Intelligence Community Whistleblower Provisions: A Legislative History

Changes from June 22, 2021 to June 15, 2022

This page shows textual changes in the document between the two versions indicated in the dates above. Textual matter removed in the later version is indicated with ~~red strikethrough~~ and textual matter added in the later version is indicated with blue.

Intelligence Community Whistleblower
June June ~~22, 2021~~
~~Protections~~15, 2022 Provisions
Michael E. DeVine
Intelligence community (IC) whistleblowers are Intelligence community (IC) whistleblowers are ~~those~~ employees or contractors employees or contractors ~~working in any~~of the federal
Analyst in Intelligence and Analyst in Intelligence and
government working in any of the 18 elements of the IC who disclose their reasonable belief of a of the 18 elements of the IC who disclose their reasonable belief of a National Security violation of law, rule, or violation of law, rule, or
~~National Security~~
regulation; gross mismanagement; waste of resources; abuse of regulation; gross mismanagement; waste of resources; abuse of authority; or a substantial danger authority; or a substantial danger

to public health and safety. The Director of National Intelligence (DNI) whistleblowing policy to public health and safety. The Director of National Intelligence (DNI) whistleblowing policy
and guidance and guidance generally are publicly availableare publicly available, and ~~and specifically~~ address the process for making protected address the process for making protected

disclosures and identify whistleblower protections for IC contractors, members of the Armed disclosures and identify whistleblower protections for IC contractors, members of the Armed
Forces, and federal IC employees. Forces, and federal IC employees.
IC whistleblower protections have evolved in response to perceptions of gaps that IC whistleblower protections have evolved in response to perceptions of gaps that ~~many~~some observers observers ~~believed left~~
argued left these whistleblowers vulnerable to reprisal. The first whistleblower legislation specific to the IC, enacted in 1998, was limited to whistleblowers vulnerable to reprisal. The first whistleblower legislation specific to the IC, enacted in 1998, was limited to
specifying a process for IC whistleblowers to make a complaint but offered no specific protections. Subsequent legislation, specifying a process for IC whistleblowers to make a complaint but offered no specific protections. Subsequent legislation,
enacted in 2010, included enacted in 2010, included ~~only~~ general provisions for protecting IC whistleblowersgeneral provisions for protecting IC whistleblowers, with no additional guidance on standards with no additional guidance on standards
for implementation. Presidential Policy Directive (PPD)-19, signed in 2012, provided the first specific protections against for implementation. Presidential Policy Directive (PPD)-19, signed in 2012, provided the first specific protections against
reprisal actions for making a complaint. The Intelligence Authorization Act for Fiscal Year 2014 reprisal actions for making a complaint. The Intelligence Authorization Act for Fiscal Year 2014 (P.L. 113-126) codified these provisions, codified these provisions,
which were further supported by IC implementation policy. In early 2018, Congress passed legislation to address perceived which were further supported by IC implementation policy. In early 2018, Congress passed legislation to address perceived
gaps in protections for IC contractors. Other provisions in Title 10 of the U.S. Code, along with DOD implementing gaps in protections for IC contractors. Other provisions in Title 10 of the U.S. Code, along with DOD implementing
guidance, provide protections for members of the Armed Forces, including those assigned to elements of the IC. guidance, provide protections for members of the Armed Forces, including those assigned to elements of the IC.
The August 2019 whistleblower complaint by a member of the IC that led to the impeachment of President Donald J. Trump The August 2019 whistleblower complaint by a member of the IC that led to the impeachment of President Donald J. Trump
raised additional questions among many in Congress about whether existing statutory protections are sufficient. These raised additional questions among many in Congress about whether existing statutory protections are sufficient. These
questions concerned (1) questions concerned (1) ~~the clarity of procedures on how to make a lawful disclosure; (2) policy and process enabling a~~
~~whistleblower to approach Congress directly; (3) the degree of independence of IC inspectors general to make final~~
~~determinations specific to a complaint; (4) the jurisdiction of an IC inspector general to handle a complaint—whether it can~~
~~concern a subject who is not a member of an IC element, or conduct that is not unambiguously connected to an intelligence~~
~~activity; and (5) the adequacy of protections against unlawful disclosure of a whistleblower’s identity.~~
~~This report traces the evolution of IC whistleblower protections in legislation and presidential and IC directives. Effective~~
~~whistleblowing protections are considered as much about instilling~~whether whistleblowers should have a right to remain anonymous, and, if so, what, if any, recourse should they have in the event their identity is disclosed against their will; (2) whether procedures provide potential whistleblowers clear direction on how to approach Congress with a protected disclosure; (3) whether the text of the various IC-related whistleblower statutes is clear and consistent as they relate to each other; and (4) the final authority for making determinations of what constitutes a matter of “urgent concern.” Since that time, Congress has taken steps to provide greater clarity and consistency to existing whistleblower legislation. The Intelligence Authorization Act for Fiscal Year 2022 (Division X of P.L. 117-103), included, for example, a provision giving the Inspector General of the Intelligence Community (ICIG) and Inspectors General of any IC element sole authority to determine whether a lawful disclosure constitutes a matter of “urgent concern.” Effective whistleblowing protections are intended to instill confidence in the integrity and comprehensiveness of the confidence in the integrity and comprehensiveness of the
process for submitting a complaint as process for submitting a complaint as ~~they are about~~much as for the process itself. the process itself. ~~When~~By extension, when IC employees have confidence IC employees have confidence that they can make they can make
protected disclosures anonymously and without fear of retribution, they protected disclosures anonymously and without fear of retribution, they ~~are often~~arguably are more likely to adhere to a process that is more likely to adhere to a process that is
also intended to protect classified information. Conversely, also intended to protect classified information. Conversely, this line of reasoning also suggests a lack of confidence can increase the chances of wrongdoing a lack of confidence can increase the chances of wrongdoing
going unreported or going unreported or of classified information being compromised through an employeeclassified information being compromised through an employee’s making a complaint outside of proper making a complaint outside of proper
channels. channels.

Congressional Research Service Congressional Research Service

Intelligence Community Whistleblower ~~Protections~~Provisions

Introduction
Intelligence Community (IC) whistleblowers are Intelligence Community (IC) whistleblowers are ~~those~~ employees or contractors working in any employees or contractors working in any
of the statutory elements of the IC who disclose of the statutory elements of the IC who disclose ~~their~~ reasonable beliefs of a violation of law, rule, reasonable beliefs of a violation of law, rule,
or regulation; gross mismanagement; waste of resources; abuse of authority; or a substantial or regulation; gross mismanagement; waste of resources; abuse of authority; or a substantial
danger to public health and safety. danger to public health and safety. ~~The essential~~One important distinction between whistleblowers generally and distinction between whistleblowers generally and
those in the IC (or those who otherwise have security clearances) is the concern for protecting those in the IC (or those who otherwise have security clearances) is the concern for protecting
classified information that may be involved in an IC-related incident or complaint. The IC has classified information that may be involved in an IC-related incident or complaint. The IC has
recognized that whistleblowing can help ensure an ethical and safe working environment, and recognized that whistleblowing can help ensure an ethical and safe working environment, and
enable timely responses for corrective action.1 enable timely responses for corrective action.1
Congress and the executive branch have defined, in statute and directives, procedures for IC Congress and the executive branch have defined, in statute and directives, procedures for IC
whistleblowers to make protected disclosures that also provide for the security of classified whistleblowers to make protected disclosures that also provide for the security of classified
information. The Director of National Intelligence (DNI) whistleblowing policy and guidance are information. The Director of National Intelligence (DNI) whistleblowing policy and guidance are
publicly available and specifically address whistleblower publicly available and specifically address whistleblower ~~process~~processes and protections for IC and protections for IC
contractors, members of the Armed Forces, and federal employees.2 contractors, members of the Armed Forces, and federal employees.2 ~~There are differing opinions,~~
~~however, on whether~~Some proponents for greater transparency in the IC, however, have believed the IC’s internal processes are the IC’s internal processes are ~~entirely clear and have~~not as clear as they could be, and lack the transparency necessary to provide prospective whistleblowers confidence they would be protected ~~the transparency~~
~~necessary, from the standpoint of a whistleblower, to ensure adequate protections~~ against reprisal. against reprisal.
Whistleblower protections for employees and contractors in the IC are extended only to those Whistleblower protections for employees and contractors in the IC are extended only to those
who make a lawful disclosure. They do not cover disclosures that do not conform to statutes and who make a lawful disclosure. They do not cover disclosures that do not conform to statutes and
directives prescribing reporting procedures intended to protect classified information, for directives prescribing reporting procedures intended to protect classified information, for
example, by classified information disclosures to the media or a foreign government. The example, by classified information disclosures to the media or a foreign government. The
whistleblower protections do not apply to a difference of opinion over policy, strategy, analysis, whistleblower protections do not apply to a difference of opinion over policy, strategy, analysis,
or priorities for intelligence funding or collection, unless there is a reasonable concern over or priorities for intelligence funding or collection, unless there is a reasonable concern over
legality or constitutionality. Whistleblower protections also do not protect against legitimate legality or constitutionality. Whistleblower protections also do not protect against legitimate
adverse personnel or security clearance eligibility decisions if the agency can demonstrate that it adverse personnel or security clearance eligibility decisions if the agency can demonstrate that it
would have taken the same action in the absence of a protected disclosure. would have taken the same action in the absence of a protected disclosure.
IC whistleblower protections have evolved in response to perceptions of gaps that IC whistleblower protections have evolved in response to perceptions of gaps that ~~many~~some believed believed
left whistleblowers vulnerable to reprisal. The first whistleblower legislation specific to the IC left whistleblowers vulnerable to reprisal. The first whistleblower legislation specific to the IC
was the Intelligence Community Whistleblower Protection Act (ICWPA) of 1998. It was limited was the Intelligence Community Whistleblower Protection Act (ICWPA) of 1998. It was limited
to specifying a process for an IC whistleblower to make a complaint but offered no specific to specifying a process for an IC whistleblower to make a complaint but offered no specific
protections. The Intelligence Authorization Act for Fiscal Year 2010 included provisions for protections. The Intelligence Authorization Act for Fiscal Year 2010 included provisions for
protecting IC whistleblowers, though these were general and subject to different standards of protecting IC whistleblowers, though these were general and subject to different standards of
implementation. implementation.
Presidential Policy Directive (PPD)-19, signed in 2012, provided the first specific protections in Presidential Policy Directive (PPD)-19, signed in 2012, provided the first specific protections in
response to perceptions that IC whistleblowers remained vulnerable to reprisal actions for making response to perceptions that IC whistleblowers remained vulnerable to reprisal actions for making
a complaint. The Intelligence Authorization Act for Fiscal Year 2014 codified the PPD-19 a complaint. The Intelligence Authorization Act for Fiscal Year 2014 codified the PPD-19
provisions (50 U.S.C. §§3231 et seq.), and Intelligence Community Directive (ICD)-120 provisions (50 U.S.C. §§3231 et seq.), and Intelligence Community Directive (ICD)-120
established a PPD-19 implementation policy. For members of the Armed Forces assigned to established a PPD-19 implementation policy. For members of the Armed Forces assigned to
elements of the IC, 10 U.S.C.elements of the IC, 10 U.S.C. §1034 provides whistleblower protections. Department of Defense §1034 provides whistleblower protections. Department of Defense
(DOD) implementing guidance for Section 1034 can be found in DOD Directive 7050.06, (DOD) implementing guidance for Section 1034 can be found in DOD Directive 7050.06,
Military Whistleblower Protection. ~~The most recent~~Prior to 2019, legislation concerning IC whistleblowers was legislation concerning IC whistleblowers was
Section 110 of P.L. 115-118, enacted in January 2018, which amended the National Security Act Section 110 of P.L. 115-118, enacted in January 2018, which amended the National Security Act
~~of 1947 and the Intelligence Reform and Terrorism Prevention Act of 2004 to include provisions~~
~~to address perceived gaps in protections for IC contractors.~~

1 1 Office of the Director of National Intelligence (ODNI), at https://www.dni.gov/ICIG-Whistleblower/index.html. https://www.dni.gov/ICIG-Whistleblower/index.html.
22 ODNI, at https://www.dni.gov/ICIG-Whistleblower/process-how.html. https://www.dni.gov/ICIG-Whistleblower/process-how.html.
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Intelligence Community Whistleblower ~~Protections~~

Provisions of 1947 and the Intelligence Reform and Terrorism Prevention Act of 2004 to include provisions to address perceived gaps in protections for IC contractors. The August 2019 whistleblower complaint that led to the impeachment of President Donald J. The August 2019 whistleblower complaint that led to the impeachment of President Donald J.
Trump revealed a number of differences in how IC whistleblowing statutes could be interpreted. Trump revealed a number of differences in how IC whistleblowing statutes could be interpreted.
~~There were differences over the jurisdiction of an IC inspector general to handle complaints~~
~~concerning individuals outside the IC whose conduct is not unequivocally related to an~~
~~intelligence activity and~~Some in Congress questioned the independence of IC inspectors general to make a final determination the independence of IC inspectors general to make a final determination
of whether a complaint is credible and a matter of “urgent concern.”of whether a complaint is credible and a matter of “urgent concern.”3 In addition, In addition, there was informal discussion~~there were~~
~~differences~~ over whether the statute should provide comprehensive protections against disclosure over whether the statute should provide comprehensive protections against disclosure
of a whistleblower’s identity.of a whistleblower’s identity.
The Intelligence Authorization Act for Fiscal Year 2022 (Division X of P.L. 117-103) has addressed some of the concerns raised by the 2019 whistleblowing incident. IC whistleblower laws are codified in four separate statutes: the Inspector General Act of 1978, as IC whistleblower laws are codified in four separate statutes: the Inspector General Act of 1978, as
amended (5 U.S.C. App. §8H), amended (5 U.S.C. App. §8H), ~~that~~which applies to the inspectors general of all IC elements; the applies to the inspectors general of all IC elements; the
Central Intelligence Agency (CIA) Act of 1949, as amended (50 U.S.C. §3517), Central Intelligence Agency (CIA) Act of 1949, as amended (50 U.S.C. §3517), ~~that~~which applies to the applies to the
inspector general of the CIA; the National Security Act of 1947, as amended (50 U.S.C. §3033), inspector general of the CIA; the National Security Act of 1947, as amended (50 U.S.C. §3033),
~~that~~which applies to the ICIG applies to the ICIG,; and Title VI of the Intelligence Authorization Act for Fiscal Year 2014, and Title VI of the Intelligence Authorization Act for Fiscal Year 2014,
as amended (50 U.S.C. §3234) as amended (50 U.S.C. §3234) ~~that~~which provides protections for whistleblowers making a lawful provides protections for whistleblowers making a lawful
disclosure. disclosure.
Evolution of Whistleblower Protection Laws
and Policy
Intelligence Community Whistleblower Protection Act (ICWPA)
of 1998
The Intelligence Community Whistleblower Protection Act of 1998 (ICWPA),The Intelligence Community Whistleblower Protection Act of 1998 (ICWPA),34 as amended, is as amended, is
intended to assist whistleblowers in the IC who are specifically excluded from the Whistleblower intended to assist whistleblowers in the IC who are specifically excluded from the Whistleblower
Protection Act of 1989, which applies to federal employees outside of the IC who work in an Protection Act of 1989, which applies to federal employees outside of the IC who work in an
unclassified environment. The ICWPA makes no provision for members of the Armed Forces unclassified environment. The ICWPA makes no provision for members of the Armed Forces
assigned to an IC element.assigned to an IC element.45 The act amended the CIA Act of 1949 and the Inspector General Act The act amended the CIA Act of 1949 and the Inspector General Act
of 1978 to enable an IC government employee or contractor “who intends to report to Congress a of 1978 to enable an IC government employee or contractor “who intends to report to Congress a
complaint or information with respect to an urgent concern” to report to the Inspector General complaint or information with respect to an urgent concern” to report to the Inspector General
(IG) of the employee’s or contractor’s IC agency. The ICWPA, as amended, defines an “urgent (IG) of the employee’s or contractor’s IC agency. The ICWPA, as amended, defines an “urgent
concern” as concern” as
(A) a serious or flagrant problem, abuse, violation of law or executive order, or deficiency (A) a serious or flagrant problem, abuse, violation of law or executive order, or deficiency
relating to the funding, administration, or operations of an intelligence activity involving relating to the funding, administration, or operations of an intelligence activity involving
~~classified information, but does not include differences of opinions concerning public~~
~~policy matters;5~~

