Note: this article, featuring our National Security Analyst Irvin McCullough, was originally published here.
After Trump’s Ukraine Scandal, Congress Is Moving To Strengthen Whistleblower Protections
Reviewing a summary obtained by BuzzFeed News, one expert said: “These look like incredibly important, excellent reforms.”
WASHINGTON — Congress is working on strengthening the laws that allow employees at US spy agencies to blow the whistle on wrongdoing, following efforts by President Donald Trump and his allies to expose and attack the intelligence official whose complaint sparked Trump’s impeachment.
The Republican-led Senate Intelligence Committee, which oversees the nation’s intelligence apparatus, has written bipartisan legislation that would fix gaps in the whistleblower process, BuzzFeed News has learned. The bill contains four main provisions on the topic, including one explicitly banning the leaking of a whistleblower’s identity, according to a summary of those sections provided by a Democratic committee aide.
The new measures, which the committee is set to debate and vote on behind closed doors on Wednesday, are the result of an inquiry the committee undertook in September. The inquiry began after the Trump administration withheld the whistleblower complaint about the president’s interactions with Ukraine from Congress, despite a law requiring that the country’s top intelligence official turn it over to lawmakers.
Though not yet final, the provisions could be viewed as another rebuke to Trump from a committee that previously subpoenaed his son during the Russia investigation. Trump had sought to reveal the identity of the Ukraine whistleblower and dubbed the broader whistleblower process a “racket.”
A spokesperson for North Carolina Sen. Richard Burr, committee chair up until last month, declined to comment. A spokesperson for Florida Sen. Marco Rubio, the acting chair, did not return a request for comment.
The provisions are contained within the Senate’s yearly intelligence bill, which provides funding to the government’s spy agencies and authorizes their activities. Known as the Intelligence Authorization Act, the bill typically passes with broad bipartisan support.
The House Intelligence Committee is planning to include added protections for whistleblowers in its version of this year’s Intelligence Authorization Act as well and will debate and vote on the bill in July, the committee’s chair, Adam Schiff, confirmed to BuzzFeed News.
The House version of the bill will also seek to add protections for government watchdogs, according to Schiff. Trump has dismissed several of them in recent weeks, including the intelligence community inspector general who handled the Ukraine complaint and the State Department inspector general, who was reportedly investigating allegations that Secretary of State Mike Pompeo had used department resources for personal reasons.
“Whistleblowers and inspectors general provide a critical channel in exposing misconduct and supporting independent oversight of the federal government,” Schiff said in a statement.
“In light of this administration’s continued attacks on whistleblowers, inspectors general and other independent oversight mechanisms, we will continue to work to strengthen laws that ensure the integrity and independence of the Intelligence Community and associated oversight mechanisms in this year’s IAA.”
Though concerns about the intelligence community’s whistleblower process are nothing new, the events leading up to the impeachment inquiry shined a light on a system that advocates and lawmakers have been trying to improve for years.
“You have this intelligence community system that hadn’t really been battle-tested in a major public way,” said Irvin McCullough, a national security analyst at the Government Accountability Project who specializes in whistleblowing inside the intelligence agencies and military.
“The Ukraine case was one of the first major public tests of this system, but that doesn’t mean there wasn’t a lot of stuff going on beforehand.”
In September, then–intelligence community inspector general Michael Atkinson revealed to Congress that Joseph Maguire, then the acting director of national intelligence, had withheld the complaint from Congress, despite the fact that Atkinson had determined that the complaint met the legal threshold to share it with lawmakers. Instead, Maguire consulted with the White House — even though the complaint was about the president — and the Department of Justice, which issued an Office of Legal Counsel opinion contradicting Atkinson.
The Intelligence committees eventually received the full complaint, but some lawmakers were concerned about the process. Maguire and Atkinson — whom the president fired in April — testified for hours before both committees.
Burr and Virginia Sen. Mark Warner, the vice chair of the Senate Intelligence Committee, called in other intelligence officials for closed-door interviews as well.
The House committee was also criticized by Trump and his allies in the fall for providing guidance to the whistleblower before the individual filed the complaint with the inspector general — something that’s a regular practice for the Intelligence committees.
Now, the Senate committee has allocated four sections in its bill to address that and other issues. McCullough, after reviewing a summary of the provisions provided to BuzzFeed News, said they address “some of the biggest problems inside the intelligence community whistleblowing system.” Though the exact text of the bill has not yet been released, McCullough said the measures seem to remedy the problems.
The first provision would tackle what McCullough says has been a “grey area of law” — whether intelligence community whistleblowers are fully shielded from having their identities improperly disclosed. The provision would add “strict confidentiality requirements to protect whistleblower safety,” according to the summary, and provide whistleblowers with “a private right of action” if their identity is leaked.
The second section would clarify the legal definition of an “urgent concern,” the standard by which the inspector general decides whether complaints should be sent to Congress, the summary said. By eliminating the ambiguity that the Justice Department seized upon, the bill restores the inspector general’s role as the arbiter of what gets transmitted to Congress.
“This is an extraordinarily important problem that was identified in the Ukraine whistleblower’s case,” McCullough said, adding that he believed it was “totally improper” for Maguire to withhold the complaint.
The third section would clarify that the intelligence community inspector general and whistleblowers are allowed “to come directly to the Chair and Vice Chair or designated nonpartisan staff of the intelligence committees” to submit information, the summary said.
Though whistleblowers have generally gone to the committees for advice — as the Ukraine whistleblower did — before submitting official complaints to their inspectors general, the law is murkier when it comes to them submitting complaints directly to Congress, McCullough said.
Making clear that whistleblowers and the inspector general are allowed to do so “would be a huge paradigm shift,” McCullough said.
The third provision also requires that whistleblowers be “available for an interview subject to appropriate safety protections,” the summary said — a likely nod to Burr’s frustrations about being unable to interview the whistleblower in-person due to safety concerns.
The final section, the summary said, would apply criminal penalties against anyone who shares a whistleblower complaint with the target of the complaint without the whistleblower’s written permission — as Maguire did when he contacted the White House.
McCullough said there’s more Congress could do to improve the intelligence community whistleblower system, such as making it more independent. “But working with the system we have now, these look like incredibly important, excellent reforms,” he said.
If approved by the committee on Wednesday, the bill will head to the full Senate, where it could be tacked on to a massive defense spending bill, as it was last year, or considered on its own.