Dave Hodges

More About: Philosophy: Fascism

Back to the Future: Echoes of 1935 (Part Three)

Either you are with us, or you are with the terrorists.

George W. Bush

With the passing of the German Enabling Act of 1933, Hitler removed the last vestiges of democratic pretense in pre-Nazi Germany. Article two of the Enabling Act stated that "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. The rights of the President remain undisturbed." Ultimately, what the Enabling Act meant was that the executive branch of the German government was empowered by the legislature to decide what the law was. Hitler was permitted to ignore the German constitution and neither the courts nor the legislature would have the means to check his new found executive power.

Hitler also persuaded President Hindenburg to sign Article 48, an "emergency" decree authorizing Hitler to suspend all civil rights, arrest and summarily execute any person who was designated as being a person who was deemed "suspicious" by Hitler and his cronies. Subsequently, a reign of terror ensued in which thousands (communists, social-democrats, labor union leaders) were arrested and sent to prison, or worse. To maximize Nazi influence, the non-Nazi press was outlawed. And so began one of the darkest chapters in human history.

America is walking down this same slippery slope with the recent passage of the Military Commissions Act of 2006, also referred to as the "Detainee Bill".

Most Americans may be unaware that George W. Bush, like Hitler, came to power legally. Hitler and his Nazi Party were elected democratically in a time of great national turmoil and crisis. They themselves had done much to cause the turmoil, of course, but that's what makes the Bush comparison so compelling.

Similar to the Bush administration, the Nazis were funded and ultimately ushered into power by wealthy industrialists looking for government perks in the form of tax breaks, big subsidies, unbidded, lucrative contracts and policies designed to weaken the rights of workers. When the Reichstag was set ablaze, in 1933, by the Nazis, they blamed the Communists and used this excuse to seize total control of the government in order to preserve the safety of all German citizens. After the infamous events of 9/11, the Bush administration, in a matter similar to Hitler's usurpation of German constitutional power, is overseeing the enactment of unconstitutional legislation which is ostensibly going to protect American citizens from the dangers posed by global terrorists. As a result, Bush has incrementally seized control of the government through a series of egregious acts which characterize constitutional violations in a manner which rivals the control that Hitler gained over 1935 Nazi Germany.

Historically, when Americans are arrested within the borders of the United States, they can expect certain constitutional protections. Americans have the right to remain silent and have an attorney present at any and all questioning. Citizens must be charged with a crime within a reasonable time. In the discovery phase of a criminal trial, the defendant has the right to examine all evidence the prosecution claims it will use. Rules of evidence are strict and judges rarely allow hearsay evidence to be presented in court. Except in capital crimes, bail is almost always offered to a defendant. The defendant also has the right to cross-examine all witnesses who would testify against them. Under the 5th Amendment to the United States Constitution, a defendant cannot be compelled to testify against themselves. This would preclude the use of torture as a means of extracting a confession from the defendant. Under the 4th Amendment to the United States Constitution, evidence which is obtained through an illegal search by the authorities cannot be used against the defendant in court. Further, the United States maintains an extensive appellate system of courts which are designed to protect the constitutional rights of all citizens when the lower courts have failed to do so. These rights, and more, are guaranteed to all United States citizens under the United States Constitution, until now. In a matter which rivals the darkest days of Nazi Germany, every constitutionally protected right, listed above, is no longer applicable for United States citizens for whom the President, and the President alone, has declared that they are an enemy combatant in which constitutional protections are not afforded.

On its face, the Military Commissions Act of 2006 appears to protect Americans from the dangers associated with terrorists. However, many who have examined the recently passed law have grave concerns over what this law will mean to average American citizens. For example, Yale Law Professor Bruce Ackerman states in the L.A. Times, "(this legislation)....authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights." Along the same lines, legal scholar and professor, Professor Marty Lederman, explains: "this [subsection (ii) of the definition of 'unlawful enemy combatant'] means that if the Pentagon says you're an unlawful enemy combatant, using whatever criteria they wish. Then, as far as Congress and U.S. law is concerned, you are one, whether or not you have had any connection to 'hostilities' at all."

Most Americans would not express sympathy for their fellow countrymen who would dare to betray our country and provide aid and comfort to the enemy, nor do I. But the President is not just talking about enemy collaborators; he could be talking about you if you dare to criticize the government, its leaders and its policies. Subsection 4(b) (26) of section 950v. of the Military Commissions Act of 2006 discusses crimes triable by military commissions. This includes the following definition: "Any person subject to this chapter, who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct." Under this law, you have an implied duty to demonstrate allegiance and a sense of the duty to the United States and its government. This offense is punishable by death. If a journalist dares to challenge the official version of 9/11 are they, in effect, giving aid and comfort to the enemy? When journalists challenged the voracity of the claims for presence of weapons of mass destruction in Iraq, as a questionable pretext for war, would these journalists now be considered to be in a material breach of their duty as a United States citizen? The current definition of "enemy combatant," to whom the law would apply, broadens its reach from those who "engaged in hostilities against the United States" to those who "purposefully and materially supported hostilities against the United States." Material support is a vague concept that can be, and has been, applied to lawyers and interpreters assisting clients. Should lawyers who are United States citizens, acting within the boundaries of the United States and plainly protected by the Constitution, be subjected to trials before a military tribunal rather than a criminal court? The vagueness of the law seems to say yes. Further, for an individual to hold an allegiance or duty to the United States they need to be a citizen of the United States. Why would a foreign terrorist have any allegiance to the United States to breach in the first place? Several constitutional scholars concur that this law clearly applies to United States citizens. This is indeed frightening!