~~3 Title VII of the Intelligence Authorization Act for Fiscal Year 1999, P.L. 105-272, §§701-702, codified in 5 U.S.C.~~
~~App. §8H, 50 U.S.C. §3033, and 50 U.S.C. §3517.~~
~~4 10 U.S.C. §1034 provides whistleblower protections for members of the Armed Forces, including those who may be~~
~~assigned to an element of the IC.~~
~~5 5 U.S.C. §8H(h)(1)(A-C). 50 U.S.C. §3517(d)(5)(G)(i)(I), and 50 U.S.C. §3033(k)(5)(G)(i) provide definitions for~~
~~“urgent concern,” as the term relates to the Intelligence Community. The ICWPA of 1998 definition for “urgent~~
~~concern” (noted above) is codified in 50 U.S.C. §3517(d)(5)(G)(i)(I), Inspector General of the CIA, as well as in 5~~
~~U.S.C. App. §8H(1), Additional Provisions with Respect to Inspectors General of the Intelligence Community. The~~
~~Intelligence Authorization Act for 2010 (P.L. 111-256) that created the position of Inspector General of the Intelligence~~
~~Community, codified in 50 U.S.C. §3033(k)(5)(G)(i), Inspector General of the Intelligence Community,” differs in its~~
~~definition only in its reference to the DNI’s authority. An “urgent concern” is:~~
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3 A provision in the Intelligence Authorization Act for Fiscal Year 2022 resolved the uncertainty over the independence of the ICIG or IC element inspector general’s authority. The act amended 50 U.S.C. §§3033(k)(5)(G) and 3517(d)(5)(G); and 5 U.S.C. App. §8H to provide this individual “sole authority” to decide whether a complaint is a matter of urgent concern. 4 Title VII of the Intelligence Authorization Act for Fiscal Year 1999, P.L. 105-272, §§701-702, codified in 5 U.S.C. App. §8H, 50 U.S.C. §3033, and 50 U.S.C. §3517. 5 10 U.S.C. §1034 provides whistleblower protections for members of the Armed Forces, including those who may be assigned to an element of the IC. Congressional Research Service 2 Intelligence Community Whistleblower Provisions classified information, but does not include differences of opinions concerning public policy matters;6 (B) a false statement to the Congress, or a willful withholding from Congress of an issue (B) a false statement to the Congress, or a willful withholding from Congress of an issue
of material fact relating to the funding, administration, or operation of an intelligence of material fact relating to the funding, administration, or operation of an intelligence
activity;activity;67 or or
(C) an action … constituting reprisal or threat of reprisal … in response to an employee’s (C) an action … constituting reprisal or threat of reprisal … in response to an employee’s
reporting of an urgent concern.reporting of an urgent concern.7
8 In 1998, Congress noted that the Congress noted that the prior absence of a statutory IC whistleblower protection mechanism absence of a statutory IC whistleblower protection mechanism ~~previously~~
“may have impaired the flow of information needed by the intelligence committees to carry out “may have impaired the flow of information needed by the intelligence committees to carry out
oversight responsibilities.”oversight responsibilities.”89 Consequently, the ICWPA Consequently, the ICWPA ~~of 1998~~ defines the formal processes for defines the formal processes for
submitting complaints to ensure the protection of any classified information:submitting complaints to ensure the protection of any classified information:910
 A designee of the IG who receives a complaint of an urgent concern from an  A designee of the IG who receives a complaint of an urgent concern from an
employee has employee has 7seven days from receipt to report the complaint to the intelligence days from receipt to report the complaint to the intelligence
element’s IG.element’s IG.1011
 Not later than 14 calendar days from receipt, the responsible IG must report all  Not later than 14 calendar days from receipt, the responsible IG must report all
complaints that the IG determines are credible to the head of the intelligence complaints that the IG determines are credible to the head of the intelligence
element, along with all supporting material.element, along with all supporting material.11
~~ Within 7 days of receipt, the head of the intelligence element is required to report~~
~~the complaint to the congressional intelligence committees along with any~~
~~comments the intelligence element considers appropriate.12~~

12 6 5 U.S.C. §8H(h)(1)(A-C). 50 U.S.C. §3517(d)(5)(G)(i)(I), and 50 U.S.C. §3033(k)(5)(G)(i) provide definitions for “urgent concern,” as the term relates to the Intelligence Community. The ICWPA of 1998 definition for “urgent concern” (noted above) is codified in 50 U.S.C. §3517(d)(5)(G)(i)(I), Inspector General of the CIA, as well as in 5 U.S.C. App. §8H(1), Additional Provisions with Respect to Inspectors General of the Intelligence Community. The Intelligence Authorization Act for 2010 (P.L. 111-256) that created the position of Inspector General of the Intelligence Community, codified in 50 U.S.C. §3033(k)(5)(G)(i), Inspector General of the Intelligence Community,” differs in its definition only in its reference to the DNI’s authority. An “urgent concern” is: A serious or flagrant problem, abuse, violation of law or executive order, or deficiency relating to A serious or flagrant problem, abuse, violation of law or executive order, or deficiency relating to
the funding, administration, or operation of an intelligence activity the funding, administration, or operation of an intelligence activity within the responsibility and
authority of the Director of National Intelligence involving classified information, but does not involving classified information, but does not
include difference of opinions concerning public policy matters. [emphasis added] include difference of opinions concerning public policy matters. [emphasis added]
This distinction became important in the September 26, 2019, opinion of the Department of Justice (DOJ) Office of This distinction became important in the September 26, 2019, opinion of the Department of Justice (DOJ) Office of
Legal Counsel (OLC), concerning the whistleblowing complaint directed at President Trump. The OLC cited the 50 Legal Counsel (OLC), concerning the whistleblowing complaint directed at President Trump. The OLC cited the 50
U.S.C. §3033(k)(5)(G)(i) definition to support its opinion that President Trump’s phone call to the Ukrainian president U.S.C. §3033(k)(5)(G)(i) definition to support its opinion that President Trump’s phone call to the Ukrainian president
on July 25, 2019, was not a matter of urgent concern since it did not constitute “an intelligence activity within the on July 25, 2019, was not a matter of urgent concern since it did not constitute “an intelligence activity within the
responsibility and authority of the Director of National Intelligence.” Although the whistleblower and ICIG invoked responsibility and authority of the Director of National Intelligence.” Although the whistleblower and ICIG invoked
only 50 U.S.C. §3033(k)(5)(G)(i), the OLC opinion also maintained that the 5 U.S.C. App. §8H definition was only 50 U.S.C. §3033(k)(5)(G)(i), the OLC opinion also maintained that the 5 U.S.C. App. §8H definition was
applicable: “The definition of applicable: “The definition of “‘urgent concernurgent concern”’ in the IG Act is not limited to intelligence activities that are specifically in the IG Act is not limited to intelligence activities that are specifically
“‘within the responsibility and authority of thewithin the responsibility and authority of the”’ DNI because the complaint procedures in section 8H are written to DNI because the complaint procedures in section 8H are written to
apply to multiple inspectors general within the intelligence community.” See apply to multiple inspectors general within the intelligence community.” See Memorandum for Jason Klitenic, General
Counsel Office of the Director of National Intelligence,, from Steven A. Engel, Assistant Attorney General, Office of
Legal Counsel, September 24, 2019, p. 6, at https://www.justice.gov/olc/opinion/file/1205711/download. , September 24, 2019, p. 6, at https://www.justice.gov/olc/opinion/file/1205711/download.
67 5 U.S.C. §8H(h)(i)(1)(B), 50 U.S.C. §3033(k)(5)(G)(ii), 50 U.S.C. §3517(d)(5)(G)(i)(II). 5 U.S.C. §8H(h)(i)(1)(B), 50 U.S.C. §3033(k)(5)(G)(ii), 50 U.S.C. §3517(d)(5)(G)(i)(II).
78 5 U.S.C. §8H(h)(i)(1)(C), 50 U.S.C. §3033(k)(5)(G)(iii), 50 U.S.C. §3517(d)(5)(G)(i)(III). 5 U.S.C. §8H(h)(i)(1)(C), 50 U.S.C. §3033(k)(5)(G)(iii), 50 U.S.C. §3517(d)(5)(G)(i)(III).
89 P.L. 105-272, §701. P.L. 105-272, §701.
910 The process for submitting a whistleblower complaint in the IC is provided in 5 U.S.C. App. §8H and 50 U.S.C. The process for submitting a whistleblower complaint in the IC is provided in 5 U.S.C. App. §8H and 50 U.S.C.
§3033(k). §3033(k).
1011 The IGs of the IC agencies within the DOD—the Defense Intelligence Agency, National Geospatial-Intelligence The IGs of the IC agencies within the DOD—the Defense Intelligence Agency, National Geospatial-Intelligence
Agency, National Reconnaissance Office, and National Security Agency—are designees of the DOD IG. See 5 U.S.C. Agency, National Reconnaissance Office, and National Security Agency—are designees of the DOD IG. See 5 U.S.C.
App. §8H(a)(3). An individual submitting a complaint to an Inspector General of any of these agencies may notify a App. §8H(a)(3). An individual submitting a complaint to an Inspector General of any of these agencies may notify a
Member of either of the congressional intelligence committees of the fact that a complaint has been submitted and the Member of either of the congressional intelligence committees of the fact that a complaint has been submitted and the
date of submission to the IG. See 5 U.S.C. App. §8H(h). date of submission to the IG. See 5 U.S.C. App. §8H(h).
1112 50 U.S.C. §3033(k)(5)(B), 5 U.S.C. App. §8h(b)(1), 50 U.S.C. §3517(d)(5)(B)(i). 50 U.S.C. §3033(k)(5)(B), 5 U.S.C. App. §8h(b)(1), 50 U.S.C. §3517(d)(5)(B)(i).
~~12 Section 7(b) of the Inspector General Act of 1978 (5 U.S.C. App.) prohibits an inspector general from disclosing the~~
~~identity of an employee making a complaint, such as a whistleblower, to the extent practicable:~~
~~The Inspector General shall not, after receipt of a complaint or information from an employee,~~
~~disclose the identity of the employee without the consent of the employee, unless the Inspector~~
~~General determines such disclosure is unavoidable during the course of the investigation.~~
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Congressional Research Service 3 Intelligence Community Whistleblower Provisions  Within seven days of receipt, the head of the intelligence element is required to report the complaint to the congressional intelligence committees along with any comments the intelligence element considers appropriate.13  If the head of the intelligence element determines that the complaint would create  If the head of the intelligence element determines that the complaint would create
a conflict of interest for him/her, that individual will return the complaint to the a conflict of interest for him/her, that individual will return the complaint to the
intelligence element’s IG who will forward it to the Director of National intelligence element’s IG who will forward it to the Director of National
Intelligence, or, for the four DOD intelligence agencies, to the Secretary of Intelligence, or, for the four DOD intelligence agencies, to the Secretary of
Defense for forwarding to the congressional intelligence committees.Defense for forwarding to the congressional intelligence committees.1314
 In the event the IG does not report the complaint, does not find it credible, or  In the event the IG does not report the complaint, does not find it credible, or
reports it inaccurately, the complainant has the right to submit the complaint to reports it inaccurately, the complainant has the right to submit the complaint to
either or both of the congressional intelligence committees directly. either or both of the congressional intelligence committees directly.
 If the complainant chooses to report directly to Congress, he/she must first  If the complainant chooses to report directly to Congress, he/she must first
provide a statement to the head of the intelligence element via the element’s IG, provide a statement to the head of the intelligence element via the element’s IG,
providing notice of his/her intent to contact the congressional intelligence providing notice of his/her intent to contact the congressional intelligence
committees directly. Moreover, the complainant must follow the head of the committees directly. Moreover, the complainant must follow the head of the
intelligence element’s guidance on security and the protection of classified intelligence element’s guidance on security and the protection of classified
material. material.
~~ The intelligence element’s IG will notify the employee making the complaint of~~
~~any action involving the complaint within 3 days of taking the action. None of~~
~~the actions taken by the intelligence element in handling a complaint in~~
~~accordance with provisions in statute are subject to judicial review.~~
~~Although the ICWPA provides a process for IC whistleblowers—employees and contractors—to~~
~~securely report complaints to Congress via the IG of the whistleblower’s IC agency, it offers no~~
~~specific provisions for protecting whistleblowers from reprisal or punishment. Subsequent~~

