Will the Constitution Be Altered to Eliminate Key Liberties?

Though little discussed on the campaign trail, a crucial issue to be decided in November is whether the United States will return to its traditions as a constitutional Republic respecting "unalienable" human rights or whether it will finish a transformation into a frightened nation governed by an all-powerful President who can do whatever he wants during the open-ended "war on terror."

That reality was underscored on April 1 with the release of a five-year-old legal opinion from former Justice Department official John Yoo asserting that President George W. Bush possessed nearly unlimited authority as Commander in Chief, including the power to have military interrogators abuse terror suspects.

While most news coverage of Yoo's March 14, 2003, memo has focused on the legal gymnastics justifying harsh treatment of detainees -- including possible use of mind-altering drugs -- the centerpiece of Yoo's argument is that at a time of war the President's powers are essentially unfettered.

Yoo's memo fits with views expressed by Bush ("The Decider") and many of his top legal advisers. Yoo's opinion also appears to be shared by four conservative Republicans on the U.S. Supreme Court -- John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito -- just one vote shy of a majority.

Yoo's military interrogation memo -- and a similar one he penned for the CIA on torture -- were withdrawn by Assistant Attorney General Jack Goldsmith after he succeeded Yoo as the top official at the Justice Department's powerful Office of Legal Counsel later in 2003. Goldsmith considered Yoo's legal reasoning flawed.

But Goldsmith subsequently was pushed out of the job, and Bush is seeking to fill the vacancy with Steven Bradbury, who signed off on Yoo's "torture memos" while holding a lower position in the Office of Legal Counsel.

In other words, Bush has not given up on his vision of grandiose presidential powers that let him act more like an English monarch before the Magna Carta, who could pick out anyone under his domain and throw the person into prison with no due process and no protection against torture or other abuse.

Under the Bush-Yoo theories, all Bush has to do is pronounce a detainee "an unlawful enemy combatant" -- whether a U.S. citizen or not, whether there is any credible evidence or not -- and the person loses all human rights.

As radical -- and as shocking -- as these theories may seem to many Americans, Bush is within one vote on the U.S. Supreme Court of having his vision enshrined as "constitutional."

One More Vote

If one more vacancy occurs among the five "non-imperial" justices -- and the replacement is in line with Roberts-Scalia-Thomas-and-Alito -- the U.S. Constitution could be effectively altered to eliminate key individual liberties -- from habeas corpus and other fair-trial rights to bans on "cruel and unusual" punishment to protections against self-incrimination and "unreasonable searches and seizures."

Though civics books tell us that the Constitution can only be amended by two-thirds votes of the House and Senate and approval by three-quarters of the states, the reality is that five ideologues on the U.S. Supreme Court can alter the nation's founding document by simply voting as a bloc.

And since the "war on terror" is unlike other wars -- in that the enemy is vaguely defined, the duration could be forever and the war's location can be anywhere -- the Bush-Yoo logic suggests that the de facto suspension of the American constitutional Republic is not just a short-term emergency measure.

Instead, the shift from a Republic, with legal protections of individual rights, to an Empire, led by an Executive who can operate without any constraints, would be permanent. As long as the President says some danger lurks out there, he or she could assert "plenary" -- or total -- powers as commander in chief.