Intelligence Community Whistleblower Provisions: A Legislative History

Changes from June 15, 2022 to March 29, 2024

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 15, 2022~~March 29, 2024
Provisions: A Legislative History
Michael E. DeVine
Intelligence community (IC) whistleblowers are employees or contractors of the federal Intelligence community (IC) whistleblowers are employees or contractors 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 government working in any of the 18 elements of the IC who disclose their reasonable ~~belief of a~~
National Security National Security
belief of a violation of law, rule, or regulation; gross mismanagement; waste of violation of law, rule, or regulation; gross mismanagement; waste of resources; abuse of resources; abuse of

authority; or a substantial danger to public health and safety. The Director of National authority; or a substantial danger to public health and safety. The Director of National
Intelligence (DNI) whistleblowing policy and guidance generally Intelligence (DNI) whistleblowing policy and guidance generally are publicly available, and are publicly available, and

address the process for making protected disclosures and identify whistleblower protections for address the process for making protected disclosures and identify whistleblower protections for
IC contractors, members of the Armed Forces, and federal IC employees. IC contractors, members of the Armed Forces, and federal IC employees.
IC whistleblower protections have evolved in response to perceptions of gaps that some observers argued left these IC whistleblower protections have evolved in response to perceptions of gaps that some observers 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 general provisions for protecting IC whistleblowers, with no additional guidance on standards for enacted in 2010, included general provisions for protecting IC whistleblowers, with no additional guidance on standards for
implementation. Presidential Policy Directive (PPD)-19, signed in 2012, provided the first specific protections against 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 (P.L. 113-126) codified reprisal actions for making a complaint. The Intelligence Authorization Act for Fiscal Year 2014 (P.L. 113-126) codified
these provisions, which were further supported by IC implementation policy. In early 2018, Congress passed legislation to these provisions, 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 address perceived gaps in protections for IC contractors. Other provisions in Title 10 of the U.S. Code, along with ~~DOD~~Department of Defense (DOD)
implementing guidance, provide protections for members of the Armed Forces, including those assigned to elements of the implementing guidance, provide protections for members of the Armed Forces, including those assigned to elements of the
IC. 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) whether whistleblowers should have a right to remain anonymous, and, if so, what, if any, recourse questions concerned (1) whether whistleblowers should have a right to remain anonymous, and, if so, what, if any, recourse
should they have in the event their should they have in the event their ~~identity is~~identities are disclosed against their will; (2) whether procedures provide potential 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 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) IC-related whistleblower statutes is clear and consistent as they relate to each other; and (4) which official has the final authority for making the final authority for making
~~determinations of what~~a determination of, as well as the scope of, an activity that constitutes a matter of “urgent concern.” constitutes a matter of “urgent concern.”
Since that time, Congress has taken steps to provide greater clarity and consistency to existing whistleblower Since that time, Congress has taken steps to provide greater clarity and consistency to existing whistleblower ~~legislation~~legislation which address each of these questions. The . The
Intelligence Authorization Act Intelligence Authorization Act (IAA) for Fiscal Year 2022 (Division X of P.L. 117-103), included, for example, a provision giving 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 the Inspector General of the Intelligence Community (ICIG) and Inspectors General of any IC element sole authority to
determine whether a determine whether a ~~lawful~~ protected disclosure constitutes a matter of “urgent concern.”disclosure constitutes a matter of “urgent concern.”
Effective whistleblowing protections are intended to instill confidence in the integrity and comprehensiveness of the process Effective whistleblowing protections are intended to instill confidence in the integrity and comprehensiveness of the process
for submitting a complaint as much as for the process itself. By extension, when IC employees have confidence that they can for submitting a complaint as much as for the process itself. By extension, when IC employees have confidence that they can
make protected disclosures anonymously and without fear of retribution, they arguably are more likely to adhere to a process make protected disclosures anonymously and without fear of retribution, they arguably are more likely to adhere to a process
that is also intended to protect classified information. Conversely, this line of reasoning also suggests that is also intended to protect classified information. Conversely, this line of reasoning also suggests that a lack of confidence a lack of confidence
can increase the chances of wrongdoing going unreported or of classified information being compromised through an can increase the chances of wrongdoing going unreported or of classified information being compromised through an
employee making a complaint outside of proper channels. employee making a complaint outside of proper channels.

Congressional Research Service Congressional Research Service

Intelligence Community Whistleblower Provisions: A Legislative History

Introduction
Intelligence Intelligence ~~Community~~community (IC) whistleblowers are employees or contractors working in any of the (IC) whistleblowers are employees or contractors working in any of the
statutory elements of the IC who disclose statutory elements of the IC who disclose a reasonable reasonable ~~beliefs~~belief of a violation of law, rule, or of a violation of law, rule, or
regulation; gross mismanagement; waste of resources; abuse of authority; or a substantial danger regulation; gross mismanagement; waste of resources; abuse of authority; or a substantial danger
to public health and safety. One important distinction between whistleblowers generally and those to public health and safety. One important distinction between whistleblowers generally and those
in the IC (or those who otherwise have security clearances) is the concern for protecting classified 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 recognized 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 enable timely that whistleblowing can help ensure an ethical and safe working environment, and enable timely
responses for corrective action.1 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.information.2 The Director of National Intelligence (DNI) whistleblowing policy and guidance are The Director of National Intelligence (DNI) whistleblowing policy and guidance are
publicly available and specifically address whistleblower processes and protections for IC publicly available and specifically address whistleblower processes and protections for IC
contractors, members of the Armed Forces, and federal employees.contractors, members of the Armed Forces, and federal employees.23 Some proponents for greater Some proponents for greater
transparency in the IC, however, have transparency in the IC, however, have ~~believed~~said the IC’s internal processes are not as clear as they the IC’s internal processes are not as clear as they
could becould be, and lack the transparency necessary to provide prospective whistleblowers confidence and lack the transparency necessary to provide prospective whistleblowers confidence
that they would be protected against reprisal.they would be protected against reprisal.
~~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~~
~~directives prescribing reporting procedures intended to protect classified information, for~~
~~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,~~
~~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~~
~~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.~~
Procedures for an intelligence community employee to make a protected disclosure are codified in three statutes: • the Inspector General Act of 1978, as amended (5 U.S.C. §416), which specifies procedures for making a protected disclosure to various inspectors general of intelligence community elements;4 • the Central Intelligence Agency (CIA) Act of 1949, as amended (50 U.S.C. §3517), which provides procedures for employees of the CIA to make a protected disclosure to the Inspector General of the CIA; and • the National Security Act of 1947, as amended (50 U.S.C. §3033), which provides procedures for whistleblowers in the Office of the Director of National Intelligence (ODNI) or any element of the intelligence community to make a protected disclosure to the Intelligence Community Inspector General (ICIG). IC whistleblower protections have evolved in response to perceptions of gaps that some believed IC whistleblower protections have evolved in response to perceptions of gaps that some believed
left whistleblowers vulnerable to reprisal. 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~~
~~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~~
~~protecting IC whistleblowers, though these were general and subject to different standards of~~
~~implementation.~~
Protections for an employee making a protected disclosure are found in Title VI of the Intelligence Authorization Act for Fiscal Year 2014, as amended (50 U.S.C. §§3234 et seq.). This statute codified the provisions of Presidential Policy Directive (PPD)-19Presidential 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~~
~~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~~
~~established a PPD-19 implementation policy. For members of the Armed Forces assigned to~~
~~elements of the IC, 10 U.S.C. §1034 provides whistleblower protections. Department of Defense~~
~~(DOD) implementing guidance for Section 1034 can be found in DOD Directive 7050.06,~~
Military Whistleblower Protection. Prior to 2019, legislation concerning IC whistleblowers was
~~Section 110 of P.L. 115-118, enacted in January 2018, which amended the National Security Act~~

~~1 Office of the Director of National Intelligence (ODNI), at https://www.dni.gov/ICIG-Whistleblower/index.html.~~
~~2 ODNI, at https://www.dni.gov/ICIG-Whistleblower/process-how.html.~~
~~Congressional Research Service~~

