Confrontation over Intelligence Whistleblower Complaint Shows Laws Falling Short

On Friday, the chairman of the House intelligence committee subpoenaed acting Director of National Intelligence Joseph Maguire. The subpoena demanded that Maguire send the committee a whistleblower complaint that should have been submitted to Congress by law, and to appear before the committee for a public hearing on Thursday, September 19, if he would not comply with the request. The conflict is the latest example of how legal rights for intelligence community whistleblowers fall short, leaving Congress in the dark about allegations of problems involving national security.

The whistleblower filed an “urgent concern” with the intelligence community inspector general a month ago, which the watchdog found to be credible, as described by committee chairman Adam Schiff (D-CA) in a press release. Under the Intelligence Community Whistleblower Protection Act, once the inspector general has sent a whistleblower complaint to the director of national intelligence, the director must forward the complaint within seven days to Congress’s intelligence committees.

In what Schiff says is an “unprecedented departure from past practice,” Maguire has not complied with the law, arguing that the underlying information involves “potentially privileged communications by persons outside the Intelligence Community.”

The language of the law does not provide any exemptions for the director of national intelligence not to communicate these disclosures to Congress once the inspector general has determined it should, which Schiff points out. So, even if what the acting director claims is true, it would not exempt him from complying with federal law.

On Tuesday the Director of National Intelligence’s general counsel, Jason Klitenic, sent a letter to Schiff refusing to provide the complaint to the committee, arguing that because the complaint involves someone outside the intelligence community the Intelligence Community Whistleblower Act does not apply. That’s vastly different language than what is included in the statute, which defines “urgent concern” as “relating to the funding, administration, or operation of an intelligence activity … involving classified information.” Klitenic also said the acting director would not appear before the committee.

Meanwhile, the whistleblower remains in a bind. The law contemplates a scenario where the intelligence community inspector general “does not transmit” or inaccurately sends along the whistleblower’s complaint to Congress, with an intervening pitstop at the director of national intelligence. In those situations where the breakdown occurs with the inspector general, the whistleblower can go directly to the congressional intelligence committees as long as the whistleblower follows rules for protecting classified information. The law is silent about situations when the inspector general sends along the whistleblower’s information as required and the director of national intelligence keeps it from getting to Congress, as Schiff says happened here. (Commentators at Lawfare and Just Security have made similar observations about the law’s silence in this regard.)

Perhaps anticipating this kind of situation, an intelligence policy bill passed by the House in July included a provision for the intelligence community inspector general to review policies for intelligence whistleblowers in order to “identify any discrepancies, inconsistencies, or other issues, which frustrate the timely and effective reporting of intelligence community whistleblower matters to appropriate inspectors general and to the congressional intelligence committees, and the fair and expeditious investigation and resolution of such matters.”

This case illustrates why intelligence community whistleblowers shouldn’t have to go through intermediaries before they can inform Congress of matters that can impact the nation’s security. Throughout the rest of the executive branch, whistleblowers can lodge their disclosures directly with Congress without first getting approval from their agency’s inspector general or the head of their agency.

Under the legal status quo, Congress has largely put itself in the position of relying on the intelligence community to tell them what they need to know to properly conduct oversight.

Even the intelligence community inspector general appears partially muzzled in this case. While the inspector general informed Schiff of the matter and what’s happening procedurally, Schiff still relies on the director of national intelligence to send along the substance of the whistleblower’s disclosure.

Further compounding Congress’s weak position is the inadequate state of whistleblower protections for those working in the intelligence community. Those protections have become stronger in recent years, but still fall behind those of their civilian counterparts in the federal government. For instance, no independent body can compel intelligence agencies to reinstate intelligence employees who’ve been retaliated against. And while some intelligence community whistleblower protection laws exist, the enforcement provisions for the retaliation protections are largely housed in presidential directives, not in statutory law, making them revocable.

The intelligence community and the executive branch have long contested Congress’s ability to get classified information from whistleblowers. When the Intelligence Community Whistleblower Protection Act was being considered by Congress in 1998, the Office of Legal Counsel in the Clinton administration’s Justice Department wrote that “vesting in individual federal employees the power to control disclosure of classified information” would be “unconstitutional.” Congress worked around this by passing a version of the legislation that required whistleblowers to go through the convoluted process that is impeding Schiff’s committee from accessing information today.

That process assumes the executive branch will operate in good faith. Though not unique to this administration, Congress is running into instance after instance of executive branch intransigence over requests for information needed to conduct oversight. In the national security arena, Attorney General William Barr has made particularly far-reaching claims of executive power. Those claims give inadequate weight to Congress’s national security role. The Constitution explicitly placed numerous national security powers in the hands of Congress, including the power to declare war itself.

But the executive branch is only part of the problem; Congress has shirked its responsibilities in the national security area for decades. The failure of one effort is a case in point: In 1997, then-Senator Daniel Patrick Moynihan (D-NY) spearheaded a committee on secrecy whose primary recommendation was to root the government’s secrecy system in laws passed by Congress. “Enactment of this general, overarching statute would have the laudatory effect of increasing the likelihood of oversight and, thereby, of promoting greater accountability on the part of the officials within the Executive Branch responsible for setting policies and making decisions on classification and declassification matters,” the congressional commission recommended. Moynihan and then-Senator Jesse Helms (R-NC) co-sponsored such legislation that never became law.

That recommendation and many other ways to restore balance in our system of checks and balances have yet to be realized. Congress should seize the moment for broader reform.