Morning Ethics Warm-Up, 8/20/2018: Racing The Battery Edition

Good Morning!

Well, I found a Best Buy in Erie (above), so barring a new catastrophe, I should have a full charge this afternoon and can begin catching up. I am sorry about the inconvenience caused by this self-inflicted problem. I’m afraid to even look at the Ethics Alarms traffic: this August has already been historically bad in that respect. Thanks for your patience.

Fell free to write about any ethics issue that concerns and interests you here while my little netbook is charging, assuming it does. Right now I’m on fumes…

1. Does the New York Times have access to a legal ethicist? How about a competent lawyer? In this story, the Times suggests that the White House doesn’t know what the White House Counsel told Robert Mueller in November. That’s ridiculous, and, I submit, impossible.

By all accounts, Don McGahn, is a competent, experienced ethical lawyer, and like all competent, experienced ethical lawyers, he knows that it is his core duty, under Rule 1.4 of every set of legal ethics Rules in the nation, to…

(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

A lawyer doesn’t have to be asked to do this; a lawyer can never use the dodge, “Why didn’t I tell you? You never asked?” with his client. It is true, as the various talking heads kept repeating yesterday, that President Trump is not McGahn’s client, the Presidency is. However, in terms of the duty of communications for a lawyer with McGahn’s job, that distinction is meaningless. I’ve been trying to come up with any kind of statement or revelation that a White House Counsel could give to a Special Counsel that he would not be obligated to immediately reveal to the President.

I could write for hours on this topic, and eventually I will. But the starting point is that the Times is misleading the public. Again.

2. Fake news from the religious right: a Fox News headline today was “Little Girl Kissed By The Pope Is Cancer Free.” This is deceitful nonsense, implying that the Pope healed the girl by the touch of his Holy Lips.  She was undergoing cancer treatment. Her family credits the doctors there with the “miracle.” The Pope himself has not claimed that she was healed by his touch. “Little Girl Who Cheers For Boston Red Sox Is Cancer Free” would be a similar headline.

3. Does anyone believe this? I just heard John Brennan tell a camera that he would never make any partisan criticisms of President Trump, and that his increasingly over-the-top public attacks and accusations are just responsible observations of a former insider. Meanwhile, the many former intelligence officers that signed a letter of protest against the President’s pulling of Brennan’s security clearance have nicely made Trump’s point. Leave the government, lose security clearance. Employ an expedited procedure to restore it if an individual is again needed to assist or advise in a specific matter.  Prompted by picque or not (of course it was prompted by pique), the pulling of Brennan’s clearance shines light on an anomaly and an anachronism. The assumption once was that a former government employee or official would never seek to used special status to undermine the government. That was never true, but now it is obviously fanciful.

Pull them all.

Ugh! Battery flashing, and tags to enter!

 

39 thoughts on “Morning Ethics Warm-Up, 8/20/2018: Racing The Battery Edition

  1. 1. Any hint of any possibility of anything and any lie capable of creating the sense President Trump is incompetent and worthy of removal is all that is required. Pretty soon discerning birds will refuse to poop on it as it is unworthy.

    2. Accusing the Pope of being in any way associated with the religious right is also very misleading. Shame on Fox for a complete wrong association and misleading header.

    3. John Brennan is as mad as a hatter; or is that hater? Fairly interchangeable these political days. Hey John, make a note. If you’re part of a government law enforcement and intelligence cover up of their intentions to affect the outcome of an American Presidential election and blame it on a foreign power, you’re probably going to lose your clearance. Crazy, right?

  2. 3: I think the clearances should be removed more routinely, but that really is the decision of the POTUS. If the President or any of the former superiors have any suspicions he will behave badly, it MUST be removed. With every bit of very loud and public posturing he does that denies and confirms his unfitness to have the clearance, he confirms that removing it was the right decision.

    And really, what does he need it for? How does it add to his purpose in life or income? Does it give him an extra brownie in the cafeteria? Does he get some kind of thrill to still be in on secrets in the office chainlists? I think he probably just likes being in the know without having any of the responsibilities. Maybe he wants followups for his own memoirs to sell a million copies? I really can’t think of any other reason.

