing hearing, the judge in aggression toward Iran. Stephen Kim, Don’t shoot the the case called the prosecution’s an arms expert for the State Depart- behavior in exaggerating the charges ment, the military, and Lawrence messenger! against Drake “inappropriate” and Livermore National Lab, was prose- Whistleblowing appears to be on the “unconscionable.” cuted for leaking a report to Fox News increase. But so is the war against By that point, Drake had spent on North Korea’s plans to develop a those who do it. Where will it end, eighty-two thousand dollars in legal nuclear weapon. Ex-CIA officer John asks VANESSA BAIRD. fees, taken a second mortgage on his Kiriakou, who had at times defended New Internationalist, April 2014, pp. house, and been dismissed from his job and criticized the Bush administra- 10–14 both at the NSA and as an instructor at tion’s use of waterboarding, was (The theme of this issue of the monthly the National Defense University. Fac- indicted for revealing the name of two magazine New Internationalist is “The toring in his lost pension after decades of the agency’s interrogators to media war on whistleblowers.” This is the of military service, he estimates his including . As of lead article, slightly edited and financial damages in the millions. His this writing [2012], prosecutions of omitting footnotes.) Pentagon colleagues cut ties with him. Kiriakou, Kim, and Sterling continue He was separated from his wife for a — as does that of Bradley Manning. IS this the age of the whistleblower? year. Even his father, a World War II All totaled, that makes six leakers It would seem so, from the column veteran, struggled to understand his prosecuted under the Espionage Act, inches, air time and cyberspace given actions. Today, he works at a Wash- compared with three such cases in all to Edward Snowden. ington, D.C., Apple store for an hourly previous history — the Obama admini- According to campaigners, the 29- wage. stration may yet pursue a seventh case year-old former systems analyst at the with the prosecution of Julian US (NSA) is Assange. All of which adds up to an close to being the perfect whistle- unlikely track record for a president blower. who came to office spouting promises A quick look at the video clip of unprecedented government trans- interview with Laura Poitras shows parency and proclaiming on his official why. Measured, thoughtful, Snowden website in 2009 that whistleblowing is comes across as your average guy, an act “of courage and patriotism, intelligent but with no political axe to which can sometimes save lives and grind. He just thinks we should know often save taxpayer dollars” and that the secret services are capturing “should be encouraged rather than and storing every phone call we make stifled.” or internet message we send and that Where did that evident hypocrisy our privacy is being violated whole- come from? Obama has been “co- sale. And he thinks we should at least opted” by Washington’s culture of debate whether we are happy with that secrecy, argues , a or not. lawyer at the Government Account- His modest demeanour, his very ability Project who has advised Drake, ordinariness, is in sharp contrast to the and who once served as a whistle- scale and impact of his revelations. blower herself, leaking evidence of The sheer amount of data he was able Justice Department ethics violations to to pass on to select media — some 1.7 in 2002. “He wants to curry million files — beats Chelsea Thomas Drake favor with the national intelligence Manning’s impressive 251,287 diplo-

community, where he’s perceived as matic cables into a hat. “I worked with the system, and I got weak,” she says. Since the advent of Wikileaks, fried,” he says. But Drake, who has tasted secret whistleblowing has gone from being a Thomas Drake’s story is hardly information many times over in his “cottage’ to an “industrialized’ activ- unique. The Obama administration has career, offers an explanation of ity, to use the analogy suggested by pursued more leakers under espionage Obama’s behavior that comes closer to Icelandic information activist Smári charges than all other presidential the speech about Circe’s potion that McCarthy. administrations combined. They in- Daniel Ellsberg once gave to Henry Yet for most who do it, making clude Jeffrey Sterling, an ex-CIA Kissinger. disclosures about wrongdoing is a analyst who gave information to author “He had never had that kind of lonely, limiting and isolating affair. about how the agency had access to secrets before,” says Drake. It’s not like being on a production line botched an attempt to sabotage Iran’s “It was a lot of power. He was with your mates. nuclear development plans. Lawyer enamored with it. And it changed Paradoxically, this also applies to and FBI translator Shamai Leibowitz him.” the most celebrated. Edward Snowden pleaded guilty to leaking classified and Wikileaks founder transcripts of bugged conversations in may have achieved rock-star status but the Israeli embassy to the blog Tikun they are fugitives, effectively exiled. Olam, in the hopes of stemming Israeli