13 Section 7(b) of the Inspector General Act of 1978 (5 U.S.C. App.) prohibits an inspector general from disclosing the identity of an employee making a complaint, such as a whistleblower, to the extent practicable: The Inspector General shall not, after receipt of a complaint or information from an employee, disclose the identity of the employee without the consent of the employee, unless the Inspector General determines such disclosure is unavoidable during the course of the investigation. The whistleblowing provision pertaining to the ICIG, 50 U.S.C. §3033(k)(5), makes no specific reference to The whistleblowing provision pertaining to the ICIG, 50 U.S.C. §3033(k)(5), makes no specific reference to
protecting a whistleblower’s identity from disclosure, but states that “nothing in this section shall be protecting a whistleblower’s identity from disclosure, but states that “nothing in this section shall be
construed to limit the protections afforded to an employee under … section 8H of the Inspector General Act construed to limit the protections afforded to an employee under … section 8H of the Inspector General Act
of 1978 (5 U.S.C. App.).” These measures, however, are not applicable to anyone other than the inspector of 1978 (5 U.S.C. App.).” These measures, however, are not applicable to anyone other than the inspector
general handling a complaint. They do not afford protections against disclosure by someone other than the general handling a complaint. They do not afford protections against disclosure by someone other than the
inspector general, such as a member of the media or a Member of Congress if they were to become aware of inspector general, such as a member of the media or a Member of Congress if they were to become aware of
the whistleblower’s identity. the whistleblower’s identity.
There are two exceptions to the prohibitions against the ICIG disclosing a whistleblower’s identity: (1) an IG There are two exceptions to the prohibitions against the ICIG disclosing a whistleblower’s identity: (1) an IG
determination that disclosure is “unavoidable” in the course of the investigation; or (2) when disclosure is to a determination that disclosure is “unavoidable” in the course of the investigation; or (2) when disclosure is to a
Department of Justice official “responsible for determining whether a prosecution should be undertaken” (50 U.S.C. Department of Justice official “responsible for determining whether a prosecution should be undertaken” (50 U.S.C.
§3033(g)(3)(A)). However, 50 U.S.C. §3033(g)(3)(A) also states that the provision “§3033(g)(3)(A)). However, 50 U.S.C. §3033(g)(3)(A) also states that the provision “shall qualify as a withholding
statute pursuant to subsection (b)(3) of section 552 of Title 5,”,” the Freedom of Information Act (FOIA). Subsection the Freedom of Information Act (FOIA). Subsection
(b)(3) states that FOIA’s mandatory disclosure requirements do not apply to covered materials “specifically exempted (b)(3) states that FOIA’s mandatory disclosure requirements do not apply to covered materials “specifically exempted
from disclosure by statute” in specified circumstances. The §3033 provision obligates an IC inspector general to protect from disclosure by statute” in specified circumstances. The §3033 provision obligates an IC inspector general to protect
a whistleblower’s identity from disclosure under FOIA. For more information on FOIA, see CRS Report R46238, a whistleblower’s identity from disclosure under FOIA. For more information on FOIA, see CRS Report R46238, The
Freedom of Information Act (FOIA): A Legal Overview, by Daniel J. Sheffner. , by Daniel J. Sheffner.
Information associated with whistleblowers’ communications is or may be contained in a system of records governed Information associated with whistleblowers’ communications is or may be contained in a system of records governed
by the Privacy Act. See ODNI/OIG-003, 76 by the Privacy Act. See ODNI/OIG-003, 76 Federal Register 42749, July 19, 2011, at https://www.govinfo.gov/ 42749, July 19, 2011, at https://www.govinfo.gov/
content/pkg/FR-2011-07-19/pdf/2011-18193.pdf. The Privacy Act states, “No agency shall disclose any record which content/pkg/FR-2011-07-19/pdf/2011-18193.pdf. The Privacy Act states, “No agency shall disclose any record which
is contained in a system of records by any means of communication to any person, or to another agency, except is contained in a system of records by any means of communication to any person, or to another agency, except
pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.” 5 pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.” 5
U.S.C. §552a(b). The act contains several exceptions to this mandate, including one governing disclosure to Congress. U.S.C. §552a(b). The act contains several exceptions to this mandate, including one governing disclosure to Congress.
5 U.S.C. §552a(b)(9). 5 U.S.C. §552a(b)(9).
One additional variable involves statutory protections against disclosing the identity of a case officer or other officer of One additional variable involves statutory protections against disclosing the identity of a case officer or other officer of
the IC working in a protected status (50 U.S.C. §3121, the IC working in a protected status (50 U.S.C. §3121, Protection of Identities of Certain United States Undercover
Intelligence Officers, Agents, Informants, and Sources). This provision also includes an exception for disclosure to ). This provision also includes an exception for disclosure to
Congress. Congress.
1314 The four DOD intelligence agencies are the National Security Agency, the National Reconnaissance Office, the The four DOD intelligence agencies are the National Security Agency, the National Reconnaissance Office, the
National Geospatial-Intelligence Agency, and the Defense Intelligence Agency. National Geospatial-Intelligence Agency, and the Defense Intelligence Agency.
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Provisions  The intelligence element’s IG will notify the employee making the complaint of any action involving the complaint within three days of taking the action. None of the actions taken by the intelligence element in handling a complaint in accordance with provisions in statute are subject to judicial review. Although the ICWPA provides a process for IC whistleblowers—employees and contractors—to report complaints to Congress securely via the IG of the whistleblower’s IC agency, it offers no specific provisions for protecting whistleblowers from reprisal or punishment. Subsequent legislation that specifically prohibits actions taken in reprisal for an IC employee making a lawful legislation that specifically prohibits actions taken in reprisal for an IC employee making a lawful
disclosure (a disclosure that adheres to the disclosure (a disclosure that adheres to the ~~1998~~ ICWPA process for making a complaint while ICWPA process for making a complaint while
protecting classified information) underscores the perception that the ICWPA process alone did protecting classified information) underscores the perception that the ICWPA process alone did
not adequately protect a whistleblower against adverse personnel action. not adequately protect a whistleblower against adverse personnel action.
The ICWPA provides an additional dimension of congressional oversight. The intent of the statute The ICWPA provides an additional dimension of congressional oversight. The intent of the statute
is to “encourage” an IC complainant to report to Congress via an established process that is to “encourage” an IC complainant to report to Congress via an established process that
provides for the protection of classified information.provides for the protection of classified information.1415 Informing Congress was not contingent Informing Congress was not contingent
only upon the appropriate authority deciding a complaint constituted a “matter of urgent only upon the appropriate authority deciding a complaint constituted a “matter of urgent
concern.” concern.” InThe statute provides a process for a complainant to inform the congressional intelligence committees even in the event the relevant IC element determines the complaint does not constitute a the event the relevant IC element determines the complaint does not constitute a
~~matter of urgent concern, the statute provides a process for a complainant to inform the~~
~~congressional intelligence committees in any event.15~~matter of urgent concern.16
The law’s findings, for instance, state that “Congress … has a ‘need to know’ of allegations of The law’s findings, for instance, state that “Congress … has a ‘need to know’ of allegations of
wrongdoing within the executive branch, including allegations of wrongdoing in the Intelligence wrongdoing within the executive branch, including allegations of wrongdoing in the Intelligence
Community.”Community.”~~16 They acknowledge that “the risk of reprisal perceived by~~17 The findings acknowledge that employees and employees and
~~contractors of the Intelligence Community for reporting serious or flagrant problems to Congress~~
~~may have impaired the flow of information needed by the intelligence committees to carry out~~
~~oversight responsibilities.17 In other words, Congress~~ contractors may be reluctant to report potentially serious problems out of fear of reprisal, impeding the flow of information, and complicating Congress’s oversight responsibilities.18 In other words, Congress appears to have wanted to establish a means for a member wanted to establish a means for a member
of the IC to report allegations of wrongdoing, whether or not of the IC to report allegations of wrongdoing, whether or not ~~they~~the allegations were determined to be matters were determined to be matters
of urgent concern, so long as the process allowed for the protection of classified information. of urgent concern, so long as the process allowed for the protection of classified information.
Intelligence Authorization Act (IAA) for Fiscal Year 2010
The IAA for FY2010 (P.L. 111-259), included the first general provisions for protection of IC The IAA for FY2010 (P.L. 111-259), included the first general provisions for protection of IC
whistleblowers as part of legislation that established the Office of the Inspector General of the whistleblowers as part of legislation that established the Office of the Inspector General of the
Intelligence Community (OIGIC), headed by the Intelligence Community Inspector General Intelligence Community (OIGIC), headed by the Intelligence Community Inspector General
(ICIG). Section 405(a)(1) of the IAA for FY2010 added a new Section 103H to the National (ICIG). Section 405(a)(1) of the IAA for FY2010 added a new Section 103H to the National
Security Act of 1947, which was codified as 50 U.S.C. §3033. Section 3033 permits lawful Security Act of 1947, which was codified as 50 U.S.C. §3033. Section 3033 permits lawful
disclosures to the ICIG and echoes the ICWPA’s provision protecting the whistleblower’s identity disclosures to the ICIG and echoes the ICWPA’s provision protecting the whistleblower’s identity
from disclosure, but otherwise it lacks the specificity of later whistleblower protection legislation from disclosure, but otherwise it lacks the specificity of later whistleblower protection legislation
and directives: and directives:
The Inspector General [of the Intelligence Community] is authorized to receive and The Inspector General [of the Intelligence Community] is authorized to receive and
investigate … complaints or information from any person concerning the existence of an investigate … complaints or information from any person concerning the existence of an
activity within the authorities and responsibilities of the Director of National Intelligence activity within the authorities and responsibilities of the Director of National Intelligence
15 P.L. 105-272§701(b)(6). 16 Section 701(b)(6) of H.Rept. 105-780, Conference Report for the Intelligence Authorization Act for Fiscal Year 1999. 17 Section 701(b)(3) of the Conference Report to accompany P.L. 105-272 105th Cong., 2nd sess., H.Rept. 105-780, October 5, 1998. 18 Section 701(b)(5) of the Conference Report to accompany P.L. 105-272 105th Cong., 2nd sess., H.Rept. 105-780, October 5, 1998. Congressional Research Service 5 Intelligence Community Whistleblower Provisions constituting a violation of laws, rules, or regulations, or mismanagement, gross waste of constituting a violation of laws, rules, or regulations, or mismanagement, gross waste of
funds, abuse of authority, or a substantial and specific danger to the public health and funds, abuse of authority, or a substantial and specific danger to the public health and
safety. Once such complaint or information has been received from an employee of the safety. Once such complaint or information has been received from an employee of the
intelligence community.intelligence community.1819
The Inspector General shall not disclose the identity of the employee without the consent The Inspector General shall not disclose the identity of the employee without the consent
of the employee, unless the Inspector General determines that such disclosure is of the employee, unless the Inspector General determines that such disclosure is
unavoidable during the course of the investigation or the disclosure is made to an official unavoidable during the course of the investigation or the disclosure is made to an official
of the Department of Justice responsible for determining whether a prosecution should be of the Department of Justice responsible for determining whether a prosecution should be

~~14 P.L. 105-272§701(b)(6).~~
~~15 Section 701(b)(6) of H.Rept. 105-780,~~ ~~Conference Report for the Intelligence Authorization Act for Fiscal Year~~
~~1999~~.
~~16 P.L. 105-272 §701(b)(3).~~
~~17 P.L. 105-272 §701(b)(5).~~
~~18 50 U.S.C. §3033(g)(3).~~
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undertaken, and this provision shall qualify as a withholding statute pursuant to subsection undertaken, and this provision shall qualify as a withholding statute pursuant to subsection
(b)(3) of section 552 of title 5 (commonly known as the “Freedom of Information Act”);(b)(3) of section 552 of title 5 (commonly known as the “Freedom of Information Act”);1920
No action constituting a reprisal, or threat of reprisal, for making such complaint or No action constituting a reprisal, or threat of reprisal, for making such complaint or
disclosing such information to the Inspector General may be taken by any employee in a disclosing such information to the Inspector General may be taken by any employee in a
position to take such actions, unless the complaint was made or the information was position to take such actions, unless the complaint was made or the information was
disclosed with the knowledge that it was false or with willful disregard for its truth or disclosed with the knowledge that it was false or with willful disregard for its truth or
falsity.falsity.2021
Section 3033 Section 3033 ~~does cover~~covers contractors in addition to federal employees of IC elements: contractors in addition to federal employees of IC elements:
An employee of an element of the intelligence community, an employee assigned or An employee of an element of the intelligence community, an employee assigned or
detailed to an element of the intelligence community, or an employee of a contractor to the detailed to an element of the intelligence community, or an employee of a contractor to the
intelligence community who intends to report to Congress a complaint or information with intelligence community who intends to report to Congress a complaint or information with
respect to an urgent concern may report such complaint or information to the Inspector respect to an urgent concern may report such complaint or information to the Inspector
General.General.2122
Section 425(d) of the IAA for FY2010 also amended the CIA Act of 1949 to clarify existing Section 425(d) of the IAA for FY2010 also amended the CIA Act of 1949 to clarify existing
protections against reprisals involving CIA employees who make lawful disclosures to the CIA protections against reprisals involving CIA employees who make lawful disclosures to the CIA
Inspector General.Inspector General.2223
Finally, the FY2010 IAA provides a means for addressing differences that may arise between the Finally, the FY2010 IAA provides a means for addressing differences that may arise between the
ICIG and the DNI. Specifically,ICIG and the DNI. Specifically,
 Section 3033 gives the DNI authority to prohibit the ICIG from “initiating, Section 3033 gives the DNI authority to prohibit the ICIG from “initiating,
carrying out, or completing any investigation, inspection, audit, or review if the carrying out, or completing any investigation, inspection, audit, or review if the
Director determines that such prohibition is necessary to protect vital national Director determines that such prohibition is necessary to protect vital national
security interests of the United States.” In such situations, the DNI must submit security interests of the United States.” In such situations, the DNI must submit
to the congressional intelligence committees within seven days of his to the congressional intelligence committees within seven days of his
determination a statement explaining the reasons. The DNI must provide a copy determination a statement explaining the reasons. The DNI must provide a copy
to the ICIGto the ICIG, who then may submit comments on the statement to the who then may submit comments on the statement to the
~~congressional intelligence committees.23~~
~~ The ICIG shall “immediately notify, and submit a report to the congressional~~
~~intelligence committees:”24~~

