Whistleblowers from the United States Intelligence Community use a special system to spotlight concerns and seek redress—separate from the legal systems empowering and protecting their colleagues outside the secret sector. Although intelligence workers may have more high-stakes disclosures than their peers across the civil service, they have far fewer rights to raise concerns and remedies to correct retaliation. The public glimpsed some of this reality in 2019 as the intelligence whistleblowing system struggled during President Donald Trump’s first impeachment investigation.
The system protecting intelligence whistleblowers is relatively nascent. Its patchwork of protections began with the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA), a statute that despite its name set up a system for intelligence workers to make whistleblowing disclosures without providing anti-retaliation protections. President Barack Obama established anti-retaliation protections for this system by issuing Presidential Policy Directive 19 (PPD-19) in 2012, mostly implemented by Intelligence Community Directive 120 (ICD 120). Since then, Congress has codified most of this system and improved it around the margins, as seen in 50 U.S.C. §§ 3234, 3341(j). Despite its relative infancy, security analysts and whistleblower experts have spent the time since its creation both assessing its strengths and weaknesses and thinking through reforms.
This fall, the Senate Select Committee on Intelligence (SSCI) unanimously supported legislation that included multiple paradigm-shifting reforms to this system. Spearheaded by Sen. Ron Wyden (D-OR), a SSCI member and Co-Chairman of the Senate’s Whistleblower Protection Caucus, these reforms clarify whistleblowers’ ability to make disclosures directly to Congress, assert independent watchdogs as the referee in determining the urgency of whistleblowers’ concerns, harmonize existent intelligence whistleblowing policies and laws, and protect intelligence whistleblowers’ confidentiality.
However, the fate of this year’s Intelligence Authorization Act (IAA), the vehicle for SSCI’s reforms, is uncertain. And even if the congressional intelligence committees are able to pass an intelligence funding bill this year, whether or not it would include these provisions is still up in the air because the House Permanent Select Committee on Intelligence (HPSCI) did not include these reforms in their version of this year’s IAA, meaning these reforms could disappear in conference. HPSCI Chairman Adam Schiff (D-CA) included a few similar reforms in his Protecting Our Democracy Act (Title VIII, Subtitle B), which recently passed the House and faces an uncertain future in the Senate, but only SSCI’s IAA included the reform package described below. Last year, SSCI passed similar whistleblowing reforms in its IAA only for then HPSCI Chairman Devin Nunes (R-CA) to reportedly attempt to block the entire IAA over SSCI’s bipartisan whistleblowing language.
We strongly recommend that the House follow the Senate’s leadership and ensure these necessary reforms are included in the next IAA. Here we analyze how these reforms actually change the system, section-by-section, from the post-passage SSCI IAA (as slightly amended). We describe the status quo and its concomitant problems before discussing the specific reform designed to address those problems and change the system.
Senate Section 321. Submittal of complaints and information by whistleblowers in the intelligence community to Congress.
The free flow of information to Congress is the lifeblood for our Constitution’s checks-and-balances on executive branch abuses of power. However, the process for intelligence whistleblowers to contact Congress is restrictive and cumbersome, and contradicts protections granted to intelligence workers in 50 U.S.C. §§ 3234(b)-(c).
When intelligence whistleblowers want to make disclosures to Congress, they are required under the ICWPA and the Inspector General Act (IG Act) to first have a “matter of urgent concern” according to those statutes, encapsulating serious wrongdoing that is not merely a difference of opinion on policy and is within the Director of National Intelligence (DNI)’s jurisdiction. These whistleblowers next make disclosures about their matter of urgent concern to the appropriate IG who then determines whether the whistleblower’s disclosure is credible. Subsequently, the IG must send their findings to the head of the agency who sends the disclosure, along with the agency head’s own comments, to the congressional intelligence committees. This system was designed to ensure that all credible matters of urgent concern are sent to Congress—but it suffers from several inadequacies.
First, if one piece of the puzzle fails, then it’s possible that Congress would not be privy to a matter of urgent concern as the law intended and would therefore be obstructed in their ability to conduct oversight over the Intelligence Community. For example, the ICWPA requires both the agency-head and the IG to act within certain deadlines. The law contemplates an alternative route to Congress for the whistleblower if the IG fails to comply with those timelines, but not if the agency-head fails to comply with its requirements. This is exactly what happened with the Ukraine whistleblower’s disclosure two years ago. While the Intelligence Community IG in that case acted to inform Congress of the issue, we should not rely on the willingness of one office to keep the process moving.
