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

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

address the process for making protected disclosures and identify whistleblower protections for
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
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,
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
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
address perceived gaps in protections for IC contractors. Other provisions in Title 10 of the U.S. Code, along with DOD
implementing guidance, provide protections for members of the Armed Forces, including those assigned to elements of the
IC.
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
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 identity is disclosed against their will; (2) whether procedures provide potential
whistleblowers clear direction on how to approach Congress with a protected disclosure; (3) whether the text of the various
IC-related whistleblower statutes is clear and consistent as they relate to each other; and (4) the final authority for making
determinations of what constitutes a matter of “urgent concern.”
Since that time, Congress has taken steps to provide greater clarity and consistency to existing whistleblower legislation. The
Intelligence Authorization Act for Fiscal Year 2022 (Division X of P.L. 117-103), included, for example, a provision giving
the Inspector General of the Intelligence Community (ICIG) and Inspectors General of any IC element sole authority to
determine whether a lawful disclosure constitutes a matter of “urgent concern.”
Effective whistleblowing protections are intended to instill confidence in the integrity and comprehensiveness of the process
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
that is also intended to protect classified information. Conversely, this line of reasoning also suggests a lack of confidence
can increase the chances of wrongdoing going unreported or of classified information being compromised through an
employee making a complaint outside of proper channels.

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Intelligence Community Whistleblower Provisions

Introduction
Intelligence Community (IC) whistleblowers are employees or contractors working in any of the
statutory elements of the IC who disclose reasonable beliefs of a violation of law, rule, or
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
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
that whistleblowing can help ensure an ethical and safe working environment, and enable timely
responses for corrective action.1
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
information. The Director of National Intelligence (DNI) whistleblowing policy and guidance are
publicly available and specifically address whistleblower processes and protections for IC
contractors, members of the Armed Forces, and federal employees.2 Some proponents for greater
transparency in the IC, however, have believed the IC’s internal processes are not as clear as they
could be, and lack the transparency necessary to provide prospective whistleblowers confidence
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.
IC whistleblower protections have evolved in response to perceptions of gaps that some believed
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.
Presidential Policy Directive (PPD)-19, signed in 2012, provided the first specific protections in
response to perceptions that IC whistleblowers remained vulnerable to reprisal actions for making
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.
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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 IC whistleblowing statutes could be interpreted.
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.”3 In addition,
there was informal discussion over whether the statute should provide comprehensive protections
against disclosure of a whistleblower’s identity. The Intelligence Authorization Act for Fiscal
Year 2022 (Division X of P.L. 117-103) has addressed some of the concerns raised by the 2019
whistleblowing incident.
IC whistleblower laws are codified in four separate statutes: the Inspector General Act of 1978, as
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),4 as amended, is
intended to assist whistleblowers in the IC who are specifically excluded from the Whistleblower
Protection Act of 1989, which applies to federal employees outside of the IC who work in an
unclassified environment. 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
of 1978 to enable an IC government employee or contractor “who intends to report to Congress a
complaint or information with respect to an urgent concern” to report to the Inspector General
(IG) of the employee’s or contractor’s IC agency. The ICWPA, as amended, defines an “urgent
concern” as
(A) a serious or flagrant problem, abuse, violation of law or executive order, or deficiency
relating to the funding, administration, or operations of an intelligence activity involving

