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The Dual (Double) Government-How Two Governments Function-Using Immanuel Kant’s Duty Ethics And The Social Contrast Theory.

ARTICLE

National Security and Double Government

_________________ Michael J. Glennon*

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control

the governed; and in the next place oblige it to control itself.

—James Madison1

Abstract

National security policy in the United States has remained largely constant from the Bush Administration to the Obama Administration. This continuity can be explained by the “double government” theory of 19th-century scholar of the English Constitution Walter Bagehot. As applied to the United States, Bagehot’s theory suggests that U.S. national security policy is defined by the network of executive officials who manage the departments and agencies responsible for protecting U.S. national security and who, responding to structural incentives embedded in the U.S. political system, operate largely removed from public view and from constitutional constraints. The public believes that the constitutionally-established institutions control national security policy, but that view is mistaken. Judicial review is negligible; congressional oversight is dysfunctional; and presidential control is nominal. Absent a more informed and engaged

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Copyright © 2014 by the Presidents and Fellows of Harvard College and Michael J. Glennon.

* Professor of International Law, Fletcher School of Law and Diplomacy, Tufts University. Thanks to Artin Afkhami, Ashley Belyea, Julia Brooks, Mike Eckel, Ian Johnstone, Robert Hillman, William Martel, John Perry, Luca Urech, and Fletcher political science workshop participants for comments on an earlier draft; to Beaudre Barnes, Claudio Guler, and Cecilia Vogel for research assistance; and to innumerable Trumanites and Madisonians, past and present, with whom I have worked and spoken over the years. Those associations and my own experience provide the backdrop of this Article. Mistakes and opinions are my own. 1 THE FEDERALIST NO. 51 (James Madison).

electorate, little possibility exists for restoring accountability in the formulation and execution of national security policy.

Introduction

Few who follow world events can doubt that the Obama Administration’s approach to multiple national security issues has been essentially the same as that of the Bush Administration.2 The Obama Administration, like its predecessor, has sent terrorism suspects overseas for detention and interrogation;3 claimed the power to hold, without trial, American citizens who are accused of terrorism in military confinement;4 insisted that it is for the President to decide whether an accused terrorist will

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2 While this Article considers only national security policy, it is important to note that elements of national security policy bear directly upon U.S. foreign policy generally and, indeed, upon domestic policy. The Bush/Obama view that “homeland security [is] the be- all and end-all of grand strategy,” for example, has required maintaining “the security apparatus that supported drone attacks on Al Qaeda targets” in countries such as Yemen, which in turn has shaped U.S. engagement in the Middle East and the muted U.S. response to the Arab Spring. “Drones, not democracy, drive American policy.” VALI NASR, THE DISPENSABLE NATION: AMERICAN FOREIGN POLICY IN RETREAT 180–81 (2013). See ROBERT J. SPITZER, COMPARING THE CONSTITUTIONAL PRESIDENCIES OF GEORGE W. BUSH AND BARACK OBAMA: WAR POWERS, SIGNING STATEMENTS, VETOES 2 (2012); Richard M. Pious, Obama’s Use of Prerogative Powers in the War on Terrorism, in OBAMA IN OFFICE 255, 256 (James A. Thurber ed., 2011); Richard M. Pious, Prerogative Power in the Obama Administration: Continuity and Change in the War on Terrorism, 41 PRESIDENTIAL STUD. Q. 263, 264 (June 2011). 3 David Johnston, U.S. Says Rendition to Continue, but with More Oversight, N.Y. TIMES, Aug. 24, 2009, http://www.nytimes.com/2009/08/25/us/politics/25rendition.html, [http:// www.perma.cc/09SBNcUFE4B/]. 4 Peter Baker, Obama to Use Current Law to Support Detentions, N.Y. TIMES, Sept. 23, 2 0 0 9 , h t t p : / / w w w. n y t i m e s . c o m / 2 0 0 9 / 0 9 / 2 4 / u s / p o l i t i c s / 2 4 d e t a i n . h t m l ? _ r = 0 , [www.perma.cc/0j8wrqrjEVL] (“The Obama administration has decided not to seek new legislation from Congress authorizing the indefinite detention of about 50 terrorism suspects being held without charges at Guantanamo Bay, Cuba, officials said Wednesday. Instead, the administration will continue to hold the detainees without bringing them to trial based on the power it says it has under the Congressional resolution passed after the attacks of Sept. 11, 2001, authorizing the President to use force against forces of Al Qaeda and the Taliban.”); see also Matthew C. Waxman, Administrative Detention: Integrating Strategy and Institutional Design, in LEGISLATING THE WAR ON TERROR: AN AGENDA FOR REFORM 43, 45 (Benjamin Wittes ed., 2009) (describing how the Obama Administration has “continued to defend a broad authority to detain suspected al Qaeda and affiliated terrorists based on the law of war”).

be tried by a civilian court or a military tribunal;5 kept the military prison at Guantánamo Bay open,6 argued that detainees cannot challenge the conditions of their confinement,7 and restricted detainees’ access to legal counsel;8 resisted efforts to extend the right of habeas corpus to other off- shore prisons;9 argued that detainees cannot invoke the Geneva Conventions in habeas proceedings;10 denied detainees access to the International Committee of the Red Cross for weeks at a time;11 engaged the United States in a military attack against Libya without congressional approval, in

