Now, you couldn’t call me a legal scholar. I’ve never set foot inside a law school, and in 66 years only made it onto a single jury (dismissed before trial when the civil suit was settled out of court). Still, I feel at least as capable as any constitutional law professor of answering such questions.

My answer is this: they are irrelevant. Think of them as twentieth-century questions that don’t 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 a reflection of nostalgia for, or sentimentality about, a long-lost republic. At least in terms of what used to be called “foreign policy,” and more recently “national security,” the United States is now a post-legal society. (And you could certainly include in this mix the too-big-to-jail financial and corporate elite.)

It’s 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 don’t have to be a constitutional law professor to know that its citizens actually exist in a post-legal 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 crimes — the use of torture, the running of offshore “black sites,” the extraordinary rendition of terrorist suspects to lands where they would be tortured, illegal domestic spying and wiretapping, and the launching of wars of aggression — it’s hardly news that no one of the slightest significance has ever been brought to justice. On taking office, President Obama offered a clear formula for dealing with this issue. He insisted that Americans should “look forward, not backward” and turn the page on the whole period, and then set his Justice Department to work on other matters. But honestly, did anyone anywhere ever doubt that no Bush-era official would be brought to trial here for such potential crimes?

Everyone knows that in the United States if you’re a robber caught breaking into someone’s house, you’ll be brought to trial, but if you’re caught breaking into someone else’s country, you’ll be free to take to the lecture circuit, write your memoirs, or become a university professor.

Of all the “debates” 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 hand-picked Justice Department lawyers to create the necessary rationale for what its officials most wanted to do — in their quaint phrase, “take the gloves off.” And those lawyers responded with a set of pseudo-legalisms that put various methods of “information extraction” beyond the powers of the Geneva Conventions, the U.N.’s Convention Against Torture (signed by President Ronald Reagan and ratified by the Senate), and domestic anti-torture 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 “enhanced interrogation techniques.” An example would be waterboarding, which had once been bluntly known as “the water torture” or “the water cure” 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 “demonstrated” 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 U.S. (and here was the realism of the debate that followed), the very issue of legality fell away almost instantly. Newspapers rapidly replaced the word “torture” — when applied to what American interrogators did — with 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 post-legal 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 “actionable intelligence” and so prepare the way for the killing of a bin Laden.

By analogy, it’s 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 hadn’t committed an act as worthy of prosecution as an unsuccessful one caught on the spot? Efficacy wouldn’t matter in a society whose central value was the rule of law. In a post-legal 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 recently offered a post-legal 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) — and won. As Ben Wizner, the American Civil Liberties Union lawyer who argued the case, summed matters up, “To date, every victim of the Bush administration’s torture regime has been denied his day in court.”

To put it another way, every CIA torturer, all those involved in acts of rendition, and all the officials who okayed such acts, as well as the lawyers who put their stamp of approval on them, are free to continue their lives untouched. Recently, the Obama administration even went to court to “prevent a lawyer for a former CIA officer convicted in Italy in the kidnapping of a radical Muslim cleric from privately sharing classified information about the case with a Federal District Court judge.” (Yes, Virginia, elsewhere in the world a few Americans have been tried in absentia for Bush-era crimes.) In response, wrote Scott Shane of the New York Times, the judge “pronounced herself ‘literally speechless.’”

The realities of our moment are simple enough: other than abusers too low-level (see England, Lynndie and Graner, Charles) to matter to our national security state, no one in the CIA, and certainly no official of any sort, is going to be prosecuted for the possible crimes Americans committed in the Bush years in pursuit of the Global War on Terror.

On Not Blowing Whistles

It’s beyond symbolic, then, that only one figure from the national security world seems to remain in the “legal” crosshairs: the whistle-blower. If, as the president of the United States, you sign off on a system of warrantless surveillance of Americans — the sort that not so long ago was against the law in this country — or if you happen to run a giant telecom company and go along with that system by opening your facilities to government snoops, or if you run the National Security Agency or are an official in it overseeing the kind of data mining and intelligence gathering that goes with such a program, then — as recent years have made clear — you are above the law.

