More Than 50 Federal Watchdogs Sign Letter Condemning OLC Decision That Allows White House Counsel To Unilaterally Block Whistleblower Reports

from the administration-consolidating-power dept

The whistleblower report implicating President Trump in a quid pro quo exchange of US military aid for promises to investigate a political rival has been very illustrative of the dangers of whistleblowing. Laws and policies mean next to nothing when the proper channels are willing to bury reports and possibly the reporter.

The president himself has called for the whistleblower to be unmasked. The Office of the Director of National Intelligence unilaterally decided this whistleblower report didn’t need to go any further than its unfriendly confines. This decision was made despite the allegations containing matters of “urgent concern:” foreign interference in a US election.

The ODNI got the back up it needed from the White House. The Office of Legal Counsel sided with the administration and claimed the content of Trump’s call with Ukraine president Volodymyr Zelensky wasn’t “concerning” enough to be forwarded to Congressional oversight by the ODNI.

The Inspectors (plural) General disagree. A letter [PDF] sent to the Office of Legal Counsel — signed by more than 50 IGs from dozens of federal agencies, including the DOJ, NSA, CIA, and State Department — says the OLC’s opinion is not only wrong but potentially seriously damaging.

We… share the ICIG’s concern that the OLC opinion could seriously impair whistleblowing and deter individuals in the intelligence community and throughout the government from reporting government waste, fraud, abuse, and misconduct. Whistleblowers play an essential public service in coming forward with such information, and they should never suffer reprisal or even the threat of reprisal for doing so.

How does the OLC’s opinion make things more dangerous for whistleblowers? By taking away the IG’s authority to independently review complaints containing “urgent concerns” and forward those to Congress if they involve members of the Executive Branch. The OLC wants to place itself between the IG and Congress, and to make the final call on whistleblower reports, which shifts all the power to the Executive Branch and makes it highly unlikely anything targeting White House officials will ever make its way into the hands of Congressional oversight.

It would be wholly inconsistent with the IG Act, and undermine IG independence, if the agency head – instead of forwarding the IG’s concerns to Congress as the law requires – sought OLC’s advice so that OLC could consider, and then potentially secondguess, the IG’s determination (a) that the problem, abuse, or deficiency was a “serious” or “flagrant” one, or (b) that it related to the administration of agency programs and operations.

The letter points out allowing the OLC’s determination to stand creates a closed loop where the Executive Branch polices itself. This was undoubtedly the OLC’s intention because it’s highly unlikely it simply made a mistake of law.

In this matter, OLC did not find that production to Congress was limited due to a valid constitutional concern. Rather, OLC substituted its judgment and reversed a determination the statute specifically entrusted to the ICIG because of its independence, objectivity, and expertise to credibly assess the information. […] Further, the opinion potentially creates space for agency heads across government to make their own determinations related to IG jurisdiction or reporting. Such a result would be contrary to IG independence and congressional intent in requiring IGs to maintain independent legal counsel and may impede the ability of Congress and taxpayers to obtain the objective and independent oversight they rely on from IGs.

When the most powerful part of the government becomes a law unto itself, everyone loses.

[T]his concern is not limited to the intelligence community but will have a chilling effect that extends to employees, contractors, and grantees in other parts of the government, who might not consider it worth the effort and potential impact on themselves to report suspected wrongdoing if they think that their efforts to disclose information will be for naught or, worse, that they risk adverse consequences for coming forward when they see something they think is wrong.

If this had only been signed by a couple of IGs who worked regularly with the ODNI, it might have been easy to write this off as the efforts of a few aggrieved watchdogs whose toes had been stepped on. But it’s signed by IGs from all over the federal government, indicating that almost everyone this OLC opinion effects disagrees with it. If it stands, whistleblowing will become more difficult than it already is. When the power shifts in DC, it won’t improve things for whistleblowers. It will only change the party affiliation of the administration benefiting from this decision.

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Comments on “More Than 50 Federal Watchdogs Sign Letter Condemning OLC Decision That Allows White House Counsel To Unilaterally Block Whistleblower Reports”

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Samuel Abram (profile) says:

whistleblowers.

Of course, it was already hard enough for whistleblowers even before Trump took office. Chelsea Manning languished in prison (she had her sentence commuted, granted, but she should not have been in there in the first place), and Edward Snowden fled because he couldn’t be given a fair shot in the justice system like Daniel Ellsberg had decades ago.

