Understanding Whistleblowers

Intelligence Community Whistleblower Protection Act

According to the Intelligence Community Whistleblower Protection Act (ICWPA), Intelligence Community whistleblowers can voice concerns to oversight entities responsible for investigating, adjudicating and correcting wrongdoing.

The intelligence community whistleblower statute is set up to provide a pathway for individuals to come forward with allegations of urgent concern in a way that does not endanger classified information.

Someone making a complaint would first go to the inspector general (IG) to relay it. The IG for the intelligence community (IG IC) would then spend two weeks conducting a preliminary investigation to determine whether the complaint is both credible and of urgent concern. An urgent concern is considered to be “a serious or flagrant problem, abuse, violation of the law of Executive order, or deficiency,” according to the statute.

The IG would then bring this complaint up the chain of command and share their findings with the Director of National Intelligence (DNI), who would be expected to pass along this information to the congressional oversight committees within seven days of receiving the vetted complaint.

As a fail-safe, the DNI can determine that the information in the complaint is too sensitive to share with Congress and decline to share it, but either way, the DNI is required to notify Congress about this determination.

Whistleblowers vs Leakers

Chelsea Manning — leaked classified information to WikiLeaks.

• Sentenced to 35 years. (Sentence commuted to 7 years by President Obama)

Edward Snowden — leaked thousands of classified NSA documents to several news agencies.

• Charged under the Espionage Act. Living under asylum in Russia.

Reality Winner — leaked an intelligence report about Russian interference in the 2016 United States elections to the news website The Intercept.

• Sentenced to five years and three months.

Lt. Col Alexander Vindman — Subpoenaed to testify before the impeachment inquiry because he had raised concerns that the July phone call between Trump and Ukrainian President Volodymyr Zelensky threatened US national security.

Lt. Col. Vindman honored the subpoena and testified. Vindman states he was concerned by two events, both to which he objected to senior officials in real time to the National Security Council’s lead attorney. He made a report to an intelligence official about what he heard during Trump’s call with the Ukrainian President and felt what the President mentioned during the phone conversation was “improper.”

Vindman testified that: “In Spring of 2019, I became aware of outside influencers promoting a false and alternative narrative of Ukraine inconsistent with the consensus views of the interagency,” which was “harmful to U.S. national security” and also “undermined U.S. Government efforts to expand cooperation with Ukraine. “Vindman also stated that he reported his concern to the National Security Council’s lead counsel, John Eisenberg.

Lt. Col Alexander Vindman is not a whistleblower or a leaker.

The CIA whistleblower

A week after the July 25th call, the whistleblower initially had a colleague convey his concerns that Trump asked Ukraine’s leader to intervene in the 2020 presidential election to the CIA’s general counsel, Courtney Simmons Elwood.

After reviewing the complaint, Ms. Elwood called John A. Eisenberg, a deputy White House counsel. The complaint was received anonymously. She does not know the identity of the whistleblower.

On August 14, 2019, Courtney Simmons Elwood, John A. Eisenberg and John Demers, the head of the Justice Department’s national security division. She made what she considered to be a criminal referral to the Justice Department about the whistleblower’s allegations. John Demers brief Deputy Attorney General, Jeffrey A. Rosen and the head of the DOJ Criminal Division Brian Benczkowski on the complaint. Attorney General William P. Barr learned of the allegations around that time.

Justice Department officials said they were unclear whether Elwood was making a criminal referral and followed up with her later to seek clarification but she remained vague.

Note: There’s a long laundry list of things involving Benczkowski’s workings with Rudy Guiliani, Lev Parnas, Igor Fruman and others later named by Lev Parnas as having their hands in the scandal. We later learn that William Barr is implicated in being in on the scheme.

Unsurprisingly, the Justice Department Criminal Division did not to act on the referral.

Concerned about how the internal CIA process was proceeding, the whistleblower then reportedly spoke to an Intelligence Committee staff member who suggested that the person hire a lawyer and file a complaint. He/she did just that. The staffer shared part of the whistleblower’s concerns with the committee’s chairman, Rep. Adam Schiff (D-Calif.), but did not share the person’s identity with anyone.

On August. 12, 2019, an individual submitted information to the IC IG, Michael Atkinson about an urgent concern. The IC IG conducted a preliminary review and determined that the information was credible. The IC IG Atkinson determined the complaint met ICWPA’s standards.

On August, 26, 2019, the IC IG transmitted the disclosure along with his determination to the acting DNI, Joseph Maguire.

The ICWPA requires an agency-head to transmit credible whistleblowing complaints to the congressional intelligence committees within seven days of a credibility finding.The agency-head was the acting DNI, Joseph Maguire.

This is where the system fell apart. This is why you DON’T put sycophants or loyalists in these positions.

Instead of sending the complaint to Congress, as he was legally obligated to do, acting DNI Maguire delivered the complaint it to the Office of Legal Counsel (OLC), and thus to William Barr’s Justice Department.

Barr’s Justice Department manipulated ICWPA to prevent Maguire from sending the whistleblower’s complaint to Congress. He then manipulated campaign finance law to determine that Trump had committed no crime and refused to open an investigation.

The OLC, headed by Assistant Attorney General Steven A. Engel declared that the whistleblower’s complaint did not pertain to a matter of “urgent concern,” and did not send it to Congress.

Inspectors general are not agency-heads. They are fact-finders. They investigate and then report their determinations independent of external pressure. Their determinations stand. Agency-heads, such as the acting DNI can disagree with the IC IG’s conclusion, but neither he nor his lawyers can change that conclusion.

The ICWPA does not allow Maguire or the OLC to overrule Atkinson’s assessment of a whistleblower complaint.

On September 09, 2019, The IC IG sent a letter to Congress telling them that they had received the complaint. The letter stated that the ICIG deemed the whistleblower’s complaint “urgent” and “credible” before forwarding the materials to the Acting DNI, Joseph Maguire.

On September 10, 2019, Chairman of the House Permanent Select Committee on Intelligence Adam Schiff requested the full and unredacted whistleblower complaint, the IC IG determination related to the complaint.

On September 13, 2019, the Committee received a letter from the ODNI declining the Chairman’s request and stating that the DNI, contrary to an unambiguous statutory command, is withholding the complaint. Acting DNI, Maguire’s general counsel wrote that the complaint did not “meet the statutory definition of an urgent concern,” implying that the IC IG erred in their review.

On September 13, 2019, Rep. Adam Schiff, issued a subpoena to the Acting DNI Joseph Maguire to compel the production of a whistleblower complaint that the IC IG determined to be credible and a matter of “urgent concern.”

On September 17, 2019, The Acting DNI refused to comply with a subpoena. The general counsel Jason Klitenic asserted that the acting DNI had complied with “all applicable law” in refusing to hand over the whistleblower complaint to Congress.

On September 17, 2019, The IC IG wrote a second letter where the IC IG says he disagreed with the acting DNI’s determination that no disclosure to Congress was necessary and sought to disclose basic information of the whistleblower complaint to congressional intelligence committees.

On September 24, 2019, Speaker Nancy Pelosi announced the formal Impeachment Inquiry of Donald Trump.

Since the Whistleblower’s complaint was made public, President Trump and Republican lawmakers such as Senator Rand Paul have been trying to out the Whistleblower.