19 19 50 U.S.C. §3033(g)(3). 20 50 U.S.C. §3033(g)(3)(A). 50 U.S.C. §3033(g)(3)(A).
2021 50 U.S.C. §3033(g)(3)(B). 50 U.S.C. §3033(g)(3)(B).
2122 50 U.S.C. §3033(k)(5)(A). 50 U.S.C. §3033(g)(2)(B) also provides: “The Inspector General shall have access to any 50 U.S.C. §3033(k)(5)(A). 50 U.S.C. §3033(g)(2)(B) also provides: “The Inspector General shall have access to any
employee, or any employee of a contractor, of any element of the intelligence community needed for the performance employee, or any employee of a contractor, of any element of the intelligence community needed for the performance
of the duties of the Inspector General.” of the duties of the Inspector General.”
2223 P.L. 111-259, §425(d). The provisions for prohibiting reprisal actions for lawful whistleblower disclosures to the P.L. 111-259, §425(d). The provisions for prohibiting reprisal actions for lawful whistleblower disclosures to the
CIA Inspector General can be found in 50 U.S.C. §3517(e)(3)(A)-(B). CIA Inspector General can be found in 50 U.S.C. §3517(e)(3)(A)-(B).
~~23 Another means by which Congress might potentially be prevented from being informed of a complaint involves~~
~~claims of executive privilege. This report does not address this issue, although Presidents have claimed constitutional~~
~~authority to review and limit, as necessary, the disclosure of classified or other sensitive information to Congress. See~~
~~Robert S. Litt, “Unpacking the Intelligence Community Whistleblower Complaint,” Lawfare, September 17, 2019, at~~
~~https://www.lawfareblog.com/unpacking-intelligence-community-whistleblower-complaint. See also Margaret Taylor,~~
~~“The Mysterious Whistleblower Complaint: What is Adam Schiff Talking About,” Lawfare, September 17, 2019, at~~
~~https://www.lawfareblog.com/mysterious-whistleblower-complaint-what-adam-schiff-talking-about.~~
~~24 50 U.S.C. §3033(k)(3)(A). For the 2019 IC whistleblower complaint against President Trump, the ICIG provided~~
~~notice to Congress as required by this provision in statute after the DNI informed the ICIG that he was unable to~~
~~forward the complaint to Congress upon being informed by the White House Counsel’s Office that much of the~~
~~complaint was protected from disclosure by executive privilege. See~~ ~~Opening Statement by Acting Director of National~~
~~Intelligence Joseph Maguire before the House Permanent Select Committee on Intelligence,~~ ~~September 26, 2019, at~~
~~https://www.dni.gov/index.php/newsroom/congressional-testimonies/item/2048-acting-dni-opening-statement. See also~~
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Congressional Research Service 6 Intelligence Community Whistleblower Provisions congressional intelligence committees.24 The ICIG shall “immediately notify, and submit a report to the congressional intelligence committees:”25
 in the event the DNI and ICIG cannot resolve a difference between them;  in the event the DNI and ICIG cannot resolve a difference between them;2526
 the disagreement involves a matter involving an inspection, audit, or review  the disagreement involves a matter involving an inspection, audit, or review
of of any current or former senior intelligence community official;any current or former senior intelligence community official;2627 or or
 the matter requires the ICIG to submit a report to the Department of Justice  the matter requires the ICIG to submit a report to the Department of Justice
on on possible criminal conduct by a senior intelligence official;possible criminal conduct by a senior intelligence official;2728 or or
 the ICIG receives notice from the Department of Justice declining or  the ICIG receives notice from the Department of Justice declining or
approving approving prosecution of possible criminal conduct of any such official;prosecution of possible criminal conduct of any such official;2829 or or
 the ICIG, “after exhausting all possible alternatives,” is unable to obtain  the ICIG, “after exhausting all possible alternatives,” is unable to obtain
significant documentary information in the course of an investigation, significant documentary information in the course of an investigation,
inspection, audit or review.inspection, audit or review.2930
 An IC employee or contractor who has submitted a complaint to the IG may An IC employee or contractor who has submitted a complaint to the IG may
notify any Member of either congressional intelligence committee, or a staff notify any Member of either congressional intelligence committee, or a staff
member of either committeemember of either committee, of the fact that the employee has made a complaint of the fact that the employee has made a complaint
to the IG and the date of submission.to the IG and the date of submission.30
 31 In addition, the DNI must submit to the congressional intelligence committees In addition, the DNI must submit to the congressional intelligence committees
~~any report on an investigation, audit, inspection, or review if requested by either~~
~~the Chair or Vice Chair of the Senate intelligence committee, or the Chair or~~
~~Ranking Member of the House intelligence committee.31~~
~~ Although the IG has the authority to determine the credibility of a whistleblower~~
~~complaint, the law does not specify who has the authority to determine whether a~~
~~complaint, aside from its credibility, constitutes a matter of “urgent concern.”~~
~~Presidential Policy Directive (PPD)-19~~
~~PPD-19, Protecting Whistleblowers with Access to Classified Information, signed by President~~
~~Obama on October 10, 2012, provided the first executive branch protections for IC~~
~~whistleblowers. PPD-19 specifically protects some employees in the IC—but specifically~~

any report on an investigation, 24 Another means by which Congress might potentially be prevented from being informed of a complaint involves claims of executive privilege. This report does not address this issue, although Presidents have claimed constitutional authority to review and limit, as necessary, the disclosure of classified or other sensitive information to Congress. See Robert S. Litt, “Unpacking the Intelligence Community Whistleblower Complaint,” Lawfare, September 17, 2019, at https://www.lawfareblog.com/unpacking-intelligence-community-whistleblower-complaint. See also Margaret Taylor, “The Mysterious Whistleblower Complaint: What is Adam Schiff Talking About,” Lawfare, September 17, 2019, at https://www.lawfareblog.com/mysterious-whistleblower-complaint-what-adam-schiff-talking-about. 25 50 U.S.C. §3033(k)(3)(A). For the 2019 IC whistleblower complaint against President Trump, the ICIG provided notice to Congress as required by this provision in statute after the DNI informed the ICIG that he was unable to forward the complaint to Congress upon being informed by the White House Counsel’s Office that much of the complaint was protected from disclosure by executive privilege. See Opening Statement by Acting Director of National Intelligence Joseph Maguire before the House Permanent Select Committee on Intelligence, September 26, 2019, at https://www.dni.gov/index.php/newsroom/congressional-testimonies/item/2048-acting-dni-opening-statement. See also Acting Director Maguire’s complete testimony at https://www.c-span.org/video/?464509-1/acting-director-national-Acting Director Maguire’s complete testimony at https://www.c-span.org/video/?464509-1/acting-director-national-
intelligence-maguire-testifies-whistleblower-complaint. The Office of the Director of National Intelligence (ODNI) intelligence-maguire-testifies-whistleblower-complaint. The Office of the Director of National Intelligence (ODNI)
also consulted the Department of Justice (DOJ) Office of Legal Counsel (OLC) on whether the complaint met the also consulted the Department of Justice (DOJ) Office of Legal Counsel (OLC) on whether the complaint met the
statutory definition of “urgent concern.” In its reply, the OLC gave its opinion that the President was not a member of statutory definition of “urgent concern.” In its reply, the OLC gave its opinion that the President was not a member of
the IC, that communications between the President and a foreign leader did not constitute an intelligence activity, and the IC, that communications between the President and a foreign leader did not constitute an intelligence activity, and
that, therefore, the complaint did not fall within the statutory definition of “urgent concern.” The opinion concluded that, therefore, the complaint did not fall within the statutory definition of “urgent concern.” The opinion concluded
that the acting DNI, therefore, was not legally required to forward the complaint to Congress. See Steven A. Engel, that the acting DNI, therefore, was not legally required to forward the complaint to Congress. See Steven A. Engel,
Assistant Attorney General Office of Legal Counsel, Assistant Attorney General Office of Legal Counsel, Memorandum of Opinion for the General Counsel Office of the
Director of National Intelligence, September 3, 2019, at https://www.justice.gov/olc/opinion/file/1205711/download. , September 3, 2019, at https://www.justice.gov/olc/opinion/file/1205711/download.
2526 50 U.S.C. §3033(k)(3)(A)(i). 50 U.S.C. §3033(k)(3)(A)(i).
2627 50 U.S.C. §3033(k)(3)(A)(ii) specifies intelligence officials subject to an audit, investigation, or inspection over 50 U.S.C. §3033(k)(3)(A)(ii) specifies intelligence officials subject to an audit, investigation, or inspection over
which the DNI and ICIG might disagree, that would require reporting to Congress to include current or former which the DNI and ICIG might disagree, that would require reporting to Congress to include current or former
intelligence officials appointed by the President or the DNI, or a head of any IC element, including those in an acting intelligence officials appointed by the President or the DNI, or a head of any IC element, including those in an acting
capacity. capacity.
2728 50 U.S.C. §3033(k)(3)(A)(iii). 50 U.S.C. §3033(k)(3)(A)(iii).
2829 50 U.S.C. §3033(k)(3)(A)(iv). 50 U.S.C. §3033(k)(3)(A)(iv).
2930 50 U.S.C. §3033(k)(3)(A)(v). 50 U.S.C. §3033(k)(3)(A)(v).
3031 50 U.S.C. §3033(k)(5)(I). This is limited to notification of the fact alone of a complaint being made. It differs from a 50 U.S.C. §3033(k)(5)(I). This is limited to notification of the fact alone of a complaint being made. It differs from a
whistleblower submitting a complaint directly to Congress which is governed by 50 U.S.C. §3033(k)(5)(D)(ii) and 5 whistleblower submitting a complaint directly to Congress which is governed by 50 U.S.C. §3033(k)(5)(D)(ii) and 5
U.S.C. App. §8H(d)(2). U.S.C. App. §8H(d)(2).
~~31 50 U.S.C. §3033(k)(4).~~
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~~excludes members of the Armed Forces—~~Provisions audit, inspection, or review if requested by either the Chair or Vice Chair of the Senate intelligence committee, or the Chair or Ranking Member of the House intelligence committee.32 Presidential Policy Directive (PPD)-19 PPD-19, Protecting Whistleblowers with Access to Classified Information, signed by President Obama on October 10, 2012, provided the first executive branch protections for IC whistleblowers. PPD-19 specifically protects some employees in the IC with access to classified informationwith access to classified information, from personnel from personnel
actions taken in reprisal for making a lawful disclosure.actions taken in reprisal for making a lawful disclosure.3233
PPD-19 defines a protected disclosure, in part, as follows: PPD-19 defines a protected disclosure, in part, as follows:
a disclosure of information by the employee to a supervisor in the employee’s direct chain a disclosure of information by the employee to a supervisor in the employee’s direct chain
of command up to and including the head of the employing agency, to the Inspector General of command up to and including the head of the employing agency, to the Inspector General
of the employing agency or Intelligence Community Element, to the Director of National of the employing agency or Intelligence Community Element, to the Director of National
Intelligence, to the Inspector General of the Intelligence Community, or to an employee Intelligence, to the Inspector General of the Intelligence Community, or to an employee
designated by any of the above officials for the purpose of receiving such disclosures, that designated by any of the above officials for the purpose of receiving such disclosures, that
the employee reasonably believes evidences (i) a violation of any law, rule, or regulation; the employee reasonably believes evidences (i) a violation of any law, rule, or regulation;
or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety.and specific danger to public health or safety.3334
PPD-19 also PPD-19 also:
 Prohibits reprisals that (1) could affect a whistleblower’s eligibility for access to  Prohibits reprisals that (1) could affect a whistleblower’s eligibility for access to
classified information; or (2) involve a personnel action against the IC employee classified information; or (2) involve a personnel action against the IC employee
making a protected disclosure.making a protected disclosure.34
~~ Requires IC elements to certify to the DNI a process for IC employees to seek a~~
~~review of personnel actions the employee believes constitute reprisal for making~~
~~a lawful disclosure. The review process also must provide for the security of~~
~~classified information involved in a disclosure.~~
~~ Requires, part of the review process, the IC element Inspector General to~~
~~determine whether a personnel action was taken in reprisal for a lawful~~
~~disclosure. The IG then may make recommendations for corrective action in the~~
~~event of a determination that a violation took place.~~
~~ Requires that the agency head “shall carefully consider the findings of and~~
~~actions recommended by the agency Inspector General.” The agency head does~~
~~not have to accept an IG’s recommendation for corrective action.~~
~~ Requires IC agencies to certify to the DNI that the agency has a review process~~
~~that permits employees to appeal actions involving eligibility for access to~~
~~classified information that are alleged to be in violation of prohibitions against~~
~~retaliation for making lawful disclosures.~~

