IDEAS | MICHAEL J. GLENNON
Trump’s looming showdown with the ‘secret government’

By Michael J. Glennon DECEMBER 01, 2016

Many incoming presidents learn quickly that the managers of the military, intelligence, and law enforcement departments of our government are largely self-governing, virtually immune from democratic accountability and the checks and balances described in civics books.

They make up a second government: The one we elect provides public frontage, but the concealed, unelected one actually defines and manages the nation’s security.

Two years ago that’s what I told the Globe when I was asked why programs such as mass surveillance, drone strikes, whistle-blower prosecutions, and unchecked war-making remained virtually unchanged from the Bush administration to the Obama administration.

The questions we face now are: Will double government have the same ability to check the power of the Trump administration? And can Americans expect President Trump to maintain the national security policies of his predecessors?

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I expect not — on both counts.

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Vote all you want. The secret government won’t change.
The people we elect aren’t the ones calling the shots, says Tufts University’s Michael Glennon.

The one essential condition for double government to function effectively is that the elected and concealed institutions present a united front. Harmony between the two institutions, at least in the eyes of the public, is vital. Trump, unlike his predecessors, has openly broken with the security directorate. Moreover, most of the program he’s espoused entails ramping up rather than scaling back security, which the bureaucracy has historically embraced.

All modern presidents have had an abiding incentive to remain in sync with the security managers, as have Congress and the courts, for a simple reason. No president, senator, or judge has wanted to confront the “if only” argument: “If only you had heeded the advice of the security experts, this devastating attack would not have occurred.” Better safe than sorry; safe means deferring to the security experts.

In addition to providing political cover, the appearance of public rapport invests double government with stability. Open feuding would unveil the power of the back-stage directorate, discrediting both institutions and causing the whole structure to “fall to earth.” That was the prediction of Walter Bagehot, the 19th-century English constitutional theorist who originated the concept of double government.

Trump, however, is unenthralled by experts — he wouldn’t be moving into the White House otherwise — so he has been indifferent to the effects of an open rupture with the security directorate. Either he doesn’t appreciate the need for legitimizing public harmony, or he’s decided to take on the whole bifurcated system and replace it with the single, unitary executive that the Constitution originally envisioned.

Trump’s response to former NSA and CIA director Michael Hayden may have been predictive. Hayden said that, if given an order to kill families of suspected terrorists, “the American armed forces would refuse to act.” “They won’t refuse,” Trump replied. “They’re not going to refuse me. Believe me — if I say do it, they’re gonna do it.”

Hayden later dug in his heels. If Trump wants to resume waterboarding, Trump can “get his own damn bucket,” Hayden said. He called Trump a “useful fool” of the Russian government, “manipulated by Moscow, secretly held in contempt.” But the breach between Trump and Hayden is the least of it. A gaping public rift has now developed between Trump and the national security establishment. An open letter from 122 Republican national security experts called Trump “fundamentally dishonest” and “utterly unfitted to the office.” Numerous current and former security officials have vowed they will never work for Trump or will openly defy presidential orders.

Trump, true to form, has counterattacked, disparaging the experts’ expertise. When the intelligence community concluded that Russia had hacked the Democratic National Committee and then disseminated purloined e-mails, Trump dismissed their assessment as unreliable. “Our country has no idea,” he said. “I don’t think anybody knows it was Russia that broke into the DNC.” The military is unable to defeat ISIS, Trump proclaimed, because the “generals have been reduced to rubble.” “They have been reduced to a point where it’s embarrassing to our country,” he said, indicating he might fire a few. Retired Marine general John Allen summed things up: If Trump were elected, Allen said, “I think we would be facing a civil military crisis, the like of which we’ve not seen in this country before.”

Contrast this unprecedented discord with the image of harmony projected by earlier presidents. Barack Obama resisted the managers’ push for a large-scale troop buildup in Afghanistan — but facing continuing pressure, he then introduced the negotiated compromise as his own. Seeming to be taken by surprise at the Edward Snowden revelations, Obama later embraced NSA mass surveillance as his own program. The 2014 Senate torture report said that President George W. Bush was not briefed on waterboarding when it began — which was confirmed by the CIA’s General Counsel — but Bush said that, no, he had personally approved it. President Bill Clinton proposed ending the ban on gays in the military — and then presented “Don’t Ask, Don’t Tell” as his own policy. After the Bay of Pigs disaster, President John F. Kennedy privately cursed the CIA for enticing him into it and said he wanted to “splinter the CIA into a thousand pieces and scatter it into the winds” — only to allow, in a public press conference, that he was the responsible decision-maker.

