National Security Whistleblower Reform is a Sticky Wicket
Just after 9:00 a.m. on July 25, 2019, President Donald Trump got on the phone with the newly-elected president of Ukraine, Volodymyr Zelensky. After exchanging pleasantries and discussing American security assistance to Ukraine, Trump bluntly said, “I would like you to do us a favor. …” He then repeatedly pushed Zelensky to investigate the members of the Biden family, telling him that Attorney General William Barr and Rudy Giuliani, the president’s personal attorney, would help.
Shocked by this exchange, a member of the intelligence community reportedly filed a complaint about the president to the inspector general of the intelligence community, Michael Atkinson. It is his job to handle complaints about abuses of power in the most secret parts of the U.S. government. Media reports suggest that the complaint alleges that Trump made U.S. military aid appear contingent on an investigation of one of Trump’s major political rivals in the upcoming election. The inspector general deemed this complaint of “urgent concern” last month. And yet, Congress only discovered the complaint existed last week.
Even when Congress figured out something was afoul, it had trouble extracting information. Some members of Congress initially demanded a copy of the inspector general’s report. But Acting Director of National Intelligence Joseph Maguire refused to turn it over, referring to legal advice from the Department of Justice that the complaint not be released outside the executive branch. Only once Congress started to talk about impeachment proceedings did the Trump administration start to compromise. Recently, the White House provided some members of Congress a version of the report and indicated they might allow the whistleblower to testify, although the scope will likely be limited.
No matter how this saga ends, it highlights a difference between whistleblowing in the national security space and every other sector: national security whistleblowers face extreme difficulty reporting allegations of abuse to Congress, the courts, or others outside the executive branch.
Pundits are now asking why this is the case. Many are calling for legislative reform to rectify this difference. They want channels for whistleblowers to go directly to certain members of Congress or a federal judge. But our analysis of past reform efforts show that Congress has repeatedly tried and failed to facilitate external reporting for national security whistleblowers. The reason, in short, is that there is an inescapable and thorny dilemma between oversight and secrecy.
How are National Security Whistleblowers Treated Differently?
Whistleblowers are organizational insiders who observe “a problem that is going uncorrected — like waste, fraud, abuse, criminal behavior or something that threatens public safety and security — and tries to bring it to light.” Recognizing that whistleblowers play a vital role in oversight, Congress passed legislation to protect them in 1978, and strengthened these protections in subsequent years. For many public employees, these laws protect individuals that lodge allegations of waste, fraud, and abuse with an independent, external authority. External reporting is vital for oversight. Without it, whistleblowers can only report abuse to the people they are reporting about. This encourages reprisals and creates opportunities for abusers to bury complaints against them.
National security professionals are explicitly, and uniquely, exempt from these protections. In the late-1990s, Congress sought to provide an alternative that was better suited for these distinctive employees. Their efforts culminated in the Intelligence Community Whistleblower Protection Act of 1998. Despite its name, the law did not provide for direct, external reporting. Moreover, it “provides no legal remedy for retaliation against a covered employee. [It] specifically states that ‘[a]n action taken by the Director or the Inspector General … shall not be subject to judicial review.’’’
In 2012, President Barack Obama tried his hand at reform, issuing Presidential Policy Directive 19. Although PPD-19 doesn’t provide for safe, external reporting channels either, it does allow national security whistleblowers to appeal to a panel of inspectors general in the event of reprisals. But the decision “is [still] subject to review by the agency head, thereby potentially mitigating much of the benefit of the outside review.” The Intelligence Authorization Act of 2014 aimed to codify the protections contained in PPD-19 but contained the same loopholes as the directive it formalized. As the recent whistleblowing complaint involving Trump shows, even when Congress is alerted to a complaint, senior officials in the executive branch can potentially deny them most of the details.
Why Do these Reforms Fail?
Why do lawmakers fail to extend protections to national security whistleblowers that other whistleblowers enjoy? The obvious answer — that national security whistleblowers are putting the nation’s security at risk by levying allegations — is unsatisfying. Even if we accept that national security requires unique levels of secrecy, Congress and the public still want to know when power has been abused. These are not secrets the public wants to protect.
Our research suggests that the main challenge with national security whistleblowers stems from the verification of their allegations. In a perfect world, whistleblowers would only make accurate claims and we could simply believe them. But they may be mistaken, may not have the full picture, or may come forward with knowingly false claims. Thus, we cannot simply take them at their word.
This is why a whistleblower’s allegations must be thoroughly investigated and verified. But to properly verify whistleblower allegations, investigators must review all the relevant information. In the national security sector, this means that the executive would be forced to expose sensitive secrets to Congress every time a whistleblower lodged a complaint. Reform efforts failed because legislators were reluctant to force the executive into a position where they must disclose highly classified information to defend themselves against allegations of waste, fraud, and abuse.
The public interest cannot be served by protecting national security whistleblowers so long as we accept the executive’s right to keep important national security secrets secret. Where verification is feasible, we can investigate claims and reward whistleblowers deemed to be honest. But if Congress writes laws to protect whistleblowers when allegations cannot be verified, it creates perverse incentives for individuals to come forward with false or misleading claims. As a result, if we pass reforms to protect national security whistleblowers, we cannot know if those that come forward are honest. This leaves legislators no alternative but to exempt them from whistleblower protections.
Implications for Reforms Today
Before lawmakers jump head-first into another effort to provide safe, external reporting for national security whistleblowers, we should learn from past efforts about what the trade-offs are. Our research suggests that reform is only possible if there is a radical shift in how classified information is handled. Unless Congress is willing (and able) to force the executive to disclose state secrets to defend itself against every whistleblower allegation levied against them, the public cannot benefit from protecting these whistleblowers. Previous failed efforts show that this is an inescapable reality.
As some have previously pointed out, punishing national security whistleblowers costs us some level of oversight. There are likely cases of abuse in the national security arena that go unreported because whistleblowers are unwilling to bear the costs of coming forward. But, as we noted above, increasing whistleblower protections for national security professionals is not without significant downsides, including the prospect of exposing state secrets that ought to stay secret.
The recent allegations against Trump, which incentivized him to release a memorandum that serves as the record of his call with the Ukrainian president, illustrate this. Moving forward, foreign leaders may anticipate that they cannot have candid conversations with U.S. presidents. They will worry that whatever they say may get back to their domestic populations or even foreign rivals. Thus, even if the behavior alleged by the whistleblower in this case is worrisome, the potential precedent it sets is as well.
Michael Joseph is the Chauncey post-doctoral fellow at Yale University (2018-2020). He holds a Ph.D. in Political Science from George Washington University (2018).
Michael Poznansky (@m_poznansky) is an assistant professor of international affairs and intelligence studies in the Graduate School of Public and International Affairs at the University of Pittsburgh. He is also a Non-Resident Fellow with the Modern War Institute at West Point during the 2019-2020 academic year.
William Spaniel (@gametheory101) is an assistant professor of political science in the Department of Political Science at the University of Pittsburgh.