While this letter is encouraging, it shouldn’t have taken someone like Trump for them to make it.

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bhull242 (profile) says:

Re: Re: Re:2 whistleblowers.

All other shenanigans aside, there aren’t enough votes in the Senate to convict

That would be an answer to the question, “Why won’t that power be stripped from him?” or “Why shouldn’t we impeach him?” The question asked was, “Why shouldn’t that power be stripped from him?”

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Anonymous Coward says:

Re: Re: Re:2 whistleblowers.

All other shenanigans aside, there aren’t enough votes in the Senate to convict so it’s all political theater.

At this point, it’s pretty much a lock that Trump withheld Congressionally mandated military support to Ukraine in order to extort them into investigating a family member of one of his political rivals. That’s pretty much not in dispute anymore: even the Republicans have switched to attacking the "secrecy" of this portion of the impeachment process, rather than trying to argue that that’s not what he did.

And, while I’m sure there will still be some loyalists in the Senate who will vote to acquit Trump of everything, no matter the seriousness of the crimes and the credibility of the evidence presented, there will surely be a few who will be mindful of the message that it sends, to say that a sitting President is allowed to actively recruit foreign aid to sabotage a rival’s political campaign, with the knowledge that each of the twenty candidates in the Democratic race will be closely watching the outcome. Remember, a lot of these Senators have Presidential aspirations themselves.

Will Republican Senators try every logical fallacy in the book to rationalize voting to acquit Trump, rather than to remove him from office? Absolutely. But the evidence is starting to stack up to the point where even that might not be enough to save him.

Anonymous Coward says:

Re: Re: Re:3 whistleblowers.

Conviction of these politicized charges (whether true or not) can almost certainly be accurately foretold by some basic vote counting in the Senate. There isn’t even close to 2/3 of Senators willing to convict under the current circumstances. It may be possible for Trump to completely screw himself but it’s highly highly unlikely.

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Anonymous Coward says:

Re: Re: Re:4 whistleblowers.

Conviction of these politicized charges (whether true or not) can almost certainly be accurately foretold by some basic vote counting in the Senate. There isn’t even close to 2/3 of Senators willing to convict under the current circumstances.

That depends how you count.

If you count only those who have explicitly stated that they’re willing to convict, then, sure, you’re not going to get the twenty necessary Republican Senators to get you to 67 votes.

If you count everyone who doesn’t categorically rule out voting for conviction, you can get to 93. Ninety-three.

If you pick a number halfway between the 47 Democratic (and Independent) votes the impeachment crowd have on lock-down, and the bipartisan group of 93 who are at least willing to listen to the charges before they rule out conviction…

It’s at least sounding a lot less impossible.

That One Guy (profile) says:

Re: Re: Re:7 'Ah, I see, it's only a problem when used against YOU...'

Can’t imagine why they wouldn’t realize that, not like it’s at all vague or open to interpretation. ‘Anything goes so long as it’s our tribe doing it.’

Not only that, but if they do give Trump a pass on something like that they have also sent the message that they don’t consider such action a problem, which, should they encounter a political opponent down the line who’s as sleazy as they are, could all too easily turn around and bite them.

Kinda hard to object to a political opponent making an open solicitation for dirt on you from anyone who happens to want to offer it after you yourself have made clear that you don’t see any problem with the act when it’s done by no less than the president.

Anonymous Coward says:

Re: Re: Re:4 whistleblowers.

"politicized charges"

Is it the charges themselves that are politicized or is it reporting of the charges, as if they should be secret, or is it some journalists are being a tad over the top?

The laws in question are not all that ambiguous are they? I thought the emoluments clause was rather straight forward, Donny says it is phony and yet I can look up Article I, Section 9, Clause 8 of the United States Constitution … and gasp – there it is!

MathFox says:

Re: Re: whistleblowers.

It could be that in this case it was so obvious that "the official process" is subject to political influence and effectively useless. Snowden and Manning went around the process…

I don’t think it’s about the person of Donald, it’s about the collective action to hide a serious matter by his entourage.

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bhull242 (profile) says:

Re: Re: whistleblowers.

If you don’t like Trump, there’s an election in 12 months.

While the current impeachment proceedings were instigated by the whistleblower report, and the attempt to conceal it from Congress ultimately brought more attention to it, AFAICT, the fact that the whistleblower complaint was initially blocked is not why Trump may be impeached. If he gets impeached, it will likely be for the allegations in the whistleblower complaint, not the blocking of the report.

