Handling of Whistleblower Complaint Makes It Impossible for IG To Do His Job

Whistleblowers inside the Intelligence Community are navigating dangerous waters during these interesting times of ours. The system designed to shield these truth-tellers from retaliation is still nascent, but the channel for them to make protected disclosures of wrongdoing is long-standing. Or at least it has been. But now, that channel is threatening collapse after Acting Director of National Intelligence (DNI) Joseph Maguire decided to withhold a whistleblower’s credible disclosure of wrongdoing from Congress. This ill-advised, most likely illegal decision could destabilize the entire Intelligence Community accountability system.

About a month ago, an unidentified whistleblower fashioned an “urgent concern” disclosure to the Intelligence Community Inspector General (IC IG). This is common practice for intelligence whistleblowers. According to the Intelligence Community Whistleblower Protection Act (ICWPA), Intelligence Community whistleblowers can voice concerns to oversight entities responsible for investigating, adjudicating and correcting wrongdoing.

Following the standard process, the IC IG conducted an independent, preliminary investigation to evaluate the credibility of the whistleblower’s complaint. That office found the disclosure credible and that it satisfied the statute’s definition of an “urgent concern.” It then transmitted both the disclosure and the credibility finding to the Acting DNI, affording him the chance to comment before quickly passing those same items to the congressional intelligence committees. This is where the law’s practical implementation came to a halt.

Both the ICWPA process and stakeholder requirements are clearly spelled out in statute. Using the operative “shall,” the ICWPA requires an agency-head to transmit credible whistleblowing complaints to the congressional intelligence committees within seven days of a credibility finding. In this whistleblower’s case, the acting DNI apparently believed—with no public justification—that he could withhold the whistleblower’s urgent concern from his congressional overseers. The House Intelligence Committee, under Rep. Adam Schiff’s leadership, rightly disagreed with the acting DNI’s bold assertion, and subpoenaed the disclosure.

Attempting to justify his decision, Maguire’s general counsel wrote that the complaint did not “meet the statutory definition of an urgent concern,” implying that the IC IG erred in their review.

Such a rebuke is a rare, radical attack against the watchdog. Inspectors general are not agency-heads lapdogs; they are fact-finders, investigating and reporting their determinations independent of external pressure. Their determinations stand. Agency-heads can ignore their findings, sure, but this is why inspectors general are also duty-bound to report to Congress. In this case, the acting DNI can disagree with the IC IG’s conclusion as much as he’d like—but neither he nor his lawyers can change that conclusion. Even the mere assertion that he could do so is a body blow to the IC IG’s independence. Hence the House Intelligence Committee’s steadfast, continued involvement.

This bout may seem like procedural squabbling, but its national security implications are real and potentially devastating. As a result of his actions, Maguire potentially chilled future whistleblowers from revealing wrongdoing, while damaging his watchdog’s efficacy. These problems compound one another—and the result is an accountability vacuum.

Think of it this way: If the acting DNI can withhold sensitive whistleblowing disclosures from the congressional intelligence committees, while simultaneously wielding the unilateral authority to halt investigations by his presidentially appointed and Senate-confirmed watchdog and rebuke that watchdog’s determinations when an investigation occurs, then why would intelligence whistleblowers feel comfortable making any protected disclosures?

Above all else, research indicates that employees are chilled into silence for two reasons: efficacy and safety. Potential whistleblowers are concerned, if they speak out, that nothing will happen as a result of their disclosure and that they are wastefully placing their career (and themselves) in harm’s way. Those fears are emblemized in this case.

It’s not a matter of whistleblowers getting two bites at the investigative apple; rather, it’s a matter of getting any bites at all. And this seemingly unlawful decision ensures that whistleblowers could be left hungry for any independent investigation into their urgent concerns—especially as the acting DNI feels he can overrule his watchdog’s investigative conclusions.

The two statutory entities that can effectuate change as a result of intelligence whistleblowing complaints are inspectors general and the congressional intelligence committees. When whistleblowers pray that someone acts upon their concerns, they pray to these offices.

Yet the current IC IG, Michael Atkinson, has spent the majority of his tenure rebuilding the community’s trust in his office after his predecessor, acting IC IG Wayne Stone, fired the Intelligence Community whistleblowing czar and gutted his office’s whistleblowing program. At his confirmation hearing before the Senate Select Committee on Intelligence in early 2018, Atkinson remarked, “that there is a broad view among the Committee, its staff, and other members that the Office of the IC IG is not currently functioning as effectively as Congress intended.” Candidly, he added: “Simply put, the [IC IG] needs to get its own house in order.”

Our small, intelligence accountability community was devastated by this turf war. My own organization, the Government Accountability Project, which offers legal assistance to many Intelligence Community whistleblowers, advised some clients against bringing their disclosures to the IC IG because we feared their prayers would be unanswered.

Upon Atkinson’s confirmation in March 2018, I told Government Executive: “Whistleblowers shouldn’t feel comfortable going to the IC IG unless they see positive and loud changes within Mr. Atkinson’s first few months.” Since then, according to a recent IC IG semiannual report, the IC IG “restructured its whistleblower program in numerous ways to enhance the IC IG’s efficiency and effectiveness in handling whistleblower complaints and concerns…”

I have had many positive interactions with Atkinson and his staff over the past year. While there are still areas where we disagree, I trust him to follow the law and take whistleblowing complaints seriously.

Rarely, if ever, did I think the major roadblock for a whistleblower would come directly from the DNI. It seemed almost unconceivable to my colleagues and I that a DNI would so blatantly risk their own reputation, the reputation of their watchdog, and the reputation of their community by boldly violating well-established whistleblower law. Yet here we are.

It’s nearly impossible for whistleblowers to trust an IG when their agency-head acts as the acting DNI has, and doubly so when Maguire or his attorneys can overrule any determination the IG makes. Resultantly, the acting DNI tarnished Atkinson’s work to reestablish his office as a leader in the Intelligence Community accountability sphere..

If you’re an Intelligence Community whistleblower, you should be able to make disclosures that will be investigated independently, free from retaliation. It doesn’t matter if the disclosure is political. It doesn’t matter if the disclosure directly involves the DNI. It doesn’t matter if the whistleblowers making the disclosures are watchdogs themselves. There is no litmus test other than an IG’s credibility finding—and even then, whistleblowers should be permitted to take their disclosures directly to the congressional intelligence committees.

Instead, because of the acting DNI’s conduct, whistleblowers will be fearful when they make protected disclosures now. Could their disclosures be treated like this? Are their disclosures too political? Do their disclosures involve a senior official that the DNI wants to protect? That the White House wants to protect?

These are questions whistleblowers should never need to ask. Some will answer these questions and decide to keep information to themselves. Others will decide to share information with the media. On the one hand, the IC IG and the congressional intelligence committees will lose many valuable sources; on the other, whistleblowers may make unprotected disclosures that jeopardize national security.

In either scenario, the acting DNI is at fault for this accountability vacuum. And the country will suffer as a result.

Image: Joseph Maguire is sworn in during a Senate Intelligence Committee hearing to be confirmed as the director of the National Counterterrorism Center, on Capitol Hill, on July 25, 2018 in Washington, DC. Photo by Al Drago/Getty Images

 

About the Author(s)

Irvin McCullough

Investigator for the Government Accountability Project