But the system did not work. Instead, Obama, more presider than decider, sat mutely for months while Clapper’s earlier dishonesty festered, even though Obama knew, or should have known, that the intelligence chief’s testimony was false. Obama’s silence signaled that official misstatement of the facts would now go unpunished, a premise that Brennan readily embraced. Indeed, the Justice Department, ever solicitous of maintaining friendships in Langley and Fort Meade, promptly dismissed Feinstein’s request for a criminal investigation of the CIA’s breach of trust, with the result that whether the CIA broke the law remained a matter of conjecture. The committee, thitherto led by cheerleaders for the CIA and the NSA, itself did nothing to fill the void. It had failed earlier to learn that the CIA ran secret prisons, waterboarded prisoners, made videotapes of the waterboarding or—after it found out—destroyed the videotapes. It had failed to learn how the administration used the phone records of American citizens that the NSA collected, or that Angela Merkel’s cell phone was being tapped—and a host of other embarrassments (many publicly revealed by Edward Snowden) that a competent oversight committee would have caught. The committee’s leadership had little to gain by focusing further public scrutiny on its own omissions and indifference to Clapper’s and Brennan’s deceit. Even some defenders of NSA surveil­lance acknowledged that the oversight committees could not be trusted. “Clearly, they’ve been co-opted,” said McCain. “There’s no doubt about that.”

The courts joined the committee in behaving as an annex of the military/intelligence community. The rubber-stamp record of the Foreign Intelligence Surveillance Court—the closest thing the nation has to a national-security court—in approving warrant requests has made it the butt of jokes. But its lamentable history is not unique. At the time of Clapper’s statement, it was well nigh impossible to find a single case in which anyone claiming to have suffered even the gravest injury as the result of the U.S. government’s counterterrorism policies had recovered a dime in damages. In fact, it is still hard to find any case in which any plaintiff has even been allowed to litigate any counterterrorism claim on the merits. Challenges have been regularly dismissed before any plaintiff has had a chance to describe what happened either before the courts or, often more important, the court of public opinion.

The system’s failure, then, has been far more than a failure of the truth-finding process, or even a failure to prevent torture; its failure has been nothing less than a collapse of the equilibrium of power, the balance expected to result from ambition set against ambition, the resistance to encroachment that was supposed to keep the three branches of the federal government in a state of equilibrium and to protect the people from the government.

How could this have happened?

 

MUCH OF the answer can be found in Walter Bagehot’s theory of the British government. He presented it in the 1860s to explain the evolution of the country’s political system. While not without critics, his theory has been widely acclaimed and has generated significant com­mentary. Indeed, it is something of a classic on the subject of institutional change, and it foreshadowed modern organi­zational theory. Bagehot’s view went something like this:

Power in Britain reposed initially in the monarch alone. Over the decades, however, a dual set of institutions emerged. One set comprises the monarchy and the House of Lords. These Bagehot called the “dignified” institutions—dignified in the sense that they provide a link to the past and excite the public imagination. Through theatrical show, pomp and historical symbolism, they exercise an emotional hold on the public mind by evoking the grandeur of ages past. They embody memo­ries of greatness. Yet it is a second, newer set of institutions—Britain’s “efficient” institutions—that do the real work of governing. These are the House of Commons, the cabinet and the prime minister. As Bagehot put it:

Its dignified parts are very complicated and somewhat imposing, very old and rather venerable; while its efficient part . . . is decidedly simple and rather modern. . . . Its essence is strong with the strength of modern simplicity; its exterior is august with the Gothic gran­deur of a more imposing age.

Together these institutions make up a “disguised republic” that obscures the massive shift in power that has occurred, which, if widely understood, would create a crisis of public confidence. This crisis has been averted because the efficient institutions have been careful to hide where they begin and where the dignified institutions end. They do this, Bagehot suggested, by ensuring that the dignified institutions continue to partake in at least some real governance and that the efficient institutions partake in at least some inspiring public ceremony and ritual. This promotes continued public deference to the efficient institutions’ decisions and continued belief that the dignified institutions retain real power. These dual institu­tions, one for show and the other for real, afford Britain exper­tise and experience in the actual art of governing while at the same time providing a façade that generates public acceptance of the experts’ decisions. Bagehot called this Britain’s “double government.” The structural duality, some have suggested, is a modern reification of the “Noble Lie” that, two millennia before, Plato had thought necessary to insulate a state from the fatal excesses of democracy and to ensure deference to a class of efficient guardians.

