The president's underlings compile their proposed lists of who should be executed, and the president – at a charming weekly event dubbed by White House aides as «Terror Tuesday» – then chooses from «baseball cards» and decrees in total secrecy who should die. The power of accuser, prosecutor, judge, jury, and executioner are all consolidated in this one man, and those powers are exercised in the dark.
– Glenn Greenwald (1)
Even the most casual observer of international affairs since the turn of the century is familiar with the willingness of the government of the United States to bypass international law under circumstances it alone determines. The war of aggression launched against Iraq under false pretenses ten years ago this month may be the first example that comes to mind, but there are numerous others… Even before the terrorist attacks of 9/11, for instance, the George W. Bush administration declined to be a party to the newly founded International Criminal Court, and to this day the US will not permit extradition of its officials to the ICC under any circumstances. Nor will the US allow extradition of US officials to individual nations, even to long-standing allies, even when that ally's courts have tried the officials in absentia and found them guilty – which Italy found out over the last few years as it was convicting 23 CIA operatives. (2) As we shall see below, disaffection with America's disregard for international law has intensified recently, enough to force discussion of some of the relevant issues in official circles in Washington. At the same time, information is now emerging about secret programs that not only promise to add new and very dangerous instruments with which America can pressure other countries, but are being framed in such a way as to bypass international law.
During the last few years of George W. Bush's presidency, awareness of the hypocrisy of the US in trumpeting principles like «the rule of law» around the world while it ran roughshod over those principles (most sensationally by practicing torture on suspected terrorists at secret «black sites» in foreign countries) percolated deeply into the American population, and had a lot to do with President Obama's victory over the Republican Party in 2008. Obama insisted that he would lift the veil of secrecy from government and would honor the rule of law. More specifically, he would shape foreign policy in accord with international law, and would do more to enforce laws domestically as well, by holding rogue US officials and corporations accountable for crimes. The faintness of Obama's progress on all of these counts over the course of his first four year term in office spurred dismay and outrage on the critical Left, but until recently an alliance between the political establishment, business interests, and the mass media has largely suceeded in burying the issue. Big business craves power, after all, not accountability before the law (just ask officers atop the leading banks, flocks of whom would have faced criminal prosecution for their transgressions if the Department of Justice, the FBI, et al. functioned as they did as recently as the Reagan years). (3) The Republican establishment, for its part, has plenty to fear from legal accountability, given the behavior of the Bush regime, and has been quick to single out Obama's continuation of The War on Terror in all its extra-legal glory as its favorite feature of his leadership. (4)
Public debate concerning the sanctity of law has risen back to the fore on account of three developments. First, on January 22nd a prominent television report summarized abundant evidence to damn Obama's Department of Justice for declining to prosecute Wall Street bigwigs for criminal transgressions contributing to the world financial crisis of 2008. (5) Demonstration of the fact that the rich and powerful are immune to prosecution struck an already raw nerve, and within one day it emerged that the official who ought to have been leading such prosecutions would be resigning (Lanny Breuer, Assistant Attorney General of the Criminal Division, Department of Justice). (6) Second, an NBC reporter posted online a memo that had leaked from the White House, revealing that Obama's Department of Justice has secretly crafted legal justification for fantastic assassination powers. (7) The president now enjoys the right to order the assassination of anyone the government merely suspects of involvement with terrorism (no proof or judicial process required), even if the target might be capturable alive, even absent any imminent threat, with no Congressional or judicial oversight, with no accountability to anyone. Before he became president, Obama and others in his administration, including new Secretary of State John Kerry, explicitly rejected analogous arguments from the George W. Bush administration, when it had its in-house lawyers construct convenient «national security» justifications for the executive branch to eavesdrop on, detain, and even torture anyone suspected of a relationship to terrorism. (8) Third, the resignation of CIA Director David Petraeus at the end of 2012 has forced Obama to nominate a replacement, and his choice, John Brennan, is closely associated with CIA torture programs. The Senate hearings required to ratify Brennan's nomination have put a spotlight on the usurpation of power in recent years by the executive branch in general, and the CIA in particular (formally, the president is not allowed to make war without authorization from Congress, and assassination and torture are illegal).
A Post-Legal World?
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».
