In January 2009 the Government Accountability Office (GAO) delivered to Congress a report entitled “Homeland Defense: Actions Needed to Improve Air Sovereignty Alert Operations to Protect U.S. Airspace.” The Air Sovereignty Alert program had been designed shortly after 9/11 to protect the U.S. population from air threats originating inside the country. The program had arranged for eighteen air bases to be on “steady—state” ground alert with fighter jets ready to lift off at any moment. The Air Force had been given primary responsibility for enacting the program, which was presided over by the commander of NORAD.

But the GAO inquiry—which reviewed Air Sovereignty Alert Operations through September 2008—found that many parts of the program had never been put into effect. The Air Force had abstained from carrying out the 140 directives it had been assigned at the program’s outset, directives jointly formulated by NORAD, the Department of Defense, and the Air Force. Not only had the Air Force neglected to evaluate the readiness of airmen and equipment, it had not even “formally assigned Air Sovereignty Alert as a mission to the units and included it on the units’ mission lists.”1 The report also found that NORAD had carried out almost no “risk assessment” studies of the eighteen sites.

Responding to inquiries from the GAO, the Air Force explained that it had neglected the program because it had given priority to its overseas obligations. NORAD attributed its own neglect to the fact that no explicit requirement for evaluating steady—state capabilities had been placed on it by the Department of Defense.

Salus populi—the well—being of the people—has since antiquity been understood as the central justification for having a government and for having a military. On September 11, 2001 the most expensive military in the world (unpracticed in defending the homeland) failed to protect the American people or even its own headquarters. Immediately following 9/11 and repeatedly in the years that followed, the Department of Defense identified the safety of the population as its primary aspiration.2 But the 2009 Air Sovereignty Alert Report suggests that foreign wars were still its major concern.3

Between 2001 and 2008 (the period of the Bush-Cheney presidency), the safety of the people appears seldom to have been the central mission of the U.S. Government. The indifference to air sovereignty (following a devastating attack from the air) is just one cinematic clip from a film that played before the population’s eyes for eight years. Day after day the country watched coastal waters rise around a stranded population and saw young soldiers sent from home without body armor or vehicle armor and return in coffins that were not allowed to be photographed.4 A recent instance of this disregard is the failure last Christmas of Homeland Security to notice a Detroit—bound passenger even though his father had reported his dangerous intentions and he was traveling across three continents, on a cash ticket, with no luggage other than the bomb strapped to his waist.

But my main focus here is not all those protective actions that the government failed to carry out, actions that would have been lawful and noble responses to the revelations of 9/11. It is instead the actions the government did carry out, relentless and ruthless acts of lawbreaking, actions designed to extend executive power, actions decoupled from (and steady degradations of) the aspiration encoded in salus populi.

Equally important is the idea of the sovereignty of the people, who, even under a government of misrule, retain the power to validate the rule of law: the population can refuse to participate in illegal acts even when instructed by government officials to do so; the population can also work to ensure the prosecution of government leaders, if their illegal acts reach the level of perfidy, treachery, and war crime as defined by constitutional law, international law, and our own Air Force, Army, and Navy handbooks.

The first path of popular sovereignty—the refusal to assist illegal acts—was visible when villages, towns, and cities across the United States went on record saying they would not uphold the Patriot Act and described the locations within the Constitution they perceived to be at risk: among them, the First Amendment, the Fourth Amendment, the Fifth Amendment, the Eighth Amendment.

Abridgements of any one of these would be a cause for alarm. But at risk was not just any one location within the Constitution but rather a central principle that radiates throughout its structure: the requirement that a government be transparent to its people, the people opaque to their governors. (For example, the ballot a citizen casts for a senatorial candidate is secret unless the citizen herself chooses to reveal it; she also chooses the persons to whom any such revelation is made; in contrast, every vote a senator casts in Congress must be open and on record, legible to the entire population.) The Bush administration sought to turn this structural principle inside out: through various forms of surveillance, the population would be unknowingly exposed to its governors, whose own actions would remain hidden from view.

Again in the international realm, large structures—even the foundation of law itself—were violated. The prohibition of torture is not one important law among many important laws: it is the philosophic foundation on which all other laws are created and without which our confidence in all other laws wavers.5

Exactly how does an extra-legal universe get created? First, a substantial head start on the building project is achieved if the architect already thinks of himself as an extra—legal agent: if a given law is X and the president announces “not-X,” the law of X is cancelled just by virtue of that speech act. The president may announce that laws of long standing, such as the Geneva Conventions, are not in effect. He may instead take a law that has recently come into being through his own signature appended to Congressional legislation, and through a not—X signing statement eliminate the thing he a moment ago created.

Especially helpful in this owning—while—disowning slide between X and not—X is any offshore geography leased but not owned (Guantánamo), or leased from a country that has itself leased it from a third country (Diego Garcia, leased by Britain from Mauritius, and by the United States from Britain); supremely useful is a piece of ground that is itself in motion (a prison ship, a rendition plane), since that is reliably off—the—shore of even the offshore territories and not even specifiable in terms of time zone.6 Remarkably, these offshore territories are at once within the reach of the executive and not within reach of the judiciary, and thus they have just the kind of X/not—X structure—the United States, not the United States—that is needed for constructing an extra—legal universe. The architect will need assistants: if one group is too constrained by laws (as the military usually are), there are others less constrained (the CIA), and still others who face no known legal constraints whatsoever (Blackwater7).

