archived: 22 - 28 Oct, 2006         Back                 Next

UPDATED:  OCTOBER 26, 2006  

            "THE US ENABLING ACT, 2006,
            PART I: WHAT IT IS AND SOME COMPARATIVE HISTORY”                                           

It was an event little noted by persons other than those of us who are devoted to the American concept of Constitutional Democracy. But it will be long remembered by the whole world, if there is a future history to record it. On Sept. 29, 2006, the Congress of the United States passed an act formally known as “The Military Commissions Act.”  It was signed by Pres. Bush on October 17.  If there was an accompanying “signing statement” stating that he didn’t intend to comply with this new law because in his view it is unconstitutional (which it is on its very face), which he has done with so many pieces of legislation he doesn’t like but couldn’t be bothered to veto, I must have missed it. 

A better name for the Act is "The US Enabling Act." It is the equivalent of the Act that came to be known by that name that was passed by the German Reichstag on March 23, 1933.  (The formal name of the German one was the "Law to Remedy the Distress of the People and the Reich.")  It gave the German Chancellor, Adolf Hitler, the power to over-ride the protections for freedom and liberty written into the German (Weimar) Constitution of the time, if he determined that so doing was necessary to protect the nation from terrorism and "actions endangering the state." It was under that Act, of course, that Hitler established his dictatorship. 

Specifically, the Nazi Enabling Act gave Hitler the authority to, on his own authority, over-ride the following provisions of the Weimar Constitution (a constitution that happened to be much more explicit concerning civil rights and liberties and their protection than ours is): Sections 114, protections against restrictions on personal liberty; 115, requiring warrants for house-searches; 117, providing protection against violations of the privacy of postal, telegraphic, and telephonic communications (!); 118, guaranteeing the right of free expression of opinion, including freedom of the press; 124, protections guaranteeing the right of assembly and the right of association; and 153, providing for due process for orders for confiscation as well as restrictions on property, These provision were all “suspended until further notice.”  

The US version (http://frwebgate.access.gpo.gov/cgi bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s3930enr.txt.pdf) gives the President the power to over-ride, on his own authority, the following provisions of the US Constitution, if he determines that it is necessary to do so to “protect the nation from terrorism,”  should he decide that a person "purposefully and materially supported hostilities against the United States": Articles I, which establishes the powers and the limits thereon of the legislative branch; II, which establishes the powers and the limits thereon of the executive branch; III, which establishes the powers and the limits thereon of the judicial branch; V, which establishes the procedure for amending the Constitution; and VI, which establishes signed-and-ratified treaties as the “supreme law of the land;” and Amendments I, freedom of speech, the press, assembly, and petitioning the government for the “redress of grievances;” IV, protection against unreasonable search and seizure and the requirement for warrants based on probable cause; V, guaranteeing the due process of law; VI, guaranteeing open, speedy trials in criminal prosecutions; and VIII, protection against cruel and unusual punishment.  (See, for example, "Rushing off a Cliff," New York Times Editorial, 9/28/06; "It's Mourning in America," a BuzzFlash Editorial, 9/29/06; "In Case I Disappear," William Rivers Pitt, Truthout, 9/29/06; “A Dangerous New Order,” New York Times Editorial, 10/19/06.)  For the time-being the claim is that the law does not apply to US citizens, but since Bush has given free reign to do with the Constitution whatever he wants to, hey you never know. 

We do not know at this time whether the long-term outcomes of the events of this week in the US will be in any way similar to those that befell the German nation and the German people, as well as the people of much of Europe, under the Hitlerites. The potential for Georgite harms of course spreads much further, to the future of our species and perhaps to all the species of the Earth. What happens remains to be seen. But it will be much easier to fight the Georgites on this most central issue if people will begin to see the similarities between them and the Hitlerites.  

A friend said to me recently, "isn't it amazing what is happening here, the drive towards fascism?" (My short definition is: “Fascism is a politico-economic system in which there is: total executive branch control of both the legislative and administrative powers of government; no independent judiciary; no Constitution that embodies the Rule of Law standing above the people who run the government; no inherent personal rights or liberties; a single national ideology that first demonizes and then criminalizes all political, religious, and ideological opposition to it; and total corporate determination of economic, fiscal, and regulatory policy.”  If you want to see my longer definitions, please refer to my TPJ columns of May 27, 2004 “On Fascism -- And The Georgites,” of Jan 27, 2005 “Comparing George W. Bush and Adolf Hitler”, and of February 10, 2005, “The Georgite Version of ‘Freedom and Democracy’.”)

