(Editor's note - Thursday, August 15 is the last day of work for Director of National Intelligence Dan Coats and his Principal Deputy Director Susan Gordon. Coats turned in his resignation in late July and Gordon delivered hers last week amid rumors that she was being pushed from her job. Both resignations are controversial because they are seen by critics of the President as punishment for those who speak truth to power, though the President provided a sigh of relief to those critics when he appointed current Director of the National Counterterrorism Center Joseph Maguire to take over as Acting DNI. Maguire is seen as a true professional and someone who is also willing to speak up when required. The issue raises a great question however, that should be explored. What should an Intelligence professional - at any level - do when they are asked to do carry out a directive they do not support? This guide was written by Cipher Brief expert Steven Ward in December of 2016, when the issue became front and center after comments that then President-elect Trump and had made about using torture to gather intelligence and killing the family members of terrorists - neither of which - as far as we know - he has directed since becoming President. This guide was also written before Lt. General Michael Flynn pled guilty to lying to the FBI in December, 2017. It's filled with valuable thinking around the issue of dissent.)
OPINION — Throughout my nearly 30 years at CIA, I was regularly reminded of the scripture that serves as a philosophical foundation of the Agency’s work. “And ye shall know the truth, and the truth shall make you free” (John 8:32) admirably links CIA’s mission to speak truth to power to the fundamental American value of freedom.
I do not recall a time, however, when anyone mentioned that just eight verses later, the scripture continues with, “But now ye seek to kill me, a man that hath told you the truth… ” (John 8:40). This was probably unnecessary, because intelligence officers learn early in their careers that speaking truth to power can come with a cost.
This risk has seldom seemed higher than with President-elect Donald Trump and national security adviser-designate Lieutenant General (ret.) Michael Flynn becoming the country’s two most important decision makers for intelligence-related policies. Both men have taken positions that could create conflicts between Intelligence Community (IC) officers’ missions and morals. The President-elect has spoken of using torture to gather intelligence and to intentionally kill terrorists’ family members. The general, meanwhile, has refused to rule out waterboarding and was criticized for spouting untrue “Flynn facts” while heading the Defense Intelligence Agency. Both have expressed skepticism over the integrity of the IC’s analysis.
What, then, should an IC officer do if he or she is confronted with a White House directive that, if not clearly illegal, violates the officer’s own moral values? When should an ethical intelligence officer dissent from a policy or order viewed as immoral?
To start, all IC officers have taken a solemn oath to support and defend the Constitution, swearing to “well and faithfully discharge” their duties. History, however, has shown that some actions demanded of intelligence officers can be consistent with the Constitution as interpreted by legal authorities or the judiciary but still be immoral. In such cases, the oath provides no more than general guidance on what to do when faced with directives that conflict with ethical values.
At its most basic level, the oath is a commitment to the rule of law, and in turn, to the President, Congress, and the courts. It also is a commitment to the democratic society that determines who our leaders are. Adhering to these obligations should be the touchstone for determining the when and how of resolving competing values.
Based on my experience teaching ethics at the U.S. Naval Academy as a CIA visiting professor earlier this decade, I have a few suggestions to help a conflicted intelligence officer settle such dilemmas. At Annapolis, I was introduced to a Constitutional paradigm developed by Colonel Paul Roush, a retired Marine infantry officer and former naval academy professor. I believe it’s a relatively straightforward process, with a few adjustments for civilian intelligence officers, and provides a useful guideline for justifiable disobedience. This process of dissent does not eliminate the costs of taking a moral stand and indeed, makes them more likely. But it protects individual integrity and ultimately helps an officer honor his or her oath.
First, the officer needs to try to resolve the conflict by dealing with the relevant parties to whom the oath has created an obligation of loyalty and obedience. The highest priority for loyalty obviously goes to the Constitution, followed by the national intelligence mission. At a more concrete level, however, an officer needs to deal first with allegiances to his or her respective agency or department and then to fellow intelligence officers. Ideally, concern for one’s self-interest should be the lowest priority. With these priorities in mind, an officer should try to work within the system by addressing the disputed directive or policy with the chain-of-command or agency ombudsman to develop a satisfactory resolution.
Thomas Drake, a former senior National Security Agency (NSA) executive, complied with whistleblower protection laws in raising his concerns about an expensive and ultimately failed NSA surveillance program. Edward Snowden, the former CIA officer and NSA contractor who illegally disclosed numerous classified surveillance programs, also claims that he tried to raise his concerns within the system, but NSA disputes this. These were appropriate starts to resolving the problems but were not sufficient.
If an officer cannot in good conscience resolve the conflict and follow the oath’s obligations, the paradigm’s next step requires that he or she resign. This might require leaving federal service, but an officer could uphold the oath and maintain integrity by moving to another IC position. In my experience, most senior managers would support a principled move over retaining an unwilling subordinate. But there is no guarantee that such a reassignment will not harm the officer’s reputation, resulting in less desirable or non-career enhancing assignments in the future.
Resignation may be the hardest step in the paradigm. After the NSA and Department of Defense (DoD) inspector generals had reviewed the disputed program, a dissatisfied Drake, rather than resign, later leaked unclassified information to a reporter with the expectation that he would, at worst, be fired. Similarly, Snowden continued to work as an NSA contractor right up to the moment he fled to Hong Kong and later Russia after leaking classified information.
Resignation, however, does not end the oath nor the legal obligation to protect classified information. John Kiriakou, a CIA officer who pled guilty to one count of passing classified information to the media, had left the Agency before he publicly confirmed the CIA’s use of waterboarding. Having chosen not to work within the system to address any reservations he had, Kiriakou’s delayed dissent failed to meet all of the ethical steps.
Finally, in the rare instance when the officer sincerely thinks that failing to confront the situation would result in a greater evil, the moral act is to disobey. An ethical officer, however, must be prepared to suffer the consequences of dissent and should abide by four additional conditions recommended by Rousch.
First, the dissent has to be over a fundamental violation of morality and justice. Not to excuse Kiriakou, Drake, and Snowden, but torture and the killing of innocents clearly fall within this category while government actions that potentially threaten constitutionally protected liberties might represent such a violation.
Second, the officer, having tried and failed to have the policy or order changed using normal procedures, must be certain that there is no alternative but to disobey. In most cases, such dissent is a once-in-career event with no second chances. Of the three examples presented here, none seem to have exhausted all alternatives.
Third, any dissent must be done publicly, even going so far as advising authorities about the intention to disobey. To do otherwise is to undermine the ethical obligations of the intelligence profession. Until his unauthorized revelation of unclassified information to a reporter, Drake had been admirably open in his dissent and cooperated fully in the various DoD and congressional reviews.
Finally, the officer must be prepared to accept the full legal consequences of his or her actions. This is critical to show that the dissent is a matter of principle. And, principled disobedience shows the officer’s ultimate respect for the oath and associated commitment to the rule of law. Drake, to his credit, was willing to be held accountable. He refused to plea bargain after being indicted on charges unrelated to his leaks, and ultimately, the government dropped the charges. This stance contrasts markedly with the contempt shown by Snowden’s method of leaking intelligence anonymously and his subsequent flight to Russia. Snowden’s actions to avoid accountability undermined any pretense of a principled stance.
These are tough conditions to meet and rightly so. Dissent should not be easy, should be used as a last resort, and should occur only in the service of larger issues involving truth, justice, and, ultimately, our nation’s freedom. Intelligence officers will be serving their country and themselves well if they adhere to this paradigm when confronted with the need for justifiable dissent.
Read more national security opinion and analysis in The Cipher Brief