~~32 In addition to excluding members of the Armed Forces,~~ 35 32 50 U.S.C. §3033(k)(4). 33 Para. F(4) of PPD-19 defines a personnel action as, an appointment, promotion, detail, transfer, reassignment, demotion, suspension, termination, reinstatement, restoration, reemployment, or performance evaluation; a decision concerning pay, benefits, or awards; a decision concerning education or training if the education or training may reasonably be expected to lead to an appointment, reassignment, promotion, or performance evaluation; a decision to order psychiatric testing or examination; and any other significant change in duties, responsibilities, or working conditions. (PPD-19, Protecting Whistleblowers with Access to Classified Information, The White House, October 10, 2012, at https://www.opm.gov/our-inspector-general/whistleblower-protection-information/ppd-19.pdf.) PPD-19 otherwise does not define PPD-19 otherwise does not define employee and does not and does not
include any reference to IC contractors. To some this was an important omission. In 2013, Edward Snowden, a Booz include any reference to IC contractors. To some this was an important omission. In 2013, Edward Snowden, a Booz
Allen Hamilton contractor working at the National Security Agency, went outside official channels and leaked Allen Hamilton contractor working at the National Security Agency, went outside official channels and leaked
classified documents to the media claiming that official channels provided no protections for someone with his status as classified documents to the media claiming that official channels provided no protections for someone with his status as
a contactor to submit a whistleblowing complaint. The ICWPAa contactor to submit a whistleblowing complaint. The ICWPA ~~of 1998,~~ , which provides a which provides a process for submitting a for submitting a
whistleblowing complaint (but does not specify protections against prohibited reprisals), applies to contractors as well whistleblowing complaint (but does not specify protections against prohibited reprisals), applies to contractors as well
as federal IC employees. However, it was not until January 19, 2018, when Congress passed P.L. 115-118 (that as federal IC employees. However, it was not until January 19, 2018, when Congress passed P.L. 115-118 (that
included Section 110 covered later in this report), that contractors were also afforded specific included Section 110 covered later in this report), that contractors were also afforded specific protections from reprisals from reprisals
subsequent to submitting a complaint. For background on whistleblowing provisions related to Edward Snowden, see subsequent to submitting a complaint. For background on whistleblowing provisions related to Edward Snowden, see
Joe Davidson, “No Whistleblower Protections for Intelligence Contractors,” Joe Davidson, “No Whistleblower Protections for Intelligence Contractors,” Washington Post, June 19, 2013, at , June 19, 2013, at
https://www.washingtonpost.com/politics/federal_government/no-whistleblower-protections-for-intelligence-https://www.washingtonpost.com/politics/federal_government/no-whistleblower-protections-for-intelligence-
contractors/2013/06/19/dc3e1798-d8fa-11e2-a9f2-42ee3912ae0e_story.html. contractors/2013/06/19/dc3e1798-d8fa-11e2-a9f2-42ee3912ae0e_story.html.
3334 Presidential Policy Directive (PPD)-19, Presidential Policy Directive (PPD)-19, Protecting Whistleblowers with Access to Classified Information, The White , The White
House, October 10, 2012, at https://www.opm.gov/our-inspector-general/whistleblower-protection-information/ppd-House, October 10, 2012, at https://www.opm.gov/our-inspector-general/whistleblower-protection-information/ppd-
19.pdf. 19.pdf.
3435 Adverse personnel actions might include demotion, transfer, termination, suspension, lower performance evaluation Adverse personnel actions might include demotion, transfer, termination, suspension, lower performance evaluation
or punitive changes in duties and responsibilities. or punitive changes in duties and responsibilities.
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Provisions  Requires IC elements to certify to the DNI a process for IC employees to seek a review of personnel actions the employee believes constitute reprisal for making a lawful disclosure. The review process also must provide for the security of classified information involved in a disclosure.  Requires, part of the review process, the IC element Inspector General to determine whether a personnel action was taken in reprisal for a lawful disclosure. The IG then may make recommendations for corrective action in the event of a determination that a violation took place.  Requires that the agency head “shall carefully consider the findings of and actions recommended by the agency Inspector General.” The agency head does not have to accept an IG’s recommendation for corrective action.  Requires IC agencies to certify to the DNI that the agency has a review process that permits employees to appeal actions involving eligibility for access to classified information that are alleged to be in violation of prohibitions against retaliation for making lawful disclosures.  Allows for a whistleblower to request an external review by an IG panel chaired Allows for a whistleblower to request an external review by an IG panel chaired
by the ICIG if the employee has exhausted the agency review process. In the by the ICIG if the employee has exhausted the agency review process. In the
event the panel decides in the employee’s favor, the agency must consider but event the panel decides in the employee’s favor, the agency must consider but
does not have to accept the panel’s recommendation for corrective action. does not have to accept the panel’s recommendation for corrective action.
 Requires the ICIG to report annually to the congressional intelligence committees  Requires the ICIG to report annually to the congressional intelligence committees
the IG determinations and recommendations and IC element head responses to the IG determinations and recommendations and IC element head responses to
the determinations and recommendations. the determinations and recommendations.
 Requires the executive branch to provide training to employees with access to  Requires the executive branch to provide training to employees with access to
classified information (not including contractors or members of the Armed classified information (not including contractors or members of the Armed
Forces) regarding protections for whistleblowers.Forces) regarding protections for whistleblowers.3536
Title VI of the Intelligence Authorization Act (IAA) for
Fiscal Year 2014
Title VI of the FY2014 IAA (P.L. 113-126), Title VI of the FY2014 IAA (P.L. 113-126), ~~passed by Congress~~enacted on July 7, 2014, codified on July 7, 2014, codified
provisions of PPD-19 (50 U.S.C. §3234) and provided the first expansive statutory protections for provisions of PPD-19 (50 U.S.C. §3234) and provided the first expansive statutory protections for
most IC whistleblowers against personnel or security clearance actions made in reprisal for most IC whistleblowers against personnel or security clearance actions made in reprisal for
protected disclosures.protected disclosures.3637
 Section 601 of Title VI protects IC whistleblowers from any personnel action Section 601 of Title VI protects IC whistleblowers from any personnel action
committed or omitted in retaliation for a lawful disclosure.committed or omitted in retaliation for a lawful disclosure.~~37 This~~ 38 This protection includes a includes a
lawful disclosure to the DNI (or any employees designated by the DNI for such lawful disclosure to the DNI (or any employees designated by the DNI for such
purpose), the ICIG, the head of the employing agency (or an employee purpose), the ICIG, the head of the employing agency (or an employee
~~designated by the head of that agency for such purpose), the appropriate~~
~~inspector general of the employing agency, a congressional intelligence~~
~~committee, or a Member of a congressional intelligence committee.38~~
~~ However, Section 601 of Title VI make no specific mention of related~~
~~protections for contractors.~~
~~ A lawful disclosure is defined as a disclosure that an IC employee~~
~~whistleblower reasonably believes evidences a violation of “Federal law,~~
~~rule or regulation ... or mismanagement, a gross waste of funds, an abuse~~
~~of authority, or substantial and specific danger to public health and~~
~~safety.”~~designated by the head of that agency for such purpose), or

3536 The Directive pertains to all elements of the IC except the Federal Bureau of Investigation (FBI). See PPD-19 Para F The Directive pertains to all elements of the IC except the Federal Bureau of Investigation (FBI). See PPD-19 Para F
(3). (3).
3637 The provisions under this legislation cover all IC elements The provisions under this legislation cover all IC elements except the Intelligence Branch of the Federal Bureau of the Intelligence Branch of the Federal Bureau of
Investigation (FBI/IB). See 50 U.S.CInvestigation (FBI/IB). See 50 U.S.C. §3234(a)(2)(B). §3234(a)(2)(B).
3738 The scope of personnel actions covered by Title VI includes an appointment, promotion, disciplinary or corrective The scope of personnel actions covered by Title VI includes an appointment, promotion, disciplinary or corrective
action, detail, transfer, reassignment, demotion, suspension, termination, reinstatement or restoration, a performance action, detail, transfer, reassignment, demotion, suspension, termination, reinstatement or restoration, a performance
evaluation, a decision concerning pay, benefits or awards, a decision concerning education or training if such education evaluation, a decision concerning pay, benefits or awards, a decision concerning education or training if such education
or training may reasonably be expected to lead to an appointment, promotion, or performance evaluation, or any other or training may reasonably be expected to lead to an appointment, promotion, or performance evaluation, or any other
significant change in duties, responsibilities or working conditions. See 50 U.S.C. §3234(a)(3). significant change in duties, responsibilities or working conditions. See 50 U.S.C. §3234(a)(3).
~~38 Section 601 of P.L. 113-126 (50 U.S.C. §3234(b))~~Congressional Research Service 9 Intelligence Community Whistleblower Provisions the appropriate inspector general of the employing agency. Moreover, Section 601, unlike PPD-19, unlike PPD-19, explicitly allows protected disclosures to be made explicitly allows protected disclosures to be made
to “a congressional intelligence committee, or a member of a congressional intelligence committee….”to “a congressional intelligence committee, or a member of a congressional intelligence committee….” ~~The April 29,~~
~~2016, update to ICD-120 conformed with this section by also allowing protected disclosures to be made to the~~
~~congressional intelligence committees or their Members.~~
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~~link to page 14 link to page 14~~ ~~Intelligence Community Whistleblower Protections~~

 39 Section 601 and 602 of Title VI make no specific mention of related protections for contractors. A lawful disclosure is defined as a disclosure that an IC employee whistleblower reasonably believes evidences a violation of “Federal law, rule or regulation ... or mismanagement, a gross waste of funds, an abuse of authority, or substantial and specific danger to public health and safety.” Section 602 of Title VI provides protections against retaliatory revocation of the Section 602 of Title VI provides protections against retaliatory revocation of the
security clearance of a covered government employee whistleblower for making security clearance of a covered government employee whistleblower for making
a lawful disclosurea lawful disclosure.~~39 It also~~
~~ Requires~~40 It also requires the development of the development of appeal policies and procedures for any policies and procedures for any
decision affecting a whistleblower’s security clearance that the decision affecting a whistleblower’s security clearance that the
whistleblower alleges is in reprisal for having made a protected whistleblower alleges is in reprisal for having made a protected
disclosure. This provision also enables the whistleblower to retain his/her disclosure. This provision also enables the whistleblower to retain his/her
current employment status in the government, pending the outcome of current employment status in the government, pending the outcome of
the appeal.the appeal.40
~~ Does~~41 The law does not permit judicial review, nor does it provide a private right of not permit judicial review, nor does it provide a private right of
action.action.41
~~ Makes no specific mention of related protections for contractors.~~
42 Intelligence Community Directive (ICD)-120
First signed in 2014, and updated on April 29, 2016, ICD-120, First signed in 2014, and updated on April 29, 2016, ICD-120, Intelligence Community
Whistleblower Protection, provides IC implementing guidance for PPD-19. ICD-120 , provides IC implementing guidance for PPD-19. ICD-120 ~~excludes~~
~~personnel actions related to members of the Armed Forces, and makes no reference to~~
~~contractors.42~~provides protections against reprisals involving (1) personnel actions (as defined by PPD), and (2) access to classified information. ICD-120 protections involving personnel actions do not apply to Members of the Armed Forces or contractors. The protections governing access to classified information, however, do apply to both contractors and members of the Armed Forces. ICD-120 provisions include the following: ICD-120 provisions include the following:
 Protections  Protections ~~against~~from reprisal involving a personnel action against the IC employee reprisal involving a personnel action against the IC employee
making a protected disclosure.43 making a protected disclosure.43
 Protections from reprisal for a protected disclosure that could affect an IC  Protections from reprisal for a protected disclosure that could affect an IC
whistleblower’s eligibility for access to classified information.44 whistleblower’s eligibility for access to classified information.44 ~~This provision,~~
~~which is specific to eligibility for access to classified information, applies to~~
~~contractors and members of the Armed Forces.~~
 A requirement for each IC element to have a review process to permit appeals for  A requirement for each IC element to have a review process to permit appeals for
any decision involving a security clearance allegedly in retribution for making a any decision involving a security clearance allegedly in retribution for making a
~~lawful~~protected disclosure.45 disclosure.45

3939 50 U.S.C. §3234(b). The April 29, 2016, update to ICD-120 conformed with this section by also allowing protected disclosures to be made to the congressional intelligence committees or their Members. 40 Section 602 protections against the revocation of security clearances, codified as 50 U.S.C. §3341(j), applies to all Section 602 protections against the revocation of security clearances, codified as 50 U.S.C. §3341(j), applies to all
elements of the IC—including the FBI/IB—in addition to other Executive Branch departments and agencies. It makes elements of the IC—including the FBI/IB—in addition to other Executive Branch departments and agencies. It makes
no mention of members of the Armed Forces who might be assigned to an IC element. no mention of members of the Armed Forces who might be assigned to an IC element.
4041 50 U.S.C. §3341(b)(7). 50 U.S.C. §3341(b)(7).
4142 A private right of action would permit an individual to bring a lawsuit. A private right of action would permit an individual to bring a lawsuit.
~~42 See ICD-120(E)(1)(b)(4). Protections for members of the Armed Forces against personnel actions made in reprisal~~
~~for a lawful disclosure are covered by 10 U.S.C. §1034. See below,~~ ~~“Whistleblower Protections for Members of the~~
~~Armed Forces Assigned to the IC.”~~
43 The ICD-120 provision protecting against personnel actions made in retaliation for a lawful disclosure covers all 43 The ICD-120 provision protecting against personnel actions made in retaliation for a lawful disclosure covers all
elements of the IC with the specific exception of the FBI. See ICD-120(E)(1)(d), at https://www.dni.gov/files/elements of the IC with the specific exception of the FBI. See ICD-120(E)(1)(d), at https://www.dni.gov/files/
documents/ICD/ICD%20120%20-%20IC%20Whistleblower%20Protection%20(29%20Apr%202016).pdf. documents/ICD/ICD%20120%20-%20IC%20Whistleblower%20Protection%20(29%20Apr%202016).pdf.
44 “Employee” is defined to include a person “employed by, detailed or assigned to” an IC element including members 44 “Employee” is defined to include a person “employed by, detailed or assigned to” an IC element including members
of the Armed Forces, an expert or consultant to an agency, a contractor, licensee, certificate holder or grantee of an of the Armed Forces, an expert or consultant to an agency, a contractor, licensee, certificate holder or grantee of an
agency, or personal services contractor, or “any other category of person who acts for or on behalf of an agency as agency, or personal services contractor, or “any other category of person who acts for or on behalf of an agency as
determined by the appropriate agency head.” See ICD-120(F)(1)(b)(1). determined by the appropriate agency head.” See ICD-120(F)(1)(b)(1).
45 ICD-120(F)(1)(a). In addition, 50 U.S.C. §3341(b)(7)(A) provides for a whistleblower to maintain his/her 45 ICD-120(F)(1)(a). In addition, 50 U.S.C. §3341(b)(7)(A) provides for a whistleblower to maintain his/her
~~employment status while a decision on an appeal is pending. Specifically, this provision requires the Executive Branch~~
~~to develop policy and procedures “that permit, to the extent practicable, individuals alleging reprisal for having made a~~
~~protected disclosure (provided the individual does not disclose classified information or other information contrary to~~
law) to appeal any action affecting an employee’s access to classified information and to retain their government
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 Provision for an employee alleging a reprisal who has exhausted the internal  Provision for an employee alleging a reprisal who has exhausted the internal
agency review process to request an External Review Panel chaired by the agency review process to request an External Review Panel chaired by the
ICIG.46 ICIG.46
 A requirement for IC-wide communications and training on whistleblower  A requirement for IC-wide communications and training on whistleblower
protections.47 protections.47
Whistleblower Protections for Members of the Armed Forces
Assigned to the IC
Section 1034 of Title 10, U.S. Code,Section 1034 of Title 10, U.S. Code, provides protections against personnel actions taken in provides protections against personnel actions taken in
retaliation for protected communications by members of the Armed Forces.48 The Office of the retaliation for protected communications by members of the Armed Forces.48 The Office of the
DNI cites this statute as applicable to members of the Armed Forces assigned to the IC DNI cites this statute as applicable to members of the Armed Forces assigned to the IC
elements.49 Section 1034—unlike the ICWPA, which makes no mention of its applicability to the elements.49 Section 1034—unlike the ICWPA, which makes no mention of its applicability to the
Armed Forces—does not provide a process for making a protected communication that also Armed Forces—does not provide a process for making a protected communication that also
protects classified information. Section 1034protects classified information. Section 1034:
 allows members of the Armed Forces to communicate with a Member or  allows members of the Armed Forces to communicate with a Member or
Members of Congress; an Inspector General;50 a member of a DOD audit, Members of Congress; an Inspector General;50 a member of a DOD audit,
inspection, investigation, or law enforcement organization; any person or inspection, investigation, or law enforcement organization; any person or
organization in the chain of command; a court-martial proceeding; or any other organization in the chain of command; a court-martial proceeding; or any other
organization designated pursuant to regulations or other established organization designated pursuant to regulations or other established
administrative procedures for such communications; administrative procedures for such communications;
 allows members of the Armed Forces to testify or otherwise participate or assist  allows members of the Armed Forces to testify or otherwise participate or assist
in an investigation or proceeding involving Congress or an Inspector General; in an investigation or proceeding involving Congress or an Inspector General;
 specifies prohibited personnel actions in reprisal for a member of the Armed  specifies prohibited personnel actions in reprisal for a member of the Armed
Forces making a protected communication;51 Forces making a protected communication;51

