Canada slow to protect whistleblowing spies, soldiers
Few safeguards for intelligence workers around the globe
Six years after Canada's three most secretive agencies were supposed to set up a way to protect whistleblowers reporting wrongdoing within their ranks, they have finally all complied.
The national security and intelligence departments — the Canadian Forces, the Canadian Security Intelligence Service (CSIS) and Communications Security Establishment Canada (CSEC) — were exempted from a whistleblower protection law that came into force for federal government employees in early 2007.
But the agencies were required to set up their own internal processes similar to protections granted to the other 375,000 federal employees, such as assigning a senior officer to hear complaints and writing policies.
By 2011, CSIS and CSEC had satisfied those requirements, while the Canadian Forces only introduced a disclosure process this April, according to emails from each department to CBC News.
The multi-year lag in creating the internal procedures has raised questions about whether the secretive departments are indeed protecting whistleblowers.
"When agencies take years to establish simple internal procedures for blowing the whistle, as required by the law, it's difficult to believe that senior leaders are taking the issue seriously," said David Hutton, executive director of Canada's whistleblower advocacy group, FAIR."This is a recipe for incompetence and malfeasance to take root."
The high-profile case of U.S. intelligence contractor Edward Snowden, who revealed details of a secretive surveillance program, reverberated around the world and laid bare that few protections exist for intelligence workers who unearth wrongdoing.
Michel Juneau-Katsuya, a former intelligence officer and CSIS manager, says that in Canada, internal protections and external oversight agencies of the intelligence community have proved insufficient.
"We have placed through the years certain mechanisms but through time the system has neutralized those mechanisms," said Juneau-Katsuya.
In the spring of 2012, the federal government closed the office of the inspector general for CSIS, the only independent agency providing oversight of its operations.
The government suggested that the inspector general's responsibilities would be borne by the Security Intelligence Review Committee, but that review agency has come under increased scrutiny in recent years. Its last chair, Arthur Porter, resigned in 2011 over questions about his dealings. He's currently in a Panama prison, fighting extradition on charges of fraud and laundering the proceeds of a crime.
"It doesn't leave you with a warm feeling regarding whether there's any oversight at all," said Hutton.
Failing to protect whistleblowers in the national security and intelligence sectors isn't only an issue in Canada.
While private and public sector workers around the world have won increasing whistleblower protections in the past 25 years, the laws often exempt those workers. In many countries, laws related to espionage put those revealing classified information at risk of criminal charges.
How 4 countries handle general whistleblowers
All Australian states have whistleblower protection laws covering public sector wrongdoing. A couple cover private sector. No federal laws exist.
Under the Public Servants Disclosure Protection Act, federal public servants can disclose wrongdoing and are protected from reprisal, but the process has come under criticism. Six provinces have whistleblower laws, but some say they are ineffective
Both private and public sector workers can be compensated if they suffer reprisals for blowing the whistle thanks to a law passed in 1998. Those who are fired or harassed can go before an employment tribunal to seek remedy. About 20 per cent succeed. Despite that, the law is criticized for providing a remedy but not preventing damage in the first place.
The U.S. has a patchwork of whistleblower laws both at state and federal level. The Whistleblower Protection Act, passed in 1989, protects federal government employees who provide evidence of wrongdoing. Under another law, whistleblowers who root out fraud against federal government programs can also get compensation. Some states also have similar laws.
In the case of Snowden and his release of National Security Agency documents detailing the PRISM program, the U.S. Justice Department has opened a criminal investigation into the alleged disclosure of classified information, but no charges have been laid yet.
"People who work in areas to do with national security are by far the most vulnerable people when they become whistleblowers… even if they don't blow the whistle and they're just asking questions about the legality of what's being done," said Hutton.
"They are the easiest people to take devastating reprisals against," said Hutton.
Some whistleblower advocates say the lack of protections increase the possibility that those in the national security field will go straight to the public with their concerns.
Also, while documents released by Snowden triggered an international debate about the extent that national security efforts should infringe on individual privacy, employees in the intelligence sector also encounter more mundane cases of wrongdoing unrelated to their top secret status, such as fraud, corruption and incompetence.
"But because the agency has something to do with national security, the national security card is played," said Hutton. "You're not supposed to reveal anything about this agency, which is absurd."
'Escape route' needed
In the United Kingdom, since 1998, whistleblowers have been protected by broad disclosure laws covering both private and public sectors, but the national security sector is excluded.
"We trust these people with the most highest secrets, shouldn't we also be able to trust them to uncover wrongdoing in the appropriate circumstances and shouldn't there be a process whereby you can do that?" asked Cathy Jones, CEO of Public Concern at Work, a non-profit group in the U.K. for the protection of whistleblowers.
Jones said that while internal processes suffice in many instances, laws needs to be reviewed in light of Snowden's situation to allow whistleblowers to go public in the rare case where its warranted.
"There has to be is an escape route for those circumstances where the external media disclosure is the only option," said Jones.
The United States, highly regarded for its decades-old whistleblower protections and compensation laws, also has a chilly climate when it comes to covert agencies.
The Obama administration has aggressively used the Espionage Act on a number of national security whistleblowers, charging them with leaking classified information.
Hutton warns that when it comes to clandestine agencies, the failure to provide whistleblower protection could come with a price.
"There seems to be an almost iron-clad law: The more you allow an agency to operate in secret and unaccountably, the more certain it is that there will be abuses of power."