A Long Bedtime Story

“Once upon a time* . . . a frightened people created a new machine. They made this machine to feel safe. You see, just before, while they were sleeping, bad things came creeping in the night. One even bit many people and took them away.

The machine would protect the people. It would never sleep, never tire, never stop looking at the bad things. The peoples’ warriors with it on the walls and lawgivers would always keep the machine working.

So the people went back to sleep.

After a while their dreams turned scary. Some of them woke up. And they saw why. The machine had grown very big. It no longer stayed on the walls. Some trusted warriors and lawgivers in secret added many links to the machine’s leash. Some did this hoping the growing machine would not attack them. Others wanted to tame the machine for their own plans. And when the machine got hungry, they all closed their eyes. At night the machine would crawl inside. And eat some of the sleeping people.

Scary Monsters And Super Creeps

Those people who woke up and saw all this cried out in fear. Many of their friends and neighbors still slept.

So the small group of people built and gathered around two campfires. To decide what to do. The machine frightened them. The betrayal by the warriors and lawgivers angered them. But some of them also remembered the bad things still outside.

They asked the warriors and lawgivers to sit in the lights. Why did they do this? Some told their story. Some were ashamed and lied. And some were happy with the new machine. They knew the machine got hungry. But they claimed the bad things outside were even bigger than before.

The people around the campfires saw that they were few. So many, many more of their friends still slept. And the machine still prowled around them in the darkness.

A debate lasted all night until the campfires burned out. The people still awake got strength from the new morning sun. They decided to make a new chain. This new chain would be shorter. The machine would stay. They could not unmake it now. But back on the walls. It would not eat sleeping people again. But just in case, because bad things were out there, too, the new chain could be made longer. But only if the lawgivers and warriors asked and got permission. Only then would they get the new chain’s extra links. The machine bowed its head, closed its eyes and let the people put on the new chain. It slowly returned to the wall.

Then the people went back to sleep. And soon came again the scary dreams.

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Our friend Comment asks us about a recent item in Salon reporting on potential investigations of ‘abuse of executive power’ by Congress in 2009. Our reaction is threefold.

First, if once is tragedy, second is farce, the third decadent, then the fourth time is without doubt just an NBC prime time reality show.

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* In the mythic sense

Bruce Ackerman at Yale famously wrote that there are specific if undefinable ‘high constitutional moments’ when the American people and politics, per myth above, truly do wake up collectively sua sponte and create both a clean break with what has gone before but also a societal transformation in the aftermath. Society and politics before and after are distinct. In Ackerman’s formulation, such episodes occur perhaps once in a hundred years. The current issue, we believe, it is not one of them.

Salon refers to the ground breaking Church and Pike Committees convened in a wholly different, unique context. Congress and the Executive functioned as co-equal branches of government. Congressional institutional memories, role models, power and self identity – all were undiluted by Movement infiltration, Liberal exhaustion and 24 hour news. We lost a war for the first time. The haphazard and extraordinarily amateurish investigations occurred only after an unprecedented presidential resignation, pardon and near total paralysis of the Executive Branch (as stamped so deeply in Cheney and Rumsfeld’s memories). Today is not like your father’s Oldsmobile.

Still, unlike say Thomas Powers, who seemingly gains renewed energy with every recycling of the same tale telling, we strain to summon the energy to rehash it all here again. Perhaps that’s because he gets paid to do so. That’s not meant as a cop out. After all, much of this is already over at STSOZ 1.0. But we’re up to the task. Proof? Here we go –

Congress was exceedingly complicit in much that occurred 1947-75. There were no formal mechanisms then, and an individual Cardinal could and often did approve activities, often over a comfortable bourbon. There are many, many examples the Stiftung will not mention here. And often, a Cardinal would either explicitly say “I don’t want to know” or had no idea what he approved. Intelligence had yet to become and *be seen as * a mere bureaucracy.

