UNCLASSIFIED / FOUO

INSPECTOR GENERAL OF THE INTELLIGENCE COMMUNITY

WASHINGTON , D . C . 20511

September 9, 2019

VIA ELECTRONIC TRANSMISSION

The Honorable Adam Schiff

Chairman

Permanent Select Committee on Intelligence

U . S . House of RepresentativesWashington , D . C . 20515

The Honorable Devin Nunes

RankingMember

PermanentSelectCommittee on IntelligenceU . S . House of RepresentativesWashington, D . C . 20515

Dear Chairman Schiff and RankingMemberNunes:

(U // FOUO ) On August 12 , 2019, the Office of the Inspector General of the Intelligence

Community (ICIG ) received a disclosure from an individual (hereinafter “the Complainant )

regarding an alleged " urgent concern ,―pursuant to 50 U . S . C . 3033(k ) ( 5 ) ( A ) . The term “

concern ―is defined, in relevant part, as:

(U ) A serious or flagrant problem , , violation the law or Executive

order, or deficiency relating to the funding, administration , or operation ofan intelligence activity within the responsibility and authority of the

Director of National Intelligence involving classified information , but doesnot include differences of opinions concerning public policy matters .

) 50 U . S. C . (k) (5 )( A ) provides that an of an element of the intelligence community , an employee

assigned or detailed to an element of the intelligence community , or an employee of a contractor to the intelligence

community who intends to report to Congress a complaint or information with respect to an urgent concern may report

such complaint or information ―to the ICIG .

2 (U ) 50 U . S. C . 3033(k )( 5) (G (i ) .

UNCLASSIFIEDI/ FOUO

UNCLASSIFIED /FOUO

(U / /FOUO) After receiving the Complainant' s disclosure, the ICIG was required within 14calendar days to determine whether the information alleged by the Complainant with respect to anurgent concern appeared credible. During that 14 -day time period, the ICIG conducted apreliminary review of the disclosure. As a result of that preliminary review, I determined that theComplainant' s disclosure met the definition of an urgent concern, i .e., a " serious or flagrantproblem 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 ofthe Director of National Intelligence involving classified information. also determined thatthere were reasonable grounds to believe that information relatingto the urgentconcern appearedcredible.

( U // FOUO ) On August , 2019, I forwarded the Complainant' s disclosure andaccompanying materials, along with my determination that the Complainant' s information

appeared credible, to the Acting DirectorofNational Intelligence (Acting DNI) . Pursuant to theurgent concern statute , upon receipt of the ICIG ' s transmittal, the Acting DNI within sevencalendar days is requiredto forward such transmittalto the congressional intelligencecommittees

alongwith any comments he considers appropriate.

(U // FOUO It is my understanding that the Acting DNIhas determined that he is not

required to transmitmy determination of a credible urgent concern or any of the Complainant' sinformation to the congressional intelligence committees because the allegationsdo notmeetthe

definition ofan " urgentconcern the statute , and hasnotmade the transmission asof today' s

date . Although I believe and appreciate that the Acting DNIis acting in good faith , the ActingDNI' s treatment of the Complainant' s alleged " urgent concern doesnot appear to be consistent

with past practice. As you know , the ICIG has on occasion in the past determined that, for a variety

of reasons, disclosures submitted to the ICIG under the urgent concern statute did not constitute

an urgentconcern . In those cases, even though the ICIG determined that those disclosures did not

meet the definition of an urgent concern, the DNInevertheless provided direction to the ICIG

transmit the ICIG ' s determination and the complainants ' information to the congressional

intelligence committees. In each of those cases, the ICIG followed the DNI' s direction andtransmitted the ICIG ' s determination along with the complainants' information to the

congressional intelligence committees. That past practice permitted complainants in the

Intelligence Community to contact the congressional intelligence committees directly , in an

authorized and protected manner, as intended by the urgent concern statute .

(UI/FOUO ) I am continuingmyefforts to obtain direction from the Acting DNIregarding

how the Complainant may bring the Complainant' s concerns to the congressional intelligence

3 ( U ) Id. at 3033( k)( 5)( B )

(U ) . (k ) 5) G )(i ).

(U Id. at 3033( k)(5) ( B ).

Id at 3033(k )(5)(C ).

UNCLASSIFIEDI

UNCLASSIFIEDI/ FOUO

committees in an authorized and protected manner, and accordance with appropriate security

practices." intend to reach back out to you in the near future to discuss myattempts to resolveoutstanding issues relating to this matter.

(U ) Please contactme if you have any questions.

Sincerely yours

Michael K . Atkinson

Inspector Generalof the Intelligence Community

cc: The Honorable Joseph MaguireDirector of National Intelligence (Acting)

Id. at 3033( k )( 5 )( D ) (ii) .UNCLASSIFIED / /FOUO

ONE HUNDRED SIXTEENTH CONGRESSADAM B . SCHIFF, CALIFORNIA

CHAIRMAN DEVIN NUNES, CALIFORNIARANKING MEMBER

TIMOTHY BERGREEN, STAFF DIRECTOR

( 202 ) 225 - 7690

www .intelligence .house .govALLEN , MINORITY STAFF DIRECTOR

Permanent Select Committee

on Intelligence

U . S . House ofRepresentatives

September 10 , 2019

The Honorable Joseph MaguireActing Director of National Intelligence

Office of the DirectorofNational Intelligence

Washington, D . C. 20511

Dear Acting Director Maguire:

The House Permanent Select Committee on Intelligence (“Committee has learned that,

contrary to your express obligations under the law , you are withholding from the Committee an

authorized and protected whistleblower disclosure involving “a serious or flagrant problem ,

abuse , violation of law or Executive order , or deficiency relating to the funding, administration ,

or operation ofan intelligence activity within the responsibility and authority of the Director of

National Intelligence involving classified information .