Obamas & Hillarry loved and defended all Federal whistleblowers. [Obviously being sarcastic.]

1) Hillary is not and never has been president.

2) What Snowden and Manning did wasn’t the same thing as what happened here, which involved the whistleblower attempting to go through official channels. I’m not saying that Snowden or Manning were wrong; if anything, this episode effectively shows why they felt going through official channels would be futile. I’m just saying there is a material difference between the incidents.

3) The fact that other presidents were wrong on this or similar issues doesn’t excuse the current president.

4) To reiterate, the impeachment inquiry is not over the attempt to keep Congress from seeing the whistleblower report—which Trump probably had no personal involvement in anyway.

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David says:

Re: whistleblowers.

Edward Snowden fled because he couldn’t be given a fair shot in the justice system like Daniel Ellsberg had decades ago.

Uh what? Daniel Ellsberg was accused under the Espionage Act, just like Edward Snowden. And the judge shouted down any attempt of Ellsberg to justify what he did, just like Snowden would get shut up. The thing was a complete sham, just like Snowden’s trial would be a sham.

The problem is that the government then proceeded to wiretap the defense, burglared into the office of Ellsberg’s physician and stole files and did a few other shenanigans that caused the judge to throw the whole case out of kangaroo court because he would not be able to perform even this sham trial in a serious manner.

Ellsberg was never acquitted. The judge merely decided that the conduct of the government did not allow him to even perform the farce of justice that the Espionage Act is.

And Ellsberg most certainly did not get a fair shot in the justice system. It’s just that the prosection’s gun self-destructed.

But I suggest you take a look at the trial transcripts before that happened and then say, with a straight face, that this had anything to do with a fair trial. It was a massively unfair kangaroo trial that would have definitely put Ellsberg into the slammer or on death row if Nixon had not bungled it up with his criminal machinations.

Anonymous Coward says:

again, this sort of thing is happening everywhere. all governments are trying to become nothing less than dictators and make themselves above the law. at the same time, the slightest thing that an ordinary person does leads to that person being prosecuted to the fullest extent of the law, even when the ‘crime’ is petty.
the likes of Chelsea Manning has been persecuted for years after blowing the whistle on what happened during the war and the UK government cant grab ankles quick enough or for long enough to get Assange to the USA. i found that most disturbing, given the biased opinion of the female judge in the uk. she was obviously chosen because of the supposed rape issue and has used her bias to speed up the extradition. once in the USA, Assange is going to be locked away and abused for however long is deemed appropriate before being ‘shot while attempting to escape’. how any government of a supposed ‘free’ nation can do what it did then extract revenge on people for blowing the whistle shows that democracy only counts when it is deemed to count!

Anonymous Coward says:

Re: Seems obvious, no?

What if the report contains classified material that even the existence of, would cause untold damage? What if it contains classified foreign policy discussions or personal medical information covered under HIPAA? No one ever having the ability to block a report just because it happens to be classed as "whisleblower" is a dumb idea.

Anonymous Coward says:

Re: Re: Seems obvious, no?

Why would you not trust an oversight comity of elected representatives with sensitive information, as handling things like that is part of their job description. If sensitive information can be used to block reports, then government agencies will use that to escape from oversight, turning them in unaccountable agencies outside government control.

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Anonymous Coward says:

Re: Re: Seems obvious, no?

Congress has procedures for and can access classified information. That’s actually one of their main jobs. As far as I know the only information that can be withheld from congress is information that Congress has passed a law to withhold from itself or personal advice from the President’s advisors to the President.

Anonymous Coward says:

Re: Re: Seems obvious, no?

What if the report contains classified material that even the existence of, would cause untold damage?

"Untold damage" to whom? Perhaps I should point back to the post, which clarifies that the issue here is that the report is going to be blocked by the agency that committed the offense from which the whistleblower report springs.

Anonymous Coward says:

It’s like they’re saying "please impeach me, impeach me for trying to overturn the law by executive fiat rather than the court system or normal legislative process".

Laws have been overturned by executive fiat before, and Trump has never stopped bitching about Obama doing it.

Do you think the impeachment committee will just subpoena every whistle-blower report in response?

Anonymous Coward says:

Re: Re:

"Laws have been overturned by executive fiat before"
. The executive order negates and removes the entire law? Isn’t that what overturned means or was there a specific part of said law the order addresses and therefore use of the word overturned is incorrect.