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5 See Anne E. Kornblut & Carrie Johnson, Obama Will Help Select Location of Khalid S h e i k M o h a m m e d Te r ro r i s m Tr i a l , W A S H . P O S T , F e b . 1 2 , 2 0 1 0 , h t t p : / / www.washingtonpost.com/wp-dyn/content/article/2010/02/11/AR2010021105011_pf.html, [http://www.perma.cc/0PSRibPn6Wi] (“President Obama is planning to insert himself into the debate about where to try the accused mastermind of the Sept. 11, 2001, attacks, three administration officials said . . . .”). 6 Guantanamo Bay Still Unresolved, NPR.ORG (Jan. 14, 2013, 12:00 PM), http:// www.npr.org/2013/01/14/169334679/guantanamo-bay-still-unresolved, [http:// www.perma.cc/0iLHqVYKmJf/]. 7 See Gov’t Brief at 3, Bostan v. Obama, 674 F. Supp. 2d 9 (D.D.C. Apr. 9, 2009) (No. 1:05-cv-00883). 8 Charlie Savage, Judge Rejects New Rules on Access to Prisoners, N.Y. TIMES, Sept. 6, 2012, http://www.nytimes.com/2012/09/07/us/judge-rejects-limits-on-lawyers-access-to- guantanamo-prisoners.html?_r=0, [http://www.perma.cc/0ua3YPrxbSS/] (“Accusing the Obama administration of ‘an illegitimate exercise of executive power,’ a federal judge on Thursday rejected the government’s effort to impose new restrictions on lawyers’ access to prisoners at Guantanamo Bay, Cuba, if they were no longer actively challenging the prisoners’ detention in federal court.”). 9 Charlie Savage, Obama Upholds Detainee Policy in Afghanistan, N.Y. TIMES, Feb. 21, 2009, http://www.nytimes.com/2009/02/22/washington/22bagram.html?_r=0, [http:// www.perma.cc/0QcYjY9QLE3/] (“The Obama administration has told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.”). None of the sixty- seven non-Afghan prisoners held at Bagram Air Force base has been formally tried. Kevin Sieff, In Afghanistan, a Second Guantanamo, WASH. POST, Aug. 5, 2013, http:// www.washingtonpost.com/world/in-afghanistan-a-second-guantanamo/2013/08/04/ e 3 3 e 8 6 5 8 - f 5 3 e - 11 e 2 - 8 1 f a - 8 e 8 3 b 3 8 6 4 c 3 6 _ p r i n t . h t m l , [ h t t p : / / w w w. p e r m a . c c / 0gmuzShiTwz]. Many have been cleared for release by informal military review boards, but most of those were never freed. Id. 10 Gov’t Brief, supra note 7 (“Congress has recently and unambiguously precluded reliance on or invocation of the Geneva Conventions in habeas cases or in any other civil action; the Military Commissions Act of 2006 (‘MCA’) reflects the well-established principle that the Geneva Conventions are not judicially enforceable by private individuals.”). 11 Alissa J. Rubin, Afghans Detail Detention in ‘Black Jail’ at U.S. Base, N.Y. TIMES, Nov. 28, 2009, http://www.nytimes.com/2009/11/29/world/asia/29bagram.html?pagewanted=all, [http://www.perma.cc/0ptmkdcFGpG/] (“An American military detention camp in Afghanistan is still holding inmates, sometimes for weeks at a time, without access to the International Committee of the Red Cross, according to human rights researchers and former detainees held at the site on the Bagram Air Base.”).

the face of no actual or imminent threat to the nation;12 and continued, and in some respects expanded, the Bush Administration’s ballistic missile defense program.13

The Obama Administration, beyond ending torture, has changed “virtually none” of the Bush Administration’s Central Intelligence Agency (“CIA”) programs and operations,14 except that in continuing targeted killings, the Obama Administration has increased the number of covert drone strikes in Pakistan to six times the number launched during the Bush Administration.15 The Obama Administration has declined to prosecute those who committed torture (after the President himself concluded that waterboarding is torture);16 approved the targeted killing of American

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12 See Charlie Savage & Mark Landler, White House Defends Continuing U.S. Role in Libya Operation, N.Y. TIMES, June 15, 2011, http://www.nytimes.com/2011/06/16/us/ politics/16powers.html?pagewanted=all, [http://www.perma.cc/0p5uDsF7tMf/] (“The White House, pushing hard against criticism in Congress over the deepening air war in Libya, asserted Wednesday that President Obama had the authority to continue the military campaign without Congressional approval because American involvement fell short of full- blown hostilities.”). 13 See ANDREW FUTTER, BALLISTIC MISSILE DEFENSE AND U.S. NATIONAL SECURITY POLICY: NORMALIZATION AND ACCEPTANCE AFTER THE COLD WAR 134–58 (2013). 14 Sarah Moughty, Top CIA Official: Obama Changed Virtually None of Bush’s Controversial Programs, FRONTLINE (Sept. 1, 2011, 11:02 AM), http://www.pbs.org/wgbh/ pages/frontline/iraq-war-on-terror/topsecretamerica/top-cia-official-obama-changed- virtually-none-of-bushs-controversial-programs/, [http://www.perma.cc/0sdUgvQfkEr/] (quoting former CIA Acting General Counsel John Rizzo: “With a notable exception of the enhanced interrogation program, the incoming Obama administration changed virtually nothing with respect to existing CIA programs and operations”). 15 Peter Bergen & Megan Braun, Drone is Obama’s Weapon of Choice, CNN.COM (Sept. 19, 2012, 10:37 AM), http://www.cnn.com/2012/09/05/opinion/bergen-obama-drone, [http://www.perma.cc/0RFNWZGDoM8/] (“[President Obama] has already authorized 283 strikes in Pakistan, six times more than the number during President George W. Bush’s eight years in office. As a result, the number of estimated deaths from the Obama administration’s drone strikes is more than four times what it was during the Bush administration – somewhere between 1,494 and 2,618.”). 16 See Scott Shane, No Charges Filed on Harsh Tactics Used by the C.I.A., N.Y. TIMES, Aug. 30, 2012, http://www.nytimes.com/2012/08/31/us/holder-rules-out-prosecutions-in- cia-interrogations.html?_r=2&pagewanted=1&pagewanted=all&, [http://perma.cc/ 0kL2rS3VBWE] (“Attorney General Eric H. Holder Jr. announced Thursday that no one would be prosecuted for the deaths of a prisoner in Afghanistan in 2002 and another in Iraq in 2003, eliminating the last possibility that any criminal charges will be brought as a result of the brutal interrogations carried out by the C.I.A. . . . . the decision will disappoint liberals who supported President Obama when he ran in 2008 and denounced what he called torture and abuse of prisoners under his predecessor.”).

