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Letter to the Editor: Whistleblower Protections Are Getting Stronger

 

The March 2 article on Just Security by Patrick Eddington, titled “Whistleblower Retaliation: A Governmental Accountability and National Security Crisis,” certainly captures not only the issues that bona fide whistleblowers have to live through after engaging in “protected activity,” but also the challenges those who investigate reprisal allegations, both within the Defense Department and Intelligence Community (IC), face by virtue of the role they serve. As a primer, Eddington’s article is an outstanding historical representation for those who wish to understand how this area of law and policy has been shaped, particularly since 2012, as well as the ongoing challenges both whistleblowers and the investigative entities themselves face as the program matures.

We disagree, however, with Eddington’s position on our recent article, where we stated that, “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.” Eddington describes this as “magical thinking,” but that view is defeated by facts, our own casework and professional experiences, as well as our recent legal victories. For full disclosure, many of the individuals identified in Eddington’s article, as well as the author, we have either represented as legal counsel, worked for or with, or investigated their complaints of whistleblower reprisal.

Eddington makes it clear that both the Defense as well as the IC whistleblower investigation programs have endured a great deal, which is best represented by the story of Dan Meyer, who exposed wrongdoing and faced retaliation because of it. Meyer, who is the executive director of the Intelligence Community Whistleblowing and Source Protection program, exposed attempts by DoD IG officials manipulating a final version of a report about an investigation into allegations that Leon Panetta, in his capacity as CIA Director, “had leaked classified information to the makers of the film Zero Dark Thirty.” Eddington’s article says Meyer made these claims public in July 2016, and it is true Meyer himself experienced reprisal. However, the actual events occurred a number of years ago, and have since been addressed not only appropriately but resolved favorably. Moreover, Meyer’s disclosure about the DoD IG officials manipulating the report was substantiated by a CIA IG investigation. Finally, as it pertains to the Defense Department IG, we currently represent numerous whistleblowers within the Whistleblower Reprisal Investigations Directorate. Accordingly, we are fully aware of the issues involved and are successfully creating forcing-functions to enable the DoD IG to correct any and all deficiencies. 

The issues surrounding Ellard, the NSA IG who was recommended for removal following an investigation into whether he retaliated against a whistleblower, do show that presidential appointees are not immune from both investigation and corrective action. In fact, there is an ongoing investigation into another individual, who’s in a similar position as Ellard, which we are personally involved in through a variety of capacities. Given Ellard’s case and our own casework, the best way to describe the current status of PPD-19 investigations is that the program, which we must acknowledge is relatively new, is being tested, shaped, and refined.

This is exactly how programs mature. Many of today’s cases are not publicly known yet and therefore outside of Eddington’s knowledge. But the program to protect whistleblowers from reprisal is growing stronger through these cases. For example, on February 22, we achieved a milestone by expanding whistleblower protection to members of the IC who engage in Equal Employment Opportunity (“EEO”) protected activity. In this case, an individual disclosed violations of law through the CIA EEO process. While the CIA IG initially declined to investigate the complaint, taking the position that EEO disclosures are not covered by PPD-19, the IC IG reversed that decision. As a result, the CIA IG will now investigate these allegations, while simultaneously preserving our appeal rights back to the IC IG, should it be necessary.

Moreover, the individual is not a CIA Officer, but a former contractor with the CIA. This is significant because Eddington claims that IC contractors have no protection under PPD-19. Clearly, this is false. IC contractors are absolutely covered when the actions involve security clearances. In fact, not only has the IC IG underscored this protection, but clarified it in our above-referenced case to include protections for disclosing wrongdoing through the EEO process.

Finally, Eddington’s point that President Donald Trump can rescind PPD-19 is accurate. It was a Presidential Policy Directive, signed by former President Barack Obama. However, two important points need to be made to put this in context. The first is that Trump says he wants to “drain the swamp” in Washington. If he’s serious about this, then presumably he would want to keep an administrative tool that can be used to hold senior government officials accountable and lead to their removal if justified. Second, understanding the precariousness of relying on an Executive Order, Congress codified many of the protections contained in PPD-19 under Title VI of the Intelligence Authorization Act for fiscal year 2014. This means it does not matter if Trump rescinds Obama’s policy order, because the protections will continue as a matter of law.

While Eddington is entitled to believe our position is one of “magical thinking,” we think he is incorrect. We are realists who understand the system as it was developed and more importantly as it exists. Rather than simply criticize the laws and forego suggesting how modifications can be made, we strive to strengthen the laws already in place. But we also understand the reality of and difficulties with representing whistleblowers, regardless of whether they are in the Intelligence Community or elsewhere. Accordingly, we find it far more helpful to celebrate positive results as a movement for change than highlight negative deficiencies as predictors of doom.

That being said, Eddington’s points are not without merit. Depending on the nature of the disclosure the whistleblower engages in, the issues can be particularly controversial. As we know, in Washington, controversy is not a good thing. This is why we try and guide would-be whistleblowers before they engage in protected activity and assist those who have experienced reprisal by effectively using the tools that we have at our disposal. This is not magical thinking; it’s effective lawyering.

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: Getty

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About the Authors

Managing Attorney at Compass Rose Legal Group and Special Of Counsel Attorney with the Law Office of Mark S. Zaid

Represents Clients within the Intelligence Community Together with Mr. Bakaj, they are handling multiple clients with PPD-19 appeals.