Intelligence Community Whistleblowers

“This all supposedly started because of a whistleblower,” President Trump’s attorney Jay Sekulow said Tuesday during the first day of the Senate impeachment trial. “Where is that whistleblower?” he added as he closed his notebook and walked away from the Senate podium.

Whether you think that’s blaming the messenger or not, the reality is the Ukraine whistleblower’s job is done. The whistleblower, is however, still a target. Over the weekend, another of the president’s lawyers, Pam Bondi, said the whistleblower is “not a real whistleblower,” but an informant and leaker.

Whistleblowers, including this one, have been called worse. White House counselor Kellyanne Conway described the whistleblower as “more blowhard than whistleblower.” The president and others like to refer to the “so-called” whistleblower. Fox News correspondent Geraldo Rivera called the whistleblower a rat and a snitch. Rush Limbaugh also called the whistleblower a leaker.

So, we return to the question — What’s wrong with being a leaker? Are all leaks illegal? Can you be a whistleblower and not be a leaker? All this came up in 2017 when President Trump called former FBI chief James Comey a leaker.

NWC chair Stephen M. Kohn clarified the difference in this Washington Post video, where he states that criticism of some leakers “might be valid…but the real motive here is to scare people, to discriminate and distract.”  He points out that there are ways to blow the whistle and disclose information lawfully,


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Just before the holiday, the American Bar Association published a statement on its “Legal Fact Check” webpage concluding that the whistleblower’s identity is NOT Protected by the law.

Stephen M. Kohn

The lawyer for the White House whistleblower has asked that the person’s identity be kept anonymous for the protection

The Washington Post reports that Congressional staffers worked through the holiday to complete a report on the House Intelligence Committee’s  Ukraine investigation. It is expected to go to the Judiciary Committee Tuesday. That committee will meet Wednesday review the report and its own findings as it considers articles of impeachment. Those will go to the House floor.

Much has been said about that whistleblower and whistleblowing in general over the past two months. Here’s a roundup of some of our posts.

9/24 Will whistleblower battle lead to a crisis of confidence in the intelligence community?

Whistleblowers from the intelligence community face a different set of rules than other government insiders.


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All potential whistleblowers face a choice. Report through official channels — their agency’s whistleblower program or a company’s compliance office. Or, go to Congress or the press. In yesterday’s post, an accounting professor made the case for using inside channels. In a Q.&A. in today’s Boston Globe, Pentagon Papers whistleblower Daniel Ellsberg advises otherwise.

If you had one message to America about whistle-blowing and its value, what would it be?

We need more whistle-blowing, not less, and that has never been more evident than right now. . . . Don’t go through channels. Go to the press and Congress directly. . . . The risks are very real, but the risks can be worth taking.

The NWC advises whistleblowers to talk to a lawyer before they go anywhere. The whistleblower protection laws are complex and vary from case to case, agency to agency. In a recent interview with WGBH in Boston, Ellsberg noted that he didn’t have many options. 
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Turns out hearsay can be pretty reliable.

The validity of secondhand information about President Trump’s dealings with Ukraine reemerged as an issue at Wednesday’s impeachment hearings. The president’s supporters initially dismissed the whistleblowers’ revelations as unreliable “hearsay.” They are now making the same claim about the State Department diplomats who were first to testify.

This as virtually everything the whistleblower reported has been confirmed by those in the loop or present at the events in question.

That result would line up with the findings of an analysis of two million whistleblower complaints filed at more than 1,000 private companies.  Kyle Welch, a business professor at George Washington University, had just published a study in September using 13-years of  information from a firm  that makes and runs corporate compliance software.  His research, with Stephen Stubben of the University of Utah, is producing much needed data about the nature of whistleblower complaints.

So, when hearsay became an issue in the impeachment investigation, he decided to run some numbers on it.

The surprise: Secondhand “reports are 47.7% more likely than firsthand reports to be substantiated by management, which suggests that management views many secondhand reports as credible.“
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 John Kostyack is the executive director of the  National Whistleblower Center

A national conversation is underway about whether the President’s actions on the Ukraine matter warrant impeachment – a question on which the National Whistleblower Center does not take a position. However, an equally robust conversation needs to happen on a related question: how to respond to the President’s hostile actions toward the Ukraine whistleblowers.