citizens (Anwar al-Awlaqi and a compatriot17) without judicial warrant;18 rejected efforts by the press and Congress to release legal opinions justifying those killings or describing the breadth of the claimed power;19 and opposed legislative proposals to expand intelligence oversight notification requirements.20 His administration has increased the role of covert special operations,21 continuing each of the covert action programs that President Bush handed down.22 The Obama Administration has continued the Bush Administration’s cyberwar against Iran (code-named “Olympic Games”)23 and sought to block lawsuits challenging the legality

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17 Mark Mazzetti, Charlie Savage & Scott Shane, How a U.S. Citizen Came to be in America’s Cross Hairs, N.Y. TIMES, Mar. 9, 2013, http://www.nytimes.com/2013/03/10/ w o r l d / m i d d l e e a s t / a n w a r- a l - a w l a k i - a - u s - c i t i z e n - i n - a m e r i c a s - c r o s s - h a i r s . h t m l ? pagewanted=all, [http://www.perma.cc/0thgVJziYSx/] (“For what was apparently the first time since the Civil War, the United States government had carried out the deliberate killing of an American citizen as a wartime enemy and without a trial.”). 18 See Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen, N.Y. TIMES, Oct. 8, 2011, http://www.nytimes.com/2011/10/09/world/middleeast/secret-us-memo- made-legal-case-to-kill-a-citizen.html?pagewanted=all, [http://www.perma.cc/ 0tDjQbpbLFc/]. 19 Scott Shane & Mark Mazzetti, White House Tactic for C.I.A. Bid Holds Back Drone Memos, N.Y. TIMES, Feb. 20, 2013, http://www.nytimes.com/2013/02/21/us/politics/ strategy-seeks-to-ensure-bid-of-brennan-for-cia.html?pagewanted=all, [http:// www.perma.cc/03bnHH29pzk/] (“The White House is refusing to share fully with Congress the legal opinions that justify targeted killings . . . . The refusal so far to share more of the opinions with Congress, or to make redacted versions of the memos public, comes despite a pledge of greater transparency by President Obama in his State of the Union address on Feb. 12.”). 20 Walter Pincus, White House Threatens Veto on Intelligence Activities Bill, WASH. POST, Mar. 16, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/03/15/ AR2010031503720.html?hpid=sec-politics, [http://www.perma.cc/0vqJVN4sCKV/] (“The White House has renewed its threat to veto the fiscal 2010 intelligence authorization bill over a provision that would force the administration to widen the circle of lawmakers who are informed about covert operations and other sensitive activities.”). 21 Karen DeYoung & Greg Jaffe, U.S. ‘Secret War’ Expands Globally as Special Operations Forces Take Larger Role, WASH. POST, June 4, 2010, http:// www.washingtonpost.com/wp-dyn/content/article/2010/06/03/AR2010060304965_pf.html, [http://perma.cc/0EPuhJEqXCL] (“Beneath its commitment to soft-spoken diplomacy and beyond the combat zones of Afghanistan and Iraq, the Obama administration has significantly expanded a largely secret U.S. war against al-Qaeda and other radical groups, according to senior military and administration officials.”). 22 MARK MAZZETTI, THE WAY OF THE KNIFE: THE CIA, A SECRET ARMY, AND A WAR AT THE ENDS OF THE EARTH 225 (2013). 23 See DAVID E. SANGER, CONFRONT AND CONCEAL: OBAMA’S SECRET WARS AND SURPRISING USE OF AMERICAN POWER 188–203 (2013).

of other national security measures,24 often claiming the state secrets privilege.25

The Obama Administration has also continued, and in some ways expanded, Bush-era surveillance policies. For example, the Obama Administration continued to intercept the communications of foreign leaders; 26 further insisted that GPS devices may be used to keep track of certain citizens without probable cause or judicial review27 (until the Supreme Court disapproved28); continued to investigate individuals and groups under Justice Department guidelines re-written in 2008 to permit

