07/06/19 – Every time a national security whistleblowing story hits the headlines, a standard reaction is that the person who disclosed it should have spoken up using official channels rather than going to the media. For those of us working in the field of whistleblower protection, we know it is highly likely they did try to raise it internally, but for whatever reason the official channels failed. The real question we need to ask is can we make it safer to speak up about wrongdoing and have it addressed within the system. This WIN guest blog by Dr. Ashley Savage, an independent specialist on whistleblowing based in Vienna, is based on a recent conference he attended which explored the military whistleblower’s dilemma.
Voice and Dissent in the Military
Most, if not all, whistleblowers face uncertainty when deciding whether or not to blow the whistle. Will they be listened to? Will they be protected? Will they lose their job? Will they be retaliated against? These situations become all the more difficult when the culture of the organisation does not actively support whistleblowing. Military whistleblowers face particular challenges: a rigid command structure, rules on discipline, and restrictions on speech with potential criminal consequences for non-compliance.
In May 2019, the European chapter of the International Society for Military Ethics (EuroISME) hosted its annual conference at the National Defence Academy in Vienna, Austria. Significantly, the theme of the conference was “voice and dissent in the military” which allowed for in-depth consideration of whistleblowing in the armed forces, military ethics, and when and how it is appropriate, legal and ethical to disobey a direct order. This was a rare opportunity to focus specifically on military whistleblowing – bringing together a mix of academics, practitioners and military personnel providing a broad range of presentations and room for discussion.
A constant theme throughout was the notion of “loyalty”. Military whistleblowers are often considered disloyal for raising a concern, even though their motivation is to correct wrongdoing and malpractice. Being seen as disloyal can result in severe retaliation not only from superiors but also from colleagues, friends and even the wider community. This may stem, in part, from the unique nature of military organisations where commitment to service is built on camaraderie and a sense of shared purpose. Blowing the whistle is then perceived as a rejection of a shared way of life.
Delegates heard excellent presentations from three whistleblowers who experienced retaliation for their actions. Dr. Tom Clonan exposed discrimination, bullying, sexual harassment and assault against women in the Irish Defence Forces. His disclosures led to a public inquiry and changes to workplace policy in the Irish military. Kathryn Bolkovac was a monitor with the United Nations International Police Task Force in Bosnia and Herzegovina and she raised concerns about sex trafficking. Her story was later told in the film The Whistleblower. Ian Fishback was an officer in the U.S. Army Special Forces who raised concerns about the abuse of prisoners in the Global War on Terror. He was chosen as one of TIME magazine’s 100 most influential people in the world. These whistleblowers’ accounts demonstrate how much more work needs to be done to provide effective protections for those who raise concerns and ensure that military organisations effectively address them.
My keynote speech touched on many of the themes I cover in my book, Leaks, Whistleblowing and the Public Interest: The Law of Unauthorised Disclosures, which included a chapter on whistleblowing in the military. Entitled “Combating the Intramural and Extramural Challenges to Effective Whistleblower Protection in the Military”, my speech focused first on the complexities of military life that make implementing whistleblowing arrangements challenging.
For example, the employment status of military personnel is often very different to that of ‘ordinary’ public service employees and the consequences of making unauthorised disclosures to the media often much more severe. The manner in which many countries around the world use and classify national security information creates a severe imbalance of power that prevents military personnel from raising concerns. Official secrecy can also frustrate the vital oversight function performed by Parliamentarians and external bodies.
Importantly, many countries still rely on laws that were adopted to deal with paper-based leaks and which have yet to adapt to the advent of digital communication and data handling. States need to rebalance how they deal with security-sensitive information to clarify rights and responsibilities; and where national secrecy laws do not currently account for whistleblowing, solutions must be found to allow people to raise their concerns and challenge wrongdoing.
I stressed that whilst it is necessary to consider the theoretical, ethical and legal arguments for whistleblowing, it is important not to forget the practical consequences of blowing the whistle. The right to disobey an unlawful order, for example, is particularly challenging for rank-and-file military personnel who must make quick decisions in conflict situations. How the “right to disobey” is defined depends on the country, and the application of national and international law in such circumstances is by no means straightforward. It is therefore just as important to provide practical guidance as it is to inform military personnel of their legal rights. Guidance can provide clarity on the circumstances in which people may disobey an order and how they can obtain support when they do.
In considering legal protection for military whistleblowers, I pointed out that the new EU Directive expressly includes civil servants but does not mention military personnel. As national security falls outside EU competence; the Directive makes it clear that this remains the responsibility of each EU member state. The Directive is explicit that it is without prejudice to classified information and, specifically, does not allow for disclosure of national security procurement contracts.
Notwithstanding, it is important to acknowledge that there are many roles held by service personnel – such as doctors, nurses, chefs, aviation mechanics, etc. – whose counterparts are fully covered by many whistleblower protection laws around the world. When we consider the types of concerns those holding such roles are likely to raise, we need to consider why such protection is not readily available to them within military organisations.
While the new EU Directive encourages states to go beyond the terms of the directive, there is no obligation for them to do so. If they do not, there is a real danger many important public interest concerns that arise within or from military organisations will go unheard and unchecked. Military personnel will continue to suffer unnecessarily if EU member states, and other jurisdictions around the world, do not specifically address the importance of protecting military whistleblowers in their national whistleblowing laws.
This conference was an important step in opening up the debate on whistleblowing in the military and one that I welcome wholeheartedly and will continue to examine. It is clear that change is needed but whether there is the will and the commitment within the military remains to be seen.