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The Intelligence Community Whistleblower

What You Need to Know
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In early August 2019, an anonymous whistleblower filed a complaint with the Inspector General of the Intelligence Community, Michael Atkinson. The complaint describes a July 25th phone call between President Trump and Ukrainian president Volodymyr Zelensky – potential evidence of illegal solicitation of foreign involvement in a U.S. election. It also describes various subsequent acts by the White House to conceal the phone call. This whistleblower complaint, first publicized on September 13th and then released to the public in an unclassified format on September 26th, unleashed a storm of controversy and ultimately an announcement by Speaker Nancy Pelosi that the House of Representatives was launching an impeachment inquiry. On October 6th, news broke that a second whistleblower had come forward.

The controversy has raised many questions about whistleblower law, policy and procedures governing intelligence community whistleblowers.  The National Whistleblower Center, whose mission includes educating the public about the importance of whistleblowers and whistleblower protections, is communicating with the media and otherwise lending its expertise to help people separate fact from fiction. Here are some of the key questions that we are helping to answer.

What do we know about the whistleblower’s credibility?

Two key allegations made by the whistleblower – about the request of President Trump for assistance with investigating his political opponent and about subsequent efforts to conceal this request from the public – appear to be supported by the White House’s own rough transcript of the call and subsequent statements. In addition, the Inspector General of the Intelligence Community found that the complaint is credible and that it raises urgent concerns about abuse of authority.

Acting DNI Director Maguire testified before Congress that the whistleblower “is operating in good faith and has followed the law.” Additionally, on October 1st, Senator Chuck Grassley (R-IA), one of the foremost champions of whistleblower rights in Congress, released a statement that says: “This person appears to have followed the whistleblower protection laws and ought to be heard out and protected.”

Note that Congressional investigators do not need to evaluate the whistleblower’s credibility based solely on the complaint.  They will have plenty of witnesses to interview and documents to review based on the investigative leads provided in the complaint.  Due to the whistleblower stepping forward and the pressure applied by the National Whistleblower Center and many others to ensure the Acting Director of the National Intelligence forwarded the complaint to Congress as required by law, bipartisan Congressional investigators are now well-positioned to conduct a thorough investigation.

Does this whistleblower meet the legal definition of a whistleblower?

President Trump and others in the administration have alleged that the form to be completed by intelligence community whistleblowers in submitting complaints allows only eyewitness evidence and that the whistleblower in this case failed to meet this requirement. To the contrary, the law makes a federal employee a protected whistleblower if they submit any kind of evidence, including second-hand evidence, that the employee “reasonably believes” shows a “violation of any law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”

In his October 1st statement, Sen. Grassley, who has written many of the critical whistleblower laws, responded to this debate: “When it comes to whether someone qualifies as a whistleblower, the distinctions being drawn between first- and second-hand knowledge aren’t legal ones. It’s just not part of whistleblower protection law or any agency policy. Complaints based on second-hand information should not be rejected out of hand, but they do require additional leg work to get at the facts and evaluate the claim’s credibility.”

Additionally, in upholding the complaint, the Inspector General found that the whistleblower had put forth both first-hand and second-hand evidence, and that the form they completed explicitly cited both kinds of evidence.

Are reprisals against the whistleblower a serious concern?

Under the laws governing intelligence community whistleblowers, this whistleblower is entitled to have their identity kept confidential and is protected against reprisals by others in the executive branch.  However, given the attacks on the whistleblower by President Trump and others, whistleblower advocates are very concerned that their identity will be exposed and that their career and personal safety will be jeopardized.  We are also concerned that future potential whistleblowers will be deterred from reporting evidence of wrongdoing to authorities given the lack of fair treatment given to this whistleblower.

NWC urges the leaders of the congressional intelligence committees to speak out in favor of whistleblower protection and reiterate that this is a system where the threat of retaliation is not permitted, whether direct or implied.

Are intelligence community whistleblowers adequately protected by the law?

Intelligence community whistleblowers operate under a different set of rules than other federal employees or corporate whistleblowers that leave them uniquely vulnerable. There is a large framework of laws and executive orders that govern whistleblowers in the intelligence community, including Executive Order 12731, the Intelligence Community Whistleblower Protection Act, the Inspector General Act, the Intelligence Authorization Act for Fiscal Year 2010, Presidential Policy Directive 19 (“Protecting Whistleblowers with Access to Classified Information”), and the Intelligence Authorization Act for Fiscal Year 2014.

