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05-04-2014, 08:43 AM
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
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