With the Democrats’ latest impeachment attempt relying on the testimony of a so-called whistleblower, there’s been some interest in what the rules are on government employees making the sort of accusations now being thrown at President Trump.
It’s a gray area in many ways, and now it’s a controversial one, too. The president and some other leading Republicans are saying that the rules were changed just before this leak took place. Liberals, including some so-called “fact check” sites, retaliate by calling the president’s claim “bogus.” Is there any way to make some sense out of this mess?
- Whistleblowing — leaking classified information to expose a crime — is a legal and political minefield. Sometimes it’s necessary because otherwise the government or its agencies could use official secrecy to hide evidence of illegal behavior. That’s why there are rules about it.
- On the other hand, many whistleblowers have a political agenda. The rules are there to try to make sure leaks only happen when there’s clear evidence a real crime has been committed.
- The Trump whistleblower apparently works for a US intelligence agency. These agencies need a cloak of secrecy — leaks can tell enemies about their capabilities, harm US interests and even get people killed. So they take whistleblowing very seriously.
- Anyone in the intelligence community who wants to “blow the whistle” has to fill out a Disclosure of Urgent Concern Form and submit it to their agency’s Inspector General or the Inspector General of the Intelligence Community (IC IG). Under the Intelligence Community Whistleblower Protection Act of 1998, using this form protects the whistleblower from prosecution. If they don’t follow the proper procedure, they’re just a criminal who illegally leaked classified information.
- There’s nothing in the Intelligence Community Whistleblower Protection Act that directly says the whistleblower needs first-hand knowledge of their urgent concern, so in a sense, it’s not true that the rules recently were changed to allow hearsay.
- However, what is true is that the form was changed. Originally, the Disclosure of Urgent Concern Form stated clearly, “FIRST-HAND INFORMATION REQUIRED,” specified that “In order to find an urgent concern credible, the IC IG must be in possession of reliable, first-hand information,” and warned “If you think that wrongdoing took place, but can provide nothing more than second-hand or unsubstantiated assertions, IC IG will not be able to process the complaint or information for submission as an ICWPA.”
- Every version of the form up to the revision produced in May 2018 contained that wording. It made clear that hearsay wasn’t acceptable.
- However, a new version of the form was released in August 2019 — and it doesn’t have this wording. Instead, it has two checkboxes marked “I have direct and personal knowledge” and “I heard about it from others.”
- The allegations against President Trump all fall squarely into “I heard about it from others” — and, until the form was changed — in the same month those allegations were made, that would have been unacceptable.
- The old wording made clear that there was a rule against relying on hearsay — IC IG wouldn’t process any complaint based on it. This rule has now gone, just in time to enable another impeachment farce. So yes, the rules have changed, just like the president said they have. Now we need to know why.
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