“Eternal vigilance is the price of liberty.”
The objective of this research post is to continue the examination of how the U.S. political class has homogenized. The focus of this post will be on the legislative branch of the U.S. government as it relates to how it practices the religion of state power.
My previous post addressed the nature of how the U.S. Judicial branch practices the religion of state power. That post leveraged Michael Glennon’s work on “National Security and Double Government” at The Fletcher School of Law and Diplomacy and this post will do the same. Let’s now explore how the U.S. legislative Branch (Congress) practices the religion of state power in the name of serving the public interest.
How does the U.S. legislative branch practice the religion of state power?
Like the courts, Congress’s apparent power also vastly outstrips its real power over national security.(1) Similar to the Trumanites, its members face a blistering workload.(2) Unlike the Trumanites, their work is not concentrated on the one subject of national security.(3) On the tips of members’ tongues must be a ready and reasonably informed answer not only to whether the United States should arm Syrian rebels, but also whether the medical device tax should be repealed, whether and how global warming should be addressed, and myriad other issues.(4) The pressure on legislators to be generalists creates a need to defer to national security and other experts.(5) To a degree congressional staffs fulfill this need.(6) But few can match the Trumanites’ informational base, drawing as they do on intelligence and even legal analysis that agencies often withhold from Congress.(7) As David Gergen put it, “[p]eople…..simply do not trust the Congress with sensitive and covert programs.”(8)
The Trumanites’ threat assessments, as well as the steps they take to meet those threats, are therefore seen as presumptively correct whether the issue is the threat posed by targets of drone strikes, by weapons of mass destruction in Iraq, or by torpedo attacks on U.S. destroyers in the Gulf of Tonkin.(9) Looming in the backs of members’ minds is the perpetual fear of casting a career-endangering vote.(10) No vote would be more fatal than one that might be tied causally to a cataclysmic national security breakdown.(11) While the public may not care strongly or even know about many of the Bush policies that Obama has continued, the public could and would likely know all about any policy change – and who voted for and against it – in the event Congress bungled the protection of the nation.(12) No member wishes to confront the “if only” argument: the argument that a devastating attack would not have occurred if only a national security letter had been sent, if only the state secrets privilege had been invoked, if only that detainee had not been released.(13) Better safe than sorry, from the congressional perspective. Safe means strong. Strong means supporting the Trumanites.(14)
Because members of Congress are chosen by an electorate that is disengaged and uninformed, Madison’s grand scheme of an equilibrating separation of powers has failed, and a different dynamic has arisen.(15) Madison’s design, as noted earlier, anticipated that ambition counteracting ambition would lead to an equilibrium of power and that an ongoing power struggle would result among the three branches that would leave room for no perilous concentration of power.(16) The government’s “several constituent parts” would be “the means of keeping each other in their proper places.”(17) But overriding ambition of legislators chosen by a disengaged and uninformed electorate is not to accumulate power by prescribing policy for the Trumanites, as Madison’s model would otherwise have predicted.(18) Their overriding ambition is to win reelection, an ambition often inconsistent with the need to resist encroachments on congressional power.(19) All members of Congress know that they cannot vote to prescribe – or proscribe – any policy for anyone if they lose reelection.(20) It is not that Madison was wrong; it is that the predicate needed for the Madisonian system to function as intended – civic virtue – is missing.(21)
As a result, Trumanite influence permeates the legislative process, often eclipsing even professional committee staff.(22) Trumanites draft national security bills that members introduce.(23) They endorse or oppose measures at hearings and mark-ups.(24) They lobby members, collectively and one-on-one.(25) Their positions appear on the comparative prints that guide members through key conference committee deliberations.(26) Sometimes Trumanites draft the actual language of conference reports.(27) They wait outside the chambers of the House and Senate during floor debates, ready on-the-spot to provide members with instant arguments and data to back them up.(28) Opponents frequently are blind-sided.(29) Much of this activity is removed from public eye, leading to the impression that the civics-book lesson is correct; Congress makes the laws.(30) But the reality is that virtually everything important on which national security legislation is based originates with or shaped by the Trumanite network.(31)
Conversely, congressional influence in the Trumanites’ decision-making processes is all but nil.(32) The courts have, indeed, told Congress to keep out.(33) In 1983, the Supreme Court invalidated a procedure, called the “legislative veto,” which empowered Congress to disapprove of Trumanite arms sales to foreign nations, military initiatives, and other national security projects.(34) The problem with the concept, the court said, was that it permitted Congress to disapprove of executive action without the possibility of a presidential veto.(35) A legislative proposal thereafter to give the Senate Intelligence Committee the power to approve or disapprove covert actions was rejected, on the grounds that the Court had ruled out such legislative controls.(36)
Defenders of the process often claim that congressional oversight nonetheless works.(37) How they can know this they do not say.(38) Information concerning the oversight committees’ efficacy remains tightly held and is seldom available even to members of Congress, let alone the general public.(39) “Today,” James Bamford has written, “the intelligence committees are more dedicated to protecting agencies from budget cuts than safeguarding the public from their transgressions.”(40) Authorization too often is enacted without full knowledge of what is being approved.(41) Even when intelligence activities such as the NSA surveillance are reported, meaningful scrutiny is generally absent.(42) Members of oversight committees typically are precluded from making available to non-member colleagues classified information that is transmitted to the committees.(43) This is true even if the activities in question are unlawful.(44)
Following the NSA surveillance leaks, for example, Senator Wyden said that he “and colleagues” believed that additional, unnamed “secret surveillance programs….go far beyond the intent of the statute.”(45) The Senate Armed Services Committee has “seemed generally clueless and surprised about the legal standard” applied the Executive in construing the scope of its authority under the AUMF.(46) The 9/11 Commission was unambiguous in its own conclusions concerning the reliability of congressional intelligence oversight; the word the Commission used to describe it was “dysfunctional.”(47) The oversight committees’ performance from the Iranian Revolution through the mining of Nicaraguan harbors, the Iran-Contra affair, NSA Surveillance, and other similar episodes provides scant evidence to contradict the Commission’s conclusion.(48)
Do you think meaningful change protecting your rights and representing your interests will come from the legislative branch? Lets now discuss how the executive branch practices the religion of state power in my next post.