It's Not The Spies' Fault

AWOT editors have written widely on the blurring of lines between different branches of government, and the consequences this has for being able to locate and resolve problems. AWOT has also noticed the tendency for the contemporary Bush administration to respond to political crises with institutional fixes. The most recent example of this came with the recent sacking of Porter Goss, the CIA director, after only an eighteen month tenure. His sacking has raised questions about the role of intelligence in national security decision-making, and the relationship between intelligence and politics. In particular, it has led to doubts that responses to the perceived intelligence failures of the CIA post 9/11 and post-Iraq have made any headway in resolving the problem. An awareness is developing that the problem may not be institutional, but political.

Goss was appointed in September 2004, replacing George J. Tenet. His job had been made difficult from the outset by the reforms of the intelligence community brought in by Congress in its Intelligence Reform and Terrorism Prevention Act. This created a post of intelligence czar, the ‘director of national intelligence’ (DNI), which took over a number of functions from the CIA director, including the daily briefing of the President. In recent months, John Negroponte, the new DNI, clashed with Goss over a number of issues.

Subsequent critical commentary has focused on the counter-productive impact of the DNI job, and in particular the proliferation of bureaucracy within the intelligence community. In a recent Financial Times article, appeals court judge Richard Posner, author of Uncertain Shield: The US Intelligence System in the Throes of Reform, was quoted as saying that “the reorganization was a mistake, was misconceived, [was] not responsive to the problems in the intelligence community.”

However, the FT article makes the interesting observation that today, some voices are being heard that are saying that the problems are not to be found within the intelligence community at all. They are political problems. This has been the claim of employees within the CIA, who have defended the agency’s work, claiming that Iraq was not a failure of intelligence, but was a product of political exigencies overriding the advice provided by state servants. In other words, the White House would only listen to what it wanted to hear, rather than take into account opposing arguments.

The picture that emerges is one that is familiar to AWOT readers: an administration where decision-making has been concentrated within a small number of individuals, who pursue goals without the considered deliberation and reflection that is spread across the institutions of government. Yet this inversion of the process by which democracies are supposed to operate is accompanied by another trend worth highlighting: the conduct of war in the absence of any real threat or enemy.

From this perspective, there’s no point in blaming the spies. Since the humanitarian interventions of the 1990s, threat assessments and political goals have been uncoupled. Or put another way, national security has become increasingly politicized, and no longer exists as a field that is distinct and abstracted from the domestic political fray. That intelligence became a political football in the run up to the Iraq war should, on this understanding, come as no surprise.

Of Leaks, Lie Detector Tests, and National Security

The firing last week of a CIA agent for leaking information about secret CIA-run prisons in Eastern Europe has produced a flurry of debate. Criticism of the Administration has most commonly taken the form of accusations of hypocrisy. While its own leaks (even to punish political opponents) are okay, leaks by others meant to expose government misconduct are firable offenses. Juan Cole at Informed Comment best captures this view, in his post "All Right, Not All Right." Yet, whether or not the Administration is behaving hypocritically is really besides the point, because what the episode most speaks to is a transformation in how our government views public access to information. Since 1945, the U.S. has developed, largely within the executive branch, an extensive bureaucratic apparatus organized around providinig domestic and international security. Rather than conducting government's business in the open, such a national security state operates through the flow of secret information. The lack of publicity in turn amplifies concerns with accountability and the misuse of state power. Today, one of the central features of the "war on terror" is its ability to extend such secrecy by enveloping much of government action within the domain of security. A system of leaks has been the primary way in which, despite such secrecy, citizens have continued to gain access to information. Just think back to the Pentagon Papers. In essence, while government officials assert that journalists have no right to classified material, if somehow such material reaches the press, journalists are free to publish it. Although such a system is far from ideal, leaks do shed some light on state behavior -- particularly in the context of an active and investigative press. In a sense, what the Administration is actually doing these days is shutting down the prevailing mode of publicity. As the NY Times reported today, the CIA has given dozens of special polygraph tests to its employees in an effort to squash any future leaks. The real problem for citizens, then, is not Administration hypocrisy, but its commitment to eliminating leaks as such and creating a rigid executive discipline. Given the remarkable compliance of the elite press, and the general trends away from investigative journalism, we may well be witnessing a shift of great significance. A government operating largely in secret, with few remaining avenues for public access and accountability, is anti-democratic to its core. Reclaiming democratic government therefore begins by prying open this national security apparatus.

