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I recently received an email from a reader who works in a sensitive area at a federal government agency in response to what the author terms “the back and forth on [Lawfare about] whether to serve the incoming administration.” My correspondent is referring to this piece I wrote back in June, along with more recent follow-ups after the election, this debate on the subject between David Luban and Daniel Byman, as well as related material on Just Security (see pieces by Luban, Oona Hathaway, and David Kaye).
The discussion, my correspondent writes, “has been fascinating.” The “conversations on and between Lawfare and Just Security have been the most informative and thought provoking on the serve-or-not-serve dilemma, and I am personally grateful for the series.” But they are also, she writes, deficient in a key respect: They all assume that people are in a position to resign their positions. She writes:
As someone without the means to resign without a lot of financial planning, and as someone who has never wanted anything other than to be a public servant, it would be interesting and helpful if national security lawyers wrote about not whether but how to serve in such an administration, should one decide to stay or join. . . . Maybe practical posts on how to CYA, like legal protections for whistleblowing classified information? Or in a more theoretical sense, the role of the bureaucracy in moderating executive power? Or illustrations of what we've seen in the past, like productive dissent or specific red flags that prompted appropriate protest resignations, for example on the enhanced interrogation issue?
For many real-world public servants, my correspondent asks a, perhaps the, key question. Since we are unlikely to see mass resignations from key departments, after all, and since we wouldn’t want to, the question for the vast majority of people who serve in government will not be whether to serve, but how ethically to do so.
I cannot answer all of the questions my correspondent poses. But here are a few thoughts on the subject of the contours of ethical service.
First and most important, for most people in the federal government, this properly should be a non-issue. Most positions in the federal government will be unaffected by changes in policy emanating from President-elect Trump, however bad or lawless he may turn out to be as president. And the individual government worker should suffer no taint from work or action or policy to which he or she was not immediately party. No matter how terribly the government behaves, the overwhelming bulk of what it does will be unconnected to the bad stuff. And if you’re one of the countless federal workers whose work lies outside the areas of controversy or misdeeds, you should feel no compunction about your work. Even if the Trump administration tries to deport millions of people and actively discriminates against Muslims, for example, we will still need prosecutors putting away bad guys; we will still need military personnel to conduct important operations overseas and military lawyers to review those operations; we will still need covert operators and cybersecurity specialists.
This need for compartmentalization will put a burden on the public to mentally separate areas of abuse, should they arise, from areas of traditional government action. But the compartmentalization also relieves millions of government workers of responsibility for objectionable government policies. Government workers should ask themselves a simple question: Am I doing anything, or being asked to do anything, that violates the law or my conscience? If the answer to that question is no, the individual worker, at least in my opinion, really doesn’t have a problem. I expect to spend a lot of time over the next four years objecting to positions taken by the Justice Department, to cite only one example, but I most sincerely hope that prosecutors like, say, the ones who prosecute the sextortion cases I have written about continue to do their jobs with pride.
The key point here is that neither the public nor the government worker should think about government service the way, say, the material support law thinks about contributions to terrorist groups. Under the material support law, we take the view that the proscribed organization is rotten to its core, so even if you’re supporting only its non-violent activities, the resources you are making available are fungible and you’re thus freeing up funds to support violence and killing—and thus violating the law. That’s not the way we should view our government. Rather, the right way to think about the government is that it’s a diverse set of organizations that does a great many things, some good and some bad. Under a Trump administration, we can reasonably fear that the percentage of bad stuff will go up. But if your work does not contribute to the bad stuff, then just carry on. You are part of the machinery that will outlast this period and will ensure continuity to normal government when it’s over. You are part of the solution, not the problem.
Second, if we accept that there is no ethical taint from being in the same government as one that does some bad stuff, or even in the same agency as one that does some bad stuff, or even in the same office as one that does some bad stuff, and if we accept, rather, that the individual government official should be held responsible only for what he or she does, the core ethical principle of service comes into focus: Don’t do or participate in bad stuff.
There are two basic strategies, in my view, for effectuating this ethical principle. You can do this either by begging off matters you cannot in good conscience work on or by objecting to actions that, in your judgment, should not take place. What you should not do, however, is to take part in activity to which you have substantial legal or ethical objections without raising those objections. Don’t approve things that shouldn’t, in your opinion, be approved. Don’t implicate yourself in activity that you will be ashamed of when it becomes public. Don’t put yourself in the position in which some later congressional investigation is going to have questions about why you didn’t object; make the questions be about why your objections were ignored or overruled.
Third and relatedly, act always as though you will ultimately be publicly accountable for what you do and say, and for what you do not do and do not say. If the issue is important enough, you probably will be. And remembering that fact will condition your behavior in ways that are both self-protective in a CYA sense and self-disciplining in a moral and ethical sense. This is an administration that is likely to leak like a sieve. So here’s the question: When the leaks happen, when the congressional subpoenas come, and when the FOIA requests pour in, how is your name going to show up in the documents? Will there be memos that record your positions, your concerns, your objections? Or will there only be your word that you had anxieties about the propriety of what your office was doing?
