Case 1 19-cv-01333-ABJ Document 16-5 Filed 10 01 19 Page 1 of 5 EXHIBIT E Plaintiffs' Motion for a Temporary Restraining Order Case 1 19-cv-01333-ABJ Document 16-5 Filed 10 01 19 Page 2 of 5 UNCLASSIFIED FOUO INSPECTOR GENERAL OF THE INTELLIGENCE C OMMUNITY WASHINGTON D C 20511 September 17 2019 VIA ELECTRONIC TRANSMISSION The Honorable Adam Schiff Chairman Permanent Select Committee on Intelligence U S House of Representatives Washington D C 20515 The Honorable Devin Nunes Ranking Member Permanent Select Committee on Intelligence U S House of Representatives Washington D C 20515 Dear Chairman Schiff and Ranking Member Nunes U FOUO In a previous letter to you dated September 9 2019 I informed you that I was continuing my efforts to obtain direction from the Acting Director of National lntelligence Acting DNI concerning a disclosure from an individual hereinafter ''the Complainant regarding an alleged urgent concern pursuant to 50 U S C 3033 k 5 A 1 The statute that established and authorized the Office of the Inspector General of the lntelligence Community JCIG provides that if the ICIG is unable to resolve differences with the Director of National Intelligence affecting the execution of the duties or responsibilities of the Inspector General the ICIG should immediately notify and submit a report to the congressional intelligence committees on such matters 2 Although I had hoped that the Acting DNI would provide direction through me on how the Complainant can contact the congressional intelligence committees directly in accordance with appropriate security practices 3 I have now determined that the Acting DNl and l are at an 1 U 50 U S C 30' B k S A provides that an mployee of an e lt ment or the intelli ge nce co mmunity an e mpl oyee assigned or delailed to an element of the intellige nce co mmunity or an employee of a contractor to the inte llige nce community who intends to report to Congress a compl aint or in fo rmatio n with respect to an urge nt concern may report such complaint or information to the Inspector General 2 U Id at 3033 k 3 A i 3 U Id at 3033 k 5 D i and ii UNCLASSIFIED FOUO Case 1 19-cv-01333-ABJ Document 16-5 Filed 10 01 19 Page 3 of 5 UNCLASSIFIED FOUO impasse over this issue which necessitates this notification and report on our unresolved differences U FOUO On September 13 2019 I received a copy of a letter dated the same day sent from Jason Klitenic General Counsel Office of the Director of National Intelligence to the Chair and Vice Chair of the Senate Select Committee on Intelligence and to you as the Chair of the House Permanent Select Committee on Intelligence HPSCI and as the Ranking Member of the HPSCI In that letter Mr Klitenic informed the congressional intelligence committees that the Acting DNI had determined after consulting with the Department of Justice DOJ that no statute requires disclosure of the complaint to the intelligence committees because the disclosure in this case did not concern allegations of conduct by a member of the Intelligence Community or involve an intelligence activity under the DNI's supervision I understand that I am bound by the determination reached as a result of the Acting DNI's consultations with DOJ and the ICIG will continue io abide by that determination U FOUO I nevertheless respectfully disagree with that determination particularly DOJ's conclusion and the Acting DNI's apparent agreement with the conclusion that the disclosure in this case does not concern an intelligence activity within the DNI's authority and that the disclosure therefore need not be transmitted to the congressional intelligence committees In a letter sent on today's date to DOJ a copy of which I provided to the Acting DNI I outlined my reasons for disagreeing with DOJ's analysis of the facts presented in the instant case and the conclusions reached regarding the same I set forth the reasons for my concluding that the subject matter involved in the Complainant's disclosure not only falls within the DNI's jurisdiction but relates to one of the most significant and important of the DNI' s responsibilities to the American people Because of the disagreement that exists between myself DOJ and the Acting DNI I have requested authorization from the Acting DNI to disclose at the very least the general subject matter of the Complainant's allegations to the congressional intelligence committees To date however I have not been authorized to disclose even that basic information to you in addition to the important information provided by the Complainant that is also being kept from the congressional intelligence committees U FOUO In addition it appears to me that the Acting DNI has no present intention of providing direction to the Complainant through me on how the Complainant can contact the congressional intelligence committees directly