This post first appeared on Federal News Network. Read the original article.
Talented young Americans knowingly give up a lot when they join the Central Intelligence Agency (CIA) to serve our country: career and geographic stability, public recognition, private sector pay — sadly sometimes even their lives. These sacrifices unavoidably come with that difficult job. Too often, however, good officers are mistreated by bad managers at the agency, especially regarding equal opportunity issues and workplace sexual assault and harassment.
Sometimes when this happens, CIA reflexively points to a provision of the National Security Act of 1947 that allows the agency to terminate an officer whenever a director deems their termination “necessary or advisable in the interests of the United States.” This broad power, intended in my view to be used only in response to an individual’s counterintelligence problem, is susceptible to misuse. It can be invoked to avoid outside scrutiny of poor decisions by CIA.
Most recently, CIA director John Ratcliffe sought to abuse this unique authority to attempt to terminate fifty-one career agency intelligence officers who happened to be on brief temporary assignments (such as recruiting) somehow related to “DEIA” — diversity, equity, inclusion and accessibility — when Donald Trump returned to the presidency. There are no allegations of performance or security problems with these high-achieving officers.
Seventeen of these officers, and two Office of the Director of National Intelligence (ODNI) colleagues, filed suit in February to vindicate their rights. In late March a federal district judge in Virginia, the Hon. Anthony Trenga, made a landmark decision. The judge found that what Director Ratcliffe attempted to do is a reduction in force (RIF), that gives CIA officers rights under agency regulations of appeal, and to be considered for other jobs within the Intelligence Community (IC).
Beyond that, Judge Trenga found that internal CIA regulations need to be read in harmony with federal personnel regulations and laws of general applicability, that agency officers maintain procedural due process rights under the Fifth Amendment, and that violations of their rights may amount to irreparable harm. Judge Trenga also found that the CIA officers have credibly raised the prospect of irreparable harm based on reputational injury given the language of the executive order pursuant to which the decision was made to terminate their employment, the characterization of the DEI office in that order, and the effect that characterization would have on the people who held those positions, as well as the experiences now placed in the record of certain employees in their job searches and the general reduction in federal employment opportunities.
As such, the intelligence officers in the process of being terminated by CIA and ODNI may now appeal their terminations and be considered for other jobs in the IC.
Because of CIA’s special mission, federal courts traditionally gave the agency the widest possible discretion in personnel matters regarding its officers. While understandable, the judiciary’s hands-off posture likely helped lead to personnel abuses within the agency. Now, however, it is clear as a matter of law that CIA officers enjoy most of the same regulatory and statutory rights as other federal employees, and ultimately to due process under the Constitution. The aperture is now far wider for successful employment litigation against the CIA.
Kevin Carroll is a partner in the litigation and investigations practice at Fluet, and a former CIA case officer.
The post CIA officers now have due process rights in employment litigation first appeared on Federal News Network.