Louis Michael Seidman (Georgetown University) has posted Powell’s Choice: The Law and Morality of Speech, Silence, and Resignation by High Government Officials on SSRN. Here is the abstract:
Suppose
that you were Colin Powell. Would you have resigned your office rather
than go before the United Nations Security Council to make the case for
the invasion of Iraq? Or would you have remained silent, swallowed your
doubts and, like a good soldier, obeyed your orders?This essay
argues that the resignation decision is hard and that words like
"duty," "ethics of public service," and "sound public policy" do not
capture all of the difficulty. Instead, the best defense of public
resignation conceptualizes it as a radically free act — a rebellion
against normal constraints, including the constraints of duty and
ethics.Part I of the essay sets out the plausible alternatives
open to public figures who find themselves in disagreement with the
policies pursued by the government. It also provides historical
examples of officials who have chosen each of the alternatives. Parts
II and III explore the case for each of the alternatives on
instrumental and non-instrumental grounds. Part IV defends the concept
of resignation as radical rupture. Part V discusses the role that law
and legal institutions play and should play with respect to
resignation.