Why bureaucrats matter in the fight to preserve the rule of law

By Melissa Lane
Ms. Lane is the Class of 1943 professor of politics and director of the University Center for Human Values at Princeton University. She is the author of a number of books, including Eco-Republic (2011/2012) and The Birth of Politics (2015), and has appeared often on the ‘In Our Time’ radio broadcast on BBC Radio 4. Via Creative Commons Attribution-No Derivatives

Socrates, while serving on the Athenian Council, sought to prevent it from making an illegal decision. Martin Luther, when a council convened by the Emperor Charles V in 1521 told him to recant, is said to have declared: ‘Here I stand; I can do no other.’ The United States’ attorney general Elliot Richardson and the deputy attorney general William D Ruckelshaus both chose to resign in 1973 rather than obey President Richard Nixon’s order to fire the special prosecutor investigating Watergate. More recently, the acting attorney general Sally Yates was fired after she announced that the US Department of Justice would not cooperate in enforcing President Donald Trump’s executive order against Muslim immigrants. They all said no. Each of them, for reasons of principle, opposed an order from a higher authority (or sought to prevent its issuance). They are exceptional figures, in extraordinary circumstances. Yet most of the time, the rule of law is more mundane: it depends on officials carrying out their ordinary duties within the purposes of the offices they hold, and on citizens obeying them. That is to say, the rule of law relies upon obedience by bureaucrats, and obedience of bureaucrats – but crucially, within the established norms of the state.

The ancient Greeks made no sharp distinction between political rulers and bureaucratic officials. They considered anyone in a position of constitutional authority as the holder of an office. The ancient Greek world did not have a modern bureaucracy but they did confront the question of respect for norms of office and of obedience to office-holders. Plato addresses these questions, in both the Republic and the Laws, in relation to the danger of usurpation of democracy by a budding tyrant.

Of course, Plato was no democrat. But he did recognise the value of liberty – most explicitly in the Laws, where he posited liberty, wisdom and friendship as the three values that ought to guide the work of government. Plato wanted to balance liberty with what we would call the rule of law. For him, that included not only obedience to the law, but also obedience to the officials who have to carry it out. In the Republic’s portrait of democracy (in some ways a caricature, to be sure), he warns against drinking liberty unmixed with obedience, likening it to wine unmixed with water – a serious social solecism for the ancient Greeks. Doing so, he thinks, can lead to a deterioration of the norms of political office. Too much liberty might lead to the point that a city ‘insults those who obey the rulers as willing slaves and good-for-nothings, and praises and honours, both in public and in private, rulers who behave like subjects and subjects who behave like rulers’ (translation by G.M.A. Grube revised by C.D.C. Reeve, in John M. Cooper (ed.) Plato. Complete Works (Indianapolis: Hackett, 1997)).

To insult ‘those who obey the rulers’ by calling them ‘willing slaves’ is to reject the value of a norm of obedience to state office-holders. No constitution – no organisation of power into authority – can long subsist if the authority of its officials routinely merits defiance. The resister might be heroic and her actions could sometimes be necessary, but she must be an exceptional rather than an everyday case. Officials who defy illegitimate orders must logically always be the exceptions to a general rule of obeying orders, lest the very meaning of their defiance evaporate. Any conception of liberty, or any practice of government, that rejects the need for obedience to the norms of office, will destroy itself. So Plato reaffirms in the Laws that ‘complete freedom (eleutheria) from all rulers (archōn) is infinitely worse than submitting to a moderate degree of control’.

The statebuilding efforts of medieval and early modern Europe are great and complex endeavours, with their own rich histories. In relation to the rule of law and role of the bureaucrats, we can think of their papal chanceries, state treasuries and imperial ministries as a kind of foundation on which modern reformers and rulers and revolutionaries alike would build liberalism and the rule of law. These bureaucracies constituted the tools of power for rulers. In providing the impartial officials, rule of law procedures and institutional forms of equality, bureaucracy constituted the mechanisms to vouchsafe people’s rights. Liberal reformers used these very mechanisms to try to extend wider rights and liberties to more and more groups.