The construction of a parallel universe requires that the architect have ample room in which to move. Open—ended spatial zones such as the geographical ones just described can also be brought into being by rocking back and forth between two legal categories. Are the terrorists criminals (which would obligate us to pursue them as individuals using criminal law) or state enemies (to be confronted through war)? No need for the architect to choose: he maximizes his freedom by initiating war against two states while designating the villains “non-state actors” ineligible for protection under the laws of war. We thus fight a not—war war.

Small crevices in time also open into new spaces: a seven—day delay in notifying someone whose house has been searched is a window into many previously unenterable rooms; “unlimited detention” without charge of any person named by an executive officer as a terrorist suspect provides unexplored continents of executive maneuverability. Even the weather in this new extra—legal universe will have puzzling features. Would any sensible person complain if it were reported (as it frequently has been) that prisoners were subjected to “air conditioning”? But if a person is subjected to prolonged sleep deprivation, the brain looses its capacity to regulate core body temperature; applications of cold water or cold air, coupled with other techniques, can become lethal.

Even in imagining the best possible outcome—a decision by the president to stop torture, close Guantánamo, get our soldiers out of Iraq, shift the trials of detainees to federal courts—the rule of law will not be restored until those officials who licensed torture are prosecuted. A country that tortures when it has a president who believes he is permitted to torture and then abstains from torture when it has a president who recognizes that torture is unconditionally prohibited continues to be a country living under the rule of men, rather than the rule of law; for it is allowing its moral fate to be determined by the personal beliefs of its rulers.

Righting a wrong is especially difficult if the wrong has been initiated by a president. Any occupant of the White House has tremendous charisma, and therefore a tremendous capacity to miseducate. Under the Bush-Cheney administration, some people came to believe that the rules about torture are flexible, conditional, revisable. They were wrong. That damaging act of miseducation has now almost been corrected. But we have also been miseducated into believing that the prosecution of the officials who sanctioned torture is an option, rather than, as is actually the case, a requirement.8 Both the Geneva Conventions and the Convention Against Torture make prosecution obligatory. When we hear voices coming from inside and from outside the country9 urging that the United States must prosecute, we may mistakenly hear the “must” as expressing the passionate belief of the speaker. It instead reports the legal status of the requirement: like the prohibition on torture, the obligation to prosecute is absolute.

As we saw with the actions of ordinary citizens on Flight 93 who in 23 minutes deliberated, then voted, then acted to bring down their plane before it reached Washington and again with the passengers on the Detroit flight on Christmas Day, the population has the capacity to defend the country, defensive actions that must now be directed not against invading terrorists but against executive officers who for eight years assaulted the country’s laws and by licensing torture, entered an area of wrongdoing as grave as could ever be accomplished by a foreign enemy.

1) U.S. Government Accountability Office on Homeland Defense, “Homeland Defense: Actions Needed to Improve Management of Air Sovereignty Alert Operations to Protect U.S. Airspace,” 111th Cong., 2d sess., 2009, GAO-09-184, pp. 7-8.

2) On September 14, 2001, the Department of Defense introduced its new homeland air surveillance program, Operation NOBLE EAGLE. The Department also identifies the protection of the homeland as its primary goal in its 2005 “Strategy for Homeland Defense and Civil Support” and again in its 2008 “National Defense Strategy” (GAO-09-184, p. 11).

3) When the GAO showed the Department of Defense a draft copy of its report, the Department at once concurred with the central recommendation “to implement”—however belatedly—“[Air Sovereignty Alert] as a steady-state mission” (GAO-09-184, p. 35). But the Pentagon abstained from endorsing specific recommendations for bringing about that implementation and remained silent on the question of a timetable. The GAO report accordingly ends with an expression of dismay: “The Department of Defense’s response further demonstrates the lack of consistency and clarity of concepts, definitions, and terms surrounding air sovereignty alert (ASA) we identified in our review” (GAO-09-184, p. 48).

4) In contrast to our unshielded soldiers, Dick Cheney each day traveled the residential streets of Washington, D. C. “chauffeured in an armored motorcade” (Mayer, J. 2008. The Dark Side: the Inside Story of How the War on Terror Turned into a War on American Ideals. New York: Doubleday. p. 5).

5) On torture marking the boundary between the legal framework of civilization and fraudulent forms of power, see Scarry, E. 1985. The Body in Pain. Oxford: Oxford University Press, pp. 38-45. For a key recent formulation of the foundational role of the prohibition on torture see Waldron, J. 2008, “Torture and Positive Law: Jurisprudence for the White House.” Columbia Law Review 105 (6): p. 618 f and especially p. 738.

6) George Bush began to use “offshore” geography even before 9/11. See David Barstow and Don Van Natta, “How Bush Took Florida: Mining the Overseas Absentee Vote,” The New York Times, July 15, 2001, which documents the way ballots with late postmarks (or even no postmarks) from military ships and overseas bases were accepted if arriving late in Republican counties in Florida, and rejected if arriving in Democratic counties. The Times devoted more than five full pages to the microscopic research that reviewed the postmarks on thousands of offshore ballots and built an elaborate database.

7) For an account of the legal immunity of Blackwater forces in Iraq and other geographies, as well as their license to bypass all chains of military and civilian command, see Scahill, J. 2007. Blackwater: the Rise of the World’s Most Powerful Mercenary Army. New York: Nation Books. The company reported directly to the White House (pp. 18, 301, and passim).

8) In the United States, prosecutors ordinarily do have great discretionary power over whether or not to prosecute a crime. Torture is an exception.

9) For example, the November 2009 statement from the International Center for Transitional Justice. (Caryolin Patty Blum, Lisa Magarrell, Marieke Wierda, “Prosecuting Abuses of Detainees in U.S. Counter-terrorism Operations.”)

This essay is adapted from Rule of Law, Misrule of Men