Michael J. Glennon / The Boston Globe & Jordan Michael Smith / The Boston Globe – 2016-12-06 23:13:21
http://www.bostonglobe.com/ideas/2016/12/01/trump-looming-showdown-with-double-government/NMiLbylkAlSOWXC9708IAJ/story.html
If Trump were elected, “I think we would be facing a civil military crisis, the like of which we’ve not seen in this country before.”
— Retired Marine General John Allen
Trump’s Looming Showdown with the ‘Secret Government’
Michael J. Glennon / The Boston Globe
(December 1, 2016) — Many incoming presidents learn quickly that the managers of the military, intelligence, and law enforcement departments of our government are largely self-governing, virtually immune from democratic accountability and the checks and balances described in civics books.
They make up a second government: The one we elect provides public frontage, but the concealed, unelected one actually defines and manages the nation’s security.
Two years ago that’s what I told the Globe when I was asked why programs such as mass surveillance, drone strikes, whistle-blower prosecutions, and unchecked war-making remained virtually unchanged from the Bush administration to the Obama administration.
The questions we face now are: Will double government have the same ability to check the power of the Trump administration? And can Americans expect President Trump to maintain the national security policies of his predecessors?
The one essential condition for double government to function effectively is that the elected and concealed institutions present a united front. Harmony between the two institutions, at least in the eyes of the public, is vital.
Trump, unlike his predecessors, has openly broken with the security directorate. Moreover, most of the program he’s espoused entails ramping up rather than scaling back security, which the bureaucracy has historically embraced.
All modern presidents have had an abiding incentive to remain in sync with the security managers, as have Congress and the courts, for a simple reason. No president, senator, or judge has wanted to confront the “if only” argument: “If only you had heeded the advice of the security experts, this devastating attack would not have occurred.” Better safe than sorry; safe means deferring to the security experts.
In addition to providing political cover, the appearance of public rapport invests double government with stability. Open feuding would unveil the power of the back-stage directorate, discrediting both institutions and causing the whole structure to “fall to earth.” That was the prediction of Walter Bagehot, the 19th-century English constitutional theorist who originated the concept of double government.
Trump, however, is unenthralled by experts — he wouldn’t be moving into the White House otherwise — so he has been indifferent to the effects of an open rupture with the security directorate. Either he doesn’t appreciate the need for legitimizing public harmony, or he’s decided to take on the whole bifurcated system and replace it with the single, unitary executive that the Constitution originally envisioned.
Trump’s response to former NSA and CIA director Michael Hayden may have been predictive. Hayden said that, if given an order to kill families of suspected terrorists, “the American armed forces would refuse to act.” “They won’t refuse,” Trump replied. “They’re not going to refuse me. Believe me — if I say do it, they’re gonna do it.”
Hayden later dug in his heels. If Trump wants to resume waterboarding, Trump can “get his own damn bucket,” Hayden said. He called Trump a “useful fool” of the Russian government, “manipulated by Moscow, secretly held in contempt.” But the breach between Trump and Hayden is the least of it.
A gaping public rift has now developed between Trump and the national security establishment. An open letter from 122 Republican national security experts called Trump “fundamentally dishonest” and “utterly unfitted to the office.” Numerous current and former security officials have vowed they will never work for Trump or will openly defy presidential orders.
Trump, true to form, has counterattacked, disparaging the experts’ expertise. When the intelligence community concluded that Russia had hacked the Democratic National Committee and then disseminated purloined e-mails, Trump dismissed their assessment as unreliable.
“Our country has no idea,” he said. “I don’t think anybody knows it was Russia that broke into the DNC.” The military is unable to defeat ISIS, Trump proclaimed, because the “generals have been reduced to rubble.” “They have been reduced to a point where it’s embarrassing to our country,” he said, indicating he might fire a few. Retired Marine general John Allen summed things up: If Trump were elected, Allen said, “I think we would be facing a civil military crisis, the like of which we’ve not seen in this country before.”
Contrast this unprecedented discord with the image of harmony projected by earlier presidents. Barack Obama resisted the managers’ push for a large-scale troop buildup in Afghanistan — but facing continuing pressure, he then introduced the negotiated compromise as his own.
Seeming to be taken by surprise at the Edward Snowden revelations, Obama later embraced NSA mass surveillance as his own program.
The 2014 Senate torture report said that President George W. Bush was not briefed on waterboarding when it began — which was confirmed by the CIA’s General Counsel — but Bush said that, no, he had personally approved it.
President Bill Clinton proposed ending the ban on gays in the military — and then presented “Don’t Ask, Don’t Tell” as his own policy.
After the Bay of Pigs disaster, President John F. Kennedy privately cursed the CIA for enticing him into it and said he wanted to “splinter the CIA into a thousand pieces and scatter it into the winds” — only to allow, in a public press conference, that he was the responsible decision-maker.
Why the incentive to maintain public harmony? In short, to sustain legitimacy. Presidents must appear to be the decider to maintain public deference. If the curtain were pulled back and the security managers were revealed to exercise extravagant power, presidential credibility would collapse.