3 A provision in the Intelligence Authorization Act for Fiscal Year 2022 resolved the uncertainty over the independence
of the ICIG or IC element inspector general’s authority. The act amended 50 U.S.C. §§3033(k)(5)(G) and
3517(d)(5)(G); and 5 U.S.C. App. §8H to provide this individual “sole authority” to decide whether a complaint is a
matter of urgent concern.
4 Title VII of the Intelligence Authorization Act for Fiscal Year 1999, P.L. 105-272, §§701-702, codified in 5 U.S.C.
App. §8H, 50 U.S.C. §3033, and 50 U.S.C. §3517.
5 10 U.S.C. §1034 provides whistleblower protections for members of the Armed Forces, including those who may be
assigned to an element of the IC.
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classified information, but does not include differences of opinions concerning public
policy matters;6
(B) a false statement to the Congress, or a willful withholding from Congress of an issue
of material fact relating to the funding, administration, or operation of an intelligence
activity;7 or
(C) an action … constituting reprisal or threat of reprisal … in response to an employee’s
reporting of an urgent concern.8
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
carry out oversight responsibilities.”9 Consequently, the ICWPA defines the formal processes for
submitting complaints to ensure the protection of any classified information:10
 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
element’s IG.11
 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
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 50 U.S.C. §3033(k)(5)(G)(i), Inspector General of the Intelligence Community,” differs in its
definition only in its reference to the DNI’s authority. An “urgent concern” is:
A serious or flagrant problem, abuse, violation of law or executive order, or deficiency relating to
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
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)(B), 50 U.S.C. §3033(k)(5)(G)(ii), 50 U.S.C. §3517(d)(5)(G)(i)(II).
8 5 U.S.C. §8H(h)(i)(1)(C), 50 U.S.C. §3033(k)(5)(G)(iii), 50 U.S.C. §3517(d)(5)(G)(i)(III).
9 P.L. 105-272, §701.
10 The process for submitting a whistleblower complaint in the IC is provided in 5 U.S.C. App. §8H and 50 U.S.C.
§3033(k).
11 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.
App. §8H(a)(3). An individual submitting a complaint to an Inspector General of any of these agencies may notify a
Member of either of the congressional intelligence committees of the fact that a complaint has been submitted and the
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).
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 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
 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
either or both of the congressional intelligence committees directly.
 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,
providing notice of his/her intent to contact the congressional intelligence
committees directly. Moreover, the complainant must follow the head of the
intelligence element’s guidance on security and the protection of classified
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.
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 The intelligence element’s IG will notify the employee making the complaint of
any action involving the complaint within three days of taking the action. None
of the actions taken by the intelligence element in handling a complaint in
accordance with provisions in statute are subject to judicial review.
Although the ICWPA provides a process for IC whistleblowers—employees and contractors—to
report complaints to Congress securely via the IG of the whistleblower’s IC agency, it offers no
specific provisions for protecting whistleblowers from reprisal or punishment. Subsequent
legislation that specifically prohibits actions taken in reprisal for an IC employee making a lawful
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
not adequately protect a whistleblower against adverse personnel action.
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
provides for the protection of classified information.15 Informing Congress was not contingent
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
intelligence committees even in the event the relevant IC element determines the complaint does
not constitute a matter of urgent concern.16
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
Community.”17 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
complicating Congress’s oversight responsibilities.18 In other words, Congress appears to have
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
allowed for the protection of classified information.
Intelligence Authorization Act (IAA) for Fiscal Year 2010
The IAA for FY2010 (P.L. 111-259), included the first general provisions for protection of IC
whistleblowers as part of legislation that established the Office of the Inspector General of the
Intelligence Community (OIGIC), headed by the Intelligence Community Inspector General
(ICIG). Section 405(a)(1) of the IAA for FY2010 added a new Section 103H to the National
Security Act of 1947, which was codified as 50 U.S.C. §3033. Section 3033 permits lawful
disclosures to the ICIG and echoes the ICWPA’s provision protecting the whistleblower’s identity
from disclosure, but otherwise it lacks the specificity of later whistleblower protection legislation
and directives:
The Inspector General [of the Intelligence Community] is authorized to receive and
investigate … complaints or information from any person concerning the existence of an
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.
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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
safety. Once such complaint or information has been received from an employee of the
intelligence community.19
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
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
undertaken, and this provision shall qualify as a withholding statute pursuant to subsection
(b)(3) of section 552 of title 5 (commonly known as the “Freedom of Information Act”);20
No action constituting a reprisal, or threat of reprisal, for making such complaint or
disclosing such information to the Inspector General may be taken by any employee in a
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
protections against reprisals involving CIA employees who make lawful disclosures to the CIA
Inspector General.23
Finally, the FY2010 IAA provides a means for addressing differences that may arise between the
ICIG and the DNI. Specifically, Section 3033 gives the DNI authority to prohibit the ICIG from
“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
the United States.” In such situations, the DNI must submit to the congressional intelligence
committees within seven days of his determination a statement explaining the reasons. The DNI
must provide a copy to the ICIG, who then may submit comments on the statement to the

