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Intelligence Whistle-Blower Law, Explained Intelligence Whistle-Blower Law, Explained
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WASHINGTON — Congress is in a sharply escalating standoff with the Trump administration over its refusal to share a whistle-blower complaint with lawmakers that is said to be at least in part about President Trump’s communications with Ukraine.WASHINGTON — Congress is in a sharply escalating standoff with the Trump administration over its refusal to share a whistle-blower complaint with lawmakers that is said to be at least in part about President Trump’s communications with Ukraine.
The chairman of the House Intelligence Committee, Representative Adam B. Schiff, Democrat of California, has accused the acting director of national intelligence, Joseph Maguire, of violating the law by refusing to turn over the information to his panel, which conducts oversight of the intelligence community. But the Justice Department has said Mr. Maguire can lawfully keep it secret, according to his lawyer.The chairman of the House Intelligence Committee, Representative Adam B. Schiff, Democrat of California, has accused the acting director of national intelligence, Joseph Maguire, of violating the law by refusing to turn over the information to his panel, which conducts oversight of the intelligence community. But the Justice Department has said Mr. Maguire can lawfully keep it secret, according to his lawyer.
Details about the complaint have nevertheless started trickling out, suggesting that it may center on efforts by Mr. Trump to use his official powers, like the ability to delay military aid to coerce Ukraine into opening a criminal investigation into former Vice President Joseph R. Biden Jr., the front-runner for the 2020 Democratic presidential nomination. Details about the complaint have nevertheless started trickling out, suggesting that it may center on efforts by Mr. Trump to use his official powers, like the ability to delay military aid, to coerce Ukraine into opening a criminal investigation into former Vice President Joseph R. Biden Jr., the front-runner for the 2020 Democratic presidential nomination.
Some of Mr. Trump’s pressuring of Ukraine has taken place in plain sight, but the identity of the whistle-blower and details of the allegations remained hidden. Mr. Trump attacked the whistle-blower on Friday as partisan while defending his conversations with foreign leaders as appropriate.Some of Mr. Trump’s pressuring of Ukraine has taken place in plain sight, but the identity of the whistle-blower and details of the allegations remained hidden. Mr. Trump attacked the whistle-blower on Friday as partisan while defending his conversations with foreign leaders as appropriate.
This intensifying furor is putting pressure on the legal rules for whistle-blower complaints filed by members of the intelligence community. This is how those rules are supposed to work.This intensifying furor is putting pressure on the legal rules for whistle-blower complaints filed by members of the intelligence community. This is how those rules are supposed to work.
A whistle-blower is someone inside an organization who sees a problem that is going uncorrected — like waste, fraud, abuse, criminal behavior or something that threatens public safety and security — and tries to bring it to light.A whistle-blower is someone inside an organization who sees a problem that is going uncorrected — like waste, fraud, abuse, criminal behavior or something that threatens public safety and security — and tries to bring it to light.
In ordinary parlance, a whistle-blower can be someone who speaks out publicly or provides information to journalists. But the government tries to maintain control of information by defining a whistle-blower, for legal purposes, as someone who follows certain procedures that channel a complaint to its internal oversight mechanisms — chiefly, inspectors general and congressional oversight committees.In ordinary parlance, a whistle-blower can be someone who speaks out publicly or provides information to journalists. But the government tries to maintain control of information by defining a whistle-blower, for legal purposes, as someone who follows certain procedures that channel a complaint to its internal oversight mechanisms — chiefly, inspectors general and congressional oversight committees.
As an incentive for raising concerns in the way the government prefers, the law provides safeguards to whistle-blowers who obey the rules, like shielding them from losing their security clearances or otherwise being punished in retaliation, like being passed over for promotion, transferred, demoted or fired.As an incentive for raising concerns in the way the government prefers, the law provides safeguards to whistle-blowers who obey the rules, like shielding them from losing their security clearances or otherwise being punished in retaliation, like being passed over for promotion, transferred, demoted or fired.
