False Reassurances: On Pixie Dusted Executive Orders, Appendix M, and Proxy Detention and Torture

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In the wake of Trump’s victory, a number of people have offered some thoughts intended to reassure. In a piece titled, “The United States is not about to spiral into tyranny,” Kevin Drum claimed — among other things — that Trump will have a hard time reversing Obama’s Executive Orders.

Trump will learn that repealing executive orders is harder than he thinks, and it’s unlikely he has the attention span to really keep at it.

And a number of pieces — such as this one from Reuters — point to last year’s language in the NDAA limiting interrogation to techniques that appear in the Army Field Manual.

Trump’s support for water-boarding, an interrogation technique that simulates drowning, also would meet opposition. Congress last year passed legislation barring the use of waterboarding and other “extreme interrogation techniques” widely considered torture. Obama signed the measure into law last November.

Both of those reassurances are overly optimistic.

Pixie Dusting EOs

Even on its face, the idea that Trump can’t reverse Obama’s EOs doesn’t make sense. A president has uncontested authority to pass EOs as he pleases. The only limit on that power is Congress. If sufficient numbers in Congress, backed by sufficiently powerful leaders in Congress, want to contest a president’s public EOs, they can try to legislate or defund an activity.

There is no likelihood of that happening with Trump anytime soon. None. Especially not with the EO that Trump is probably most anxious to reverse, Obama’s order deferring deportation of 5 million people who’ve long been valuable members of American society.

More importantly — and this is something everyone needs to start accounting for — according to two different OLC memos, one used to authorize Iran-Contra, the other used to authorize Stellar Wind, the president doesn’t even have to make the actual implementation of his EOs public.

An executive order is only the expression of the President’s exercise of his inherent constitutional powers. Thus, an executive order cannot limit a President, just as one President cannot legally bind future Presidents in areas of the executive’s Article II authority. Further, there is no constitutional requirement that a President issue a new executive order whenever he wishes to depart from the terms of previous executive order. In exercising his constitutional or delegated statutory powers, the President often must issue instructions to his subordinates in the executive branch, which takes the form of an executive order. An executive order does not commit the President himself to a certain course of action. Rather than “violate” an executive order, the President in authorizing a departure from an executive order has instead modified or waived it. Memorandum for the Attorney General, From: Charles J. Cooper, Assistant Attorney General, Re: Legal Authority for Recent Covert Arms Transfers to Iran (Dec. 17, 1986). In doing so, he need not issue a new executive order, rescind the previous order, or even make his waiver or suspension of the order publicly known. Thus, here, the October 4, 2001 Authorization, even if in tension with Executive Order 12,333, only represents a one-time modification or waiver of the executive order, rather than a “violation” that is in some way illegal.

While Jack Goldsmith’s May 6, 2004 Stellar Wind memo supplanted the Yoo memo in which he made this argument, there has been no public repudiation of this logic or the underlying Iran-Contra memo, not by Constitutional scholar Barack Obama, not by Congress.

In other words, no one has invented any kind of requirement that the president let the public or even Congress know what rules he believes he is bound by.  Indeed, it’s absurd to think Obama would have institutionalized something like that, given that (according to CIA General Counsel Caroline Krass) his administration has started hiding its self-authorizations in places besides OLC so we won’t know where to look for them.

Which means a man who used disinformation to get elected has no obligation to tell us what rules he considers himself bound by.

Three shell games that already exist under which to conduct torture

Similarly, the NDAA prohibition on torture is less ironclad than often claimed. That amendment didn’t prohibit torture. Rather, it restricted national security interrogators to the techniques in the Army Field Manual.

The amendment explicitly excluded law enforcement personnel from this restriction. As John Brennan said when he was asked about this way back in 2013, the FBI has its own processes and procedures, many of which remain obscure, others of which include clear loopholes. Importantly, the FBI increasingly operates — as the DEA has long done — overseas, where any problematic processes and procedures can easily be hidden.