On August 26 , 2019, consistent with the procedures in the IntelligenceCommunity

Whistleblower Protection Act (“ICWPA the Inspector Generalof the Intelligence Community

( “ICIG ―) transmitted to you a whistleblower disclosure intended for Congress, which an

individualwithin the Intelligence Community lawfully submitted to the ICIG on August 12,

2019. Based on a preliminary review conducted within the 14 -day period providedby the statute,

theICIG determined that the disclosure meets the statutory definitionofan urgent concern ―and

that there are reasonable grounds to believe the information relating to the urgent concern is

credible.

The ICWPA requires you to forward allwhistleblower transmittals from the ICIG to the

congressional intelligence committees within a statutorily mandated 7 -day period . You should

. S. C. k )(5) ( ).

2 50 U . S.C . k ) ( 5) (A ) requires that “upon receiptof a transmittal from the Inspector general ..the Director

shall, within 7 calendar days of such receipt, forward such transmittal to the congressionalintelligence committees,

together with any comments the Director considers appropriate―(emphasisadded). The statute doesnotprovidethe

Director of National Intelligencewith discretion to withhold a whistleblower disclosure.

have therefore transmitted the disclosure to the Committee , together with any comments you

consider appropriate , no later than September 2 , 2019 .

In an unprecedented departure from past practice, you have not transmitted the disclosure

to the Committee , norhave you notified the Committee of the fact ofthe disclosure or your

decision not to transmit it to the Committee. Instead, in a manner neither permitted nor

contemplated under the statute, you have taken the extraordinary step of overruling the

independent determination of the ICIG and preventing the disclosure from reaching the

Committee

Wedo notknow whether this decision to withhold the disclosure wasmade only by you ,

or whether it involved interference by other parties , including the White House. The

Committee' s recent experience has heightened concern of improper White House efforts to

influence your office and the Intelligence Community . The failure to transmit to the Committee

an urgent and credible whistleblower complaint, as required by law , raises the prospect that an

urgent matter of a serious nature is being purposefully concealed from the Committee .

Consistent with your obligations under the statute , the whistleblower ' s complaint and the

ICIG 's determination must be transmitted to the Committee their intended recipient without

delay and in their entirety . You also must furnish immediately to the whistleblower , through the

ICIG , any necessary direction on appropriate security procedures for the whistleblower to

contact the Committee directly Finally , the Committee expects to receive your express

assurance that all of the whistleblower protections included in the ICWPA will be afforded to the

complainant in this case.

Absent immediate compliance with the above, the Committee will resort to compulsory

process to compel production of the entire whistleblower complaint in complete and unaltered

form , the ICIG ' s determination , as well as all records pertaining to you and your office' s

involvement in this matter , including any and all correspondence with other Executive Branch

actors , to include the White House. The Committee will also require your appearance before the

Committee to testify publicly about this matter .

The statutorily -protected right of Intelligence Community employees to makedisclosures

to Congress is sacrosanct and must remain insulated from politicization . The Committee will

take all steps necessary to ensure this right isupheld .

3 Even ifthe ICIG hadnotdetermined that the disclosure constituted an urgentconcern, the statute provides for an

Intelligence Community whistleblower to contact the congressional intelligence committees directly after the

whistleblowerprovides notice to the ICIG of his orher intent to contact the congressional intelligence committees

directly , and obtains and follows direction from you, as the Acting Director of National Intelligence, on how to

contact the congressional intelligence committees in accordance with appropriate security practices. 50 U .S .C .

k) (5 ) ( D ) (ii). There is no for you to withhold guidance from a whistleblower to permit them to make a

disclosure directly to the Committee.

I look forward to receiving the complaint in full immediately , together with any

comments you consider appropriate .

Sincerely

Adam B . Schiff

Chairman

ONE HUNDRED SIXTEENTH CONGRESSADAM B . SCHIFF, CALIFORNIA

CHAIRMAN

DEVIN NUNES, CALIFORNIARANKING MEMBERTIMOTHY BERGREEN , STAFF DIRECTOR

(202) 225- 7690

www . intelligencehousegov ALLEN , MINORITY STAFF DIRECTOR

Permanent Select Committee

on Intelligence

U . S . House of Representatives

September 13, 2019

The Honorable Joseph MaguireActing Director ofNational Intelligence

Office of the Director of National Intelligence

Washington , D . C . 20511

Dear Acting Director Maguire :

No later than September 2, 2019, the House Permanent Select Committee on Intelligence

( Committee ―) should have received from you , as required by law , an urgentwhistleblowerdisclosure involving or flagrant problem , abuse, violation of 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 ofNational Intelligence involving

classified information . More than ten days later, the Committee has notreceived the disclosure,in violation of the law .

Consistentwith his obligations under the Intelligence Community ' s whistleblower

statute the IntelligenceCommunity Inspector General' s (“IC IG ) determined that an August12, 2019 whistleblower disclosure intended for the congressional intelligence committees from

an individualwithin the Intelligence Community satisfied the statutory definition ofan urgent

concern . Based on a preliminary review conducted within the 14-day period provided by law ,the IC IG also determined that there are reasonable grounds to believe that the information

relating to the urgent concern is credible.

On August 26 , the IC IG forwarded the disclosure and accompanying materials, along

with his credibility determination , to you. Pursuant to the statute , this triggered a 7 -day period

within which you , in your capacity as Acting Director ofNational Intelligence (“DNI―)

“shall . . forward such transmittal to the congressional intelligence committees , together with any

. S. C . k) (5) ( ).

2 50 U . S. C . k)(5).

