EXPLOITING EMERGENCY
NAZI LESSONS FOR POST-9/11 AMERICA
By Brian Hannon
There is an ugly historical precedent of political leaders using national
emergencies in ways that, either purposefully or not, undercut the rights of
citizens. America is currently experiencing this brand of undemocratic
exploitation in a manner disturbingly reminiscent of modern Europe’s worst
regime.
The April 28 broadcast of National Public Radio’s On Point program
analyzed arguments in the Supreme Court earlier that day concerning the
legality of indefinitely detaining two U.S. citizens accused of terrorist
activity. Designated as “enemy combatants” by the Bush administration, Jose
Padilla and Yasir Hamdi had been held since 2002 in a South Carolina
military brig with no access to the United States legal system.
A member of the On Point audience offered an interesting comparison
to one of history’s greatest villains: Adolf Hitler. The caller noted that
the Nazi chief initially tried to overthrow the German government in a
violent 1923 uprising known as the Beer Hall Putsch and was imprisoned as a
result. Ten years later, however, Hitler successfully took control of his
country by legally exploiting its imperfect political system. In apparent
support of the Bush administration, the caller opined that by giving accused
terrorists access to America’s courts, those alleged evildoers would gain
the ability to utilize the system for their own nefarious ends.
Yet Hitler’s rise to power provides another analogy highlighting a much
larger threat to our American freedom: George W. Bush’s “War On Terror.”
In the Weimar Republic, as Germany was known during the short period between
World War I and the Third Reich, a constitutional statute known as Article
48 allowed the executive branch to rule through decree and circumvent
Germany’s parliament, the Reichstag, by declaring a state of emergency.
Less than a month into his tenure as chancellor, Hitler invoked Article 48
after the Reichstag building went up in flames in February 1933. Set by a
deranged Dutch communist, and to this day still suspected of being a Nazi
scheme, the fire gave Hitler a pretext to restrict civil liberties, such as
press freedom and the right to assemble, and to corral his political
opponents campaigning for an upcoming Reichstag election. The Enabling Act
passed a short time later gave the füehrer full totalitarian powers.
Americans would never let their country fall into an authoritarian regime of
the type birthed in Germany’s volatile interwar period, and even the
staunchest opponent of George Bush cannot in good conscience associate him
with the twisted Hitler. Yet there is a situational and tactical comparison
to be made. In his almost religious fervor to tighten the security of the
nation, Bush has made the War on Terror a modern version of Article 48
through which he is attempting to rule by decree and evade the legal checks
on his power.
Germany’s leaders were able to exploit Article 48 because it did not clearly
define an “emergency” or any specific dangers under which the statute should
be invoked, leaving it to the judgment of those in power. The Bush White
House has painted a similarly fuzzy portrait of the terror war, enabling the
administration to use it as a justification for the arrest and indefinite
detention of “enemy combatants” such as Padilla and Hamdi, as well as the
erosion of American civil liberties through the controversial Patriot Act.
While Americans will in all likelihood never experience anything akin to the
Nazi policy of burning books that were deemed unpatriotic, the Patriot Act
gives the FBI access to public library files and bars librarians from
revealing who or what the G-men investigated. A University of Illinois
survey found that eighty-five urban libraries were queried about their
patrons in the first year of the law. Books, including those concerning
military tactics, nuclear fission, and flight instruction, are still legal
items for consumption. Therefore, even if the feds were hot on the trail of
terrorists, a record of reading habits would produce only circumstantial
evidence. Giving a prosecutor fodder to show a pattern of criminal intent is
hardly worth an entire society losing its intellectual privacy.
Previous periods of crisis in America have produced similar crackdowns on
freedom. The 1918 Sedition Act made verbal opposition to military
conscription a crime, while WWI-era newspaper columnists, including the
famed H.L. Mencken, were warned to tone down government criticism. Franklin
D. Roosevelt gave into national hysteria following Pearl Harbor and ordered
the internment of 110,000 Japanese Americans, not unlike the months
following the September 11 attacks when the U.S. government swept up
hundreds of Muslim men and temporarily held them in secret and without
access to courts.
The same was done with hundreds of fighters captured on the battlefields of
Afghanistan. Calling the Taliban a “criminal gang,” a former Justice
Department lawyer told the Washington Post that its members did not deserve
the protections afforded by the Geneva conventions: “They massacred
civilians. They summarily executed prisoners. If people violate the core
notion of the law, they shouldn’t receive prisoner-of-war status. It’s
reserved for honorable warriors.”
Yet even the Nazis received that status and subsequently were given a trial.
True, the hearings were conducted by representatives of the four Allied
nations rather than a civilian judge and a jury culled from the public. Yet
the international tribunal in Nuremberg that lasted from October 1945 to
October 1946 included official charges—ranging from conspiracy to crimes
against humanity—and proceedings carried out in front of the world media. Of
the twenty-one defendants, including Nazi party bosses such as Hermann
Göering and Rudolf Hess, ten reaped death sentences while others received
varying prison terms. Three were acquitted.
Contrast that with today’s War On Terror, in which a single powerful nation
has deemed most of those whom it captured to be “enemy combatants” without
issuing any formal charges or legal privileges besides the right to remain
silent, perhaps for the rest of their lives. Yet we now learn that keeping
mum has also effectively been eliminated as an option. Faced with CIA
interrogation, the practitioner of silence puts himself on the receiving end
of a policy of physical and mental torture that may have been sanctioned by
our highest government officials. Even the Nazi leaders, who so richly
deserved it, were not subjected to such brutal tactics.
While the administration has taken a step in the right direction by recently
allowing numerous Guantanamo Bay detainees to return to their native lands,
only six of the remaining hundreds in the prison have been selected for
trial by military tribunals that will likely be shielded from the scrutiny
of impartial monitors and most assuredly from the gaze of the media.
The Nazis, men whose self-evident crimes ranked them among history’s worst
butchers, were therefore afforded more rights than America’s current
terrorist enemies. Despite the justified anger and lingering calls for
vengeance in the immediate post-war period, America and its allies needed to
show the world how democracy operates—in the open and with fairness even for
those accused of the worst crimes imaginable—as a countermeasure to the
totalitarianism of the Nazi regime they had just felled. By doing so,
Western democracy earned an even greater reputation among the peoples of the
world as the political system best suited to protect liberty and promote
human progress.
Today’s White House backers say the hard treatment of detainees has likely
averted terrorist attacks, which is laudable. But the Bush administration’s
unapologetic policy of holding our new enemies in a legal limbo without even
the basic rights and protections afforded to prisoners of war—although they
vociferously and repeatedly claim we are at war—has done grave damage to
America’s hard-earned reputation and perhaps even to democracy itself. By
engendering a climate in which torture is considered a viable tactic for
extracting information from “enemy combatants,” the Bush government has
assured that the men and women of our own military will endure the same
treatment if captured during this and future wars.
Whether the suspects are American citizens held on U.S. soil or foreigners
detained in a nearby territory, those people need to be subjected to the
equanimity and inherent humanity of our justice system for the mere fact of
showing it is still the fairest and strongest in the world. In doing so, we
will also prove that even during a time of emergency our leaders cannot
abuse the authority bestowed upon them by the American citizenry. Rather
than silently acquiescing in the trampling of personal freedom and the
misuse of government power in the name of safety, as the Germans did during
the rise of Hitler and his Nazis, the American public needs to take a stand
for its civil liberties even while demanding security.
On September 11, America experienced its own Reichstag burning. In many ways
since then, the Bush administration has exploited our emergency. Now is the
time for the American people to tell its leaders that, in this country,
there is no Article 48.
