September 21, 2019

By Elliot D Cohen

As the current whistleblower crisis comes to a boil, there has been speculation by the news media about an alleged promise that Trump may have made to the President of Ukraine in exchange for “Kompromat” on Biden’s son.  Meanwhile, an anonymous whistleblower sits on potentially explosive information apparently rising to the level of an “urgent concern.”  No less than the rule of law itself may hang in the balance.

Whistleblowing is “the act of reporting waste, fraud, abuse and corruption in a lawful manner to

those who can correct the wrongdoing.” The more serious the threat to public welfare, the more compelling is the decision to disclose the information.  In cases of national security, the case for whistleblowing may be more compelling than in all or most other situations. 

Because of the seriousness of such cases, the U.S Congress has provided special provisions for “Protection of Intelligence Community Employees Who Report Urgent Concerns to Congress” (Sec 702) of the Intelligence Authorization Act (IAA) (Public Law 105-272, 1999).  The law is quite clear about what it considers to be “urgent concerns,” which include "[a] serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information…” The individual entrusted with determining whether a whistleblower complaint satisfies the said description is the Inspector General (IG).  In the present case, the current IG, Michael Atkinson, a Trump appointee, has made this determination.

The process for reporting such a serious violation or abuse of law is also clearly defined.  According to the IAA “[a]n employee of the Agency…who intends to report to Congress a complaint or information with respect to an urgent concern may report such complaint or information to the Inspector General” (my italics).  Notice it says “may,” not “shall” or “must.”  As such, the Act does not forbid the employee from reporting the “urgent concern” directly to Congress. In fact, the Act provides for the direct route in cases where the standard process is unavailable.

According to the IAA, in ordinary circumstances, “the Inspector General shall… transmit the complaint or information to the Director [DNI]” when he or she determines it to be “credible.” In the present case, Atkinson determined the whistleblower’s complaint to be credible, which therefore means he is required to transmit it to the DNI, which he, in fact, has already done.

In turn, the IAA provides that “[u]pon receipt of a transmittal from the Inspector General …the Director shall, within 7 calendar days of such receipt, forward such transmittal to the intelligence committees.”  In other words, the Act is very clear that the IG must disclose the complaint to the DNI who must, in turn, disclose it to the intelligence committees.  This is a matter of settled law. The DNI does not have a choice whether, or not, to comply with the law. The only individual who does have a choice about how to transmit the complaint to Congress is the whistleblower.

 The IAA explicitly provides that, if the IG does not transmit the complaint to the DNI, or is not accurate in the transmission, “the employee may submit the complaint or information to Congress by contacting either or both of the intelligence committees directly” (my italics). In the latter case, the employee is required to furnish the DNI with a copy of the complaint through the IG; notify the DNI of the intent to disclose to Congress; and follow appropriate security procedures for disclosure to the congressional committees as determined by the DNI.

The latter procedures are themselves defined in the U.S. Code of Federal Regulations, “Safeguarding Classified Information” (46 CFR § 503.59). There is no provision that requires the employee to wait for the DNI to disclose to the intelligence committees. Quite the contrary, it provides a legal channel to make such disclosure without the DNI’s disclosure, notwithstanding the DNI’s failure to exercise his or her unequivocal legal duty to transmit the complaint to the intelligence committees.  Therefore, the only conclusion that can be justly drawn from the present situation in which the Acting DNI has refused to forward the complaint to the intelligence committees is that the DNI is not obeying the law.

The DNI has also shared the whistleblower’s complaint with the Justice Department and the President, who have attempted to block transmission to Congress.  Asking the President for permission, however, is like a prosecutor asking the defendant if it is okay to prosecute him.  The IAA states emphatically,

Congress, as a co-equal branch of Government, is empowered by the Constitution to serve as a check on the executive branch; in that capacity, it has a ``need to know'' of allegations of wrongdoing within the executive branch, including allegations of wrongdoing in the Intelligence Community.

Refusal by the Justice Department is also unprecedented, and there appear to be no credible legal grounds for blocking the transmission. The IAA also states unequivocally and unqualifiedly that, no basis in law exists for requiring prior authorization of disclosures to the intelligence committees of Congress by employees of the executive branch of classified information about wrongdoing within the Intelligence Community (my italics).

 The information would only be shared with those in Congress who have clearance to receive classified information, and it would be sent via secure channels pursuant to the U.S. Code of Federal Regulations as cited above.  Therefore, there would be no grounds for claiming a breach in security.  As such, the Justice Department could have no reasonable case against the whistleblower if he or she communicated directly with the congressional intelligence committees. Further, given that the complaint rises to the occasion of an “urgent concern,” it would arguably be unethical for the employee not to so disclose.

 he IAA also explicitly protects intelligence community whistleblowers from any personnel action made in retaliation for a lawful disclosure to a congressional intelligence committee or a member of a congressional intelligence committee.  This is not to dismiss the possibility that there could be reprisal by Trump who may be disposed to follow neither law nor ethics.  However, this may be more reason for the whistleblower to disclose to Congress since the demise of the rule of law itself may be the most urgent concern that is presently at stake.

From a purely self-interested perspective, it is not unreasonable to suspect that Trump already knows the identity of the whistleblower.  If so, a decision by the whistleblower to withhold disclosure for purposes of self-protection could prove self-defeating. 

More importantly, the US Congress, including both House and Senate, needs to stand firm against usurpation of the rule of law.  In the present case, this means making clear that there will be no reprisal for performing one’s civic duty pursuant to law. 

Elliot D. Cohen is an ethicist and political analyst. He is the author of Technology of Oppression: Preserving Freedom and Dignity in an Age of Mass, Warrantless Surveillance and other books and articles on electronic surveillance and related issues.

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