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Post Michael Glennon on Double Government
Created by John Eipper on 01/12/14 3:42 AM

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Michael Glennon on Double Government (David A. Westbrook, USA, 01/12/14 3:42 am)

Michael Glennon's article "National Security and Double Government" is brilliant, deep, sad, and vastly learned across multiple fields--a work of Weberian power and stature.

Glennon begins by asking why Obama's security policy is so similar to that of Bush. His argument, in short, is that the President does not really set security policy. Elected officials, and high judges--the visible aspects of government, which Glennon names "Madisonian"--are so dependent on bureaucratic (especially military and "intelligence") expertise--which Glennon names "Trumanite"--that policy is set, commitments are made, long before the President or anyone else has a chance to think. In a nutshell, Glennon maintains that the democratic republic has been hollowed out by its bureaucratic apparatus.

But if the President is not really in charge of security, then who is? Following 19th century English political economist Walter Bagehot, Glennon maintains that America has two governments, a visible government for public consumption (legislative, executive, judicial, the first three articles of the Constitution), and another bureaucratic government that actually formulates and implements policy, presenting it as political objective, to be "legitimated" after the fact when circumstances require. Unfortunately, we only know how to think, talk, act in terms of the first, our political tradition--which is increasingly irrelevant. We speak Madisonian, but we are ruled by Trumanites.

By way of background, Glennon is professor of law at the Fletcher School of Law and Diplomacy, most famous for powerfully arguing that the UN Charter does not actually govern the law of war, and the text has fallen into desuetude, vide Kosovo, Libya, and so forth, to say nothing of the Syrias of the world.

Encapsulations of serious arguments, such as the foregoing, tend to render the arguments superficial. After all, worries about bureaucracy, "the headless fourth branch," are hardly new. What is difficult to convey--especially to those of you who are not trained in the law--is how solidly, learnedly, soberly Glennon makes his argument. He doesn't simply argue that bureaucracy has a great deal of power, too much discretion, so perhaps we should revise the Administrative Procedure Act. Instead, Glennon shows how bureaucracy constrains and ultimately vitiates democratic possibility. In doing so, the security state not only disenfranchises, but discourages, "Joe Sixpack." We watch football, and elections as football, but we cease to be democratic actors--we the people are not overthrown, but dissolved, and each make our separate ways. What res publica?

The relations between the governments are complex, and explored at some length. Each is subject to serious constraints. In particular, the forces of conformity and rivalries within the Trumanite security community mean that real thinking, serious strategy, is rarely done. And so we have a metastatic drone policy, an NSA run amok, an inability to shut down various prisons or grant folks habeas, a disingenuous policy in Libya, etc., etc.

As his disapproval of our actual security policy suggests, Glennon's two governments should not be conceived of as substance and form, the avant garde or the technocrats or the guardians vis-a-vis the people they both serve and rule. Glennon does not believe that the Trumanite elite is wise, but must sell its positions to a rather apathetic and stupid people, as Acheson or Machiavelli might have hoped, and as Orwell caricatured. Recent political events demonstrate rather conclusively that our elites inside the beltway are hardly wise, and should not be imagined as struggling to save the rubes from themselves. Instead, the picture Glennon paints is of two different kinds of politics: one based on expertise and interstitial rivalry, that occasionally needs national legitimation, and one based on celebrity and careerism, that occasionally must do something (what to do is the job of the experts). That is, the relationship between Madisonian and Trumanite elements of the national government has been, generally, symbiotic. They have needed each other.

This symbiosis appears to be breaking down. Elected officials are wrapped in scandal; judges are viewed as partisan hacks. Madisonian government does not have the dignity it once did. As a result, it is increasingly difficult for our "public" government, e.g., the Obama administration, to legitimate the actions of its bureaucracies, e.g., the NSA. Indeed, the two aspects of government increasingly disavow one another... leading to greater discontent with government, and perhaps a greater paranoia on the part of government officials. Observe everyone! Classify everything! Anyone could be a terrorist!

Glennon cites a great number of current events, academic learning, judicial opinions--the amount of "social" and "empirical" support here makes the text rather dense. Fundamentally, however, Glennon is offering a constitutional and even philosophical argument, taking issue directly with the Federalist Papers. Can the project of enlightened self-governance work, if it requires the construction of a mandarin class along the lines that, since the New Deal or at least WWII, we have in fact constructed? It's a breathtakingly ambitious, and successful, text.

Assuming one agrees with the analysis, it is not clear what is to be done. Glennon argues that we are approaching (as Madison feared we might), the limits of lawyerly/structural devices like checks and balances. At some point, democracy is dependent on the virtues of the people, the demos. And maybe this nation of so many millions is losing its capacity to instill civic virtue --which is after all a paternalistic, and in that sense illiberal, task--in a sufficient number of its people to produce "a people" capable of self governance.

Glennon, in short, is discussing how the American project may end, and doing so with great clarity and power. He seems to think republican democracy, Madisonian governance, may not have ended yet, but who knows?

As you might expect, I have much to say in response, but I don't want to make this about me or my work--maybe some other time. For now, let me just say that this text deserves to be read and discussed. The issues are politically existential. Just as importantly for political purposes, Glennon has expressed widespread if inchoate anxieties about the state of the republic. This book has the potential to raise philosophical questions in the public sphere in a way not seen at least since Fukuyama's end of history made a lot of people think about Hegel and what we meant by modern, to say nothing of military invasion.

The article is forthcoming from Harvard National Security Journal, and available online at the following link:

Glennon on Double Government:  http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf

JE comments:  A powerful, if depressing, thesis.  Have We the People been dissolved?  I'm grateful to David A. Westbrook for his masterful analysis.  Lots to chew on here, but one wonders if the masses (us) fully understand the undemocratic nature of Double Government, and "vote" by refusing to vote.  Conversely, popular movements to "take back our government" show certain elements of the populace attempting (Quixotically) to counter the Trumanites who really run the show.  We could probably extend Glennon's argument to include Europe, with the "unaccountable" Eurocrats occupying the role of the Trumanites.

I hope other WAISers will wade through Glennon's massive article (114 pages) and send their thoughts.

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