Land of the free? Under legal theories currently being developed and deployed, any individual can be imprisoned, tortured, or even executed on a presidential whim.

The U.S. Constitution was designed to prevent the emergence of a tyrannical government by delegating specific, limited, revocable authority to the central government, and then allocating that power among three contending government branches. That power is limited by law; those who exercise it are accountable to the people; and all but a very few government functions are to be carried out by state and local governments.

Our Constitution is still largely intact, and the institutions it created have not been utterly demolished. But our constitutional system has been under siege for decades, and confronts its most severe threat in the legal doctrines being devised by the Bush administration to conduct the "war on terror."

President as Living Constitution

During his January 26 press conference, President Bush was pressed to defend his administration's use of warrantless wiretaps, a policy that violates both the Fourth Amendment to the Constitution and the 1978 Foreign Intelligence Surveillance Act (FISA). Bush recited the now-familiar claim that when Congress enacted the September 14, 2001 "Authorization to Use Military Force" (AUMF) against those responsible for 9/11, it effectively alienated to the president plenary authority to do whatever he considers necessary in the anti-terrorism struggle.

"There is an act passed by Congress in 2001 which said that I must have the power to conduct this war using the incidents of war," stated Mr. Bush. "And I'm intending to use that power.... Congress says, go ahead and conduct the war, we're not going to tell you how to do it...."

In fact, as former Senate Majority Leader Tom Daschle has pointed out, the AUMF resolution was drafted in a fashion intended to deny the administration's request for open-ended domestic powers--such as the ability to subject Americans to warrantless wiretaps. The Bush administration, however, has asserted that the president has the right to sign a bill into law and then use a "signing statement," a declaration by the president permitting him to interpret the bill as he sees fit--even if in so doing he blatantly violates the explicit letter of the law.

The issue here isn't whether the president has a different "understanding" of the technical details of a bill, but whether he can sign a bill into law and then ignore it if he so chooses. When Mr. Bush signed a bill banning the use of torture, for example, he issued a "signing statement" reserving the option of waiving the ban as he saw fit. This means that the president announced his intention to violate that law even as he attached his signature to it. And this was hardly the first time that Mr. Bush had employed this tactic. Although he has yet to cast a single veto, Mr. Bush issued 435 signing statements in his first term alone. This eclipses the total number of signing statements issued between 1817 and the beginning of Mr. Bush's presidency in 2001.

In 95 of Mr. Bush's signing statements, mention is made of the doctrine of the "unitary executive," a phrase that has traditionally referred to the president's sole power to manage the affairs of the executive branch. As used by the Bush administration, however, the phrase refers to the claim that in wartime the president's powers are not subject to checks or limits by the legislative and judicial branches.

For the Bush administration and its followers, it is an article of faith that George W. Bush can and must be entrusted with essentially limitless powers. This was made explicit during a debate at the recent Conservative Political Action Conference (CPAC) in Washington between former Congressman Bob Barr and former Justice Department attorney Viet Dinh, a co-architect of the so-called USA Patriot Act.

"Do we truly remain a society that believes that ... every president must abide by the law of this country?" asked Barr during his opening statement. Dinh replied by insisting that although conservatives have always displayed "a healthy skepticism of governmental power," there are times when "that healthy skepticism needs to yield." Referring to the administration's use of warrantless wiretaps as a specific case, Dinh declared: "None of us can make a conclusive assessment as to the wisdom of that [wiretapping] program and its legality, without knowing the full operational details. I do trust the president when he asserts that he has reviewed it carefully and therefore is convinced that there is full legal authority."

For decades, conservatives have properly assailed liberals for their belief in a "living Constitution" that can be reworked by activist judges to advance leftist social causes. Today, GOP-aligned conservatives treat the president as a living Constitution, free to exercise power in any way he sees fit.

In his book The Powers of War and Peace, former Justice Department official John C. Yoo, who wrote several key legal memoranda on presidential war powers, contends that the president in wartime is free to do anything Congress permits him to do. In a December 1 debate in Chicago with Notre Dame professor Doug Cassel, Yoo went even further, insisting that the president's wartime powers are his alone to define.

Yoo's legal handiwork includes an August 2002 memo (signed by former Deputy Attorney General Jay Bybee, who is now a federal judge) asserting that the president has a right to authorize torture. In the Chicago debate, Cassel inquired of Yoo: "If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?" Yoo agreed, emphasizing that "no treaty" could restrain the president's supposed power to authorize such measures. "Also no law by Congress," Cassel continued. "That is what you wrote in the August 2002 memo." "I think it depends on why the President thinks he needs to do that," Yoo responded.

Can It Happen to You?