19 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).
22 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
of the duties of the Inspector General.”
23 P.L. 111-259, §425(d). The provisions for prohibiting reprisal actions for lawful whistleblower disclosures to the
CIA Inspector General can be found in 50 U.S.C. §3517(e)(3)(A)-(B).
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congressional intelligence committees.24 The ICIG shall “immediately notify, and submit a report
to the congressional intelligence committees:”25
 in the event the DNI and ICIG cannot resolve a difference between them;26
 the disagreement involves a matter involving an inspection, audit, or review of
any current or former senior intelligence community official;27 or
 the matter requires the ICIG to submit a report to the Department of Justice on
possible criminal conduct by a senior intelligence official;28 or
 the ICIG receives notice from the Department of Justice declining or approving
prosecution of possible criminal conduct of any such official;29 or
 the ICIG, “after exhausting all possible alternatives,” is unable to obtain
significant documentary information in the course of an investigation, inspection,
audit or review.30
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
that the employee has made a complaint to the IG and the date of submission.31 In addition, the
DNI must submit to the congressional intelligence committees any report on an investigation,

24 Another means by which Congress might potentially be prevented from being informed of a complaint involves
claims of executive privilege. This report does not address this issue, although Presidents have claimed constitutional
authority to review and limit, as necessary, the disclosure of classified or other sensitive information to Congress. See
Robert S. Litt, “Unpacking the Intelligence Community Whistleblower Complaint,” Lawfare, September 17, 2019, at
https://www.lawfareblog.com/unpacking-intelligence-community-whistleblower-complaint. See also Margaret Taylor,
“The Mysterious Whistleblower Complaint: What is Adam Schiff Talking About,” Lawfare, September 17, 2019, at
https://www.lawfareblog.com/mysterious-whistleblower-complaint-what-adam-schiff-talking-about.
25 50 U.S.C. §3033(k)(3)(A). For the 2019 IC whistleblower complaint against President Trump, the ICIG provided
notice to Congress as required by this provision in statute after the DNI informed the ICIG that he was unable to
forward the complaint to Congress upon being informed by the White House Counsel’s Office that much of the
complaint was protected from disclosure by executive privilege. See Opening Statement by Acting Director of National
Intelligence Joseph Maguire before the House Permanent Select Committee on Intelligence, September 26, 2019, at
https://www.dni.gov/index.php/newsroom/congressional-testimonies/item/2048-acting-dni-opening-statement. See also
Acting Director Maguire’s complete testimony at https://www.c-span.org/video/?464509-1/acting-director-national-
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
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
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,
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.
26 50 U.S.C. §3033(k)(3)(A)(i).
27 50 U.S.C. §3033(k)(3)(A)(ii) specifies intelligence officials subject to an audit, investigation, or inspection over
which the DNI and ICIG might disagree, that would require reporting to Congress to include current or former
intelligence officials appointed by the President or the DNI, or a head of any IC element, including those in an acting
capacity.
28 50 U.S.C. §3033(k)(3)(A)(iii).
29 50 U.S.C. §3033(k)(3)(A)(iv).
30 50 U.S.C. §3033(k)(3)(A)(v).
31 50 U.S.C. §3033(k)(5)(I). This is limited to notification of the fact alone of a complaint being made. It differs from a
whistleblower submitting a complaint directly to Congress which is governed by 50 U.S.C. §3033(k)(5)(D)(ii) and 5
U.S.C. App. §8H(d)(2).
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audit, inspection, or review if requested by either the Chair or Vice Chair of the Senate
intelligence committee, or the Chair or Ranking Member of the House intelligence committee.32
Presidential Policy Directive (PPD)-19
PPD-19, Protecting Whistleblowers with Access to Classified Information, signed by President
Obama on October 10, 2012, provided the first executive branch protections for IC
whistleblowers. PPD-19 specifically protects some employees in the IC with access to classified
information from personnel actions taken in reprisal for making a lawful disclosure.33
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
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
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
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
and specific danger to public health or safety.34
PPD-19 also
 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
making a protected disclosure.35

