The “unitary executive” crowd that came to the fore under George W. Bush argue basically that because the government does something it is therefore ipso facto legal. It is not a new concept though one heard only intermittently in the United States where constitutional checks and balances were long the Gospel prior to 9/11. Ironically, the juridical theory justifying an all-powerful executive was first described by Carl Schmitt, the German jurist who defended the legitimacy of the Nazi usurpation of the Weimar constitution, later referred to as the “Fuhrer principle.” In the United States its chief advocates have been John Yoo, Jay Bybee, and Eric Posner. Yoo and Bybee were the authors of several notorious Justice Department memos that stated that torture by the CIA was legal because the government said that it was so. As Yoo put it , “Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President….Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield… If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.” Bybee meanwhile explained that harsh measures in interrogations were perfectly acceptable as long as they did not result in “death, organ failure or serious impairment of body functions…”
One of the ultimate ironies of America’s decline into madness post 9/11 is the way in which lawyers have led the charge to strip the rest of us of our civil liberties, perhaps suggesting that more law schools should require courses in both ethics and civics. A government lawyer tells President Barack Obama that it is okay to assassinate an American citizen overseas while another government lawyer explains how using CIA drones to attack civilians in a place like Pakistan or Yemen is not really an act of war or a war crime. It is always possible to find a lawyer to justify nearly anything while simultaneously making sanctimonious noises about protecting the constitution.
And lawyers know how to pull the wagons into a circle when danger threatens. When the Obama administration began its timid inquiry into CIA torture in 2009 its first step was to exclude all the legal counsel and senior managers from the investigation, meaning that only the lower ranks need apply for possible punishment. It may not have mattered at the end of the day who was in or out anyway because no one was actually punished when the case was quietly dropped in 2012, another feature of post 9/11 governance, but it would have been nice to know that those who actually ordered the torture might somehow be considered as complicit. The Obama Administration euphemized its inaction as going forward, “not looking back.”
And the real charm in how government functions according to the law is the way in which no lawyer actually has to dirty his hands by blowing up a sixteen year old or simulating drowning on a helpless prisoner. That kind of distasteful work is done by someone else while the lawyer signs off on the authorizing document with his gold nib Montblanc fountain pen. It might be referred to as being systemically insulated from the consequences of one action. For those who are interested, Yoo is currently a professor at the University of California at Berkeley and Posner is at the University of Chicago. Their presence in such distinguished institutions guarantees that the next generation of lawyers that adopts their values will also be morally bankrupt. Bybee is a Federal Appeals court Justice.
The ubiquity of lawyers in government (to include 173 congressmen) distorts the public discourse by narrowing discussions of policy to whether something is legal or not. I would suggest that the public would have a much clearer understanding of what is going on if policy formulation were to examine what might actually be effective, though an effectiveness metric would no doubt put a lot a lawyers out of work since they are not very good at delivering a product on time. Why should they be when they can bill by the quarter hour or for every time they pick up the phone?
So let’s forget about whether or not recent activities engaged in by the United States government are legal and let’s instead try to get a handle on whether all the maiming, killing, and wasting of vast sums of money actually produced any positive result. The inevitable question is “Are Americans safer today?” I think most would concede that it is indeed safer to travel by air though the improvement has come about at enormous cost and inconvenience through the creation of a vast bureaucracy that has, ironically, systematically violated the rights of travelers. And it is not very good at its job. Inspectors carrying out audits regularly are able to smuggle weapons onto planes and the few genuine plots that have been thwarted have been foiled by alert citizens.
Apart from that there is little to point to on a national level as travelers report that the American government is now viewed unfavorably in Asia and the Middle East, in countries that once upon a time were very accommodating to US interests. Many foreigners still like Americans as individuals, but the impression is growing that Washington has largely become a reflection of the malignant attitudes of the people, particularly evident in election years when tone deaf expressions like “American exceptionalism” are bandied about and replayed in the overseas media. So the answer to “is one safer?” really depends on where you are and what you are doing.
And then there is the National Security Agency (NSA) spying. In March Director of National Intelligence James Clapper lied to Congress and the people when he asserted that Americans were not being spied on through the existing NSA programs, so the credibility of the government when confronted with its own felonies has to be considered somewhat suspect. But that issue aside, how many terrorist plots against the United States has the vast NSA data mining project prevented? None. General Keith Alexander, head of the NSA, has claimed that 54 terrorist plots had been thwarted in at least twenty countries due to the information provided by the NSA’s PRISM program but he is unusually light on the details of what exactly those plots might consist of. Both he and several supporters in Congress have named only one alleged terrorist who they claim was identified through the program, Najibullah Zazi.
Zazi was an alleged al-Qaeda member living in Colorado who plotted to bomb the New York City subways in 2009 using explosive devices made from hydrogen peroxide, but the Zazi case is itself far from a poster child for the NSA, if one looks at the details. It is being falsely claimed that the government program PRISM intercepted an email from Zazi to a known al-Qaeda website, which led to his identification and eventual arrest. But the fact is that the email address had already been identified by British intelligence as being possibly terrorism connected through a file obtained on a laptop that had been seized in a police operation, information that was passed on to Washington. The correct law enforcement procedure at that point would be to obtain a court order to monitor the site rather than exploiting the blanket authority provided by PRISM, but NSA chose to take the easier route. In short, the US government knew about the website in question but PRISM had nothing to do with the success of the operation.
And then there is the issue of CIA torture. How many terrorists were caught because terrorist suspects were being waterboarded and otherwise abused in Agency secret prisons? None. The exhaustive Senate Intelligence Committee report on CIA torture, which took three years to research, is 6,300 pages long, and is based on review of more than 6 million government documents was endorsed by the Intelligence Committee over a year ago. It has not yet been released to the public due to stalling by CIA, but its conclusions have been leaked. Torture did not produce any information that could not have been obtained by other means and did not result in information that led to discovery of Osama bin Laden. Lying under torture was also prevalent, meaning that it produced a great deal of false information that had to be checked and rechecked. So it was not only a waste of time, but it was actually counterproductive in terms of getting at the truth.
And finally there are the drones and the extrajudicial killing of both American citizens and foreigners. Have they made Americans any safer? Probably not. It is hard to anticipate what a dead Pakistani or Yemeni man might have been planning to do, but evidence suggests that drones produce new terrorists every time they succeed in killing someone. Most recently, a wedding party of 15 was wiped out in Yemen, no doubt endearing the United States to the survivors and their families. If anything, drones have increased the resistance to American policies in the Middle East and South Asia.
So let us consider the opinions of lawyers for what they are. In government, a lawyer exists to enable a bureaucrat to do what he wants while being protected by a legal fig leaf. If one can believe the gobbledygook produced by John Yoo and Jay Bybee, one can believe nearly anything. Have torture, spying on citizens, and assassinations actually accomplished anything? The answer objectively speaking must be no, which means that the government should not be engaging in such activity on behalf of the American people. Mr. Obama might want to make a 2014 New Year’s resolution to that effect.