    Hiring the best blowhards who almost want to mess up for that brass ring to sell that bestseller is very counterproductive. This is where the President’s business practice of hiring and firing showboaters CANNOT work in the public sector. He must get either better people and/or an NDA for while he is still in office with teeth. More ethical people might be harder to find in Washington, but it would be simpler. You must have a core who are not self-advancing for the nitty-gritty. How many have been canned, usually for valid reasons, and proceeded to demonstrate why they should never have had the job in the first place?

    • I think he probably just likes being in the know without having any of the responsibilities.

      Anyone who shares classified clearance with someone who is not actively cleared for that information commits a felony. Anyone who receives that information may also have committed a crime (this is a bit murkier).

      Having a clearance by itself does not mean one can just learn anything. You must have a need to know, and permission for that topic/area/item.

      Of course, a loss of clearance may mean one cannot access information one worked with before losing the job: I am not sure about the rules around this. If that is true, then cutting off access means no fact checking when writing their books?

      • SW.

        I would bet most people will assume that someone who maintains a security clearance is in the know. Why else would news media outlets use them as panelists. It is the ultimate “appeal to authority” argument.

        The larger question is how are senior people with high level clearances able to translate their public sector experience into huge private sector salaries unless there is a belief by the employers that the person will be able to give them a competitive edge by virtue of their institutional knowledge that comes from having access to classified info.

    • Here’s the thing; when you leave government service, or even if you’re reassigned somewhere where your need-to-know doesn’t warrant a particular level of clearance, it’s merely allowed to expire. In all likelihood, his was going to expire in the near future anyway. Further, even with a TS/SCI clearance, you’re not allowed access to anything classified at that level or below unless you have a specific need to see it within the scope of your duties. His clearance wasn’t worth the paper it was written on anymore, because he no longer has a job that requires it. Even if it hadn’t expired yet, it’s worthless for anything, except maybe to put on a resume.

        • joed68 is correct on all counts. If you’re not currently working on a job that requires access to some form of classified information, you do not have access to that information, no matter your clearance status. This includes access to information you previous DID have access to, if you are no longer working in that same job.

          The only thing that having a clearance does for you is that it enables you to start immediately at a job that requires a clearance (and secondarily, even if you’re not cleared to a given level, there’s WAY less rigamarole involved in raising someone’s clearance level versus doing the investigation for someone who doesn’t have one at all).

          The thing that no one’s talking about here is that there’s a kind-of standard practice where anyone who’s had a clearance denied, or–worse–had it revoked for cause, will probably never be eligible for a security clearance again, barring some sort of VERY high-level intervention.

          So revoking a clearance is figuratively (and damn near literally) a way of saying “Get out. Don’t come back. You’ll never work here again.”

          –Dwayne

          • In Brennan’s case? Who has injected himself into an investigation and lied to Congress? “Get out” is completely appropriate. The larger point, that this is a stigma, is worth making. If such clearance is revoked routinely, then it won’t be a stigma for long.

    • “With every bit of very loud and public posturing he does that denies and confirms his unfitness to have the clearance, he confirms that removing it was the right decision.”

      How does “loud and public posturing” make him unfit for a clearance? Are you seriously saying that speaking out against the President means he might give secrets to the Chinese or Iranians or something?

      Revoking someone’s security clearance means they can’t take a job that requires one. Are you seriously saying that people who have spoken out against the President should be denied national security jobs? Would you apply this to someone who didn’t already have a clearance? Would you deny them a clearance because of their political views?

      • Political views are not grounds for denying or revoking a clearance, but anti-American views or views that support the overthrow of the U.S Government definitely can be.
        (I’m not intending to suggest that either of those apply to Brennan, just hoping to educate by answering the posed question.)

        –Dwayne

        • Yeah. There are a lot of established reasons for revoking clearances — felony convictions, illegal drug use, alcoholism, mental illness, adultery, financial problems, unreported contact with foreign nationals from unfriendly countries, near or actual breaches of security, and so on — none of which apply here, as far as as been made public.