The Judges Are Revolting

The Guardian reports that in a recent speech at Georgetown, Sandra Day O'Connor condemned what she saw as the evils of dictatorship beginning to corrupt the American political process. For the British daily, such stern words from a Republican ex-Supreme Court justice was a remarkable indictment of the Administration, its Congressional allies, and a general sign of just how bad things have gotten in the old U.S. of A. But, like with many things, first appearances can be deceiving.

Before praising O'Connor, it's important to ask exactly what she thought smacked of dictatorship. The reduction of popular participation in politics to only an occasional vote, with citizens enjoying little tangible control over basic political decisions? The intense resort to security speak as a way to justify permanent and global war? The creation of an international (and secret) prison system, largely unchecked and replete with cases of abuse? Clearly not the latter, since O'Connor's own decision in Hamdi v. Rumsfeld in June 2004 made constitutional the idea of indefinitely detaining individuals caught on the battlefield, with the only legal process being a military tribunal with the presumption of guilt, hearsay evidence, and no opportunity for judicial review.

Rather for O'Connor, what suggests the slide toward dictatorship are threats to the authority of the American judiciary -- specifically the efforts of Delay and other Republicans to strong-arm judges into supporting partisan political views. In a sense, such worries are part of a general trend among judges to hit back at what they see as a basic disrespect for their institutional competence. As discussed in an earlier post, what most upset the FISA court in the furor over warrantless domestic wiretapping was the fact that Bush's actions simply ignored the court entirely. Similarly, the Fourth Circuit, which has been notoriously deferential to presidential assertions of war powers, blocked the Justice Department's move last December to transfer Jose Padilla to a separate jurisdiction for a new criminal trial. For the conservative court, the government's behavior had crossed the line by directly questioning the circuit's power to decide on key cases.

Thus, what O'Connor and others fear as "dictatorship" is better understood as a threat to judicial supremacy in contested matters of law and constitutional politics. The courts have carved out an incredibly powerful role as final arbiters of constitutional meaning, but such power rests on the willingness of the "political" branches to defer to judicial authority and to accept the court's jurisdiction. Critically, this supremacy also rests on popular acquiescence to the court's right to preside over so much of the public discourse.

In a sense, what the Administration and Delay are doing --unintentionally -- in ratcheting up the partisan nature of the judiciary and openly defying court authority is exposing the very question of legitimacy at the heart of judicial politics. What right does O'Connor have to wield such massive power over our constitutional framework? At stake for her, the FISA judges, and the Fourth Circuit isn't the defense of the public from a threatening government. As we've repeatedly discussed, the courts have been instrumental in expanding the security state. For O'Connor and the other, their real interest is in is the current status quo of judicial sovereignty over basic political questions, which remains entirely unchallenged, and with it the troubling presumption that judges are "non-political" and neutral appliers of the law.

All this should make the Guardian and other commentators deeply suspicious of dictatorship-talk by O'Connor. For her democracy is synonymous with law-rule, the safe assertion of constitutional prerogative by insulated courts. This is as impoverished and empty a view of democracy as that offered by the Bushies, and should be resisted. As long as we take our political cues for those like O'Connor we will never have the tools to challenge the current status quo or the political imagination to develop a richer account of democratic possibility.

More Friends of FISA

Last week we predicted that Congress would react to the unwarranted wiretapping scandal by retroactively legalizing the administration’s action in some way. Well, Senator Arlen Specter has drafted legislation that would do just that, and more. As Marty Lederman points out in his extremely informative post (the whole thing is worth reading, here), the legislation appears as if Congress is stepping in and tightening the reigns on the administration, but in fact, the bill would do nothing to restrain the President, and would go a very long way in legitimating and providing legal cover for Bush’s activities.

