5a U.S. Code § 8H - Additional provisions with respect to Inspectors General of the Intelligence Community

(a)

(1)

(A) An employee of the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Reconnaissance Office, or the National Security Agency, or of a contractor of any of those Agencies, who intends to report to Congress a complaint or information with respect to an urgent concern may report the complaint or information to the Inspector General of the Department of Defense (or designee).

(B) An employee of an element of the intelligence community, an employee assigned or detailed to an element of the intelligence community, or an employee of a contractor to the intelligence community, who intends to report to Congress a complaint or information with respect to an urgent concern may report such complaint or information to the Inspector General of the Intelligence Community.

(C) An employee of the Federal Bureau of Investigation, or of a contractor of the Bureau, who intends to report to Congress a complaint or information with respect to an urgent concern may report the complaint or information to the Inspector General of the Department of Justice (or designee).

(D) 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 the complaint or information to the appropriate Inspector General (or designee) under this Act, section 17 of the Central Intelligence Agency Act of 1949 [50 U.S.C. 3517], or section 103H(k) of the National Security Act of 1947 (50 U.S.C. 3033(k)).

(2) If a designee of an Inspector General under this section receives a complaint or information of an employee with respect to an urgent concern, that designee shall report the complaint or information to the Inspector General within 7 calendar days of receipt.

(3) The Inspectors General of the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Reconnaissance Office, and the National Security Agency shall be designees of the Inspector General of the Department of Defense for purposes of this section.

(b)

(1) Not later than the end of the 14-calendar day period beginning on the date of receipt of an employee complaint or information under subsection (a), the Inspector General shall determine whether the complaint or information appears credible. Upon making such a determination, the Inspector General shall transmit to the head of the establishment notice of that determination, together with the complaint or information.

(2) If the head of an establishment determines that a complaint or information transmitted under paragraph (1) would create a conflict of interest for the head of the establishment, the head of the establishment shall return the complaint or information to the Inspector General with that determination and the Inspector General shall make the transmission to the Director of National Intelligence and, if the establishment is within the Department of Defense, to the Secretary of Defense. In such a case, the requirements of this section for the head of the establishment apply to each recipient of the Inspector General’s transmission.

(c) Upon receipt of a transmittal from the Inspector General under subsection (b), the head of the establishment shall, within 7 calendar days of such receipt, forward such transmittal to the intelligence committees, together with any comments the head of the establishment considers appropriate.

(d)

(1) If the Inspector General does not find credible under subsection (b) a complaint or information submitted to the Inspector General under subsection (a), or does not transmit the complaint or information to the head of the establishment in accurate form under subsection (b), the employee (subject to paragraph (2)) may submit the complaint or information to Congress by contacting either or both of the intelligence committees directly.

(2) The employee may contact the intelligence committees directly as described in paragraph (1) only if the employee—

(A) before making such a contact, 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

(B) obtains and follows from the head of the establishment, through the Inspector General, direction on how to contact the intelligence committees in accordance with appropriate security practices.

(3) A member or employee of one of the intelligence committees who receives a complaint or information under paragraph (1) does so in that member or employee’s official capacity as a member or employee of that committee.

(e) The Inspector General shall notify an employee who reports a complaint or information under this section of each action taken under this section with respect to the complaint or information. Such notice shall be provided not later than 3 days after any such action is taken.

(f) An action taken by the head of an establishment or an Inspector General under subsections (a) through (e) shall not be subject to judicial review.

(g) An individual who has submitted a complaint or information to an Inspector General under this section may notify any member of the Permanent Select Committee on Intelligence of the House of Representatives or the Select Committee on Intelligence of the Senate, or a staff member of either such Committee, of the fact that such individual has made a submission to that particular Inspector General, and of the date on which such submission was made.

(h) In this section:

(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 funding, 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 funding, 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 an employee’s reporting an urgent concern in accordance with this section.

(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.

