Tom Engelhardt - The United States of Fear

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 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 At the same time, the issue of the legality of such techniques was superseded by a fierce national debate over their efficacy.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 postlegal 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 postlegal 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 in May 2011 offered a postlegal 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 no one’s shock, in June 2011 Attorney General Eric Holder announced that the Obama administration, after looking into ninety-nine cases of potential official torture in the Bush years, would prosecute none of them. To put it another way, every CIA torturer, all those involved in acts of rendition, and all the officials who authorized 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.

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 Agency (NSA) or 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.

If, however, you happen to be an NSA employee who feels that the agency has overstepped the bounds of legality in its dealings with Americans, that it is moving in Orwellian directions, and that government malfeasance should be exposed, and if you offer even unclassified information to a newspaper reporter, as was the case with Thomas Drake, be afraid. You may be prosecuted by the Bush and then Obama Justice Departments, and threatened with thirty-five years in prison under the Espionage Act (not for “espionage,” but for having divulged the lowest of low-grade state secrets in a world in which, increasingly, everything having to do with the state is becoming a secret).

If you are a CIA employee who tortured no one but may have given information damaging to the reputation of the national security state—in this case, about a botched effort to undermine the Iranian nuclear program—to a journalist, watch out. You are likely, as in the case of Jeffrey Sterling, to find yourself in a court of law. And if you happen to be a journalist like James Risen who may have received that information, you are likely to be hit by a Justice Department subpoena attempting to force you to reveal your source, under threat of imprisonment for contempt of court.

If you are a private in the U.S. military with access to a computer with low-level classified material from the Pentagon’s wars and the State Department’s activities, if you’ve seen something of the grim reality of what the national security state looks like when superimposed on Iraq, and if you decide to shine some light on that world, as army private Bradley Manning is believed to have done, they’ll toss you in prison and throw away the key. You’ll be accused of having “blood on your hands” and tried under the Espionage Act by those who actually have blood on their hands and are beyond all accountability.

When it comes to acts of state today, there is only one law: don’t pull up the curtain on the doings of any aspect of our spreading National Security Complex or the imperial executive that goes with it. And when someone in Congress actually moves to preserve some aspect of older notions of American privacy (versus American secrecy), as Senator Rand Paul did recently in reference to the Patriot Act, he is promptly smeared as potentially “giving terrorists the opportunity to plot attacks against our country, undetected.”