Chapter 1
The United States of Fear
Itâs finally coming into focus, and itâs not even a difficult equation to grasp. Take a country in the grips of an expanding national security state, and sooner or later your âsafetyâ will mean your humiliation, your degradation. And by the way, it will mean the degradation of your country, too.
Just ask Rolando Negrin, a Transportation Security Administration (TSA) screener who passed through one of those new âwhole body imageâ scanners in May 2009 as part of his training for airport security. His coworkers claimed to have gotten a look at his âjunkâ and mocked him mercilessly, evidently repeatedly asking, âWhat size are you?â and referring to him as âlittle angry man.â In the end, calling it âpsychological torture,â he insisted that he snapped, which in his case meant that he went after a coworker, baton first, demanding an apology.
Consider that a little parable about just how low this country has sunk, how psychologically insecure weâve become while supposedly guarding ourselves against global danger. There is no question that, at the height of Cold War hysteria, when superpower nuclear arsenals were out of this world and the planet seemed a hair trigger from destruction, big and small penises were in play, symbolically speaking. Only now, however, facing a ragtag set of fanatics and terroristsânot a mighty nation but a puny crewâare those penises perfectly real and, potentially, completely humiliating.
Failed Bombs Do the Job
We live, it seems, in a national security âhomelandâ of little angry bureaucrats who couldnât be happier to define what safety means for you and big self-satisfied officials who can duck the application of those safety methods. Your government can now come up with any wacky solution to American âsecurityâ and youâll pay the price. One guy brings a failed shoe bomb onto an airplane, and youâre suddenly in your socks. Word has it that bombs can be mixed from liquids in airplane bathrooms, and there go your bottled drinks. A youthful idiot flies toward Detroit with an ill-constructed bomb in his underwear, and suddenly theyâre taking naked scans of you or threatening to grope your junk.
Two bombs donât go off in the cargo holds of two planes and all of a sudden sending things around the world threatens to become more problematic and expensive. Each time, the price of safety rises and some set of lucky corporations, along with the lobbyists and politicians who support them, get a windfall. In each case, the terror tactic (at least in the normal sense) failed. In each case, the already draconian standards for our security were ratcheted up, while even more money was poured into new technology and human reinforcements that may, in the end, cause more disruption than any successful terror attack.
Directly or indirectly, you pay for the screeners and scanners and a labyrinthine intelligence bureaucracy that officially wields an $80 billion budget, and all the lobbyists and shysters and pitchmen who accompany our burgeoning homeland-security complex. And by the way, no oneâs the slightest bit nice about it either, which isnât surprising since itâs a national security state weâre talking about, which means its mentality is punitive. It wants to lock you down quietly and with your full acquiescence, if possible. Offer some trouble, though, or step out of line, and youâll be hit with a $10,000 fine or maybe put in cuffs. Itâs all for your safety, and fortunately they have a set of the most inept terror plots in history to prove their point.
Taking Off the Gloves (and Everything Else)
Since the beginning of George W. Bushâs second term, Americans have been remarkably quiet when it comes to the national security disasters being perpetuated in their name. Americaâs wars, its soaring Pentagon budgets, its billion-dollar military bases, its giant new citadels still called embassies but actually regional command centers, its ever-escalating CIA drone war along the Pakistani tribal borderlands, the ever-expanding surveillance at home, and the incessant ânight raidsâ and home razings thousands of miles away in Afghanistan, not to speak of Washingtonâs stimulus- package spending in its war zones have caused no more than the mildest ripple of protest, much less genuine indignation, in this country.
American safety has, in every case, trumped outrage. Now, for the first time in years, the oppressiveness of a national security state bent on locking down American life has actually gotten to some Americans. No flags are yet flying over mass protests with âDonât Scan on Meâ emblazoned on them. Still, the idea that air travel may mean a choice between a spritz of radiation and a sorta naked snapshot orâthrilling option Bâhaving some overworked, overaggressive TSA agent grope you, has caused outrage, at least among a minority of Americans, amid administration confusion.
But hereâs the thing: in our deluded state, Americans donât tend to connect what weâre doing to others abroad and what weâre doing to ourselves at home. We refuse to see that the more than one trillion dollars that continue to go into the Pentagon, the U.S. Intelligence Community, and the national security state yearly, as well as the stalemated or losing wars Washington insists on fighting in distant lands, have anything to do with the near collapse of the American economy, job devastation at home, or any of the other disasters of our age. As a result, those porno-scanners and enhanced pat-downs are indignities without a causeâexcept, of course, for the terrorists who keep launching their bizarre plots to take down our planes.