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24 Adam Liptak, Justices Turn Back Challenge to Broader U.S. Eavesdropping, N.Y. TIMES, Feb. 26, 2013, http://www.nytimes.com/2013/02/27/us/politics/supreme-court-rejects- challenge-to-fisa-surveillance-law.html, [http://www.perma.cc/0f6RQErGey7/] (describing how the Supreme Court ruled “that the journalists, lawyers and human rights advocates who challenged the constitutionality of the [FISA Amendments] could not show they had been harmed by it and so lacked standing to sue” and how “[t]he Obama administration defended the law in court, and a Justice Department spokesman said the government was ‘obviously pleased with the ruling.’”). 25 Charlie Savage, Obama’s War on Terror May Resemble Bush’s in Some Areas, N.Y. TIMES, Feb. 17, 2009, http://www.nytimes.com/2009/02/18/us/politics/18policy.html? pagewanted=all, [http://www.perma.cc/0EuB1yXzZFY/]; see Ryan Devereaux, Is Obama’s Use of State Secrets Privilege the New Normal?, NATION, Sept. 29, 2010, http:// www.thenation.com/article/155080/obamas-use-state-secrets-privilege-new-normal#, [http://www.perma.cc/0ViNXrCjZDi/]. 26 Scott Wilson & Anne Gearan, Obama didn’t know about surveillance of U.S.-allied world leaders until summer, officials say, WASH. POST, Oct. 30, 2013, http:// www.washingtonpost.com/politics/obama-didnt-know-about-surveillance-of-us-allied- world-leaders-until-summer-officials-say/2013/10/28/0cbacefa-4009-11e3-a751- f032898f2dbc_story.html, [http://perma.law.harvard.edu/0Udk99ndnJm/]; Alison Smale, Melissa Eddy & David E. Sanger, Data Suggests Push To Spy on Merkel Dates to ’02, N.Y. TIMES, Oct. 28, 2013, http://www.nytimes.com/2013/10/28/world/europe/data-suggests- push-to-spy-on-merkel-dates-to-02.html?_r=0, [http://perma.law.harvard.edu/ 0WjiCMF31p1/]. 27 Adam Liptak, Court Case Asks if ‘Big Brother’ Is Spelled GPS, N.Y. TIMES (Sept. 10, 2011), http://www.nytimes.com/2011/09/11/us/11gps.html, [http://www.perma.cc/ 0jEBCJDuAi5/] (describing how the Obama Administration argued that “requiring a warrant to attach a GPS device to a suspect’s car ‘would seriously impede the government’s ability to investigate leads and tips on drug trafficking, terrorism and other crimes’”). 28 See United States v. Jones, 132 S. Ct. 945, 949 (2012) (“We hold that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’”); see also Adam Liptak, Justices Say GPS Tracker Violated Privacy Rights, N.Y. TIMES (Jan 23, 2012), http://www.nytimes.com/ 2012/01/24/us/police-use-of-gps-is-ruled-unconstitutional.html?pagewanted=all&_r=0, [http://www.perma.cc/0ENtVZv7e6r/]. (“The Supreme Court on Monday ruled unanimously that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.”).

“assessments” that require no “factual basis” for FBI agents to conduct secret interviews, plant informants, and search government and commercial databases;29 stepped up the prosecution of government whistleblowers who uncovered illegal actions,30 using the 1917 Espionage Act eight times during his first administration to prosecute leakers (it had been so used only three times in the previous ninety-two years);31 demanded that businesses turn over personal information about customers in response to “national security letters” that require no probable cause and cannot legally be disclosed;32 continued broad National Security Agency (“NSA”) homeland surveillance;33 seized two months of phone records of reporters and editors of the Associated Press for more than twenty telephone lines of its offices and journalists, including their home phones and cellphones, without notice;34 through the NSA, collected the telephone records of millions of

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29 Charlie Savage, F.B.I. Focusing on Security Over Ordinary Crime, N.Y. TIMES, Aug. 23, 2013, http://www.nytimes.com/2011/08/24/us/24fbi.html?_r=0, [http://www.perma.cc/ U8JM-4BKC]. From 2009 to 2011, the FBI logged 82,325 such assessments. Id. 30 See Michael S. Schmidt, Ex-C.I.A. Officer Sentenced to 30 Months in Leak, N.Y. TIMES, Jan. 25, 2013, http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in- leak-case.html?ref=waterboarding, [http://www.perma.cc/0JZzFgyAtME/] (“A former Central Intelligence Agency officer was sentenced on Friday to 30 months in prison for disclosing the identity of a covert agency officer to a freelance writer, representing the first time that a C.I.A. officer will serve prison time for disclosing classified information to the news media. The sentencing in federal court here of John C. Kiriakou, 48, who served as an agency analyst and counterterrorism officer from 1990 to 2004, was the latest development in the Obama administration’s unprecedented crackdown on government leaks.”). 31 Elizabeth Shell & Vanessa Dennis, 11 ‘Leakers’ Charged with Espionage, PBS NEWSHOUR, Aug. 21, 2013, http://www.pbs.org/newshour/multimedia/espionage/, [http:// perma.cc/E27L-KRMY]. 32 Ellen Nakashima, White House Proposal Would Ease FBI Access to Records of Internet Activity, WASH. POST, July 29, 2010, http://www.washingtonpost.com/wp-dyn/content/ article/2010/07/28/AR2010072806141.html, [http://perma.law.harvard.edu/0o9xk1AifSe] (“To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security.”). 33 Charlie Savage & James Risen, Federal Judge Finds N.S.A. Wiretaps Were Illegal, N.Y. TIMES, Mar. 31, 2010, http://www.nytimes.com/2010/04/01/us/01nsa.html, [http:// perma.law.harvard.edu/0bWyABEng2m] (“A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush. In a 45-page opinion, Judge Vaughn R. Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon, and of two lawyers representing it in 2004.”). 34 Charlie Savage, Phone Records of Journalists Seized by U.S., N.Y. TIMES, May 13, 2013, http://www.nytimes.com/2013/05/14/us/phone-records-of-journalists-of-the-associated- press-seized-by-us.html?pagewanted=all&_r=0, [http://perma.cc/0DS9VmcDerU].

