The Intelligence Whistleblower protection Act did not apply to the phone call ... Reposted

(The House Judicial Committee takes the matter of impeachment up Wednesday.  This procedure is the fruit  of a poisoned tree  pl )

"The Intelligence Community Whistleblower Protection Act of 1998,^[1] amending the Central Intelligence Agency Act of 1949 and the Inspector General Act of 1978, sets forth a procedure for employees and contractors of specified federal intelligence agencies to report complaints or information to Congress about serious problems involving intelligence activities.

Under the ICWPA, an intelligence employee or contractor who intends to report to Congress a complaint or information of "urgent concern" involving an intelligence activity may report the complaint or information to their agency’s inspector general or the Inspector General of the Intelligence Community (ICIG). Within a 14-day period, the IG must determine "whether the complaint or information appears credible," and upon finding the information to be credible, thereafter transfer the information to the head of the agency. The law then requires the DNI (or the relevant agency head) to forward the complaint to the congressional intelligence committees, along with any comments he wishes to make about the complaint, within seven days. If the IG does not deem the complaint or information to be credible or does not transmit the information to the head of the agency, the employee may provide the information directly to the House and Senate Intelligence Committees. However, the employee must first inform the IG of his or her intention to contact the intelligence committees directly and must follow the procedures specified in the Act.

The Act defines a matter of "urgent concern" as:^[2]

1. 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 classified information, but does not include differences of opinions concerning public policy matters;
2. A false statement to Congress, or a willful withholding from Congress, on an issue of material fact relating to the funding, administration, or operation of an intelligence activity; or
3. An action constituting reprisal or threat of reprisal in response to an employee's reporting an urgent concern.

ICWPA doesn't prohibit employment-related retaliation and it provides no mechanism, such as access to a court or administrative body, for challenging retaliation that may occur as a result of having made a disclosure.^[3] In 2006 Thomas Gimble, Acting Inspector General, Department of Defense, stated before the House Committee on Government Reform that the ICWPA is a 'misnomer' and that more properly the Act protects the communication of classified information to Congress.^[4] According to Michael German with the Brennan Center for Justice, the ICWPA, "provides a right to report internally but no remedy when that right is infringed, which means that there is no right at all."^[3]

According to the Office of the Director of National Intelligence, from 1999-2009, 10 complaints/disclosures were filed under this law, four of which were found to be credible by the relevant Inspector General. In three of these ten cases the whistleblower claimed that s/he was retaliated against: two CIA cases and one DOJ case. Subsequent investigations by the CIA and DOJ failed to find evidence of retaliation in any of these cases.^[3][5]

Additional protections for national security whistleblowers are provided through Presidential Policy Directive 19 and the Intelligence Authorization Act for Fiscal Year 2014.^[3] For more information about whistleblowers protections that apply to the intelligence community see the "national security protections" subheading under Whistleblower protection in the United States.

References

 

• Title VII of Public Law No: 105-272
• Goss, Porter J. (1998-10-20). "Text - H.R.3694 - 105th Congress (1997-1998): Intelligence Authorization Act for Fiscal Year 1999". www.congress.gov. Retrieved 2019-09-20. This article incorporates text from this source, which is in the public domain.
• "Secret Sources: Whistleblowers, National Security and Free Expression" (PDF). PEN America. November 10, 2015. p. 13. Archived from the original (PDF) on November 14, 2015. Retrieved November 25, 2015.
• "Statement on National Security Whistleblower Protection" (PDF). Federation of American Scientists. Retrieved December 21, 2010.

"Letter from the Office of the Director of National Intelligence" (PDF). Federation of American Scientists. March 8, 2014. Retrieved November 25, 2015."

 

https://en.wikipedia.org/wiki/Intelligence_Community_Whistleblower_Protection_Act

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This law provides an intelligence official with a legal means within which to report misdeeds in the world of intelligence operation, funding, etc.  It has nothing to do with government activities that are not intelligence activities.  There was nothing in the now famous 25 July call between Trump and Zelensky that was intelligence business.  None. Remember - the two presidents ARE NOT intelligence officials.

IMO the complaint was and is invalid and should not have been entertained at all by the IC IG.   The original opinion by DoJ on this matter was correct.  pl

Comments

[Bill H]

All this time we have been stepping over a dime to pick up a counterfeit dollar bill. All this furor about who the whistleblower is, was there or was there not a "quid pro quo," was the request to investigate pertinent to the 2016 election or to the Bidens, and so forth.