You can see where I’m going with this: write down everything. If you have a concern, express it, and express it in writing. Memorialize your dissent, your suggestions, and your objections. Make the public record of choices, and the record of rejected alternatives, as clear as you can. And be savvy about doing so in the least classified format available to you. Some programs are, of course, deeply and inherently classified, and here you may be writing for posterity and congressional overseers only, though that’s important too. But if you work in an area where you can describe the problem without reference to classified material, do so. Someone’s going to FOIA that memo. You can make sure that when that person does so, there’s a government record responsive to the request that describes the problem in a format the government is legally obliged to turn over.
Fourth, only the other day, the intelligence community released what it described as a:
whistleblower training curriculum that can be adopted by all federal agencies covered under Presidential Policy Directive 19, Protecting Whistleblowers with Access to Classified Information. In coordination with other government stakeholders and civil society, the Director of National Intelligence developed the Protecting Whistleblowers with Access to Classified Information training curriculum to ensure that all Executive Branch employees—including contractors, managers, and supervisors—understand the roles, responsibilities, and rights of whistleblowers eligible for access to classified information.
This four-part curriculum trains personnel eligible for access to classified information to effectively report illegality, waste, fraud, and abuse while protecting classified national security information. The curriculum includes stand-alone modules that address (1) general information on whistleblowing and the process for making a protected disclosure; (2) processes for addressing adverse, retaliatory actions affecting a security clearance; (3) processes for addressing adverse, retaliatory personnel actions; and (4) best practices for managers and supervisors. The training also defines key terms and provides references for applicable whistleblower laws and policies. This training is provided as a resource for Executive Branch agencies and is intended to be customized to suit each agency’s whistleblower training program.
Know your rights as a federal employee; understand what you can and can’t do as a whistleblower and what can and cannot be done to you. Talk to counsel before you do anything rash. But to make a long story short, there’s a pretty robust set of protections for those who come forward. And if you’re reporting genuine wrongdoing, rather than policy disagreements, there are options available for those willing to come forward. There are also people on the outside willing to help those on the inside who need help protecting themselves while coming forward.
Fifth, develop relationships with journalists and congressional staff. I’m not talking here about leaks (I never solicit leaks and am not going to start now), but there’s no rule that says you can’t have such relationships or that you can’t talk to people and have open lines of communication with folks on the outside who are interested in your area. The email that prompted this post is an example of that sort of communication. It does not remotely violate any rules, yet it prompts dialogue. Informally, I have had federal employees suggest FOIA requests that might be useful for me to file; I even once had a federal office dictate to me the text of a FOIA request I should submit. I have had countless conversations with federal employees over the years about issues that need deeper examination in the public sphere, and I have had guidance from officials at all levels of government about what sort of questions to ask. Long before you get to the realm of improper disclosure, there’s a world of useful engagement between the public official and those on the outside. Just as you keep good records of your dissents and objections, you should also have a list of contacts with whom you’re engaged who would be interested in those documents. Without ever leaking any of them, there are perfectly ethical ways of letting those people know they exist.
An example of this kind of engagement is the long-time Justice Department official David Margolis, who died this year after decades of service. Margolis had a rule (I think with everyone but certainly with me) that he never talked off the record; if he was willing to say something, he was willing to be quoted saying it. And he was remarkably open and candid about all sorts of things and over the years pointed me in a lot of directions. He had a lot to say without ever violating rules about leaks or improper disclosures. Back when I was a cub reporter at Legal Times in the early 1990s, Margolis called me up one day to jokingly yell at me for not quoting him saying something mildly outrageous in a piece I had written. I had asked his opinion about something and he had growled in response: “Opinions are like assholes. Everyone’s got one.” I had actually included it in my draft, but it had been removed for reasons to taste. “Best quote I’ve ever given anyone,” he quipped in mock annoyance. Civil servants who want to engage often have much more opportunity to do so than many realize.
Finally, I want to suggest that there’s an honorable place for the carrying out of destructive policy and orders in a fashion that is minimally effective, and thus minimally destructive. This is a more salient point in some areas than in others, but in at least some, the manner in which the bureaucracy carries out policy is one of its most important levers against stupid or ill-intentioned actions. Given an order to demarche the ambassador from a given country, for example, the State Department can call in that ambassador and hector him with aggressive complaints for many hours or it can call him in for tea and cookies, mention mildly that the brass is upset about whatever issue provoked the order and then proceed to emphasize that there are a lot of important issues the two countries need to work on and to express the commitment to making sure that relations between the countries not suffer. Similarly, there are myriad ways for an energetic, committed bureaucracy to slow-walk policy from an administration that, at the policy level, has to keep dozens of balls in the air. One way to make sure bad things don’t happen is to make them happen very, very slowly. Just think how long it can take to deport three million people if not everyone in the government is rowing hard in the same direction and some individuals are raising questions about lots of individual cases along the way.