In fact, this supposed restoration of checks and balances (at least that is the impression given by the Washington Post) is not only markedly worse than the original FISA statute, it is arguably a significant step back from the pre-1978 scenario, because the secret FISA court both holds responsibility for ensuring that the program as a whole is "consistent" with the Constitution, and at the same time, would be prevented from determining specific Fourth Amendment violations. In other words, the "review" offered by the FISA court is review in name only; all it would do is certify the program on a whole, but it cannot hear individual cases. As Lederman points out: "See the new section 704: The standard for the FISA Court's review of the application is whether "there is probable cause to believe that the electronic surveillance program will intercept communications of the foreign power or agent of a foreign power specified in the application, or a person who has had communication with the foreign power or agent of a foreign power specified in the application."

It doesn't get any broader or vaguer than that. This bill would improve markedly on an already rubber stamp court by making it virtually impossible to exercise meaningful review. Not that there is much room for improvement; as we've noted, the old FISA court was not exactly a palladium of liberty.

So, here's our question: where are you, liberal media? So great and widespread were the howls of outrage over the initial NSA program that Bush - who jumps at any chance he gets to play War President - was sent scurrying back to Congress for legal cover. Congress is in the process of responding with a program that embraces the worst aspects of the spying program and graces it with a patina of legality and an utterly toothless review process - a program that is undoubtedly worse than the original illegal spying. So let's hear it... where is the outrage? Do the mainstream media really think it is so much better to be spied on legally rather than illegally? Is it that much better for secret wiretapping to be backed with congressional acquiescence than without? Do you feel any freer with the knowledge that the secret spying program will once again be approved by a secret court, unable to hear appeals or even review individual cases?

A War Without War

A Tiny Revolution has this interesting post. It points out that at the Senate Judiciary Committee last week, Alberto Gonzalez appeared to argue both (a) that Bush can ignore a statute because of his inherent authority as a wartime president, and that (b) "we are not at war," and hence, can avoid applying various restrictions and treaty obligations that are part of the laws of war. To paraphrase Robespierre, they want a war without a war. Now, one might say that this kind of legal confusion is an inevitable byproduct of a war against an abstract idea or mental state such as terror. But the curious war without a war paradox also expresses something essential about our developing constitutional regime of emergency powers: an existential logic of national survival extended to the most mundane threat, a normalization of emergency powers, a near-permanent state of international intervention and belligerent occupation that has not violated the Congressional war powers so much as rendered it archaic. After all, aside from the first Gulf War, the last time Congress unambiguously declared war was WWII. The truth is, we’ve been through many wars without being at war, and Gonzalez’s skewed logic reflects this disturbing fact.

Trust me--I'm the President

Monday’s New York Times had an interesting editorial about what it called ‘The Trust Gap’ between President Bush and the American public. Predictably, the Times casts the dangers of a presidency based on trust as undermining the ‘checks and balances’ that exist to limit the power of the executive. Previous posts on this blog have argued that fetishizing ‘checks and balances’ – typically the left’s first line of defense against Bush initiatives – substitutes legalistic wrangling for political debate.

But there is also another element to this politics of fear. In demanding that the public trust him on a directly personal basis, Bush is trying to solicit a more immediate type of political legitimacy – a legitimacy based on a intimate, emotive relationship with the individual, instead of a relationship mediated by public institutions, that intercede between citizens and their elected representatives. While we may wish to question the extent to which we subordinate the political process to non-political ‘checks and balances’, the idea that political life can take place without collective public institutions is profoundly un-democratic.

As society is not a single organism, nor a beehive, but is organized around individuals, collective deliberation can only take place in the form of public institutions. To try and jump over the institutions of public debate, and hook leaders up directly to individuals, is to eliminate the substance of the political process itself. While this phenomenon has deep roots in twentieth century American political history, Bush’s limitless appetite for ‘trust’ indicates that presidential authoritarianism is being taken to deeper and darker depths. This reflects the degraded state of America’s political life. For Bush is no Caesar, decisively undermining the proud institutions of the Republic – these were already rotten through. In place of public reflection and debate, we have a sickly sweet, therapeutic authoritarianism whose preferred medium is television and passivity rather than mass rallies.