"Trump has never stopped bitching about Obama doing it."
. Because only the Chosen One is allowed to issue executive orders, it says so in their personal GOP version of the constitution doesn’t it?

"Do you think the impeachment committee will just subpoena every whistle-blower report in response?"
. As if the GOP and friends will follow the law, they haven’t yet.

Anonymous Coward says:

Re: Re: Re:

The executive order negates and removes the entire law? Isn’t that what overturned means or was there a specific part of said law the order addresses and therefore use of the word overturned is incorrect.

I haven’t gotten out the text of the law but my understanding is that it directs the IGs to forward reports to congress under certain conditions. The office of the legal counsel interfering in the IGs’ mandated duty seems to be unlawful. So, yes, from what I’ve read it overturns part of the law.

When laws go under judicial review parts deemed "severable" are overturned all the time, the rest of the law is often left in place so you can overturn just part of a law.

https://law.justia.com/constitution/us/acts-of-congress-held-unconstitutional.html

bobob says:

Well, we already know what happens to whistleblowers who are unmasked, e.g., Ed Snowden, Thomas Drake, Chelsea Manning, John Kiriakau and who knows how many more. The unmasking whistleblowers is about the most undemocratic idea that has ever been proposed. Fuck the administrsation (and obama’s administration and bush’s administration and…) Unmasking (a euphemism for intimidation and prosecution of) whistleblowers has only served to protect those who are responsible for abuses (including war crimes) from being held accountable. Merit attaches to the message, not the messenger.

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Anonymous Coward says:

We… share the ICIG’s concern that the OLC opinion could seriously impair whistleblowing and deter individuals in the intelligence community and throughout the government from reporting government waste, fraud, abuse, and misconduct.

But that is exactly what the OLC opinion is supposed to do: stop whistleblowing.

That One Guy (profile) says:

Re: Object and perhaps be ignored, stay silent and ensure it

Yes and no. While they aren’t likely to have any impact on their own there’s still value in making it clear that 50 different IG’s, spread across multiple government agencies, believe that the OLG got it seriously wrong when it argued that the very branch that’s being accused of wrongdoing should have veto power over attempts to expose wrongdoing.

Even if it doesn’t accomplish more than making their objections clear that’s still going to be more productive and helpful then not saying anything at all, and just letting a seriously flawed argument stand unchallenged.

Rekrul says:

Re: Re: Object and perhaps be ignored, stay silent and ensure it

Even if it doesn’t accomplish more than making their objections clear that’s still going to be more productive and helpful then not saying anything at all, and just letting a seriously flawed argument stand unchallenged.

I don’t think it should go unchallenged, it just frustrates the hell out of me that people/congress write these letters of disapproval and/or letters "demanding" more information on a topic and the recipients just laugh and wipe their asses with them.

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Anonymous Coward says:

The only Pro Quo here is from BIDEN who did in fact threaten to withhold 1 BILLION dollars as Vise President. That is right out of his own mouth. Fire the Prosecutor looking into his son’s case, they had 8 hours to do it before he took off.

Trump didn’t do anything wrong. This is more Leftist LIES. Flat out lies!!! This crap gets thrown out there, and then the retractions come later that are basically ignored.

The leftist have been trying to Impeach Trump before he took office and had a chance to do anything and they haven’t stopped since. If you don’t step in line with this garbage, they will throw you under the bus and say as Hillary had, that you are Working for the Russians. She actually accused Tulsi Gabbard a Democrat running for President.

https://www.washingtonpost.com/politics/2019/10/22/some-democratic-candidates-are-defending-tulsi-gabbard-against-hillary-clintons-accusations-lot-intelligence-experts-arent/

This crap is just getting old.

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Anonymous Coward says:

Re: Re:

The only Pro Quo here is from BIDEN who did in fact threaten to withhold 1 BILLION dollars as Vise President.

Yes, because repeating the threat that (checks notes) the entire rest of the government was in support of (because he was a known corrupt prosecutor) and wanted him to do is exactly the same as making a private threat that only the president wanted for the sole purpose of digging up dirt on his political enemy and the entire rest of the government was against.

Fire the Prosecutor looking into his son’s case, they had 8 hours to do it before he took off.

Six, actually, and they weren’t looking into "his son’s case". It was a case against the company in general. Not specifically Hunter himself. Might want to check your facts there.

