Note: this article, featuring our National Security Analyst Irvin McCullough, was originally published here.
Intelligence Whistleblowers Face a Dangerous Path to Congress
WASHINGTON — When House Intelligence Committee Chairman Adam Schiff, D-Calif., issued a rare subpoena to acting spy chief Joseph Maguire, commanding him to share with Congress an “urgent” and “credible” disclosure reportedly relating to the president, it kicked off a heated debate across different government agencies and Capitol Hill over how to handle the anonymous complaint.
One of the most perplexing questions for outsiders is if the complaint was so urgent, why didn’t the whistleblower go straight to Congress, bypassing the jurisdictional battle between overseers?
According to whistleblowing experts in the intelligence community, there are a number of restraints on employees with access to classified information who want to sound an alarm about an illegal act, fraud, waste or abuse within their agency—at least if they want to be protected by the law and kept anonymous. In other words, if the whistleblower wants to keep their job, they can’t necessarily go straight to Congress, but must instead navigate a complex system of rules and regulations that determine how, and to whom, they can disclose information.
It’s unclear whether the Office of the Director of National Intelligence or the whistleblower’s agency provided specific guidance on how he or she could communicate with the congressional committees. The office referred questions about these policies to the Intelligence Community Inspector General, whose spokesperson provided a link explaining training on protecting whistleblowers with access to classified information and the whistleblower hotline without elaborating further.
However, at most of the intelligence agencies, employees who want to talk to Congress about a problem without going to the inspector general may need to jump through certain hoops first.
Those procedures might require speaking to a range of people internally, notifying the inspector general, and following other security practices, before going to Congress.
“I’ve seen some commentators suggest that the whistleblower should go straight to the congressional intelligence committees or the Hill,” explained Irvin McCullough, a national security analyst at the transparency organization Government Accountability Project.
“There is a process by which the whistleblower could go to the Hill, but in most circumstances that requires the whistleblower to give up their anonymity.”
“Some agencies require whistleblowers to fill out forms with their name and the subject matter [before] their disclosing to Congress. This puts a target on their back.”
Additionally, experts say, whistleblowers are sometimes required to meet with their supervisor, members of the agency’s legislative affairs team or other officials inside the agency, and by then, the firewall between senior leadership and the whistleblower is often obliterated, most likely exposing them to possible retaliation from their superiors.
While it doesn’t happen every time, “the [intelligence community] frequently tells people that they would have to go through [legislative affairs],” said Mandy Smithberger, the director of the Center for Defense Information at the Project on Government Oversight.
In multiple instances, including when whistleblowers went to Congress to discuss the CIA’s controversial rendition and interrogation program, employees were unnecessarily exposed to risk within their agencies, putting their careers in danger, according to two sources familiar with the matter,
Dan Meyer, a managing partner at D.C. law firm Tully Rinckey and the former head of the intelligence community whistleblowing program, was also exposed when he brought concerns about the sidelining of his office to Congress. He was subsequently fired, a decision that has still yet to be fully investigated.
And Andrew Bakaj, the attorney representing the Trump whistleblower, was exposed to his superiors at the CIA Inspector General after communicating about issues in his office with the Intelligence Community Inspector General and Congress. He was put on administrative leave and lost his security clearance, only to be vindicated by the Department of Homeland Security’s Inspector General over five years later.
Whistleblower advocates have fought against those kinds of internal requirements, which put the employee at unnecessary risk, but any victories they’ve won through changes in law or pressuring specific members of Congress have not been enforced, they tell Yahoo News.
“It’s a gray area. … Congress hasn’t weighed in as much as they should about what they consider to be a protected channel,” said Smithberger.
A key danger for the whistleblower is that, by going out on their own, they will not be protected and could in fact be labeled a leaker for sharing classified information improperly.
“Retroactive classification certainly has been a concern,” said Smithberger. In one instance, a client of the Project on Government Oversight — who blew the whistle on the hostage recovery process — was reprimanded for giving a public presentation that had already been cleared by the Army.
“That’s kind of what happens consistently in these cases,” she said. “The agency looks over your record with a fine-tooth comb. If you’ve handled classified information, if someone looks at your record closely, pretty much everyone has ‘mishandled a document.’”
Yet those issues only become a problem once that person has raised complaints, she explained.
“The intel community … can retroactively classify something,” said one former intelligence official involved in oversight. “You’re always screwed as a whistleblower because, if it’s found out, the agency after the fact will classify it and screw you for a leak.”
Additionally, there aren’t legal protections for whistleblowers who go straight to Congress. While the Intelligence Community Whistleblower Protection Act provides an avenue for people to raise complaints, it offers no actual legal defense.
“That path doesn’t offer protection,” said Mark Zaid, a national security lawyer in Washington, D.C., and co-founder of the nonprofit Whistleblower Aid.
“I have been representing national security whistleblowers for over 20 years. When the [Intelligence Community Whistleblower Protection Act] was passed in 1998, I literally ignored what it stated for over a decade. It offered absolutely no protections for whistleblowers,” he said. “All it did was create a path for [intelligence community] whistleblowers to present their concerns to Congress. I could do that on my own.”
However, there is a path for the whistleblower that does offer some protections, and it’s the path the anonymous employee appears to have chosen — going to the inspector general.
A 2012 executive order issued by President Barack Obama — Presidential Policy Directive 19 — offers some of the first protections for intelligence community whistleblowers, though not every part of it is codified in law, meaning President Trump could rescind it at any time, damaging hard-won protections.
According to one source familiar with the matter, attorneys for the White House floated the possibility of getting rid of PPD19 early in the Trump administration, but were convinced to keep it.
White House officials at the time, sources say, were convinced that fostering an effective channel for whistleblower disclosures was important and might prevent the next major leak of classified information.
Whether the White House remains committed to that process, and whether the executive branch stops stonewalling Congress and allows the inspector general to submit the anonymous complaint, will test the limits of whistleblower protections.
Regardless, experts say, the attention on this particular whistleblower will likely result in his or her exposure and the end of his or her career — and may prevent other whistleblowers from coming forward in the future.
“When the president and his lawyer are on Twitter or the news railing against a whistleblower, and given the irregularities already apparent in this case, it’s hard to imagine that the administration won’t try every trick in the book to minimize this whistleblower’s substantiated concerns or to retaliate against them,” said McCullough of the Government Accountability Project.
“Why would this whistleblower want to be a test case when those in power have already launched an attack against them?” he added.