National Whistleblower Day

Last week, Senate Select Committee on Intelligence Acting Chairman Marco Rubio (R-FL) and Vice Chairman Mark Warner (D-VA) issued a joint statement supporting whistleblowers within the intelligence community.  The statement reads:

“Consistent with its mandate to oversee the activities and programs of the Intelligence Community, the Committee takes seriously all complaints it receives pursuant to the Intelligence Community Whistleblower Protection Act (ICWPA). The ICWPA is an essential channel for ensuring evidence of wrongdoing rising to the level of an urgent concern is brought to the Committee’s attention in a manner that is lawful and protective of classified information. Without commenting on the specifics of any single instance, the American public can be assured that this Committee’s approach to ICWPA complaints is, and will remain, one defined by vigorous oversight, adherence to the law, and recognition of Congress’ Constitutional obligations.”

According to Reuters, a congressional source claims the Senators’ statement is in response to recent complaints made by Russell Travers, the former head of the National Counterterrorism Center (NCTC), who was fired in March.  In an interview with Politico, Travers detailed his concerns with the state of counterterrorism intelligence.  Specifically, he believes that staffing issues and inadequate information technology resources contribute to intelligence agencies slipping back into “pre-9/11 habits.”  Travers first raised his concerns internally by reporting to the intelligence community Inspector General.  However, soon after he came forward, Richard Grenell, the then-acting Director of National Intelligence and recent Trump appointee, removed Travers from his post. Travers’ comments have thus raised concerns not just about the state of counterintelligence but also with how internal reports and concerns are handled in the intelligence community.

Federal whistleblowers within the intelligence community are essential in exposing abuse and mismanagement in the powerful intelligence agencies. However, the laws governing the rights and protections of national security whistleblowers are far weaker than those for corporate or even other federal employees. When the original Whistleblower Protection Act (WPA) was passed in 1978, the intelligence agencies successfully fought to have their employees exempted from the law.  The exemption had a terrible impact both on national securities whistleblowers themselves and the public’s right to know about abuses within the intelligence community.

The Intelligence Community Whistleblower Protection Act (ICWPA), passed in 1998, set procedures for whistleblowing within the intelligence community but, despite the law’s name, offered no protection to whistleblowers.  Title VI of the Intelligence Authorization Act (IAA) for Fiscal Year 2014, entitled Protection of Intelligence Community Whistleblowers, was the first federal law that provided a semblance of protection for intelligence community whistleblowers.  However, unlike every whistleblower law passed over the past three decades, the law does not permit whistleblowers to seek judicial review of an adverse determination.  It is the president of the United States, and not the courts, who has the authority to ensure national security whistleblowers are protected.  This lack of judicial oversight means that the ICWPA, even with amendments, is among the weakest whistleblower laws passed by Congress in the past fifty years.