I was thinking of the NSA scandal while jogging through Rome’s Park of the Aqueducts this morning. I guess it was that setting that made me think of our new computer-geek overlords as a virtual Praetorian Guard. Augustus created the original Praetorian Guard about 27 BCE to protect the emperor. It quickly came to exercise independent power, once even auctioning off the empire to the highest bidder. This outrage led the Roman general Septimius Severus to march on Rome and displace Emperor Julianus who had won the Praetorian bidding war. Severus disbanded the old Preatorian Guard only to set up a new Praetorian Guard, which quickly achieved a similar authority, power, and autonomy. The “intelligence community” of the US government seems to be playing a similar role today.
We now have secret interpretations of public laws that some members of Congress have obliquely warned of. These members of Congress issue cryptic warnings of things they could not, presumably, talk about. Oregon Senator Ron Wyden and Colorado Senator Mark Udall have been warning us about secret interpretations of the Patriot Act. In May 2011, Wired magazine covered some of Wyden’s warnings. “We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says,” Wyden said. According to Wired, “Wyden says he ‘can’t answer’ any specific questions about how the government thinks it can use the Patriot Act. That would risk revealing classified information — something Wyden considers an abuse of government secrecy.” We have a representative of the people, a duly elected Senator, claiming that he “can’t answer” specific questions about how “the American government” is perverting a law passed by Congress. Who, pray tell, is “the government” if not the elected representatives of the people?
The New York Times recently said, “Yet shackled by strict rules on the discussion of classified information, Mr. Wyden and Mr. Udall, members of the Senate Select Committee on Intelligence could not — and still cannot — offer much more than an intimation about their concerns. They had to be content to sit in a special sealed room, soak in information that they said appalled and frightened them, then offer veiled messages that were largely ignored.” They quote Senator Udall saying, “I acted in every possible way short of leaking classified information.” Mr. Wyden, they say, “turned his palms to the air. ‘It’s against the Senate rules to get into the details.’ ” Senate rules?
A recent exchange between Representative Jerrold Nadler of New York and FBI Director Robert Mueller is informative. CNET reports,
Mueller initially sought to downplay concerns about NSA surveillance by claiming that, to listen to a phone call, the government would need to seek “a special, a particularized order from the FISA court directed at that particular phone of that particular individual.” Is information about that procedure “classified in any way?” Nadler asked. “I don’t think so,” Mueller replied. “Then I can say the following,” Nadler said. “We heard precisely the opposite at the briefing the other day. We heard precisely that you could get the specific information from that telephone simply based on an analyst deciding that…In other words, what you just said is incorrect. So there’s a conflict.”
Democratically elected Representative Nadler did not feel free to report apparent abuses until an appointed official assured him that the policies in question were not “classified in any way.” Once again it appears as if “the government” is not the elected representatives of the people, but the “intelligence community.”
Since the CNET story broke, Nadler has courageously backtracked. The Atlantic Wire reports that he said, “I am pleased that the administration has reiterated that, as I have always believed, the NSA cannot listen to the content of Americans’ phone calls without a specific warrant.” Unfortunately, Nadler does not seem to have asked how the intelligence community interprets “specific” in this context.
The elected representatives of the people cower before a secretive body of unelected officials and private contractors whom they refer to as “the American Government.” Congress should grow a pair.
Because Congress has betrayed its democratic and constitutional duty, the “intelligence community” has acquired an authority, power, and autonomy comparable to that of ancient Rome’s Praetorian Guard. Throughout the Imperial period in the West, Rome had a Senate that provided honors and riches to its members while serving a largely ceremonial function in Roman politics. The real power in Rome was divided between the Emperor and the Praetorian Guard. Something similar has come true in the US today.