1

~~Intelligence Community Whistleblower 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.~~
~~Trump revealed a number of differences in how~~ signed by President Barack Obama in 2012. Whistleblower protections for employees and contractors in the IC are extended only to those who makes protected disclosures. They do not cover disclosures that do not conform to statutes and directives prescribing reporting procedures intended to protect classified information, for 1 Office of the Director of National Intelligence (ODNI), at https://www.dni.gov/ICIG-Whistleblower/index.html. 2 Intelligence community whistleblower statutes and directives use the terms “protected disclosure” and “lawful disclosure” interchangeably. This report uses the term “protected disclosure” for consistency. 3 Office of the Director of National Intelligence, How Do I Report? at https://www.dni.gov/ICIG-Whistleblower/process-how.html. 4 Following reordering and renumbering of the Inspector General Act of 1978 in the U.S. Code, 5 U.S.C. App.§8H, “Additional Provisions with Respect to Inspectors General of the Intelligence Community,” is now codified at 5 U.S.C. §416. Congressional Research Service 1 Intelligence Community Whistleblower Provisions: A Legislative History example, by disclosing classified information to the media or a foreign government. The whistleblower protections do not apply to personal grievances, policy disputes, or management disagreements.5 Whistleblower protections also do not protect against adverse personnel or security clearance eligibility decisions if the agency can demonstrate “by a preponderance of the evidence” that it would have taken the same action in the absence of a protected disclosure.6 The August 2019 whistleblower complaint that led to the impeachment of President Donald J. Trump revealed a number of different ways that IC whistleblowing statutes could be interpreted. IC whistleblowing statutes could be interpreted.
Some in Congress questioned the independence of IC inspectors general to make a final Some in Congress questioned the independence of IC inspectors general to make a final
determination of whether a complaint is credible and a matter of “urgent concern.”determination of whether a complaint is credible and a matter of “urgent concern.”37 In addition, In addition,
there was informal discussion over whether the statute should provide comprehensive protections there was informal discussion over whether the statute should provide comprehensive protections
against disclosure of a whistleblower’s identity.against disclosure of a whistleblower’s identity.8 The Intelligence Authorization Act for Fiscal 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:~~ 5 Office of the Director of National Intelligence, What is Whistleblowing? at https://www.dni.gov/ICIG-Whistleblower/what-is.html. 6 50 U.S.C. §3341(j)(4)(C). 7 A provision in the Intelligence Authorization Act (IAA) for Fiscal Year 2022 resolved the uncertainty over the independence and authority of the Inspector General of the Intelligence Community (ICIG) and inspectors general of IC elements. The IAA for FY2022 amended 50 U.S.C. §§3033(k)(5)(G) and 3517(d)(5)(G) and 5 U.S.C. §416 to provide the inspectors general “sole authority” to decide whether a complaint is a matter of urgent concern. 8 The Inspector General Act of 1978 (5 U.S.C. §407(b)) 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)(H), makes no specific reference to 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 the Inspector General Act of 1978 (5 U.S.C. App.).” However, 50 U.S.C. §3033 (pertaining to the ICIG), 50 U.S.C. §3517 (pertaining to the Inspector General of the CIA), and 5 U.S.C. §416 (pertaining to inspectors general of IC elements generally, formerly numbered as 5 U.S.C. App. §8H), are not applicable to anyone other than the inspector general of the IC element handling a complaint. They do not afford protection to whistleblowers against disclosure of their identity by someone other than the inspector general, such as a member of the media or a Member of Congress if such an individual who is not an inspector general were to become aware of the whistleblower’s identity. There are two exceptions to the prohibitions against the ICIG disclosing a whistleblower’s identity: (1) in instances where an IG determination that disclosure is “unavoidable” in the course of the investigation; or (2) when disclosure to a Department of Justice official is “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 “shall qualify as a withholding statute pursuant to subsection (b)(3) of section 552 of Title 5,” of the Freedom of Information Act (FOIA). FOIA’s mandatory disclosure requirements under 5 U.S.C. §552(b)(3) state that they do not apply to covered materials “specifically exempted from disclosure by statute” in specified circumstances. Section 3033, therefore, obligates an IC inspector general to protect a whistleblower’s identity from disclosure under FOIA. For more information on FOIA, CRS In Focus IF12301, Congress and the Freedom of Information Act (FOIA), by Benjamin M. Barczewski and Meghan M. Stuessy. See also CRS Report R46238, The Freedom of Information Act (FOIA): A Legal Overview, by Daniel J. Sheffner. 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 Federal Register 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 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 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). 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, Protection of Identities of Certain United States Undercover (continued...) Congressional Research Service 2 Intelligence Community Whistleblower Provisions: A Legislative History Year 2022 (Division X of P.L. 117-103) has addressed some of the concerns raised by the 2019 whistleblowing incident, such as the provision that gave the inspectors general of IC elements “sole authority” for determining whether a protected disclosure constitutes a matter of “urgent concern.” When Congress initially drafted the statutes related to intelligence community whistleblowing, beginning in 1998, there were some inconsistencies in language that since have been resolved through amending legislation. This report addresses several of these amendments, particularly as they relate to the definition of a matter of “urgent concern,” the independence of the IC inspectors general, and the language of the overall framework for whistleblower protections in PPD-19.9 For members of the Armed Forces assigned to elements of the IC, 10 U.S.C. §1034 provides whistleblower protections. Department of Defense (DOD) implementing guidance for Section 1034 can be found in DOD Directive 7050.06, Military Whistleblower Protection.10~~of 1978, as~~
~~amended (5 U.S.C. App. §8H), which applies to the inspectors general of all IC elements; the~~
~~Central Intelligence Agency (CIA) Act of 1949, as amended (50 U.S.C. §3517), which applies to~~
~~the inspector general of the CIA; the National Security Act of 1947, as amended (50 U.S.C.~~
~~§3033), which applies to the ICIG; and Title VI of the Intelligence Authorization Act for Fiscal~~
~~Year 2014, as amended (50 U.S.C. §3234) which provides protections for whistleblowers making~~
~~a lawful 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),411 as amended, is as amended, is
intended to assist whistleblowers in the ICintended to assist whistleblowers in the IC ~~who~~, all of whom are specifically excluded from the Whistleblower are specifically excluded from the Whistleblower
Protection Act of 1989, which appliesProtection Act of 1989, which applies solely to federal employees outside of the IC who work in an to federal employees outside of the IC who work in an
unclassified environment.unclassified environment.12 The ICWPA ~~The ICWPA makes no provision for members of the Armed Forces~~
~~assigned to an IC element.5 The act~~ amended the CIA Act of 1949 and the Inspector General Act amended the CIA Act of 1949 and the Inspector General Act
of 1978 to enable of 1978 to enable ~~an IC government~~any IC federal employee or contractor “who intends to report to Congress a 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
relatingrelating ~~to the~~ to the funding,funding, ~~administration, or operations of an intelligence activity involving~~

~~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~~ administration, or operations of an intelligence activity of the Federal Government that is a matter of national security, and not a difference of opinion concerning public policy matters;13 Intelligence Officers, Agents, Informants, and Sources). This provision also includes an exception for disclosure to Congress. 9 For a more detailed look at the effort to synchronize the language of IC whistleblower legislation, see Office of the Inspector General of the Intelligence Community, “Report on Intelligence Community Whistleblower Matters & Harmonization of Processes and Procedures,” March 4, 2021, at https://www.dni.gov/files/ICIG/Documents/Publications/Reports/2021/IC%20IG%205333-6713%20Report.pdf. 10 DODD 7050.06, incorporating Change 1, October 12, 2021, at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/705006p.pdf. 11 Title VII of the IAA for Fiscal Year 1999, P.L. 105-272, §§701-702, codified in 5 U.S.C. §416, 50 U.S.C. §3033, and 50 U.S.C. §3517. , 50 U.S.C. §3033, and 50 U.S.C. §3517.
512 The ICWPA makes no provision for members of the Armed Forces assigned to an IC element; 10 U.S.C. §1034 provides whistleblower protections for members of the Armed Forces, including those who may be 10 U.S.C. §1034 provides whistleblower protections for members of the Armed Forces, including those who may be
assigned to an assigned to an element of the IC. 13 The definition for a matter of “urgent concern” as it pertains to the IC is found in three statutes: 50 U.S.C. §3517(d)(5)(G)(i)(aa), pertaining to the Inspector General of the CIA; 5 U.S.C. §416(a)(2), pertaining to the Inspectors (continued...) ~~element of the IC.~~
Congressional Research Service Congressional Research Service

