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Are We Living in Post-Legal America?

At least in terms of what used to be called "foreign policy," and more recently "national security," the United States is now a post-legal society.

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In the U.S. (and here was the realism of the debate that followed), the very issue of legality fell away almost instantly.  Newspapers rapidly replaced the word “torture” -- when applied to what American interrogators did -- with the term “enhanced interrogation techniques,” which was widely accepted as less controversial and more objective.  At the same time, the issue of the legality of such techniques was superseded by a fierce national debate over their efficacy.  It has lasted to this day and returned with a bang with the bin Laden killing.

Nothing better illustrates the nature of our post-legal society.  Anti-torture laws were on the books in this country.  If legality had truly mattered, it would have been beside the point whether torture was an effective way to produce “actionable intelligence” and so prepare the way for the killing of a bin Laden.

By analogy, it’s perfectly reasonable to argue that robbing banks can be a successful and profitable way to make a living, but who would agree that a successful bank robber hadn’t committed an act as worthy of prosecution as an unsuccessful one caught on the spot?  Efficacy wouldn’t matter in a society whose central value was the rule of law.  In a post-legal society in which the ultimate value espoused is the safety and protection a national security state can offer you, it means the world.

As if to make the point, the Supreme Court recently offered a post-legal ruling for our moment: it declined to review a lower court ruling that blocked a case in which five men, who had experienced extraordinary rendition (a fancy globalized version of kidnapping) and been turned over to torturing regimes elsewhere by the CIA, tried to get their day in court.  No such luck.  The Obama administration claimed (as had the Bush administration before it) that simply bringing such a case to court would imperil national security (that is, state secrets) -- and won.  As Ben Wizner, the American Civil Liberties Union lawyer who argued the case, summed matters up, "To date, every victim of the Bush administration's torture regime has been denied his day in court."

To put it another way, every CIA torturer, all those involved in acts of rendition, and all the officials who okayed such acts, as well as the lawyers who put their stamp of approval on them, are free to continue their lives untouched.  Recently, the Obama administration even went to court to “prevent a lawyer for a former CIA officer convicted in Italy in the kidnapping of a radical Muslim cleric from privately sharing classified information about the case with a Federal District Court judge.”  (Yes, Virginia, elsewhere in the world a few Americans have been tried in absentia for Bush-era crimes.)  In response, wrote Scott Shane of the New York Times , the judge “pronounced herself ‘literally speechless.’”

The realities of our moment are simple enough: other than abusers too low-level (see England, Lynndie and Graner, Charles) to matter to our national security state, no one in the CIA, and certainly no official of any sort, is going to be prosecuted for the possible crimes Americans committed in the Bush years in pursuit of the Global War on Terror.

On Not Blowing Whistles

It’s beyond symbolic, then, that only one figure from the national security world seems to remain in the “legal” crosshairs: the whistle-blower.  If, as the president of the United States, you sign off on a system of warrantless surveillance of Americans -- the sort that not so long ago was against the law in this country -- or if you happen to run a giant telecom company and go along with that system by opening your facilities to government snoops, or if you run the National Security Agencyor are an official in it overseeing the kind of data mining and intelligence gathering that goes with such a program, then -- as recent years have made clear -- you are above the law.