Add yesterday’s rage-spasm of a press conference to the growing list of reasons reasonable people are inclined to worry about Donald Trump’s proximity to nuclear weapons. In addition to what it suggested about Trump’s moral compass (“Very fine people” aren’t attracted to posters that look like this), his performance also highlighted questions about the judgment, temperament, and impulse control of the man entrusted with the world’s most fearsome arsenal.

Last week, recall, Trump threatened North Korea with nuclear annihilation: “North Korea best not make any more threats to the United States…. They will be met with fire, fury and frankly power the likes of which this world has never seen.” “Fire and fury” was ad-libbed, apparently, but on Thursday, he upped the ante: “if anything, that statement may not be tough enough.” (For a cooldown lap, on Friday, Trump warned he was “not going to rule out a military option” in Venezuela.)

When you’re faced with a president who has weekly meltdowns on Twitter and likes to “wing it” with nuclear threats, it tends to concentrate the mind painfully on the legal and practical restraints to presidential power. Does the president have the constitutional power to launch a nuclear first strike on a country for “mak[ing] threats”? If he decides to act on that impulse, is there anything Congress can do to stop him?

The first question’s the easy one: the answer is no. In the absence of an imminent attack, the president has no constitutional power to rain down “fire and fury” on North Korea. As Ilya Somin explains here, “the Constitution very clearly reserves to Congress the power to start a war.”

The president retains some independent power to act defensively: to “repel and not to commence war” or “repel sudden attacks,” as Madison’s notes from the Convention put it. We can argue about whether a second strike—launch under attack—is included within this power. But the constitutional power to “repel sudden attacks” doesn’t include the power to launch them.

The whole point, as James Wilson told the Pennsylvania ratifying convention in 1787, was to design a “system [that] will not hurry us into war…. It will not be in the power of a single man… to involve us in such distress; for the important power in declaring war is vested in the legislature at large.”

Is there anything Congress can do to prevent a trigger-happy president from hurrying us into nuclear war? Congressman Ted Lieu has drafted a bill that he hopes will do just that. HR 669, the “Restricting First Use of Nuclear Weapons Act,” provides that “The President may not use the Armed Forces of the United States to conduct a first-use nuclear strike unless such strike is conducted pursuant to a declaration of war by Congress that expressly authorizes such strike.”

Someone from the John Yoo school of constitutionalism might argue that the law encroaches on presidential prerogatives by “micromanaging” the means available to protect national security. But Lieu’s bill is clearly constitutional: if Congress can tell the president not to use ground combat troops in a particular war, it has the legal authority to bar him from launching an unauthorized nuclear first strike.

Would Lieu’s bill work, though? Here, I have my doubts.

In principle, the military is not supposed to obey an illegal order by the president, but in practice, they follow the chain of command. In all but the most extreme cases—e.g., orders to commit war crimes—it’s good that they do. Civilian control of the military is a core principle of free government, and it’s almost always better preserved by erring on the side of military obedience to the CINC, even where his authority may be in doubt.

As a practical matter, though, that means that simply passing a law won’t necessarily restrain presidential warmaking. Our experience with the War Powers Resolution makes that clear. Put aside the question of how the law applies to limited, short-term military operations: if the WPR does anything, it bars the continuation of hostilities beyond 60 days unless Congress has declared war or passed a specific statutory authorization for war. In fact, “the view that the 60-day clock is constitutional has remained consistent executive branch law throughout the Reagan, Bush-Quayle, Clinton, Bush-Cheney, and Obama administrations.” But twice in recent decades, presidents have blown by that limit: first in Kosovo in 1999; second in Libya in 2011. Each time, the clear language of the law didn’t matter: the president ordered the military to keep bombing, and they did.

Why would Lieu’s “no-first-use act” fare any differently? The nuclear launch process is built for speed—designed to give the president the power to launch a second strike in mere minutes, while enemy missiles are still in the air. That also makes it difficult to stop a president who decides to launch first. The guys in the bunkers who turn the keys have surely been vetted to weed out “question authority” types. In the ‘70s, there was actually an Air Force major who was training for the job, and when he asked, “how can I know that an order I receive to launch my missiles came from a sane president?”—that was the end of his career.

Trump can’t literally “push the button” and have Pyongyang obliterated. But once the order is authenticated with the codes on the “biscuit,” and it goes out from the Pentagon, it’s likely already too late.