23

Intelligence Community Whistleblower Provisions

~~classified information, but does not include differences of opinions concerning public~~
~~policy matters;6~~
: A Legislative History (B) a false statement to the Congress, or a willful withholding from Congress (B) a false statement to the Congress, or a willful withholding from Congress ofon an issue 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;714 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.815
In 1998, Congress noted that the prior absence of a statutory IC whistleblower protection In 1998, Congress noted that the prior absence of a statutory IC whistleblower protection
mechanism “may have impaired the flow of information needed by the intelligence committees to mechanism “may have impaired the flow of information needed by the intelligence committees to
carry out oversight responsibilities.”carry out oversight responsibilities.”916 Consequently, the ICWPA defines the formal processes for Consequently, the ICWPA 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:1017
• 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 seven days from receipt to report the complaint to the intelligence employee has seven days from receipt to report the complaint to the intelligence
element’s IG.element’s IG.11
18 • 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.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~~19 • 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.20 • 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 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 Defense for forwarding to the congressional intelligence committees.21 General of intelligence community elements generally; and 50 U.S.C. §3033(k)(5)(G)(i), 50 U.S.C. §3033(k)(5)(G)(i), pertaining to the Inspector General of the Intelligence Community (ICIG). As currently written, the definition is substantively equal across the statutes. The Intelligence Authorization Act (IAA) for Fiscal Year 2023 (Division F of P.L. 117-263) amended the definition of “urgent concern” in all three statutes by no longer specifying that a matter of urgent concern had to involve classified information. In addition, the IAA for FY23 amended the statute concerning the ICIG by specifying that a matter of urgent concern handled by the ICIG no longer had to be “~~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~~
~~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~~
~~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~~
~~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~~
~~on July 25, 2019, was not a matter of urgent concern since it did not constitute “an intelligence activity~~ within the within the
responsibility and authority of the Director of National Intelligence.” 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~~
~~applicable: “The definition of ‘urgent concern’ in the IG Act is not limited to intelligence activities that are specifically~~
~~‘within the responsibility and authority of the’ DNI because the complaint procedures in section 8H are written to 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.~~
~~7 5 U.S.C. §8H(h)(i)(1~~This amendment broadened the scope of what could be reported to the ICIG by enabling a whistleblower to make a protected disclosure about a matter of urgent concern related to an activity of importance to U.S. national security generally, rather than simply concerning a matter under the authority of the DNI. 14 5 U.S.C. §416(a)(2)(B), 50 U.S.C. §3033(k)(5)(G)(ii), 50 U.S.C. §3517(d)(5)(G)(i)()(B), 50 U.S.C. §3033(k)(5)(G)(ii), 50 U.S.C. §3517(d)(5)(G)(i)(IIbb). ).
815 5 U.S.C. § 5 U.S.C. §~~8H(h)(i)(1~~416 (a)(2)(C), 50 U.S.C. §3033(k)(5)(G)(iii), 50 U.S.C. §3517(d)(5)(G)(i)()(C), 50 U.S.C. §3033(k)(5)(G)(iii), 50 U.S.C. §3517(d)(5)(G)(i)(~~III).~~
9I)(cc). 16 P.L. 105-272, § P.L. 105-272, §~~701.~~
10702. 17 The process for submitting a whistleblower complaint in the IC is The process for submitting a whistleblower complaint in the IC is ~~provided in~~codified at 5 U.S.C. 5 U.S.C. ~~App. §8H~~§416(c)(1), 50 U.S.C. §3033(k)(5)(B), and 50 U.S.C. and 50 U.S.C.
~~§3033(k).~~
11§3517(d)(5). 18 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)~~§416(b)(2) and (3). An individual submitting a complaint to an Inspector General of any of these agencies may notify 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. date of submission to the IG. See 5 U.S.C. ~~App. §8H(h).~~
~~12 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).~~
~~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~~
~~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, or, for the four DOD intelligence agencies, to the Secretary of~~
~~Defense for forwarding to the congressional intelligence committees.14~~
§416(h). “Element” is the term used in statute to designate each of the 18 specific agencies or organizations within the intelligence community. 19 5 U.S.C. §416(c)(1), 50 U.S.C. §3033(k)(5)(B), 50 U.S.C. §3517(d)(5)(B)(i). 20 5 U.S.C. §416(d), 50 U.S.C. §3033(k)(2)(B), 50 U.S.C. §3517(d)(5)(C). 21 5 U.S.C. §416(c)(2), 50 U.S.C. §3517(d)(5)(B)(2). The four DOD intelligence agencies are the National Security Agency, the National Reconnaissance Office, the National Geospatial-Intelligence Agency, and the Defense Intelligence Agency. Congressional Research Service 4 Intelligence Community Whistleblower Provisions: A Legislative History • 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.22
• 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.

~~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~~
~~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~~
~~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~~
~~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.~~
~~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~~
~~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 “~~~~shall qualify as a withholding~~
~~statute pursuant to subsection (b)(3) of section 552 of Title 5,” the Freedom of Information Act (FOIA). Subsection~~
~~(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~~
~~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.~~
~~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 Federal Register 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~~
~~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~~
~~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).~~
~~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,~~ ~~Protection of Identities of Certain United States Undercover~~
~~Intelligence Officers, Agents, Informants, and Sources). This provision also includes an exception for disclosure to~~
~~Congress.~~
~~14 The four DOD intelligence agencies are the National Security Agency, the National Reconnaissance Office, the~~
~~National Geospatial-Intelligence Agency, and the Defense Intelligence Agency.~~
~~Congressional Research Service~~

