Putting IC Whistleblower Procedures and Protections to the Test: The Murphy Disclosures

“With great power, comes great responsibility”
– Stan Lee, Amazing Fantasy #15

A quick look at the Church Committee Report, or a search for MKULTRA, provides all the information you need to know to realize the importance of oversight in the U.S. Intelligence Community (IC). Over the last several decades, the quest to provide adequate oversight and guardrails for the IC created dozens of Executive and Legislative actions. The Office of the Director of National Intelligence’s (ODNI) compiles these actions into an 800+ page legal handbook reference. Following the Snowden disclosures, the Executive and Congress sought to guide whistleblowers towards using proper channels and avoiding risk to national security bycreating Whistleblower protections like Presidential Policy Directive (PPD) 19 (note: Snowden was not a whistleblower, but he did bring many whistleblowing issues to light). Mr. Brian Murphy’s recent Department of Homeland Security (DHS) Whistleblower retaliation complaint shows that the system works, but may still be flawed.

Between 2018 and 2020, Mr. Murphy made at least five protected whistleblower disclosures. The disclosures ranged from abuse of authority, to perjury, to censorship of intelligence reporting. Mr. Murphy used the appropriate channels to raise his concerns about fraud and abuse, and his legal counsel argues it was the reason for his demotion in August 2020. (Of note, Mr. Murphy and DHS Intelligence and Analysis (I&A) came under scrutiny following reporting they had conducted intelligence activities on protesters and journalists in Portland, Oregon; Mr. Murphy’s legal team disputes this activity.).

It’s unclear if Mr. Murphy’s protected disclosures, made by following proper outlined channels, led to any substantial change. Two of the protected disclosures, made six months apart, regard the same abuse of authority and alleged perjury of the DHS Secretary before Congress. Several of the protected disclosures outline similar illegal or improper actions regarding alteration of intelligence reporting. From the complaint, it’s unclear if DHS took steps to correct or address either of these protected disclosures. However, the complaint did alert Congress to the potential issues occurring at DHS and triggered additional oversight. The House Permanent Select Committee on Intelligence launched an investigation into the complaints; it requested Mr. Murphy’s testimony regarding his disclosures later this month. The investigation also brings transparency to oversight of the IC; something the IC has been working towards since the Snowden disclosures (see ODNI’s tumblr, “IC on the record”).

On a more positive note, the retaliation complaint shows that the IC whistleblower protections work. Mr. Murphy made protected disclosures while following the proper channels. When he faced retaliation, he properly filed a complaint with the Department of Homeland Security Office of Inspector General (DHS IG). In filing this complaint, Mr. Murphy also protected national security interests. The complaint allows the DHS IG to investigate the alleged abuse and retaliation. If the DHS IG confirms the retaliation, then it may provide Mr. Murphy proper relief for his injuries, including reinstatement to his position and recoupment of lost wages. The outcome of this whistleblower complaint and investigation may set the tone for disclosures for years to come.

Do you know the proper procedure for filing a whistleblower complaint?

Whistleblowers in the Intelligence Community need to balance protecting National Security with alerting the community to issues of waste, fraud and abuse. Presidential Policy Directive 19, Protecting Whistleblowers with Access to Classified Information, provides specific guidance on reporting. Each IC entity has additional guidance. DHS procedures, including that for classified information, can be found here. DHS IG reporting hotline, where you can report anonymously, can be found here.