A renowned chronicler of the evolution and growing pains of democracy, Anthony Barnett reports on the dire potential for abuse of the surveillance state in the wake of the SCOTUS ruling on presidential immunity.

West Oxford, UK — Speaking on 29 July at the LBJ library in Austin Texas, to mark the 60^th anniversary of the Civil Rights Act, President Biden denounced the Supreme Court decision, delivered at the beginning of the month, in the case of Trump v The United States. He said the Court majority had proclaimed “a fundamentally flawed principle” as the law of the land. Namely, that “The presidency is no longer constrained by the law, and the only limits on abuse of power will be self-imposed by the president alone.”

In response he called for a Constitutional amendment to be called “No One is Above the Law.”

Perhaps because it came during the initial excitement of the Harris-Walsh ticket and because he is seen as yesterday’s man, the President’s unusual shout-out for a new Constitutional amendment has been ignored. These are rare events and often of marginal importance. The last such proposal was in 1992 and prevented members of Congress from giving themselves a pay raise more than once in a legislative session.

But Biden’s demand for a new amendment is fundamental. It addresses a massive issue in simple language and might prove popular with voters across all parties as well as the undecided.

To see why, we have to put the Supreme Court ruling together with two other developments: the far-right Republican project to ensure white minority rule and the surveillance powers of the US intelligence services. This combination is so explosive that it genuinely does create the conditions for a new kind of irredeemably authoritarian outcome, one that is only possible in the age of cyberspace.

It is striking that even in a thorough overview of the dangers posed by the prospect of Trump’s return to power, such as Thomas Edsall’s recent guest essay in The New York Times, there is no mention of the potential for abusing the powers of the digital surveillance system already developed by US intelligence services.

The Far-Right Republican Project

Since the Heritage Foundation published Project 2025 eighteen months ago there has been a barrage of articles and podcasts about the danger it prefigures. These articles have alerted audiences around the country to the extreme hazards of a second Trump presidency and have called attention to an alarming ambition that is both open and unapologetic.

Conservative, predominantly white America knows it constitutes a minority. It does not “believe” that 81 million US citizens voted for Biden (or against Trump) in 2020. If that many did, the reasoning goes, then many of them should not have had the right to do so, or even to count themselves as Americans. Voter suppression is essential to ensure minority rule.

And immediately after the 2020 result, the Heritage Foundation circulated model bills for legislatures in Red States to ‘protect’ the ballot by making voting harder.

But establishing minority rule on a permanent basis demands more than gerrymandering in all its variations and preserving the bias built into the Electoral College. Such a fundamentally undemocratic project requires what can be called “deep rigging.”

This is where the seriousness of Project 2025 comes in, and it does not hide its ambition. For example, the personnel employed by the Federal and state governments must be replaced, in the words of the Project 2025 blueprint, so that “our political appointees” will “seize the gears of power.”

The aim is a root and branch reconstruction of the Federal State. The objectives of Project 2025 are sustained by a far-right Supreme Court at the top of the judiciary, and by governors in gerrymandered red states who manipulate the composition of their state Congressional delegations in order to control Congress. Combine these with a Trump presidency in control of the executive branch and you have a self-reinforcing minoritarian regime able to give itself the veneer of legality, in perpetuity.

Trump is only interested in Trump. But his corporate and ideological supporters want to ensure that after Trump, the Democrats never win again. If Trump feels that his ‘legacy’ also depends on this, he will be unrestrained in the deployment of executive power to achieve it.

The Supreme Court Ruling

“The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.” With these words, published on 1 July 2024, the Supreme Court placed the U.S. President above the law.

Or, as Justice Thomas put it in his supporting opinion: “there has been much discussion about ensuring that a President ‘is not above the law.’ But, as the Court explains, the President’s immunity from prosecution for his official acts is the law.” (His italics.)

To grasp the potential significance of this ruling, glance back to events of less than four years ago. When then Vice-President Pence was told to stop the electoral college count on January 6th, he instead followed the advice of legal counsel who argued he did not have the constitutional authority to do so. He felt he had no alternative but to defy his President. Now, in an “official act” the President could order his Vice-President to stop the count, and under this new ruling the very fact that this instruction is coming from the President would make it lawful and, presumably, the defiance of it unlawful.

