Torturing the Rule of Law
When elements of the national-security apparatus deceive Congress or the courts, they undermine the very institutions that they protect. The CIA’s attempt to hide its history of torture from congressional oversight is Exhibit A.
That is the nub of the negative feedback loop in which the United States is now locked. Resuscitating the Madisonian institutions requires an informed, engaged electorate, but voters have little incentive to be informed or engaged if they believe that their efforts would be for naught—and as they become more uninformed and unengaged, they have all the more reason to continue on that path. The Madisonian institutions thus continue to atrophy, the power of the Trumanite network continues to grow and the public continues to disengage.
Should this trend continue, and there is scant reason to believe it will not, it takes no great prescience to see what lies ahead: outward symbols and rituals of national-security governance that appear largely the same, concealing a Trumanite network that takes on the role of a silent directorate, and Madisonian institutions that, like the British monarchy and House of Lords, quietly and gradually are transformed into museum pieces.
Michael J. Glennon is professor of international law at Tufts University’s Fletcher School of Law and Diplomacy. This essay is adapted from his book National Security and Double Government (Oxford University Press, 2014) and a January 2014 article of the same title in the Harvard National Security Journal.