Whistleblower Lawsuit Charges Illegal Retaliation, Dangerous Practices at CIA’s Elite Directorate of Operations
An undercover CIA agent not long ago filed a federal lawsuit charging a high-ranking spymaster and others at the Agency’s elite Directorate of Operations with illegal retaliation against him. The unusual court action came roughly two years after the agent first made allegations of official misconduct that reportedly received no response from CIA or its Office of Inspector General. Partly for that reason, the case of James S. Pars—his name is a CIA-assigned pseudonym—could set a precedent for whistleblowers at the CIA and other secrecy-bound agencies.
The case also highlights a growing list of incidents where whistleblowers have called the Intelligence Community to account for failing to offer them protection or due process after they followed designated internal procedures to disclose wrongdoing, even if that wrongdoing allegedly involved senior officials or if the lives of America’s covert agents were at risk.
At the same time, the lawsuit provides a rare snapshot of bizarre and allegedly dangerous practices at one of the CIA’s secret forward operating bases, a reminder of past Agency failures, some of which led to loss of life or other tragic consequences.
“Whistleblowers in the Intelligence Community who use proper channels to disclose alleged wrongdoing deserve protection and due process,” Senate Judiciary Committee Chairman Charles Grassley (R-IA) told POGO, referring to the Pars case. “We can’t expect better government if we silence those who are seeking to fix it. Long delays at the CIA OIG underscore serious weaknesses in the system, and raise concerns over accountability at the CIA.”
A New Precedent for Whistleblowers?
Amid tension between the White House and the Intelligence Community over politically charged leaks to the press, the Pars case provides the Trump administration with an opportunity to enhance whistleblower protections for employees who use official channels to report wrongdoing within the “deep state.” Such protections are designed in part to stop leaks by encouraging Intelligence Community employees to report wrongdoing through proper channels without fear of retaliation, instead of revealing damaging information to the press or other outsiders.
President Trump has supported enhanced whistleblower protections for some federal employees, while his recently ousted strategist, Steve Bannon, oversaw numerous articles promoting whistleblowers when he ran Breitbart News, criticizing political opponents for failing to do so. One such article was headlined: “Obama Trashes Whistleblower Protection for Federal Employees.”
On the other hand, the Trump administration says it has tripled so-called “leak investigations,” and has promised a crackdown on any release of classified information, a process that risks the inappropriate and illegal targeting of whistleblowers.
Pars filed his federal lawsuit in December 2016. The little-noticed accusations send a signal about how some whistleblowers are treated in the Intelligence Community, say his lawyers, a message they have communicated to Senate Judiciary Committee Chairman Grassley and Ranking Member Dianne Feinstein and other relevant committee chairs. If a court sides with Pars, it could oblige the CIA, and by extension other intelligence agencies, to respond to charges of whistleblower retaliation by conducting investigations and deciding cases in a more timely manner.
If, however, the court rules that the CIA has no obligation to conduct investigations or otherwise respond and can ignore mandated time constraints, that would mark a setback for whistleblowers who could be left in limbo with no end in sight.
Pars’ ongoing lawsuit lands at a time when the Intelligence Community’s record of responding to whistleblower complaints, especially retaliation, is poor, according to statistics released by the Intelligence Community’s Office of Inspector General, and obtained by McClatchy newspapers. Those statistics and subsequent cases that have been made public indicate that charges are often not substantiated, or not even investigated.
Against this backdrop, Pars’ lawsuit argues that by failing to probe his claims or reach a decision about them within a deadline of 240 days established under regulation, the CIA illegally denied him due process and his right to appeal under Presidential Policy Directive 19, a post-Edward Snowden executive order issued by President Obama in 2011. Key provisions of PPD-19 became law in 2014, affording Intelligence Community employees a way to press charges of retaliation and, if necessary, to seek redress at a higher level.
In response to Pars, the CIA has fired back with its own six-page argument contending that Presidential Policy Directive 19 imposes no legal requirements to do anything, and that Pars’ case should be dismissed. In reply to that, Pars’ lawyers argue that “if intelligence agencies cannot be required to follow the law, then Intelligence Community whistleblower protections set forth in PPD-19 and … the Intelligence Authorization Act are meaningless. “
The CIA declined to comment.
Risky Business in a War Zone
The Pars lawsuit claims that, in 2015, the CIA’s Chief of Base at a US military facility routinely required subordinates to risk their lives by passing through an area of hostile fire without any operational need to do so. The Chief of Base who did this, the lawsuit says, was an officer with “limited to no” previous experience operating in a conflict zone.