3 Letter from IC Michael Atkinson to Chairman Adam B . Schiff and RankingMemberDevin Nunes, September9, 2019.

comments the Director considers appropriate. The Committee should have therefore received

this urgentwhistleblower disclosure from you no later than September 2, 2019 .

Yet, in violation of the statute ' s explicit command, and in a stark break with the unbroken

practice ofprevious Directors ofNational Intelligence, you haverefused to transmit to the

Committee the whistleblower disclosure, along with the IC IG determination that the

information in the disclosure represents a credible urgentconcern — even after the Committee' s

formal requeston September 10, 2019 . So far as the Committee is aware, this marks the first

a DirectorofNational Intelligence hasever sought to overrule the IC IG and conceal fromCongress a whistleblower complaint in this case, one the IC IG has already determined to be a

credible urgent concern . have also refused, in further contravention of the statute, to

provide the whistleblower with required direction , through the IC IG , on how to contact the

Committee directly in a secure manner.

AsActing Director ofNationalIntelligence, you have neither the legal authority nor the

discretion to overrule a determinationby the IC IG . Moreover, you do not possess the authorityto withhold from the Committee a whistleblower disclosure from within the Intelligence

Community that is intended for Congress.

Your office has attempted to justify doing so based on a radicaldistortion of the statute

that completely subverts the letter and spirit of the law , aswell as arrogates to the Director of

National Intelligence authority and discretion he does not possess. Under the statute , the Director

serves as a conduit to transmit the complaint to the congressional intelligence committee with

any comments the Director considers appropriate and consistent with proper security practices.

Even though the disclosure wasmade by an individualwithin the Intelligence

Community through lawful channels, you have improperly withheld that disclosure on thebasis

that, in your view , the complaintconcerns conduct by someone outside of the Intelligence

Community and because the complaint involves confidentialand potentially privileged

communications. In a further departure from the statute, your office consulted the Departmentof

Justice about the complaint, even though the statute doesnotprovideyou discretion to review ,

appeal, reverse, orcountermand in anyway the IC IG s independentdetermination, let alone to

involve another entity within the ExecutiveBranch in the handlingofa whistleblower complaint.

Your office, moreover, has refused to affirm ordeny thatofficials or lawyers at the White House

have been involved in your decision to withhold the complaint from the Committee. You havealso refused to rule out to methat the urgent concern , and underlying conduct, relates to an area

of active investigationby the Committee.

4 50 U .S. C. k ) (5) ( C ) . Emphasis added .

the ICIG had determined that the complaintdid not amount to an urgent concern , you are required by law

to provide direction to the complainant, through the IC IG , as to how to contact the Committee directly in a secure

manner. 50 U . S . C . D ).

650 S. C . k ) (5) ( A ) requires that upon receipt of a transmittal from the Inspector general. .. Director

shall, within 7 calendar days of such receipt, forward such transmittal the congressional intelligence committees ,

together with any comments the Director considers appropriate―(emphasis added ).

The Committee can only conclude, based on this remarkable confluence of factors ,that the seriousmisconduct at issue involves the Presidentof the United States and/ or othersenior White House or Administration officials . This raises grave concerns that your office,together with the Departmentof Justice and possibly the White House , are engaged in anunlawful effort to protect the President and conceal from the Committee information related to

his possible serious or flagrant misconduct , abuse of power, or violation of law .

Accordingly , due to the urgency of thematter and the unlawfuldecision by your office to

withhold from the Committee an Intelligence Community individual' s credible " urgent concernwhistleblower disclosure , the Committee hereby issues the attached subpoena compelling you totransmit immediately to the Committee the disclosure , in complete and unaltered form , as well as

to produce other related materials.

Absent compliance by Tuesday, September 17, the Committee will require you toappear for a public hearing on Thursday , September 19 to account for the decision to withhold

the whistleblower complaint from the Committee intended recipient in violation of the

statute. The Committee — and the American people — must know why, in violation of law , awhistleblower complaint is being concealed , whether the underlying conduct involves thePresident or those around him , and whether the White House is involved in trying to cover upthis authorized disclosure .

As explained in more detail in Schedule A of the subpoena , the Committee requires that

you produce to the Committee the following information :

( 1 The complete and unaltered whistleblower disclosure, including any annexes,addenda , or accompanying materials, regardless of classification ;

( 2 ) The IC IG ' s credibility determination regarding the disclosure, along with anyadditional accompanying materials submitted by the IC IG to you ; and

( 3 ) Any and all communications , records, memoranda , and documents related to the

decision to withhold the disclosure to the Committee , including butnot limited to any

materials that relate to or involve officials at White House or the Department ofJustice .

Finally , aswe discussed at length on September 12 , the Committee expects thewhistleblower to be fully protected from any action constituting reprisal, or threat of reprisal.

This includes any adverse personnel action for making the disclosure to the IC IG and , ifhe or

she so elects, for contacting the Committee directly , as permitted under the statute. I appreciatedyour personal assurance that thewhistleblower must be protected. Ensuring such protection

remains in effect is a priority for the Committee. To that effect, the Committee requires an

assurance in writing from your office thatno reprisal of any kind, or threat of reprisal, shall bedirected at the whistleblower from any official within the Intelligence Community or elsewhere

in the federal government, includingat the White House, regardless ofany contrary

interpretation of the statute from any other entity in the Executive Branch .

7 50 S. C . k )(5)(G ).

The Committee also deeply appreciates IC IG Michael Atkinson s upstanding andprincipled handling of thismatter, and fully expects thathe and allmembersofhis staff will alsobe protected from any reprisalor threat of reprisal for bringing this matter to the attention of the

Committee, asMr. Atkinson is required to do .