Most of the public assumes that the extraordinary powers claimed by the Bush administration--warrantless surveillance, summary detention of "unlawful combatants," denial of habeas corpus protections (forbidding prolonged imprisonment without trial), and torture--are shocking but necessary, since they will only be used against "the worst of the worst." The Bush administration has done its best to abet that complacent perception.

"If you're not talking to a known al Qaeda member or a member of an affiliated organization, you don't have to worry about [being subject to a wiretap]," insisted White House spokesman Scott McClellan last January. Similar assurances have been given regarding the more authoritarian measures already employed in the "war on terror." However, the same Bush administration has argued in federal court that it can not only keep under surveillance, but also arrest and indefinitely detain as "enemy combatants," people who have any connection to terrorist suspects, even of a hypothetical variety.

During a December 2004 hearing about the legal status of detainees held in Guantanamo Bay, U.S. District Judge Joyce Hens Green inquired of Deputy Associate Attorney General Brian Boyle if a "little old lady in Switzerland" who sent a check to an orphanage in Afghanistan could be seized and held as an "enemy combatant" if some of that money--unknown to her--wound up in the hands of al-Qaeda. "She could," replied Boyle. "Someone's intention is clearly not a factor that would disable detention." Note well the curious use of the term "disable"; this implies that for the Bush administration, detention would be the default option in such a case.

Judge Green asked about another scenario in which a hypothetical resident of England was found to be tutoring the child of an al-Qaeda leader in English; could that tutor be scooped up and imprisoned at Gitmo, or "rendered" into the hands of a brutal ally (such as Egypt or Uzbekistan) for interrogation and torture? Yes, answered Boyle, since "al-Qaeda could be trying to learn English to stage attacks," and offering English instruction under such circumstances would be akin to "shipping bullets to the front." And according to Boyle, the power to carry out such detentions applies to everyone, since "the conflict with al-Qaeda has a global reach."

These hypothetical examples have a real-life analogue in the case of Mohammed Yousry, an Egyptian-born naturalized U.S. citizen, who confronts a 20-year prison sentence for the supposed crime of acting as a court-appointed translator for convicted terrorist Omar Abdel Rahman, the radical Muslim cleric whose religious exhortations inspired the first World Trade Center bombing in 1993.

Three years of detailed, invasive pre-arrest scrutiny of Yousry's life and private communications--including wiretaps and constant surveillance of the academic and his associates by the FBI--found not so much as a molecule of evidence that he had ever harmed anyone, much less broken any law. He had never expressed a syllable of support for terrorists of any variety. As prosecutor Anthony Barkow admitted in closing arguments in Manhattan last January, "Yousry is not a practicing Muslim.... He is not a fundamentalist.... Mohammed Yousry is not someone who supports or believes in the use of violence."

Nonetheless, Yousry was arrested at his home in Queens on April 9, 2002, by a platoon of FBI agents and helmeted police officers brandishing high-powered weaponry. Yousry had been designated an enemy of the state for the newly minted crime of translating letters without federal permission.

Yousry translated a letter from Rahman "to Rahman's lawyer in Egypt," reported the Washington Post. In June 2000, Rahman's defense counsel, a radical Marxist attorney named Lynne Stewart, "released to a reporter a version of the letter, which discussed a cease-fire between Islamic militants and the Egyptian government. Prosecutors said that the lawyer and the translator, by these acts, conspired to use Rahman's words to incite others to carry out kidnappings and killings. No attack took place."

Yousry had just as little use for Stewart's revolutionary agenda as he did for Rahman's Islamist militancy; he was simply acting as a court-appointed translator, carrying out the requests of Rahman's defense attorney. By translating a letter from Rahman, and reading to the Egyptian cleric letters written by radical supporters back home, Yousry "stuck his head in the sand and deliberately avoided knowing what should have been obvious," asserted federal prosecutor Robin Baker to the jury. "We don't have to prove why."

Road to Tyranny

Indeed, federal prosecutors weren't interested in "proving" anything; instead, they focused on intimidating the jurors into "sending a message" by convicting Yousry.

One female juror, identified only as Juror 39, told the Post that Yousry's individual guilt or innocence didn't matter to her fellow jurors. "They [the other jurors] had an agenda.... People are so fearful that if you disagree with the government on one thing it makes you a terrorist." Despite her decent misgivings, Juror 39 voted to convict. "I have to plead guilty to being a coward," she conceded. "It doesn't feel good, but I punked out."

The Yousry case demonstrates that the Bush administration isn't content to consolidate arbitrary power in the chief executive; it is working to embed in our culture the assumption that only terrorists and their supporters have scruples about defending individual liberties. It is determined to eliminate all legal, institutional, and cultural limits on the president's power to do anything he wants to anyone of his choosing, anytime he sees fit to do it.

To live under the tyranny of a police state is the unavoidable fate of nations which follow that path. But there is still time for our nation to change direction.