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Republicans and Democrats Are Both Wrong about Leaks from Intelligence Agencies

Julian Sanchez

It’s a Washington tradition as hoary as the White House
Easter Egg Roll: Power changes hands, and partisans suddenly swap
positions on an array of issues. Erstwhile champions of a strong
executive begin worrying about tyrannical overreach (and vice versa). Laments about obstructionism and gridlock fade
into paeans to our ingenious system of checks and
balances. And, perhaps most remarkably in the Trump era, the right
discovers the deep perfidy of the “deep state” while progressives pin their
hopes on the American intelligence community.

Yes, this is a bit of a caricature. Establishment
Washington’s coziness with the spookshow has long been a
bipartisan affair (see: Feinstein, Dianne). So has civil
libertarian opposition; the hippies at the American Civil Liberties
Union were singing “Kumbaya” with the bow-tie
brigade at the American Conservative Union to oppose the Patriot
Act way back in aught-one. All the same, it’s a weird state
of affairs.

Among the myriad sideshow oddities of the Trump era: Republicans
in Congress, as if suddenly awakening to the massive surveillance
apparatus they spent the past 15 years constructing, belatedly
echo civil liberties concerns they once
reflexively ridiculed; they even threaten to curtail some Bush-era
surveillance authorities. Meanwhile, many on the left grow positively giddy over leaked transcripts
of Americans’ National Security Agency-intercepted
conversations, provided said Americans work for the Republican
White House.

he FBI and its peers have
their own agenda, and it doesn’t align with either
party.

The facile, cynical read on this would be that the only bedrock
principle in politics is tribal advantage — which is probably
half the story. But seen through a more charitable lens, this
recent inversion both obeys a shared underlying logic and reflects
a common underlying confusion.

The underlying logic is this: Excessive autonomy from, and
excessive domination by, the political branches of government have
long been recognized by intelligence scholars as the twin perils of
spycraft. Excessive autonomy gives rise to what we could dub the J.
Edgar Hoover problem, after the legendary and infamous FBI director
whose umbral half-century tenure saw the bureau run as a personal
fiefdom, largely insulated from political accountability. The trove
of embarrassing secrets — personal and political —
about prominent Americans stored in Hoover’s files gave his
nominal overseers in Congress and the White House good reason to
fear crossing him.

Concerns of this sort have traditionally been more prominent on
the left, in no small part because of the long and ignominious
history of intelligence abuses directed at that end of the
political spectrum. More recently, the intelligence bureaucracy
that conservative demonology now dubs the “deep state” was the subject of
Tufts international relations scholar Michael Glennon’s
“National Security and Double Government” (later
expanded into a book of the same name). Contemporary invocations of
the concept routinely veer into the realm of conspiracy theory, but
the core idea — that there is an entrenched national security
establishment with significant power to advance its own aims, even
in the face of opposition from the political branches — is
neither novel nor fantastical.

Excessive subordination to the political branches, however, is
no less dangerous. Call that the Richard Nixon problem, recalling
how a Senate investigation concluded that the president had
“authorized a program of wiretaps which produced for the
White House purely political or personal information unrelated to
national security.” It is entirely too easy to imagine a
political loyalist at the head of the FBI, directing the bureau to
selectively investigate Fox News’s villain of the day while
turning a blind eye to potential misconduct by those close to the
White House. This seems to be exactly what former director James
Comey feared.

Because both poles represent genuine dangers, determining which
is the more urgent risk ultimately comes down to a judgment call
about which looms closer under present circumstances. So it’s
probably inevitable that your level of alarm depends on your
assessment of the current president and his propensity to abuse
power. The error partisans tend to make is to pretend that only the
threat about which they’re currently most concerned is
real.

That’s linked to another fundamental mistake by both
sides: the tendency to use current partisan attitudes as the lens
through which law-enforcement phenomena can be understood. When
Comey recommended that no charges be filed against Hillary Clinton
for mishandling classified information, Republicans blasted him for
carrying water for Democrats. When Comey later informed members of
Congress that the FBI was (briefly and without consequence, as it
transpired) resurrecting the Clinton investigation, liberals
accused him of deliberately seeking to throw the election to Donald
Trump. Both accounts are mistaken. Whatever you think of
Comey’s judgment, the intelligence community and the people
who staff it follow the institutional logic and interests of their
agencies. That may mean that their actions overlap with the agenda
of either party at any given time, but that agenda is rarely the
driving force.