If, however, you happen to be an NSA employee who feels that the agency has overstepped the bounds of legality in its dealings with Americans, that it is moving in Orwellian directions, and that it should be exposed, and if you offer even unclassified information to a newspaper reporter, as was the case with Thomas Drake, be afraid, be very afraid. You may be prosecuted by the Bush and then Obama Justice Departments, and threatened with 35 years in prison under the Espionage Act (not for “espionage,” but for having divulged the most minor of low-grade state secrets in a world in which, increasingly, everything having to do with the state is becoming a secret).

If you are a CIA employee who tortured no one but may have given information damaging to the reputation of the national security state — in this case about a botched effort to undermine the Iranian nuclear program — to a journalist, watch out. You are likely, as in the case of Jeffrey Sterling, to find yourself in a court of law. And if you happen to be a journalist like James Risen who may have received that information, you are likely to be hit by a Justice Department subpoena attempting to force you to reveal your source, under threat of imprisonment for contempt of court.

If you are a private in the U.S. military with access to a computer with low-level classified material from the Pentagon’s wars and the State Department’s activities on it, if you’ve seen something of the grim reality of what the national security state looks like when superimposed on Iraq, and if you decide to shine some light on that world, as Bradley Manning did, they’ll toss you into prison and throw away the key. You’ll be accused of having “blood on your hands” and tried, again under the Espionage Act, by those who actually have blood on their hands and are beyond all accountability.

When it comes to acts of state today, there is only one law: don’t pull up the curtain on the doings of any aspect of our spreading National Security Complex or the imperial executive that goes with it. As CIA Director Leon Panetta put it in addressing his employees over leaks about the operation to kill bin Laden, “Disclosure of classified information to anyone not cleared for it — reporters, friends, colleagues in the private sector or other agencies, former Agency officers — does tremendous damage to our work. At worst, leaks endanger lives… Unauthorized disclosure of those details not only violates the law, it seriously undermines our capability to do our job.”

And when someone in Congress actually moves to preserve some aspect of older notions of American privacy (versus American secrecy), as Senator Rand Paul did recently in reference to the Patriot Act, he is promptly smeared as potentially “giving terrorists the opportunity to plot attacks against our country, undetected.”

Enhanced Legal Techniques

Here is the reality of post-legal America: since the attacks of September 11, 2001, the National Security Complex has engorged itself on American fears and grown at a remarkable pace. According to Top Secret America, a Washington Post series written in mid-2010, 854,000 people have “top secret” security clearances, “33 building complexes for top-secret intelligence work are under construction or have been built since September 2001… 51 federal organizations and military commands, operating in 15 U.S. cities, track the flow of money to and from terrorist networks… [and] some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security, and intelligence in about 10,000 locations across the United States.”

Just stop a moment to take that in. And then let this sink in as well: whatever any one of those employees does inside that national security world, no matter how “illegal” the act, it’s a double-your-money bet that he or she will never be prosecuted for it (unless it happens to involve letting Americans know something about just how they are being “protected”).

Consider what it means to have a U.S. Intelligence Community (as it likes to call itself) made up of 17 different agencies and organizations, a total that doesn’t even include all the smaller intelligence offices in the National Security Complex, which for almost 10 years proved incapable of locating its global enemy number one. Yet, as everyone now agrees, that man was living in something like plain sight, exchanging messages with and seeing colleagues in a military and resort town near Islamabad, the Pakistani capital. And what does it mean that, when he was finally killed, it was celebrated as a vast intelligence victory?

The Intelligence Community with its $80 billion-plus budget, the National Security Complex, including the Pentagon and that post-9/11 creation, the Department of Homeland Security, with its $1.2 trillion-plus budget, and the imperial executive have thrived in these years. They have all expanded their powers and prerogatives based largely on the claim that they are protecting the American people from potential harm from terrorists out to destroy our world.

