It seemed weird, offhanded, President Barack Obama’s comment that he was “not going to be scrambling jets to get a 29-year-old hacker,” just two days before the US forced down a Bolivian plane carrying Evo Morales on the suspicion that Edward Snowden was smuggled aboard. Diplomatic hell broke loose, with Brazil, Venezuela, Nicaragua, Ecuador and others all accusing the US of violating their sovereignty.
With all the talk of Big Data, it is hard to believe that Snowden could not be detected enroute from the Moscow transit lounge to the departure gate for a Bolivian airliner. That aside, one wonders what, if any, was the connection between Obama’s remark and the subsequent grounding. Obama presumably was trying to squelch rumblings coming from within the national security state. After all, if some of the US hardliners want Julian Assange, Snowden and their ilk executed, or tried for treason before being executed, the same types might contemplate a Special Operation to render Snowden off a foreign airliner. As for Evo Morales, I was told by a US ambassador during the Clinton administration that he was a “very bad guy” who had tried to kill American diplomats, a good example of our demented intelligence.
The problem revealed by the incident is not a new one, and not for this president alone. Can we be confident that the president controls the permanent executive branch, especially the “intelligence” apparatus? Or is it not possible that key elements of the apparatus have been fabricating intelligence, pulling strings, “working the refs,” boxing in the White House, asking forgiveness rather than permission, whatever one calls it, and running a foreign policy of their own?
If this shocks anyone, it has all happened before. Several presidents were threatened with blackmail by FBI director J. Edgar Hoover, who ran what one US senator called a “Gestapo-operation.” John and Robert Kennedy had to go around their own generals and conspire with the Soviets to cool down the Cuban missile crisis when it was at the brink. JFK circumvented the generals and CIA by fudging an agreement in Laos. Richard Nixon and the China Lobby foiled Lyndon Johnson’s election-year plan for peace talks by getting the Saigon generals to hold out until after the election. Jimmy Carter was forced to keep diplomacy with Cuba secret from his own State Department negotiators in the late Seventies. Bob Woodward’s book, Obama’s Wars, documents how generals David Petraeus and Stanley McChrystal tried to trap the president into a “forever war.” And before all of them, President Dwight D. Eisenhower warned:
“In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.”
And now, starting with the Bush era, the top-secret Foreign Intelligence Surveillance Court (FISA) has morphed into a de facto parallel Supreme Court writing and implementing a virtual constitution for the War on Terrorism era. This secret court, appointed in its entirety by the right-wing Supreme Court Justice John Roberts, has approved 1,800 surveillance orders during the past year alone, while rejecting none.
There is no adversary proceeding in this new equivalent of a Star Chamber. There are virtually no public findings. The FISA court has ruled, in secret proceedings, that the vacuuming up of “meta data” on many millions of citizens is a “special needs” exception to the Fourth Amendment ban on state searches and seizures without a warrant. Some of the secret court’s opinions are said to be nearly 100 pages in length, issued without adversarial proceedings and virtually beyond appeal. Just because Obama is a constitutional lawyer does not mean that he is devoted detailed attention to this runaway construction of a new constitution – until something like the Snowden revelations force his attention.
“It has quietly become almost a parallel Supreme Court,” according to Eric Lichtblau in the New York Times, providing a veritable new constitutional framework for every agency engaged in activities under the umbrella of “national security.”
A similar extra-constitutional project has been underway for decades to rewrite the rules of private marketplace governance in the era of corporate globalization. Both thrusts, toward privatization and intelligence wars, represent a gradual movement toward a new legal framework for Empire, which minimizes or circumvents democratic processes. The NSA plus the WTO are the “new world order” that George Bush Sr. mused about.
Obama, who is responsible for this mushroom cloud of secrecy, seems occasionally to cry for help at his recognition that it is spiraling out of control. Since 2012, Obama has officially “welcomed” public conversation, debate, and Congressional drafting of a “new legal architecture” in order to “rein in” his growing imperial presidency and those which are likely to follow. His inability to implement meaningful change, however, is a remarkable illustration of the limits of the presidency.
There is no sign either of Congressional willingness to re-draft the 1973 War Powers Resolution to cover drones, secret wars like Libya, or the growth of executive-branch cyberwar. The federal courts are complicit in the private rewriting of the Fourth Amendment and the democratic guarantees of the constitution.
It is not only the shadow of secrecy over democracy, but also the apparent grip of secret forces in the executive branch over public policy. This week the US supported a military coup in Egypt in express violation of Congressional funding restrictions, and without public hearings. Last month, the President reiterated his five-year old pledge to close Guantanamo, get detainees off life-threatening hunger strikes, and repatriate many who already are cleared for release. As of now, those straightforward orders have not been carried out. Someone is blocking them.
A secret coup has not fully happened yet, and may not, given the nature of American pluralism. But the executive branch has aided in the unaccountable growth of a Frankenstein-like Leviathan, which now is beyond the control of its own makers, operating outside the levers of democratic oversight and control. Obama’s occasional comments welcoming a “conversation” may be seen as muted alarms. If he cannot “rein in” the new Imperial Presidency, a populist protest could be slowly building toward an insurgency presidential campaign, an uprising, or both.