The Intelligence Whistleblower’s Life Is Over Because the Intelligence Community Whistleblower Protection Act Does NOT Actually Protect Intelligence Community and National Security Whistleblowers!

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:

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.

Open thread!

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.








High Crimes and Misdemeanors

Just before 10 PM last night, CNN national security reporter Josh Campbell asked a question:

Even though Trump didn’t use the words “deep state” in this morning’s tweet-screams, the answer to Mr. Campbell’s question is approximately 10.5 hours:

The Radical Left Democrats and their Fake News Media partners, headed up again by Little Adam Schiff, and batting Zero for 21 against me, are at it again! They think I may have had a “dicey” conversation with a certain foreign leader based on a “highly partisan” whistleblowers..

….statement. Strange that with so many other people hearing or knowing of the perfectly fine and respectful conversation, that they would not have also come forward. Do you know the reason why they did not? Because there was nothing said wrong, it was pitch perfect!

There’s nothing strange at all about “so many other people” not coming forward; the aberration in the context of Trump’s open lawlessness and gleeful subversion of institutional norms is that anyone still tries to follow the law, as the whistleblower and intelligence community inspector have done.

But the overarching message of the Trump era is that people who follow the rules are suckers, so now that person is being smeared by the POTUS, and the White House is allegedly limiting access to Trump’s “pitch perfect” calls to ensure that the only witnesses are accessories when the next crime is committed.

I’m not a fan of CNN anchor Chris Cuomo’s strategy of inviting shameless liars on TV to confront them to generate clicks, but kudos to him for producing a “Code Red” admission from Giuliani in the first 30 seconds of last night’s interview:

Meanwhile, Ukrainian officials are walking a tight-rope over pools of molten lava, trying to get the assistance they need to counter an evil authoritarian who threatens their existence as a nation without pissing off Putin’s scammy, demented fanboy in the White House. I don’t envy them that task:

“This is a very special stage in Ukraine’s development: We have completely changed this year, our mentality has changed, we realize that the entire world is watching us right now,” Roman Truba, head of the State Bureau of Investigations, said in an exclusive interview with The Daily Beast.

Truba’s agency neither investigated Biden’s son nor Burisma Holding. There were no signs of illegality in Biden’s work in Ukraine, he said. “The State Bureau of Investigations should be an independent institution. I wish we would become as highly qualified, equipped with all modern technologies, and professional as the FBI.”

Oh baby, no.








Another Whistleblower Update Open Thread: “Further Proof that Rudy Giuliani Is A Patriotic Mole”

… Or maybe just a naked mole rat, which he resembles more and more. I’m guessing this will be the Media Village Idiot Hot Take by tomorrow…

ETA:








The Counterintelligence Implications of the Intelligence Officer’s Whistleblower Complaint

About an hour ago The Washington Post reported that the Intelligence official’s or officer’s complaint to the Intelligence Community Inspector General has to do with Ukraine.

A whistleblower complaint about President Trump made by an intelligence official centers on Ukraine, according to two people familiar with the matter, which has set off a struggle between Congress and the executive branch.

The complaint involved communications with a foreign leader and a “promise” that Trump made, which was so alarming that a U.S. intelligence official who had worked at the White House went to the inspector general of the intelligence community, two former U.S. officials said.

Much more at the link, but not much new information beyond the top line. What we don’t have are details, just some tantalizing hints. Given that the complaint involves something the President committed to do for a still undisclosed foreign leader and that it involves Ukraine, it is likely one of two things. Either he promised Putin something that had something to do with Ukraine, such as getting sanctions lifted and/or getting Russia readmitted to the G-7 making it once again the G-8, or he promised Ukraine’s President Zelensky something. Most likely that he’d free up the military aid in exchange for made up dirt on Vice President Biden’s son. Either way Putin will have signals intercepts of the call. Either because the call was with Putin and he recorded it or because Russia is actively collecting Signals Intelligence on the Ukrainians. Ukraine’s new president would be a primary target of such collection. It also likely means that the Estonians, the Latvians, the Germans, the French, the Norwegians, the Dutch, and several others most likely know the details as well as they are all collecting Signals Intelligence on Russia and Putin.

And this is where the counterintelligence concerns arise. The President’s unconventional approach to communicating with foreign leaders, outside advisors, and others, and his opposition to having these communications memorialized creates a counterintelligence problem for him and for the United States. This counterintelligence problem exists regardless what he may or may not have promised a foreign leader over the series of phone calls and interactions at the heart of the Intelligence official’s or officer’s complaint and whether or not it is good for the US and American interests. By getting rid of note takers, getting rid of readouts and summaries, either eliminating or extremely restricting transcripts of his phone calls and meetings, and by often using an unsecured cell phone, the President has made it all but impossible for officials in his own administration to actually document and know what he is saying to and hearing from the foreign leaders he is interacting with. This places the President, and by extension the United States, at the mercy of these foreign leaders. Right now we do not know with whom the President was speaking to in these phone calls, even as we now know it had something to do with Ukraine. But it would be a safe assumption that the foreign leader was making a recording of the call, as well as having a note taker making detailed notes. This provides that foreign leader with leverage over the President and the United States should he or she choose to use it because they can disclose as much or as little of the conversations and spin them however they want, while the United States’ government has limited, at best, information about the conversations and is therefore operating at an asymmetric disadvantage. The same problems exists for the President’s one on one meetings with Putin and Kim, where we also have no officially documented notes or transcripts on the US side of the meetings. And if you think that Putin and Kim didn’t record those meetings, I have a bridge and some beachfront property to sell you.

