The Elusive Search for Accountability

 

I am writing this just back from the University of Haifa, in Israel, where I taught an intensive course this December on “The Search for Accountability in the Public Sphere: Public Law in Comparative Perspective.” The course considers the topic from the vantage of four countries: Canada, Israel, the U.K. and Germany. As usual, I have ended up learning more than I’ve imparted from the course.

 

The course begins with a comparison of public inquiries – from the Neo-Nazi Prosecution Inquiry in Germany to the Winograd Commission into the Israeli 2006 Lebanon War, the Hutton Inquiry in the U.K. and Canada’s own ground-breaking Truth and Reconciliation Commission on Residential Schools. We grappled with the role of judicial review, the importance of the principle that no executive authority exists beyond the reach of the rule of law. The course also examined legislation intended to deter the bribing of public officials, as well as the role of freedom of the press and access to information laws.

 

The course concludes by exploring the role of the whistleblower, which in light of the ongoing debate regarding the Edward Snowden NSA disclosures, occupied the lion’s share of the class discussion. While most countries have whistle-blowing protection laws, few whistle-blowers use these (they normally require that disclosures follow a designated path, usually up through the supervisory chain internal to public administration before out to a special commissioner or ethics office or court.

 

We discussed the Anat-Kamm/Uri Blau affair in Israel, which involved a former IDF soldier leaking thousands of classified documents through the assistance of Ha’aretz journalist Uri Blau. As well, we explored the case of the U.K. national security analyst David Kelly, whose suicide led to the aforementioned Hutton Inquiry. Ultimately, while we think of whistleblowers in the abstract and courageous and sometimes even as heroes, they are rarely treated in this way. The U.S. Securities and Exchange Commission in the U.S., under the new Dodd-Frank Act regulatory scheme, has instituted a scheme for paying whistleblowers a portion of funds recovered based on their revelations (10-30%). In October 2013, under this scheme, the SEC paid a whistleblower $14 million dollars.

 

The Snowden case is a particularly challenging one. Snowden has exposed a practice of almost unlimited recording by the NSA of a wide swath of individuals based on no suspicion whatsoever. On the other hand, this practice was lawfully authorized and judicially approved. Snowden referred to this regime as the “architecture of oppression” in his now viral summer 2013 interview from Hong Kong before the circus of his journey to Russia unfolded, and made him the object rather than the subject of the discussion about whistleblowing. More often than not, the class discussion returned to whether he should stand trial for his actions (he has been indicted in the U.S. under the WWI era Espionage Act.) While the abstraction of vast meta-data surveillance is diffuse (as is the empirical question of whether this program thwarted any actual threats to real people), the question of individual duty and judgment on the part of Snowden is concrete and compelling.

 

Accountability in law usually devolves into a discussion about institutions – courts, legislatures, integrity commissions, and so forth. Snowden reminds us that accountability is ultimately a discussion about individuals. What should each of us do if confronted by what we believe to be wrongdoing? Report it to our supervisors? Reach out to the police, to the press, to a trusted advisor? Keep our head down and follow orders? Accountability is the study not just of what we do, but what we tolerate others around us doing. While Snowden may not be a hero or a villain, his story demonstrates the possibilities and limits of individual accountability. And based on the class discussion in Haifa, that story continues to polarize and to matter. While Snowden stated that his intended goal was to spark a discussion about democracy and the rule of law, I think the more important issue his whistleblowing odyssey raises is about personal responsibility, individual fidelity to law and our accountability to ourselves.