4

~~Intelligence Community Whistleblower Provisions~~

23 • The intelligence element’s IG will notify the employee making the complaint of 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 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 of the actions taken by the intelligence element in handling a complaint in
accordance with provisions in statute are subject to judicial review.accordance with provisions in statute are subject to judicial review.24
Although the ICWPA provides a process for IC whistleblowers—employees and contractors—to 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 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 specific provisions for protecting whistleblowers from reprisal or punishment. Subsequent
legislation that specifically prohibits actions taken in reprisal for an IC employee making a legislation that specifically prohibits actions taken in reprisal for an IC employee making a ~~lawful~~
protected disclosure (a disclosure that adheres to the ICWPA process for making a complaint while disclosure (a disclosure that adheres to the 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.1525 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.” The statute provides a process for a complainant to inform the congressional concern.” The 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 intelligence committees even in the event the relevant IC element determines the complaint does
not constitute a matter of urgent concern.not constitute a matter of urgent concern.1626
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.”1727 The findings acknowledge that employees and contractors may be reluctant to The findings acknowledge that employees and contractors may be reluctant to
report potentially serious problems out of fear of reprisal, impeding the flow of information, and report potentially serious problems out of fear of reprisal, impeding the flow of information, and
complicating Congress’s oversight responsibilities.complicating Congress’s oversight responsibilities.1828 In other words, Congress appears to have In other words, Congress appears to have
wanted to establish a means for a member of the IC to report allegations of wrongdoing, whether wanted to establish a means for a member of the IC to report allegations of wrongdoing, whether
or not the allegations were determined to be matters of urgent concern, so long as the process or not the allegations were determined to be matters of urgent concern, so long as the process
allowed for the protection of classified information. allowed for the protection of classified information.
22 5 U.S.C. §416(e)(1), 50 U.S.C. §3033(k)(5)(D)(i); 50 U.S.C. §3517(d)(5)(D)(i). 23 5 U.S.C. §416(e)(2), 50 U.S.C. §3033(k)(5)(D)(ii); 50 U.S.C. §3517(d)(5)(D)(ii). 24 5 U.S.C. §416(f)-(g); 50 U.S.C. §3033(k)(5)(E)-(F); 50 U.S.C. §3517(d)(5)(E)-(F). 25 P.L. 105-272§701(b)(6). 26 Section 701(b)(6) of H.Rept. 105-780, Conference Report for the Intelligence Authorization Act for Fiscal Year 1999. 27 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. 28 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: A Legislative History 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 (OIGIC), headed by the ~~Intelligence Community Inspector General~~
~~(ICIG)~~ICIG. Section 405(a)(1) of the IAA for FY2010 added a new Section 103H to the National . 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. Security Act of 1947, which was codified as 50 U.S.C. §3033. This provision permits protected ~~§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 from disclosure, but otherwise it lacks the specificity of later whistleblower protection legislation 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 complaintsafety. Once such complaint or informationor information has been receivedhas been received from an employeefrom an employee of the of the
intelligence communityintelligence community~~.19~~
~~The~~— (A) the Inspector General shall not disclose the identity of the employee without 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 ~~consent~~
~~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
undertaken, and this provision shall qualify as a withholding statute pursuant undertaken, and this provision shall qualify as a withholding statute pursuant to to subsection subsection
(b)(3)(b)(3) of sectionof section ~~552 of~~ 552 of title 5 (commonlytitle 5 (commonly ~~known as the~~ known as the “Freedom of Information Act”);“Freedom of Information Act”);20
~~No action constituting a reprisal, or threat of reprisal, for making such complaint or~~
(B) 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 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 disclosed with the knowledge that it was false or with willful disregard for its truth or falsity.29 Section 405(K)(5)(A) of the IAA for FY2010 applies to any IC whistleblower, which includes contractors in addition to federal employees of IC elements.30 Section 425(d) of the IAA for FY2010 ~~in a~~
~~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~~
~~falsity.21~~
~~Section 3033 covers contractors in addition to federal employees of IC elements:~~
~~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~~
~~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~~
~~General.22~~
~~Section 425(d) of the IAA for FY2010 also~~ amended the CIA Act of 1949 to clarify existing amended the CIA Act of 1949 to clarify existing
protections against reprisals involving CIA employees who make protections against reprisals involving CIA employees who make ~~lawful~~protected disclosures to the CIA disclosures to the CIA
Inspector General.Inspector General.23
31 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, Section ICIG and the DNI. Specifically, Section ~~3033~~405 gives the DNI authority to prohibit the ICIG from gives the DNI authority to prohibit the ICIG from
“initiating, carrying out, or completing any investigation, inspection, audit, or review if the “initiating, carrying out, or completing any investigation, inspection, audit, or review if the
Director determines that such prohibition is necessary to protect vital national security interests of Director determines that such prohibition is necessary to protect vital national security interests of
the United States.”the United States.”32 In such situations, the DNI must submit to the congressional intelligence In such situations, the DNI must submit to the congressional intelligence
committees within seven days of committees within seven days of ~~his~~such determination a statement explaining the reasons. determination a statement explaining the reasons.33 The DNI The DNI
must provide a copy to the ICIG, who must provide a copy to the ICIG, who ~~then may~~may then submit comments on the statement to the submit comments on the statement to the

19 29 50 U.S.C. §3033(g)(3). 50 U.S.C. §3033(g)(3).
~~20 50 U.S.C. §3033(g)(3)(A).~~
~~21 50 U.S.C. §3033(g)(3)(B).~~
2230 Section 405(k)(5)(A) of P.L. 111-259, codified at 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.”
2331 P.L. 111-259, §425(d). The provisions for prohibiting reprisal actions for P.L. 111-259, §425(d). The provisions for prohibiting reprisal actions for ~~lawful~~protected whistleblower disclosures to the whistleblower disclosures to the
CIA Inspector General can be found in 50 U.S.C. §3517(e)(3)(A)-(BCIA Inspector General can be found in 50 U.S.C. §3517(e)(3)(A)-(B). 32 Codified at 50 U.S.C. §3033(f)(1). 33 Codified at 50 U.S.C. §3033(f)(2). ).
Congressional Research Service Congressional Research Service

6 6

Intelligence Community Whistleblower Provisions: A Legislative History

congressional intelligence committees. congressional intelligence committees.2434 The ICIG shall “immediately notify, and submit a report The ICIG shall “immediately notify, and submit a report
to the congressional intelligence committeesto the congressional intelligence committees~~:”25~~
~~ in the event~~ in the event that:”35 • the DNI and ICIG cannot resolve a difference between them;the DNI and ICIG cannot resolve a difference between them;26
~~ the disagreement involves a matter involving~~ 36 • an inspection, audit, or review an inspection, audit, or review of
focuses on any current or former senior any current or former senior ~~intelligence community official;27 or~~
IC official;37 • the matter requires the ICIG to submit a report to the Department of Justice on the matter requires the ICIG to submit a report to the Department of Justice on
possible criminal conduct by a senior intelligence official; possible criminal conduct by a senior intelligence official;~~28 or~~
38 • the ICIG receives notice from the Department of Justice declining or approving the ICIG receives notice from the Department of Justice declining or approving
prosecution of possible criminal conduct of any such official; prosecution of possible criminal conduct of any such official;2939 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, inspection, significant documentary information in the course of an investigation, inspection,
audit or review.audit or review.3040
An IC employee or contractor who has submitted a complaint to the IG may notify any Member 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 member of either committee, of the fact of either congressional intelligence committee, or a staff member of either committee, of the fact
that the employee has made a complaint to the IG and the date of submission.that the employee has made a complaint to the IG and the date of submission.3141 In addition, the In addition, the
DNI must submit to the congressional intelligence committees any report on an investigation, DNI must submit to the congressional intelligence committees any report on an investigation,

24audit, 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.42 34 Another means by which Congress might potentially be prevented from being informed of a complaint involves 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 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 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,” Robert S. Litt, “Unpacking the Intelligence Community Whistleblower Complaint,” Lawfare, September 17, 2019, at , September 17, 2019, at
https://www.lawfareblog.com/unpacking-intelligence-community-whistleblower-complaint. See also Margaret Taylor, https://www.lawfareblog.com/unpacking-intelligence-community-whistleblower-complaint. See also Margaret Taylor,
“The Mysterious Whistleblower Complaint: What is Adam Schiff Talking About,” “The Mysterious Whistleblower Complaint: What is Adam Schiff Talking About,” Lawfare, September 17, 2019, at , September 17, 2019, at
https://www.lawfareblog.com/mysterious-whistleblower-complaint-what-adam-schiff-talking-about. https://www.lawfareblog.com/mysterious-whistleblower-complaint-what-adam-schiff-talking-about.
2535 50 U.S.C. §3033(k)(3)(A). For the 2019 IC whistleblower complaint against President 50 U.S.C. §3033(k)(3)(A). For the 2019 IC whistleblower complaint against President Donald J. Trump, the ICIG provided 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 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 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 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 September 26, 2019, at
httpshttps~~://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-://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.
2636 50 U.S.C. §3033(k)(3)(A)(i). 50 U.S.C. §3033(k)(3)(A)(i).
2737 50 U.S.C. §3033(k)(3)(A)(ii) specifies 50 U.S.C. §3033(k)(3)(A)(ii) specifies the intelligence officials intelligence officials who would be subject to an audit, investigation, or inspection over subject to an audit, investigation, or inspection over
which the DNI and ICIG might disagree, which the DNI and ICIG might disagree, ~~that~~and which would require reporting to Congress would require reporting to Congress, to include current or former to include current or former
intelligence officials appointed by the President or the DNI, or a head of any IC element, including those intelligence officials appointed by the President or the DNI, or a head of any IC element, including those serving in an acting in an acting
capacity. capacity.
2838 50 U.S.C. §3033(k)(3)(A)(iii). 50 U.S.C. §3033(k)(3)(A)(iii).
2939 50 U.S.C. §3033(k)(3)(A)(iv). 50 U.S.C. §3033(k)(3)(A)(iv).
3040 50 U.S.C. §3033(k)(3)(A)(v). 50 U.S.C. §3033(k)(3)(A)(v).
3141 50 U.S.C. §3033(k)(5)(I). This is limited to notification of the fact 50 U.S.C. §3033(k)(5)(I). This is limited to notification of the fact ~~alone~~, and date, of a complaint being made. It differs from a 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)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~~. 42 50 U.S.C. §3033(k)(4). ).
Congressional Research Service Congressional Research Service