Our view is that the President’s actions are very likely violating laws prohibiting intimidation of witnesses and reprisals against whistleblowers. Moreover, he is failing to uphold his duty to enforce the anti-reprisal law. Regardless of how Congress proceeds on the impeachment inquiry, it must forcefully assert itself here. Congress needs whistleblowers to perform its constitutional oversight role and otherwise ensure implementation of the laws it passes. To defend its role in our system of checks and balances, Congress must insist that the President reverse course.

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I was punished for telling the truth. You hear that a lot from whistleblowers. Not what they expected for doing the right thing. Some organizations see whistleblowers as disloyal. So, when they fire, harass, demote, dox, or professionally blacklist a worker, supervisors see it as punishment, not retaliation.

So, anonymity is key. The laws protecting whistleblowers from retaliation are strengthened by provisions for anonymity. What do they need to be protected from? Anyone who has ever gotten on the wrong side of a toxic boss or an unfair co-worker has had a taste of it.

Protection tips

The National Whistleblower Center offers a list of whistleblower protection practices to avoid retaliation. The NWC site shares the story of Jane Turner, a 25-year veteran special agent with the FBI who is also the chairwoman of the NWC’s Whistleblower Leadership Council. She led the FBI’s  programs for women and children on North Dakota Indian reservations and reported problems with the program. Turner said the aftermath was the destruction of her career and finances and post-traumatic stress syndrome.

Here’s how they describe her case:
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Major news outlets aren’t naming the rumored Ukraine whistleblower despite disclosure of a name on social media and the Real Clear Investigations website.

From The Washington Post. 

The mainstream media’s silence is puzzling to Tom Kuntz, the editor of Real Clear Investigations (RCI), which published its whistleblower investigation last week.

“The silence has been deafening,” he said. “It’s almost like there’s a code of omerta [the Mafia vow of silence] about what media organizations can report. . . . There’s a herd mentality and a reluctance to cut against the grain.”

From the Society of Professional Journalists.

Some Republican’s argue that the name reveals the whistleblower’s bias. Dean Baquet, executive editor of the New York Times said he’s not not convinced his identity is important at this point “…or at least important enough to put him at any risk, or to unmask someone who doesn’t want to be identified…Pretty much everything has now been discussed or confirmed on the record, multiple times, by others in the administration. So I’m not sure I see the point of unmasking someone who wants to remain anonymous.”
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11/6 update: Chris Cillizza at CNN comments on Rand Paul’s strategy at a Monday Trump rally,

“What Trump and Paul are trying to do is put the whistleblower at the end of this process. Unless the whistleblower reveals him or herself, how we can trust that anything he or she says is right? We have to know who this person is to judge whether they are some bitter Democrats or loser Never Trumper!

That’s not what a whistleblower is or what they do. Whistleblowers are the start of a process, not the end of it. And they are rarely the centerpiece of the process.”
He gets NWC director John Kostyack to explain how it works.

11/4: The Ukraine scandal whistleblower’s work is done, but the president and his supporters continue to call for him or her to come forward. They say his bias must be exposed. Democrats say he is no longer a key witness; others have confirmed the facts in the whistleblower complaint. Anonymity will protect him or her from certain harassment and retaliation.

Still, some lawmakers and conservative media sites are naming a CIA officer they say is likely the whistleblower. On Wednesday, the conservative news site Real Clear Politics reported that the whistleblower is CIA analyst who worked at the White House – something the New York Times reported to some outcry. Real Clear Politics puts a name to it and offers this confirmation: the name of “a government official fitting that description… has been raised privately in impeachment depositions, according to officials with direct knowledge of the proceedings, as well as in at least one open hearing held by a House committee not involved in the impeachment inquiry.“

The whistleblower’s lawyers won’t confirm or deny. They have offered to have the whistleblower answer written questions from GOP lawmakers under oath.  Most major press outlets are not reporting the name.
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FBI whistleblower Michael German writes in today’s Washington Post about flaws in the system designed to protect intelligence community whistleblowers.

The intelligence agencies successfully lobbied for exemptions from whistleblower protections by arguing that these complicated reporting processes are necessary to protect classified information. But this is wrong on two counts. First, intelligence community whistleblowers and