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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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Just stop a moment to take that in.  And then let this sink in as well: whatever any one of those employees does inside that national security world, no matter how “illegal” the act, it’s a double-your-money bet that he or she will never be prosecuted for it (unless it happens to involve letting Americans know something about just how they are being “protected”).

Consider what it means to have a U.S. Intelligence Community (as it likes to call itself) made up of 17 different agencies and organizations, a total that doesn’t even include all the smaller intelligence offices in the National Security Complex, which for almost 10 years proved incapable of locating its global enemy number one.  Yet, as everyone now agrees, that man was living in something like plain sight, exchanging messages with and seeing colleagues in a military and resort town near Islamabad, the Pakistani capital.  And what does it mean that, when he was finally killed, it was celebrated as a vast intelligence victory?

The Intelligence Community with its $80 billion-plus budget, the National Security Complex, including the Pentagon and that post-9/11 creation, the Department of Homeland Security, with its $1.2 trillion-plus budget, and the imperial executive have thrived in these years.  They have all expanded their powers and prerogatives based largely on the claim that they are protecting the American people from potential harm from terrorists out to destroy our world.

Above all, however, they seem to have honed a single skill: the ability to protect themselves, as well as the lobbyists and corporate entities that feed off them.  They have increased their funds and powers, even as they enveloped their institutions in a penumbra of secrecy.  The power of this complex of institutions is still on the rise, even as the power and wealth of the country it protects is visibly in decline.

Now, consider again the question “Is it legal?” When it comes to any act of the National Security Complex, it’s obviously inapplicable in a land where the rule of law no longer applies to everyone.  If you are a ordinary citizen, of course, it applies to you, but not if you are part of the state apparatus that officially protects you.  The institutional momentum behind this development is simple enough to demonstrate: it hardly mattered that, after George W. Bush took off those gloves, the next president elected was a former constitutional law professor.

Think of the National Security Complex as the King George of the present moment.  In the areas that matter to that complex, Congress has ever less power and, as in the case of the war in Libya or the Patriot Act, is ever more ready to cede what power it has left.

So democracy?  The people’s representatives?  How quaint in a world in which our real rulers are unelected, shielded by secrecy, and supported by a carefully nurtured, almost religious attitude toward security and the U.S. military.

The National Security Complex has access to us, to our lives and communications, though we have next to no access to it.  It has, in reserve, those enhanced interrogation techniques and when trouble looms, a set of what might be called enhanced legal techniques as well.  It has the ability to make war at will (or whim).  It has a growing post-9/11 secret army cocooned inside the military: 20,000 or more troops in special operations outfits like the SEAL team that took down bin Laden, also enveloped in secrecy.  In addition, it has the CIA and a fleet of armed drone aircraft ready to conduct its wars and operations globally in semi-secrecy and without the permission or oversight of the American people or their representatives.