Criminal Justice & the Rule of Law

Memo to the NSC: Check Out Some Databases at the State Department before Finalizing that New Executive Order

Benjamin Wittes, Susan Hennessey
Friday, February 24, 2017, 11:01 AM

We received this morning an extraordinary message from a group of Foreign Service officers.

Office of the President-elect/Wikipedia

Published by The Lawfare Institute
in Cooperation With

We received this morning an extraordinary message from a group of Foreign Service officers.

The message arrived in the wake of CNN’s report yesterday evening that President Trump has ordered DHS and DOJ to “help build the legal case for its temporary travel ban on individuals from seven countries,” and that some individuals “in the intelligence community disagree with the conclusion and are finding their work disparaged by their own department.” According to CNN:

“DHS and DOJ are working on an intelligence report that will demonstrate that the security threat for these seven countries is substantial and that these seven countries have all been exporters of terrorism into the United States," [a] senior White House official told CNN. "The situation has gotten more dangerous in recent years, and more broadly, the refugee program has been a major incubator for terrorism.”

Keep this story in mind as you read the following inquiry from a Foreign Service officer who has done consular work abroad. Writing for a small group of three other colleagues, this individual begins by noting Lawfare’s prior “advice for civil servants about the ethics of service under the Trump administration” and goes on to seek out ethical advice about how to best handle certain specific concerns facing Foreign Service officers. Namely, this group is worried that the rollout of the executive order on immigration—both the initial order and the forthcoming substitution—is taking place without consideration of important, available data.

The author writes:

This E.O. is being introduced without clear evidence demonstrating that visa applicants/visa holders from these seven countries pose a credible threat to our national security. This major policy change may be occurring without consideration of information that may be held under various agencies documenting terrorism-related activities or other unlawful actions by visa holders. This leads to moral and professional considerations: What obligation do we have to our colleagues in the DOJ and elsewhere in government to ensure that useful information is being consulted in the formulation of immigration policy? Can FSOs in visa adjudication positions appropriately implement this E.O. without knowing if its claims are based on sound evidence?

This email was triggered in part by a report I read today on, which details the White House's efforts to collect evidence that the seven countries named in the original E.O. have "all been exporters of terrorism into the United States." We have questions about whether the administration analyzed records from the State Department or other agencies prior to forming this immigration policy. If those records have not been analyzed, that would tend to support the concerns voiced by intelligence officials in this article, who suggest the administration is seeking evidence to justify its policy, rather than crafting policy based on all available evidence. There is of course lots of sensitive data that is held within the federal government. But there is no need to even discuss that in order to illustrate the hypothesis that not all relevant government-held data is being consulted in the E.O. drafting process. There are plenty of databases the fact of which are matters of public record which represent at least the surface of what the Administration should be considering here.

Every day, FSOs rely on access to the Consular Consolidated Database (CCD) to inform their visa adjudications and screen visa applicants. A report by the Congressional Research Service (CRS) and testimony by the former head of the State Department's Consular Affairs Bureau describe the CCD, which contains 143 million facial/biometric records and visa application records for foreign nationals who have sought entry into the United States. Consular officers compare new visa applications with information in the CCD to make a determination of an applicant's eligibility for a visa (in tandem with other forms of vetting). CRS describes how the CCD "links with other databases to flag problems that may have an impact on the issuance of the visa," and names the following linked databases:

  • IDENT and IAFIS, which compare fingerprints to DHS and FBI data, respectively.
  • A facial recognition database, which compares photos against records at the Terrorism Screening Center.
  • ADIS, which shows all DHS-documented entries/exits by a visa holder.
  • CLASS, which uses name-searching algorithms to compare applicants to derogatory information from other agencies, including DHS, the FBI, and the DEA, among others.
  • KFE, which compares an applicant's aggregate data to the National Counterterrorism Center database.

The information in the CCD is classified and not available for recreational fishing. But the administration can presumably access databases like the CCD if it wants to do so in formulating policy.

Extrapolating from the CRS report, if a visa-bearing foreign national incurred a U.S.-based terrorism-related or criminal charge, the CCD would likely contain a record of this information. It may therefore be possible to determine the number of visa holders from the seven nations named in the E.O. who have (1) been flagged for terrorism-related activities, (2) who have been charged with crimes in the United States, (3) who have had their visas revoked for other adverse reasons, or (4) who have overstayed their visas, among other useful information. It should also be possible to compare the rates of these figures among visa-bearers from one country to the next. Already, this example highlights the existence of directly relevant, multi-year data that could be used to inform policy.

We don't know if such information has been considered or analyzed by the administration; our point is that it exists within relatively easy reach.

