As is often the case, it takes the intersection of two or more events to create that moment of illumination, that instance of clarity, when the seemingly irrational makes sense.  This past week the situations involve the protection and oversight of the United States intelligence apparatus involving a virtual menage a trois consisting of the government, Edward Snowden and an anonymous whistleblower.

On Tuesday, the United States government filed a civil lawsuit against Snowden, a former CIA employee and NSA contractor, to prevent him from profiting from sales of his memoir Permanent Record.  Assistant Attorney General Jody Hunt issued the following statement upon filing the government’s claim.

Edward Snowden has violated an obligation he undertook to the United States when he signed agreements as part of his employment by the CIA and as an NSA contractor.

The United States’ ability to protect sensitive national security information depends on employees’ and contractors’ compliance with their non-disclosure agreements, including their pre-publication review obligations.

And she is correct as to the specifics of non-disclosure and pre-publication review.  According to a policy memorandum provided by the National Security Agency (NSA) and the Central Security Service (CSS):

Pre-publication review is the process to determine that information proposed for public release contains no protected information and is consistent with established NSA/CSS, DOD, and IC policies.

Detailed procedures for review are provided in NCA/CSS Policy 1-30, including submission of the following information:

• Title of Document
• Document for review in its FULL and FINAL form.  (NSA/CSS emphasis)
• Intended audience or publication venue.
• Written approval for name use from all former and present NSA/CSS affiliates named in the material, if applicable.

So, why isn’t the title of today’s post simply U.S. v. Snowden.  Because the Intelligence Community Protection Act of 1998 and the Whistleblower Protection Act of 2012, which amend both the Central Intelligence Act of 1949 and the Inspector General Act of 1978, obligates those same employees and contractors “to report complaints or information to Congress about serious problems involving intelligence activities.”  And as we have been made aware this week, there are mandatory procedures for dealing with such complaints, as outlined on Wikipedia.

 An employee or contractor who intends to report to Congress a complaint or information of “urgent concern” involving an intelligence activity may report the complaint or information to the DOJ Office of the Inspector General. Within a 14-day period, the OIG must determine “whether the complaint or information appears credible,” and upon finding the information to be credible, thereafter transfer the information to the Attorney General who then submits the information to the House and Senate Intelligence Committees.

Without judging whether Snowden was rightfully concerned about overreach by the intelligence community related to the collection of data on U.S. citizens, he elected not to follow the procedures provided under the law.  The publication of Permanent Record reopens the debate whether he actually had a choice in the matter.  In March 7, 2014 testimony before the European Parliament, Snowden defended his actions.

I had reported these clearly problematic programs to more than 10 distinct officials, none of whom took any action to address them. As an employee of a private company rather than a direct employee of the U.S. government, I was not protected by U.S. whistleblower laws, and I would not have been protected from retaliation and legal sanction for revealing classified information about lawbreaking in accordance with the recommended process.

Not everyone agrees with Snowden’s interpretation of the whistleblower statutes and executive directives. Then chair of the Senate Select Committee on Intelligence Dianne Feinstein rejected Snowden’s contention stating, “I don’t look at this as being a whistleblower. I think it’s an act of treason.”

In an October 2015 interview on CNN, presidential candidate Hillary Clinton distinguished between Snowden’s concern about NSA programs and the method by which he raised the issue.

He broke the laws of the United States.  He could have gotten all of the protections of being a whistleblower. He could have raised all the issues that he has raised. And I think there would have been a positive response to that.

Legal experts suggest neither position is as clear-cut as one would hope.

Which brings me to John/Jane Doe, the third party in this hypothetical case.  Stories first in The Washington Post and then the New York Times and Wall Street Journal document the efforts of an anonymous member of the intelligence community to use the whistleblower statutes to raise his or her concerns Donald Trump took actions which may represent a threat to national security.  According to all three accounts, Doe followed the procedures provided by law, submitting a written complaint to Michael Atkinson, the inspector general in of the Office of the Director of National Intelligence.

Within the 14 days provided under the statute, Atkinson determined the complaint was credible and of “urgent concern,” a statutory classification related to national security, violation of oath or corruption.  Atkinson then forwarded the complaint to acting director of national intelligence Joseph Maguire, who by law “SHALL” forward the complaint to the House and Senate intelligence committees within seven days.  In an unprecedented action, Maguire conferred with the Department of Justice and White House legal counsel before refusing to comply with the mandated congressional submission.

