Further Thoughts on the Deep State and Rule of Law

I believe it is true that when Trump and the MAGAverse say "Deep State" they are generally referring to the rule of law, and that they see our national security bureaucracy as oppressive mostly because it seeks to hold them to the rule of law.  Another quote (broadly popular on the left) throws further light on the subject:: 

Certainly one can call this quote overly cynical. I believe that the opposite ideal, 

is one that probably everyone would agree to in theory, no matter how poorly we may do at living up to it.  

But I do think that seeing the law as something that protects one's in-group and binds out-groups, though never expressly articulated, is a good working definition of authoritarianism.  And there is no doubt that the deep state is an inherently authoritarian institution in the sense that it is based on a top-down command structure and innately coercive and, as such, inherently dangerous.

But at the same time, calls to defund the deep state are rather like calls to defund the police -- an invitation to chaos and disastrous in the real world.  Eliminating our military footprint overseas will not eliminate war, simply replace our military footprint with someone else's.  Eliminating intelligence gathering will simply blind ourselves while others retain their sight.  Unilateral disarmament is not peace, but merely preemptive surrender.

In short, our goal should not be to end the deep state, but to tame it.  But how?  There are three options:

1. Shrink the deep state
2. Subordinate the deep state to the rule of law
3. Subordinate the deep state to elective officials

These things are not mutually exclusive, but there can be tension among them, and a need to set priorities.

Glenn Greenwald and others like him seem to think that subordinating the deep state to the rule of law is a futile project, and we should focus on shrinking it.  Hence their alliance with Trump, because he appears to want to shrink the deep state since he cannot control it.

Is this a good priority?  And I suppose the only answer I can give is that is above my pay grade. I am certainly open to the idea that our deep state is too big and needs to be shrunken.  And certainly I am open to the idea that any time the deep state's capacity increases, it will find ways to use it, even expanding its surveillance and spreading into areas where it does not belong.  So there is much to be said for shrinking the deep state to the minimum necessary.

But would place priority in subordinating the deep state to the rule of law. This means that I do not see subordinating the deep state to the rule of law as futile, although I do see it as a difficult and unending project that will always run into more challenges.  

So why would I consider subordinating the deep state to the rule of law as more important that shrinking it?  Isn't it true (as Greenwald would doubtless say) that a smaller national security bureaucracy has less capacity to harm than a large one?  Well first of all, I do not know whether a national security bureaucracy shrunk far enough to cease being dangerous would be large enough to do its necessary job. Hateful as this may be to some on the anti-anti-Trump left, a national security bureaucracy large enough to be dangerous may be a necessary evil.

And second, since we are talking about priorities here, which is worse, a large but law-bound national security bureaucracy, or a small but lawless national security bureaucracy?  Can there be any doubt?  Lawless, coercive organizations can be small and still be dangerous. In my last post I discussed the tradeoff between giving the deep state "independence" and subordinating it to elective officials.  Give government agencies too much "independence" and they go rogue.  Subordinate them too much to elective officials, and they become a private praetorian guard.  The only safe option is to subordinate both elective officials and the unelected bureaucracy to the rule of law. The deep state should be subordinate to elective officials when acting within the discretion they are given by law.  It should remain independent of elective officials to the extent elective officials wish to circumvent the law.

And much the same tradeoff applies to the size of the national security bureaucracy.  Make it too large, and there is a very real risk that if will grow beyond the constraints of the law and go rogue.  But a small deep state is much more likely to become a private praetorian guard and therefore also dangerous.*  And make no mistake, that is exactly what a leader like Trump wants to do.

Giving Glenn Greenwald at al the benefit of the doubt, they appear to see Donald Trump's conflict with the national security bureaucracy as an attempt by the President to reign in a lawless deep state.  In fact, it has always been an attempt by the deep state to reign in a lawless president.

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*Hence the general rule within authoritarian societies, that the small, elite force such as the secret police are more dangerous than larger ones, such as the army.