Our experience processing visas—and among us we have conducted many thousands of visa interviews—leads us to suspect that data from the CCD would likely show, if consulted, that visa holders from these seven nations pose no credible threat to our country. But we could very well be wrong about that. And if a proper analysis revealed the opposite, the administration would at least have a more defensible policy in relation to the facts, and visa adjudicators would have a clearer rationale for action. Based on our current understanding of the drafting process, the new E.O. seems likely to target nationals of seven countries despite a large volume of information in the hands of the government that bears directly on the factual assumption behind the order.

With all this in mind, what obligations do FSOs have, if any, to highlight the existence of potentially relevant databases to civil servants and decisionmakers in other agencies? Any advice would be appreciated. Our views here are our own and not official State Department positions. To be clear, we are not taking a position on the policy, just seeking your advice about how to handle policy that appears to be being made without regard to known data.

There’s a lot to talk about with regard to the specific questions above, but it is worth pausing to note as an initial matter the mere fact that a group of junior Foreign Service officers is currently put in the position wherein they are even contemplating whether they have an obligation to reinforce the interagency process with respect to the Justice Department. This fact reflects the the failure so far of the actual interagency process to function—and the failure of the White House to conduct interagency consultation processes with even minimal integrity.

If you are finding Lawfare useful in these times, please consider making a contribution to support what we do.

Let’s turn now to the author’s basic questions. First, “What obligation do we have to our colleagues in the DOJ and elsewhere in government to ensure that useful information is being consulted in the formulation of immigration policy?”

At a legal and formal level, this is an easy question: there is no obligation here of any kind.

At a formal level, anyway, it’s not the responsibility of individual Foreign Service officers to ensure that an administration takes available data into account before making policy decisions. It is the obligations of Justice Department attorneys—not Foreign Service officers—to ensure that they comply with their own professional and ethical obligations of candor to the tribunals to which they submit briefs and in which they stand up and make factual representations in defense of executive orders the President has issued.

To be more specific, the President and the National Security Council are responsible for making policy that is factually defensible, and to the extent they fail to do this, they expose themselves to severe litigation risk and public criticism. To the extent they choose, as they certainly should, to include the State Department in the interagency vetting of the new executive order, it is certainly someone’s job at the State Department to flag for them that the department has large volumes of data that bear on the factual integrity of the order the President is about to affix his name to. But whose responsibility that is depends on the structure the department has in place, if any, to examine its own equities in contributing to the interagency process. Individual Foreign Service officers have no ethical duty in that regard to the extent they are not part of that structure.

The Justice Department—and the individual attorneys who end up defending the order—certainly has a duty to be truthful with the courts, and specifically a duty not to make representations the lawyers don’t know to be true. To the extent the data described here go unexamined and may contradict the factual predicate of the order—namely, that there’s a particular danger emanating from the seven named countries relative to other countries in the region and elsewhere—that fact may well limit the department’s capacity to defend the order robustly. But again, at least in the formal sense, the obligation here lies with the Justice Department, and perhaps with lawyers in the State Department legal adviser’s office, not with individual Foreign Service officers.

The formalities aside, however, we are sympathetic to intelligence, law enforcement, and diplomatic professionals who feel a certain moral duty to make others aware of the possibility that policy is happening in a fact-free manner and to alert people to the bodies of information that any responsible administration would consult before making fateful policy decisions that will both affect U.S. interests and negatively impact the lives of countless concededly innocent people who pose no threat.

The important first step here is to assume good faith on the part of the new Secretary of State, Rex Tillerson, and to assume as well that he will not want the State Department caught in a bad position when the new executive order emerges. In that regard, the initial step is certainly to work through established channels to ensure that the people handling State’s role in the ongoing interagency discussions are aware of the databases and that they are aware as well of staff-level concerns that the contents of those databases may not support the policy judgment that lies beneath the current order and the developing replacement. The goal here, at least initially, is to empower Tillerson to engage in an interagency process in an effective manner.

If that fails and State is not interested in or capable of making sure such data are consulted—or the administration refuses to acknowledge the data—then it may be time to consider other steps.

It’s worth emphasizing here that State Department officials are in many respects the officers of the security establishment who are the least tongue-tied by classified material. Because of the nature of their public-facing work, there is lot that State folks can ethically and appropriately say, including on matters on which other elements of the government would be able to say very little. The above letter is actually a good example of this. There isn’t any remotely sensitive, much less classified, material in that letter, and yet it is undoubtedly informative to an ongoing public debate. So in our view, if the department is not effective in the interagency discussions in raising issues officials think are critical, State Department officials should think of themselves as the pointy end of the bureaucratic spear; they will often be better able to raise concerns than their law enforcement and intelligence colleagues. Conveniently, State also has established, protected mechanisms for their raising such concerns, some of which have been in the news of late.