In addition, as Jeff Kaye pointed out at the time, the AFM includes a section called Appendix M, which permits the use of a technique called Separation. The UN Committee Against Torture found Appendix M problematic, because it induced psychosis, during the UN review of US practices back in 2014.

But there’s another problem with the AFM. In 2006, Steven Bradbury wrote an OLC memo that basically authorized Appendix M largely divorced from the actual details of it. As I read it, that memo may be used for authorization of techniques used in Appendix M even if they’re not enumerated in the memo, meaning Trump can put anything in Appendix M and claim to have OLC buy-off. In fact, Bradbury incorporated within that memo yearly updates to the Appendix. It basically created a drawer, which might or might not be classified, into which DOD could throw whatever it wants to do.

When Congress passed the NDAA, they required the Appendix M to be reviewed to make sure it is humane and legal — but not until 2017. So while the intent of this amendment was explicitly to prohibit inhumane treatment, it relies on a structure of interpretations left up to the future President. The future President, as it turns out, got elected insisting that waterboarding is not torture.

Finally, the Drone Rule Book (which Trump can throw out on January 20 in any case) explicitly envisions letting our friends detain people, so long as they give us reassurances the person will be treated humanely. The Bush Administration started waterboarding people by watching while Egyptians did the waterboarding for us. It asked Bashar al-Assad (and a number of other countries we still are friends with) do far worse to people on our behalf. There has never been any appetite to eliminate the shell game of proxy detention. Indeed, Obama has used such shell games in Somalia and Kuwait, with tortured alleged in the latter case.

The CIA has been leaking wildly about its concerns about being asked to torture. But the CIA — and its enablers — didn’t do the things to make it impossible to ask them to torture when we had the chance.

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Will Trump’s Skepticism about NATO Bring EU Closer Together?

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Before most of us were awake, NATO’s Secretary-General made what I consider an ill-considered statement reminding President-elect Trump that NATO is a treaty commitment.

“NATO’s security guarantee is a treaty commitment and all allies have made a solemn commitment to defend each other and this is something which is absolute and unconditioned,” NATO Secretary-General Jens Stoltenberg told a news conference.

[snip]

Stoltenberg, a former prime minister whose own country Norway borders Russia, sought to remind the new president-elect that the only time NATO had activated its so-called Article 5 commitment, was in the defense of the United States — following the Sept. 11 attacks on New York and Washington in 2001.

He also said NATO allies were a big part of the U.S.-led strategy to stabilize Afghanistan and rid it of militants hostile to the West, with a long-standing NATO presence in the country since the 2001 attacks.

NATO “is important both for collective defense in Europe and to provide help and play a role in the fight against international terrorism”, Stoltenberg said.

I say this was ill-considered because I think NATO needs to think seriously about Turkey’s role in the alliance, particularly given Erdogan’s crackdown and incursions into Iraq. Sure, NATO may find exceptions for Turkey that it wouldn’t for the US. But it is a complex time.

This may be unpopular. But I actually think President-elect Trump’s skepticism about NATO may have some upside.

I say that, first of all, because NATO has increasingly played a force multiplying effect on stupid American wars. That is actually the one area where Trump has been positive of NATO — asking them to do more in our stupid wars in the Middle East. But it’s one area where European countries have doubts. So maybe Trump will make it harder to use NATO to legitimize US invasions.

NATO also serves as the pole of the US-Europe relationship that gives the US the key leadership role, a way to bypass the EU itself to push dubious policy. Curiously, NATO is what Theresa May pointed to as the cement of the post-Brexit relationship. But what if Europe decides they need to develop their own capacities, and with them gain more independence from the US?

Sure, most of these discussions will be about perceived Russia aggression in Eastern Europe. It’s unclear how much Trump’s soft side for Putin will affect events in Eastern Europe (and whether Trump will be smart enough not to get completely rolled by Putin).

But NATO has increasingly become an offensive alliance, not a defensive one. Maybe it’s time to rein in that part of it?

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NYT Ombud Calls for More Unproven Fearmongering

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In an overly dramatic (and in key areas, fluff) piece promising voting related hacks long into the future, David Sanger includes this passage.

