A Tale of Two Whistleblowers: One Protected, One Not

A Tale of Two Whistleblowers: One Protected, One Not
AP Photo/J. David Ake, File
A Tale of Two Whistleblowers: One Protected, One Not
AP Photo/J. David Ake, File
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A Trump political appointee who reported allegations of rampant government waste, fraud and abuse has experienced none of the protections granted the whistleblower who filed the Ukrainian aid complaint against President Trump, which has culminated in Trump’s Senate impeachment trial set to begin in earnest next week.

Last summer and into the fall, the whistleblower who reported, second-hand, Trump’s phone call with Ukrainian President Volodymyr Zelensky was shrouded in protections from the intelligence community’s inspector general – protections touted by Democrats on Capitol Hill as sacrosanct.

During those same months, Mark Moyar, who, over the course of several months had reported multiple instances of wrongdoing at the U.S. Agency for International Development, had the opposite experience with his inspector general, who was appointed by President Obama and confirmed in 2015.

In fact, the USAID inspector general, Ann Calvaresi Barr, and top deputies in the office denied Moyar’s due process rights after USAID officials suspended (and threatened to revoke) his security clearance, and he was forced to resign, according to several government officials familiar with the case and several government documents.  

In a letter sent to Capitol Hill earlier this week seeking assistance from lawmakers, Moyar lamented the trouble he’s had finding a full-time job because of his “abrupt termination” and the decision by USAID officials to tell the White House Office of Presidential Personnel that he cannot hold a security clearance. With the first term of the Trump administration coming to an end in a year, Moyar argued his financial situation will go “from bad to terrible” and fears he may never get a fair hearing.

Moyar also urged members of Congress to contact “USAID leadership, the White House, the Department of Justice and anyone else who might be able to help rectify the matter.”

“The USAID administrator has the authority to reverse wrongful decisions and to seek investigative assistance from outside the agency, which is clearly necessary in light of the bias demonstrated by USAID [Office of Inspector General] and [the USAID Security Office],” he wrote.

“If this precedent is allowed to stand, then in the future the Deep State can remove any political appointee by simply having their friends in one agency send an unsubstantiated allegation of security clearance infraction to another agency,” he added.

A congressional source provided a copy of the letter and related documents to RealClearPolitics.

Because Moyar was a political appointee, the USAID inspector general should have used Presidential Policy Directive 19, which Obama first signed in 2012 and was later expanded, to provide Moyar due process after career officials took action against him while he was on paid administrative leave last summer, according to a legal expert and congressional aides familiar with whistleblower protections.

Obama signed PPD-19 to ensure that whistleblowers who have access to classified information have a way to adjudicate any threats to their security clearances that may be retaliatory. The law has strong bipartisan support across Capitol Hill, particularly from whistleblower advocates such as Sens. Chuck Grassley, an Iowa Republican, and Ron Wyden, an Oregon Democrat.

Before his time at USAID, Moyar, who has a doctorate in history from Cambridge University and an undergraduate degree from Harvard, served as the director of the Project on Military and Diplomatic History at the Center for Strategic and International Studies and had served as a member of the Hoover Institution’s Working Group on the Role of Military History in Contemporary Conflict. 

In internal documents, USAID acknowledged suspending Moyar’s security clearance last summer based on an allegation from U.S. Special Operations Command that he disclosed classified information in a book he wrote, an academic history of the U.S. Special Forces that was published two years prior.

Moyar, in a sworn statement to USAID, argues the allegation is unfounded and an act of retaliation.

When Moyar asked IG officials whether PPD-19 applied in his case, he was told it did not.

“None of the actions taken by USAID with regard to your clearance violate the whistleblower protection or other due process provisions of PPD-19 or [the controlling statute],” Suzann Gallagher, acting assistant inspector general for investigations at the USAID Office of Inspector General, wrote to Moyar in a letter dated Jan. 10, 2020.

Earlier in the letter, Gallagher said that the IG’s office had found that USAID officials had not engaged in any retaliatory action against him and that USAID Office of Security had suspended his clearance “pending further review.”

Gallagher asserted that the review was short-circuited by Moyar’s “voluntary resignation” and the USAID Office of Security, which is in charge of security clearances, “did not render an adjudication on your eligibility for a clearance.”

The letter from Moyar circulating on Capitol Hill asks for “assistance in thwarting a brazen attempt by federal bureaucrats to subvert the Trump administration and legitimate whistleblowing.”

He calls the allegation that his book disclosed classified information “spurious and unsubstantiated.”

Sean Bigley, a lawyer who specializes in security clearance retaliation cases, tells RCP what happened to Moyar at USAID “is shady as hell.”

Bigley, in a Wall Street Journal op-ed and in numerous media interviews, has voiced deep concern that career officials are weaponizing clearances to unfairly target and oust Trump appointees in retaliation or simply because of political differences, something he seldom saw during the Obama administration.

“There is no question that federal law, policy and precedent all support Dr. Moyar’s position,” he said in a statement to RCP. “It’s a ludicrous argument USAID IG is making — that a security clearance suspension isn’t covered by applicable reprisal law. [That argument] is a transparent pretext to avoid holding their buddies in the [USAID] security office accountable. The same argument has already been rejected by other inspectors general, and it doesn’t pass the laugh test for credibility.”

Bigley said he didn’t know why Trump-appointed USAID Administrator Mark Green would sign off on forcing Moyar out without due process, but argued that oftentimes Trump agency heads are fighting too many other battles with career officials and may not know enough about the applicable law to evaluate security clearance cases at the agencies they run.

After representing more than two dozen Trump appointees who have had their clearances targeted, Bigley said he considers the trend an “epidemic.” Along with many unnamed clients, Bigley represents Adam Lovinger, a former Trump National Security Council official. Lovinger had his clearance revoked while serving on the NSC after he was accused of improperly carrying classified information on an airplane, a charge that Bigley says was never substantiated.

