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105th Congress                                            Rept. 105-747
                        HOUSE OF REPRESENTATIVES

 2d Session                                                      Part 1
_______________________________________________________________________


 
      INTELLIGENCE COMMUNITY WHISTLEBLOWER PROTECTION ACT OF 1998

_______________________________________________________________________


               September 25, 1998.--Ordered to be printed

                                _______
                                

    Mr. Goss, from the Permanent Select Committee on Intelligence, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 3829]

      [Including cost estimate of the Congressional Budget Office]

    The Permanent Select Committee on Intelligence, to whom was 
referred the bill (H.R. 3829) to amend the Central Intelligence 
Agency Act of 1949 to provide a process for agency employees to 
submit urgent concerns to Congress, and for other purposes, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE; FINDINGS.

    (a) Short Title.--This Act may be cited as the ``Intelligence 
Community Whistleblower Protection Act of 1998''.
    (b) Findings.--The Congress finds that--
          (1) national security is a shared responsibility, requiring 
        joint efforts and mutual respect by Congress and the President;
          (2) the principles of comity between the Branches apply to 
        the handling of national security information;
          (3) Congress, as a co-equal Branch of Government, is 
        empowered by the Constitution to serve as a check on the 
        Executive Branch; in that capacity, it has a ``need to know'' 
        of allegations of wrongdoing within the Executive Branch, 
        including allegations of wrongdoing in the Intelligence 
        Community;
          (4) no basis in law exists for requiring prior authorization 
        of disclosures to the intelligence committees of Congress by 
        employees of the Executive Branch of classified information 
        about wrongdoing within the Intelligence Community;
          (5) the risk of reprisal perceived by employees and 
        contractors of the Intelligence Community for reporting serious 
        or flagrant problems to Congress may have impaired the flow of 
        information needed by the intelligence committees to carry out 
        oversight responsibilities; and
          (6) to encourage such reporting, an additional procedure 
        should be established that provides a means for such employees 
        and contractors to report to Congress while safeguarding the 
        classified information involved in such reporting.

SEC. 2. PROTECTION OF INTELLIGENCE COMMUNITY EMPLOYEES WHO REPORT 
                    URGENT CONCERNS TO CONGRESS.

    (a) Inspector General of the Central Intelligence Agency.--
          (1) In general.--Subsection (d) of section 17 of the Central 
        Intelligence Agency Act of 1949 (50 U.S.C. 403q) is amended by 
        adding at the end the following new paragraph:
    ``(5)(A) An employee of the Agency, or of a contractor to the 
Agency, who intends to report to Congress a complaint or information 
with respect to an urgent concern may report to the Inspector General.
    ``(B) Within the 60-calendar day period beginning on the day of 
receipt from an employee of a complaint or information under 
subparagraph (A), the Inspector General shall determine whether the 
complaint or information appears credible. If the Inspector General 
determines that the complaint or information appears credible, the 
Inspector General within such period shall transmit the complaint or 
information to the Director.
    ``(C) The Director shall, within 7 calendar days after receipt of 
the transmittal from the Inspector General under subparagraph (B), 
forward such transmittal to the intelligence committees together with 
any comments the Director considers appropriate.
    ``(D) If the Inspector General does not transmit, or does not 
transmit in an accurate form, the complaint or information described in 
subparagraph (B), the employee may contact the intelligence committees 
directly to submit the complaint or information, if the employee--
          ``(i) furnishes to the Director, through the Inspector 
        General, a statement of the employee's complaint or information 
        and notice of the employee's intent to contact the intelligence 
        committees directly; and
          ``(ii) obtains and follows direction from the Director, 
        through the Inspector General, on how to contact the 
        intelligence committees in accordance with appropriate security 
        practices.
    ``(E) The Inspector General shall notify the employee of each 
action taken under this paragraph with respect to the employee's 
complaint or information not later than three days after any such 
action is taken.
    ``(F) In this paragraph:
          ``(i) The term `urgent concern' means any of the following:
                  ``(I) A serious or flagrant problem, abuse, violation 
                of law or executive order, or deficiency relating to 
                the administration or operations of an intelligence 
                activity involving classified information, but does not 
                include differences of opinions concerning public 
                policy matters.
                  ``(II) A false statement to Congress, or a willful 
                withholding from Congress, on an issue of material fact 
                relating to the administration or operation of an 
                intelligence activity.
                  ``(III) An action, including a personnel action 
                described in section 2302(a)(2)(A) of title 5, United 
                States Code, constituting reprisal or threat of 
                reprisal prohibited under subsection (e)(3)(B) in 
                response to the employee's reporting an urgent concern 
                pursuant to the terms of this act.
          ``(ii) The term `intelligence committees' means the Permanent 
        Select Committee on Intelligence of the House of 
        Representatives and the Select Committee on Intelligence of the 
        Senate.
    ``(G) An action taken by the Director or the Inspector General 
under this paragraph shall not be subject to judicial review.''.
          (2) Clerical amendment.--The heading to subsection (d) of 
        section 17 of such Act is amended by inserting ``; Reports to 
        Congress on Urgent Concerns'' before the period.
    (b) Additional Provisions With Respect to Inspectors General of the 
Intelligence Community.--
          (1) In general.--The Inspector General Act of 1978 (5 U.S.C. 
        App.) is amended by redesignating section 8H as section 8I and 
        by inserting after section 8G the following new section:
    ``Sec. 8H. (a)(1)(A) Employees of the Defense Intelligence Agency, 
the National Imagery and Mapping Agency, the National Reconnaissance 
Office, and the National Security Agency, and of contractors to those 
Agencies, who intend to report to Congress a complaint or information 
with respect to an urgent concern may report to the Inspector General 
of the Department of Defense (or designee).
    ``(B) Employees of the Federal Bureau of Investigation, and of 
contractors to the Bureau, who intend to report to Congress a complaint 
or information with respect to an urgent concern may report to the 
Inspector General of the Department of Justice (or designee).
    ``(C) Any other employee of, or contractor to, an executive agency, 
or element or unit thereof, determined by the President under section 
2302(a)(2)(C)(ii) of title 5, United States Code, to have as its 
principal function the conduct of foreign intelligence or 
counterintelligence activities, who intends to report to Congress a 
complaint or information with respect to an urgent concern may report 
to the appropriate Inspector General (or designee) under this Act, or 
section 17 of the Central Intelligence Agency Act of 1949.
    ``(2) The designee of an Inspector General under this section shall 
report such employee complaints or information to the Inspector General 
within 7 calendar days of receipt.
    ``(b) Within the 60-calendar day period beginning on the day of 
receipt of an employee complaint or information under subsection (a), 
the Inspector General shall determine whether the complaint or 
information appears credible. If the Inspector General determines that 
the complaint or information appears to be credible, the Inspector 
General within such period shall transmit the complaint or information 
to the head of the establishment.
    ``(c) The head of the establishment shall, within 7 calendar days 
after receipt of the transmittal from the Inspector General pursuant to 
subsection (b), forward such transmittal to the intelligence 
committees, together with any comments the head of the establishment 
considers appropriate.
    ``(d) If the Inspector General does not transmit, or does not 
transmit in an accurate form, the complaint or information pursuant to 
subsection (b), the employee may contact the intelligence committees 
directly to submit the complaint or information, if the employee--
          ``(1) furnishes to the head of the establishment, through the 
        Inspector General, a statement of the employee's complaint or 
        information and notice of the employee's intent to contact the 
        intelligence committees directly; and
          ``(2) obtains and follows direction from the head of the 
        establishment, through the Inspector General, on how to contact 
        the intelligence committees in accordance with appropriate 
        security practices.
    ``(e) The Inspector General shall notify the employee of each 
action taken under this section with respect to the employee's 
complaint or information not later than three days after any such 
action is taken.
    ``(f) In this paragraph:
          ``(1) The term `urgent concern' means any of the following:
                  ``(A) A serious or flagrant problem, abuse, violation 
                of law or Executive order, or deficiency relating to 
                the administration or operations of an intelligence 
                activity involving classified information, but does not 
                include differences of opinions concerning public 
                policy matters.
                  ``(B) A false statement to Congress, or a willful 
                withholding from Congress, on an issue of material fact 
                relating to the administration or operation of an 
                intelligence activity.
                  ``(C) An action, including a personnel action 
                described in section 2302(a)(2)(A) of title 5, United 
                States Code, constituting reprisal or threat of 
                reprisal prohibited under section 7(c) in response to 
                the employee's reporting an urgent concern pursuant to 
                the terms of this Act.
          ``(2) The term `intelligence committees' means the Permanent 
        Select Committee on Intelligence of the House of 
        Representatives and the Select Committee on Intelligence of the 
        Senate.
    ``(g) An action taken by the head of an establishment or an 
Inspector General under this section shall not be subject to judicial 
review.''.
          (2) Conforming Amendment.--Section 8I of such Act (as 
        redesignated by paragraph (1) of this subsection) is amended by 
        striking ``or 8E'' and inserting ``8E, or 8H''.