The steady drumbeat of allegations of Russian troublemaking — leaks from stolen emails and probes of election-system defenses — has continued through the campaign’s last days. These intrusions, current and former administration officials agree, will embolden other American adversaries, which have been given a vivid demonstration that, when used with some subtlety, their growing digital arsenals can be particularly damaging in the frenzy of a democratic election.

“Most of the biggest stories of this election cycle have had a cyber component to them — or the use of information warfare techniques that the Russians, in particular, honed over decades,” said David Rothkopf, the chief executive and editor of Foreign Policy, who has written two histories of the National Security Council. “From stolen emails, to WikiLeaks, to the hacking of the N.S.A.’s tools, and even the debate about how much of this the Russians are responsible for, it’s dominated in a way that we haven’t seen in any prior election.”

The magnitude of this shift has gone largely unrecognized in the cacophony of a campaign dominated by charges of groping and pay-for-play access.

On a day when results from North Carolina strongly suggest that efforts to suppress the African American vote have thus far worked, the NYT frames a story by arguing that cyber — not racism and voter suppression — accounts for “most of the biggest stories of the election cycle” (the story goes on to include Hillary’s email investigation in with the Russian hacks dealt with in the story).

It does so even while insintuating that the “probes of election-system defenses” are a Russian state-led effort, which the Intelligence Community pointedly did not say. Indeed, a DHS assessment dated September 20 — before that Intelligence Statement — (and publicly posted Saturday) attributes such probes to “cybercriminals and criminal hackers.”

(U//FOUO) We judge cybercriminals and criminal hackers are likely to continue to target personally identifiable information (PII), such as that available in voter registration databases. We have no indication, however, that criminals are planning theft of voter information to disrupt or alter US computer-enabled election infrastructure.

Sanger posted his piece, claiming that cyber is the most important part of this election, in the wake of NYT’s ombud, Liz Spayd, posting her own piece judging — partly based off Sanger’s assessment — that the NYT should put someone on the Russian hacking story full time.

[W]hile several reporters have periodically contributed to the coverage, no one was dedicated to it full time. That’s too bad. In my view, The Times should have assembled a strike force and given it a mandate to make this story its top priority.

[snip]

I asked Sanger, a highly knowledgeable and seasoned hand on matters of cyberwarfare, about the challenges in covering information hacks. “American drone strikes and Russians bombing a hospital in Syria are immediate, gripping, tragic human stories,” he said. “A cyberstrike, by nature, is subtle, its effects often hidden for months, its importance usually a mystery. The bigger story here is that a foreign power has inserted itself in the fundamental underpinnings of American democracy using cybertechniques. We’ve never seen that before.”

That sounds like a pretty powerful argument for all-hands-on-deck coverage. After all, Trump’s treatment of women, Clinton’s email servers, the foundations of each candidate — all of it will soon fade out. The cyberwar, on the other hand, is only getting started.

Spayd makes a number of unproven or even false claims in her piece. Not only does she (like Sanger) claim that those probing voter poll sites are Russian (implying they are state hackers), she also implies the Shadow Brokers hack was done by Russia (which may be true but is far from proven).

So was the National Security Agency. Now, hackers are meddling with the voting systems in several states, leaving local officials on high alert.

She asks a question — were the Russians running Trump — she answers in her own piece.

And most critically, what has it done to try to establish whether Donald Trump was colluding with Russian intelligence, as Clinton suggests?

[snip]

The Times finally weighed in on this question last week, concluding that there is no compelling evidence linking Trump to the hackers. The piece, which ran on A21 and down page on the website, appeared to have been in the works for some time. Yet it was published just seven days before the election, and was unsatisfying in exploring the back story that led to its conclusions.

In a piece that notes there is no evidence the Russians are behind the poll probes, she suggests a Sanger piece suggesting they might have been should have been somewhere more prominent than page A15.

A piece laying out evidence that the Russians may be trying to falsify voting results in state databases ran on A15 and got minimal play digitally.

And she applauds a highly problematic piece claiming Julian Assange and Wikileaks always side with the Russians.

