Why Obama's national security policy is the same Bush's

[randomname]

National Security and Double Government: Analysis by Professor Glennon


National security policy in the United States has remained largely constant from the Bush Administration to the Obama Administration. This continuity can be explained by the “double government” theory of 19th-century scholar of the English Constitution Walter Bagehot. As applied to the United States, Bagehot’s theory suggests that U.S. national security policy is defined by the network of executive officials who manage the departments and agencies responsible for protecting U.S. national security and who, responding to structural incentives embedded in the U.S. political system, operate largely removed from public view and from constitutional constraints. The public believes that the constitutionally-established institutions control national security policy, but that view is mistaken. Judicial review is negligible; congressional oversight is dysfunctional; and presidential control is nominal. Absent a more informed and engaged electorate, little possibility exists for restoring accountability in the formulation and execution of national security policy.

Few who follow world events can doubt that the Obama Administration’s approach to multiple national security issues has been essentially the same as that of the Bush Administration.2 The Obama Administration, like its predecessor, has sent terrorism suspects overseas for detention and interrogation;3 claimed the power to hold, without trial, American citizens who are accused of terrorism in military confinement;4 insisted that it is for the President to decide whether an accused terrorist will be tried by a civilian court or a military tribunal;5 kept the military prison at Guantánamo Bay open,6 argued that detainees cannot challenge the conditions of their confinement,7 and restricted detainees’ access to legal counsel;8 resisted efforts to extend the right of habeas corpus to other off-shore prisons;9 argued that detainees cannot invoke the Geneva Conventions in habeas proceedings;10 denied detainees access to the International Committee of the Red Cross for weeks at a time;11 engaged the United States in a military attack against Libya without congressional approval, in the face of no actual or imminent threat to the nation;12 and continued, and in some respects expanded, the Bush Administration’s ballistic missile defense program.13

The Obama Administration, beyond ending torture, has changed “virtually none” of the Bush Administration’s Central Intelligence Agency (“CIA”) programs and operations,14 except that in continuing targeted killings, the Obama Administration has increased the number of covert drone strikes in Pakistan to six times the number launched during the Bush Administration.15 The Obama Administration has declined to prosecute those who committed torture (after the President himself concluded that waterboarding is torture);16 approved the targeted killing of American citizens (Anwar al-Awlaqi and a compatriot17) without judicial warrant;18 rejected efforts by the press and Congress to release legal opinions justifying those killings or describing the breadth of the claimed power;19 and opposed legislative proposals to expand intelligence oversight notification requirements.20 His administration has increased the role of covert special operations,21 continuing each of the covert action programs that President Bush handed down.22

The Obama Administration has continued the Bush Administration’s cyberwar against Iran (code-named “Olympic Games”)23 and sought to block lawsuits challenging the legality of other national security measures, 24 often claiming the state secrets privilege. 25 The Obama Administration has also continued, and in some ways expanded, Bush-era surveillance policies. For example, the Obama Administration continued to intercept the communications of foreign leaders; 26 further insisted that GPS devices may be used to keep track of certain citizens without probable cause or judicial review 27 (until the Supreme Court disapproved 28); continued to investigate individuals and groups under Justice Department guidelines re-written in 2008 to permit “assessments” that require no “factual basis” for FBI agents to conduct secret interviews, plant informants, and search government and commercial databases;29 stepped up the prosecution of government whistleblowers who uncovered illegal actions,30 using the 1917 Espionage Act eight times during his first administration to prosecute leakers (it had been so used only three times in the previous ninety-two years);31 demanded that businesses turn over personal information about customers in response to “national security letters” that require no probable cause and cannot legally be disclosed;32 continued broad National Security Agency (“NSA”) homeland surveillance;33 seized two months of phone records of reporters and editors of the Associated Press for more than twenty telephone lines of its offices and journalists, including their home phones and cellphones, without notice;34 through the NSA, collected the telephone records of millions of Verizon customers, within the United States and between the United States and other countries, on an “ongoing, daily basis” under an order that prohibited Verizon from revealing the operation;35 and tapped into the central servers of nine leading U.S. internet companies, extracting audio and video chats, photographs, emails, documents, and connection logs that enable analysts to track foreign targets and U.S. citizens.36 At least one significant NSA surveillance program, involving the collection of data on the social connections of U.S. citizens and others located within the United States, was initiated after the Bush Administration left office.3

These and related policies were formulated and carried out by numerous high- and mid-level national security officials who served in the Bush Administration and continued to serve in the Obama Administration.38Given Senator Obama’s powerful criticism of such policies before he took office as President, the question,39 then, is this: Why does national security policy remain constant even when one President is replaced by another who as a candidate repeatedly, forcefully, and eloquently promised fundamental changes in that policy?

Continued: http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf

[klamath]

great breakdown of the O admin.