32 50 U.S.C. §3033(k)(4).
33 Para. F(4) of PPD-19 defines a personnel action as,
an appointment, promotion, detail, transfer, reassignment, demotion, suspension, termination,
reinstatement, restoration, reemployment, or performance evaluation; a decision concerning pay,
benefits, or awards; a decision concerning education or training if the education or training may
reasonably be expected to lead to an appointment, reassignment, promotion, or performance
evaluation; a decision to order psychiatric testing or examination; and any other significant change
in duties, responsibilities, or working conditions. (PPD-19, Protecting Whistleblowers with Access
to Classified Information, The White House, October 10, 2012, at https://www.opm.gov/our-
inspector-general/whistleblower-protection-information/ppd-19.pdf.)
PPD-19 otherwise does not define employee 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
Agency, went outside official channels and leaked classified documents to the media claiming that official channels
provided no protections for someone with his status as a contactor to submit a whistleblowing complaint. The ICWPA,
which provides a process 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,
2018, when Congress passed P.L. 115-118 (that included Section 110 covered later in this report), that contractors were
also afforded specific protections from reprisals subsequent to submitting a complaint. For background on
whistleblowing provisions related to Edward Snowden, see Joe Davidson, “No Whistleblower Protections for
Intelligence Contractors,” Washington Post, June 19, 2013, at https://www.washingtonpost.com/politics/
federal_government/no-whistleblower-protections-for-intelligence-contractors/2013/06/19/dc3e1798-d8fa-11e2-a9f2-
42ee3912ae0e_story.html.
34 Presidential Policy Directive (PPD)-19, Protecting Whistleblowers with Access to Classified Information, The White
House, October 10, 2012, at https://www.opm.gov/our-inspector-general/whistleblower-protection-information/ppd-
19.pdf.
35 Adverse personnel actions might include demotion, transfer, termination, suspension, lower performance evaluation
or punitive changes in duties and responsibilities.
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 Requires IC elements to certify to the DNI a process for IC employees to seek a
review of personnel actions the employee believes constitute reprisal for making
a lawful disclosure. The review process also must provide for the security of
classified information involved in a disclosure.
 Requires, part of the review process, the IC element Inspector General to
determine whether a personnel action was taken in reprisal for a lawful
disclosure. The IG then may make recommendations for corrective action in the
event of a determination that a violation took place.
 Requires that the agency head “shall carefully consider the findings of and
actions recommended by the agency Inspector General.” The agency head does
not have to accept an IG’s recommendation for corrective action.
 Requires IC agencies to certify to the DNI that the agency has a review process
that permits employees to appeal actions involving eligibility for access to
classified information that are alleged to be in violation of prohibitions against
retaliation for making lawful disclosures.
 Allows for a whistleblower to request an external review by an IG panel chaired
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
does not have to accept the panel’s recommendation for corrective action.
 Requires the ICIG to report annually to the congressional intelligence committees
the IG determinations and recommendations and IC element head responses to
the determinations and recommendations.
 Requires the executive branch to provide training to employees with access to
classified information (not including contractors or members of the Armed
Forces) regarding protections for whistleblowers.36
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 provisions of PPD-
19 (50 U.S.C. §3234) and provided the first expansive statutory protections for most IC
whistleblowers against personnel or security clearance actions made in reprisal for protected
disclosures.37
Section 601 of Title VI protects IC whistleblowers from any personnel action committed or
omitted in retaliation for a lawful disclosure.38 This protection includes a lawful disclosure to the
DNI (or any employees designated by the DNI for such purpose), the ICIG, the head of the
employing agency (or an employee designated by the head of that agency for such purpose), or

