Torturing the Rule of Law

October 24, 2014 Topic: Domestic PoliticsIntelligence Region: United States

Torturing the Rule of Law

When elements of the national-security apparatus deceive Congress or the courts, they undermine the very institutions that they protect. The CIA’s attempt to hide its history of torture from congressional oversight is Exhibit A.

Congressional conservatives, by contrast, feared that Truman’s ballooning national-security payrolls, reliance upon military solutions to tackle international problems and efforts to centralize decision making posed a threat to democratic institutions and the principle of civilian leader­ship. Republican senator Edward V. Robertson of Wyoming, for example, worried that Truman’s military consolidations could amount to the creation of an “embryonic” general staff simi­lar to that of Germany’s Wehrmacht. A new national intelli­gence agency, he said, could grow into an American “gestapo.” Republican senator William Langer of North Dakota and his allies believed that the Soviet threat was exaggerated; in their eyes, the real enemy was the Pentagon, where “military lead­ers had an insatiable appetite for more money, more men, and more power, whatever the cost to democracy.” The con­servatives invoked the specter of a “garrison state,” a “police state” and a “slave state” run by “power-grabbing bureau­crats.” They saw peacetime military conscription as “aping the military clique of Hitler” and leading to a “complete mili­tarization of the country,” creating a “permanent military caste.” Republican congresswoman Katherine St. George of New York, recalling George Washington’s Farewell Address, foresaw the possibility of military domination of the nation’s civilian leadership. Republican senators John Bricker and Robert Taft of Ohio and Homer Capehart of Indiana voted to cap the size of active U.S. military forces in part to halt what they regarded as “a drift from ‘congressional responsibility’ to ‘administra­tive policymaking’ . . . which would destroy the ‘liberty of the people.’” “The truth is that we are slowly losing our freedoms as we move toward the garrison state,” said the Republican leader of the House of Representatives, Joseph W. Martin of Massachusetts.

Truman himself appeared to share these concerns, at least to an extent. He was “very strongly anti-FBI,” according to his aide Clark Clifford. Truman was “afraid of a ‘Gestapo’” and wanted to “hold [the] FBI down.” Although a military officer would be permitted to head the CIA, Truman accepted the proviso in the National Security Act described above, under which the agency would be prohibited from performing any police or law-enforcement functions. As for the military, while waste­ful duplication had to be eliminated and better coordination established, Truman feared that collective deliberation could force the president to share responsibility and decision-making power, resulting in a diminution in presidential authority and a weakening of civilian control over the military. With half of the members of the new NSC coming from the military, Truman believed it would be difficult for the president to ignore their recommendations, even though their counsel was only advisory. Truman was particularly annoyed by interser­vice rivalries and pressure from military lobbyists to increase their services’ budgets. “We must be very careful that the mili­tary does not overstep the bounds from an economic standpoint domestically,” he wrote. He also believed that “most of them would like to go back to a war footing.” But he considered the new national-security apparatus necessary to rein in the mili­tary as well as to improve the United States’ ability to respond to the looming (though exaggerated) Soviet threat. The Hoover Commission warned in 1949 that the Joint Chiefs had come to act as “virtually a law unto themselves” and that “central­ized civilian control scarcely exists” in certain military depart­ments. Internecine warfare among the services had come to undermine the nation’s defense. Truman believed that his new national-security architecture was the best bet to bolster the capacity of the nation to meet security threats while safeguard­ing the democratic institutions that the newly empowered mili­tary and intelligence organizations were expected to protect.

 

SIXTY YEARS later, sitting atop its national-security institutions, an intragovernmental network that has descended from what Truman created now manages the real work of protecting the nation’s security. Its members are smart, hard-working, public-spirited officials, careerists as well as in-and-outers. They exercise their authority not because of some vast, nefarious conspiracy, but rather as the result of structural incentives embedded deeply within the American political system. They define security primarily in military terms and tend to consider military options before political, diplomatic or law-enforcement alternatives for an understandable reason: relative to other governmental agencies, the American military is extremely proficient and widely respected. They share the premise of Madeleine Albright’s famous question to Colin Powell: “What’s the point of having this superb military . . . if we can’t use it?” They also favor existing policies over new, different ones, in part because senior officials—their bosses—were their authors. In economic terms, their programs are “sticky down”—much more difficult to end than to expand or to continue.

