Right now only a very limited number of people know the name of the Intelligence official or officer who filed the whistleblower complaint with the Intelligence Community Inspector General (ICIG). She or he is represented by a top national security lawyer, who is of counsel for a firm that specializes in national security law, classification, and clearance related issues. I have no doubt that by late Wednesday evening, Acting White House Chief of Staff Mick Mulvaney was most likely called by the President and told to figure out which senior Intelligence officials and officers were assigned to the National Security Council’s National Security Staff over the summer and returned to their home agency in late July or early August in order to figure out who made the complaint. By last night the President’s surrogates started impugning the whistleblower as an Obama holdover or loyalist or a deep state actor acting out of political motivations. The President, of course, decided to pick up that argument this morning on Twitter and during his ongoing press gaggle in the Oval Office. And we now have this reporting:
FYI: Administration officials have shared at least some details of the accusations in the whistleblower complaint with the White House, to allow officials to weigh whether to assert executive privilege, an official tells NYT. https://t.co/H5RUvnG4GZ
— Kyle Griffin (@kylegriffin1) September 20, 2019
At this point, if they haven’t done so already, the Intelligence official or officer who made the complaint and his or her attorneys should have plans in place to both mitigate potential retaliatory legal action the administration might take and to safeguard her or his life and that of his or her family. The reason these actions are necessary is because the Intelligence Community Whistleblower Protection Act DOES NOT ACTUALLY PROTECT WHISTLEBLOWERS! Ken McClanahan, an attorney specializing in national security law, classification, and clearance provides a handy explainer at Just Security.
What is the ICWPA?
The ICWPA holds the dubious distinction of being the only “Whistleblower Protection Act” that doesn’t actually include any whistleblower protections. To summarize the law’s extensive history, I’ll say: It originally was intended to provide protections for national security whistleblowers who wanted to go to Congress, but was watered down in the final iteration due to separation of powers objections from the executive branch. While keeping the original – and misleading – name, the final law only really established a mechanism for Intelligence Community whistleblowers to forward a complaint to the congressional intelligence committees by way of an inspector general. It is a breakdown in this process that Schiff is flagging.
What is the ICWPA process?
Simply speaking, if a whistleblower working for an Intelligence Community agency wants to bring something to the attention of the congressional intelligence committees, they must write up a complaint and give it to either their agency’s inspector general or the Intelligence Community Inspector General (ICIG), specifically stating that it is an ICWPA complaint. The ICIG then has 14 days to decide if the complaint pertains to an “urgent concern” and if it is credible.
I highly recommend the rest of McClanahan’s explainer if you really want to understand what the process dispute between the House Permanent Select Committee on Intelligence and the Acting Director of National Intelligence (DNI), the Department of Justice, and the White House over the Acting Director’s refusal to submit the Intelligence Community Inspector General’s report finding the complaint to be both urgent and credible to Congress.
The ICWPA does not actually protect Intelligence Community and national security whistleblowers. It also, contrary to Rachel Maddow’s hyper-enthusiastic statements during and after her interview with Congressman Schiff last night, DOES NOT PROVIDE THE INTELLIGENCE OFFICIAL OR OFFICER WITH ANY OTHER LAWFUL WAY TO GET THIS INFORMATION TO CONGRESS!!!!!!! Whoever the whistleblower is, she or he is not now entitled under the ICPWA to go directly to Congress because the Acting DNI, on the advice of the Office of Legal Counsel at DOJ and the White House, presumably the White House Counsel’s Office, have determined not to forward the Intelligence Community Inspector General’s findings to Congress as required by the Intelligence Community Whistleblower Protection Act. If this Intelligence official or officer tries to take the information that is the basis of his or her complaint directly to the House Special Committee on Intelligence, she or he will be in jeopardy for prosecution under the Espionage Act. Because it is not up to this Intelligence official or officer to determine if Congressman Schiff and the members of his committee need to know this information.
This Intelligence official or officer is not, under the law, a whistleblower. They are basically, at most, a lawful complainant about a counterintelligence and insider threat concerning the President to the Intelligence Community Inspector General. He or she has no protection under the law. And based on how the President and his surrogates are talking about her or him, and the reporting that “administration officials”, most likely the Acting Director of National Intelligence and his senior counsel, have shared additional information with the White House so they can determine if executive privilege should be invoked and asserted, it is highly likely that if the White House has not figured out who this Intelligence official or officer is, they likely have a short list of possibilities and will work it out sooner rather than later. Once that happens, this Intelligence official or officers life as they know it, not just their career, will be over. All for following the law. A badly written law that provides no actual protections for the person bringing the complaint. And it will all be done under the cover of law.
PS: DO NOT TAKE LEGAL ADVICE IN GENERAL AND LEGAL ADVICE ON NATIONAL SECURITY, CLASSIFICATION, AND/OR CLEARANCE ISSUES FROM RACHEL MADDOW. UNLESS YOU WANT TO GO TO PRISON FOR A VERY, VERY LONG TIME!
PPS: For a fuller, very technical treatment of this issue, as well as last night’s post, please check out my weekly column at The Ark Valley Voice. I focused on these issues for this week’s column.
PPPS: I did a slight editorial clarification to the fifth sentence of the final paragraph and added a new final sentence to the final paragraph of this post.