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.”
Enhanced Legal Techniques
This is the reality of postlegal America: since the attacks of September 11, 2001, the National Security Complex has engorged itself on American fears and grown at a remarkable pace. According to “Top Secret America,” a Washington Post series written in mid-2010, 854,000 people have “top secret” security clearances, “51 federal organizations and military commands, operating in 15 U.S. cities, track the flow of money to and from terrorist networks… [and] some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security, and intelligence in about 10,000 locations across the United States.”
Just stop a moment to take that in. And then let this sink in as welclass="underline" 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”).
The Intelligence Community, the National Security Complex, including the Pentagon and that post-9/11 creation, the Department of Homeland Security, 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 by terrorists out to destroy our world. Above all, however, they seem to have honed a single skilclass="underline" 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 themselves as 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.
The question Is it legal is obviously inapplicable in a land where the rule of law no longer applies to everyone. If you are an ordinary citizen, of course, it still 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. The National Security Complex is the King George of the present moment. In the areas that matter to that complex, Congress has ever less power and is generally ever more ready to cede what power it has left.
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: twenty thousand or more troops in special operations outfits like the SEAL team that took down Osama bin Laden, also enveloped in secrecy. In addition, it has the CIA and an expanding fleet of armed drone aircraft ready to conduct its wars and operations globally in semisecrecy, without the permission or oversight of the American people or their representatives. And war, of course, is the ultimate aphrodisiac for the powerful.
Theoretically, the National Security Complex exists only to protect you. Its every act is done in the name of making you safer, even if the idea of safety and protection doesn’t extend to your job, your foreclosed home, or aid in disastrous times.
Welcome to post-legal America. It’s time to stop wondering whether its acts are illegal and start asking: Do you really want to be this “safe”?
The 100 Percent Doctrine in Washington
Here’s a scenario to chill you to the bone:
Without warning, the network—a set of terrorist super cells—struck in northern Germany and Germans began to fall by the hundreds, then thousands. As panic spread, hospitals were overwhelmed with the severely wounded. More than twenty of the victims died.
No one doubted that it was al-Qaeda, but where the terrorists had come from was unknown. Initially, German officials accused Spain of harboring them (and the Spanish economy promptly took a hit). Then, confusingly, they retracted the charge. Alerts went off across Europe as fears spread. Russia closed its borders to the European Union, which its outraged leaders denounced as a “disproportionate” response. Even a small number of Americans visiting Germany ended up hospitalized.
In Washington, there was panic, though no evidence existed that the terrorists were specifically targeting Americans or that any of them had slipped into this country. Still, at a hastily called news conference, Secretary of Homeland Security Janet Napolitano raised the new terror alert system for the first time from its always “elevated” status to “imminent” (that is, “a credible, specific, and impending threat”). Soon after, a Pentagon spokesman announced that the U.S. military had been placed on high alert across Europe.
Commentators on Fox News, quoting unnamed FBI sources, began warning that this might be the start of the “next 9/11”—and that the Obama administration was unprepared for it. Former vice president Dick Cheney, in a rare public appearance at the American Enterprise Institute, denounced the president for “heedlessly putting this country at risk from the terrorists.” In Congress, members of both parties rallied behind calls for hundreds of millions of dollars of supplementary emergency funding for the Department of Homeland Security to strengthen airport safety. (“In such difficult economic times,” said House Speaker John Boehner, “Congress will have to find cuts from nonmilitary discretionary spending at least equal to these necessary supplementary funds.”)
Finally, as the noise in the media echo chamber grew, President Obama called a prime-time news conference and addressed the rising sense of hysteria in Washington and the country, saying: “Al-Qaeda and its extremist allies will stop at nothing in their efforts to kill Americans. And we are determined not only to thwart those plans, but to disrupt, dismantle, and defeat their networks once and for all.” He then ordered a full review of U.S. security and intelligence capabilities and promised a series of “concrete steps to protect the American people: new screening and security for all flights, domestic and international;… more air marshals on flights; and deepening cooperation with international partners.”