The Pentagon has a secret court created by the Foreign Intelligence Services Act (FISA). The courtroom is in a windowless room on the top floor of the Department of Justice. There are seven rotating judges. The court meets in secret, with no published opinions or public records. No one, except the FISA judge involved and the Department of Justice, knows what is done. No one, except the government and the FISA judge, knows at whom the warrants are aimed. There is no review by anyone. Over 12,000 search warrants permitting eavesdropping, surveillance and break-ins have been sought by the government. Only once has the FISA court denied a warrant.

The FISA court has issued more warrants than the more than 1,000 district judges in the federal system.

The Pentagon has already expanded its domestic-surveillance activity beyond any previous time in history. It breaks into homes, wiretaps and eavesdrops at will, and builds secret dossiers on citizens while arguing that there can be no judicial review of its activities. President George W. Bush argues that there can be no judicial review of any decision he makes when he decides whether an alien or an American citizen is or is not an enemy combatant. Congress supports this; so does the judiciary.

The expansion of Presidential powers and the expansion of police powers is the single most important issue facing this country. It is safe to say the new Supreme Court and a majority of Congress (both Democrats and Republicans) are prepared to give Mr. Bush a blank check. On Nov. 15, Carl Levin, the liberal Democratic Senator from Michigan and an outspoken opponent of the war in Iraq, joined his Republican counterpart from South Carolina, Lindsey Graham, in supporting legislation validating the President’s Alice-in-Wonderland legal system and the expansion of his police powers. The Senate vote was 79 to 16 in favor.

What’s more, the Patriot Act had been extended. For the last three years, the President has justified torture, and Congress will soon give him legal permission to use it.

If or when there’s another terrorist attack, the government will seek more powers, claiming that it shows current laws are inadequate. We will certainly see, as we recently saw in Britain, the head of government ask for 90-day detentions of terror suspects without access to court. The attempt to end habeas corpus started at Guantánamo; it is now spreading to the rest of America.

Five years after we opened the Guantánamo prison, not one person in that prison has been found guilty of anything.

The legal system to treat the new prisoners of the war on terror, created out of thin air, disgraces us. No one ever before suggested such a legal system—not during the Civil War, not during World War I or World War II, and not during the Cold War.

We are better than military commissions, Abu Ghraib, Guantánamo, the Patriot Act and “rendition”—the sending of prisoners overseas to be tortured at C.I.A.-controlled prisons.

This country is approaching a dangerous turning point. There has long been a desire and a political movement in America for restrictions on democratic rights, for an authoritarian government propelled by a combination of religious and nationalistic fervor. The helplessness caused by the events of Sept. 11 and the domestic and international war against Muslim “terrorists” deepened this desire. Never before was there such a possibility of such long-term constitutional violations, because there has never before been such an open-ended war.

In Weimar Germany, a feeling of helplessness led to Hitler’s rise and the creation of the ultimate police state. There are similarities—and, of course, very significant differences—between America in the 21st century and Germany in the 1920’s.

Mr. Bush has suggested that he was chosen by God to lead the United States in the aftermath of the 9/11 attacks. The Nazi government, against religion, saw the salvation of the German people in messianic terms.

Many liberals and conservatives are concerned where all of this might lead. Professor Fritz Stern, a professor of German studies at Columbia University, pointed out that Hitler saw himself as “the instrument of providence” who fused his “racial dogma with Germanic Christianity.” Paul Craig Roberts, a senior fellow at the Hoover Institution and a former Wall Street Journal editor, writes of the “brownshirting” of American conservatism—he says the hype about terrorism serves little or “no purpose other than to build a police state that is far more dangerous to Americans than terrorists.”

The pressure for fascism comes not just from the top. Without the people’s support, the Weimar government would not have been overthrown.

The change here is incremental and harder to see.

How we conduct the “war on terror” tells the American people who we are and what this country stands for. America has the oldest and most dynamic democracy in the world. It can right itself if the people want it bad enough to fight harder.

