‘A Scary Prospect.’ Advocates Fear Failings of Already Shaky Whistleblower Protection Act

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Whistleblower advocates bristled watching Acting Director of National Intelligence Joseph Maguire testify in front of the House Intelligence Committee on Thursday regarding a complaint that initiated an impeachment inquiry against President Donald Trump: They saw the full failings of an already shaky whistleblowing act on full display—with no immediate solution in sight.

“The Inspector Generals are supposed to be an independent and trustworthy authority, calling the balls and strikes,” explained Irvin McCullough, a national security analyst for D.C.-based whistle blowing advocacy group the Government Accountability Project. “I’m afraid that whatever the IG determines could be overturned by the executive branch. They have the unchecked authority to challenge the [inspector general’s] conclusions. That’s a scary prospect.”

Channels for whistleblower complaints, and protections for making them, come in a few flavors. There are those for the general population, but then there are separate statutes for the intelligence community. In the intelligence community, a complaint gets forwarded to the United States Inspector General of the Intelligence Community, which is an appointed position meant to serve as a watchdog.

The United States Inspector General of the Intelligence Community (IG) is Michael Atkinson, who worked for the Justice Department and as an assistant to the U.S. attorney in Washington, D.C. The Obama administration awarded his prosecution work in the corruption case against former Rep. William Jefferson (D-La.).

The whistleblower had first anonymously sent a complaint to the CIA’s general counsel, according to reporting by the New York Times. Officials from the White House, CIA, and Justice Department subsequently became involved. 

The informal complaint doesn’t offer the whistleblower protection from reprisal, dictate a course of action, or guarantee anonymity.

Two weeks later, he filed a formal complaint to Atkinson, following standard protocol. The IG is required to make a determination about the complaint in 14 days. Atkinson had made the rare decision that the complaint was an “urgent concern.” Within that time period, on August 26, he sent the complaint and his findings to Maguire.

The formal whistleblower complaint cited concerns that Trump pressured Ukrainian President Volodymyr Zelensky “to take actions that would help [Trump’s] 2020 reelection bid” and that “senior White House officials had intervened to ‘lock down’ all records of the phone call, especially the official word-for-word transcript of the call that was produced—as is customary—by the White House Situation Room.”

Maguire and Atkinson clashed over the next steps. If the IG determines a case is credible and urgent, it should be sent to Congress, Atkinson argued. Maguire countered that the complaint doesn’t meet the definition of “urgent concern” and, in his hearing, he says he consulted the White House for guidance as to executive privilege.

In his testimony, Maguire maintained that the complaint wasn’t kept from Congress on advice of the White House.

Atkinson eventually informed to the House Intelligence Committee of the situation and the practice of forwarding complaints to the Intelligence Committee.

Whistleblowers add to the checks and balances of government, advocates say, but that’s hard to maintain when the branch being reported on is also involved in the complaint.

“There is a narrow portal for reporting,” said Michael German, an FBI agent who turned whistleblower and is now a liberty and national security fellow with the Brennan Center for Justice and NYU Law. “As you can see in this case, the executive branch can make that information very difficult to access, even if someone follows all rules, as this whistleblower has.”

While Maguire was testifying on Thursday, Trump spoke at a closed-door event at the U.S. Mission to the United Nations. His talk veered in and out of the whistleblower complaint, which threatens to derail his presidency.

“But basically that person never saw the report, never saw the call. Never saw the call. Heard something, and decided that he or she or whoever the hell it is—sort of like, almost, a spy,” Trump said, according to recordings of the talk. “I want to know who’s the person that gave the whistleblower, who’s the person that gave the whistleblower the information, because that’s close to a spy. You know what we used to do in the old days when we were smart? Right? With spies and treason, right?”

These comments drew alarm from the whistleblower community, especially when the whistleblower complaint opened a door to the possibility that there could be other calls that where access had been restricted. Similar concerns would likely only come to light if they are able to be reported anonymously.

“The comments frighten me,” McCullough said. “The DNI and the IG are promising protection from reprisal but it’s hard to protect from reprisal on the one hand when, on the other hand, the president is threatening the whistleblower and their colleagues.”

At the same time, advocates are hopeful that the high profile nature of this case will move Congress to reevaluate the process and protections around intelligence community whistleblowers.

In this instance, they say, even though the information eventually found its way to the appropriate hands, it took breaks in the system to get there.

“What worked were leaks—and that’s what the system creates,” said German. “If system worked as it was supposed to, [the complaint] would have been reported to Congress in secret and no member of congress would have been allowed to talk about it.”

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