As I underscored in mySeptember 10 letter, the right of Intelligence Communityemployees and contractors to make protected disclosures to Congress is sacrosanct and enshrinedin law . The Committee is under a solemn obligation to ensure that themen and women of the

Intelligence Community are protected when they see and reportproblems, abuses, or unlawful

activity . The integrity of the Intelligence Community and the trust and confidence of those who

serve our country selflessly is at stake.

Sincerely ,

Adam B . Schiff

Enclosures

Committee Subpoena and Schedule A

Letter from Chairman Schiff to Acting DirectorofNationalIntelligenceMaguire,September 10 2019

UNCLASSIFIED

OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

OFFICE OF GENERAL COUNSEL

WASHINGTON, DC 20511

September 13, 2019

The Honorable Richard BurrChairman

Select Committee on IntelligenceUnited States SenateWashington , DC 20510

The Honorable Adam Schiff

Chairman

Permanent Select Committee on IntelligenceUnited States House of RepresentativesWashington DC 20515

The Honorable Mark WarnerVice Chairman

Select Committee on Intelligence

United States Senate

Washington , DC 20510

The Honorable Devin NunesRankingMemberPermanent Select Committee on IntelligenceUnited States House of Representatives

Washington DC 20515

Dear Chairman Burr, Chairman Schiff, Vice Chairman Warner, and RankingMember Nunes,

( U / September 10 , 2019, Chairman Schiff sent a letter to the ActingDirector

ofNational Intelligence (“DNI―) , requesting information relating to a complaint that the Inspector

General of the Intelligence Community (“ICIG ―) had received from an individual within the

Intelligence Community . In that letter, Chairman Schiff expressed the view that the DNI' s

handling of the complaint was not consistentwith 50 U . S . C . (k )(5 ) . The ICIG sent aseparate letter to both committees concerning the underlying complainton September 9, 2019 . Iwrite to provide the intelligence committees with additional information concerning the complaint

and to explain how the DNIfully complied with applicable law . As explained below , because the

disclosure in this case did not concern allegationsofconduct by a member of the IntelligenceCommunity or involve an intelligence activity under the ' s supervision , we determined, after

consulting with the Department of Justice (“DOJ , that no statute requires disclosure of the

complaint to the intelligence committees.

(U / /FOUO) TheDNIbelieves strongly in the role of the ICIG and in the statutory

provisions that encourage Federal employees and government contractors to report truthful

allegations ofwrongdoing, in accordance with the specific legal process. The DNIalso takesseriously his obligation to protect lawfulwhistleblowers from retaliation. For the Intelligence

Community, this process is codified in the Intelligence Community Whistleblower Protection Act

( ICWPA―) and in theparallelprovisions in Title 50 of the U . S . Code. Under ICWPA , Congress

enacted a framework to reportmatters of“urgent concern ―within the Intelligence Community to

Congress that protects both Congress ' legitimate oversight responsibilities as well as theconstitutional authority of the President to determine how , when , and under what circumstances

classified or privileged information may be reported to Congress. See generally Whistleblower

Protections for Classified Disclosures, 22 Op. O . L . C . 92 ( 1998).

UNCLASSIFIED /

UNCLASSIFIED

(U this instance, the ICIG transmitted to the DNIa complaint, that he viewed

as an urgent concern , andwe reviewed that report immediately upon receipt. Because there were

serious questions about whether the complaintmet the statutory definition of an urgent concern ―under 50 U . S. C . 3033(k )(5 ) , weconsulted with DOJconcerning the appropriate way to handlethe complaint . We also included the ICIG in those consultations to make sure that he had the

opportunity to providehis views.

(U / /FOUO Based on those consultations, wedetermined that the allegations did not fallwithin the statutory definition of an concern ―and that the statute did notrequire the

complaint to be transmitted to the intelligence committees. The statutory definition of“urgent

concern ―requires the reporting of a serious allegation involving classified information relating to

“the funding, administration , or operation of an intelligence activity within the responsibility and

authority of the Director ofNational Intelligence.―50 U . S . C . 3033 (k ) (5) G )( i ) . This complaint,however, concerned conduct by someone outside the Intelligence Community and did not relate to

any intelligence activity within the responsibility and authority of the DNI.―The complaint

therefore did not fall within the statutory framework governing reportingmatters of“urgentconcern ―to Congress .

(U / /FOUO his September 10, 2019 letter, Chairman Schiff states that the statute

requires ―the DNI“to forward allwhistleblower transmittals from the ICIG to the congressional

intelligence committees within a statutorily -mandated 7 -day period .―Sept. 10 Letter at .

Respectfully , however, those are not the words of the statute. Instead , the statutory procedures

apply only when ] n employee of an elementof the intelligence community . . intends to reportto Congress a complaint or information with respect to an urgent concern , ―which is itself a

defined term . 50 U. S . C . 3033 k) (5)( A ) , (k) (5 ) ( ) The provision contemplates, as relevant here,

that the employee first “report[ s] such complaint or information to ―the ICIG . Id. ( k )(5 )( A ) .

The ICIG then determines whether to transmit it to the DNI. Id. (k )( 5 ) (B ) . If the ICIG

transmits a complaint to DNI“under subparagraph (B ), then the DNI“shall, within 7 calendar

days of such receipt, forward such transmittalto the [ congressional ] intelligence committees

together with any comments the [DNI considers appropriate .―Id 3033(k )(5 ) ( C ) . However,

when a complaintdoes notstate an urgentconcern , the statute does notrequire the DNIto transmit

it to the intelligence committees, because the complaint isnotone under subparagraph ( B ).Here, we determined , in consultation with DOJ, that the complaint did not state an urgent concern .

