[THS] Tom Engelhardt, Welcome to Post-Legal America

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http://www.tomdispatch.com/post/175398/tomgram%3A_engelha

Tom Engelhardt, Welcome to Post-Legal America
Posted by Tom Engelhardt at 9:05pm, May 30, 2011.

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Dumb Question of the Twenty-first Century: Is It Legal?
Post-Legal America and the National Security Complex
By Tom Engelhardt

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”?

Tom Engelhardt, co-founder of the American Empire Project and the author of The
End of Victory Culture, runs the Nation Institute's TomDispatch.com. His latest book is
The American Way of War: How Bush’s Wars Became Obama’s (Haymarket Books).

Copyright 2011 Tom Engelhardt