Max Weber, the influential early 20th-century German sociologist, feared that bureaucracy would be part of the over-rationalisation that he described as a looming ‘iron cage’. He feared it would grow too powerful, choking off meaning, value and political responsibility in its means-ends instrumental rationality. If Weber had lived a few years longer (he died at only 56, in 1920) and had been asked to speak about the crisis of liberalism in the young Weimar Republic, I think he would have expressed the concern (already present in his last writings) that no sufficiently charismatic and powerful politicians would emerge who would be able to bring the bureaucracy to heel. He saw bureaucracy as a major threat to modern life. The fear that the bureaucracy itself was vulnerable to tyrannical usurpation would not likely have crossed his mind.

Today, the US faces the threat of what we can think of as the political iron cage breaking down – possibly from executive leadership ignorant or contemptuous of the purposes of the organisation. Though obviously it has accelerated, the threat is not entirely new with the Trump administration. When president in the 1980s, Ronald Reagan pioneered the nomination of cabinet secretaries committed to abolishing or drastically curtailing the very agencies they were named to head. President George W Bush named agency administrators such as Michael D Brown, who lacked knowledge of his area of responsibility, as head of the Federal Emergency Management Agency. Brown’s eventual resignation in 2005 in the aftermath of Hurricane Katrina betokened not heroic defiance but a reaction to the storm of criticism for his lackadaisical response to the crisis. These public officials were not committed to the basic purposes and processes of the bureaucracies they were appointed to lead or serve.

To be sure, we must not be blind to the ways in which the machinery of state will remain a major resource for parties and politicians who seek to control and to advance their own ends. My point is that, while aspects of this machinery might remain intact, challenges to evidence-based reasoning, fair procedure and impartial officialdom – to the whole apparatus of bureaucratic office and the rule of law – threaten to corrode it. Whether in the long run the machinery itself can withstand this corrosion is an open question.

There is an irony here. Weber’s fear was that the iron cage of rationalising modernity, including bureaucracy, would stifle liberty, meaning and ultimate value, squeezing out responsible, charismatic politicians. Yet today, faced with the menace of charismatic, reckless politicians, what Weber feared as an iron cage appears to us to be the building block of some of history’s most hard-won rights. Plato looks more prescient: long ago he warned of both the charismatic but irresponsible politicians, and the insouciant, irresponsible officials who serve them, who risk eroding the norms of office on which the values of the rule of law and liberty rest.Aeon counter – do not remove

Melissa Lane

This article was originally published at Aeon and has been republished under Creative Commons.

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Q&A With QDDR’s Tom Perriello, Wait, What’s That? Whyohwhyohwhy?

Posted: 4:36 pm EDT
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The State Department says that the Quadrennial Diplomacy and Development Review (QDDR): provides a blueprint for advancing America’s interests in global security, inclusive economic growth, climate change, accountable governance and freedom for all.

-04/28/15  Remarks Announcing the Release of the 2015 QDDR Report;  Secretary of State John Kerry; Briefing Room; Washington, DC
-04/28/15  Briefing on the 2015 QDDR Report;  Deputy Secretary of State for Management and Resources Heather Higginbottom; Washington, DC
-04/27/15  Secretary Kerry to Announce Release of 2015 QDDR Report; Office of the Spokesperson; Washington, DC

On May 19, Tom Perriello, the QDDR Special Representative asked if this blog might be interested in doing a Q&A on the QDDR.  On May 26, we sent him the following eight questions via email. By end of June, his QDDR office was still wrestling with the State Department’s clearance process.

On July 6, Mr. Perriello was appointed Special Envoy to the Great Lakes Region of Africa. He assured us that he’s still “pushing hard” to get the Q&A cleared and appreciate the patience.  On July 10, he moved office and told us it is  unlikely that he’ll get clearance before he leaves his office but that “they’re moving.” He gave us a senior advisor as a contact person and we’ve checked in with the QDDR office about once a week since then.  On August 3, the senior advisor told us that the office has just been informed that given its leadership transition, “folks here would like our new Director to be able to respond to the questions that Tom answered. (Our new Deputy Director has just come on board this week, and a new Director for the office is starting in a couple of weeks.) This means that we will be delayed for a few more weeks.”

