by Elisabeth Hellenbroich

A quite alarming essay was recently published in “Harvard National Security Journal” (Vol 5,1) by Michael J. Glennon -Professor of International Law, Fletcher School of Law and Diplomacy, Tufts University- on the subject “National Security and Double Government”. For those who are familiar with the history of the United States and the thinking of its strategic community Glenn presents a shocking insight into what he identifies as the true decision makers in the United States: the “Trumanite network” opposite to the “Madisonian network” (James Madison, was the 4th president of the United States 1809-1813, who was hailed as Father of the American Constitution whose main features were elaborated in the Federalist papers 1780).

Glennon uses the term “double government” and he does this in reference to the work Walter Bagehot, who in 1887 wrote a book “The English Constitution” that explores the nature of the constitution of the U.K. specifically its Parliament and monarchy. If Bagehot’s theory were applied to the U.S., Glennon comments, “U.S. national security policy is defined by the network of executive officials who manage departments and agencies responsible for protecting U.S national security, operating 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.” (p 1)

Glennon’s main thesis is that under the presidents of the Bush Administration and the Obama administration National Security policy has been largely constant. Like under Bush, the Obama administration “sent terrorist suspects overseas for detention and interrogation; claimed the power to hold without trial American citizens who are accused of terrorism in military confinement; insisted that it is for the President to decide whether an accused terrorist will be tried by a civilian court or a military tribunal; kept the military prison at Guantanamo Bay open, argued that the detainees cannot challenge the conditions of their confinement, and restricted detainees’ access to legal counsel”.(p 2)

The author adds that “virtually none” of the Bush Administration’s Central Intelligence Agency programs and operations changed, 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. The Obama administration has declined to prosecute those who committed torture (after the President himself concluded that waterboarding is torture); approved the targeted killing of American citizens without judicial warrant, rejected efforts by the press and Congress to release legal opinions justifying those killings.” (…) “His administration has increased the role of covert special operations, continuing each of the covert action programs that President Bush administration handed down. The Obama administration has continued cyber war against Iran and sought to block lawsuits challenging the legality of other national security measures, often claiming the state secret’s privilege.”(pp 4/5)

“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; further insisted that GPS devices may be used to keep track of certain citizens without probable cause or judicial review (until the Supreme Court disapproved ) …(The administration) stepped up the prosecution of government whistleblowers who uncovered illegal actions; using the 1917 Espionage Act eight times during his first administration to prosecute leakers; demanded that businesses turn over personal information about customers in response to ‘national security letters’ that require no probable cause and cannot be legally disclosed; continued broad National Security Agency (NSA) homeland surveillance; 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; through the NSA, collected the telephone record 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; and tapped into servers of nine leading U.S internet companies, extracting audio and video chats, photographs , emails, documents and connecting logs that enable analysts to track foreign targets and U.S citizens.” (p 7/8)

Walter Bagehot’s theory of double government

In his 1867 work about the English constitution, Michal Bagehot develops the theory that in Britain power initially reposed on Monarchs alone. Over the decades however a dual set of institutions emerged. “One set comprises the monarchy and the House of Lords… They embody memories of greatness. Yet there is a second new 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. … Together these institutions comprise a ‘disguised republic’ that obscures the massive shift of power that has occurred, which if widely understood would create a crisis of confidence. This crisis has been averted because the efficient institutions have been careful to hide where they begin and where the dignified institutions end.” (p 11)

Trumanite Network

The germ for the “double government” in the U.S. was laid historically by President Truman (1884-1972; Truman was President from 1945-1953; under him the Manhattan Project began. He was the first and only president of the United States and in the world who ordered the atomic bomb on Hiroshima and Nagasaki. As president he invoked after 1945 the “Truman doctrine” which was the beginning of the decades long Cold War. Under his term the Korean War broke out). As Glennon shows, Truman was responsible for creating the nation’s ‘efficient’ national security apparatus. “He 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. Truman also set up the National Security Agency (NSA) which was intent at the time to monitor communications abroad.” (p 18) Truman wanted to improve the US ability to respond to the looming soviet threat.

60 years later that same Trumanite network is still in function and even more expanding.

