I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.
— James Madison,
Speech in the Virginia Convention

It only seems odd until you think about it. Then it makes perfect sense. I refer to Mr. Bush's support for Mr. Musharraf following Mr. Musharraf's actions on Aug. 21. That was the day Mr. Musharraf unilaterally redrew Pakistan's Constitution all by himself. He adopted 29 amendments that greatly expanded the powers he acquired when he enjoyed the fruits of a 1999 military coup and became the leader of Pakistan.

Among the 29 amendments he adopted was one that allowing him to make further amendments any time he feels like it. In addition, he gave himself the power to dissolve the elected Parliament and to appoint the country's military chiefs and Supreme Court Justices. He also allotted some seats on a newly created National Security Council to the military. He explicitly stated that the Parliament that will be elected will not have the power to repeal the constitutional amendments he adopted. Describing the changes, he said: "This is part of the Constitution. I am hereby making it part of the Constitution."

The Bush administration, which is discovering that the United States Constitution is more malleable than was thought before Mr. Bush ascended to the presidency, responded as expected. State Department spokesman, Philip T. Reeker, said that Mr. Musharraf's actions could make it more difficult "to build strong democratic institutions in Pakistan." He then said: "It is of vital importance that full, democratic civilian rule be restored in Pakistan." Lest that comment leave the impression that the administration was distressed by Mr. Musharraf's action, he also said, evidence to the contrary notwithstanding, that: "We believe, and judging from many of his statements, that President Musharraf wants to develop strong democratic institutions." Where he got that idea was not explained.

Back at the ranch Mr. Bush said that Mr. Musharraf was "still tight with us in the war against terror" and "I appreciate his strong support." Mr. Bush did not condemn Mr. Musharraf's unilateral amendment of the Pakistani constitution for reasons that reflection made obvious. Mr. Musharraf amended the constitution in order to better serve the citizens of Pakistan. Although Messrs. Bush and Ashcroft have not yet tried to amend the United States Constitution, they have suspended it when it serves their notion of the national interest.

In recent weeks the administration has declared that if it wants to hold U.S. citizens incommunicado and deprive them of the right to counsel guaranteed them under the Constitution, all it has to do is label them "enemy combatants." It has approved more aggressive behavior by the FBI and the CIA. White House counsel has interpreted the Constitution to conclude that Congress does not have to approve a declaration of war.

Not all of the administration's assaults on the Constitution have gone unnoticed, and one of its attacks has drawn a sharp rebuke from the Sixth Circuit Court of Appeals. As part of its war on an open society, the Bush Administration has held hundreds of deportation hearings in secret, justifying the secrecy by saying that the people involved may have links to terrorism. The case that invoked the wrath of the Sixth Circuit was brought by four Michigan newspapers and U.S. Rep. John Conyers Jr. of Michigan. They wanted to attend a deportation hearing of a Muslim clergyman who had overstayed his tourist visa. The administration did not want them there. It said it had the right to decide which hearings had to be open to the public without presenting argument or evidence to a judge. Responding to the government, the court said that the general interest in preventing terrorism must be argued to and accepted by immigration judges in the context of particular cases.

In its opinion the court said: "Today the executive branch seeks to take this safeguard (the press acting as watchdog over the deportation of non-citizens) by placing its actions beyond public scrutiny. Against non-citizens, it seeks the power to secretly deport a class if it unilaterally calls them "special interest" cases. The executive branch seeks to uproot people's lives, outside the public eye and behind a closed door. Democracies die behind closed doors. The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully and accurately in deportation proceedings. When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation. The framers of the First Amendment 'did not trust any government to separate the true from the false for us.' They protected the people against secret government.... The public's interests are best served by open proceedings. A true democracy is one that operates on faith — faith that government officials are forthcoming and honest and faith that informed citizens will arrive at logical conclusions. This is a vital reciprocity that America should not discard in these troubling times.... Today we reflect our commitment to those democratic values by ensuring that our government is held accountable to the people and that First Amendment rights are not impermissibly compromised. Open proceedings, with a vigorous and scrutinizing press, serve to ensure the durability of our democracy. "

Messrs. Bush, Ashcroft and Musharraf have more in common when it comes to understanding constitutional law than any of us might wish. That explains why Mr. Bush hasn't scolded Mr. Musharraf. He understands exactly what Mr. Musharraf is about. The rest of us understand what Mr. Bush is about. It's not reassuring.

Mr. Brauchli is a Boulder lawyer and and writes a weekly column for the Knight Ridder news service. . He can be reached at brauchli1@attbi.com

Copyright 2002, The Daily Camera

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