In pursuit of terrorists, White House tramples Constitution


SEATTLE -- For years, all the intelligence agencies have been tussling with the American Civil Liberties Union over documents about the innovative Bush administration policy of locking people up in foreign countries where they can be tortured without the inconvenience of anyone knowing about it or bringing up, you know, like, the Constitution.

It is not yet clear - though there is little reason for optimism - about whether the courts will let them get away with it, but the official position of the executive branch under President Bush is that the U.S. government can lock you up anywhere in the world, torture you and tell no one about it.

And if someone does find out and starts talking trash like "habeas corpus" or "Fourth Amendment," too bad: It's all OK under the president's inherent powers as commander in chief. Congress - unknown to Congress - approved it all in its resolution shortly after 9/11 urging the president to fight terrorism. And the president deputized the CIA and other agencies to go forth and use this authority, in documents that you can't have and that may or may not exist.

In a twist fully worthy of Kafka, or at least Joseph Heller (Catch-22), the very suspicion that bad things are going on is a reason you can't find out. As a CIA legal document explains, "CIA confirmation of the existence of [evidence] would confirm a CIA interest in or use of specific intelligence methods and activities." After all, the agency gaily reasons, the "CIA would not request ... authorization from the president for intelligence activities in which it had no interest."

In another federal court, the ACLU has been arguing with the National Security Agency about the wiretapping of international phone calls to and from the United States. The 1978 intelligence reform law made clear as cellophane that these agencies had no authority to wiretap citizens of this country and in this country without permission from a judge.

So clear, in fact, that the president doesn't deny that his wiretapping program violates the 1978 law. Instead, he says that Congress overruled that law in its 2001 resolution to oppose terrorism. That, plus the usual inherent powers of the presidency.

What's more, government lawyers say, they can prove all this. Or at least they could, but they can't, because the evidence must remain secret for national security reasons.

And what are those reasons? Well, the reasons why the reasons why the program is OK are also secret. And without this evidence, there cannot be a trial. Sorry.

It's true that you and I are not being grabbed on the streets and sent to a former secret police torture-training camp in Godforsakistan.

Nor is the government eavesdropping on your international phone calls, or mine. Probably.

Because I like you, I'll forego the usual ominous warning about how they came after him and then they came after her and then they came after you.

I'll even skip the liberal sermonette about how even bad guys have rights.

But your rights and mine are not supposed to be at the whim of the government, let alone of the president. They are based in the Constitution, and the willingness of those we put in power to obey it - even as interpreted by judges they may disagree with.

The most distressing aspect of this story is the apparent attitude of our current rulers that the Constitution is an obstacle to be overcome - by conducting dirty business abroad or by wildly disingenuous interpretations of laws and the Constitution.

Just look at what these supposed worshippers at the shrine of "strict constructionism" and "original meaning" have done to the 2001 anti-terrorism resolution.

Did any senator who voted for this resolution have any idea that he or she was, in essence, voting to repeal all the protections for individuals against government agency abuse that Congress enacted in 1978?

That there are countries in this world where the government can torture people in secret and without fear of courts is supposed to be a tragedy - not a convenience.

Michael Kinsley is a social commentator.

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