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Rule By Illusion: National Security and Double Government
TND Guest Contributor: David S. D’amato
BOOK REVIEW: National Security and Double Government by Michael J. Glennon (Oxford University Press 2014), 272 pages.
Americans have been taken in by an illusion, complacently believing that they live in a constitutional republic in which the rule of law is paramount and public officials are answerable to the electorate. In reality, however, an ascendant technocratic class of experts governs under the auspices of the constitutional institutions that disguise it and defer to it. Such is the essential claim of Prof. Michael J. Glennon’s book National Security and Double Government. Glennon, a professor of international law at Tufts University’s Fletcher School, adapted the book from his paper of the same name, originally published in Harvard Law School’s National Security Journal. Assiduously researched and footnoted, Glennon’s book should conclusively disabuse even the most enthusiastic Obama supporters of the fictive picture of his administration, the account that treats the current president as a deep, principled break from the policies and goals of the Bush White House.
National Security and Double Government unnervingly confirms many of libertarians’ suspicions about the hollowness of electoral politics, particularly on the national level, demonstrating that the United States’s giant federal bureaucracies now exist and act of their own accord. As the headline of a Boston Globe feature on the book aptly (if broadly) put it, “Vote all you want. The secret government won’t change.” Glennon presents the size and scope of this secret government in jarring detail. While “budgets and workforces are mostly classified,” even the visible fraction of the iceberg is a mountainous aggregation of private contractors and federal agencies.
But although the sheer size of the national-security labyrinth is important to Glennon’s thesis, the “double” in his title is not a verb but an adjective, a reference to the relationship between national security and “double government” as a distinct object of study. Glennon borrows the idea of “double government” from the 19th-century English man of letters Walter Bagehot, who distinguished his country’s well-concealed “real government” from the government’s public countenance, the seemingly “dignified” institutions that inspire faith in the government.
Figureheads and institutions
In Bagehot’s 19th-century Britain, the “dignified” components of the Constitution were the Crown and the House of Lords. In contrast, the “efficient” parts, those newer institutions “that do the real work of governing,” were the prime minister, his cabinet, and the lower house of Parliament. National Security and Double Government applies Bagehot’s “enduring insight” to the present-day United States, where, he argues, “most of the key decisions” and “substantive control” in national-security policy are concentrated in America’s efficient institutions. These are the executive branch’s national-security agencies, for example, the NSA, FBI, CIA, and Department of Homeland Security, a sprawling complex commanding hundreds of thousands in manpower and trillions in dollars.
The bureaucracy — anonymous, impersonal, nonpartisan — has become its own motive force, possessed of a natural, institutional momentum to arrogate ever more power to itself. The ship is driving itself, as it were. The invocation of national security is at the center of this development, which Glennon characterizes as “a structure of double government,” comprising two systems whereby elected officials act as mere figureheads, while American institutions drift “toward greater centralization, less accountability, and emergent autocracy.” Overawed by the “wonderful spectacle” of the dignified institutions, assured of their grandeur and legitimacy, the populace — largely benighted and impoverished — live out their days unaware of the dual structure of government. As Glennon observes, if one recent federal study can be believed, huge swaths of even the supposedly literate population “are unable to read anything more challenging than a children’s picture book.” There is, therefore, no need for any calculated, conspiratorial plot, for “purposeful deception” to pull the wool over Americans’ eyes. Nothing so deliberate is necessary to delude the citizenry, even if such dark intrigues were possible from a practical standpoint; as Glennon notes, “a healthy dose of theatrical show goes a long way.” Politics, then, is ironically a distraction from the political, its issues (assuming they actually exist) the superficial pageantry obscuring the grinding machinery of the efficient institutions. Still, we might have doubts about Glennon’s arguments on the causal connection between “pervasive civic ignorance” and the kinds of centralization he describes.
Examining this connection in the work of George Orwell, political-theory scholar Craig L. Carr suggests that we consider the “obscure question” of “a person’s ontological horizon,” defined as “the parameters of the focus of a person’s concern and attention.” For most, abstract, academic questions of political theory lie well beyond the mental horizon. In 1984 Orwell neatly encapsulates the question that interests both Carr and Glennon. Winston Smith, Orwell’s protagonist, reflects that “[if] there is hope,” it lies in the proles. The problem, of course, is that the proles’ lives were consumed by hard toil, by childrearing, homemaking, and diversions such as gambling and soccer. “To keep them in control was not difficult” because they were not troubled by the political world, “insensitive to its features” even when they were aware of its existence. Glennon’s book argues persuasively that, as with Orwell’s proles, the ignorance of Americans has left them vulnerable to the control and manipulation of a small elite.
Glennon holds that the United States’ efficient institutions owe their existence chiefly to the presidency of Harry Truman and the ensuing growth of the national-security state in the post–World War II years. Glennon thus substitutes “Trumanite” for “efficient” and offers a look at the mid-century origins of the vast bureaucratic phenomenon that is his subject. He points out that confronted with the nascent “Trumanite network,” many conservatives were disinclined to embrace the new and more centralized institutions. “[Liberal] and conservative positions in the debate,” Glennon writes, “[were] curiously inverted from those prevalent in current times.” Libertarians are unlikely to be among those surprised by this historical observation. Earlier, classical liberals of the Progressive Era and the World War I period resisted federal government self-aggrandizement in the face of calls for government expansion and centralization. Needless to say, such calls invoked efficiency and the ability to undertake “swift action” against the enemy, anticipating the rhetoric employed later by Franklin Roosevelt and Truman during the World War II era and then again by George W. Bush and Barack Obama in the “war on terror.” As Joseph R. Stromberg has noted, when conservatives finally completed their “ideological makeover,” espousing empire and intervention, they did so using a language “largely invented by Establishment Liberals.”