Which brings us back to Edward Snowden.  Regardless of the language in the whistleblower statutes, Snowden had little faith he would be protected.  This concern is not unfounded.  According to the Office of the Director of National Intelligence, between 1990 and 2009, ten complaints were submitted to the respective inspector general of which four were found to be credible.  In three of these cases, the whistleblowers claimed they were subject to retaliation.  In 2006, acting inspector general at the Department of Defense Thomas Gimble testified before the House Committee on Government Reform, the 1998 act was “a misnomer.”  Michael German of the Brennan Center for Justice found the 1998 Act “provides a right to report internally but no remedy when that right is infringed.”

These deficiencies became the impetus for the 2012 legislation and President Obama’s subsequent executive directives.  Much of the ambiguity and inconsistencies in the whistleblower statutes have been addressed, and there is no question Maguire, DOJ and the White House are all failing to faithfully execute the law as required in their oaths of office.  Two days ago, Snowden told CBS News he is ready to return to the United States and defend his actions in court adding, “I’m not asking for a pass, What I’m asking for is a fair trial.”

Does a “fair trial” include calling Doe to the stand to testify about his/her experience which is evidence Snowden was correct his concerns might never have seen the light of day if he had followed the letter of the law?

For what it’s worth.
Dr. ESP

While the media keeps hoping for “breakout moments” in the Democratic presidential debates, what I have not seen (since I refuse to watch) is the highlights only confirm my belief debates serve little or no value in helping us understand how any aspirant to the Oval Office will behave once there.  I hate to keep repeating myself, but debating is not in the executive job description.

A better test is to give candidates an issue or an opportunity and ask them to come back in 24 hours with their 10 minute address to the nation what they would do and why.  Or set up “moot White House,”  which presents candidates with a series of facts, asks them to analyze the available information and recommend a course of action.  Does that sound familiar?  Students at any medical, law or business school in America would recognize this as the “case teaching method,” a derivative of Socratic learning.

A student’s grade is not dependent on “the right answer.”  There are always multiple courses of action, each with pros and cons.  The test is one of process.  How well have students based their choice on reliable information?  What data points have they questioned?  How have they used the information?  And, sometimes, where is the information insufficient to make a rational choice?  The doctor orders another test.  The lawyer says find more evidence.  The CEO calls for additional market research.

When it comes to process, there is one thing we know about the current White House occupant.  He has none.  He ignores intelligence and acquits Vladimir Putin of attacking the country’s electoral process.  He is flattered by a Saudi crown prince and chooses not to pursue the murder of a U.S. resident.  Name a West Bank settlement “Trump Heights” and he backs Benjamin Netanyahu’s election eve promise to annex Palestinian territory along the Jordan River Valley.

The last thing America needs is four more years of haphazard policy making based on flattery, deference to donors or playing to one’s base.  Yesterday, we learned Donald Trump does not have a monopoly on this careless and indiscriminate approach.

Welcome to Dr. ESP’s class in government policy making.  Today’s teaching case involves an op-ed in the New York Times which previewed a forthcoming book by two of its reporters about Supreme Court Justice Brett Kavanaugh.  In the article Sandra Garcia highlighted claims the FBI may have been restricted in pursuing leads of Kavanaugh’s alleged sexual misconduct in college including a previously unreported incident at Yale.  The following excerpt covers this latest allegation.

The authors also said they uncovered a second, previously unreported incident involving similar behavior by Mr. Kavanaugh at a different party in his freshman year.

The excerpt said that a classmate, Max Stier, who now runs a nonprofit organization in Washington, notified senators and the F.B.I. about what he had witnessed but that the bureau did not investigate.

The excerpt cites two unnamed officials who have communicated with Mr. Stier, who has declined to discuss the episode publicly. Justice Kavanaugh has declined to answer questions about it, according to the excerpt.

Not unexpectedly, Trump tweets in defense of Justice Kavanaugh.

He is an innocent man who has been treated HORRIBLY. Such lies about him. They want to scare him into turning Liberal!

You are a candidate for the Democratic nomination to oppose Trump in 2020.  How do you respond to this incident?

In less than 24 hours we find what several of the potential nominees thought was the prudent course of action.

