Whistleblowers and Accountability for Torture

Ben S. BucklandIn light of the recent release of the U.S. Senate Intelligence Committee’s summary of its report on torture, Ben Buckland explores the role of whistleblowers in exposing one of the gravest human rights abuses.

There is a common perception that whistleblowers are those who go to the media, a perception fed by a number of high profile leaks in the recent past. But whistleblowing can also be—indeed, is much more commonly—the disclosure of information within the ring of secrecy. The most common type of whistleblower is one who passes information showing wrongdoing directly to an oversight institution that has a statutory right to receive, to process, and to act on it, even when it is classified or otherwise confidential.

This kind of information, coming directly from individuals, is essential to the proper functioning of oversight institutions. It is particularly important when they are involved in the oversight of often closed and secretive security institutions, when (without the help of insiders) they may not even be sure what to look for or where to look for it. 

On paper, oversight bodies often have formidable access to information powers. Many have the power to view all documents, even at the highest level of classification, to visit sites without prior notice, and to speak in private to anyone they deem relevant to their work.

Such powers are essential because information is the very lifeblood of oversight institutions. Without information they cannot fulfil their role. Without information, oversight institutions cannot accurately assess whether government institutions are in compliance with their human rights obligations, including the obligation not to torture. Incomplete access may even have the negative consequence of providing a false sense of accountability and transparency. Limited access may give the false impression that an oversight body is actively scrutinising the activities of a government institution, when in fact it is unable to do so. There mere existence of an oversight institution is no guarantee of proper scrutiny. Indeed, oversight with ‘blind spots’ can be more harmful than no oversight at all.

Nevertheless, despite the powers they may have in law, oversight institutions face tremendous barriers to accessing the information they require for their work and to ensuring accountability by bringing that information to light.

These barriers include pressure by the agencies they oversee, as has been the case in the US, where the CIA made significant attempts to undermine the work of the Senate Intelligence Committee during its investigation of secret rendition and torture. It can include personal attacks on the members of such institutions, as is the case in Australia, where the President of the Australian Human Rights Commission has been smeared by both politicians and the media, in the run up to the release of a report into children in immigration detention. It can also involve the use of other state institutions, as is taking place in the Maldives, where members of the Maldives Human Rights Commission face politically-motivated charges by the courts.

Among the most serious barriers of all, however, are the reprisals faced by whistleblowers who have revealed information showing serious wrongdoing, including torture.

“Former CIA officer brought to justice for terrible crimes” sounds like just the kind of headline we have all been hoping for. But the catch is that, when it appeared in the papers last week, the headline was about James A. Sterling, a former CIA agent whose crime wasn’t torture but rather his decision to pass information to the New York Times. As for those who were involved in torture and renditions—the interrogators, those who provided the legal justification, and those who ordered the crimes—they remain free, despite the release of the Senate Report summary and despite the fact that their names and their crimes are now known.

Such reprisals against whistleblowers have a serious chilling effect on the willingness of others to disclose information, even when that information shows serious wrongdoing, such as torture. This has a major and negative impact on the ability of democratic oversight institutions, such as national human rights institutions, parliamentary committees, national preventative mechanisms, and others to carry out their mandates.

Preventing reprisals against oversight institutions and against those whistleblowers that provide them with information is in everyone’s interest. It is in the interest of oversight institutions and human rights defenders. But it is also in the interest of security institutions themselves who can work with oversight bodies to become more effective and more efficient. Some secrets should stay hidden but information about torture and ill-treatment is never one of them.

Ben Buckland is the Advisor on National Human Rights Institutions at the Association for the Prevention of Torture. He studied political science and international affairs in Geneva, Melbourne and Helsinki. Before joining the APT he worked at a number of NGOs and think tanks including: Centre for the Democratic Control of Armed Forces, The Ethicos Group, Oxfam, and the University of Melbourne.

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