Verizon customers, within the United States and between the United States and other countries, on an “ongoing, daily basis” under an order that prohibited Verizon from revealing the operation;35 and tapped into the central servers of nine leading U.S. internet companies, extracting audio and video chats, photographs, emails, documents, and connection logs that enable analysts to track foreign targets and U.S. citizens.36 At least one significant NSA surveillance program, involving the collection of data on the social connections of U.S. citizens and others located within the United States, was initiated after the Bush Administration left office.37

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35 Glenn Greenwald, NSA collecting phone records of millions of Verizon customers daily, THE GUARDIAN, June 5, 2013, http://www.guardian.co.uk/world/2013/jun/06/nsa-phone- records-verizon-court-order, [http://perma.law.harvard.edu/02efbNFu6kz]; see Charlie Savage & Edward Wyatt, U.S. Is Secretly Collecting Records of Verizon Calls, N.Y. TIMES, June 5, 2013, http://www.nytimes.com/2013/06/06/us/us-secretly-collecting-logs-of- business-calls.html, [http://perma.law.harvard.edu/0XwUvKmBN1N]; Ellen Nakashima, Verizon providing all call records to U.S. under court order, WASH. POST, June 6, 1013, http://articles.washingtonpost.com/2013-06-05/world/39766583_1_court-order-secret- court-verizon, [http://perma.law.harvard.edu/0h9ns6o3WPz]. For further discussion, see Part IV.D infra. 36 Barton Gellman & Laura Poitras, Documents: U.S., British intelligence mining data from nine U.S. internet companies in broad secret program, WASH. POST, June 6, 2013, http:// www.washingtonpost.com/investigations/us-intelligence-mining-data-from-nine-us- internet-companies-in-broad-secret-program/2013/06/06/3a0c0da8-cebf-11e2-8845- d970ccb04497_print.html, [http://perma.cc/03Ln5QPBWr]; James Ball & Spencer Ackerman, NSA loophole allows warrantless search for US citizens’ emails and phone calls, THE GUARDIAN, Aug. 9, 2013, http://www.theguardian.com/world/2013/aug/09/nsa- loophole-warrantless-searches-email-calls, [http://perma.law.harvard.edu/0ETnqUSornG/]. 37 James Risen & Laura Poitras, N.S.A. Gathers Data on Social Connections of U.S. Citizens, N.Y. TIMES, Sept. 28, 2013, http://www.nytimes.com/2013/09/29/us/nsa- e x a m i n e s - s o c i a l - n e t w o r k s - o f - u s - c i t i z e n s . h t m l ? p a g e w a n t e d = a l l , [ h t t p : / / perma.law.harvard.edu/0oMAghojGHo/].

These and related policies were formulated and carried out by numerous high- and mid-level national security officials who served in the Bush Administration and continued to serve in the Obama Administration.38

Given Senator Obama’s powerful criticism of such policies before he took office as President, the question,39 then, is this: Why does national

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38 These included Dennis Blair, President Obama’s Director of National Intelligence from 2009 to 2010, who served as Commander-in-Chief of the U.S. Pacific Command in the Bush Administration; John Brennan, CIA Director and former Assistant to the President for Homeland Security in the Obama Administration, who served in the Bush Administration as Chief of Staff to CIA Director George Tenet, Deputy Director of the CIA, and Director of the National Counterterrorism Center; James B. Comey, FBI Director in the Obama Administration who served as Deputy Attorney General in the Bush Administration; James Clapper, Obama’s Director of National Intelligence since 2010, who served as President Bush’s Under Secretary of Defense for Intelligence; Robert Gates, Secretary of Defense in the Obama Administration from 2009 to 2011 and also in the Bush Administration; Stephen Kappes, Deputy Director of the CIA in the Obama Administration from 2009 to 2010, who served in that same position in the Bush Administration; Michael Leiter, Director of the National Counterterrorism Center under Obama from 2009 to 2011 and earlier under President Bush; Douglas Lute, Obama’s coordinator for Afghanistan and Pakistan on the National Security Staff from 2009 to 2013, who served in the Bush Administration as Assistant to the President and Deputy National Security Advisor for Iraq and Afghanistan; Stanley A. McChrystal, Commander, International Security Assistance Force (ISAF) in Afghanistan in the Obama Administration, who served in the Bush Administration as Director of the Joint Staff from August 2008 to June 2009 and as Commander of the Joint Special Operations Command from 2003 to 2008; William McCraven, who served as Obama’s Commander of the Joint Special Operations Command (JSOC) from 2009 to 2011 and also in the Bush Administration; Michael Mullen, who served as Obama’s Chairman of the Joint Chiefs of Staff from 2009 to 2011 and also in the Bush Administration; Michael Morrell, Obama’s Deputy Director of the CIA from 2010 to 2013, who served as Associate Deputy Director in the Bush Administration; Robert Mueller, Obama’s FBI Director from 2009 to 2013 and also in the Bush Administration; Victoria Nuland, Obama’s State Department spokesperson, who served as Deputy National Security Adviser to Vice President Dick Cheney; and David Petraeus, Obama’s Director of the Central Intelligence Agency from 2011 to 2012, who served in the Bush Administration as Commander of United States Central Command, U.S. Forces in Afghanistan, and the Multinational Force in Iraq; and John Rizzo, the CIA’s General Counsel in the Obama Administration in 2009 and also in the Bush Administration. See JACK GOLDSMITH, POWER AND CONSTRAINT: THE ACCOUNTABLE PRESIDENCY AFTER 9/11, at 27–28 (2012); MAZZETTI, supra note 22, at ix– xi; Jeremy W. Peters, Senate Backs F.B.I. Chief and Considers Other Picks, N.Y. TIMES, July 29, 2013, http://www.nytimes.com/2013/07/30/us/politics/senate-approves-comey-to- lead-the-fbi.html, [http://perma.law.harvard.edu/0CFLXbX9yAE/]. 39 While I focus on the continuation of Bush Administration policies by the Obama Administration, earlier administrations also have adhered to preexisting national security programs. Among the more prominent examples are the prosecution of the war in Vietnam and the pursuit of a system of anti-ballistic missile defense. See generally FUTTER, supra note 13; R.W. KOMER, BUREAUCRACY DOES ITS THING: INSTITUTIONAL CONSTRAINTS ON U.S.-GVN PERFORMANCE IN VIETNAM (1972); see also COLUMBA PEOPLES, JUSTIFYING BALLISTIC MISSILE DEFENCE: TECHNOLOGY, SECURITY AND CULTURE (2010).

