Saturday, July 15, 2017

Trump-Proofing the Deep State

So, let's talk about Donald Trump and the "deep state."  There is no doubt that, while Republicans in Congress are not making much effort to restrain Trump, the federal bureaucracy is resisting and hobbling him.  To supporters, this seems terribly undemocratic.  Trump is, after all, our lawfully elected President.  As such he is in command of the Federal bureaucracy.  So why can't he issue commands to it and count on them being obeyed.  This leads to dark muttering against the "deep state."  The opposing viewpoint can be summed up in David Frum's pinned tweet, "Once you realize that 'deep state' is code for 'the rule of law,' you can translate their jibberish into English."

The term is apparently a translation of a Turkish expression that originated in the early Cold War.  During that time Turkey maintained the outward forms of democracy, but real power lay in the hands of a "deep state" -- a sinister conspiracy of military officers and retired officers dedicated to maintaining the status quo of power and not afraid to murder, state false flags, engineer riots, and collaborate with drug traffickers to achieve its aims.

Do we have anything like that?  Well, we clearly have a federal bureaucracy, made up of unelected officials.  This bureaucracy includes the military, the intelligence services, law enforcement, the border patrol, as well as regulatory agencies, government services, the IRS, etc. One can argue for the courts since federal judges have life tenure, but let's stick to the executive branch, since that is where the President's power is supposed to lie.

We want a system of democratic accountability.  Does that make it alarming that we have a large, unelected, technocratic bureaucracy acting as a constraint on the President, and should we subordinate it to the President who is, after all, the people's choice (sort of)?  Why can't the President, as our duly elected head of government, just give orders to the federal bureaucracy and count on having them obeyed?

The answer to that is straightforward.  It isn't safe to give the President total command over the Deep State.  We know that because we have tried, through actual experimentation in the field, giving the President complete control over the federal bureaucracy, and it hasn't gone well.  Best known is the case of Presidents wiretapping political opponents beginning with Franklin D. Roosevelt in the 1930's and ending with Congress imposing a strict warrant procedure in the 1970's.  But abuse of the Deep State did not begin in the 1930's and did not end in the 1970's.  It might be more accurate to say that the taming of the deep state is an endless and ongoing project.

To give a brief thumbnail sketch, during pre-Civil War times, the U.S. did not have much of a deep state, a thing we could get away with because the U.S. didn't have much of a state.  We did have a small army guarding the frontier with the Indians, a navy, a Coast Guard fighting smuggling, and ministers (not ambassadors) sent abroad. Ports of entry also had customs inspectors.  Frontier communities had a land claim office.  But for ordinary Americans, the U.S. state mostly just meant the postal service.*  Civilian offices operated on a spoils system, with each President firing his predecessors' whole body of postal clerks, port inspectors, and other civilian employees and replacing them with his own.  The President's ability to reward supporters with appointments was a major source of his power.  It was also a major way he controlled his party -- by accepting or rejecting recommendations from members of his party in Congress he gave or denied them the ability to offer patronage to constituents.**  People given patronage appointments were expected to return the favor by making campaign contributions, a major source of party funding.

After the Civil War, as the U.S. state grew, this system became less and less acceptable and pressure for a regular civil service grew.  There were two main reasons.  One was the need for continuity in personnel if the federal bureaucracy was actually going to be a functioning system.  The other was that the spoils system was becoming egregiously corrupt.  Indeed, the creation of a regulatory bureaucracy carried the risk of "systematic corruption," i.e., the danger of regulation being applied as a form of political favoritism, unless the bureaucracy was sheltered to some degree from political influence.  A federal civil service act creating a federal bureaucracy immune to partisan firing was passed in 1883.  The Interstate Commerce Commission (ICC), tasked with regulating rail road rates was created in 1887.  This was the first federal regulatory agency.  Many others would follow.

