In 2017, Senator Chuck Grassley (R-IA), then-Representative Jason Chaffetz (R-UT), and Representative Mark Meadows (R-NC), emphasized the importance of whistleblowers in a bicameral letter to the incoming Trump administration. The Members advised the President that “protecting whistleblowers is crucial to [your] success and the oversight process,” and highlighted the illegality of gag orders, which can keep problems festering in the shadows. The Members of Congress counseled the new administration that the best way to “drain the swamp” was with the help of whistleblowers. Perhaps most importantly, the Members also wrote that “protecting whistleblowers who courageously speak out is not a partisan issue—it is critical to the functioning of our government.”
Events surrounding the whistleblower complaint that helped spark the impeachment inquiry into President Trump underscore several additional critical issues with intelligence community whistleblower laws. Last year, when (at the direction of the White House) acting Director of National Intelligence Joseph Maguire failed to transmit a credible complaint of urgent concern to congressional intelligence committees within seven days of the Ukraine whistleblower’s disclosure, he demonstrated a fundamental problem with the Intelligence Community Whistleblower Protection Act. The law put in place procedural hoops—such as the requirement that inspectors general send complaints to the director of national intelligence, who then transmits them to Congress—in order to prevent the unauthorized release of national security information to the public or our adversaries. However, it is clear now that these procedural hoops are potentially detrimental to proper oversight. In fact, the inspector general for the intelligence community told Congress that acting Director of National Intelligence Maguire’s failure to transmit the whistleblower’s complaint or any information about the complaint to Congress “may reflect a gap in the law that constitutes a significant problem and deficiency.”
An example of this gap can be seen through the Ukraine whistleblower’s disclosure. This disclosure was made available to Congress and the public not because the law worked as intended but instead due to the proactive steps taken by the whistleblower and by Intelligence Community Inspector General Michael Atkinson who alerted Congress of the whistleblower’s existence. Lawmakers intended to create a path for intelligence community whistleblowers to make disclosures directly to Congress through the Intelligence Community Whistleblower Protection Act of 1998. Congress must clarify the law so that future complaints are not inappropriately withheld under the same standard and legal justification promulgated by the Justice Department’s Office of Legal Counsel in reference to the Ukraine whistleblower’s disclosure. Congress should remove all legal barriers for whistleblowers or permit the intelligence community’s inspector general to communicate directly to the intelligence committees.
Finally, recent events highlight a troubling lack of clarity about whether whistleblowers and those who voice concerns have a legal right to anonymity. First, the President, some media figures, and even Members of Congress have criticized the Ukraine whistleblower’s decision to remain anonymous. President Trump has gone so far as to retweet a post that contained the name of a federal employee suspected of being the whistleblower. The New York Times has published identifying information about the whistleblower in an effort to establish the credibility of the whistleblower’s complaint. At the same time, the Washington Post is suing the Special Inspector General for Afghanistan Reconstruction (SIGAR) to force the release of the identities of individuals who spoke to the watchdog about the war in Afghanistan.
The Inspector General Act of 1978 states that inspectors general are obligated to maintain a whistleblower’s or source’s confidentiality unless disclosure is “unavoidable.” While the statutory language could be stronger, the default standard is clearly that those who wish to remain anonymous so they can report wrongdoing or concerns without fear of retaliation should be able to do so.
However, inspectors general are not the only people in government who are in a position to out a whistleblower. When a whistleblower raised concerns with their supervisors before formally filing a complaint with the Office of Special Counsel or an inspector general, then that supervisor is also in a position to out the whistleblower and the prohibition in the Inspector General Act does not apply. Whistleblower laws, and various other statutes, as currently written might already provide relief for whistleblowers who have had their identities exposed without their consent, but without case law or explicit codified text, whistleblowers are left wondering whether they have an enforceable right to anonymity.
This lack of clarity will no doubt dissuade some would-be whistleblowers or investigative sources from coming forward. Maintaining anonymity is one of best ways for whistleblowers to protect themselves from professional and personal retaliation. Congress can and should address the loopholes and weaknesses in the various whistleblower protection laws to give whistleblowers a fighting chance of prevailing against those who retaliate against them.