Why the incentive to maintain public harmony? In short, to sustain legitimacy. Presidents must appear to be the decider to maintain public deference. If the curtain were pulled back and the security managers were revealed to exercise extravagant power, presidential credibility would collapse.

And so would that of the managers: With no electoral connection, their legitimacy derives from that of the president. Were a president to appear as presider rather than decider, compliance with presidential directives would be undermined. Legitimacy, in a system of double government, depends upon mutual cooperation to mask the two layers.

But wittingly or unwittingly, Trump has not bought into the duality. And given his popular base of support, he’ll have little incentive to do so.

Unlike Obama and earlier presidents, Trump has made a public show of disdaining experts. Trump presents himself as his own expert (“I know more about ISIS than the generals do, believe me”) with no need to pour over background briefings or policy papers written by bean-counters from the swamp he’s been elected to drain. Trump not only has little to lose by crossing swords with Washington’s security glitterati — he fortifies support from those who put him into office by publicly taking on the Beltway power elite.

It’s possible, of course, that Trump could back off, become “presidential,” and join the long list of predecessors who made public peace with the security directorate. If Trump chooses that course, the substance of his security policies will differ little from Obama’s.

But it’s also possible that, loyal to his base and true to his seeming instincts, President Trump will remain as confrontational toward the security managers as he was as a candidate. What would a prolonged assault on the authority of expert insiders mean for Trump’s security policies?

It depends on whether security managers see the particular measure as raising or lowering the level of protection.

Trump would get considerable support for measures they see as beefing up security. The security managers are in the business of selling protection. They operate in an incentive structure where threat inflation and overprotection are rewarded, not penalized. When a president wants more rather than less protection, they are delighted to provide it.

With toothless congressional overseers and spineless judges manning the watchtowers, the likely upshot is therefore bureaucratic deference to more drone strikes and cyberattacks, tighter mass surveillance, weakened cellphone encryption, stepped up FBI investigations, and, yes, a resumption of torture. Following release of the Senate torture report, CIA Director John Brennan was asked whether the CIA could ever resume those practices. In a rare moment of candor, he replied: “I defer to the policy makers in future times.” Numerous officials who ran the CIA’s torture program still work for the agency. Not one has been prosecuted.

Any efforts by Trump to scale back protection would encounter opposition. Into this category fall the nuclear nonproliferation regime, sanctions against Russia, and the NATO, Japan, and South Korea security alliances. Security programs are “sticky down” — much harder to cut back than to maintain or expand. Efforts by Trump to ratchet down measures that the security managers have long nurtured would thus meet not only the usual bureaucratic slows but also resignations and occasional outright defiance.

Would such tactics bring Trump to heel?

Not likely. Resignation in protest is a time-honored way of registering dissent within the bounds of the system. Elliot Richardson and William Ruckelshaus resigned rather than follow President Nixon’s order to fire the Watergate special prosecutor, Archibald Cox. However, very few resignations have occurred in response to perceived governmental wrongdoing, particularly within the military. The cost in professional ostracism, economic hardship, and upended family life is too high for most to endure. And the payoff is typically slim. Willing replacements normally are plentiful, eager to get promoted, pick up and carry out orders where the dissenter left off. Richardson, Ruckelshaus, and Cox were distinguished, courageous public servants. Cox still got fired.

Similarly, direct disobedience could be dramatic — but it’s hard to see how it could work. Their functional autonomy notwithstanding, top military, intelligence, and law enforcement officials do serve at the pleasure of the president. An official who disobeyed a direct order from the president would be fired and replaced with someone who would obey.

Most importantly, in confronting bureaucratic insubordination, Trump would have a strong hand to play. Whether he realizes it or not, he would be launching a de facto assault on double government — with undertones of constitutional revivalism. Unlike Congress, the courts, and the presidency, the national security bureaucracy is not, after all, part of the constitutional system of checks and balances. Federal departments and agencies were never intended to check the elected officials who created them. Quite the opposite: Power was always believed to be delegated to the bureaucracy, not by it.

Trump’s public face-off with the security directorate is, in sum, a game-changer. Bagehot did not explain what happens when open discord causes double government to fall to earth. We may be about to find out.

Michael J. Glennon is a law professor at the Fletcher School of Law and Diplomacy, Tufts University. This