                          Purpose of the Bill

    H.R. 3829, ``Intelligence Community Whistleblower 
Protection Act of 1998'' (ICWPA), establishes a new and 
additional means by which employees of the Intelligence 
Community (IC) may report to the intelligence committees 
classified information about wrongdoing. This bill is intended 
to protect employees from reprisal and to ensure the proper 
handling of classified documents and information in the process 
of reporting wrongdoing. By establishing this additional and 
protected process, H.R. 3829 is intended to promote the 
reporting of information to the intelligence committees, which 
the committees need to perform effectively their oversight 
role.

                                Summary

                           SECTION-BY-SECTION

Section 1. Short title; findings

    Subsection (a) establishes the title of the bill as the 
``Intelligence Community Whistleblower Protection Act of 
1998''.
    Subsection (b) contains two groups of Findings. The first 
is drawn from legislative history and testimony further 
described in ``Background and Need for Legislation.'' These 
Findings set forth the principles of the Constitution and of 
comity that apply to the issues involved in this legislation:
          (1) national security is a shared responsibility, 
        requiring joint efforts and mutual respect by Congress 
        and the President;
          (2) the principles of comity between the Branches 
        apply to the handling of national security information;
          (3) Congress, as a co-equal Branch of Government, is 
        empowered by the Constitution to serve as a check on 
        the Executive Branch; in that capacity, it has a ``need 
        to know'' of allegations of wrongdoing within the 
        Executive Branch, including allegations of wrongdoing 
        in the Intelligence Community;
          (4) no basis in law exists for requiring prior 
        authorization of disclosures to the intelligence 
        committees of Congress by employees of the Executive 
        Branch of classified information about wrongdoing 
        within the Intelligence Community; * * *
These Findings expand upon section 306 of the ``Intelligence 
Authorization Act for Fiscal Year 1998,'' (P.L. 105-107). They 
are consistent with the position taken by the committee as 
early as 1980 in response to assertions of a presidential 
prerogative under the Constitution to withhold information from 
Congress:

          The Congress has never recognized the existence of 
        such Presidential authority; no President has stated 
        the lack of such authority; and the courts have never 
        definitively resolved the matter.

House Permanent Select Committee on Intelligence, Report on the 
Intelligence Oversight Act of 1980, H. Rpt. No. 96-1153, at 22 
(1980). Finally, these Findings set forth an appropriate and 
measured rejoinder to the position of the executive branch, 
which was taken in a memorandum of law issued by the Office of 
Legal Counsel of the Department of Justice on November 26, 
1996, and to the testimony of executive branch witnesses before 
the committees.
    The second group of Findings sets forth the specific 
problems addressed by this legislation:
          (5) the risk of reprisal perceived by employees and 
        contractors of the Intelligence Community for reporting 
        serious or flagrant problems to Congress may have 
        impaired the flow of information needed by the 
        intelligence committees to carry out oversight 
        responsibilities; and
          (6) to encourage such reporting, an additional 
        procedure should be established that provides a means 
        for such employees and contractors to report to 
        Congress while safeguarding the classified information 
        involved in such reporting.
These problems are also discussed in more detail in 
``Background and Need for Legislation.''

Section 2. Protection of Intelligence Community employees who report 
        urgent concerns to Congress

    Subsection (a) of this section amends subsection (d) of 
section 17 of the Central Intelligence Agency Act of 1949 (50 
U.S.C. 403q). Subsection (b) of this section adds new section 
8H to the Inspector General Act of 1978 and redesignates 
present section 8I.
            Subsection (a) Inspector General of the Central 
                    Intelligence Agency
    This subsection adds new paragraph (5) to subsection (d) of 
section 17 of the Central Intelligence Agency Act of 1949 (50 
U.S.C. 403q) to establish an additional procedure by which 
employees of the Central Intelligence Agency (CIA), or of 
contractors to that Agency, may report certain matters to 
Congress. The committee was concerned that other avenues for 
reporting to Congress--through, for example, the Director of 
Central Intelligence (DCI or Director) or the CIA's Office of 
Congressional Affairs--did not provide ample protection to an 
employee who wished to bring information about wrongdoing to 
the attention of the intelligence committees.
            Subparagraph (5)(A)
    This subparagraph states that an employee of the Agency, or 
its contractors, who wishes to report an ``urgent concern,'' 
which is defined in subparagraph 5(F), to Congress may report 
his ``complaint or information'' to the Agency Inspector 
General (IG).
            Subparagraph (5)(B)
    This subparagraph requires the IG, within 60 days of 
receipt of the complaint or information, to determine whether 
that complaint or information ``appears'' credible. If so, the 
IG must, within that time frame, transmit that complaint or 
information to the Director. This section is intended to impose 
only a limited ability by the IG to determine the credibility 
of the allegations of the employee as the employee actually 
reports them. This ability is further checked by the right of 
the employee, as provided in subparagraph (5)(D), to reject the 
IG's determination and proceed to Congress directly.
            Subparagraph (5)(C)
    This subparagraph requires the Director, within seven days 
of receipt of the employee's complaint or information, to 
forward it, together with any comments the Director considers 
appropriate, to the intelligence committees.
            Subparagraph (5)(D)
    This subparagraph provides that the employee, if the 
complaint or information is either not transmitted to Congress, 
or is not transmitted in a factually accurate manner, may 
report the complaint or information to the intelligence 
committees directly. This subparagraph creates no right in the 
employee to have access either to the IG report in the matter, 
or to all information provided by the IG to Congress. It does, 
however, require that the IG demonstrate to the employee, in 
some way, that the complaint or information was transmitted to 
Congress and was transmitted accurately. The accuracy of the 
transmittal to Congress is to be determined by the employee, 
alone.
    The employee who utilizes the procedure set forth in this 
Act may, if dissatisfied with the absence, or with the 
accuracy, of the transmittal to Congress, report the complaint 
or information directly to the intelligence committees. To do 
so, however, the employee must first furnish the Director with 
a statement of the employee's complaint or information, and 
notice of the employee's intent to contact the intelligence 
committees, directly. The employee must then obtain and follow 
appropriate security practices in bringing the information to 
the committees. In keeping with the statutory protections 
afforded to employees who bring a complaint or information to 
the IG, the employee may provide the statement and notice to 
the DCI, and obtain guidance, anonymously.
            Subparagraph 5(E)
    This subparagraph requires that the IG inform the employee 
of each action taken under this paragraph with respect to the 
employee's complaint or information within three days of that 
action.
            Subparagraph (5)(F)
    This subparagraph defines ``urgent concern'' in three 
parts. Subclause (5)(F)(i)(I) includes ``serious or flagrant'' 
problems in intelligence programs and activities involving 
classified information, and reflects the jurisdiction of the 
oversight committees. ``Urgent concerns'' do not include 
differences of opinions concerning public policy matters. This, 
once again, reflects the jurisdiction of the intelligence 
committees.
    Subclause (5)(F)(i)(II) includes a false statement to 
Congress, or willful withholding from Congress, on an issue of 
material fact about any such program or activity as an ``urgent 
concern.'' Full, accurate, and wholly truthful information is 
absolutely necessary to the oversight process.
    Subclause (5)(F)(i)(III) makes an act or threat of 
reprisal, as defined for other federal employees in section 
2302(a)(2)(A) of the Whistleblower Protection Act of 1989, 5 
U.S.C. Sec. 1201, et seq., against an employee who reports an 
``urgent concern'' as an ``urgent concern'' through this 
process. Inclusion of reprisal threats and actions in the 
definition of ``urgent concern'' not only elevates their 
gravity to the level of a ``serious or flagrant'' problem, but 
invokes a nondelegable duty on the part of the Director to 
transmit reports of reprisal to Congress. The committee will 
not and cannot tolerate acts of reprisal against any employee 
who reports in good faith what the employee believes to be a 
serious or flagrant problem, abuse, violation of law or 
executive order, mismanagement, or deficiency to the 
intelligence committees.
            Subparagraph (5)(G)
    Subparagraph (5)(G) precludes judicial review of decisions 
taken by the Director or IG made under this subparagraph.