Executive Order 12731, issued in 1990, requires all federal employees to “disclose waste, fraud, abuse, and corruption to authorities.” This Executive Order makes such disclosures mandatory in order to ensure standards of ethical conduct for all executive branch employees.

The Whistleblower Protection Act (WPA) is one of the primary statues that outlines public employees’ right to speak out about misconduct, aimed at ensuring that all government employees can safely disclose “violations of laws, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority and or a substantial and specific danger to public health and safety.” However, it specifically excludes whistleblowers in the intelligence community as it applies to employees who work in an unclassified environment.

To assist intelligence community whistleblowers excluded under the WPA, Intelligence Community Whistleblower Protection Act (ICWPA) was passed in 1998. Under the terms of the legislation, a whistleblower who intends to report to Congress a complaint or information about an “urgent concern” is required to go to the inspector general (IG), who then has a 14-day period to determine “whether the complaint or information appears credible.” If it is found to raise an urgent concern and to be credible, then the IG must transfer the information to the Director of National Intelligence, who is required to forward the complaint to the congressional intelligence committees within seven days.

Alternatively, if the IG does not find the complaint to be credible, the whistleblower may communicate with the intelligence committees in Congress – but only if they have the permission of the director of national intelligence, who is appointed by the President. As our general counsel David Colapinto noted in an interview with the Guardian, “The system inherently has a chilling effect because it requires potential whistleblowers to identify themselves to their seniors and that can be career suicide.”

Under the ICWPA, an “urgent concern” is defined as:

  1. A serious or flagrant problem, abuse, violation of law orExecutive order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information, but does not include differences of opinions concerning public policy matters;
  2. A false statement to Congress, or a willful withholding from Congress, on an issue of material fact relating to the funding, administration, or operation of an intelligence activity; or
  3. An action constituting reprisal or threat of reprisal in response to an employee’s reporting an urgent concern.

ICPWA also includes a provision protecting the whistleblower’s identity from disclosure, a protection also found in the Inspector General Act of 1978. However, aside from that provision, ICPWA does not offer whistleblowers protections from retaliation and does not provide mechanisms for challenging retaliation.

In response to this weakness, the Intelligence Authorization Act for Fiscal Year 2010 included the first general provisions for protecting intelligence community whistleblowers, encouraging lawful disclosures to the OIGIC. However, the majority of its provisions are general and subject to multiple interpretations.

Between 2012 and 2014, additional efforts were made to strengthen protections for the intelligence community. Presidential Policy Directive 19 was signed in 2012 and provided the first specific prohibitions of reprisals against intelligence community whistleblowers. The Intelligence Authorization Act for Fiscal Year 2014 codified these provisions into law, and the Intelligence Community Directive (ICD)-120 established how provisions would be implemented.

Also in 2014, Congress enacted 50 U.S.Code §3234 which clarifies what information may be included in an intelligence community whistleblower complaint, including “a violation of any law, rule or regulation” or “abuse of authority.” Section 3234 requires the President to provide for the enforcement of this statute.

Although these reforms include provisions against retaliation, they still leave intelligence community whistleblowers extremely vulnerable. If they are retaliated against for their disclosures, they do not have access to the court system but rather have to rely on an internal review process that carries significant risk of bias.

Is there historical precedent for this whistleblower’s action?

Yes. The history of whistleblowing by those in the intelligence community or otherwise working to protect national security goes back to the Nation’s founding. In 1778, during the height of the Revolutionary War, the Continental Congress passed a resolution that can be considered the world’s first whistleblower law, stating: “that it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.”

The resolution was passed in response to a petition from ten revolutionary sailors and marines who reported the commander of the Continental Navy for torturing captured British sailors, at great personal risk.

In the many decades since, other famous American whistleblowers from the national security agencies have come forward – Daniel Ellsberg with the Pentagon Papers, Mark Felt (more famously known as “Deep Throat”) with Watergate, Linda Tripp with the Clinton-Lewinsky relationship. Their disclosures brought forward important evidence of wrongdoing – and they each deserve respect and protection, regardless of partisan affiliation.

How has NWC responded publicly to the threats of reprisal from President Trump and others?

In response to these threats, our executive director John Kostyack stated:

“The threats of reprisals by the President and others against the intelligence community whistleblower are contrary to our Nation’s core ideal of freedom of speech. We have a centuries-old bipartisan consensus that those with evidence of wrongdoing should be encouraged to step forward, not intimidated from doing so. We urge both parties in Congress to affirm that this whistleblower deserves the highest level of protection from retaliation, including the ability to maintain anonymity.”

