Welcome to Post-Legal America

by Tom Engelhardt

Recently by Tom Engelhardt: Pox Americana

Dumb Question of the Twenty-first Century: Is It Legal?

Is the Libyan war legal? Was Bin Laden’s killing legal? Is it legal for the president of the United States to target an American citizen for assassination? Were those "enhanced interrogation techniques" legal? These are all questions raised in recent weeks. Each seems to call out for debate, for answers. Or does it?

Now, you couldn’t call me a legal scholar. I’ve never set foot inside a law school, and in 66 years only made it onto a single jury (dismissed before trial when the civil suit was settled out of court). Still, I feel at least as capable as any constitutional law professor of answering such questions.

My answer is this: they are irrelevant. Think of them as twentieth-century questions that don't begin to come to grips with twenty-first century American realities. In fact, think of them, and the very idea of a nation based on the rule of law, as a reflection of nostalgia for, or sentimentality about, a long-lost republic. At least in terms of what used to be called "foreign policy," and more recently "national security," the United States is now a post-legal society. (And you could certainly include in this mix the too-big-to-jail financial and corporate elite.)

It’s easy enough to explain what I mean. if, in a country theoretically organized under the rule of law, wrongdoers are never brought to justice and nobody is held accountable for possibly serious crimes, then you don’t have to be a constitutional law professor to know that its citizens actually exist in a post-legal state. If so, "Is it legal?" is the wrong question to be asking, even if we have yet to discover the right one.

Pretzeled Definitions of Torture

Of course, when it came to a range of potential Bush-era crimes – the use of torture, the running of offshore "black sites," the extraordinary rendition of terrorist suspects to lands where they would be tortured, illegal domestic spying and wiretapping, and the launching of wars of aggression – it’s hardly news that no one of the slightest significance has ever been brought to justice. On taking office, President Obama offered a clear formula for dealing with this issue. He insisted that Americans should "look forward, not backward" and turn the page on the whole period, and then set his Justice Department to work on other matters. But honestly, did anyone anywhere ever doubt that no Bush-era official would be brought to trial here for such potential crimes?

Everyone knows that in the United States if you’re a robber caught breaking into someone’s house, you’ll be brought to trial, but if you’re caught breaking into someone else’s country, you’ll be free to take to the lecture circuit, write your memoirs, or become a university professor.

Of all the "debates" over legality in the Bush and Obama years, the torture debate has perhaps been the most interesting, and in some ways, the most realistic. After 9/11, the Bush administration quickly turned to a crew of hand-picked Justice Department lawyers to create the necessary rationale for what its officials most wanted to do – in their quaint phrase, "take the gloves off." And those lawyers responded with a set of pseudo-legalisms that put various methods of "information extraction" beyond the powers of the Geneva Conventions, the U.N.’s Convention Against Torture (signed by President Ronald Reagan and ratified by the Senate), and domestic anti-torture legislation, including the War Crimes Act of 1996 (passed by a Republican Congress).

In the process, they created infamously pretzled new definitions for acts previously accepted as torture. Among other things, they essentially left the definition of whether an act was torture or not to the torturer (that is, to what he believed he was doing at the time). In the process, acts that had historically been considered torture became "enhanced interrogation techniques." An example would be waterboarding, which had once been bluntly known as "the water torture" or "the water cure" and whose perpetrators had, in the past, been successfully prosecuted in American military and civil courts. Such techniques were signed off on after first reportedly being "demonstrated" in the White House to an array of top officials, including the vice-president, the national security adviser, the attorney general, and the secretary of state.

In the U.S. (and here was the realism of the debate that followed), the very issue of legality fell away almost instantly. Newspapers rapidly replaced the word "torture" – when applied to what American interrogators did – with the term "enhanced interrogation techniques," which was widely accepted as less controversial and more objective. At the same time, the issue of the legality of such techniques was superseded by a fierce national debate over their efficacy. It has lasted to this day and returned with a bang with the bin Laden killing.

Nothing better illustrates the nature of our post-legal society. Anti-torture laws were on the books in this country. If legality had truly mattered, it would have been beside the point whether torture was an effective way to produce "actionable intelligence" and so prepare the way for the killing of a bin Laden.

