How Many of Our Constitutional Rights Might We Have Lost?

Last Monday’s disclosure of the post- 911 policies of the Bush administration suggests how easily and quickly our cherished conventions can be put at risk. And the revelation that the CIA destroyed 92 tapes of torture sessions reveals how much could be [and has been?] kept from the public. That these things have come to light is a great gift to the American poeple, for only by the open exposure of what our government does can the public effectively and wisely exercise its responsibility to hold its leaders accountable.

Here are some of the most egregious policies that were formally promoted within the Bush White House [but not made public at the time]:
• The president could use the nation’s military within the United States to combat terrorism suspects and to conduct raids without obtaining search warrants. [Formally presented on Oct. 23, 2001 by John C. Yoo, a deputy assistant attorney general in the Office of Legal Counsel, and Robert J. Delahunty, a special counsel in the office.]
• The president could unilaterally abrogate foreign treaties, ignore any guidance from Congress in dealing with detainees suspected of terrorism, and conduct a program of domestic eavesdropping without warrants.
• “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” [Indeed, …] “the current campaign against terrorism may require even broader exercises of federal power domestically.”
• “The law has recognized that force (including deadly force) may be legitimately used in self-defense, …. Therefore any objections based on the Fourth Amendment’s ban on unreasonable searches are swept away, … since any possible privacy offense resulting from such a search is a lesser matter than any injury from deadly force.
• [Memo of Sept. 25, 2001:] [J]udicial precedents approving deadly force in self-defense could be extended to allow for eavesdropping without warrants.
• [Memo of March 2002:] Congress lacked any power to limit a president’s authority to transfer detainees to other countries [“rendition” that was widely used by Mr. Bush and by Clinton before him].
• Congress had no right to intervene in the president’s determination of the treatment of detainees [subsequently invalidated by the Supreme Court].

These judgments were officially repudiated by Steven G. Bradbury, the last head the Office of Legal Counsel under Bush, five days before the end of the Bush term. He did so in order to acknowledge in writing “the doubtful nature of these propositions.”

Connect these policy statements with the news that the CIA had and destroyed 92 videotapes of the harsh interrogation of two Qaeda suspects in C.I.A. detention. The tapes were destroyed at the very time that Congress and the courts were intensifying their scrutiny of the agency’s detention and interrogation program.