Second, the ICWPA and the IG Act require intelligence workers to first alert their agency via their IG that they intend to communicate with Congress, potentially exposing them to retaliation. Some workers may wish to make disclosures wholly independent of their agency to an appropriate and protected forum. For example, if a whistleblower’s disclosure involved misconduct on behalf of the IG’s office. Congress is an appropriate audience for such disclosures, but forcing intelligence whistleblowers to first go to their IG could have a chilling effect on those who want to make disclosures in good faith but who are wary of an agency-adjacent audience. As the congressional intelligence committees are cleared to receive classified information, they should be able to receive disclosures from intelligence whistleblowers without the disclosures first having to be filtered through the agency that may be the subject of the disclosure.
Section 321 of SSCI’s IAA reforms the system along these lines. If it becomes law, whistleblowers could make protected disclosures—regardless of whether those disclosures are urgent concerns—to Congress more directly, thereby eliminating unnecessary barriers to Congress’s right to know about serious misconduct or illegality within the intelligence community and to conduct oversight adequately. SSCI does this by creating a process for intelligence whistleblowers to express their desire to communicate directly with Congress and receive guidance on how to make that communication securely; and this process includes offramps for the whistleblower to directly contact Congress if either no guidance or insufficient guidance is given. And Sen. Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee and Co-Chairman of the Senate Whistleblower Protection Caucus, secured an impressive change after this reform originally passed: SSCI agreed to expand whistleblowers’ potential audiences beyond the two congressional intelligence committees, meaning intelligence whistleblowers could make disclosures to any congressional committee with relevant jurisdiction.
As an effort to further enhance security while expanding disclosure audiences, and to give whistleblowers a sounding board outside their agency’s security component, Section 321 also requires relevant IGs to create permanent Security Officers within their offices who provide potential whistleblowers with expert opinions on which materials may be disclosed to Congress. This compromise should satisfy the Intelligence Community’s persistent demands to assess classified disclosures for security concerns while minimizing the risks to whistleblowers when they communicate with Congress.
Senate Section 322. Definitions and authorities regarding whistleblower complaints and information of urgent concern received by Inspectors General of the intelligence community.
The legal standard surrounding the determination of an “urgent concern” in the ICWPA and the IG Act is in dire need of clarification to allow whistleblowers to make disclosures to Congress. The relevant IG first determines whether the whistleblower’s disclosure is an “urgent concern” and credible; afterward, the IG sends credible urgent concerns to the relevant agency head for dissemination to the congressional intelligence committees.
This is how the system worked from the passage of the ICWPA in the late 1990s until the Ukraine whistleblower’s urgent concern complaint arrived on the desk of President Trump’s acting Director of National Intelligence (DNI), Joseph Maguire. Agency heads fulfilled their ministerial duty to receive and transmit information. However, the Department of Justice Office of Legal Counsel (OLC) in a September 3, 2019, opinion applied a very narrow reading to the law. OLC argued that even when an IG deems an intelligence whistleblower’s disclosure a “matter of urgent concern,” that decision is still subject to review by the DNI or agency head, who is then allowed to further outsource the decision to the Justice Department. The OLC also asserted that the DNI does not have a statutory obligation to forward complaints deemed urgent by the IG to the congressional intelligence committees, despite the clear language to the contrary in 50 U.S.C. § 3033(k)(5). They came to this conclusion in part by narrowly reading the definition of an urgent concern to exclude election interference, claiming such matters to be outside the DNI’s jurisdiction.
On Sept. 17, 2019, the Intelligence Community IG penned a letter to OLC disagreeing with the office’s opinion and recognizing the litany of problems such an opinion creates. On Oct. 22, 2019, over seventy federal IGs from the Council of Inspectors General for Integrity and Efficiency supported the Intelligence Community IG’s position in a second letter to OLC, saying the ICWPA “makes it clear that the statute does not authorize the agency head, or any other party for that matter, to review or second-guess an IG’s good faith determination.” Recognizing this OLC opinion existentially threatened the intelligence whistleblowing system, the IGs concluded: “If intelligence community employees and contractors believe that independent IG determinations may be second-guessed, effectively blocking the transmission of their concerns to Congress and raising questions about the protections afforded to them, they will lose confidence in this important reporting channel and their willingness to come forward with information will be chilled.”
The decision on whether Congress can conduct oversight into matters of urgent concern raised by an intelligence community whistleblower should not be left to the OLC and its interpretation, especially since that office is not independent from executive branch politics under any administration. Congress got it right when it gave that role to independent watchdogs. And that is exactly what SSCI reasserts through Section 322. That provision simplifies the definition of “a matter of urgent concern” to include “a matter of national security” and reiterates that IGs have sole authority to determine whether a whistleblowing disclosure satisfies the statutory definition of a matter of urgent concern.
Senate Section 323. Harmonization of whistleblower protections.
Whistleblower experts often cite “a patchwork of protections” when discussing the intelligence whistleblowing system (as we have done above). This is because the system’s anti-retaliation protections have been reformed sporadically since their inception, spanning statutes, agency memoranda, and a presidential policy directive.
