The American Deep State

The expression “Deep State” originated in Turkey, and it designates “a group of influential anti-democratic coalitions within the Turkish political system, composed of high-level elements within the intelligence services (domestic and foreign), Turkish military, security, judiciary, and mafia”, that compose a state within the state. The turkish Deep State appeared with the Kemal Ataturk revolution of 1923.

“Deep State” is an increasingly popular expression used to describe the powers behind the state, the set of forces that exercise power beyond and above a country’s government and constitution, in this case the American Constitution.

In this interview with Bill Moyers, Mike Lofgren, a congressional staff member for 28 years, talks about what he calls Washington’s “Deep State,” in which elected and unelected figures collude to protect and serve powerful vested interests. “It is how we had deregulation, financialization of the economy, the Wall Street bust, the erosion or our civil liberties and perpetual war,”

As one of the commentaries on the interview says: “Mike Lofgren manages to say what conspiracy theorists have been saying for years…without sounding like a conspiracy theorist.”

Lofgren also tackles the same issue in the essay, Anatomy of the Deep State. After describing in detail its components and operational methods, he ends his article with an optimist note, as if there was still time (and means) to dismantle it. Unfortunately, we do not share his optimism. We fear that the Deep State and its owners are here to stay. Nevertheless, having been a partial insider, Mike Lofgren makes a good service by offering this apt description of the american Deep State, the true operational power of America.

Some excerpts:

“How did I come to write an analysis of the Deep State, and why am I equipped to write it? As a congressional staff member for 28 years specializing in national security and possessing a top secret security clearance, I was at least on the fringes of the world I am describing, if neither totally in it by virtue of full membership nor of it by psychological disposition. But, like virtually every employed person, I became, to some extent, assimilated into the culture of the institution I worked for, and only by slow degrees, starting before the invasion of Iraq, did I begin fundamentally to question the reasons of state that motivate the people who are, to quote George W. Bush, “the deciders.””

“Cultural assimilation is partly a matter of what psychologist Irving L. Janis called “groupthink,” the chameleon-like ability of people to adopt the views of their superiors and peers….As Upton Sinclair said, “It is difficult to get a man to understand something when his salary depends upon his not understanding it.””

“The Deep State does not consist of the entire government. It is a hybrid of national security and law enforcement agencies: the Department of Defense, the Department of State, the Department of Homeland Security, the Central Intelligence Agency and the Justice Department. I also include the Department of the Treasury because of its jurisdiction over financial flows, its enforcement of international sanctions and its organic symbiosis with Wall Street. All these agencies are coordinated by the Executive Office of the President via the National Security Council. Certain key areas of the judiciary belong to the Deep State, such as the Foreign Intelligence Surveillance Court, whose actions are mysterious even to most members of Congress. Also included are a handful of vital federal trial courts, such as the Eastern District of Virginia and the Southern District of Manhattan, where sensitive proceedings in national security cases are conducted. The final government component (and possibly last in precedence among the formal branches of government established by the Constitution) is a kind of rump Congress consisting of the congressional leadership and some (but not all) of the members of the defense and intelligence committees. The rest of Congress, normally so fractious and partisan, is mostly only intermittently aware of the Deep State and when required usually submits to a few well-chosen words from the State’s emissaries.”

“Washington is the most important node of the Deep State that has taken over America, but it is not the only one. Invisible threads of money and ambition connect the town to other nodes. One is Wall Street, which supplies the cash that keeps the political machine quiescent and operating as a diversionary marionette theater. Should the politicians forget their lines and threaten the status quo, Wall Street floods the town with cash and lawyers to help the hired hands remember their own best interests. The executives of the financial giants even have de facto criminal immunity. On March 6, 2013, testifying before the Senate Judiciary Committee, Attorney General Eric Holder stated the following: “I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy.” This, from the chief law enforcement officer of a justice system that has practically abolished the constitutional right to trial for poorer defendants charged with certain crimes. It is not too much to say that Wall Street may be the ultimate owner of the Deep State and its strategies, if for no other reason than that it has the money to reward government operatives with a second career that is lucrative beyond the dreams of avarice — certainly beyond the dreams of a salaried government employee. [3]