The dangers of allowing elective officials unrestrained power over the growing federal bureaucracy soon became apparent.  In an interesting tidbit I learned from David Frum, it would appear that the famous Teapot Dome Scandal under Warren G. Harding was not limited to the Department of the Interior.  In an attempt to quash the scandal, Harding's Attorney General and Director of the Bureau of Investigations (precursor to the FBI) dug for dirt on investigating members of Congress, fabricated some, and even tried to intimidate newspapers.  Better known are the abuses of surveillance by FDR in the 1930's, continuing under Presidents Truman and Eisenhower, escalating under Kennedy and Johnson, and culminating under Nixon with Watergate the the Ellsberg break-in.

So, does that mean that we should free the federal bureaucracy from elective officials and allow it to run itself?  Most definitely not!  Just as elective officials, given unchecked authority to use the "deep state" as they please will abuse it against their personal opponents, the deep state, left to itself, will either become "systematically corrupt" or go rogue, or both.  Frum praises J. Edgar Hoover for depoliticizing the FBI, but under Hoover the FBI famously became a rogue agency, spying on the Civil Rights and anti-war movements, stealing and fabricating evidence, and blackmailing elective officials.  This was also the time of the rogue CIA engaging in assassination attempts, false flags, and MKUltra.  Much of Americans' frequent paranoia about their government stems from the revelation of very real abuses in the 1970's.

So, if elective officials cannot be entrusted to control the deep state and the deep state cannot be trusted to control itself, what does that leave us?  Many libertarians would say, abolish the deep state. But invariably what they end up abolishing is government in its mommy functions (the ones that can be used in a "systematically corrupt" manner") but leaving intact many if not most of its daddy functions, i.e., the ones that can make a true police state.

No, what is needed is to subject the deep state to the rule of law.  That means enacting specific statutes governing what it is and is not allowed to do; it means establishing procedures that it must follow to afford due process; it means subjecting the deep state to democratic oversight and accountability, it means making it means making the deep state sueable in court; it means subjecting the deep state to Freedom of Information Act requests so far as national security allows, and so forth. These things constrain both what an elective leader can do with the deep state and what the deep state can do with itself.

And, it should be added, people like me can easily fall into one of two errors.  One is assuming that the Church Committee investigation tamed the deep state once and for all and that we no longer have to worry about it.  Ever since the Bush Administration's experiments in warrantless surveillance and torture, I think we have no such illusions on that score.

But the other error is to assume that dramatic Church Committee hearings and legislation and a highly visible victory, with corresponding humiliation, is the only way to reign in the deep state.  Jack Goldsmith, a former head of the Office of Legal Counsel under George W. Bush and resigned over excesses in surveillance, argues that even without such dramatic exposures and legislation, measures have been put in place that make the sort of warrantless surveillance, indefinite detention, and torture that took place under Bush unlikely under Trump:
A persistent theme in American history is that when Presidents act aggressively to curtail civil liberties at the dawn of a war or an emergency in a way that is later regretted, those regrets are remembered in the next war or emergency and are not repeated. No President has replicated Lincoln’s indiscriminate suspension of the writ of habeas corpus or his military trials for civilians in the United States. We have never again seen loyalty prosecutions as in World War I, or anything like the World War II exclusion of Japanese-Americans. The public criticism, regret, and ostracism that followed these practices stigmatized them and prevented their repetition. The same is likely true for officially sanctioned waterboarding.
Specifically compared to the Bush Administration in the wake of 9-11, Goldsmith argues that many of the Bush Administration's alarming decisions were the result of excessive executive branch secrecy that cannot be replicated today, and that Intelligence Community lawyers currently work under greater restrictions.  He also believes that simply the adverse publicity and public embarrassment attending revelation of Bush-era practices is enough to intimidate the military and the intelligence community from repeating them.***

And, just for the record, the armies, police and intelligence services are not the only parts of the Deep State that have needed reigning in.  Greater safeguards have been enacted, for instance, on the IRS, with more procedural due process requirements on its ability to audit.  Greater safeguards have been needed at times for regulatory agencies to prevent them from acting arbitrarily, or without due process.