Right now we do not know which foreign leader the President spoke with, what, if anything, the President promised that foreign leader, and if the promise is good for the US’s national interest or bad for it. We do not even know how the Intelligence official or officer came to know this information. We don’t know if she or he was part of the limited chain of distribution for a transcript of the call. We do not know if he or she saw a Signals Intelligence Intercept of the call because we have that foreign leader under full time Signals Intelligence surveillance. We do not know if he or she was in the presence of the President when the phone call and the other, multiple activities that were reported occurred. But we do know one thing: the foreign leader in question knows what the President promised and, from a counterintelligence perspective, it is responsible to assume that foreign leader has a recording of the call, which gives that foreign leader leverage over the President and the United States. The President has compromised himself and the United States to the leader of a foreign power and that is the major counterintelligence problem that arises from this whistleblower’s complaint.

Open thread!








Ukrainian Connection? (Updated)

As discussed in another thread last night, The Post published a scoop on the whistleblower complaint that is currently the subject of an investigation by the House Intelligence Committee. It involves a promise Trump made to a foreign leader on a phone call:

Trump’s interaction with the foreign leader included a “promise” that was regarded as so troubling that it prompted the intelligence official to file a whistleblower complaint with the inspector general for the intelligence community, according to two former U.S. officials familiar with the matter. The former officials spoke to The Post on the condition of anonymity because they were not authorized to discuss the matter publicly.

Trump lied about it in the usual manner this morning on Twitter:

Another Fake News story out there – It never ends! Virtually anytime I speak on the phone to a foreign leader, I understand that there may be many people listening from various U.S. agencies, not to mention those from the other country itself. No problem!

….Knowing all of this, is anybody dumb enough to believe that I would say something inappropriate with a foreign leader while on such a potentially “heavily populated” call. I would only do what is right anyway, and only do good for the USA!

Presidential Harassment!

Trump is certainly dumb enough to blurt out inappropriate things to a foreign leader — it wouldn’t be the first time. The only question is who Trump was talking to and what was the nature of the promise.

Shortly after Trump tweeted his dumb tweets, Intelligence Community Inspector General Michael Atkinson, the man who reviewed the whistleblower’s complaint and found it “credible” and “urgent,” met with the House Intelligence Committee. That committee’s chairman, Adam Schiff, later said Atkinson did not provide details about the complaint — Atkinson is still trying to follow the law, just as the whistleblower tried to follow the law in the first place.

Schiff says Acting DNI Joseph Maguire* will appear before the committee next week to “explain why this urgent concern should not be shared with the Congress.” The answer will be, “The [corrupt] AG [acting as Trump’s personal attorney] says I don’t gotta tell ya.”

I’m optimistic we won’t have to wait that long. We know at least two people really, really want this information to get to Congress. But while we wait, here’s an interesting story:

The house committees’ chairs say they will scrutinise a telephone call between the US president and [Ukrainian President] Zelensky on 25 July, during which Mr Trump allegedly told the Ukrainian president to reopen the Biden investigation [into alleged corruption involving former VP Joe Biden and his son Hunter, who served on the board of a Ukrainian company] if he wanted to improve relations with the US.

They claim that Kurt Volker, the US special representative for Ukraine, was told to intercede with President Zelensky by the White House, and they are looking into the activities of Rudy Giuliani, Mr Trump’s personal lawyer.

Could this be the “promise” the whistleblower heard? Maybe. Just last month, Giuliani, acting as Trump’s personal attorney, shamelessly announced that he’s pressuring a foreign government to provide dirt on a potential political opponent (again!). Because that’s the way America rolls now.

Trump and everyone associated with him are openly engaged in self-dealing, cheating and obstruction of justice. They won’t stop until they’re stopped.

*Isn’t Maguire the guy who was elevated to the acting DNI post because Trump insisted on passing over the lawful successor because reasons? Yeah, I’m sure THAT was on the up-and-up…

ETA: Via CNN:

Whistleblower concerns were over multiple acts involving Trump, sources say

The intelligence inspector general told the House intelligence committee today that the whistleblower complaint raised issues with multiple instances involving President Trump, sources tell CNN…

The New York Times was first to report there was more than one action by the President at the heart of the whistleblower complaint.

So, if you had the “All of Them, Katie” square on your Which Foreign Leader Did Trump Shake Down for Personal Favors bingo card, collect your prize!