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2 DISPATCHES FROM
AMERICA Paying the bin Laden
tax By Tom
Engelhardt
Think of their fantasies and
fears, which have become ever more real in these
years without in any way becoming realities, as
the building blocks of the American lockdown
state. In this way, intent on "taking the gloves
off" - removing, that is, all those constraints
they believed had been put on the executive branch
in the Watergate era - and perhaps preemptively
living out their own nightmares, figures like Dick
Cheney and former secretary of defense Donald
Rumsfeld changed our world.
The powers
of the lockdown state As cultists of a
"unitary executive", they - and the administration
of national security managers who followed in the
Obama years - lifted the executive branch right
out of the universe of American legality. They
liberated it to do more or less what it wished, as
long as "war", "terrorism", or "security" could be
invoked. Meanwhile, with their Global War on
Terror well launched and
promoted as a
multigenerational struggle, they made wartime
their property for the long run.
In the
process, they oversaw the building of a National
Security Complex with powers that boggle the
imagination and freed themselves from the last
shreds of accountability for their actions. They
established or strengthened the power of the
executive to: torture at will (and create the
"legal" justification for it); imprison at will,
indefinitely and without trial; assassinate at
will (including American citizens); kidnap at will
anywhere in the world and "render" the captive
into the hands of allied torturers; turn any
mundane government document (at least 92 million
of them in 2011 alone) into a classified object
and so help spread a penumbra of secrecy over the
workings of the American government; surveil
Americans in ways never before attempted (and only
"legalized" by Congress after the fact, the way
you might backdate a check); make war perpetually
on their own say-so; and transform whistleblowing
- that is, revealing anything about the inner
workings of the lockdown state to other Americans
- into the only prosecutable crime that anyone in
the Complex can commit.
It's true that
some version of a number of these powers existed
before 9/11. "Renditions" of terror suspects, for
instance, first ramped up in the Clinton years;
the FBI conducted illegal surveillance of antiwar
organizations and other groups in the 1960s; the
classification of government documents had long
been on the rise; the congressional power to make
war had long been on the wane; and prosecution of
those who acted illegally while in government
service was probably never a commonplace. (Both
the Watergate and Iran-Contra scandals, however,
did involve actual convictions or guilty pleas for
illegal acts, followed in some of the Iran-Contra
cases by presidential pardons.)
Still, in
each case, after 9/11, the national security state
gained new or greatly magnified powers, including
an unprecedented capacity to lockdown the country
(and American liberties as well). What it
means to be in such a post-legal world - to know
that, no matter what acts a government official
commits, he or she will never be brought to court
or have a chance of being put in jail - has yet to
fully sink in. This is true even of critics of the
Obama administration, who, as in the case of its
drone wars, continue to focus on questions of
legality, as if that issue weren't settled. In
this sense, they continue to live in an
increasingly fantasy-based version of America in
which the rule of law still applies to everyone.
In reality, in the Bush and Obama years,
the United States has become a nation not of laws
but of legal memos, not of legality but of
legalisms - and you don't have to be a lawyer to
know it. The result? Secret armies, secret wars,
secret surveillance, and spreading state secrecy,
which meant a government of the bureaucrats about
which the American people could know next to
nothing. And it's all "legal."
Consider,
for instance, this passage from a recent
Washington Post piece on the codification of
"targeted killing operations" - ie drone
assassinations - in what's now called the White
House "playbook":
Among the subjects covered ... are
the process for adding names to kill lists, the
legal principles that govern when US citizens
can be targeted overseas, and the sequence of
approvals required when the CIA or US military
conducts drone strikes outside war
zones.
Those "legal principles" are,
of course, being written up by lawyers working for
people like Obama counter-terrorism "tsar" John O
Brennan; that is, officials who want the greatest
possible latitude when it comes to knocking off
"terrorist suspects", American or otherwise.
Imagine, for instance, lawyers hired by a group of
neighborhood thieves creating a "playbook"
outlining which kinds of houses they considered it
legal to break into and just why that might be so.
Would the "principles" in that document be written
up in the press as "legal" ones?
Here's
the kicker. According to the Post, the "legal
principles" a White House with no intention of
seriously limiting, no less shutting down,
America's drone wars has painstakingly established
as "law" are not, for the foreseeable future,
going to be applied to Pakistan's tribal
borderlands where the most intense drone strikes
still take place. The CIA's secret drone war there
is instead going to be given a free pass for a
year or more to blast away as it pleases - the
White House equivalent of Monopoly's
get-out-of-jail-free card.
In other words,
even by the White House's definition of legality,
what the CIA is doing in Pakistan should be
considered illegal. But these days when it comes
to anything connected to American war-making,
legality is whatever the White House says it is
(and you won't find their legalisms seriously
challenged by American courts).
Post-legal drones and the new
legalism This week, during the senate
confirmation hearings for Brennan's nomination as
CIA director, we are undoubtedly going to hear
much about "legality" and drone assassination
campaigns. Senator Ron Wyden, for instance, has
demanded that the White House release a 50-page
"legal" memo its lawyers created to justify the
drone assassination of an American citizen, which
the White House decided was far too hush-hush for
either the congress or ordinary Americans to read.
But here's the thing: if Wyden got that
bogus document, undoubtedly filled with legalisms
(as a just-leaked 16-page Justice Department
"white paper" justifying drone killings is), and
released it to the rest of us, what difference
would it make? Yes, we might learn something about
the vestiges of a guilty conscience when it comes
to American legality in a White House run by a
former "constitutional law professor". But we
would know little else.
Once upon a time,
an argument over whether such drone strikes were
legal or not might have had some heft to it. After
all, the United States was once hailed, above all,
as a "nation of laws". But make no mistake: today,
such a "debate" will, in the Seinfeldian sense, be
an argument about nothing, or rather about an
issue that has long been settled.
The
drone strikes, after all, are perfectly "legal".
How do we know? Because the administration that
produced that 50-page document (and similar memos)
assures us that it's so, even if they don't care
to fully reveal their reasoning, and because,
truth be told, on such matters they can do
whatever they want to do. It's legal because
they've increasingly become the ones who define
legality.
It would, of course, be illegal
for Canadians, Pakistanis, or Iranians to fly
missile-armed drones over Minneapolis or New York,
no less take out their versions of bad guys in the
process. That would, among other things, be a
breach of American sovereignty. The US can,
however, do more or less what it wants when and
where it wants. The reason: it has established, to
the satisfaction of our national security managers
- and they have the secret legal documents
(written by themselves) to prove it - that US
drones can cross national boundaries just about
anywhere if the bad guys are, in their opinion,
bad enough. And that's "the law"!
As with
our distant wars, most Americans are remarkably
unaffected in any direct way by the lockdown of
this country. And yet in a post-legal drone world
of perpetual "wartime", in which fantasies of
disaster outrace far more realistic dangers and
fears, sooner or later the bin Laden tax will take
its toll, the chickens will come home to roost,
and they will be able to do anything in our name
(without even worrying about producing secret
legal memos to justify their acts). By then, we'll
be completely locked down and the key thrown away.
Tom Engelhardt, co-founder of
the American Empire Project and author of The
United States of Fear as well as a history of
the Cold War, The End of Victory Culture,
runs the Nation Institute's TomDispatch.com. His
latest book, co-authored with Nick Turse, is
Terminator Planet: The First History of Drone
Warfare, 2001-2050.
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