– Tom Engelhardt (9)
So, as debates over reining in executive power get underway in Washington, can the world expect any tempering of what has come to be called «the imperial presidency»? Well, to begin with, as these debates have taken shape, it has become clear that no one is concerned about holding the US to standards of international law. The discussion is entirely confined to American law. Thus, drone assassinations conducted in foreign nations are an issue in American politics merely because the Constitution obliges the president to seek authorization from Congress before making war, not because they violate the rights of other countries. And even then, the drone attacks are only an issue in so far as the targets are Americans, implying that non-Americans' lives are less valuable (a point Archbishop Desmond Tutu hammered home in a recent editorial (10)).
Despite Washington's lamentable indifference to the standards of international law, Congress could still move to reestablish control over the executive branch, to curb the power of the president to unleash war, assassination, torture, etc. around the world. Unfortunately, the prospects for modern US Congresses to undertake significant action on any subject is remote (the intransigence of the Republican Party, captive to the interests of its super-rich sponsors, is perhaps the primary reason for this, but there are a number of others). Worse still, the obsequiousness of US courts to the executive branch has reached an alarming stage. Whenever Congress has been inclined to assert control over the executive branch in recent years, however modestly, the federal courts have blindly protected the executive. The atrophy of the independence of the judicial branch of government in the US became especially clear to observers when an Italian court convicted that nation's former intelligence chief and sentenced him to 10 years in prison for having played a role in a CIA kidnapping case inside Italy in 2003. As Glenn Greenwald put it: «The contrast {of Italy's judiciary} with the US federal judiciary is stark. American federal judges have proven themselves indescribably servile to the US government. It is impossible to imagine American federal judges – except in the most abberational and quickly-overturned instances — defying the wishes of the US government when it comes to claims of national security and secrecy». (11)
It appears that the imperial presidency is here to stay, and that the US has now entered a «post-legal world», in the phrasing of Tom Engelhardt, cited above. This is a deplorable outcome for the American experiment in republican government, and must be unsettling for the rest of the world, since it leaves peace and stability subject to the caprice of US Presidents. That conclusion may sound grandiose, at a time when America has wound down hostilities in Iraq, and is preparing to leave Afghanistan. But the world would be wise to pay attention to accumulating evidence regarding the Pentagon's programs to develop powerful means of conducting cyber war, and note that the Obama administration has every intention of lodging the resulting weapons in the hands of the president alone.
The Ultimate Weapon?
«From his first months in office, President Obama secretly ordered increasingly sophisticated attacks on the computer systems that run Iran's main nuclear enrichment facilities, significantly expanding America's first sustained use of cyberweapons…. Mr. Obama, according to participants in the many Situation Room meetings on Olympic Games {the code name for the cyber attack on Iran}, was acutely aware that with every attack he was pushing the United States into new territory, much as his predecessors had with the first use of atomic weapons in the 1940s, of intercontinental missiles in the 1950s and of drones in the past decade».
– David E. Sanger, in a New York Times expose of Obama's cyber warfare operations against Iran (12)
Three weeks ago, it emerged that the Department of Defense is committed to quintupling the resources assigned to its Cyber Command Unit over the next several years. (13) The stated goals are defense-related, naturally, but no one should have any doubts that the Cyber Command Unit will be perfecting numerous methods of cyber aggression. The US has not demonstrated that it is facing credible cyber threats, and it is the first nation (together with Israel) to have conducted cyber aggression (against Iran, with the complex of computer worms called Stuxnet). Already in 2003 the Pentagon set itself an explicit goal to «…provide maximum control of the entire electromagnetic spectrum», so as to have the capability to «disrupt or destroy the full spectrum of globally emerging communications systems, sensors, and weapons systems dependent on the electromagnetic spectrum». (14)
While the US is developing ever more potent cyber weapons that can instantly cripple foes anywhere in the world, President Obama is fast at work on ensuring that the prerogative to use such weapons shall lie in the hands of the president alone, with no transparency, and no oversight or accountability from any branch of the US government, nor any international entity. (15) Information has leaked confirming that secret in-house White House legal memos allow the president to unleash cyber strikes whenever and wherever he chooses, whether or not the US is formally at war with the target, whether or not the US is in any immediate danger. Further, the legal memos and the rules they set forth to regulate cyber warfare will not be released to the public, nor even to Congress. And, as an anonymous official revealed, «There are levels of cyber-warfare that are far more aggressive than anything that has been used or recommended to be done». (16) Is it a good idea for the world order to have unaccountable US presidents possessing the option to paralyze instantly anyone they choose?
