Deja vu all over again: the US version of the 1933 Enabling Act
- While any serious student of Steiner's work knows pretty much what's
coming at us, it is ever-more important to astutely observe the pre-game
show. So in the spirit of Michaelmas may each of us serve as a good
"I know how dangerous it is to argue by comparing present events to
the Nazi nightmare. But I did a little research, and the comparison
between the torture bill that Congress is about to pass and the
Enabling Act of 1933 -- the law that gave Hitler his power -- seems
inescapable to me.
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:
In addition to the procedure prescribed by the constitution, laws of
the Reich may also be enacted by the government of the Reich....
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
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."
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.
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."