Further actions that result in the classification of an individual as a terrorist include the following.

1- Destruction of any property, which is deemed punishable by any means of the military tribunal's choosing.

2- Any violent activity whatsoever if it takes place near a designated protected building, such as a charity building.

3- A change of the definition of "pillaging" which turns all illegal occupation of property and all theft into terrorism. This makes squatters and petty thieves enemy combatants.

Many legal scholars and average American citizens decried the passage of the Patriot Act as an affront to constitutionally protected civil liberties. When the Patriot Act was passed, many compared it to the Nazi policies of 1935. The critics point was well-taken.

In defense of the Nazi Enabling Act and the modern day American Patriot Act, consider the following two very similar arguments made in both of their behalves: "The people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country." The second statement of justification argues that "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve." The first statement is a quote from Hitler's main henchman, Hermann Goering, testifying at his war crimes trial how easily he and his fellow Nazis seized control of Germany's democratic government. The second statement is a quote from Bush's former henchman, John Ashcroft, who was fervently defending the Patriot Act and explaining that dissent will no longer be tolerated in the age of terrorism. If that doesn't make the hairs on the back of you neck stand up, nothing will.

The new Detainee act does much more than broadens the definition of an enemy combatant and demand allegiance to the United States government and its officials. For example, Habeas Corpus is gone as the new law declares "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."

And if you are looking for a fair trial consider the changes in rules of evidence permitted under the new statutes. "PROTECTION OF SOURCES, METHODS, OR ACTIVITIES- The military judge, upon motion of trial counsel, shall permit trial counsel to introduce otherwise admissible evidence before the military commission, while protecting from disclosure the sources, methods, or activities by which the United States acquired the evidence if the military judge finds that (i) the sources, methods, or activities by which the United States acquired the evidence are classified, and (ii) the evidence is reliable…….." Under this provision, hearsay evidence is permissible if the judge deems it to be relevant.

Of course the courts will strike this law as unconstitutional, right? Probably not. Attorney General Alberto Gonzales, who is defending President Bush's anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president's judgments in wartime. Please reread the earlier paragraph which states that "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus ….." With this statement, Bush has effectively negated the 200+ year practice of judicial review. The Detainee act has effectively set Marbury vs. Madison on its ear. Just as Hitler was able to negate the German courts and legislature, the new law effectively gives Bush and every other future President the same far-reaching powers.

The law also allows hearsay evidence, obtained via phony confessions after torture, to be considered by the military tribunal and bars the suspect from even having knowledge of the charges against him - making a case for defense impossible. Further, you only have the right to cross-examine witnesses who testify against you. What about the witnesses who testify against via a witness statement? These practices are guaranteed to produce 100% conviction rates from military tribunals who are allied with the Bush administration and provide phony confessions obtained from torture that allow the U.S. government to scare its people with the threat of imaginary Al-Qaeda terror cells waiting to kill them.

It seems that the Department of Homeland Security is about to become the American version of the Gestapo. The first Patriot Act already allows for people to be locked up indefinitely without a lawyer and without being charged with a crime. When Patriot Act II passed, the arrests could be secret. Under the new Detainee law, dissenters, or anyone else that the government disapproves of including American citizens, could disappear without a trace, just as they did in Nazi Germany, in Stalinist Russia, and in Pinochet's Chile.

Not all politicians agree that the President should be entrusted with such broad ranging powers. "I strongly believe this legislation is unconstitutional," Senate Minority Leader Harry Reid (D-Nev.) said. "It will almost certainly be struck down by the Supreme Court. And when that happens, we'll be back here several years from now debating how to bring terrorists to justice. I am convinced that future generations will view passage of this bill as a grave error." One can only hope that Reid is correct. However, if Alberto Gonzales is correct, there will be no judicial review of this matter.

Under the Bush Administration, we have witnessed the implementation of the following very undemocratic practices which rival the worst of the Gestapo:

1. Secret CIA prisons

2. The use of Gestapo-like Torture

3. Spying on all American citizens.

4. Arrests and indefinite imprisonment without trial.

5. Omnipresent imperialistic militarism and corporate-benefiting wars of conquest.

6. Secret and unlawful detention

7. Denial and restriction of habeas corpus.

8. Prolonged incommunicado detention in the American Gulag

In a poem attributed to Pastor Martin Niemöller (1892–1984) regarding apparent inactivity of German citizens following the Nazi rise to power and their subsequent persecution of their chosen target groups.

When the Nazis came for the communists,

I remained silent;

I was not a communist.

When they locked up the social democrats,

I remained silent;

I was not a social democrat.

When they came for the trade unionists,

I did not speak out;

I was not a trade unionist.

When they came for me,

there was no one left to speak out

If you strain your ears you might be able to hear the boots marching in your direction. If clear your nostrils and inhale deeply, you may get a whiff from the odor of burning books. But you should not have to strain your eyes to clearly see that we have "Gone Back to the Future" and the year is 1935.

1 Comments in Response to

Comment by Michael Shelby
Entered on:

Remarkable! Spot on! Must reading for every sentient, aware, and concious American! The sad news is that the **QQ**Sheeple**QQ** will never get it . . . until they come for them.

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