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Frédéric St-Martin: Whistleblowing from within the intelligence community

Many countries, including the United States, the United Kingdom and Canada, require the disclosure of wrongdoing occurring within the intelligence community to be done internally.

In contrast with most other public officials, relevant national laws prohibit employees of the intelligence community and the military from disclosing wrongdoing to a designated third party independent from the relevant organization.

There are obvious public interest grounds for restricting the disclosure of sensitive national security matters, such as preventing criminal groups, rogue states and the like to access information that might affect public safety and sensitive strategic interests.

However, imposing secrecy on misconduct in the public service is hardly the most appropriate way to respond to national security threats. Not allowing appropriate external disclosures of wrongdoing in the intelligence community undermines whistleblowing effectiveness. It creates an obvious conflict of interests with respect to how allegations of misconduct are handled, and decreases the accountability of public officials who have the power to impede on civil rights, which contradict the fundamental rationale behind the enactment of whistleblowing law.

Moreover, by removing legal protection from public servants who wish to report wrongdoing to an independent recipient and in some cases, by exposing them to serious legal consequences for doing so, such exceptions to public service whistleblowing law seriously impede on free speech rights of public officials.

In Canada, the recent passage of Bill C-51 (Anti-Terrorism Act, 2015) brought the accountability of the intelligence community issue to the forefront. This law significantly broadens the powers of the Canadian Security Intelligence Services (CSIS), without providing for appropriate oversight, in a way that significantly concerns civil society and the United Nations. It will be subject to a court challenge for potentially infringing on Canadian civil rights.

The lack of transparency in the process for disclosing wrongdoing in the intelligence community also affects public officials’ trust in their employer. In a 2012 survey of CSIS employees, only 37 percent of respondents perceived they could report wrongdoing within the organization without fear of reprisals. This is 7 percent less than in 2010.

Reconciling the competing policy objectives of ensuring that sensitive information is not improperly leaked into the public domain, while ensuring that all public sector organizations are appropriately made accountable for their decisions, should be made a priority by the Canadian government.

If the disclosure process under public service whistleblowing law does not provide sufficient safeguards, disclosures arising from the intelligence community could be done to an apolitical expert third party who would review and act upon these allegations of misconduct while being subject to higher confidentiality requirements. This would lessen any perceptions of conflict of interests, as well as of lack of transparency and accountability within organizations currently not covered by public service whistleblowing law. This recipient could decide, based on the public interest and clearly established guidelines, the appropriate course of action following allegations of wrongdoing, and which information may or may not be disclosed to the public.

The last two posts of this series on whistleblowing have discussed how the law may promote the effectiveness of whistleblowing mechanisms in the public sector. I will move on to the private sector in the next post, and discuss how the law incentivizes businesses to implement best whistleblowing practices.

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The first post in this series is here, the second post is here, the third post is here, the fourth post is here, and the fifth post is here.

Frédéric St-Martin advises a Canadian financial regulator on corporate governance, anti-corruption controls, investigations and the implementation of whistleblower programs. He graduated from the inaugural IACA MACS 2012-2014 program summa cum laude and received the Best Master Thesis Award in December 2014 for his study on Measuring the Effectiveness of Canadian Whistleblowing Law. He also holds a Master in Law from the University of Montreal, as well as a Bachelor of Common Law and Civil Law from the University of Ottawa. He can be reached by email here and through linked here.

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