The Pentagon has a secret court created by the Foreign Intelligence Services Act (FISA). The courtroom is in a windowless room on the top floor of the Department of Justice. There are seven rotating judges. The court meets in secret, with no published opinions or public records. No one, except the FISA judge involved and the Department of Justice, knows what is done. No one, except the government and the FISA judge, knows at whom the warrants are aimed. There is no review by anyone. Over 12,000 search warrants permitting eavesdropping, surveillance and break-ins have been sought by the government. Only once has the FISA court denied a warrant.

The FISA court has issued more warrants than the more than 1,000 district judges in the federal system.

The Pentagon has already expanded its domestic-surveillance activity beyond any previous time in history. It breaks into homes, wiretaps and eavesdrops at will, and builds secret dossiers on citizens while arguing that there can be no judicial review of its activities. President George W. Bush argues that there can be no judicial review of any decision he makes when he decides whether an alien or an American citizen is or is not an enemy combatant. Congress supports this; so does the judiciary.

The expansion of Presidential powers and the expansion of police powers is the single most important issue facing this country. It is safe to say the new Supreme Court and a majority of Congress (both Democrats and Republicans) are prepared to give Mr. Bush a blank check. On Nov. 15, Carl Levin, the liberal Democratic Senator from Michigan and an outspoken opponent of the war in Iraq, joined his Republican counterpart from South Carolina, Lindsey Graham, in supporting legislation validating the President’s Alice-in-Wonderland legal system and the expansion of his police powers. The Senate vote was 79 to 16 in favor.

What’s more, the Patriot Act had been extended. For the last three years, the President has justified torture, and Congress will soon give him legal permission to use it.

If or when there’s another terrorist attack, the government will seek more powers, claiming that it shows current laws are inadequate. We will certainly see, as we recently saw in Britain, the head of government ask for 90-day detentions of terror suspects without access to court. The attempt to end habeas corpus started at Guantánamo; it is now spreading to the rest of America.

Five years after we opened the Guantánamo prison, not one person in that prison has been found guilty of anything.

The legal system to treat the new prisoners of the war on terror, created out of thin air, disgraces us. No one ever before suggested such a legal system—not during the Civil War, not during World War I or World War II, and not during the Cold War.

We are better than military commissions, Abu Ghraib, Guantánamo, the Patriot Act and “rendition”—the sending of prisoners overseas to be tortured at C.I.A.-controlled prisons.

This country is approaching a dangerous turning point. There has long been a desire and a political movement in America for restrictions on democratic rights, for an authoritarian government propelled by a combination of religious and nationalistic fervor. The helplessness caused by the events of Sept. 11 and the domestic and international war against Muslim “terrorists” deepened this desire. Never before was there such a possibility of such long-term constitutional violations, because there has never before been such an open-ended war.

In Weimar Germany, a feeling of helplessness led to Hitler’s rise and the creation of the ultimate police state. There are similarities—and, of course, very significant differences—between America in the 21st century and Germany in the 1920’s.

Mr. Bush has suggested that he was chosen by God to lead the United States in the aftermath of the 9/11 attacks. The Nazi government, against religion, saw the salvation of the German people in messianic terms.

Many liberals and conservatives are concerned where all of this might lead. Professor Fritz Stern, a professor of German studies at Columbia University, pointed out that Hitler saw himself as “the instrument of providence” who fused his “racial dogma with Germanic Christianity.” Paul Craig Roberts, a senior fellow at the Hoover Institution and a former Wall Street Journal editor, writes of the “brownshirting” of American conservatism—he says the hype about terrorism serves little or “no purpose other than to build a police state that is far more dangerous to Americans than terrorists.”

The pressure for fascism comes not just from the top. Without the people’s support, the Weimar government would not have been overthrown.

The change here is incremental and harder to see.

How we conduct the “war on terror” tells the American people who we are and what this country stands for. America has the oldest and most dynamic democracy in the world. It can right itself if the people want it bad enough to fight harder.