Whyohwhyohwhy?  So folks, here are the questions we wanted answered. And apparently, Mr. Perriello and his staffer did try to get us some answers, and we appreciate that, but the Q&A is still snared in some cauldron in the bureaucracy as of this writing.  If/When the hybrid answers get to us, we will post it here.

#1. QDDR/CSO: The 2010 QDDR transformed the Office of the Coordinator for Reconstruction and Stabilization (S/CRS) into the Bureau of Conflict and Stabilization Operations (CSO) to enhance efforts to prevent conflict, violent extremism, and mass atrocities. The 2015 QDDR says that “Some progress has been made in this area.”  I understand that CSO no longer has any mission element about stabilization and stabilization operations. It also remains heavy with contractors. One could argue that the current CSO is not what was envisioned in QDDR I, so why should it continue to exists if it only duplicates other functions in the government? Can you elaborate more on what is CSOs new role going forward, and what makes it unique and distinct from the Bureau of Near Eastern Affairs’ Middle East Partnership Initiative (MEPI) and USAID’s Office of Transition Initiatives?

 INSERT ANSWER IN A FEW WEEKS.

#2. Innovation and Risks: The QDDR talks about “promoting innovation.” Innovation typically requires risk. Somebody quoted you saying something like the gotcha attitude of press and Congress contributes to risk aversion from State and USAID. But risks and risk aversion also comes from within the system. I would point out as example the Center for Strategic Counterterrorism Communications previously headed by Ambassador Alberto Fernandez, and its controversial campaign “Think Again Turn Away” which afforded the USG a new way to disrupt the enemy online. Ambassador Fernandez was recently replaced by a political appointee with minimal comparable experience. It also looks like CSCC will be folded into a new entity. So how do you encourage State/USAID employees “to err on the side of engagement and experimentation, rather than risk avoidance” when there are clear bureaucratic casualties for taking on risks?

 INSERT ANSWER IN A FEW WEEKS.

#3. Engagement with American Public: The QDDR says: “Make citizen engagement part of the job. Every Foreign Service employee in the Department and USAID will be required to spend time engaging directly with the American people.” Are you aware that there are over 500 blogs run by Foreign Service employees and family members that could potentially help with engagement with the American public? Isn’t it time for these blogs to be formally adopted so that they remain authentic voices of experience without their existence subjected to the good graces of their superiors here or there?

  INSERT ANSWER IN A FEW WEEKS.

#4. Eligible Family Members:  The State Department has talked about expanding opportunities for eligible family members for a long time now and I regret that I have not seen this promise go very far. There are a couple of things that could help eligible family members — 1) portability of security clearance, so that they need not have to wait for 6-12 months just to get clearances reinstated; and 2) internship to gain experience from functional bureaus or section overseas. Why are we not doing these? And by the way, we’re now in the 21st century and FS spouses still do not have online access to State Department resources that assist them in researching assignments and bids overseas. Employees are already afforded remote access, why is that not possible for family members? Wouldn’t taking care of people start with affording family members access to information that would help them plan their lives every three years?

  INSERT ANSWER IN A FEW WEEKS.

#5. Foreign Assistance: One of the criticisms I’ve heard about QDDR is how it did not even address the reality that the United States has far too many foreign assistance programs — “an uncoordinated diaspora of offices and agencies scattered around the bureaucratic universe in D.C. from the Justice Department to the DoD to the Commerce Department to the Export-Import Bank to the Treasury Department and beyond, to the bewilderment of anyone the United States does business with overseas.” What do you say to that?

  INSERT ANSWER IN A FEW WEEKS.

#6. Data Collection: Somebody called the second set of “three Ds” — data, diagnostics, and design as the “most revolutionary, disruptive element of QDDR II.” I can see development subjected to these three Ds, but how do you propose to do this with diplomacy where successful engagements are based on national interests and the human element and not necessarily data driven? Also data is only as good as its collector. How will data be collected?

  INSERT ANSWER IN A FEW WEEKS.