Bagehot’s theory may have overstated the naïveté of Britain’s citizenry. When he wrote, probably few Britons believed that Queen Victoria actually governed. Nor is it likely that the country’s prime ministers, let alone 658 members of the House of Commons, could or did consciously and intentionally conceal from the British public that it was really they who governed. Big groups keep big secrets poorly. Nonetheless, Bagehot’s endur­ing insight—that dual institutions of governance, one public and the other concealed, work side by side to maximize both legitimacy and efficiency—is worth pondering as one possible explanation. There is no reason in prin­ciple why the institutions of Britain’s juridical offspring, the United States, ought to be immune from the broader bifurcat­ing forces that have driven British institutional evolution.

As it did in the early days of Britain’s monarchy, power in the United States lay initially in one set of institutions—the presi­dency, Congress and the courts. These are America’s “dignified” institutions. Later, however, a second institution emerged to safeguard the nation’s security. This, America’s “efficient” insti­tution (actually, more a network than an institu­tion), consists of the several hundred executive officials who sit atop the military, intelligence, diplomatic and law-enforcement departments and agencies that have as their mission the protection of America’s security. Large segments of the public continue to believe that America’s con­stitutionally established, dignified institutions are the locus of governmental power. That belief allows both sets of institutions to maintain public support and legitimacy. Enough exceptions exist to sustain that illusion. But when it comes to defining and protecting national security, the public’s impres­sion is mistaken. America’s efficient institution makes most of the key decisions concerning national security, removed from public view and from the electoral and constitutional restrictions that check America’s dignified institutions. The United States has, in short, moved beyond a mere imperial presidency to a bifurcated system—a structure of double government—in which even the president now exercises little substantive control over the general direction of U.S. national-security policy. Whereas Britain’s dual institutions evolved toward a concealed republic, America’s have evolved in the opposite direction, toward greater central­ization, less accountability and emergent autocracy.

The birth date of Britain’s efficient institution is difficult to determine, having evolved over time. America’s did not. President Harry S Truman, more than any other president, is responsible for creating the nation’s “efficient” national-security apparatus. Under him, Congress enacted the National Security Act of 1947, which unified the military under a new secretary of defense, set up the CIA, created the modern Joint Chiefs of Staff and established the National Security Council (NSC). Truman also set up the NSA, which was intended at the time to monitor communications abroad. Friends as well as detractors viewed Truman’s role as decisive. Honoring Truman’s founding role, let us substitute “Trumanite” for “efficient,” referring to the network of sev­eral hundred high-level military, intelligence, diplomatic and law-enforcement officials within the executive branch who are responsible for making national-security policy.

 

TRUMAN’S NATIONAL-SECURITY initiatives were contro­versial, with liberal and conservative positions in the debate curiously inverted from those prevalent in current times. In the late 1940s and early 1950s, congressional liberals generally supported Truman’s efforts to create more centralized national-security institutions on the theory, held by many and summa­rized by Michael Hogan, that “peace and freedom were indivisible, that American power had to be mobilized on behalf of democracy ‘everywhere,’ and that tradition had to give some ground to this new responsibility.” Senator Hubert Humphrey of Minnesota, for example, dismissed objections to the consti­tutionality of the new arrangements: “It is one thing to have legalistic arguments about where the power rests,” he said, but another to straitjacket a president in trying to deal with a totalitarian state capable of swift action. Stalin could strike a deathblow at any time, he argued; as a result, “those days of all the niceties and formalities of declarations of war are past.” Under these conditions, “it is hard to tell . . . where war begins or where it ends.” Senator Paul Douglas of Illinois insisted that U.S. military power should support democracy “everywhere.” Unanswered aggression would lead only to further aggression, he suggested, requiring the United States to move to a posture of permanent military preparedness.