Intelligence Community

Members of the United States Intelligence Community strengthen America’s national security and foreign policy objectives. They have a duty to safeguard our democracy from foreign influence and interference. They inform policymakers with apolitical analysis. They speak truth to power. Unfortunately, through an increasingly militarized response to nationwide protests and the politicization of intelligence, this administration could abuse its intelligence apparatus and disrupt our democracy. 

Lawful whistleblowing channels exist for you to report concerns involving violations of laws, rules, or regulations and waste, fraud, or abuse. It is unlawful to retaliate against those who make disclosures through this process. 

These protections are codified by a complex patchwork of policies and statutes. Government Accountability Project attorneys and analysts help Congress reform these laws, serve as experts for fact checkers in the media, and were even recognized by the Intelligence Community Inspector General for our reform advocacy in support of the Center for Protected Disclosures. Our specialty is guiding individuals through these complicated systems to ensure their disclosures make a difference while preserving and exercising their legal protections. 

What to Know Before Blowing the Whistle

Each whistleblower case is unique, requiring an analysis of the facts before a legal strategy is determined. While the following information is neither comprehensive nor should be construed as offering legal advice, it offers some basic guidance on whistleblower rights before reaching out to experts at Government Accountability Project to further assist you. 

What is Whistleblowing?

A whistleblower is an individual who discloses information that he or she reasonably believes evidences a violation of law, rule or regulation; gross mismanagement; a gross waste of funds; abuse of authority; or a substantial and specific danger to public health or safety.

Whistleblower Protections for Intelligence Community (IC) Employees

Intelligence Community (IC) employees and contractors are allowed to lawfully report wrongdoing and receive protection from retaliation. Created to safeguard classified information while allowing oversight from both internal and external federal watchdogs, the system requires workers, whether they be case officers or analysts or support staff, to follow the disclosure process outlined in the Intelligence Community Whistleblower Protection Act (ICWPA) of 1998 in order to obtain protections from retaliation.
 

The ICWPA allows intelligence employees to make “protected disclosures” of “urgent concerns” to either their agency’s Inspector General or the Inspector General of the Intelligence Community. Urgent concerns may include serious or fragrant violations of laws, gross waste, or improper administration relating to an intelligence program. Urgent concerns may also include lying to or willfully withholding information from Congress, as well as certain retaliation or threats of retaliation for making a protected disclosure of an urgent concern.

When an Inspector General receives a protected disclosure alleging an urgent concern, they are afforded 14 days to conduct a preliminary review of the disclosure. If it is substantiated as a credible and urgent concern, then the Inspector General must transmit the disclosure and supporting evidence to the head of their intelligence element, who has seven days to furnish this report to the congressional intelligence committees. At this point either the Inspector General or the congressional intelligence committees may investigate the whistleblower’s protected disclosure.

If a whistleblower suffers retaliation for making a disclosure either protected through this system or informally in other limited cases (e.g. to one’s supervisor), then they are protected under Presidential Policy Directive-19. PPD-19 offers IC employees protections from retaliation by tying their system to the Whistleblower Protection Act that applies to most other federal whistleblowers. The FISA Reauthorization Act of 2018 explicitly extended these protections to intelligence contractors.

It is important to understand that no protections are written in statute or regulation that would allow intelligence whistleblowers who make external disclosures of either classified or unclassified information to challenge any retaliation they suffered. The system protecting intelligence whistleblowers is solely internal to the Intelligence Community and its relevant overseers in Congress, and whistleblowers who choose not to follow this prescribed disclosure process may be criminally liable for the unauthorized release of this information. Further, no “public interest” defense exists to challenge prosecutions of whistleblowers who have released classified information outside authorized channels.

It is important that any intelligence worker considering blowing the whistle discuss their options for disclosure and the risks they will face with one of the few attorneys experienced in this area. Any whistleblower who has made a protected disclosure and suffered retaliation, similarly, should consult a national security attorney experienced in whistleblowing to ensure they challenge this retaliation in the most effective way possible.

