I imagine that the whistleblowers who reported President Trump’s troubling phone call with the Ukrainian president were just like me: Seeing an abuse of power, they simply wanted to notify the authorities responsible for investigating such matters, and then resume their duties on behalf of the American people. Unfortunately, the byzantine process Congress established for intelligence community whistleblowers makes it easy for those who would prefer to isolate, discredit and attack the messengers to avoid confronting the corruption they reported.
I joined the FBI in 1988 because I felt a call to service. The bureau entrusted me with specialized training in law enforcement tactics, access to national security secrets, a gun, a badge and a car. Then it sent me out into the world, with the expectation that I would always use my authority lawfully. I worked on all kinds of cases, from savings and loan failures to undercover investigations of violent neo-Nazi skinheads. My supervisors consistently gave me superior ratings and performance awards.
All that changed when I reported malfeasance within the FBI. Instead of addressing the illegal recording, the responsible supervisors began falsifying the case files to hide their mismanagement. I followed FBI policy and reported this to the bureau’s internal-affairs investigators at the Office of Professional Responsibility (OPR). Headquarters officials told me I would never work undercover again. When the OPR refused to investigate, again I followed protocol and reported the matter to the Justice Department inspector general, along with new allegations of retaliation. The FBI then investigated me, pursuing claims made by the individuals whose misconduct I had reported and trying to discover what I “really wanted.” Headquarters, meanwhile, made good on its promise to prevent me from working undercover or training other agents.
After a year and a half passed with no resolution or respite, I finally reported it all to the Senate Judiciary Committee, which forced the inspector general to begin an investigation and then fought for four years to get the proof that what I said was true. But there’s no evidence any of the supervisors were held responsible. Knowing that the retaliation within the bureau would only increase because I’d gone outside of it, I resigned. I joined the American Civil Liberties Union in Washington and have since assisted many intelligence community whistleblowers at all stages of the process, from deciding whether to make a complaint, to seeking new employment after being unfairly fired.
The whistleblowers whose reports triggered the impeachment investigation of Trump now face a more public form of abuse, with threatening taunts from the White House and partisan smears questioning their motives. Unfortunately, Congress rendered itself all but impotent to protect them, codifying a narrow, obstacle-filled pathway for intelligence employees to report government wrongdoing.
When Congress passed the Whistleblower Protection Act of 1989, providing federal employees who reported waste, fraud, abuse or illegality with a process to challenge retaliatory personnel actions, it exempted the FBI and intelligence agencies from the law. Alternative, internal systems for adjudicating retaliation claims were set up for the FBI (through Justice Department regulations) and intelligence agency employees (through the Intelligence Community Whistleblower Protection Act of 1998). These systems give these agencies the opportunity to suppress whistleblower reports and discredit whistleblowers before they get to Congress, while depriving those targeted with reprisals of an independent forum to vindicate their rights. In essence, Congress created a process that impedes federal workers from providing the information lawmakers need to perform their oversight function.
It isn’t unusual for an intelligence agency employee who spots a problem to try to resolve the matter within his or her office, as the first whistleblower reportedly did by going to a CIA lawyer. When internal reporting doesn’t achieve an appropriate result, it is normal for whistleblowers to seek advice from knowledgeable sources about how to go outside the agency. That, it appears, is why the Ukraine whistleblower sought advice from House Intelligence Committee staff.
In fact, the whistleblower had little choice but to seek that outside advice, because of the sheer complexity of these laws and regulations. In practice, they function more like traps than shields. Only by following complicated rules is a whistleblower protected by law from retaliation — and if, for example, a whistleblower reports to the wrong officials, he or she could forfeit those protections.
What’s more, the protections are weak. Forcing whistleblowers down a narrow path makes it much easier for managers to identify them. (Employee X knew about this issue, and recently asked a colleague how to make contact with the inspector general, for example.) And since intelligence employees are routinely subjected to background checks, agencies can easily launch retaliatory inquests: They can aggressively pursue any minor administrative noncompliance and subject the whistleblower to disproportionate disciplinary action. People at the FBI had a saying: “No one is administratively pure.” Intelligence workers need to maintain security clearances to keep their jobs, and the agencies have broad discretion to revoke them, with limited due process rights.
The intelligence agencies successfully lobbied for exemptions from whistleblower protections by arguing that these complicated reporting processes are necessary to protect classified information. But this is wrong on two counts. First, intelligence community whistleblowers and the members and staff of the House Intelligence Committee all hold security clearances and know how to properly handle classified information. The idea that they would suddenly forget their training when faced with a whistleblower complaint is specious.
Second, the process doesn’t prevent leaks; it encourages them. Frustrated by a system that appears designed to block reports of abuse from getting to the proper policymakers, and lacking real protections against retaliation, many whistleblowers decide it is safer and more effective to go directly to the press. Former special agent Jane Turner followed proper channels in reporting mismanagement of investigations into sex crimes against children, but suffered excruciating retaliation before resigning under threat of termination. This outcome may explain why Terry Albury, the only black agent then serving in the FBI’s Minneapolis field office, felt his only recourse to report racial and religious profiling in the FBI’s counterterrorism program was to provide documentary proof to the press. Indeed, the public knows about the Ukraine whistleblowers only because the process broke down and word leaked that a whistleblower report was being suppressed.
It is time for Congress to give FBI and intelligence agency employees the full whistleblower guarantees enjoyed by other federal workers. Congress must reassert its right to receive information directly from federal employees, and it must provide an independent adjudicator to hear whistleblower reprisal claims, with appeals to federal courts to vindicate their rights. The public servants tasked with protecting our nation deserve protection themselves.