The taming of the deep state is a constant, ongoing process, one that began when the deep state began, and will continue so long as the Deep State continues to find new avenues to act.  Power tends to be abused, particularly when it is arbitrary and without oversight.  The taming of the Deep State is a constant, ongoing process since the first civil service reform in the 1880's.  The Deep State will never be fully tamed, but progress can be made.  And the question now is, have we gone far enough in taming to Deep State to make it safe in the hands of Donald Trump?  

Interestingly enough, there have been two main challenges.  One is a claim by Trump of abuses by his predecessor; the other is a clear sign of abuse by Trump.

The Trump Administration has expressed obvious hypocritical civil libertarian concerns about abuses of "unmasking," i.e., revealing the names of U.S. citizens when picked up in NSA surveillance.  Currently, if the NSA inadvertently picks up the name of a U.S. person, it will mask it (simply referring to the individual as "USP" or, if more than one are mentioned, USP and an number) before passing the report on to White House officials.  If White House officials see the need to know the names of the US Person(s) in question, they submit the request to the NSA.  While the NSA has internal regulations on unmasking, such regulations can be changed.  There are no statutes on the subject.  How confident this makes you depends on how far you trust the NSA to self-regulate and how far you trust the integrity of the individuals in question.  So, if you are really worried about abuses of unmasking, let's see you put your money where your mouth is.  Propose  some amendment to current FISA legislation setting forth specific rules on when unmasking is allowed and perhaps require an "unmasking warrant" before it can be done.  But face facts and acknowledge that there will be times when unmasking is reasonable.  Say, if the Russian Ambassador reports that USP-1 and USP-2 have asked to evade US intelligence by sending messages from the Russia embassy over Russian secure lines, it looks like you have a pair of spies in your midst and finding out who they are is altogether in order.

Thus far (and anything can happen in the future, but thus far) Trump has not proven to be the nightmare of repression many of us feared, with one notable exception.  The most menacing part of the Deep State now under Trump is the part tasked with immigration enforcement -- Immigration and Customs Enforcement (ICE) and the Immigration and Border Patrol (IBP).  These agencies have launched a broad, arbitrary crackdown on illegal immigration, leaving almost unlimited discretion to the individual agents -- a formula for abuse.  As one commentator has remarked, giving unlimited discretion to the every individual at the street level (as this Administration has done on immigration enforcement) is an invitation to abuses of all kinds.  There is amble room to debate how many immigrants to allow in and under what conditions, but deportation actions now (like the workplace raids under GWB) are clear signs that parts of the Deep State remain dangerous as ever.  But we need greater procedural safeguards that can allow enforcement without abuse, regardless of the substantive policy.

Elective officials and unelected bureaucrats are both inclined to abuse their power unless reigned in by laws, procedural safeguards, and public oversight.  The unrestricted power of the Deep State is not safe in the hands of anyone, whether democratically elected or meritocratically elevated.  We can think of every single reform undertaken to date as mere preparation for making the Deep State safe in the hands of Donald Trump.  The next few years will play out how safe it is.  But the Deep State will never be entirely safe.  The taming and reform of it is a constant, never-ending process.

*Admittedly in those days before electronic communications, the post office was a lot more important than it is now.  It was the only form of communication other than privately carried letters. Post offices in small towns were often major social centers.  And postal stages and steamboats were among the main forms of public transportation.
**Which makes an important point about the movie Lincoln, in which he bribes Congressional Democrats to support the Thirteenth Amendment with offers of appointment to office.  What made his actions scandalous and in violation of accepted political terms was not that he was using appointments to office as a bribe; that was business as usual.  It was that he was bribing members of the opposing party, a unheard-of thing.
***Much the same apparently applies to Iran-Contra, in effect, an attempt to evade Congressional scrutiny by creating a secret covert operations slush fund.  Subsequent investigations did not really have the condemning and purging effect that people like me would have liked to see, but it apparently did have the effect of discouraging a repeat performance for fear of adverse publicity.

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