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https://thescrum.substack.com/p/covert-lawlessness

"'Covert lawlessness.'"  

American exception, empire, and 'the deep state

Within the social sciences, it is conventional to frame research in terms of a research question or questions. This may be more or less useful depending on one’s field and the issues that one is researching. The following is an attempt to distill what my dissertation sought to address in a few questions: Why does U.S. foreign policy display such continuity across administrations? Why has American democracy—most specifically the rule of law—declined inversely with the rise of U.S. global dominance? To some extent, this formulation of the research questions was a contrivance. The scope of the project was broader than most of the mid-range theories that today predominate in the social sciences. If comparison might be useful, American Exception was influenced and inspired by works like The Power Elite by C. Wright Mills1 and Democracy Incorporated by Sheldon Wolin.

Political scientists have spilled much ink to create theories and definitions of democracy. In a broad, normative sense, a country is democratic to the extent that it is the general public—rather than an elite of power—which ultimately controls the political system. Institutionally, a democracy is characterized by the rule of law, political rights, free and fair elections, and accountability. Within the American social sciences, most seminal twentieth century scholars and theorists of American democracy have focused on U.S. domestic politics and U.S. society. This would include political scientists like Dahl and Lindblom as well as sociologists like C. Wright Mills. A central concern of this book is the relationship between expansive foreign policy and democratic decline. One of the few American political scientists to focus squarely on this issue was [Harold] Lasswell. His neglected “garrison state” construct is worth revisiting and reassessing given the subsequent rise of U.S. global dominance and democratic decline.

There are three larger realms in which democratic decay is most evident. The first—and a central one for the purposes of this book—is the diminishment of the rule of law. The second pertains to the drastic rise in inequality. The third is the decline in American nationalism. The decline of the rule of law relates to the rule of law as one of the chief factors which define democracy. The other two aspects—inequality and the decline of nationalism—pertain to the broad, commonsense understanding of democracy. These are relevant because they are aspects that relate directly to one of the central dynamics explored in this book—the impact of America’s post–World War II global orientation upon U.S. politics and society.

The diminishment of the rule of law can be dramatically illustrated by the following separate but interrelated trends: high criminality or unadjudicated crimes committed by top government officials and political insiders, elite criminality or crimes committed by socioeconomic elites, and finally the abasement of constitutionally guaranteed political rights. High criminality would include the “October surprise” of 1968, the crimes associated with Watergate, the sprawling high crime spree that is truncated by the term “Iran-Contra,” and stolen presidential elections of 2000 and possibly 2004. Deserving to be included in the realm of high criminality are innumerable U.S. foreign policy practices, including aggressive war and the overthrow of foreign governments which would on their face appear to clearly violate the U.N. Charter. The U.N. Charter outlaws aggression and even the threat of aggression against other states. The U.S. Senate ratified the U.N. Charter and since the supremacy clause of the U.S. Constitution deems ratified treaties to “be the supreme Law of the Land,” U.S. leaders have violated “the supreme Law of the Land” innumerable times, judicial abdication notwithstanding.

Socioeconomic elite criminality (i.e., the crimes of the superrich) is most clearly exemplified by the scores of unadjudicated crimes related to the financial crisis of 2008 and 2009. The violation of political rights is evident in the McCarthy era, FBI COINTEL programs, media manipulation, mass surveillance regimes, suppression of political movements, torture regimes, warrantless detention, and assassination programs. While the violation of democratic political rights does entail the commission of crimes by government officials, the institutionalized nature of these violations makes them distinct from the aforementioned high crimes. It is worth noting that there is considerable overlap between the decline of the rule of law and the weakening of the other institutional components of democracy. Specifically, elections have been less than “free and fair.” Political rights have been infringed upon. Accountability is diminished as a result of state secrecy and the selective application of the rule of law which together prevent meaningful accountability in crucial areas.

Economic inequality in America has risen to levels not observed since before the Great Depression. This is an antidemocratic trend because it is logical that a political system controlled by the general public rather than elites would not be characterized by ever-rising levels of stratification. Additionally, America has also seen rising levels of political inequality. In the 1950s, C. Wright Mills observed that democracy, in any meaningful sense, had been superseded by the rise of a tripartite American power structure which had consolidated its hegemony over politics and society. More recently, political scientists using quantitative methods have been able to establish that the general public has virtually no political influence relative to elites. While both the middle and lower levels of U.S. society have little influence on the political system, the lower strata of society are subject to an array of institutions that diminish their ability to enjoy “life, liberty, and the pursuit of happiness” such as could be expected in an advanced democratic country. These institutions include police surveillance and repression, mass incarceration, substandard public education, inadequate social services, widespread unemployment and underemployment, and predatory business practices.

