Europäisches Institut für Menschenrechte - Prof. Dr. Dr. Ümit Yazıcıoğlu -
       Europäisches Institut für Menschenrechte- Prof. Dr. Dr. Ümit Yazıcıoğlu -

Whistleblowers and State Secrets: Confrontations of Moral Courage

Whistleblowers and State Secrets: Confrontations of Moral Courage


Prof. Dr. Dr. Ümit Yazıcıoğlu


1. Introduction

The foundation of modern democratic societies is built on a delicate balance between information flow, confidentiality, and transparency. On one hand, transparency, a requirement of democracy, opens state mechanisms to citizens' scrutiny; on the other hand, reasons of national security legitimize the withholding of certain information from the public. However, within this balance, whistleblowers, driven by a moral stance, occasionally expose unethical or illegal activities of the state and large institutions. The revelations brought forward by individuals like Edward Snowden and Chelsea Manning have ignited profound discussions and questionings on an international scale. This article aims to delve deep into the intricate nature of whistleblowing by examining its legal and ethical dimensions and understanding its significance for democratic societies.


Throughout history, whistleblowers have persisted not only as individuals illuminating the shadowy aspects of governments and organizations but also as elements challenging our perceptions of societal justice, ethics, and democracy. Their actions have perennially been subjects of debate, often polarizing society on whether to view them as 'heroes' or 'traitors.' Nonetheless, a strong case can be made that whistleblowing is an indispensable component of modern democracy. This article, by exploring the narratives of prominent whistleblowers and resistors from various historical epochs, aspires to elucidate their impact and importance on our democratic societies.


The actions and testimonies of whistleblowers hold a pivotal role in the evolution and democratic progression of society. Often operating under substantial risks, these individuals epitomize moral resistance and courage. States embracing the rule of law intend to operate within prescribed constitutional and legal frameworks. Yet, even within this scope, how a state addresses potential injustices and abuses is perpetually a subject of scrutiny. This composition seeks to offer a discourse on how intertwined whistleblowing is with democratic values and how this concept ought to be approached within a moral and legal framework.


2. Illegal State Secrets and the Moral and Legal Dimensions of Whistleblowing

Whistleblowers, despite the serious risks they face in society, are individuals who represent moral courage by shedding light on injustices. This section delves deeply into how illegal state secrets intersect with whistleblowing and the legal and ethical challenges in this area.


a.) Edward Snowden and Digital Surveillance

Snowden revealed the extensive internet surveillance activities of the US and British intelligence services to the world. This information shows how governments control international communication, how they access social media and internet providers, and how they monitor activities on the internet almost in real-time. While this digital surveillance may not pose a physical threat, it can limit individuals' freedoms.


Following Snowden's revelations, the US charged him with unauthorized disclosure of state secrets. However, arguments arose that the disclosed information actually exposed an illegal activity.


b) State Secrets, Laws, and Legal Framework

The lack of international consensus on what state secrets are and which information needs protection leads to significant ambiguities. In particular, in Germany, the definition of state secrets does not cover truths that endanger the democratic order. However, there are variations in how this definition is interpreted and applied. This reveals the gray areas about which information needs protection and which information society needs to know.


c) Chelsea Manning and the WikiLeaks Disclosure

Chelsea Manning leaked sensitive documents about the US war in Iraq to WikiLeaks. These documents indicate that the US army engaged in unethical and illegal activities in some operations. Manning's act has fueled the debate on what state secrets are and whether this information can be disclosed to society.


d) Whistleblowing, Public Opinion, and Law

Whether whistleblowing needs mercy is a major topic of debate in public opinion. Many believe that the disclosure of state secrets will provide a more transparent administration to society and, therefore, whistleblowers should be protected. Especially in historical events like the "My Lai" massacre, it is seen that such disclosures can lead to societal changes.