By analogy, it’s perfectly reasonable to argue that robbing banks can be a successful and profitable way to make a living, but who would agree that a successful bank robber hadn’t committed an act as worthy of prosecution as an unsuccessful one caught on the spot? Efficacy wouldn’t matter in a society whose central value was the rule of law. In a post-legal society in which the ultimate value espoused is the safety and protection a national security state can offer you, it means the world.

As if to make the point, the Supreme Court recently offered a post-legal ruling for our moment: it declined to review a lower court ruling that blocked a case in which five men, who had experienced extraordinary rendition (a fancy globalized version of kidnapping) and been turned over to torturing regimes elsewhere by the CIA, tried to get their day in court. No such luck. The Obama administration claimed (as had the Bush administration before it) that simply bringing such a case to court would imperil national security (that is, state secrets) – and won. As Ben Wizner, the American Civil Liberties Union lawyer who argued the case, summed matters up, "To date, every victim of the Bush administration's torture regime has been denied his day in court."

To put it another way, every CIA torturer, all those involved in acts of rendition, and all the officials who okayed such acts, as well as the lawyers who put their stamp of approval on them, are free to continue their lives untouched. Recently, the Obama administration even went to court to "prevent a lawyer for a former CIA officer convicted in Italy in the kidnapping of a radical Muslim cleric from privately sharing classified information about the case with a Federal District Court judge." (Yes, Virginia, elsewhere in the world a few Americans have been tried in absentia for Bush-era crimes.) In response, wrote Scott Shane of the New York Times, the judge "pronounced herself ‘literally speechless.’"

The realities of our moment are simple enough: other than abusers too low-level (see England, Lynndie and Graner, Charles) to matter to our national security state, no one in the CIA, and certainly no official of any sort, is going to be prosecuted for the possible crimes Americans committed in the Bush years in pursuit of the Global War on Terror.

On Not Blowing Whistles

It’s beyond symbolic, then, that only one figure from the national security world seems to remain in the "legal" crosshairs: the whistle-blower. If, as the president of the United States, you sign off on a system of warrantless surveillance of Americans – the sort that not so long ago was against the law in this country – or if you happen to run a giant telecom company and go along with that system by opening your facilities to government snoops, or if you run the National Security Agency or are an official in it overseeing the kind of data mining and intelligence gathering that goes with such a program, then – as recent years have made clear – you are above the law.

If, however, you happen to be an NSA employee who feels that the agency has overstepped the bounds of legality in its dealings with Americans, that it is moving in Orwellian directions, and that it should be exposed, and if you offer even unclassified information to a newspaper reporter, as was the case with Thomas Drake, be afraid, be very afraid. You may be prosecuted by the Bush and then Obama Justice Departments, and threatened with 35 years in prison under the Espionage Act (not for "espionage," but for having divulged the most minor of low-grade state secrets in a world in which, increasingly, everything having to do with the state is becoming a secret).

If you are a CIA employee who tortured no one but may have given information damaging to the reputation of the national security state – in this case about a botched effort to undermine the Iranian nuclear program – to a journalist, watch out. You are likely, as in the case of Jeffrey Sterling, to find yourself in a court of law. And if you happen to be a journalist like James Risen who may have received that information, you are likely to be hit by a Justice Department subpoena attempting to force you to reveal your source, under threat of imprisonment for contempt of court.

If you are a private in the U.S. military with access to a computer with low-level classified material from the Pentagon’s wars and the State Department’s activities on it, if you’ve seen something of the grim reality of what the national security state looks like when superimposed on Iraq, and if you decide to shine some light on that world, as Bradley Manning did, they’ll toss you into prison and throw away the key. You’ll be accused of having "blood on your hands" and tried, again under the Espionage Act, by those who actually have blood on their hands and are beyond all accountability.

When it comes to acts of state today, there is only one law: don’t pull up the curtain on the doings of any aspect of our spreading National Security Complex or the imperial executive that goes with it. As CIA Director Leon Panetta put it in addressing his employees over leaks about the operation to kill bin Laden, "Disclosure of classified information to anyone not cleared for it – reporters, friends, colleagues in the private sector or other agencies, former Agency officers – does tremendous damage to our work. At worst, leaks endanger lives... Unauthorized disclosure of those details not only violates the law, it seriously undermines our capability to do our job."

And when someone in Congress actually moves to preserve some aspect of older notions of American privacy (versus American secrecy), as Senator Rand Paul did recently in reference to the Patriot Act, he is promptly smeared as potentially "giving terrorists the opportunity to plot attacks against our country, undetected."