( U /FOUO ) We also respectfully disagree with the Chairman s suggestion that “the statuteprovides for an Intelligence Community whistleblower to contact the congressional intelligencecommittees―directly in these circumstances . Sept. 10 Letter at 2 n . 3 . That provision of the statute

cannot apply where , as here, the complaint falls outside the statutory definition of an urgentconcern .

ma

(U FOUO) Webelieve that it is important to apply the statute as it waswritten , because

reading it to give a complainant a unilateral right to forward a complaint to the congressional

intelligence committeeswould raise serious constitutional questions. As the ObamaAdministration explained in its comments on the legislation enacting section 3033(k ), “ifthis bill

were read to give Intelligence Community employees unilateraldiscretion to disclose classified

information to Congress, itwould be unconstitutional.―Letter for the Hon. Dianne Feinstein ,

UNCLASSIFIED

UNCLASSIFIED /

Chairman , and the Hon. Christopher S . Bond, Vice-Chairman , Senate Select Committee on

Intelligence , from Ronald Weich Assistant Attorney General, Office of Legislative Affairs at 2

(Mar. 15, 2010 ). Assistant Attorney General Weich also advised Congress that, if itwere enacted ,

the Executive Branch would interpret―the statute “in a manner consistent with ―the statement

President Clinton issued upon signing the ICWPA into law . Id.

( U // that statement, President Clinton noted that “[ t ]he Constitution vests thePresident with authority to control disclosure of information when necessary for the discharge of

his constitutional responsibilities . Statement on Signing Intelligence Authorization Act for

Fiscal Year 1999, 2 Pub . Papers of William J. Clinton 1825 ( 1998). Accordingly , the ExecutiveBranch would construe the statute not to constrain ―its constitutional authority to review and , if

appropriate , control disclosure of certain classified information .―Id. We therefore do notunderstand the statute to require the DNIautomatically to forward every complaint to Congress ,

even where the complaint falls outside the plain terms of the underlying statutory procedures. We

also do not understand the statute to foreclose the DNIfrom reviewing information in suchcomplaints and withholding confidential Executive Branch information .

(U // FOUO Notwithstanding the plain language of the statute , the ICIG requested that the

DNItransmit the complaint to the intelligence committees or provide guidance on how hemight

do so. The ICIG observed that, in the past, the DNIhastransmitted complaints to the intelligence

committees even when the ICIG determined that they did notmeet the definition of an “urgentconcern . The information within the present complaint, however, is different in kind from that

involved in any past cases ofwhich weare aware. The present complaint does not allege

misconduct within the Intelligence Community or concern an intelligence activity subject to theauthority of the DNI. Furthermore , because the complaint involves confidential and potentially

privileged communications by personsoutside the Intelligence Community , the DNIlacksunilateral authority to transmit suchmaterials to the intelligence committees. Therefore, the DNI

determined not to transmit this confidential information to the intelligence committees.

(U / /FOUO ) Notwithstanding this conclusion, ODNIremains committed to working toaccommodate the Committees as best aswe can. Indeed,after consultingwith theODNI, the

ICIG informed the committees of the complaint. Should the Committees have further questionsabout thismatter, wewill seek to answer them and to work with the appropriate officials to

accommodate any legitimate legislative interests that the Committeeshave in thismatter, while

also protecting Executive Branch confidentiality interests. See Whistleblower ProtectionsforClassified Disclosures, 22Op. O . L . C . at 102 .

Respectfully

Jason Klitenic

GeneralCounsel

UNCLASSIFIED

UNCLASSIFIED / /FOUO

INSPECTOR GENERAL OF THE INTELLIGENCE COMMUNITY

WASHINGTON , D .C . 20511

September 17, 2019

VIA ELECTRONIC TRANSMISSION

TheHonorable Adam Schiff

ChairmanPermanentSelect Committee on Intelligence

U . S . House of Representatives

Washington, D . C. 20515

The Honorable Devin NunesRankingMember

Permanent Select Committee on Intelligence

U . S . House of RepresentativesWashington , D . C. 20515

Dear Chairman Schiff and RankingMember Nunes:

( U // FOUO ) In a previous letter to you dated September 9, 2019, I informed you that I was

continuingmyefforts to obtain direction from the Acting Director ofNationalIntelligence (ActingDNI) concerning a disclosure from an individual (hereinafter, Complainant ) regarding an

alleged " urgentconcern ,―pursuant to 50 U . S. C . (k ) 5) (A ) . The statute that established and

authorized the Office of the Inspector General of the Intelligence Community (ICIG ) provides thatif the ICIG is unable to resolve . with the Director of National Intelligence]

affecting the execution of the duties or responsibilities of the InspectorGeneral,―the ICIG should

immediately notify, and submit a report to , the congressional intelligence committees on suchmatters . Although I had hoped that theActingDNIwould provide direction, through me, on how

the Complainant can contact the congressional intelligence committees directly accordance

with appropriate security practices, I have now determined that the Acting DNIand I are at an

50 U . S . C . 3033 (k) (5 )( A ) provides that an employee ofan element of the intelligence community , an employee

assigned or detailed to an element of the intelligence community , or an employee of a contractor to the intelligence

community who intends to report to Congress a complaint or information with respect to an urgent concern may report

such complaint or information to the Inspector General. "

2 ( U ) Id . at 3033 (k) ( 3 ) ( A ) ( i ) .

3 (U ) Id at 3033( k)( 5) (D )(i ) and ( ii ).

UNCLASSIFIED / /FOUO

UNCLASSIFIED / /FOUO

impasse over this issue , which necessitates this notification and report on our unresolveddifferences.

