by Scott Ritter, Consortium News:
The whistleblower complaint has opened a window into the politicization of the intelligence community, and the corresponding weaponization of the national security establishment, argues Scott Ritter.
The whistleblower. A figure of great controversy, whose actions, manifested in an 11-page report submitted to the Intelligence Community Inspector General (ICIG) on August 12 alleging wrongdoing on the part of the president of the United States, jump-started an ongoing impeachment process targeting Donald Trump that has divided the American body politic as no other issue in contemporary time.
His identity has been cloaked in a shroud of anonymity which has proven farcical, given that his name is common knowledge throughout the Washington-based national security establishment in whose ranks he continues to serve. While Trump publicly calls for the identity of the whistleblower to be revealed, the mainstream media has played along with the charade of confidentiality, and Congress continues to pretend his persona is a legitimate national security secret, even as several on-line publications have printed it, along with an extensive document trail sufficient to corroborate that the named man is, in fact, the elusive whistleblower.
There is no legitimate reason for the whistleblower’s identity to remain a secret. The Democratic chairman of the House Intelligence Committee, Representative Adam Schiff, (D-CA) has cited statutory protections that simply do not exist while using his authority as chairman to prohibit any probe by his Republican colleagues designed to illicit information about the whistleblower’s identity. “The whistleblower has a right, a statutory right, to anonymity,” Schiff recently opined during recent impeachment-related testimony. And yet The Washington Post, no friend of Trump, was compelled to assign Schiff’s statement three “Pinocchios”, out of a scale of four, in rejecting the claim as baseless.
The myth of statutory protection for the whistleblower’s identity has been aggressively pursued by his legal counsel, Andrew Bakaj, the managing partner of the Compass Rose Legal Group, which has taken on the whistleblower’s case pro bono. In a letter to the president’s legal counsel, Pat Cippolone, Bakaj demanded that Trump “cease and desist in calling for my client’s identity”, claiming that the president’s actions, undertaken via Twitter and in press briefings, constituted violations of federal statutes prohibiting, among other things, tampering with a witness, obstruction of proceedings, and retaliating against as witness.
All of Bakaj’s claims are contingent upon the viability of the whistleblower’s status as a legitimate witness whose testimony can, therefore, be tampered, obstructed or retaliated against. The legal foundation of the whistleblower’s claims are based upon the so-called Intelligence Community whistleblower statute, 50 USC § 3033(k)(5), which stipulates the processes required to report and sustain an allegation of so-called “urgent concern” to the U.S. intelligence community. An “urgent concern” is defined, in relevant part, as: “A serious or flagrant problem, abuse, violation of the law or Executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information, but does not include differences of opinions concerning public policy matters.”
At issue was a telephone call made between President Trump and the newly elected President of Ukraine, Volodymyr Zelensky, on July 25 of this year. According to the whistleblower’s report to the ICIG, “Multiple White House officials with direct knowledge of the call informed me that, after an initial exchange of pleasantries, the President used the remainder of the call to advance his personal interests.” President Trump, the whistleblower alleged, “sought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid,” an act which the whistleblower claimed presidential abuse of his office “for personal gain.”
Upon review of the whistleblower’s report, which consisted of a nine-page unclassified letter and a separate two-page classified annex, Michael K. Atkinson, the Inspector General of the Intelligence Community, initiated an investigation of the complaint as required by the whistleblower statute. This investigation must be completed within a 14-day period mandated by the statute, during which time the ICIG “shall determine whether the complaint or information appears credible.”
While the statute is silent on the methodology to be used by the ICIG in making this determination, Atkinson had testified during his Senate confirmation hearing that, when it came to any investigation of a whistleblower complaint, “I will work to ensure that ICIG personnel conduct investigations, inspections, audits, and reviews in accordance with Quality Standards promulgated by CIGIE (Council of the Inspectors General on Integrity and Efficiency) to keep those activities free from personal, external, and organizational impairments.” The CIGIE standard in question requires that, “Evidence must be gathered and reported in an unbiased and independent manner in an effort to determine the validity of an allegation or to resolve an issue.”
In a letter transmitting the whistleblower complaint to the Director of National Intelligence (DNI), Atkinson stated that he had “determined that the Complainant (i.e., whistleblower) had official and authorized access to the information and sources referenced in the Complainant’s Letter and Classified Appendix, including direct knowledge of certain alleged conduct, and that the Complainant has subject matter expertise related to much of the material information provided in the Complainant’s Letter and Classified Appendix.”
However, when it came to assessing whether or not the whistleblower, in reporting the second-hand information provided to him by White House persons familiar with the July 25 Trump-Zelensky phone call, had done so accurately, Atkinson did not review the actual records of the telephone call, noting that he “decided that access to records of the telephone call was not necessary to make my determination that the complaint relating to the urgent concern ‘appears credible.’”
Atkinson declared that “it would be highly unlikely for the ICIG to obtain those records within the limited remaining time allowed by statute,” and opted to perform an investigation in violation of the very CIGIE standard he had promise to adhere to in his Senate testimony. In short, no evidence was gathered by the ICIG to determine the validity of the whistleblower’s allegation, and yet Atkinson decided to forward the complaint to the DNI, certifying it as “credible.”
The whistleblower statute allows the DNI seven days to review the complaint before forwarding it to the House Committee on Intelligence, with comments if deemed appropriate. However, in reviewing the actual complaint, Joseph McGuire, the acting DNI who took over from Dan Coats, who was fired by President Trump in early August, had questions about whether or not the matters it alleged fell within the remit of the whistleblower statute, and rather than forwarding it to the House Intelligence Committee, instead sent it to the Justice Department Office of Legal Counsel for legal review.
The Office of Legal Council, on September 3, issued a legal opinion rejecting the ICIG’s certification of the whistleblower complaint as constituting an “urgent concern” under the law. “The complaint,” the opinion read,
“does not arise in connection with the operation of any U.S. government intelligence activity, and the alleged misconduct does not involve any member of the intelligence community. Rather, the complaint arises out of a confidential diplomatic communication between the President and a foreign leader that the intelligence-community complainant received secondhand. The question is whether such a complaint falls within the statutory definition of ‘urgent concern’ that the law requires the DNI to forward to the intelligence committees. We conclude that it does not. The alleged misconduct is not an ‘urgent concern’ within the meaning of the statute.”
DOJ Rejected Complaint as Urgent
As related in the Office of Legal Counsel’s opinion, the Justice Department did, however, refer the matter to the Criminal Division of the Department of Justice for appropriate review. After considering the whistleblower’s complaint and classified annex, the Criminal Division opted not to pursue charges, in effect determining that no crime had been committed.
Under normal circumstances, this would have concluded the matter of Trump’s phone call with Zelensky, and the second-hand concerns unnamed White House officials had reported to the whistleblower. But this was not a normal circumstance. Far from diffusing an improperly predicated complaint, the failure of the acting DNI to forward the whistleblower complaint to the House Intelligence Committee, and the concurrent legal opinion of the Justice Department’s Office of Legal Counsel rejecting the “urgent concern” certification of the ICIG, opened the door for the whistleblower, through legal counsel, to reach out to the House Intelligence Committee directly.
The whistleblower followed procedures set forth in the whistleblower statute detailing procedures for a complaint, which had not been certified as an “urgent concern,” to be forwarded to Congress. The issue is that the matter was being treated by the ICIG, Congress and the whistleblower’s attorney’s as an “urgent concern”, a status that it did not legally qualify for.