          Actually, as is common with Trump, I don’t think it’s even clear what he means by revoking their clearance, or what method he’s using to do that, or what it means.

          • I don’t know… I think we’re asking the wrong question here….

            I don’t understand why clearance isn’t automatically revoked the moment you no longer work in a position you would need that clearance to work at. As opposed to asking “Why should someone have their clearance revoked?” I think the healthier question is “Why should someone have clearance?”

            Can anyone answer that? Why does John Brennan need clearance? Why should he have clearance?

            I get that the optics are that he’s been singled out, and anyone singled out and picked on by Trump is the next coming of Jesus to some people, but as opposed to being outraged that Brennan’s clearance is being revoked, I think we should be outraged that so many people with no legitimate reason to have clearance have clearance.

            • Well the simple reason is cost. There’s a significant amount of time and manpower involved in doing the investigation, so why repeat all of that unnecessarily? We determined that you were sufficiently trustworthy a month ago, so how likely is it that we’d decide that you no longer are a month later?

              As explained above, your ability to access the classified data IS automatically revoked the moment you no longer work in a position you would need that clearance to work at. (I have personally locked down and disabled many a computer account for people who’ve resigned. The same happens for ID cards that allow you to enter buildings. It’s routine and expected.)

              Retaining the clearance afterward just means that you can get another job that requires a clearance without going through the whole investigation again from scratch because it would be an obvious waste.

              Even then, it’s not forever. Every few years (typically 10) you do walk through the investigation process again to renew it (although a renewal is more streamlined than a new investigation and inherently expects that you will get renewed).

              If you don’t actually do any classified work for “long enough” (typically 2 years) then it goes inactive on that basis alone and would need to be renewed. If you take a break longer than 10 years, you’re back to square-one as if you’d never had a clearance.

              –Dwayne

      • “Are you seriously saying that people who have spoken out against the President should be denied national security jobs?”

        Frankly, yes. I think we all need to take a step back and ask a basic question: Are the leaks being disseminated to the press a good thing or a bad thing, regardless of the president in office? I think the answer is that it’s bad, and following that… For the last two years running, there’s been an unprecedented amount of classified information being disseminated to the press, seeming to be done with the intent of hurting the presidency. While hurting the presidency was the primary aim, those leaks have the secondary effect of harming America at large, if only in some cases by spoiling people’s perception of the competence of organizations ostensibly able to keep a secret.

        The bad actors in these offices have spoiled the game for everyone else, having a job handling classified information is the definition of something that is a privilege, not a right… And I don’t think anyone can really justify keeping those people on.

        “Would you apply this to someone who didn’t already have a clearance?”

        Definitely.

        “Would you deny them a clearance because of their political views?”

        Absolutely. I’ll go so far as to say that in order to ask that question, you probably haven’t thought very hard about it. The people who get clearance have to go through a process to get clearance, and part of that process will try to control against certain political views. I doubt very much that someone who thought that Israel doesn’t have a right to exist, for instance, would be allowed to work on anything they might be able to touch a file on Israel from with a ten foot pole, if they could even be hired at all. Is opposition to the President as important as believing an allied Nation has the right to exist? No, obviously… But it’s not so far an idea as you might think.

        • “Would you deny them a clearance because of their political views?”

          Absolutely. When I had Top Secret, having a roommate who was a Communist Party member could get that clearance revoked. If I was a socialist or an anarchist I got no clearance. Politics matter when it comes to national security.

          Heck, they made us ‘donate’ blood almost every month to check for HIV, on the premise that it made us susceptible to blackmail.

        • As a more concrete example, the DEA explicit asks you if you support the mission of the DEA to enforce federal drug laws . . . and looks more closely at whether or not you have a history of illegal drug use (versus, say, the Defense Department).

          If you say (or they find out through the investigation process) that you support drug legalization, then you don’t get cleared to work at DEA.

          If you have ANY history of illegal drug use*, then you don’t get cleared to work at DEA.

