Consider, for instance, this passage from a recent Washington Post piece on the codification of "targeted killing operations"—i.e. drone assassinations—in what's now called the White House "playbook": "Among the subjects covered... are the process for adding names to kill lists, the legal principles that govern when US citizens can be targeted overseas, and the sequence of approvals required when the CIA or US military conducts drone strikes outside war zones."
Those "legal principles" are, of course, being written up by lawyers working for people like Obama counterterrorism "tsar" John O. Brennan; that is, officials who want the greatest possible latitude when it comes to knocking off "terrorist suspects," American or otherwise. Imagine, for instance, lawyers hired by a group of neighborhood thieves creating a "playbook" outlining which kinds of houses they considered it legal to break into and just why that might be so. Would the "principles" in that document be written up in the press as "legal" ones?
Here's the kicker. According to the Post, the "legal principles" a White House with no intention of seriously limiting, no less shutting down, America's drone wars has painstakingly established as "law" are not, for the foreseeable future, going to be applied to Pakistan's tribal borderlands where the most intense drone strikes still take place. The CIA's secret drone war there is instead going to be given a free pass for a year or more to blast away as it pleases—the White House equivalent of Monopoly's get-out-of-jail-free card.
In other words, even by the White House's definition of legality, what the CIA is doing in Pakistan should be considered illegal. But these days when it comes to anything connected to American war-making, legality is whatever the White House says it is (and you won't find their legalisms seriously challenged by American courts).
Post-Legal Drones and the New Legalism
This week, during the Senate confirmation hearings for Brennan's nomination as CIA director, we are undoubtedly going to hear much about "legality" and drone assassination campaigns. Senator Ron Wyden, for instance, has demanded that the White House release a 50-page "legal" memo its lawyers created to justify the drone assassination of an American citizen, which the White House decided was far too hush-hush for either the Congress or ordinary Americans to read. But here's the thing: if Wyden got that bogus document, undoubtedly filled with legalisms (as a just-leaked 16-page Justice Department "white paper" justifying drone killings is), and released it to the rest of us, what difference would it make? Yes, we might learn something about the vestiges of a guilty conscience when it comes to American legality in a White House run by a former "constitutional law professor." But we would know little else.
Once upon a time, an argument over whether such drone strikes were legal or not might have had some heft to it. After all, the United States was once hailed, above all, as a "nation of laws." But make no mistake: today, such a "debate" will, in the Seinfeldian sense, be an argument about nothing, or rather about an issue that has long been settled.
The drone strikes, after all, are perfectly "legal." How do we know? Because the administration which produced that 50-page document (and similar memos) assures us that it's so, even if they don't care to fully reveal their reasoning, and because, truth be told, on such matters they can do whatever they want to do. It's legal because they've increasingly become the ones who define legality.
It would, of course, be illegal for Canadians, Pakistanis, or Iranians to fly missile-armed drones over Minneapolis or New York, no less take out their versions of bad guys in the process. That would, among other things, be a breach of American sovereignty. The US can, however, do more or less what it wants when and where it wants. The reason: it has established, to the satisfaction of our national security managers—and they have the secret legal documents (written by themselves) to prove it—that US drones can cross national boundaries just about anywhere if the bad guys are, in their opinion, bad enough. And that's "the law"!
As with our distant wars, most Americans are remarkably unaffected in any direct way by the lockdown of this country. And yet in a post-legal drone world of perpetual "wartime," in which fantasies of disaster outrace far more realistic dangers and fears, sooner or later the bin Laden tax will take its toll, the chickens will come home to roost, and they will be able to do anything in our name (without even worrying about producing secret legal memos to justify their acts). By then, we'll be completely locked down and the key thrown away.
Tom Engelhardt, co-founder of the American Empire Project and author of The United States of Fear as well as a history of the Cold War, The End of Victory Culture, runs the Nation Institute's TomDispatch.com. His latest book, co-authored with Nick Turse, is Terminator Planet: The First History of Drone Warfare, 2001-2050.
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