The one effect Lieu’s bill might have, and this is speculative, is it might embolden the president’s secretary of defense or the chairman of the Joint Chiefs to put up roadblocks before the order is transmitted. (I say “or the Chairman of the Joint Chiefs” because it appears that the president has the option to issue the order without going through the Secretary of Defense).

There’s a story about Richard Nixon, whose behavior during the Final Days—frequently drunk and raving—made people worry about his access to nukes. In a meeting with congressmen, Nixon blurted out that: “I can go in my office and pick up a telephone, and in 25 minutes, millions of people will be dead.” One of the attendees, Senator Alan Cranston called then-Secretary of Defense James Schlesinger, worried about “the need for keeping a berserk president from plunging us into a holocaust.” Schlesinger apparently told the top military brass that if the president issued any unusual orders, they needed to check with him first.

The practical effect Lieu’s bill could have, in the unlikely event it passed, might be to buttress a future Schlesinger. By giving the Secretary of Defense or the Chairman added cover to get in the way of a decision he knows to be crazy, it could slow or stop the delivery of the order from the Pentagon to the launch officers. For that reason alone, it’s worth considering. But when you’re depending on a guy whose nickname is “Mad Dog” to preserve sanity within the executive branch, you’re already in a pretty dangerous place.

Two years ago, researchers at Duke University, drawing on a survey they conducted with police departments around the country through the Police Executive Research Forum, published a study on police perceptions of the domestic terrorist threat. It’s worth recounting the key findings:

The study looks at post‑9/​11 incidents and comes to conclusions comparable to a GAO study on the topic, commissioned by the bipartisan leadership of the Senate Homeland Security and Government Affairs Committee, earlier this year. Nearly a decade ago, a then-controversial DHS report on domestic extremism highlighted the potential danger for violent acts by white supremacist or neo-Nazi groups. 

My colleague Alex Nowrasteh has a very interesting and informative piece out today that goes into some depth about the relative threat from terrorists compared to other forms of violence. One point I would make is that the 9/11 attacks represent an anomaly in the overall picture because of the magnitude of the intelligence failure involved. As I’ve written previously, that foreign terrorist attack on America was entirely preventable. That’s not to suggest that Salafist terrorism does not pose a domestic threat; clearly it does. But the on-the-ground daily reality—as the studies cited above show—is that in post‑9/​11 America, the threat from white supremacists, “sovereign citizens,” and those professing similar views and acting on them is at least as great a threat as Salafist-inspired killers.

In the wake of the Charlottesville tragedy, the phrase “anti-government group” is likely to get tossed around rather carelessly, both in the media and by some in the advocacy community. Calling for a smaller federal government whose powers—especially surveillance powers—are reduced and properly controlled does not make one an “extremist.” Spewing racial hatred and committing acts of murder is the very manifestation of violent extremism, something all of us should condemn and oppose.

I never expected to have trouble distinguishing the rhetoric of America’s president and North Korea’s leader. Nor did I ever imagine it would be unclear which official was more impulsive, emotional, blustering, and reckless. But these are not normal times.

For anyone contemplating the odds in a war between the U.S. and the Democratic People’s Republic of Korea, a few numbers are instructive. Last year the U.S. had a GDP of almost $19 trillion, roughly 650 times the GDP of the Democratic People’s Republic of Korea. The latter is equivalent to the economy of Portland, Maine or Anchorage, Alaska. America’s population is around 13 times as large as that of the DPRK.

The U.S. military spends upwards of 100 times as much as the North’s armed forces. With the world’s most sophisticated nuclear arsenal and 1411 warheads (the peak was 31,255 50 years ago), Washington could incinerate the North in an instant. Pyongyang is thought to possess around 20 nukes, of uncertain status and deliverability.

Does the DPRK’s “Supreme Leader” Kim Jong-un recognize this reality? There’s plenty of evidence that he is ruthless and cruel. But none that he is blind or suicidal. Like his father and grandfather, who ruled before him, he most assuredly prefers his virgins in this world.

The North’s rhetoric is bombastic, splenetic, confrontational, and fantastic. But it always has been thus. Even before Pyongyang possessed deployable nukes and long-range missiles, it was promising to turn New York (as well as Seoul) into a “lake of fire.” The North Koreans even distributed a video showing precisely that result. If calm ever descends upon the Supreme Leader and his minions, then perhaps Americans should really worry.