          –Dwayne

          * Last I spoke to someone about it, which was 10+ years ago now, the only exception to their otherwise zero-tolerance policy was one-time use of marijuana from “a long time ago”, however that gets defined–but no recent or repeated use.

      • <>

        No, loud and public posturing after losing a position is proof they do not know how to be discreet. The business of people with high security clearance is not ONLY to keep it secret, but ALSO not draw attention to the fact they have those secrets. Ideally, they would get the clearance, do their job until they quit, until the position is lost from their actions, until there’s a changing of the guards. This is about understanding anf honoring what secret means, and it doesn’t involve a public circus.

        <>

        Keeping your lips zipped IS the job. Speaking out this publically pretty much put a stake in getting rehired. This should not be a shock. I’ve weighed how much to speak out after every job I left, and I returned to two when times were rough. Career advice services always have advised NOT to vent anything about the last position, it’s a no win. You may feel better or more righteous, but it makes you look bad. And these were not top secret jobs where the stakes are higher.

        I don’t think this is as much partisan as you think, it’s about demonstrating trustworthiness. Regardless of my opinion of Mr Trump, many, many other people work and other people’s lives depend on secrets. Yapping, and increasing the profiles of where those secrets are/were hurts those other people more than Mr Trump, and that is not the business of justice. Loyalty should be more to the country and government, not blindly for or against whoever has the top spot at this time.

  3. I didn’t get to keep my security clearance when I left the Navy (not that it was much, anyway, certainly not Top Secret). As far as I know, most people with a clearance who separate service with the government lose it.

    Why not Brennan? And furthermore, it is my understanding that at the top levels, everything is need-to-know, and regardless of clearance, everyone who gets information has to be cleared to receive it. Anyone with a clearance who no longer works for the government would seem to be a security risk that has no reasonable justification.

    The only benefit I can see in retaining security clearance is if you go to work for a government contractor where you are working on a project that requires the clearance. Brennan manifestly does not work in such a capacity. So what is a viable argument for him keeping it, I wonder?

    I can’t think of a single one.

    • I believe it is being used to suggest that he has inside knowledge and thus a credible source. Why else would CNN and MSNBC give him such a large platform. It is the appeal to authority rationale. I doubt if his appearances are uncompensated.

      • Well, if he has inside knowledge he didn’t take with him when he left the government, he shouldn’t have, should he? After all, he can’t possibly have a “need to know.” And if the CIA thinks he has a “need to know” information because he can use it to talk authoritatively on matters they want him to talk about, that’s a real problem for both information security and essential proof of the Deep State, not to mention illegal as hell.

        So if his clearance gives him credibility, assuming he isn’t receiving illegal classified information without the appropriate need to know, then whatever credibility created by the clearance is a fiction. Finally, why would a private person engaged in political punditry ever be cleared to see classified documents? What US interest could that possibly serve?

        None that I can see.

        Logically, it makes no sense for anyone not going immediately to work for or as a government contractor where a security clearance is required to retain their clearance after they separate service. I get that “this is the way it’s always been done” for an elite few, but it’s way past time for that to change.

    • You probably only sort-of lost your clearance when you left the Navy. To get that clearance, you had to pass a Personnel Security Investigation (or whatever the Navy version is called), after which your clearance became “active” to give you access to Navy classified information. When you left, you lost your clearance for Navy classified materials, but nothing changes the fact that you passed your PSI, so your clearance was no longer “active” but it was still “current.” If you took another job soon enough it would become active right away without another lengthy investigation. Once your PSI was 5 to 10 years in the past, your clearance would be said to be “expired.” If they got information that might change your eligibility, they might do a superseding investigation that could actively revoke your clearance if they found something bad.

      Guys like Brennan or Comey are probably still current, and I’ve been assuming that what Trump is talking about is revoking their clearance so it cannot become active. But it also sounds like some people at that level are kept active so they can be consulted about agency matters for a while after leaving. I would assume there’s some formal contracting relationship for that, and maybe Trump is trying to break that instead. Reports have not been clear, and I’m not sure Trump is clear on what he meant either.