Crisp decision-making in this White House?

Any Senate request for documents, Mr. Bush continued, would be a distraction from consideration of Ms. Miers’ qualifications.

Mr. Bush made it clear that executive privilege would be used to deny Senators the right to see not only her work as White House counsel, but also her papers from when she was deputy White House chief of staff for policy, and when she was staff secretary.

Senator Orrin Hatch, a Republican from Utah, said that any request to see Ms. Miers’ papers was “what you call a ruse. My colleagues on the other side will do that every time.” Scott McClellan joined in: “It would be unprecedented to release confidential, deliberative documents of a sitting President,” he said. “There is a separation-of-powers issue here.”

Needless to say, Messrs. Bush, Hatch and McClellan all are legally wrong.

Clause 2, Section 2, Article II of the U.S. Constitution states that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint … Judges of the Supreme Court.” As Alexander Hamilton wrote in Federalist Paper No. 67, this means that “the ordinary power of appointment is confided to the President and the Senate jointly.” Hamilton referred to the Senate’s power concerning appointment as a “concurrent agency with the President.” James Madison and the other framers agreed.

The Senate’s right to information that the President has about a nominee is essential to this process, and thus constitutionally mandated. The Senate cannot exercise its obligation without it. The law is clear: There can be no meaningful consent if the consenting power has no knowledge of the facts.

Further, executive privilege cannot override constitutional obligations. The high court has dealt with the executive-privilege issue before. In 1974, Chief Justice Warren Burger denied President Nixon’s claim that executive privilege permitted him to withhold tapes and to refuse to go before a grand jury during the Watergate affair.

Nixon gave two reasons for asserting this privilege: first, that the separation of powers protected the executive branch from the surveillance of the judiciary, and second, that there was a “valid need for protection of communication” in the executive branch. Both arguments were rejected by a unanimous 8-0 vote (Associate Justice William Rehnquist, who had worked in the Nixon White House, abstained).

Burger’s decision acknowledged the President’s need for complete candor and objectivity from his advisors. But, he wrote, when the assertion of executive privilege depends solely on a broad, unspecific claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.

Unless confidentiality is needed to protect military, diplomatic or sensitive national-security secrets, Burger wrote, the court would find it “difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished” by producing the information demanded by the courts. In no case in its history, Burger added, had the court extended the “high degree of deference” requested by Nixon “to a President’s generalized interest in confidentiality.”

Burger asked rhetorically if there was a public good that required the court to recognize executive privilege even though it might hamper the courts in getting at the facts. No, he wrote; rather, the public good is served by the denial of the privilege. That same rule should govern the Bush White House today.

Burger also wrote that the “impediment” created by “an absolute, unqualified privilege” would conflict with “the function of the courts under Article III of the Constitution.” In the case of Ms. Miers, the claim of executive privilege conflicts with the legislative branch’s constitutional powers, in the form of the Senate’s role in the appointment of Supreme Court justices.

The Bush White House’s assertion of executive privilege and its denial of information is just as troubling as Nixon’s arguments during Watergate. At least as much is at stake. A President is in power for four or eight years, while a Supreme Court justice has remained in power for nearly 40 years.

Equally as important is the issue of precedent. If the White House successfully withholds Ms. Miers’ documents, then any President can withhold information about an otherwise-unknowable high-court nominee.

The people, through the Senate, must not be forced to make blind judgments. That would allow the executive branch to dominate the legislative and judicial branches. It would make the Supreme Court primarily responsive to one individual in the Oval Office. It would create a serious malformation in our democratic process, and it is not an overstatement to say that it could end our democracy as we know it.

Crisp decision-making in this White House?

Any Senate request for documents, Mr. Bush continued, would be a distraction from consideration of Ms. Miers’ qualifications.

Mr. Bush made it clear that executive privilege would be used to deny Senators the right to see not only her work as White House counsel, but also her papers from when she was deputy White House chief of staff for policy, and when she was staff secretary.

