Congress’ protections for whistleblowers only go so far
A new law, a response to Donald Trump's first impeachment, is nonetheless an improvement, advocates for it say
Congress wants to ensure that former President Donald Trump’s attempted coercion of Ukraine in 2019 — and his effort to thwart and intimidate the official who disclosed it — never recur. But a new law aimed at doing that is insufficient, several whistleblower advocates contended.
That law, the fiscal 2022 omnibus spending measure, contains provisions that only partly address the abuses of power that led to Trump’s first impeachment in 2019, the analysts told CQ Roll Call this week.
“We are disappointed that the negotiators substituted a baby step for a Senate mandate to systematically overhaul the rights of Intelligence Community whistleblowers,” said Tom Devine, legal director of the Government Accountability Project, an organization that works with and advocates for whistleblowers, in an email. “We’ll be pressing all year to finish what just got started in this bill.”
In 2019, Trump temporarily withheld $400 million in weapons for Ukraine — even as it faced down Russian military incursions in the Donbass region — while Trump tried to get Ukrainian President Volodymyr Zelenskyy to announce that he was investigating Trump's then-rival for the presidency, Joe Biden. Trump and his allies then threatened the anonymous intelligence official who told Congress about Trump's pressure campaign and tried to publicly identify the person.
What's more, Trump’s acting inspector general of the intelligence community withheld the whistleblower’s complaint from Congress for a month, citing a Justice Department Office of Legal Counsel memo that argued the inspector general only had authority to tell Congress about complaints that pertain to the “funding, administration or operation” of a spy agency.
The House voted in December 2019 along party lines to impeach Trump for abuse of power and obstruction of Congress. The Senate, where a supermajority is required to convict a president, acquitted Trump on both counts the following month.
The Government Accountability Office ruled in January 2020 that the Trump administration broke the law in withholding the Ukraine aid.
Preventing a recurrence
This month, Washington enacted the fiscal 2022 spending measure. Buried deep within its 2,741 pages is a provision requiring that the Office of Management and Budget’s so-called apportionment process for disbursing funds be made available for the public and Congress to see — including documentation of any effort to delay or block funds.
Moreover, the new spending package says that inspectors general in the intelligence community “shall have sole authority” to determine if a whistleblower complaint from within their agencies' ranks is “urgent” and therefore must be passed straight to Congress.
But to some legal analysts, the omnibus does not sufficiently clarify what constitutes an urgent matter.
What’s more, the whistleblower advocates said in interviews, several important protections that were part of the Senate Intelligence Committee’s authorization bill were deleted or diluted by the House and Senate negotiators who wrote the new spending law.
The result is much better than nothing, these advocates said, but not nearly what it could have been or should have been.
Kel McClanahan, an attorney who represents intelligence agency whistleblowers, said via email that the omnibus’s provisions on the subject represent “a good — albeit imperfect — first step towards actual meaningful reform.”
Melissa Wasser, policy counsel for the Project on Government Oversight, said in an interview that the omnibus is “a good step in the right direction, but it doesn't fix all of the gaps and problems that face intelligence community whistleblowers.”
Oregon Democrat Ron Wyden, a senior member of the Senate Intelligence Committee, said the omnibus contains key provisions that he advocated for, but is not perfect.
“There are other important protections that I fought to get included in the Senate Intelligence Committee-passed Intelligence Authorization Act but that were stripped out of the omnibus, and it is my intention to continue to fight for them and other critical reforms,” Wyden said in a statement.
The question of urgency
All observers seem to agree that the new law makes clear that agency inspector generals have sole authority to determine whether a whistleblower complaint is “urgent” under the law — not the director of one of the intelligence agencies or some official at the White House or Justice Department. To whistleblower advocates, that is a welcome change.
However, they said, the measure could have provided clearer direction and more flexibility to the inspectors general in deciding what constitutes an urgent issue.
McClanahan said Congress should not have dropped from the omnibus Senate intelligence authorization bill language that said an urgent matter can be "any matter of national security," not just one that pertains to agency budgets or operations, as the Justice Department's Office of Legal Counsel has insisted.