Subsection (b) Additional provisions with respect to Inspectors General 
        of the Intelligence Community

    This subsection adds new section 8H to the Inspector 
General Act of 1978 (5 U.S.C. App. 3), and redesignates present 
section 8H as 8I, to establish an additional procedure by which 
employees of Intelligence Community agencies and units outside 
of CIA, and of contractors to those agencies and units, may 
report certain matters to Congress.
            Section 8H(a)(1)(A)
    This subparagraph states that employees of the Defense 
Intelligence Agency, the National Imagery and Mapping Agency, 
the National Reconnaissance Office, and the National Security 
Agency, or of its contractors, who wish to report an ``urgent 
concern,'' which is defined in subsection (f), to Congress may 
report their ``complaint or information'' to the IG of the 
Department of Defense (or designee).
            Section 8H(a)(1)(B)
    This subparagraph states that all employees of the Federal 
Bureau of Investigation, and of contractors to the Bureau, who 
wish to report an ``urgent concern'' to Congress may report 
their ``complaint or information'' to the IG of the Department 
of Justice (or designee).
            Section 8H(a)(1)(C)
     This subparagraph applies to employees of, or contractors 
to, an agency or unit having a foreign intelligence or 
counterintelligence activity as its principal function. It 
states that those employees in those agencies or units who wish 
to report an ``urgent concern'' to Congress may report their 
``complaint or information'' to the appropriate IG, or IG 
designee, under the Inspector General Act of 1978 or under the 
Central Intelligence Agency Act of 1949. This subparagraph is 
intended to extend coverage to all employees of intelligence 
agencies and units excluded from the protections of the 
Whistleblower Protection Act of 1989, 5 U.S.C. Sec. 1201, et 
seq. Under section 2302(a)(2)(C) of that Act, the President is 
to determine which agencies and units, in addition to those 
specifically named, have a foreign intelligence or 
counterintelligence activity as their principal function. Upon 
a presidential determination under that Act, those agencies and 
units are excluded from the protection of the Whistleblower 
Protection Act of 1989. To date, the President has made no such 
determinations.
            Section 8H(a)(2)
    This paragraph requires designees of the IGs to report a 
complaint or information on an ``urgent concern'' to the IG 
within seven days of their receipt of that complaint or 
information.
            Section 8H(b)
    This subsection requires the IG, within 60 days of receipt 
of a complaint or information, to determine whether that 
complaint or information ``appears'' credible. If so, the IG 
must, within that time frame, transmit that complaint or 
information to the head of establishment. This section is 
intended to impose only a limited ability by the IG to 
determine credibility of the allegations of the employee as the 
employee actually reports them. This ability is checked by the 
right of the employee, as provided in subparagraph 8H(d), to 
reject the IG's determination and proceed to Congress directly.
            Section 8H(c)
    This subsection requires the head of the establishment, 
within seven days of receipt of the employee's complaint or 
information, to forward it, together with any comments the head 
of establishment may have, to the intelligence committees.
            Section 8H(d)
    This subsection provides that the employee, if the 
complaint or information is either not transmitted to Congress 
or is not transmitted in a factually accurate manner, to report 
the complaint or information to the intelligence committees 
directly. This subsection creates no right in the employee to 
have access either to the IG report in the matter or to all the 
information provided by the IG to Congress. It does, however, 
require that the IG demonstrate to the employee in some way 
that the complaint or information was actually transmitted to 
Congress and was transmitted accurately. The accuracy of the 
transmittal to Congress is to be determined by the employee, 
alone.
    The employee who utilizes the procedure set forth in this 
Act may, if dissatisfied with the absence, or with the 
accuracy, of the transmittal to Congress, report the complaint 
or information directly to the intelligence committees. To do 
so, however, the employee must first furnish the head of 
establishment with a statement of the employee's complaint or 
information, and notice of the employee's intent to contact the 
intelligence committees, directly. The employee must obtain and 
follow appropriate security practices in bringing the 
information to the committees. In keeping with the statutory 
protections afforded to employees who bring a complaint or 
information to the IG, the employee may provide the statement 
and notice to the head of establishment, and obtain guidance, 
anonymously.
            Subsection (e)
    This subsection requires that the IG inform the employee of 
each action taken under this section within three days of that 
action.
            Section 8H(f)
    This subsection defines ``urgent concern'' in three parts. 
Subparagraph 8H(f)(1)(A) includes ``serious or flagrant'' 
problems in intelligence programs and activities involving 
classified information, and reflects the jurisdiction of the 
oversight committees. ``Urgent concerns'' do not include 
differences of opinions concerning public policy matters. This, 
once again, reflects the jurisdiction of the intelligence 
committees.
    Subparagraph 8H(f)(1)(B) includes a false statement to 
Congress, or willful withholding from Congress, on an issue of 
material fact about any such program or activity as an ``urgent 
concern.'' Full, accurate, and wholly truthful information is 
absolutely necessary to the oversight process.
    Subparagraph 8H(f)(1)(C) include any act or threat of 
reprisal, as defined for other federal employees in section 
2302(a)(2)(A) of the Whistleblower Protection Act of 1989, 5 
U.S.C. Sec. 1201 et seq., against an employee who reports an 
``urgent concern'' as an ``urgent concern'' through this 
process. Inclusion of reprisal threats and actions in the 
definition of ``urgent concern'' not only elevates their 
gravity to the level of a ``serious or flagrant'' problem, but 
invokes a nondelegable duty on the part of the head of 
establishment to transmit reports of reprisals to Congress. The 
committee will not tolerate acts of reprisal against any 
employee who finds it necessary to report in good faith what 
the employee believes to be a serious or flagrant problem, 
abuse, violation of law or executive order, mismanagement, or 
deficiency to the intelligence committees.
            Subsection 8H(g)
    Subsection 8H(g) precludes judicial review of decisions 
taken by the head of establishment or IG under this section.

                  Background and Need for Legislation

                              the problem

    Employees of the IC do not have a clear idea how to make 
disclosures to Congress of classified information about 
wrongdoing within the IC. IC employees choose either to obtain 
prior authorization from their management for disclosures to 
the intelligence committees, or to come directly to the 
intelligence committees without such authorization. Some 
employees, the committee learned, fear they will suffer 
reprisals for making either type of disclosure to Congress.
    Not surprisingly, few employees are willing to engage in 
either option. According to inquiries of some junior and mid-
level officers of the IC made by committee Members and staff, 
and discussions with IC psychologists, employees of the IC are 
not only reluctant to take the risk of contacting the Congress, 
but are also disinclined to ``break ranks'' by making 
disclosures outside their agencies. The employees of the IC 
will not come forward, the committee was told, until they have 
a mechanism that (1) allows them to make disclosures through 
recognized channels in their own agencies; (2) protects them 
from unofficial, as well as official, professional harm, and 
(3) protects the classified information they seek to report.
    In November 1997, with that in mind, Chairman Goss and Mr. 
Dicks, the Ranking Democrat of the committee, solicited the 
views of the statutory IGs of the IC on regulations that would 
enable employees to make disclosures to the intelligence 
committees through the protections of the IGs within their own 
agencies. In January 1998, the Chairman proposed the 
promulgation of such regulations in letters to the heads of 
agency within the IC. In April 1998, the White House rejected 
this regulatory proposal. On July 9, 1998, notwithstanding the 
administration's earlier rejection, the CIA issued a new 
regulation governing employee disclosures to Congress that was 
based in large measure upon the procedures outlined in the 
Chairman's January proposal.
    The committee welcomed CIA's willingness to respond to the 
dilemma faced by its employees who wish to report problems to 
the oversight committees. At present, however, that regulation 
covers only employees of CIA. Even as a Director of Central 
Intelligence Directive (DCID), which the committee understands 
is in process, it will not have the reach to cover all those 
employees excluded from the protections afforded to other 
federal employees under the Whistleblower Protection Act. See 5 
U.S.C. Sec. 1201, et seq.
    The new regulation, or DCID, moreover, would not comport in 
one important respect with H.R. 3829, as reported from the 
committee. That regulation, or DCID, would enable the DCI to 
block an employee's information from reaching Congress in a 
manner that does not, in the view of the committee, reflect an 
appropriate accommodation between the executive and legislative 
branches in this area of oversight. Whether and in what 
circumstance the DCI or head of agency may block disclosures by 
agency employees of classified information to Congress are a 
weave of constitutional and comity issues that have, of late, 
become points of contention between the branches.

