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.








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!








Israel’s 2019 National Election Part 2: The Revenge of the Son of the Update

I really don’t think a whole lot more is going to happen between now and daylight tomorrow. At least not anything that’s going to happen in public. As of 9:10 PM EDT, they’d counted 10% of the ballots cast. So the vote counting has a long way to go. The exit polls, as they stand right now, are:

Kahol Lavan – Average: 32 seats; Channel 11: 32 seats; Chanel 12: 32 seats; Channel 13: 32 seats

Likud – Average: 31 seats, Channel 11: 31 seats; Channel 12: 32 seats; Channel 13: 30 seats

Joint List – Average: 14 seats; Channel 11: 13 seats; Channel 12: 13 seats; Channel 13: 15 seats

Yisrael Beitenu – Average: 9 seats; Channel 11: 9 seats; Channel 12: 9 seats; Channel 13: 8 seats

Shas – Average: 9 seats; Channel 11: 9 seats; Channel 12: 9 seats; Channel 13: 9 seats

UTJ – Average: 8 seats; Channel 11: 8 seats; Channel: 7 seats; Channel 13: 8 seats

Yamina – Average: 7 seats: Channel 11: 7 seats; Channel 12: 7 seats; Channel 13: 6 seats

Labor – Average – 6 seats; Channel 11 – 6 seats; Channel 12: 6 seats; Channel 13 – 6 seats

Democratic Union – Average: 5 seats; Channel 11: 5 seats; Channel 12: 5 seats; Channel 13: 6 seats

Otzma Yehudit – Average: 0 seats; Channel 11: 0 seats, Channel 12: 0 seats; Channel 13: 0 seats

So while Kahol Lavan maintains a slight lead in taking the most seats, the issue now will be how the actual vote tabulation turns out and who will be able to form a viable coalition. Using the averages, right now Gantz can potentially put together a 57 seat coalition if he can get the Joint List, Labor, and the Democratic Union to support him. Bibi can potentially put together a 55 seat coalition by partnering with Shas, UTJ, and Yamina. This leaves Yisrael Beitenu, and more specifically, Avigdor Liberman as the king maker. The Joint List, which is a combination of Israeli Arab and left of center pro-peace Israeli Jewish parties, also has tremendous leverage. In April they made it clear they would not enter into a coalition government. Hopefully, they recognize that they have leverage right now and should use it in negotiating with Gantz. Regardless, neither Bibi nor Gantz can meet the 61 seat threshold until/unless Liberman makes his play.

In his speech tonight Bibi stated he’d form a Zionist, anti-terror coalition to form the next government. According to reporting Gantz has also begun working the phones. Tomorrow will tell us whether Bibi can once again eke out victory from defeat either by pulling enough seats from Yisrael Beitunu despite Liberman’s seeming opposition to him or by repeating what he did in April when neither he nor Gantz were able to assemble a 61 seat governing coalition. Vacating the election and calling for a third try is his back up play. It allows him to stay in place as the prime minister over a caretaker government for five or six more months and both maneuver to increase his chances and bide his time looking for an opportunity to solidify his position. Remember, Gantz would like to be prime minister. For Bibi, however, it is existential. He either stays on as prime minister or he faces prosecution and potentially prison.

Updates at 11:15 PM EDT

The Times of Israel is reporting in its live blog of the election and vote counting that:

Channel 12: Unofficial tally of 85% of votes shows Knesset deadlocked

Channel 12 is reporting results it says it has received from inside sources in the Central Elections Committee, which the news channel claims reflect around 85% of the national vote.

According to those unofficial results, Likud and Blue and White are tied at 32 seats; next is the Joint List with 12 seats; Shas and Yisrael Beytenu have 9 seats each; United Torah Judaism has 8; Yamina has 7; Labor-Gesher is at 6; and the Democratic Camp has 5.

The right-wing bloc has a total of 56 seats, the center-left has 55 and Liberman has 9.

Channel 12 explains its data on the fact that a large majority of votes have already been counted, but due to increased scrutiny, the CEC is doing recounts in order to ensure the information it puts out is accurate.

Also, Noga Tarnopolsky’s and Barak Ravid’s reporting from Bibi’s speech at the Likud election party is disturbing:

My take on this is that if Bibi does come up short, he will try to make the claim that a Kahol Lavan coalition that includes the Joint Lists’ Arab parties and Israeli Arab members is somehow illegitimate. And then try to leverage that to remain in power. That’s right in his wheel house.

Open thread.








Israel’s 2019 National Election Part 2: Update

The polls closed in Israel two hours ago. While we wait for actual results to be tallied, we do have exit poll results.