And so would that of the managers: With no electoral connection, their legitimacy derives from that of the president. Were a president to appear as presider rather than decider, compliance with presidential directives would be undermined. Legitimacy, in a system of double government, depends upon mutual cooperation to mask the two layers.
But wittingly or unwittingly, Trump has not bought into the duality. And given his popular base of support, he’ll have little incentive to do so.
Unlike Obama and earlier presidents, Trump has made a public show of disdaining experts. Trump presents himself as his own expert (“I know more about ISIS than the generals do, believe me”) with no need to pour over background briefings or policy papers written by bean-counters from the swamp he’s been elected to drain.
Trump not only has little to lose by crossing swords with Washington’s security glitterati — he fortifies support from those who put him into office by publicly taking on the Beltway power elite.
It’s possible, of course, that Trump could back off, become “presidential,” and join the long list of predecessors who made public peace with the security directorate. If Trump chooses that course, the substance of his security policies will differ little from Obama’s.
But it’s also possible that, loyal to his base and true to his seeming instincts, President Trump will remain as confrontational toward the security managers as he was as a candidate. What would a prolonged assault on the authority of expert insiders mean for Trump’s security policies?
It depends on whether security managers see the particular measure as raising or lowering the level of protection.
Trump would get considerable support for measures they see as beefing up security. The security managers are in the business of selling protection. They operate in an incentive structure where threat inflation and overprotection are rewarded, not penalized. When a president wants more rather than less protection, they are delighted to provide it.
With toothless congressional overseers and spineless judges manning the watchtowers, the likely upshot is therefore bureaucratic deference to more drone strikes and cyberattacks, tighter mass surveillance, weakened cellphone encryption, stepped up FBI investigations, and, yes, a resumption of torture.
Following release of the Senate torture report, CIA Director John Brennan was asked whether the CIA could ever resume those practices. In a rare moment of candor, he replied: “I defer to the policy makers in future times.” Numerous officials who ran the CIA’s torture program still work for the agency. Not one has been prosecuted.
Any efforts by Trump to scale back protection would encounter opposition. Into this category fall the nuclear nonproliferation regime, sanctions against Russia, and the NATO, Japan, and South Korea security alliances. Security programs are “sticky down” — much harder to cut back than to maintain or expand.
Efforts by Trump to ratchet down measures that the security managers have long nurtured would thus meet not only the usual bureaucratic slows but also resignations and occasional outright defiance.
Would such tactics bring Trump to heel?
Not likely. Resignation in protest is a time-honored way of registering dissent within the bounds of the system. Elliot Richardson and William Ruckelshaus resigned rather than follow President Nixon’s order to fire the Watergate special prosecutor, Archibald Cox. However, very few resignations have occurred in response to perceived governmental wrongdoing, particularly within the military.
The cost in professional ostracism, economic hardship, and upended family life is too high for most to endure. And the payoff is typically slim. Willing replacements normally are plentiful, eager to get promoted, pick up and carry out orders where the dissenter left off. Richardson, Ruckelshaus, and Cox were distinguished, courageous public servants. Cox still got fired.
Similarly, direct disobedience could be dramatic — but it’s hard to see how it could work. Their functional autonomy notwithstanding, top military, intelligence, and law enforcement officials do serve at the pleasure of the president. An official who disobeyed a direct order from the president would be fired and replaced with someone who would obey.
Most importantly, in confronting bureaucratic insubordination, Trump would have a strong hand to play. Whether he realizes it or not, he would be launching a de facto assault on double government — with undertones of constitutional revivalism.
Unlike Congress, the courts, and the presidency, the national security bureaucracy is not, after all, part of the constitutional system of checks and balances. Federal departments and agencies were never intended to check the elected officials who created them. Quite the opposite: Power was always believed to be delegated to the bureaucracy, not by it.
Trump’s public face-off with the security directorate is, in sum, a game-changer. Bagehot did not explain what happens when open discord causes double government to fall to earth. We may be about to find out.
Michael J. Glennon is a law professor at the Fletcher School of Law and Diplomacy, Tufts University. This article is adapted from the paperback edition of his book, National Security and Double Government.
Vote All You Want. The Secret Government Won’t Change
Jordan Michael Smith / The Boston Globe
(October 19, 2014) — The voters who put Barack Obama in office expected some big changes. From the NSA’s warrantless wiretapping to Guantanamo Bay to the Patriot Act, candidate Obama was a defender of civil liberties and privacy, promising a dramatically different approach from his predecessor.
But six years into his administration, the Obama version of national security looks almost indistinguishable from the one he inherited. Guantanamo Bay remains open. The NSA has, if anything, become more aggressive in monitoring Americans. Drone strikes have escalated. Most recently it was reported that the same president who won a Nobel Prize in part for promoting nuclear disarmament is spending up to $1 trillion modernizing and revitalizing America’s nuclear weapons.
Why did the face in the Oval Office change but the policies remain the same? Critics tend to focus on Obama himself, a leader who perhaps has shifted with politics to take a harder line. But Tufts University political scientist Michael J. Glennon has a more pessimistic answer: Obama couldn’t have changed policies much even if he tried.