Wasser agrees that the omnibus is too vague on whether the Office of Legal Counsel memo, which she said has not been rescinded, is correct in its narrow interpretation of what constitutes an urgent matter.
“Until they deal with the OLC opinion and how the OLC reads that provision, I don't think this language is as strong as it could be when it comes to protecting these whistleblowers,” Wasser said. “This could happen all over again.”
Wyden said he worked to get into the omnibus the provision granting the inspectors general “sole authority” in determining what constitutes an urgent matter and he believes it will suffice to prevent future attempts to withhold from Congress disclosures a particular administration may wish to hide.
“This provision,” Wyden said, “addresses the Trump Administration Department of Justice’s effort to prevent the [intelligence community] IG from submitting to Congress whistleblower information related to Donald Trump’s corrupt attempt to extort Ukraine for his own political purposes.”
The new law omits other important parts of the Senate intelligence authorization bill, the legal analysts said.
These include a provision aimed at deterring disclosure of the identity of anonymous intelligence-agency whistleblowers.
The Senate intelligence authorization bill had made punishable by law the “knowing and willful” disclosure of the identity of a whistleblower who wants to remain anonymous to shield against possible retaliation.
Whistleblowers are frequently targeted by those they work for, according to government records. For example, the Pentagon inspector general has found scores of cases in recent years in which agency officials retaliated against whistleblowers and were not punished for it.
In 2019, Trump said the Ukraine whistleblower should be executed, and several GOP lawmakers tried in vain to draw the person’s name out into the public record.
Wasser said lawmakers’ omission of the Senate bill’s protection for whistleblower anonymity was “really disheartening.”
Another Senate Intelligence Committee provision that was jettisoned in the final spending package was one that would have set up “security officers” in the inspectors general offices —officials who would help guide intelligence whistleblowers through the process of making disclosures through official channels.
The Senate Intelligence Committee measure had sought to permit whistleblowers to take their concerns straight to Congress, whether the report concerned a matter officially deemed urgent or not. That, too, did not survive in the omnibus.
‘Easiest way to intimidate’
In addition, the omnibus did not include any language to bolster legal protections for whistleblowers whose security clearances are taken away as retaliation for disclosing wrongdoing.
Such a provision, found in similar form in both the House and Senate intelligence bills, would have put the burden of proof on officials who allegedly retaliated to show that “clear and convincing evidence” supported revoking a clearance.
“That is the easiest way to intimidate an intelligence-community whistleblower: to threaten their security clearances,” said Jackie Garrick, a former Pentagon whistleblower who now runs the Whistleblowers of America advocacy group, which has worked with military officials seeking to disclose problems.
“As soon as they make any kind of complaint — or there's even a threat that they're going to make a complaint — an investigation gets opened into whether or not they're fit to have a security clearance," Garrick said of the military whistleblowers.
McClanahan said the failure to include this protection shows how little Congress knows about the indiscriminate nature of security clearance revocations as a form of retaliation.
“The ‘clear and convincing’ standard is a vital reform that we need sooner rather than later, because the current preponderance of the evidence standard can be satisfied in virtually every clearance denial, simply because the agency can say it revoked a clearance because the person wore shoes without socks to work and that showed a lack of good judgment,” he said.
In addition to these missing Senate Intelligence Committee-approved provisions, Congress did not include in any major legislation this year proposals long supported by whistleblower advocacy groups.
At issue are legal changes that would enable spy-agency employees to send whistleblower complaints or allegations of retaliation to the Office of Special Counsel, the independent agency that other federal employees can turn to for legal help.
Second, many advocates would like to enable intelligence whistleblowers to have the right to fight retaliation in court — something they are not legally permitted to do today.
The whole gamut of changes are still needed, the advocates say, to ensure that Congress and the public learn about serious wrongdoing through official channels, as opposed to leaks to the press that have sometimes led to compromises of classified information, as was the case with Edward Snowden, the National Security Agency whistleblower who revealed domestic surveillance programs in 2013.
“We don’t need more Snowdens,” Garrick said.