With caveats that Israel’s exit polls aren’t always correct, what does this mean? It means that Likud has not won the largest plurality and therefore Benny Gantz should be given the chance to form the next Israeli government under Israel’s electoral laws and rules. Gantz’s plurality is razor thin and Bibi has ignored this rule before. Back in 2009, Tzipi Livni’s Kadima Party won the larger plurality in that year’s election. Despite Livni being entitled to try to build a coalition and form the next government, Bibi just ignored the actual Israeli election rules, went ahead and formed a government, effectively daring anyone to do something about it. No one did. It is entirely possible that he’ll try to do the same thing again. Remember, for Bibi, it is either reelection as Prime Minister or prosecution with the possibility of prison, there is no third option for him at this point.

What happens now is that election results will be tallied, but the jockeying to form a coalition will already have begun. Bibi, despite the outcome, will be working the phones to line up more than 61 members of Knesset to form a majority regardless of how many more seats Kahol Lavon won and to try to block Gantz from being able to form a new government. Benny Gantz will be trying to do the same thing in order to ensure that his plurality can ensure Kahol Lavan having a large enough coalition to form the next government. It is important to remember that Bibi has a long history of “winning” by the time the day after the actual election results are announced regardless of what the results were. So regardless of what the exit polls indicate, or what the actual election results are, you cannot count him out. He’s cornered now. His life going forward and potentially his freedom are on the line. This isn’t about the principles of Revisionist Zionism or annexing the West Bank or defeating Iran for Bibi anymore. It is solely about Bibi not being held accountable for his crimes and not going to prison. That’s what today’s Israeli election is really all about.

Here’s Bibi’s biographer, Anshel Pfeffer’s take:

Barring an absolutely catastrophic polling mistake from all three of Israel’s main television channels, Benjamin Netanyahu will not command a majority in the 22nd Knesset and Likud is likely to be only the second largest party there. We have seen exit polls fail before, but the unanimous 10 P.M. call is unlikely to change.

It was Netanyahu who dragged Israel into an unnecessary second election in 2019. It was Netanyahu who set the bar at 61 seats for his bloc of right-wing and ultra-Orthodox parties. It was Netanyahu who threw everything he had at this election, going on air for hours and hours until the polls closed. Israeli voters doubled down on their verdict of the last election and denied him victory.

Netanyahu is going nowhere. His rival, Kahol Lavan head Benny Gantz, is nowhere near reaching a majority of his own as things stand. But one thing seems certain: Unless that miraculous turnaround between the exit polls and the actual results happens – the Netanyahu magic has been broken.

The politician who made it his business to win elections, who did it better than anyone else because he worked harder and always came up with a new strategy, has run out of dirty tricks. And the Israeli electorate has run out of patience.

This isn’t a victory for the “peace camp” or the left, or even for the center-left. This victory was won together with the votes of ultranationalists supporting Avigdor Lieberman’s Yisrael Beiteinu, and Gantz’s Kahol Lavan is at best a center-right party. This is a personal defeat for Netanyahu. The winners have yet to be determined.

But with Netanyahu’s defeat comes an end to the spell he has cast on an entire political establishment. Israel is in for another period of political deadlock and while President Reuven Rivlin is now likely to give Gantz the mandate to form a government, he will struggle and Netanyahu – still in office as caretaker prime minister and still controlling a large minority in the Knesset – will fight him every step of the way and try to run down the clock on Gantz’s mandate. After all, he did the unthinkable by dissolving the Knesset six weeks after it was sworn in, and he has already spent a large part of the now-ended campaign sowing doubt as to the validity of the election result and accusing the left, and particularly Israel’s Arab citizens, of trying to “steal the election.”

Much more at the link.

Now we wait to see if Netanyahu’s spell has actually been broken. And he’ll use every tool at his disposable to not cede power to anyone else. Because today’s election presented Israelis with two electoral choices: another term for Netanyahu as prime minister or Netanyahu being prosecuted and potentially going to prison. The choice was never between Netanyahu and Gantz or Likud’s vision versus Kahol Lavan’s, it was Bibi for prime minister or Bibi for prosecution and possibly prison. Bibi really, really, really, really doesn’t want to go to prison.

I’ll be back later tonight with actual election results as they’re reported.

Open thread.








