THE US ENABLING ACT, 2006

"THE US ENABLING ACT, 2006,
PART I: WHAT IT IS AND SOME COMPARATIVE HISTORY”
by Dr. Steven Jonas
UPDATED: OCTOBER 26, 2006

http://www.thepoliticaljunkies.net/Archived/Year%202006/Oct/Wk%204/Jonas.htm
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/cgibin/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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“THE US ENABLING ACT, 2006, PART II: WHY BUSH WANTED IT”
http://www.thepoliticaljunkies.net/Jonas.htm
by Dr. Steven Jonas
UPDATED: NOVEMBER 2, 2006

In my previous essay on this subject I examined the similarities between the US Enabling Act of 2006 (referred to in the United States Code by the bureaucratic-sounding name of “The Military Commissions Act”) and the Nazi German Enabling Act of 1933. I also explored how the US version virtually emasculates major sections of the US Constitution. This week I am going to briefly review the powers that the Act gives to George Bush and then briefly describe just what are the reasons that he wants them. Guess what? It ain’t about “fighting flanking maneuvers” (I mean “terrorism”).

What the Act does (Wikipedia, “Military Commissions Act of 2006”):


* The Act establishes a new set of US Military Commissions, alongside of those that already exist and have existed in one form or another since the US Army and Navy were founded. These new Commissions are for the purpose of trying “alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses.” The purview of the law is retroactive, indefinitely. That is, it is ex post facto legislation (which just happens to be specifically prohibited by Article I, Section 8 of the Constitution).



* An "unlawful enemy combatant" is “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant” or before the passage of the Act “has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense” (there’s that ex post facto application, again).



* "Alien" is defined as "a person who is not a citizen of the United States.” However, the Act also states that “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.”

* No persons subject to the purview of the Act “may invoke the Geneva Conventions as a source of rights.” The President is authorized to interpret the meaning of the Geneva Conventions as he chooses.

* Persons detained under the Act have no right to a habeas corpus hearing. There is no guarantee of a speedy trial, no protection against being required to testify against oneself, no right to any pre-trial hearings, no guarantee against being held in custody indefinitely without any trial of any kind, whatsoever. There is no right to civilian counsel unless that counsel has “Secret or higher” security clearance (which means that there is no right to choice of counsel). Hearsay evidence, evidence obtained without a search warrant, evidence obtained when an unspecified “degree of coercion” (most people would call this “torture”) has been applied, are all permitted, but access to evidence termed “classified” is not. A “guilty” vote, even when a death sentence might be imposed, requires only a two-thirds majority of the members of the commission present at the time the vote is taken. Persons charged are protected against double jeopardy.

OK, so that’s the Act in a nutshell. So why does Bush want it? Before getting to the question, we do have to examine carefully to whom the law applies. On the one hand it says clearly “aliens.” Many Americans, even among those opposed to both Bush and the Act, like Human Rights Watch, have said “phew, well it only applies to aliens, so we really don’t have to worry too much about it.” But does it really only apply to aliens? There is that “breach of allegiance to the United States,” ”aids an enemy of the United States” clause.

The Act, specifically ignoring the Constitution itself by, for example, creating ex post facto legislation and wiping out habeas corpus absent rebellion or invasion, thus unconstitutionally gives Bush the power to ignore the Constitution on his own authority as well. Further, with is numerous unconstitutional “Signing Statements,” unchallenged by Congress, he has said that he can interpret any piece of legislation anyway he wants and indeed can ignore completely any bits he doesn’t like. The Act gives Bush the power to interpret the Geneva Conventions any way he wants to without consulting either the Congress that ratified them or any other of its signatories, after all, and they, according to Article VI of the Constitution, are part of the supreme law of the land.

So what is to prevent him from interpreting the “allegiance” clause to apply to US citizens who aid an “enemy alien,” as defined by the law? Nothing, as far as I can see, because any person arrested under this Act is denied access to the courts to contest the arrest, as Keith Olbermann pointed out immediately after its passage. So folks, don’t sleep easy. Under this “the Constitution is just a scrap of paper,” “the Unitary Executive is all,” President everybody within his reach is subject to permanent incarceration at the discretion of this President or his designee. Where, you might ask? Well in Nazi Germany they called those places in which persons were incarcerated under the same kinds of laws and by the same means “concentration camps.” (It has been reported that Kellogg Brown & Root, a Halliburton subsidiary, is constructing a huge facility at an undisclosed location to hold tens of thousands of Bush's "unlawful enemy combatants." Why could not Americans be among them? 10-10 http://www.alternet.org/rights/42458/? It has been speculated in fact, that there are up to 800 of such facilities available for potential use, http://www.sianews.com/modules.php?name=News&file=article&sid=1062).

So then why did Bush want this law and why did he want it so badly? He doesn't need it to go after "terrorists." He has had plenty of tools to do that, and in fact has used them little. It happens that Bush has never offered even one little reason why the present law doesn’t work for him in “fighting flanking maneuvers” (oops, I mean “terrorism”) and why he needs this one. He has had large numbers of men under permanent confinement for a number of years now. He has had a military court system that under pre-existing US law is plenty tough enough and military prisons are tough enough without using torture, even of the simple hooding, sensory deprivation (shown on the front cover of Newsday some time ago), water boarding type. Why doesn't he want to use that system? Why does he keep saying “now we can really get them” when he certainly could have “gotten them” before (that is, if he had the evidence --- details, details). Why secret courts? With evidence, one certainly could convict real terrorists in regular US military courts.

