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Trump Order on Refugees Is ‘Amateur Hour’: Konyndyk

The whirlwind of executive orders from the new administration risks alienating the bureaucrats needed to implement them. Former USAID senior official Jeremy Konyndyk says U.S. government bureaucracy is now entering uncharted territory.

Written by Daniel Howden Published on Read time Approx. 6 minutes
Protesters take part in a rally to oppose President Donald Trump's executive orders. AP/Elaine Thompson

The transition between U.S. administrations is always a time of upheaval. Jeremy Konyndyk has experienced this early in his career at the State Department and as a political appointee at USAID, which came to an end when Trump came to power.

After a confrontational and chaotic start to the Trump presidency that has featured a percussive series of executive orders, there is renewed interest in how U.S. government bureaucracy works.

Over the last three years, in his role as director of the Office of U.S. Foreign Disaster Assistance (OFDA), part of USAID, Konyndyk led a team of 600 humanitarian professionals through complex emergencies in Syria, Iraq, Yemen and South Sudan, as well as disasters such as the Haiti earthquake and the Ebola crisis.

He has emerged as a critic of the new administration’s early approach to wielding its authority and is among those concerned over the implications of their actions. Konyndyk was told on entering the State Department, while working at the Bureau of Population, Refugees and Migration, that all bureaucrats “can be asked to do things they disagree with” but it is “part of the mentality and culture of civil service and government to accept this.”

He is concerned that the current upheaval should not undermine this “important strength of our government and country.”

Refugees Deeply: The Trump administration has taken office in a blizzard of executive orders, some of which mark an abrupt change in policy such as the travel bans and freeze on the refugee program. How unusual is this?

Jeremy Konyndyk: It is the manner in which this has been done that is unusual. A new administration coming in and quite quickly issuing executive orders is not so unusual, especially when it’s a transition from one party to another. It can involve issues where the two parties disagree such as on U.S. support for international organizations that support abortion – known as the Mexico City policy or “global gag order,” which Obama rescinded on taking office in 2009. But what is unprecedented and disconcerting with the new administration is the disregard for the basic processes of governance and legal consultation. This is something we have not previously seen. With the refugees and immigration executive order, there are several parts that likely would not survive a good-faith review by the agencies involved. This is why every court that has been asked to rule on it has slapped an injunction down and the (now former) acting attorney general deemed it indefensible.

Refugees Deeply: What role should process and bureaucracy play in policy-making ordinarily and why is this important?

Konyndyk: The process that produced President Obama’s executive order last fall on reporting of civilian casualties is a good example. This was worked on by professional staff at the White House for months. My former agency, USAID, was among those that had an opportunity to review and input on this. The normal stages for this to go from an initial idea to a signed EO are pretty extensive. The relevant agencies engage with the White House at a senior level to develop the content. This then gets a legal review by lawyers for the White House and relevant agencies, as well as the Justice Department. Once the draft has been developed, it may go to the NSC Principals Committee (the Cabinet-level national security officials) for final review as well. Once it goes through all that there is the roll-out strategy, with consultations on the Hill, and often a pre-brief to journalists and NGOs.

It is this intricate for a reason. Bureaucrats’ input is important, not sexy. It helps a White House to avoid launching a policy that may have legal problems, may contradict other existing policies or could have implementation land mines that the White House wouldn’t realize on their own. Consulting these bureaucrats is also important because it is these bureaucrats who will implement and execute the policy. These are the people who know the practicalities, and their perspective can be really helpful to achieving a good outcome.

Refugees Deeply: You’ve described some of the executive orders and early actions of the new administration as “amateur hour.” Can you explain what you mean by this?

Konyndyk: You need a strong and inclusive process, otherwise you get scenes like we had this past weekend. You risk an absolute mess. This is what prompted my repeated comments on this being “amateur hour.” It is governance 101: consult the bureaucracy, they know the system; the career people are smart and competent. They are able to see practical implications better than political appointees may be. That sort of experience at a practical level is extremely important. And it is ultimately a political risk to the White House if they don’t run a better process – imagine what would happen if health care reform is handled in the same way.

Refugees Deeply: How much time and guidance do agencies need to implement policy dictated by executive orders? What are the potential consequences of them not getting it?

Konyndyk: If the executive order is an urgent policy change then it can be expedited. This isn’t normally done unless there’s a forcing event that’s pushing a deadline. It could have been done in a matter of weeks or perhaps faster – agencies could have pulled it together in a matter of days if really pressed. They need to be given the ability to review its contents and issue implementation guidelines to their teams. The executive order on immigration was hugely confusing in how it was to be applied.

Refugees Deeply: In the State Department and elsewhere there are permanent civil servants working for or alongside political appointees. How important is it for these bureaucrats to buy into the policy-making from the executive?

Konyndyk: Consultation is so important. When I worked at the State Department as a civil servant (nonpolitical), there were highly controversial decisions during the Bush presidency. Some within the State Department had mixed feelings about that, but ultimately the career service in the government strongly recognize their job isn’t to dictate policy but to implement it. The counterweight is that their commitment and their oath is to the Constitution, not to the president. A few people may resign over policy disagreements – as some did under Bush related to the Iraq war. But, by and large, the career government service will go along with things they may individually disagree with politically – that comes with the territory.

But they will not generally be willing to do something they believe violates the Constitution. So what we’re now seeing is quite different and it’s hard to know how it will play out. There is talk that a dissent channel cable at the State Department will be signed by as many as 1,000 diplomats. The cable on Obama’s Syria policy was signed by around 50. If over 1,000 diplomats sign then it would be unprecedented. After all these are the people you need executing policy. I can speak from my own experience – both inside and outside of government – that a team will be more effective if it understands the bigger picture of what it is being tasked to do. A team might not agree with the policy direction, but if they understand their role and have been consulted they will work more effectively.

Refugees Deeply: Is there a situation in which you can you get bureaucratic pushback and, if so, what does it look like?

Konyndyk: There are very few precedents to look to, at least on this scale. When these executive orders go to the departments’ lawyers I honestly don’t know if they will find them legal, or what legal guidance will be given on implementation. And of course, there are court injunctions in place on pieces of the order right now; if career bureaucrats get advice from the White House to ignore that, then we’re in uncharted waters – do they follow the Executive Branch or the Judicial Branch? Either way, it’s messy, causes confusion and slows things down. Career staff also have recourse to the independent Inspectors General in each agency, which are tasked with investigating abuse, waste and legal violations in the agencies and are independent from politics. And of course, career staff can raise concerns to Congress: Yesterday, the House Democrats issued a strong statement on protection of constructive dissent and opened a website for whistleblowers.

But, at the end of the day, I would just emphasize that the administration needs these people, even if they disagree with policy at a personal level. You can fire the handful of political appointees or not hold them over (from the previous administration) but it’s much harder to fire the 1,000 career civil and foreign servants who endorsed the dissent channel cable. These folks are patriots, and it is in the administration’s interest to engage with and listen to them.

This interview was conducted by phone and email and has been edited for length and clarity.

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