Led by David Sanger, The Times was first to link the Russians to the hacks, to examine the baffling role of Julian Assange and WikiLeaks and to smartly explore the options that the Obama administration could use to retaliate. I have no substantive complaints about the stories The Times has done.

In short, she points to a lot of problematic, hasty fearmongering the NYT has done on this front (as well as the one debunking much of that fearmongering, though she complains that doesn’t offer enough detail). And then says NYT should do more of it.

From the sounds of things, what she really wants is more cloak and dagger on the front pages of the NYT. Even if NYT has to invent a Russian tie to get it there.

Update: Egads.

The NYT just decided to tweet out its crappy Assange only does things Putin likes piece again.

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Threat Level Orange! Election Week Plot!

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screen-shot-2016-11-04-at-5-01-51-pmThis morning, CBS published a story attributed to senior producer Pat Milton, who has done a lot of FBI-based stories (and co-produced fawning 60 Minutes interviews with John Brennan and Jim Comey), reporting on a possible terrorist attack. The story described the threat with specific detail — scheduled for Monday, in maybe NY, TX, or VA — but even while explicitly stating that “its credibility hasn’t been confirmed.”

Sources told CBS News senior investigative producer Pat Milton that U.S. intelligence has alerted joint terrorism task forces that al Qaeda could be planning attacks in three states for Monday.

It is believed New York, Texas and Virginia are all possible targets, though no specific locations are mentioned.

U.S. authorities are taking the threat seriously, though the sources stress the intelligence is still being assessed and its credibility hasn’t been confirmed. Counterterrorism officials were alerted to the threat out of abundance of caution.

The version published at 7:43 AM (and screen captured to the right) clearly attributed the story to a senior FBI official. (I’ve bolded the differences.)

A senior FBI official told CBS News, “The counterterrorism and homeland security communities remain vigilant and well-postured to defend against attacks here in the United States.  The FBI, working with our federal, state and local counterparts, shares and assesses intelligence on a daily basis and will continue to work closely with law enforcement and intelligence community partners to identify and disrupt any potential threat to public safety.”

The version published at 12:52 rewrote that paragraph, obscuring that FBI was the source.

“While we do not comment on intelligence matters, we will say the counterterrorism and homeland security communities remain vigilant and well-postured to defend against attacks here in the United States,” a U.S. intelligence official told CBS News. “The FBI and DHS, working with our federal, state and local counterparts, share and assess intelligence on a daily basis and will continue to work closely with law enforcement and intelligence community partners to identify and disrupt any potential threat to public safety.

This story, leaked by a senior FBI official who “doesn’t comment on intelligence matters” but nevertheless did just that, comes at the end of the crappiest week for the FBI in decades.

At this point, it is fair to argue that the intelligence community — including people leading it today — have capitalized on a terrorist threat, even a dodgy one. As I tweet stormed this morning (and wrote in more detail here), in 2004 the government played up two dodgy election year threats.

In March 2004 (just as torture, spying cut back) fabricator went to CIA in Pakistan and said, “Janat Gul wants to attack US elections.”

Someone in CIA immediately said, “Nah!” Nevertheless, US got PK to detain, turn Gul to US to be tortured.

USG (including Jim Comey) reauthorized torture, to be used with Gul. Including waterboarding & techniques CIA had already used w/o approval.

USG (including Comey & John Brennan) also used election year plot based off fabrication as one reason FISC had to approve Internet dragnet.

There were, of course, leaks to the press about this election year plot.

CIA kept torturing and torturing Janat Gul, because they needed details of an election year plot based off a fabrication.

It wasn’t until October that someone said, “Hey, let’s go check if that guy claiming Gul wanted to attack US election was lying!” He was.

But Gul had served purpose: election year scare, reauthorizing torture, getting FISC approval for dragnet. Not bad for one torture victim!

Comey didn’t know CIA immediately raised concerns abt fabricator’s claims. It’s one thing Cheney/Gonzales prevented him fr learning in 2005

Comey signed off on torture again, including waterboarding w/o knowing that that case was all based off a fabrication.