The third realm in which America’s undemocratic trajectory can be traced relates to the decline of nationalism in many important respects. In this context, “nationalism” refers to the pursuit of policies which strengthen and enrich the country’s collective economy and population. One would expect nationalism to be expressed in a democratic system since it would not behoove campaigning politicians to advocate for policies which would be harmful to the nation as a whole. Yet, in many areas, officials have acted in ways that were counter to the general interest. American governments have pursued policies that facilitated deindustrialization resulting in reduced domestic production and consumption on the part of workers whose jobs have been offshored. Additionally, the state of America’s physical infrastructure has declined dramatically. This is striking in a country with considerable latent productive industrial capacity. The domestic economy also suffers from a trend toward historically high levels of private and public debt. This creates an unproductive, feudalizing dynamic which benefits a rentier class at the expense of the general population’s economic security and living standards. A related trend is privatization—the transformation of the public domain (education, utilities, prisons, etc.) into avenues for rent extraction. Here again, a rentier class benefits at the expense of the public at large. Collectively, these neoliberal trends are the opposite of what progressive political economists predicted would result from democracy and economic development. 

It is crucial to note that this democratic decline has been unfolding in an era of American unipolarity or global hegemony. At the very least, the U.S. was the hegemon of the global capitalist world during the Cold War and has been the unchallenged global hegemon since the fall of the Soviet Union. American political thinkers from the Founding Fathers to contemporary scholars like Chalmers Johnson have asserted that empire is not compatible with democracy. Such analysis in and of itself is not novel. The focus here is upon the forces that drive the pursuit of global dominance, and which have altered the structure of the state. An understanding of the resultant structures is essential. Specifically, the evolution of the American state should be understood in terms of its continuity with the past as well as its relatively novel features. empire, hegemony, and the state.

Bringing in the Tripartite State.

First put forward in a 2015 article I wrote for Administration & Society, the tripartite state theory is intended to illuminate the nature of the American state and the American power structure. Fundamentally, it blends and builds upon three extant approaches to understanding the state and U.S. society. Regarding the state, theories of the dual state or double government are given considerable weight. C. Wright Mills’s theories of the tripartite structure of American power also inform the idea of the tripartite state. In effect, the three parts of the tripartite state are analogous to the “big three” institutions that comprise Mills’s American power structure—big business, the military, and the political directorate. Finally, the theory utilizes and adapts Peter Dale Scott’s deep politics approach, which seeks to discern the powerful forces and actors whose decisive influence is typically not acknowledged in public discourse.

The tripartite state is comprised of three elements—the public state (i.e., the democratic state), the security state, and the deep state. The public state consists of those institutions that we learn about in high school civics classes and study in political science—the visible and formally organized institutions that comprise our elected federal, state, and local governments as well as the civil service bureaucracies associated with them. The security state is comprised of those institutions in charge of maintaining “security” domestically and internationally. Notable security state organizations include the Pentagon, the Central Intelligence Agency, and the Federal Bureau of Investigation.

The deep state is a more nebulous thing. In my 2015 article, I sparsely defined the deep state as “an obscured, dominant, supranational source of antidemocratic power.” Back in 2013, The New York Times defined the deep state as “a hard-to-perceive level of government or super-control that exists regardless of elections and that may thwart popular movements or radical change.” Describing the essence of what he means by the term deep state, Peter Dale Scott describes it as “a power not derived from the constitution but outside and above it;” the deep state is “more powerful than the public state.” The institutions that exercise undemocratic power over state and society collectively comprise the deep state. The deep state is an outgrowth of the overworld of private wealth. It includes, most notably, the institutions that advance overworld interests through the synergy between the overworld and the underworld—as well as the national security organizations that mediate between them. Collectively, the dominance of deep state has diminished U.S. democracy to such an extent that it is justified to describe ours as a deep state system and to speak of the tripartite state. A central contention herein is that the tripartite state developed alongside postwar American exceptionism—“the institutionalization of the interminable state of exception” which has entailed “the institutionalization of securitized supra-sovereignty or Lockean ‘prerogative’ although not to a fixed or determinate source.” In other words, the covert lawlessness with which the U.S. pursued international dominance after World War II had the cumulative effect of transforming an imperfect democracy into a tripartite state system characterized by covert top-down rule.