Above all, however, they seem to have honed a single skill: the ability to protect themselves, as well as the lobbyists and corporate entities that feed off them. They have increased their funds and powers, even as they enveloped their institutions in a penumbra of secrecy. The power of this complex of institutions is still on the rise, even as the power and wealth of the country it protects is visibly in decline.

Now, consider again the question “Is it legal?” When it comes to any act of the National Security Complex, it’s obviously inapplicable in a land where the rule of law no longer applies to everyone. If you are a ordinary citizen, of course, it applies to you, but not if you are part of the state apparatus that officially protects you. The institutional momentum behind this development is simple enough to demonstrate: it hardly mattered that, after George W. Bush took off those gloves, the next president elected was a former constitutional law professor.

Think of the National Security Complex as the King George of the present moment. In the areas that matter to that complex, Congress has ever less power and, as in the case of the war in Libya or the Patriot Act, is ever more ready to cede what power it has left.

So democracy? The people’s representatives? How quaint in a world in which our real rulers are unelected, shielded by secrecy, and supported by a carefully nurtured, almost religious attitude toward security and the U.S. military.

The National Security Complex has access to us, to our lives and communications, though we have next to no access to it. It has, in reserve, those enhanced interrogation techniques and when trouble looms, a set of what might be called enhanced legal techniques as well. It has the ability to make war at will (or whim). It has a growing post-9/11 secret army cocooned inside the military: 20,000 or more troops in special operations outfits like the SEAL team that took down bin Laden, also enveloped in secrecy. In addition, it has the CIA and a fleet of armed drone aircraft ready to conduct its wars and operations globally in semi-secrecy and without the permission or oversight of the American people or their representatives.

And war, of course, is the ultimate aphrodisiac for the powerful.

Theoretically, the National Security Complex exists only to protect you. Its every act is done in the name of making you safer, even if the idea of safety and protection doesn’t extend to your job, your foreclosed home, or aid in disastrous times.

Welcome to post-legal America. It’s time to stop wondering whether its acts are illegal and start asking: Do you really want to be this “safe”?

Here’s Santorum:

HH: Now your former colleague, John McCain, said look, there’s no record, there’s no evidence here that these methods actually led to the capture or the killing of bin Laden. Do you disagree with that? Or do you think he’s got an argument?

RS: I don’t, everything I’ve read shows that we would not have gotten this information as to who this man was if it had not been gotten information from people who were subject to enhanced interrogation. And so this idea that we didn’t ask that question while Khalid Sheikh Mohammed was being waterboarded, he doesn’t understand how enhanced interrogation works. I mean, you break somebody, and after they’re broken, they become cooperative. And that’s when we got this information. And one thing led to another, and led to another, and that’s how we ended up with bin Laden.

Santorum is wrong on the facts about Mohammed (more on this below). But what about his assertion about McCain?

Here’s a passage from McCain’s memoir in which he describes being subjected to beatings and telling his interrogators false information in response:

Once my condition had stabilized, my interrogators resumed their work. Demands for military information were accompanied by threats to terminate my medical treatment if I did not cooperate. Eventually, I gave them my ship’s name and squadron number, and confirmed that my target had been the power plant. Pressed for more useful information, I gave the names of the Green Bay Packers offensive line, and said they were members of my squadron. When asked to identify future targets, I simply recited the names of a number of North Vietnamese cities that had already been bombed.

I was occasionally beaten when I declined to give any more information. The beatings were of short duration, because I let out a hair-raising scream whenever they occurred.

In one four-day period, McCain says he was beaten “every two to three hours,” and his arm was broken and ribs cracked. So if nothing else, this is a man who can be said to know how enhanced interrogation works. (Santorum, as far as I can tell, has never been tortured, nor did he serve in the military.)

Khalid Sheik Mohammed, like McCain, also gave bad information after being tortured — a point that McCain himself made in a recent Op-Ed:

“In fact, the use of ‘enhanced interrogation techniques’ on Khalid Sheik Mohammed produced false and misleading information. He specifically told his interrogators that Abu Ahmed had moved to Peshawar, got married and ceased his role as an al-Qaeda facilitator — none of which was true,” McCain wrote. “I know from personal experience that the abuse of prisoners sometimes produces good intelligence but often produces bad intelligence because under torture a person will say anything he thinks his captors want to hear — true or false — if he believes it will relieve his suffering.”

