From The New York Times

Taking Our Liberties

March 9, 2002


BOSTON - The war against terrorism will go on indefinitely, President Bush has warned, seeking the enemy around the world. Already American forces are committed to the Philippines, Georgia and Yemen. Iraq may be next. Heavy fighting continues in Afghanistan.

War without end is likely to have - indeed is already having - profound consequences for the American constitutional system. It tends to produce the very thing that the framers of the Constitution most feared: concentrated, unaccountable political power.

The framers sought in three ways to prevent that concentration. They divided power in the federal government, so that one branch could check another if it grew too mighty. They made government accountable to the people, who, in James Madison's words, had "the censorial power . . . over the government." And, in the first 10 amendments to the Constitution, they guaranteed specific rights like freedom of speech and due process of law.

All three of those constitutional bulwarks against concentrated power are now threatened.

War inevitably produces an exaltation of presidential power. The president is commander in chief of the armed forces - a distinctive feature of the American system - and in wartime people tend to fall in behind the commander. The horror of what happened on Sept. 11 intensifies that instinct. President Bush's high level of public support is not surprising.

The danger lies in political use of that wartime popularity. Last week the Senate majority leader, Tom Daschle, offered a first mild question about President Bush's plans to carry the war around the world. He was rebuked by the Republican leader, Trent Lott.

"How dare Senator Daschle criticize President Bush while we are fighting our war on terrorism?" Senator Lott asked. His crude attack showed how hard it will be to maintain the Constitution's premise of accountable government, subject to questioning and criticism, during a war without visible end.

Secrecy is a second threat to the constitutional premise. The Bush administration is the most secretive Washington has seen in years - and intensely so in the Afghanistan war. The press has been kept at a distance much of the time. In these conditions, how can Congress and the public perform their constitutional function of holding the government accountable?

The record since Sept. 11 raises grave civil-liberties questions. Most attention has been paid to President Bush's order calling for military tribunals to try any noncitizen suspected of terrorism - an order so thoughtlessly prepared that, months later, operating rules have still not been issued. But out of sight, other menacing things have been happening.

More than 1,000 aliens, some of them lawful permanent residents with green cards, have been detained for extended periods in secrecy. The few cases that the press has been able to examine have disturbing features.

One case has been before Federal District Judge Shira A. Scheindlin in New York. Osama Awadallah, a green card holder living in San Diego, was detained on Sept. 20. He was held as a material witness because an old telephone number of his was found in a car used by one of the Sept. 11 hijackers.

Mr. Awadallah said that in various places of detention across the country he had been brutalized by guards, forced to strip naked before a female officer and denied the right to see a lawyer. He was forced to testify before a federal grand jury while shackled to a chair. He was charged with perjury in two answers.

Judge Scheindlin is considering whether his treatment requires dismissal of the charges. She has said that he may have been "unlawfully arrested, unlawfully searched, abused by law enforcement officials, denied access to his lawyer and family."

Civil liberties have often been overridden in times of crisis and war - as in the removal of Japanese-Americans from the West Coast in World War II. Those occasions were followed by regrets and apologies.

But how will we protect civil liberties in a war without end? The attorney general, John Ashcroft, has given his answer. He told Congress in December that "those who scare peace- loving people with phantoms of lost liberty . . . only aid terrorists."

Anthony Lewis is a former Times columnist. 0e407d182a294686

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