8 The Whistle, #78, April 2014 Chelsea (formerly Bradley) Manning is later, one of the two men who exposed ordered the torture of prisoners at Abu serving 35 years in a military jail. the practice, farmer Jiang Weisuo, was Ghraib. The Obama administration, for all murdered in circumstances that have Murray comments: “Whistleblowers its rhetoric of free speech, has started never been explained. are rare because it is a near suicidal more prosecutions against whistle- vocation and everyone else is too blowers than all presidents combined scared to help. And if your whistle- since 1917. blowing involves the world of war and “War against whistleblowers is a spying, they will try to set you up on toxic trend,” says Jesslyn Radack, false charges … and not just sack you Snowden’s lawyer and a former US but destroy you.” Justice Department whistleblower While public opinion is generally on herself. the side of whistleblowers, govern- ments, institutions and employers are not. When it comes to the really embarrassing and damaging disclo- sures, those in power will do all they can to turn the revealer into the enemy. This has worked on a significant minority of the US public, furious with Manning and Snowden for allegedly putting at risk the security of all Americans. When pressed to say exactly how, the political and secret

Jiang Weisuo service players have failed to come up with one concrete example, resorting More recent is the case of Lawrence to vague comments about “agents in Moepi, a fearless and principled South the field” and the fact that “terrorists African auditor, dubbed the “fraud- will now change their tactics.” sters’ worst nightmare.” Last October, These are high-profile, international as he arrived at his Johannesburg cases. But most whistleblowing office, he was shot and killed by, it is happens at a far more modest, local believed, hired assassins. He had been level. Sometimes the revelations will investigating several suspected cor- reach the local press or emerge during an employment tribunal after the Jesslyn Radack ruption cases, including a notorious discloser has been dismissed or arms deal. demoted. Often media outlets are And not just in the US. Japan recently afraid to investigate the information approved sweeping government whistleblowers bring them, because powers to punish those who would they cannot take the risk of a costly expose awkward truths about the libel suit, or because the story is too country’s nuclear industry, following complicated or time-consuming to the Fukushima disaster. corroborate.

A dangerous vocation Legal protection At the source of most exposures of “Effective whistleblowing arrange- wrongdoing is not a government Lawrence Moepi ments are a key part of good govern- regulator or police investigator or even ance,” says the British organization an investigative journalist, but a Silencing or exacting retribution can Public Concern At Work (PCaW). “A whistleblower. A moral insider who take many forms, violent and direct — healthy and open culture is one where breaks ranks to tell the truth about the or more devious. people are encouraged to speak out, malpractice she or he sees. , a former British confident that they can do so without Once the scandal has broken, such ambassador who exposed how the adverse repercussions, confident that people will be hailed as heroes, British and US secret services were they will be listened to, and confident admired for their integrity by a public supporting torture in Uzbekistan, was that appropriate action will be taken.” grateful that such courageous and subsequently accused of asking for sex If only. In the topsy-turvy world of outspoken people exist. in exchange for visas. It took him 18 whistleblowing it tends to be the But gratitude offers no protection. months to clear his name. person revealing wrongdoing, rather In 2010, millions of Chinese parents Janice Karpinsky, the most senior than the wrong doer, who is punished were horrified to find that their woman in the US army, was arrested and who ends up losing most — children were drinking milk that had and accused of shoplifting the day after typically their job and career, but often become mixed with toxic chemicals at revealing that Donald Rumsfeld fresh milk collection points. Two years