Stephen M. Kohn, Chairman of the Board of Directors at NWC and author of the Whistleblowers Handbook, stated:

“This moment is a test of whether today’s members of Congress are willing to uphold the Nation’s founding principles. In the first whistleblower law, passed in 1778, the Continental Congress declared that anyone in the service of the U.S. with knowledge of serious wrongdoing has a duty to deliver that information to Congress as soon as possible. This whistleblower followed the law and upheld his patriotic duty. Now it is time for Congress to reaffirm its own laws prohibiting reprisals and guarantee the whistleblower’s right to remain anonymous. If it fails do so, it will be a disastrous setback for the Nation’s whistleblowing system.”

NWC urges the leaders of the congressional intelligence committees to speak out in favor of whistleblower protection and reiterate that this is a system where the threat of retaliation is not permitted, whether direct or implied.

NWC in the News

Media Coverage

Our Executive Director, Board Chairman, and General Counsel have all weighed in on the debate. Find their key quotes here and a round-up of featured stories below.

RSI: USA: “Proteggete il whistleblower”, 10/4/19
PBS NewsHour: “Whistleblower protection, explained”, 10/2/19
USA Today: “How does Congress hear from anonymous witnesses? Trump whistleblower seeks protection from retaliation”, 10/2/19
Washington Post: “As Trump lashes out at whistleblower, analysts fear law offers meager protection”, 9/30/19
USA Today: “‘Horrific and chilling’: Whistleblower advocates complain as Trump tries to identify source of Ukraine complaint”, 9/30/19
MTV News: “Why Whistleblowers Are As American As The Declaration Of Independence”, 9/30/19
USA Today: “Donald Trump: ‘We’re trying to find out’ the identity of whistleblower who made Ukraine complaint”, 9/30/19
NPR 1A: “What’s the deal with whistleblowing?”, 9/30/19
PRI’s The World: “Who is responsible for enforcing the US whistleblower law? The President”, 9/27/19
VICE News: “What the New York Times Outing a Whistleblower Tells Us About Trump’s Smear Campaign”, 9/27/19
CNN: “The whistleblowing process, explained”, 9/27/19
MSNBC: “Whistleblower Center director: Trump’s comments on whistleblower are ‘really disturbing’”, 9/27/19
The Guardian: “Donald Trump’s smears designed to silence would-be whistleblowers, experts warn”, 9/26/19
NPR: “‘Whistleblowing Is Really In Our DNA’: A History Of Reporting Wrongdoing”, 9/25/19
C-SPAN: “David Colapinto on Whistleblower Laws and the Intelligence Community”, 9/24/19
The Atlantic: “The Problem With the Whistle-Blower System”, 9/21/19
Washington Post: “Trump’s rhetoric will have a chilling effect on whistleblowing, legal experts say”, 9/20/19
NPR: “Whistleblower Complaint, Student Climate Protests, Catastrophic Texas Flooding”, 9/20/19
The National Law Journal: “US House Weighs Lawsuit Forcing Disclosure of Mystery Whistleblower Complaint”, 9/19/19

Press Releases

National Whistleblower Center Praises Senator Chuck Grassley’s Comments on the Intelligence Community Whistleblower, 10/1/19
Intelligence Community Whistleblower Deserves Protection, 9/30/19
Congress Reaffirms Commitment to Whistleblower Law, Calls for Intelligence Whistleblower Complaint to be Delivered to House and Senate Committees, 9/26/19

Blog Posts

Grassley speaks out in defense of whistleblower. No surprise here., 10/2/19
Hearsay, treason and growing concern over the fate of the intelligence community whistleblower, 10/1/19
Whistleblower story dominates Sunday morning news, 9/30/19
The race to reveal the whistleblower, from Reddit to the NY Times, 9/29/19
Demonization of whistleblowers is dangerous, but nothing new, 9/27/19
Bill would benefit wildlife whistleblowers. What laws protect other whistleblowers?, 9/26/19
Will whistleblower battle lead to a crisis of confidence in the intelligence community?, 9/23/19
From wildlife to the White House, whistleblowing in the week’s news, 9/20/19

Looking for additional resources?

Event Timeline, FactCheck.org, 9/27/19
Intelligence Community Whistleblower Protections, Congressional Research Services, 9/23/19
Intelligence Community Directive 120: Whistleblower Protection, 4/20/14

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