“…avatars of the Deep State — the White House advisers who urged Obama not to impose compensation limits on Wall Street CEOs, the contractor-connected think tank experts who besought us to “stay the course” in Iraq, the economic gurus who perpetually demonstrate that globalization and deregulation are a blessing that makes us all better off in the long run — are careful to pretend that they have no ideology. Their preferred pose is that of the politically neutral technocrat offering well considered advice based on profound expertise. That is nonsense. They are deeply dyed in the hue of the official ideology of the governing class, an ideology that is neither specifically Democrat nor Republican. Domestically, whatever they might privately believe about essentially diversionary social issues such as abortion or gay marriage, they almost invariably believe in the “Washington Consensus”: financialization, outsourcing, privatization, deregulation and the commodifying of labor. Internationally, they espouse 21st-century “American Exceptionalism”: the right and duty of the United States to meddle in every region of the world with coercive diplomacy and boots on the ground and to ignore painfully won international norms of civilized behavior. To paraphrase what Sir John Harrington said more than 400 years ago about treason, now that the ideology of the Deep State has prospered, none dare call it ideology.That is why describing torture with the word “torture” on broadcast television is treated less as political heresy than as an inexcusable lapse of Washington etiquette: Like smoking a cigarette on camera, these days it is simply “not done.””

Silicon Valley is a vital node of the Deep State as well. Unlike military and intelligence contractors, Silicon Valley overwhelmingly sells to the private market, but its business is so important to the government that a strange relationship has emerged. While the government could simply dragoon the high technology companies to do the NSA’s bidding, it would prefer cooperation with so important an engine of the nation’s economy, perhaps with an impliedquid pro quo.”

“That the secret and unaccountable Deep State floats freely above the gridlock between both ends of Pennsylvania Avenue is the paradox of American government in the 21st century: drone strikes, data mining, secret prisons and Panopticon-like control on the one hand; and on the other, the ordinary, visible parliamentary institutions of self-government declining to the status of a banana republic amid the gradual collapse of public infrastructure.”

“The Deep State is the big story of our time. It is the red thread that runs through the war on terrorism, the financialization and deindustrialization of the American economy, the rise of a plutocratic social structure and political dysfunction. Washington is the headquarters of the Deep State, and its time in the sun as a rival to Rome, Constantinople or London may be term-limited by its overweening sense of self-importance and its habit, as Winwood Reade said of Rome, to “live upon its principal till ruin stared it in the face.” “Living upon its principal,” in this case, means that the Deep State has been extracting value from the American people in vampire-like fashion.”

Ultra Vires ECB

Ultra vires is a latin phrase meaning literally “beyond powers”. If an act requires legal authority and it is done with such authority, it is characterised in law as intra vires. If it is done without such authority, it is ultra vires. Acts that are intra vires may equivalently be termed “valid” and those that are ultra vires “invalid”.

The verdict of the German Constitutional Court (GCC) last friday february 7 to declare the European Central Bank’s (ECB) Outright Monetary Transactions (OMT) program Ultra Vires, that is, not compatible with the EU Lisbon Treaty and with the German Constitution, but at the same time avoiding taking any binding resolutions and sending the case to the European Court of Justice (ECJ) has confused everybody.

We already discussed the issue of the GCC’s stance in relation to the ECBs programs and policies here and here and here and here. Now we update and continue this analysis.

In his editorial “The Euro after the Karlsruhe ruling” FT supports the GCC in its letting the ECJ decide on the process while at the same time criticizing that the argumentation by which the GCC considers the OMT Ultra Vires: “The judges in Karlsruhe argue that OMT goes against the ECB’s mandate since it amounts de facto to monetary financing of government debt – which is prohibited under article 123 of the European Treaty. This is also the position of the Bundesbank, Germany’s central bank, which has consistently opposed OMT. But this interpretation is highly questionable, since the ECB would only buy bonds on the secondary market. The court also claims that the bond-buying scheme goes beyond the ECB’s remit, which is limited to monetary policy. But OMT was necessary to overcome the fragmentation of the Eurozone credit market, which made it impossible for the ECB’s monetary policy to work.”

What the FT editorial forgets to mention though, is that in reference to purchases in the secondary market not being explicitly forbidden by article 123 of the European Treaty, the GCC declared that “es liegt auf der Hand, dass dieses Verbot nicht durch funktional äquivalente Massnahmen umgangen werden darf”, that is, purchasing bonds in huge quantities on the secondary market would conceptually be equivalent to acquiring them in the primary market, which is illegal, as is commented in the FAZ article “Die Angst der Verfassungsrichter”.

According to FT’s Alphaville “the decision to refer the OMT to the ECJ shouldn’t cause a political storm in Germany: the political institutions that matter long ago made their peace with the OMT. But the confusion about what the OMT does — Gerhardt alone nails it there — hardly helps.”. They argue that the german parliament, the Bundestag, has already had opportunity to boycott the OMT, and that the fact that it has chosen not to, would give democratic legitimacy to the ECB’s plan.