The tripartite state emerged from deep-seated forces in U.S. society. The public state existed prior to independence in the form of colonial assemblies and later the Continental Congress. Likewise, there were elements of a security state dating at least back to the Continental Army and Washington’s network of spies in the War for Independence. Early in U.S. history, the security state was more securely tethered to the public state and was used relatively sparingly—for example—against Barbary Pirates and American Indians and to promote expansion as in Andrew Jackson’s attack on Spanish Florida or Polk’s Mexican-American War. The cases of Florida and Texas are especially relevant since no official authorization was given to Andrew Jackson or the Texas rebels respectively, yet their legally dubious actions seem clearly to have emerged from deep political forces in the U.S. Andrew Jackson’s negation of the Indian treaties and Abraham Lincoln’s suspension of habeas corpus are other examples of the illegal and/ or unconstitutional exercises of prerogative power which were dwarfed by the exceptionism that emerged after World War II.

From the founding of the United States to World War II, the U.S. could be described as having a deep political system in tandem with the more visible political system. The overworld of private wealth often comingled with an underworld political economy, and some of the most lucrative trades occupied a realm between legality and criminality. Most notably, examples include the slave trade, the opium trade, and later the fruit and sugar industries. These often-transnational enterprises could become powerful and even decisive in shaping economic fortunes and political outcomes. Domestically, the various political machines were the most obvious institutions wherein deep political forces presided, providing a nexus between overworld and underworld forces of the U.S. and of various localities. One may conceive of political machines as the organizations which—in miniature—provide the best historical analogy to the current hypertrophied American deep state.

The period following the Civil War—i.e., Reconstruction and the Gilded Age—saw the U.S. emerge as an industrialized economic behemoth with commercial interests quickly expanding beyond its borders. The deep political power of private wealth was ascendant but accompanied by modest political reforms which were responses to mobilized democratic elements of civil society. At the turn of the century, with “manifest destiny” and the closing of the frontier finally achieved, the U.S. began to project its power globally. It is noteworthy that Henry Cabot Lodge, the man perhaps most responsible for steering the U.S. into the Spanish-American War, was descended from Boston Brahmins who had made vast fortunes in the opium trade. Similarly, deep political forces were likely decisive in the U.S. decision to unofficially abandon neutrality early in World War I and later to formally enter the war. In particular, the U.S. entry seems to have been a function of the relationship between Britain and the pinnacle of the U.S. financial elite, J.P. Morgan specifically. Had Germany not surrendered—an outcome very much in doubt after Brest-Litovsk—the U.S., with J.P. Morgan as its broker, stood to lose billions after extending vast amounts of credit to the Allies. Morgan influence went beyond U.S. entry and victory in the war. At Versailles, illustrious financier Bernard Baruch complained that Morgan men had been in control of the proceedings. As per the treaty’s terms, harsh reparations were foisted on Germany which in turn enabled the Allies to repay the U.S.

Despite its considerable power at the close of World War I, the U.S. did not at that time seek the mantle of global hegemony. It wasn’t until the onset of World War II that deep forces in U.S. society sought to reorient American posture toward the international realm. The U.S. establishment needed to reform and create institutions to manage international and domestic politics. The postwar national security state and America’s sense-making institutions collectively shaped the U.S.-led world order and the “postwar liberal consensus” that sought and legitimized US global dominance. Anticommunism allowed for the securitization of politics. As America’s founders observed, the securitization that necessarily accompanies wars is toxic or even fatal for democratic/republican institutions.