Congress included within the Intelligence Authorization Act for Fiscal Years 2018, 2019, and 2020 (Sections 5333 and 6713) a requirement that the Intelligence Community IG review this patchwork and develop recommendations regarding the harmonization of procedures for whistleblower reprisal matters. Early this year, the Intelligence Community IG released its report, making seven recommendations to harmonize the intelligence whistleblower system.
Section 323 is SSCI’s response. The section would inject much-needed clarity into the confusing matrix of whistleblower protections across our government, closing loopholes and correcting standards. As one example: The IG found that while 50 U.S.C. § 3234 protects workers from retaliatory personnel actions for making a protected whistleblowing disclosure, including for a whistleblower’s disclosure of “mismanagement,” 50 U.S.C. § 3341(j), which protects workers from retaliatory security clearance actions such as a clearance suspension or revocation, offers protection only for disclosures of “gross mismanagement.” This means if a whistleblower gets their security clearance revoked in retaliation for reporting mere “mismanagement,” rather than “gross mismanagement,” the whistleblower would likely not prevail when challenging the retaliatory revocation.
SSCI corrects this problem and takes an additional step to alter the system handling retaliatory security clearance actions. All too often, intelligence whistleblowers find their clearances and careers in jeopardy in retaliation for making protected whistleblowing disclosures. Although it is unlawful to revoke access to classified information in retaliation for lawful whistleblowing, the due process for enforcing those rights falls short of current best practice standards. The adjudication process, outlined in 50 U.S.C. § 3341(j)(4)(C), requires that an agency merely meet a preponderance of the evidence standard to rebut a whistleblower’s showing that their whistleblowing was a contributing factor in their unfavorable clearance or access decision.
One provision of Section 323 establishes a fairer burden of proof for intelligence whistleblowers fighting retaliatory security clearance and access determinations, requiring an agency to meet a clear and convincing standard. The provision would bring intelligence community elements’ burden of proof (for retaliatory security clearance actions) in line with Title 5 federal whistleblower protections, requiring an agency to prove by clear and convincing evidence that there was a legitimate reason for the action. This is a crucial step in modernizing anti-retaliation statutes and ensuring intelligence whistleblowers’ protections enjoy similar standards to their civil service peers.
Senate Section 324. Prohibition against disclosure of whistleblower identity as reprisal against whistleblower disclosure by employees and contractors in the intelligence community.
It is essential that whistleblowers be able to make anonymous disclosures to avoid reprisal. Unwanted exposure can mean the end of a career for an intelligence whistleblower as it could affect their ability to retain a security clearance and make them a target for foreign intelligence services.
Too often, those who make lawful whistleblowing disclosures are faced with retaliatory investigations that are opened in an effort to expose the whistleblower’s identity and undermine their credibility. These attempts occurred during the Ukraine whistleblower’s case two years ago, and sparked a massive dispute over statutes purporting to protect whistleblowers’ identities. The Washington Post even awarded a dreaded (and somewhat undeserved) Three Pinocchios to the statement that the Ukraine whistleblower enjoyed a “statutory right” to anonymity.
As one author of this article, Irvin McCullough, explained to The Washington Post: The ICWPA “implies anonymity as a shield from other forms of workplace retaliation. While not explicit in the statute, the obvious intent of the ICWPA was to create a channel through which intelligence employees could make disclosures of urgent concerns internally, securely, and anonymously (if they so choose). That’s reinforced by the committee report’s recognition that whistleblowers could seek anonymous guidance from their home agency when making whistleblowing disclosures. The lack of whistleblowers’ right to enforce their confidentiality may be a loophole that Congress should correct.” The other author, Kel McClanahan, wrote a primer exploring the issue in greater detail.
SSCI corrects this problem in Section 324, which makes the knowing or willful disclosure of an intelligence whistleblower’s identifying information without consent—except as necessary during the course of an investigation—a prohibited personnel practice (in 50 U.S.C. 3234). Codifying the outing of a whistleblower’s identity as a prohibited personnel practice is exactly the right response to close this loophole. Moreover, given the importance of whistleblower confidentiality, SSCI also granted intelligence whistleblowers a private right of action to challenge confidentiality breaches in court (after exhausting administrative remedies). This is a paradigm shift that would, for the first time, allow intelligence whistleblowers to enforce their rights in court. The reform comes almost three years after a federal judge dismissed an intelligence whistleblower’s court case and, at the time, one of us analyzed the dismissal by concluding simply: “There is no private right of action for intelligence whistleblowers.”
The fact that SSCI introduced and unanimously supported these reforms shows the willingness to strengthen this system as soon as possible. If these reforms are not passed, problems will persist, and some would-be whistleblowers will likely stay silent. Implementing these reforms are crucial for building an intelligence whistleblowing system that intelligence workers can comfortably trust. Now it’s time for Congress to act on SSCI’s smart work.