Well first, the Georgites are terrified of what would likely, or least might well, come out in open court under the time-honored procedures provided for by the US Constitution. Apparently, many of the current prisoners are totally innocent of any sort of “crime against the United States” and were picked up on whims or at the behest of other intelligence services (and now we will never know). Many of the captives are apparently (now we will never know) nothing more than political activists. The Georgites are terrified of what the prisoners might say in open court on direct examination about how they have been treated and about the total lack of evidence for the US incarceration of them in the first place.

If those who indeed were terrorists or involved in some way in terrorist plots, the Georgites are terrified about what they might reveal about what really happened in the plots, successful or not, possible US or other Western complicity in them, what they might know about the US letting Osama go, where he is now, that he might indeed be a US asset, very useful for Georgite propaganda purposes, and so one and so forth. These are indeed potentially dangerous men, potentially dangerous that is to the political interests and political power of the Georgite Regime.

So if he doesn’t want/need it to “fight terrorism,” why does he want it? For two reasons. First, it does establish the “Unitary Executive” that has been a gleam in Cheney’s eye since the Watergate days. As I showed last week, it shreds most of the basic individual rights guaranteed until now by the Constitution. It has established the precedent that Congress may amend the Constitution on its own authority without bothering to go through the amendment process that is detailed in Article V of the Constitution. It also gives the President the power to amend the Constitution on his own authority through the “interpret the Geneva Conventions as he chooses” clause. For this “to-hell-with-the-law-I’ll-do-what-I-want” President (again see the “Signing Statements” and what they say) there is one kind of legal precedent that is important: the kind established in this law. Remember, he took the nation into war on the basis of a very vague Congressional resolution on “combating terrorism,” saying that it was enough. With this law as precedent, this President could go to town further shredding the Constitution, for example, on his own authority because of the authority it gives him to “interpret” the Geneva Conventions.

Second, it now becomes obvious that the primary intended use is for future domestic repression. The Georgites know what will begin to happen in this country if: Bush starts trying to use the powers given to him by the US Enabling Act to begin to selectively lock up opponents of the regime such as, for example, anti-Georgites who publish regularly on one or more websites; the War on Iraq continues and the opposition to it becomes overwhelming and reaches the street demonstration stage; the economy goes further south for the average American worker, what the numbers are put out by the Georgites and a militant organize labor movement is re-born; the regime attempts to fulfill its pledges to the Christian Right to criminalize personal beliefs and behaviors not in accord with their religious dogma; Bush further expands his dictatorial powers through actions of the Republican Congress coupled with is “Signing Statements;” a Georgite Supreme Court endorses all of the above and maybe even outs itself totally out of the business of protecting the personal rights and liberties guaranteed under the constitution; Bush cancels the 2008 elections by creating another 9/11 and declaring a “National Emergency.”

Back at the beginning of 2005 I wrote a series in this space entitled “The Coming Second Civil War.” The US Enabling Act of 2006 has brought it several giant steps closer.

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Dr. Steven Jonas is a contributing author for The Political Junkies (www.thepoliticaljunkies.net). He is a Professor of Preventive Medicine at Stony Brook University (NY) and author/co-author of over twenty books. Dr. Jonas is one of America's most perceptive Democratic political analysts.

In his book The New Americanism, Dr. Jonas presents his proposal for that “new vision and mission” for the Democratic Party that so many, for so many years, have been urging it to find. A new vision and mission are obviously needed with increasing urgency as with increasing speed and determination the Georgites drive our nation towards frank theocratic fascism. Dr. Jonas finds the needed vision and mission in the Declaration of Independence and the Constitution. "The New Americanism: How the Democratic Party Can Win the Presidency is available from Amazon.com (go to "Books;" enter the title) and BarnesandNoble.com (same).

He is also the author of The 15% Solution: A Political History of American Fascism, 2001-2022. Under the pseudonym "Jonathan Westminster" this book was originally published in 1996. It was republished with a New Introduction in 2004. Under Georgite rule, the “fictional non-fiction” scenario of this work of “future history” is, most unfortunately, becoming all too real, now almost day-by-day. The 2004 edition is available at www.barnesandnoble.com (search with the book title) and www.xlibris.com (click on “Bookstore,” then “Search” with the title). Both versions are available at www.amazon.com (go to "Books;" search with the title).

Dr. Jonas is also a Contributing Editor for the Weblog http://planetarymovement.org/blog/, produced by The Planetary Movement Ltd. UK (http://planetarymovement.org/blog/), TPJ's own Michael Carmichael, President and Chief Executive Officer, a Contributing Columnist for the Project for the Old American Century, POAC (http://www.oldamericancentury.org/), on which his TPJ columns appear regularly, and a Columnist for the webmagazine BuzzFlash (http://www.buzzflash.com/) on which short(er) articles are published once a week or so. By invitation, Dr. J's TPJ columns are also posted periodically on the weblog Thomas Paine's Corner (http://civillibertarian.blogspot.com/).