The Center for Constitutional Rights (CCR), a legal organization based in New York which represents WikiLeaks and its editor-in chief Julian Assange, has submitted a report to help United Nations Special Rapporteur David Kaye complete his review on the global issue of whistleblowers and the protection of sources.
Kaye serves as the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. The review addresses how human rights law should protect journalists from having to disclose their sources and how whistleblowers are or are not protected, especially after exposing human rights violations, corruption or other abuses.
Part of the review includes a kind of survey of all governments in the world asking them how journalists are protected from being compelled to reveal sources and how whistleblowers are afforded protections. It also asked for non-governmental organizations to share their views and studies.
CCR is uniquely positioned to provide insights, given that it represents a media organization which has endured an ongoing and unprecedented investigation by the United States government into the publication of documents provided by US military whistleblower Chelsea Manning.
The legal organization asserts in its submission [PDF], “States have an obligation to protect whistleblowers, a vulnerable group that faces systematic stigmatization as a result of exercising fundamental rights to access and obtain information.”
State governments also “have a positive obligation to promote freedom of expression through cyber laws, and must not use technical violations to punish whistleblowers,” CCR argues.
“There is a serious risk that cyber laws will displace secrecy laws as a tool to prosecute whistleblowers on basis of their activities accessing and obtaining information. In the United States, the cases of Chelsea Manning, NSA whistleblower Thomas Drake, and WikiLeaks reveal the application of “unauthorized access” computer laws to punish whistleblowers and publishers.”
The legal organization adds, “Today significant amounts of access to information, particularly by whistleblowers, is enabled by computers. Whistleblowers must not be punished for using a computer to blow the whistle. Cyber laws sanctioning whistleblowers or sources who already have access to computers, purely based on their intent to blow the whistle, raise serious problems for freedom of expression.”
The US government has prosecuted whistleblowers for violating the Espionage Act and disseminating information. In these cases, the intent of the whistleblower does not matter to prosecutors and judges. What matters is that a secrecy agreement was breached.
CCR kept close watch as the court-martial of Manning unfolded, even bringing a lawsuit on behalf of media organizations and journalists (including this one) to force the US military to be more transparent and make court-martial records available to the press. It struggled against secrecy, but one military court denied a request for relief, a military appeals court claimed to lack jurisdiction, and a federal court refused to hear the case. Finally, the military decided to start publishing documents to an online “reading room” that the press and public could access.
As an example of how whistleblowers are vulnerable to abuse, CCR recalls how UN Special Rapporteur on Torture Juan Méndez decided “Manning was subject to cruel, inhuman and degrading treatment while detained in pretrial custody.”
Manning wrote about her time in pretrial detention in Kuwait:
“At the very lowest point, I contemplated castrating myself, and even – in what seemed a pointless and tragicomic exercise, given the physical impossibility of having nothing stable to hang from – contemplated suicide with a tattered blanket, which I tried to choke myself with,” she recounted for The Guardian.
CCR maintains “protection for whistleblowers grows from their systematic reprisal from state actors as result of exercising rights to seek and impart information.”
Numerous governments, including Bolivia, Canada, Ecuador, Nicaragua, Norway, Russia, United States and Venezuela recognize whistleblowers as “vulnerable” persons that should be granted asylum.
The US has offered asylum to whistleblowers from Albania, Armenia, Azerbaijan, Bangladesh, Cameroon, China, Honduras, India, Italy, Philippines, Russia, South Korea, Switzerland, Ukraine, and Uzbekistan. Where issues arise, however, is when the whistleblower is revealing wrongdoing by the US government. Then, officials from the US government will go to extraordinary lengths to stifle, marginalize, suppress, and even punish whistleblowers for their actions.
Such conduct largely explains why National Security Agency whistleblower Edward Snowden opted to flee the US before providing documents to journalists. He has helped radically shift the world’s consciousness of mass surveillance and its impacts, but he currently lives in Russia, one of the few countries willing to challenge the US and grant him asylum.
“Human rights fact-findings sources” and publishers, like WikiLeaks, face persecution for spreading disclosures from whistleblowers. It has been “subject to unrelenting prosecution” for publications, “including under a theory of conspiracy.”
“This raises serious and substantial concerns for the fundamental rights of freedom of expression and association,” CCR argues. WikiLeaks’ position is that it maintains a dropbox for documents and sources submit materials to that dropbox. In other cases, CCR’s experience is that journalists and media outlets will often meet and interact with sources. However, in both situations the US Justice Department insists that the publishers are associated with their sources and are subject to potential legal sanctions as a result.”
For four years now, there has been an investigation, with the US Justice Department seizing data of WikiLeaks staff members’ Google accounts. Manning’s lawyer, David Coombs, and over 250 law professors contend the US Army abused Manning to pressure Manning into turning against Assange so the US could prosecute the WikiLeaks editor-in-chief. But the investigation is not limited to WikiLeaks and includes Jacob Appelbaum, someone associated and targeted because of volunteer work done for the organization.
Internal documents disclosed by Snowden show a broad effort on the part of US security agencies to go after the “human network that supports WikiLeaks.”
“CCR’s experiences representing WikiLeaks and Julian Assange underscore the issue that persecution and censorship of whistleblowers does not stop at the whistleblower, but encompasses human rights monitors and publishers as well. The ultimate effect of these restrictions is an unacceptable chilling on the free flow of information, rights to access information, and freedom of expression.”
The review is expected to be completed and presented to the UN General Assembly in October.