Whistleblowers, Journalists and the Public's Right to Know

Edward Snowden leaked top secret details about U.S. NationalSecurity Agency surveillance programs.

By Cecil Rosner
Managing Editor and head of Investigative Unit, CBC Manitoba

Blowingthe whistle on illegal or immoral behaviour has never been an easy task.

Itusually results in loss of income, possible prosecution, and in extreme cases,it can be deadly. It's safe to say that a whistleblower's life is never quitethe same after that fateful decision to speak out publicly.

Justask Edward Snowden, the NSA leaker who is currently scrambling to find acountry willing to protect him from prosecution in the U.S. Snowden, likeJulian Assange, Bradley Manning, Jeffrey Wigand, Daniel Ellsberg and dozens of otherslike them, is finding out the hard way that shining a light in dark places isnot always to everyone's liking.

Journalistshave a particular interest in whistleblowers, because they are ofteninstrumental in uncovering stories of great public interest. The CBC and mostother media outlets have relied repeatedly on whistleblowers to gain insightinto how government, industry and other powerful interests conduct business.Sometimes those whistleblowers wish to remain anonymous, and the media does itsbest to protect their identities.

Atother times, the identities are public from the outset, and that gives rise toanother common phenomenon. Not only do the whistleblowers come under attack bythe people whose secrets are being revealed, but so do the journalists whoreport the stories.

GlennGreenwald, the Guardian journalist who broke the Snowden stories, has beenaccused in some quarters of "aiding and abetting" the former intelligenceemployee. Some U.S. politicians have suggested he should be prosecutedalongside Snowden. Other commentators have questioned whether Greenwald isreally a reporter, suggesting he is an activist or at best a "blogger." Aconcerted campaign seems to be underway to spread innuendo about aspects ofGreenwald's past, with the suggestion that such revelations should somehow callhis journalism into question.

"When Imade the choice to report aggressively on top-secret NSA programs, I knew thatI would inevitably be the target of all sorts of personal attacks and smears,"Greenwald wrote in the Guardian. "You don't challenge the most powerful stateon earth and expect to do so without being attacked."

It isnot the first time this has happened. There are many Canadian examples ofreporters facing accusations of bias, lawsuits and court orders to discloseconfidential source information, all because they reported on what awhistleblower had to say.

But oneof the most instructive examples is that of Daniel Ellsberg, a former Pentagonand state department employee who leaked an internal government analysis of theVietnam War called the Pentagon Papers in 1971. Ellsberg was subjected to thefamiliar litany of threats and smears, and U.S. intelligence officers evenstaged an illegal break-in at his psychiatrist's office to find material todiscredit him. He was accused of theft, espionage, and endangering U.S.security interests. Sound familiar?

Ellsberggave the papers to the New York Times, and lawyers for the Times advisedagainst publication. But the newspaper published the story amid risks ofinjunctions, lawsuits and dire threats. The newspaper's right to proceed waseventually upheld by the U.S. Supreme Court. Here is what Supreme Court JusticeHugo Black said:

"Only a free and unrestrained press can effectively expose deception ingovernment. And paramount among the responsibilities of a free press is theduty to prevent any part of the government from deceiving the people, andsending them off to distant lands to die of foreign fevers and foreign shot andshell. ... The government's power to censor the press was abolished so that thepress would remain forever free to censure the government. The press wasprotected so that it could bare the secrets of government and inform thepeople."

Ellsberg,by the way, eventually had all charges against him dismissed. And it'sdifficult to find anyone today who thinks the disclosure of the Pentagon Paperswas a bad idea.

Anyonewho has seen the movie The Insider also knows about the case of Jeffrey Wigand,who blew the whistle on big tobacco's practice of increasing nicotine contentin cigarettes. In reporting the story, CBS was also accused of aiding andabetting Wigand's purportedly illegal breach of contract, and faced theprospect of a crippling lawsuit if it proceeded.

Whatshould Canadian journalists learn from the cases of Snowden, Ellsberg, Wigandand the journalists who covered their stories? It would be unfortunate if theyconcluded such coverage was somehow improper or too dangerous to risk. Thatattitude would not serve the cause of journalism, or the public's right toknow, terribly well.

Whistleblowerswho speak out must carefully assess the risks. They should know theconsequences of their actions might bring job dismissal, or governmentpersecution, or jail. Often, as Ellsberg did, they hope that public opinionwill judge their act of defiance so important as to trump any contractual orlegal bounds they might have overstepped.

As forthe journalists who deal with these whistleblowers, they need to consider thattheir primary obligation is to their audiences, who are interested in theinner-workings of powerful institutions that hold sway over their lives. Evenif a whistleblower is breaking a contract, or breaking a law, it need notdisqualify the importance of reporting the information.

In a2010 ruling, Supreme Court of Canada Justice Louis LeBel commented directly onthis type of issue.

LeBelnoted that "in order to bring to light stories of broader public importance,sources willing to act as whistleblowers and bring these stories forward mayoften be required to breach legal obligations in the process. History isriddled with examples. In my view, it would also be a dramatic interferencewith the work and operations of the news media to require a journalist, at therisk of having a publication ban imposed, to ensure that the source is notproviding the information in breach of any legal obligations. A journalist isunder no obligation to act as legal adviser to his or her sources ofinformation."

Eventhough many levels of government around the world have enacted whistleblowerprotection legislation, the climate for people who are considering blowing thewhistle is decidedly chilly these days. Journalists might also be thinkingtwice about what they can safely report.

Thecriminalization of whistleblowing is unlikely to result in a more open andtransparent society. In the end, it's the public that is usually in the bestposition to judge whether we should punish or reward the people who arestepping forward to shine the light. And the only way the public can make thatjudgment is by being armed with all the available facts.

Cecil Rosner