Analysis

Whistleblower Fight Could Chill Reports of Wrongdoing

Laws on whistleblowing weren’t crafted to deal with concerns about a president.

U.S. President Donald Trump speaks on the phone with Russian President Vladimir Putin from the White House on Jan. 28, 2017.
U.S. President Donald Trump speaks on the phone with Russian President Vladimir Putin from the White House on Jan. 28, 2017. Drew Angerer/Getty Images

Blowing an actual whistle may be loud and attention-grabbing, but whistleblowing within the U.S. intelligence community is intended to be anything but that. It’s supposed to serve as a discreet and legally protected way for people within the intelligence agencies to report concerns about mismanagement, fraud, waste, or abuse. 

That channel partially imploded this week when it was revealed that acting Director of National Intelligence Joseph Maguire refused to hand over details of a whistleblower complaint to the House Intelligence Committee as is usually required under law, prompting a standoff between Congress and the country’s top intelligence official. 

The complaint by an intelligence official allegedly concerns one or more conversations that U.S. President Donald Trump had with foreign leaders, according to reporting by the New York Times and the Washington Post. The official reportedly found the president’s behavior so concerning it led them to report it to the intelligence community’s inspector general. 

As details of the complaint emerged in the media, it prompted concerns that it could compromise the identity of the official involved, putting them at risk of retaliation. Advocates for whistleblowers also fear that the breakdown in the process could have a chilling effect on others in the intelligence community who might seek to raise red flags about concerning behavior. 

“My biggest concern is the effect that this will have on IC whistleblowers,” said Irvin McCullough, a national security analyst for the Government Accountability Project transparency group.

If people do not come forward to report abuse, McCullough said, “the IC IG [inspector general] will have less sources to investigate wrongdoing. As a result of that, wrongdoing will happen unabated.”

Without safe channels through which to report possible wrongdoing, there is a risk that would-be whistleblowers could resort to going public with their concerns instead, said McCullough, potentially putting U.S. national security at risk. 

As a timely reminder of what can happen when someone decides to go public about their concerns, this week’s saga has played out against the backdrop of the release of Edward Snowden’s new book. In 2013, Snowden handed journalists thousands of top-secret documents that detailed the U.S. intelligence agencies’ surveillance of American citizens. 

Many of the mechanisms that now oversee the U.S. intelligence community grew out of the Watergate scandal and the realization that there was a need for greater oversight and accountability in government. Four years after President Richard Nixon resigned, Congress passed legislation creating inspector general’s offices for all federal agencies, and later, in 1989, the Whistleblower Protection Act was passed. 

“This was the bargain that we brokered in the nation after Nixon that there would be some sort of oversight over national security issues,” said Bradley Moss, a national security lawyer.

The complaint at hand, first made on Aug. 12, was found by the Office of the Intelligence Community Inspector General to be credible and a matter of urgent concern. The inspector general then forwarded it to the Office of the Director of National Intelligence, who is then required to forward it to congressional intelligence committees within seven calendar days. 

The acting director of national intelligence’s refusal to hand over the complaint to the intelligence committees is both unprecedented and reflects the fact that at the time the whistleblower statutes were drafted, they did not consider that the subject of complaint could be the president of the United States. 

“The statue never contemplated the idea of someone above the DNI being involved,” Moss said. 

In a letter sent to Rep. Adam Schiff, the chairman of the House Intelligence Committee, on Tuesday, the general counsel for the Office of the Director of National Intelligence argued that the office was within its right to withhold the complaint, as it involved someone who was outside of the U.S. intelligence community, and that the substance of the complaint “did not relate to any ‘intelligence activity’ under the DNI’s supervision.” 

Trump denied reports that he made inappropriate comments to foreign leaders on the phone. “Virtually anytime I speak on the phone to a foreign leader, I understand that there may be many people listening from various U.S. agencies, not to mention those from the other country itself,” he wrote on Twitter. 

“Knowing all of this, is anybody dumb enough to believe that I would say something inappropriate with a foreign leader while on such a potentially ‘heavily populated’ call,” he continued.

The Office of the Director for National Intelligence did not respond to a request for comment. 

Amy Mackinnon is a staff writer at Foreign Policy. Twitter: @ak_mack

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