Whistle-blowing within the intelligence community presents a special set of tensions, both because the government wants to keep classified information secret and because presidents of both parties have tried to maintain control over decisions about disclosing internal information to lawmakers.Whistle-blowing within the intelligence community presents a special set of tensions, both because the government wants to keep classified information secret and because presidents of both parties have tried to maintain control over decisions about disclosing internal information to lawmakers.
Congress, however, generally disagrees with the executive branch’s expansive theory of presidential control over information. The two branches worked out a compromise that Congress passed as the Intelligence Community Whistleblower Protection Act in 1998 and amended in 2010 and 2014.Congress, however, generally disagrees with the executive branch’s expansive theory of presidential control over information. The two branches worked out a compromise that Congress passed as the Intelligence Community Whistleblower Protection Act in 1998 and amended in 2010 and 2014.
That law sets up a special process that allows intelligence employees or contractors to provide information to Congress in exchange for protecting them from retaliation or the threat of reprisal. Under that procedure, they submit the complaint for lawmakers to the intelligence community’s inspector general.That law sets up a special process that allows intelligence employees or contractors to provide information to Congress in exchange for protecting them from retaliation or the threat of reprisal. Under that procedure, they submit the complaint for lawmakers to the intelligence community’s inspector general.
Under the law, the inspector general must decide within 14 days whether the information is credible. The inspector general must also determine whether the allegations amount to an “urgent concern,” meaning they relate to a “serious or flagrant problem, abuse, violation of the law or executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the director of national intelligence involving classified information.”Under the law, the inspector general must decide within 14 days whether the information is credible. The inspector general must also determine whether the allegations amount to an “urgent concern,” meaning they relate to a “serious or flagrant problem, abuse, violation of the law or executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the director of national intelligence involving classified information.”
If the complaint meets that standard, the inspector general is supposed to forward it to the director of national intelligence. The law says that within seven days of receiving the complaint, the director in turn shall forward the material to the House and Senate intelligence oversight committees.If the complaint meets that standard, the inspector general is supposed to forward it to the director of national intelligence. The law says that within seven days of receiving the complaint, the director in turn shall forward the material to the House and Senate intelligence oversight committees.
No. While the inspector general for the intelligence community, Michael K. Atkinson, told Congress that he had determined that the complaint was credible and qualified as an “urgent concern,” Mr. Maguire has refused to transmit it to Congress.No. While the inspector general for the intelligence community, Michael K. Atkinson, told Congress that he had determined that the complaint was credible and qualified as an “urgent concern,” Mr. Maguire has refused to transmit it to Congress.
The Intelligence Community Whistleblower Protection Act says that if the inspector general rejects a complaint as not credible or not presenting an urgent concern, the official who filed it may still then provide the information to Congress. But in order to continue to be legally protected from reprisal, he or she must obey directions from the director of national intelligence on how to approach lawmakers in a way that secures classified information.The Intelligence Community Whistleblower Protection Act says that if the inspector general rejects a complaint as not credible or not presenting an urgent concern, the official who filed it may still then provide the information to Congress. But in order to continue to be legally protected from reprisal, he or she must obey directions from the director of national intelligence on how to approach lawmakers in a way that secures classified information.
That raises another loophole: The whistle-blower first must obtain specific directions from the director of national intelligence before he or she can obey them. Here, Mr. Maguire is apparently refusing to provide any, according to a House Intelligence Committee official.That raises another loophole: The whistle-blower first must obtain specific directions from the director of national intelligence before he or she can obey them. Here, Mr. Maguire is apparently refusing to provide any, according to a House Intelligence Committee official.
