‘Why should I trust the process?’ Watchdogs concerned by Trump’s whistleblower scrutiny

Government whistleblowers put a lot at stake when coming forward with allegations of wrongdoing at their agencies. In many cases, they risk their careers and their reputations, and face intimidation from management.

Many of those same concerns have been raised in the case of an intelligence community whistleblower, whose “urgent concern” about the Trump administration has sparked an impeachment inquiry in the House.

That complaint alleges that the administration withheld security assistance aid to Ukraine in exchange for what President Donald Trump described as a “favor” in a July 25 call with Ukranian President Volodymyr Zelensky, but what House investigators allege is a quid pro quo to investigate the Biden family.

But on another level, current and former members of the federal oversight community say the administration’s treatment of the complaint and efforts to identify the whistleblower have put something more fundamental at risk: trust in the process for future whistleblowers to come forward.

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Without trust in the established process, Eric Feldman, the former inspector general of the intelligence community’s National Reconnaissance Office, said whistleblowers might go around the proper channels to be heard.

“If there’s no credibility, in either the process itself, or those who we can trust to execute that process — namely the IG, the agency head, the oversight committees. If there’s a lack of trust in that, you’re going to increase the risk of having another Edward Snowden,” Feldman said in an interview with Federal News Network. “Because why should I trust the process if politicians are going to berate me, try to find out who I am, help people to potentially hurt me?”

While some privacy and civil liberties groups have called Snowden a whistleblower, government officials don’t share that view. Feldman said Snowden failed to report what he saw as an inappropriate activity within the National Security Agency to its inspector general.

But in the case of the whistleblower linked to the House’s impeachment inquiry, that individual went through the proper channels, and relayed his concerns to Michael Atkinson, the intelligence community’s inspector general.

Under the 1998 Intelligence Community Whistleblower Protection Act, the IG must forward an employee complaint to the head of the agency within 14 days of receiving it, if the urgent concern “appears credible.” The agency head, in turn, has seven days to forward the urgent complaint to Congress, with any comments the agency head feels are necessary.

But two things didn’t happen as part of this process: First, acting Director of National Intelligence Joseph Macguire didn’t pass the whistleblower’s complaint onto Congress, a decision that Feldman said was “contrary to statute.”

Second, the Justice Department’s Office of Legal Counsel issued a legal opinion that found the complaint didn’t meet the standards for an “urgent concern” because it didn’t impact “the funding, administration, or operation of an intelligence activity.”

The existence of the OLC legal opinion,  Atkinson wrote in response, raises questions about whether the source of the “urgent concern” is entitled to the legal protections available to whistleblowers.

On that point, more than 70 IG members of the Council of Inspectors General on Integrity and Efficiency (CIGIE) wrote a letter to Assistant Attorney General Steven Engel, the head of OLC, supporting Atkinson’s concerns about the whistleblower process not being implemented properly.

The Intelligence Community Whistleblower Protection Act, the IGs wrote, “makes it clear that the statute does not authorize the agency head, or any other party for that matter, to review or second-guess an IG’s good faith determination” that a whistleblower complaint is urgent.

The OLC opinion, CIGIE wrote, undermines the independence of the intelligence community watchdog and “wrongly interprets” the responsibilities of both the IG and DNI in this scenario.

“If intelligence community employees and contractors believe that independent IG determinations may be second-guessed, effectively blocking the transmission of their concerns to Congress and raising questions about the protections afforded to them, they will lose confidence in this important reporting channel and their willingness to come forward with information will be chilled,” CIGIE wrote.

Feldman also pushed back on the administration’s efforts to dismiss the whistleblower’s complaint because it stems from secondhand information.

“If we required every whistleblower to have absolute firsthand knowledge — that anything that they raise has to be firsthand knowledge and the absolute truth, and you have to have evidence — we wouldn’t have any whistleblowers, and they wouldn’t have the opportunity to help protect their agencies by doing an investigation and determining whether the allegations were credible,” he said.

Members of the Senate Whistleblower Caucus have also asked Atkinson to outline how his office will protect the identities of whistleblowers involved in the impeachment inquiry and prevent retaliation.

Sens. Gary Peters (D-Mich.) and caucus co-chair Ron Wyden (D-Ore.) said President Donald Trump’s efforts to track down the source of a whistleblower complaint — and his characterization of the whistleblower as someone “close to a spy” who may have committed treason — has had a chilling effect on others coming forward.

“We are deeply concerned by the impact these comments could have on individuals’ willingness to report wrongdoing through authorized channels,” the senators wrote to Atkinson in a letter Friday.

Feldman also expressed concerns about efforts to reveal the identity of the whistleblower.

“We cannot, in any way, shape or form compromise the anonymity of a whistleblower who has requested anonymity under the act, or else we will never get people to come forward. That is absolutely critical to the process,” he said.

Sen. Chuck Grassley (R-Iowa), chairman and co-founder of the Senate Whistleblower Caucus, has also voiced concerns about the Trump administration’s handling of the situation, saying that the whistleblower “ought to be heard out and protected,” and that the administration should “work to respect whistleblowers’ requests for confidentiality.”

The letter from Wyden and Peters also highlights the “dual purpose” of whistleblowers: coming forward with reports of fraud, waste and abuse, and making sure confidential information isn’t shared inappropriately.

Feldman said that IGs play a dual role as well, working within their agencies to deal with internal problems, but also providing independent oversight role to Congress. Managing those two roles, he said, is more of an art than a science.

“You can be independent in every way, but still collaborate with the agency that you’re working in, and dedicate yourself to improving the effectiveness of their mission,” he said. “Sometimes you have to do that with some tough love, thorough investigations and some tough reporting. Other times, you may be helping the head of the agency ferret out fraud, waste, and abuse that could be occurring within the organization.”

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