Bigley argues that Lovinger was targeted after he blew the whistle on lucrative contracts the Defense Department’s Office of Net Assessment was doling out, including those to FBI informant Stefan Halper, who played a key role in the FBI’s investigation into the Trump campaign’s alleged ties to Russia.

Moyar’s case, Bigley said, is “yet another example” of the security clearance system “being weaponized against Trump appointees who dare to speak up and challenge malfeasance in the bureaucracy.”

“This case cries out for congressional and potentially law enforcement intervention,” Bigley said. “More broadly, Dr. Moyar and the many other administration officials subjected to similar abuses, need to know that the White House has their back. A message needs to be sent from the top that this type of behavior will not be tolerated.”

In the documents making the rounds on Capitol Hill, Moyar said he was terminated, then forced to resign.

Citing privacy laws, at first a USAID spokesperson said the agency could only provide the dates when Moyar served as a political appointee at the agency: from Feb. 5, 2018 until his “resignation” on Aug. 3, 2019.

Friday morning USAID spokeswoman Pooja Jhunjhunwala added to that statement, maintaining that USAID is “fully compliant with PPD-19,” including “the prohibition on retaliating against employees by affecting their eligibility for access to classified information.”

“Any employee who believes they were subjected to reprisal can request an external review by a three-member inspector general panel,” she said in the statement.

Bigley counters that if USAID were in compliance, agency officials would have been careful not to allow any retaliation to occur, and the inspector general would have acknowledged the PPD-19 process applies to Moyar’s situation without his prompting and then conducted a credible reprisal investigation.

“They didn’t do either,” he said.

In a written statement Thursday, the USAID inspector general’s office said that “under the law, we cannot confirm or deny the existence of any particular whistleblower complaint or case.”

“USAID OIG takes every claim of whistleblower retaliation seriously and investigates them in accordance with all applicable laws, consistent with its mandate to provide independent and objective oversight,” the statement said.

“USAID OIG does not dispute that PPD-19 and 50 USC 3341 prohibit retaliatory actions with respect to any employee’s security clearance or access determination,” it continued.

The OIG maintains that “when requested by whistleblower complainants,” it has “provided them with detailed information about the investigation and final disposition of their complaint.” 

Both USAID and the USAID inspector general’s office acknowledge that Moyar reported numerous allegations of fraud and abuse in an office filled with career employees, according to the documents about the case making the rounds on Capitol Hill. At least some of those complaints became IG inquiries.

Top officials, both at USAID and its IG office, have maintained that the decision to suspend Moyar’s security clearance was not a result of retaliation for the whistleblowing. Instead, they say the USAID Office of Security suspended his security clearance in June of last year after USAID officials received a memo from the United States Special Operations Command informing them that Moyar had disclosed classified information in his book “Oppose Any Foe: The Rise of America’s Special Operations Forces.”

Moyar maintains that the book, published two years prior to the USSOCOM complaint, is academic in nature and based on open-sourced information, according to a sworn statement included in the package of documents about his case circulating on Capitol Hill.

A review of the book lauding it as an “excellent primer” was published on the CIA’s website shortly after it was published in 2017 and remains there.

In his sworn statement, Moyar questions the timing of the USSOCOM allegation, which came after he spent months reporting on waste and abuse at USAID. He said the Department of Defense never provided any specific information on what classified information the book disclosed. He also said he submitted the book to the Defense Office of Prepublication and Security Review, as the law requires, more than one year before it was published in April 2017.

A 30-60 day period set out in the office’s guidance as the expected time period for the review to conclude came and went without a response, he said. He said he continued to press the office for a completion date, to no avail. After 145 working days and seven calendar months, and no timeline for the review’s completion, Moyar decided to move forward with publishing it.

He is hardly alone in his frustrations with the review process. Several legal experts for years have argued that the intelligence community’s pre-publication book review process is broken and results in unjustifiable harms to free speech. Jack Goldsmith and Oona Hathaway, professors of law at Harvard and Yale, respectively, both of whom have been top lawyers for the Defense Department, have argued that the pre-publication review process is expansive and arbitrary and has become “unreasonable.”

In a 2015 Washington Post op-ed, the pair argue the system is “racked with pathologies” that amount to violations of constitutionally guaranteed free speech. The article notes that former CIA Director Stansfield Turner long ago complained about the “extreme arbitrariness” of the review process, and more recently former Obama CIA Director Leon Panetta became so frustrated with the “overzealous” review process that he sent his memoir to the publisher before receiving clearance.

The pair called the complaints the “tip of the iceberg.”

The American Civil Liberties Union and the Knight First Amendment Institute at Columbia University have filed a lawsuit, Edgar v. Coats, on behalf of five former public servants challenging the government’s pre-publication review system.

Brett Max Kaufman, an ACLU senior attorney litigating the case, said he couldn’t comment specifically on Moyar’s experience but said the “thrust of his complaints are symptomatic of what is really a broken pre-publication review system.”

“The indefinite withholding of pre-publication clearance, based on the experience of our plaintiffs, is a huge problem,” he told RCP. “There are no mandatory time limits that that agency needs to review submissions from former employees, the sort of firm timeline limitation [that] is a bedrock First Amendment protection against government licensing schemes such as this.”

The lack of hard timelines for completing the reviews, Kaufman said, “bleeds into” other problems surrounding the process. 

“The fact that there are no firm timelines means that certain people get preferential treatment depending on their viewpoint or whether they know someone and they can push that lever, which allows for favoritism and just unfairness throughout the process,” he said.

Susan Crabtree is RealClearPolitics' White House/national political correspondent.

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