Glennon refers to an article in Washington Post 2011 which identified in a study under the title “Top secret America” “that there are forty –six federal departments and agencies which engage in classified national security work. Their missions range from intelligence gathering and analysis to war-fighting, cyber –operations, and weapons development. Almost 2000 private companies support his work which occurs at over 10.000 locations across America.” (p 22) The size of their budgets and workforces are mostly classified, but it is clear, as

Glennon states in his essay, that those numbers are enormous – a total annual outlay of around $1 trillion and millions of employees. These several hundred officials according to Glennon comprise America’s Trumanite network. “They sit at the pinnacle of what Professor Jack Goldsmith has called ‘Washington’s tight-knit national security culture.’… Unlike the ‘best and the brightest’ of earlier times, the Trumanites are not part of big decisions because of wealth, family connections or an elite education. Most have no assured financial or social safety net to save them should they slip. They are ‘in’ because they are smart, hardworking and reliable…The decisions they shape are the government’s most crucial.” (p 24) In line with the style in which Trumanites operate, they would exaggerate existing threats and create imaginary ones. At one point Glennon notes that former Secretary of Defense and CIA director Robert Gates – a Trumanite- who played a role in Iran Contra testified that he had to pressure CIA analysts to exaggerate Soviet involvement in the plot to kill Pope John Paul II and that he had suppressed and ignored soviet signs of strategic retreat.

The cases of Justice Rehnquist and Scalia

Concerning the judiciary, Glennon demonstrates, the Trumanites have the say. An example is Chief Justice Rehnquist who participated in the military surveillance of domestic political groups –and who played a critical role in drafting the 1969 presidential order that established the division of responsibility between the military and the Justice Department for gathering of intelligence concerning during civil disturbances. Similarly Justice Scalia who proposed covert operations by the intelligence community and Chief Justice John Roberts who selected the eleven judges sitting on the FISC (Foreign Intelligence Surveillance Court) -that grants warrants for the electronic surveillance of suspected foreign intelligence agents operating in the United States. “Through the long list of military conflicts initiated without congressional approval – Grenada, Panama, Kosovo, and, most recently Libya – the courts have never stopped a war, with one minor (and temporary) exception. In 1973 Justice William O. Douglas did issue an order to halt the bombing of Cambodia – which lasted a full nine hours, until the full Supreme Court overturned it”, Glennon writes. (p 58)

Similar is the function of Congress whose main preoccupation is to become reelected. And last not least the President who could give an order wholly reversing U.S. national security policy, but he would not, because the likely adverse consequences would be prohibitive.

NSA Surveillance

Among the principal national security initiatives that the Bush Administration began and the Obama administration continued were several surveillance programs carried out by the NSA.

“The NSA was established in 1952 not by statute, but by President Truman’s Top Secret executive order”, Glennon writes. “Its very existence remained unacknowledged until it received unwanted public attention in the 1970ies when a report by the Senate Select Committee to Study Government Operations with respect to Intelligence Activities disclosed that the NASA had kept tabs on Vietnam opponents, assembling a watch list of individuals and organizations involved in the civil rights and anti- war movements.” (pp 75/76)

At that time Committee chairman Frank Church as Glennon reports, warned

“I don’t want to see this country ever go across the bridge. I know the capacity that is there to make tyranny total in America, and we must see to it this agency and all agencies that possess

this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.” (p 76)

As Glennon notes, under President Obama two controversial NSA surveillance programs were even continued: “One was a program under which the NSA secretly collected the telephone records of tens of millions of Americans who are customers of Verizon and also collected Internet communications. The phone records were collected under an order issued under section 215 of the Patriot Act, included phone numbers of both parties to every call, their locations, the time the call was made, and the length of the call. The order prohibited its recipient from discussing its existence. The second program Obama continued, PRISM, allowed the NSA to obtain private information about users of Google, Facebook, Yahoo and other internet companies.” (p80) Despite a lot of press revelations in 2013 (Guardian et al) and a House initiative by Senator Wyden that tried to prevent the NSA from continuing its phone records collection program in the US, was defeated after massive lobbying from NSA.

Implications for the future

Glennon emphasizes in his essay that things will not change in the US unless there is a massive institutional backup by the Madisonian institutions. He underlines that such institutional backup is available only if the general public itself does not lack “civic virtue” –meaning the capacity to participate intelligently in self- government and to elect officials who are themselves virtuous.

As interesting as his overall analysis is, its weakness lies in the fact that Glennon often mixes up facts taken from different periods in order to substantiate his thesis.

Yet in light of the unresolved NSA scandal and the justified worries of European States his warnings are to be taken seriously: It is as Glennon concludes his essay very uncertain what form of government will emerge from the United States’ experiment with double government and he warns at the end that the entire thing may lead to the emergence of an authoritarian State: “The risk is considerable, however that it will not be a democracy.” (p 113)

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