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June 1, 2011
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
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
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
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
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
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
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.
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
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