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Whistleblowers fill a gap left by legislatures and the courts. How can they be protected without creating an accountability vacuum, asks Gabrielle Appleby

Gabrielle Appleby 17 January 2014 2590 words

Banners ready for a rally in support of whistblowers in Berlin in July last year.
-lucky cat-/ Flickr

Secrets and Leaks: The Dilemma of State Secrecy
By Rahul Sagar | Princeton University Press | $51.95

IT IS an incontrovertible duty of government to protect its citizens from violence, whatever the source, and it’s generally agreed that this involves a level of secrecy for military, police and intelligence operations. But with secrecy comes the possibility that power will be abused and wrongdoing covered up. The question Rahul Sagar attempts to answer in Secrets and Leaks is whether a credible, effective and legitimate framework can be designed to counter this possibility.

Sagar poses this question in the context of the political and constitutional environment that has prevailed in the United States since 11 September 2001. While Australia’s constitutional framework is quite different, the similarities in national security politics between the two countries over the past dozen years make this book important reading for Australian audiences. Like American whistleblower statutes, Australia’s Public Interest Disclosure Act 2013 has been widely criticised for excluding individuals who release “intelligence information” to an external source.

The bold black and white cover of Secrets and Leaks belies the complexity of the issues Sagar is exploring. But he avoids the absolutist positions that often characterise debates about these issues, and moves quickly past the kind of sloganeering we witnessed in the debate over whether WikiLeaks was guilty of high treason when it released diplomatic cables supplied by Chelsea (Bradley) Manning.

By exposing weaknesses in the traditional accountability mechanisms of Congress and the courts, Sagar shows that leakers and publishers of leaks play a necessary role. Not only is Congress too partisan, but it is also difficult for legislators to use its powers where state secrecy is claimed because they can’t ask for information they don’t know exists. Often, members of Congress also lack the expertise to know which information is important and when secrecy can legitimately be claimed. Congress’s accountability powers may be strong in theory but they are weak in practice.

Although Australia’s system of government gives ultimate power to parliament, which has strong and direct powers to demand government documents and subpoena witnesses, Sagar’s warnings about the limits of the US legislature resonate here. In the past few months alone we have seen national security increasingly invoked to avoid media questions, and even parliamentary questions and requests for documents, about the operation of asylum seeker policy. Both the House of Representatives and the Senate possess the power to order witnesses to attend and answer questions, and to insist that agencies produce documents. In practice, however, parliament doesn’t exercise these powers, most likely because opposition parliamentarians don’t want to make use of a power that might then be used against them when they are in government.

Sagar also doubts the capacity of courts to review government decisions to invoke secrecy. In practice, judges often defer to the government, and this reduces the courts’ capacity to provide robust oversight. If they are required to review secrecy decisions in a closed setting, courts may also be unduly influenced by the very interests they are charged to call to account. Indeed, this danger was recognised in proposed reforms to the US Foreign Intelligence Surveillance Court, or FISA Court, introduced into Congress in 2013. The bills outlined changes to how judges are appointed and proposed that a special advocate be introduced into court proceedings to test the material relied on. According to one of the reform’s sponsors, Senator Richard Blumenthal:

Because it exercises vast invisible power, the FISA Court must be appointed and operate in a way that inspires trust and credibility – now in danger because of recent revelations. Like any court, this one will make better decisions if it hears both sides. The Special Advocate can test, challenge and question the government when significant issues of law are raised, but this advocate for the Constitution will in no way impede the speed and security of the Court’s approval of critical activities protecting our nation – since the lawyers will have security clearance and participate most commonly in the Review court.

Australia’s anti-terror and anti–organised crime laws have increasingly given courts the power to decide, in a closed setting, whether information is “criminal intelligence” and, if so, to allow it to be used in a trial without releasing it to the respondent. With only some of these schemes incorporating a special advocate, the danger is that well-meaning judges, hearing only arguments in favour of secrecy, will become captive to the system of secrecy.

