The Wasp's Nest: Intelligence Community Whistleblowing & Source Protection

"Resolved, That it is the duty of all persons in the service of the United States, as well as all other the inhabitants thereof, to give the earliest formation to or other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge." 1 OnJuly 30, 1778, the Continental Congress enacted the first can legislation to respond to prisoner abuse allegations against the United States Navy. This enactment from the hearth of a new commonwealth began a legislative tradition of transparency and candor that endured, in fits and starts, to the post-Watergate era and has informed the current American governing elite's political consciousness. Two hundred and thirty-five years later, Inspector General Irvin Charles McCullough III created the Intelligence Community Whistleblowing & Source Protection (ICW&SP) directorate-an office dedicated specifically to Intelligence Community (IC or Intelligence Community) whistleblowing.2 But the origin * Executive of each act differed. The 2013 initiative was from the Executive branch- not the United States Congress.The "wasp" in this article's title refers to the acronym for the Intelligence Community's new whistleblowing program: the Intelligence Community Whistleblowing & Source Protection directorate. The Executive branch regulatory actions creating ICW&SP occurred as the United States Supreme Court was declining to hear United States v. Sterling3 while simultaneously granting a writ of certiorari in Robert J. MacLean v. Dep't of Homeland Security.4 The choice to hear one case over another could be for reasons completely unrelated to the arc of change impacting whistleblowing law since the early 1990s. Or the Supreme Court decision could be quite deliberate. In passing on the Sterling issue in Risen v. United States, the Court delayed resolution of First Amendment ambiguities remaining at the close of the Watergate era's "open government" movement.5 For Intelligence Community whistleblowing, the Risen issue was not the reporter's proposed First Amendment testimonial privilege, but rather the prospect this privilege would enable a source to claim a public interest in making an unauthorized disclosure.By choosing to hear MacLean and deciding whether regulations prohibiting unauthorized disclosure of classified information outweigh a federal external whistleblower protection law, the Court is perhaps reinforcing the principle that the media has no greater First Amendment rights than ordinary citizens. This would follow the trend of emphasizing internal over the external disclosures so prevalent in the 1970s and early 1980s. And a decision against MacLean will further tip American whistleblowing toward internal agency disclosures and the concordant reliance on Congressional oversight.6 One such program recently established to promote internal disclosures is ICW&SP's Intelligence Community whistleblowing program.Issues advanced in Sterling, Risen, and MacLean mark a division in modern whistleblower law. These cases delineate an intellectual distance7 between opposing camps in the debate over how and when information can flow to the People sovereign under the American constitutional order. Lawful whistleblowers and unlawful leakers alike must navigate this distance as they decide how to pass information. This article analyzes the national security policy challenge in protecting Intelligence Community whistleblowers while simultaneously maintaining fidelity to the opacity required to execute the Federal intelligence and counterintelligence mission. It is the need for secrecy that creates the intellectual distance between the sovereign's need for information regarding the performance of the Federal intelligence and counterintelligence mission and the ability to conduct that mission. To borrow from the medieval principles discussed later, the Intelligence Community is, accordingly, one large juridical marchland. …