The North’s rhetoric and behavior is determined at least in part by domestic considerations. Politics is all-consuming and militaristic images are everywhere. (I visited in June and put up a bunch of photos on Forbes. We are holding a CatoConnects session on Tuesday, August 15 to discuss my visit.) The regime seeks support by portraying itself as heroically defending—against overwhelming odds—a society under siege by imperialistic Americans and their South Korean puppets. The constant mantra, almost irrespective of subject, place, or person, I heard was “under the wise leadership of the Supreme Leader.” Whether the population believed it seemed secondary.

As for Pyongyang’s international interactions, the regime is acting out of weakness. Even North Korean officials, while proudly proclaiming that their nation was prospering despite sanctions, admitted that becoming an “economic power” was an objective, not an accomplished fact. The Victorious Fatherland War Museum displays pictures of the devastation wreaked by U.S. air attacks during the Korean War. Even when it comes to nuclear weapons officials talk of “matching the U.S.,” not outpacing Washington.

Indeed, this helps explain North Korea’s weapons development. Of course, there is nothing good to say about the Kim dynasty, now into its third generation. It runs a totalitarian regime which holds an entire people in bondage. Although state controls are slipping a bit, especially when it comes to the economy, individuals have essentially no civil, political, or religious liberties. Nevertheless, it is important to try to understand the DPRK in order to develop sensible policies.

North Korean elites know Washington’s power. After all, the U.S. intervened to defend the Republic of Korea after the 1950 DPRK invasion and would have liberated the entire peninsula had China not joined the conflict. Gen. Douglas MacArthur then advocated using nuclear weapons, a threat also employed by the incoming Eisenhower administration to “encourage” China to conclude an armistice.

Once that agreement was reached, the U.S. forged a “Mutual Defense” treaty (in practice it runs only one way, of course) with the South and maintained a garrison, backed by nuclear weapons on the peninsula, joint military exercises with the South, and ample supplemental forces nearby. Such measures posed an obvious existential threat to the North Korean regime.

The dangers resulting from America’s policies were enhanced by the end of the Cold War, when first Moscow and then Beijing opened diplomatic relations with South Korea. Today the DPRK is truly alone, even as U.S. officials say “all options are on the table”—and the American president threatens “fire and fury.”

Moreover, the Kim regime sees Washington engage in promiscuous military intervention around the globe. American administrations most recently used the armed forces to promote regime change in Afghanistan, Iraq, and Libya. Notably, the government of the latter traded away its nukes and missiles, leaving it vulnerable to outside intervention. North Korean officials are quick to cite these examples.

If there ever was a case of a paranoid state having a real enemy, it is North Korea.

Obviously, anything said by the DPRK should be taken with several grains of salt, but there is little reason to doubt the concerns Pyongyang expresses over potential U.S. military action. When I visited the North in June North Korean officials dismissed criticism of their nuclear program, pointing to America’s “hostile policy,” highlighted by “military threats” and “nuclear threats.”

The DPRK’s nuclear weapons obviously defend against such “threats,” but have other uses as well, such as international status and extortion. Long-range missiles have only one purpose: deterring U.S. military intervention against the North.

The Kims want to avoid, not wage, war with America. If the U.S. was not “over there,” the North’s safest course would be to ignore Washington. But with America already involved and threatening intervention, Pyongyang’s only sure defense is deterrence.

The North is moving to do what no other potential adversary other than China and Russia has done, effectively foreclose the possibility of U.S. military action. Once the Kim regime has a reasonable chance of turning at least a couple of major American cities into “lakes of fire,” would any administration risk even conventional involvement in a Korean conflict?

Indeed, Washington should have turned South Korea’s defense over to Seoul years ago—the South possesses 40 times the GDP and twice the population of the North. Pyongyang’s nuclear ambitions should spur Washington to withdraw from the Korean imbroglio, phasing out both the U.S. treaty guarantee and troop deployment. But even then the DPRK tops the list of regimes that should not possess nukes. And as long as America is involved, the possibility of misjudgment and mistake remains real. Especially with two leaders possibly suffering from impulse control issues.

What to do? Military strikes would risk triggering the Second Korean War, which could kill tens or hundreds of thousands, result in widespread devastation, and spread chaos, instability, and refugees. The war would be in Northeast Asia, “not here in America,” as Sen. Lindsey Graham (R‑S.C.) proclaimed, but Americans still would suffer.