7 7

Intelligence Community Whistleblower 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~~: A Legislative History
Presidential Policy Directive (PPD)-19
PPD-19, PPD-19, Protecting Whistleblowers with Access to Classified Information, signed by President , signed by President
Obama on October 10, 2012, provided the first executive branch Obama on October 10, 2012, provided the first executive branch regulatory framework of protections for IC protections for IC
whistleblowers. PPD-19 specifically protects some employees in the IC with access to classified whistleblowers. PPD-19 specifically protects some employees in the IC with access to classified
information from personnel actions takeninformation from personnel actions taken, or threatened to be taken, in in reprisal for making a reprisal for making a ~~lawful~~protected disclosure. disclosure.3343
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.3444
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.35

~~32 50 U.S.C. §3033(k)(4).~~
3345 • 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 protected disclosure. The review process also must provide for the security of classified information involved in a disclosure. 43 Para. F(4) of PPD-19 defines a personnel action as, Para. F(4) of PPD-19 defines a personnel action as,
an appointment, promotion, detail, transfer, reassignment, demotion, suspension, termination, an appointment, promotion, detail, transfer, reassignment, demotion, suspension, termination,
reinstatement, restoration, reemployment, or performance evaluation; a decision concerning pay, 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 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 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 evaluation; a decision to order psychiatric testing or examination; and any other significant change
in duties, responsibilities, or working conditions. (PPD-19, 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-The White House, October 10, 2012, at https://www.opm.gov/our-
inspector-general/whistleblower-protection-information/ppd-19.pdf.) inspector-general/whistleblower-protection-information/ppd-19.pdf.)
PPD-19 otherwise does not define PPD-19 otherwise does not define employee and does not include any reference to IC contractors. To some this was an and does not 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 important omission. In 2013, Edward Snowden, a Booz Allen Hamilton contractor working at the National Security
Agency, went outside official channels Agency, went outside official channels ~~and leaked~~to leak classified documents to the media claiming that official channels 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 ICWPA, provided no protections for someone with his status as a contactor to submit a whistleblowing complaint. The ICWPA,
which provides a which provides a process for submitting a whistleblowing complaint (but does not specify protections against for submitting a 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, 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 (2018, when Congress passed P.L. 115-118 (~~that~~which included Section 110 covered later in this report), that contractors were included Section 110 covered later in this report), that contractors were
also afforded specific also afforded specific ~~protections~~protections from reprisals subsequent to submitting a complaint. For background on from reprisals subsequent to submitting a complaint. For background on
whistleblowing provisions related to Edward Snowden, see Joe Davidson, “No Whistleblower Protections for whistleblowing provisions related to Edward Snowden, see Joe Davidson, “No Whistleblower Protections for
Intelligence Contractors,” Intelligence Contractors,” Washington Post, June 19, 2013, at https://www.washingtonpost.com/politics/, June 19, 2013, at https://www.washingtonpost.com/politics/
federal_government/no-whistleblower-protections-for-intelligence-contractors/2013/06/19/dc3e1798-d8fa-11e2-a9f2-federal_government/no-whistleblower-protections-for-intelligence-contractors/2013/06/19/dc3e1798-d8fa-11e2-a9f2-
42ee3912ae0e_story.html. 42ee3912ae0e_story.html.
3444 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, House, October 10, 2012, at https://www.https://www.~~opm.gov/our-inspector-general/whistleblower-protection-information/ppd-~~
~~19.pdf.~~
35dni.gov/ICIG-Whistleblower/resources/PPD_19.pdf. 45 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.
Congressional Research Service Congressional Research Service

8 8

Intelligence Community Whistleblower 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.~~
: A Legislative History • Requires, Requires, as part of the review process, part of the review process, that the IC element the IC element ~~Inspector General to~~inspector general
determine whether a personnel action was taken in reprisal for a determine whether a personnel action was taken in reprisal for a ~~lawful~~protected
disclosure. The IGdisclosure. The IG ~~then may~~ may then make recommendations for corrective action in the make recommendations for corrective action in the
event of a determination that a violation took place. event of a determination that a violation took place.
• Requires that the agency head “shall carefully consider the findings of and Requires that the agency head “shall carefully consider the findings of and
actions recommended by the agency Inspector General.” The agency head does actions recommended by the agency Inspector General.” The agency head does
not have to accept an IG’s recommendation for corrective action. 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 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 that permits employees to appeal actions involving eligibility for access to
classified information that are alleged to be in violation of prohibitions against classified information that are alleged to be in violation of prohibitions against
retaliation for making retaliation for making ~~lawful~~protected disclosures. 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.36 • Provides for a three-member External Review Panel, chaired by the ICIG, for an employee claiming reprisal and who has exhausted all other review processes. The ICIG has the discretion whether to convene an External Review Panel, which, if convened, shall complete a review of the claim within 180 days.46
Title VI of the Intelligence Authorization Act (IAA) for
Fiscal Year 2014
Title VI of the FY2014 IAA (P.L. 113-126), enacted on July 7, 2014, codified Title VI of the FY2014 IAA (P.L. 113-126), enacted on July 7, 2014, codified ~~provisions of~~protections in PPD- PPD-
19 (19 (at 50 U.S.C. §3234) 50 U.S.C. §3234) ~~and provided~~including the first expansive statutory protections for the first expansive statutory protections for ~~most~~ IC IC
whistleblowers against personnel or security clearance actions made in reprisal for protected whistleblowers against personnel or security clearance actions made in reprisal for protected
disclosures.disclosures.3747
Section 601 of Title VI protects IC Section 601 of Title VI protects IC federal employee whistleblowers from any personnel action committed or whistleblowers from any personnel action committed or
omitted in retaliation for a omitted in retaliation for a ~~lawful~~protected disclosure. disclosure.3848 This protection includes a This protection includes a ~~lawful~~protected disclosure to the disclosure to the
DNI (or any employees designated by the DNI for such purpose), the ICIG, the head of the DNI (or any employees designated by the DNI for such purpose), the ICIG, the head of the
employing agency (or an employee designated by the head of that agency for such purpose), or employing agency (or an employee designated by the head of that agency for such purpose), or

36the appropriate inspector general of the employing agency. Moreover, Section 601, unlike PPD-19, explicitly allows protected disclosures to be made to “a 46 The Directive pertains to all elements of the IC except the Federal Bureau of Investigation (FBI). See PPD-19 Para The Directive pertains to all elements of the IC except the Federal Bureau of Investigation (FBI). See PPD-19 Para F
~~(3).~~
37C. 47 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).
3848 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).
Congressional Research Service Congressional Research Service

