The President’s War On American Intelligence: A Legal Conflict, And At Several Levels

By Louis René Beres

Special to Jewish Business News

“I hold despicable, and always have done…. anyone who puts his own popularity before his country.”

Sophocles, Antigone, Speech of Creon, King of Thebes

US President Donald Trump’s curious war against his own intelligence community is utterly unhidden and plainly recognized. What is still missing from any pertinent national debate, however, is the much deeper anti-intellectual ethos of this president. Essentially, Mr. Trump’s disregard for his most senior intelligence agency personnel is the direct reflection of a more corrosively underlying and generalized loathing of all serious thought.

To enlist applicable terms of both science and philosophy, the president’s strangely demeaning view of his intelligence chiefs is epiphenomenal.

There is more. Donald Trump’s core ideas about American foreign policy have literally no connection to any relevant legal obligations. Refusing, again and again, to be influenced by any authentic gatherings of intelligence, or by his unambiguous Constitutional obligations to defend the nation, this president’s obsequious preference for the approval of Vladimir Putin reveals a genuinely unprecedented form of jurisprudential dereliction.

For Mr. Trump, hyperbole always substitutes for more disciplined thinking. His stream-of-conscious observations on law and policy have routinely been restricted to monosyllabic grunts, and to embarrassingly visceral spasms of “amazing,” “fantastic,” “incredible,” or “beautiful.” As one frequently recurring example of these observations, the president’s legendary “border wall,” we are reminded, will have “a beautiful door.”

Ironically, Donald Trump is fond of chastising others about purported legal obligations: “This is a nation of laws….,” he has warned on several disjointed occasions. Still, on especially critical matters of both national and international law, many of them overlapping or intersecting, Mr. Trump has chosen to look in various different directions. Accordingly, confronted by a president whose most refined notion of correct legal reasoning is the argumentum ad baculum – that is, an overtly aggressive and presumptively illegitimate reliance upon personal defamation and intimidation – the American people should finally understand the substantial jurisprudential consequences of his positions.

Donald Trump is no scholar. No one could have expected anything else. But he is, especially, no jurist. Still, international law remains an integral part of the law of the United States, and can’t properly be overlooked by this president’s supporters. Critically vital incorporations are codified at Article 6 of the U.S. Constitution (the “Supremacy Clause”), and also at several corresponding U.S. Supreme Court decisions (principally, the Paquete Habana, 1900).

Does Donald Trump truly understand what all this means?

In the fashioning of US national policies, evidence of intellect should never be a cause for presidential embarrassment. Yet, as the cameras pan around the audience de jour at Trump’s fearfully adrenalized “rallies,” it’s hard to imagine even a scintilla of crowd interest in law, logic, or lucidity. Plainly, in the fashion of other bedazzled (or bewitched) audiences in 20th century history, this is not a crowd that especially wants its great leader to be learned or law-minded.

Article 6 of the US Constitution clarifies, inter alia, that “…all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land….” In this connection, the United States is a party to the 1951 Refugee Convention, which contains (at Article 33) the core principle of non-refoulement: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality membership of a particular social group or political opinion.”

Incontestable legal principles notwithstanding, under President Trump’s assorted executive orders, such impermissible expulsions and returns have already become expressly codified policy of the United States.

There is more. In all such flagrant violations of US and international law, Mr. Trump is not the real “pathology.” Rather, his law-violating presidency is just the most visible symptom of a much more widespread and deeply systemic disorder. The really basic “illness” here is an anti-intellectual American society that frowns upon absolutely any hints of independent thought.

Within this prospectively lethal society, the ordinary individual citizen counts for nothing.

As for non-citizens who present themselves at US borders for legitimate rescue of one kind or another, these “alien” people count for literally less than nothing.

When their infant children are housed in cages, the president, freshly tanned and bemused, flies to Florida or New Jersey for yet another round of golf. Interestingly enough, although generally unknown to Americans, the due process clauses of the US Constitution protect all “persons,” and not just citizens. Jurisprudentially, this authoritatively codified scope of competence is both meaningful and unassailable.

Always, law follows society. “The crowd,” observed the Danish philosopher, Soren Kierkegaard, “is untruth.” Obligingly, Mr. Trump’s obedient minions insist upon chanting in chorus. For those who have had even a minimal acquaintance with modern history, the hideously dark tenor of any such ritualistic chanting should sound more than just vaguely familiar.

Ultimately, in both life and in law, truth is exculpatory. This is not by any reasonable standards of assessment a normal American presidency. Now, therefore, we must inquire, much more audibly: “Is this a somehow excusable and remediable legal deformation, or is it “merely” a dress rehearsal for a still-wider anarchy? To be sure, this president cherishes chaos in both national and international politics, a troubling affection that is impossible to reconcile with even the most rudimentary legal expectations of US governmental normalcy.

Always, Mr. Trump’s supporters, who still number in the several millions, yearn for the tangible warmth of “belonging” to a shrill and shrieking crowd, and also for the numbingly false reassurances of persistently simplistic explanations. Complexity, after all, is difficult and daunting for those who would loathe recognizable intelligence in virtually any form.

“Intellect rots the brain,” cautioned Third Reich Propaganda Minister Joseph Goebbels, at the 1935 Nuremberg rallies.

“I love the poorly educated,” reassured candidate Donald Trump, during the 2016 US presidential campaign.

The Founding Fathers of the United States did not generally believe in democracy. Most had agreed with Alexander Hamilton’s trenchant observation that “the people are a great beast.” Thomas Jefferson, arguably the most democratic of the Founders, tied any hopes for a decent democratic ethos with first creating a challenging system of education, but he still described “the people” as “refuse” from whom a small number of gifted individuals might somehow be “culled” once each year.

Today, it’s not likely that Jefferson would have regarded the chanting mobs at Trump rallies as plausibly suitable candidates for any such identification.

Hardly.

When Sophocles, one of the early Greek tragedians, held as “despicable” a king who would place his own personal popularity ahead of national well-being, he also lamented (together with fellow playwright’s Aeschylus and Euripides) that a corrupted leadership must inevitably engender a corrupted commonwealth. Hence, when Theban King Oedipus finally discovers his own terrible personal “flaw,” the Chorus recognizes unavoidable connections with the famine and disorder prevailing throughout Thebes. Today, when an American president remains focused on his presumed personal popularity, and not on core legal obligations concerning national security and collective well-being, we face similar connections.

Now, even when there is no longer a Chorus to announce relevant perils and render them explicit, there is very little about presidential wrongdoings that can remain hidden.

The real question before us is this: Will we effectively challenge a leader who mocks American law and intelligence, or will we instead have to face the lethal consequences of looking the other way. History, of course, is replete with conspicuous examples of law-violating societies and states that lacked adequate courage. Predictably, such sobering examples sometimes concluded with once-inconceivable crimes of war, crimes against peace (aggression) and crimes against humanity.[1]

Louis René Beres was educated at Princeton (Ph.D., 1971), and is Emeritus Professor of International Law at Purdue. His twelfth book, Surviving Amid Chaos: Israel’s Nuclear Strategy, was published in 2016. His other writings have been published in Harvard National Security Journal; Yale Global Online; World Politics (Princeton); Bulletin of the Atomic Scientists; Israel Defense; Parameters: Journal of the US Army War College; Special Warfare; Oxford University Press; The Jerusalem Post; Infinity Journal; BESA Perspectives; US News & World Report; The Hill; and The Atlantic.