Congress should honor the IC whistleblower by protecting processes and our democracy
- September 27, 2019
This opinion originally ran in The Hill and can be found here.
As official Washington is understandably consumed by the launch of an impeachment inquiry, the transcript of President Trump urging President Zelensky of Ukraine to investigate the Biden family, and upcoming testimony by the Intelligence Community (IC) whistleblower who started this series of events, I worry about what is getting lost in the conversation: we are failing the IC whistleblower, we are setting up future IC whistleblowers to stay silent, and our inaction is dangerous for our country.
From 2004-2017, I was a member of the Intelligence Community. On the first day I joined the Office of Naval Intelligence as an analyst in 2004, I received a swirl of briefings on topics from how to recognize different military ranks to the location of the cafeteria. But one briefing stood out for me—the briefing on how to report improper conduct or the improper use of intelligence.
I remember the line-and-block chart showing how to raise concerns up the chain of command, to the agency inspector general, and ultimately, as a whistleblower to the oversight committees in Congress. We would be protected, they said. We would be heard, they said. It was our duty, they said.
I was paying particular attention that first day because I was joining a team of analysts that was working to stop the spread of weapons of mass destruction—and the role of intelligence analysis in the Iraq WMD scandal was fresh in the news. Thirteen years later, my last job in the intelligence community was to ensure analysts had access to channels to address any allegations of politicization of intelligence. These experiences at both the beginning and end of my career in intelligence gave me a strong appreciation for the rigorous processes that existed for IC personnel to offer dissent or blow the whistle on improper conduct.
There is still a lot we don’t know about the IC whistleblower complaint. However, I can make one high-confidence assessment—to use the IC parlance—based on the facts we know. This complaint and the storm it has unleashed in Washington illustrates the need for Congress to take legislative steps to better protect IC whistleblower processes.
On Sept. 24, the Office of Legal Counsel of the Department of Justice issued a legal opinion that undermined those IC whistleblower processes and our national security. The opinion stated that the director of National Intelligence has no obligation to forward an IC whistleblower complaint to Congress as long as the complaint is about conduct—however criminal or harmful to U.S. interests—by someone outside the IC. Armed with this opinion, acting Director of National Intelligence Joe Maguire at first refused to forward the complaint to Congress, in defiance of the Intelligence Community Whistleblower Protection Act, a subpoena from the House Permanent Select Committee on Intelligence, and the judgement of IC Inspector General Michael Atkinson. Acting Director Maguire only relented when the House of Representatives launched an impeachment inquiry and both houses of Congress passed a resolution calling on him to comply.
This initial failure to stand up for the IC not only denied Congress its right to critical information but it also sent a dangerous signal to the members of that community. IC personnel need to know they can count on the whistleblower process to function properly without dramatic political interventions. Otherwise they will not come forward when we need them to do so.
Now that Congress has obtained the whistleblower complaint and released it to the public, they must act upon its contents. The fact that President Trump has admitted to encouraging a foreign government to investigate a political opponent shows why Congress needs to take comprehensive action to prevent presidential manipulation of elections—my organization, Protect Democracy, has some recommendations on that in a recent white paper. But Congress should not stop there.
Congress should pass legislation to ensure IC whistleblowers can inform Congress directly of improper conduct without interference by the White House or the ODNI. As long as whistleblowers properly protect classified information and have exhausted remedies within the IC, Congress should be available as the ultimate option. Given the intertwined nature of intelligence and all types of executive branch actions, Congress should explicitly state that IC employees can blow the whistle on any violation of the law, fraud, or abuse of power where they cannot achieve a remedy in their own agency or the IC. The Senate could take a small but important step down this road by approving an intelligence policy bill passed by the House in July, which would instruct the IC inspector general to identify process barriers to “timely and effective reporting” of whistleblower matters to Congress. Based on recent events, Inspector General Atkinson will likely have some recommendations for process improvements.
Edward Snowden’s recently-released book and ongoing residence in Russia reminds us that much is at stake beyond this newscycle. Our national security has suffered from the perception that IC whistleblowers will not be heard when the going gets tough. In addition to addressing the grave allegations of misconduct in this whistleblower complaint, Congress must act to make real the promise that whistleblowers will always be heard.
We need new IC analysts who are getting those whistleblower briefings today that I received 15 years ago to believe that they are more than empty gestures. Because some of those analysts who are new today will be the whistleblowers of the future. They are watching, and right now they see a whistleblower fighting through a process filled with obstacles and loopholes. Will they believe they will be protected and heard when the time comes? Will they risk everything to defend our institutions? The answer to those questions is in Congress’s hands.
Alexandra Chandler is a policy advocate for Protect Democracy. She formerly served in the Office of Naval Intelligence.