9 9

Intelligence Community Whistleblower Provisions: A Legislative History

~~the appropriate inspector general of the employing agency. Moreover, Section 601, unlike PPD-~~
~~19,~~ ~~explicitly allows protected disclosures to be made to “a~~ congressional intelligence committee, congressional intelligence committee,
or a member of a congressional intelligence committee….”or a member of a congressional intelligence committee….”3949 Section 601 Section 601 ~~and 602 of~~ Title VI Title VI
~~make~~makes no specific mention of related protections for contractors. no specific mention of related protections for contractors.
A A ~~lawful~~protected disclosure is defined as a disclosure that an IC employee whistleblower reasonably 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 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 waste of funds, an abuse of authority, or substantial and specific danger to public health and
safety.”safety.”50
Section 602 of Title VI provides protections against retaliatory revocation of the security Section 602 of Title VI provides protections against retaliatory revocation of the security
clearance of a covered government employee whistleblower for making a clearance of a covered government employee whistleblower for making a ~~lawful~~protected disclosure disclosure.40 51 It It
also requires the development of also requires the development of appeal policies and procedures for any decision affecting a policies and procedures for any decision affecting a
whistleblower’s security clearance that the whistleblower alleges is in reprisal for having made a whistleblower’s security clearance that the whistleblower alleges is in reprisal for having made a
protected disclosure. This provision also enables the whistleblower to retain his/her current protected disclosure. This provision also enables the whistleblower to retain his/her current
employment status in the government, pending the outcome of the appeal.employment status in the government, pending the outcome of the appeal.4152 The law does not The law does not
permit judicial review, nor does it provide a private right of action.permit judicial review, nor does it provide a private right of action.42
53 Like Section 601, Section 602 of Title VI does not describe protections for contractors. 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., provides IC implementing guidance for PPD-19.54 ICD-120 provides ICD-120 provides
protections against reprisals involving (1) personnel actions (as defined by PPD), and (2) access 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 to classified information. ICD-120 protections involving personnel actions do not apply to
~~Members~~members of the Armed Forces or contractors. The protections governing access to classified 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 information, however, do apply to both contractors and members of the Armed Forces. ICD-120
provisions include the following: provisions include the following:
~~ Protections~~• protections from reprisal involving a personnel action against the IC employee from reprisal involving a personnel action against the IC employee
making a protected disclosure. making a protected disclosure.43
~~ Protections~~55 • protections from reprisal for a protected disclosure that could affect an IC from reprisal for a protected disclosure that could affect an IC
whistleblower’s eligibility for access to classified information. whistleblower’s eligibility for access to classified information.44
~~ 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~~
~~protected disclosure.45~~

3956 49 50 U.S.C. §3234(b). The April 29, 2016, update to ICD-120 conformed with this section by also allowing protected 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. disclosures to be made to the congressional intelligence committees or their Members.
4050 Section 601(b)(1)-(2) of P.L. 113-126, codified in 50 U.S.C. §3234(b)(1)(A)-(B). 51 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.
4152 50 U.S.C. §3341(b)(7 50 U.S.C. §3341(b)(7)(A). ).
4253 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.
4354 Intelligence Community Directive (ICD)-120, Intelligence Community Whistleblower Protection, at https://www.odni.gov/files/ICIG/Documents/Hotline/Legal%20Docs/Intelligence%20Community%20Whistleblower%20Protection.pdf. 55 The ICD-120 provision protecting against personnel actions made in retaliation for a The ICD-120 provision protecting against personnel actions made in retaliation for a ~~lawful~~protected disclosure covers all disclosure covers all
elements of the IC with the specific exception of the FBI. See ICD-120(E)(1)(d), atelements of the IC with the specific exception of the FBI. See ICD-120(E)(1)(d), at https://www.dni.gov/files/https://www.dni.gov/files/
~~documents/ICD/ICD%20120%20-%20IC%20Whistleblower%20Protection%20(29%20Apr%202016).pdf.~~
44documents/ICD/ICD-120-IC-Whistleblower-Protection-2016-04-29.pdf. 56 “Employee” is defined to include a person “employed by, detailed or assigned to” an IC element including members “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~~
~~Congressional Research Service~~

10

~~Intelligence Community Whistleblower Provisions~~

~~ Provision~~ Congressional Research Service 10 Intelligence Community Whistleblower Provisions: A Legislative History • 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 protected disclosure.57 • provision for an employee alleging a reprisal who has exhausted the internal 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.ICIG.46
~~ A~~58 • a requirement for IC-wide communications and training on whistleblower requirement for IC-wide communications and training on whistleblower
protections. protections.4759 • a provision for an ICIG-chaired External Review Panel, consistent with the provision for such a panel in PPD-19.60
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.retaliation for protected communications by members of the Armed Forces.4861 The Office of the 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.elements.4962 Section 1034—unlike the ICWPA, which makes no mention of its applicability to the 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 1034 protects 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; Members of Congress; an Inspector General;5063 a member of a DOD audit, 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; Forces making a protected communication;51

64 57 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 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 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 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 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]
4658 ICD-120(G)(1)(a). ICD-120(G)(1)(a).
4759 ICD-120(D)(1)(a). ICD-120(D)(1)(a).
4860 ICD-120(G). 61 This statute uses the term This statute uses the term communication instead of instead of disclosure. .
~~49 See~~ 62 See “Military Whistleblower Protections” at the Office of the Director of National Intelligence, “What Are My Protections?” at https://www.dni.gov/ICIG-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.
5063 10 U.S.C. §1034(a)(1) provides that no person may restrict a member of the Armed Forces from making a 10 U.S.C. §1034(a)(1) provides that no person may restrict a member of the Armed Forces from making a ~~lawful~~
~~disclosure~~protected communication to a Member of Congress or to an Inspector General. to a Member of Congress or to an Inspector General.
5164 10 U.S.C. §1034(b)(2)(A) states the following: (continued...) ~~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~~
~~shall include any action prohibited by paragraph (1), including any of the following:~~
~~(i) The threat to take any unfavorable 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~~
~~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~~
~~superior had actual knowledge) taken by one or more subordinates against a member.~~
Congressional Research Service Congressional Research Service

11 11

Intelligence Community Whistleblower Provisions: A Legislative History •

 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;protected communication;5265
• 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 communication to provide periodic updates to ~~Congress,~~ the whistleblower, the the whistleblower, the
Secretary of Defense, and the relevant service;Secretary of Defense, and the relevant service;5366 and 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.staffs of Inspectors General on the conduct of such investigations.5467
Legislation to Address Perceived Gaps in Protections for
IC Contractors
~~Efforts to cover contractors in IC whistleblower protection legislation have been inconsistent. The~~
~~ICWPA, 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~~
~~2014.55 Three subsequent efforts in Congress to address a perceived gap in contractor coverage~~
~~culminated on January 19, 2018, when Congress passed P.L. 115-118, the Foreign Intelligence~~
~~Surveillance Reauthorization Act of 2017.~~
Originally, IC whistleblower legislation did not cover contractors. To address this perceived gap, Congress included in P.L. 115-118, the Foreign Intelligence Surveillance Reauthorization Act of 2017, protections for contractors similar to those for IC federal employees under Title VI of the IAA for FY2014 (P.L. 113-126). Congress, through 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~~
~~protections for IC contractor whistleblowers.56 Section 110 amended existing whistleblower~~
~~protections to enable IC contractors 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~~
~~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~~
~~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.~~
~~Section 110 provides protections for IC contractors making a lawful complaint against any~~
~~retaliatory personnel action involving an appointment, promotion/demotion, disciplinary or~~
~~corrective action, detail, transfer or reassignment, suspension, termination, reinstatement,~~
~~performance evaluation, decisions concerning pay, benefits, awards, education, or training. The~~
~~protections extend to lawful complaints involving~~

~~(v) The conducting of a retaliatory investigation of a member.~~
~~52 10 U.S.C. §1034(c)(4)(E).~~
~~53 10 U.S.C. §1034(e)(3)(A).~~
54Community,” enabled IC contractors to make disclosures while being protected against any retaliatory personnel action or retaliatory revocation of security clearances.68 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 under Section 3234 of Title 50, U.S. Code, as amended.69 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: (i) The threat to take any unfavorable 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 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 superior had actual knowledge) taken by one or more subordinates against a member. (v) The conducting of a retaliatory investigation of a member. 65 10 U.S.C. §1034(c)(4)(E). 66 10 U.S.C. §1034(e)(3)(A). 67 10 U.S.C. §1034, note (“Uniform Standards for Inspector General Investigations of Prohibited Personnel Actions and 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.~~
5668 P.L. 115-118, §110, codified in 50 U.S.C. §3234(c). 69 See P.L. 115-118, §110 P.L. 115-118, §110(b)(1)-(5). Congressional Research Service 12 Intelligence Community Whistleblower Provisions: A Legislative History .
~~Congressional Research Service~~