Also in the FT’s piece “Germany’s Constitutional court and the bond-buying plan” argues for a partial victory for the ECB, since they expect “the ECJ to sing from the ECB’s hymn sheet”, but they also have caveats: “The ECB is not completely off the hook, however. Until the ECJ makes its decision, uncertainty about the legality of OMT will persist. Some of the leading plaintiffs who brought the case in Germany argued on Friday that the ECB would not dare to activate its bond-buying scheme so long as the ECJ was considering the case – an exercise that could take at least a year.”

Gunnar Beck a law professor at London University, is cited in the same article  and blasted the GCC’s decision as “legally indefensible”, emphasizing that the constitutional court’s decision marks the first time it has handed a case to the European court:  “Up to now the [constitutional] court had consistently maintained that it alone – and not the EU courts – had the final say on whether the EU institutions exceeded their competence. Because if this matter were left to the court of justice of the EU, Germany would lose any control over the transfer of sovereign rights to the EU under the EU Treaties.” and “Today’s decision therefore amounts to nothing less than a surrender of sovereignty by Germany’s highest court.”

We can find a good summary of the GCC’s resolution in “Ein Richterspruch mit Risiko” @ Zeit Online where the main points are clearly synthesized: 1) The OMT program would have “Verteilungseffekte” (distribution effects), in that it would favor bonds of some countries (supposedly the ones from the most indebted countries, Greece, Portugal, Italy, Spain, Ireland) over those of other members of the Eurozone, which would amount to state financing, something that the ECB is not allowed to do. 2) The OMT program should not have as objective the artificial modification of government bond rates of the different countries of the Eurozone, bond prices should not be manipulated (“Eingriffe in die Preisbildung am Markt”), but that is precisely what the OMT is supposed to do. 3) Finally, the GCC leaves an open door for a “decaf” OMT that would comply with conditions 1 and 2 already mentioned and, also, the size of the program would not be unlimited (“whatever it takes”) but with a definite and finite size beforehand.

So what can we conclude of it all?

  1. Although the GCC’s remit of the OMT case to the ECJ appears to be a victory for Draghi’s co-opted ECB, the fact stands that it will be more difficult for the ECB to implement its OMT program while its legality has already been declared null by a 6 to 2 vote at the GCC and there is a pending case relating to the same issue before the ECJ. Although everybody assumes that the ECJ will give a favorable ruling as to the legality of the OMT program, what if it did not? Does the ECB want to run the risk of having started a program whose legality has been denied by the GCC and on which the ECJ has yet to issue its ruling?
  2. At the very least the GCC has argued and conveyed the idea that the OMT is illegal, and that if the ECB finally decides to use it, it will be with “dirty hands”. Also, and it is not a negligible victory, the pressure on the ECB to avoid using the OMT before the ECJ has issued its verdict will be enormous.
  3. Opposition by german citizens to the OMT, and to the ECB policies in general will not disappear with this resolution. The idea that Mario Draghi’s ECB has been co-opted, will, if anything, increase, creating a moral hazard issue that the ECB  will find increasingly difficult to ignore.
  4. The importance of the final outcome of this case goes well beyond the economic and financial consequences of the possible implementation of a “money printing” program by the ECB. Its main significance lies in the question of whether legality in Europe has any meaning anymore, whether to fulfill globalist (?) dreams international treaties and national constitutions can be superseded.
  5. Perhaps this resolution should be analyzed and judged in the context of what governments and parliaments have done since the global economic and financial crisis exploded in 2008. If something characterizes the economic and monetary policies in the West in the last 5 years, is, on one side, almost unlimited money creation by central banks, labeled differently depending on the country (QE, LTRO, pegging of the Swiss Franc to the Euro, the japanese “three arrows program” etc. etc.), and an almost biblical reluctance on the part of governments to rein in the financial sector that has had to be rescued, at tax payers’ cost, everywhere. Like Simon Johnson argued a few years ago in “The Quiet Coup”, the financial sector has co-opted the state. He was talking about the USA, but the same argumentation could be applied to most western countries. What some people call New World Order (NWO) or Neofeudalism, has advanced, not gone backwards, in this crisis. That being so, was it perhaps not too much to expect the GCC to swim alone against this NWO tide? By voting against the OMT 6-2, naming it illegal, and referring the case to the ECJ, they have perhaps shown as much courage as they’ve been able to summon and, in any case, much more than governments and parliaments.

The GCC could have done better, it could and it should have declared the OMT illegal without remitting the case to the ECJ, but in a world in which the NWO finds almost no opposition, it could also have done worse. In the end, we doubt Mario Draghi is happy with the GCC’s resolution and, inasmuch as he is unhappy with it, the GCC snatched a small victory from the jaws of defeat.