We lack in this country a major party that offers wholehearted and universal support for the protections embodied in the Bill of Rights, and the choices offered are often highly constrained. To take the last two presidential elections as an example, the more pro-civil-liberties of the major-party candidates has launched more Espionage Act prosecutions than all previous presidents combined; indefinitely detains legally innocent people, for fear of what they might do if released; allows agencies to gin up fake terror plots; calls the idea of actually prosecuting torturers “sanctimonious“; and would prefer a cosmetic surveillance reform that legitimates most of what the deep state is doing and that, of course, wouldn’t punish anyone. The less pro-civil-liberties candidates argued for unending war in the Middle East, invited warmongers and torturers to introduce them at campaign stops, and argued that affording due process to prisoners of war would be a kind of treason.
There’s a reason for this constrained choice set: The elites of both parties no longer, if they ever did, believe that laws apply to them, their colleagues, their funders, or the intelligence agencies. As a result of this culture of lawlessness, no candidate that genuinely seeks to have laws apply universally will garner the insider support needed to advance their candidacies.
We will see the effects of this constrained choice set in the new Congress most clearly in the field of prosecutions for US government acts of torture.
Let’s review the history.
After 9/11, an initial order to “take the gloves off” in dealing with terrorists came from President Bush and Vice-President Cheney. Looking back on it as the incoming President in 2009, President Obama knew if the matter were ever thoroughly investigated, Democratic leaders like Nancy Pelosi (on whom he would rely to accomplish anything in the domestic arena during his administration), were also criminally liable, having been briefed on torture and having then failed to oppose it.
Little wonder, then, that he declared almost instantly that he intended to “look forward, not back“, was mostly applauded by the media for being magnanimous in victory, and worked hard to ensure that nobody would be prosecuted. Well, nobody who was anybody; John Kiriakou, a Non-Elite, blew the whistle on torture and not-very-coincidentally is now in prison for mishandling classified documents, because, according to General Immune-to-Megaton-Payloads-of-Irony Petraeus at the time, “Oaths do matter, and there are indeed consequences for those who believe they are above the laws.”
In the years that followed, Senator Dianne Feinstein, Chair of the Senate Intelligence Committee, gave wide latitude to the intelligence agencies she was supposed to be overseeing, and saved her outrage over the surveillance revelations for Ed Snowden’s “act of treason.” Until, that is, she got spied on herself – by the CIA.
See, the Senate has a 6,300-page, $40-million report into US acts of torture that the public has never seen, and that the administration is very keen to keep secret. Intelligence Committee staffers who were investigating the CIA’s part in this, inadvertently received a copy of an internal CIA report that differed sharply from the CIA’s public statements on torture. In public, CIA flacks were arguing that torture works, and many in the news media dutifully repeated those claims; but in private, the CIA’s report identified massive and illegal abuses far beyond what the public knew, and concluded that torture was grossly ineffective.
In an effort to get that internal review back, the CIA spied on the Senate investigators who were supposed to be providing oversight. Feinstein was outraged at this attack on her authority, and called on the Senate floor for the release of – not the report, naturally, but the executive summary, with appropriate redactions, as decided by a consultative process. President Obama struck back, calling people who call for actual prosecution of torture “sanctimonious.” He made stopping the report such a priority that, even with a new war underway, he put his Chief of Staff, Denis McDonough, in charge of the redaction process. The CIA has been slow-walking their redactions, delaying again and again even the very limited release Feinstein is advocating.
Both The Intercept and the New Republic have identified the reason for this slow-walking correctly: Senator Richard “Torture Works” Burr (R-NC).
Sen. Burr resents deeply the notion that the Senate Intelligence Committee, set up after Watergate to provide oversight to the intelligence community, should actually do its job. To him, agents are professionals doing a fine job, and if they say torture works, that’s A-OK by him. And if, internally, they say it actually didn’t work and harmed American interests, then by golly he’s going to stuff that report further down the memory hole than old Uncle Joe Stalin tossed his fellow revolutionaries. Thanks to the Republican takeover of the Senate, Sen. Burr will take over from Feinstein as Chair of the Intelligence Committee in January.
What does this mean for mass surveillance? It’s simple. Sen. Burr won’t let a meaningful NSA reform bill come out of the Intelligence Committee, and without signoff from his committee, affirmative NSA reform will not pass the Senate. It would take a full-on Damascene conversion for him to let through even the milquetoast reforms floated so far. Someone may end up leaking the full report, and that might change this calculus, but for the moment, no reforms that depend on a bill making it out of the Senate Intelligence Committee can be considered viable.
What does this mean more broadly for the rule of law? That’s also simple. The CIA wins, the elites surrounding the intelligence agencies win, and the rule of law continues its recent losing streak. The already dim prospect of holding torturers and those who authorized torture to account, which the US is legally obliged to do under the Convention against Torture, has receded a step further. It is hard to envision our probable future president Hillary Clinton choosing to prosecute after 2016, and her plausible Republican challengers – yes, even Rand Paul – are unlikely to do it either when the political cost of disrupting the cozy mutual impunity of the elite is so steep. To the deep state, a President running on the message of elite accountability is only a minor bump in the road.
Why are so few legislators standing up against mass surveillance? Many of your elected officials are eager to absolve themselves of any real control over national security and foreign policy. They want to leave it to the deep state. Rough-hew the Presidency and the Congress how we will, our electoral choices will not stop the deep state from shaping their ends. Those wishing to understand more deeply why this is so, should consult Gibbon’s description of the Roman Senate under Augustus.
Fortunately, the deep state, while not constrained by electoral politics, is constrained by culture, and I’ll be speaking more to that culture and our ability as activists to shape it in Part V of this series. And on Monday, we’ll tune out the hopeful chatter about the chances for cooperation between Congress and the President on superficial matters such as medical device taxes, and tell you what really to expect.
PART I: End “Section 215” Mass Metadata Surveillance
PART III: Congress & Obama At Daggers Drawn – Except Where It Really Counts
PART IV: Surveillance Doesn’t Pay: The New Massachusetts Political Landscape
PART V: And I Have Seen Blue Skies
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