12

~~Intelligence Community Whistleblower 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~~
~~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~~
~~the FBI, the Intelligence Branch—similar to the protections for IC employees and contractors~~
~~under Section 3234 of Title 50, U.S. Code, as amended.58~~
~~Section 110 also amended Section 3341(j) of Title 50, U.S. Code, to include protections for IC~~
~~contractors who make lawful whistleblower disclosures against retaliatory revocation of their~~
~~security clearances.~~
~~Resources to Enhance Whistleblower Investigations~~
~~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~~
~~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~~
~~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~~
~~intended to address an underfunded capability in order to enable responsive follow-up on~~
~~whistleblower complaints.59~~
Issues Raised by the IC Whistleblower Complaint of
August 2019
The August 2019 whistleblower complaint (hereafter referred to as the 2019 whistleblowing The August 2019 whistleblower complaint (hereafter referred to as the 2019 whistleblowing
complaint) that led to the first impeachment of President Trump highlighted some differences in complaint) that led to the first impeachment of President Trump highlighted some differences in
how officials responsible for handling IC complaints interpret existing IC whistleblowing how officials responsible for handling IC complaints interpret existing IC whistleblowing
statutes. 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 president to initiate an investigation into then-presidential candidate Joseph R. the Ukrainian president to initiate an investigation into then-presidential candidate Joseph R.
Biden and his son. According to allegations, President Trump hoped the investigation would Biden and his son. According to allegations, President Trump hoped the investigation would
enhance his prospects for reelection.enhance his prospects for reelection.6070
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.whistleblowing statute, that it appeared credible and was a matter of urgent concern.~~61 The ICIG~~

~~57 50 U.S.C. §3234(c)(1)(A)-(B). Unlike IC agency employees, who are protected from reprisal for disclosures of~~
~~“mismanagement,” contractor employees are protected for disclosures of “gross mismanagement.” See 50 U.S.C.~~
~~§3234(b).~~
~~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,~~
~~Amendment Offered by Mr. Holt, pp. H5466-H5467, at https://www.congress.gov/congressional-record/2014/06/18/~~
~~house-section/article/H5454-2.~~
~~60 Zachary B. Wolf and Sean O’Key, “Trump-Ukraine Impeachment Inquiry Report, Annotated,” CNN, December 3,~~
~~2019, at https://www.cnn.com/interactive/2019/12/politics/trump-ukraine-impeachment-inquiry-report-annotated/.~~
61 Office of the Inspector General of the Intelligence Community Michael Atkinson Letter to the Acting Director of
~~Congressional Research Service~~

13

~~Intelligence Community Whistleblower Provisions~~

71 The ICIG supported his determination in a statement in which he indicated that the President’s phone call 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.”enduring challenge and a top priority for the IC.”6272 The ICIG cited as well the relevant sections of 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.”intelligence activities directed against the United States.”63
73 • 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.”threat to the national security and foreign policy of the United States.”6474
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.president was subject to executive privilege.6575 According to the acting DNI’s congressional 70 Zachary B. Wolf and Sean O’Key, “Trump-Ukraine Impeachment Inquiry Report, Annotated,” CNN, December 3, 2019, at https://www.cnn.com/interactive/2019/12/politics/trump-ukraine-impeachment-inquiry-report-annotated/. 71 Office of the Inspector General of the Intelligence Community Michael Atkinson Letter to the Acting Director of ~~According to the acting DNI’s congressional~~
~~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~~
~~days of receiving it, as would have been required for typical complaints governed by the IC~~
~~whistleblowing statutes.66~~
~~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:~~
~~ 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~~
~~involved the President and not a member of the IC; and~~
~~ that the complaint was unrelated to “the funding, administration, or operation of~~
~~an intelligence activity under the authority of the Director of National~~

National Intelligence Joseph Maguire, August 26, 2019, p. 5, at https://www.documentcloud.org/documents/6442986-, 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). National-Security-Archive-Doc-05-Temporary. The relevant statute is 50 U.S.C. §3033(k)(5)(B).
6272 Quoted from 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.
6373 Ibid., p. 4. Ibid., p. 4.
6474 Ibid. For E.O. 13848, see https://www.federalregister.gov/documents/2018/09/14/2018-20203/imposing-certain- 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.
6575 See 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-intelligence-maguire-testifies-whistleblower-~~
~~complaint.~~
~~66 Ibid.~~
~~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/~~
~~1205711/download.~~
~~Congressional Research Service~~

14

~~Intelligence Community Whistleblower Provisions~~

~~Intelligence.”68~~(continued...) Congressional Research Service 13 Intelligence Community Whistleblower Provisions: A Legislative History 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 days of receiving it, as would have been required for typical complaints governed by the IC whistleblowing statutes.76 On September 3, 2019, the Department of Justice Office of Legal Counsel (OLC), responding to a request by the General Counsel of the IC, issued an opinion on the complaint.77 The opinion outlined two fundamental differences with 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 involved the President and not a member of the IC; and • that the complaint was unrelated to “the funding, administration, or operation of an intelligence activity under the authority of the Director of National Intelligence.”78 The OLC suggested that, since the alleged wrongdoing did not 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.investigate the complaint’s credibility.6979
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.”community.”7080 Accordingly, the OLC referred the complaint to the DOJ’s Criminal Division for 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”).(“Investigation of Crimes Involving Government Officers and Employees”).7181
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 then-ICIG, Michael Atkinson, stated that the acting DNI’s Committee on Intelligence, the then-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 decision not 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.even complaints that were deemed not to be matters of urgent concern were forwarded.~~72 The~~
~~acting DNI’s decision enabled the complainant to contact the committees directly “in an~~
~~authorized and protected manner.”73~~
~~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.74~~