36 The Directive pertains to all elements of the IC except the Federal Bureau of Investigation (FBI). See PPD-19 Para F
(3).
37 The provisions under this legislation cover all IC elements except the Intelligence Branch of the Federal Bureau of
Investigation (FBI/IB). See 50 U.S.C. §3234(a)(2)(B).
38 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
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
significant change in duties, responsibilities or working conditions. See 50 U.S.C. §3234(a)(3).
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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,
or a member of a congressional intelligence committee….”39 Section 601 and 602 of Title VI
make no specific mention of related protections for contractors.
A lawful disclosure is defined as a disclosure that an IC employee whistleblower reasonably
believes evidences a violation of “Federal law, rule or regulation ... or mismanagement, a gross
waste of funds, an abuse of authority, or substantial and specific danger to public health and
safety.”
Section 602 of Title VI provides protections against retaliatory revocation of the security
clearance of a covered government employee whistleblower for making a lawful disclosure.40 It
also requires the development of appeal policies and procedures for any decision affecting 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
employment status in the government, pending the outcome of the appeal.41 The law does not
permit judicial review, nor does it provide a private right of action.42
Intelligence Community Directive (ICD)-120
First signed in 2014, and updated on April 29, 2016, ICD-120, Intelligence Community
Whistleblower Protection, provides IC implementing guidance for PPD-19. ICD-120 provides
protections against reprisals involving (1) personnel actions (as defined by PPD), and (2) access
to classified information. ICD-120 protections involving personnel actions do not apply to
Members of the Armed Forces or contractors. The protections governing access to classified
information, however, do apply to both contractors and members of the Armed Forces. ICD-120
provisions include the following:
 Protections from reprisal involving a personnel action against the IC employee
making a protected disclosure.43
 Protections from reprisal for a protected disclosure that could affect an IC
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

39 50 U.S.C. §3234(b). The April 29, 2016, update to ICD-120 conformed with this section by also allowing protected
disclosures to be made to the congressional intelligence committees or their Members.
40 Section 602 protections against the revocation of security clearances, codified as 50 U.S.C. §3341(j), applies to all
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.
41 50 U.S.C. §3341(b)(7).
42 A private right of action would permit an individual to bring a lawsuit.
43 The ICD-120 provision protecting against personnel actions made in retaliation for a lawful disclosure covers all
elements of the IC with the specific exception of the FBI. See ICD-120(E)(1)(d), at https://www.dni.gov/files/
documents/ICD/ICD%20120%20-%20IC%20Whistleblower%20Protection%20(29%20Apr%202016).pdf.
44 “Employee” is defined to include a person “employed by, detailed or assigned to” an IC element including members
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
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
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 Provision for an employee alleging a reprisal who has exhausted the internal
agency review process to request an External Review Panel chaired by the
ICIG.46
 A requirement for IC-wide communications and training on whistleblower
protections.47
Whistleblower Protections for Members of the Armed Forces
Assigned to the IC
Section 1034 of Title 10, U.S. Code, provides protections against personnel actions taken in
retaliation for protected communications by members of the Armed Forces.48 The Office of the
DNI cites this statute as applicable to members of the Armed Forces assigned to the IC
elements.49 Section 1034—unlike the ICWPA, which makes no mention of its applicability to the
Armed Forces—does not provide a process for making a protected communication that also
protects classified information. Section 1034
 allows members of the Armed Forces to communicate with a Member or
Members of Congress; an Inspector General;50 a member of a DOD audit,
inspection, investigation, or law enforcement organization; any person or
organization in the chain of command; a court-martial proceeding; or any other
organization designated pursuant to regulations or other established
administrative procedures for such communications;
 allows members of the Armed Forces to testify or otherwise participate or assist
in an investigation or proceeding involving Congress or an Inspector General;
 specifies prohibited personnel actions in reprisal for a member of the Armed
Forces making a protected communication;51

