In an escalating dispute involving classified intelligence materials, the legal advisor to Director of National Intelligence Tulsi Gabbard issued a cautionary letter on Monday to Andrew Bakaj, attorney for an anonymous government official. The letter advised against the direct dissemination of a highly sensitive complaint to members of Congress, underscoring the legal risks tied to potentially mishandling top-secret information during such disclosures.
The complaint in question accuses Gabbard of improperly withholding top-secret intelligence for political gain while serving in her role overseeing the coordination of 18 U.S. intelligence agencies. Two separate inspectors general for the intelligence community have reviewed the allegations and concluded that the accusation of politically motivated restriction of classified information lacked credibility. Gabbard has repeatedly denied any impropriety, asserting that she took all necessary steps to ensure the complaint was submitted to appropriate congressional authorities.
Democratic members of the House and Senate intelligence committees have sharply criticized Gabbard's office for an extensive delay of approximately eight months in forwarding the complaint to designated lawmakers, as required by law. This has intensified scrutiny on the handling of the complaint and the transparency of the process.
Background of the Complaint
The anonymous complainant, employed by a U.S. intelligence agency, submitted the report in May. The report charged that Gabbard deliberately limited the distribution of a classified intelligence report for political reasons. Additionally, the complaint alleged that Gabbard's general counsel failed to notify the Department of Justice about a potential criminal act.
Christopher Fox, the current intelligence community inspector general, detailed these two allegations in a memo to congressional members. However, an earlier review in June by Tamara Johnson, then interim inspector general, concluded the charge concerning the selective sharing of classified material did not appear credible. Johnson found insufficient evidence to evaluate the concern related to the general counsel’s reporting duties. Fox stated he would likely classify the complaint as non-urgent, which typically precludes referral to lawmakers.
Further reports from various news organizations indicated the matter involved an intercepted call between two foreign nationals discussing a figure associated with former President Donald Trump and involving Iran. Allegedly, the NSA captured this communication and Gabbard reportedly informed the White House personally. The complaint, however, claims she obstructed the NSA from sharing information about the call with other agencies. The NSA declined to comment on the complaint but noted collaboration with federal law enforcement entities on issues involving classified information mishandling.
Legal Warning and Procedural Issues
Bakaj, representing the whistleblower, had expressed readiness to meet with certain congressional members or staff to discuss the complaint and related concerns about Gabbard’s review of the matter. The Office of the Director of National Intelligence’s general counsel responded with a firm warning that unauthorized disclosure of classified information during such briefings could result in criminal prosecution.
"The highly classified nature of the underlying complaint increases the risk that you or your client inadvertently or otherwise breaks the law by divulging or mishandling classified information," the legal office cautioned. It suggested alternative methods for engaging with Congress but noted that direct briefing under these circumstances was inappropriate.
Federal statutes allow intelligence whistleblowers to refer complaints directly to key congressional lawmakers if the complaint is deemed an urgent concern, even when inspectors general do not find them credible. Initially, the complaint was held back from congressional members until last week, despite this provision.
Starting last week, copies of the top-secret complaint were personally delivered to the "Gang of Eight" - the bipartisan leadership and top intelligence committee lawmakers. Additional scheduled meetings aim to brief other members of Congress.
Political Reactions and Next Steps
Senator Mark Warner, the senior Democrat on the Senate Intelligence Committee, criticized the delay in reporting the complaint and stressed challenges posed by extensive redactions that complicate evaluating the allegations. Warner clarified his intent to scrutinize Gabbard’s handling of the situation extensively.
Conversely, Republican leaders of the intelligence committees have voiced support for Gabbard, framing the complaint as an effort by President Joe Biden's critics to undermine the Trump administration, thus making further committee investigation improbable.
Responding publicly, Gabbard underscored that the interim inspector general who initially assessed the complaint was appointed during the Biden administration, suggesting procedural oversight informed the original findings. She provided a timeline indicating prompt action on her part to ensure the complaint's security guidance and subsequent sharing with Congress. Gabbard accused Senator Warner and media outlets of attempting to damage her reputation with these disclosures.
Summary
- The anonymous government employee's complaint alleges Gabbard restricted classified information politically and her counsel failed to report a possible crime.
- Inspectors general have largely deemed the political restriction claim not credible, and the complaint was considered non-urgent, delaying congressional notification.
- Legal counsel warned the whistleblower's attorney against sharing classified material directly with Congress due to potential legal consequences.
- Democrats criticize the delay in complaint transmission; Republicans back Gabbard, citing possible political motives behind the complaint.
- The matter involves complex legal and procedural considerations on handling of classified complaints within congressional oversight.
Key Points
- The handling and timeliness of classified whistleblower complaints can influence legislative oversight and inter-branch trust.
- Political ramifications arise when intelligence officials withhold or delay classified information for perceived political objectives.
- Legal limits on disclosure of classified complaints highlight the balance between whistleblower protections and national security concerns.
- The dispute impacts sectors concerned with intelligence governance, legal compliance, and political accountability.
Risks and Uncertainties
- Persistent delays and disputes over classified complaint handling could undermine confidence in government transparency and intelligence oversight.
- Potential criminal exposure for mishandling classified information creates legal uncertainties for whistleblowers and their legal representatives.
- Partisan disagreements over intelligence matters may complicate bipartisan cooperation in intelligence and national security policymaking.