Posted: 1:19 pm  PT
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On January 27, President Trump issued Executive Order that suspends the entry of refugees to the United States for 120 days and deny entry/issuance of visas to citizens of seven Muslim-majority countries [Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen] for 90 days. (see Trump EO: Protecting the Nation From Foreign Terrorist Entry into the United States, 1.27.2017).

On January 30, somebody leaked to Lawfare a draft Dissent Channel memo written by State Department employees officially dissenting from the Trump executive order. We’ve previously written about dissent in the Foreign Service in this blog:

• More on the Syria Dissent Channel Memo, and Chasing Down Concerning Rumors
• Dissent Channel Leak: Who Gains the Most From Flogging the Laundry Like This?
• “Dissent Channel” Message on Syria Policy Signed by 51 @StateDept Officers Leaks  June 17, 2016
• NYT Publishes Draft Version of @StateDept Dissent Memo on Syria Without the Names of Signers  June 17, 2016. 
• When Policy Battles Break Out in Public — Holy Dissent, What a Mess! June 20, 2016
• Burn Bag: Dissenting on Dissent
• Dissent Channel: USAID/Pakistan Program (2009)
• Wanted: Patron Saint for Dissenting Diplomats (2009)
• House GOP Brings Back Holman Rule to “Retrench” Agency Spending, Cut Pay of Any Federal Employee

The State Department has 75,231 employees worldwide, including 50,104 locally hired employees, 11,147 Civil Service employees, and 13,980 Foreign Service employees. The signatories of this dissent memo, as reported, ranges from 900 to about 1,000 employees.

One leaked that memo.

This was a bad move.

The policy that allows the existence of the Dissent Channel is long in history and tradition in the State Department. But it has only been in existence for 46 years.

On January 31, the Democratic Members of the House Committee on Foreign Affairs reminded the Trump Administration that State Department personnel who dissent from policy are protected by law and sought assurances that State Department personnel would not be subject to harassment or retribution for offering dissenting viewpoints. They cited the Foreign Service Act of 1980.  The Foreign Affairs (2 FAM 070) which governs the Dissent Channel says that the Channel is “derived from the authority to manage the Department of State and the Foreign Service per 22 U.S.C. 2656, 22 U.S.C 2651a.”  

The last time the Dissent Channel was in the news was when a group of FSOs submitted a dissent cable in the waning days of the Obama Administration over its Syria policy. That also quickly leaked. At that time, a retired ambassador had some strong words concerning the leak expressing concerns that it “jeopardized an important institution.”  Another retired career ambassador at that time, also said that “the channel can only work if it is “internal use only,”  i.e., it does not become part of the political diatribe.” Read more here: Dissent Channel Leak: Who Gains the Most From Flogging the Laundry Like This?

We are interested in hearing about policy battles inside the bureaucracy but we also recognize that the intent of the Dissent Channel is to inform the administration of the day and that these policy disagreements are not for public consumption.  We don’t like it but we understand why it has to be that way.  The Channel affords the Administration through the Director of Policy Planning (S/P) two working days to acknowledge the message, and 30-60 working days to provide a substantive response.   One might argue that perhaps the current administration, which appears to be a bull in a China shop would not be interested in providing a substantive response. Perhaps, but there’s no way to tell now.

The memo was leaked before it was submitted to the Dissent Channel. This will probably cause the greatest crisis of confidence between the new President and the Foreign Service since 1971 (see Dissent Channel Leak: Who Gains the Most From Flogging the Laundry Like This?).  We hope it doesn’t, but the possibility is there.

We applaud the courage of the employees to dissent from this policy that is not only un-American but also detrimental to the interests of our country.  That said, this leak was a bad move. The signatories expected the dissent memo to go to the Dissent Channel. One signer told us he/she was “pissed” that the memo was made public. He/She was not the only one. The leak also demonstrates, perhaps, an unstated belief that the Dissent Channel does not work, otherwise, why leaked it before it even got to the proper channel? By not affording the Administration a time to response, and by leaking the dissent memo before it was even submitted to the Dissent Channel, the dissent itself, and the institution became immediately embroiled in –you guess it — “political diatribe.”  

Employees who signed the dissent memo did not sign off on this leak. They know what is required of them when they signed up for these jobs.  Some are now concerned of potential repercussions.  Policy Planning, the office with responsibility over the Dissent Channel was most recently encumbered by Jon Finer, who also served as Secretary Kerry’s chief of staff. Previously, the office head was longtime Kerry aide, David McKean. We can’t remember the last time S/P was encumbered by a career Foreign Service officer. We anticipate that the new administration will staff the office with its own political appointee. That political appointee will have access to all records at S/P.

Given the potential for vindictiveness, and the statements coming out of the White House Press Secretary, one has to be concerned on how this will end. We are looking at Secretary Tillerson to assure State Department employees that he supports this honorable tradition of dissent free from retaliation.  The new secretary of state will most certainly also need an assurance that his employees will always give him their best counsel, without making every policy fight a public one.  We do not doubt that there will be many more policy fights ahead.  So we hope people do not panic, but get ready for the next one.

We want to note that Lawfare’s Benjamin Wittes tweeted his offer to help FSOs who suffer from retaliation over this memo:  “I want to stress that ANY FSO who faces retaliation for this memo should contact @Susan_Hennessey or me.” He also writes, “We will get you a first rate lawyer. And that’s a promise.”

The head of a nonpartisan independent watchdog has also told us that she wants to help. Let us know, if needed, and we’ll connect you.