employment status while a decision on an appeal is pending. Specifically, this provision requires the Executive Branch
to develop policy and procedures “that permit, to the extent practicable, individuals alleging reprisal for having made a
protected disclosure (provided the individual does not disclose classified information or other information contrary to
law) to appeal any action affecting an employee’s access to classified information and to retain their government
employment status while such challenge is pending.” [emphasis added]
46 ICD-120(G)(1)(a).
47 ICD-120(D)(1)(a).
48 This statute uses the term communication instead of disclosure.
49 See Office of the Director of National Intelligence, “What Are My Protections?” at https://www.dni.gov/ICIG-
Whistleblower/protected.html. See also DOD Directive 7050.06, Military Whistleblower Protection, April 17, 2015 at
https://www.dodig.mil/Portals/48/Documents/Policy/DoDD_7050_06.pdf.
50 10 U.S.C. §1034(a)(1) provides that no person may restrict a member of the Armed Forces from making a lawful
disclosure to a Member of Congress or to an Inspector General.
51 10 U.S.C. §1034(b)(2)(A) states the following:
The actions considered for purposes of this section to be a personnel action prohibited by this subsection
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.
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 enables the DOD to take action to mitigate hardship for an Armed Forces
member following a preliminary finding concerning an alleged reprisal for a
protected communication;52
 requires the inspector general conducting an investigation into a protected
communication to provide periodic updates to Congress, the whistleblower, the
Secretary of Defense, and the relevant service;53 and
 requires the DOD Inspector General to prescribe uniform standards for (1)
investigations of allegations of prohibited personnel actions, and (2) training for
staffs of Inspectors General on the conduct of such investigations.54
Legislation to Address Perceived Gaps in Protections for
IC Contractors
Efforts to cover contractors in IC whistleblower protection legislation 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.
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).
54 10 U.S.C. §1034, note (“Uniform Standards for Inspector General Investigations of Prohibited Personnel Actions and
Other Matters”). The National Defense Authorization Act (NDAA) for Fiscal Year 2017 also required the Comptroller
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
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,
Military Whistleblower Protection. For more on whistleblower protections for the military, see CRS In Focus IF11499,
Protecting Military Whistleblowers: 10 U.S.C. §1034, by Alan Ott.
55 PPD-19 and ICD-120 do not address protections for contractors.
56 P.L. 115-118, §110.
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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
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
statutes.
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
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
enhance his prospects for reelection.60
The ICIG who received the complaint determined within 14 days, as required by the
whistleblowing statute, that it appeared credible and was a matter of urgent concern.61 The 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
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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
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
position on July 19, 2019, and then-DNI Daniel Coats’ statement that “Election security is an
enduring challenge and a top priority for the IC.”62 The ICIG cited as well the relevant sections of
two executive orders (E.O.):
 Section 1.4 of E.O. 12333, United States Intelligence Activities, which states that
the IC “under the leadership of the Director [of National Intelligence]” shall
“collect information concerning and conduct activities to protect against …
intelligence activities directed against the United States.”63
 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
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
threat to the national security and foreign policy of the United States.”64
Upon receiving the complaint from the ICIG, the acting DNI sought the advice of the White
House Counsel’s Office on whether the phone call between President Trump and the Ukrainian
president was subject to executive privilege.65 According to the acting DNI’s congressional
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-
National-Security-Archive-Doc-05-Temporary. The relevant statute is 50 U.S.C. §3033(k)(5)(B).
62 Quoted from Letter from the Inspector General of the Intelligence Community, Michael Atkinson, to the Acting
Director of National Intelligence, Joseph Maguire, August 26, 2019, p. 5 at https://assets.documentcloud.org/
documents/6430413/IG-Letter-Ukraine-Whistleblower.pdf.
63 Ibid., p. 4.
64 Ibid. For E.O. 13848, see https://www.federalregister.gov/documents/2018/09/14/2018-20203/imposing-certain-
sanctions-in-the-event-of-foreign-interference-in-a-united-states-election.
65 See Opening Statement by Acting Director of National Intelligence Joseph Maguire before the House Permanent
Select Committee on Intelligence, September 26, 2019, at https://www.dni.gov/index.php/newsroom/congressional-
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.
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Intelligence.”68 The OLC suggested that, since the alleged wrongdoing did not
involve an intelligence activity, it fell outside the responsibility of the ICIG to
investigate the complaint’s credibility.69
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
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
violation of federal law or other abuse that comes to the attention of a member of the intelligence
community.”70 Accordingly, the OLC referred the complaint to the DOJ’s Criminal Division for
review of possible campaign finance violations in accordance with 28 U.S.C. §535(b)
(“Investigation of Crimes Involving Government Officers and Employees”).71
In a September 6, 2019, letter to the Chair and Ranking Member of the House Permanent Select
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
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