3. Protection of State Secrets and Whistleblowers: Ethical and Legal Perspectives

In a constitutional state, which is one of the cornerstones of democracy, the preservation of the state and official secrets is considered legitimate only within the legal framework. It is unacceptable to overlook legal justice under the shadow of this protection. The well-known social democrat jurist Adolf Arndt, recognized for his evaluations on this topic, thoroughly discussed this matter in the "Neue Juristische Wochenschrift" magazine in 1963. At that time, a whistleblower issue had resonated in the Federal Republic. Werner Pätsch, who worked in the Office for the Protection of the Constitution, revealed that this institution monitored German citizens in a way that was contrary to the constitution with the support of the Allies. Pätsch could perhaps be described as the German version of Edward Snowden. Arndt's main thesis regarding this case emphasized that in a democratic structure, the state and the constitution are inseparable. For the existence of the state can only be guaranteed with a constitutional order; the legitimacy of protecting an element outside of the constitution (for instance, under the name of the concept of secrecy) cannot be considered. The title related to Arndt's in-depth study was "The legal and democratic interpretation of the 'State Secret' concept".


In 2014, the Snowden case emerged as a reference for the SPD member Federal Justice Minister Heiko Maas. While Maas stated that Snowden's declarations were contrary to US criminal law, he argued that a similar situation should also be punished in Germany. However, this argument is not consistent with the second paragraph of Article 93 of the German Criminal Code. According to this article, the exposure of illegal actions does not constitute a violation of official secrets and therefore does not require penal sanctions.


Some critics adopt an approach similar to that of Federal Prosecutor Walter Wagner, who filed a lawsuit against Pätsch in 1963. The fact that the Federal Office for the Protection of the Constitution abused the Allies' veto right illegally, violated fundamental rights, and accessed the phones of hundreds of German citizens, violating their privacy, has been ignored despite these criticisms. Moreover, it has been assumed that Pätsch made baseless accusations. A ministry official said to Josef Augstein, the brother and lawyer of "Spiegel" magazine's editor Rudolf Augstein: "If the disclosure of official secrets were allowed without any sanctions, it could destabilize the state."


4. The Role of Whistleblowers and the Boundaries of Justice

Whistleblowers have often been at the forefront of establishing justice in the shaping of societal dynamics. However, throughout history, the reactions faced by these individuals have frequently been characterized by similar rhetoric. The conviction of someone as prestigious as Carl von Ossietzky by German judges in 1931 exemplifies this.


In 1963, Werner Pätsch's role in a whistleblowing case in Federal Germany brought to the forefront the legal and societal dimensions of whistleblowing. Pätsch, with the information he acquired from the Office for the Protection of the Constitution, revealed that German citizens were being monitored contrary to the constitution. His action can be considered a precursor to the actions of modern whistleblowers like Edward Snowden. However, due to the nature of law and justice, determining the legal boundaries of such actions is challenging. The penalty imposed on Pätsch reflects this complexity.


Parallelly, an article written by Carl von Ossietzky in 1929 about the illegal "Black Reichswehr" resulted in his imprisonment. However, this sentence led to Ossietzky's international recognition and his being awarded the Nobel Peace Prize in 1935. This award has gone down in history as a decision emphasizing the importance of individual rights and freedoms.


Both incidents demonstrate that whistleblowers play a significant role in the pursuit of justice, despite societal and legal reactions. Yet, the outcomes of these actions also bring with them the ongoing debate about where transparency and justice begin and end. It's about determining the delicate balance between society's access to information, establishing justice, and protecting individual rights. And this balance is continuously being re-evaluated, both in historical context and today.


5.In the Wake of Exposed Truths: Julian Assange and the Price of Journalism

Journalism is often referred to as the watchdog of democracy; hence, transparency and justice are fundamental values of journalism in a democratic society. However, the leaks made by Julian Assange through WikiLeaks have shown how delicate these values can be and that they might sometimes come at a substantial cost.


Assange's publications, which exposed the war crimes of the U.S., were in collaboration with numerous traditional media establishments. The documents shed light on the horrific details of some human tragedies that occurred in war zones. Perhaps the most impactful and startling was a video showing civilians, including two journalists from the Reuters news agency, being shot by a U.S. helicopter in Baghdad.