( U / FOUO ) On September 13, 2019, I received a copyof a letter, dated the sameday, sentfrom Jason Klitenic, GeneralCounsel Office of the Director ofNational Intelligence, to the Chairand Vice Chair of the Senate Select Committee on Intelligence, and to you, as the Chair of theHouse PermanentSelect Committee on Intelligence (HPSCI), and as theRankingMember of the

HPSCI. In that letter, Mr. Klitenic informed the congressional intelligence committees that theActingDNIhad determined, after consultingwith theDepartmentofJustice (DOJ), no statute

requires disclosure of the complaint to the intelligence committees because the disclosure in thiscase did not concern allegations ofconductby amember of the Intelligence Community or involve

an intelligence activity under the DNI' s supervision . I understand that I am bound by the

determination reached as a result of the ActingDNIs consultations with DOJ, and the ICIG willcontinueto abideby that determination .

( U // FOUO ) I, nevertheless , respectfully disagree with that determination , particularlyDOJ' s conclusion , and the Acting DNI' s apparent agreement with the conclusion , that thedisclosure in this case does not concern an intelligence activity within the DNI' authority , andthat the disclosure therefore need notbe transmitted to the congressional intelligence committees .In a letter sent on today ' s date to DOJ, a copy of which I provided to the Acting DNI, I outlined

my reasons for disagreeing with ' s analysis of the facts presented in the instant case and theconclusions reached regarding the same. I set forth the reasons for my concluding that the subjectmatter involved in the Complainant ' s disclosure not only falls within the DNI' s jurisdiction , but

relates to one of the most significant and important of the DNI' s responsibilities to the Americanpeople. Because of the disagreement that exists between myself , DOJ, and the Acting DNI, I haverequested authorization from the Acting DNI to disclose , at the very least , the general subject

matter of the Complainant ' s allegations to the congressional intelligence committees . To date ,however, I have not been authorized to disclose even that basic information to you, in addition tothe important information provided by the Complainant that is also being kept from the

congressional intelligence committees .

( U // FOUO) In addition, it appears to methat the Acting DNIhas no present intention ofproviding direction to the Complainant, through me, on how the Complainant can contact the

congressional intelligence committees directly in accordance with appropriate securitypractices. Although I appreciate that the Acting DNIhas provided his personal assurance that

the Complainant will be protected if the Complainant' s identity becomes known and the

Complainant is reprised against, or threatened with reprisal, for making the disclosure, such

personal assurance is not the legally enforceable statutory protection previously available towhistleblowers in the Complainant' s situation.

(U // FOUO ) As itnow stands,my unresolved differences with the ActingDNIare affecting

the execution of two ofmymost important duties and responsibilities as the Inspector Generalof

( Id . at 3033 k )( 5 ) ( D ) ( i ) and (ii).

UNCLASSIFIED / /FOUO

UNCLASSIFIED /FOUO

the Intelligence Community. First, the differences are affecting what I view as my significantresponsibilities toward the Complainant , an employee , detailee , or contractor in the IntelligenceCommunity who wants to disclose to Congress in an authorized and protected manner informationthat involves classified information that the Complainant believes in good faith is respect toan urgent concern ."

(U / /FOUO ) Second, the unresolved differences are affecting the execution of the ICIG ' sstatutory responsibility to ensure that the congressional intelligence committees are kept currentlyand fully informed of significant problems and deficiencies relating to programs and activitieswithin the responsibility and authority of the Director of National Intelligence ." DNI'

decision not to transmit my determination or any of the Complainant ' s information to thecongressional intelligence committees , for reasons other than awaiting a classification review orasserting appropriate privileges , may reflect a gap in the law that constitutes a significant problemand deficiency concerning the DNI' s responsibility and authority - or perceived responsibility and

authority - relating to intelligence programs or activities .

( U // FOUO ) Further, the resulting inability for an employee, detailee, or contractor in theIntelligence Community to receive direction from the Acting DNI, through the InspectorGeneral,

on how to contact the congressional intelligence committees directly in accordance with

appropriate security practices concerningwhat appear to be good faith and credible allegations

“with respectto an urgentconcern, if it is later determinedby othersthat thealleged conductfalls outside the definition of urgentconcern,―may itself constitute a significant problem and

deficiency concerning the DNI' s responsibility and authority relating to intelligence programs or

activities. In addition, the Complainant' s currentpredicament, where an individualused the urgent

concern process in good faith , but in the future mightnot be statutorily protected from reprisal or

the threat of reprisal for making the disclosure, may also constitute a significant problem and

deficiency concerning the DNI' s responsibility and authority relating to intelligence programsor

activities

( U ) I remain committed to ensuring that individuals in the Intelligence Community who

disclose allegations of wrongdoing in good faith and in an authorized manner to the ICIG receiveconsistent, effective, and enforceable protections from actions constituting a reprisal, or threat of

reprisal, for making such a disclosure . I willalso continue my efforts to ensure individuals in the

( Id. at (k )(5 )( A ).

6 ( U ) Id. at 3033(b )(4 ).

Id. at 3033(k )(5 ) ( A ) .

8 ( U // FOUO) ' s legalopinion may have significant implications for whistleblower rights and protections for all

Executive Branch departments and agencies, as well as the governmentcontracting industry. The ICIG has asked

DOJ to clarify, among other things, whether the Complainant and those individuals similarly situated to theComplainant, now or in the future , are protected from actions constituting a reprisal, or threat of reprisal, in response

to reporting an alleged urgent concern , or other allegations of waste, fraud, or abuse, that may laterbe determined to

fall outside the jurisdiction of the individual' s departmentor agency.

UNCLASSIFIED/ /FOUO

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Intelligence Community have a consistent, authorized, and effective means to report such

allegations to the congressional intelligence committees. Please do nothesitate to contactme if

you have any questions regarding this importantmatter.

