When George W. Bush and his cronies decided to sally forth and smite the Greater Middle East, they exulted that they were finally “taking the gloves off.” And so they were: aggressive war, torture, abuse, secret imprisonment, souped-up surveillance, slaughter, drone wars: there was no end to it. When those gloves came off, other people suffered first. But wasn’t it predictable—since wars have a nasty habit of coming home—that, in the end, other things would come off, and sooner or later they would be on you: your hat, your shoes, your belt, your clothes, and of course, your job, your world?
The imposition of more draconian safety and security methods is, of course, being considered for buses, trains, and boats. Can trucks, taxis, cars, and bikes be far behind? After all, once begun, there can, by definition, be no end to the search for perfect security. And what happens when the first terrorist with a suppository bomb is found aboard one of our planes? After all, such weapons already exist.
You Wanna Be Safer? Really?
You must have a friend who’s extremely critical of everyone else but utterly opaque when it comes to himself. Well, that’s this country, too.
Here’s a singular fact to absorb: we now know that a bunch of Yemeni al-Qaeda adherents have a far better hit on just who we are, psychologically speaking, and what makes us tick than we do. They have a more accurate profile of us than our leading intelligence profilers undoubtedly do of them. In November 2010 they released an online magazine laying out just how much the two U.S.-bound cargo-bay bombs that caused panic cost them: a mere $4,200 and the efforts of “less than six brothers” over three months. They even gave their plot a name, Operation Hemorrhage (and what they imagined hemorrhaging, it seems, was not American blood, but treasure).
Now, they’re laughing at us for claiming the operation failed because, reportedly thanks to a tip from Saudi intelligence, those bombs didn’t go off. “This supposedly ‘foiled plot,’” they wrote, “will without a doubt cost America and other Western countries billions of dollars in new security measures. That is what we call leverage.” They are, they claim, planning to use the “security phobia that is sweeping America” not to cause major casualties, but to blow a hole in the U.S. economy. “We knew that cargo planes are staffed by only a pilot and a copilot, so our objective was not to cause maximum casualties but to cause maximum losses to the American economy.”
This is a new definition of asymmetrical warfare. The terrorists never have to strike an actual target. It’s not even incumbent upon them to build a bomb that works. Just about anything will do. To be successful, they only have to repeatedly send things in our direction, inciting the Pavlovian reaction from the U.S. national security state, causing it to further tighten its grip (or grope) at yet greater taxpayer expense.
In a sense, both the American national security state and al-Qaeda are building their strength and prestige as our lives grow more constrained and our treasure vanishes.
So you wanna be safer? I mean, actually safer? Here’s a simple formula for beginning to improve American safety and security at every level. End our trillion-dollar wars in Afghanistan and Iraq. Begin to shut down our global empire of bases. Stop building grotesque embassy-citadels abroad (one even has a decorative moat!). End our overseas war-stimulus packages and bring some of that money home. In short, stop going out of our way to tick off foreigners and then pouring our treasure into an American war machine intent on pursuing a generational global war against them.
Of course, the U.S. national security state has quite a different formula for engendering safety in America: fight the Afghan War until hell freezes over, keep the odd base or two in Iraq, dig into the Persian Gulf region, send U.S. Special Operations troops into any country where a terrorist might possibly lurk, and make sure those drones aren’t far behind. In other words, reinforce our war state by ensuring that we’re eternally in a state of war, and then scare the hell out of Americans by repeatedly insisting that we’re in imminent danger, that shoe, underwear, and someday butt bombers will destroy our country, our lives, and our civilization. Insist that a single percent of risk is 1 percent too much when it comes to terror and American lives, and then demand that those who feel otherwise be dealt with punitively if they won’t shut up.
It’s a formula for leaving you naked in airports, while increasing the oppressive power of the state. And here’s the dirty, little, distinctly Orwellian secret: the national security state can’t do without those Yemeni terrorists, as well as our homegrown variety (and vice versa). All of them profit from a world of war. You don’t, however. And on that score, what happens in an airport line should be the least of your worries.
The national security state is eager to cop a feel. As long as we don’t grasp the connections between our war state and our “safety,” things will only get worse and, in the end, our world will genuinely be in danger.
Welcome to Postlegal America
Is the Libyan war legal? Was Osama 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? Each of these questions would seem to call out for debate, for answers. Or perhaps not.
Now you couldn’t call me a legal scholar. I’ve never set foot inside a law school, and in sixty-seven years only made it onto a single jury (dismissed before trial). Still, I feel at least as capable of responding to such questions as any constitutional law professor. My answer: 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 symptoms of nostalgia for 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.
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 postlegal 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 suspected terrorists 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 Barack Obama offered a clear formula for dealing with this issue. He insisted that Americans should “look forward, not backward” and so turn the page on the whole period. Then he set his Justice Department to work on other matters—such as defending (and in some cases expanding) Bush-era positions on executive power. But honestly, did anyone anywhere doubt that no Bush-era official would ever be brought to trial here for such crimes?
Everyone knows that in the United States if you’re a thief 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, become a university professor, and appear regularly on Sunday talk shows.
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 handpicked 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 UN’s Convention Against Torture (signed by President Ronald Reagan and ratified by the Se
nate), and domestic antitorture 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 United States, 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 postlegal 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 postlegal 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 in May 2011 offered a postlegal 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 no one’s shock, in June 2011 Attorney General Eric Holder announced that the Obama administration, after looking into ninety-nine cases of potential official torture in the Bush years, would prosecute none of them. To put it another way, every CIA torturer, all those involved in acts of rendition, and all the officials who authorized 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 (NSA) 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 government malfeasance should be exposed, and if you offer even unclassified information to a newspaper reporter, as was the case with Thomas Drake, be afraid. You may be prosecuted by the Bush and then Obama Justice Departments, and threatened with thirty-five years in prison under the Espionage Act (not for “espionage,” but for having divulged the lowest 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, 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 army private Bradley Manning is believed to have done, they’ll toss you in prison and throw away the key. You’ll be accused of having “blood on your hands” and tried 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. 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
This is the reality of postlegal 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, “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”).
The Intelligence Community, the National Security Complex, including the Pentagon and that post-9/11 creation, the Dep
artment of Homeland Security, 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 by 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 themselves as 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.
The question Is it legal is obviously inapplicable in a land where the rule of law no longer applies to everyone. If you are an ordinary citizen, of course, it still 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. The National Security Complex is the King George of the present moment. In the areas that matter to that complex, Congress has ever less power and is generally ever more ready to cede what power it has left.
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: twenty thousand or more troops in special operations outfits like the SEAL team that took down Osama bin Laden, also enveloped in secrecy. In addition, it has the CIA and an expanding fleet of armed drone aircraft ready to conduct its wars and operations globally in semisecrecy, without the permission or oversight of the American people or their representatives. And war, of course, is the ultimate aphrodisiac for the powerful.
The United States of Fear Page 4
