The National Security State: The End of Separation of Powers

By Tigar, Michael E. | Monthly Review, July/August 2014 | Go to article overview

The National Security State: The End of Separation of Powers


Tigar, Michael E., Monthly Review


On March 11, 2014, Senator Dianne Feinstein went to the U.S. Senate floor to announce that the CIA had sought to sabotage a Senate Intelligence Committee investigation of torture and unlawful detention. She set out in detail the ways in which the national security apparatus had frustrated meaningful oversight by the legislative branch of government.1

Already, government lawyers had convinced courts that there should be no judicial review of torture and unlawful detention. Such review, it was argued, was beyond the competence of judges, and the executive branch of government needed unfettered discretion to deal with national security threats.

The net result is that the CIA, the NSA, and all the other executive branch agencies engaged in surveillance, detention, torture, rendition of suspects, and even targeted killings by drone strike have claimed immunity from accountability by either of the two other brancheslegislative and judicial. What they have done, why they have done it, and why their actions are or are not lawful-all of this has retreated behind a wall of secrecy. The claim made by government lawyers that there has been and will be legislative oversight turns out to be false.

In the November 2006 Monthly Review, I wrote an introduction to Jean-Claude Paye's article "A Permanent State of Emergency." It begins:

"The law is a mask that the state puts on when it wants to commit some indecency upon the oppressed." I put these words into the mouth of a character in my play "Haymarket: Whose Name the Few Still Say With Tears." ...In theory, the bourgeois democratic state, as defined in the American constitution, was to operate under two basic principles. The first of these was separation of powers. Legislative and executive action would be held to a standard of legality by the action of unelected and therefore presumably independent judges. The second principle, elaborated more fully in the Bill of Rights, is that certain invasions of individual personal liberty are forbidden, and that the judges will provide a remedy against those who commit such invasions.2

It is time to revisit these issues, and to see more fully the ways in which fundamental principles about restraints on state power are being and have been undermined. In this brief article, I can hope only to identify the questions that must be asked.3

Original Understanding-the First Promise

The first promise was that executive power could be curbed by the other branches of government. In Federalist No. 68, James Madison spoke of the ways in which executive power would be controlled in the new U.S. constitution: "unless these departments be so far connected and blended, as to give to each a constitutional control over the others, the degree of separation.. .essential to a free government can never in practice be duly maintained."4

Patrick Henry, speaking against ratification of the U.S. Constitution, was pessimistic. He warned:

If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute! The army is in his hands, and if he be a man of address, it will be attached to him, and it will be the subject of long meditation with him to seize the first auspicious moment to accomplish his design, and, sir, will the American spirit solely relieve you when this happens? I would rather infinitely-and I am sure most of this Convention are of the same opinion-have a king, lords, and commons, than a government so replete with such insupportable evils. If we make a king we may prescribe the rules by which he shall rule his people, and interpose such checks as shall prevent him from infringing them; but the president, in the field, at the head of his army, can prescribe the terms on which he shall reign master, so far that it will puzzle any American ever to get his neck from under the galling yoke. I can not with patience think of this idea. If ever he violate the laws, one of two things will happen: he will come at the head of the army to carry everything before him, or he will give bail, or do what Mr. …

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