#7. Institutional Weaknesses: Some quarters look at the State Department and points at several institutional weaknesses today: 1) the predominance of domestic 9-5 HQ staff with little or no real field experience, foreign language and other cultural insight, and 2) the rampant politicization and bureaucratic layering by short term office holders with little or no knowledge of the State Department and less interest in its relevance as a national institution. How does the QDDR address these weaknesses? How does the QDDR propose to recreate a national diplomatic service based on a common core of shared capabilities and understanding of 21st century strategic geopolitical challenges and appropriate longer term responses?

  INSERT ANSWER IN A FEW WEEKS.

#8: QDDR Operation: I remember that you sent out a solicitation of ideas and suggestions for QDDR II and I’m curious at the kind of response you got. Can you also elaborate the process of putting together QDDR II? Finally, the success of QDDR II will be on implementation. Who’s leading the effort and what role will you and the QDDR office have on that? Unless I’m mistaken, the QDDR implementers are also not career officials, what happens when they depart their positions? Who will shepherd these changes to their expected completion?

 INSERT ANSWER IN A FEW WEEKS.

We should note that the senior advisor who has been trying to get this Q&A cleared is also moving on and has now handed this task over to a PD advisor who assured us that they “are committed to responding as soon as possible in the midst of this transition, and we will not start from scratch.”

Folks, you don’t think there’s anything wrong with this entire clearance process, do you? Or the fact that the State Department’s office tasked with developing “a blueprint for advancing America’s interests in global security, inclusive economic growth, climate change, accountable governance and freedom for all” is actually unable to answer eight simple questions without the answers being pushed through a wringer, twice for good measure?

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Emails Brief as Photos, But Where Are The Interesting Bits? #ClintonEmails

Posted: 9:06 am PDT
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So the day before the three day Memorial Day weekend, this happened.

 

Where else would State dump these but at the foia.state.gov website, a slow and notoriously difficult to search website:

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But there’s help from the Wall Street Journal, which offers a faster loading site than the FOIA website.  It also allows you to tag any of the 800+ pages of emails.

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Yo! There’s no smoking gun, and everyone’s like whaaat? Teh-heh!

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What are we learning from this first batch of emails?

1) The document dump is not arranged or ordered in any useful way. The emails from 2011 are mixed with 2012. Some of the emails are included more than once. Some of the redactions are rather odd, given that some of these emails were already published via the NYT.  The former secretary of state is not referred to as HRC, only as “H.” The emails show an extremely small number of gatekeepers – Mills, Sullivan, Abedin, plus a couple of folks routinely asked to print this or that.

2) Sid, Sid, Sid — there are a good number of memos from “friend of S” or “HRC’s contact,” Sidney Blumenthal, who apparently had his own classification system. The memos he sent were marked “Confidential” although he was no longer a USG employee at the time he sent them and presumably, no classifying authority. Imagine the COM in Libya and NEA folks chasing down this intel stuff. Right. Instead of “OGA” for other government agency, State got “FOS”or “friend of S” as intel source.

3) “Pls. print” one of the former secretary of state’s favorite response to emails sent to her.

4) When former Secretary Clinton finally addressed the firestorm of her use of private email, she said: “I opted for convenience to use my personal email account, which was allowed by the State Department, because I thought it would be easier to carry just one device for my work and for my personal emails instead of two,” a self-assured Clinton told more than 200 reporters crowded into a U.N. corridor. (via Reuters). It looks like she had more than one email address, and we don’t know how many devices. The email below was sent from an iPad.

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5) HRC gave a speech on September 12, 2012  Remarks on the Deaths of American Personnel in Benghazi, Libya at the Treaty Room of the State Department.

Here is Harold Koh, the State Department Legal Adviser later that day thanking HRC for her “inspirational leadership.”