The Surveillance State

In 2013, Edward Snowden revealed that since 9/11 the US intelligence agencies seek to record, hold and index as much electronic data as it can on all US citizens in a process of unwarranted surveillance.

He published classified slides that disclosed how the US and its allied agencies sought to gather and store electronic signals — the metadata of every email, phone call and social media message, domestic as well as international, the all-important record of who communicates with whom. The government was also seeking to index and record content and make bulk information usable.

You might think you have deleted your email record, but the NSA — the National Security Agency — has not. You might use end-to-end encrypted messaging. But the NSA stores who you are messaging with and how often; also, what you read, listen to or watch online, retaining the location track of your digital device as well.

I found these revelations hard to believe. Indeed, I still do. So when General Michael Hayden visited the UK in 2014 I took the opportunity to interview him to explore Snowden’s claims.

A retired four-star general, Hayden headed the NSA over a crucial period, from 1999 to 2005. In that role, after 9/11 and on the instructions of President Bush, he oversaw the development of “bulk surveillance” globally and within the US. He then headed the CIA until 2009. An account of our discussion was published in openDemocracy.

He later wrote Playing to the Edge, a 400-page account, limited by official secrecy, of his ten years at the head of NSA and the CIA.  It opens with how (again, on presidential orders) he initiated STELLARWIND — to collect and track intelligence domestically as well as globally. Towards the end, Hayden writes, “215 {a section of the Patriot Act} was all about Americans. NSA kept a repository of American calls — not content, but facts of calls like from whom, when, for how long. It was massive, but access was tightly controlled not just by limiting the number of people who could touch the data but also by limiting their purpose to only counterterrorism.” The Supreme Court ruling allows the president to reset such limits at will.

When I met him in Oxford, General Hayden was cheerful and straightforward and, at the time, the most right-wing person I had ever bought a coffee for. The opposite of apologetic, he was confident that he had done what had to be done and was proud of it. He explained that the United States needed to be able to exercise supremacy over its enemies in cyberspace just as it could on land, sea and air. Every concern I expressed was rebutted without any denial of what was taking place. He argued that without access to the whole “haystack” there was no way to get to “the needles” of information that could track down potential terrorists.

I suggested that if any state gathered and kept all information about me, who I met and what I communicated in private as well as in public, then I feared for my liberty. He replied that my anxiety was baseless because I was “uninteresting.”

I protested that if “my metadata is held and can be accessed by people unknown to me who have the power to influence my life and then my capacity to act as a free person, my liberty is invaded.” His reply: “I go back to the key point, how else am I going to do this? In a world in which I am now challenged by volume… I know hostile actors are sending emails around the world through paths that are unpredictable. Unless I have the metadata in a way that allows… selectors of legitimate foreign intelligence targets to see where their communications are.” He added, “I can’t do that without accessing bulk communications.”

What he meant by “selectors of legitimate foreign intelligence targets” were the staff of the NSA and its agents who used their access to the haystack domestically as well as globally to identify America’s enemies.

Later he conceded “there is potential for abuse, because the innocent or, in my terms, the uninteresting, are in there as well.” “And that would include yourself?” I asked. “Of course,” he replied.

I pressed the point: “You don’t feel that that monitoring in any way affects your liberty as a person?” He replied, “It does not. Because I know and have great confidence as to how and when the data is accessed, and it is under very narrow specifications.”

In an aside that at the time I took to be insignificant, he added, “As you can probably tell, I’m pretty comfortable with all this. Don’t get me wrong. Don’t think I do not fear an overreaching government or an overreaching executive, I do.” Even then, however, his concern was mainly with the potential for abuse of tax records.

Then Donald Trump ran for the White House and won. Hayden was appalled by the new president and the way he threatened the methodology and integrity of the US intelligence services, especially in relationship to Russia. He wrote The Assault on Intelligence, a vigorous critique of Trump’s onslaught on the basic methods of America’s professional military and security services.

Soon after it was published, General Hayden had a stroke which gave him aphasia, a speaking difficulty that does not impede clarity of thought and judgment. I met with him again on Zoom in 2022.

I asked him if he thought the possibility of a return to power of a second Trump administration, especially after the events of January 6, altered the view he took when we talked in 2014.

