The Deep State (19 page)

Fifty years after the ruling, a daughter of one of the men killed in crash, Judy Loether, discovered on the Internet that the government had declassified the accident report, without ever informing her. She bought a copy and discovered that no classified matter had been mentioned in the report. It was all a ruse to shield the aircraft maker from charges of defective manufacture.
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And so the precedent was deliberately deceptive, but the judicial automatons of the federal bench have pretended for the past sixty years that despite the government's having brazenly lied about the existence of classified information, this case should establish the precedent that, thenceforth and forever, all government assertions about classified information must be taken as true, definitive, and legally binding.

One suspects a similar morass of dishonesty lies behind the Obama administration's drone policy. In deciding to use drones to carry out assassinations, did President Obama or his predecessor go to the trouble of revoking Executive Order 11905, Executive Order 12036, or Executive Order 12333, all three of which prohibit assassinations? Or were these merely reinterpreted to mean that a ban on assassination means “not unless you really want to”? Unquestionably the latter, as someone deemed it useful to keep the old executive orders on the books as sacred artifacts one
could point to as examples of our virtue—much in the way the Roman curia, ever rife with corruption and intrigue, can in a pinch pull out a handful of holy relics to pacify the querulous.

The administration has done its best to keep the specifics under wraps, maintaining a close hold on all documents while leaking a white paper that supposedly summarizes its policy.
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Here one gets a sense of ad hoc improvisation: since then–deputy national security adviser John Brennan and other administration officials had already publicly stated that drone strikes were used only to disrupt “imminent” attacks, the white paper appears to have been engineered after the fact to prevent the administration from being constrained by Brennan's words. “Imminent” is gradually redefined over the course of several paragraphs so that it no longer means a criminal action is nigh, but rather inheres in the status of the targeted individual. Thus are certain people beneath the law: their status assumes their intended action, so they are fair game regardless of their actual conduct.

The white paper qualifies this startling legal theory (superficially similar to the German army's Commissar Order of 1941 that legalized the shooting on sight of Soviet commissars) by helpfully stating that such operations would not be conducted if civilian casualties would be “excessive.” One supposes the definition of the term “excessive” is as elastic as that which constitutes an “imminent” threat. Unofficial estimates suggest civilian casualties in the thousands, including several hundred children.
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The tragic deaths of two Western hostages of the Taliban in a drone strike in January 2015 were a vivid reminder that the targeting is hardly as painstaking or precise as our government claims.

One is tempted to conclude that there really is no administration-level drone policy, let alone one constrained by law, only a sham policy cobbled together after the fact in order to construct a plausible justification whenever complaints arise. At the operational level, drone targeting is constrained neither by the military code nor the laws of war nor by any other applicable treaty. It is just an intelligence-driven data set applied to a checklist: does target X-ray fit “terrorist signatures” alpha, bravo,
charlie, and delta? If the boxes can be checked, the government operative (or contractor) hits the switch. Everything is legal by definition and the only consideration is the status of the person on the receiving end, those around him be damned.

The Supreme Court as Corporate Enabler

The United States Supreme Court, the tribunal of last resort, has shown a similar drift toward results-oriented legal interpretation. The Supreme Court's 2014 decision in
McCutcheon v. Federal Election Commission
sparked considerable outcry, as did
Citizens United,
the court's infamous 2010 decision on federal campaign financing. But the
McCutcheon
case was not strictly about setting aggregate limits on individual campaign donations to candidates in federal elections, as is widely perceived. The case was really about what constitutes a bribe, how big that bribe can be, and whether an electoral system can be corrupt even in the absence of a legally demonstrable cash payment to an officeholder or candidate for an explicit favor.

Above all, the case was about the prerogative of the rich to control the political process of the country. The Roberts court, or rather five of its nine members, adopted the misanthrope's faux-naïve pose in ruling that private money, far from promoting corruption in politics, actually causes democracy to thrive. The basic argument, boiled down, is that money being speech, the more speech (meaning money), the freer the politics. And so the court decided to strike down a law that put a limit on total donations by individuals in any one election cycle. Anatole France mocked this kind of legal casuistry by saying, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” And now you, according to the Supreme Court, as an American citizen, have just as much right to be influential in politics as billionaire David Koch.

After the
McCutcheon
ruling, James Fallows wrote in The
Atlantic
that during Chief Justice John Roberts's 2005 confirmation hearing, the
nominee described his own judicial approach as “Humility. Modesty. Restraint. Deference to precedent. ‘We're just calling balls and strikes.'”
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Fallows went on to suggest that Roberts was being cynical, adopting that pose to get through the hearing. Now, while I believe it is true that our chief justice is a cynical man, I don't think the term “cynicism” quite captures the key quality that drives him to decide legal cases as he does. Nor is it cynicism alone that differentiates him from his jurisprudential fellow travelers Scalia, Thomas, Alito, and Kennedy.

There is unquestionably a bit of theater on the court: Scalia plays the opinionated blowhard at your local saloon; Thomas the complete cipher; Alito the pinched professional Catholic who could have come straight from the Roman curia; Kennedy, the guy who purports to be a swing vote when his mind is already made up. As chief justice of the Supreme Court of the United States, Roberts can't very well clown around in the manner of Scalia, who sometimes acts like Bill O'Reilly in a judicial robe. But for all their theatrical differences, the five conservative justices' bedrock beliefs seem to be as similar to one another as the creepy alien children of
Village of the Damned.
Roberts is different insofar as he is the more strategic front man.
*

Let us consider his unexpected decision in 2012 on the Affordable Care Act (ACA). Business interests were roughly divided on the law—some disliked its mandates and thought certain provisions might drive up their costs, while others saw its potential to let them dump insured employees into pools, or to benefit from tax subsidies. Pharmaceutical and health insurance industries may have seen it as a license to print money. The ACA was a costly and convoluted way to insure more people, but Republicans saw only one thing: it was Obama's initiative, so it must be opposed. Roberts saw it as a political squabble in which there was no
unified business position. It was even a law with a Republican pedigree—the Heritage Foundation had proposed something like it more than a decade before,
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and Mitt Romney had signed a bill into law in Massachusetts in 2006 that was nearly identical to the ACA. If a Republican were president, he might have proposed a similar bill; after all, the president who had nominated Roberts engineered the costly Medicare Prescription Drug Act.