Anonymity: Challenges & Consequences

Intelligence Community whistleblowers may make protected disclosures confidentially. The confidentiality provision of the Inspector General Act of 1978 requires Inspectors General and their staff to maintain whistleblowers’ confidentiality “unless otherwise unavoidable” (e.g. a court order to testify in a grand jury indictment resulting from the whistleblower’s disclosure) or unless they obtain the consent of the whistleblower.

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However, whistleblowers should rarely assume any anonymity shield is fireproof. Only Inspectors General and their staff are beholden to this confidentiality provision; it does not bind agency-heads, supervisors, or fellow employees aware of a whistleblower’s disclosure from revealing that whistleblower’s identity. Other statutes, such as those which make threatening witnesses in administrative proceedings or protecting the identities of certain covered employees, may still apply in such cases—but they are notoriously hard to enforce.

The recent impeachment hearings and trial of President Trump highlight some of the costs associated with anonymity. The intelligence community employee who blew the whistle on possible solicitation of Ukraine’s interference by President Trump in the 2020 election faced enormous backlash and public threats to their life after submitting a whistleblower complaint to the Intelligence Community Office of the Inspector General. After the public became aware of the complaint, the typical bipartisan consensus surrounding whistleblowing in Congress evaporated as multiple members of Congress attempted to identify the whistleblower in print, television and social media. The case of the Ukraine whistleblower illustrates a key weakness of anonymous whistleblowing: first and foremost, anonymity can never be guaranteed, even when the law offers protection against whistleblower retaliation.
 

It is important that any intelligence worker considering blowing the whistle discuss their options for disclosure and the risks they will face with one of the few attorneys experienced in this area. Any whistleblower who has made a protected disclosure and suffered retaliation, similarly, should consult a national security attorney experienced in whistleblowing to ensure they challenge this retaliation in the most effective way possible.

Pre-Disclosure Checklist

Before making any type of disclosure, it is wise to take the following precautions:

Consult with a lawyer, specifically one who has experience helping whistleblowers. Most lawyers aren’t well-versed in whistleblower law, which is extremely complicated. The attorney-client privilege will also ensure that your communications will remain protected and confidential

Create a detailed, contemporaneous paper trail. Keep a log that is a timeline of all relevant developments: what happened, when and to whom you complained, and any resulting retaliation. Record all dates and note the details of any supporting emails, memos, or other documentary evidence.

Print or save any relevant documents you possess such as meeting notes, memos, or emails. One can also record meetings secretly in one-party consent states (including 39 states and Washington, DC), though secret recording usually violates personnel rules.

Keep evidence in a safe place. Authorities usually are not limited in access to the whistleblower’s workplace, but home storage of documents can also be risky, subjecting a whistleblower to pretextual discipline or a retaliatory investigation for theft of documents. Before taking actual documents, you should make sure they are your documents to take. If it is not clear, it is better to photograph or lawfully reproduce the documents, but leave originals in the office. If they are classified, they are not yours to take or reproduce, so doing so is essentially an act of civil disobedience. If you have questions, it is best to consult with counsel before taking action. Regardless, it is advisable to store your evidence with your attorney, where it is shielded by attorney-client privilege. 

Avoid being accused of stealing any documents. In instances where it is not practical or legal to take evidence home, tactics such as mislabeling and misfiling records in your office, to be found later, can prevent their destruction. The strategy means keeping careful notes on a document's substance, but "burying" copies of the actual record in an archive file or an electronic folder with an innocuous name. Be prepared to serve as navigator for law enforcement or other outside investigators to trace where to find copies of the documents that an agency acting in bad faith will claim do not exist.

Make a plan. For example, decide whether and when to blow the whistle internally or externally. When does it make sense to give up on internal channels? What documents, if any, should be shared with whom? Try to predict how those in the agency or department will react and respond to a disclosure.

