USA must respect international standards on protection of whistleblowers
27 Jun 2013
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ARTICLE 19 reiterates its calls for the US government to respect international human rights standards on the protection of whistleblowers. This is in light of the US authorities’ recent actions against whistleblower Edward Snowden and the ongoing trial of Private Bradley Manning.
We are concerned that the US Government is not only unwilling to protect whistleblowers who reveal serious wrongdoings in the public interest, but instead actually pursues them. As a result, its commitment to openness, freedom of information and democratic governance is open to question.
On 21 June 2013, US Federal prosecutors officially filed a criminal complaint against Edward Snowden. Snowden, a former contractor for the US National Security Agency (NSA), had left the USA for Hong Kong, where he leaked information about the NSA’s secret surveillance program to journalists from The Guardian (UK). The US charged him with theft of government property, unauthorised communication of national defence information and wilful communication of classified communications intelligence information to an unauthorised person. Snowden fled Hong Kong when the US filed a request for his extradition. He is currently in the transit area of Moscow Sheremetyevo airport and awaiting a possible refugee status decision from Ecuador.
The charges against Snowden came in the fourth week of the trial of another whistleblower, Private Bradley Manning. In 2010, Manning leaked classified material to the WikiLeaks website. He was subsequently charged with a number of offences, including failure to obey a lawful order and aiding the enemy.
Recently, there have been further reports of controversial investigations into the activities of reporters at both Associated Press (AP) and Fox News with regard to whistleblowing.
ARTICLE 19 reminds the US authority that whistleblowing (or unauthorised disclosures) may constitute a vital source of information on human rights violations, illegalities and wrongdoings, including when committed by the intelligence and security forces which are, by the very nature of their work, not subjected to the same level of transparency as other national institutions. ARTICLE 19 deeply regrets the US Government’s knee jerk reaction to such disclosures, consisting in bringing criminal charges against the alleged whistleblowers, instead of properly assessing the overall public interest of the disclosed information or addressing the wrongdoings they may have exposed.
Freedom of information and national security under international law
ARTICLE 19 argues that the actions of the US authorities must be considered, first and foremost, on the basis of international standards on the right to freedom of information.
On numerous occasions, we have highlighted that freedom of information is crucial for the protection of human rights and democratic accountability. If people do not know what is happening in their society and if the actions of those who rule them are hidden, then they cannot play a meaningful part in that society.
Under international law, national security is a valid reason for imposing restrictions on freedom of information.[i] However, if the presumption in favour of freedom of expression and access to information is to be respected, the scope of the exception needs to be defined as strictly and as narrowly as possible. To this end, a restriction on the right to free expression can only be justified in the interests of national security if its effect is to "protect a country’s existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force."[ii] Moreover, the presumption in favour of freedom of expression requires governments to demonstrate that the expression will actually harm national security. It is not sufficient for the government to simply assert this.
Furthermore, a state may not categorically deny access to all information related to national security. Instead it must designate in law which specific and narrow categories of information are necessary in order to protect legitimate national security interests.
In addition, national security cannot be used as a justification for preventing disclosures of illegalities or wrongdoing, no matter how embarrassing to the government.[iii]
Whistleblowers’ freedom of expression should therefore be recognised to be worthy of protection, even when legitimate national security considerations are in play.
Protection of whistleblowers
Whistleblowers are typically employees, or other persons involved with an organisation, who have come across information about wrongdoing or danger to the public. These can include information about criminal acts, danger to public health or the environment, misfeasance, or poor decisions. The organisations can be in the public or private sector.
Whistleblowers play an important role in revealing information that has not been made public because other laws have either blocked its disclosure or failed to force its release. This is especially important in the area of intelligence and national security where public disclosure is limited and abuses can remain undetected by standard legal mechanisms.
A growing number of international instruments recognise the importance of whistleblowers and require or encourage states to adopt measures to protect disclosure. This includes disclosures the fields of anti-corruption, freedom of expression and good governance. Whistleblowing is protected as an aspect of freedom of expression under Article 19 of the International Convent on Civil and Political Rights and by a number of regional human rights agreements.
