Look at it this way:  when a case is reported in whatever volume of case reporter volumes a court might publish, that case becomes precedent.  It stands forever as a public record of what people involved in that case did, said, and what the court decided about their acts and words.

When I counsel attorneys (I occasionally get ethics and malpractice cases) about whether to do or not do something, I pull an attorney discipline case from the shelf and say:  "Look at [name] and what the judges say he did.  You know the worst part?  It's in the books that [name] did [X].  Forever.  Do you want to go down in the books such that, two hundred or more years from now, all they'll know about you is that you did [whatever]?"

The same obtains in politics.  The Founders and the Drafters of the Constitution were well acquainted not only with Enlightenment political thought, but also with what the ancients did.  Remember, by way of example, that Gibbon's "Decline and Fall of the Roman Empire" was the bestseller of the English-reading world for several years beginning in 1776.  If one sits down and reads even the abridged paperback edition (which I started on my fishing vacation last summer - always take at least one thick book, for bad-fishing days), it is inescapable that many of the same schemes and connivances in ancient Rome and the names of those on whatever side of them were familiar to the Founders and the Drafters.  Moreover, and a fortiori, the Founders and Drafters designed the checks and balances into the Constitution having been enlightened by the flaws in the systems of governance in ancient Rome, and in other places, too.

What we do, and what we vote and say, today, will ring down through the centuries.  And those who stand with Bush and Cheney, or oppose removing them, will do so at the peril of being on the wrong side of history.

I wonder what it will be like to live, say a century or two in the future, when people may well look back at these days, shake their head and wonder "what ever possessed them, that they discarded all the rights they'd won, defended, and brought into other nations, merely for the illusory promise of 'security'?"

Every now and again, when I listen to Austrian radio, I'll hear them refer to the "Grossdeutsche Wahn*" - that's the mass hysteria which accompanied the bullsh*t Hitler and his cronies sold the German-speaking (and a lot of the rest of the) world.  Sixty years on, they're still shaking their heads wondering "what the hell were we thinking".

*"Wahn" means, roughly, "Craziness", "insanity" or "Hysteria".

On the other hand, in a century or two, torture, degradation and authoritarianism may, because of Bush, Cheney and their henchmen, be as normal and accepted as breathing, eating and drinking.  After all, in ancient Rome, not only were there multitudes of slaves, but a slave could not testify without having been tortured first.  And everyone thought that normal.

The paradigm for the future - for the descendents of those who may have kids today - is what the choices made today will decide.  And that is why the precedent we set today is eternal.  Once that choice is made, or ducked, it's done and the alternative path now available, is gone and can't be gotten back.

Kapish?

I commend to readers the following remarks, posted over at Balkinization about a week ago, entitled "Torture, Secrecy and the Bush Administration".  It's too long to crib over to here, and digresses some from my main point, which is answering "What is eternal precedent?"  But, one of the most noteworthy points it makes is that a lot of the machinations and wrongdoing by the present government stem from (although he doesn't label it as such) a bit of a flaw in our Constitutional structure.

After discussing the 1642 case of John Liburne, which really set forth a lot of what we took for granted as the "liberties of Englishmen" (in other words, set the paradigm), the speaker stated:

The Lilburne case sums up the most significant of what may be called the "Commonwealth reforms" of criminal procedure - one of the few legacies of the revolution to survive the restoration of the monarchy.

Secrecy was what the Roundheads found most odious about the Stuart monarchs' justice. Certainly unjust practices accompanied some of our Puritan forefathers to this country; we can't forget the Salem witch trials, for instance. But so too, did a healthy contempt for the abuses practiced by the Stuart monarchs, starting with the notions of torture and secret courts with secret evidence. The contempt was reciprocal of course - they say that King Charles' lip would curl at the very mention of the word "Massachusetts," ... The practice of secret courts. The use of torture to secure confessions. The receipt of secret evidence. The exclusion of the public from proceedings. The offering of evidence in the form of summaries delivered to the judges, without the defendant being able to confront the evidence or conduct a cross-examination. These practices were the definition of tyrannical injustice to the Puritan fathers and the Founding Fathers. We thought them long banished, indeed, a hundred years and more before our own revolution. And now suddenly here they are again.

Secrecy has reemerged just as torture has made its comeback, being justified on the public stage, by government officials for the first time since the famous gathering at the Inns of Court in 1629 at which the judges declared "upon their and their nation's honor" that torture was not permitted by the common law.

The two fit together, hand in glove: torture and secrecy. Torture and secrecy. Where one is used, the other is indispensable.

Torture is no longer a tool of statecraft. Today it is a tool of criminals, though sometimes of criminals purporting to conduct the affairs of state. Having resorted to these "dark arts," to quote Dick Cheney, the torturers now have the dilemma faced so frequently by criminals. They seek to cover it up. And so the path flows from torture to secrecy, the twin dark stars of the tyrannical state.

The flaw being, that the lessons of the English Revolution and the reforms instituted which survived the Restoration were both so strong in the minds and common understanding of the Founders, that they likely thought it unnecessary to do things like, uh, prohibit torture.  It was so anathema, and so universally so, they thought it unnecessary, because no one (At least no one civilized) would engage in such conduct.

Now, those who would engage in such conduct today, rely upon the good manners of those in the past, who thought it unneeded to prohibit that which was anathema.  Silence, to Deadeye, is a license.