But Comey has also refused to read torture report, which lays all this out. He’s avoiding learning what he did in 2004, 2005. Brennan too!

I lay all this out bc, w/history like this, IC (still led by Brennan & Comey) should be VERY careful abt leaking election year plots.

Succinctly: They cried wolf in 2004. And have yet to face accountability for that.

Then, in 2006 (at a time when both Comey and Brennan were on hiatus from directly government work, though they were both working with key government contractors), it happened again. Dick Cheney triggered the revelation of a very real terrorist plot in 2006 — fucking over the British officials trying to collect enough information to prosecute the perpetrators — to help Joe Lieberman stay in the Senate.

The point is, these people, including the people in charge of the IC now, have selectively exploited real or imagined terrorist plots before. The leak of this one, which FBI clearly hasn’t even vetted, sure seems exploitative given how badly FBI needs to distract from its own fuck-ups.

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London Calling: What Is The NFL Doing? And other Trash Talk

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Arighty then, this is going to be an abbreviated Trash Talk. I saw the Twitters yesterday, but spent the great majority of the day from early morning here, to mid afternoon, by which time I had some heat stroke and was paralyzed.

Sorry about that! So, for today’s Sunday games, the abbreviated topic will be the status of Goodell and the NFL’s insistence on games in London. The NBA tried forcing basketball on China when they sensed Yao Ming was a an entry card. But the NBA has, properly, backed off that aggressiveness out of common sense. A lesson the NFL has not learned from a disastrous series of shiftiest and worthless “games” they have put on in Sleepy Old London Town.

Today’s game between the Skins and the Bungles may be the first exception I have ever seen, certainly at least remembered. Not that I can see the end of that game, of course, because the freaking unbendable, Catholic school mark like jackasses inhabiting 345 Park Avenue with fatuous Roger Goodell don’t give a shit about actual football fans and have shifted me, after hours, to the first useless minutes of the Cardinals/Panthers game. No, because bottom dwelling pissant souls like Goodell and his office only care about the gross millions of dollars they are liberating FROM the fans, not about the best interests OF the fans.

What a crock of shit.

In fairness, not sure how much better the slate of games today is in the regular domestic NFL. Pats versus Bill is interesting to see how much Tom Brady and Bill Bel want to kick the shit out of Rex Ryan and the gnats from upstate NY. Jets v. Browns??? Hahaha, not. Lions/Tejans may be a surprisingly fair fight, we shall see. Raiders versus Rapies and the Bucs? No thanks. Chargers/Broncs? Get the fuck out.

Packers at Falcons and Eagles at Boys on SNF are the only real discussion points this week.

Oh, yeah, and already, the Arizona Cardinals look simply pathetic. NO professional team ever in Phoenix has ever prospered and been competent that was not owned by Jerry Colangelo. Rule still holds.

Discuss!

Music this week by the Clash. As if you didn’t know.

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The Same Month CBP Missed Tamerlan Tsarnaev, It Was Ramping Up Searches for “Good” Guys

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One of the most notable failures to prevent a terrorist attack in recent years involves Tamerlan Tsarnaev. After the Russians alerted us he was engaging with radical elements, he flew to Chechnya in January 2012. In spite of an alert set to identify him, Customers and Border Protection did not stop him either going out or coming back from Russia.

As the Inspector General report on the attack explains, though CBP had probably been properly alerted he was a concern, Tsarnaev was not interviewed on the way out of the country because there were higher priority passengers.

screen-shot-2016-10-13-at-9-54-25-am

On Tsarnaev’s way back into the country, CBP would have gotten an alert from Aeroflot, but that alert did not come up on CBP’s display status.

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A recent story from the Intercept reveals that one of the things that may have been a higher priority than interviewing Tsarnaev was interviewing “good” guys.

In years leading up to the attack on the Boston Marathon CBP started working with the FBI to identify potential informants through CBP interviews. Reports describe how this involved a shift in perspective, from an enforcement perspective focused on “looking for the ‘bad guys’,” to an intelligence perspective focused on “looking for the ‘good guys'” who might be willing to trade information about their community for immigration benefits.

