07 January 2020

Trump vs Biden | The Ukraine Affair, legislative traps and the uneasiness of an anonymous whistle-blower

Liviu Ioniţă

For several weeks, the so-called Ukraine Affair holds the firs page of US mass media. At the beginning of August 2019, an anonymous whistle-blower filed a complaint with Inspector General of the Intelligence Community, Michael Atkinson. The complaint described a phone call which took place on July 25 between President Trump and Ukrainian President Volodymyr Zelensky, during which the White House leader would have requested support for prosecution against the family of the democratic front-runner for 2020 elections, Joe/Joseph Biden. At the same time, the complaint referenced subsequent actions made by the White House to hide the call’s existence. The complaint, published in an unclassified format on September 26, generated numerous controversies regarding the law, politics and procedures which regulates the actions of whistle-blowers or security “watchdogs”.

Image source: Mediafax

Who are the main actors involved in the scandal which led to the start of an inquiry by democrats in the House of Representatives, with the final purpose of firing President Trump?

  • The entities of the system which supervises the information activity: the whistleblower who filed the complaint, the House Intelligence Committee, currently led by Adam Schiff, and the Inspector General of the Intelligence Community (IGIC).

The reason for which, in a democratic state, the supervision of intelligence activity is made in all the three spheres of power – executive, legislative and judiciary – is determined by the necessity to promote transparency and responsibility within those who are involved with collecting essential information to protect national security.

Monitoring, verifying, assessing and investigating the legality, correctitude and efficiency of intelligence structures can be done by various committees or by independent institutions, such as the ombudsman, with the main purpose to exert democratic control over the activity of intelligence services.

In the United States, each member of the intelligence community is superseded by inspector generals from within their own organization or from another organization which is higher in rank. Information agencies which are not part of the military are controlled by independent general inspectors.

Starting with the Intelligence Authorization Act in 2010, the Office of the Inspector General of the Intelligence Community was established within the Office of the Director of National Intelligence, with attributions of carrying out audits, inquiries, inspections and analyses in order to promote efficiency, efficacity and integrity in the intelligence community.

As for the US Congress, there are to special standing committees which have attributions of control and monitoring the federal agencies and organisms which provide information and determine, among others, the annual budget of the intelligence community: the Intelligence Committees in the House of the Representatives and the Senate.

Whistleblowing can be defined as the “the lawful disclosure of information a discloser reasonably believes evidences wrongdoing to an authorized recipient”. Intelligence community whistleblowers are the employees or contractors who belong to any of the 17 structures of the intelligence community, who reasonably believe that an offence was committed.

  • The leadership of the intelligence community, ensured by the Director of National Intelligence (DNI) and his department, the Office of the Director of National Intelligence (ODNI).

The director of the intelligence community coordinates the activity of the community’s member structures and the main presidential advisor in the National Security Council with regards to intelligence activities related to national security. Currently, the office is held on an interim basis by Joseph Maguire.

  • US President Donald Trump, head of state and leader of the executive branch, as chief of the American federal government.

Inconsistencies of the whistleblowing process. The risk posed by unclear legal provisions

Beyond the aspects referring to interior or foreign policy, or the president’s conduct and its consequences, the Ukraine Affair certainly contains elements regarding the intelligence community.

Firstly, there are the inconsistencies in the process of whistleblowing which determined analyst from the Brennan Center for Justice to talk about a gap in the law within the national security whistleblowing system.

In accordance with the Intelligence Community Whistleblower Protection Act of 1998, whistleblowers report illegal actions through a specific system. There are two ways for the information to reach the Congress: either through a report sent to the Inspector General of the Intelligence Community, or directly to the Congress.

In the first case, the Inspector General will establish whether the complaint is credible and if it refers to an urgent concern. What is this, more exactly?

According to the law, a problem of urgent concern is:

(i) A serious or flagrant problem, offence … a deficiency in the funding, managing or operating an intelligence activity which falls under the responsibility and authority of the DNI … which involves classified information, but does not include differences of opinion regarding aspects of public policy;

(ii) A false statement made towards the Congress or a voluntary withholding towards the Congress of a certain issue … related to funding, managing or carrying out an intelligence activity;

(iii) An action … which constitutes repression or a threat of repression … as response to a complaint made by an employee …

If the report meets both conditions (the complaint is credible and refers to an urgent concern), it will be forwarded to the DNI, which should also forward it, together with his own comments, to the Congress.

In the second case, the whistleblower can send the report directly to the Congress, but only if the Inspector General decides the problem is not of urgent concern or not credible, case in which the whistleblower must respect adequate security protocols to protect sensible or classified information which are part of the complaint.

The IGIC has 14 days to establish the report’s credibility, after which he forwards its to the DNI. The latter has seven days to forward it to the Congress.

What happened in the current situation? An individual sent information to the IGIC regarding an urgent confirm; the IGIC made a preliminary analysis and established that the information is credible; on August 26, the IGIC forwarded the complaint, together with his analysis, to the interim DNI. The DNI did not forward it to intelligence communities within seven days.

House Intelligence Committee Chairman Adam Schiff officially took note of Joseph Maguire’s decision to not forward the complaint and, according to the published correspondence between Schiff and Maguire, it seems the DNI also refused to provide the whistleblower, according to legal provisions, with directions on how he could directly contact Congress through the IGIC.

Interim DNI Joseph Maguire argued his initial refusal by stating that he considered the report’s contents to be subject to Executive privilege, referring to the president’s possibility to refuse the access of Congress, as well as courts and other government entities to certain information.

The DNI also considered that the report involves confidential official communications, which are potentially privileged, and the complaint concerns the conduit of an individual outside the intelligence community. He also expressed his doubts regarding the veracity of the second hand accusations reported by the whistleblower.