                      ``mischief of polarization''

    There is, as noted, nothing new in the idea of employees of 
the IC taking the risk of approaching the intelligence 
committees directly. In such cases, IC employees run the risk 
of official sanction from their management for violating 
security or other regulations, as well as unofficial sanction 
from their fellow officers who might not condone their 
``breaking ranks.'' Those employees who have come to the 
committee directly have, in the main, been prudent with their 
disclosures. The information they bring to the committee serves 
both as a safety valve for employees of the IC and as a check 
on official disclosures by the IC. For these reasons, the 
committee has been protective--informally though sometimes 
explicitly--of employees who approach it directly.
    The result, until recently, was an implicit understanding 
and accommodation between the IC and the intelligence 
committees over the handling of employees who approached 
Congress directly. Under that arrangement, IC managers might 
discourage their employees from making a direct approach to the 
intelligence committees, but did not, so far as we are aware, 
punish those who actually made such direct approaches. This 
arrangement was, in effect, a part of the larger case-by-case 
accommodation. It was reliant upon comity and mutual 
understanding of the prerogatives of the executive and 
legislative branches of government, in dealing with the 
problems over the control and handling of sensitive national 
security, law enforcement, and foreign policy information that 
periodically arise between the branches.
    In 1996, however, the accommodation over direct approaches 
began to break down. In November of that year, the Office of 
Legal Counsel (OLC) of the Department of Justice issued a 
sweeping memorandum addressing the issues of classified 
disclosures to Congress and congressional authority to 
legislate in this realm. In its memorandum (hereinafter, OLC 
Memo), OLC asserted that, as a constitutional matter, neither 
the Lloyd La Follette Act (5 U.S.C. Sec. 7211), nor any other 
Act of Congress, may ``divest the President of his control over 
national security information in the Executive Branch by 
vesting lower-ranking personnel in that Branch with a `right' 
to furnish such information to a Member of Congress without 
receiving official authorization to do so.'' OLC Memo at 3.\1\ 
OLC based its conclusion upon the constitutional principle of 
separation of powers:

    \1\ The OLC opinion was issued in response to a request for a legal 
opinion from a panel appointed by the DCI reviewing a matter involving 
a State Department official, who was alleged to have made unauthorized 
disclosures to a Member of HPSCI.
---------------------------------------------------------------------------
          (T)he President's roles as Commander in Chief, head 
        of the Executive Branch, and sole organ of the Nation 
        in its external relations require that he have ultimate 
        and unimpeded authority over the collection, retention 
        and dissemination of intelligence and other national 
        security information in the Executive Branch. There is 
        no exception to this principle for those disseminations 
        that would be made to Congress or its Members.

Id. at 4 (quoting Brief for Appellees at 42, American Foreign 
Serv. Assoc. v. Garfinkel, 488 U.S. 923 (1988) (No. 87-
2127)).\2\
---------------------------------------------------------------------------
    \2\ In essence the Department of Justice contended that this is an 
area of federal authority that the Constitution gives solely to the 
President, and the federal legislature is deprived of any authority 
under which it can act. Similarly, the opinion argued that the 
Constitution empowers the President to withhold certain categories of 
information from Members of Congress without exception. Unfortunately, 
the opinion failed to recognize, even while basing its arguments on 
separation of powers grounds, that Congress is a co-equal branch of 
government and often circumscribes, relegates, or proscribes the 
President's actions in the areas of intelligence, national security, 
and foreign policy. The committee rejects, out of hand, the legal 
analysis put forth by OLC. See ``Constitutional Considerations,'' 
infra.

    In response to the OLC memo, the Senate Select Committee on 
Intelligence (SSCI) included a provision (section 306) in the 
Senate-passed ``Intelligence Authorization Act for Fiscal Year 
1998,'' S. 858, that directed the President to inform all 
executive branch employees that their disclosure of classified 
information about wrongdoing to an appropriate oversight 
committee, or to their congressional representatives, was not 
prohibited by any law, executive order, or regulation, and was 
not contrary to public policy.
    In response to the Senate action, the administration issued 
a Statement of Administration Policy (SAP) that asserted that 
section 306 was unconstitutional. The President threatened to 
veto any bill containing that provision.
    In the committee of conference on the fiscal year 1998 
intelligence authorization bill, the conferees agreed to 
postpone action on this issue to enable the House of 
Representatives to hold hearings on the legislative matter 
raised by section 306. Mindful of the need to preserve 
congressional prerogatives, however, conferees replaced the 
veto-threatened provision with the following:

          Sec. 306. Sense of Congress on Receipt of Classified 
        Information. It is the sense of Congress that Members 
        of Congress have equal standing with officials of the 
        Executive Branch to receive classified information so 
        that Congress may carry out its oversight 
        responsibilities under the Constitution.

The ``Intelligence Authorization Act for Fiscal Year 1998'' 
became law November 20, 1997 (P.L. 105-107).
    In February 1998, after hearings limited solely to 
constitutional issues, the SSCI reported S. 1668, a modified 
version of the original section 306 of S. 858. In March, the 
Senate passed S. 1668 by a vote of 93 to one. In response, the 
administration issued a SAP asserting that S. 1668, like 
section 306 of S. 858, was unconstitutional and therefore 
subject to a veto. Once again, SSCI, despite the threat of a 
veto, included S. 1668 in its version of the ``Intelligence 
Authorization Act for Fiscal Year 1999,'' S. 2052, which passed 
the Senate in late June.
    Our predecessors on this committee have warned against the 
``mischief of polarization'' that can occur in disputes between 
the executive and legislative branches in the oversight of 
intelligence. Here, the executive branch has asserted that it 
has unimpeded control over decisions about access to classified 
information. In response, the legislative branch has asserted 
that it needs unimpeded access to classified information in 
order to discharge its oversight responsibilities. The focus of 
both branches is whether, and on what basis, the executive 
branch may authorize all disclosures of classified information 
to the intelligence committees. Accordingly, in its review of 
legislation offered by Chairman Goss on this issue, the 
committee examined the conflicting constitutional claims of the 
two branches, the principles and practices of comity that may 
apply, and a ``dynamic compromise'' achieved in earlier 
legislation on these issues.

                         H.R. 3829 as introduced

    On May 12, 1998, Chairman Goss introduced the 
``Intelligence Community Whistleblower Protection Act of 
1998,'' a measure that would utilize the offices of the IGs to 
facilitate a secure and protective channel for employees of the 
IC who wish to report serious problems, or ``urgent concerns,'' 
to the intelligence committees. The intent of H.R. 3829 is to 
ensure disclosure to Congress of the classified information 
necessary for oversight and to establish a procedure that will 
promote and protect the secure provision of classified 
information to facilitate oversight.
    In substance, Chairman Goss based his bill upon the answers 
of junior and mid-level officers of the IC to his question, 
``What can Congress do to encourage you to report serious 
problems in your buildings?'' Their answers uniformly cited the 
need for a protected path, through the IGs, in their own 
agencies for reporting such problems. These answers were 
reinforced by opinions of IC psychologists. In establishing 
statutory IGs, in fact, Congress presumed and encouraged a 
preference among employees of the executive branch to report 
problems through channels within their own agencies.
    In structure, Chairman Goss based this bill upon the 
reporting mechanism for ``particularly flagrant or serious'' 
problems that currently exists in IG statutes for the IC. Under 
H.R. 3829, the allegations of a whistleblower, either in 
writing or in person, are sent by the IG through the head of 
agency to the intelligence committees.

                         Hearings on H.R. 3829

    On May 20, 1998, the committee held a hearing on potential 
constitutional and administrative issues involved in the 
handling of so-called whistleblowers from the IC pursuant to 
the provisions in H.R. 3829. Deputy Assistant Attorney General 
Randolph Moss testified for the Department of Justice that, 
unlike S. 1668, H.R. 3829 was, as introduced, constitutional. 
Dr. Louis Fisher, Senior Specialist for the Congressional 
Research Service (CRS), Library of Congress, testified that 
both S. 1668 and H.R. 3829 were constitutional. CIA General 
Counsel Robert McNamara, Deputy Assistant Attorney General Mark 
Richard, and the Deputy Legal Advisor for the Department of 
State, James Thessin, each testified that there were compelling 
administrative reasons why the administration should, in the 
exceptional case, have the opportunity to delay or modify 
certain disclosures to Congress.
    On June 10, 1998, the committee held a second hearing on 
IG-related issues and heard from government and outside 
commentators on the merits of the bill. Eleanor Hill, 
Department of Defense IG; Michael Bromwich, Department of 
Justice IG; and Fred Hitz, former CIA IG, testified that H.R. 
3829 was an appropriate and workable structure for handling 
whistleblowers from the IC. Mr. Hitz also appeared as an 
outside commentator \3\ and testified more broadly in support 
of H.R. 3829 and against S. 1668. Frederick Kaiser, Specialist 
in American National Government, CRS, provided historic context 
for oversight and for IG legislation. Director for the Center 
for National Security Studies Kate Martin supported certain 
amendments to H.R. 3829 that were proposed at the second 
hearing by the Chairman. In addition, Ms. Martin urged the 
committee to add a provision affirming its right to receive 
classified information from executive branch employees without 
prior authorization from their supervisors.
---------------------------------------------------------------------------
    \3\ Mr. Hitz retired as CIA IG on April 30, 1998.
---------------------------------------------------------------------------

