The US has become a nation not of laws but of legal memos, not of legality but of legalisms.
[T]he airspace above Washington... [will be] a virtual no-fly
zone for 30 miles in all directions from the US capital. Six miles of
the Potomac and Anacostia Rivers will be shut down, with 150 blocks of
downtown Washington closed to traffic, partly out of concern for car or
truck bombs... with counter-snipers on top of buildings around the
capital and along the parade route... [and] detectors monitoring the air
for toxins... At the ready near the capital, thousands of doses of
antidotes in case of a chemical or biological attack... All this
security will cost about $120m dollars for hundreds of federal agents,
thousands of local police, and national guardsmen from 25 states.
Consider just the money. It's common knowledge that, until the
recent deal over the renewal of the George W Bush tax cuts for all but the richest of Americans, taxes had not been raised
since the
read-my-lips-no-new-taxes
era of his father. That's typical of the way we haven't yet assimilated
the new world we find ourselves in. After all, shouldn't that $120
million in taxpayer money spent on "safety" and "security" for a single
event in Washington be considered part of an ongoing Osama bin Laden
tax?
Maybe it's time to face the facts: this isn't your grandfather's
America. Once, prospective Americans landed in a New World. This time
around, a new world's landed on us.
Making fantasy into reality
Bin Laden, of course, is
long dead,
but his was the 9/11 spark that, in the hands of George W Bush and his
top officials, helped turn this country into a lockdown state and first
set significant portions of the Greater Middle East
aflame.
In that sense, bin Laden has been thriving in Washington ever since and
no commando raid in Pakistan or elsewhere has a chance of doing him
in.
Since the al-Qaeda leader was aware of the relative powerlessness of
his organisation and its hundreds or, in its heyday, perhaps thousands
of active followers, his urge was to defeat the US by
provoking its leaders into treasury-draining wars in the Greater Middle East.
In his world, it
was thought that such a set of involvements -and the "homeland"security down payments that went with them - could
bleed
the richest, most powerful nation on the planet dry. In this, he and
his associates, imitators, and wannabes were reasonably canny. The bin
Laden tax, including that $120m for Inauguration Day, has proved heavy
indeed.
In the meantime, he - and 9/11 as it entered the American psyche -
helped facilitate the locking down of this society in ways that should
unnerve us all. The resulting
United States of Fear has since engaged in two disastrous
more-than-trillion dollar wars and a "Global War on Terror" that shows no sign of ending in our lifetime (see
Yemen, Pakistan, and
Mali). It has also funded the
supersized growth of a
labyrinthine intelligence bureaucracy; that post-9/11 creation, the
Department of Homeland Security; and, of course, the Pentagon and the US military, including the
special operations forces, an ever-expanding secret military elite cocooned within it.
Given the enemy at hand - not a giant empire, but scattered jihadis
and minority insurgencies in distant lands - all of these institutions,
which make up the post-9/11 National Security Complex, expanded in ways
that would have boggled the minds of previous generations (as would that
most un-American of all words, "homeland"). All of this, in turn,
happened in a poisonously paranoid atmosphere in Washington, and much of
the rest of the country.
Even if you ignore that Inauguration Day no-boating zone or the
30-mile no-fly zone (the sort of thing the US once imposed on enemy
lands and now imposes on itself), consider those "thousands of doses of
antidotes in case of a chemical or biological attack". Just about
nothing on this planet is utterly inconceivable, but it's worth noting
that, as far as we know, the national security bureaucracy made no
preparations for an unexpected tornado on Inauguration Day.
Given recent extreme weather events, including
tornado warnings for Washington, that would at least have been a plausible scenario to consider.
Certainly, a biological or chemical attack is a similarly imaginable possibility. After all, it actually
happened
in Tokyo in 1995, when followers of the Aum Shinrikyo cult set off
Sarin gas in that city's subway system, killing 11. But the likelihood
of any conceivable set of Islamic terrorists attacking those inaugural
crowds with either chemical or biological weapons was, to say the least,
microscopic. As something to protect Washington visitors against, it
ranked at least on a par with the (
non-existent) post-9/11 al-Qaeda sleeper cells and sleeper-assassins so crucial to the plot of the TV show
Homeland.
And yet, in these years, what might have remained essentially a
nightmarish fantasy has become an impending reality around which the
national security folks organise their lives - and ours. Ever since the
now largely forgotten
anthrax mail attacks that killed five soon after 9/11 - the
anthrax in those envelopes may have come directly from a
US bioweapons laboratory - all sorts of fantastic scenarios involving biochemical attacks have become part and parcel of the American lockdown state.
In the Bush era, for instance, among the
apocalyptic dream scenes
the President and his top officials used to panic Congress into
approving a much-desired invasion of Iraq were the possibility of future
mushroom clouds
over American cities and this claim: that Iraqi autocrat Saddam Hussein
had drones (he didn't) and the means to get them to the East Coast of
the US (he didn't), and the ability to use them to launch attacks in
which chemical and biological weaponry would be sprayed over US cities
(he didn't). This was a presidentially promoted fantasy of the first
order, but no matter. Some senators
actually voted to go to war at least partially on the basis of it.
As is often true of ruling groups, Bush and his cronies weren't just
manipulating us with the fear of nightmarish future attacks, but
themselves as well. Thanks to
New Yorker journalist Jane Mayer's fine book
The Dark Side, for instance, we know that Vice President Dick Cheney was
always driven around Washington with "a duffel bag stocked with a gas mask and a biochemical survival suit" in the backseat of his car.
The post-9/11 National Security Complex has been convulsed by such
fears. After all, it has funded itself by promising Americans one thing:
total safety from one of the
lesser dangers of our American world - "
terrorism". The
fear of terrorism (essentially that bin Laden tax again) has been a
financial winner for the Complex, but it carries its own built-in
terrors. Even with the
$75bn or more a year that we pump into the "
US Intelligence Community",
the possibility that it might not discover some bizarre plot, and that,
as a result, several airliners might then go down, or a crowd in
Washington be decimated, or you name it, undoubtedly leaves many in the
Complex in an ongoing state of terror. After all, their jobs and
livelihoods are at stake.
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 Defence 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 "
legalised" 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 counterterrorism "tsar" John 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 neighbourhood 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 which 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.
A version of this article first appeared on TomDispatch.com.
