America's Nuremberg Laws

The End of the U.S. as a Civilized Nation

by Ted Rall

www.commondreams.org/, October 12, 2006

Students of historical hysteria immediately saw 9/11 as America's version of the Reichstag Fire. Both incidents were organic acts of terrorism (contrary to popular misconception, the Nazis didn't set the 1933 fire) seized upon by power-hungry government officials to justify the crushing of political dissent and the rolling back of civil liberties. Hitler began marching his people into the abyss immediately upon seizing power in 1933, but Nazi Germany's fate as a rogue nation wasn't sealed until two years later, in the late summer of 1935.

Before then there had been heinous violations of human rights. Nazi authorities detained thousands of socialists and communists in concentration camps (death camps weren't built until 1941). Many were tortured; some died in custody. Stormtroopers enforced state-sanctioned boycotts of Jewish-owned businesses. Brownshirts beat Jews in the streets as the police stood by and watched. Ignoring Germany's treaty obligations, Hitler poured millions into the armed forces and threatened to use them against Germany's neighbors. No one could doubt that Germany was in the hands of militaristic right-wing thugs.

Until 1935, however, the home of Goethe and Beethoven had not entirely abandoned the universal values accepted by civilized states. True, top German officials and street-level Nazi Party members were breaking all sorts of laws, including constitutional protections against racial and religious discrimination. That's precisely the point: the law endured. Pre-Nazi legal infrastructure and laws, including the 1920s-era "Weimar" Constitution--still the Western world's gold standard for protecting individual rights and privileges--remained in force. Technically, anyway.

Had there been the political will, Hitler and his goons could have been arrested and tried under German law. The German government was a lost cause, but the German nation still had a (slim) chance. Until 1935.

That's when Germany officially codified the Nazis' uncivilized anti-Semitism by passing the Nuremberg Laws. Jews were stripped of citizenship and banned from marrying or dating non-Jews. The laws were a form of legalized harassment, prohibiting Jews from displaying German flags or shopping in stores at certain times. Turning Jews into legal pariahs paved the way for the Holocaust. More immediately, the barbaric ipso facto policies of the Nazi government had corrupted Germany's lofty and admirable system of legal guarantees. Even though German law hadn't been of much help to Jews before--well, there had been the occasional arrest and prosecution of a brownshirt who had gone "too far"--now there was every reason for them to succumb to hopelessness. Germany was no longer a civilized nation in the clutches of gangsters. It had become a gangster nation.

Similarly, the recently passed Military Commissions Act removes the United States from the ranks of civilized nations. It codifies racial and political discrimination, legalizes kidnapping and torture of those the government deems its political enemies, and eliminates habeas corpus--the ancient precept that prevents the police from arresting and holding you without cause--a basic protection common to all (other) modern legal systems, and one that dates to the Magna Carta.

Between 2001 and 2006, George W. Bush worked tirelessly to eliminate freedoms and liberties Americans have long taken for granted. The Bush Administration's CIA, mercenary and military state terrorists kidnapped thousands of innocent people and held them at secret prisons around the world for months and years at a time. These people were never charged with a crime. (There was good reason for that. As the government itself admitted, fewer than ten had actually done anything wrong.) Yet hundreds, maybe even thousands, were tortured.

Under American law these despicable acts were illegal. They were, by definition, un-American. Although it didn't help the dozens of Bush torture victims who died from beatings and drowning, the pre-Bush American judicial system worked. The Republican-controlled U.S. Supreme Court handed down one decision after another ordering the White House to give its "detainees" trials or let them go. For a brief, shining moment, it looked like there was hope for the U.S. to find its way back to the light.

Now, thanks to a gullible passel of Republican senators and an unhinged leader who is banking that Americans are just as passive as the Germans of the mid-1930s, we have our own Nuremberg Laws.

Under the terrifying terms of the radical new Military Commissions Act, Bush can declare anyone--including you--an "unlawful enemy combatant," a term that doesn't exist in U.S. or international law. All he has to do is sign a piece of paper claiming that you "purposefully and materially supported hostilities against the United States." The law's language is brilliantly vague, allowing the president to imprison--for the rest of his or her life--anyone, including a U.S. citizen, from someone who makes a contribution to a group he disapproves of to a journalist who criticizes the government.

Although Bush and his top officials ordered and endorsed torture, the courts had found that it was illegal under U.S. law and treaty obligations. Now torture is, for the first time, legal.

"Over all," reports The New York Times, "the legislation reallocates power among the three branches of government, taking authority away from the judiciary and handing it to the president." Bruce Ackerman, professor of law and political science at Yale, notes that the MCA trashes the centuries-old right of a prisoner to petition to the courts: "If Congress can strip courts of jurisdiction over cases because it fears their outcome, judicial independence is threatened."

How did we get here? Good Germans--and many of them were decent, moral people--asked themselves the same thing. The answer is incrementalism, the tendency of radical change to manifest itself in bits and pieces. People who should have known better--journalists, Democrats, and Republicans who are more loyal to their country than their party--allowed Bush and his neofascist gangsters to hijack our republic and its values. They weren't as bad as Bush. They just couldn't see the big picture.

Just as no single rollback led marked the transition from the Weimar Republic to the Third Reich, no event is individually responsible for America's shocking five-year transformation from beacon of freedom to autocratic torture state. It wasn't just letting Bush get away with his 2000 coup d'état. It wasn't just us standing by as he deliberately allowed his family friend Osama bin Laden to escape, or as he invaded Afghanistan, or as he built the concentration camps at Guantánamo and elsewhere, or even Iraq. It was all of those things collectively.

The Military Commissions Act signals that our traditional system of beliefs and government has irrevocably devolved into moral bankruptcy. Memo to Senator McCain: You don't negotiate with terrorists, and you don't compromise with torturers.

It doesn't matter how much food aid we ship to the victims of the next global natural disaster, or how diplomatic our next president is, or whether we come to regret what we have done in the name of law and order. Our laws permit kidnapping, torture and murder. Our laws deny access to the courts. The United States has ceded the moral high ground to its enemies.

We are done.

Ted Rall is the author of the new graphic travelogue "Silk Road to Ruin: Is Central Asia the New Middle East?"

Democracy in America

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