Screen Shot 2015-05-24 at 10.06.39 PM

6) On September 14, 2012, HRC delivered her  Remarks at the Transfer of Remains Ceremony to Honor Those Lost in Attacks in Benghazi, Libya atAndrews Air Force Base; Joint Base Andrews, MD. Video at: http://bcove.me/r4mkd76v.  Below are some of the ‘thank you’ emails sent to her, but mostly to HRC through Ms. Mills:

From Deputy Secretary Bill Burns to H:

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From State/CSO Rick Barton to Mills:

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From NEA’s Brett McGurk to Mills:

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From NEA/PD “blown away” to somebody to Mills:

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From Protocol to Mills to Protocol:

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7) On October 10, 2012, there was a congressional hearing on the Security Failures of Benghazi. “Did we survive today?” HRC asked.  The “Pat” referenced to in this email is most likely Patrick Kennedy, the Under Secretary for Management who testified at that hearing (see Security Failures of Benghazi: Today’s Hearing).

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8) In November 2012, the House Intelligence Committee had a closed hearing that reportedly had the Director of National Intelligence James Clapper, Matt Olsen, Director of the National Counterterrorism Center, CIA Acting Director Michael Morell and the State Department’s Under Secretary for Management Patrick Kennedy.  Those could be the Matt and Pat in this email:

Screen Shot 2015-05-24 at 8.14.43 PM

9) There was a meeting at the WH Situation Room on Nov 26, 2:35 pm on Benghazi. The invitation was for the Secretary +1, and if she was unable to attend, an invitation for one representative only. The then Executive Secretary John Bass (now US Ambassador to Turkey) asked Mills if she’d prefer “Pat” to attend or “Dan.” Dan is State’s former counterterrorism guy, replied “Pat should go” in reference to Patrick Kennedy. Mills asked HRC if she’s good with Pat going and she replied “I think I should go w Pat.”

Screen Shot 2015-05-24 at 8.26.48 PM

10) On December 17, 2012, then State Department spokesperson Victoria Nuland (now A/S for the EUR bureau) confirmed that the Accountability Review Board on Benghazi had concluded its work, and that the report went to Secretary Clinton that day (see ARB Concludes Work, Unclassified Report May Be Publicly Available on Wednesday).  The following email is between Burns and Mills dated December 18, 2012. It mentions three names, Eric, Pat, and Greg Starr.  We are guessing that the Eric in the email is Eric Boswell, the then Assistant Secretary of Bureau of Diplomatic Security, and Pat is the Under Secretary for Management. The portion referencing Greg Starr was redacted except for Burns’ “I like the Greg Starr idea.”

The ARB report was released the same day this email was sent (see Accountability Review Board Singles Out DS/NEA Bureaus But Cites No Breach of Duty; also see Accountability Review Board Fallout: Who Will be Nudged to Leave, Resign, Retire? Go Draw a Straw. Mr. Boswell was one of the four employees thrown under the bus. On February 1, 2013, Gregory B. Starr was sworn in as Principal Deputy Assistant Secretary of State for Diplomatic Security and Director of the Diplomatic Security Service. Mr. Starr also served as Boswell’s successor as acting DS Assistant Secretary until he was formally nominated by President Obama in July 2013.

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11) On December 20, 2012, the State Department’s two deputies, William Burns and Thomas Nides went before Congress instead of Secretary Clinton (see Clinton Recovering, Top Deputies Burns and Nides Expected to Testify Dec.20). Thank yous all around with HRC saying thank you to Burns and Nides. Thereafter, Cheryl Mills sent an email praising HRC’s email as being “so nice.”  This was then followed with more thank yous from Nides and Burns.

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12) So nothing surprising in the emails except the parts that may give some of us toothache. And the missing parts.  This is only the first batch of emails although our understanding is that this constitutes the Benghazi-related emails. If that’s the case, it is striking that we see:

a) No emails here to/from Eric Boswell, the Assistant Secretary for Diplomatic Security.

b) No emails directly related to the other three employees put on administrative leave, Diplomatic Security’s Charlene Lamb and Steve Bultrowicz, and NEA official, Raymond Maxwell (although he is on a few courtesy copy emails) see The Other Benghazi Four: Lengthy Administrative Circus Ended Today; Another Circus Heats Up).

c) No emails to/from Gregory Hicks who was Embassy Tripoli’s DCM at the time of the attack and who would have been attached by phone/email with Foggy Bottom (Hey! Are telephone conversations recorded like Kissinger’s?)

d) Except for an email related to one of the ARB panel member, there are no emails related to setting up the ARB, the process for the selection of ARB members, the assistance requested by the ARB, the support provided by the State Department to the panel, etc.  What happened to those emails?