The failure or refusal to understand this prevents partisans
from comprehending what’s going on when intelligence and
politics parlously intersect. It also leads them to cheer or damn
developments more wisely regarded with cautious ambivalence.

Consider a story broken by Reuters recently. Contrary to
White House denials, it said, Trump campaign officials had numerous
undisclosed contacts with the Russian government, both before and
after the November election. Michael Flynn, the former national
security adviser, and Russian Ambassador Sergey Kislyak
“discussed establishing a back channel for communication
between Trump and Russian President Vladimir Putin that could
bypass the U.S. national security bureaucracy, which both sides
considered hostile to improved relations.”

That account is ascribed to “four current U.S.
officials,” so it seems reasonable to infer that it was
derived from intelligence intercepts of Kislyak and Flynn’s
conversations. It’s not hard to imagine why intelligence
officials might view the disclosure of such information as both
legitimately in the public interest and, in the wake of
Comey’s dismissal, even necessary. One need not speculate about “Obama holdovers”
(a phrase often deployed by conspiratorially minded commentators on
the right as a synonym for “career intelligence
professionals”) dedicated to undermining the administration
to explain such a leak. We had, after all, an incoming national
security adviser — later revealed to have been acting as an unregistered paid agent of Turkey,
as well as to have accepted undisclosed payments from Russian
state media — collaborating with the ambassador of a country
that had just meddled in a presidential election to avoid scrutiny
by American intelligence agencies. With the administration taking
drastic steps that appeared calculated to tamp down an investigation into
the “made-up” question of collusion between
the Trump campaign and Russia, intelligence officials with no
particular partisan ax to grind might view going to the press
(a felony, incidentally) as the only way to
prevent facts with significant national security implications from
vanishing down the memory hole.

Yet in addition to Nixon’s “purely political”
wiretaps, history provides numerous examples of intelligence abuses with origins in
some inquiry with a plausibly legitimate national security purpose.
(The FBI’s notorious COINTELPRO operation, for instance,
initially targeted radical groups advocating armed violence before
metamorphosing into a campaign of harassment against peaceful
left-leaning activists.) And it’s probably impossible to know
how any public-spirited motives for the latest Flynn disclosure
might be colored by widely reported resentment within the FBI
toward the dismissal of a well-loved director, in a peremptory
manner that many viewed as an insult. This leak ought, then, to
give even the administration’s fiercest critics pause.

If we take it at face value (leaving aside whether that’s
proper), the Flynn intercept reveals a president-elect apparently
worried that his foreign policy would be undermined by his own
government’s intelligence agencies. It would be easier to
dismiss that fear as yet another fit of Trumpian paranoia if it
didn’t seem like we were learning about that conversation
from wiretaps.

Progressives who’ve recently learned to stop worrying and
love the surveillance state should think hard about the precedent
such leaks set — and the implicit message they send to
political actors — even if any particular instance can be
justified as serving the public interest. The leaks may not be, as
conservative media would have it, the only real scandal, but nobody
should be too enthusiastic about the prospect of living in a
country where officials who antagonize spy agencies find their
telephone conversations quoted in news headlines.

Trump fans, meanwhile, should not make the mistake of thinking
that the only reason to worry about the deep state is that it
remains Barack Obama’s deep state. The most effective bulwark
against abuse of the intelligence community’s power is not
the bodies charged with overseeing the spy agencies — all
ultimately depend on candor and disclosure from the agencies
themselves — but the fragile culture of restraint that
fitfully emerged in the aftermath of the scandals of the 1960s and
’70s. Whatever remains of that culture 16 years into the war
on terrorism, hollowing out the intelligence bureaucracy to make
room for appointees selected for their personal loyalty to Trump
would probably finish it off.

Julian
Sanchez
is a senior fellow at the Cato Institute and studies
issues related to technology, privacy, and civil liberties.