This article originally appeared on Just Security.
Last week, a federal judge dismissed a complaint by a CIA whistleblower (and spy), who goes by the pseudonym James Pars. The ruling by Judge Trevor McFadden could affect the willingness of whistleblowers to step forward in the future.
Pars’ case wasn’t so much about his whistleblowing disclosure—basically a complaint about his work place conditions—as it was about the procedures Inspectors General (IGs) must follow when investigating whistleblower retaliation. Specifically, who can hold the watchdogs accountable if they mishandle a whistleblower’s case? Can the whistleblower take the watchdog to court?
Presidential Policy Directive-19 (PPD-19) governs how IGs handle whistleblower cases. After a handful of Wikileaks scandals rocked the Intelligence Community in 2010, including the release of thousands of State Department cables, and in response to mounting pressure from civil society to reform the intelligence community whistleblowing infrastructure, President Barack Obama created PPD-19 to formalize intelligence whistleblowing protections, encouraging intelligence employees to report waste, fraud, and abuse through government channels vs. leaks. The idea behind the directive is that if employees make protected disclosures or complaints within the community (through “the proper channels”), retaliating against them would be unlawful. The IG at the employee’s agency is now charged with investigating such unlawful retaliation.
Pars followed this procedure, but the CIA IG’s office didn’t. A 16-year CIA veteran and deputy chief of base in a conflict zone, Pars made a complaint about the conditions of his work environment, including disclosures about his CIA superior on the base, to his supervisor and allegedly suffered retaliation, resulting in a “short of tour” notice, which sent him home early and damaged his career. Following PPD-19 procedure, he filed a retaliation complaint with the CIA IG. He met with the IG’s office twice over an 8-month period in 2015, but alleges the IG never investigated his complaint.
Despite Pars’ multiple requests and information dumps, the IG refused to interview witnesses, review information, or make any sort of finding—favorable or unfavorable—on his case. After nearly two years of inaction, he tried to hold the CIA IG accountable. He claimed a private right of action under PPD-19 and, in December 2016, he sued the CIA.
From the outset, this was an entirely unique case. PPD-19 was written to contain whistleblowing within the Intelligence Community—there is no judicial review permitted either by the directive or the statutes codifying the directive. When PPD-19 was drafted, trusting IGs was the norm. The drafters felt the IGs, as agency watchdogs, could sufficiently handle cases with independence and integrity. After all, there are only two presidential appointments with lifetime tenure: judges and IGs.
Since then, the National Security Agency’s IG was placed on administrative leave after three IGs determined that he retaliated against a whistleblower (a claim that was later contradicted by a Defense Department analysis); the acting Defense Department IG refused to investigate whistleblower retaliation by the Defense Intelligence Agency IG; the acting Intelligence Community IG gutted the Intelligence Community’s whistleblowing and source-protection program, buried an inspection into component IG’s PPD-19 compliance, and fired PPD-19’s primary architect and enforcer; and the acting CIA IG allegedly lied to Congress about the three separate whistleblowing reprisal complaints pending against him.
These are only the scandals made public. This track record makes it hard for whistleblowers and potential whistleblowers to trust the IGs with their careers. And it has created a chilling effect.
With this contemporary history of whistleblower retaliation and cover-up, this program meant to encourage lawful whistleblowing is under siege. Pars’ case could have contributed to curbing the problem. Using the authority invested in them by Article III of the U.S. Constitution, a federal court could have waded into these waters, telling the CIA IG, and all the other IGs following the case, that they could either properly investigate their whistleblowers’ claims or expect to see them in court.
But that’s not what happened. The Administrative Procedure Act (APA), the hook for Pars’ court case, provides a basis for suit “where the federal government has unlawfully withheld or unreasonably delayed action.” Judge McFadden found that a CIA IG investigation was not legally required under the APA, as there was no congressional statute grounding the presidential directive (a requirement for a private right of action under the APA). The statute came later, in the Intelligence Authorization Act for FY 2014, which codified PPD-19 and explicitly disallowed either a private right of action or judicial review. Given Pars’ inability to meet the standard under the APA, and that PPD-19 neither in itself, nor in statute, provides a private right of action, Judge McFadden dismissed his complaint.
There is no private right of action for intelligence whistleblowers. This sad fact is coupled with executive and legislative inaction to address whistleblowers’ problems across the Intelligence Community. According to The Daily Beast’s reporting on the buried PPD-19 inspection, only one whistleblowing retaliation case out of a 190-case sample was substantiated. Many are still sitting with the local Inspector General for review, some for years, with no action.
Judge McFadden interpreted and applied the law fairly in this case. But if the judiciary can’t step in, who will? When will we start protecting our intelligence whistleblowers and become better at watching our watchdogs? It’s time for Congress to either bolster our watchdogs or allow judicial review for intelligence community whistleblowers.
(Alex Wong/Getty Images)
Irvin McCullough is an investigator for the Government Accountability Project, specializing in intelligence community and military whistleblowing protection. He leads investigations and legislative initiatives to further GAP’s National Security program.