employment status while a decision on an appeal is pending. Specifically, this provision requires the Executive Branch to develop policy and procedures “that permit, to the extent practicable, individuals alleging reprisal for having made a protected disclosure (provided the individual does not disclose classified information or other information contrary to law) to appeal any action affecting an employee’s access to classified information and to retain their government employment status while such challenge is pending.” [emphasis added] .” [emphasis added]
46 ICD-120(G)(1)(a). 46 ICD-120(G)(1)(a).
47 ICD-120(D)(1)(a). 47 ICD-120(D)(1)(a).
48 This statute uses the term 48 This statute uses the term communication instead of instead of disclosure. .
49 See Office of the Director of National Intelligence, “What Are My Protections?” at https://www.dni.gov/ICIG-49 See Office of the Director of National Intelligence, “What Are My Protections?” at https://www.dni.gov/ICIG-
Whistleblower/protected.html. See also DOD Directive 7050.06, Whistleblower/protected.html. See also DOD Directive 7050.06, Military Whistleblower Protection, April 17, 2015 at , April 17, 2015 at
https://www.dodig.mil/Portals/48/Documents/Policy/DoDD_7050_06.pdf. https://www.dodig.mil/Portals/48/Documents/Policy/DoDD_7050_06.pdf.
50 10 U.S.C. §1034(a)(1) provides that no person may restrict a member of the Armed Forces from making a lawful 50 10 U.S.C. §1034(a)(1) provides that no person may restrict a member of the Armed Forces from making a lawful
disclosure to a Member of Congress or to an Inspector General. disclosure to a Member of Congress or to an Inspector General.
51 10 U.S.C. §1034(b)(2)(A) states the following: 51 10 U.S.C. §1034(b)(2)(A) states the following:
The actions considered for purposes of this section to be a personnel action prohibited by this subsection The actions considered for purposes of this section to be a personnel action prohibited by this subsection
shall include any action prohibited by paragraph (1), including any of the following: shall include any action prohibited by paragraph (1), including any of the following:
(i) The threat to take any unfavorable action. (i) The threat to take any unfavorable action.
(ii) The withholding, or threat to withhold, any favorable action. (ii) The withholding, or threat to withhold, any favorable action.
(iii) The making of, or threat to make, a significant change in the duties or responsibilities of a (iii) The making of, or threat to make, a significant change in the duties or responsibilities of a
member of the armed forces not commensurate with the member’s grade. member of the armed forces not commensurate with the member’s grade.
(iv)The failure of a superior to respond to any retaliatory action or harassment (of which the (iv)The failure of a superior to respond to any retaliatory action or harassment (of which the
superior had actual knowledge) taken by one or more subordinates against a member. superior had actual knowledge) taken by one or more subordinates against a member.
~~(v) The conducting of a retaliatory investigation of a member.~~
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 enables the DOD to take action to mitigate hardship for an Armed Forces  enables the DOD to take action to mitigate hardship for an Armed Forces
member following a preliminary finding concerning an alleged reprisal for a member following a preliminary finding concerning an alleged reprisal for a
protected communication;52 protected communication;52
 requires the inspector general conducting an investigation into a protected  requires the inspector general conducting an investigation into a protected
communication to provide periodic updates to Congress, the whistleblower, the communication to provide periodic updates to Congress, the whistleblower, the
Secretary of Defense, and the relevant service;53 and Secretary of Defense, and the relevant service;53 and
 requires the DOD Inspector General to prescribe uniform standards for (1)  requires the DOD Inspector General to prescribe uniform standards for (1)
investigations of allegations of prohibited personnel actions, and (2) training for investigations of allegations of prohibited personnel actions, and (2) training for
staffs of Inspectors General on the conduct of such investigations.54 staffs of Inspectors General on the conduct of such investigations.54
Legislation to Address Perceived Gaps in Protections for IC
Contractors
Efforts to cover contractors in IC whistleblower protection legislation Efforts to cover contractors in IC whistleblower protection legislation ~~has~~have been inconsistent. The been inconsistent. The
ICWPAICWPA ~~of 1998~~, which provides a process for reporting a whistleblower complaint, does cover , which provides a process for reporting a whistleblower complaint, does cover
contractors, as do protections in Section 405 of the IAA for FY2010, and Title VI of the IAA of contractors, as do protections in Section 405 of the IAA for FY2010, and Title VI of the IAA of
2014.55 Three subsequent efforts in Congress to address a perceived gap in 2014.55 Three subsequent efforts in Congress to address a perceived gap in contractor coverage culminated coverage culminated
on January 19, 2018, when Congress passed P.L. 115-118, the Foreign Intelligence Surveillance on January 19, 2018, when Congress passed P.L. 115-118, the Foreign Intelligence Surveillance
Reauthorization Act of 2017. Reauthorization Act of 2017.
Section 110 of P.L. 115-118, titled “Whistleblower Protections for Contractors of the Intelligence Section 110 of P.L. 115-118, titled “Whistleblower Protections for Contractors of the Intelligence
Community,” amended Section 1104 of the National Security Act of 1947 by providing Community,” amended Section 1104 of the National Security Act of 1947 by providing
protections for IC contractor whistleblowers.56 Section 110 amended existing whistleblower protections for IC contractor whistleblowers.56 Section 110 amended existing whistleblower
protections to enable IC protections to enable IC contractors to make lawful disclosures to the head of the contracting to make lawful disclosures to the head of the contracting
agency (or an employee designated by the head of that agency for such purpose), or to the agency (or an employee designated by the head of that agency for such purpose), or to the
appropriate inspector general of the contracting agency, as well as to the DNI, ICIG, and the appropriate inspector general of the contracting agency, as well as to the DNI, ICIG, and the
congressional intelligence committees (or Members of the committees). These protections are congressional intelligence committees (or Members of the committees). These protections are
similar to those for IC employees under Title VI of the IAA for FY2014 (P.L. 113-126). That similar to those for IC employees under Title VI of the IAA for FY2014 (P.L. 113-126). That
legislation, however, included no provisions for contractors. legislation, however, included no provisions for contractors.
Section 110 provides protections for IC contractors making a lawful complaint against any Section 110 provides protections for IC contractors making a lawful complaint against any
retaliatory personnel action involving an appointment, promotion/demotion, disciplinary or retaliatory personnel action involving an appointment, promotion/demotion, disciplinary or
corrective action, detail, transfer or reassignment, suspension, termination, reinstatement, corrective action, detail, transfer or reassignment, suspension, termination, reinstatement,
performance evaluation, decisions concerning pay, benefits, awards, education, or training. The performance evaluation, decisions concerning pay, benefits, awards, education, or training. The
protections extend to lawful complaints involving protections extend to lawful complaints involving
~~a violation of any Federal law, rule or regulation (including with respect to evidence of~~
~~another employee or contractor employee accessing or sharing classified information~~

(v) The conducting of a retaliatory investigation of a member. 52 10 U.S.C. §1034(c)(4)(E). 52 10 U.S.C. §1034(c)(4)(E).
53 10 U.S.C. §1034(e)(3)(A). 53 10 U.S.C. §1034(e)(3)(A).
54 10 U.S.C. §1034, note (“Uniform Standards for Inspector General Investigations of Prohibited Personnel Actions and 54 10 U.S.C. §1034, note (“Uniform Standards for Inspector General Investigations of Prohibited Personnel Actions and
Other Matters”). The National Defense Authorization Act (NDAA) for Fiscal Year 2017 also required the Comptroller Other Matters”). The National Defense Authorization Act (NDAA) for Fiscal Year 2017 also required the Comptroller
General of the United States to review the integrity of the DOD whistleblower protection program and report to the General of the United States to review the integrity of the DOD whistleblower protection program and report to the
Senate and House Armed Services Committees no later than 18 months after the date of enactment of the NDAA on Senate and House Armed Services Committees no later than 18 months after the date of enactment of the NDAA on
whether the program satisfies Executive Branch whistleblower protection policy. See P.L. 114-328, §536(a)-(b). whether the program satisfies Executive Branch whistleblower protection policy. See P.L. 114-328, §536(a)-(b).
Department of Defense (DOD) implementing guidance for 10 U.S.C. §1034 can be found in DOD Directive 7050.06, Department of Defense (DOD) implementing guidance for 10 U.S.C. §1034 can be found in DOD Directive 7050.06,
Military Whistleblower Protection. For more on whistleblower protections for the military, see CRS In Focus IF11499, For more on whistleblower protections for the military, see CRS In Focus IF11499,
Protecting Military Whistleblowers: 10 U.S.C. §1034, by Alan Ott. , by Alan Ott.
55 PPD-19 and ICD-120 do not address protections for contractors. 55 PPD-19 and ICD-120 do not address protections for contractors.
56 P.L. 115-118, §110. 56 P.L. 115-118, §110.
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Provisions a violation of any Federal law, rule or regulation (including with respect to evidence of another employee or contractor employee accessing or sharing classified information without authorization); or gross mismanagement, a gross waste of funds, an abuse of without authorization); or gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or safety.57 authority, or a substantial and specific danger to public health or safety.57
These protections extend to contractors of the FBI—including contractors of the IC element of These protections extend to contractors of the FBI—including contractors of the IC element of
the FBI, the Intelligence Branch—similar to the protections for IC employees and contractors the FBI, the Intelligence Branch—similar to the protections for IC employees and contractors
under Section 3234 of Title 50, U.S. Codeunder Section 3234 of Title 50, U.S. Code, as amended.58 as amended.58
Section 110 also amended Section 3341(j) of Title 50, U.S. Code Section 110 also amended Section 3341(j) of Title 50, U.S. Code, to include protections for IC to include protections for IC
contractors who make lawful whistleblower disclosures against retaliatory revocation of their contractors who make lawful whistleblower disclosures against retaliatory revocation of their
security clearancessecurity clearances.
Resources to Enhance Whistleblower Investigations
House Amendment 894 to the DOD Appropriations Act for Fiscal Year 2015 (H.R. 4870), which House Amendment 894 to the DOD Appropriations Act for Fiscal Year 2015 (H.R. 4870), which
was agreed to by a voice vote on June 18, 2014 but was not enacted, would have redirected $2 was agreed to by a voice vote on June 18, 2014 but was not enacted, would have redirected $2
million dollars to establish the IC Whistleblower and Source Protection Directorate. The funds, to million dollars to establish the IC Whistleblower and Source Protection Directorate. The funds, to
augment the Intelligence Community Management Account, were to support the hiring of augment the Intelligence Community Management Account, were to support the hiring of
investigators and support staff to provide the ICIG greater ability to investigate fraud, waste, and investigators and support staff to provide the ICIG greater ability to investigate fraud, waste, and
abuse. Although it did not provide intrinsic protections for whistleblowers, the measure was abuse. Although it did not provide intrinsic protections for whistleblowers, the measure was
intended to address an underfunded capability in order to enable responsive follow-up on intended to address an underfunded capability in order to enable responsive follow-up on
whistleblower complaints.59 whistleblower complaints.59
Issues Raised by the IC Whistleblower Complaint of
August 2019
The August 2019 whistleblower complaint The August 2019 whistleblower complaint (hereafter referred to as the 2019 whistleblowing complaint) that led to the first impeachment of President Trump that led to the first impeachment of President Trump
highlighted some differences in how officials responsible for handling IC complaints interpret highlighted some differences in how officials responsible for handling IC complaints interpret
existing IC whistleblowing statutes. existing IC whistleblowing statutes.
The complaint concerned the July 25, 2019, phone call between President Trump and Ukrainian The complaint concerned the July 25, 2019, phone call between President Trump and Ukrainian
President Volodymyr Zelensky during which, the complainant alleged, President Trump pressured President Volodymyr Zelensky during which, the complainant alleged, President Trump pressured
the Ukrainian presidentthe Ukrainian president to initiate an investigation into then-presidential candidate Joseph R. Biden initiate an investigation into then-presidential candidate Joseph R. Biden
and his son. According to allegations, President Trump hoped the investigation would enhance his and his son. According to allegations, President Trump hoped the investigation would enhance his
prospects for reelection.60 prospects for reelection.60
The ICIG who received the complaint determined within 14 days, as required by the The ICIG who received the complaint determined within 14 days, as required by the
whistleblowing statute, that it appeared credible and was a matter of urgent concern.61 The ICIGwhistleblowing statute, that it appeared credible and was a matter of urgent concern.61 The ICIG
~~supported his determination in a statement in which he indicated that the President’s phone call~~