[KCIndy]

Interesting article, it explains a lot.

Also makes one wonder who is really in charge....

[klamath]

I think what this shows presidents have to personally educate Themselves on the inner workings of National security. Presidents get in and then rely on the words of advice given to them by the experts. Those expert of course say those programs are absolutely necessary. What person is going to say the job they do is useless or wrong?

[randomname]

Great summary of the essay (which is absolutely worth the 114 page read)


David A. Westbrook, USA, 01/12/14 3:42 am)

Michael Glennon's article "National Security and Double Government" is brilliant, deep, sad, and vastly learned across multiple fields--a work of Weberian power and stature.

Glennon begins by asking why Obama's security policy is so similar to that of Bush. His argument, in short, is that the President does not really set security policy. Elected officials, and high judges--the visible aspects of government, which Glennon names "Madisonian"--are so dependent on bureaucratic (especially military and "intelligence") expertise--which Glennon names "Trumanite"--that policy is set, commitments are made, long before the President or anyone else has a chance to think. In a nutshell, Glennon maintains that the democratic republic has been hollowed out by its bureaucratic apparatus.

But if the President is not really in charge of security, then who is? Following 19th century English political economist Walter Bagehot, Glennon maintains that America has two governments, a visible government for public consumption (legislative, executive, judicial, the first three articles of the Constitution), and another bureaucratic government that actually formulates and implements policy, presenting it as political objective, to be "legitimated" after the fact when circumstances require. Unfortunately, we only know how to think, talk, act in terms of the first, our political tradition--which is increasingly irrelevant. We speak Madisonian, but we are ruled by Trumanites.

By way of background, Glennon is professor of law at the Fletcher School of Law and Diplomacy, most famous for powerfully arguing that the UN Charter does not actually govern the law of war, and the text has fallen into desuetude, vide Kosovo, Libya, and so forth, to say nothing of the Syrias of the world.

Encapsulations of serious arguments, such as the foregoing, tend to render the arguments superficial. After all, worries about bureaucracy, "the headless fourth branch," are hardly new. What is difficult to convey--especially to those of you who are not trained in the law--is how solidly, learnedly, soberly Glennon makes his argument. He doesn't simply argue that bureaucracy has a great deal of power, too much discretion, so perhaps we should revise the Administrative Procedure Act. Instead, Glennon shows how bureaucracy constrains and ultimately vitiates democratic possibility. In doing so, the security state not only disenfranchises, but discourages, "Joe Sixpack." We watch football, and elections as football, but we cease to be democratic actors--we the people are not overthrown, but dissolved, and each make our separate ways. What res publica?

The relations between the governments are complex, and explored at some length. Each is subject to serious constraints. In particular, the forces of conformity and rivalries within the Trumanite security community mean that real thinking, serious strategy, is rarely done. And so we have a metastatic drone policy, an NSA run amok, an inability to shut down various prisons or grant folks habeas, a disingenuous policy in Libya, etc., etc.

As his disapproval of our actual security policy suggests, Glennon's two governments should not be conceived of as substance and form, the avant garde or the technocrats or the guardians vis-a-vis the people they both serve and rule. Glennon does not believe that the Trumanite elite is wise, but must sell its positions to a rather apathetic and stupid people, as Acheson or Machiavelli might have hoped, and as Orwell caricatured. Recent political events demonstrate rather conclusively that our elites inside the beltway are hardly wise, and should not be imagined as struggling to save the rubes from themselves. Instead, the picture Glennon paints is of two different kinds of politics: one based on expertise and interstitial rivalry, that occasionally needs national legitimation, and one based on celebrity and careerism, that occasionally must do something (what to do is the job of the experts). That is, the relationship between Madisonian and Trumanite elements of the national government has been, generally, symbiotic. They have needed each other.

This symbiosis appears to be breaking down. Elected officials are wrapped in scandal; judges are viewed as partisan hacks. Madisonian government does not have the dignity it once did. As a result, it is increasingly difficult for our "public" government, e.g., the Obama administration, to legitimate the actions of its bureaucracies, e.g., the NSA. Indeed, the two aspects of government increasingly disavow one another... leading to greater discontent with government, and perhaps a greater paranoia on the part of government officials. Observe everyone! Classify everything! Anyone could be a terrorist!

Glennon cites a great number of current events, academic learning, judicial opinions--the amount of "social" and "empirical" support here makes the text rather dense. Fundamentally, however, Glennon is offering a constitutional and even philosophical argument, taking issue directly with the Federalist Papers. Can the project of enlightened self-governance work, if it requires the construction of a mandarin class along the lines that, since the New Deal or at least WWII, we have in fact constructed? It's a breathtakingly ambitious, and successful, text.

