Michael Glennon’s National Security and Double Government is a brilliant book that could change how we talk about both national security and the Supreme Court. He starts by posing a question that any intelligent reader of the New York Times might ask: “Why did the national security policies of the Obama administration differ so little from those of the Bush administration?”
Glennon concedes there might be more than one explanation for this similarity. Maybe the “naïve” Obama realized when he took office that the Bush policies were the correct ones in today’s troubled world. Or maybe the “shallow” Obama did not have the political and bureaucratic skills necessary to change existing policies. But Glennon settles on a third explanation. The Obama and Bush national security policies were so alike because both were the creations of, not the president in office, but of a national security network of non-elected officials who make the key decisions no matter who is president.
Glennon has written a short book (with copious footnotes) that sets out his thesis. Here I will only sketch out his conclusions in hope that it will interest you in the book. After World War II, the top national security officials like Dean Acheson and Allen Dulles decided that the formal procedures set out in the constitution for creating policy were too cumbersome to effectively counter the Soviet Union. They, under the authority of President Truman, created a new organizational structure for national security affairs, including the Joint Chiefs of Staff, the National Security Council (NSC), the Central Intelligence Agency (CIA), and the National Security Agency (NSA). Henceforth nonpartisan experts, serving under presidents of either party, would create and implement national policies relating to national security.
While this national security establishment would do the heavy work of formulating and executing policy, the constitutionally created departments of the presidency, the congress, and the courts would provide them the legitimacy the expert bureaucrats could not supply on their own. The result was a form of “double government”; the “effective” government staffed by experts was given legitimacy by its formal submission to the “ceremonial” government, the elected officials. Both groups profited. The bureaucrats had the power, but politicians took the credit for its exercise. And the press also liked the new arrangement. It was much easier to write stories about a “decider” president than describe the amorphous process for the development of policy by faceless bureaucrats.
Glennon does not deny that the president and the congress still have the power to control the bureaucracy when they choose to use it; but the political reality is such that they seldom choose to do so. Members of congress seldom have the time or inclination to become experts in foreign affairs so they are usually willing to leave it in the hands of the experts so long as military suppliers in their districts are treated fairly. The President finds he needs the national security bureaucracy at least as much as it needs him. He finds he is dependent on the bureaucracy for both creation of policies and their implementation. If there is a crisis in Yemen, these are the people he asks for advice. And no American president wants to look “weak” on national security issues, and therefore presidents are reluctant to be seen as ignoring the advice of their military advisers. Think of President Kennedy and the Bay of Pigs.
The problem is that it is impossible to square this “double” government with the constitutional structure that calls for the active involvement, indeed competition, of the executive, legislative, and judicial branches in order to avoid a dangerous centralization of power in any one faction.
Any student of American government will learn a great deal from Glennon’s book. Many will concentrate on his overview of how the system works, but I think lawyers should take special notice of the role the Supreme Court has played in this dramatic transformation of American democracy. The Supreme Court is supposed to be the guardian of the constitutional order. But Glennon shows that the Supreme Court has remained silent as the structure set out in the text of the constitution has been dismantled. And this silence extends to a trillion dollars a year of government activities that impact individual constitutional rights.
Lawsuits challenging the new structure have been filed, but almost always the Supreme Court has sided with the National Security bureaucracy. The constitution clearly states the only Congress can declare war; yet since World War II, The Supreme Court has remained silent as the executive branch has engaged in major military actions without congressional authorization in places as diverse as Cambodia, Bosnia, and Libya. So too despite wide spread belief that the NSA surveillance programs violate the constitutional rights of millions of Americans, so far the federal courts have not been able to find even one plaintiff suitable to get a judicial ruling on the programs’ legality.
The Court has usually ratified the new structure by use of “technical” doctrines like “standing” to avoid ruling on alleged constitutional violations. But we must remember that in the real world a finding of “no standing” immunizes the challenged action from constitutional scrutiny. The Court’s silence allows the national security bureaucracy to have the final say. Glennon does not claim any nefarious conspiracy, but his analysis does suggest that the justices (liberals and conservatives) have been at least asleep at the wheel.
I can see three possible “futures” for Glennon’s book. It might be seriously considered by a wide audience and rejected as based on either a false picture of how national security is formulated or an antiquated concept of constitutional law. Or his analysis might be accepted as true and used as a blueprint for reform. But I fear the possibility of a third scenario; the book might never reach a large enough audience to have any effect on public discussion. It would ignored, not because it was wrong, but because perhaps it is too right.
Glennon challenges the present way we speak of the constitution and the Supreme Court. He sees “technical” issues like standing as having substantive import and what cases the Court refuses to hear as just as important as those that they do. This is not the conventional approach to constitutional law. Unfortunately often it is easier to ignore ideas that challenge the status quo than to evaluate them.
That’s why I urge you to buy, read, and discuss this book. If Glennon’s book fails because of its analytic weaknesses, that is the verdict of the marketplace of ideas. But if it fails because it sets out a provocative message that is not debated, we all lose because even those who might in the end reject Glennon’s conclusions can only learn from the clarity of his analysis and density of the factual material he presents. Buy this book! http://www.amazon.com/National-Security-Government-Michael-Glennon/dp/0190206446
addendum- Today’s NYT gives a good snapshot of the “double government” at work in the use of lethal military drones. http://www.nytimes.com/2015/04/26/us/politics/deep-support-in-washington-for-cias-drone-missions.html?&hp&action=click&pgtype=Homepage&module=first-column-region®ion=top-news&WT.nav=top-news&_r=0