These revelations put Assange in a challenging position on the international legal stage. While his bold move was perceived as an embodiment of press freedom by many, some officials perceived it as a threat. Journalistic activities were equated to conspiring, exposing confidential information, and espionage.


Assange's situation prompts many to question the limits of freedom of expression and journalistic rights. Would the reactions have been different if Assange had exposed war crimes of another country? This question brings serious concerns about double standards and power balances in international politics to the forefront.


Regrettably, Assange's situation seems to be overlooked or merely observed from the sidelines by many EU leaders. However, numerous human rights defenders, activists, and journalists are aware that this poses a serious threat to press freedom. Assange's fight for freedom has led many to re-evaluate what press freedom and journalism mean. His struggle continues to inspire journalists globally who have the courage to expose the truth.


6.Exposed Truths: Julian Assange and the Limits of Journalism

One of the most significant transformations brought by the digital age is the capacity for rapid dissemination of information. Alongside this potential, individuals, especially some like Julian Assange, have been given the opportunity to question the information presented to the public. Assange's journey showcases the complex interplay between the impact of revelations, press freedom, and the dynamics of international politics.


The publications made by Assange through WikiLeaks illustrate how blurred the line between journalism and activism can become. This has led many factions to question what Assange truly represents - is he a journalist, an activist, or a menace?


Beyond these inquiries, however, the treatment Assange has been subjected to underscores the overarching threat to press freedom. Decisions concerning him, especially due to the nature of the leaked information, reveal potential threats to other journalists and whistleblowers.


The debates surrounding whether Assange is a "journalist" form part of a larger issue: Is journalism confined to identity or professional definitions, or is it related to the act of disseminating information? This has become even more convoluted with the changes brought about by the digital age. The democratizing effect of the internet has amplified the opportunity for many outside traditional media to voice their perspectives.


Assange's situation reminds us that press freedom is a universal right and that this right is not limited only to those with a specific identity or professional certification. His case also demonstrates how states or large institutions might react to the disclosure of information they find intolerable.


The example of Jan Hus historically reminds us of the challenges and potential dangers faced by whistleblowers and dissenters. Yet, in the modern world, such challenges and threats have evolved from physical violence to more legal and political retaliations.


The European Union's directive to protect whistleblowers aims to provide protection against such pressures and retaliations. However, the effectiveness of this directive and its role in preventing such pressures remains to be tested. Assange's situation is just one of these tests.


In conclusion, Julian Assange's journey illuminates the intricacies of press freedom, democracy, and international relations, along with the prevailing tensions in these matters. This journey provides us with an opportunity to reassess the relationships between journalism, activism, and state power.


7. Change Manifested: Whistleblowers and Society's Pursuit of Justice

The evolution of modern society, especially in the digital age, has had a profound impact on how information is acquired, disseminated, and responded to. Figures like Julian Assange and Edward Snowden stand at the pinnacle of this transformation. However, it should not be overlooked that whistleblowers are part of a broader societal and legal concept beyond just their role in information access and its public presentation.


The whistleblower protection directive of the European Union is a component of this concept. This directive was designed to support and protect individuals who play a critical role in the defense of public interests. However, the way this protection is applied helps us better understand the role whistleblowers play for their societies and the international community.


It's vital to remember that no legislative framework is perfect. The multifaceted nature of whistleblowing makes it almost impossible to craft a single law that addresses every situation. Especially, international whistleblowing activities and revelations that attract international attention challenge the boundaries of law and ethics.


Furthermore, alongside the general positive perception of whistleblowing, there's the potential for individuals to misuse misleading information for their benefit. This can increase the risk of deceptive disclosures spreading rapidly. Therefore, it's essential to strike a careful balance between protecting and supporting whistleblowers and preventing the abuse of whistleblowing.