Sincerely yours

.Michael K . Atkinson

Inspector General

ofthe Intelligence Community

cc TheHonorable Joseph Maguire

Director of National Intelligence (Acting )

UNCLASSIFIED FOUO

UNCLASSIFIED

OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

OFFICE OF GENERAL COUNSEL

WASHINGTON ,DC 20511

September 17, 2019

The Honorable Adam SchiffChairman

PermanentSelect Committee on Intelligence

United States House ofRepresentatives

Washington , DC 20515

Dear Chairman Schiff,

I write in response to your September 13, 2019, letter and the subpoena from the House

PermanentSelect Committee on Intelligence (“HPSCI―), which was issued to the Acting DirectorofNationalIntelligence (“DNI) last Friday evening. As youknow ,before you sent that letter, Ihad written to you, aswell as to the other leaders of the Intelligence Committees, to explain how

the DNIhad handled a recentcomplaintreceived from the InspectorGeneral of the Intelligence

Community (“ICIG ). That letter explained how theDNI handling of the complaintcomplied

with allapplicable legalprovisions.

The DNIhas given nearly four decades of service to protecting the national security of our

country . Heis committed wholeheartedly to the mission of the Office of the Director of National

Intelligence (“ODNI―), and hehas deep respect for the relationship between ODNIand the

Intelligence Committees . He looks forward to working constructively with you on thismatter, aswell as on themany pressing national security matters thatour country faces, both this week , andon an ongoing basis .

The Intelligence Community and the Intelligence Committees have a long history ofworking cooperatively to support congressional oversight interests. Weare disappointed ,

however , that rather than following our established practice ofworking together, HPSCIimmediately served a subpoena for documents and demanded the Acting Director s immediatetestimony. That subpoena demanded production of sensitive and potentially privileged materials

within fewer than two business days after service .

At the outset then , we believe that it is important to correct the record :

ODNIhas complied fully with all applicable law . We reiterate the full explanationprovided in our September 13 letter, which I attach here.

UNCLASSIFIED

UNCLASSIFIED

The DNIbelieves strongly in the role of the ICIG and in the statutory provisions that

encourage Federal employees and government contractors to report in good faith

allegations of wrongdoing , in accordance with specific legal process. The DNIalso takes

seriously his obligation to protect whistleblowers from retaliation and pledges to continueto do so . The complainant here raised a matter with the ICIG . The ICIG has protected the

complainant s identity from others within ODNI, and we will not permit the complainant

to be subject to any retaliation or adverse consequence based upon his or her

communicating the complaint to the ICIG .

That said, the complaint forwarded to the ICIG does notmeetthedefinition of urgent

concern under 50 U . S . C . k )(5 ). That definition concerns serious allegations

relating to “the funding, administration or operation ofan intelligence activity within the

responsibility and authority―of the DNI. This complaint, however , concerned conductby

someone outside the Intelligence Community and did not relate to any intelligence

activity under the DNI' s supervision . Because the complaintwas determined not to be an

" urgent concern ,―the law did not require that the DNIforward the complaint to the

Intelligence Committees.

ODNIfully consultedwith the ICIG duringthis process, and the DNItook no steps toprevent the ICIG from informingthe Intelligence Committees of the existence of the

complaintand the DNI' s legal conclusion on thismatter.

Notwithstanding that conclusion as we explained lastweek , ODNIremains committed toworking with the Committee to an acceptable accommodation , consistent with the

established confidentiality interests of the Executive Branch. The complaint here involves

confidential and potentially privileged matters relating to the interests of other stakeholderswithin

the Executive Branch . Any decision by the DNIconcerning potential accommodations of the

Committee' s requests will necessarily require appropriate consultations While we are seeking to

expedite consideration of the Committee s request, itwill simply notbe possible for the DNItocomplete those consultations by this afternoon, which is less than two business days after we

received the subpoena.

We also believe that it would be premature, at this juncture, for the Committee to expect

for theDNIto appear on Thursday at a congressional hearing. Given the pressing responsibilitiesto which the DNIis devoted this week , he is not available on such short notice. We also believe

that a hearingwould notbe a productive exercise while the ODNIremains engaged in

deliberations over the appropriate response . We hope to quickly complete consultations todetermine whether and to what extent wemay be able to accommodate the Committee ' s request.

UNCLASSIFIED

UNCLASSIFIED

Weappreciate HPSCI' s interest and support in this matter, and expect to provide a further

response to the subpoena as soon as possible .

Respectfully ,

Jason Klitenit

General Counsel

cc : Devin Nunes, Ranking

Attachment

UNCLASSIFIED

ADAM B. SCHIFF, CALIFORNIA

CHAIRMAN

ONE HUNDRED SIXTEENTH CONGRESS

DEVIN NUNES , CALIFORNIA

RANKING MEMBERTIMOTHY BERGREEN , STAFF DIRECTOR

(202) 225-7690

www . intelligence. house. gov ALLEN , MINORITY STAFF DIRECTOR

Permanent Select Committee

on Intelligence

U . S . House ofRepresentatives

September 18 , 2019

The Honorable Joseph MaguireActing Director of National Intelligence

Office of the Director of National Intelligence

Washington , D . C . 20511

DearActing DirectorMaguire:

TheHousePermanentSelect Committee on Intelligence ( Committee ) has agreed topostponeby one week your public testimony on the urgentwhistleblower disclosure that your

office continues to withhold from the Committee. As confirmed by your office, and in lieu of

issuing a subpoena for your testimony, you have agreed to appear for a full Committee open

hearing at 9 a.m . on Thursday, September 26 , 2019.