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It worked this way: CBP would provide a 3-day passenger list to the FBI, the FBI would find anyone of interest, and then CBP would screen them to determine whether they had access to sources and willingness to serve as an informant.

screen-shot-2016-10-12-at-5-40-03-pm

The documents the Intercept released pertain only to Boston’s Logan Airport, Buffalo, and Rochester; curiously, at least Buffalo seems to coordinate primarily with Boston. So they don’t describe how this program got rolled out at JFK, through which Tsarnaev flew. But in Boston, at least, there was a big spike in the number of CBP inspections conducted in January 2012, the very month Tsarnaev flew out.

screen-shot-2016-10-12-at-5-52-23-pm

Was CBP so busy looking for informants it missed someone the Russians had IDed (correctly) as a terrorist?

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Feedback, Please!

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Feedback — you haz it. Tell us about any parts of the new site design you’ve noticed are missing or aren’t working properly.

Leave a note in comments here for follow-up with the developer. Thanks!

Please be sure to indicate what operating system and browser you are using to access the site when you have found something not working as expected. This is really important. However, do NOT provide information beyond this generalized detail (just tell us Windows 7/Firefox or iOS/Safari, for example).

This is NOT an open thread. Please use this for feedback about the site. Thanks again!

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Welcome to the New and Improved Emptywheel

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Surprise!

When things started going haywire earlier this year, we decided to do a site redesign to take out some of the unstable code that makes the site more vulnerable to crashes and hacks. We thought we’d pretty things up at the same time.

We’re still kicking on the tires a bit ourselves, and we’ll surely find a few things we need to tweak.

But for now, feel free to test out the new comments (which have at least some of the features ya’ll have been screaming for for some time).

Update: I was remiss in not thanking CurlyHost — a local, woman-owned business — for the clean new design. Thanks Andrea!

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I’m On The Lamb, But I Ain’t No Sheep Trash Talk

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Hey, what do ya want for nuthin, rubber biscuit? We did Blue Brothers last week. That was awfully right and proper. And this week we are gonna go back to some deeper roots. Keeping in the blue theme, some early Blue Oyster Cult with I’m On The Lamb, But I Ain’t No Sheep.

First up, because I’m up and it is what’s on right now, is the Singapore Grand Prix. Qualifying is just getting underway on CNBC, and it is spectacular. Singapore is the only true night race in the circus tour, and Marina Bay Circuit is amazing all lit up. It is also a very competitive circuit for drivers, which at this point means Red Bull and Ferrari stand a fighting chance. In fact, Sebastian Vettel won the race in 2015 in the Ferrari, his fourth overall win at Marina Bay. Fernando Alonso is also a multiple time winner, though is unlikely this year as the McLaren Honda is still off the pace from the front of the grid. Coverage of the actual race is on NBCSN and starts off at 7:30 am EST Sunday. If you like F1 at all, the Singapore is must see TV. Oops, Vettel had a small shunt, and isn’t going to make it out of Q1, thus will be starting well back on the grid tomorrow. That hurts.

The Cubs win, The Cubs win! Their division anyway, and did so quite early. There, that is the extent of Emptywheel’s baseball coverage.

On to the gridiron, the Jets actually looked pretty good in thrashing the Bills Thursday night. But, by the same token, the Bills just don’t look very good, so it is hard to get a real bead on the Jets, but they may have a very good team if Fitzpatrick keeps playing like that. The Bengals at Stillers should be excellent. Cinci think this is their year, but no way Big Ben does. Expect the same old result, i.e. a Pittsburg win. Cowboys at Skins is interesting because I am fascinated by Dak Prescott. Is he for real? Other than that though, two middling teams at best, so blah. Same question applies to Carson Wentz as the Iggles take on the Bears. Marcy’s Kittehs though may be for real, and they host the still rebuilding Titans in Detroit to try for the key 2-0 start to the season. I say Detroit gets it. Kansas City goes down to Houston to play for all the barbecue. These are both pretty solid teams, and the one with the best QB play will emerge 2-0. Can Brock Osweiller get it done? This rates a pick em in my sports book, we shall see! Pack is in Minnesota to open the Vikings’ fancy dan new stadium.

