Revision — From the June 2017 issue

Security Breach

Trump’s tussle with the bureaucratic state

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Forty years ago, when I worked as legal counsel for the Senate Foreign Relations Committee, we occasionally pulled all-nighters reconciling the House and Senate versions of a bill. Inevitably, we haggled over the wording, each side trying to preserve the language that would please our respective bosses. One evening, as we were toiling over a bill that contained provisions on foreign aid, human rights, and arms sales of keen interest to the State Department and the Pentagon, I set off through the warrenlike offices of the Rayburn Building in search of coffee. Opening the wrong door, I was surprised to find a State Department lawyer sitting at a desk, in front of a typewriter. He should have been at home, in bed, but here he was, typing away, writing language that he was quietly slipping to the House staffers, who presented it as their own.

Back then — even then — the influence of national security bureaucrats pervaded the lawmaking process. They drafted legislation that members of Congress introduced. They endorsed or opposed measures at hearings and markups. They presented views to conference committees that were laid out next to the House and Senate positions. They lobbied tirelessly, waiting outside the chambers during floor debates, ready with arguments and the data to back them up, pushing to inscribe their positions into law.

Today the influence of the bureaucrats is even more profound. A de facto directorate of several hundred managers sitting atop dozens of military, diplomatic, intelligence, and law enforcement agencies, from the Department of Homeland Security to the National Reconnaissance Office, has come to dominate national security policy, displacing the authority not only of Congress but of the courts and the presidency as well. The precise sizes of the agencies’ budgets and workforces are classified in many cases, but the numbers are indisputably enormous — a total annual outlay of around $1 trillion, and employees numbering in the millions.

The growth of this security edifice was mostly unplanned and unintended. In an attempt to contain the Soviet threat and end the internecine warfare among the U.S. armed services after World War II, President Harry S. Truman centralized national security decision-making.With his support, Congress created the modern Joint Chiefs of Staff, the CIA, and the National Security Council. Truman established the National Security Agency personally, through a secret order.

Liberals in Congress generally supported Truman’s initiatives, but conservatives feared that newly concentrated security authority posed a threat to democratic institutions and civilian control of the military. They invoked the specter of a “police state” run by “power-grabbing bureaucrats.” Truman himself, according to his adviser Clark Clifford, was “very strongly anti-FBI.” Nevertheless, the president believed that his new institutions were the best way to address security threats while safeguarding individual and political freedoms.

Truman’s hope proved misplaced. As one administration followed another, democratic accountability diminished, triggering an enormous transfer of power from elected officials to bureaucrats. Yet it was necessary to maintain the illusion that national security was controlled by our constitutionally established democratic institutions. To do otherwise would be to undermine the legitimacy both of those institutions and of the security bureaucracy itself.

Successive presidents therefore sought to project an image of unity between themselves and the security directorate, despite often divergent agendas. Barack Obama was a case in point. When the Pentagon advocated a troop surge in Afghanistan, Obama kept his disagreement largely out of the public eye. When NSA mass surveillance became a public embarrassment, Obama stuck with the organization. When his director of national intelligence, James Clapper, lied about it to Congress, Obama did nothing. And when the Senate Intelligence Committee’s torture report sparked calls to punish the torturers and their bosses, Obama came to their defense. No one was prosecuted.

Despite Obama’s gestures toward harmony, it became increasingly difficult to believe that the three constitutionally established branches of government actually controlled U.S. security policy. After reports emerged that the NSA had eavesdropped on the cell phone conversations of Angela Merkel, the German chancellor, for example, Obama’s national security adviser claimed the president knew nothing about it; some of these programs, Secretary of State John Kerry confessed, were on “automatic pilot.” The courts, for their part, used ringing rule-of-law rhetoric in high-profile detention cases, but in lower-profile disputes about national security, judges were noticeably less impassioned, often dismissing challenges to unlawful war-making, torture, surveillance, and kidnapping on dubious jurisdictional grounds. And Congress’s role in defining national security became more and more ceremonial. It all but abandoned its share of the war power, responded largely cosmetically to warrantless NSA surveillance by enacting the USA Freedom Act, and substituted hindsight for oversight when it came to black-site prisons and torture.

A few counterexamples do exist. Obama’s decision to go after Osama bin Laden suggested strong presidential involvement. Such actions were essential to preserving the familiar illusion of democratic control. But after Candidate Obama had forcefully and eloquently promised fundamental change, President Obama’s remarkable continuation of numerous Bush-era national security policies — warrantless mass surveillance, drone strikes, state-secrets claims, torturer immunity — ultimately took its toll. By the time Donald Trump appeared on the scene, the veneer of harmony had worn thin, exposing the bureaucracy’s dominance.

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