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New Case Proves Intelligence Community Whistleblowers Have Protections

NSA headquarters, Ft. Meade, Md.

In December, Adm. Mike Rogers, director of the NSA, placed the agency’s Inspector General (IG), Dr. George Ellard, on administrative leave and recommended he be removed from his position after an investigation into whether he retaliated against a whistleblower was conducted by a panel of IGs at the CIA, Treasury and Justice Department. The news was first reported by the Project on Government Oversight and confirmed by the Associated Press (AP). According to both reports, Ellard has appealed the investigation’s findings, leaving it to the Secretary of Defense to decide whether to accept or ignore the NSA director’s recommendation. Until that decision is made, Ellard remains on staff at the NSA. Before leaving office, President Barack Obama nominated Robert Storch to be the NSA’s new IG. Up and until this point, it appears that a system put in place by President Barack Obama to protect government whistleblowers has worked.

This could be a watershed moment. Before 2012, members of the Intelligence Community did not necessarily have the ability to file whistleblower reprisal complaints. Now, thanks to the new whistleblower protections ordered by President Obama, within a relatively short period of time, one of the Intelligence Community’s most senior officials, who incidentally is responsible for protecting whistleblowers with access to classified information, was recommended for removal for engaging in reprisal. This shows the system can work and should not be abandoned by the Trump administration.

The NSA’s decision to remove Ellard is significant on multiple fronts, and to appreciate it means understanding why these protections were originally put in place. First, the term whistleblower, as it is used colloquially, is not the same as its legal definition. A whistleblower, by law, is someone who engages in the lawful disclosure of violations of law, rule, or regulation. For members of the Intelligence Community (e.g. CIA, NSA, DIA), that means not disclosing classified information publicly — for example, giving it to a reporter — which internally is known as an “unauthorized disclosure” or a “leak.” The reason for this is simple: The public disclosure of classified information has the potential to gravely harm U.S. national security, particularly when the information disclosed reveals the sources and methods used to obtain it. 

Therefore, lawful disclosures require going to, among other places, an Office of Inspector General, such as the Intelligence Community Inspector General, or through other internal mechanisms unique to each agency. There are also various options to disclose to Congress, as well as a variety of legal strategies that private attorneys can facilitate. This way, if someone discloses wrongdoing lawfully, not only can the wrongdoing be properly investigated but the whistleblower, in theory, should be protected against retaliation for making that disclosure. No legal protections are available to leakers who deliberately ignore the rules of the system and decide on their own what classified information should be publicly disclosed. And while the Obama administration has put in place new protections for internal whistleblowers, it has gone after leakers. This includes former NSA contractor Edward Snowden. Even if Snowden’s 2013 disclosures did reveal questionable or even unlawful government conduct, he is not legally entitled to the status of a whistleblower or protection through applicable laws.

The case against Ellard has not yet been made public, but according to the AP, it began with what the whistleblower saw as “financial misconduct by NSA officials involving a conference in Nashville, Tennessee.” After he raised his concerns, his name was inappropriately disclosed to Ellard, the whistleblower told the AP. After that, he says he was denied a job assignment in Ellard’s IG office. An eight-month investigation confirmed the retaliatory action, which led to Rogers’ recommendation that Ellard be removed from his job. Moreover, it appears that, as part of the process, the whistleblower may be receiving “appropriate relief from the agency” in an effort to make him whole.

After Snowden’s disclosures, Ellard criticized him for not following official protocol, saying “Snowden could have come to me.” This response drew a sharp rebuke from many as a futile concept. Snowden, in fact, said he tried to raise his concerns internally but that they fell on deaf ears, a claim the NSA disputes (and for which no evidence has yet been discovered to support Snowden’s assertion). Snowden also said that he did not believe new whistleblower protections, put in place in 2012, applied to the Intelligence Community or to outside contractors like himself. While Ellard’s apparent recent actions might show that going to him was possibly not the right choice (and, again, this was just one of numerous avenues for any legitimate whistleblower to pursue), the NSA’s decision to remove Ellard is also proof that those protections do cover those working in the Intelligence Community from retaliation (for more on whether they apply to contractors, see here.)

This is why holding Ellard, a presidential appointee, accountable is so significant. It proves that the system can correct itself and negates Snowden’s claim that the only way to make a disclosure is by going public. These internal disclosure mechanisms have existed for years and can work, and are now bolstered by these new whistleblower protections. That said, to say that the system is perfect would be disingenuous. Recognizing that the Intelligence Community is skeptical of any and all whistleblowers must be acknowledged and, frankly, Snowden’s actions have not made it easier for those who engage in lawful whistleblowing because it is now too often conflated with illegal leaking and insider threat programs.  

It is only through cases like Ellard’s that senior officials will be forced to realize that reprisal comes with consequences and that seniority will have no bearing on an investigation’s outcome.  With more cases like this, members of the Intelligence Community could see the value in lawfully disclosing wrongdoing and, over time, agency leaders will hopefully see that those disclosures enhance the economy and efficiency of their respective agencies.  

Having developed programs at the Department of Defense and CIA, and having represented clients before both agencies, we are fully aware of the pushback and skepticism that President Obama’s Executive Order, Presidential Policy Directive 19 (PPD-19), which created the new whistleblower protections, faces within those organizations – including the Office of Inspectors General themselves. However, understanding the big picture — that PPD-19 encourages lawful disclosures by protecting the whistleblower — is critical to ensure employees do not leak unlawfully. Finally, PPD-19 allows for agency leadership to learn of problems internally, and hopefully early on, so that appropriate action can be taken to address the alleged wrongdoing.

Some of the clients we are currently representing have PPD-19 appeals pending before the Intelligence Community Office of Inspector General, and some of these cases involve senior officials at a level similar to Ellard. We hope that President Donald Trump sees that the significance of the PPD-19 program is threefold: (1) it encourages the protection of classified information, (2) it protects the whistleblower who lawfully discloses wrongdoing, and (3) it will allow his Administration to become aware of violations early on so that swift, appropriate action can be taken to address the alleged violations.

The views expressed in this publication are those of the authors and do not necessarily reflect the official policy or position of the Department of Defense, the Central Intelligence Agency, or the U.S. Government.

Image: Wikimedia Commons

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About the Authors

is the Managing Attorney with Compass Rose Legal Group and a Special Of Counsel attorney with the Law Office of Mark S. Zaid. Mr. Bakaj developed the legal and investigative framework for national security whistleblower reprisal cases within the Department of Defense and, subsequently, the PPD-19 whistleblower reprisal investigation program within the Central Intelligence Agency.

has been representing clients within the Intelligence Community, particularly whistleblowers, for over two decades. Together with Mr. Bakaj they are handling multiple clients with PPD-19 appeals.