Converse with family members and loved ones before blowing the whistle. The old adage applies here: plan for the worst and hope for the best. Consider the impact on family members and friends should retaliation occur. This is a decision you must make together, or you may find yourself alone. Develop alternate employment options before drawing attention to yourself. 

Avoid creating any other reason to be fired for cause. Maintain good job performance an follow workplace rules, and if suspected be careful not to take the bait in pretextual confrontations.​

Test the waters with work colleagues and attempt to garner their support, if possible. Determine which colleagues would corroborate your observations or possibly even participate actively in blowing the whistle, although be discreet and start with trusted contacts.

Seek outside help including journalists, politicians, and public interest organizations, judiciously. Solidarity is essential to both making a difference from blowing the whistle on misconduct and surviving the experience.

Best Practices for External Whistleblowing

Before you begin working with a reporter or an advocacy group, negotiate the scope of what you’re willing to disclose, whether you need anonymity, and any other protections or concerns. It is easier for everyone to be clear on the rules from the beginning

If maintaining confidentiality and anonymity is critical, use secure, encrypted means to communicate, including Secure Drop for document exchange, Signal or WhatsApp for texts and calls, ProtonMail or another email platform that uses Pretty Good Privacy (PGP) encryption, or snail mail with no return address.

Don’t communicate with your contacts during your work hours or use office equipment like office phones, computers, or even paper.

Be aware that the best option for your safety may not necessarily be to remain anonymous, but to instead blow the whistle publicly with the help of a lawyer. Public disclosure can help an employee prove that the employer had knowledge of the whistleblowing, a necessary element in a reprisal case. It can also preempt reprisal, particularly when you are supported by a team of allies.

If you intend to leak documents anonymously, make sure that you are not the only person who possesses these documents so they can’t be traced back to you. If possible, send them out innocuously attached to legitimate listserv emails or upload them to an agency server or archiving system. Check whether any traceable marks are encrypted for electronic communications. Above all, unless you want to leave legal rights behind and be a civil disobedience whistleblower, do not make external disclosures with any information marked classified, or whose release is specifically prohibited by a federal statute. Those only can be disclosed internally, to the Office of Special Counsel or an Inspector General. 

Rather than printing secure documents, take pictures of them on your personal secured phone. Your access to the documents may be able to be tracked, and printing will narrow the pool of potential people who have accessed the documents. If you can’t take a photo, make written notes. Again, however, do not take photographs of information for which public disclosure is unprotected. If your phone or camera is seized, you will be blamed for the illegal disclosure and lose your whistleblower rights. 

Instead of providing documents, consider guiding reporters or advocacy organizations in making a Freedom of Information Act (FOIA) request. To do this, make sure problematic policies or practices are in writing. Try to get your agency to spell them out, or do it in your own emails. Be careful that the FOIA isn’t so specific that it tips off the agency that there is a whistleblower. If the agency denies their existence and you have “buried” copies of the records in camouflaged locations, teaming with the requester to expose that cover-up can be a significant development when challenging broader misconduct.
 

Make sure that any documents you send are stripped of meta data such as photo locations, watermarks, or tracked changes.

Contact Government Accountability Project

 We are the international leader in whistleblower protection and advocacy.

A non-partisan, 501(c)(3) non-profit organization, Government Accountability Project actively promotes government and corporate accountability by providing legal representation to whistleblowers and ensuring their disclosures make a difference. Our longstanding work with more than 8,000 whistleblowers has involved working for decades in the areas of public health, food safety, national security, human rights, immigration, energy and the environment, finance and banking, and international institutions, as well as expanding whistleblower protections domestically and internationally.

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Government Accountability Project offers pro bono legal and strategic advice and support to employees considering reporting, or who have already reported, misconduct. We also offer advice to public interest organizations and journalists, as well to their whistleblower sources.