Suffice it to say that Congress in its totality truly was shocked in 1974-75. The NSA’s real existence and capabilities? Stunning. And so forth. Unfortunately, a reckless Church and especially Pike (in our opinion) set back real reform by turning the investigation into a public circus. It didn’t help much that they were handed the means on a silver platter, such as Schlesinger’s “the Family Jewels” memo, Phoenix, CHAOS, other assassinations — all UnAmerican Old Worldisms to a then (from our soiled perspective today) quaint public. The Executive sacrificed individuals one by one — Colby being a famous (and in the eyes of many, deservedly) example — and the permanent government resolved to pin the blame back on the civilian leadership.

Perhaps Colby unknowingly summoned a later Lanny Davis from the ether and tried to get all the bad news out right away ala 1998. Perhaps. (We won’t go into Golitsyn territory today without some beverage refreshment). Even Nelson Rockefeller’s efforts to paper over it all by a precursor of the later Tower Report failed.

The point? We don’t see an equivalent political environment, the same or equivalent institutional dynamics, or equivalent societal perspective. Certainly nowhere near an Ackerman-esque ‘high constitutional moment’. All of the existing and necessary framework remains in place. The 1980 Oversight Act remains. Two standing oversight committees. Semi-structured appropriations are in place. OSD/Rumsfeld/Cambone’s unprecedented and expansive Pentagon foray into intelligence activities shattered the old Tactical and Intelligence Related Activities (TIARA) boundaries. This does complicate oversight even more than in the past because of altered balance of power among the committee jurisdictions. All still doable. Albeit in tatters.

So what happened? Addington’s unrelenting malevolence surely played a role pulling it all down. We saw it then in 1987 wandering the halls of the Minority’s Iran Contra Report offices, from Addington to his colleague Michael Malbin.

But more important is congressional complicity. Such knowing, overt and conscious congressional seppuku – or castration might be a better term — remains breathtaking. Beyond whether Harmon agreed with Hoekstra on this or that. Or whether Jay Rockefeller stamped his feet in protest and wrote a letter to his desk drawer. Or that Pat Leahy was one of leaders ram rodding the PATRIOT Act through Congress even when many of us even in those panic stricken days warned it was a mistake. All of them also meekly agreed to be muffled by the Executive’s determination of what could or not be discussed via shabby compartmentalization gimmicks and the like. (And you should recall all of you that it was Dick Armey, of all people, who tried to call halt and at least inserted sunset provisions in PATRIOT as a gift for the future. A gift that Congress later friviously tossed away).

Bi-partisan complicity ala Harmon and Pelosi briefings are mere after the fact camouflage. Congress must rediscover itself as a true co-equal branch before embarking on anything as protracted and fraught as an attack on the Permanent National Security State. The appallingly ineffectual last two years demonstrates how far Congress has to go. How difficult it is to rebuild institutional memories and sinews long withered from disuse. Do Pelosi, a member (or staffer?) from the Church glory days (as reported by Salon) and some ACLU types really think they can ignite and then prevail in this zero sum game (even if layered in seeming compromise)?

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Second, you may be thinking, “What about the Boy King? If he were elected . . .” Or perhaps one might think of McCain. Don’t be misled by bloggers and talking heads. It’s a profound mistake to think that a reform minded president can by virtue of his election and appointments truly exert power down into the Executive. Pushing a single command or project through takes enormous personal commitment. An underway aircraft carrier doesn’t turn on a dime — even one that wants to obey. A sobering lesson for every president is how little power he actually controls. Since the Boy King is in Germany pretending to be JFK, let’s use JFK. Recall his alarm during the Cuban Missile Crisis that his earlier order to remove missiles from Turkey went unheeded.

Then consider the Peanut Farmer’s Administration. It negotiated the original FISA bill though its various iterations with great tenacity — with a Democratic Congress. The Peanut Farmer’s Office of Legal Counsel (OLC — a then true elite) stood its ground on Executive Power. We’ve had discussions with original participants in it all and “progressive bloggers/journalists” may want to discuss FISA negotiations and passage as days of wine and roses . . . not. In may ways, the constitutional incantations and rote cited by both sides beginning with Louis Henkin down to 1975, 1987, and now 2001-2008 remain unchanged. What did change? The underlying political power dynamic. In the 1970s, Congress got the War Powers Act. Fear and terror now gave the Administration carte blanche to push the incantation and cant to almost unimaginable limits. “Constitutional law” did not change. Statutory law didn’t matter. Only the Warlord’s waxing power changed the *political consensus*.