And reality is that the "whistleblower's" report should never have been made to begin with, a fact which is so plain, so clearly out in the open, and so obvious, that it took Col. Lang to notice it.

[Jack]

Sir,

The Democrats are intent on impeaching Trump. As they have shown with the vote to launch the impeachment inquiry, they’re quite happy to do it on a purely partisan party line vote. And they have the full support of the mainstream media and many in the bureaucracy including serving officers in the military. The only question IMO, is how many Republican senators will either abstain or vote to convict in the Senate trial?

The Resistance as Barr has called them are so blind with hatred for Trump that they can’t see beyond their nose. They will now create a precedent where a House majority of one party can impeach at will the President of the opposing party while using a kangaroo court inquiry. This must lead to complete chaos for our political system that each of our adversaries would love. IMO, only the American voter can change this by stopping to vote the lesser evil and electing candidates outside the duopoly. Of course that ain’t happening in my life time as most Americans are consumed with partisan warfare on the side of Tweedle Dee and Tweedle Dum.

[prawnik]

The law doesn't matter. The IC and courts will interpret the laws however they wish.

This is the flip side of the fundamental problem in Sir Thomas More's famous formulation of the law in "A Man for All Seasons". The laws of England or any other law are of no protection to anyone if he cannot enforce them.

Similarly, even if the laws clearly condemn a action, even if the action is wrongful, that is of no matter, if the people with power have decided that the law is to protect that action regardless of what is written.

Moral: there is no such thing as law. There is only context.

[Curtis Fromke]

It will interesting to read what comments show up here. What is a misdemeanor?

[Factotum]

An urgent concern........... does not include differences of opinions concerning public policy matters.

[Factotum]

The favor was for Ukraine to investigate Crowdstrike and the 2016 DNC computer breach.

Reliance on Crowdstrike to investigate the DNC computer, and not an independent FBI investigation, was tied very closely to the years long anti-Trump Russiagate hoax and waste of US taxpayer time and money.

Why is this issue ignored by both the media and the Democrats. The ladies doth protest far too much.

[JJackson]

According to Michael German with the Brennan Center for Justice, the ICWPA, "provides a right to report internally but no remedy when that right is infringed, which means that there is no right at all."[3]

He has a point - at least Lord Chief Justice Holt thought so - and I concur.

In Ashby v White (1702) 2 Ld Raymond 938 Ashby, a burgess of Aylesbury, was
entitled under the borough charter to vote at parliamentary elections. White, a
returning officer, maliciously refused to allow him to vote. Ashby thereupon sued
White. Lord Chief Justice Holt (dissenting, but later vindicated by the House of Lords)
said:
"If the plaintiff has a right he must of necessity have a means to
vindicate and maintain it, and a remedy if he is injured in the
exercise or enjoyment of it; and indeed it is a vain thing to
imagine a right without a remedy for want of a right and want
of remedy are reciprocal. …"

[Upstate NY'er]

Isn't the ICIG another swamp careerist?
These swamp creatures are of one ilk (NOT a big deer):
They live in the same neighborhoods, their kids go to the same schools, they go to the same Delaware beaches.
They will NEVER seriously investigate, much less bring down, a fellow swamp creature.

[Eric Newhill]

I am now convinced that laws, justice, truth and honor don't amount to a hill of beans in The Swamp. It's all wanton and vicious politics and power plays all the time. Then mountains of BS, shoveled out by an allied scurrilous media machine to try to keep the public buying into the Machiavellian machinations of the Swamp dwellers.

Members of the "in crowd" can do whatever they want without repercussion. If any of them ever faces consequences it's because they fell from favor for secret reasons as opposed to the publicly announced reason, or they got sleepy and were gunned down by a newer more ambitious usurper.

[turcopolier]

JJackson

You don't get it. IMO the present impeachment inquiry is illegal because the whistleblower's complaint should not have bben allowed under the statute. If an impeachment arrives in the senate it can be thrown out on that basis.

[indus56]

On a separate point, is or should there be any restrictions on IGIC's authority to change the scope of evidence to include hearsay, given the evidently limited intent of the whistleblower legislation / directives?

[cam]

The ICIG changed the definition of what a whistleblower was in order to entertain the complaint.

[turcopolier]

Indus56
The essential point is that the 25 July phone call had nothing to do with intelligence matters.

[turcopolier]

cam

There are other whistleblower statutes that might have applied but not this one.

[cam]

The problem is that this is a coup, so I don't think what should be done is going to be of much consequence.

