E-Mail This Article to a Friend Power trip Civil liberties came under intense assault in 2005, but there was some pushback, too BY HARVEY SILVERGLATE AND DUSTIN LEWIS

After surveying the past year — a generally dismal one for civil liberties — we welcome 2006 with trepidation but also with hope. There are signs, however imbalanced, to support both.

Much of 2005 followed a script composed in the wake of 9/11: freedom was sacrificed to illusory and ill-defined security and "family values." As US soldiers fought to liberate Iraqis from totalitarian government and to ward off theocratic rule, the Bush administration sought to redefine what it means to live in a free society — and it wasn’t pretty. As the year wore on, news of the administration’s gross abuse of the Patriot Act was joined by revelations of secret torture overseas and unfettered surveillance of American citizens at home. Federal prosecutors in the Bay State followed suit, harassing officials such as Suffolk County sheriff Andrea Cabral (See "Cabral’s Sharp Aim," December 16) and citizens alike, and undermining the people’s political will by meting out the death penalty in federal court despite its ban under state law.

In the midst of all this, Congress erupted into partisan — and ultimately, misdirected — clashes over vacancies on the Supreme Court; detained terror suspects languished uncharged for another year; and Massachusetts’s "family values" proponents charged ahead with attempts to ban same-sex marriages.

THE SUPREME TEST

For the first time in 11 years, seats on the US Supreme Court opened up — two of them. Hysterical debate and media coverage ensued, with most vetters’ concerned only with how nominees would vote on a single issue: abortion. The three nominees to date — John Roberts (now chief justice), Harriet Miers (who withdrew), and Samuel Alito (who faces Senate confirmation hearings in January) — were called everything from patron saints of constitutionalism to enemies of all things free and decent. The truth — big surprise — was more nuanced and complex.

Among the chief casualties of this partisan bickering was substantive discussion of the most important issue facing the Supreme Court for the foreseeable future: the administration’s claim to virtually unlimited executive authority to protect national security. Overweening presidential power — whether arguably conferred by statute or seized as "inherent" to the authority of the commander-in-chief — has enabled the government to snoop into our private lives and to detain citizens and noncitizens alike, all while invoking secrecy to shield itself from criticism. More concerned with being labeled "soft on terrorism" than with upholding the Constitution, members of Congress failed to take on the national-security establishment. The possible exception was Arizona Republican senator John McCain, who at the 11th hour exercised some of his moral authority as a former POW to force the administration to back down on torture. Still, the Bush administration — with Vice-President Dick Cheney snarling the most loudly — put up fierce resistance. As Freedom Watch argued in 2004, the legally absurd "torture memos" authored by Bush’s chief counsel Alberto Gonzales and his staff expanded the president’s power to authorize "extraordinary" measures in order to provide an "advice of legal counsel" defense in the event criminal charges were someday brought. That’s why the White House spent the last few weeks of the year bargaining — ultimately unsuccessfully — with Senator McCain.

Meanwhile, the practice of "extraordinary rendition," through which our government ships detainees to foreign security services that have no qualms about inflicting extreme pain, permanent injury, and even death, continues despite evidence that torture often produces false information. In fact, we are now learning that false claims extracted through torture may have accounted for some of the "intelligence" that led to the rush into war in Iraq.

So why have President Bush’s sweeping claims of executive power elicited so little debate during the Supreme Court nominations? It helped that Bush dropped the idea of nominating Gonzales; better to just hand him the helm of the Justice Department and move down the list. But it’s also true that growing evidence demonstrates that Americans turn a blind eye to torture inflicted by their government if it is done under a cloak of secrecy — which is all the more reason Congress should demand that nominees to our highest court articulate their views on Bush’s power grab.