A president can help steer or in the Warlord’s case destroy political compromise. This is a big thing. The solution is always political in the end, never legal. Despite what almost all the talking heads blather on about. Discarded ‘comity’ (with a ‘t’) can help revive oversight, revisit the FISA Court’s pulse rate, return to traditional understandings and practice what constitutes ‘prior notice’ for special activities, follow-up, etc. But that won’t affect the Permanent National Security State much. The Salon’s almost fervid recital of what someone at INSLAW says — and for those of us around at the very beginning of the whole PROMIS thing, the now almost 20 year old claims and sputtering quasi-litigation blows past obsessive compulsive — should be taken with a grain of salt. Is there a COG database? Almost assuredly. Are databases abused? Absolutely. From GEICO-esque entities on down. Total Information Awareness? Who really thinks it went away because Jerry Berman, Jim Dempsey et al. wrote letters to Congress?

We’re still in a war that no one wants to — or dares to — walk away from. GWOT. Iraq? Even Democrats unknowingly adopt Rumsfeld’s concept that it is just a theater of operations in a larger war. Democrats want the war to go on in Afghanistan. Should a Dick Clarke ever pop up in or around a Boy King Administration, does anyone truly think the war mindset will not continue? But now with his own urgent, uniquely quirky, pressing psychodynamic imprint?

And the world looks just the same
And history ain’t changed
‘Cause the banners, they are flown in the next war

Truly.

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Third, a couple of remarkable things remain. How easily people sleep. And how durable is their machine construct. The intelligence community oversaw the greatest failure besides Katrina in American history. No one really paid a price at all. A commission appeared. The usual report. Recommendations largely ignored. A few deck chairs moved around. The Agency in the old framing of prestige and role clearly lost some. Yet, in gaining greater clarity of focus, the res, the thing, called the Agency that remained, may in the end find in this diminishment its own salvation.

Why any qualification? Because so much of what is now the Permanent National Security State is outsourced. Few outside government understand the scale and implications of this. Even way before 9/11, in the 1990s, the Community in public had to concede that it was increasingly becoming stale and irrelevant: so much expertise was and is outside of it. Think of the NYT’s calamitous attempt to put its columnists behind the paid wall facade. Now bloat that with a ferocious war mindset, with us or against us, shame at letting 9/11 happen, almost unlimited funds and a Godlike Warlord. And that is just the day to day contracting issues of flipping badges, greed, and opportunism.

On top of that, we’ve written ad nauseam to always remember Addington, Cheney, Libby et al.’s determination to eviscerate Congress and the FISA Court extra-constitutionally. Recall that Addington was with Casey during the planning of the Enterprise before Casey inserted him at HPSCI. Recall that the goal of the Enterprise was to create a self-funding, self perpetuating organization that would stay on mission regardless of Congress, unknown to Congress, and until the mission is completed. (Kyle Reese’s attempt to explain to Sarah Connor what was out there sums it up). Given the billions spent, unaccounted for, lost, as Ross Johnson liked to say in the sands of time (or the GSA schedule — ala Abu Ghraib interrogation contracts), does anyone think that a bunch of wet-behind-the-ears congressional staffers (or even senior veterans called in to oversee them) will penetrate this “VEIL”? Does anyone really think that there will be a long line of private sector parishioners seeking confessional? Seeking audit? Seeking potential personal criminal exposure? Does anyone think anyone laid a glove on Bremer and missing billions when the Dems took over?

Quoting Harry, “Well, do ya, punk?”

I know, and you Dear Reader, know the answer. But many don’t. Or still sleep.

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For any embarking upon this journey:

Q: Quod petis? (What do you seek?)

A: Virtutes. Concede mihi virtutues quibus indegio, valeum impere. (Strength. That I be given the strength to carry this out, my resolve.)

Q: Quod ultra quaeris? (What else do you seek?)

A: Quaero togam pacem. (I seek peace.)