Two recent and unconnected revelations demonstrate that the deep state remains engaged, deceptive and dangerous.
Here is the backstory.
The deep state consists of those parts of the government that do not change in response to elections and are not transparent or answerable to voters.
This generally includes the intelligence and law enforcement communities, the military and diplomatic communities, and central bankers. Each has its private sector collaborators.
Some would include the judiciary. As a former member of the judiciary from one of the four states that grant life tenure to judges, I do not consider judges in the same category as CIA, FBI and other thugs — armed or flush with cash — who have their own secret agendas.
With the sole exception of the unconstitutional Foreign Intelligence Surveillance Court, judges operate in public courtrooms. Whatever they do is reduced to writing and subject to an appeal or public criticism.
The deep state is well below the visible parts of government and rarely subject to public scrutiny. Its budgets are secret. And its power is rarely subject to appeal of any sort. Its two most notorious members — and the two that tormented former President Donald J. Trump — are intelligence and law enforcement. And the two best known in those communities are the CIA and the FBI.
Readers of this column know that the CIA tortures people in foreign lands, believing that somehow torture committed outside the United States cannot subject its officers to prosecution. We know this because of recent revelations in hearings in the military courtrooms at the U.S. Naval Base at Guantanamo Bay, Cuba.
There have been no full jury trials there since the inception 20 years ago of this George W. Bush-inspired modern-day Devil’s Island. Still, there have been hearings with juries to determine the punishment of those who have pleaded guilty to federal crimes.
In one of those hearings, we learned of four years of torture of a foreign national at the hands of the CIA, only to have its officers reveal their opinion that the torture was useless as the victim was telling the truth before, during and after they repeatedly invaded his body cavities and nearly froze him to death in a walk-in refrigerator/freezer.
These revelations were not challenged by the military and civilian prosecutors.
There are many CIA actions that the agency wishes we did not know about, such as the wars it has fought, its physical presence in every statehouse in the U.S. and its domestic spying on Americans without search warrants. When Gen. David Petraeus was the director of the CIA, he admitted in a talk he thought was secret, but which was secretly recorded, that the CIA has access to all microchips in your home.
No statute authorizes CIA torture or domestic spying. In fact, the Constitution and treaties to which the U.S. is a signatory and federal statutes prohibit both types of behavior. Yet, CIA agents engage in criminal behavior because they can — and because they know that they can get away with it.
Over the Christmas holiday, CIA officials leaked to friendly reporters at CNN their determination to overhaul their network of spies, cease paramilitary actions — which presumably include torture — and return to the “quiet statecraft” of spying on “adversaries” like China and Russia. Then the CIA learned that it has failed to recruit enough Mandarin and Russian-speaking agents to do so. Criminal and inept.
We also learned shortly before the Christmas holiday from testimony at Guantanamo Bay that nine FBI agents were formally transferred to the CIA so that they’d be free to engage in torture themselves without damaging the reputation of the FBI. CIA agents apparently don’t care about their employer’s reputation the way their bosses do.
During the Christmas holiday, former FBI agents revealed that they and others had secretly gone undercover and pretended to be part of the mobs that engaged in the riots in 2020 in Portland, Oregon. There, 200 folks were arrested in a six-month period and charged with various crimes, ranging from unlawful assembly to obstruction of justice to using violence to destroy government property.
When FBI agents go undercover, their task is to blend in with the folks they are secretly monitoring. That often means committing the same crimes as these folks. Thus, 100 of the 200 cases were dropped because the FBI agents who were sent to join the mob and pretended to be part of it failed adequately to chronicle what they saw.
Or so their now-retired former colleagues say. We will, of course, never know the true reasons why these cases were dropped. Nor will we know which of these crimes were actually provoked or committed by FBI agents.
We know from reports by the inspector general of the Department of Justice for 2020, and from courtroom files in the FBI-created conspiracy to kidnap the governor of Michigan, that the FBI never prosecutes its own when they are undercover and commit crimes, and, in fact, it regularly permits its undercover sources to commit crimes with impunity.
What’s going on here?
What’s going on is the destruction of personal liberty in America by the very folks we have hired to protect it. CIA and FBI agents have all taken the same oath as I did when I became a judge — to abide by the Constitution. The folks who torture, spy on without warrant, and create and participate in criminal behavior have become a law unto themselves as they decide what laws to break, what laws to uphold and whom to permit to get away with lawless behavior.
This will bring us to ruination. Why do we tolerate it?
• Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.
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