Are We Living in Post-Legal America?

Is the Libyan war legal?  Was Bin Laden’s killing legal?  Is it legal for the president of the United States to target an American citizen for assassination?  Were those “enhanced interrogation techniques” legal? These are all questions raised in recent weeks.  Each seems to call out for debate, for answers.  Or does it?

Now, you couldn’t call me a legal scholar.  I’ve never set foot inside a law school, and in 66 years only made it onto a single jury (dismissed before trial when the civil suit was settled out of court).  Still, I feel at least as capable as any constitutional law professor of answering such questions. 

My answer is this: they are irrelevant.  Think of them as twentieth-century questions that don't begin to come to grips with twenty-first century American realities.  In fact, think of them, and the very idea of a nation based on the rule of law, as a reflection of nostalgia for, or sentimentality about, a long-lost republic.  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.  (And you could certainly include in this mix the too-big-to-jail financial and corporate elite.)

It’s easy enough to explain what I mean.  if, in a country theoretically organized under the rule of law, wrongdoers are never brought to justice and nobody is held accountable for possibly serious crimes, then you don’t have to be a constitutional law professor to know that its citizens actually exist in a post-legal state.  If so, “Is it legal?” is the wrong question to be asking, even if we have yet to discover the right one.

Pretzeled Definitions of Torture

Of course, when it came to a range of potential Bush-era crimes -- the use of torture, the running of offshore “black sites,” the extraordinary rendition of terrorist suspects to lands where they would be tortured, illegal domestic spying and wiretapping, and the launching of wars of aggression -- it’s hardly news that no one of the slightest significance has ever been brought to justice.  On taking office, President Obama offered a clear formula for dealing with this issue.  He insisted that Americans should “look forward, not backward” and turn the page on the whole period, and then set his Justice Department to work on other matters.  But honestly, did anyone anywhere ever doubt that no Bush-era official would be brought to trial here for such potential crimes?

Everyone knows that in the United States if you’re a robber caught breaking into someone’s house, you’ll be brought to trial, but if you’re caught breaking into someone else’s country, you’ll be free to take to the lecture circuit, write your memoirs, or become a university professor.

Of all the “debates” over legality in the Bush and Obama years, the torture debate has perhaps been the most interesting, and in some ways, the most realistic.  After 9/11, the Bush administration quickly turned to a crew of hand-picked Justice Department lawyers to create the necessary rationale for what its officials most wanted to do -- in their quaint phrase, “take the gloves off.”  And those lawyers responded with a set of pseudo-legalisms that put various methods of “information extraction” beyond the powers of the Geneva Conventions, the U.N.’s Convention Against Torture (signed by President Ronald Reagan and ratified by the Senate), and domestic anti-torture legislation, including the War Crimes Act of 1996 (passed by a Republican Congress).