Judicial Review and the War on Terror, Part II. Law and Politics Revisited

In response to our post questioning the efficacy of judicial review of emergency powers, a perceptive reader responded:

"But are you really saying judges shouldn't act when faced with a president claiming the right to torture, to hold people indefinitely without trial, or to violate the laws of Congress? And if your point is that judges are wimps when faced with security issues, isn't that a problem of too little, rather than too much, judicial review?"

This question goes directly to the issue at stake here. Yes, those whose rights have been violated - including detainees of various stripes but also including thousands of immigrants who have been subject to arbitrary and unfair application of immigration law - should have their day in court. Yes, judges should respond when the president violates acts of Congress. There's nothing wrong with courts protecting individual rights; that's a big part of what they are supposed to do, and they should be criticized when they fail to do so.

But, as a matter of political engagement, it is a grave mistake to confine our arguments against the war on terror to the language of legality, or to concentrate our hopes on an unelected branch of government to save us. There are a number of reasons to be skeptical of judicial review as a means of preventing the abuse of emergency powers, and we will be discussing the issue in depth during our upcoming teach in. Here we just want to make one point: framing political problems in exclusively legal language (so that, for example, aspects of the war on terror are objectionable only if they can be shown to be illegal) is a bad political strategy. It implies an alienating discourse that is intended for "experts," it distracts from the need to clarify and convince other people in terms of fundamental values, and it ignores the fact that the constitution is permissive of a range of horrifying laws. Perhaps most importantly, excessive legalism narrows the horizon of our political imagination. A rote insistence on the rule of law forecloses the possibilities of thinking creatively about political transformation.

So, if the question is whether judges should be doing their jobs, we say, fine, more judicial review. But the judiciary is an organ of the state. As a rule, the judiciary will not oppose both branches of the state and defend constitutional rights against emergency powers. The history of the institution reflects this without exception. Under some circumstances, courts can be a forum for defending individual rights, but they cannot take the place of a political movement. Nor can petitioning of the government to protect one's rights take the place of the collective assertion of rights that are not recognized by the state. Our critique of legalism is not about inventing a pure distinction between law and politics (as though such a thing were imaginable). It is about two different visions of political activity: legalism encourages us to petition an organ of the state - the judiciary - to protect our rights for us, and when it fails to do so, it calls for more judicial review. The view we are advocating (in an admittedly experimental and probing sort of way) assumes that rights can only be expanded through their political assertion in the public sphere, and that they must be claimed against the state at times. Here, judicial review is totally ineffective. So if the question is whether there is too little judicial review as a means of the expansion of rights and the assertion of political liberty, our response is that the left would be better off with no judicial review at all.

Awkward Questions 3: Was Biden Almost Right?

Lest you think we were concerned only with Senatorial grand-standing and broad historical forces (see Awkward Questions 1 and 2), the last Awkward Question raised during Gonzalez's testimony yesterday falls squarely on the President and his shill's shoulders. In a sudden fit of logic, Senator Joseph Biden asked Gonzalez 'How will we know when this war is actually over?' The Attorney General responded: 'When Al Qaeda is destroyed', and then admitted this outcome would be nearly impossible to determine, because Al Qaeda is barely an organization in the first place, and, though he didn't say this, because terrorism isn't exactly a movement to begin with. Which is why the AG settled on a dodge: 'whenever that may be, we know it's not today'.

Biden, aspiring Presidential nominee that he is, unsurprisingly refused to take his quickly to its logical conclusion. He preferred instead to focus on what he sees as a proliferation of terrorist groups, rather than on the irrationality of calling all of this a war. But he put his finger on something long enough to smoke the administration out. This is not a war not only because there is no state, nor even an easily identified organization against which to fight, and not only because the threat is vastly overblown by Bush and company. It is also not a war because, as the AG put it, it has no future, only a present. There is no clear strategy, no identifiable end, no enemy to vanquish, only a climate of permanent crisis to maintain. For all of its desire to turn 9/11 into a defining, historical moment, this administration has utterly failed to make history. Instead, it lurches from crisis to crisis, struggling to maintain its power on the basis of permanent emergency rather than proper legitimacy. It substitutes fear for consent. That the Bush administration has no answer to the question, 'when will the war on terror be over,' and prefers war to peace, is in this sense not a sign of strength but of weakness. A return to normality would expose a disoriented and fumbling president, with no clear sense of purpose and few political allies.