in accordance with appropriate security practices 4 Although I appreciate that the Acting DNI has provided his personal assurance that the Complainant will be protected if the Complainant's identity becomes known and the Complainant is reprised against or threatened with reprisal for making the disclosure such personal assurance is not the legally enforceable statutory protection previously available to whistleblowers in the Complainant's situation U FOUO As it now stands my unresolved differences with the Acting DNI are affecting the execution of two of my most important duties and responsibilities as the Inspector General of 4 U Id at 3033 k S D i and ii UNCLASSIFJED FOUO 2 Case 1 19-cv-01333-ABJ Document 16-5 Filed 10 01 19 Page 4 of 5 UNCLASSIFIED FOUO the Intelligence Community First the differences are affecting what I view as my significant responsibilities toward the Complainant an employee detailee or contractor in the Intelligence Community who wants to disclose to Congress in an authorized and protected manner information that involves classified information that the Complainant believes in good faith is ''with respect to an urgent concern 5 U FOUO Second the unresolved differences are affecting the execution of the ICIG's statutory responsibility to ensure that the congressional intelligence committees are kept currently and fully informed of significant problems and deficiencies relating to programs and activities within the responsibility and authority of the Director of National Intelligence 6 The DNI's decision not to transmit my determination or any of the Complainant's information to the congressional intelligence committees for reasons other than awaiting a classification review or asse1ting appropriate privileges may reflect a gap in the law that constitutes a significant problem and deficiency concerning the DNI' s responsibility and auth01ity - or perceived responsibility and authority - relating to intelligence programs or activities U FOUO Further the resulting inability for an employee detailee or contractor in the Intelligence Community to receive direction from the Acting DNI through the Inspector General on how to contact the congressional intelligence committees directly in accordance with appropriate security practices concerning what appear to be good faith and credible allegations with respect to an urgent concern 7 even if it is later determined by others that the alleged conduct falls outside the definition of urgent concern may itself constitute a significant problem and deficiency concerning the DNI's responsibility and authority relating to intelligence programs or activities In addition the Complainant's current predicament where an individual used the urgent concern process in good faith but in the future might not be statutorily protected from reprisal or the threat of reprisal for making the disclosure may also constitute a significant problem and deficiency concerning the DNI's responsibility and authority relating to intelligence programs or activities 8 U I remain committed to ensuring that individuals in the Intelligence Community who disclose allegations of wrongdoing in good faith and in an authorized manner to the ICIG receive consistent effective and enforceable protections from actions constituting a reprisal or threat of reprisal for making such a disclosure I will also continue my efforts to ensure individuals in the 5 U Id at 3033 k 5 A 6 U Id at 3033 b 4 7 U Id at 3033 k 5 A 8 U FOUO DOJ's legal opinion may have significant implications for whistleblower rights and protections for all Executive Branch departments and agencies as well as the government contracting industry The ICIG has asked DOJ to clarify among other things whether the Complainant and those individuals similarly situated to the Complainant now or in the future are protected from actions constituting a reprisal or threat of reprisal in response to reporting an alleged urgent concern or other allegations of waste fraud or abuse that may later be determined to fall outside the jurisdiction of the individual's department or agency UNCLASSIFIED FOUO 3 Case 1 19-cv-01333-ABJ Document 16-5 Filed 10 01 19 Page 5 of 5 UNCLASSlFLED FOUO Intelligence Community have a consistent authorized and effective means to report such allegations to the congressional intelligence committees Please do not hesitate to contact me if you have any questions regarding this important matter Sincerely yours t' Michael K Atkinson Inspector General of the Intelligence Community cc The Honorable Joseph Maguire Director of National Intelligence Acting UNCLASSIFIED FOUO 4 This document is from the holdings of The National Security Archive Suite 701 Gelman Library The George Washington University 2130 H Street NW Washington D C 20037 Phone 202 994-7000 Fax 202 994-7005 nsarchiv@gwu edu