The fact that the complaint refers to someone outside the intelligence community does not seem to be a correct justification for withholding it, as long as it concerns the funding, managing or operation of an intelligence activity in the DNI’s responsibility and authority.

As for invoking Executive privilege, things are more complicated.

When the Whistleblower Protection Act of 1998 was enacted, President Clinton stated that the bill does not constrain the president’s constitutional authority to examine and, if it is the case, control the spread of certain classified information towards the Congress. President Obama reiterated this limitation in 2010 and reserved his right to retain information from the Congress in exceptional circumstances.

The Clinton and Obama Administrations considered that the chiefs of agencies will decide if they have to postpone, limit or prevent the spread of sensible information and will promptly contact the Congress committees to begin a traditional process of … reconciliation.

It is presumed that the attitude of the DNI was caused by the involvement of the White House.

Also from the White House, President Trump accredited the idea of a conspiracy, stating that in the days before the complaint was filed, members of intelligence community modified the report form, by removing the requirement for the whistleblower to have a first hand account of what they are reporting.

With no access to the report in the first phase, congressmen could not establish how credible the complaint is, only having information provided by the mass media based on anonymous sources.

Eventually, the report was forwarded with an official summary of the phone call referred to in the complaint.

On September 30, the IGIC published a declaration regarding the denunciation form used by the whistleblower to file the complaint. The official stated that the form filed on August 12, 2019, was the same form the IGIC had beginning with May 24, 2018, and that the law does not oblige the whistleblower to have a first-hand account of an urgent concern.

Secondly, an element which highlights both judicial shortcomings with implications for the intelligence community, as well as the existence of a fundamental conflict between Congress supervision and executive prerogatives, is the problem of the identity of the whistleblower.

Protecting whistleblowers. A difficult mission if they are intelligence officers

Intelligence community whistleblowers function under a different set of rules, which makes them more vulnerable than other federal employees or corporate whistleblowers.

Even before the report was published, President Donald Trump attacked its initiator, attempting to raise questions of his credibility on grounds of political partisanship and treason.

This raised concerns on eventual reprisals, with the existence of precedents, such as FBI employee Andrew McCabe, who was fired one day before his retirement, after Trump repeatedly criticized him on Twitter for his actions during the 2016 elections.

According to the law, the IGIC is not allowed to disclose the whistleblower’s identity, unless this becomes inevitable. The law forbids the IGIC from disclosing the latter’s identity without his approval, with one exception: the case in which he considers that the complaint can be made part of a criminal case, and thus must be disclosed to a Department of Justice clerk with regards to the eventual charges which can be brought.

The 1989 Whistleblower Protection Act excluded employees of the information community from regulations regarding protection against reprisals.

Starting with the 1998 protection act, which was integrated and updated until 2010, when the Congress established the Office of the Intelligence Community Inspector General, offers a way for intelligence whistleblowers to raise issues regarding activities which could break the law, while also assuring the protection of classified information.

The law authorizes the IGIC to receive and investigate … complaints or information from any person if they are related to the existence of an activity carried out under the authority and in accordance with the responsibilities of the Director of National Intelligence which represents a violation of laws, rules, regulations or incorrect management … an inadequate use of funds … abuse of authority … a substantial and specific danger for public health and safety.

One decade later, the Intelligence Authorization Act for Fiscal Year 2010 added general regulation regarding the protection of intelligence community whistleblowers. Presidential Policy Directive 19 (PPD 19), signed by President Obama in 2012, included specific protection elements for whistleblowers, codified in the Intelligence Authorization Act for Fiscal Year 2014.

President Obama, in PPD 19, and later DNI James Clapper, in the Intelligence Community Directive 120 (ICD 120) specified that no employee of the intelligence community can be subjected to reprisal for any reveals made in conformity with legal procedures.

But PPD-19 has several loopholes, including the fact that it does not make any mention of remediating situations in which reprisals on the whistleblower have already been made, such as when the latter was fired for reasons of national security.

Directive 19, as other presidential directives, can be revoked be President Trump and is not applied to members of the armed forces.

Currently, the identity of the whistleblower is still confidential, although The New York Times and Reuters reported that he is a CIA employee.

In the case his identity is revealed and the White House or anyone else decides to strike back, the whistleblower will not have almost any legal means of appeal.

If reprisals will be exerted against him, he does not have access to the court system, cannot defend against prosecution, but most rely on an internal trial.

Mark Zaid, the lawyer who represents him, refused to confirm both his client’s identity and occupation, arguing that the whistleblower will be in a “very dangerous situation, not only professionally, but for his personal safety” if they are revealed.

At the same time, former CIA agent and whistleblower John Kiriakou considers that the identity of the person who made the complaint in the Ukraine Affair is likely to be revealed, as “many in the CIA already know who he is”, and when it is revealed “he will go through hell and, besides threats from President Trump, he will certainly receive more death threats”.

The conflict generated by the whistleblower’s report could last, in the opinion of some analysts, several years beyond the 2020 presidential elections, as it involves legislative deficiencies and the polarization of litigation actions.

And, somewhere above all the consequences, still persists the question: did the individual who made a complaint regarding the attitude and possibly illegal actions of the United States president did a good thing?

William Evanina, director of the National Counterintelligence and Security Center offers an answer for this: I would rather want someone to hand over an information ot the DNI, rather than to the Russians, or Chinese or Iranians … Since the American Revolution and up to the cybernetic revolution, the spies among us caused considerable damages to national security …

But it is necessary for this to happen in an adequate legal framework and, as the adversaries and threats continue to evolve, counterintelligence and security professionals … must also evolve.

Even when they become whistleblowers, or anonymous denunciators.

Translated by Ionut Preda