The Whistle, #78, April 2014 9 also their relationship, their home, can claim, in their defence, that they even their liberty. were acting in the “public interest.” Far from being rebels and outsiders, This is not widely available elsewhere. most disclosers are diligent, conscien- tious, somewhat obsessive insiders, “I now recommend leaking” who think their employers will be Considerable energy goes into lobby- grateful for the information given and ing for laws and practices to protect will naturally want to do the right properly those who speak out and thing. many whistleblower organizations An increasing number of countries believe this is the way forward. have laws on their statute books — Brian Martin is a veteran cam- with more in the pipeline — specifi- paigner with Whistleblowers Australia cally to protect whistleblowers from who has talked with hundreds of retaliation, harassment or victimiza- disclosers and written a highly tion. But most laws are severely regarded practical guide on the topic. limited in their scope and effective- And he has come to the conclusion ness. For example, in Canada and that the intense focus on legal protec- Smári McCarthy Australia, the law does not apply to tion is misguided. people working in the private sector, “It seldom works and can even Now he is focusing more on tech- while New Zealand’s law is limited to make whistleblowers more vulnerable; nology. There are two laws, he says, government agencies. they think they are protected but that governments have to obey: In Canada, a fierce libel regime aren’t.” “physics and economics.” He plans to contributes to creating possibly the Instead, he now encourages poten- use the former to make mass surveil- most hostile environment in the tial disclosers to develop their skills lance — whereby intelligence services English-speaking world. Britain is one and understanding so that they can be gather everybody’s private internet and of the few European countries with a more effective in bringing about phone communication — too expen- law that applies across both private and change. The most effective strategies, sive to do. public sectors, but in practice British he says, involve taking messages to a He has calculated that the total whistleblowers do not fare too well wider audience, through mass media, budget of the “” — that is the either and libel laws that favour the social media or direct communication. communications snooping services of rich have a chilling effect. US law is “I now recommend leaking — the US, Britain, Australia, Canada and patchy and contradictory, extremely anonymous whistleblowing — when- New Zealand combined — is $120 hostile to those who speak out in some ever possible.” billion a year. With that they can scoop areas, but enabling large financial This may not come naturally to up the data of 2.5 billion internet users, rewards for those who disclose fraud most disclosers, who are conscientious making the cost per person per day a against the government. employees who believe the system mere 13 cents. While whistleblowers may need to works. They will try official channels “My five-year plan is to increase be compensated for loss of earnings, first and are reluctant to contact the that cost to $10,000 per person per the awarding of massive cash settle- media or action groups. day. The services would have to be a ments is controversial. Cathy James of But, Martin points out, whistleblow- lot more selective and do their job the British PCaW sees “moral hazard” ers are “hardly ever effective in properly.” in a US-style system. In her view: challenging the problems they attempt How to do it? Encryption — the “Whistleblowing should be seen as a to expose. This sounds pessimistic. types that hackers have developed and very positive issue, everyone should be Whistleblowers are courageous but which the NSA has still, as far as we encouraged to protect the public they need a lot of help to be more know, not managed to crack. “I use interest. I don’t want to live in a effective. Probably the best scenario is encryption a lot,” says McCarthy. “But society where people do the right a link-up between a network of leakers we need to make it easier to use and things because they think they are and well-connected action groups.” available to everyone.” going to benefit.” Smári McCarthy is another activist This will help disclosers too, he Going public on confidential infor- who is moving away from the legal says, because if everybody’s privacy is mation may put disclosers on the protection route. For three years he, improved then so is that of whistle- wrong side of the law, especially if and others in his native Iceland, blowers. Naturally, their leaks need to they have smuggled out documents or worked to create a model legal envi- be accurate, need to pass the “public broken official secrecy arrangements. ronment for leakers, whistleblowers interest” test and not gratuitously This has led to absurd examples, like and journalists. They were making violate personal privacy. that of the banker Bradley Birkenfeld good headway until April 2013 when a Snowden and others have revealed who exposed $780 million tax fraud at rightwing coalition government came the extent to which free speech and UBS, receiving a Swiss prison to power and stalled reform. civil liberties are being violated by the sentence for breaking confidentiality. state, and not just in countries like Under British law, disclosers who Russia or China. break the law to reveal wrongdoing

10 The Whistle, #78, April 2014 More and more information is being Investment Partnership (TTIP) — classified as top secret and we have no between the US and the EU — would way of debating whether or not it have a similar impact, making existing should be. The recent Stasi-style national public services such as health destruction of laptops at and education even more vulnerable to newspaper, under the supervision of aggressive action by big private Britain’s GCHQ, should serve as a corporations from outside. Those try- warning. As they say, democracy dies ing to save Britain’s national health behind closed doors — and now too in service from the clutches of private US smashed hard-drives in newspaper medical companies know how bad this offices. could be. Those genuinely engaged in disclosing in the public interest need protection all along the communication line — from sources and whistleblow- ers, through campaigners and journal- ists, to print or web publishers and distributors. In 2011, under a social- democrat government, Iceland fol- lowed Council of Europe recommen- Merrell Williams dations and made it illegal for Such trade agreements are made at a journalists to expose their sources. In Whistleblowers act as the guardians of high level, hatched between a nexus of Britain a journalist can be jailed for not morality, but too often they are solitary powerful corporations, governments doing so. It is even worse in the US: martyrs to democracy. As Wikileaks that do their bidding and secret , a young freelancer, is revealed towards the end of last year, services that we now know (again, facing 105 years in prison in connec- the world is currently facing a major thanks to Snowden) really do use tion with the posting of information multilateral threat to democracy. It is public money to spy on behalf of big that hackers obtained from Statfor, a coming not from religious fanatics in business. private intelligence company with turbans but from fundamentalists in The only thing that will counteract close ties to the federal government. suits. the undemocratic and self-serving The acronyms TTP and TTIP are power of this nexus is a growing A better world enough to lead even the most commit- network from below that involves At its heart, whistleblowing is about ted insomniac to the land of nod. But whistleblowers, civil society activists the desire for truth to be known, for stay awake, please! This is important. and hactivists, journalists and citizens things to be done properly, and for the These are US-led international trade who care. world to be made a better place. deals being negotiated — in conditions Only if we have access to informa- A place where big business does not of unprecedented secrecy — that will tion do we have democracy — and cheat or harm citizens for profit; where give corporations the power to trump today the most relevant information hospitals and care homes look after national sovereignty and the interests often comes from whistleblowers. frail and elderly people and banks do of billions of people. Only if we can participate, is that not rob their customers. Where democracy real — which is why we politicians see office as public service need to use the information to take rather than self-service, priests respect action and stop sleepwalking into the bodily integrity of children in their totalitarianism, be it that of a corrupt charge and military personnel do not institution or a world order devised by go on shooting sprees for the hell of it. and for a global, corporate élite. Sometimes exposure yields tangible Then the tremendous risks that results and the information revealed whistleblowers take, and the sacrifices improves or even saves lives. In 1994, they make, will not be in vain. US paralegal Merrell Williams leaked internal memos from Brown &