Better to lower the regional temperature, in both action and rhetoric; begin phasing out America’s security treaty and military garrison, shifting any Korean military struggle from the U.S. to the peninsula; open a dialogue with the North, especially over security issues; engage China over its interests, encouraging it to more fully cooperate over the North; and develop a regional development/​security package in return for North Korea’s denuclearization, enlisting Beijing as the chief muscle behind an offer impossible to refuse.

Perhaps most important, the U.S. should continue to set as its prime objective supporting peace on the peninsula. That has been America’s objective since the end of the Korean War 64 years ago. That should remain Washington’s goal as it seeks to extricate itself from an outdated military commitment that now threatens to go nuclear.

Seventy-two years after the United States dropped atomic bombs on Hiroshima and Nagasaki the specter of nuclear war once again hangs over the world. In the span of a few hours, both the United States and North Korea made nuclear threats against one another. Donald Trump went first, saying “North Korea best not make any more threats to the United States. They will be met with fire and fury like the world has never seen.”

Shortly after Trump’s “fire and fury” comments, North Korea’s KCNA carried a statement from the Strategic Force of the Korean People’s Army (KPA) that threatened the “air pirates” stationed at Guam with a nuclear strike. The KCNA statement closed with the warning, “[The United States] should immediately stop its reckless military provocation against the state of the DPRK so that the latter would not be forced to make an unavoidable military choice.” While KCNA did not reference Trump’s comments, the timing of its release creates the impression that the two countries had issued dueling nuclear threats.

At their core, both Trump’s “fire and fury” comment and the KCNA statement are deterrent threats, which seek to prevent a certain action by threatening a high cost in retaliation. If the target of the deterrent threat takes the action that the threat issuer deems unacceptable, then the former will suffer a worse fate. The credibility of deterrent threats depend on whether or not the targeted state believes that the issuer will follow through on its rhetoric.

While both Trump and KCNA issued deterrent threats, the quality of the threats are markedly different. Trump’s threat is incredibly vague both in terms of what the threat is trying to prevent and what costs the United States would inflict on North Korea in response. A lack of clarity about what Trump wants to deter could prevent North Korea from taking any escalatory actions, but given the high stakes involved for North Korea it is unlikely to view Trump’s threat as credible. Kim Jong Un will keep making nuclear threats because the vulnerability of the United States to nuclear attack deters America from attacking North Korea in the first place.

Ambiguous deterrent threats can work, but such threats are not usually issued by powerful countries. Meanwhile, the uncertainty created by Trump’s comment is not reassuring to the other parties involved in the North Korea issue. The “fire and fury” statement could complicate relationships with U.S. allies if they feel that Trump’s rhetoric increases the likelihood of escalating the crisis and putting their security at risk. Additionally, efforts to convince China to do more to help the United States solve the North Korea problem could suffer if Trump’s rhetoric is seen as an indication of unpredictable U.S. policy.

In contrast to Trump’s ambiguous language about “fire and fury,” the KCNA statement is very detailed and precise. The statement references specific U.S. actions that North Korea wants stopped and says what costs North Korea is prepared to inflict. Flights of strategic bombers out of Guam are interpreted as “muscle-flexing in a bid to strike the strategic bases of [North Korea]. This grave situation requires the KPA to closely watch Guam…and necessarily (sic) take practical actions of significance to neutralize it.” In order to neutralize this threat, the KPA is preparing an operational plan to make “an enveloping fire at the areas (sic) around Guam with medium-to-long-range strategic ballistic rocket (sic) Hwasong-12 in order to contain the U.S. major military bases on Guam.”

There is little ambiguity in the KCNA statement. The deployment of strategic bombers to Guam is seen a major threat to North Korea’s security. In the event of a conflict, the KPA plans to neutralize the threat with nuclear-armed ballistic missiles to both prevent the bombers from carrying out an attack on North Korea and send a “serious warning signal to the U.S.” Pyongyang is trying to deter strikes by aircraft stationed at Guam by threatening to destroy the island’s air force base with nuclear weapons. An unprovoked North Korean attack against Guam is not credible because it would invite a devastating retaliation, but their threats to attack the U.S. base early in a conflict are credible. Such threats can deter the United States by making the costs of preemptive action prohibitively high.

Trump’s bombastic statement about “fire and fury” is a clumsy threat that is unlikely to change North Korea’s calculus or behavior. Ambiguity can be a very valuable tool for deterrence, but ambiguous deterrent threats are ill-suited for addressing America’s North Korea problem. Trump doesn’t have to give up his colorful language, but if he wants his deterrent threats to be effective he needs to be precise about what actions the United States deems unacceptable. He should leave the “fire and fury” talk to the North Koreans.

