found aboard one of our planes? After all, such weapons already exist.
You Wanna Be Safer? Really?
You must have a friend who’s extremely critical of everyone else but utterly opaque when it comes to himself. Well, that’s this country, too.
Here’s a singular fact to absorb: we now know that a bunch of Yemeni al-Qaeda adherents have a far better hit on just who we are, psychologically speaking, and what makes us tick than we do. They have a more accurate profile of us than our leading intelligence profilers undoubtedly do of them. In November 2010 they released an online magazine laying out just how much the two U.S.-bound cargo-bay bombs that caused panic cost them: a mere $4,200 and the efforts of “less than six brothers” over three months. They even gave their plot a name, Operation Hemorrhage (and what they imagined hemorrhaging, it seems, was not American blood, but treasure).
Now, they’re laughing at us for claiming the operation failed because, reportedly thanks to a tip from Saudi intelligence, those bombs didn’t go off. “This supposedly ‘foiled plot,’” they wrote, “will without a doubt cost America and other Western countries billions of dollars in new security measures. That is what we call leverage.” They are, they claim, planning to use the “security phobia that is sweeping America” not to cause major casualties, but to blow a hole in the U.S. economy. “We knew that cargo planes are staffed by only a pilot and a copilot, so our objective was not to cause maximum casualties but to cause maximum losses to the American economy.”
This is a new definition of asymmetrical warfare. The terrorists never have to strike an actual target. It’s not even incumbent upon them to build a bomb that works. Just about anything will do. To be successful, they only have to repeatedly send things in our direction, inciting the Pavlovian reaction from the U.S. national security state, causing it to further tighten its grip (or grope) at yet greater taxpayer expense.
In a sense, both the American national security state and al-Qaeda are building their strength and prestige as our lives grow more constrained and our treasure vanishes.
So you wanna be safer? I mean,
Of course, the U.S. national security state has quite a different formula for engendering safety in America: fight the Afghan War until hell freezes over, keep the odd base or two in Iraq, dig into the Persian Gulf region, send U.S. Special Operations troops into any country where a terrorist might possibly lurk, and make sure those drones aren’t far behind. In other words, reinforce our war state by ensuring that we’re eternally in a state of war, and then scare the hell out of Americans by repeatedly insisting that we’re in imminent danger, that shoe, underwear, and someday butt bombers will destroy our country, our lives, and our civilization. Insist that a single percent of risk is 1 percent too much when it comes to terror and American lives, and then demand that those who feel otherwise be dealt with punitively if they won’t shut up.
It’s a formula for leaving you naked in airports, while increasing the oppressive power of the state. And here’s the dirty, little, distinctly Orwellian secret: the national security state can’t do without those Yemeni terrorists, as well as our homegrown variety (and vice versa). All of them profit from a world of war. You don’t, however. And on that score, what happens in an airport line should be the least of your worries.
The national security state is eager to cop a feel. As long as we don’t grasp the connections between our war state and our “safety,” things will only get worse and, in the end, our world will genuinely be in danger.
Welcome to Postlegal America
Is the Libyan war legal? Was Osama 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? Each of these questions would seem to call out for debate, for answers. Or perhaps not.
Now you couldn’t call me a legal scholar. I’ve never set foot inside a law school, and in sixty-seven years only made it onto a single jury (dismissed before trial). Still, I feel at least as capable of responding to such questions as any constitutional law professor. My answer: 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 symptoms of nostalgia for 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.
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 postlegal 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 suspected terrorists 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 Barack Obama offered a clear formula for dealing with this issue. He insisted that Americans should “look forward, not backward” and so turn the page on the whole period. Then he set his Justice Department to work on other matters—such as defending (and in some cases expanding) Bush-era positions on executive power. But honestly, did anyone anywhere doubt that no Bush-era official would ever be brought to trial here for such crimes?
Everyone knows that in the United States if you’re a thief 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, become a university professor, and appear regularly on Sunday talk shows.
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 handpicked 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 UN’s Convention Against Torture (signed by President Ronald Reagan and ratified by the Senate), and domestic antitorture legislation, including the War Crimes Act of 1996 (passed by a Republican Congress).
In the process, they created infamously pretzled new definitions for acts previously accepted as torture. Among other things, they essentially left the definition of whether an act was torture or not to the torturer (that is, to what he believed he was doing at the time). In the process, acts that had historically been considered torture became “enhanced interrogation techniques.” An example would be waterboarding, which had once been bluntly known as “the water torture” or “the water cure” and whose perpetrators had, in the past, been successfully prosecuted in American military and civil courts. Such techniques were signed off on after first reportedly being “demonstrated” in the White House to an array of top officials, including the vice president, the national security adviser, the attorney general, and the secretary of state.
In the United States, the very issue of legality fell away almost instantly. Newspapers rapidly replaced the word