Mr. Maguire’s top lawyer, Jason Klitenic, has maintained that it is lawful for Mr. Maguire to withhold the complaint from Congress. Mr. Klitenic, who said he consulted the Justice Department, has made arguments in letters to Mr. Schiff both about how he interprets the statute and about constitutional law.Mr. Maguire’s top lawyer, Jason Klitenic, has maintained that it is lawful for Mr. Maguire to withhold the complaint from Congress. Mr. Klitenic, who said he consulted the Justice Department, has made arguments in letters to Mr. Schiff both about how he interprets the statute and about constitutional law.
[Read letters from Mr. Atkinson, Mr. Schiff and Mr. Klitenic.][Read letters from Mr. Atkinson, Mr. Schiff and Mr. Klitenic.]
He disputed Mr. Atkinson’s determination that the complaint meets the legal standard of an “urgent concern,” stressing that it involves the activities of someone — apparently Mr. Trump — who is outside Mr. Maguire’s authority. But Mr. Atkinson has said that what matters is that the activity “relates to one of the most significant and important” of Mr. Maguire’s “responsibilities to the American people,” so it does fall within the legal standard.He disputed Mr. Atkinson’s determination that the complaint meets the legal standard of an “urgent concern,” stressing that it involves the activities of someone — apparently Mr. Trump — who is outside Mr. Maguire’s authority. But Mr. Atkinson has said that what matters is that the activity “relates to one of the most significant and important” of Mr. Maguire’s “responsibilities to the American people,” so it does fall within the legal standard.
Mr. Atkinson has also raised a broader concern with the Justice Department’s notion that the director of national intelligence can proclaim that a complaint, filed in the “urgent concern” process, falls outside its scope: It suggests that the current whistle-blower has no legal protections from reprisal, and could deter future whistle-blower complaints, as well.Mr. Atkinson has also raised a broader concern with the Justice Department’s notion that the director of national intelligence can proclaim that a complaint, filed in the “urgent concern” process, falls outside its scope: It suggests that the current whistle-blower has no legal protections from reprisal, and could deter future whistle-blower complaints, as well.
Mr. Klitenic also suggested that Trump administration lawyers think the Constitution gives the president a legal right to order Mr. Maguire to defy a congressional subpoena for the whistle-blower complaint. The complaint pertained to “confidential and potentially privileged matters relating to the interests of other stakeholders within the executive branch,” Mr. Klitenic wrote.Mr. Klitenic also suggested that Trump administration lawyers think the Constitution gives the president a legal right to order Mr. Maguire to defy a congressional subpoena for the whistle-blower complaint. The complaint pertained to “confidential and potentially privileged matters relating to the interests of other stakeholders within the executive branch,” Mr. Klitenic wrote.
In support of that notion, Mr. Klitenic pointed to claims by two Democratic presidents, Barack Obama and Bill Clinton, when they signed the present system into law in 1998 and 2010. They asserted a constitutional right for presidents to control the disclosure of information to Congress related to their constitutional duties.In support of that notion, Mr. Klitenic pointed to claims by two Democratic presidents, Barack Obama and Bill Clinton, when they signed the present system into law in 1998 and 2010. They asserted a constitutional right for presidents to control the disclosure of information to Congress related to their constitutional duties.
Lawyers for Congress and lawyers for the executive branch have long disagreed over where to draw the line between lawmakers’ power to obtain information and the president’s power to keep information secret.Lawyers for Congress and lawyers for the executive branch have long disagreed over where to draw the line between lawmakers’ power to obtain information and the president’s power to keep information secret.
There is little Supreme Court precedent because the two branches have generally resolved prior disputes through negotiation and accommodation. But Mr. Trump vowed to fight “all” congressional oversight subpoenas after Democrats took over the House this year, leading to a series of lawsuits. This issue may be fated to become another.There is little Supreme Court precedent because the two branches have generally resolved prior disputes through negotiation and accommodation. But Mr. Trump vowed to fight “all” congressional oversight subpoenas after Democrats took over the House this year, leading to a series of lawsuits. This issue may be fated to become another.