68 Ibid. The opinion cited the definition of “urgent concern” in 50 U.S.C. §3033(k)(5)(G)(i).
69 Ibid., p. 10.
70 Ibid., p. 5.
71 Ibid., p. 2. The DOJ indicated the Criminal Division terminated its investigation in September 2019 after making a
determination that no campaign finance violation had occurred. See Matt Zapotosky and Devlin Barrett, “Justice
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-
investigation-of-trump-phone-call-just-weeks-after-it-began-examining-the-matter/2019/09/25/6f7977ce-dfb5-11e9-
8dc8-498eabc129a0_story.html.
72 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
whistleblowing statutes was a departure from past practice. He cited the “unprecedented” circumstances that he
believed prevented him from doing so. See Opening Statement by Acting Director of National Intelligence Joseph
Maguire before the House Permanent Select Committee on Intelligence, September 26, 2019, at https://www.dni.gov/
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.
73 See Inspector General of the Intelligence Community Michael Atkinson Letter to the Honorable Adam Schiff,
Chairman, and the Honorable Devin Nunes, Ranking Member, of the Permanent Select Committee on Intelligence,
House of Representatives, September 6, 2019, at https://intelligence.house.gov/uploadedfiles/20190909_-
_ic_ig_letter_to_hpsci_on_whistleblower.pdf:
The ICIG has on occasion in the past determined that, for a variety of reasons, disclosures
submitted to the ICIG under the urgent concern statute did not constitute an urgent concern. In
those cases … the DNI nevertheless provided direction to the ICIG to transmit the ICIG
determination and the complainant’s information to the congressional intelligence committees.…
That past practice permitted complainants in the Intelligence Community to contact the
congressional intelligence committees directly, in an authorized and protected manner, as intended
by the urgent concern statute. (p. 2)
74 Opening Statement by Acting Director of National Intelligence Joseph Maguire before the House Permanent Select
Committee on Intelligence, September 26, 2019, at https://www.dni.gov/index.php/newsroom/congressional-
testimonies/item/2048-acting-dni-opening-statement. See also Admiral Maguire’s complete testimony at
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117th Congress: Intelligence Authorization Act for Fiscal Year 2022
On August 4, 2021, the Senate Select Committee on Intelligence (SSCI) introduced S. 2610, the
Intelligence Authorization Act for Fiscal Year 2022 in the Senate. On September 29, 2021, the
House Permanent Select Committee on Intelligence (HPSCI) introduced in the House H.R. 5412,
the House version of the Intelligence Authorization Act for Fiscal Year 2022. By joint agreement,
an amended version of the Intelligence Authorization Act for Fiscal Year 2022, including a
classified annex and Schedule of Authorizations, was included as Division X of the Consolidated
Appropriations Act for Fiscal Year 2022 (P.L. 117-103).
Selected Provisions
Consistency of Language
The 117th Congress has addressed some of the concerns raised by the 2019 whistleblowing
incident with the Intelligence Authorization Act (IAA) for Fiscal Year 2022 (Division X of P.L.
117-103). The IAA for FY2022 amended whistleblower provisions in Title 50, United States
Code, to help ensure consistency (or “harmonization”) in the text of IC-related whistleblower
statutes. Among the changes, the IAA for FY 2022
 Amended Title 50 whistleblowing prohibitions to make the text consistent with
the text of prohibitions in Section 101 of the Civil Service Reform Act of 1978
(P.L. 95-454).75 As amended, Title 50 prohibited personnel practices now include
an IC employer making a threat of a reprisal against an IC employee or
contractor who makes a lawful disclosure that the individual “reasonably
believes” provides evidence of a violation of the law, rule or regulation; or of
mismanagement, a waste of funds, abuse of authority, or a danger to public health
and safety;76
 Amended Title 50 prohibited personnel practices by specifying that the President
enforce prohibitions against reprisals (including the revocation of security
clearances) for a whistleblower making a lawful disclosure “consistent ... with
the policies and procedures used to adjudicate alleged violations” of an employee
or contractor’s right to make a lawful disclosure that are referenced in the Civil
Service Reform Act of 1978;77 and
 Established consistency with respect to language: In two provisions describing
the basis for making a lawful disclosure, the qualifier “gross mismanagement” is
simplified to “mismanagement” to ensure consistency with the use of
“mismanagement” in other IC whistleblowing-related statutes.78

