Washington needs more dissent channels, according to Neal K. Katyal’s op-ed in the New York Times.[1] He is right about this, but he wants dissent that is hidden from the public, and that is wrong.
Katyal points to a memo from 51 U.S. diplomats that criticizes current U.S. policy in Syria and calls for military action to prevent “dire, if not disastrous, humanitarian, diplomatic, and terrorism-related challenges.”[2] The diplomats submitted the memo to the State Department’s “Dissent Channel”, a procedure in the department’s rules that allows employees to send their views to the Secretary’s Policy Planning Staff. The rules prohibit supervisors from retaliating against employees for using the Dissent Channel.
Katyal supports the Dissent Channel, and notes with approval other examples of policy debate within and between Federal agencies, including CIA “red teams” and input to the Solicitor General from Justice Department divisions and other Federal agencies. As Katyal notes, allowing people working in government to express conflicting views helps spot flaws in logic and analysis, and can give rise to more informed discussion and innovative solutions.
But Katyal’s article does not support letting the public hear dissent by government workers. He says the Syria dissent “raises a fear” that the memo appears to have leaked. It certainly leaked; it is on the internet, even though State’s rules prohibit disclosing a Dissent Channel message to unauthorized personnel.[3] Keeping disagreement non-public is the price Dissent Channel users pay for the promise they will not face retribution. But the Syria memo had impact precisely because it became known to the public and reported in the press. While Katyal says leaking “raises a fear”, what we should really fear is that the 51 diplomats who signed the Syria memo, and other government workers who have strong arguments against government actions, are intimidated from presenting those arguments in public.
Katyal says debate within and among Executive Branch agencies provides checks and balances. Such debate has some value, but it is no check on the officials in power at any given time, because they get to pick the arguments that support their own agendas and dismiss the others. By contrast, when information and analysis from government workers are available to the public, they are a more powerful check on the ability of officials to act in ways that an informed public would not tolerate.
Of course some government information, such as battle plans and citizens’ health records, needs to be kept secret. But the Syria dissent memo revealed no such information—nothing in it was classified. Even so, the 51 diplomats would not be protected by whistleblower laws if they had published their memo rather than using the non-public Dissent Channel. Whistleblower laws only apply to reporting narrowly-defined malfeasance, not bad policy or poor management.
Government workers should be able to speak publicly about what government does, without fear of retribution. Rather than more dissent channels that keep information from the public, as Katyal advocates, we need safe harbors for government workers to inform the public without fear of retribution. The safe harbor could be similar to current whistleblower laws, but applicable to any discussion of government operations, not just reporting narrowly defined types of malfeasance. It could prohibit retribution against a government worker for public statements regarding government operations, as long as she does not reveal any information for which disclosure is illegal and does not give the impression of speaking on behalf of the government.
Such a safe harbor would be strongest if it was implemented in legislation, like current whistleblower laws. It could also be created by agency regulation, but it does not seem likely that any agency head would empower employees to disagree with her in public. Another possibility is for the Merit System Protection Board or the courts to build case-by-case precedent that retribution against government workers for legal public statements violates existing civil service laws.
The Syria dissent memo demonstrates that allowing government workers to disagree with official positions is of very limited value if they must hide their information from the public. The memo became significant only when it was leaked. Government workers should not need to leak, or risk retribution, to give the public insights that contradict the officials in power.
[1] Neal K. Katyal, “Washington Needs More Dissent Channels,” The New York Times, July 1, 2016, http://www.nytimes.com/2016/07/02/opinion/washington-needs-more-dissent-channels.html.
[2] 51 U.S. Diplomats, “Dissent Channel: Syria Policy,” 2016, https://assets.documentcloud.org/documents/2866467/State-Dept-Dissent-Memo.pdf.
[3] U.S. Dept. of State, “2 FAM 070 General Administration – Dissent Channel,” accessed July 13, 2016, https://fam.state.gov/fam/02fam/02fam0070.html.