The Cold War achieved the securitization of politics on a scale theretofore unseen in U.S. history and was deemed—or understood to be—a twilight struggle against an implacable, amoral adversary bent on world domination. National security organizations are by design undemocratic. Hierarchy, secrecy, and expediency are structural features necessitated by the imperatives of “security.” They are authoritarian responses to real, imagined, or fabricated threats—especially existential ones. The postwar U.S. national security state did not arise from an attack against the country. It was created ostensibly to combat Soviet communism and the supposed threat that it posed to the U.S. and the world. However, the organizational structure of the national security state was created by elites with deep connections to the overworld of private wealth. In particular, the CIA was the brainchild of men like Allen Dulles. Along with his brother, future Secretary of State John Foster Dulles, Allen Dulles was a longtime employee of Sullivan and Cromwell, the storied Wall Street law firm whose clients included the world’s largest multinational corporations. Given this history, it is not difficult to grasp why so much of U.S. foreign policy has consisted of intervening to make countries as suitable as possible for the maximization of corporate profit. The previous seven decades provide innumerable examples that demonstrate the extent to which overt and covert U.S. interventions in foreign countries were often instigated by—and for the benefit of—the overworld of corporate wealth. These interventions have involved every expedient manner of violence and lawbreaking. It bears repeating: Foreign wars and covert operations are illegal under the U.N. Charter. Having ratified the treaty, U.S. officials violate the U.S. Constitution by contravening the charter which is deemed to be “the supreme law of the land.” 

It has often been argued that Cold War anticommunism was to blame for the excesses of U.S. foreign policy during the era. This would entail conceiving of anticommunism as an outlook and set of practices opposed to the spread of Soviet or Chinese-style communism. Such practices could be described as regrettable but necessary departures from American ideas of fair play, undertaken to confront an existential threat. Were such an understanding accurate, the state of exception to the rule of law would have ended with the fall of the Soviet Union. Such has not been the case. In 1996, a House Intelligence Committee report stated that CIA officials had revealed that the agency’s operations arm “is the only part of the [Intelligence Community], indeed of the government, where hundreds of employees on a daily basis are directed to break extremely serious laws in countries around the world.” A conservative estimate “is that several hundred times every day, [Directorate of Operations] officers engage in highly illegal activities.” In 2019, Secretary of State Mike Pompeo reaffirmed this, stating, “I was the CIA director. We lied, we cheated, we stole.” George White of the OSS, the Federal Bureau of Narcotics, and the CIA put it more colorfully: “[I]t was fun, fun, fun. Where else could a red-blooded American boy lie, kill, cheat, steal, rape and pillage with the sanction and blessing of the All-Highest?”

There are serious problems that an exceptionalist (i.e., lawless) security state presents to a liberal democracy. The rule of law is obviously overridden. State secrecy confounds public sense-making and deliberation since the public cannot evaluate policies and governmental actions that are obscured or misrepresented through various ersatz cover stories. These very weighty issues are likely not the most problematic aspect of U.S. exceptionism. One provocative question examined herein involves the extent to which these criminogenic political institutions and practices have been confined to the realm of foreign policy. To put it another way: Has the U.S. been able to hermetically seal state-sanctioned lawlessness and thereby maintain the rule of law domestically even while exceptionism prevails in foreign relations? Drawing from the work of Lance deHaven-Smith and others, the answer appears to be no; there are enough documented and suspected state crimes against democracy, SCADs, to assert that at best public sovereignty has been compromised. A more alarming interpretation would be that SCADs and related dynamics have collectively comprised a series of coups d'état that has drastically weakened American democracy. Progressive elements of the U.S. government and society have been marginalized while U.S. dominance has been pursued internationally—typically with various measures of subversion, violence, expropriation, and exploitation.

Some of these documented and suspected interventions include: the assassination of President Kennedy; the FBI’s COINTEL programs against the antiwar, civil rights, and black power movements; the assassination of Malcolm X; the Gulf of Tonkin Incident; the assassination of Martin Luther King; the assassination of Robert Kennedy; Nixon’s 1968 “October surprise;” the collection of crimes known collectively as Watergate; the 1980 “October surprise;” the Iran-Contra affair; the September 11, 2001, terror attacks; the subsequent anthrax attacks, and the “stolen” presidential elections of 2000 and 2004. Another notable pattern of criminality that touches upon many state crimes involves the nexus between the intelligence agencies and international drug traffic. While the evidentiary support for each of these suspected or documented SCADs differs, they each have their serious and reputable proponents, even as the prevailing discourse dismisses such suspicions as “conspiracy theory”—a term that has come to connote unseriousness and which is applied in such a way as to encourage the a priori rejection of critical theories and the acceptance of state-sanctioned narratives. DeHaven-Smith examined this issue and found that the term “conspiracy theory” was seldom used in public discourse until the aftermath of the John Kennedy assassination. He points to a CIA document distributed to the agency’s media assets requesting their assistance in dismissing and marginalizing “conspiracy theorists” as unreliable, irrational, and/or venal. Thus, there has been what could he described as the “conspiracy theory conspiracy,” wherein state actors intervene in civil society to help create a prevailing common sense wherein reasonable suspicions of high criminality are reflexively dismissed and stigmatized by our sense-making institutions.