https://www.c-span.org/video/?464509-1/acting-director-national-intelligence-maguire-testifies-whistleblower-
complaint.
75 The relevant provisions of P.L. 95-454, §101 are codified at 5 U.S.C. §2302(b)(8).
76 This provision amends 50 U.S.C. §3234(b) and (c)(1), pertaining to IC element employees and contractors,
respectively. It applies to all statutory IC elements except the FBI’s Intelligence Branch (IB). See 50 U.S.C.
§3234(a)(1).
77 Section 501 of Title V of the IAA for FY2022 amends 50 U.S.C. §§3234(d) and 3341(j) by aligning these statutes
with enforcement policy and procedures referenced in the Civil Service Reform Act of 1978 (5 U.S.C. §2302(b)(8))
that provide the standard by which the President is responsible for enforcing prohibitions against reprisals.
78 These amendments are to 50 U.S.C. §§3341(j)(1)(A)(ii), 3341(j)(1)(B)(ii), and 3234(c)(1)(B).
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Employee Rights Concerning Security Clearance Decisions
The IAA for FY2022 amends Title 50 provisions governing intelligence element decisions to
revoke security clearances. The amended provision allows for the suspension (or “tolling”) of the
90-day time limit for an employee to appeal an IC element eligibility decision if the employee
provides “substantial credible evidence” why the employee could not meet the statutory time
limit and why its enforcement would be unfair.79
Officials Authorized to Receive a Lawful Disclosure
The IAA for FY2022 amends provisions governing recipients of a lawful disclosure by adding
language that an employee can make a lawful disclosure to a supervisor in the employee’s direct
chain of command, or a supervisor of the employing or contracting agency up to an including the
head of the employing or contracting agency.80
Independence of Inspectors General
The IAA for FY2022 amends IC whistleblowing adjudication by specifically designating the
ICIG or Inspector General of the IC element to whom a whistleblower makes a complaint as
“having sole authority to determine whether a complaint or information is a matter of urgent
concern.... ”81
IC Whistleblower Legislation: Looking Ahead
The political context surrounding the whistleblowing incident that led to the first impeachment of
Donald J. Trump has raised discussion on whistleblowing generally. An IC whistleblower, by
definition, is someone who reports to an appropriate authority, in a manner that protects classified
information, a matter the whistleblower reasonably believes to be a serious wrongdoing, flagrant
abuse, or violation of law involving an intelligence activity. A retrospective analysis of IC
whistleblowing legislation, whether passed or not, generally appears to demonstrate congressional
encouragement for potential whistleblowers to report on issues that otherwise may have limited
means of oversight because of their classified nature. The circumstances of the 2019
whistleblowing incident exposed a number of areas with the potential to stimulate discussion on
whether existing legislation meets Congress’s original intent. These areas include (1) whether
whistleblowers should have a right to remain anonymous, and, if so, what, if any, recourse do
they have in the event their identity is disclosed against their will; (2) whether procedures provide
potential whistleblowers clear direction on how to approach Congress with a protected disclosure;
(3) whether the text of the various IC-related whistleblower statutes is clear and consistent as they
relate to each other; and (4) the final authority for making determinations of what constitutes a
matter of “urgent concern.”

79 50 U.S.C. §3341(j)(4)(D).
80 50 U.S.C. §§3234(b), 3234(c)(1), 3341(j)(1)(A)(i).
81 50 U.S.C. §§3033(k)(5)(G) and 3517(d)(5)(G); and 5 U.S.C. App. §8H.
Congressional Research Service

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Intelligence Community Whistleblower Provisions

Author Information

Michael E. DeVine

Analyst in Intelligence and National Security

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Congressional Research Service
R45345 · VERSION 10 · UPDATED
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