Under the UN 2005 Convention Against Corruption (Article 33), states should undertake appropriate measures to provide protection against “unjustified treatment” of those who disclose information “in good faith and on reasonable grounds.”[iv]
In 2008, the Grand Chamber of the European Court of Human Rights, in Guja v. Moldova, ruled that public employees have a fundamental right of free expression in order to reveal wrongdoing to the public if it is in the public interest and oversight mechanisms are not adequate. This includes the revealing of classified information.[v]
The United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression has recognised numerous times that whistleblowing is an important aspect of the right to freedom of expression.[vi]
The importance of whistleblowers has also been recognised by other UN experts:
- The UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism has stated that whistleblowers are crucial to “break illegitimate rings of secrecy” inside those intelligence and security agencies that are committing human rights violations, and that in these cases, the public interest in disclosure outweighs the public interest in non-disclosure.[vii] He has further stated that whistleblowers should be protected from legal reprisals and disciplinary actions when disclosing unauthorised information and mechanisms for their protection are necessary.[viii]
- The UN Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health has called for all workers to be able to report dangers in the workplace without reprisal.[ix]
- The UN Special Rapporteur on the Situation of Human Rights Defenders has called for all countries to adopt protections of whistleblowers who reveal wrongdoing or illegal activities.[x]
The 2004 Joint Declaration of three special freedom of expression mandates from the UN, Organisation of American States (OAS) and Organisation for Security and Cooperation in Europe (OSCE) stated that “’whistleblowers’ releasing information on violations of the law, on wrongdoing by public bodies, on a serious threat to health, safety or the environment, or on a breach of human rights or humanitarian law should be protected against legal, administrative or employment-related sanctions if they act in ‘good faith.’”[xi]
In The Public’s Right to Know: Principles on Freedom of Information Legislation, developed by ARTICLE 19 in 1999, we stipulated that individuals should be protected from any legal, administrative, or employment-related sanctions for releasing information on wrongdoing. “Wrongdoing” in this context includes: the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, serious maladministration regarding a public body, a serious threat to health, safety or the environment, whether linked to individual wrongdoing or not.[xii]
Such protection should apply even where disclosure would otherwise be in breach of a legal or employment requirement.
These points are also emphasised in the Johannesburg Principles on National Security, Freedom of Expression and Access to Information,[xiii] which state that no person may be punished on national security grounds for disclosure of information if (i) the disclosure does not actually harm and is not likely to harm a legitimate national security interest, or (ii) the public interest in knowing the information outweighs the harm from disclosure.
Similarly, the recently released Tshwane Principles on National Security and the Right to Information[xiv] stipulate that the law should protect from retaliation those disclosing wrongdoing if, inter alia, whistleblower “reasonably believed that there was a significant risk that making the disclosure internally and/or to an independent oversight body would have resulted in the destruction or concealment of evidence, interference with a witness, or retaliation against the person or a third party” and “reasonably believed that the public interest in having the information revealed outweighed any harm to the public interest that would result from disclosure.”
The recent action of the US Government
ARTICLE 19 reiterates that Edward Snowden deserves the full protection of international law as a whistleblower. His disclosures on the PRISM programme have revealed widespread, largely unregulated surveillance by the US government. These surveillance systems have been implemented in secret, with little oversight. They have also been based on questionable interpretations of national and international law which have not been made public.
The type and scale of the PRISM mass surveillance programme has a chilling effect on the right to freedom of expression and information. It violates the right to privacy of millions of people who are not suspected of any crime. The oversight mechanisms - which are intended to ensure that proper safeguards are taken - have proven to be inadequate. Snowden’s disclosures have created a public debate which President Obama has said is necessary.
Since the information about the PRISM programme is clearly in the public interest, the action of the US Government to pursue criminal charges and extradite Edward Snowden amount to a punitive measure. It is not in line with international standards on the protection of whistleblowers. The charges must be dropped immediately.
For the same reasons, ARTICLE 19 also remains concerned about the ongoing trial of Private Bradley Manning in military court and about investigations into American journalists who have published national security material in the public interest.
ARTICLE 19 believes that in order for the public’s faith in democratic governance and the USA’s commitment to human rights to be maintained, the US Government must respect international standards on the protection of whistleblowers. It must therefore, among other things, objectively assess whether the disclosed information meets public interest criteria, and refrain from all retaliation against whistleblowers.
[i] ARTICLE 19, The Johannesburg Principles: National Security, Freedom of Expression and Access to Information, 1996, Principle 1(c)
[ii] Ibid., Principle 2(a)
[iii] Ibid., Principle 2(b)
[iv] UN General Assembly, United Nations Convention Against Corruption, 31 October 2003, A/58/422.
[v] European Court of Human Rights (Grand Chamber), Guja v. Moldova, Application no. 14277/04 of 12 February 2008.
[vi] See, for example UN Committee on Human Rights, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mr. Abid Hussain, submitted in accordance with Commission resolution 1999/36 E/CN.4/2000/63. 18 January 2000; see also the Joint statement of the UN Special Rapporteur on the Protectionand Promotion of the Right to Freedom of Opinion and Expression and Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, 21 June 2013.
[vii] Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, A/HRC/10/3, 4 February 2009, para 61.
[ix] Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover, A/HRC/20/15, 10 April 2012, para 26.
[x] See, for example Report of the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya, Mission to Ireland (19–23 November 2012), A/HRC/22/47/Add.3, 26 February 2013, para 92-95.
[xi] Joint Declaration on access to information and secrecy legislation, 2004.
[xii] ARTICLE 19, The Public's Right to Know: Principles on Freedom of Information Legislation, April 1999.
[xiii] The Johannesburg Principles, op.cit.; the Johannesburg Principles have been endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression in his reports to the United Nations Commission on Human Rights, U.N. Doc. E/CN.4/1996/39 (1996).
[xiv] Global Principles on National Security and the Right to Information (The Tshwane Principles), finalised in Tshwane, South Africa, issued on 12 June 2013.
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