(By the way, we also have not forgotten that Former State Dept DAS Raymond Maxwell Alleged Benghazi Document Scrub Pre-ARB Investigation).

13) Then Secretary Clinton was using at least two emails from her private server according to these released emails. It does not look like anyone from the State Department could have just sent her an email by looking her up on the State Department’s Global Address List (GAL). But certainly, her most senior advisers including the experienced, career bureaucrats at the State Department must have known that she was using private email.

Seriously, no one thought that was odd? Or did everyone in the know thought it was beyond their pay grade to question the practice? Let’s imagine an entry level consular officer conducting official business using a private email server. How long would that last? Right.

So what happened there? Ugh! Pardon me? You were just doing your job? That CIA briefer also was just doing his job.

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Howard W. French on Gayle Smith’s Appointment as USAID Administrator

Posted: 1:29 am EDT
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We’ve previously posted about the nomination of Gayle Smith as the next USAID administrator on May 5 (see Gayle Smith: From National Security Council to USAID Administrator.  What if every nominee gets a thorough treatment like this?

Excerpt from Mr. French’s piece over at FP:

When President Obama recently nominated Gayle Smith to be the next administrator of the United States Agency for International Development, many members of the country’s small Africa-related foreign policy community howled.
[…]

Smith’s critics, myself included, have objected to the fact that over the years, this former journalist has been a conspicuous backer of authoritarian regimes in places like Ethiopia, Eritrea, and Rwanda. When I first made this point publicly, a former White House staffer offered a disconcertingly ambivalent response: “I’m not sure if there were more compelling candidates out there,” he said.

He may well be right – and the reason for the lack of qualified personnel is a direct consequence of Washington’s long failure to devise a coherent policy toward Africa.
[…]
Gayle Smith should certainly not stand alone to answer for this horrible record, for which the American foreign policy establishment has never given anything like a proper reckoning. One of the reasons for that, though, is the persistence of people like Smith, and her patron, Susan Rice, in positions of high authority. Another, equally pernicious, is the general disinterest that Africa receives from the foreign policy thinkers.

As a region of the world, Africa is virtually alone in being consigned to people with thin expertise and little policy background or clout to shape and guide American diplomacy. Top Africa jobs have often become a kind of sop for African Americans within the bureaucracy. Celebrities like Bono, George Clooney, and Ben Affleck are looked to help set priorities and galvanize public interest. That this should be necessary must be seen as a failure of the policy establishment itself to think more creatively and with more ambition about such a large part of the world.

Read in full via FP, From Quarantine to Appeasement (registration may be required).

Ms. Smith’s nomination requires Senate confirmation. It is currently pending at the Senate Foreign Relations Committee.

Howard W. French journalist, author, and photographer, as well as an associate professor at Columbia University Graduate School of Journalism. He was previously a Senior Writer for The New York Times, where he spent most of a nearly 23 year career as a foreign correspondent, working in and traveling to over 100 countries on five continents.  From 1979 to 1986, he lived in West Africa, where he worked as a translator, taught English literature at the University of Ivory Coast, and lived as a freelance reporter for The Washington Post and other publications. From 1994 to 1998, he covered West and Central Africa for the NYT, reporting on wars in Liberia, Sierra Leone and Central Africa, with particular attention to the fall of the longtime dictator of Zaire Mobutu Sese Seko.

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Burn Bag: Post Closure — O Courage, Where Art Thou?

 

Via Burn Bag:

“This place will be closed. It’s inevitable because it’s just too dangerous. We’ve got only a skeleton staff of direct hires here now because of the danger. But the bureaucracy is, it seems, incapable of having the courage to make the decision that will result in the flag being lowered once and for all. A week passes. And then another. Still, no decision. So we raise the flag every day. And wait. We live in limbo–and fear of another attack. Fingers crossed we don’t get killed while waiting.”

Photo via state.gov

 

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