North Korea’s Kim Jong Un is doing everything in his power to ensure that he remains atop the United States’ enemies list. For months, his government has been test-launching missiles and issuing threats. This week the rhetoric got even hotter. President Trump pledged to rain “fire and fury like the world has never seen” on North Korea. The North Koreans responded with a promise to attack the U.S. base at Guam.

Notwithstanding Secretary of State Rex Tillerson’s statements last week and in April that the United States does not seek regime change in Pyongyang, other tin-pot dictators have heard similar assurances before. If KJU doesn’t want to go the way of Slobodan Milosevic, Saddam Hussein and Muammar Gaddafi, he’ll hold onto his nukes.

Unsurprisingly, hawks in Washington — who don’t like being so deterred — are urging President Trump to launch a preventive war, and denude the latest Crazy Kim of his dangerous toys.

For example, John Bolton explained last week that, since diplomacy is unlikely to be successful, Trump has only three options: “pre-emptively strike at Pyongyang’s known nuclear facilities, ballistic-missile factories and launch sites, and submarine bases”; “wait until a missile is poised for launch toward America, and then destroy it”; or launch “airstrikes or [deploy] special forces to decapitate North Korea’s national command authority, sowing chaos, and then sweep in on the ground from South Korea to seize Pyongyang, nuclear assets, key military sites and other territory.”

To summarize: small war now, small war later, or big war now. And, of the middle option, Bolton warns that a preemptive strike would “provide more time but at the cost of increased risk” and that “Intelligence is never perfect” — so that leaves war now (or soon).

Bolton grudgingly admitted “All these scenarios pose dangers for South Korea, especially civilians in Seoul,” and that “The U.S. should obviously seek South Korea’s agreement (and Japan’s) before using force, but no foreign government, even a close ally, can veto an action to protect Americans from Kim Jong Un’s nuclear weapons.” 

Along similar lines, Lindsey Graham explained “Japan, South Korea, China would all be in the crosshairs of a war if we started one with North Korea. But if [North Korea gets] a missile they can hit California, maybe other parts of America.”

“If there’s going to be a war to stop [Kim Jong Un],” Graham continued, “it will be over there. If thousands die, they’re going to die over there. They’re not going to die here.”

This leaves aside the rather obvious fact that the American troops carrying out a war with North Korea would be risking death. That factor should also weigh heavily on the president’s mind. The American people, bitten by other wars that Bolton and Graham championed, are highly averse to new ones–especially those that are likely to result in large numbers of Americans getting killed. 

As I point out in a new article at The Skeptics: 

A recent paper finds that in the 2016 election, Donald Trump performed well in those communities that paid the heaviest price during America’s post–9/11 wars in Afghanistan and Iraq. Voters in these communities may even have provided the margin he needed to win the presidency.

“Trump’s ability to connect with voters in communities exhausted by more than fifteen years of war,” write Douglas Kriner and Francis Shen, “may have been critically important to his narrow election victory.”

“If Trump wants to win again in 2020, his electoral fate may well rest on the administration’s approach to the human costs of war. Trump should remain highly sensitive to American combat casualties.”

Could public sentiment really constrain a president convinced that military action is the last best course of action? Maybe, argue Kriner and Shen. “The significant inroads,” they write, “that Trump made among constituencies exhausted by fifteen years of war—coupled with his razor thin electoral margin (which approached negative three million votes in the national popular vote tally)—should make Trump even more cautious in pursuing ground wars.”

I’m skeptical.

“Trump” and “cautious” are two words that rarely go together. And not all U.S. wars are ground wars.

The human cost of war should factor into any president’s decision to start one. But Donald Trump’s limited understanding of modern warfare and international politics might convince him that he can pick a few cheap and easy fights to boost his popularity and secure a few quick wins. Though he might be disinclined to initiate a major conflict, that doesn’t mean that Trump is reluctant to use force. And those superficially limited military engagements have a nasty tendency to morph into honest-to-goodness full-blown wars.

You can read the whole thing here.

CSBA’s Katherine Blakeley has published a brief but highly informative analysis of the prospects for a major military spending boost.

