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     Apr 22, '14

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Too big to jail in the 'post-legal' US
By Tom Engelhardt

Temperatures plunged overnight, and Rahman froze to death. Hypothermia was listed as the cause of death and Rahman was buried in an unmarked grave". (In a rare case brought before a military court, a low-level army interrogator was convicted of "killing an Iraqi general by stuffing him face-first into a sleeping bag", and sentenced to "forfeit $6,000 of his salary over the next four months, receive a formal reprimand, and spend 60 days restricted to his home, office, and church".)

*Assassination: Once upon a time, off-the-books assassination was generally a rare act of state and always one that presidents could deny responsibility for. Now, it is part of everyday life in the

White House and at the CIA. The president's role as assassin-in-chief, as the man who quite literally makes the final decision on whom to kill, has been all-but-publicly promoted as a political plus.

The drone assassination campaigns in Pakistan, Yemen, and Somalia, though "covert" and run by a civilian agency (with much secret help from the US Air Force) are openly reported on in the media and discussed as a seeming point of pride by those involved. In 2009, for instance, then-CIA Director Leon Panetta didn't hesitate to enthusiastically praise the drone attacks in Pakistan as "the only game in town".

And best of all, they are "legal". We know this because the White House had the Justice Department prepare a 50-page document on their legality that it has refused to release to the public. In these campaigns in the backlands of distant places where there are seldom reporters, we nonetheless know that thousands of people have died, including significant numbers of children. Being run by a civilian agency, they cannot in any normal sense be "acts of war".

In another world, they would certainly be considered illegal and possibly war crimes, as Christof Heyns, the UN special rapporteur on extrajudicial killings, has suggested. Top officials have taken responsibility for these acts, including the drone killings in Yemen of four American citizens condemned to death by a White House that has enthusiastically taken on the role of judge, jury, and executioner. No one involved, however, will ever see a day in court.

*Perjury before congress: Lying to congress in public testimony is, of course, perjury. Among others, we know that Director of National Intelligence James Clapper committed it in a strikingly bald-faced way on March 12, 2013. When asked by Senator Ron Wyden whether the NSA had gathered "any type of data at all on millions or hundreds of millions of Americans" - a question submitted to him a day in advance - Clapper answered, "No, sir. Not wittingly.

There are cases where they could inadvertently perhaps collect, but not wittingly". This was a lie, pure and simple, as the Snowden revelations on the NSA's gathering of phone metadata on all Americans (including, assumedly, our congressional representatives) would later make clear. Clapper subsequently apologized, saying that he spoke in what he called "the least untruthful" way possible, which, were crime on anyone's mind, would essentially have been a confession. Congress did nothing. Just in case you wondered, Clapper remains the director of national intelligence with the "support" of the president.

Mind you, the above seven categories don't even take into account the sort of warrantless surveillance of Americans that should have put someone in a court of law, or the ways in which various warrior corporations overbilled or cheated the government in its war zones, or the ways private contractors "ran wild" in those same zones. Even relatively low-level crimes by minor figures in the national security state have normally not been criminalized. Take, for example, the private surveillance of and cyberstalking of "love interests", or "LOVEINT", by NSA employees using government surveillance systems.

The NSA claims that at least one employee was "disciplined" for this, but no one was taken to court. A rare exception: a number of low level military figures in the Abu Ghraib scandal were tried for their abusive actions, convicted, and sent to jail, though no one higher than a colonel was held accountable in court for those infamously systematic and organized acts of torture and abuse.

Too big to fail, national security-style
All in all, as with the banks after the meltdown of 2007-2008, even the most obvious of national security state crimes seem to fall into a "too big to fail"-like category. Call it "too big to jail". The only crime that repeatedly makes it out of the investigative phase and into court - as with Stephen Kim, Chelsea Manning, and John Kiriakou - is revealing information the national security state holds dear. On that, the Obama administration has been fierce and prosecutorial.

Despite the claims of national security breaches in such cases, most of the leakers and whistleblowers of our moment have had little to offer in the way of information that might benefit Washington's official enemies. What Kim told Fox News about the North Korean nuclear program was hardly likely to have been news to the North Koreans, just as the Iranians are believed to have already known what General Cartwright may have leaked to the Times about the origins of the Stuxnet virus.

Of course, leaking is a habit that's often considered quite useful by those in power. It's little short of a sport in Washington, done whenever officials feel it to be to their advantage or the advantage of an administration, even if what's at stake are "secret" programs like the CIA's drone campaign in Pakistan. What's still up in the air - and to be tested - is whether leaking information in the government's supposed interest could, in fact, be a crime. And that's where General Cartwright comes in.

If there is, in fact, but a single crime that can be committed within the national security state for which our leaders now believe jail time is appropriate, how wide is the category and is knowledge always a crime when it ends up in the wrong brains?

If there were one man of power and prominence who might join Kim, Kiriakou, Manning, and Edward Snowden (should the US government ever get its hands on him), it might be Cartwright. It's a long shot, but here's what he doesn't have going for him. He was an insider who was evidently an outsider. He was considered "a lone wolf" who went to the president privately, behind the backs of, and to the evident dismay of, the chairman of the joint chiefs and the secretary of defense. He seems to have had few supporters in the Pentagon and to have alienated key Republican senators. He could, in short, prove the single sacrificial lamb in the national security state.

In Washington today, knowledge is the only crime. That's a political reality of the twenty-first century. Get used to it.

Tom Engelhardt, a 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, and 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.

Posted with permission of TomDispatch. Follow TomDispatch on Twitter and on Facebook or Tumblr. Check out the newest Dispatch book, Ann Jones's They Were Soldiers: How the Wounded Return From America's Wars - The Untold Story.

(Copyright 2014 Tom Engelhardt)

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