For reporting the misconduct to his superiors, the lawsuit says Pars was sent home in an act of unlawful retaliation, directed by the Chief of Station, the highest-ranking CIA official in the unnamed country which, given details in the complaint, appears to be Afghanistan. Since the alleged reprisal more than two years ago, the lawsuit says Pars, his career in shambles, has made dozens of unsuccessful attempts to get a new assignment. Meanwhile, there is no public record of any accountability for the Chief of Station or other CIA officials allegedly involved.
The CIA declined to comment.
Pars’ lawsuit also reports that his Chief of Base ran her command “like a college dormitory,” styling herself as the cloak-and-dagger den-mother to a coterie of favored agents and US military personnel. Apart from exposing agents to danger, she often ignored basic trade-craft and operating procedures. The lawsuit also details how she “put her personal needs of cooking, baking, socializing, entertainment, exercise and shopping above the needs of the mission, often going days and sometimes more than a week without meeting with key personnel.”
When Pars, as deputy, challenged her for placing subordinates in peril, the Chief of Base admitted to Pars that she was “horribly depressed,” and “wrecked” because of separation from her US-based family, the lawsuit says.
Pars, a more than 16-year Agency veteran with extensive experience working under fire, then made a series of legally “protected disclosures” about the alleged misconduct to the Chief of Station and other superiors, but no remedial action was taken. Instead, court documents say, Pars was sent home in the spring of 2015 after serving just a few months, only to discover that the Chief of Station had put a black mark on his record, employing what the lawsuit calls “false and derogatory information” in alleged reprisal for his reports of misconduct.
Soon after, Pars filed a formal complaint of retaliation with the CIA’s Office of Inspector General, citing the Chief of Station and others. His complaint was assigned number 2015-12538, but the lawsuit contends it was otherwise ignored and not investigated, while his repeated requests to know its status produced only vague answers or silence.
Ignoring Errors of the Past?
Pars’ lawsuit describes misconduct that did not lead to deaths or injury, though that might easily have been the result. As such, his court filing has reminded some at CIA of what happened on one of the Agency’s other Forward Operating sites in Afghanistan, at Camp Chapman in Khost province, when another allegedly ill-prepared Chief of Base was in charge.
In that 2009 incident, the Chief of Base, who had not previously served in a war zone, permitted a foreign agent to enter the secret compound, only to have him detonate a suicide vest, killing seven CIA personnel—including Chief of Base Jennifer Lynne Matthews—and five contractors in the second largest single-day loss in the Agency’s history.
In a report issued following the tragedy, then-CIA Director Leon Panetta offered recommendations that included, “Expanding our training effort for both managers and officers on hostile environments and counterintelligence challenges.” A variety of critics inside and outside the Agency were more specific, citing both Matthews’ lack of training or experience in a war zone and her apparent failure to follow trade-craft as key factors in the debacle. Her uncle Dave Matthews, a former CIA official, was quoted telling The Washington Post: 'If Jenny followed trade-craft rules, this wouldn't have happened ... She wasn't trained.”
Too Much Danger, Too Many Brownies
Among the charges Pars puts on the record, the most serious is that his Chief of Base “continually put herself and personnel in danger by insisting that they travel in areas of indirect fire attack (IDF) when not operationally necessary—such as trips for food, shopping or to the gym -- contrary to US Military personnel movement guidance.”
Pars lawsuit also says his boss’s conduct “violated US laws,” as well as “CIA headquarters-mandated policies, procedures and direct orders” prescribed in “CIA official message traffic.”
As part of the alleged dysfunction, she gathered agents and certain US military personnel under her wing, calling them her “adopted sons,” and went on a campaign to “feed” and “entertain” them, often for “hours at a time,” giving preference to her protégées “to the detriment of other personnel”.
To keep the oven baking required too many shopping trips through zones targeted by the enemy.
Interpersonal conflict spread. The lawsuit says Pars began discussing his concerns about his boss’s conduct with the base’s “Psychological Officer” (PO). “The situation at the base continued to deteriorate,” the lawsuit asserts.
“There were increased personnel moves through … [danger zones] for non-mission essential purposes. The Chief of Base continued to miss meetings with key US personnel.” At one point, she concluded an official staff meeting with the statement, “Let’s get back to cooking.” And she apparently did just that, allegedly “causing her to miss a meeting with a very senior US military official.”
Meanwhile, the Chief of Base accused Pars of “failing miserably” and exhibited “belligerent and threatening behavior” toward him.
In the end, as the lawsuit puts it, “the sole reason [Pars] was sent home … was because he complained about the … [Chief of Base’s] behavior and mismanagement of personnel and resources,” court documents say.
A Troubling Pattern
Pars’ case is far from the only incident that raises concerns that the Intelligence Community is falling far short of providing effective whistleblower protections.
One disturbing episode involves the Inspector General of the National Security Agency, George Ellard, who the NSA’s Director, Admiral (Ret.) Michael Rogers proposed firing after a high-level review panel determined that Ellard illegally retaliated against a whistleblower. The Ellard case demonstrates the value of external review following an Inspector General investigation.