security policy remain constant even when one President is replaced by another who as a candidate repeatedly, forcefully, and eloquently promised fundamental changes in that policy?

I. Bagehot’s Theory of Dual Institutions

A disquieting answer is provided by the theory that Walter Bagehot suggested in 1867 to explain the evolution of the English Constitution.40 While not without critics, his theory has been widely acclaimed and has generated significant commentary.41 Indeed, it is something of a classic on the subject of institutional change generally, and it foreshadowed modern organizational theory.42 In brief, Bagehot’s notion was as follows.

Power in Britain reposed initially in the monarch alone. Over the decades, however, a dual set of institutions emerged.43 One set comprises the monarchy and the House of Lords.44 These Bagehot called the “dignified” institutions—dignified in the sense that they provide a link to the past and excite the public imagination.45 Through theatrical show, pomp,

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40 See WALTER BAGEHOT, THE ENGLISH CONSTITUTION (Cornell Univ. Press 1963) (1867). Bagehot brought The Economist magazine to prominence; his own eminence became such that the middle years of 19th-century England were sometimes referred to as the “Age of Bagehot.” M. A. Goldberg, Trollope's The Warden: A Commentary on the “Age of Equipoise,” 17 NINETEENTH-CENTURY FICTION 381, 381 (1963). 41 Bagehot’s theory is still analyzed today. See, e.g., Gerard N. Magliocca, The Constitution Can Do No Wrong, 2012 U. ILL. L. REV. 723, 726 (2012) (“Walter Bagehot’s The English Constitution is a classic study of the parliamentary system during the 1860s, but his work is timeless due to its emphasis on function over form. While The Federalist was the first modern study on how constitutions should be organized, The English Constitution was the first to ask why people obey their constitutions.”); Thomas O. Sargentlich, The Limits of the Parliamentary Critique of the Separation of Powers, 34 WM. & MARY L. REV. 679, 688 (1993) (“[Woodrow] Wilson’s critique in the 1880s was directly influenced by Bagehot’s study of the English Constitution, which was published in 1867 and in the United States in 1877. Indeed, Wilson specifically noted his intellectual debt to Bagehot.”); Adam Tomkins, The Republican Monarchy Revisited, 19 CONST. COMMENT. 737, 738 (2002) (“Bagehot matters, even now. His work is of great importance to contemporary constitutional scholarship, both in Britain and to some extent also in the United States.”). 42 See, e.g., Terry M. Moe & Michael Caldwell, The Institutional Foundations of Democratic Government: A Comparison of Presidential and Parliamentary Systems, 150 J. INSTITUTIONAL & THEORETICAL ECON. 171, 171–72 (1994) (“It is telling that the most widely cited analyses [include] Walter Bagehot’s The English Constitution [1873] . . . . [t]he modern literature has echoed these same themes . . . .”). 43 BAGEHOT, supra note 40, at 176. 44 Id. at 67–68, 82–86, 89. 45 Id. at 61.

and historical symbolism, they exercise an emotional hold on the public mind by evoking the grandeur of ages past.46 They embody memories of greatness. Yet it is a second, newer set of institutions— Britain’s “efficient” institutions—that do the real work of governing.47 These are the House of Commons, the Cabinet, and the Prime Minister.48 As Bagehot put it: “[I]ts dignified parts are very complicated and somewhat imposing, very old and rather venerable; while its efficient part . . . is decidedly simple and rather modern . . . . Its essence is strong with the strength of modern simplicity; its exterior is august with the Gothic grandeur of a more imposing age.”49

Together these institutions comprise a “disguised republic”50 that obscures the massive shift in power that has occurred, which if widely understood would create a crisis of public confidence.51 This crisis has been averted because the efficient institutions have been careful to hide where they begin and where the dignified institutions end.52 They do this by ensuring that the dignified institutions continue to partake in at least some real governance and also by ensuring that the efficient institutions partake in at least some inspiring public ceremony and ritual.53 This promotes continued public deference to the efficient institutions’ decisions and continued belief that the dignified institutions retain real power.54 These dual institutions, one for show and the other for real, afford Britain expertise and experience in the actual art of governing while at the same time providing a façade that generates public acceptance of the experts’ decisions. Bagehot called this Britain’s “double government.”55 The structural duality, some have suggested, is a modern reification of the “Noble Lie” that, two millennia before, Plato had thought necessary to insulate a state from the fatal excesses of democracy and to ensure deference to the golden class of efficient guardians.56

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46 Id. at 250. 47 Id. at 61. 48 Id. at 66–68. 49 Id. at 65. 50 Id. at 266. 51 Id. at 97, 248–51, 255. 52 Id. at 176. 53 Id. 54 See id. at 176–77. 55 Id. at 263. 56 R.H.S. Crossman, Introduction to WALTER BAGEHOT, THE ENGLISH CONSTITUTION 27 (Cornell Univ. Press 1963) (1867).

