OPINION

Right to Information, State Accountability, and Wikileaks

June 17, 2010
Ruchi

Please see note below

There is natural tension between the State and the public on the question of transparency. Authoritarian states by definition limit access to information. In democratic states, democracy manifests itself as elections, which reduces incentive for routine oversight (to delay judgment) and in case of ruling government’s culpability, creates a disincentive for transparency. In addition, democratic states necessarily follow a capitalist model of development, either by choice or obligation (IMF, World Bank, Free Trade Agreements). While the premise of a democratic government is at least partly altruistic and redistributive (in addition to security and maintenance of law and order) thereby deriving the moral rationale for taxation, the premise of capitalism is the pursuit of self-interest and maximization of profit for a small group of people.  Internally as well, corporations aren’t democratic – divergent interests are resolved not by open discussion but by pure might (preferential ownership; bulk of the share holders don’t have voting rights). With increasing size of private corporations and increasing privatization of governance, democratic states are adopting corporate ethos of opacity, consolidation of power and growing authoritarianism. This authoritarian tendency is in the true sense of the phrase, not “politically correct” and in the past fifteen years, sixty countries have passed laws to facilitate public access to state information. However institutional reticence to transparency is evidenced by the fact that only a fraction of these countries have a whistleblower’s law[1]to protect the individual who exposes institutional corruption from reprisal. When the institution in question is public, states with whistleblower’s law frequently undermine their own legislation[2] by blocking publicity, investigation, and counter intuitively pressing criminal charges on the whistleblower! The last is aimed at deterring future whistleblowers, and stems from the desire to retain control – of fragmentary transparency and hence accountability – to release only that information, the consequences of which can be accommodated in business as usual, and to calculatedly deploy state infrastructure against the will of the people.

There are obvious limits of a state legislated and managed RTI/FOI regime: first and foremost, the State defines the categories of exempt information. Security and intelligence agencies are both outside the ambit, with good rationale though increasingly less defensible given their disproportionate contribution to instances of human rights violations. Exempt categories are further susceptible to spurious classification, where information is withheld not to preserve the integrity and/or security of the State but its machinery and/or functionaries. Second, there are many ways of subverting the spirit of the act through shoddy implementation (conveniently transferring culpability to a frontline official from the institution). In India, this manifests itself as lack of information management, ignoring Section 4 (proactive dissemination), harassing applicants, convoluted processes, high pendency[3] etc. Lastly, since the application for information is initiated by a beneficiary, there are two drawbacks: the disadvantage of being an outsider who cannot know of the universe of relevant information; second, a David and Goliath scenario pitching an individual against the might of the State to obtain information of public interest but without the force of the citizen collective.

An independent website, Wikileaks (launched in 2006) aims to fill this gap. “WikiLeaks is a multi-jurisdictional public service designed to protect whistleblowers, journalists and activists who have sensitive materials to communicate to the public. […] WikiLeaks information is distributed across many jurisdictions, organizations and individuals. Once a document published it is essentially impossible to censor[4].”  Notable publications of the website include a report on toxic dumping in Africa by Trafigura, a US military video that shows American soldiers killing eighteen people in Baghdad including two Reuters photographers, Climategate emails, and tax evasion by American citizens in connivance with Swiss bank, Julius Baer. In India, Wikileaks published the UIDAI approach document in November 2009. It’s interesting to note that the respective state apparatuses had blocked public access to this information:  UK ordered a super injunction[5] against the publication of Trafigura report; Reuters tried unsuccessfully to obtain the Baghdad video for three years under the American FOIA; Julius Baer succeeded in temporarily knocking down the Wikileaks website after obtaining a permanent injunction against the website and domain registrar in a California court; and allegedly numerous RTI applications had been made to get more information about the UID project. Julian Assange, one of the founders of the website says, “Open government is strongly correlated to quality of life. Open government answers injustice rather than causing it (plans which cause injustice are revealed and opposed before implementation). Open government exposes, and so corrects, corruption. Historically, the most resilient form of open government is one where leaking and publication is easy. Public leaking, being an act of ethical defection to the majority, is by its nature a democratising force.” There are some features that make Wikileaks or a similar concept of a private leaking system worth consideration:

  1. Establishes global accountability: Freedom of information laws often mandate citizenship of the country. However, in a globalized world, states are accountable not to just their citizens, but to the global citizenry.  America’s “war against terror” has changed the global landscape; the financial crisis of 2007-2010 has had global consequences; global warming affects us all. The need for concerted global action makes global transparency imperative. For instance, one classified CIA report on shoring support in Europe for the war in Afghanistan states “public apathy enables leaders to ignore voters” and goes on to discuss the different ways to manipulate the public in France/Germany to support their country’s continued presence in Afghanistan. The report is an indictment of the unilateral nature of America’s battle in Afghanistan and its disdain for democracy.
  2. Ensures anonymity of the whistleblower: States are increasingly crushing dissidence through draconian laws and their application.  Obama despite campaigning on a platform of transparency is aggressively pursuing Bush-era whistleblowers, all of who exposed high-level illegal activity. In India, the government has cynically used TADA, POTA and UAPA essentially classifying the right to dissent in a democracy as terrorism. In this situation, not only is it impossible for the whistleblower to use formal mechanisms to trigger correction but there’s also a high probability of reprisal against the individual. India’s most famous whistleblower, Satyendra Dubey was murdered in 2003[6] after writing to then Prime Minister, Vajpayee about high-level corruption in the NHAI (despite widespread outrage, India has not passed a whistleblower’s law). Further anonymizing the individual’s identity in no way detracts from the substance of the leak, and also reduces incentive to publish information for personal profit. Wikileaks operates a series of complex technological and other measures to protect sources, and claims that no source has been revealed in the three years of its operations[7].
  3. Circumvents state: A question worth asking is whether the state can be held accountable through state legislated and controlled mechanisms. History is replete with examples where the State has used the police, investigative agencies and even the judiciary for its own ends. In India, the two main anticorruption agencies, CBI and CVC lack independence and frequently close investigations with questionable conclusions[8].  Governments also prevent public mobilization with the use of gag orders[9], not only to suppress and censor information, but also the fact that the information has been suppressed!
  4. Uncovers spurious classification into exempt categories: The history of leaked classified documents reveal content kept secret not to protect the security/integrity of the State but to protect the might/authority of the State machinery. This brings into the public domain unconstitutional/unethical means adopted by the Government and hidden from its constituents through false classification.
  5. Exposes state hypocrisy: Even though China has a Freedom of Information Act, it blocks all URLs with the word “wikileaks” in it[10]. The US, which can’t censor so obviously commissioned a counterintelligence report to take down Wikileaks, perversely citing China’s blanket blocking as justification.
  6. Expedites timelines: In India, publishing the UID document online forced the Chairman, Nandan Nilekani to release the document as well, leading to increased media coverage and public discourse on a government project of great public interest. In a less direct measure, the publication of the Baghdad video and report on Afghanistan will decrease domestic and international support for US occupation of Iraq and Afghanistan increasing pressure for disengagement.

While the purpose of such institutions is to promote transparency and accountability in large corporations, the integrity[11] of such institutions themselves is internally policed and inextricably linked with the integrity of its executives. Opacity is built into the Wikileaks model (understandably given the many attempts to take down the site) however this lends itself to unaccountable discretion to filter information – what is received, what is put out, how and when it’s put out. Legitimacy of democratic state institutions is contingent on, inter alia, equal treatment of all citizens and constituencies through due process of law – citizens voluntarily give up some freedoms to the state under this very assurance – however private institutions are not obligated to neutrality. For Wikileaks to serve as an alternative/complement to legislated freedom of information regimes, it must evolve mechanisms to ensure (both in implementation and appearance) that its internal bias is not reflected in the information put out. Finally the sticking point with both Wikileaks and Freedom of Information laws is that information does not exist in a vacuum. Merely making information public will not necessarily catalyze social change – information must also be accessible (understandable). Moreover for information to have meaning, corresponding mechanisms must be developed to force (and sustain) state accountability. Institutions have longevity that often transcends the people who direct it, and while ad-hoc embarrassing information may have consequences at the personal/party level, institutions will remain unaffected without an active inquisitive citizenry.