So, to put the matter bluntly, if the State Department does not itself raise the issue of these databases, we would certainly encourage Foreign Service officers concerned that relevant data are not being considered in the formulation of current policy to consider registering these concerns using the Dissent Channel. We would also encourage other Foreign Service officers to do what this group has done when going through channels to raise concerns fails—that is, to find ethical and appropriate manners of speaking out and raising concerns in fashions that do not breach obligations to the department. We do not offer this advice lightly. While there are formal protections for the Dissent Channel, any State Department employee will acknowledge career risks to using it. But the channel exists to allow officers to ensure critical but politically-unpopular views are not being excluded from important decision-making and to ensure that even very junior officials do not have to choose between safeguarding information and discharging their professional duties with integrity.

The second question—“Can FSOs in visa adjudication positions appropriately implement this E.O. without knowing if its claims are based on sound evidence?”—has a similar answer to the first. It is entirely reasonable for an FSO to view the development of policy as beyond his or her job. He or she can say that this country has developed legal mechanisms for challenging an order and for ensuring it has some grounding in reality. The FSO’s job, by contrast, is to process and issue visas according to the standards he or she is given by policymakers. The bottom line is that we see no ethical problem with an FSO saying that, whatever her personal views may be, the creative tension of the interagency process, the litigation that will surely develop, and the pushback from the public and the press is the proper mechanism for challenging the order, and that her job is execution of the policy that results. Nobody who takes this position should be faulted for it. It is a completely honorable point of view; we do, after all, need to have a government.

That said, we also cannot fault a Foreign Service officer who, after exhausting all available internal channels, responds to the previous paragraph as morally unsatisfying. We suspect that more FSOs will migrate away from consular work as a result of current policy, and the State Department will have to adjust accordingly. And we suspect as well that some FSOs, who are required to do tours as consular officers, may resign rather than doing them. If it comes to that for any individual, we would hope that person would resign in public with letters expressing their concerns. This is exactly what one of us was contemplating back in June when he wrote of the Justice Department:

if endeavors by Trump that offended the consciences of department staff provoked serial resignations in response to specific incidents, the resignations would draw attention to the abuses both on the part of the press and on the part of the public and Congress. Put another way, resignations by career officials will be more powerful if conducted on an as-applied basis, not as a facial challenge to the particular administration.

To the FSO who takes the view that he or she cannot in good conscience carry out policy developed without regard to facts, policy that will injure real people—many of them people threatened by extreme violence and some of them individuals to whom this country owes real debts and carries real obligations—we say only this: make your resignation worth something.

Our correspondent’s letter provokes a few thoughts beyond the advice specifically sought:

First, we will, in our personal capacities, be submitting a Freedom of Information Act request to the State Department for documents reflecting both whether these data sources are being consulted in current policymaking and for documents reflecting what these data may say about the rates of problems with entrants from these countries relative to other countries. We are prepared to litigate over this request.

Second, we note that a Congress interested in doing minimally competent oversight of the executive branch should also be interested in such material—and in verifying that the administration has meaningfully consulted it.

Third, a word to any litigants opposing the president’s existing order and gearing up to oppose the replacement order: Discovery is a more powerful instrument than FOIA. This letter highlights a possible strategy for challenging the factual integrity of an order focusing on these countries. It is very worth exploring, both as a means of detailing what the reality is with respect to the threat emanating from these countries relative to others and as a means of discerning what steps the administration has and has not taken to understand the reality in which it is making policy.

Finally, a note to the administration: Slow down. We don’t pretend to know whether this information has been studied in a serious fashion. But if it hasn’t, that is if this post is catching you off guard this morning, consider the possibility that it’s not because there’s some diabolical career-level “deep state” of Obama-loving resistors throughout the bureaucracy dedicated to undermining your policy. Consider the possibility that this is actually your own fault. You’re supposed to know about the existence of this sort of thing before you make policy. You are supposed to ask federal agencies to help identify such issues, and not exclude the people who are capable of doing so from the process to the extent that their only recourse is writing to us. If this post is the first you’ve ever heard of these databases, consider the possibility that you haven’t created a process that has sufficient integrity for you to do your job, or for officers like these people to do their jobs. This is not a leak. This is not a betrayal of the administration. It is the people inside the process flagging material that should not be ignored.

So we will conclude by flagging this matter on their behalf for the new National Security Adviser, Lt. Gen. H.R. McMaster: Sir, we know you’re busy, but there are some databases at the State Department you’ll want to make sure get examined before any new executive order gets signed and implemented.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
Susan Hennessey was the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She was a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.

Subscribe to Lawfare