Enhanced Legal Techniques

Here is the reality of post-legal America: since the attacks of September 11, 2001, the National Security Complex has engorged itself on American fears and grown at a remarkable pace. According to Top Secret America, a Washington Post series written in mid-2010, 854,000 people have "top secret" security clearances, "33 building complexes for top-secret intelligence work are under construction or have been built since September 2001... 51 federal organizations and military commands, operating in 15 U.S. cities, track the flow of money to and from terrorist networks... [and] some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security, and intelligence in about 10,000 locations across the United States."

Just stop a moment to take that in. And then let this sink in as well: whatever any one of those employees does inside that national security world, no matter how "illegal" the act, it’s a double-your-money bet that he or she will never be prosecuted for it (unless it happens to involve letting Americans know something about just how they are being "protected").

Consider what it means to have a U.S. Intelligence Community (as it likes to call itself) made up of 17 different agencies and organizations, a total that doesn’t even include all the smaller intelligence offices in the National Security Complex, which for almost 10 years proved incapable of locating its global enemy number one. Yet, as everyone now agrees, that man was living in something like plain sight, exchanging messages with and seeing colleagues in a military and resort town near Islamabad, the Pakistani capital. And what does it mean that, when he was finally killed, it was celebrated as a vast intelligence victory?

The Intelligence Community with its $80 billion-plus budget, the National Security Complex, including the Pentagon and that post-9/11 creation, the Department of Homeland Security, with its $1.2 trillion-plus budget, and the imperial executive have thrived in these years. They have all expanded their powers and prerogatives based largely on the claim that they are protecting the American people from potential harm from terrorists out to destroy our world.

Above all, however, they seem to have honed a single skill: the ability to protect themselves, as well as the lobbyists and corporate entities that feed off them. They have increased their funds and powers, even as they enveloped their institutions in a penumbra of secrecy. The power of this complex of institutions is still on the rise, even as the power and wealth of the country it protects is visibly in decline.

Now, consider again the question "Is it legal?" When it comes to any act of the National Security Complex, it’s obviously inapplicable in a land where the rule of law no longer applies to everyone. If you are a ordinary citizen, of course, it applies to you, but not if you are part of the state apparatus that officially protects you. The institutional momentum behind this development is simple enough to demonstrate: it hardly mattered that, after George W. Bush took off those gloves, the next president elected was a former constitutional law professor.

Think of the National Security Complex as the King George of the present moment. In the areas that matter to that complex, Congress has ever less power and, as in the case of the war in Libya or the Patriot Act, is ever more ready to cede what power it has left.

So democracy? The people’s representatives? How quaint in a world in which our real rulers are unelected, shielded by secrecy, and supported by a carefully nurtured, almost religious attitude toward security and the U.S. military.

The National Security Complex has access to us, to our lives and communications, though we have next to no access to it. It has, in reserve, those enhanced interrogation techniques and when trouble looms, a set of what might be called enhanced legal techniques as well. It has the ability to make war at will (or whim). It has a growing post-9/11 secret army cocooned inside the military: 20,000 or more troops in special operations outfits like the SEAL team that took down bin Laden, also enveloped in secrecy. In addition, it has the CIA and a fleet of armed drone aircraft ready to conduct its wars and operations globally in semi-secrecy and without the permission or oversight of the American people or their representatives.

And war, of course, is the ultimate aphrodisiac for the powerful.

Theoretically, the National Security Complex exists only to protect you. Its every act is done in the name of making you safer, even if the idea of safety and protection doesn’t extend to your job, your foreclosed home, or aid in disastrous times.

Welcome to post-legal America. It's time to stop wondering whether its acts are illegal and start asking: Do you really want to be this "safe"?

May 31, 2011

Tom Engelhardt [send him mail] co-founder of the Nation Institute's TomDispatch.com, is the co-founder of the American Empire Project. His book, The End of Victory Culture, has recently been updated in a newly issued edition. He edited, and his work appears in, the first best of TomDispatch book, The World According to TomDispatch: America in the New Age of Empire (Verso), an alternative history of the mad Bush years. His new book is The American Way of War: How Bush’s Wars Became Obama’s. William J. Astore [send him mail] is a TomDispatch regular, a retired lieutenant colonel (USAF), and a professor of history.

Copyright © 2010 William J. Astore

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