      • We had an NAC (National Agency Check) for confidential and secret, then a background investigation by DIS (at that time, at least) for TS.

      • If there is a formal contracting relationship, that would be one thing, and I would say that “formal” must mean “compensated.” I would agree that Trump should not and maybe legally cannot terminate a security clearance that is required as part of a government contracting relationship without due process of law.

        Other than that, if the clearance is merely current, there would be no need to terminate it. I don’t consider a “current” clearance an actual clearance, since it would not enable you to receive, even theoretically, classified information without further government action. I was aware that my security clearance, for a period of time, was current, but I consider an inactive clearance no clearance for the purposes of this discussion, since the practical effect is virtually identical.

        So for the sake of this debate, I think reasonably that Brennan’s security clearance had to be “active” in order to be meaningfully revoked.

        • The reports on this have been maddeningly unclear about exactly what Trump is revoking. I’ve been assuming that Trump is revoking an active clearance. But in theory that would allow an agency to simply re-activate his clearance to work with him. However, knowing that the President had revoked someone’s clearance would likely discourage (or even legally prevent) any agency from re-activating it, which is effectively the same thing as revoking its current status and invalidating the investigation.

  4. Complete non-sequitur and the kind of thing that probably no one on here would know or even remotely care about: videogames!

    I’m going to start using a new saying: “Get Woke, Go Broke.” Other people have said it for a while, but I can’t think of a better example of the saying than what’s happened this last month or so, and has led to some lasting consequences, finally cementing in my mind that there might be something to it. See, I’d always assumed that there were financial consequences to pissing off your fanbase…. But gamers seem designed to be unable to do augh but fork over money to game developers who are increasingly more and more predatory on their wallets, and less and less empathetic to them as people.

    The case in question was Battlefield 5. Back in May, EA released this trailer for the game:

    Now, one might notice if they were to go to the link and scroll a little bit down, that the trailer has significantly more dislikes than likes, currently 451k to 344k. People were… concerned…. I think is probably overly generous, we’re talking about gamers, who generally function like exposed raw nerves… Call a spade a spade, they didn’t like it. “gender fluid mouth breathers in Sweden crapping out a revisionist history SJW game shitting on everything people like my grandpa fought for.” Remarked one. Generally, the people who cared about realism focused there. They thought the immersion of playing a WW2 first person shooter was broken by having female characters in the game.

    This created more controversy than I think EA signed up for, with the usual suspects in “gaming journalism” (they deserve those quotation marks) releasing tripe like this:

    (link going down below so as not to tie comment up)

    Gamers have failed history, you see. There WERE women fighting WW2, you see. This was a stupid defense of the game. If the game was meant to be immersive, and realistic, one might have issues with the robotic prosthetic arm (and many people did) or the ability to kneel on a camel moving the same speed as the tank that you are actively pouring fire over from your handy dandy flamethrower. The correct thing to do would be to point out that these games always had some amount of flair built into them, and the addition of women didn’t effect gameplay.

    The game’s lead developer, however, could not but help himself. he clarified that EA had made the game that EA had wanted to make, and if the gamers didn’t like it, they shouldn’t buy his game… Well, get woke, go broke. Pre-orders have tanked, initial sales were soft, and the lead developer was shitcanned in disgrace. Perhaps giving gamers permission not to buy the game was a bridge to far.

    That’s not to say that there weren’t other issues. Despite retaining most of the development staff, this was the first Battlefield game published under EA’s banner, and EA is still in hot water, both from the fanbase and legally, over their online casino simulato… I mean, Star Wars II’s lootbox scandal. There’s also how Battlefield came out a week after one of their major competitors, and for people that only had the finances to buy one of the other FPS, chances are that the gamers would buy the one that came out first. In fact, there were enough issues with the franchise that even I, loving the narrative of Get Woke, Go Broke, can’t be entirely certain that the intransigence of the developer was the leading contributor to his product’s demise… I just realise that it contributed, and my bias inflates it.