57 50 U.S.C. §3234(c)(1)(A)-(B). Unlike IC agency employees57 50 U.S.C. §3234(c)(1)(A)-(B). Unlike IC agency employees, who are protected from reprisal for disclosures of who are protected from reprisal for disclosures of
“mismanagement,” contractor employees are protected for disclosures of “gross mismanagement.” See 50 U.S.C. “mismanagement,” contractor employees are protected for disclosures of “gross mismanagement.” See 50 U.S.C.
§3234(b). §3234(b).
58 See P.L. 115-118, §110(b)(1)-(5). 58 See P.L. 115-118, §110(b)(1)-(5).
59 See Department of Defense Appropriations Act for Fiscal Year 2015 (H.R. 4870, 113th Cong.), Title VII, 59 See Department of Defense Appropriations Act for Fiscal Year 2015 (H.R. 4870, 113th Cong.), Title VII,
Amendment Offered by Mr. Holt, pp. H5466-H5467, at https://www.congress.gov/congressional-record/2014/06/18/Amendment Offered by Mr. Holt, pp. H5466-H5467, at https://www.congress.gov/congressional-record/2014/06/18/
house-section/article/H5454-2. house-section/article/H5454-2.
60 Zachary B. Wolf and Sean O’Key, “Trump-Ukraine Impeachment Inquiry Report, Annotated,” 60 Zachary B. Wolf and Sean O’Key, “Trump-Ukraine Impeachment Inquiry Report, Annotated,” CNN, December 3, , December 3,
2019, at https://www.cnn.com/interactive/2019/12/politics/trump-ukraine-impeachment-inquiry-report-annotated/. 2019, at https://www.cnn.com/interactive/2019/12/politics/trump-ukraine-impeachment-inquiry-report-annotated/.
61 61 Office of the Inspector General of the Intelligence Community Michael Atkinson Letter to the Acting Director of
~~National Intelligence Joseph Maguire, August 26, 2019, p. 5, at https://www.documentcloud.org/documents/6442986-~~
~~National-Security-Archive-Doc-05-Temporary. The relevant statute is 50 U.S.C. §3033(k)(5)(B).~~
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Provisions supported his determination in a statement in which he indicated that the President’s phone call fell within the scope of what constituted the “funding, administration, or operation of an fell within the scope of what constituted the “funding, administration, or operation of an
intelligence activity within the responsibility and authority of the Director of National intelligence activity within the responsibility and authority of the Director of National
Intelligence.” Specifically, the ICIG cited the establishment of the IC Election Threats Executive Intelligence.” Specifically, the ICIG cited the establishment of the IC Election Threats Executive
position on July 19, 2019, and then-DNI Daniel Coats’ statement that “Election security is an position on July 19, 2019, and then-DNI Daniel Coats’ statement that “Election security is an
enduring challenge and a top priority for the IC.”62 The ICIG cited as well the relevant sections of enduring challenge and a top priority for the IC.”62 The ICIG cited as well the relevant sections of
two executive orders (E.O.): two executive orders (E.O.):
 Section 1.4 of E.O. 12333,  Section 1.4 of E.O. 12333, United States Intelligence Activities, which states that , which states that
the IC “under the leadership of the Director [of National Intelligence]” shall the IC “under the leadership of the Director [of National Intelligence]” shall
“collect information concerning and conduct activities to protect against … “collect information concerning and conduct activities to protect against …
intelligence activities directed against the United States.”63 intelligence activities directed against the United States.”63
 E.O. 13848,  E.O. 13848, Imposing Certain Sanctions in the Event of Foreign Interference in a
United States Election, which states in part, “[T]he ability of persons located, in , which states in part, “[T]he ability of persons located, in
whole or in part, outside of the United States to interfere in or undermine public whole or in part, outside of the United States to interfere in or undermine public
confidence in United States elections … constitutes an unusual and extraordinary confidence in United States elections … constitutes an unusual and extraordinary
threat to the national security and foreign policy of the United States.”64 threat to the national security and foreign policy of the United States.”64
Upon receiving the complaint from the ICIG, the acting DNI sought the advice of the White Upon receiving the complaint from the ICIG, the acting DNI sought the advice of the White
House Counsel’s Office on whether the phone call between President Trump and the Ukrainian House Counsel’s Office on whether the phone call between President Trump and the Ukrainian
president was subject to executive privilege.65 According to the acting DNI’s congressional president was subject to executive privilege.65 According to the acting DNI’s congressional
testimony, the White House Counsel’s Office replied that much of it was. The acting DNI, testimony, the White House Counsel’s Office replied that much of it was. The acting DNI,
therefore, determined that DNI was unable to forward the complaint to Congress within seven therefore, determined that DNI was unable to forward the complaint to Congress within seven
days of receiving it, as would have been required for typical complaints governed by the IC days of receiving it, as would have been required for typical complaints governed by the IC
whistleblowing statutes.66 whistleblowing statutes.66
On September 3, 2019, the OLC, responding to a request by the General Counsel of the IC, issued On September 3, 2019, the OLC, responding to a request by the General Counsel of the IC, issued
an opinion on the complaint.67 The opinion outlined two fundamental differences with the ICIG: an opinion on the complaint.67 The opinion outlined two fundamental differences with the ICIG:
 that the complaint did not constitute a matter of “urgent concern” since the ICIG  that the complaint did not constitute a matter of “urgent concern” since the ICIG
whistleblower statute, 50 U.S.C.§3033, was not applicable as the complaint whistleblower statute, 50 U.S.C.§3033, was not applicable as the complaint
involved the President and not a member of the IC; and involved the President and not a member of the IC; and
 that the complaint was unrelated to “the funding, administration, or operation of  that the complaint was unrelated to “the funding, administration, or operation of
an intelligence activity under the authority of the Director of National an intelligence activity under the authority of the Director of National
~~Intelligence.”68 The OLC suggested that, since the alleged wrongdoing did not~~

National Intelligence Joseph Maguire, August 26, 2019, p. 5, at https://www.documentcloud.org/documents/6442986-National-Security-Archive-Doc-05-Temporary. The relevant statute is 50 U.S.C. §3033(k)(5)(B). 62 Quoted from 62 Quoted from Letter from the Inspector General of the Intelligence Community, Michael Atkinson, to the Acting
Director of National Intelligence, Joseph Maguire, August 26, 2019, p. 5 at https://assets.documentcloud.org/ August 26, 2019, p. 5 at https://assets.documentcloud.org/
documents/6430413/IG-Letter-Ukraine-Whistleblower.pdf. documents/6430413/IG-Letter-Ukraine-Whistleblower.pdf.
63 63 Ibid., p. 4. Ibid., p. 4.
64 Ibid. For E.O. 13848, see https://www.federalregister.gov/documents/2018/09/14/2018-20203/imposing-certain-64 Ibid. For E.O. 13848, see https://www.federalregister.gov/documents/2018/09/14/2018-20203/imposing-certain-
sanctions-in-the-event-of-foreign-interference-in-a-united-states-election. sanctions-in-the-event-of-foreign-interference-in-a-united-states-election.
65 See 65 See Opening Statement by Acting Director of National Intelligence Joseph Maguire before the House Permanent
Select Committee on Intelligence, September 26, 2019, at https://www.dni.gov/index.php/newsroom/congressional- September 26, 2019, at https://www.dni.gov/index.php/newsroom/congressional-
testimonies/item/2048-acting-dni-opening-statement. See also acting Director Maguire’s complete testimony at testimonies/item/2048-acting-dni-opening-statement. See also acting Director Maguire’s complete testimony at
https://www.c-span.org/video/?464509-1/acting-director-national-intelligence-maguire-testifies-whistleblower-https://www.c-span.org/video/?464509-1/acting-director-national-intelligence-maguire-testifies-whistleblower-
complaint. complaint.
66 Ibid. 66 Ibid.
67 See Steven A. Engel, Assistant Attorney General Office of Legal Counsel, 67 See Steven A. Engel, Assistant Attorney General Office of Legal Counsel, Memorandum of Opinion for the General
Counsel Office of the Director of National Intelligence, September 3, 2019, at https://www.justice.gov/olc/opinion/file/, September 3, 2019, at https://www.justice.gov/olc/opinion/file/
1205711/download1205711/download.
~~68 Ibid. The opinion cited the definition of “urgent concern” in 50 U.S.C. §3033(k)(5)(G)(i)~~. .
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Provisions Intelligence.”68 The OLC suggested that, since the alleged wrongdoing did not involve an intelligence activity, it fell outside the responsibility of the ICIG to involve an intelligence activity, it fell outside the responsibility of the ICIG to
investigate the complaint’s credibility.69 investigate the complaint’s credibility.69
It was the opinion of the OLC, therefore, that the DNI was not statutorily obligated to forward the It was the opinion of the OLC, therefore, that the DNI was not statutorily obligated to forward the
complaint to the congressional intelligence committees as would have been required under 50 complaint to the congressional intelligence committees as would have been required under 50
U.S.C. §3033(k)(5)(C). The OLC opinion stated that while the ICIG whistleblower statute covers U.S.C. §3033(k)(5)(C). The OLC opinion stated that while the ICIG whistleblower statute covers
activities of an urgent concern within the IC, “this provision … does not cover every alleged activities of an urgent concern within the IC, “this provision … does not cover every alleged
violation of federal law or other abuse that comes to the attention of a member of the intelligence violation of federal law or other abuse that comes to the attention of a member of the intelligence
community.”70 Accordingly, the OLC referred the complaint to the DOJ’s Criminal Division for community.”70 Accordingly, the OLC referred the complaint to the DOJ’s Criminal Division for
review of possible campaign finance violations in accordance with 28 U.S.C. §535(b) review of possible campaign finance violations in accordance with 28 U.S.C. §535(b)
(“Investigation of Crimes Involving Government Officers and Employees”).71 (“Investigation of Crimes Involving Government Officers and Employees”).71
In a September 6, 2019, letter to the Chair and Ranking Member of the House Permanent Select In a September 6, 2019, letter to the Chair and Ranking Member of the House Permanent Select
Committee on Intelligence, the Committee on Intelligence, the then-ICIG, Michael Atkinson, stated that the acting DNI’s decision not ICIG, Michael Atkinson, stated that the acting DNI’s decision not
to forward the complaint within seven days was a departure from past practice where even to forward the complaint within seven days was a departure from past practice where even
complaints that were deemed not to be matters of urgent concern were forwarded.complaints that were deemed not to be matters of urgent concern were forwarded.72 The acting The acting
DNI’s decision enabled the complainant to contact the committees directly “in an authorized and DNI’s decision enabled the complainant to contact the committees directly “in an authorized and
protected manner.”protected manner.”7273
The acting DNI forwarded the complaint to Congress on September 25, 2019, once the Trump The acting DNI forwarded the complaint to Congress on September 25, 2019, once the Trump
Administration released what was described as a transcript of President Trump’s phone call.Administration released what was described as a transcript of President Trump’s phone call.7374