The Committee ismaking this extraordinary accommodation to provide your office agood -faith opportunity to comply in fullwith the Committee' s duly authorized September

13 subpoena, which compelled your production of the complete , unaltered whistleblower

complaint the Inspector General of the Intelligence Community ' s (“IC IG determination that

the complaint appears credible , and othermaterials related to the unprecedented decision not to

transmit the disclosure to the Committee, including any communications by your office with theDepartment of Justice (“DOJ ) or the White House, or that reflect either. The Committee

subpoena for these materials remains in full effect. Your office hasnotcomplied with thesubpoena thus far , in defiance of the production deadline of September 16 .

The Committee has approached this breach ofpractice and law with the urgency it

requires. On August 12, 2019, an individualwithin the Intelligence Community had the courage

to submit to the IC IG a lawful complaint, pursuant to the whistleblower statute, intended for the

congressional intelligence committees. According to the IC IG , the complaint alleged seriousor flagrant problem , abuse , violation of law or Executive order, or deficiency relating to thefunding , administration , or operation of an intelligence activity within the responsibility andauthority of theDirector ofNational Intelligence involving classified information .

Letter from Chairman Schiff to Acting Director ofNational Intelligence Maguire, September 13, 2019 withattached Committee Subpoena and Schedule A .

2 50 U . S . C. 3033( k ) (5) (G ).

The whistleblower s complaint triggered a 14 -day review period in which the IC IGdetermined the disclosuremet the statutory requirements of an urgent concern―and appeared

credible, followed by a 7 -day period within which you, as Acting Director of NationalIntelligence (“DNI ), were statutorily mandated to transmit the full complaint and accompanying

materials to the congressional intelligence committees. The Committee, therefore, should have

received the complaint and accompanyingmaterials no later than September 2 .

It is now more than twoweeks since the deadline for you to havetransmitted thecomplaint to the Committee. Ifyou do not transmit the " urgentconcern ―by the date of yourtestimony, it will bemore than three weeks since the Committee should have received thecomplaint and more than seven weeks since the disclosure was first submitted to the ICIG , during which an urgent and credible allegation of serious or flagrant wrongdoing remainsconcealed from the Committee and unaddressed. The decision to ignore the statute ,moreover, has precipitated a broader crisis of confidence and trust that threatens profound harmto the integrity of the Intelligence s whistleblower process, with potentially farreaching consequences.

Consistent with his statutory obligation to report to the intelligence committees if he is

unable to resolve any differences" with you, the IC IG submitted a report to the Committee

yesterday to notify usthat hehas reached an impasse with you. The IC IG informed the

Committee that, although hebelieves he is bound by the determination you reached after your

anomalous consultations with DOJ, he “respectfully disagrees―with your determination , andparticularly DOJ' s conclusion , statute requires disclosure of the complaintto the

intelligence committees because the disclosure in this case did not concern allegations of

conduct by a member of the Intelligence Community or involve an intelligence activity under the

DNI' s supervision

In a September 17 letter to DOJ, which we have yet to receive because it involves a fact

specific analysis of the complaint that isbeing kept from the Committee , IC IG Atkinsonstates emphatically that he set forth his reasons for concluding that the subject matter involvedin the Complainant s disclosure not only falls within the DNI' s jurisdiction , but relates to one ofthemost significant and important of the DNI's responsibilities to the American people .

In addition, the IC IG informed the Committee that, despite his request to you, he stillhas

been authorized to disclose even the general subjectmatter of the complainant' s

3 50 U. S. C . 3033(k )(3) ( A) ( i).

Letter from IC IG Atkinson to Chairman Schiff and RankingMember Nunes, September 17 , 2019 .

5 Id. at . 2

Letter from Office of Director ofNational Intelligence General Counsel Jason Klitenic to Chairman Burr,Chairman Schiff, Vice Chairman Warner , and RankingMember Nunes, September 13, 2019.

Letter from IC IG Atkinson to Chairman Schiffand RankingMemberNunes, September 17, 2019 , at p. .

allegations, “in addition to the important information provided by the complainant that is also

being kept from the congressional intelligence committees.

Moreover, the IC IG has clarified that it appears to him that you, in your capacity as

Acting DNI, have present intention of providing direction to the Complainant, through

IC IG on how the Complainant can contact the congressional intelligence committees directly

in accordance with appropriate security practices. Although you have made an assurance, as

stated in your office ' s September 17 letter, that ODNI willnot permit the complainantto be

subject to any retaliation or adverse consequence based upon his or her communicating the

complaint to the ICIG , concur with the IC IG that such a personal assurance is

insufficientand is no substitute for the legally enforceable statutory protection previously

available to whistleblowers in the Complainant s situation.

In fact, your actions in withholding the whistleblower ' s complaint from our Committee

and preventingthat person from communicating directly with us send a very different message to

the whistleblower : you will only be protected if you stay silent and your concerns gounaddressed . This is not in the interests of the Intelligence Community , its employees, or the

country . And , more specifically , it violates the clear letter of the law compelling you to transmit

the complaint to us.

These troubling developments are a direct consequence of your office ' s decision , with the

involvement of DOJand possibly theWhite House, to circumvent the statute to conceal a

credible allegation of serious or flagrant wrongdoing from the Committee.

The Committee and the American public answers and transparency, and your

public testimony on September 26 willbe an important opportunity for both . The Committee is

also prepared to hold a follow -on closed session after yourpublic hearingto address any

classified information about the substance of the complaint.

Should you have any questionsprior to thehearing, pleasehave your staff contactthe

Committee' s GeneralCounsel,Maher Bitar, and Senior Advisor, DanielGoldman.

Sincerely ,

Adam B

at p . 2

2

10 Letter from Office of Director of National Intelligence GeneralCounsel Jason Klitenic to Chairman Burr ,

Chairman Schiff, Vice Chairman Warner , and Ranking Member Nunes , September 13 , 2019 .

11Letter from IC IG Atkinson to Chairman Schiff and Ranking Member Nunes, September 17 , 2019 p . 2 .