The Nefarious Ways 9-11 Turned America into a Lockdown State
Continued from previous page
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.