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On August 3, The American Conservative ran a lengthy piece of mine dealing with the whistleblower protection nightmare that is the Department of Defense. One of the subjects of that piece is now former NSA IG George Ellard, and because I had even more on his case than I could fit into the TAC piece, I wanted to share the rest of what I knowand dont knowabout the allegations against Ellard, the final disposition of the case, why the Obama administrations whistleblower retaliation fix is itself broken, and what might be done to actually provide meaningful protections for would-be national security whistleblowers in the Pentagon and elsewhere in the national security establishment.

Regarding what little we know about the specifics of Ellards case, I had this to say in the TAC piece:

As the Project on Government Oversight firstreportedin December 2016, a three-member interagency Inspector General External Review Panel concluded in May 2016 that the then-Inspector General of the National Security Agency (NSA), George Ellard, had, according to POGO, himself had previously retaliated against an NSA whistleblower[.] This apparently occurred during the very same period that Ellard hadclaimedthatSnowden could have come to me. The panel that reviewed Ellards case recommended he be fired, a decision affirmed by NSA Director Mike Rogers.

But there was a catch: the Secretary of Defense had the final word on Ellards fate. Outgoing Obama administration Defense Secretary Ash Carter, apparently indifferent to the magnitude of the Ellard case, left office without making a decision.

In the months after Donald Trump became president, rumors swirled inside Washington that Ellard had, in fact, escaped termination. One source, who requested anonymity, reported that Ellard had been seen recently on the NSA campus at Ft. Meade, Maryland. That report, it turns out, was accurate.

On July 21, in response to the authors inquiry, the Pentagon public affairs office provided the following statement:

NSA followed the appropriate procedures following a whistleblower retaliation claim against former NSA Inspector General George Ellard. Following thorough adjudication procedures, Mr. Ellard continues to be employed by NSA.

After Id finished the TAC piece, Ellards attorney, Terrence ODonnell of the Washington mega law firm of Williams & Connolly, sent me the following statement about his client, George Ellard:

The Office of the Assistant Secretary of Defense (ASD) examined and rejected an allegation that former NSA Inspector General, George Ellard, had retaliated against an NSA employee by not selecting that employee to fill a vacancy in the OIGs Office of Investigations.

In a lengthy, detailed, and well-reasoned memorandum, the ASD concluded that Dr. Ellard had not played a role in that personnel decision or, in the terms of the applicable laws and regulations the ASD cited, Dr. Ellard did not take, fail to take, or threaten to take or fail to take any action associated with the personnel decision.

This judgment echoes the conclusion reached by the Department of Defenses Office of the Inspector General. An External Review Panel (ERP) later came to the opposite conclusion, leading to the ASD review. The ASD concluded that the evidence cited in the ERP report as reflective of [Dr. Ellards] alleged retaliatory animus toward Complainant is of a character so circumstantial and speculative that it lacks probity.

In assessing Dr. Ellards credibility and in rendering its decision, the ASD also considered Dr. Ellards distinguished career of public service, spanning more than 21 years of service across the executive, legislative, and judicial branches, culminating in almost 10 years of service as the NSA IG. Dr. Ellard, the ASD noted, has been entrusted to address some of our nations most challenging national security issues; successive NSA Directors have consistently rated Dr. Ellards performance as Exceptional Results and Outstanding; and he has been commended by well-respected senior officials with whom [he has] worked closely over the years for [his] ability and integrity.

Dr. Ellard is serving as the NSA Chair on the faculty of the National War College, a position he held prior to the ERP review.

Quite a bit to unpack in that statement. Lets start with the ASDs decision to overrule the External Review Panel (ERP), a key component of the Obama-era PPD-19, the directive designed to prevent in all government departments or agencies the very kind of thing Ellard allegedly did. Here are the key paragraphs of PPD-19 with respect to ERP recommendations:

If the External Review Panel determines that the individual was the subject of a Personnel Action prohibited by Section A while an employee of a Covered Agency or an action affecting his or her Eligibility for Access to Classified Information prohibited by Section B, the panel may recommend that the agency head take corrective action to return the employee, as nearly aspracticable and reasonable, to the position such employee would have held had the reprisal not occurred and that the agency head reconsider the employees Eligibility for Access to Classified Information consistent with the national security and with Executive Order 12968. (emphasis added)

An agency head shall carefully consider the recommendation of the External Review Panel pursuant to the above paragraph and within 90 days, inform the panel and the DNI of what action he or she has taken. If the head of any agency fails to so inform the DNI, the DNI shall notify the President. (emphasis added)

Taking the ERPs recommendations is strictly optional.

Whats so significant about the ERP recommendation in Ellards case was that the ERP not only apparently believed that the whistleblower in question should be given a fair chance at getting the position he or she originally applied for within the IG itself, but that Ellards actions werein the view of three non-DoD IGs who examined the caseso severe that they recommended he be terminated.

ODonnell quoted from a Pentagon memo clearing Ellard that is not public. The ERPs findings, along with their record of investigation, are not public. Nor do we know how thoroughor cursorythe ASDs review of the Ellard case was prior to the decision to clear Ellard. Given all of that, who are we to believe?

There are some key facts we do know that lead me to believe that the ERPs recommendations were not only likely soundly based, but that the whistleblower retaliation problem inside the Pentagon is deeply entrenched.

ODonnells statement also claimed that the ASDs decision to reverse the ERP and clear Ellard of wrongdoing echoes the conclusion reached by the Department of Defenses Office of the Inspector General. But its the DoD IG itself, as an institution, that is also under a major cloud because of other whistleblower retaliation claims coming from former NSA or DoD IG employeesspecifically former NSA senior executive service member Thomas Drake and for DoD Assistant Inspector General John Crane. As Ive noted previously, the independent Office of Special Counsel found adequate evidence of whistleblower retaliation and document destruction to refer the matter to the Justice Departments own IG; Cranes case is getting a look from the Government Accountability Office (GAO), Congresss own executive branch watchdog.

The DoD and NSA IGs have clear conflicts of interest when employees from within their own ranks are implicated in potential criminal wrongdoing. PPD-19 was supposed to be the answer to such conflicts of interest, but its lack of teeth from an enforcement standpoint renders it a badly flawed remedy for an extremely serious integrity problem.

And what about Congress? PPD-19 speaks to that as well:

On an annual basis, the Inspector General of the Intelligence Community shall report the determinations and recommendations and department and agency head responses to the DNI and, as appropriate, to the relevant congressional committees.

But Congress doesnt need to wait for the IC IG to tell it what is already publicly known about the Ellard, Drake, and Crane cases. It has ample cause to not only investigate these cases, but to take action to replace PPD-19 with a whistleblower protection system that actually protects those reporting waste, fraud, abuse, or criminal conduct and punishes those who attempt to block such reporting. Two options that deserve consideration are 1) empowering OSC to examine these kinds of cases and issue unreviewable summary judgments itself or 2) revive the expired Independent Counsel statute, rewritten with a focus on whistleblower reprisal case investigations.

One thing is beyond dispute. The PPD-19 process is not the answer for protecting whistleblower and punishing those who retaliate against them. We need a credible system that will do both. The only question now is whether anybody in the House or Senate will step up to the task of building a new one.

More:
The Curious Case Of Ex-NSA Inspector General George Ellard - Cato Institute (blog)