The collective impact of SCADs is impossible to measure precisely. Addressing many of the same anomalies as deHaven-Smith, Peter Dale Scott describes some of the key phenomena as structural deep events, history-shaping episodes that impact “the whole fabric of society, with consequences that enlarge covert government.” Rather than ever being properly investigated and/or adjudicated, structural deep events “are subsequently covered up by systematic falsifications in media and internal government records.” Every civilization reaches a level of complexity at which point milieus and institutions emerge which wield power yet remain submerged or not fully revealed or acknowledged by the society as a whole. In the U.S., this dynamic is described by Scott as America’s deep political system. An argument made in this dissertation is that these SCADs or deep events have indeed altered the course of American history and transformed the U.S. political system. In its earlier form, U.S. governance was characterized by varying levels of coexistence and accommodation between constitutional democracy and a deep political system. Subsequently—especially after World War II—interventions from the deep political system transformed the American state and U.S. society, giving rise to the tripartite state—i.e., a deep state system exceptionism allows for the supra-sovereignty of undemocratic forces. Specifically, the overworld of corporate wealth has created and altered institutions to most effectively manage international and domestic politics to the effect that empire and hegemony—and thus exceptionism—are sacrosanct imperatives even as their decisive impacts are rarely acknowledged or debated candidly in public discourse.

The rise of the tripartite state has greatly weakened American democracy in the most fundamental sense if a system of governance is understood to be more or less democratic to the extent that sovereignty rests with the public rather than elites. The decline of U.S. democracy has given rise to three crises to which the deep state system cannot adequately respond. The first crisis is the ever-present risk of nuclear omnicide—the extinction of humanity, by humanity. The second is the crisis of global climate change. The third is the crisis of inequality wherein a tiny minority owns most of the world’s wealth while globally tens of thousands of people die daily from lack of adequate access to food, potable water, and/or basic healthcare. Without drastic moves toward progressive and democratic structural reform, it is difficult to imagine how any (much less, all) of these crises can be resolved. With these sobering exigencies in mind, the theory of the tripartite state seeks to illuminate our current political dystopia and to place it in the appropriate historical context….

Legitimacy, Lawlessness, and Liberal Myths.

Every political entity is constituted emotionally and morally through typically mythical narratives about its origins, history, and values. Together those narratives form a common biography which serves as a foundation for the group’s shared common identity. A state’s constitutive collective identity reduces its diplomatic mendacity and its brutality in war because it entails a moral code. Violence and duplicity are also constrained by internationally accepted meta-norms that have emerged from the commonalities among the moral codes of other states within the world order. Given that imperialism requires a kind of amorality as articulated in Thucydides and by [Leo] Strauss, there is conflict between an empire’s amoral foreign policy and its supposedly fundamental moral code. Imperialist realpolitik must also conflict with global meta-norms. These contradictions are becoming more glaring as the increasingly interconnected world is ever more of aware of global inequities. Former U.S. National Security Advisor Zbigniew Brzezinski described the approaching moment as “the global political awakening,” stating that,

For the first time in history almost all of humanity is politically activated, politically conscious and politically interactive. Global activism is generating a surge in the quest for cultural respect and economic opportunity in a world scarred by memories of colonial or imperial domination.

In a liberal democracy, not only are liberal norms salient, they are codified. This makes the rule of law another potential impediment to the imperatives of global dominance. In order to manage affairs of state in this context, a subset of the political class must manage affairs of state, deHaven-Smith’s Guardian Elite. This is the class, again, comprised of “high-ranking officials who are privy to state secrets, who decide what the public may and may not know, and who plan and authorize covert operations, foreign and domestic surveillance, and other espionage and intelligence activities.” The Guardian Elite polices—largely in secret—the political class and the mass public. They serve to allow the state to overcome three potential impediments to the exigencies of empire, namely: America’s moral code, global meta-norms, and the rule of law. Their amoral ethos and class consciousness allow them to be unbound from the American moral code and the norms of global society. Exceptionism—the institutionalized suspension of legal restraints—protects them from facing legal consequences stemming from their illicit clandestine activities. Exceptionism has its roots in the contradictions within liberalism, contradictions that trace back to its philosophical roots and the origins of the state.