Though it’s a bedrock American principle that citizens can steer their own government by electing new officials, Glennon suggests that in practice, much of our government no longer works that way. In a new book, National Security and Double Government, he catalogs the ways that the defense and national security apparatus is effectively self-governing, with virtually no accountability, transparency, or checks and balances of any kind.
He uses the term “double government”: There’s the one we elect, and then there’s the one behind it, steering huge swaths of policy almost unchecked. Elected officials end up serving as mere cover for the real decisions made by the bureaucracy.
Glennon cites the example of Obama and his team being shocked and angry to discover upon taking office that the military gave them only two options for the war in Afghanistan: The United States could add more troops, or the United States could add a lot more troops. Hemmed in, Obama added 30,000 more troops.
Glennon’s critique sounds like an outsider’s take, even a radical one. In fact, he is the quintessential insider: He was legal counsel to the Senate Foreign Relations Committee and a consultant to various congressional committees, as well as to the State Department.
“National Security and Double Government” comes favorably blurbed by former members of the Defense Department, State Department, White House, and even the CIA. And he’s not a conspiracy theorist: Rather, he sees the problem as one of “smart, hard-working, public-spirited people acting in good faith who are responding to systemic incentives” — without any meaningful oversight to rein them in.
How exactly has double government taken hold? And what can be done about it? Glennon spoke with Ideas from his office at Tufts’ Fletcher School of Law and Diplomacy. This interview has been condensed and edited.
IDEAS: Where does the term “double government” come from?
GLENNON: It comes from Walter Bagehot’s famous theory, unveiled in the 1860s. Bagehot was the scholar who presided over the birth of the Economist magazine — they still have a column named after him. Bagehot tried to explain in his book The English Constitution how the British government worked. He suggested that there are two sets of institutions.
There are the “dignified institutions,” the monarchy and the House of Lords, which people erroneously believed ran the government. But he suggested that there was in reality a second set of institutions, which he referred to as the “efficient institutions,” that actually set governmental policy. And those were the House of Commons, the prime minister, and the British cabinet.
IDEAS: What evidence exists for saying America has a double government?
GLENNON: I was curious why a president such as Barack Obama would embrace the very same national security and counterterrorism policies that he campaigned eloquently against. Why would that president continue those same policies in case after case after case?
I initially wrote it based on my own experience and personal knowledge and conversations with dozens of individuals in the military, law enforcement, and intelligence agencies of our government, as well as, of course, officeholders on Capitol Hill and in the courts. And the documented evidence in the book is substantial — there are 800 footnotes in the book.
IDEAS: Why would policy makers hand over the national-security keys to unelected officials?
GLENNON: It hasn’t been a conscious decision . . . . Members of Congress are generalists and need to defer to experts within the national security realm, as elsewhere. They are particularly concerned about being caught out on a limb having made a wrong judgment about national security and tend, therefore, to defer to experts, who tend to exaggerate threats. The courts similarly tend to defer to the expertise of the network that defines national security policy.
The presidency itself is not a top-down institution, as many people in the public believe, headed by a president who gives orders and causes the bureaucracy to click its heels and salute. National security policy actually bubbles up from within the bureaucracy. Many of the more controversial policies, from the mining of Nicaragua’s harbors to the NSA surveillance program, originated within the bureaucracy. John Kerry was not exaggerating when he said that some of those programs are “on autopilot.”
IDEAS: Isn’t this just another way of saying that big bureaucracies are difficult to change?
GLENNON: It’s much more serious than that. These particular bureaucracies don’t set truck widths or determine railroad freight rates. They make nerve-center security decisions that in a democracy can be irreversible, that can close down the marketplace of ideas, and can result in some very dire consequences.
IDEAS: Couldn’t Obama’s national-security decisions just result from the difference in vantage point between being a campaigner and being the commander-in-chief, responsible for 320 million lives?
GLENNON: There is an element of what you described. There is not only one explanation or one cause for the amazing continuity of American national security policy. But obviously there is something else going on when policy after policy after policy all continue virtually the same way that they were in the George W. Bush administration.
IDEAS: This isn’t how we’re taught to think of the American political system.
GLENNON: I think the American people are deluded, as Bagehot explained about the British population, that the institutions that provide the public face actually set American national security policy. They believe that when they vote for a president or member of Congress or succeed in bringing a case before the courts, that policy is going to change.
Now, there are many counter-examples in which these branches do affect policy, as Bagehot predicted there would be. But the larger picture is still true — policy by and large in the national security realm is made by the concealed institutions.
IDEAS: Do we have any hope of fixing the problem?
GLENNON: The ultimate problem is the pervasive political ignorance on the part of the American people. And indifference to the threat that is emerging from these concealed institutions. That is where the energy for reform has to come from: the American people. Not from government.
Government is very much the problem here. The people have to take the bull by the horns. And that’s a very difficult thing to do, because the ignorance is in many ways rational. There is very little profit to be had in learning about, and being active about, problems that you can’t affect, policies that you can’t change.
Jordan Michael Smith is a contributing writer at Salon and The Christian Science Monitor.
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