Assuming one agrees with the analysis, it is not clear what is to be done. Glennon argues that we are approaching (as Madison feared we might), the limits of lawyerly/structural devices like checks and balances. At some point, democracy is dependent on the virtues of the people, the demos. And maybe this nation of so many millions is losing its capacity to instill civic virtue --which is after all a paternalistic, and in that sense illiberal, task--in a sufficient number of its people to produce "a people" capable of self governance.

Glennon, in short, is discussing how the American project may end, and doing so with great clarity and power. He seems to think republican democracy, Madisonian governance, may not have ended yet, but who knows?

As you might expect, I have much to say in response, but I don't want to make this about me or my work--maybe some other time. For now, let me just say that this text deserves to be read and discussed. The issues are politically existential. Just as importantly for political purposes, Glennon has expressed widespread if inchoate anxieties about the state of the republic. This book has the potential to raise philosophical questions in the public sphere in a way not seen at least since Fukuyama's end of history made a lot of people think about Hegel and what we meant by modern, to say nothing of military invasion.

The article is forthcoming from Harvard National Security Journal, and available online at the following link:

Glennon on Double Government: http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf

JE comments: A powerful, if depressing, thesis. Have We the People been dissolved? I'm grateful to David A. Westbrook for his masterful analysis. Lots to chew on here, but one wonders if the masses (us) fully understand the undemocratic nature of Double Government, and "vote" by refusing to vote. Conversely, popular movements to "take back our government" show certain elements of the populace attempting (Quixotically) to counter the Trumanites who really run the show. We could probably extend Glennon's argument to include Europe, with the "unaccountable" Eurocrats occupying the role of the Trumanites.

[randomname]

I think what this shows presidents have to personally educate Themselves on the inner workings of National security. Presidents get in and then rely on the words of advice given to them by the experts. Those expert of course say those programs are absolutely necessary. What person is going to say the job they do is useless or wrong?
The essay has some interesting anecdotes on this...


It is, of course, possible to reject the advice of a Gates, a Brennan, or other prominent Trumanites. But battle-proven survivors normally get their way, and their way is not different from one administration to the next, for they were the ones who formulated the national security policies that are up for renewal. A simple thought experiment reveals why presidents tend to acquiesce in the face of strong Trumanite pressure to keep their policies intact. Imagine that President Obama announced within days of taking office that he would immediately reverse the policies detailed at the outset of this essay. The outcry would have been deafening—not simply from the expected pundits, bloggers, cable networks, and congressional critics but from the Trumanites themselves. When Obama considered lowering the military’s proposed force levels for Afghanistan, a member of his National Security Council staff who was an Iraq combat veteran suggested that, if the President did so, the Commander of U.S. and International Security Assistance Forces (“ISAF”) in Afghanistan (General Stanley McChrystal), the Commander of U.S. Central Command (General David Petraeus), the Chairman of the Joint Chiefs of Staff (Admiral Michael Mullen), and even Secretary of Defense Gates all might resign. Tom Donilon, Obama’s National Security Advisor and hardly a political ingénue, was “stunned by the political power” of the military, according to Bob Woodward. Recall the uproar in the military and Congress when President Bill Clinton moved to end only one Trumanite policy shortly after taking office—the ban on gays in the military. Clinton was quickly forced to retreat, ultimately accepting the policy of “Don’t Ask, Don’t Tell.” A president must choose his battles carefully, Clinton discovered; he has limited political capital and must spend it judiciously. Staff morale is an enduring issue. No president has reserves deep enough to support a frontal assault on the Trumanite network. Under the best of circumstances, he can only attack its policies one by one, in flanking actions, and even then with no certainty of victory. Like other presidents in similar situations, Obama thus “had little choice but to accede to the Pentagon’s longstanding requests for more troops” in Afghanistan.


Presidential choice is further circumscribed by the Trumanites’ ability to frame the set of options from which the President may choose— even when the President is personally involved in the decisionmaking process to an unusual degree, as occurred when President Obama determined the number of troops to be deployed to Afghanistan. Richard Holbrooke, the President’s Special Representative for Afghanistan and Pakistan, predicted that the military would offer the usual three options— the option they wanted, bracketed by two unreasonable alternatives that could garner no support. “And that is exactly what happened,” Nasr recalled. It was, as Secretary Gates said, “the classic Henry Kissinger model . . . . You have three options, two of which are ridiculous, so you accept the one in the middle.” The military later expanded the options— but still provided no choice. “You guys just presented me [with] four options, two of which are not realistic.” The other two were practically indistinguishable. “So what’s my option?” President Obama asked. “You have essentially given me one option.” The military was “really cooking the thing in the direction that they wanted,” he complained. “They are not going to give me a choice.”

[Occam's Banana]

This is why we can't have nice things.

And it applies to a hell of a lot more than just "national security policy" ...

(There are actually four "branches" of government - and the three we are told about in civics class are mostly just for show.)