Williamson Tobacco company that Two secret drafts of the TransPacific showed that the company knew it was Partnership (TPP), obtained by lying when it claimed that cigarettes Wikileaks, on intellectual property and were not harmful, that nicotine was not the environment show the deals would addictive and that it did not market to trample over individual rights and free children. expression and give powerful His action fuelled lawsuits that companies the right to challenge resulted in an industry pay-out of domestic laws regulating, for example, billions of dollars to pay smokers’ resource extraction in Peru or medical bills. Australia. The Transatlantic Trade and

The Whistle, #78, April 2014 11 Whistleblowers Australia contacts What’s in The Whistle

Postal address PO Box U129, Wollongong NSW 2500 Years ago, there was not all that much easily available Website http://www.whistleblowers.org.au/ information about whistleblowing. In the 1990s, one of the

New South Wales functions of The Whistle’s “media watch” section was “Caring & sharing” meetings We listen to your story, collecting stories from various sources and making them provide feedback and possibly guidance for your next few available to readers. “Media watch” has continued to be a steps. Held by arrangement at 7.00pm on the 2nd and 4th key part of each issue of The Whistle. Now, though, the Tuesday nights of each month, Presbyterian Church challenge is to select items from the very large quantity of (Crypt), 7-A Campbell Street, Balmain 2041. Ring material being produced. beforehand to arrange a meeting. In editing The Whistle, I rely heavily on input from others. Contact Cynthia Kardell, phone 02 9484 6895, Associate editor Don Eldridge regularly sends me items [email protected] from newspapers and magazines, and others do so from time to time. The challenge then is to pick out the stories Wollongong contact Brian Martin, phone 02 4221 3763. most likely to be of interest to our readers. This includes Website http://www.bmartin.cc/dissent/ members of Whistleblowers Australia, who receive printed copies, and many others, most of whom read the online Queensland contacts Feliks Perera, phone 07 5448 8218, version. Some readers go through back issues looking for [email protected]; Greg McMahon, phone 07 items of interest, or are led to particular issues through web 3378 7232, [email protected] searches.

Tasmania Whistleblowers Tasmania contact, Isla Some introductory articles are worthwhile, but it’s also MacGregor, phone 03 6239 1054, [email protected] valuable to have in-depth stories for readers who know a lot about whistleblowing. However, some articles are too Schools and teachers contact Robina Cosser, specialised. They might report the latest stage of an [email protected] ongoing saga and not provide enough background Whistle information for someone new to the case. Editor: Brian Martin, [email protected] I especially appreciate articles and letters written for The Phones 02 4221 3763, 02 4228 7860 Whistle, often giving personal perspectives. These are what Address: PO Box U129, Wollongong NSW 2500 gives the newsletter its distinctive orientation, built around Associate editor: Don Eldridge the experiences of those who have blown the whistle or are Thanks to Cynthia Kardell for proofreading. closely involved with whistleblowing. So if you have something to share, send it along! Brian Martin

Whistleblowers Australia membership

Membership of WBA involves an annual fee of $25, payable to Whistleblowers Australia. Membership includes an annual subscription to The Whistle, and members receive discounts to seminars, invitations to briefings/ discussion groups, plus input into policy and submissions. To subscribe to The Whistle but not join WBA, the annual subscription fee is $25. The activities of Whistleblowers Australia depend entirely on voluntary work by members and supporters. We value your ideas, time, expertise and involvement. Whistleblowers Australia is funded almost entirely from membership fees, donations and bequests.

Send memberships and subscriptions to Feliks Perera, National Treasurer, 1/5 Wayne Ave, Marcoola Qld 4564. Phone 07 5448 8218, [email protected]

12 The Whistle, #78, April 2014