                          H.R. 3829 as amended

    Arising from these two hearings was the need to consider 
changes to two provisions of H.R. 3829, as introduced. First, 
the consensus among the committee's witnesses was that, for a 
variety of reasons, the mechanism established for 
whistleblowers in H.R. 3829 should not be the ``sole process'' 
by which employees within the IC may report wrongdoing to 
Congress. Witnesses from the administration testified that 
employees should be able to report such matters through their 
management or through their offices of legislative affairs, if 
they so chose. Other witnesses testified that the committee 
should not, as a statutory matter, preclude the continuation of 
direct approaches by employees frustrated by, or distrustful 
of, other processes. On the basis of this testimony, Chairman 
Goss proposed to amend H.R. 3829 to make its procedures an 
additional, rather than the sole, means for reporting problems 
to Congress.
    A second, and more complicated, issue was the ``holdback'' 
provision of H.R. 3829 that acknowledged an authority in a head 
of agency, in the exceptional circumstance, to block 
disclosures by agency employees to Congress. Administration 
witnesses described such a provision as a constitutional and 
administrative imperative. Other witnesses condemned such a 
provision as an unprecedented and inappropriate surrender of 
congressional prerogative.
    In his opening statement at the first hearing, Chairman 
Goss noted the controversial nature of the holdback provision 
and asked witnesses to consider various alternatives. In 
opening the second hearing, the Chairman proposed to amend H.R. 
3829 by removing the holdback provision outright. Based upon 
testimony from the first hearing and the concerns and comments 
of committee Members, the Chairman concluded that a statutory 
acknowledgment of such holdback authority was unwarranted and 
could undermine important congressional prerogatives. Instead, 
Chairman Goss believed that, under H.R. 3829, agency heads 
should address their concerns about the disclosure to Congress 
of extremely sensitive information in the same way as they do 
at present: through personal communication and accommodation 
with the committee. With the removal from H.R. 3829 of the 
``holdback'' provision, theChairman also proposed a Sense of 
Congress that described the basis for that change and for the terms of 
H.R. 3829 as a whole.
    The committee is aware that the inclusion, or exclusion, of 
the ``holdback'' provision in H.R. 3829 implicates fundamental 
constitutional and comity issues in the oversight of 
intelligence. For that reason, the following sets forth at some 
length the constitutional considerations, the need for comity, 
and an applicable ``dynamic compromise'' on the issues raised 
by this legislation in general and, in particular, by the 
presence or absence of a ``holdback'' provision.

                     constitutional considerations

    The administration has, as noted above, asserted that the 
President, as Commander in Chief and ``sole organ'' for foreign 
affairs, must as a constitutional matter be free to determine 
the treatment of national security or classified information. 
Further, it asserted that, as Chief Executive, the President 
must, again as a constitutional matter, control the activities 
of executive branch employees. According to the testimony of 
Deputy Assistant Attorney General Randolph Moss,

        the decision whether and under what circumstances to 
        disclose classified information must be made by someone 
        who is acting on the official authority of the 
        President and who is ultimately responsible to the 
        President. The Constitution does not permit Congress to 
        authorize subordinate executive branch employees to 
        bypass these orderly procedures for review and 
        clearance by vesting them with a unilateral right to 
        disclose classified information--even to Members of 
        Congress. Such a law would squarely conflict with the 
        Framers' considered judgment, embodied in Article II of 
        the Constitution, that, within the executive branch, 
        all authority over matters of national defense and 
        foreign affairs is vested in the President as Chief 
        Executive and Commander in Chief.

Statement of Randolph Moss at 16-17.
    In response, CRS Senior Specialist Louis Fisher asserted 
that, under the Constitution, national security is a 
responsibility shared between the President and Congress:

          The debates at the Philadelphia Convention make clear 
        that the Commander in Chief Clause did not grant the 
        President unilateral, independent power other than the 
        power to ``repel sudden attacks.'' 2 Farrand 318-19. 
        The Commander in Chief Clause was also intended to 
        preserve civilian supremacy. 10 Op. Att'y Gen. 74, 79 
        (1861). The historical record is replete with examples 
        of Congress relying on the regular legislative process 
        to control the President's actions in military affairs. 
        There is no evidence from these sources that the 
        framers intended the Commander in Chief Clause to deny 
        to Members of Congress information needed to supervise 
        the executive branch and learn of agency wrongdoing.

Statement of Louis Fisher at 8. Dr. Fisher also disputed the 
administration's contention that the Constitution required the 
President, as Chief Executive, to review and approve any 
contact by executive branch employees with Congress:

          (P)lacing the President at the head of the executive 
        branch did not remove from Congress the power to direct 
        certain executive activities and to gain access to 
        information needed for the performance of legislative 
        duties. At the Convention, Roger Sherman considered the 
        executive ``nothing more than an institution for 
        carrying the will of the Legislature into effect.'' 1 
        Farrand 65. It was never the purpose to make the 
        President personally responsible for executing all the 
        laws. Rather he was to take care that the laws be 
        faithfully executed, including laws that excluded him 
        from operations in the executive branch.

Statement of Louis Fisher at 9.
    Like the Senate, the committee rejects the administration's 
assertion that, as Commander in Chief, the President has 
ultimate and unimpededconstitutional authority over national 
security, or classified, information. Rather, national security is a 
constitutional responsibility shared by the executive and legislative 
branches that proceeds according to the principles and practices of 
comity.
    Nor does the Committee accept that the President, as Chief 
Executive, has a constitutional right to authorize all contact 
between executive branch employees and Congress. Stripped of 
the more complicated issues involved in classified information, 
which we address above, the issue of whether an employee must 
``ask the boss'' before approaching the intelligence committees 
with unclassified information about wrongdoing seems well below 
any constitutional threshold. Indeed, information available to 
the committee indicates that, at least until recently, the IC 
made little effort to monitor or regulate contact with the 
oversight committees over matters that were clearly 
unclassified. In the nondisclosure agreement that CIA employees 
must sign, for example, the Agency focuses upon the type of 
information--i.e., classified information--that requires 
``secure handling'':

          I understand that nothing contained in this agreement 
        prohibits me from reporting intelligence activities 
        that I consider to be unlawful or improper directly to 
        * * * the Select Committee on Intelligence of the House 
        of Representatives or the Senate. * * * In making any 
        report referred to in this paragraph, I will observe 
        all applicable rules or procedures for ensuring the 
        secure handling of any information or material that may 
        be involved.

    The committee, in sum, finds no basis in the Constitution 
for a requirement that the President, either as Commander-in-
Chief or as Chief Executive, approve any disclosure to Congress 
of information about wrongdoing within the executive branch. 
Accordingly, as reflected in Section 306 of the Intelligence 
Authorization Act for Fiscal Year 1998, the committee 
recognizes no limitation based upon separation of powers on the 
right of Members of Congress to gain access to classified 
information in the pursuit of their oversight responsibilities. 
H.R. 3829(1)(b)(4), as reported, therefore finds that, among 
other things, ``no basis in law exists for requiring prior 
authorization of disclosures to the intelligence committees of 
Congress by Employees of the Executive Branch of classified 
information about wrongdoing with the Intelligence Community * 
* * ''