There is a limit as to what he could say as he is constrained by his oath of secrecy. But not many dots need to be connected. Hayden knows, as few do, the full extent of the actual surveillance the US is capable of. Under a president who expresses open contempt for “specifications” that govern its use domestically, he no longer has “great confidence as to how and when the data is accessed.”

What happened during the four years that Trump was president was in his view bad “but survivable.” Should the White House be re-occupied by a president who is experienced, resentful and has consciously shed the traditional norms and restraints of the Constitution, it “would not be good at all.”

What, then, I asked, would be his advice to his successors at the NSA and CIA about the surveillance system whose operation he initiated, should Trump regain the presidency? He answered without hesitation, “Switch it off.”

It Won’t Be Switched Off

The system isn’t going to be switched off. The perceived threats from China and Russia are enough to ensure this, not to speak of possible fundamentalist terrorism whether Evangelical, Hindu or Islamic or even lone shooters and would-be assassins.

And if it is not switched off before a potential dictator gains the White House, it certainly won’t be afterwards.

So we now have the following situation. Project 2025 sets out the case for the incoming president to appoint people to run all Federal agencies with women and men whose main qualification is that they will do the bidding of the White House. The Supreme Court has ruled that whatever the president decides is the law. Among the Federal agencies are the intelligence agencies who have collected sweeping surveillance of everyone’s metadata and can now search that information with far greater speed and accuracy with AI.

Two months ago if anyone had said that an incoming presidency could purge anyone from any government position who subscribed to The Washington Spectator or indeed read the New York Times online, I’d have thought they were a mad conspiracy theorist. Mad in the sense that while Trump might bang the desk and want this to happen, the USA is not China, Russia or Saudi Arabia and it could not happen.

Today, however, it is now legal for him to demand their names; they could be delivered in days by the intelligence agencies; and they will be, if these are headed by compliant recruits as set out in Project 2025.

Trump and his supporters succeeded in part because they consistently surprised the liberal and traditional political classes with their willingness to breach what were regarded as established norms. The greatest of all abuses of power still awaits: an executive that marginalises anyone it chooses. Processes originally designed to defend the republic can now be deployed to terminate the employment of any American citizen currently working in any Federal service; and the same powers can be lent to State administrations. In an official act, the President can demand all the personal metadata that profiles any US citizen and use it at will. All without the need for Gulags or concentration camps.

Appalled at the majority decision, Supreme Court Justice Sotomayer wrote for the minority, “Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends… the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”

In her eloquence she summons up a world still limited to analogue evil and old-fashioned crime. Digital penetration and control and the threats of the abuse of cyberspace do not figure in her list.

Yet she is right to see that a Trump victory in November can now bring to an end America’s standing as a land free of royal tyranny that goes back to 1789.

Slavery, the genocide of native tribes, the invasions and coups that toppled governments and flattened the economies of other countries, these realities always made the claim to moral and democratic superiority contestable. But what was also incontestable were America’s own domestic efforts to become a country ruled by law, the foundation of viable modern democracy.

The Supreme Court ruling torpedoes this. The apparatus of surveillance permits a uniquely penetrating form of control. Project 2025 sets out how the combination can be deployed to ensure minority rule.

President Biden’s proposed amendment, therefore, should not be seen as an attempt at legacy-setting by aged figure out of touch with present realities. On the contrary, it could hardly be more necessary as a baseline step to reverse the threat to the republic.

After all, why shouldn’t a Democratic president be tempted to deploy unfettered access to the surveillance databases provided by July’s Supreme Court ruling? Indeed, the average MAGA voter might well feel that the Democrats are the ones who really put themselves ‘above the law.’

America needs a new president with the voice and energy capable of reasserting the supremacy of the rule of law by securing this within an amended constitution — and persuading red as well as blue voters that she is doing it in their interest.

Anthony Barnett is the founding editor of the award-winning global website, openDemocracy and the author of Taking Control! Humanity and America after Trump and the Pandemic. His 20 minute film, US Progressives on a Knife Edge (2022), featuring interviews with Jamie Raskin, Pramila Jayapal, Ro Khanna, David Sirota, Larry Cohen and Tope Folarin can be seen here.