Legalities of the whistleblower complaint situation explained

Congress created the congressional intelligence committees and passed — and President Jimmy Carter signed — the Foreign Intelligence Surveillance Act. Not only did FISA bring most stateside foreign intelligence activities under a legal framework, but it created a special Article III court — the FISA Court — to enforce that framework. The “bargain” was that the executive branch would receive significant power to conduct foreign intelligence activities within the United States, but agree to subject those activities to democratic accountability through congressional oversight and judicial review. Congress and the courts agreed to exercise their oversight and accountability functions largely — if not entirely — in secret.

The whistle-blower protection law applicable to intelligence agencies, enacted 20 years after FISA, tries to split the same difference. It empowers whistle-blowing within the intelligence community, but imposes more constraints than any other federal whistle-blower law, including limiting the eventual disclosure of a complaint to the congressional intelligence committees rather than to all of Congress (or the public). The idea animating the statute is that there will be proxies standing in for the role the public usually plays — the inspector general, who receives and reviews the complaint; and the intelligence committees, who, if necessary, can act upon it.

That process seems to have broken down in this case because, for the first time in the 21-year history of the statute, the executive branch has refused to forward to the intelligence committees a complaint that the inspector general (who, although it shouldn’t matter, was appointed by President Trump) determined to be “credible.” The argument is not, apparently, that the complaint is protected by some kind of constitutional privilege; rather, the government is arguing that the (acting) director of National Intelligence is allowed to override the inspector general’s determination on the merits — and, in such a case, to decline to transmit the inspector general’s findings to Capitol Hill.

This argument flies in the face of the plain text, structure and purpose of the law — the whole point of which is to remove the intelligence community’s political leadership from having a say over whistle-blower complaints. Indeed, it wouldn’t make much sense to allow intelligence community employees to blow the whistle on their superiors if the superiors get to take the whistle away.

Another problem, though, is another provision of the law, which provides that “an action taken by the director or the inspector general under this paragraph shall not be subject to judicial review.” In other words, the statute explicitly cuts courts out of the loop — at least largely to prevent a dispute sure to involve highly classified information from seeping into the public domain of the regular federal courts. In practice, that means that, if the intelligence committees and the executive branch disagree about the latter’s disclosure obligations (as they do here), even when the inspector general finds a complaint to be “credible,” we hit a legal impasse.

[...]

But we are in an era of the separation of parties, not powers. And that development calls the entire “grand bargain” into question. The core assumption behind the grand bargain is that the intelligence committees and the FISA Court, operating secretly, can play the role that Congress and the courts play publicly for the rest of the government. But if, as in this case, that secrecy allows the executive branch to effectively stymie those oversight functions, and if the politics of the moment impose no cost to the executive branch for doing so, then the compromise truly has broken down — with alarming consequences for accountability and oversight of the executive branch.

Here, at least, there may be a way out: There are two congressional intelligence committees, and the Senate committee is chaired by a Republican, Senator Richard Burr of North Carolina. If Mr. Burr were to join Mr. Schiff in demanding transmission of the whistle-blower complaint, that would ratchet up the pressure on the White House to at least reach some accommodation with the intelligence committees. Thus far, though, Mr. Burr has been eerily quiet on the subject.

  NYT

What a fucking surprise. GOP's modern motto: Burn it all down.