Senator Orrin Hatch, a Republican from Utah, said that any request to see Ms. Miers’ papers was “what you call a ruse. My colleagues on the other side will do that every time.” Scott McClellan joined in: “It would be unprecedented to release confidential, deliberative documents of a sitting President,” he said. “There is a separation-of-powers issue here.”

Needless to say, Messrs. Bush, Hatch and McClellan all are legally wrong.

Clause 2, Section 2, Article II of the U.S. Constitution states that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint … Judges of the Supreme Court.” As Alexander Hamilton wrote in Federalist Paper No. 67, this means that “the ordinary power of appointment is confided to the President and the Senate jointly.” Hamilton referred to the Senate’s power concerning appointment as a “concurrent agency with the President.” James Madison and the other framers agreed.

The Senate’s right to information that the President has about a nominee is essential to this process, and thus constitutionally mandated. The Senate cannot exercise its obligation without it. The law is clear: There can be no meaningful consent if the consenting power has no knowledge of the facts.

Further, executive privilege cannot override constitutional obligations. The high court has dealt with the executive-privilege issue before. In 1974, Chief Justice Warren Burger denied President Nixon’s claim that executive privilege permitted him to withhold tapes and to refuse to go before a grand jury during the Watergate affair.

Nixon gave two reasons for asserting this privilege: first, that the separation of powers protected the executive branch from the surveillance of the judiciary, and second, that there was a “valid need for protection of communication” in the executive branch. Both arguments were rejected by a unanimous 8-0 vote (Associate Justice William Rehnquist, who had worked in the Nixon White House, abstained).

Burger’s decision acknowledged the President’s need for complete candor and objectivity from his advisors. But, he wrote, when the assertion of executive privilege depends solely on a broad, unspecific claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.

Unless confidentiality is needed to protect military, diplomatic or sensitive national-security secrets, Burger wrote, the court would find it “difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished” by producing the information demanded by the courts. In no case in its history, Burger added, had the court extended the “high degree of deference” requested by Nixon “to a President’s generalized interest in confidentiality.”

Burger asked rhetorically if there was a public good that required the court to recognize executive privilege even though it might hamper the courts in getting at the facts. No, he wrote; rather, the public good is served by the denial of the privilege. That same rule should govern the Bush White House today.

Burger also wrote that the “impediment” created by “an absolute, unqualified privilege” would conflict with “the function of the courts under Article III of the Constitution.” In the case of Ms. Miers, the claim of executive privilege conflicts with the legislative branch’s constitutional powers, in the form of the Senate’s role in the appointment of Supreme Court justices.

The Bush White House’s assertion of executive privilege and its denial of information is just as troubling as Nixon’s arguments during Watergate. At least as much is at stake. A President is in power for four or eight years, while a Supreme Court justice has remained in power for nearly 40 years.

Equally as important is the issue of precedent. If the White House successfully withholds Ms. Miers’ documents, then any President can withhold information about an otherwise-unknowable high-court nominee.

The people, through the Senate, must not be forced to make blind judgments. That would allow the executive branch to dominate the legislative and judicial branches. It would make the Supreme Court primarily responsive to one individual in the Oval Office. It would create a serious malformation in our democratic process, and it is not an overstatement to say that it could end our democracy as we know it.

in the country, if not the world. Ted Olson and Laurence Tribe each argued

clearly and persuasively before the U. S. Supreme Court on Friday, Dec. 1.

David Boies in Florida, though unprepared to answer some fundamental questions,

has displayed his impressive analytical and rhetorical skills. The Bush

lawyers, Barry Richard and Philip Beck, kept their case in the Florida Circuit

Court simple and made proper and effective use of the tactic of delay. It's a

time for lawyers to be proud.

Public lawyers, of course, have been at the bottom of the

reputational barrel for decades, and not without reason. Watergate was mostly

the wrongdoing of lawyers. Iran-contra saw lawyer-created cover-ups. And the

blemish of the Clinton years saw Americans choosing between Ken Starr and the

parsing of language that President Clinton's lawyers surely created.

