“Our great republic is a government of laws, not of men”

It began with the Patriot Act, a noble name used to cloak the first rip in The Constitution; a name used in an attempt to hide the bitter taste of invasiveness with the sugary assurances of security. In reality, it was the first move by the man who would later declare himself “The Decider” in his chess game aimed at becoming a demigod and placing himself above The Rule of Law.

The Detainee Treatment Act (2005). The Military Commissions Act (2006). The Protect America Act (2007). And now, The Foreign Intelligence Surveillance Amendments Act (FISA).

Each of these has added another tear in The Constitution as the Executive, with full complicity of Congress, has chipped away at the foundation of our Democracy by slowly, but inexorably, impinging further and further on our individual Constitutional Rights.

The Patriot Act allows the government to obtain “roving wiretaps” without empowering the courts to make sure the government ascertains the conversations being intercepted actually involve a target of a legitimate investigation.  Before the Patriot Act, the government could use tools such as wiretapping and grand jury subpoenas to investigate drug dealers and terrorists. After the Patriot Act, the government simply had to be investigating a crime of terrorism, without regard as to who might be investigated.  Under The Patriot Act, individual library and medical records and lists of individuals who belong to political organizations became fair game for government seizure.

Under The Military Commissions Act, The President, with the approval of Congress, was allowed to indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses and slam shut the courthouse door for habeas corpus petitions. Although the portion of the act removing habeas corpus protection was ruled unconstitutional in June, military tribunals for “non-combatants” and treatment in violation of the Geneva Conventions are still in effect.

The Protect America Act allows for massive, untargeted collection of international communications without court order or meaningful oversight by either Congress or the courts. It contains virtually no protections for the U.S. end of the phone call or e-mail, leaving decisions about the collection, mining and use of Americans’ private communications up to the administration.

And now, we have the recent amendment to FISA, which provides for warrantless wiretaps, in violation of the Fourth Amendment; provides immunity from breaking the law for persons and corporations who only need have a written document from the Executive, but not necessarily court approval, stating the wiretaps are authorized; and provides retroactive immunity for persons and corporations who broke the law prior to FISA’s passage, which violates Article 1, Section 9 of The Constitution prohibiting Congress from passing any ex post facto law.

The results of this slippery slope are beginning to see the light of day. In her new book, “The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals,” The New Yorker’s Jane Mayer reveals several extraordinary (though unsurprising) facts regarding America’s torture regime –

• “Red Cross investigators concluded last year in a secret report that the Central Intelligence Agency’s interrogation methods for high-level Qaeda prisoners constituted torture and could make the Bush administration officials who approved them guilty of war crimes.”
• “A CIA analyst warned the Bush administration in 2002 that up to a third of the detainees at Guantánamo Bay may have been imprisoned by mistake, but White House officials ignored the finding and insisted that all were ‘enemy combatants’ subject to indefinite incarceration.”
• “[T]he [CIA] analyst estimated that a full third of the camp’s detainees were there by mistake. When told of those findings, the top military commander at Guantánamo at the time, Major Gen. Michael Dunlavey, not only agreed with the assessment but suggested that an even higher percentage of detentions — up to half — were in error. Later, an academic study by Seton Hall University Law School concluded that 55 percent of detainees had never engaged in hostile acts against the United States, and only 8 percent had any association with al-Qaeda.”
• [T]he International Committee of the Red Cross declared in the report, given to the C.I.A. last year, that the methods used on Abu Zubaydah, the first major Qaeda figure the United States captured, were ‘categorically’ torture, which is illegal under both American and international law”.
• “[T]he Red Cross document ‘warned that the abuse constituted war crimes, placing the highest officials in the U.S. government in jeopardy of being prosecuted.’”

We have arrived at this sorry state of affairs because our government has abandoned The Rule of Law. The Executive, with consent of Congress, has decided the President is above the law and that both The Constitution and International Law no longer apply. Rights of the individual are, for all intents and purposes, now meaningless, and the United States is not bound by the international precepts we, in our more morally responsible days, helped foster.

We now have a government which embodies, as Glenn Greenwald accurately terms, “a culture and an ideology of lawlessness.” But, isn’t this the inevitable outcome when a country’s political establishment decrees itself exempt from the rule of law? If the rule of law doesn’t constrain the actions of government officials, then nothing will. Continuous revelations of serious government lawbreaking have led not to investigations or punishment but to retroactive immunity and concealment of the crimes.

The preeminent international organization for ensuring humane treatment of prisoners has said what we have done is clearly torture, and torture is a war crime. The only recourse may well be that we find ourselves in the same position as those leaders of Serbia who found themselves brought before the International Court charged with war crimes.

Our actions cannot be hidden under the guise of National Security; they cannot be justified by labeling them Patriotism; and we cannot absolve ourselves of our guilt by evoking the War on Terrorism euphemism. We must not only confess our sins but enact measures to right our wrongs. We must act to regain the moral high ground we once held in the eyes of the world. We must do all we can to ensure such travesties never again occur.

The alternative is a legacy of shame and debauchery for future generations.