Bagehot’s theory may have overstated the naiveté of Britain’s citizenry. When he wrote, probably few Britons believed that Queen Victoria actually governed. Nor is it likely that Prime Minister Lord Palmerston, let alone 658 members of the House of Commons, could or did consciously and intentionally conceal from the British public that it was really they who governed. Big groups keep big secrets poorly. Nonetheless, Bagehot’s enduring insight—that dual institutions of governance, one public and the other concealed, evolve side-by-side to maximize both legitimacy and efficiency—is worth pondering as one possible explanation of why the Obama and Bush national security policies have been essentially the same. There is no reason in principle why the institutions of Britain’s juridical offspring, the United States, ought to be immune from the broader bifurcating forces that have driven British institutional evolution.

As it did in the early days of Britain’s monarchy, power in the United States lay initially in one set of institutions—the President, Congress, and the courts. These are America’s “dignified” institutions. Later, however, a second institution emerged to safeguard the nation’s security. This, America’s “efficient” institution (actually, as will be seen, more a network than an institution) consists of the several hundred executive officials who sit atop the military, intelligence, diplomatic, and law enforcement departments and agencies that have as their mission the protection of America’s international and internal security. Large segments of the public continue to believe that America’s constitutionally established, dignified institutions are the locus of governmental power; by promoting that impression, both sets of institutions maintain public support. But when it comes to defining and protecting national security, the public’s impression is mistaken. America’s efficient institution makes most of the key decisions concerning national security, removed from public view and from the constitutional restrictions that check America’s dignified institutions. The United States has, in short, moved beyond a mere imperial presidency to a bifurcated system—a structure of double government—in which even the President now exercises little substantive control over the overall direction of U.S. national security policy. Whereas Britain’s dual institutions evolved towards a concealed republic, America’s have evolved in the opposite direction, toward greater centralization, less accountability, and emergent autocracy.

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The parallels between U.S. and British constitutionalism are, of course, inexact. In the United States, the transfer of power has not been purposeful, as Bagehot implied it was in Britain.57 Members of America’s efficient institutions have not secretly colluded in some dark plot aimed at wresting control over national security from its dignified institutions. What may appear in these institutions’ collective motivation as conscious parallelism has in fact been a wholly open and, indeed, unabashed response to incentives deeply rooted in the legal and political structures in which they operate.

Some of the evolutionary drivers, on the other hand, have been similar in both countries. Electoral incapacity, for example, has been key. Organized deception would be unnecessary, Bagehot suggested, and the trappings of monarchy could be dispensed with if Britain’s population had been generally well-educated, well-off, and politically intelligent.58 But he believed it was not.59 The lower and middle classes were “narrow-minded, unintelligent, incurious”;60 they found educated discourse “unintelligible, confused and erroneous.”61 Bagehot wrote: “A life of labour, an incomplete education, a monotonous occupation, a career in which the hands are used much and the judgment is used little”62 had produced “the last people in the world to whom . . . an immense nation would ever give” controlling authority.63 No one will ever tell them that, of course: “A people never hears censure of itself,”64 least of all from political candidates. The road to public respect (and re-election) lies in ingratiation. So long as their awe and imaginations remain engaged, however, the public could be counted upon to defer—if not to their real rulers, then to what Bagehot referred to as “the theatrical show” that accompanied the apparent rulers.65 The “wonderful spectacle” of monarchical pomp and pageantry captured the public’s

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57 This was the inference of the eminent Bagehot scholar R.H.S. Crossman, writing in 1963. Crossman, Introduction, supra note 56, at 25–26 (referring to “conscious concealment,” “organized deception,” and “mass deception”). 58 BAGEHOT, supra note 40, at 97. 59 Id. at 249. 60 Id. at 63. 61 Id. 62 Id. at 250. 63 Id. at 248. 64 Id. at 251. 65 Id. at 248.

imagination, convinced the public that they were not equal to the greatness governance demanded, and induced them to obey.66

America’s population today is of course far removed from the Dickensian conditions of Victorian England. Yet the economic and educational realities remain stark.67 Nearly fifty million Americans—more than 16% of the population and almost 20% of American children—live in poverty.68 A 2009 federal study estimated that thirty-two million American adults, about one in seven, are unable to read anything more challenging than a children’s picture book and are unable to understand the side effects of medication listed on a pill bottle.69 The Council on Foreign Relations reported that the United States has “slipped ten spots in both high school and college graduation rates over the past three decades.”70 One poll found that nearly 25% of Americans do not know that the United States declared its independence from Great Britain.71 A 2011 Newsweek survey disclosed that 80% did not know who was president during World War I; 40% did not know who the United States fought in World War II; 29% could not identify the current Vice President of the United States; 70% did not know that the Constitution is the supreme law of the land; 65% did not know what happened at the constitutional convention; 88% could not identify any of