Yet after Ellard appealed his proposed firing to the Secretary of Defense, the Department reversed the finding of retaliation and Ellard’s recommended termination in what his lawyer called a “… detailed and well-reasoned memorandum,” citing among other things Ellard’s “outstanding” record. With the stroke of a pen, the move obliterated years of due process that led to Admiral Rogers’ firing recommendation, highlighting the difficulties in disciplining senior intelligence officials.
In a case demonstrating the reluctance to report wrongdoing internally, Brett Jones, a former Navy Seal working as a contractor for the CIA on secret missions in Afghanistan claimed he faced brutal and repeated anti-gay harassment at the hands of Agency personnel. Out of fear and a belief the CIA would only “circle the wagons” in response to any report of misconduct he might make, he ended up quitting and went public with his story. The CIA subsequently repeated assertions that it has a “Zero Tolerance” policy for any sexual, racial, or other discrimination or harassment.
Then there is John Reidy, who worked for CIA subcontractors helping to identify, manage, and report on human assets in Iran, and possibly other countries, who had communicated with the Agency via computer links. In what is now a seven-year-old case, he warned CIA of fraud involving a subcontractor, and a “catastrophic intelligence failure” in which “upwards of 70% of our operations had been compromised” by hostile penetration of US intelligence computer networks.
Instead of fixing the problem, he has claimed his reports led to retaliation, loss of his security clearance, and other setbacks. In frustration at the lack of response from the CIA’s Office of Inspector General, Reidy recently wrote to a senior Member of Congress outlining his problems.
Why Afford Whistleblowers Any Due Process?
The obligation to create an orderly process allowing intelligence whistleblowers an opportunity to report wrongdoing—much or all of which may involve classified activity—has never been a priority for agencies where they work. “It runs against every reflex because all these agencies see themselves in the business of keeping secrets and virtually everything else hidden,” a senior Congressional staffer involved in Intelligence Community oversight recently told the Project On Government Oversight. “Helping or even listening to reports of misconduct [from whistleblowers] is an afterthought at best.”
But that strategy only led to ruin in a number of recent and highly embarrassing cases. In 2011, the US was forced to abandon its prosecution of senior NSA executive Thomas Drake after threatening him with 35 years in prison when he blew the whistle on internal waste, fraud, and abuse to the Defense Department’s Inspector General. Among other crimes, he was accused of releasing classified information to the media. After a five-year legal ordeal, Drake eventually pleaded guilty to a petty misdemeanor and currently works as a salesman in an Apple store. The Inspector General of the Department of Defense later conducted a very limited reprisal investigation that did not find in Drake’s favor, prompting his attorney to criticize the investigation as rigged.
Then came the fiasco created by Edward Snowden, a National Security Agency contract employee whose revelations of illegal domestic wiretapping in 2013 included the release of tens of thousands of additional secrets often described as damaging to national security. Snowden, who some critics argue is not a whistleblower, cited what happened to Drake in explaining his decision to publicly reveal internal abuses without going through official channels.
In one response to the wave of leaks by Snowden and others, the US government developed Presidential Policy Directive 19, a measure that provides the possibility of due process and redress for intelligence whistleblowers, strengthening their legal protection from official retaliation. Though there have been only a handful of cases so far under PPD-19, its track record for whistleblowers whose cases are publicly known is dismal.
These whistleblowers are permitted to appeal cases to the Inspector General of the Intelligence Community, or ICIG, which may convene a high-level panel to review disputed allegations. It was such a panel that found NSA IG George Ellard had illegally retaliated. Then came the Defense Department’s reversal of that decision and Ellard’s proposed firing, which undermined the impact of the review panel and the PPD-19 process.
Presidents Trump and Obama have decried intelligence leaks, saying they threaten national security and must be punished to the full extent of the law. But the weak state of whistleblower rights as highlighted in the Pars case and others leaves intelligence employees with few good options. For some, skepticism of internal channels drives them to report to the media, a legally perilous choice strenuously opposed by CIA, other intelligence agencies, the Justice Department, and the White House.
These employees seem more willing to take their chances with anonymity as a protective shield rather than face the near-certainly of career suicide by being known as a whistleblower.
So Congressional overseers and others seeking to protect both national security and whistleblower rights would do well to examine the claims of Pars and others like him. How much sense does it make for the Intelligence Community to allow its inconsistent, frequently ad hoc system of dealing with whistleblower reports to continue on its merry way, to the detriment of the rule of law and employees, not to mention the mission and stature of agencies that defend the country? Pars and others—whatever their true names may be—should be treated as patriots with a message to be heeded, and not simply as outcasts whose rights can safely be ignored.