    Regardless, I do know that the idea that gamers as a whole are misogynists who want to keep women out of games is facially absurd. Regardless of how hard Battlefield V tanks, pun intended, Horizon: Zero Dawn, and Tomb Raider were two of the most successful product of 2017.

    Gamers don’t mind women in games, they might mind historical inaccuracies in games that are ostensibly WW2 reenactments, they’ve started to wake up on predatory marketing practises, they’re impatient, and they don’t take particularly kindly to being told to fuck off.

    • Took the plunge and bought Oculus Rift. WOW !! Was flying my AV-8B Harrier in DCS, and I truly felt like I was in the cockpit of that plane, flying. I now fully understand why they say you can never go back to a 2D screen after you experience this!

      • Sadly, for some reason, 3D games give me motion sickness. I’ve heard that’s common, and it’s weird that when I was younger, I never experienced motion sickness. Alas, the ravages of age.

        Therefore, I stick to 4x and RTS games.

    • Get woke, go broke is sweeping through fandoms right now, so it’s not just in video gaming. EA used to do the richest plot, subplots and supporting characters in gaming, but they had got woke in DA2 and the supporting characters lost the quirks that earlier games had and the PC didn’t appeal enough to even install the next game. The larger full-scale revolt came from the genocide and terrible ending to ME3 which I missed. Every EA plot based game i read since then keeps getting more woke. I don’t care and get my games from other companies.

      But I have heard the ‘get woke, go broke’ on at least three different bloggers in response to The Last Jedi and Solo. The stink is so full of betrayal that The Force Awakens is suffering from the cognitive dissonance because the SJW stuff was seeded there. Disney has responding to tanking blue-ray and Solo box by trotting out an extra half-season of a prequel trilogy series as a sop. That won’t be enough if JJAbrams’ episode nine stays woke. (as a note the bloggers include women, Hispanic immigrant, blacks, and even white/business guys, but the opinions are consistent that they reject the SJW slant)

      There’s also rumbling in the Star Trek fandom, regarding JJAbrams movie reboot and the really woke looking Discovery where the Klingons look suspiciously religiously conservative. (I’m not paying a monthly fee for unethical and woke) It just hasn’t reached the flashover point of open revolt that Star Wars fandom has reached.

      (And as a female steeped in SF/F for over forty years, male heroes are fine. I write mostly female leads, but I also write males… that’s what creativity is about. The hero’s journey doesn’t usually include gender-specific activity or even sex much of the time. There’s plenty of female creators putting out good stuff, and more and better female characters compared to even thirty years ago. Like the cringe-worthy “Police Woman’ TV show, these changes take time. Forcing change too fast just makes just bad, bad creations. I’ve been disappointed because I shelved a finished draft of a high fantasy Sparticus type novel, possibly for good. It’s not worth the effort to placate the knee-jerk reactions to slaves in a war story. I haver other stories that would market better. I prefer an all male cast if it’s a good story and/or it fits the setting. Maybe they are obsessing about the wrong things if they focus on the gender instead of the hero/heroine’s journey.)

  5. If one high-level officials lose their security clearances shortly after leaving office as many of the comments above suggest, how was Sandy Berger able to access and steal classified documents? See https://www.realclearpolitics.com/articles/2007/01/sandy_berger_what_did_he_take.html. The story notes that Berger was acting as an official representative of former President Clinton, so maybe she held a position that allowed him a security clearance, but my assumption was that he retained it based on his previous office under the Clinton Administration.

  6. *Sorry for the typos above. I got locked out of editing the comment and rather than rewrite the whole thing decided just to post it.

  7. I am just going to be honest here and admit that I have had one security clearance or another since I was age 17. I am glad I read this thread, because it either taught me anew (believe it or not), or refreshed what I had learned but forgotten, many details about how clearances and access work. So maybe it’s time I voluntarily gave up my privileged access; I don’t know; maybe the history books would say I’m a hero, if I “took a hit for the sake of righting historical wrongs” by self-diminishing my white privilege.

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