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66 Id. at 249. 67 These realities seem hard to square with the suggestion that politics and public opinion provide constraints that can substitute for the rule of law, resting as they do upon the acknowledged premise that “a wealthy and educated population is a strong safeguard of democracy.” ERIC A. POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC 14 (2010). 68 Census: U.S. Poverty Rate Spikes, Nearly 50 Million Americans Affected, CBS DC (Nov. 15, 2012, 10:01 AM), http://washington.cbslocal.com/2012/11/15/census-u-s-poverty-rate- s p i k e s - n e a r l y - 5 0 - m i l l i o n - a m e r i c a n s - a ff e c t e d / , [ h t t p : / / p e r m a . l a w. h a r v a r d . e d u / 0b3qiirRh4W/]. In 2012, the poverty level for a family of four was $23,050 in total yearly income. Computations for the 2012 Annual Update of the HHS Poverty Guidelines for the 48 Contiguous States and the District of Columbia, U.S. DEP’T OF HEALTH & HUM. S E RV I C E S , h t t p : / / a s p e . h h s . g o v / p o v e r t y / 1 2 c o m p u t a t i o n s . s h t m l , [ h t t p : / / perma.law.harvard.edu/0RNu9XipUH1/] (last updated Feb. 9, 2012). 69 Greg Toppo, Literacy Study: 1 in 7 U.S. adults are unable to read this story, USA TODAY, Jan. 8, 2009, http://usatoday30.usatoday.com/news/education/2009-01-08-adult- literacy_N.htm, [http://perma.law.harvard.edu/0ubbK5zDPb7/]. 70 Renewing America―Remedial Education: Federal Education Policy, COUNCIL ON FOREIGN REL. (June 2013), http://www.cfr.org/united-states/remedial-education-federal- education-policy/p30141, [http://perma.law.harvard.edu/07e5QqRd5mV/]. 71 7/1: Independence Day—Seventeen Seventy When?, MARIST POLL (July 1, 2011), http:// maristpoll.marist.edu/71-independence-day-dummy-seventeen-seventy-when/, [http:// perma.law.harvard.edu/0QYaZAeM15H/] (“[A]bout one in four Americans doesn’t know from which country the United States declared its independence.”).

the writers of the Federalist Papers; 27% did not know that the President is in charge of the Executive Branch; 61% did not know the length of a Senate term; 81% could not name one power conferred on the federal government by the Constitution; 59% could not name the Speaker of the House; and 63% did not know how many justices are on the Supreme Court.72 Far more Americans can name the Three Stooges than any member of the Supreme Court.73 Other polls have found that 71% of Americans believe that Iran already has nuclear weapons74 and that 33% believed in 2007 that Saddam Hussein was personally involved in the 9/11 attacks.75 In 2006, at the height of U.S. military involvement in the region, 88% of American 18- to 24- year-olds could not find Afghanistan on a map of Asia, and 63% could not find Iraq or Saudi Arabia on a map of the Middle East.76 Three quarters could not find Iran or Israel,77 and 70% could not find North Korea.78 The “over-vote” ballots of several thousand voters—greater in number than the margin of difference between George W. Bush and Al Gore—were rejected in Florida in the 2000 presidential election because voters did not understand that they could vote for only one candidate.79

There is, accordingly, little need for purposeful deception to induce generalized deference; in contemporary America as in Bagehot’s Britain, a healthy dose of theatrical show goes a long way.

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72 Take the Quiz: What We Don’t Know, NEWSWEEK, Apr. 4, 2011, at 58. 73 New National Poll Finds: More Americans Know Snow White’s Dwarfs Than Supreme Court Judges, Homer Simpson Than Homer’s Odyssey, and Harry Potter Than Tony Blair, BUS. WIRE (Aug. 14, 2006, 9:00 AM), http://www.businesswire.com/news/home/ 20060814005496/en/National-Poll-Finds-Americans-Snow-Whites-Dwarfs, [http:// perma.cc/6VU5-V48G]. 74 CNN Poll: Americans Believe Iran has Nuclear Weapons, CNN.COM (Feb. 19, 2010, 12:00 PM), http://politicalticker.blogs.cnn.com/2010/02/19/cnn-poll-american-believe-iran- has-nuclear-weapons/, [http://perma.law.harvard.edu/0hxzacRqVRf]. 75 Kathy Frankovic, Polls, Truth Sometimes at Odds, CBSNEWS.COM (Feb. 11, 2009, 4:15 P M ) , h t t p : / / w w w. c b s n e w s . c o m / 2 1 0 0 - 5 0 1 8 6 3 _ 1 6 2 - 3 2 5 3 5 5 2 . h t m l , [ h t t p : / / perma.law.harvard.edu/0MjaPmmoEYD]. 76 NATIONAL GEOGRAPHIC-ROPER PUBLIC AFFAIRS, 2006 Geographic Literacy Study 22–24 (May 2006), available at http://www.nationalgeographic.com/roper2006/pdf/ FINALReport2006GeogLitsurvey.pdf, [http://perma.law.harvard.edu/0T7nCc74Q9p]. 77 Id. at 24–25. 78 Id. at 22. 79 See Newspaper: Butterfly Ballot Cost Gore White House, CNN.COM (Mar. 11, 2001, 8:43 AM), http://edition.cnn.com/2001/ALLPOLITICS/03/11/palmbeach.recount/, [http:// perma.law.harvard.edu/0Aiwr7KNj6Z] (“Voters confused by Palm Beach County’s butterfly ballot cost Al Gore the presidency, The Palm Beach Post concluded Sunday.”).