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War on terror still eroding essential liberties

The story of how the Bush-Cheney administration rushed to make torture an instrument of national policy is well-known. Less remarked on is the fact that President Obama and his administration have embraced the secrecy and usurpations of power that made possible the Bush-Cheney betrayal of American values.

Obama campaigned on the promise to end torture and shut down the infamous prison camp at Guantanamo Bay. But the camp remains, trials for accused terrorists have yet to be conducted, and the "extraordinary renditions" reportedly continue.

Equally troubling, the White House reportedly has authorized U.S. intelligence agencies to kill Anwar al-Awlaki, an Islamic clergyman-turned-jihadist who was born and raised in the United States and is hiding in Yemen. The summary execution of a U.S. citizen is something not even Bush and Cheney authorized.

As former CIA Director Michael Hayden told the Washington Times last week, differences between the Bush-Cheney White House, for which he worked, and the Obama administration on these issues essentially are minor.

"You've got state secrets, targeted killings, indefinite detention, renditions, the opposition to extending the right of habeas corpus to prisoners," Hayden said. "Although it is slightly different, Obama has been as aggressive as Bush in defending prerogatives about who he has to inform in Congress for executive covert action."

Last week, a narrowly divided panel of the 9th U.S. Circuit Court of Appeals ruled that those who were tortured in America's gulag cannot sue for damages, because the administration believes their attempt to obtain justice may reveal state secrets.

The notion that evidence may be withheld from public scrutiny for reasons of national security is well-established, but the idea that injured parties can be denied legal redress because the executive branch wants the matter kept secret is an appalling novelty.

Thus, the unconvincing agonizing by Judge Raymond Fisher, writing for the court's 6-5 majority: "This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security. Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them."

And why, when conflict is irreconcilable, shouldn't liberty and justice prevail? Since President Lincoln's suspension of habeas corpus in the dire emergency of the Civil War, we've recognized that the Constitution is not a suicide pact, but neither is it a dead letter or a promissory note against some idealized future.

The echoes of Sept. 11, 2001, have enabled other malevolent impulses, including the revival of the crudest nativist sentiments now directed at Muslim Americans and fed upon by political opportunists. The transparent viciousness of such bigotry and cynicism of those feeding upon it probably will act as a check on such impulses. At any given moment, Americans may not recall that we all rely on mutual tolerance. But over the long haul, we usually do.

The further descent into the false exigencies of the national security state are different and far more threatening, as the Obama administration's eager embrace of their cover demonstrates. Our essential liberties survived the Cold War diminished but intact. Now, the "war on terror" is eroding them further in a conflict in which no one seems able to define a final victory.

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