Max Weber’s classic definition of the state maintains that it is the organization which maintains a monopoly on the legitimate use of violence within a particular territory. Charles Tilly demonstrated that in the history of the rise of the modern state, the legitimacy or illegitimacy of the state’s monopoly on violence is complicated by the fact that the organizations from which the modern state evolved resembled nothing so much as protection rackets. It was through war-making that these protection-racketeering, nascent states evolved. “War made the state, and the state made war,” wrote Tilly. Thusly, the modern state emerged from institutionalized illegitimate violence, and in such a way as to allow societies to more effectively organize violence internally and externally against other societies. The modern state has sanctioned and participated in various economies of violence, including the trans-Atlantic slave trade, the Opium Wars, and overt imperialism like colonialism. Liberals could dismiss these “as vestiges of pre-modern, absolutist political forms.” If such a dismissal were warranted, liberal democracy should gradually abolish these lawless aspects as public sovereignty and the rule of law are strengthened.

In the latter years of colonial America, the colonists were especially aggrieved by the crown’s prerogative powers. Eschewing monarchist dogma, the political philosopher John Locke is typically cited as the thinker who most influenced the Framers of the U.S. Constitution. Locke’s political philosophy is widely understood as placing sovereignty in the public through its role in selecting representatives and making a government. An elected legislature, therefore, is best able to protect life, liberty, and property while safeguarding against the arbitrary exercise of power. However, Locke contradicted his own central premise by arguing that “the Executive Power” confers the authority to act decisively in the public interest. He asserted that “accidents may happen wherein a strict and rigid observation of the laws may do harm.” Locke even used the term “prerogative” to describe this discretionary power, which he admits in passing is “arbitrary power.”

In so doing, Locke essentially ignored the fact that the prevention of arbitrary power was the guiding principle of his prescribed constitution. He most strikingly abandoned his liberal path in the instance of the “emergency,” where he obliquely invokes raison d’état. This is, of course, the concept offered to legitimate essentially all acts of state carried out in power contests between states—the doctrine that evolved from the “interest of state” into the “security of state,” and its well-known contemporary form: “national security.” With these arguments, Locke placed security highest of all, just like Hobbes—the man typically considered to be his antithesis. Locke at least quibbled over the implications, asking “But who shall judge when this power is made right use of?” He answered that if the legislature is unable to check the prerogatives of an executive, “[T]here can be no judge on earth.” In such an instance, a ruler is using a power that was never his, since people cannot consent to the rule of those who would harm them. Under such circumstances, the people are to make an “appeal to heaven” at the opportune moment. This is to say that the people have the right to revolt. However, in the absence of overtly tyrannical rule, Locke and Hobbes are in general agreement regarding legal restraints to prerogative powers effecting existential security. By not defining the boundaries of prerogative power, Locke liberalized and thus legitimized what is essentially a foundation for absolutism.

While Locke deemphasized the incompatible absolutism within his liberal theorizing, Carl Schmitt harkened back to Hobbes by focusing precisely on the absolutism of existential security. Schmitt is best known for his dictum, “Sovereign is he who decides on the exception.” The “state of exception” cannot be “codified in the existing legal order” because it is “a case of extreme peril, a danger to the existence of the state.” The state of exception is so perilous that “it cannot be circumscribed factually and made to conform to a preformed law.” Public sovereignty is essentially an illusion because true sovereignty resides with whoever decides when a state of exception exists—and when it no longer exists. The most that a liberal constitution can hope to establish is the personage of the sovereign. The sovereign also determines when the situation is “normal,” and only under normal circumstances can laws and the adherence to laws exist. As a less punchy corollary to his dictum, Schmitt wrote, “[H]e is sovereign who definitely decides whether this normal situation actually exists.” Constitutionalist liberals can at most regulate the exception as precisely as possible, an endeavor tantamount to legally defining the circumstances that entail the law’s negation of itself.

