By WILLIAM S. SMITH • January 26, 2018
Republican lawmakers seem gleeful about recent revelations in the “RussiaGate” investigation that point to Obama administration abuses of Foreign Intelligence Surveillance Act (FISA) powers rather than Russian collusion. Before they pop the champagne, the GOP should soberly remember that what has been alleged is an entirely predictable result of the evolution of the national security state created by the Bush administration with the continuing support of congressional Republicans. The GOP was warned that someday the surveillance state would generate precisely this kind of abuse.
With Republican support, the national security state has grown so large that key policies are no longer decided by Madisonian institutions — Congress, the courts, the president — but by the national security bureaucracy. Tufts University scholar Michael Glennon has argued that we have entered a constitutional phase he labels “double government.” Glennon has written that “judicial review is negligible” and “congressional oversight is dysfunctional” while “presidential control is nominal.” If corroborated, the recent FISA scandal at the FBI would be “new” only in the sense that it represents the first direct attack on Madisonian institutions by the national security state, an ominous but inevitable development.
The argument is not that there exists a “deep state” conspiracy controlled by a tightly knit cabal. If that were the case, it would be easy to end a small conspiracy. Instead, the national security state is so large and well funded, in possession of so much information, that Madisonian institutions can no longer compete. Madisonian government is a Potemkin village, putting on a Kabuki show for the voters and providing the illusion that elections matter, when a bureaucracy, unknown to most Americans, makes most important national security decisions. What policies, you might ask, did Madisonian institutions not decide? The answer: only the big ones.
First, consider the “nominal” presidency. Barack Obama was the peace candidate, pledging to roll up the Middle East wars (save Afghanistan). Instead, military action was taken in Syria, Libya, Pakistan, Yemen and Somalia. Troops were withdrawn from Iraq, only to be sent back. Likewise, candidate Trump vowed to end the war in Afghanistan. But now, thousands more troops are returning. In a December 2016 speech, Trump declared, “We’re all over the place fighting in areas that we shouldn’t be fighting in.” Yet the recent national security strategy identified threats everywhere: Russia, China, North Korea, Iraq, Iran, Afghanistan, and “across Africa and the greater Middle East.” On national security, presidential elections seem not to matter much. The wars go on.
What of the “dysfunctional” Congress? The most important power granted by the Constitution is the Article I power to declare war. However, Congress has avoided debating the current wars, and the congressional war powers only complicate matters for those who prosecute them. Why, when “grown ups” are in charge, consult a raucous, unreliable Congress? So when the House Appropriations Committee voted overwhelmingly to repeal the Authorization for Use of Military Force allowing Congress to debate these wars, the national security community objected. Paul Ryan then dutifully torpedoed the provision without a vote, sending the clear message to his caucus that they should worry about their franked mail, not war and peace.
Consider Congress’s recent reauthorization of the FISA program. Were policy actually controlled by Congress, the FISA legislation should have been controversial. After all, a massive eavesdropping scandal was looming. Moreover, the Beltway establishment agrees that President Trump is Mussolini in a Brooks Brothers suit. Should Congress give this budding “dictator” eavesdropping powers that even temperate presidents had abused? Why not? Congress knows that Section 702 powers do not accrue to the president, but to the national security community, to “those who really keep us safe.” Congressional Republicans know to give the national security “professionals” like Peter Strzok the “tools” they need.
What about the “negligible” courts? From the rubberstamping FISA courts to the rejection of war powers cases to the detentions at Guantanamo Bay, the courts have taken no significant position that would interfere with the march of the national security state. The National Security Agency virtually laughed in the face of a federal district court judge recently when they informed the court that (whoops!) they had destroyed reams of surveillance data that the judge had asked them to preserve. On national security, the constitutional role of the courts is a dead letter.
The nation’s political class has allowed James Madison’s institutions to wither, and real authority now rests with the leaders of a largely unaccountable national security bureaucracy. The sad truth of the FBI scandal is that both parties are letting the nation slide into a post-constitutional era.
William S. Smith is research fellow and managing director of the Center for the Study of Statesmanship at The Catholic University of America. Article published concurrently at The Hill.