Bottom line up front: The combination of “procedural and political hurdles” in Congress make an increase along the lines of what the Trump administration requested (approx. $54 billion) unlikely. The substantially larger increases passed out of the House and Senate Armed Services Committees (roughly $30–33 billion more than the president’s request) seem even more fanciful.

Blakeley concludes:

The wide gulfs between the political parties, and between the defense hawks and the fiscal hawks, will not be closed soon. Additionally, the full legislative calendar of the Congress before September 30, 2017, including Obamacare repeal, FY 2018 appropriations, and an impending debt ceiling debate, increase the likelihood that FY 2018 will begin with a several-month-long continuing resolution, rather than a substantial increase in defense spending. 

This aligns with what I’ve suspected all along — but Blakeley provides critical details to back up her conclusions.

For years now, we’ve heard defense hawks say that adequately funding the defense budget shouldn’t be a struggle for a country as wealthy as the United States. A mere 4 percent of GDP, for example, should be a piece of cake. And, at one level, that is absolutely correct. It should be easy. But when you dig into it, as Blakeley has done, you discover that even 3 percent is a real struggle. After all, $50 billion — a rounding error in a $19 trillion economy — threatened to bring the entire budget process to a screeching halt in late June, and may do so again.

If and when a final budget deal is hammered out, the Pentagon’s Overseas Contingency Operations (OCO) account may provide at least some of the additional billions that the HASC and the SASC want. Because OCO is exempted from the bipartisan Budget Control Act’s spending caps, additional defense dollars do not have to come at the expense of non-defense discretionary spending, as President Trump’s budget proposed.

But many billions from the Pentagon’s base budget (i.e. non-war spending) have been shoved into the OCO for years now, and the gimmick is starting to wear thin — after all, the wars in Iraq and Afghanistan peaked years ago. The voices in Congress and beyond who pushed the BCA in the first place, and who remain committed to reducing the deficit (e.g. current OMB chief Mick Mulvaney), are likely to feel that they’re being played.

The defense vs. non-defense spending debate is, and always has been, about politics, not math. And it isn’t obvious that the Pentagon will win this political battle. Given this uncertainty, we should adapt our military’s objectives to the means available to achieve them. We should prioritize U.S. security and defending vital national interests, and approach foreign adventures that don’t advance these interests with great caution. Expecting our soldiers, sailors, airmen and Marines to do the same — or more — with less money isn’t fair to them, and isn’t likely to work.

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 know–and don’t know–about the allegations against Ellard, the final disposition of the case, why the Obama administration’s 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 Ellard’s case, I had this to say in the TAC piece:

As the Project on Government Oversight first reported in 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 had claimed that “Snowden could have come to me.” The panel that reviewed Ellard’s 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 Ellard’s 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 author’s 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 I’d finished the TAC piece, Ellard’s attorney, Terrence O’Donnell 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 OIG’s 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 Defense’s 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. Ellard’s] alleged retaliatory animus toward Complainant … is of a character so circumstantial and speculative that it lacks probity.”

In assessing Dr. Ellard’s credibility and in rendering its decision, the ASD also considered Dr. Ellard’s “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 nation’s most challenging national security issues”; successive NSA Directors have consistently rated Dr. Ellard’s 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. Let’s start with the ASD’s 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:

Taking the ERP’s recommendations is strictly optional.

What’s so significant about the ERP recommendation in Ellard’s 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 Ellard’s actions were–in the view of three non-DoD IG’s who examined the case–so severe that they recommended he be terminated. 

O’Donnell quoted from a Pentagon memo clearing Ellard that is not public. The ERP’s findings, along with their record of investigation, are not public. Nor do we know how thorough–or cursory–the ASD’s 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 ERP’s recommendations were not only likely soundly based, but that the whistleblower retaliation problem inside the Pentagon is deeply entrenched.

O’Donnell’s statement also claimed that the ASD’s decision to reverse the ERP and clear Ellard of wrongdoing “…echoes the conclusion reached by the Department of Defense’s Office of the Inspector General.” But it’s 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 employees–specifically former NSA senior executive service member Thomas Drake and for DoD Assistant Inspector General John Crane. As I’ve noted previously, the independent Office of Special Counsel found adequate evidence of whistleblower retaliation and document destruction to refer the matter to the Justice Department’s own IG; Crane’s case is getting a look from the Government Accountability Office (GAO), Congress’s own executive branch watchdog.

The DoD and NSA IG’s 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 it’s 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:

But Congress doesn’t 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.