                          the need for comity

    What the administration now claims as a constitutional 
prerogative has existed, to some degree, as a matter of comity 
and accommodation between the branches over the handling of 
national security information. Testimony adduced during the 
first committee hearing on H.R. 3829 demonstrated the need for 
continued comity in the handling of disclosures to Congress of 
classified information in general and, in particular, of 
disclosures to Congress by whistleblowers from the IC.
    In that first hearing, administration lawyers testified 
that, quite apart from constitutional considerations, there 
were compelling reasons why, in exceptional circumstances, 
disclosures of classified information to Congress might have to 
be delayed or modified by heads of agency. CIA General Counsel 
Robert McNamara testified that certain disclosures could 
imperil intelligence and counterintelligence operations. Where 
the President has, under Section 503 of the National Security 
Act, limited notification of sensitive covert actions to 
certain House and Senate leaders, for example, the DCI might 
wish to prevent a whistleblower's disclosure of that action to 
other Members, or to uncleared staff, of the intelligence 
committees. Similarly, if a CIA employee was under 
investigation by the FBI for espionage, the DCI may desire to 
limit disclosure to intelligence oversight committees to reduce 
the possibility of inadvertent disclosures that could alert the 
suspect and thus undermine any chance for successful 
prosecution. Further, in a whistleblower's disclosure of 
wrongdoing by a case officer, the DCI may want to avoid the 
unnecessary disclosure of the names of any potential 
clandestine assets that could have been handled by that case 
officer.
    The Department of State's Deputy Legal Advisor James 
Thessin testified that disclosures by whistleblowers could lead 
to leaks that could imperil vital foreign affairs interests. 
Any leak, for example, of Secretary of State Henry Kissinger's 
secret negotiations with China could have had a disastrous 
consequence for the talks that led to President Nixon's 
historic visit to that country. Similarly, any leak of the 
Carter administration's secret negotiations in Algiers could 
have disrupted talks that eventually led to the release of our 
hostages in Iran.
    Deputy Assistant Attorney General Mark Richard testified 
that disclosures by whistleblowers could compromise the 
confidentiality, integrity, and independence of ongoing 
criminal investigations and prosecutions. Disclosures to 
Congress of information from open enforcement files, for 
example, would violate a long-standing policy, long-respected 
by Congress, against granting access to information from open 
files. Disclosures to Congress by targets of, for example, 
espionage investigations, who believe that they are being 
treated unfairly, could complicate prosecution. Disclosures by 
a whistleblower who misinterprets the conduct of a legitimate 
espionage investigation as wrongdoing, for another example, 
could prompt congressional queries and actions that imperil the 
investigation. Finally, disclosures by whistleblowers of 
claimed wrongdoing could cause queries and demands from 
Congress that could change the investigatory priorities and 
resources of the agency involved.
    The committee finds these points to be compelling examples 
of the need to treat the whistleblower issue with care. This 
testimony required the committeeto find a way to assert and 
sustain the prerogatives of Congress on these issues in a manner that 
would not lead to the disruption of legitimate clandestine operations, 
diplomatic negotiations, or law enforcement efforts.

                  An applicable ``dynamic compromise''

    The committee has consistently urged the executive branch, 
in disputes over the control and handling of classified 
information, to join in a spirit of ``dynamic compromise.''

          The framers, rather than attempting to define and 
        allocate all governmental power in minute details, 
        relied, we believe, on the expectation that where 
        conflicts in scope of authority arose between the 
        coordinate branches, a spirit of dynamic compromise 
        would promote resolution of the dispute in the manner 
        most likely to result in efficient functioning of our 
        governmental system.

House Permanent Select Committee on Intelligence, Report on the 
Intelligence Oversight Act of 1980, H. Rpt. 96-1153, at 14 
(1980) (quoting United States v. AT&T;, 567 F.2d 121, 126 (D.C. 
Cir. 1977)). This type of compromise lay beneath the enactment 
of the oversight sections of Title V of the National Security 
Act of 1947 (50 U.S.C. sec. 413) and the case-by-case 
accommodations made between the IC and the committees in the 
conduct of oversight. Such compromise effectively preserves 
prerogatives and avoids the sturm und drang of absolutes that 
impedes resolution of these complex issues.
    Fortunately, there exists such a compromise on the issues 
faced in the handling of whistleblowers. The question of 
whether, and on what basis, the President or his designees may 
screen and require prior authorization for contact by executive 
branch employees with Congress has been examined previously. 
The committee finds that the issue was carefully addressed in 
legislation leading up to the enactment of the reporting 
requirements of IGs to Congress in section 5 of the Inspector 
General Act of 1978 (5 U.S.C. App.) and, again in 1989, section 
17(d) of the Central Intelligence Agency Act of 1949 (50 U.S.C. 
403q).
    In its version of the Inspector General Act of 1978, the 
House provided that, for ``particularly serious or flagrant'' 
and other problems, the IGs were to report first to the agency 
heads and thereafter directly, and without clearance or 
approval from agency heads, to the appropriate committees of 
Congress. The Department of Justice argued then, as well, that 
the provision raised a ``serious constitutional problem,'' 
because it violated the President's constitutional authority to 
withhold information from Congress on the basis of executive 
privilege.
    The Senate ultimately changed the provisions to meet the 
administration's objections and provided that, for 
``particularly serious or flagrant'' and other problems, the 
IGs were to report to the agency heads, who were then to pass 
those reports to Congress. Because the Senate examined some of 
the same issues and balanced similar equities that are involved 
in the handling of contact from IC whistleblowers, we cite the 
Senate report at some length:

          * * * [N]othing in this section authorizes or permits 
        an Inspector and Auditor General to disregard the 
        obligations of law which fall upon all citizens and 
        with special force upon Government officials. The 
        Justice Department has expressed concern that since an 
        Inspector and Auditor General is to report on matters 
        involving possible violations of criminal law, his 
        report might contain information relating to the 
        identity of informants, the privacy interest of people 
        under investigations, or other matters which would 
        impede law enforcement investigations. * * * [T]he 
        committee does not envision that a report by the 
        Inspector and Auditor General would contain this degree 
        of specificity. In any event, however, the intent of 
        the legislation is that the Inspector and Auditor 
        General in preparing his reports, must observe the 
        requirements of law which exist today under common law, 
        statutes, and the Constitution, with respect to law 
        enforcement investigations. Similarly the Inspector and 
        Auditor General must adhere to statutes such as 26 
        U.S.C. sec. 6013, dealing with tax returns, or Federal 
        Rule of Criminal Procedure 6(e), dealing with grand 
        jury information, which prohibit disclosure even to 
        Congress. The inclusion of such information in an 
        Inspector and Auditor General report could subject the 
        Inspector and Auditor General to legal sanction.
          The committee recognizes, however, that in rare 
        circumstances the Inspector and Auditor General, 
        through inadvertence or design, may include in his 
        report materials of this sort which should not be 
        disclosed even to Congress. The inclusion of such 
        materials in an Inspector and Auditor General's report 
        may put a conscientious agency head in a serious bind. 
        The obligation of an agency head is to help the 
        President ``faithfully execute the laws.'' Faithful 
        execution of this legislation entails the timely 
        transmittal, without alteration or deletion, of an 
        Inspector General's report to Congress. However, a 
        conflict of responsibilities may arise when the agency 
        head concludes that the Inspector and Auditor General's 
        report contains material, disclosure of which is 
        improper under the law. In this kind of rare case, 
        [section 5] is not intended to prohibit the agency head 
        from deleting the materials in question.
          In addition, the committee is aware that the Supreme 
        Court has, in certain contexts, recognized the 
        President's constitutional privilege for confidential 
        communications or for information related to the 
        national security, diplomatic affairs, and military 
        secrets (Nixon v. General Services Administration, 433 
        U.S. 425, [sic] (1977) * * *; United States v. Nixon, 
        418 U.S. 683 (1974) * * *). Insofar as this privilege 
        is constitutionally based, the committee recognizes 
        that [section 5] cannot override it. In view of the 
        uncertain nature of the law in this area, the committee 
        intends that [section 5] will neither accept nor reject 
        any particular view of Presidential privilege but only 
        preserve for the President the opportunity to assert 
        privilege where he deems it necessary. The committee 
        intends that these questions should be left for 
        resolution on a case-by-case basis as they arise in the 
        course of implementing this legislation.
          In the rare cases in which alterations or deletions 
        have been made, the committee envisions that an agency 
        head's comments on an Inspector and Auditor General's 
        report would indicate to the Congress that alterations 
        or deletions had been made, give a description of the 
        materials altered or deleted, and the reasons 
        therefore. In this manner, the appropriate 
        subcommittees and committees could pursue the matter in 
        whichever way would best serve the responsibilities of 
        Congress.

    The bill, as amended by the Senate, was passed by Congress 
and signed into law (P.L. 95-452). The provision for the 
reporting by the IG of ``particularly serious or flagrant'' and 
other problems through the DCI, rather than directly to 
Congress, was adopted in the establishment in 1989 of a 
statutory IG at CIA and added to section 17 of the Central 
Intelligence Agency Act of 1949 (50 U.S.C. 403q). This earlier 
legislation, and the careful consideration by Congress of 
matters of disclosures, form the basis of the ``dynamic 
compromise'' that we now seek to achieve through H.R. 3829.

