Storm clouds on the horizon for whistleblowers
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Throughout the Obama administration there was always a bit of split personality disorder at play when it came to whistleblowers and voices of dissent within the government. On the one hand, more Espionage Act prosecutions of leakers of classified information (no matter if done with noble or ill-intent) took place under President Obama than any of his predecessors. On the other hand, the promulgation of administrative memoranda like Presidential Policy Directive 19 and Intelligence Community Directive 120, later codified into law by Congress, created the strongest administrative protections to date for national security whistleblowers. 

With President Trump, however, these first two weeks have made it very clear that the guiding principle that will permeate government for at least the next four years is that dissent and disloyalty will not be permitted.

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The most recent incident began with a rumor that there was internal dissent at the State Department about the immigration executive order the president sprung upon the government on a Friday evening last week. That rumor later emerged in writing on Monday in the form of a “dissent channel” letter circulated within the Foreign Service arguing against the necessity for or beneficial value of the president’s immigration executive order. Several hundred Foreign Service officers have allegedly already signed the letter, with more likely to follow suit.

 

There were several options available to the White House in responding to such a “dissent channel” letter. The most obvious one would have been to treat it as just another day in the government neighborhood. They could have easily said it was just a normal part of governance and highlighted the fact that it was conducive to our constitutional republican form of government to permit these types of channels of dissent to exist. 

It would have been easy to say the following: “The president recognizes and respects the views outlined in this letter, and while he disagrees with the conclusions expressed in it he will take into consideration going forward the concerns raised by these valued members of the Foreign Service.” Easy, simple, and the “dissent channel” letter is a one day process story. 

Unfortunately, that isn’t what Press Secretary Sean Spicer did. Instead, he lashed out, saying the signatories of the “dissent channel” letter needed to “either get with the program or they can go.” This was, with all due respect, a callous and grossly unprofessional response by Spicer that was beneath him and the position he fills.

These “career bureaucrats,” as Spicer preferred to call them, are civil servants. They – unlike, for example, former acting Attorney General Sally Yates – are not political appointees and they do not serve at the pleasure of the president. Like many other civil servants working in the government, they are the essential pieces of the bureaucracy that keep the wheels turning throughout different administrations, no matter their personal political ideologies. They retain unquantifiable expertise and experience that cannot be easily replicated. 

Most importantly, as civil servants they are hired and (if necessary) fired in accordance with statutorily-defined civil service laws. The president of the United States has no real say one way or the other in whether they remain employed. 

It is perfectly appropriate for an administration to expect that civil servants will execute the lawful orders and directives issued to them, and there is nothing in the “dissent channel” letter indicating that these Foreign Service officers were intending to obstruct the implementation of the president’s immigration executive order. What is distressing and disheartening is how this new administration apparently views the appropriateness of dissent by anyone. 

What reason is there for individuals to voice their policy disagreements in the future if they know that this is how it will be treated? What incentive is there for whistleblowers to use the still-fragile and time-consuming procedures for raising concerns through lawful channels if this is how they believe they are viewed in general?

The president and his senior advisors may view any act of disagreement as an indication of disloyalty, but it is no longer a private business or a presidential campaign they are overseeing. This is the federal government, and disagreement and dissent is not only permitted, law and regulations in various parts protect it. The new administration would be well advised to come to grips with their new reality sooner than later.

Bradley P. Moss is a partner at the Washington, D.C. Law Office of Mark S. Zaid, P.C., where he has represented countless individuals (including whistleblowers) serving within the intelligence community. He is also deputy executive director of the James Madison Project, through which he has represented media outlets such as Politico, Gawker, Daily Caller, and the Daily Beast in FOIA lawsuits against the Bush, Obama and Trump administrations.


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