Bureaucratic inertia
The thesis of Glennon’s short book — that America’s double-government reality has meant remarkable continuity and consistency in national-security policy between administrations — bears a striking resemblance to themes developed in William M. Arkin’s American Coup.Indeed, Glennon cites Arkin’s and Dana Priest’s Top Secret America, their comprehensive study of America’s tenebrous national-security apparatus, hidden from public view and oversight. Both Glennon’s book and Arkin’s track trends of bureaucratic inertia, increased centralization of authority, and most of all a duality that juxtaposes one set of laws and institutions with a hidden one that holds the real power.
The nodes in Glennon’s Trumanite network are Arkin’s “gray men,” the massive and “permanent cadre of civil servants” most of us never even think about. The professional flunkies and functionaries who run federal bureaucracies, specialized experts who remain from administration to administration, always have their eyes trained on their “ultimate objective,” the “preservation of the status quo.” So while political identification and ideology may seem important to cable news viewers and committed party loyalists, Glennon’s book shows them to be of small import in the real world of national-security policy.
Glennon examines several possible explanations for “the amazing continuity of American national security policy” between administrations. “[Deference] to the golden class of efficient guardians,” unelected and ultimately unaccountable, is Glennon’s overarching theme. The elected politicians of the dignified institutions want to be able to defend their decisions, to justify them if they are questioned later, pointing to memoranda from respected specialists. Glennon points out that this surrender of power to administrative experts seems to flout an 80-year-old constitutional principle known as the nondelegation doctrine, the principle that “forbids the delegation of legislative power by Congress to administrative agencies.” As James Madison warned in Federalist No. 48, strict demarcation of functions hinders the “tyrannical concentration of all the powers of government in the same hands.” By entrusting expert administrative bodies with such vast powers, the system of double government undermines this key feature of constitutional law. In theory, the nondelegation doctrine safeguards the Constitution’s separation of powers by preventing any one of the federal government’s three branches from permitting another body to carry out its constitutional functions. But broad (overbroad in fact) administrative powers have blurred the lines and crowded out Congress and the courts. And while Truman surely presided over an unprecedented bureaucratic buildup, Constitution-daring administrative encroachment well antedates his administration and the years following. During the Progressive Era, both the courts and the political process raised and arguably settled the multitudinous constitutional questions implied by the expansion of the administrative state.
Scholars such as Ronald J. Pestritto and Philip Hamburger, to name just two, have argued that the advent of the Progressive bureaucratic state and the rise of administrative law as we know it today mark a fundamental shift in American legal and political life. Where the government structure fashioned by the founding generation represents a whole Anglo-American constitutional tradition, administrative law runs directly opposite that tradition, embodying exactly the kind of “absolute prerogative” that the Constitution was designed to stave off. Under the new administrative legal paradigm that accompanied the proliferation of new executive-branch agencies, arbitrary, ad hoc decisions came to substitute for the rule of law as either crafted by legislatures or expressed in judicial decisions.
Lawmaking thereby increasingly fell to the administrative state, also charged, of course, with enforcing and executing the law. Long before the national-security ration-ales provided by World War II, the Cold War, or the War on Terror, the radical transformation in American government had already taken hold, the political establishment (both Republicans and Democrats) raising the banners of Progressive total statism. Consistent with this narrative, Glennon points out that in 80 years of nondelegation doctrine jurisprudence, the doctrine “has rarely been enforced, and never has the [Supreme] Court struck down any delegation of national security authority to the Trumanite apparatus.” Thus do we now have an executive-branch administrative state with the prerogative power to perform the duties and responsibilities of all three constitutional branches, a dangerous and authoritarian trend of consolidation. If Glennon’s book proves anything, it is that “parchment barriers” (to borrow another of Madison’s phrases from Federalist No. 48) are powerless before the perverse incentives created by real-life political power.
Glennon’s study articulates a cogent vindication of the warnings that libertarians advanced throughout the last century and during the post–9/11 national-security fervency. So often the establishment’s thought leaders derided libertarians as freaks and conspiracy theorists, our warnings as paranoid and unjustified. Michael Glennon is a respected scholar; his book is objective and nonideological; and his contentions and conclusions are carefully documented and corroborated. As Glennon writes — and libertarian students of Public Choice theory have been saying for years — the menacing double government we have is a “response to structural incentives rather than invidious intent.” Education on the dangers of this bureaucratic phenomenon is the key to unraveling it and prompting a return to critical thinking as opposed to the esprit de corps mentality which Glennon argues has led Americans to desire an “escape from freedom,” with all its uncomfortable “anxiety producing choices.” As Thomas Jefferson warned, we cannot be both “ignorant and free.” It is time we began paying attention, demanding the individual liberty we say we want.
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David S. D’Amato is an attorney with an LL.M. in international law and business.
The Future of Freedom Foundation was founded in 1989 by FFF president Jacob Hornberger with the aim of establishing an educational foundation that would advance an uncompromising case for libertarianism in the context of both foreign and domestic policy. The mission of The Future of Freedom Foundation is to advance freedom by providing an uncompromising moral and economic case for individual liberty, free markets, private property, and limited government. Click here to support FFF. This article is reprinted with permission.
Source: http://thenewsdoctors.com/rule-by-illusion-national-security-and-double-government/