The private sector has been no better. The Cochrans and the

Baileys overstating and over-strutting, making preposterous statements on

behalf of clients, have also greatly contributed to the low regard that the

American people have for both lawyers and the legal system.

But now the country has seen the best and the brightest.

Many journalists, talking heads, media pundits and even lawyers themselves

often did not understand the issues and tactics being played out. The seemingly

unsatisfying answers that Mr. Tribe and Mr. Olson gave to the U.S. Supreme

Court justices were the best possible responses to questions that did not have

clear answers. The compromises that Mr. Boies had to make to get his case tried

over the weekend of Dec. 2-putting on a very small and insufficient case, and even

then being frustrated by the Bush team's delaying tactics-should not in any way

diminish our respect for his prowess.

When the Supreme Court justices did not get their questions

answered, they pushed on bluntly and often rudely. Yet Mr. Olson and Mr. Tribe,

under extraordinary pressure, never overreacted, were always aware of the

judges' clear concerns and biases, and responded appropriately.

When Justice Ruth Bader Ginsburg accused the Bush camp of

legal, political and rhetorical excesses that nearly bordered on impropriety

and certainly showed great disrespect for the rule of law ("I do not know of

any case where we have impugned a State Supreme Court the way you are doing in

this case"), Mr. Olson's response was on the mark. "This is a very unusual situation,"

he said, and continued to show why, in his view, the Florida court had acted

improperly.

When Mr. Tribe was attacked, buffeted and cut off by Justice

Rehnquist's dismissal of the Florida court (Mr. Rehnquist read the Florida

decision to support a re-count as saying "we find that our state constitution

trumps that legislative intent"), he brilliantly argued that that was not what

the Florida court said.

When I go over trial transcripts and appellate arguments, I

nearly always see things that should have been done differently. The lawyer

should have responded this way or that way, or should have taken a more or less

aggressive approach to frame the issues. But as I go through the legal

responses given by Mr. Tribe and Mr. Olson before the U.S. Supreme Court, I do

not find any situation where they did not give the best and the most

thought-out legal answer. And, in fact, the court on Monday, Dec. 4, admitted

they could not answer the questions they placed before the two lawyers, and

instead asked the Florida court to answer them.

The best lawyers can lose cases that are too difficult. The

worst lawyer can win slam-dunk cases. The question of the lawyer's skill may

not relate to the outcome. The Democrats knew at the outset that they could win

in only one forum, the Florida Supreme Court. They could not expect to win

before the Secretary of State, before the Florida legislature or before a

hostile Dade County Board. Nor with the U.S. Supreme Court, unless they

presented an overwhelming record.

Unfortunately, that is where the flaw in the case exists-a

flaw with which the Gore team must continue to grapple if they have any shot at

seeing those ballots re-counted in Miami-Dade and having the re-count in Palm

Beach County included in the state vote tally. Having put all their eggs into

that basket, it was dismaying to see how unprepared they were.

Mr. Boies' manner-soft, agile, wearing his knit ties and

collars too big for his neck, close to giving a Jimmy Stewart "aw shucks"

answer (I may not have the facts of the law, but damn it, I'm on the right

side)-made good television, but it made bad lawyering. Of course, even with the

teams of lawyers at his disposal, it was difficult to pull so many cases

together so quickly and be prepared for all of them.

But in the original case that the Gore team brought to the

Florida Supreme Court, their lack of preparation at the trial and appellate

level was one of the reasons for their ultimate downfall. The two appellate

courts needed factual help, not legal help, so as to arrive at a decision that

would help the Gore team. Often at the beginning of a case, you do not have all

the facts you need. But as you become more educated and more familiar with the

facts and law, you learn where and how to get the other facts. The responses

that the Gore team gave at the very beginning of the trial were no different

from those at the very end of the Florida process.