Trump didn’t do anything wrong.

Holding up already approved support funds for the sole purpose of getting a promise to dig up dirt on your political enemy IS wrong and in violation of the Constitution, specifically the emoluments clause (Which, yes, is a thing contrary to Trump’s assertion otherwise. Apparently he also can’t read.). To date there is exactly ZERO evidence that either of the Bidens acted improperly. Was there a conflict of interest? Absolutely. But there is nothing to suggest that any action was taken towards that end.

This is more Leftist LIES. Flat out lies!!!

It’s not a lie if it actually happened. He did it and admits to doing it. That’s some serious denial you have going on there.

This crap gets thrown out there, and then the retractions come later that are basically ignored.

You mean like Mulvaney admitting this is exactly what happened and then unsuccessfully trying to say that’s not what he meant to say?

The leftist have been trying to Impeach Trump before he took office

Pfft! Ha! That’s a good one since before he was elected he was just a private citizen and COULDN’T be impeached. Also, (checks notes again) it wasn’t until September that they ACTUALLY TRIED to impeach him and started the process. So you’re blatantly wrong. They may have wanted to before now but they didn’t actually start trying until now.

If you don’t step in line with this garbage, they will throw you under the bus and say as Hillary had, that you are Working for the Russians.

Um, the only ones being accused of working for the Russians are Tulsi and Trump. And, you know, all those Russian agents they indicted a while back.

She actually accused Tulsi Gabbard a Democrat running for President.

And that doesn’t make Hillary the voice of all democrats in the US.

This crap is just getting old.

What’s getting old is all the god worship of A MAN from practically every single Republican. Nobody, right or left, deserves that level of blind worship and boot licking. Like it or not, Trump has made mistakes and continues to make some pretty severe ones. Like defunding and forcing out all the IT and security guys who keep the IT systems secured. This is the same group that was created specifically after a foreign government breached a WH network. Tell me again how he is doing an awesome job keeping our country safe.

That One Guy (profile) says:

Re: Re: Re:

"It is my express opinion that the remaining incumbent OCISO staff is being systematically targeted for removal from the Office of Administration," departing White House network defense branch chief Dimitrios Vastakis wrote in the memo. The security team had seen incentive pay revoked, scope of duties cut, and access to systems and facilities reduced, Vastakis noted. Staffers’ "positions with strategic and tactical decision making authorities" had also been revoked. "In addition, habitually being hostile to incumbent OCISO staff has become a staple tactic for the new leadership… it has forced the majority of [senior civil servant] OCISO staff to resign."

Vastakis warned that the transferral of virtually all of the White House’s cybersecurity operations to the White House Communications Agency—a Defense Department organization that falls under the Defense Information Systems Agency—was in "direct conflict" with the advice of the Office of Administration’s general counsel. He added that it also puts information required to be preserved by the Presidential Records Act outside of the Executive Office of the President’s oversight.

There is just so much screwed up with that article at the end. It would be one thing to be greedy and/or incompetent by trying to cut the budget, but being actively hostile to those that are still working there? As utterly insane as it sounds it almost looks like they are trying to drive anyone who actually knows what they are doing away in order to ensure that the systems would be hacked in the future, and/or shut the group down entirely by driving everyone away in order to shift all of it’s current power to a different agency for… whatever the hell the reasons could be.

Whatever the motivations I can’t see how they could possibly be good ones.

Anonymous Coward says:

Re: Re: Re: Re:

I really can’t disagree with you on any of that. This is the part that REALLY gets me (I mean all of it does but…):

The security team had seen…..access to systems and facilities reduced

You do not secure your network by taking access to it away from the team designated to secure it. I mean, WTF.

Whatever the motivations I can’t see how they could possibly be good ones.

Agreed, though I’m open to being convinced that this is just massive incompetence. He’s a businessman who thinks he knows best. I’ve worked for companies who were headed by those kinds of people and without fail those companies’ IT departments were absolute bottom of the barrel and consistently told to make do but were then reamed when their 20 year old systems died. Very similar to this.

In either case, it’s not good.

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Mike Masnick (profile) says:

Re: Going through this list of IG...

A pattern emerges…

Yeah. The pattern being… that they’re all Inspector Generals who would be the most knowledgeable people on this particular subject.

I’m curious what pattern you see.

This sure looks like another meaningless DNC political stunt.

Only if you’re completely clueless or so far up Trump’s ass as to not matter.

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