                  Effect of H.R. 3829 on ``end runs''

    Because H.R. 3829, as amended, establishes an additional, 
rather than the sole, means by which employees of the IC may 
report problems to our committees, it leaves open a matter of 
concern to Members of this committee: What happens to employees 
who, for whatever reason, choose not to report a problem either 
through the process outlined in H.R. 3829 or through another 
process authorized by their management, but instead approach 
the committee directly?
    The committee believes that the procedure outlined in H.R. 
3829, and the Findings that underlie those provisions, address 
such unauthorized ``end runs'' in two ways. First, and based 
upon our survey of IC employees and IC psychologists, H.R. 3829 
provides a protected means for reporting to the intelligence 
committees that fits the needs and preferences of those 
employees. As such, the protections of H.R. 3829 reduce, if not 
eliminate, the fears of reprisal that often rationalize, in our 
experience, the use of unauthorized ``end runs'' at present.
    Second, H.R. 3829 is a balanced and practical system for 
handling whistleblowers that should resolve the impasse created 
by the OLC memo and the Senate's legislative response. We 
expect that enactment of this bill will restore the informal 
accommodation by the executive, with regard to employees who 
bring information directly to the intelligence committees, that 
existed before the OLC opinion of 1996.

                               Conclusion

    The committee believes that it must have access to those 
employees of the IC who are aware of information, classified or 
otherwise, exposing corruption, mismanagement, or waste within 
their agencies or elements. The committee's statutorily 
established oversight responsibilities cannot be effectively 
carried out if employees are required to obtain the approval of 
the heads of their agency before exposing wrongdoing, 
mismanagement, or waste. H.R. 3829 as reported is an effort to 
accommodate the critical interests of national security, law 
enforcement, and foreign affairs and still accomplish that 
legislative mandate.

                         Committee Proceedings

    On May 20, 1998, the Committee held a hearing on the 
constitutional and administrative aspects of whistleblowers and 
H.R. 3829 and heard testimony from Dr. Louis Fisher, Senior 
Specialist at CRS; Randolph Moss, Deputy Assistant Attorney 
General at OLC; Robert McNamara, General Counsel, CIA; James 
Thessin, Deputy Legal Advisor, Department of State; and Mark 
Richard, Deputy Assistant Attorney General, Department of 
Justice.
    On June 10, 1998, the Committee held a hearing on the 
workability of H.R. 3829 and heard testimony from Eleanor Hill, 
IG at Department of Defense; Michael Bromwich, IG at Department 
of Justice; Frederick Hitz, former IG at CIA; Frederick Kaiser, 
Specialist in American National Government at CRS; and Kate 
Martin, Director of the Center for National Security Studies.
    On July 23, 1998, the committee was briefed by DCI George 
Tenet on CIA's new whistleblower regulation.
    In addition, committee staff was briefed on the feasibility 
of using IG statutes for whistleblowers on December 15, 1997 by 
Michael Bromwich; Eleanor Hill; then-CIA IG Fred Hitz and IG 
counsel George Clarke; Michael Conley, Office of the IG at 
Department of Energy; and Jacquelyn Williams-Bridgers, IG at 
Department of State. Committee staff interviewed CIA officers 
in various field stations during the first half of 1998, and 
interviewed CIA and DIA psychologists on February 10 and May 
12, 1998. Staff also attended a conference entitled ``The 
Future of Whistleblower Protection,'' on March 30, 1998 at 
Washington College of Law, American University, Washington, 
D.C.
    The committee reviewed reports and commentary on the 
enactment of the oversight provisions of Title V of the 
National Security Act of 1947 (50 U.S.C. sec. 413), the 
Inspector General Act of 1978 (5 U.S.C. App.), and the 
provisions for a CIA IG in section 17 of the Central 
Intelligence Agency Act of 1949 (50 U.S.C. 403q). Among those 
reports are Committee on Government Operations, Report on the 
Establishment of Offices of Inspector General in Certain 
Executive Departments and Agencies, H.R. Rep. No. 95-584 
(1977); Committee on Governmental Affairs, Report on the 
Inspector General Act of 1978, S. Rep. No. 95-1071 (1978); 
Statement of Representative Brooks, Congressional Record (April 
18, 1978). Daily ed. H10404; Statement of Senator Eagleton, 
Congressional Record (September 22, 1978). Daily ed. S30953; 
Senate Select Committee on Intelligence, Report on the 
Intelligence Oversight Act of 1980, S. Rep. No. 96-730 (1980); 
House Permanent Select Committee on Intelligence, Report on the 
Intelligence Oversight Act of 1980, H.R. Rep. No. 96-1153 
(1980); Committee of Conference, Conference Report on the 
Intelligence Authorization Act for Fiscal Year 1981, H.R. Rep. 
No. 102-166 (1980); Senate Select Committee on Intelligence, 
Report on Authorizing Appropriations for Fiscal Years 1990 and 
1991, S. Rep. No. 101-174 (1989); President's Statement on 
Signing the Intelligence Authorization Act, Fiscal Year 1990, 
25 Weekly Comp. Pres. Doc. 1851 (November 30, 1989); Senate 
Select Committee on Intelligence, Report on Authorizing 
Appropriations for Fiscal Year 1991, S. Rep. No. 102-85 (1991); 
and Senate Select Committee on Intelligence, Report on 
Legislative Oversight of Intelligence Activities: The U.S. 
Experience, (Comm. Print 1984). Among the commentary are 
Washington College of Law, The Future of Whistleblower 
Protection (Continuing Legal Ed. and Conf. Material, March 30, 
1998); Michael Schmerling and L. Paige Whitaker, Whistleblower 
Protections for Federal Employees (Cong. Res. Serv. Rep. for 
Cong., 1997); and Frederick M. Kaiser, Inspector General in the 
CIA Compared to Other Statutory Inspectors General (Cong. Res. 
Serv. Rep. for Cong., 1989).

                        Committee Consideration

    The Committee met on July 23, 1998, to consider H.R. 3829, 
the ``Intelligence Community Whistleblower Protection Act of 
1998.'' Amendments were offered by Chairman Goss, Mr. Dicks, 
and Mr. Skaggs.
    The amendment by Chairman Goss was adopted by unanimous 
consent and made the base text for purposes of amendment. In 
open session, the amendment offered by Mr. Dicks was not 
adopted. The amendment offered by Mr. Skaggs was accepted. The 
Committee, then, by voice vote ordered H.R. 3829, as amended, 
reported favorably to the House, a quorum being present.

                         Vote of the Committee

    During its consideration of H.R. 3829, the Committee took 
one rollcall vote, which occurred on the amendment in the 
nature of a substitute offered by Mr. Dicks. On that vote, the 
Members present recorded their votes as follows:
    Mr. Goss (Chairman)--no; Mr. Shuster--no; Mr. McCollum--no; 
Mr. Castle--no; Mr. Boehlert--no; Mr. Bass--no; Mr. Gibbons--
no; Mr. Dicks--aye; Mr. Dixon--aye; Mr. Skaggs--aye; Ms. 
Pelosi--aye; Ms. Harman--aye; Mr. Skelton--aye; Mr. Bishop--
aye.

Findings and Recommendations of the Committee on Government Reform and 
                               Oversight

    With respect to clause 2(l)(3)(D) of rule XI of the Rules 
of the House of Representatives, the Committee has not received 
a report from the Committee on Government Reform and Oversight 
pertaining to the subject of the bill.

                           Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House rule XI does not apply because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

                 Congressional Budget Office Estimates

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 27, 1998.
Hon. Porter J. Goss,
Chairman, Permanent Select Committee on Intelligence, House of 
        Representatives, Washington, DC.
    Dear Mr. Chairman. The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3829, the 
Intelligence Community Whistleblower Protection Act of 1998.
    If you wish further details on this estimate we will be 
pleased to provide them. The CBO staff contact is Dawn Sauter.
            Sincerely,
                                            June O'Neill, Director.
    Enclosure.

H.R. 3829--Intelligence Community Whistleblower Protection Act of 1998

    H.R. 3829 would establish a procedure for certain federal 
employees and contract employees to report wrongdoing regarding 
intelligence activities to the Congressional intelligence 
committees. The bill would amend the Central Intelligence 
Agency Act of 1949 and the Inspector General Act of 1978 to 
require that employees who want to disclose such information to 
the Congress first report it to the appropriate inspector 
general. If the inspector general determined that the complaint 
or information appeared credible, the inspector general would 
report it to the agency head, who, in turn, would transmit it 
to the intelligence committees.
    CBO estimates that the bill would not have a significant 
budgetary impact. Although H.R. 3829 would increase the number 
of complaints that are processed and reviewed by the inspectors 
general, CBO estimates that the increase in complaints would be 
slight and that any increase in administrative costs of federal 
agencies would be insignificant. Also, the costs of informing 
employees about the new procedure would be negligible because 
the number of employees covered by the bill would be small and 
the cost of each notice would be minimal. Because the 
legislation would not affect direct spending or receipts, pay-
as-you-go procedures would not apply.
    The bill contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act, and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Dawn Sauter. 
This estimate was approved by Robert A. Sunshine, Deputy 
Assistant Director for Budget Analysis.