On the college front, unlike last week, there are several top match ups. Alabama is down at Ole Miss. Saban and the Tide have lost two in a row to the Rebs and Chad Kelly will be trying to make it three. Kelly by the way, is the nephew of Hall of Famer Jim Kelly. Florida State visits Louisville, so obviously I will be rooting for the Cardinals. Ohio State is at Oklahoma. Somehow the Sooners are still ranked number 14, but don’t think that will be the case after today. Colorado is horrible as usual, and will be an easy meal for the Michigan Bradys. The other top 20 matchup to watch is the Domers hosting the Spartys from Michigan State. It is in South Bend, so the Irish have a chance. Frankly, neither team, despite their reputations, has looked very good yet, so this is a pick em.

Well, that is it for this week. As a parting shot, if you want a few laughs, I live tweeted closing arguments in an….um….amazing trial earlier this week. The case involved a yoga instructor who got an amazing boob job, and then a little tipsy at a seriously wild bar mitzvah party at her boss’s house. Here is a good backgrounder from the Washington Post.

And here is my Storified live trial coverage, and I think you will find it much superior to the stale WaPo work! This really was a pretty hilarious trial, even though it was quite serious for Lindsey Radomski. She is very nice, and I am glad she was acquitted, that was the right verdict.

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Security Territory and Population Part 5: Governmentality And Introduction to Foucault’s Method

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In the fourth lecture in Security, Territory and Population, Michel Foucault introduces the idea of governmentality. He begins this lecture with a discussion of the change in the idea of governing that began in the 16th Century, when writers of the day began saying that the word covers a number of different relationships.

There is the problem of government of oneself…. There was of course the problem of the government of souls and of conduct, which was, of course, the problem of Catholic or Protestant pastoral doctrine. There is the problem of the government of children, with the emergence and of the great problematic of pedagogy in the sixteenth century. And then, perhaps only the last of these problems, there is that of the government of the state by the prince. How to govern oneself, how best to be governed, by whom should we accept to be governed, how to be the best possible governor?

Foucault sees these issues as the intersection of two trends, the breakup of feudalism and its gradual replacement by a centralized state; and the dispersion of religious belief brought on by the Reformation and the Counter-Reformation. Foucault says that the leading text is Machiavelli’s The Prince, both for its own ideas and for the range of texts disputing it. He says that the central idea of The Prince is that the Prince’s position as sovereign is external to his principality. He took the position by force, or by connivance with others, and his central object is retaining his power, protecting it both from external and internal threats.

Those reacting to Machiavelli emphasized the art of governing, as opposed to the art of neutralizing opposition. They observe that many people are in a position of governing, the father with the family, the teacher with the child, the master with the apprentice or employee, the judge, the mayor, the superior in a convent. Foucault points to a typology of government identified in the 16th Century by the French writer La Mothe Le Vaver. There are three levels of government, the governance of the self, which is the subject of morality; the governance of the family, which becomes identified with the economy; and the governance of the state.

These levels of governance bear on each other. If the self is well-governed, then the family is well-governed, and the state will be well-governed. If the State is well-governed, that leads to the good governance of the family and of the self. Foucault says that in this idealized arrangement the idea of the economy as a principle object of government begins to emerge. He traces this development through the 18th and 19th Centuries as the idea of the economy begins to take on the meaning it has today.

Foucault points to another writer, Guillaume de La Perriere, who wrote “Government is the right disposition of things arranged so as to lead to a suitable end.” This means first that governors act primarily on things, and not specifically on people. A suitable end is not necessarily the best end, but one that is achievable. The important point to Foucault is that government has to do with the relations between people and things, and the steps those who govern take with respect to those relationships.

