 Thursday, October 12, 2006
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Reposted from The Raw Story.
The New Enabling Act
John Steinberg
I cannot view the current debate about the Bush Administration’s latest
attempt to remove all checks on its power without thinking about how my
German and Austrian grandparents must have watched with disbelief as
Europe sank into the madness of fascism. I think about how
unprecedented those changes were, and how difficult it must have been
to believe that things could really become as bad as they did. My
grandparents had once been as comfortably integrated into their
communities as I am in mine. In the end their assimilation mattered not
at all; they fled, leaving behind family, friends, property and
possessions. Unlike millions of others, they were fortunate to escape
with their lives.
At the time, perhaps, it was difficult to recognize the exact moment
when the die was cast – when the malignancy gained sufficient momentum
to make what followed inevitable. But in hindsight, the Enabling Act,
passed by the German legislature in 1933, might well have been the
point of no return.
Hitler was elected Chancellor (a point conveniently forgotten by
many) in January 1933 on a platform of anti-communist propaganda. In
February, the Reichstag, the equivalent of our Capitol, was
destroyed by arsonists,
who may or may not have been affiliated with the Nazis. Appropriately
cowed by these and other intimidations, the German parliament passed
the Enabling Act that March.
The
Enabling Act,
officially known as the “Law to Remedy the Distress of the People and
Realm,” was short and simple. Its operative provisions were as follows:
Article 1-- In addition to the procedure prescribed by the constitution, laws of
the Reich may also be enacted by the government of the Reich….
Article 2 -- Laws enacted by the government of the Reich may deviate from the
constitution as long as they do not affect the institutions of the
Reichstag and the Reichsrat. The rights of the President remain
undisturbed.
Article 3 -- Laws enacted by the Reich government shall be issued by the Chancellor and announced in the Reich Gazette….
That, seasoned with only a soupçon of legalistic detail, was it.
What it meant was that the executive was empowered by the legislature
to decide what the law was. He was empowered to ignore the
constitution. Neither the courts nor the legislature would have means
to check executive power.
When the world saw the logical conclusion of that social experiment, it promised, “never again.”
Never again.
That promise has usually been understood to refer to the Holocaust.
To that extent, the tragedies of Darfur and Bosnia and Rwanda stand as
silent refutation, differing in scale but not culpability. But there
was another implicit promise of lessons learned: Never again would the
people of a powerful Western democracy descend into the madness of
unrestrained dictatorship.
That second promise was largely implicit, because it seemed
superfluous. After the obscenity of WWII, the idea that it could be
broken by the United States or its allies was unthinkable. And that
promise, at least, was largely kept.
Until now.
Forget, for the moment, that the
proposed “compromise”
torture legislation effectively abrogates the Geneva Conventions.
Forget that it effectively licenses torture in the name of every
American. Focus instead on the
fact that it “vests in the administration the singularly most tyrannical power that exists –
namely, the power unilaterally to decree someone guilty of a crime
and to condemn the accused to eternal imprisonment without having even to
charge him with a crime, let alone defend the validity of those accusations.” Focus on this language from the proposed law:
…(N)o court, justice, or judge shall have jurisdiction to
hear or consider any claim or cause of action whatsoever, … including
challenges to the lawfulness of procedures of military commissions
under this chapter.
…No court, justice, or judge shall have jurisdiction to hear or consider
an application for a writ of habeas corpus filed by or on behalf of an
alien detained by the United States who has been determined by the
United States to have been properly detained as an enemy combatant or
is awaiting such determination.
The language of the new Enabling Act is a bit more baroque than that
used seventy years ago. And, to be sure, it is not as far-reaching as
that of its predecessor. But make no mistake: Just as the 1933 Enabling
Act created the context for dictatorship, so does this one. The German
legislature told the executive that it had the power to make law and
ignore the constitution. If Congress passes this bill, the American
legislature will second the motion.
It is just one bill, you may object; it only applies to terrorists,
you may say; we are not Nazi Germany, you may insist. And yet. The
forthcoming FISA bill extends Enabling Act thinking to additional
unreviewable
executive powers. The slippery slope has been well-oiled. The
Niemöller poem stands waiting.
It is probably unrealistic to expect bright lines to be obvious at
the moment they are crossed. But they don’t get much brighter than
this: Congressional leaders have agreed to suspend habeus corpus, grant
the President of the United States the power to torture, and allow the
executive branch to operate beyond judicial review. The Administration
will be free to dispense with the pretense that Abu Ghraib was a rogue
operation of unsupervised underlings. Like a black hole, an
Administration exercising unprecedented power accretes still more, with
the blessings of those who cede it. We are on our way back to the
nightmare that
Nietzsche foresaw (but did not advocate) in which all is permitted.
President Bush, in yet another
dog whistle callout to his faithful, has claimed that the disaster of Iraq will eventually be seen as “
just a comma,”
a reference to a sermon urging that followers not “put a period where
God puts a comma.” The first Enabling Act was one such comma. There can
be little doubt as to the kind of sentence Bush wants to write.