Elizabeth Warren on Twitter:
Last year the Kavanaugh nomination was rammed through the Senate without a thorough examination of the allegations against him. Confirmation is not exoneration, and these newest revelations are disturbing. Like the man who appointed him, Kavanaugh should be impeached.

Beto O’Rourke:
Yesterday, we learned of another accusation against Brett Kavanaugh—one we didn’t find out about before he was confirmed because the Senate forced the F.B.I. to rush its investigation to save his nomination. We know he lied under oath. He should be impeached.

Julian Castro on Twitter:
It’s more clear than ever that Brett Kavanaugh lied under oath. He should be impeached and Congress should review the failure of the Department of Justice to properly investigate the matter.

Cory Booker on Twitter:
This new allegation and additional corroborating evidence adds to a long list of reasons why Brett Kavanaugh should not be a Supreme Court justice. I stand with survivors and countless other Americans in calling for impeachment proceedings to begin.

Kamala Harris on Twitter:
Brett Kavanaugh lied to the U.S. Senate and most importantly to the American people.  He must be impeached.

Bernie Sanders on Twitter:
The revelations today confirm what we already knew: During his hearing, Kavanaugh faced credible accusations and likely lied to Congress. I support any appropriate constitutional mechanism to hold him accountable.

Statement from Pete Buttigieg:
It’s appalling to learn that the GOP curtailed the FBI investigation.  This was a Senate confirmation hearing controlled by the Republican majority for a lifetime appointment to the Supreme Court.  The American people deserve to know who was involved in that and we must get answers fast as to why witnesses with key information were not interviewed.  Kavanaugh should resign and if he doesn’t, the House should impeach him.

In contrast,  Amy Klobuchar and Joe Biden express concern but advise caution in jumping to conclusions.   Both call for further investigation without demanding impeachment.

Amy Klobuchar on ABC’s “This Week”:
I strongly oppose him, based on his views on executive power which will continue to haunt our country, as well as how he behaved, including the allegations that we are hearing more about today. My concern here is that the process was a sham. I don’t think you can look at impeachment hearings without getting the documents … and the attorney general is shielding documents.

Statement Issued by Joe Biden:
This weekend’s report in the New York Times raises again profoundly troubling questions about the integrity of the confirmation process that put Brett Kavanaugh on the Supreme Court in the first place…We must follow the evidence to wherever it leads.  Doing this the right way is critically important in getting the truth and restoring the American people’s faith in their government.

Teaching cases are usually written about events in the past.  Therefore, they include an epilogue which covers what the principals did at the time and the impact of their actions.  While it is too early to assess the impact of the Times report or the reactions, we do have information which might have been helpful at the time statements were being issues.  Late Sunday, the Times issued the following Editor’s Note to the original article:

An earlier version of this article, which was adapted from a forthcoming book, did not include one element of the book’s account regarding an assertion by a Yale classmate that friends of Brett Kavanaugh pushed his penis into the hand of a female student at a drunken dorm party. The book reports that the female student declined to be interviewed and friends say that she does not recall the incident. That information has been added to the article.

Critics of the Times article also point out Max Stier, the original source of the new allegation was a member of the legal team who defended Bill Clinton during his impeachment while Kavanaugh was part of Kenneth Starr’s investigation of Whitewater.  Neither of these facts prove or disprove the new allegations against Kavanaugh.  But they are relevant.

Let’s go back to my classroom.  Of the seven “students” above who called for resignation or impeachment, I would have expected either Biden or Klobuchar to ask, “On what factual information in this case are you making that determination?”  If they responded, “The Times article,” the next question should be, “How do know that it’s accurate?  The alleged victim is named.  Do you know what she said about the incident?    Wouldn’t you want to know? Aren’t you concerned she is not quoted in the article?”  And, “Is the source unreliable or biased?”

Which brings me back to the title of today’s post.  We certainly do not need four more years of Trump.  Neither do we need his Democratic replacement to mimic his decision process.  Reaction to real-time situations, not debates, tell us how candidates will govern not just how they campaign.  That is not to say I equate any of the “Kavanaugh Impeachment Seven” with Donald Trump.  But on this day, in this situation, they failed the test.  And we cannot afford four more years of seat of one’s pants, base-pleasing policies and actions regardless of who sits behind the Resolute Desk.  This could be the “breakout moment” we did not get in the debates.

For what it’s worth.
Dr. ESP