I replied that what was amazing to me was not that a group like the Georgites was attempting it. Rather, I told him that I was amazed that there was so little awareness of the parallels between what is going on here now and the Nazi German experience (see, for example, a series of columns of mine going back more than two years published on the The Political Junkies the links to which can be found at the end of this column). At least the German people could be excused in part for what happened because at that time there were no historical parallels to look back upon. There are differences, of course. Interesting among them are differences in the mode of the taking of total power in the two instances. 

Hitler was appointed Chancellor by the German President, Marshall von Hindenburg, on Jan. 30, 1933. The Enabling Act was passed less than two months later. It has taken the Georgites close to six years to get similar powers. Hitler actually went through the formal process of amending the Weimar Republic's Constitution with a 2/3's vote of the German Parliament, the Reichstag. The vote was fixed a bit, to be sure. Hitler banned the large number of elected Communist Party Reichstag members completely. (Most of those who had not been arrested in early February, 1933 had fled Germany anyway.) Most of the Socialist members were banned or under arrest also. The Nazi members, less than an elected majority, showed up for the vote wearing their SA "Brownshirt" uniforms and the hall was surrounded by SA troopers in uniform. However, Hitler at least went through the motions of amending the Constitution. He had, after all, upon taking office promised Pres. von Hindenburg that he would respect the Constitution. And that Constitution did contain Article 48, giving certain powers to the President (although not to the Chancellor, the equivalent of Prime Minister): ”If public safety and order in Germany are materially disturbed or endangered, the President may take the necessary measures to restore public safety and order, and, if necessary, to intervene with the help of the armed forces.” 

In the US, the Republican Congress, with some Democratic allies like Joe Lieberman, has amended the US Constitution without bothering to go through the amendment process provided for in that document. Neither force nor the threat of force as applied to the members of Congress was necessary. Why is Bush so successful, despite the fact that (like Hitler) he has only a minority of the population behind him? There are two reasons, only. First he has the Congress. He has it in large part because of the un-Constitutional re-districting for House seats; the grand tilt to the under populated, right-wing states in the Senate caused by the two-seat formula; and the Rovian Grand Theft Election machine (active in Congressional as well as Presidential elections). But he has it. Second he has his vast Privatized Ministry of Propaganda. It's a contemporary Orwellian World, as so eloquently pointed out by my friend Michael Carmichael in his essay "Ignorance is Strength" (The Planetary Movement.org, 9/26/06).  

So for the Georgites, facts don't matter, even as they come spilling out in ever more horrifying detail (e.g., the National Intelligence Estimate, the testimony of an increasing number of US generals about Iraq, the on-going Katrina disaster, the new Woodward book). Consider once again the Nazi German experience. Between the conclusions of the battles of El Alamein in November, 1942 and Stalingrad in January, 1943, Nazi Germany had lost the war and many members of the General Staff knew it. The German people were getting their kishkas bombed out from that time on to the end. Yet Hitler remained in power and in January 1945, with the Soviet Army moving steadily across Eastern Europe, his Rove-model Propaganda Minister Josef Goebbels, was telling the German people that Hitler was still going to win. And his internal terror system (the Gestapo, et al), enabled by his original Enabling Act, remained in place. Facts mean nothing when you've got the world's most powerful propaganda machine broadcasting your message to your own people, you have no effective political opposition, and you've got an over-arching internal terror machine that was originally created by seemingly legal means. 

The Georgites are in control of the governmental levers of power. They don’t have an internal terror machine yet, but they are taking recruits into the armed forces qualified for one by their membership in (presently) fringe far-rightist action groups now, and they are training a cadre of concentration camp guards/torturers in the armed forces and the CIA now too.  They may well right now be planning for how to keep hold of those levers of governmental power after Jan. 20, 2009.  Yes indeed.  We do have to hope for (pray for, if you are a praying person, which I am not) a Democratic takeover, in spite of the power of the Rovian Grand Theft Election machine, of at least one House of Congress on Nov. 7.  Given the number of Lieberman-like collaborators (yes, he voted for the Act) among the Democrats, they might not be able stop the Georgite drive to fascism, but at least there would be a better chance of doing so than we have now. 

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Next week I will be dealing with the major powers that the Act gives to Bush, the major precedents it sets for him and the Congress, and why the Georgites want them.

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