Note: Bulk of this piece was written before the arrest of Bradley Manning for being the alleged source of the Iraq video and also the Garani massacre in Afghanistan.  Bradley apparently initiated a series of chats with former hacker Adrian Lamo and revealed his identity. Based on the heavily edited chat transcripts put out Wired, it is evident that Lamo baited Bradley in these chats, asking him incriminating questions with the full intention of outing him (there is also the disturbing question of when government officials were involved and their complicity in eliciting confession). In the fallout, Wikileaks is under attack and founder, Julian Assange hunted by the US DoD. Even three weeks after arrest,Bradley Manning has not been chargesheeted.  Bradey, Julian and other Wikileaks members are all on the right side of history, and deserve our support. To learn more, please follow Wikileaks on Twitter or visit the Wikileaks site and follow links from there


[1] A whistleblower brings to the public notice an act of institutional wrongdoing by an employee, and is therefore a natural complement to freedom of information laws.

 

Countries with existing/draft whistleblower laws: UK (Public Interest Disclosure Act, 1998); US (Whistleblowers Protect Act of 1989, 1994); South Africa (Protected Disclosures Act, 2000), Australia, Norway, Canada, South Korea, Argentina, Russia, Slovakia, Mexico and Nigeria

[2] Obama’s pursuit and escalation of Bush era whistleblowers; Super injunctions in UK

[3] A recent Delhi HC judgment struck down single benches as unconstitutional ruling that all information commissioners should pass judgments together. This will increase pendency further

[4] Wikileaks .Org– About Us

[5] Gag order in the UK, which prohibits publicizing even the fact of gagging

[6] Satyendra Dubey’s case was closed in March 2010 by the CBI, which concluded that the murder was the fall-out of a botched robbery and not connected to the alleged criminal nexus at NHAI

[7] Bradley Manning was recently detained by the US military for being the alleged source of the Iraq video and also the Garani massacre in Afghanistan. Note: Bradley revealed his identity himself in a series of online chats with former hacker Adrian Lamo.

[8] Lalu Yadav, Mayawati, Shibu Soren etc

[9] US: Patriot Act National Security Letter; UK: super injunctions

[10] Wikileaks hosts multiple cover sites (mirror sites with different names) to allow access even from China. These cover sites change frequently, and current names can be googled outside of China

[11] Some comments by Julian Assange on the financial and attribution integrity of Wikileaks

  1. Our funds audited according to German, Australian, Swedish, French, Swiss and US law and most of our funds are even blind to us to prevent donor influence.
  2. There has never been a documented case of WikiLeaks misattributing a document. We have a perfect record over three years of publishing. Compare this record with any other publisher of political materials.
  3. In the US a lot of the anti-wikileaks propaganda comes from military apologists attempting to undermine the strength of http://collateralmurder.com/ by attacking its messenger. However, read that website carefully and all statements made in the video itself. You will see that even after other details have come to light, none require corrections. Why? Because we fact checked–to the degree of sending people to the most dangerous part of Baghdad during election time to do it. Who else has such demanding standards?
  4. We push the ideal of “scientific journalism” — all primary sources for every article made available. It’s our invention because we love fact-checking and want others to check our facts to prove our good work.
  5. On the balance issue. You’re right. We don’t believe in “balance”—we believe in accuracy and fairness. That is an important difference and a higher standard. The truth is not revealed by balancing the lies of competing powergroups–that is a job for politicians. We, as servants of the historical record, have a higher standard.

    The Afghan War Diary on Wikileaks

Ruchi blogs (infrequently) at http://bourgeoisinspirations.wordpress.com/ and can be reached at gupta.ruchi@gmail.com. Follow her on twitter @ http://twitter.com/guptar
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Right to Information, State Accountability, and Wikileaks

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