This basic dynamic, well known to organizational behaviorists, represents the principal reason that U.S. national-security policy has changed so little from the George W. Bush to the Obama administration. As a candidate for president, Obama repeatedly, forcefully and eloquently promised fundamental change in that policy. It never happened. U.S. policies on rendition, covert operations, cyberwar, military detention without trial or counsel, drone strikes, NSA surveillance, whistle-blower prosecutions, nonprosecution of waterboarders, reliance on the state-secrets privilege and a variety of other national-security issues all have remained largely the same. The explanation lies not simply in the huge number of holdovers in high-level policy-making positions; the reality is that structural incentives have given these policies a life of their own—allowing them to run “on autopilot,” as Secretary of State John Kerry described one NSA program, largely immune from constitutional and electoral restraints.

A variety of legislative and judicial reforms have been suggested, aimed generally at restoring a semblance of institutional balance. Given the prevailing incentive structure, however, none are likely to succeed. The first difficulty with the proposed reforms is circularity. All rely upon the Madisonian institutions—Congress, the courts and the presidency—to restore power to the Madisonian institutions by exercising the very power that the Madisonian institutions lack. All assume that the Madisonian institutions, in which all reform proposals must necessarily originate, can somehow magically impose those reforms upon the Trumanite network or that the network will somehow merrily acquiesce. All sup­pose that the forces that gave rise to the Trumanite network can simply be ignored. All assume, at bottom, that Madison’s scheme can be made to work—that an equilibrium of power can be restored—without regard to the root cause of the disequilibrium.

That root cause is difficult to discuss in a democracy, for it lies in the electorate’s own deficiencies. This is the second great obstacle the reform proposals confront; on this point Bagehot’s and Madison’s theories converge. Bagehot argued that when the public becomes too sophisticated to be misled any longer about who holds governmental power but not informed enough to play a genuine role in governance, the whole structure will “fall to the earth,” in his phrase. Madison, contrary to popular belief, did not suggest that the system that he and his colleagues designed was self-correcting. The Framers did not believe that merely setting “ambition against ambition” within the government would by itself save the people from autocracy. They believed that this competition for power would not occur absent an informed and engaged public—what Robert Dahl has called the “adequate citizen,” the citizen able and willing to undertake the responsibilities required to make democracy work. Thomas Jefferson spoke for many of the Framers. He said: “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.” Competition between institutions was thus written into the constitutional architecture not as a substitute for civic virtue—there is none—but as a backstop, as an additional safeguard to forestall the rise of autocracy. But that backstop was not freestanding: it, too, depended upon an electorate possessed of civic virtue.

If anything, the essentiality of civic virtue has grown over the years. In the early days of the Republic, public-policy issues were less intricate, and the franchise was de jure or de facto more restricted. A smaller electorate was more capable of mastering the more straightforward issues it faced. As Louis Henkin pointed out, however, the United States has since changed gradually from a republic to a democracy—an “ultra-democracy,” Bagehot believed. The problems government has faced over the years have become more complex, and a greater base of civic knowledge has thus become indispensable for responsible participation in the process of governance. Yet a cursory glance at consistent survey results confirms what former Supreme Court justice David Souter has described today as the public’s “pervasive civic ignorance.”

The numbers are sobering. A 2011 Newsweek survey showed that 80 percent of Americans did not know who was president during World War I; 40 percent did not know whom the United States fought in World War II; and 29 percent could not identify the current vice president of the United States. Far more Americans can name the Three Stooges than any member of the Supreme Court. One poll has found that 71 percent of Americans believe that Iran already has nuclear weapons. In 2006, at the height of U.S. military involvement in the region, 88 percent of Americans aged eighteen to twenty-four could not find Afghanistan on a map of Asia, and 63 percent could not find Iraq or Saudi Arabia on a map of the Middle East. Ilya Somin’s fine book Democracy and Political Ignorance analyzes the problem in depth. The great conundrum is that the public’s ignorance does not derive from “stupidity”—average raw IQ scores actually have increased in recent decades—so much as it derives from simple rationality: Why spend time and energy learning about national-security policies that cannot be changed?