(Pub. L. 95–452, § 8H, as added Pub. L. 105–272, title VII, § 702(b)(1), Oct. 20, 1998, 112 Stat. 2415; amended Pub. L. 107–108, title III, § 309(b), Dec. 28, 2001, 115 Stat. 1400; Pub. L. 107–306, title VIII, § 825, Nov. 27, 2002, 116 Stat. 2429; Pub. L. 110–417, [div. A], title IX, § 931(b)(2), Oct. 14, 2008, 122 Stat. 4575; Pub. L. 111–259, title IV, § 431(b), Oct. 7, 2010, 124 Stat. 2731; Pub. L. 113–126, title III, § 310, title VI, § 603(a), July 7, 2014, 128 Stat. 1398, 1420; Pub. L. 116–92, div. E, title LXVII, § 6726(c), Dec. 20, 2019, 133 Stat. 2236.)

Editorial Notes

Prior Provisions

A prior section 8H of the Inspector General Act of 1978 was renumbered section 8J.

Amendments

2019—Subsecs. (g) to (i). Pub. L. 116–92 redesignated subsecs. (h) and (i) as (g) and (h), respectively, and struck out former subsec. (g) which read as follows:

“(g)(1) The Inspector General of the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Reconnaissance Office, and the National Security Agency shall each submit to the congressional intelligence committees each year a report that sets forth the following:

“(A) The personnel and funds requested by such Inspector General for the fiscal year beginning in such year for the activities of the office of such Inspector General in such fiscal year.

“(B) The plan of such Inspector General for such activities, including the programs and activities scheduled for review by the office of such Inspector General during such fiscal year.

“(C) An assessment of the current ability of such Inspector General to hire and retain qualified personnel for the office of such Inspector General.

“(D) Any matters that such Inspector General considers appropriate regarding the independence and effectiveness of the office of such Inspector General.

“(2) The submittal date for a report under paragraph (1) each year shall be the date provided in section 507 of the National Security Act of 1947.

“(3) In this subsection, the term ‘congressional intelligence committees’ shall have the meaning given that term in section 3 of the National Security Act of 1947 (50 U.S.C. 401a).”

2014—Subsec. (a)(1)(B), (C). Pub. L. 113–126, § 310(1), (2), added subpar. (B) and redesignated former subpar. (B) as (C). Former subpar. (C) redesignated (D).

Subsec. (a)(1)(D). Pub. L. 113–126, § 310(1), (3), redesignated subpar. (C) as (D), substituted “Act, section 17” for “Act or section 17”, and inserted “, or section 103H(k) of the National Security Act of 1947 (50 U.S.C. 3033(k))” before period at end.

Subsec. (b). Pub. L. 113–126, § 603(a)(1), designated existing provisions as par. (1) and added par. (2).

Subsecs. (h), (i). Pub. L. 113–126, § 603(a)(2), (3), added subsec. (h) and redesignated former subsec. (h) as (i).

2010—Subsec. (a)(3). Pub. L. 111–259 added par. (3).

2008—Subsecs. (a)(1)(A), (g)(1). Pub. L. 110–417 substituted “National Geospatial-Intelligence Agency” for “National Imagery and Mapping Agency”.

2002—Subsec. (f). Pub. L. 107–306, § 825(1), substituted “subsections (a) through (e)” for “this section”.

Subsecs. (g), (h). Pub. L. 107–306, § 825(2), (3), added subsec. (g) and redesignated former subsec. (g) as (h).

2001—Subsec. (b). Pub. L. 107–108, § 309(b)(1), substituted “Upon making such a determination, the Inspector General shall transmit to the head of the establishment notice of that determination, together with the complaint or information.” for “If the Inspector General determines that the complaint or information appears credible, the Inspector General shall, before the end of such period, transmit the complaint or information to the head of the establishment.”

Subsec. (d)(1). Pub. L. 107–108, § 309(b)(2), substituted “does not find credible under subsection (b) a complaint or information submitted to the Inspector General under subsection (a), or does not transmit the complaint or information to the head of the establishment in accurate form under subsection (b),” for “does not transmit, or does not transmit in an accurate form, the complaint or information described in subsection (b),”.

Statutory Notes and Related Subsidiaries

Congressional Findings

Pub. L. 105–272, title VII, § 701(b), Oct. 20, 1998, 112 Stat. 2413, provided that:

“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 of Government 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.”