Sagar also argues that judges are out of their depth in making assessments of threats to national security. As evidence, he refers to occasions on which judges and appeal judges have come to different conclusions on security-related issues. I am a bit dubious about Sagar’s reasoning here. I can think of any number of issues on which different judges have come to startlingly different conclusions. The national security test would throw up differences of opinion even within the intelligence community: this is a problem inherent in the test rather than in any lack of expertise among judges. This criticism aside, Sagar makes a number of convincing arguments that both Congress and the courts are capable of providing only weak oversight of the national security apparatus.

IF THE courts and legislature can’t provide comprehensive oversight, then what role should whistleblowers and leakers play? And what protection should the law provide to them? Given his support for leaks as the only credible and effective way of achieving national security accountability, Rahul Sagar’s answers to these questions are somewhat unexpected and unlikely to please would-be whistleblowers.

Sagar accepts that leaking is a decentralised mechanism which avoids the danger of “regulatory capture” – the tendency of regulators to identify with the people or organisation they oversee – and capitalises on the expert capacity of the leakers to evaluate the material concerned. But he holds two major concerns: leakers can be motivated by personal, partisan interests; and the very concept of leaking government secrets undermines the rule of law and democratic values. These concerns lead Sagar to endorse a status quo (in the United States, as in Australia) that denies legal protection for whistleblowers leaking national security–related information.

That’s not to say that Sagar believes unauthorised disclosures ought not to be made. On the contrary, he calls on morally upstanding individuals to come forward – and thereby break the law – when five tests are satisfied. First, the disclosure must reveal “wrongdoing.” Second, that wrongdoing must be established by clear and compelling evidence. Third, the threat to public safety must be assessed as proportionate. Fourth, the least drastic means of disclosure must be undertaken. (For example, an individual must first disclose internally before going to an external body such as the legislature or media.) And finally, the individual must reveal his or her identity to allow the public to judge the individual’s motivations behind the disclosure.

This framework seems contradictory. Sagar acknowledges that leaks are the only effective means of achieving accountability in the national security arena, and he provides a normative justification for those considering blowing the whistle. But he gives leakers no incentive to act. In fact, his fifth element discourages individuals from coming forward. He alludes to the fact that if an individual follows his “best practice” process then there will be a greater likelihood of avoiding prosecution, but this is hardly a rock-solid assurance for individuals who are risking their livelihoods and potentially facing criminal convictions.

Sagar also fails to resolve a number of intractable issues inherent in all questions about justifying whistleblowing. By defining “wrongdoing” as involving actions that not only are illegal but also breach both spirit of the law, for instance, he creates three problems for his argument.

First, there are times when conduct is not illegal, or not clearly illegal, but its disclosure to the public is important for the proper functioning of democracy. The vast National Security Agency, or NSA, data-surveillance program revealed by Edward Snowden may or may not be illegal. If it is legal – if it doesn’t breach the right to be free from unlawful searches and seizures under the fourth amendment to the US Constitution, and if it is authorised by the sweeping powers granted in legislation such as the Patriot Act – then Sagar would say that Snowden’s leak wasn’t justified. But the NSA program is a secret activity authorised (if one accepts the premise of this example) by vague legislation. It is not sufficient to say that the American people have endorsed this activity, because it is unlikely that the empowering legislation made it clear that this type of surveillance could be authorised. The reaction of the public to the leaks, which forced a government review of the program, which in turn questioned its efficacy and necessity, has demonstrated that it is unlikely it would have won public endorsement. In this instance, the leaking of details of conduct that might well be legal performed an important public service by kick-starting a debate about the necessity and extent of government surveillance.

It may be that Sagar wants to restrict whistleblowing to cases of clear illegality because he believes whistleblowers operate in an accountability vacuum. Authorised officers who make decisions about state secrecy are appointed by the government – and thus, indirectly at least, by the public at large – and they are accountable for their decisions to the government. These lines of accountability don’t exist for whistleblowers. As Sagar explains:

We cannot simply assume that officials, reporters and editors, and publishers are more public-spirited than the representatives and senior officials they undercut – after all, subordinate officials can have axes to grind, reporters and editors have careers to make, and publishers have advertising space to sell. As a result, our inability to hold these actors accountable should be seen as reviving, rather than redressing, our fear of the abuse of regulatory power.

But if Sagar is concerned about the subjective nature of national security decisions and whistleblowers’ lack of accountability, his framework does not avoid these problems completely.