(Hat tip: Elon Green)

UPDATE: Greg Sargent asks McCain’s spokeswoman for a response to Santorum, and she emails a single word: ”Who?”

In a Washington Post op-ed on Thursday, McCain pushed back powerfully against those on the right, such as former Bush administration Attorney General Michael Mukasey, who suggest that information obtained through torture helped American forces to pinpoint bin Laden.

McCain writes:

I asked CIA Director Leon Panetta for the facts, and he told me the following: The trail to bin Laden did not begin with a disclosure from Khalid Sheik Mohammed, who was waterboarded 183 times. The first mention of Abu Ahmed al-Kuwaiti — the nickname of the al-Qaeda courier who ultimately led us to bin Laden — as well as a description of him as an important member of al-Qaeda, came from a detainee held in another country, who we believe was not tortured. None of the three detainees who were waterboarded provided Abu Ahmed’s real name, his whereabouts or an accurate description of his role in al-Qaeda. In fact, the use of “enhanced interrogation techniques” on Khalid Sheik Mohammed produced false and misleading information.

He goes on to make a more personal point:

I know from personal experience that the abuse of prisoners … often produces bad intelligence because under torture a person will say anything he thinks his captors want to hear — true or false — if he believes it will relieve his suffering. Often, information provided to stop the torture is deliberately misleading.

As is well known, the senator was a prisoner of war in North Vietnam for more than five years, during which time he suffered both physical and psychological torture. In an account published in U.S. News in 1973, he explained that he had provided a false confession himself after reaching his “breaking point:”

They wanted a statement saying that I was sorry for the crimes that I had committed against North Vietnamese people and that I was grateful for the treatment that I had received from them. …

I held out for four days. Finally, I reached the lowest point of my 5½ years in North Vietnam. I was at the point of suicide, because I saw that I was reaching the end of my rope.

I said, O.K., I’ll write for them.

They took me up into one of the interrogation rooms, and for the next 12 hours we wrote and rewrote. The North Vietnamese interrogator, who was pretty stupid, wrote the final confession, and I signed it. It was in their language, and spoke about black crimes, and other generalities. It was unacceptable to them. But I felt just terrible about it. I kept saying to myself, “Oh, God, I really didn’t have any choice.” I had learned what we all learned over there: Every man has his breaking point. I had reached mine.

But he also went further, suggesting that the Navy SEALs sent to Abbottabad were not given the option of taking bin Laden alive. “If they were going in with no options other than to kill [bin Laden], then I do think that’s a problem — and that’s what it’s starting to sound like from the information that’s coming out of Washington right now.”

“It does seem from the initial reports that a deliberately small force was sent in and there wasn’t a lot of thought given to the idea of capturing him.”

“They don’t want to capture high-level al-Qaida leaders,” Yoo said of Obama’s administration. Watch video of the interview here:

In his Washington Post piece, Yoo argued that the death of bin Laden represented the squandering of “one of the most valuable intelligence opportunities since the beginning of the war [on terror].”

Yoo’s stand on “enhanced interrogation techniques” is well-documented, so his argument that bin Laden would have been more useful alive (and talking) than dead was a relatively predictable one. But toward the end of his piece, Yoo introduced a more provocative hypothesis: the idea that President Obama would rather just kill terrorists than “wade through the difficult questions raised by their detention.”

Yoo wrote that “the demands of the real world” have “forced Mr. Obama to give up his law-enforcement approach to terrorism” since the heady days of the 2008 campaign, when then-candidate Barack could make optimistic promises about closing Guantánamo and trying terrorists in the courts. Indeed, he speculated that Obama, disheartened by his progress in these areas over the past two years, would simply rather not deal with all the challenges associated with a terrorist’s capture — choosing, instead, to have special forces assassinate his extremist enemies.