Carl Schmitt was a twentieth century descendent of Thomas Hobbes, articulating a dark and illiberal conception of state power. Responding to this illiberal dynamic, other thinkers characterized the securitization of politics as a dangerous development. If unchecked, securitization would lead to increasingly authoritarian government, even if superficial democratic trappings remained. Hans Morgenthau identified the emergence of illiberal institutions in the U.S. government, as control shifted toward the exigencies of “security.” This change, Morgenthau wrote, “has occurred in all modern totalitarian states and has given rise to a phenomenon which has been aptly called the dual state.” In such a state, authority is ostensibly held by those legally empowered officeholders. In reality, Morgenthau posits that a Schmittian dynamic is in effect: “[B]y virtue of their power over life and death, the agents of the secret police—coordinated to, but independent from the official makers of decision—at the very least exert an effective veto over decisions.”

Ola Tunander describes a dual state with a deeper schism between the lawfully operating “democratic state” and the more autocratic “security state” whose sovereignty becomes apparent in a state of emergency. Beyond the mere capacity to veto the democratic state, the security state operates to effect the “fine-tuning of democracy.” Such interventions are accomplished through logics that are outside liberal renderings of politics, termed parapolitics. As formulated by Peter Dale Scott parapolitics is “a system or practice of politics in which accountability is consciously diminished.” For Tunander, liberalism’s refusal to interrogate the duality of the state represents a serious theoretical deficiency. The problem is not that liberalism values freedoms, rights, and the rule of law; the problem is that liberalism insists that freedoms, rights, and the rule of law define Western political systems. According to Tunander, this myopia has made liberal political science into “an ideology of the ‘sovereign,’ because indisputable evidence for the existence of the ‘sovereign’ [. . .] is brushed away as pure fantasy or ‘conspiracy.’” Carl Schmitt is typically viewed as an apologist or, worse, a philosophical midwife for the infamous exceptional state that emerged from the Weimar Republic. Tunander depicts him as something different—a theorist examining the submerged, authoritarian security state that functions in tandem with the public state.

Throughout the history of liberalism, there has been a contradiction between the liberal ideal of public sovereignty under the rule of law and the dictates of “security.” In fact, this tension extends further back in Western civilization as can be seen with Plato, who could never neatly reconcile the rule of law versus the rule of “the wise.” This contradiction is analogous to Athenian politics. Domestically, there was some form of rule by persuasion and consent. In foreign affairs, coercion and top-down dark power prevailed. By the twentieth century, state behavior had in theory been legally circumscribed. But in practice, raison d’état could justify exempting the state from legal restraint. Schmitt’s theory of the sovereign was meant to apply to a state facing an existential crisis. Such a crisis could serve to legitimize the exceptionalist state—the state unbound by legal restraints. Schmitt could be described as an illiberal philosopher since he attempted to spell out the circumstances under which the state negates its own laws and constitutional rights. He thus argued that the state had the right—or even the obligation—to negate the very institutions that define liberalism. In Schmitt’s Germany, the decidedly illiberal Nazi state emerged from circumstances and actions described and prescribed by Schmitt himself.

U.S. exceptionism emerged at the high point of American liberalism. No nation in world history was as wealthy and powerful relative to the rest of the world as was the U.S. at the end of World War II. And yet, the liberal ideal of public sovereignty proved illusory. If sovereignty rests with the party that decides “the exception” and the “normal” situation, sovereignty shifted gradually from the public to the deep state via the deep state’s dominance over the security and public states. Charles Tilly found that it was states’ relations with other states which forced the evolution of pre-modern polities into modern nation-states. Similarly, in the postwar era, the full U.S. commitment to global hegemony inexorably transformed the character of the American state. The U.S. evolved from being a constitutional democracy heavily influenced by deep political forces, into the exceptionalist, behemoth, tripartite state.

Prior to the late nineteenth century, the U.S.—like ancient Athens—was domestically governed largely through various means of persuasion, compromise, and consent among parties deemed worthy. When it came to expansion and dealing with political “others,” coercive top-down power prevailed. Beginning most decisively with the closing of the frontier at the end of the nineteenth century, U.S. elites began creating an overseas empire in earnest. Institutions were created which grew in tandem with U.S. power—such that by the dawn of World War II, the U.S. was poised to assume the mantle of global capitalist hegemon. The general character and institutional framework of the postwar world order was crafted by deep political forces, through a planning process that began prior to America’s entry into the war. These processes led inexorably to the transformation of the American state and to the de facto abrogation of the rule of law—exceptionism, legitimized by myths of American exceptionalism.