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Paying the Bin Laden Tax

Osama bin Laden is dead, but America's post-9/11 security state will live on for years.

| Tue Feb. 5, 2013 4:22 PM EST

Even if you ignore that Inauguration Day no-boating zone or the 30-mile no-fly zone (the sort of thing the US once imposed on enemy lands and now imposes on itself), consider those "thousands of doses of antidotes in case of a chemical or biological attack." Just about nothing on this planet is utterly inconceivable, but it's worth noting that, as far as we know, the national security bureaucracy made no preparations for an unexpected tornado on Inauguration Day. Given recent extreme weather events, including tornado warnings for Washington, that would at least have been a plausible scenario to consider.

Certainly, a biological or chemical attack is a similarly imaginable possibility. After all, it actually happened in Tokyo in 1995, when followers of the Aum Shinrikyo cult set off Sarin gas in that city's subway system, killing 11. But the likelihood of any conceivable set of Islamic terrorists attacking those inaugural crowds with either chemical or biological weapons was, to say the least, microscopic. As something to protect Washington visitors against, it ranked at least on a par with the (nonexistent) post-9/11 al-Qaeda sleeper cells and sleeper-assassins so crucial to the plot of the TV show "Homeland."

And yet, in these years, what might have remained essentially a nightmarish fantasy has become an impending reality around which the national security folks organize their lives—and ours. Ever since the now largely forgotten anthrax mail attacks that killed five soon after 9/11—the anthrax in those envelopes may have come directly from a US bioweapons laboratory—all sorts of fantastic scenarios involving biochemical attacks have become part and parcel of the American lockdown state.

In the Bush era, for instance, among the apocalyptic dream scenes the president and his top officials used to panic Congress into approving a much-desired invasion of Iraq were the possibility of future mushroom clouds over American cities and this claim: that Iraqi autocrat Saddam Hussein had drones (he didn't) and the means to get them to the East Coast of the US (he didn't), and the ability to use them to launch attacks in which chemical and biological weaponry would be sprayed over US cities (he didn't). This was a presidentially promoted fantasy of the first order, but no matter. Some senators actually voted to go to war at least partially on the basis of it.

As is often true of ruling groups, Bush and his cronies weren't just manipulating us with the fear of nightmarish future attacks, but themselves as well. Thanks to New Yorker journalist Jane Mayer's fine book The Dark Side, for instance, we know that Vice President Dick Cheney was always driven around Washington with "a duffel bag stocked with a gas mask and a biochemical survival suit" in the backseat of his car.

The post-9/11 National Security Complex has been convulsed by such fears. After all, it has funded itself by promising Americans one thing: total safety from one of the lesser dangers of our American world—"terrorism." The fear of terrorism (essentially that bin Laden tax again) has been a financial winner for the Complex, but it carries its own built-in terrors. Even with the $75 billion or more a year that we pump into the "US Intelligence Community," the possibility that it might not discover some bizarre plot, and that, as a result, several airliners might then go down, or a crowd in Washington be decimated, or you name it, undoubtedly leaves many in the Complex in an ongoing state of terror. After all, their jobs and livelihoods are at stake.

Think of their fantasies and fears, which have become ever more real in these years without in any way becoming realities, as the building blocks of the American lockdown state. In this way, intent on "taking the gloves off"—removing, that is, all those constraints they believed had been put on the executive branch in the Watergate era—and perhaps preemptively living out their own nightmares, figures like Dick Cheney and former Secretary of Defense Donald Rumsfeld changed our world.

The Powers of the Lockdown State

As cultists of a "unitary executive," they—and the administration of national security managers who followed in the Obama years—lifted the executive branch right out of the universe of American legality. They liberated it to do more or less what it wished, as long as "war," "terrorism," or "security" could be invoked. Meanwhile, with their Global War on Terror well launched and promoted as a multigenerational struggle, they made wartime their property for the long run.

In the process, they oversaw the building of a National Security Complex with powers that boggle the imagination and freed themselves from the last shreds of accountability for their actions. They established or strengthened the power of the executive to: torture at will (and create the "legal" justification for it); imprison at will, indefinitely and without trial; assassinate at will (including American citizens); kidnap at will anywhere in the world and "render" the captive into the hands of allied torturers; turn any mundane government document (at least 92 million of them in 2011 alone) into a classified object and so help spread a penumbra of secrecy over the workings of the American government; surveil Americans in ways never before attempted (and only "legalized" by Congress after the fact, the way you might backdate a check); make war perpetually on their own say-so; and transform whistleblowing—that is, revealing anything about the inner workings of the lockdown state to other Americans—into the only prosecutable crime that anyone in the Complex can commit.

It's true that some version of a number of these powers existed before 9/11. "Renditions" of terror suspects, for instance, first ramped up in the Clinton years; the FBI conducted illegal surveillance of antiwar organizations and other groups in the 1960s; the classification of government documents had long been on the rise; the congressional power to make war had long been on the wane; and prosecution of those who acted illegally while in government service was probably never a commonplace. (Both the Watergate and Iran-Contra scandals, however, did involve actual convictions or guilty pleas for illegal acts, followed in some of the Iran-Contra cases by presidential pardons.) Still, in each case, after 9/11, the national security state gained new or greatly magnified powers, including an unprecedented capacity to lockdown the country (and American liberties as well).

What it means to be in such a post-legal world—to know that, no matter what acts a government official commits, he or she will never be brought to court or have a chance of being put in jail—has yet to fully sink in. This is true even of critics of the Obama administration, who, as in the case of its drone wars, continue to focus on questions of legality, as if that issue weren't settled. In this sense, they continue to live in an increasingly fantasy-based version of America in which the rule of law still applies to everyone.

In reality, in the Bush and Obama years, the United States has become a nation not of laws but of legal memos, not of legality but of legalisms—and you don't have to be a lawyer to know it. The result? Secret armies, secret wars, secret surveillance, and spreading state secrecy, which meant a government of the bureaucrats about which the American people could know next to nothing. And it's all "legal."

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