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Analysis

A Conversation with Former DHS Official Who Resigned over Family Separation

(Illustration: CJ Ostrosky/POGO)

Scott Shuchart was, until this summer, a top official at the Department of Homeland Security’s (DHS) Office for Civil Rights and Civil Liberties (CRCL). He quit after he said high-level DHS officials ignored legal and policy concerns that CRCL raised regarding DHS’s separation of immigrant children from their parents after crossing the border. He wrote about this in a Washington Post Outlook piece, and appeared on 60 Minutes.

Given his vantage point as a recent insider, POGO asked him some questions about his former office, dissent within the federal government, and relationships between career employees and political leadership. Here’s our brief interview, conducted over email:

1. Can you explain the unique role your former office plays within DHS?

The DHS Office for Civil Rights and Civil Liberties (CRCL) is both a policy office and a form of internal oversight, located in the larger Office of the Secretary and Executive Management. It participates in some policy discussions, and investigates public complaints (as well as allegations it identifies itself from stakeholders, media reports, and intra-government reports), and makes policy recommendations; for the most part, it cannot require individual remedies.

It is similar in some respects to the Office of the Citizenship and Immigration Services Ombudsman, a smaller headquarters office that interfaces with the public and with USCIS [U.S. Citizenship and Immigration Services], and it works closely with the Privacy Office and the Office of the General Counsel, as well as conducting some coordination and deconfliction with the Office of the Inspector General. CRCL is unlike the inspector general in that it is not independent and, also unlike an inspector general, it can and does provides advice to the secretary and other DHS leadership. And it is unlike a general counsel’s office in that—although many CRCL staff are experienced attorneys—CRCL is not empowered to give legal advice.

2. After your office was initially cut out of, and later ignored on, the policy decision to separate families, you decided to resign. Can you talk about that decision? Did you think about other options?

I had been concerned for several months that CRCL was finding it difficult to play a meaningful role in a number of immigration policy decisions being advanced by the Administration with some civil rights dimensions. And I had been concerned for a couple of years that I had personally accomplished what I could in my role at CRCL and should be looking for ways to find more professional growth.

Democracy only works if we all play our part in it, which includes advocating for our own best factual and moral judgments.

Scott Shuchart, former DHS official

What was different, to me, about family separation was that it was a deliberate human rights violation that senior members of the Administration wanted to undertake—where the fact that it was harmful to its victims was not some byproduct that better government policy could minimize, but rather where doing harm was the point. Like use of military force, the idea of separating families was to use the fact of child trauma to change their parents’ behavior. I thought that was illegal (contrary to treaties and to the substantive due process prong of the Fifth Amendment), un-American, and seriously wrong. When I understood that CRCL was not institutionally strong enough to make any difference even in the face of such serious civil and human rights problems, I had to think very hard about whether it was a place that I should be spending any more of my life. After the family separation issue played out a little further, I came to feel that—while many people in CRCL do wonderful work, and absolutely should not feel ethically compelled to leave—that my job, working directly for the political leadership to set her [CRCL chief Cameron Quinn’s] agenda and implement her priorities, was not possible to do constitutionally in this Administration.

3. You were a career employee across two Administrations. Even if the political appointees don’t fully agree with career employees and vice versa, what does a healthy relationship between them look like?

I think a precondition for any healthy relationship is that political appointees need to be at least minimally qualified for their roles. The idea that management is management, and any loyal member of an Administration should be able to lead any bureaucracy within it because they all require the same goal setting, resource allocation, and workforce feedback is really a garbage idea. Doing civil rights law requires knowing something about civil rights law, doing immigration policy requires knowing something about immigration policy. It could not be clearer that John Kelly, for example, did not have the minimum level of basic education on the subjects DHS manages to lead the organization. So that’s the baseline condition.

Once you pass that hurdle, then the healthy relationship has to be a two-way street. Political leadership has to convey higher-level direction and priorities. Without a sense of urgency on some topic, public bureaucracies can fall off in productivity and become overly mired in process; leadership points their capabilities in the directions of necessary outcomes. But political leadership also has to be able to learn from the career workforce what the facts really are, what the challenges to accomplishing political objectives will really be, and—in my area at least—some realism about what is legally and constitutionally possible.

4. While the protections in law are different (virtually nonexistent for politicals), do you think the balance of obligations—namely between upholding the oath and carrying out an Administration's policies, assuming they are lawful—are any different for a political appointee than for a career civil servant?

Well, “assuming they are lawful” is doing a lot of the work in that question. I expect everyone has an ethical obligation, to themselves and their loved ones, not to waste their lives doing something that shouldn’t be done, even if it’s lawful. Beyond that, it seems to me that civil servants are there to serve the government, the public, and their agencies, and it’s appropriate for them to object to misallocation of resources or bad management that squanders the value or effectiveness of those agencies as institutions.

Political appointees do have an obligation to the public and to the Constitution, but also to the individual who appointed them, or perhaps to his or her party or political movement, and if that leader is dedicated to changing the law or abolishing the agency or something along those lines, it’s perfectly appropriate for the political officer to work, lawfully, in support of those political goals.

Now it’s interesting, because with limited exceptions, there hasn’t been an Administration for many decades whose principal policy goals are unconstitutional—maybe not since Andrew Johnson. [Editor’s note: in a follow-up email, Shuchart pointed to Johnson’s role in undermining Reconstruction in the wake of the Civil War]. So we don’t have a good sense, and good precedents, for what the ethical obligations are for political appointees in that kind of Administration. My personal view is that, apart from the Secretary of Defense or the National Security Advisor—positions like that whose vacancy would cause a day-to-day threat to the ability of the United States to exist—it is unethical for anyone to take a job in this Administration. But I know that’s not a widely held view.

5. What advice would you have for a career government employee who has profound moral concerns about a policy change that might be lawful?

Again, I had the advantage in the family-separation context of being pretty convinced that the core policy action we were trying to oppose was unlawful, and I am reassured (and relieved) that the courts that have since looked at the issue agree.

But my broader view is that democracy only works if we all play our part in it, which includes advocating for our own best factual and moral judgments. I would advise that hypothetical career employee to find the most effective way to advocate for his or her view, and to do some research on what, if any, protected whistleblowing he or she might be able to do.

6. What most concerns you about DHS these days? What should Congress do, and what issues should it anticipate in the next year?

Congress needs to undertake real oversight of what has happened in DHS in the last few years, everything from how the Muslim travel ban was instituted to how ICE has been able to yank money from other parts of the government to continually expand its detention capacity beyond what Congress has funded. And I would love to have some further scrutiny of particular things that have gone very badly, such as Custom and Border Protection’s inability to keep records on the parents and children it separated, though there’s also some litigation that should bring those facts out too.