The Whistleblower Status Critique – Critiqued (UPDATED)

JUMP to update

Sean Hannity had Sean Davis on his show and in two short answers responds to critics of his article over at the Federalist: “Intel Community Secretly Gutted Requirement Of First-Hand Whistleblower Knowledge“.

See also:

You can also view the document change here (Twitter):

Here are a few follow up articles discussing the admitted changes to the form…


UPDATE


The first article show that the DAILY BEAST article notes the change (EMPHASIS added):

Late yesterday the IC IG finally provided a public explanation in a news release, where they acknowledged the changes to the form instructions were made in part “in response to recent press inquiries regarding the [Ukraine] whistleblower complaint.”  Clearly the IC IG understood the potential for a public outcry if he certified a complaint as “credible” where the whistleblower stated “I was not a direct witness to most of the events described” while the instructions for his own intake form still listed a warning that “[t]he IC IG cannot transmit information via the ICPWA based on an employee’s second-hand knowledge of wrongdoing.”

[….]

Ironically, the Daily Beast article inadvertently destroys its own claim that this is a “false story.” In their zeal to dismiss the importance of the altered requirement for first-hand knowledge, the article explains that first-hand evidence is the threshold to determine what is “credible” under the statute: “Though the text is confusingly drafted—which may be why the entire preamble was canned—A CAREFUL READING SHOWS IT’S NOT ERECTING A NEW HURDLE FOR FILING A WHISTLEBLOWER COMPLAINT, BUT RATHER DESCRIBING THE TYPE OF EVIDENCE THE IC IG HAS TO GATHER TO JUDGE THE COMPLAINT ‘CREDIBLE’ AT THE END OF ITS 14-DAY INVESTIGATION.”

(FEDERALIST)

In another article, the changes are noted from the September 30th letter from the IC IG’s office:

The Intelligence Community Inspector General released a statement admitting the office changed its forms for whistleblowers between May 2018 and August 2019, as The Federalist first reported. As The Federalist’s Sean Davis noted, “The new complaint document no longer requires potential whistleblowers who wish to have their concerns expedited to Congress to have direct, first-hand knowledge of the alleged wrongdoing that they are reporting.”

The timing of the change is important, as it bookends the period when an anonymous person filed a whistleblower complaint against President Donald Trump for a phone call with the president of Ukraine. In the call, the president asked the Ukrainians to continue investigating political corruption that may implicate Joe Biden and his son, Hunter Biden.

In a statement on processing whistleblower complaints, the IG admitted they changed the forms:

In June 2019, the newly hired Director for the Center for Protected Disclosures entered on duty. Thus, the Center for Protected Disclosures has been reviewing the forms provided to whistleblowers who wish to report information with respect to an urgent concern to the congressional intelligence committees. In the process of reviewing and clarifying those forms, and in response to recent press inquiries regarding the instant whistleblower complaint, the ICIG understood that certain language in those forms and, more specifically, the informational materials accompanying the forms, could be read – incorrectly – as suggesting that whistleblowers must possess first-hand information in order to file an urgent concern complaint with the congressional intelligence committees.

The ICIG’s Center for Protected Disclosures has developed three new forms entitled, ‘Report of Fraud, Waste, and Abuse UNCLASSIFIED Intake Form’; ‘Disclosure of Urgent Concern Form-UNCLASSIFIED’; and ‘External Review Panel (ERP) Request Form – UNCLASSIFIED.’ These three new forms are now available on the ICIG’s open website and are in the process of being added to the ICIG’s classified system. The ICIG will continue to update and clarify its forms and its websites to ensure its guidance to whistleblowers is clear and strictly complies with statutory requirements. Consistent with the law, the new forms do not require whistleblowers to possess first-hand information in order to file a complaint or information with respect to an urgent concern”

While law does not require those who file whistleblower claims to offer first-hand information of an urgent concern, federal regulations laid out in the “Background Information on ICWPA Process” state the ICIG must possess reliable, first-hand information in order to find the whistleblower credible.

Despite the form changes and the requirement for possession of first-hand information, the ICIG statement admits the Ukraine whistleblower filed an outdated report and checked that he or she had first-hand knowledge of the experience, which the complaint itself contradicts…..

(FEDERALIST)

The third article is Sean Davis explaining what the IC IG admitted to Monday, and explains again what the audio at the beginning of the post notes:

On Monday, the intelligence community inspector general (ICIG) admitted that it did alter its forms and policies governing whistleblower complaints, and that it did so in response to the anti-Trump complaint filed on Aug. 12, 2019. The Federalist first reported the sudden changes last Friday. While many in the media falsely claimed the ICIG’s stunning admission debunked The Federalist’s report, the admission from the ICIG completely affirmed the reporting on the secretive change to whistleblower rules following the filing of an anti-Trump complaint in August.

[….]

In its press release, the ICIG also explicitly admitted it changed its policies because of the anti-Trump complaint, raising significant questions about whether the watchdog cooked its own books to justify its treatment of the anti-Trump complaint:

In the process of reviewing and clarifying those forms, and in response to recent press inquiries regarding the instant whistleblower complaint, the ICIG understood that certain language in those forms and, more specifically, the informational materials accompanying the forms, could be read — incorrectly — as suggesting that whistleblowers must possess first-hand information in order to file an urgent concern complaint with the congressional intelligence committees.

[….]

Because the complaint did not allege wrongdoing against a member of the intelligence community (the president of the United States is an elected constitutional officer, not an employee of a statutory agency), did not allege wrongdoing with regard to an intelligence activity (a phone call between two elected world leaders is basic diplomacy, not the execution of a statutorily required intelligence activity), and relied primarily on hearsay rather than firsthand evidence, both the director of national intelligence (DNI) and the Department of Justice Office of Legal Counsel determined that the anti-Trump complaint was not an “urgent concern” under the law and was therefore not required to be transmitted to the relevant congressional committees. In spite of those determinations, the ICIG on its own and after revising its internal guidance and policies regarding firsthand evidence decided the complaint did qualify as an “urgent concern” and forwarded the anti-Trump complaint to Congress.

(FEDERALIST)

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