And yet whatever inconvenience, embarrassment, or humiliation you suffer in an airport shouldnât be thought of as something the terrorists have done to us. Itâs what the American national-security state that weâve quietly accepted demands of its subjects, based on the idea that no degree of danger from a terrorist attack, however infinitesimal, is acceptable. When it comes to genuine safety, anything close to that principle is absent from other aspects of American life whereâfrom eating to driving to drinking to workingâgenuine danger exists and genuine damage is regularly done.
We now live not just with all the usual fears that life has to offer, but in something like a United States of Fear.
When George W. Bush and his cronies decided to sally forth and smite the Greater Middle East, they exulted that they were finally âtaking the gloves off.â And so they were: aggressive war, torture, abuse, secret imprisonment, souped-up surveillance, slaughter, drone wars: there was no end to it. When those gloves came off, other people suffered first. But wasnât it predictableâsince wars have a nasty habit of coming homeâthat, in the end, other things would come off, and sooner or later they would be on you: your hat, your shoes, your belt, your clothes, and of course, your job, your world?
The imposition of more draconian safety and security methods is, of course, being considered for buses, trains, and boats. Can trucks, taxis, cars, and bikes be far behind? After all, once begun, there can, by definition, be no end to the search for perfect security. And what happens when the first terrorist with a suppository bomb is found aboard one of our planes? After all, such weapons already exist.
You Wanna Be Safer? Really?
You must have a friend whoâs extremely critical of everyone else but utterly opaque when it comes to himself. Well, thatâs this country, too.
Hereâs 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 âless than six brothersâ 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, theyâre laughing at us for claiming the operation failed because, reportedly thanks to a tip from Saudi intelligence, those bombs didnât go off. âThis supposedly âfoiled plot,ââ they wrote, âwill without a doubt cost America and other Western countries billions of dollars in new security measures. That is what we call leverage.â They are, they claim, planning to use the âsecurity phobia that is sweeping Americaâ not to cause major casualties, but to blow a hole in the U.S. economy. âWe 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.â
This is a new definition of asymmetrical warfare. The terrorists never have to strike an actual target. Itâs 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, actually safer? Hereâs a simple formula for beginning to improve American safety and security at every level. End our trillion-dollar wars in Afghanistan and Iraq. Begin to shut down our global empire of bases. Stop building grotesque embassy-citadels abroad (one even has a decorative moat!). End our overseas war-stimulus packages and bring some of that money home. In short, stop going out of our way to tick off foreigners and then pouring our treasure into an American war machine intent on pursuing a generational global war against them.
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 arenât far behind. In other words, reinforce our war state by ensuring that weâre eternally in a state of war, and then scare the hell out of Americans by repeatedly insisting that weâre 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 otherÂwise be dealt with punitively if they wonât shut up.
Itâs a formula for leaving you naked in airports, while increasing the oppressive power of the state. And hereâs the dirty, little, distinctly Orwellian secret: the national security state canât do without those Yemeni terrorists, as well as our homegrown variety (and vice versa). All of them profit from a world of war. You donât, 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 donât grasp the connections between our war state and our âsafety,â 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 Ladenâs killing legal? Is it legal for the president of the United States to target an American citizen for assassination? Were those âenhanced interrogation techniquesâ legal? Each of these questions would seem to call out for debate, for answers. Or perhaps not.
Now you couldnât call me a legal scholar. Iâve 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 donât 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 âforeign policy,â and more recently ânational security,â the United States is now a post-legal society.
Itâs 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 donât 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 crimesâthe use of torture, the running of offshore âblack sites,â the extraordinary rendition of suspected terrorists to lands where they would be tortured, illegal domestic spying and wiretapping, and the launching of wars of aggressionâitâs 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 âlook forward, not backwardâ and so turn the page on the whole period. Then he set his Justice Department to work on other mattersâsuch 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 youâre a thief caught breaking into someoneâs house, youâll be brought to trial, but if youâre caught breaking into someone elseâs country, youâll 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 âdebatesâ 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 doâin their quaint phrase, âtake the gloves off.â And those lawyers responded with a set of pseudo-legalisms that put various methods of âinformation extractionâ beyond the powers of the Geneva Conventions, the UNâs 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 âenhanced interrogation techniques.â An example would be waterboarding, which had once been bluntly known as âthe water tortureâ or âthe water cureâ 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 âdemonstratedâ 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 tortureâwhen applied to what American interrogators didâwith 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 âactionable intelligenceâ and so prepare the way for the killing of a bin Laden. By analogy, itâs 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 hadnât committed an act as worthy of prosecution as an unsuccessful one caught on the spot? Efficacy wouldnât 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)âand won. As Ben Wizner, the American Civil Liberties Union lawyer who argued the case, summed matters up, âTo date, every victim of the Bush administrationâs torture regime has been denied his day in court.â
To no oneâs 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 w...