The Key Point About Whistleblowers’ First-Hand Knowledge Isn’t The Law, It’s The Shady Regulation Changes

The Key Point About Whistleblowers’ First-Hand Knowledge Isn’t The Law, It’s The Shady Regulation Changes

The problem is not altering the directions to comply with the statute. It is that the instruction suggests the inspector general’s office changed its policy to get Trump.
Margot Cleveland
By

On Monday, the Office of the Inspector General of the Intelligence Community issued a four-page news release seeking to smother concerns of its handling of the recently revealed whistleblower complaint filed against President Trump. Following The Federalist’s reporting last week on the changes to the “urgent concern” whistleblowing form, IG Michael Atkinson’s office has been under fire.

Sean Davis—who broke the story on Friday—reported yesterday that the IG has now acknowledged it modified the form in response to the Trump “whistleblower,” stating: “In the process of reviewing and clarifying those forms, and in response to recent press inquiries regarding the instant whistleblower complaint, the ICIG understood that certain language in those forms and, more specifically, the informational materials accompanying the forms, could be read – incorrectly – as suggesting that whistleblowers must possess first-hand information in order to file an urgent concern complaint with the congressional intelligence committees.”

While ICIG’s admission vindicates a huge story that the mainstream media quickly downgraded to a debunked conspiracy theory, the news release left unanswered the larger question: Had the Inspector General of the Intelligence Community’s office adopted a policy that whistleblower complaints must be supported by first-hand knowledge?

The evidence suggests as much and the news release, rather than providing clarity, obfuscated the question.

“Although the form requests information about whether the Complainant possesses first-hand knowledge about the matter about which he or she is lodging the complaint, there is no such requirement set forth in the statute,” the news release says. But, in fact, the form did more than request information about whether the individual possessed first-hand knowledge: The form emphatically stated “FIRST-HAND INFORMATION REQUIRED.”

The ICIG’s office did, however, accurately note that the Intelligence Community Whistle Protection Act (ICWPA) does not require “first-hand knowledge.” And the ICIG’s office is correct that it “cannot add conditions to the filing of an urgent concern that do not exist in law.” But why then formerly include the directive “first-hand information required?”

Here Atkinson, the current inspector general, rests blame on his predecessor, noting that the form that used that language has been “in place since May 24, 2018,” and that it “went into effect before Inspector General Atkinson entered on duty as the Inspector General of the Intelligence Community on May 29, 2018.”

Then, in an effort to quiet concerns, the news release stated that “since Inspector General Atkinson entered on duty as the Inspector General of the Intelligence Community, the ICIG has not rejected the filing of an alleged urgent concern due to a whistleblower’s lack of first-hand knowledge of the allegations.”

But did Atkinson’s office ever accept and process a whistleblower’s complaint based solely on second-hand information? That is an entirely different question. Given that in the latest reporting period the ICIG transmitted only four ICWPA disclosures to the director of national intelligence and congressional intelligence committees, it seems highly probable that no one has filed a complaint based solely on second-hand gossip, especially since the instructions stated “first-hand information required.” Those without first-hand knowledge, then, would likely either not attempt to file a complaint or, like the instance of the current Trump accuser, would check the box claiming first-hand knowledge even when they had none.

Also unknown is whether Atkinson’s predecessors rejected complaints based on the lack of first-hand knowledge. What we do know, though, is that the ICIG’s office made a conscious choice to include the “first-hand information required” instruction on the May 24, 2018, form.

In the semi-annual report for the period ending March 2018—right before Atkinson took over—the office reported that its IC Whistleblower and Source Protection (ICWSP) program “initiated a holistic review of the IC IG ICWPA processing. This review will identify and implement policies and procedures to ensure the effective and efficient intake, processing, tracking, and transmission of ICWPA disclosures,” the report noted.

Then, six months later, the next report provided details of the review.

During the reporting period, . . . the ICIG implemented new procedures for processing ICWPA submissions, including an internal review process by the ICWPA Working Group.

To increase the effectiveness of the ICIG’s Hotline program, this reporting period the ICIG established the first IC-wide Hotline Working Group to share challenges and best practices with our IC Hotline partners. Participants in the first meeting included Hotline managers from the Offices of Inspector General of the Central Intelligence Agency (CIA), Defense Intelligence Agency (DIA), National Geospatial-Intelligence Agency (NGA), and National Reconnaissance Office (NRO). Participants reviewed their Hotline programs, identifying commonalities and differences regarding the software they use, their referral procedures, who in their respective offices vets complaints, and how they forward complaints to other Inspectors General. The Hotline Working Group intends to meet semiannually to further share their procedures and lessons learned.

The same report stressed the efforts of attorneys in the ICIG’s Office of General Counsel to review policies and procedures to ensure compliance with the law. It was only after these extensive reviews, any related working group sessions, and any oversight by the ICIG’s Office of General Counsel’s office that the “FIRST-HAND INFORMATION REQUIRED” directive made its way onto the form.

If not a statutory requirement, how did that happen? Had that always been the practice? Or what changed? And why the quick change after the charge against Trump became public? And why sneak it in?

Also, of concern: Did the general counsel’s office approve that language, and on what basis? Maybe the general counsel’s office had a plausible basis for interpreting the ICWPA as granting the ICIG’s office discretion to establish screening mechanisms to limit abusive and fraudulent complaints. If so, then the change in forms is even more troubling. (Congress should address this issue, in any event, to ensure speculation and hearsay do not hamper the important work of investigating misconduct.)

Frankly, at the end of the day, the problem is not altering the directions to comply with the statute. It is that the instruction suggests that the ICIG’s office changed its policy to get Trump. The attempt to hide the modification of the form only strengthens that concern, as does Atkinson’s unreasoned conclusion that the complaint involved an “urgent concern,” and was credible—notwithstanding the numerous errors.

Nothing Atkinson’s press office said in the news release assuages that alarm: We still do not know how the ICIG’s office screened complaints in the past that were based solely on second-hand information.

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame. The views expressed here are those of Cleveland in her private capacity.
Photo Di Michael Vadon - Opera propria, CC BY-SA 4.0, Collegamento

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