In Matters of National Security, the President No Longer Decides, He Presides
Professor of International Law Michael Glennon delivered BU Law’s Kleh Lecture.
Professor Michael Glennon delivered Boston University School of Law’s Kleh Lecture on October 29, 2015. Glennon joins the BU Law faculty for the 2015–2016 academic year as the William and Patricia Kleh Visiting Professor in International Law from the Fletcher School of Law & Diplomacy. He based his lecture on his recently published book, National Security and Double Government, in which he argues that our nation’s security policy is not formulated by Congress, the president, or the Supreme Court, but rather by the hundreds of managers of our military, diplomatic, and law enforcement agencies. As a result, US national security is controlled by officials who have had little training in constitutional requirements and foreign law.
At the cornerstone of Glennon’s lecture was a discussion of how American national security policy is made. He began by asking the audience to imagine themselves as “the caregiver of your Uncle Rip, a prominent US Constitutional scholar who has been asleep since 1952 and, upon waking, asks what is going on in the world?” Glennon speculated that one response may be to relate that the United States is currently fighting a war in the Middle East. As he discussed how the US arrived at this conflict, he asked the audience if the president has the authority to do what he is currently doing in the Middle East, reminding them that while the Supreme Court has routinely decided that in matters of war and peace, Congress has final control.
He argued that, in today’s political environment, the courts, Congress, and the president defer to the managers leading the national security team on matters of US security policy. Glennon contended the president could give an order to the national security entities to act or not to act but, in all of the rarest of cases, he would not. Glennon suggested that upon waking, Uncle Rip would be working under a paradigm of the presidency where the president is at the top, and the directives come from the commander in chief. Today, however, there are millions of people in the executive branch as the number of presidential appointees is between three and four thousand in total. Of those three or four thousand, only six hundred deal with issues related to national security. Thus, the president no longer decides but simply presides over an enormous bureaucratic machine from which ideas trickle up.
Emphasizing that he does not imply that there is a conspiracy, an invisible government, or a state within—Glennon rather suggests that the several hundred managers of the national security apparatus are hard-working, intelligent people who are responding to incentives of career advancement embedded in the government system, as anyone would. Because of the way national security is run, the managers tend to define security in military terms rather than in political terms or diplomatic terms because the military in American society is widely respected and extremely proficient.
Glennon also spoke to the difficulty anyone would have in identifying and holding members responsible for conflicts on the national security team, noting how the national security programs are, as Secretary of State John Kerry described the tapping of Chancellor Merkel’s cell phone, “on autopilot.” He argued that the actions of the US national security team operate without much oversight—to the point that they often run on their own.
In his final remarks, Glennon reflected on the differences between Uncle Rip’s time and today, and how we have developed a somewhat different form of government. The US has unwittingly drifted into a system of double government. Our country continues to have three dignified institutions in the presidency, the courts, and Congress, which largely exist for public show and to generate legitimacy. The real work, however, in dealing with matters of national security, lies in the hands of the managers of the national security apparatus. Glennon warned that the country is moving gradually toward a concealed autocracy. He concluded the talk with a quote from Hamlet: “There must have been a moment where we could have said no, but, somehow we missed it.” Glennon believes that if we do not say no soon, the United States may also miss that moment.
Reported by Rio Gonzalez (’17)