How the Intelligence Whistleblower Law Works. Whistleblower Confidentiality and Protection from Retaliation Requirements
In September 2019, the news media and Congress reported that an unknown whistleblower had filed a complaint which involved conversations President Trump had with the President of Ukraine. The complaint appears to involve allegations that President Trump pressured the Ukrainian President to investigate Vice President Biden’s efforts to remove a prosecutor while Biden was a sitting Vice President.
A whistleblower filed the complaint with Michael Atkinson, the inspector general of the intelligence community. Mr. Atkinson found that the complaint was of “urgent concern and credible.” He then notified Joseph Maguire, the acting director of national intelligence. Normally, the director of national intelligence would be bound to present Mr. Atkinson’s findings to Congress within a week. Instead, Mr. Maguire, on the advice of the Department of Justice only alerted Congress to the existence of the whistleblower complaint but not to its contents.
The intelligence whistleblower law and retaliation
The current whistleblower complaint was filed through a 1998 law called the Intelligence Community Whistleblower Protection Act which created procedures for employees to divulge misconduct while, according to the Washington Post, guaranteeing that classified information stays classified. This law provides that the intelligence whistleblower is “protected from retaliation so long as he or she follows the protocol when filing a complaint.”
Generally, federal and state whistleblower laws should protect whistleblowers from retaliation against anyone who reports employer misconduct – even if that employer is the President of the United States. The danger of retaliation includes more than just termination of employment. It can also include the threat of criminal prosecution.
How an employee files an intelligence whistleblower claim?
The employee files his/her complaint with the inspector general of the intelligence community. The IG must review the complaint within 14 days and determine if it raises an “urgent concern.” Urgent concern is defined as – involving conduct “relating to” the “administration or operation of intelligence activity within the authority of the Director of National Intelligence involving classified information.”
If the IG determines that the complaint is credible, the IG sends it to the director of national intelligence who must send the complaint (and accompanying information) to the Congressional intelligence oversight committee.
“If the inspector general decides it’s not credible, or if he or she does not act on the complaint, the whistleblower can contact the congressional intelligence committees directly but must tell the inspector general and seek guidance from the director of national intelligence to contact the committees securely.”
In the current national headline case, the acting director wrote the head of the congressional intelligence oversight committee that he did not believe the whistleblower complains was of “urgent concern” and that it involved “conduct by someone outside the Intelligence Community and did not relate to any ‘intelligence activity within the responsibility and authority of the DNI,’ ” The acting director, through his general counsel, also claimed the complaint would “violate the president’s authority to control classified information and the whistleblower and inspector general were barred from sending the information directly to Congress.”
Some legal advocates assert that the decision of the IG is binding and can’t be overridden by the acting director of the Justice Department. Others say that the acting director and the Department of Justice have the final say. The dispute over the whistleblower complaint and the call made by President Trump to the Ukrainian leader have created political headlines about the release of the complaint and what happened during the call.
Legal experts disagree about whether the whistleblower could be prosecuted for sharing the complaint with the Congressional intelligence oversight committee. Most say the real risk is that the whistleblower would be fired.
Other federal whistleblower laws
Most whistleblower claims are brought the Federal False Claims Act. Whistleblower.org defines these various federal laws as follows:
- “False Claims Act / Qui Tam – This qui tam law allows for whistleblowers to file a claim on behalf of the U.S. government against any entity that has defrauded the government. Whistleblowers may be eligible for a reward between 15-30 percent of the amount recovered.”
- “IRS / Qui Tam – Allows individuals who provide original information to the IRS about the violation of tax laws or the underpayment of taxes to be eligible for a reward conditional on the collected proceeds obtained by the IRS.”
Other whistleblower protection laws include:
- Act to Prevent Pollution from Ships (APPS) / Qui Tam
- Wildlife Whistleblower / Qui Tam
- Sarbanes-Oxley Act
- Dodd-Frank Act / Securities Qui Tam
- Dodd-Frank Act / Commodities Qui Tam
The Occupational Safety Health Administration’s Whistleblower Protection Program is another whistleblower protection law
Confidentiality and protection from retaliation during the whistleblower process
Generally, whistleblower laws are designed to protect the confidentiality of the whistleblower and to protect the whistleblower against acts of retaliation by an employer or by the person/entity that is the subject of the whistleblower complaint.
The whistleblower laws generally:
- Allow someone to file a complaint anonymously – if they are represented by counsel.
- To file the complaint with the appropriate agency – but the agency is forbidden from revealing the identity of the whistleblower – until a formal proceeding is instituted by the government against a defendant. Even here, every effort is made to protect the identity of whistleblower unless the whistleblower must testify in a judicial proceeding against the defendant.
- To file the complaint under seal while notifying the appropriate agency that a complaint has been filed.
- The identity of the whistleblower cannot be disclosed during the proceeding or after the proceeding:
- Through civil discovery
- Through the Freedom of Information Act
- Through other legal processes
- The information in the complaint can be revealed to the US Attorney General and certain other approved agencies – without revealing the identity of the whistleblower – in order to investigate and pursue the underlying claim.
In general, whistleblower lawyers protect the relator/the whistleblower from retaliatory actions by employers. Retaliation includes firing, demotion, blacklisting, discrimination and harassment of the whistleblower, actions that prevent the employee’s ability to advance his/her career, and other actions to punish a worker for filing a whistleblower claim.
This protection includes the right to file a lawsuit against anyone who retaliates and claim damages for:
- The loss of any income and the loss of any benefits
- Job reinstatement or pay at the employee’s salary until a new job can be found
- Emotional distress, damage to reputation, and humiliation damages
- Statutory and punitive damages
- Attorney’s fees and court costs
Experienced whistleblower lawyers understand how critical it is for whistleblowers to protect their identity for personal privacy reasons and to protect against retaliatory action by the people and companies whose misconduct the whistleblower reveals. We have a complete awareness of all federal and equally applicable state laws such as in California which provide protection against disclosure and retaliation.
The experienced whistleblower lawyers at Stephen Danz & Associates have been fighting for the rights of employees, including the right to file whistleblower claims, for 40 years. We represent whistleblowers before federal and state agencies and in federal and state courts so that the whistleblower can get the full award he/she deserves and their identity is kept confidential according to the laws. We use the federal and state whistleblower laws as much as a proactive sword, not just a defensive shield against retaliation by an experienced qui tam attorney.
To learn how to file a whistleblower claim for any type of fraud or employer misconduct, call us at (877)789-9707 or complete our contact form to make an appointment. Se habla espanol.