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Damien Kiberd: Are whistleblowers saints? The ethics can be complicated.

As Ireland has discovered following the row over the cancellation of penalty points for motoring offences, the ethics of whistleblowing can be most complicated, writes Damien Kiberd.

Damien Kiberd

JOURNALISTS HAVE ALWAYS regarded whistleblowers as saints. Now some politicians have fallen into the very same trap.

Journalists love whistleblowers because, by definition, they are willing to give you information that is private. But they learn, to their cost, that there are good whistleblowers and bad whistleblowers.

The information that is given to you by bad whistleblowers may prove to be no better than a heap of junk. Such people may be acting as agents provocateurs, may crave publicity for themselves or may simply be motivated by malice.

Good whistleblowers sometimes do need to have saintly qualities. They may suffer for their courage and their commitment to truth. They may be physically threatened, they may lose their careers, they may even be attacked in parts of the media.

The ethics of whistleblowing are most complicated, as Ireland has discovered following the row over the cancellation of penalty points for motoring offences.

Garda Commissioner visibly upset over whistleblowing

The Garda Commissioner Martin Callinan became visibly upset under interrogation by an Oireachtas Committee. First, he seemed agitated that there should actually be any whistleblowers at all within his own force. Secondly, he felt that if such whistleblowers did exist it was entirely improper for them to lay their allegations before an Oireachtas committee.

The Commissioner seemed to be saying that all allegations of wrongdoing should in the first instance be taken to him. The implication is that he would then decide the appropriate course of action.

That the Commissioner should object to a probe by an Oireachtas Committee is extraordinary. What better way is there for the people whom he serves to assert the primacy of our elected parliament within our democratic system?

Unlike Ireland, the US has specific whistleblower legislation

In the United States this problem is dealt with under the Whistleblower Protection Act (1989) which specifically provides for individuals to disclose information about any ‘serious or flagrant problem, abuse or violation of law’ to a congressional intelligence committee. The whistleblower must first bring the allegations to either the attorney general or the National Security Agency’s inspector general.

Our own Commissioner’s hard line got a mixed response from the media. In one sense, of course, he is correct. In order to maintain morale within the force he must defend the reputation and record of his officers until it is demonstrated that it would be wrong to do so in a specific case or cases. The Commissioner could not take disciplinary action against a serving officer merely on foot of an allegation. Otherwise, morale would collapse.

The job of An Garda Siochana is enormously difficult. It would be perverse if men and women, who must daily prove the guilt or innocence of others beyond reasonable doubt, should themselves be damaged simply on the basis of unproven allegations.

But the idea that Commissioner should vet all complaints is just wrong. The first principle of international law is that no man should act as a judge in his own cause. No Garda Commissioner can act as judge and jury in relation to complaints made against his force. It is absolutely vital that these complaints should be probed by an independent entity such as the office of the Garda ombudsman or indeed an Oireachtas committee. Or by both.

The issue of whether the probe should be public or private is a separate matter.

Questions over high-profile whistleblowers

In the United States Bradley (now Chelsea) Manning is doing 35 years in the slammer. A soldier with the rank of private, who took an oath of secrecy, she dumped three-quarters of a million documents into the public arena without any regard for the interests or safety of anybody named in those documents.

Some of her disclosures are clearly in the public interest: they consist of video evidence of murderous attacks on civilians and journalists by the US forces in both Iraq and Afghanistan. But others are just diplomatic cables containing chit-chat.

To get the information out she used the services of Wikileaks. This service was created by Julian Assange, a computer hacker and journalist who puts himself about as a victim of the Pentagon but who is not formally wanted by the United States on any charge related to freedom of information.

There is no evidence that Assange, an Australian, conspired personally with Manning to steal or disseminate classified information. Wikileaks as a matter of policy does not insist on knowing the source of its information.

Assange is actually an ‘on the run’. Since mid-2012 he has been holed up in Equador’s embassy in London. He is resisting extradition to Sweden to face questioning on allegations of sexual misconduct with two women. Assange insists that the Swedish extradition warrant is a ruse. Once sent to Sweden he would be subject to ‘rendition’ to the US where he could face the death penalty for ‘aiding the enemy’.

Some regard Assange as the most important publisher of classified material since Daniel Ellsberg released the Pentagon Papers in 1971. Others see him as a self-regarding flaneur, a sensationalist.

Valuable revelations by Snowden

But it is the work of Edward Snowden the National Security Agency contractor who has revealed the massive scale of surveillance activity both within the US and in other countries that may ultimately prove of greatest significance.

Snowden has proven that George Bush, Barack Obama, the US courts and Congress itself have approved under the Patriot Act the tapping of all telephone calls and e-mails within the US and the tapping of all calls and e-mails made by targeted individuals outside the US including, oddly, those of trusted allies like Angela Merkel. This gathering of what is called ‘metadata’ has been done without any public disclosure of what is taking place.

The National Security Agency (NSA) has been permitted to monitor the movements of people across the globe using telephone tracking technology. It has acted as a sub-contractor for overseas intelligence agencies, doing tasks for them that are not legally permitted in their own countries.

The NSA targets vast numbers of people who are not terrorists, not criminals and who are entirely above suspicion. By any standards, Snowden has demonstrated a massive abuse of power by US authorities. It is obviously in the public interest that the people should know what is being done in its name to its telephones and its computers.

In order to get security clearance Snowden would have taken an oath. He is therefore vulnerable to prosecution under the US Espionage Act and for allegedly stealing information. He is currently in Russia where he has been given sanctuary.

A very nasty row beckons if Snowden returns from Russia. Government officials have lied under oath by denying his revelations, which are themselves demonstrably true. The scale of what is happening in the US is enormous.

It puts our own little spat here in Ireland into context. But, then, Gods make their own importance.

Read Damien Kiberd’s columns for TheJournal.ie here>

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Damien Kiberd

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