The current of awkward revelations concerning the clandestine or publicly misrepresented practices of the present and recent American administrations goes on. A long exposition in the New York Times and International Herald Tribune from July 8 concerns a widely unknown American secret court dealing with intelligence actions. The court decides whether certain actions are or are not legal, issues its rulings in secret and creates a new body of American law (or lawlessness, when it contravenes established public and constitutional law, which it is accused of doing). This is the Foreign Intelligence Surveillance Court. The justification for this secret court—as is usual in the development of 20th century secret police states—is national security. The American case differs from the prominent earlier examples of such states in Bolshevik Russia and Nazi Germany, in that this American secret court operates behind a screen of what seem to be guilty obfuscations, which their authors know will not stand up to serious examination. Such obfuscations simply provide the rationales for concealment of this legal mechanism from public, press, and all but a certain number of congressmen and senators, all willing to provide the simulacrum of oversight because of their personal commitment to the belief that the United States makes itself secure by walking on what former Vice President Richard Cheney melodramatically described as “the dark side.” It is the public who gets left in the dark about this, so as to protect the system. The “dark side” of international combat or security operations, such as political assassinations, kidnappings, use of torture, or secret and illegal sequestrations or imprisonments, has on the whole seemed to have produced more American national humiliation, disrepute,and political blowback than advantage. It also is not entirely new; it is a characteristic of bureaucracies. When Lyndon Johnson became president in 1963, he said that he found the United States operating a “Murder Incorporated” in the Caribbean, in connection with Washington’s attempt to destroy the Fidel Castro government in Cuba. Senate hearings followed, as did disgrace and frowning editorials in the press. But today, here we are again building a bigger and better international apparatus of illegality, subversion of international law and clandestine grotesqueries than ever before, as well as the judicial apparatus of a secret state. And if anyone complains among our “allies” or satellite nations, which the West Europeans seem to have become, our ambassador rings up and has a word with them, and then they grovel.
Why should this be so in an American nation historically and constitutionally committed to the rule of law? In which most of the temporarily appointed officers of government in such an administration as that of President Barack Obama (sometime lecturer in constitutional law at the University of Chicago), and many members of the permanent civil service of American government, are usually lawyers, while lawyers make up the single largest professional group in the United States Congress, as well as in a great many state legislatures.
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