Roberts perceived a deeper dynamic beneath the ideological posturing. Overturning the entire law in one decision would cause millions to question the court's legitimacy. Roberts threw a valuable bone to the Republicans by vitiating the Medicaid mandate to the states, making it harder to implement the law and permitting Republican governors and legislatures to work all manner of mischief, but he let the bulk of the law stand. Likewise, he led the majority in upholding the constitutionality of federal health exchanges in the 2015
King v. Burwell
case. Roberts was not about to damage the financial interests of insurers and hospitals for the sake of a patently desperate lawsuit by right-wing dead-enders, regardless of the comical heaving and sputtering by the ideologically driven Scalia.

McCutcheon
was a more relevant fight, and here we see Roberts the avatar of corporations rather than Roberts the tactician.
McCutcheon
and
Citizens United
were not cases about campaign finance laws nor were they, despite the artful smokescreen, about free speech or whether money constitutes speech. They were really about upholding the superior political privileges and political access of rich interests in society. It is worth emphasizing that point: Immediately after the June 2014 ruling in
Sibelius v.
Hobby Lobby,
the vast majority of press commentary saw the verdict as a distillation of the religious and cultural wars that have raged in this country for decades, with the five Catholic justices for the majority essentially ruling as factotums of the Vatican. Scalia and Alito may have seen themselves as such, but the deeper principle that united the Court's majority, as it has in dozens of cases involving corporations (in a way that they were not united on some other religious-cultural issues such as gay marriage), was the belief that when the perceived interests of business
clash with those of individual employees, business prerogatives must prevail.

We now have an algorithm with which we can crack the code of the Supreme Court. Once five members of the Court accepted the nineteenth-century concept of “freedom of contract” (which stipulates that an employee must put up with whatever conditions his employer chooses to impose, or leave), they had the power to rewrite laws governing employment. This simple fact explains hundreds of cases before the Court and clarifies seeming anomalies like the ACA. It explains the Court's position in
Vance v. Ball State,
which made it more difficult to sue employers for harassment, and
Ledbetter v. Goodyear Tire & Rubber Co.,
which barred any remedy for pay discrimination (Congress in this instance subsequently saw fit to redress the self-evident bias of the Court's decision). In
Wal-Mart v. Dukes,
the Court rejected a class-action suit by women employees who had been denied raises and promotions. The Roberts court also took the side of corporations against consumers in
Mutual Pharmaceutical Co. v. Bartlett
and
AT&T Mobility v. Concepcion
. And it declared unconstitutional a 1988 law that subjected corporate officers to fraud charges if they could be shown to have deprived clients of honest services.

As Oliver Wendell Holmes suggested in his dissenting opinion on the 1905
Lochner
case that established the concept of freedom of contract from which so many subsequent probusiness decisions have flowed, the court's majority based its decision on economic ideology rather than a plausible interpretation of the Constitution. Roberts is wise enough to know this, and to conceal his hand with strategic references to the free speech or the free exercise clauses in the First Amendment, but a careful study of his decisions reveals a more insidious rationale.

Laissez-Faire Economics Disguised as Legal Theory

The justices who currently make up the majority on the Supreme Court are not anomalies. In the last thirty years, conservative justices have become a kind of standard assembly with interchangeable parts churned out
by the conveyor belt of American law schools. The University of Chicago school of economics, which gave birth to the modern American version of economic neoliberalism, also fostered the so-called law and economics movement of the 1970s, which, with the assistance of endowments from corporations and wealthy individuals, conquered the nation's law schools. The reigning philosopher king of this movement is Richard Posner, a judge at the United States Court of Appeals, a senior lecturer at the University of Chicago's School of Law, and by some accounts the most cited legal scholar of the twentieth century.

While Posner adopts a progressive stance on social issues, on the bottom-line matters of economics he shares with contemporary Republicans a rigid belief in laissez-faire. Posner uses a reductionist approach in order to define questions of justice involving economic matters as questions of efficiency rather than tort or equity, and applies a specious market valuation to issues that have traditionally been considered moral or ethical problems. Thus, if your house is worth $300,000 and you like it fine and don't want to leave, beware of the developer who can match that price and use campaign contributions to persuade a city council to declare eminent domain on your residence! According to the law and economics movement, the land on which your house sits will always find a higher and better use in the hands of someone with more money, so don't complain when the sheriff arrives with an eviction notice. Thanks in part to Posner and his fellow legal theorists, jurists and regulators have interpreted antitrust statutes virtually out of existence: if business efficiency is the overriding consideration, big companies are by definition more efficient than smaller ones, and the matter is settled. Nonquantifiable values such as the public good scarcely enter into the equation.

A friend once complained to me about a basketball game in which the referee consistently called fouls on one team when none existed and failed to call fouls on the other team when it repeatedly committed them. I asked him if he thought the referee had taken a cash bribe. “Of course not,” was his answer, “he was just openly biased.” But is that not also corruption? Sometimes judges can be tainted by dogma, bias, or a priori reasoning
even in the absence of what Justice Roberts himself narrowly defined as quid pro quo corruption. The high court reminds us of journalist Humbert Wolfe's doggerel about the alleged incorruptibility of the British press: