Since health care is front and center this week, allow me to attempt an analogy. There are certain members of Congress for whom the creation of a public option, even a very weak one, is a deal-breaker.  And I think one reason for this is they know that, were they to compromise and create even an anemic public option, that new government program would be here to stay, and would only expand and grow stronger.  So, if you oppose a big public program, you’d better oppose a small one too.

This is the nature of our government: programs are relatively easy to create, almost impossible to kill.  As Jonathan Rauch described in his 1999 book, Government’s End, every program and subsidy quickly builds up a network of people to defend it, making the political cost of ending a program far greater than creating a new one to counter it.  Hence, for example, controls on peanut production enacted during the Depression in response to commodity market turbulence still existed nearly 70 years later.

So what’s my point?  Easiest to give you the words of the New York Times‘ Charlie Savage, who’s done great reporting on the Obama administration and civil liberties, in an interview with Glenn Greenwald (apologies for the long quote, but the whole thing is necessary):

I had this interesting conversation when I was working on this article that came out this morning with Jack Balkin at Yale Law School, and he compares this moment to when Dwight Eisenhower took over, in 1953, and after FDR and then Truman had built up the New Deal administrative state, which Republicans hated, but then Eisenhower, instead of dismantling it, just sort of adjusted it with his own policies a little bit, and kept it going. And at that point, there was no longer any sort of partisan controversy about the fact that we were going to have this massive administrative state; it just sort of became a permanent part of the governing structure of the country.

And in the same way he said in 1969 when Richard Nixon took over from LBJ, he did some adjustments to the great society welfare state that LBJ had built up, but he didn’t scrap it. And at that point, Republicans and Democrats had both presided over the welfare state and the welfare state became part of just how government worked.

That in the same way, Obama now, by continuing the broad outlines of the various surveillance and detention and counter-terrorism programs, is draining them of plausible partisan controversy, and so they are going to become entrenched and consolidated as permanent features of American government as well, going forward.

Greenwald uses this quote in his recent piece about the Bush administration’s reported discussions in 2002 about possibly deploying the military within the U.S. to round up American terrorism suspects.  This report hasn’t gotten that much attention, largely because it seems to be irrelevant at this point: so the government had some discussions about a plan in 2002, and never put that plan into action.  So what?

Well, Greenwald makes the argument that the memo making the case for domestic military deployment is in fact “one of the most significant events in American politics in the last several decades” because it explicitly suggests that the Bill of Rights could be rendered inapplicable to U.S. citizens in wartime.  Even putting aside the fact that domestic deployment of the military in a law enforcement capacity without Congressional authorization is a clear Posse Comitatus violation, the memo does also make the case that the 4th and 1st amendments could be “subordinated to the overriding need to wage war successfully.”

But whether or not the 2002 discussions were significant in and of themselves, they were certainly indicative of a trend in American government - accelerated rapidly during the Bush administration but not confined to it - toward concentrating more power in the executive branch, and transferring duties tradtionally carried out by other agencies to the government force most under the executive’s control: the military.

The encroachment by the Defense Department onto the turf of the State Department and the intelligence community in the planning and execution of the Iraq War and in counter-terrorism operations is well-known.  But it’s also true that the expanded role of the military in those areas - in other words, an expanded role in diplomatic and law enforcement arenas - is incredibly hard to walk back, even if the Obama administration has a mind to do so.

This might give pause not just to civil libertarians but to anyone concerned with preserving oversight and institutional checks on government operations.  The Washington Post’s Walter Pincus writes today that several Congressional committees are sounding alarm bells over Pentagon communications programs - “that until recent years had been the sole province of the State Department’s public diplomacy effort” - that have ballooned from nearly $10 million to nearly a billion in the last 4 years.

The programs have grown too fast and are spread through the Defense Department budget in a way that hampers oversight, complain the House and Senate Armed Services committees and the House Appropriations Committee. They also suggest that the military is producing propaganda and other materials that mask U.S. government sponsorship and focus “far beyond a traditional military information operations.”

The House Appropriations Committee said many of the programs looked like “alarmingly non-military propaganda, public relations, and behavioral modification messaging.”  And the military, perhaps because it hasn’t traditionally engaged in this sort of thing, isn’t covered under a law that prohibits films and articles produced by the State Department from being circulated domestically.

Meanwhile, the Times‘ Eric Lichtblau and James Risen, famous for uncovering the Bush administration’s warrantless wiretapping program, write today about a shift in authority that has given White House military officials the primary role in creating a backup government in case of a catastrophic attack - authority previously held by civilian authorities like the Federal Emergency Management Agency.  While it would be foolish to overstate the importance of who controls the logistical response to an event of, to put it mildly, extremely scant likelihood, Lichtblau and Risen note the context of the shift:

…during the debate [over shifting the authority], officials at other agencies that have traditionally played critical roles expressed concern that the new structure placed too much power in the hands of too few people inside the White House. They also saw the move as part of the Bush administration’s broader efforts to enhance the power of the White House.

Though the office reports to the White House, many of its employees are uniformed soldiers, and it has sometimes been led by a military officer. So concerns about the perception of growing military influence in the emergency process set off an internal struggle…

Though the move was made in the final weeks of the previous administration, the Obama administration has adopted it - calling it “settled.”  Again, this relatively small change needn’t get too much attention, but it’s one example of the steady march toward more power being concentrated at the White House and the Pentagon, and of one administration cementing the power shifts of the last.

It’s far too early to tell where the Obama administration will fall overall in institutionalizing or walking back the expanded executive and military power of the previous administration.  Many eyes are, for instance, on Hillary Clinton, to see whether she will be able to wrest some of the State Department’s power back from the Pentagon and the various czars.  But in the civil liberties arena, certainly the current White House has shown so far no inclination to shed any of the power amassed by the last - and if policies such as indefinite detention are institutionalized in law, it will have cemented those policies quite possibly for years to come.

Image via Army.mil

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