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 $75 billion or more a year that we pump into the "U.S. 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 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" -- i.e. 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 U.S. citizens can be targeted overseas, and the sequence of approvals required when the CIA or U.S. 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 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.
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