In conclusion, we should recognize that whistleblowers serve the benefit of society. However, when determining the ethical and legal boundaries of this service, caution is needed. The whistleblower protection directive is a significant step in this direction, but more work is needed on this front. Societies and governments need to continuously review their commitment to protecting and supporting whistleblowers and be proactive in this regard.


8. The Crucial Balance Between Dissent and Critique in Democracy

Historically, the concept of dissent has been employed in the pursuit of justice and equality, especially as a stance against oppression and tyranny. For those living under totalitarian regimes, dissent has symbolized the fight for freedom and independence. Federal President Steinmeier's emphasis on "resilient citizens" in his speech showcases the capacity of democratic societies to endure challenges and threats.


However, alongside this resilience and dissent lies the risk of the misuse of democratic values. The misappropriation of the term "dissent" by far-right groups is indicative of how democratic values and concepts can be twisted. Such misuse can fracture societal cohesion and lead to the erosion of democratic values.


The Federal President's stress on democratic dissent not only reaffirms society's faith and commitment to democracy but also serves as a reminder of the threats against it. Democracy is nurtured not just by elections or constitutional order but also by active citizen participation and their belief in democratic values.

An individual's commitment to democratic values enhances their ability to adapt to societal changes and demonstrate resilience against evolving circumstances and challenges. However, this resistance must be exercised while remaining vigilant against malicious or misleading critiques or actions. Being open to critique is the beauty of democracy, but ensuring these critiques are constructive and genuine protects and sustains democratic values.


Federal President Steinmeier's "Address to the Nation" is a call emphasizing the importance of democratic values and dissent. However, maintaining the balance between being open to critique and showing resistance is essential for preserving and evolving democracy. This balance will shape the future of democratic societies. The coexistence of democratic values and dissent, and their significance for societal cohesion and resilience, should never be forgotten.


9. The Power of Democracy, Everyday Resistance, and Protection Against Injustice

Federal President Steinmeier's call for 'resistance' is a critical emphasis on the unwavering commitment to the constitutional order and democratic values. This important call, however, falls short as it doesn't offer a more specific framework on how to approach individuals or groups that might misuse democratic critique. The power of democratic resistance reinforces our belief in democratic values and contributes to their protection. Therefore, we must be cautious against the misuse of democratic critique.


For individuals, minor acts of resistance, while exposing them to significant risks, can be important and major steps for their communities. These individuals, referred to as "everyday whistleblowers", showcase their moral courage and spirit of resistance to make society more just and livable. For example, Miroslaw Schlitzer, by reporting to the authorities that corrupt slaughterhouse waste was being attempted to be used in food production, has protected the health of many people and aided in averting a potential danger.


However, acts of resistance can result in personal costs. Those who resist can be perceived negatively by employers and other authorities and, consequently, can be fired or victimized in other ways. New whistleblower protection laws aim to strengthen such everyday resistances, but for many resisters who have faced victimization in the past, the introduction of these laws can be seen as a step taken too late.


Therefore, alongside whistleblower protection laws, society needs to value moral courage and resistance more and be more sensitive in protecting those who are victimized. Resistance should be recognized as an element of democracy, and such actions should be respected. A new understanding and sensitivity should be developed for any resistance movement, small or large, against injustice. This will help in building our democracy on firm foundations.


10. Conclusion

At the heart of democracy lies access to information and how this information is managed. Modern democratic societies continuously reassess the balance between privacy and transparency. Whistleblowers are individuals with a critical role at this balance point; they test both the ethical and legal boundaries of society and state mechanisms. Throughout history, the information revealed by whistleblowers has played a significant role in understanding and shaping societal justice, ethics, and democracy. The events and individuals evaluated in this article illustrate the importance for democratic societies to question the actions of the state and large organizations. The actions of whistleblowers both carry risk and require moral courage. Their existence ensures that democracy remains vibrant and healthy. Therefore, it's indicative of how much value societies place on justice, transparency, and ethical values for democratic societies to acknowledge the worth of whistleblowers and the information they provide, and to protect them.


September 30, 2023, Essen




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