Welcome to Post-Legal America

By William Fisher

Tom Engelhardt, who writes the Nation Institute's TomDispatch.com. column says he thinks the dumbest question of the 21st Century is: “Is it Legal?”

Tom begins with a litany of some of the related questions raised recently: “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?”

His answer: These questions are irrelevant. He writes, “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.)”

Engelhardt explains: “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.”

And he adds, “If so, ‘Is it legal?’ is the wrong question to be asking, even if we have yet to discover the right one.”

Tom says, “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.”

He recalls, “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?”

He continues: “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.”

On the issue of waterboarding, he writes, a technique once been bluntly known as “the water torture” or “the water cure,” “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, he says, “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.”

He continues: “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,” Tom writes.

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.

Tom cites a number of other legal irrelevancies. Whistleblowers and the journalists they confide in are likely to find themselves facing criminal charges in federal courts. Witness Jeffrey Sterling and New York Times reporter James Risen. And, of course, Bradley Manning. And those who rail against the erosion of our traditional “notions of American privacy (versus American secrecy), as Senator Rand Paul did recently in reference to the Patriot Act, are promptly smeared as potentially “giving terrorists the opportunity to plot attacks against our country, undetected."

Englehardt urges us to consider the vast national security network arrayed against those who dare to object. He notes that there are centers of security and intelligence in about 10,000 locations across the United States, a U.S. Intelligence Community (as it likes to call itself) made up of 17 different agencies and organizations, 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,” he writes.

In conclusion, Tom asks us to “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.”

He concludes: “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.”

He counsels us to “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.”

Finally, he writes, “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. 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”?

I asked a number of the country’s most respected human rights lawyers what they thought of the idea of giving up on our traditional notions about the role and reach of the law.

One of the most profound responses came from Chip Pitts, former Chair of Amnesty. He told me: “We're now in a post-legal America, in many ways – yes. But are questions about legality ‘dumb’ and ‘irrelevant’? No. I share the serious concern about the grave transgressions in the rule of law as revealed by the utter lack of accountability and continued secrecy and cover ups, and welcome the provocative way Tom seeks to engender greater debate about the questions.”

But, he added, “is he right? God, I hope not. In my view, we can’t succumb to the complacency encouraged by people passively pointing out that history shows that ‘it takes time’ to correct similar deviations from the rule of law that have occurred in the past. But of course, neither can we accept that the rule of law is gone and that only expediency and convenience remain.”

He continued, “Typically, in previous depredations (like Lincoln’s suspension of habeas corpus and temporary recourse to military tribunals during the factually distinguishable, truly existential Civil War, or the excesses of the McCarthy Era during the similarly existential threat posed by the nuclear-armed Soviet Union), it’s taken only a very few years to see the light. This time, although the threat from al Qaeda and its offshoots is clearly less existential, and more manageable, it’s taking more than a decade already.”

Pitts is discouraged by the “painfully few signs of a more evidence-and-reality based approach peep over the horizon, and the entrenched interests ranging from politicians and the media to the military-industrial-surveillance complex seem for the moment to have succeeded in institutionalizing a very profitable, low-level, persistent, yet wholly unjustified and counterproductive and manipulated fear.”

The reality, he says, is that “’we the people’ are the ultimate answer to Tom’s question, if there’s to be one. And he is correct that the practical consequences of acceding to the encroaching lawless state will be the main driver, ultimately (if ever), for more of the people to wake up and do something about it. For my own part, I vacillate between raging ‘at the dying of the light,’ in Dylan Thomas’s memorable phrase, and lighting a candle rather than cursing the darkness. But I’ve by no means reconciled myself to seeing the flame of justice extinguished. Not just yet, anyway.”

As a journalist, I’m delighted to report on the combat taking place today over these warring points of view. It makes good copy. But as a citizen, I despair for the future of my country and what I fear it is becoming. I fear that for generations we will be caught up in the over-reaction to 9/11. That reaction led to Congress creating a vast new bureaucracy – the Department of Homeland Security – to overlay our already enormous and largely dysfunctional intelligence apparatus. The many alternative ways the terror threat might have been met have been laid out many times and have largely fallen on deaf ears.

But most of all, don’t all of us have to be profoundly disappointed in the failure of Obama’s loudly-trumpeted policy of transparency? All governments have secrets; they have to have secrets. But that does not mean that governments have to be secretive. During and after his campaign, Obama told us that openness, transparency and accountability were going to be the touchstones of his justice policy. He never gave us the slightest hint that a major mission of his administration would be to suppress evidence so that victims of Bush-Cheney policies would never have to face justice in a court of law. And that we would morph into a permanent surveillance society.

I don’t know whether Obama, the Constitutional Law professor, was snookered by the defense and intelligence complex or whether he had some unexpected epiphany that transformed him into a hardline secret-hugger.

Whatever the cause, that’s what he has become. And it is the president, more than any combination of people in the intelligence community, who has created the environment, set the tone, of our post-legal America.