Though many of the details about the growing dispute between Congress and the acting director of national intelligence still remain secret, the implications are already disturbing.
This summer, a whistleblower complained to the inspector general for the U.S. intelligence community of an alleged “violation” of law, “abuse” of authority or similar problem. The inspector general, in turn, advised the acting DNI, and later the House Intelligence Committee, that the complaint was both credible and “urgent,” meaning it involved something “serious or flagrant” or otherwise significant.
Under a law enacted in 2010, such matters must be reported to Congress. But acting director of national intelligence Joseph Maguire did not report it, causing the House Intelligence Committee to issue a subpoena and two public letters demanding the information be provided to Congress.
In response, Maguire (through his general counsel) issued two letters, arguing that the matter was not in fact “urgent,” that it “concerned conduct by someone outside the Intelligence Community,” and that it involved “confidential and potentially privileged matters relating to the interests of other stakeholders within the executive branch.”
For these reasons, Maguire’s letters stated that the matter need not be reported to Congress but noted that the acting DNI was “deliberating over the appropriate response” and “committed to working with the Committee to reach an acceptable accommodation.” The acting DNI noted that his conclusions were coordinated with, and supported by, the Justice Department.
In time, an accommodation may be reached between Maguire and Congress, with the former providing the latter with the whistleblower’s complaint, or its substance. Thursday’s events, however, seem to have brought us no closer to a resolution, and so for now the impasse remains, creating at least three significant problems.
First, the impasse discourages lawful whistleblowing. This whistleblower seems to have tried hard to follow the rules, reporting to the inspector general rather than directly to Congress or to the news media. The reward, so far, has been for Maguire to withhold the information. Although Maguire has pledged to protect the whistleblower from retaliation, that pledge will be hard to fulfill, at least in this administration, and particularly if, as has been reported, the complaint concerns political officials in the White House. Based on what we’ve seen so far, therefore, future whistleblowers may be more reluctant to come forward through official channels, leaving potential misconduct unaddressed.
Second, some members of the intelligence community who come across activities that they believe are inconsistent with the law may now be more likely to take their concerns — and their classified information — directly to the news media. If official channels lead to a dead end, unofficial channels for airing concerns or grievances become more attractive. As a result, we may well suffer significant and unnecessary collateral damage from the position taken by the acting DNI.
Third, if a satisfactory accommodation between the branches is not reached — very likely if the complaint involves political actors — the more likely congressional oversight of intelligence will come to resemble this week’s Corey Lewandowski hearing, where the witness refused to answer questions, talked over lawmakers’ questions, lectured a congressman for suggesting that the tooth fairy wasn’t real and even promoted his potential run for the U.S. Senate.
The risks associated with this are profound. As one of us (David) wrote at Lawfare, intelligence oversight in this country “has evolved from essentially nothing (1947-1976), to secret proxy oversight through elite members of Congress (1976-2013), to something closer to ordinary political accountability (2013 to present).” That evolution converges with an equally radical change in our politics, as many partisan actors today seek advantage by rejecting bedrock institutions and norms while a significant portion of the electorate responds with nihilistic glee. As applied to the oversight of intelligence, this convergence is very dangerous, because those institutions and norms are a major part of what keeps the intelligence community properly in check.
Congressional oversight of executive branch activities is a vitally important constitutional tool in maintaining our democracy. It is particularly important for intelligence activities because the intelligence community consists of secret organizations operating in a democracy. The actions of acting director Maguire risk weakening that oversight, the perceptions of the intelligence community on the part of the public, and the intelligence community itself.