There is a good bit more of this kind of exegesis of texts on the art of governance from the 16th to the late 18th Centuries, all in a similar vein. But for this theory to come into full practice, various obstacles had to be removed, and the apparatuses of security had to be developed more thoroughly. One of the barriers was the idea of sovereignty.

But we could also say that it is thanks to the perception of the specific problems of the population and the isolation of that level of reality that we call the economy, that it was possible to think, reflect and calculate the problem of government outside the juridical framework of sovereignty.

Another important factor was that the model of the economy should be the family. Foucault says that as the focus of government became the population and not the individual subject, the family lost its status as the model and became simply an element of the population, one useful for achieving some of the goals of the government.

And then, of course, there was the need to develop better understandings of the world and thus better apparatuses of security.

Finally we get to the definition of governmentality. Foucault says that it means three things.

1. “…[T]he ensemble formed by institutions, procedures, analyses and reflections, calculations, and tactics that allow the exercise of this very specific, albeit very complex, power that has population as its target, political economy as its major form of knowledge, and apparatuses of security as its essential technical instrument.”

2. The pre-eminence of government as the dominant form of power, which has led to the development of a series of specific apparatuses … and the development of knowledges.”

3. The process by which the state of law in the Middle Ages was transformed into what Foucault calls the security state, the form of government we have in the West today.

Governmentality becomes the focus of the rest of the lectures.

Commentary

1. I think the first definition is directly useful for understanding what Foucault is driving at. If so, why doesn’t he use a term like “art of government” or “governmental practice”? That leads me to think that the idea of mentality is important. There is a mental state that is conducive to the application of the security regime, both for the governor and for the governed. In the next lectures we take up the question of what that mentality might be.

2. In the second definition, Foucault uses the terms “knowledges” and “apparatuses”. Foucault’s method is described briefly in Section 4.3 of this article in the Stanford Encyclopedia of Philosophy.

…[S]ystems of thought and knowledge (epistemes or discursive formations, in Foucault’s terminology) are governed by rules, beyond those of grammar and logic, that operate beneath the consciousness of individual subjects and define a system of conceptual possibilities that determines the boundaries of thought in a given domain and period.

There is much more at the link. Apparatus is described here.

Foucault generally uses this term to indicate the various institutional, physical and administrative mechanisms and knowledge structures, which enhance and maintain the exercise of power within the social body.

From the text, I would have described it as the institutional and operational forms of knowledges in a specific society, so the difference is the addition of last phrase relating to exercise of power. To that end, we get this description of “power-knowledge”

One of the most important features of Foucault’s view is that mechanisms of power produce different types of knowledge which collate information on people’s activities and existence. The knowledge gathered in this way further reinforces exercises of power.

That explains his method of looking at old texts. He is trying to see the forms that knowledge took in prior times as a way of understanding the past and then teasing out the changes in ideas from time to time. It helps to see this because the lack of empirical data in the text might put off those people who see “facts” as the only form of knowledge.

3. Knowledges change from time to time, and the first part of Foucault’s method is to understand those changes; that’s the historical or archeological part. Why they change is the more difficult problem. Foucault takes that up under the term genealogy. The Stanford site has this:

Foucault intended the term “genealogy” to evoke Nietzsche’s genealogy of morals, particularly with its suggestion of complex, mundane, inglorious origins—in no way part of any grand scheme of progressive history. The point of a genealogical analysis is to show that a given system of thought (itself uncovered in its essential structures by archaeology, which therefore remains part of Foucault’s historiography) was the result of contingent turns of history, not the outcome of rationally inevitable trends.

As a simple example, for a number of years, Keynesianism was the form of knowledge about the economy. Then it was replaced by neoliberalism. That’s the historical situation as I see it today. Why it changed, the genealogy of that change, is open to discussion. One strand of the discussion can be found in Philip Mirowski’s Never Let A Serious Crisis Go To Waste.

4. Foucault suggests that the family as a model for the economy had to be overcome and replaced by operations on the population as a whole. As we know, the idea of the family as model for both government and for government of the economy as a whole has not died out, but like most bad ideas will never die.

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