Israel’s 2019 National Election Take 2

Israelis are going to the polls today in a redo of their national elections from April, which ultimately failed to produce a governing coalition. The possible outcomes are:

  • Bibi and his potential coalition allies combine to win a clear majority, which is easily enough seats in Knesset to form a clear majority coalition.
  • Bibi and his potential coalition allies win barely enough seats to try to form a majority coalition, which would be a potential repeat of April’s results.
  • Neither Bibi, nor his opponent Benny Gantz of the Kahol Lavan (Blue and White) Party, and their potential allies are able to win a clear majority and are unable to form a governing coalition. This could lead to either a unity government, which could have several variants, or the need for a third election if no governing coalition can be formed.
  • Gantz and his potential coalition allies win barely enough seats to try to form a majority coalition, which would be a potential repeat of April’s results.
  • Gantz and his potential coalition allies combine to win a clear majority, which is easily enough seat in Knesset to form a clear majority coalition.

The first and last possible outcomes are clear and would put an end to the limping along, no clear governing majority caretaker government of the past five months. The second and third potential outcomes would create incredible pressure on Likud to dump Bibi in order to either enter into a unity government/coalition with Kahol Lavan led by Gantz or to try to use getting rid of Bibi to entice just enough recalcitrant members of Knesset to join a slim Likud led coalition. Bibi would, of course, be working to ensure he doesn’t get dumped by promising everyone anything he could possibly give them in exchange for them not dumping him. The fourth potential outcome, a narrow Kahol Lavan win, would lead to a scramble similar to what happened in April that might or might not lead to the actual formation of an Israeli government. Finally, the fifth outcome, a clear Kahol Lavan win makes Gantz the prime minister.

I want to focus a minute on the first two outcomes. If Bibi’s potential coalition either wins outright or ekes out a slim one or two seat victory like they did in April, we’re likely to see something very, very, very bad happen. A clear, outright victory for Bibi and his partners will not just empower Bibi. It will also force Bibi to reward his partners, because he’ll need their support to undermine the criminal charges he’s facing. For all that pundits in the US have speculated that the President is running in 2020 on an unofficial platform of reelection or prison, Bibi actually is running today on an official platform of reelection or prison. If he gets reelected he is going to push through legislation that makes it impossible to prosecute him and that weakens Israel’s supreme court and criminal justice system. To do this he’ll need the support of his coalition partners in either a clear and convincing victory or a narrow one. Either way, this gives the more ideologically extreme, more nationalistic, more religiously extreme, and more neo-fascist politicians and their political parties incredible amounts of leverage over him and would give them even more power going forward. Everyone who has been worried about Israel’s illiberal turn as a result of Netanyahu’s long misrule* will be amazed by just how much worse things could and would get. The laundry list of retrograde and revanchist political, social, religious, militaristic, and nationalistic actions such a Bibi led government would take, all so Bibi won’t have to face justice, should make us all concerned. Bibi will do anything and everything to avoid having to face justice. He’s desperate and his coalition partners know it! That gives them all the power in the relationship. And it looks like he’s already up to his usual tricks. The Times of Israel is reporting that Likud has once again installed cameras outside Arab polling places and then leaked that they did so. This is clearly an act of intimidation to suppress the Israeli Arab vote, which would likely benefit Bibi and Likud.

And we’ve had a DDOS attack on Kahol Lavan’s website on election day!

While we wait for the election results to come in later this afternoon/early this evening, here are some links for those that want to follow what’s going on or check in occasionally.

Haaretz‘s live and updating election coverage.

The Times of Israel‘s live and updating election coverage.

The Times of Israel‘s guide to the 30 Israeli political parties competing in the election.

Noga Tarnopolsky’s Twitter feed.

Anshel Pfeffer’s Twitter feed. (Pfeffer recently wrote a political biography of Bibi)

Chemi Shalev’s Twitter feed.

Ruth Marks English’s Twitter feed.

Liz Sly’s Twitter feed.

Lisa Goldman’s Twitter feed.

Natasha Roth’s Twitter feed.

That should do it for now. I’ll be back later today with updates regarding the ongoing meshugas.

Open thread.

* Kagan’s essay is, overall, very well written and quite thought provoking. I think it has one major flaw, which is it fails to grapple with the reality that a major Israeli political philosophy, Revisionist Zionism, which is the ideology of Likud, has always been illiberal. Revisionist Zionism, which is at the core of Likud’s ideology and the political philosophy of Netanyahu and his father, are rooted in the beliefs and teachings of Ze’ev Jabotinsky. Jabotinsky’s ideological views were always fascist. The root is might makes right. And on the continuum of fascism, from the social corporatism of Switzerland to racist/religious supremacist fascism at the farthest right extreme, which was embodied in NAZIsm, Jabotinsky’s beliefs are a Jewish racist/religious supremacist fascism. This ideology has been politically ascendent in Israel over the past twenty years of Bibi being the Israeli Prime Minister.