The Gore team

fundamentally lost when they could not give sympathetic judges the factual

answers to the questions: How long would it take Dade County to re-count? What

was the last date the Florida court could have to certify the election? Was

Dec. 12 an immovable and final cut-off date? Nor did they give the court the

legal and factual answer relating to whether the U.S. Constitution was involved

in the Florida court's decision, an argument that the U.S. Supreme Court said

was lacking. David Boies, a fine trial and appellate lawyer, confirmed that he

was not a sophisticated Constitutional lawyer.

In fact, not even Jan. 20, the inauguration date, is the

deadline. The 20th Amendment to the Constitution, called "the Lame-Duck

Amendment," says that the terms of the President and Vice President (Bill

Clinton and Al Gore) end at noon on Jan. 20. If at that time a "President elect

shall have failed to qualify," then Congress can declare "who shall then act as

President … until a President or Vice President shall have qualified."

Politically and legally, it would have been better, at the very outset, to

focus on January dates rather than November or December dates. Vice President

Al Gore would not have had to move as quickly; he could have prepared his case

better, and the public would not be waiting day after day for a crisis to be

resolved.

The bad factual record in the Florida State Court plagued

the Democrats in the U.S. Supreme Court argument. There was nothing in the

record to show how the federal court, either by affirming or reversing

Florida's highest court, could make a difference.

Interestingly enough, as this is being written, all of the

issues are before the Florida Supreme Court, the best place that Mr. Gore can

be. Yet each of the cases are in the worst possible shape from Mr. Gore's point

of view. The Florida Supreme Court is unlikely to admit, to the U.S. Supreme

Court and the world, that it did not consider the federal Constitutional issues

or that its opinion lacks clarity. And though the Florida Supreme Court has a

bias in favor of the arguments that Mr. Gore has made-namely that the right to

vote is paramount-it's unclear whether that argument can override an inadequate

trial record in both of the cases now before the court, ambiguous language in

the Florida law and a belligerent and biased Florida Secretary of State.

Besides Mr. Boies'

failure to present the courts with crucial facts and to take all the time

allowed him by law, Mr. Gore's case was hurt by the Bush team's tactics. At the

weekend trial before Judge N. Sanders Sauls of Leon County Circuit Court, the

Bush team ran out the clock on the Gore team through long cross examinations

and repetitive witnesses. Delaying the law often gets a bad name, but it is a

perfectly appropriate part of a legal strategy. Mr. Boies tried to get his case

through quickly, and in so doing had to go with less-than-perfect witnesses, one

of whom was subject to a very damaging cross examination. And, yes, the case

had its "Perry Mason moment," when the maker of the voting machine was forced

to testify that a manual re-count would be more accurate and would truly tell

all of us how Florida voted-but such a point should have been made earlier, and

by the Boies team's own witness.

Also contributing to Mr. Gore's Florida Circuit Court defeat

was Judge Sauls. At the end of the day, the trial judge controls the courtroom.

He can make a lawyer look good or bad. Judge Sauls constantly interrupted the

rhythm of Mr. Gore's legal team, the rhythm of the direct and cross

examinations. The judge also controls the facts, and he solely defines the

burden of proof that each side has to meet. He reduced Mr. Boies and his team

to the appearance of novices. He kept out facts that the Gore team needed, and

he allowed in facts that the Bush team needed. Whether the Florida Supreme

Court will permit the judge's actions to be the final say on who shall be President

of the U.S. remains to be seen.

This, however, is all in the course of trying a case. One

side has to win and one side has to lose. The Gore team lost, despite its

stellar legal team.

The supporting cast of lawyers were also excellent. They

framed their questions precisely and got what they wanted out of their

witnesses, proceeding respectful of the system. The Florida justices also

earned our respect for their humor, intelligence and commitment to try and

define a legal way out of this political thicket.

All in all, an extraordinary civics lesson for a country

that badly needs one. And the creation of role models that we should all

respect.