6882 The 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-intelligence-maguire-testifies-whistleblower-complaint. 76 Ibid. 77 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/1205711/download. 78 Ibid. The opinion cited the definition of “urgent concern” in 50 U.S.C. §3033(k)(5)(G)(i). Ibid. The opinion cited the definition of “urgent concern” in 50 U.S.C. §3033(k)(5)(G)(i).
6979 Ibid., p. 10. Ibid., p. 10.
7080 Ibid., p. 5. Ibid., p. 5.
7181 Ibid., p. 2. The DOJ indicated the Criminal Division terminated its investigation in September 2019 after making a 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.
7282 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
(continued...) Congressional Research Service 14 Intelligence Community Whistleblower Provisions: A Legislative History acting DNI’s decision enabled the complainant to contact the committees directly “in an authorized and protected manner.”83 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.84 117th Congress: Intelligence Authorization Act for Fiscal Year 2022 The Intelligence Authorization Act for Fiscal Year 2022 (Division X of the Consolidated Appropriations Act for Fiscal Year 2022 (P.L. 117-103) (IAA for FY2022) included several provisions to address inconsistent language in the different intelligence community whistleblowing statutes, add clarity to the process for making a protected disclosure, and underscore the independence of inspectors general. Selected Provisions Harmonization of Language 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 prohibited personnel practices to make the text consistent with the text of prohibitions in PPD-19 and Section 101 of the Civil Service Reform Act of 1978 (P.L. 95-454).85 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 protected 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;86 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.
7383 See 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_-, September 6, 2019, at https://intelligence.house.gov/uploadedfiles/20190909_-
_ic_ig_letter_to_hpsci_on_whistleblower.pdf: _ic_ig_letter_to_hpsci_on_whistleblower.pdf:
The ICIG has on occasion in the past determined that, for a variety of reasons, disclosures 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 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 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.… determination and the complainant’s information to the congressional intelligence committees.…
That past practice permitted complainants in the Intelligence Community to contact the That past practice permitted complainants in the Intelligence Community to contact the
congressional intelligence committees directly, in an authorized and protected manner, as intended congressional intelligence committees directly, in an authorized and protected manner, as intended
by the urgent concern statute. (p. 2) by the urgent concern statute. (p. 2)
7484 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 Admiral Maguire’s complete testimony at 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~~https://www.c-span.org/video/?464509-1/acting-director-national-intelligence-maguire-testifies-whistleblower-complaint. 85 The relevant provisions of P.L. 95-454, §101 are codified at 5 U.S.C. §2302(b)(8). 86 This provision of P.L. 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~~
117-103 amended 50 U.S.C. §3234(b) and (c)(1), pertaining to IC element employees and (continued...) Congressional Research Service 15 Intelligence Community Whistleblower Provisions: A Legislative History • Amended Title 50 prohibited personnel practices by specifying that the President Amended Title 50 prohibited personnel practices by specifying that the President
enforce prohibitions against reprisals (including the revocation of security enforce prohibitions against reprisals (including the revocation of security
clearances) for a whistleblower making a clearances) for a whistleblower making a ~~lawful~~protected disclosure “consistent ... with disclosure “consistent ... with
the policies and procedures used to adjudicate alleged violations” of an employee the policies and procedures used to adjudicate alleged violations” of an employee
or contractor’s right to make a or contractor’s right to make a ~~lawful~~protected disclosure disclosure ~~that are~~as referenced in the Civil referenced in the Civil
Service Reform Act of 1978;Service Reform Act of 1978;7787 and and
• Established consistency with respect to language: In two provisions describing Established consistency with respect to language: In two provisions describing
the basis for making a the basis for making a ~~lawful~~protected disclosure, the qualifier “gross mismanagement” is disclosure, the qualifier “gross mismanagement” is
simplified to “mismanagement” to ensure consistency with the use of simplified to “mismanagement” to ensure consistency with the use of
“mismanagement” in other IC whistleblowing-related statutes.“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~~

88 • Codified in 50 U.S.C. §3236 the external review panels that were initially established in PPD-19 and ICD-120. Employee Rights Concerning Security Clearance Decisions
The IAA for FY2022 The IAA for FY2022 ~~amends~~amended Title 50 provisions governing intelligence element decisions to Title 50 provisions governing intelligence element decisions to
revoke security clearances. The amended revoke security clearances. The amended ~~provision allows for the suspension (or “tolling”~~provisions allow for the tolling (or delaying) of the ) of the
90-day time limit for an employee to appeal an IC element eligibility decision if the employee 90-day time limit for an employee to appeal an IC element eligibility decision if the employee
provides “substantial credible evidence” provides “substantial credible evidence” as to why the employee why the employee ~~could not meet the statutory time~~
~~limit and why its enforcement would be unfair.79~~did not timely initiate the appeal and why enforcement of the time limit would be unfair.89
Officials Authorized to Receive a ~~Lawful~~Protected Disclosure
The IAA for FY2022 The IAA for FY2022 ~~amends~~amended provisions governing recipients of a provisions governing recipients of a ~~lawful~~protected disclosure by adding disclosure by adding
language that an employee can make a language that an employee can make a ~~lawful~~protected disclosure to a supervisor in the employee’s direct disclosure to a supervisor in the employee’s direct
chain of command, or a supervisor of the employing or contracting agency up chain of command, or a supervisor of the employing or contracting agency up to and~~to an~~ including the including the
head of the employing or contracting agency.head of the employing or contracting agency.8090
Independence of Inspectors General
The IAA for FY2022 The IAA for FY2022 ~~amends~~amended provisions governing IC whistleblowing adjudication by specifically designating the IC whistleblowing adjudication by specifically designating the
ICIG or Inspector General of the IC element to whom a whistleblower makes a complaint as 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 “having sole authority to determine whether a complaint or ~~information~~information … is a matter of urgent is a matter of urgent
concern.... ”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.~~ 91 Issues for Congress An IC whistleblower, by An IC whistleblower, by
definition, is someone who reports to an appropriate authority, in a manner that protects classified 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 information, a matter the whistleblower reasonably believes to be a serious wrongdoing, flagrant
abuse, or abuse, or a violation of law involving an intelligence activity. A retrospective violation of law involving an intelligence activity. A retrospective ~~analysis~~review of IC of IC
~~whistleblowing legislation, whether passed or not, generally appears to~~ whistleblowing legislation, whether passed or not, generally appears to contractors, respectively. It applies to all statutory IC elements except the FBI’s Intelligence Branch (IB). See 50 U.S.C. §3234(a)(1). 87 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)). 88 These amendments are to 50 U.S.C. §§3341(j)(1)(A)(ii), 3341(j)(1)(B)(ii), and 3234(c)(1)(B). 89 50 U.S.C. §3341(j)(4)(D). 90 50 U.S.C. §§3234(b), 3234(c)(1), 3341(j)(1)(A)(i). 91 50 U.S.C. §§3033(k)(5)(G)(ii) and 3517(d)(5)(G)(ii); and 5 U.S.C. §416 note. Congressional Research Service 16 Intelligence Community Whistleblower Provisions: A Legislative History demonstrate congressional demonstrate congressional
encouragement for potential whistleblowers to report on issues that otherwise may have limited 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 means of oversight because of their classified nature. The circumstances of the 2019
whistleblowing incident whistleblowing incident that led to the first impeachment of President Donald J. Trump exposed a number of areas with the potential to stimulate discussion on exposed a number of areas with the potential to stimulate discussion on
whether existing whether existing ~~legislation~~law meets Congress’s intent to encourage whistleblowers to come forward. A number of these areas have been addressed in subsequent legislation, such as the provision in the IAA for FY2022 that gave the inspectors general of IC elements “sole authority” for determining whether a protected disclosure constitutes a matter of “urgent concern.” In addition, the House Permanent Select Committee on Intelligence (HPSCI), in its version of the IAA for FY2022, considered provisions requiring training and an “Office of Victim and Whistleblower Counsel and Special Victim Investigator” at the CIA to assist whistleblowers who report allegations of sexual harassment and related misconduct.92 This came in the aftermath of whistleblower reports of sexual assault at the agency.93 Congress may consider legislation following up on these remaining issues centered on the following questions: • Should whistleblowers ~~meets Congress’s original intent. These areas include (1) whether~~
~~whistleblowers should~~ have a right to remain anonymous have a right to remain anonymous~~, and, if~~? If so, what, if any, so, what, if any, recourse do recourse do
they have in the event their identity is disclosed against their willthey 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~~

~~Author Information~~

~~Michael E. DeVine~~

~~Analyst in Intelligence and National Security~~

? How would a whistleblower’s anonymity affect the rights and response of the accused? • Are the procedures for making disclosures, including disclosures to Congress, clear, and do they provide for the protection of classified information? • If Congress were to consider legislation requiring IC elements to institute training on appropriate responses to allegations of sexual harassment and related misconduct, should the legislation include support for victim’s reporting allegations? Author Information Michael E. DeVine Analyst in Intelligence and National Security 92 Section 801 of Title VIII of H.R. 3932, the Intelligence Authorization Act for Fiscal Year 2024. 93 See, for example, Daniel Lippman, “House Intel Committee Pushing New Legislation to Help CIA Sexual Assault Victims,” Politico, July 13, 2023, at https://www.politico.com/news/2023/07/13/house-intel-committee-pushing-new-legislation-to-help-cia-sexual-assault-victims-00106104. Congressional Research Service 17 Intelligence Community Whistleblower Provisions: A Legislative History

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
than public understanding of information that has been provided by CRS to Members of Congress in than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material. copy or otherwise use copyrighted material.

Congressional Research Service Congressional Research Service
R45345 R45345 · VERSION 1011 · UPDATED
18 18