68 Ibid. The opinion cited the definition of “urgent concern” in 50 U.S.C. §3033(k)(5)(G)(i). 69 Ibid., p. 10. 69 Ibid., p. 10.
70 Ibid., p. 5. 70 Ibid., p. 5.
71 Ibid., p. 2. The DOJ indicated the Criminal Division terminated its investigation in September 2019 after making a 71 Ibid., p. 2. The DOJ indicated the Criminal Division terminated its investigation in September 2019 after making a
determination that no campaign finance violation had occurred. See Matt Zapotosky and Devlin Barrett, “Justice determination that no campaign finance violation had occurred. See Matt Zapotosky and Devlin Barrett, “Justice
Department Rejected Investigation of Trump Phone Call Just Weeks After It Began Examining the Matter,” Department Rejected Investigation of Trump Phone Call Just Weeks After It Began Examining the Matter,”
Washington Post, September 25, 2019, at https://www.washingtonpost.com/national-security/justice-dept-rejected-, September 25, 2019, at https://www.washingtonpost.com/national-security/justice-dept-rejected-
investigation-of-trump-phone-call-just-weeks-after-it-began-examining-the-matter/2019/09/25/6f7977ce-dfb5-11e9-investigation-of-trump-phone-call-just-weeks-after-it-began-examining-the-matter/2019/09/25/6f7977ce-dfb5-11e9-
8dc8-498eabc129a0_story.html. 8dc8-498eabc129a0_story.html.
72 72 ~~See~~ ~~Inspector General of the Intelligence Community Michael Atkinson Letter to the Honorable Adam Schiff,~~
~~Chairman, and the Honorable Devin Nunes, Ranking Member, of the Permanent Select Committee on Intelligence,~~
~~House of Representatives, September 6, 2019, at https://intelligence.house.gov/uploadedfiles/20190909_-~~
~~_ic_ig_letter_to_hpsci_on_whistleblower.pdf:~~
~~The ICIG has on occasion in the past determined that, for a variety of reasons, disclosures~~
~~submitted to the ICIG under the urgent concern statute did not constitute an urgent concern. In~~
~~those cases … the DNI nevertheless provided direction to the ICIG to transmit the ICIG~~
~~determination and the complainant’s information to the congressional intelligence committees.…~~
~~That past practice permitted complainants in the Intelligence Community to contact the~~
~~congressional intelligence committees directly, in an authorized and protected manner, as intended~~
~~by the urgent concern statute. (p. 2)~~
In his September 26, 2019, testimony before the House Permanent Select Committee on Intelligence, Acting DNI In his September 26, 2019, testimony before the House Permanent Select Committee on Intelligence, Acting DNI
Maguire acknowledged that his not forwarding the complaint to Congress within seven days as required by the IC Maguire acknowledged that his not forwarding the complaint to Congress within seven days as required by the IC
whistleblowing statutes was a departure from past practice. He cited the “unprecedented” circumstances that he whistleblowing statutes was a departure from past practice. He cited the “unprecedented” circumstances that he
believed prevented him from doing so. See believed prevented him from doing so. See Opening Statement by Acting Director of National Intelligence Joseph
Maguire before the House Permanent Select Committee on Intelligence, September 26, 2019, at https://www.dni.gov/, September 26, 2019, at https://www.dni.gov/
index.php/newsroom/congressional-testimonies/item/2048-acting-dni-opening-statement. See also acting Director index.php/newsroom/congressional-testimonies/item/2048-acting-dni-opening-statement. See also acting Director
Maguire’s complete testimony at https://www.c-span.org/video/?464509-1/acting-director-national-intelligence-Maguire’s complete testimony at https://www.c-span.org/video/?464509-1/acting-director-national-intelligence-
maguire-testifies-whistleblower-complaint. maguire-testifies-whistleblower-complaint.
73 73 ~~Opening Statement by Acting Director of National Intelligence Joseph Maguire before the House~~See Inspector General of the Intelligence Community Michael Atkinson Letter to the Honorable Adam Schiff, Chairman, and the Honorable Devin Nunes, Ranking Member, of the Permanent Select
Committee on Intelligence, House of Representatives, September , September 266, 2019, at https://intelligence.house.gov/uploadedfiles/20190909_-_ic_ig_letter_to_hpsci_on_whistleblower.pdf: The ICIG has on occasion in the past determined that, for a variety of reasons, disclosures submitted to the ICIG under the urgent concern statute did not constitute an urgent concern. In those cases … the DNI nevertheless provided direction to the ICIG to transmit the ICIG determination and the complainant’s information to the congressional intelligence committees.… That past practice permitted complainants in the Intelligence Community to contact the congressional intelligence committees directly, in an authorized and protected manner, as intended by the urgent concern statute. (p. 2) 74 Opening Statement by Acting Director of National Intelligence Joseph Maguire before the House Permanent Select Committee on Intelligence, September 26, 2019, at https://www.dni.gov/index.php/newsroom/congressional-testimonies/item/2048-acting-dni-opening-statement. See also Admiral Maguire’s complete testimony at Congressional Research Service 15 Intelligence Community Whistleblower Provisions 117th Congress: Intelligence Authorization Act for Fiscal Year 2022 On August 4, 2021, the Senate Select Committee on Intelligence (SSCI) introduced S. 2610, the Intelligence Authorization Act for Fiscal Year 2022 in the Senate. On September 29, 2021, the House Permanent Select Committee on Intelligence (HPSCI) introduced in the House H.R. 5412, the House version of the Intelligence Authorization Act for Fiscal Year 2022. By joint agreement, an amended version of the Intelligence Authorization Act for Fiscal Year 2022, including a classified annex and Schedule of Authorizations, was included as Division X of the Consolidated Appropriations Act for Fiscal Year 2022 (P.L. 117-103). Selected Provisions Consistency of Language The 117th Congress has addressed some of the concerns raised by the 2019 whistleblowing incident with the Intelligence Authorization Act (IAA) for Fiscal Year 2022 (Division X of P.L. 117-103). The IAA for FY2022 amended whistleblower provisions in Title 50, United States Code, to help ensure consistency (or “harmonization”) in the text of IC-related whistleblower statutes. Among the changes, the IAA for FY 2022  Amended Title 50 whistleblowing prohibitions to make the text consistent with the text of prohibitions in Section 101 of the Civil Service Reform Act of 1978 (P.L. 95-454).75 As amended, Title 50 prohibited personnel practices now include an IC employer making a threat of a reprisal against an IC employee or contractor who makes a lawful disclosure that the individual “reasonably believes” provides evidence of a violation of the law, rule or regulation; or of mismanagement, a waste of funds, abuse of authority, or a danger to public health and safety;76  Amended Title 50 prohibited personnel practices by specifying that the President enforce prohibitions against reprisals (including the revocation of security clearances) for a whistleblower making a lawful disclosure “consistent ... with the policies and procedures used to adjudicate alleged violations” of an employee or contractor’s right to make a lawful disclosure that are referenced in the Civil Service Reform Act of 1978;77 and  Established consistency with respect to language: In two provisions describing the basis for making a lawful disclosure, the qualifier “gross mismanagement” is simplified to “mismanagement” to ensure consistency with the use of “mismanagement” in other IC whistleblowing-related statutes.78 https://www.c-span.org/video/?464509-1/acting-director-national-intelligence-maguire-testifies-whistleblower-complaint. 75 The relevant provisions of P.L. 95-454, §101 are codified at 5 U.S.C. §2302(b)(8). 76 This provision amends 50 U.S.C. §3234(b) and (c)(1), pertaining to IC element employees and contractors, respectively. It applies to all statutory IC elements except the FBI’s Intelligence Branch (IB). See 50 U.S.C. §3234(a)(1). 77 Section 501 of Title V of the IAA for FY2022 amends 50 U.S.C. §§3234(d) and 3341(j) by aligning these statutes with enforcement policy and procedures referenced in the Civil Service Reform Act of 1978 (5 U.S.C. §2302(b)(8)) that provide the standard by which the President is responsible for enforcing prohibitions against reprisals. 78 These amendments are to 50 U.S.C. §§3341(j)(1)(A)(ii), 3341(j)(1)(B)(ii), and 3234(c)(1)(B). Congressional Research Service 16 Intelligence Community Whistleblower Provisions Employee Rights Concerning Security Clearance Decisions The IAA for FY2022 amends Title 50 provisions governing intelligence element decisions to revoke security clearances. The amended provision allows for the suspension (or “tolling”) of the 90-day time limit for an employee to appeal an IC element eligibility decision if the employee provides “substantial credible evidence” why the employee could not meet the statutory time limit and why its enforcement would be unfair.79 Officials Authorized to Receive a Lawful Disclosure The IAA for FY2022 amends provisions governing recipients of a lawful disclosure by adding language that an employee can make a lawful disclosure to a supervisor in the employee’s direct chain of command, or a supervisor of the employing or contracting agency up to an including the head of the employing or contracting agency.80 Independence of Inspectors General The IAA for FY2022 amends IC whistleblowing adjudication by specifically designating the ICIG or Inspector General of the IC element to whom a whistleblower makes a complaint as “having sole authority to determine whether a complaint or information is a matter of urgent concern.... ”81 IC Whistleblower Legislation: Looking Ahead The political context surrounding the whistleblowing incident that led to the first impeachment of Donald J. Trump has raised discussion on whistleblowing generally. An IC whistleblower, by definition, is someone who reports to an appropriate authority, in a manner that protects classified information, a matter the whistleblower reasonably believes to be a serious wrongdoing, flagrant abuse, or violation of law involving an intelligence activity. A retrospective analysis of IC whistleblowing legislation, whether passed or not, generally appears to demonstrate congressional encouragement for potential whistleblowers to report on issues that otherwise may have limited means of oversight because of their classified nature. The circumstances of the 2019 whistleblowing incident exposed a number of areas with the potential to stimulate discussion on whether existing legislation meets Congress’s original intent. These areas include (1) whether whistleblowers should have a right to remain anonymous, and, if so, what, if any, recourse do they have in the event their identity is disclosed against their will; (2) whether procedures provide potential whistleblowers clear direction on how to approach Congress with a protected disclosure; (3) whether the text of the various IC-related whistleblower statutes is clear and consistent as they relate to each other; and (4) the final authority for making determinations of what constitutes a matter of “urgent concern.” 79 50 U.S.C. §3341(j)(4)(D). 80 50 U.S.C. §§3234(b), 3234(c)(1), 3341(j)(1)(A)(i). 81 50 U.S.C. §§3033(k)(5)(G) and 3517(d)(5)(G); and 5 U.S.C. App. §8H. Congressional Research Service 17 Intelligence Community Whistleblower Provisions ~~, 2019, at https://www.dni.gov/index.php/newsroom/congressional-~~
~~testimonies/item/2048-acting-dni-opening-statement. See also Admiral Maguire’s complete testimony at~~
~~https://www.c-span.org/video/?464509-1/acting-director-national-intelligence-maguire-testifies-whistleblower-~~
~~complaint.~~
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~~Proposed IC Whistleblower Legislation, 116th~~
~~Congress~~
~~The political context surrounding the whistleblowing incident that led to the first impeachment of~~
~~Donald J. Trump has raised discussion on whistleblowing generally. A whistleblower, by~~
~~definition, is someone who reports to an appropriate authority, in a manner that protects classified~~
~~information, a matter the whistleblower reasonably believes to be a serious wrongdoing, flagrant~~
~~abuse, or violation of law involving an intelligence activity. A retrospective analysis of IC~~
~~whistleblowing legislation, whether passed or not, generally shows congressional encouragement~~
~~for potential whistleblowers to report on issues that otherwise have limited means of oversight~~
~~because of their classified nature. The circumstances of the 2019 whistleblowing incident~~
~~exposed a number of areas with the potential to stimulate discussion on whether existing~~
~~legislation meets Congress’s original intent. These include (1) whether whistleblowers should~~
~~have a right to remain anonymous, and, if so, what, if any, recourse do they have in the event their~~
~~identity is disclosed against their will; (2) whether procedures provide potential whistleblowers~~
~~clear direction on how to approach Congress with a protected disclosure; and (3) the final~~
~~authority for making determinations of what constitutes a matter of “urgent concern.” A number~~
~~of these issues were raised in the 116th Congress. Bills introduced in the Senate and House would~~
~~have amended the whistleblower provisions of the National Security Act of 1947; these~~
~~provisions were not considered by either chamber. Provided here are summaries of the provisions~~
~~included in Senate and House intelligence authorization bills that were not included in the enacted~~
~~IAA for FY2021 but illustrate approaches to protecting whistleblowers.74 Although the two bills~~
~~generally addressed similar areas, an important difference is that the Senate version was specific~~
~~to the ICIG while the House version applied to any inspector general of an IC element.~~
~~S. 3905, Intelligence Authorization Act (IAA) for Fiscal Year 2021~~
~~(Introduced)~~
~~Protection of a whistleblower’s identity from disclosure~~
~~The bill would have added to existing whistleblower provisions more stringent prohibitions~~
~~against “a knowing and willful or negligent disclosure revealing the identity or personally~~
~~identifiable information” of a whistleblower.75 The bill also would have prohibited sharing the~~
~~identity of a whistleblower with the subject of a complaint without the whistleblower’s written~~
~~consent.76 A whistleblower whose identity was disclosed in an unlawful, willful manner would be~~
~~able to maintain a private right of action for redress.77~~
~~Greater latitude for a whistleblower to report directly to Congress~~
~~Concern over a whistleblower’s access to Congress was the subject of another provision that~~
~~would have enabled a whistleblower to report a complaint—whether or not it had been~~

~~74 For the enacted IAA for FY2021, see Division W of P.L. 116-260, the Consolidated Appropriations Act of 2021.~~
~~75 S. 3905, §321(a)(3), at https://www.congress.gov/bill/116th-congress/senate-bill/3905/text?r=3#toc-~~
~~id3413DEA9BFD3469D8CC4A6B53BC394EB.~~
~~76 Ibid., §324.~~
~~77 Ibid., §321(d)(2).~~
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~~determined to be credible or a matter of urgent concern by the inspector general—directly to the~~
~~leadership of the congressional intelligence committees or designated nonpartisan staff.78~~
~~Expanded definition of “urgent concern”~~
~~The bill would have explicitly broadened the definition of “urgent concern” to include any serious~~
~~or flagrant problem, abuse, violation of law or executive order, or deficiency not just concerning~~
~~intelligence activities within the IC, but also activities “relating to the funding, administration, or~~
~~operation of the Federal Government” and are “a matter of national security and not a difference~~
~~of opinion concerning public policy matters.”79~~
~~Independence of the ICIG~~
~~A provision also would have given the ICIG sole authority to determine whether a complaint~~
~~constituted a matter of urgent concern.80~~
~~H.R. 7856, Intelligence Authorization Act for Fiscal Year 2021~~
~~(Introduced)~~
~~Protection of a whistleblower’s identity from disclosure~~
~~H.R. 7856 would have provided additional protections against the unauthorized disclosure of a~~
~~whistleblower’s identity. This would include the unauthorized disclosure of information in a~~
~~complaint to an individual named in the complaint without the whistleblower’s written consent.~~
~~An exception would be if the inspector general concerned or an attorney for the government~~
~~determines—and gives prior notice to the whistleblower—that disclosure of the information is~~
~~unavoidable to advance an investigation, audit, inspection, or evaluation.81~~
~~H.R. 7856 would have protected a whistleblower’s identity from disclosure as a reprisal for~~
~~making a complaint.82 This section would have permitted a whistleblower to maintain a private~~
~~right of action for “unlawful, willful disclosure” of the whistleblower’s identity.83~~
~~Greater latitude for a whistleblower to report directly to Congress~~
~~The proposed House legislation was also similar to that in the Senate in expanding the means by~~
~~which a whistleblower could report directly to the congressional intelligence committees. If the~~
~~whistleblower were to choose to approach Congress directly to make a disclosure, the DNI or~~
~~head of the IC element concerned, through the appropriate IC element inspector general, would~~
~~have had to provide direction on how to safeguard classified information in doing so.84~~

~~78 Ibid., §323.~~
~~79 Ibid., §322.~~
~~80 Ibid.~~
~~81 H.R. 7856, Title V, §504(a).~~
~~82 Ibid., §506(a).~~
~~83 Ibid., §506(c).~~
~~84 Ibid., §505(a).~~
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~~Expansion of the definition of “urgent concern”~~
~~H.R. 7856 would have expanded the definition of “urgent concern,” to include “a serious or~~
~~flagrant problem, abuse, violation of law or Executive order, or deficiency relating to foreign~~
~~interference in elections in the United States.”85~~
~~Independence of IC Element Inspectors General~~
~~H.R. 7856 included protections for the independence of IC element inspectors general, including~~
~~the ICIG. Principally, the proposed legislation would have limited the President’s ability to~~
~~remove an inspector general of an element of the IC to instances of permanent incapacity,~~
~~inefficiency, neglect of duty, malfeasance, felony conviction or “low moral turpitude,” substantial~~
~~violations of laws, rules or regulations, gross mismanagement, gross waste of funds, and abuse of~~
~~authority.86~~
~~The bill also included limitations on the President’s ability to appoint an acting inspector general~~
~~of an IC element to presidentially appointed, Senate-confirmed inspectors general positions of~~
~~other organizations in the U.S. government, or the most senior career individual of the office of~~
~~the inspector general in question holding a position in a senior executive service.87~~
~~H.R. 7856 would have also given IC element Inspectors General “sole authority to determine~~
~~whether any complaint or information reported to the Inspector General is a matter of urgent~~
~~concern.”88 That determination would have been final and conclusive.~~
~~Expansion of the responsibilities of the DNI~~
~~The bill would also have expanded the authority of the DNI to include “coordinating and~~
~~supervising activities undertaken by elements of the intelligence community for the purpose of~~
~~protecting the United States from any foreign interference in elections in the United States.”89~~
~~Potential Questions for Congress~~
~~ What protections against disclosure of an IC whistleblower’s identity should~~
~~exist in statute?~~
~~ What oversight, if any, should the DNI or the head of any IC intelligence element~~
~~have in an ICIG or IC element inspector general’s determinations of the~~
~~credibility of a complaint and what constitutes an urgent concern?~~
~~ Should the DNI be obligated to provide guidance on the protection of classified~~
~~information in the event an IC whistleblower indicates an intention to report a~~
~~complaint to Congress?~~
~~ What constitutes the scope of personal conduct that is reportable in an IC~~
~~whistleblower complaint? What should be the scope of government activity that~~
~~falls within a definition of urgent concern? What constitutes an intelligence~~
~~activity?~~

~~85 Ibid.~~
~~86 H.R. 7856, §501(a).~~
~~87 Ibid., §502(a).~~
~~88 Ibid., §503(a)(1).~~
~~89 Ibid.~~
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~~ What is the extent to which the conduct of government officials outside the IC~~
~~should be the subjects of an IC whistleblowing complaint?~~

Author Information

Michael E. DeVine Michael E. DeVine

Analyst in Intelligence and National Security Analyst in Intelligence and National Security

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
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Congressional Research Service Congressional Research Service
R45345 R45345 · VERSION 810 · UPDATED
1918