My second criticism of Sagar’s definition of wrongdoing is that it is difficult to decide whether conduct breaches the letter and spirit of the law because there is a necessarily subjective aspect to the question. What you believe accords with the spirit of the law may be different from what I believe accords with it. Although we generally agree that governments have a duty to protect the community and individuals within it, views diverge about the extent to which they may pursue this objective at the expense of the right to privacy, the right to a fair trial, the right to free speech and assembly, and other liberties. By asking his whistleblowers to make such a judgement, Sagar substitutes their view of the spirit of the law for that of accountable officials.

Third, Sagar’s definition of wrongdoing requires the leaker to have a sophisticated knowledge of what is already a contentious field of the law. Again, the Snowden leaks are telling here: in the last few weeks we have seen conflicting decisions as to the constitutionality of the US legislation under which the NSA surveillance is authorised.

Sagar accepts some of the difficulties in his model. In particular, he accepts that his framework relies heavily, indeed almost exclusively, on the moral fortitude of the whistleblower. But he makes the important admission that individuals who have the courage to blow the whistle and identify themselves, without legal protection, are more likely to be moral absolutists, convinced of the correctness of their own judgement. These “difficult people,” as Sagar refers to them, are less able “to appreciate the compromises and concessions that are often required to further the cause of morality in politics.” While they may act as vital and uncompromising backstops, there are real dangers for democratic legitimacy and accountability in encouraging their proliferation within government.

SAGAR does acknowledge that leakers might sometimes be justified in claiming anonymity. In cases like these, where the public is unable to judge the motives of the leaker, he would like to see the publishers of the information – the media – filter and assess the leaked material so that partisan leaks are not given a public forum.

But this is to place an important public responsibility in the hands of journalists, editors and publishers, each of whom have interests and agendas that don’t necessarily correlate with the public interest. The media’s capacity to assess the veracity of sources and weigh the public interest is a hotly contested topic. In Australia, the 2012 report of the Independent Inquiry into the Media and Media Regulation, headed by former Federal Court judge Ray Finkelstein QC, proposed a new independent statutory body, the News Media Council, to regulate and enforce journalistic standards in Australia. Finkelstein’s recommendation was greeted with enthusiasm by many experts, but industry figures generally argued that it threatened the freedom of the press. The government failed to implement Finkelstein’s recommendation and, for better or worse, we continue to rely on self-regulation of the press in Australia.

Many Australian jurisdictions have formally recognised the role of the media by introducing legal protection for journalists’ sources in court proceedings. “Shield laws” or “journalistic privilege,” as these protections are known, are now established in six Australian jurisdictions. The Commonwealth laws, introduced in 2011, establish an assumption that journalists’ sources are confidential unless compelling reasons exist for disclosing the identity of the source. Some other jurisdictions provide no presumption in favour of confidentiality; rather, a court must assess each case to determine whether the harm that would be caused by disclosure outweighs the public interest in disclosure.

The Australian debate has also felt the reverberations of the NSA leaks in differences of opinion over whether the Guardian Australia and the ABC exercised proper judgement in publishing information released by Edward Snowden revealing the extent of Australia’s surveillance of the Indonesian government and its officials. The public debate waged between media outlets has highlighted disparate views about the role of the media and the public-interest benefit of knowing the extent of government surveillance.

By proposing a prescriptive but non-legislative framework while otherwise maintaining the status quo, Rahul Sagar leaves the dilemma posed by state secrecy and abuse of power unresolved. This is not so much a criticism of Secrets and Leaks as a reflection of the intractable nature of the issues involved.

Sagar makes a compelling argument that leaking plays an important role in uncovering wrongdoing in an arena in which both Congress and the courts are institutionally inhibited. But I think many readers will have difficulty accepting the lack of protection Sagar would grant to individuals brave enough to leak. Nonetheless, I hope Sagar’s book stimulates conversations about the protection that ought to be afforded to whistleblowers in the national security sphere. It is a conversation that Australia has not yet had, with our national whistleblower protection excising leaks relating to intelligence information. In an environment where government is invoking state secrecy with alarming frequency, we need to acknowledge the part played by leaks and confront the dilemma of how we can encourage and protect leakers without unnecessarily sacrificing national security interests. •