By Adam Zagorin
December 15, 2016 – Until just a few months ago, George Ellard occupied a position of trust as top watchdog of the National Security Agency, America’s principal collector of signals intelligence. Ellard was not only NSA’s Inspector General, but an outspoken critic of Edward Snowden, the former contract employee who leaked hundreds of thousands of classified emails to publicly expose the agency’s domestic surveillance program. Snowden claimed, among other things, that his concerns about NSA’s domestic eavesdropping were ignored by the agency, and that he feared retaliation. Ellard publicly argued in 2014 that Snowden could have safely reported the allegations of NSA’s domestic surveillance directly to him.
Then last May, after eight months of inquiry and deliberation, a high-level Intelligence Community panel found that Ellard himself had previously retaliated against an NSA whistleblower, sources tell the Project On Government Oversight. Informed of that finding, NSA’s Director, Admiral Michael Rogers, promptly issued Ellard a notice of proposed termination, although Ellard apparently remains an agency employee while on administrative leave, pending a possible response to his appeal from Secretary of Defense Ash Carter.
The closely held but unclassified finding against Ellard is not public. It was reached by following new whistleblower protections set forth by President Obama in an executive order, Presidential Policy Directive 19. (A President Trump could, in theory, eliminate the order.) Following PPD-19 procedures, a first-ever External Review Panel (ERP) composed of three of the most experienced watchdogs in the US government was convened to examine the issue. The trio — IG’s of the Justice Department, Treasury, and CIA – overturned an earlier finding of the Department of Defense IG, which investigated Ellard but was unable to substantiate his alleged retaliation.
“The finding against Ellard is extraordinary and unprecedented,” notes Stephen Aftergood, Director of the Secrecy Program at the Federation of American Scientists. “This is the first real test drive for a new process of protecting intelligence whistleblowers. Until now, they’ve been at the mercy of their own agencies, and dependent on the whims of their superiors. This process is supposed to provide them security and a procedural foothold.”
“The case, which is still in progress, offers hopeful signs that the new framework may be working,” Aftergood added.
POGO learned of the decision against Ellard from sources who spoke on condition of anonymity. The information was later confirmed by government officials. POGO has been told that mention of the finding will appear in a semiannual report (SAR) of the Intelligence Community IG (ICIG) that should be released soon. It makes brief mention of the case without citing Ellard by name.
Neither Ellard, his lawyer, nor the NSA provided any comment, despite POGO’s numerous attempts to offer them the opportunity.
POGO also reached out to the NSA employee and victim of Ellard’s retaliation, posing a detailed series of questions about what happened through an official intermediary. POGO has been told that the whistleblower composed answers to at least some of those queries, and was seeking NSA approval before releasing them. So far, there is no sign that such approval has been granted.
The DODIG told POGO it would have no immediate comment.
Ellard, a Yale-trained lawyer and former prosecutor with a doctorate in philosophy, was for nine years the top oversight official keeping tabs on NSA, an agency fraught with controversy over its handling of Edward Snowden and other prominent whistleblowers. Ellard chose to enter that debate along with other critics who faulted Snowden for his alleged unwillingness to report his concerns about NSA domestic surveillance through channels inside the agency set up for that purpose.
IG Ellard’s criticism of Snowden first stirred controversy during a 2014 panel discussion at Georgetown University Law Center in Washington. “Snowden could have come to me,” Ellard declared, arguing that the leaker, now a fugitive in Russia, would have received the same protections as other NSA employees, who file some one thousand reports annually to the agency’s hotline. “We have surprising success in resolving the complaints that are brought to us,” Ellard said, adding, “Perhaps it’s the case that we could have shown, we could have explained to Mr. Snowden his misperceptions, his lack of understanding of what we do.”
Snowden himself has explicitly contended that he feared retaliation and that he had no other option but to go public if he wished to expose NSA domestic eavesdropping. Among the cases of retaliation that Snowden has pointed to is that of former senior NSA employee Thomas Drake, who after reporting alleged wrongdoing through authorized channels, was arrested at dawn by the FBI, stripped of his security clearance, charged with crimes under the Espionage Act, all of which were later dropped, leaving him to find work in an Apple store. Snowden’s related contention is that in his own case, he did, in fact, report his concerns in emails to NSA superiors at the time, a contention which NBC has said it verified.
Now, given the official finding that Ellard retaliated against an NSA whistleblower, the credibility of Ellard’s argument that Snowden could have come to him is gravely undermined. More generally, there are few if any incentives for intelligence whistleblowers to report problems through designated authorities when the IG of NSA is found to have retaliated against such an individual.
Meanwhile, the ICIG’s handling of what began as a whistleblower complaint against Ellard sends an encouraging signal to those who may report wrongdoing at 17 US intelligence agencies and all executive-branch federal offices where employees hold security clearances, according to the ICIG, which oversees the directive.
Obama proposed the PPD-19 process in 2012, though implementation did not begin until in mid-2013. Some 18 appeals for review of a retaliation charge, or the convening of an ERP, have made their way to the office of Intelligence Community IG Charles McCullough, III, who oversees the directive.
Dan Meyer, the ICIG’s Executive Director for Intelligence Community Whistleblower & Source Protection told POGO, “The purpose of PPD-19 is to offer intelligence and national security whistleblowers an effective and safe means to report problems without being forced to confront the fear of reprisal.”
As such, the Ellard case is groundbreaking not only because it represents the most extensive use of PPD-19 procedures to date, but also because of Ellard’s high-ranking position in a national security environment where few, if any top officials are known to have been held accountable. A variety of reprisal accusations have been made against senior officials over the years. Rightly or wrongly, very few have been ever been substantiated.
Under the PPD-19 procedures used in Ellard’s case, the allegations were first reviewed by the DoD IG, but that office was unable to substantiate retaliation. The victim who had made the allegations then appealed to ICIG McCullough. He, in turn, decided to convene a first-ever high-ranking, three-person ERP to further examine the matter.
McCullough would normally have chaired the group, but opted to recuse himself, mindful of a conflict of interest. Indeed, McCullough previously worked at the NSA IG himself as its chief of investigations. Ellard was his boss.
Filling in for McCullough as chairman of the panel was DOJ IG Michael Horowitz, who selected the CIA and Treasury watchdogs to serve with him.
According to ERP procedures, the panel had the option to approve the earlier DoD IG findings, which did not substantiate retaliation; to ask the DoD IG to redo all or part of its probe; or to redo the investigation itself, using the record of the previous probe as a baseline.
The ERP opted to conduct its own inquiry, including witness interviews and the evaluation of evidence.
Once the panel found that Ellard had retaliated against a whistleblower, the finding went to Admiral Michael Rogers who, as NSA director, had 90 days to act on two fronts: what remedy to offer the victim of retaliation, and what discipline to impose on Ellard, the retaliator.
POGO has been unable to determine exactly what remedy Rogers prescribed, if any, for the victim, but he promptly moved against Ellard. The highly unusual outcome marks the first time a PPD-19 review panel has ever been convened and the first time that a prior investigation was reversed under the process set forth in the directive.
Adam Zagorin is a journalist in residence for the Project On Government Oversight. Adam’s work dives into many different areas including corruption and the financial arena.