The New Enabling Act

The following, originally posted at http://rawstory.com/ was written before the detainee bill passed in October. The piece is far better than anything I could put together. Take special note of the language in the bill cited by the author which strips the Courts of the power to review the constitutionality of the 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.