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ROBERT KUTTNER

Orwell meets Kafka

THE OTHER DAY, the new secretary of homeland security, Michael Chertoff, scrapped the moronic rule requiring everyone to stay seated for 30 minutes coming in or out of Ronald Reagan Washington National Airport.

The premise of the rule, enacted after 9/11, was that if everyone remained in their seats, it would be illegal for a terrorist to rush the cockpit. Apparently, it didn't occur to the genius who wrote the order that only law-abiding citizens would obey. It's a perfect, if small, example of the idiocy of unchecked state power.

Chertoff did not change the rule because some open evidentiary process required him to but because he felt like it. As an immensely powerful official in an increasingly authoritarian age, he did it as a regal act of noblesse oblige: In my majesty/ I now decree/ the people are free/ to go and pee.

As his reason for granting relief, so to speak, Chertoff disingenuously declared that security conditions had improved. This was the week of the London bombings. But, as a high official, he was not about to admit that the rule had been dumb all along. National security bureaucrats don't make mistakes.

It's a small example of a terrible trend -- the relentless accumulation of arbitrary authority and the slow erosion of liberties.

Countless recent news stories have one thing in common -- denial of rights.

A British-born pilot for Cape Air is denied the right to take a course to qualify him to fly larger planes as a security risk. No evidence is offered.

The Bush administration reasserts its right to torture and hold indefinitely prisoners at Guantanamo, on the premise that it is part of Cuba (tell that to Castro!) where presumably totalitarian rules rather than American rules apply -- even though the United States runs the place.

A distinguished and moderate Muslim British educational leader is denied entry at the US border, en route to a conference discussing religious reconciliation and healing. No reason is given.

Immigrants attending required classes on worker safety find that the safety agency is doing the bidding of the immigration police. They can be detained indefinitely if the country of their birth won't admit them, even if they came here as infants.

The administration reasserts that citizens as well as immigrants can be detained indefinitely as security risks.

Congress is on the verge of reauthorizing the misnamed USA Patriot Act with only very modest refinements of its worst features.

Governors complain that Congress rushed through a national ID law with little concern for cost or privacy.

If the American republic was built on any core principle, that principle is the rights of people to be free from the abuses of unchecked power. The Constitution's framers gave those rights not to ''citizens" but to ''persons." In America, everyone enjoys basic rights. Or once did.

In America, certain practices are not permitted -- in any context. We have the right to confront accusers and know the charges. We cannot be arbitrarily detained indefinitely. Trials must be speedy and public. We may speak freely without political retribution.

Now there is a perfect authoritarian storm -- a genuine terrorist threat coupled with an administration that disdains the Constitution and will soon control all three branches of government. As a pretext for arbitrary rule, we have the premise of permanent warfare predicted by Orwell combined with the unchallengeable denial of rights described by Kafka.

Some rights are subject to fair debate -- how much religious symbolism in the public square? What rights, if any, for the unborn? How far to take affirmative action? But far more venerable and fundamental rights are now under assault.

Left and right are bitterly divided today. But if there is one issue that unites nearly all liberals with principled conservatives, it's that we must resist the assault on precious rights. In exploring the views of proposed Supreme Court nominees, the Senate should give the issue of rights priority above all others, since the courts are the last bastion of our freedoms.

There's one more recent news story worthy of special note. The American Civil Liberties Union, the one organization whose entire purpose is to defend rights, finds that the FBI has assembled more than 1,000 pages of files on it as a possible security risk. These files, of course, are classified, in the name of national security. Orwell, meet Kafka.

I'm donating the fee for this column to the ACLU, and everyone who cares about liberty should join it. Look at ACLU.org, or write ACLU, 125 Broad St., New York, NY 10004.

Robert Kuttner, co-editor of The American Prospect, can be reached at kuttner@prospect.org. His column appears regularly in the Globe.

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