Long but worth reading.A group of Foreign Service officers have written to Lawfare for advice on how to proceed with their jobs (the Lawfare team do have substantial experience in this sort of thing, and are well respected in such circles). They believe the administration is ignoring evidence regarding their immigration ban and instead seeking only a post-hoc justification while still ignoring major sources of data for such information. Specifically;
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.
They go on to describe the database that is used in the FSO to make visa determination - the Consular Consolidated Database - which ties into numerous law enforcement and intelligence community databases. Anyone who was paying attention during the Obama administration would remember these databases being tied into the FBI/DHS fingerprinting data (recently mentioned in the news as suspending refugees from Iraq, which was after two men's fingerprints were found to have been found on IEDs only after they had been granted access to the US).
They suggest that, based on their direct experience, this data will contradict the stated goals of the executive order and is either being ignored or has gone completely consulted, despite being the perfect source for the types of data such an EO would deal with. The conclude with the questions;
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.
The advice is largely measured. Use legal channels within the State Department to raise the concerns but be aware and ready to use the
Dissent Channel if their concerns are ignored.
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.
As for enforcing the policy, if an officer doesn't believe they can ethically carry out the EO when ordered to do so, the only reasonable remedy offered is resignation.
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.
The piece goes on to say they are filing a FOIA request over whether these databases have been consulted and whether there is relevant information to the EO within them, as well as suggesting such information as a target for Congressional investigation and discovery in lawsuits over the EO, both of which have greater power than a FOIA request. They conclude with some direct advice for the government;
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.
This is more of a glance behind the curtain than most of the leak stories going around, IMO, showing more the thought process and concerns of those who want to get information out because they believe the administration is acting out of the public interest. Usually you only get to see this kind of thing when the dust has settled and the books are written. This presidency is really not normal.
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