                        Committee Cost Estimates

    The committee agrees with the estimate of the Congressional 
Budget Office (CBO). As reported, however, H.R. 3829 would not 
``require'' that employees report through the mechanism 
established by the bill, as described in the CBO estimate, but 
would only ``enable'' them to use the new process.

 Specific Constitutional Authority for Congressional Enactment of This 
                              Legislation

    The intelligence and intelligence-related activities of the 
United States government are carried out to support the 
national security interests of the United States, to support 
and assist the armed forces of the United States, and to 
support the President in the execution of the foreign policy of 
the United States. Article 1, section 8, of the Constitution of 
the United States provides, in pertinent part, that ``Congress 
shall have power * * * to pay the debts and provide for the 
common defence and general welfare of the United States; * * 
*''; ``to raise and support Armies, * * *''; ``to provide and 
maintain a Navy; * * *'' and ``to make all laws which shall be 
necessary and proper for the carrying into execution * * * all 
other powers vested by this Constitution in the Government of 
the United States, or in any Department of Officer thereof.'' 
Therefore, pursuant to such authority, Congress is empowered to 
enact this legislation.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

       SECTION 17 OF THE CENTRAL INTELLIGENCE AGENCY ACT OF 1949

SEC. 17. INSPECTOR GENERAL FOR THE AGENCY.

    (a) * * *

           *       *       *       *       *       *       *

    (d) Semiannual Reports; Immediate Reports of Serious or 
Flagrant Problems; Reports of Functional Problems; Reports to 
Congress on Urgent Concerns.--(1) * * *

           *       *       *       *       *       *       *

    (5)(A) An employee of the Agency, or of a contractor to the 
Agency, who intends to report to Congress a complaint or 
information with respect to an urgent concern may report to the 
Inspector General.
    (B) Within the 60-calendar day period beginning on the day 
of receipt from an employee of a complaint or information under 
subparagraph (A), the Inspector General shall determine whether 
the complaint or information appears credible. If the Inspector 
General determines that the complaint or information appears 
credible, the Inspector General within such period shall 
transmit the complaint or information to the Director.
    (C) The Director shall, within 7 calendar days after 
receipt of the transmittal from the Inspector General under 
subparagraph (B), forward such transmittal to the intelligence 
committees together with any comments the Director considers 
appropriate.
    (D) If the Inspector General does not transmit, or does not 
transmit in an accurate form, the complaint or information 
described in subparagraph (B), the employee may contact the 
intelligence committees directly to submit the complaint or 
information, if the employee--
          (i) furnishes to the Director, through the Inspector 
        General, a statement of the employee's complaint or 
        information and notice of the employee's intent to 
        contact the intelligence committees directly; and
          (ii) obtains and follows direction from the Director, 
        through the Inspector General, on how to contact the 
        intelligence committees in accordance with appropriate 
        security practices.
    (E) The Inspector General shall notify the employee of each 
action taken under this paragraph with respect to the 
employee's complaint or information not later than three days 
after any such action is taken.
    (F) In this paragraph:
          (i) The term ``urgent concern'' means any of the 
        following:
                  (I) A serious or flagrant problem, abuse, 
                violation of law or executive order, or 
                deficiency relating to the administration or 
                operations of an intelligence activity 
                involving classified information, but does not 
                include differences of opinions concerning 
                public policy matters.
                  (II) A false statement to Congress, or a 
                willful withholding from Congress, on an issue 
                of material fact relating to the administration 
                or operation of an intelligence activity.
                  (III) An action, including a personnel action 
                described in section 2302(a)(2)(A) of title 5, 
                United States Code, constituting reprisal or 
                threat of reprisal prohibited under subsection 
                (e)(3)(B) in response to the employee's 
                reporting an urgent concern pursuant to the 
                terms of this act.
          (ii) The term ``intelligence committees'' means the 
        Permanent Select Committee on Intelligence of the House 
        of Representatives and the Select Committee on 
        Intelligence of the Senate.
    (G) An action taken by the Director or the Inspector 
General under this paragraph shall not be subject to judicial 
review.

           *       *       *       *       *       *       *

                              ----------                              


INSPECTOR GENERAL ACT OF 1978

           *       *       *       *       *       *       *


    Sec. 8H. (a)(1)(A) Employees of the Defense Intelligence 
Agency, the National Imagery and Mapping Agency, the National 
Reconnaissance Office, and the National Security Agency, and of 
contractors to those Agencies, who intend to report to Congress 
a complaint or information with respect to an urgent concern 
may report to the Inspector General of the Department of 
Defense (or designee).
    (B) Employees of the Federal Bureau of Investigation, and 
of contractors to the Bureau, who intend to report to Congress 
a complaint or information with respect to an urgent concern 
may report to the Inspector General of the Department of 
Justice (or designee).
    (C) Any other employee of, or contractor to, an executive 
agency, or element or unit thereof, determined by the President 
under section 2302(a)(2)(C)(ii) of title 5, United States Code, 
to have as its principal function the conduct of foreign 
intelligence or counterintelligence activities, who intends to 
report to Congress a complaint or information with respect to 
an urgent concern may report to the appropriate Inspector 
General (or designee) under this Act, or section 17 of the 
Central Intelligence Agency Act of 1949.
    (2) The designee of an Inspector General under this section 
shall report such employee complaints or information to the 
Inspector General within 7 calendar days of receipt.
    (b) Within the 60-calendar day period beginning on the day 
of receipt of an employee complaint or information under 
subsection (a), the Inspector General shall determine whether 
the complaint or information appears credible. If the Inspector 
General determines that the complaint or information appears to 
be credible, the Inspector General within such period shall 
transmit the complaint or information to the head of the 
establishment.
    (c) The head of the establishment shall, within 7 calendar 
days after receipt of the transmittal from the Inspector 
General pursuant to subsection (b), forward such transmittal to 
the intelligence committees, together with any comments the 
head of the establishment considers appropriate.
    (d) If the Inspector General does not transmit, or does not 
transmit in an accurate form, the complaint or information 
pursuant to subsection (b), the employee may contact the 
intelligence committees directly to submit the complaint or 
information, if the employee--
          (1) furnishes to the head of the establishment, 
        through the Inspector General, a statement of the 
        employee's complaint or information and notice of the 
        employee's intent to contact the intelligence 
        committees directly; and
          (2) obtains and follows direction from the head of 
        the establishment, through the Inspector General, on 
        how to contact the intelligence committees in 
        accordance with appropriate security practices.
    (e) The Inspector General shall notify the employee of each 
action taken under this section with respect to the employee's 
complaint or information not later than three days after any 
such action is taken.
    (f) In this paragraph:
          (1) The term ``urgent concern'' means any of the 
        following:
                  (A) A serious or flagrant problem, abuse, 
                violation of law or Executive order, or 
                deficiency relating to the administration or 
                operations of an intelligence activity 
                involving classified information, but does not 
                include differences of opinions concerning 
                public policy matters.
                  (B) A false statement to Congress, or a 
                willful withholding from Congress, on an issue 
                of material fact relating to the administration 
                or operation of an intelligence activity.
                  (C) An action, including a personnel action 
                described in section 2302(a)(2)(A) of title 5, 
                United States Code, constituting reprisal or 
                threat of reprisal prohibited under section 
                7(c) in response to the employee's reporting an 
                urgent concern pursuant to the terms of this 
                Act.
          (2) The term ``intelligence committees'' means the 
        Permanent Select Committee on Intelligence of the House 
        of Representatives and the Select Committee on 
        Intelligence of the Senate.
    (g) An action taken by the head of an establishment or an 
Inspector General under this section shall not be subject to 
judicial review.

               rule of construction of special provisions

    Sec. [8H] 8I. The special provisions under section 8, 8A, 
8B, 8C, 8D, [or 8E] 8E, or 8H of this Act relate only to the 
establishment named in such section and no inference shall be 
drawn from the presence or absence of a provision in any such 
section with respect to an establishment not named in such 
section or with respect to a designated Federal entity as 
defined under section 8F(a).

           *       *       *       *       *       *       *