Awkward Questions 1: Is Gonzalez Right?

Yesterday's first round of set-pieces, er, 'congressional inquiry' into the warrantless NSA wiretapping produced few surprises, but it did raise at least a couple awkward questions. Much has been made of Attorney General Alberto Gonzalez's claim that Bush has the 'inherent authority' to order secret wiretapping, without the approval of Congress or the FISA courts. Critics have pointed to this argument as evidence that Bush has departed wildly from American constitutional traditions, and even some Republican Senators weighed into Gonzalez for trying to do an end run around Congress.

But this criticism substitutes their own preferred interpretation of the constitution for actual constitutional history. For instance, during his testimony, Gonzalez plausibly referred to and interpreted a three-part test developed in Justice Jackson's ruling in the famous Youngstown case as justification for the wiretapping. More broadly, in a series of instances over the course of the 20th century, not only has Congress delegated wide-ranging powers to the President, the Supreme Court has also interpreted the Constitution to grant the President broad latitude to do what is necessary during wartime. This does not mean we should not be critical of Bush, but rather suggests criticism should be more substantial. If anything, Democratic Senators, and the swirl of opinion around them (including a few Republican Senators), are not facing the problem squarely by accusing Gonzalez of misinterpreting the constitution. The problem is not that Gonzalez was wrong but that he was right. What we are facing is not merely a single, runaway Presidency, but an even more unnerving historical trend that needs to be addressed directly and unflinchingly.*


*Note: An astute reader has identified a few ambiguities in the original post which we think are important enough to clarify here. That Justice Jackson, in the Youngstown case, condemned the unilateral assertion of executive discretion is indeed very important, and points to a problem with Gonzalez's invocation of that Justice. Important, too, are objections by Senators that they never intended to authorize this kind of warrantless wiretapping. The point above, however, is that unfortunately, even when a president has asserted powers that are clearly unconstitutional in the moment, subsequent acts by Congress and/or the Supreme Court have ended up granting many of these usurped powers constitutional or statutory authority. This may happen again here, with some senators calling for a bill that would make this kind of spying legal. In this sense, Gonzalez may have been right not about what is constitutional at the moment, nor in asserting that there is no meaningful check on presidential discretion, but in that his interpretation is based on historical precedents set by the actions of the other branches. Moreover, we take issue with the rhetorical dimension of the Senators' claims, which is that somehow the attack on the separation of powers is the unique and aberrant threat of this President, rather than something with deeper roots in our political life.

Awkward Questions 2: Is Grassley Right?

Awkward Questions 2: Is Grassley Right?

Yesterday, Republican Senator Charles Grassley asked 'where have I been in the last four years?' Funny as it is to hear a Senator ask that kind of question, it was something to ask of all the Senators. As Grassley further noted, these hearings are a day late and a dollar short. Referring to the privileged, private knowledge of this program by certain Senators:

'members of congress were told about this program over a period of four years...and then all of the sudden it hits the New York Times, and when it does, that song changes its tune from one going on in private to outrage...If something was wrong when they reported it, then something was wrong before they reported it...members of Congress have not done their job...we in Congress have some internal looking to do.'

Grassley, of course, wasn't being all that serious. Whenever Congress does some 'internal looking' it ends up passing useless pieces of legislation like the 1978 FISA act, which created the court that Bush bypassed but which has done little to constrain the executive. Or they pass the 1973 War Powers Act, which erected a paper barrier that every president since Ford has ignored, and which nobody has paid much attenttion to. Moreover, it's not that Grassley was so interested in reigning Bush as we was in symbolically asserting a little of his Senatorial powers. He also wanted throw the whole affair back in the face of Senate Democrats who had suddenly started baying about the spying program. But good points are raised for bad reasons. Isn't this really all a piece of political theater, as Grassley says? Why didn't the Democrats who knew about this spying come out and say something before? Their opportunism really is galling. It is especially so given that their six-year terms are ostensibly justified on the grounds that they lead rather than follow the mood of the fleeting present. Bush doesn't know what good friends he has in the Senate Democrats, whose loyal opposition grants a veneer of democracy to the lack of real politics up there on the Hill.