But even if it were the case that valuable information were obtained during or after the use of torture, what would it prove? Nobody has ever argued that brutality will never produce truthful answers. It is sometimes the case that if you torture someone long and mercilessly enough, they will tell you something you want to know. Nobody has ever denied that. In terms of the tactical aspect of the torture debate, the point has always been — as a consensus of interrogations professionals has repeatedly said — that there are far more effective ways to extract the truth from someone than by torturing it out of them. The fact that one can point to an instance where torture produced the desired answer proves nothing about whether there were more effective ways of obtaining it.

This highlights what has long been a glaring fallacy in many debates over War on Terror policies: that Information X was obtained after using Policy A does not prove that Policy A was necessary or effective. That’s just basic logic. This fallacy asserted itself constantly in the debate over warrantless surveillance. Proponents of the Bush NSA program would point to some piece of intelligence allegedly obtained during warrantless eavesdropping as proof that the illegal program was necessary and effective; obviously, though, that fact said nothing about whether the same information would also have been discovered through legal eavesdropping, i.e., eavesdropping approved in advance by the FISA court (and indeed, legal eavesdropping [like legal interrogation tactics] is typically more effective than the illegal version because, by necessity, it is far more focused on actual suspected Terrorism plots; warrantless eavesdropping entails the unconstrained power to listen in on any communications the Government wants without having to establish its connection to Terrorism). But in all cases, the fact that some piece of intelligence was obtained by some lawless Bush/Cheney War on Terror policy (whether it be torture or warrantless eavesdropping) proves nothing about whether that policy was effective or necessary.

And those causal issues are, of course, entirely independent of the legal and moral questions shunted to the side by this reignited “debate.” There are many actions that the U.S. could take that would advance its interests that are nonetheless obviously wrong on moral and legal grounds. When Donald Trump recently suggested that we should simply take Libya’s oil and that of any other country which we successfully invade and occupy, that suggestion prompted widespread mockery. That was the reaction despite the fact that stealing other countries’ oil would in fact produce substantial benefits for the U.S. and advance our interests: it would help to lower gas prices, reduce our dependence on hostile oil-producing nations, and avoid having to degrade our own environment in order to drill domestically. Trump’s proposal is morally reprehensible and flagrantly lawless despite how many benefits it would produce; therefore, no person of even minimal decency would embrace it no matter how many benefits it produces.

Exactly the same is true for the torture techniques used by the Bush administration and once again being heralded by its followers (and implicitly glorified by media stars who keep suggesting that they enabled bin Laden’s detection). It makes no difference whether it extracted usable intelligence. Criminal, morally depraved acts don’t become retroactively justified by pointing to the bounty they produced.

* * * * *

It was striking to note in yesterday’s New York Times the obituary of Moshe Landau, the Israeli judge who presided over the 1961 war crimes trial of Adolf Eichmann. It’s a reminder that when even the most heinous Nazi war criminals were hunted down by the Israelis, they weren’t shot in the head and then dumped into the ocean, but rather were apprehended, tried in a court of law, confronted with the evidence against them for all the world to see, and then punished in accordance with due process. The same was done to leading Nazis found by Allied powers and tried at Nuremberg. It’s true that those trials took place after the war was over, but whether Al Qaeda should be treated as active warriors or mere criminals was once one of the few ostensible differences between the two parties on the question of Terrorism.

Speaking of which: I know that very few people have even a slight interest in the unexciting, party-pooping question of whether our glorious killing comported with legal principles, but for those who do, both The Guardian and Der Spiegel have good discussions of that issue.

UPDATE:  Donald Rumsfeld repudiated one of the very few honest moments in his public career by reversing himself, now claiming that “enhanced interrogation” did indeed play a “critically important role” in the U.S.’s ability to find bin Laden.  CIA Director Leon Panetta today said that it is an “open question” whether waterboarding produced important intelligence in finding bin Laden.  There’s clearly an attempt underway by the political (and media) class to rehabilitate the Bush torture regime, which is why it is more important than ever to make clear that torture is never justifiable no matter what it produces.