They must have had a good reason for proceeding in this direction.

[srw]

Interesting, but with the horse out of the barn I bet not much changes on the impeachment wagon.

[K]

I'm not necessarily disagreeing with your take (and I always appreciate a Thomas More reference). However, I think where there is a widespread agreement amongst the population that the law is just and that it is generally applied fairly to all--in that society you empower leading voices to defend the law against would-be attackers (from either top or bottom). But today we do not have that consensus in popular opinion, not all of us believe the law is fair or evenly applied, and voices shouting for it to be abrogated are loud and growing bolder.

Now, your moral is properly situated in its historical context.

[LA Sox Fan]

Exactly right. Here is a link to the statute, 50 USC section 3033. https://www.law.cornell.edu/uscode/text/50/3033 The statute allows for the appointment of an Inspector General who reports to and has the authority to investigate any activity that falls under the authority of the Director of National Intelligence.

While I agree that Trump’s phone call does not fall under the definition of an urgent matter that can be reported to Congress, what’s worse is that because the President’s activities cannot be investigated under this statute because the President is not under the authority of nor supervised by the DNI. Thus, the intelligence Inspector General has no authority to consider the complaint against Trump. Congress created the IG statute and placed the IG under the supervision of the DNI because under the law the IG is to investigate only problems that the DNI has the ability to rectify.

As the President of the United States is not supervised by the DNI, the IG has no authority under this law to investigate the President’s activities under this statute. The complaint and the involvement of the IG in this matter was illegal from the start.

[LA Sox Fan]

Right. The entire purpose of the phony and improper IG complaint was to manufacture an excuse to have the matter reported to Congress where it would then be leaked to the public. It never was a proper IG complaint, but the bell cannot be unrung.

[LA Sox Fan]

You are referring to the change in the complaint form where the prior form required the whistleblower to have direct knowledge of the issue complained about while the latest version allows the whistleblower to blow the whistle using information obtained from someone else (hearsay). The statute itself neither allowed not disallowed hearsay information. I believe that the prior form should not have excluded hearsay. For example, if a foreign agent said “I’m a foreign agent and taking photos of this top secret information” to a DNI employee, that is a hearsay statement and could not be reported to the IG using the prior form. To me, that’s wrong.

[JJackson]

I do get your point, and agree, however the the legislation is deficient in that while the whistle-blower can, and should, highlight questionable behaviour in his/her department it does not seem to offer adequate cover against retribution from said department.
viz.
"ICWPA doesn't prohibit employment-related retaliation and it provides no mechanism, such as access to a court or administrative body, for challenging retaliation that may occur as a result of having made a disclosure"

In this case his/her gripe does not fall within the scope of the act.
If your, or my, government is breaking its own laws I would like to see a clear route for those in the know to report same to some body with the authority to act. They should be independent of the department, have the power to investigate and protect the source. Better that then dump it on Wikileaks and hope to stay anonymous.

[John Merryman]

If this goes to the Senate and they make a show of it, the effect will be to make the 2020 election a contest between Donald Trump and Hunter Biden.

[Factotum]

Democrats painted themselves into a corner.

Only way out is to call for the impeachment, have a vote and either lick their wounds if they lose (mainly Schiff and Nadler get sacrificed - Fancy Nancy has been dancing on a tight rope so she gets a pass); or vote to pass articles of impeachment and finally send this turkey on to the senate.

Wild card, how many Democrats not engaged in this blatant publicity stunt also want no part in it. What will be the FBI investigation of Ciaramella - there are penalties for filing false complaints and it appears he was acting well out side the confines of the whistle-blower law.

[Factotum]

The deep state exists to perpetuate itself. When 95% of all 2016 political contributions from the deep state went to Clinton, trump's election created and existential crisis.

Trump promised he would expose and cleag out the deep state - look at his major2016 campaign video speech. Those were his very first words.

Deep state was put on notice even before the was elected. Apoplectic can be their only response. Frog brains were engaged and we have these three long awful years of deep state inflicted chaos.

Deep state = Democrats = big public sector unions How can you have $800 billion tax dollars going to teachers union members nationwide without the teachers union deep state doing all they can to bring Trump down. Including using K-12 students as front line storm troopers.

[Factotum]

Never forget this particular "whistleblower" statute was changed at the 11th hour to suddenly allow 2nd hand reports instead of the prior first hand report requirement.

It stunk from day one. Throw the book at the whole pack because they did not take out the penalty part of the statute for filing false reports. Go get 'em FBI.