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Oct

2006

Jurisprudence in the "Leader-State": Then – and Now
Friday, 06 October 2006 07:37
Washington – Attorney General Alberto Gonzales, who is defending President Bush's anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president's judgments in wartime. – Washington Post, Sept. 29, 2006.
History repeats itself. Welcome to Berlin, 1933.

Alberto Gonzales is a lot like Franz Gurtner, another conservative nationalist lawyer and judge – who was appointed by Hitler to head the Reich Ministry of Justice, and who got along very well with the Nazis despite not being a Nazi himself. How did the German Legal system change as a result of Nazi 'leadership'?

Fear-mongering was the main tool used to change the law, and to undermine civil liberties. So where the constitution was changed, the code of criminal procedure was also changed, extraordinary powers were vested in the Executive, including extensive police powers; and the powers of an independent judiciary were destroyed.

 

This was all done based on a "terrorist menace." The precise nature of the menace shifted from time to time during the Nazi period. It was a matter of opportunism, or convenience.

Judges couldn't be impartial anymore. They used only Nazi interpretations in making their decisions. In the everyday practice of law the ideas of the Fuhrer were silently but loyally followed. People feared the legal system, but nobody could – legally – stop Hitler. And even Nazis no longer had the civil rights once guaranteed by the German constitution.

Hitler was asked in September 1931: "How do you imagine the setting up of a Third Reich?" His reply was, "We will enter the legal organizations and will make our Party a decisive factor in this way. But when we do possess constitutional rights then we will form the State in the manner which we consider to be the right one." Hitler was asked: "This too by constitutional means ?" Hitler replied: "Yes."

Nazi conspirators participated in German elections, the legal system, and in the Reichstag to undermine the parliamentary and judicial system of the German Republic and to replace it with a dictatorship of their own.

On 30 April 1928, Goebbels wrote in his newspaper Der Angriff: "We enter parliament in order to supply ourselves, inside the arsenal of democracy, with its own weapons. We become members of the Reichstag in order to paralyze the liberal Weimar sentiment with its own assistance. If democracy is so stupid as to give us free tickets and per diem for the this "blockade" (Barendienst), that is its own affair." Later in the same article he continued: "We do not come as friend nor even as neutrals. We come as enemies: As the wolf bursts into the flock, so we come."

Crucially, Gurtner – like Supreme  Court Justice Samuel Alito and Gonzales – ruled that vital "national interests" – as defined by Hitler as head of state – had precedence over the rule of law. Time and time again, Gurtner supported unlawful measures and even murders, because they had been declared by Hitler as crucial for the "survival of the state." That's what makes the efforts by some American lawyers – like Alito and Gonzales – and most GOP politicians to argue that the president can and should be above the law so disturbing.

It appears that the GOP has transformed America into a society where we are ruled by 'special men' – rather than by laws – so we are all subject to the whims of the president and his appointees.

A president or appointee who imagines himself to be above the law is mentally and morally unfit to serve in public office; government lawyers who argue that the president is above the law are apologists for a dictatorship. They are the modern equivalents of Franz Gurtner, justifying the Nazi abuse of power and legal authority in the name of 'national security'.

[L]ike Hitler, the top police officials were open about the fact that they did not see themselves as bound by legal norms. In a speech to the Academy of German Law in October, 1936, Himmler bluntly stated: "Right from the start I took the view that it did not matter in the least if our actions were contrary to some clause in the law; in my work for the Fuhrer and the nation, I do what my conscience and common sense tells me is right."

Disregard for the letter of the law was seen as crucial to the Nazi defense of 'national interests.' The German police styled itself the "domestic army." Just as the German army on the battlefield could not be subject to legal regulation, so too, it was claimed, the fight of the German police at home must not be constrained by the rule of law.

As Himmler explained to German army generals on 21 June 1944, he could not care less whether the actions were legal or not: "What is necessary for Germany will be done, however horrifying it may be."

American soldiers and government contractors continue to violate the Geneva Conventions and laws against torture to serve the interests of their president and his appointees. They do what their immediate superiors tell them to do – as directed by both implicit and explicit statements from others high up the chain of command. Their actions are wrong, and they justify themselves by the same excuses used by police and military officials in Nazi Germany.

Today domestic surveillance exceeds that which is permitted by US law. Police, FBI, and National Security personnel believe that their attempts to fight terrorism justifies ignoring the law – indeed, they argue that laws which protect the rights of the accused and the innocent simply hamper police investigations and need to be curtailed. Franz Gurtner and Alberto Gonzales certainly agree.

The legal system, Hitler warned (in a speech to the Reichstag on 26 April 1942), must have only one thought: German Victory. It was high time, he continued, that the legal system realized that it did not exist for its own sake, but for 'national interests'.

Goebbels said, in 1935: "When democracy granted democratic methods for us in the times of opposition, this could only happen in a democratic system. However, we National Socialists never asserted that we represented a democratic point of view, but we have declared openly that we used democratic methods only in order to gain the power and that, after assuming the power, we would deny to our adversaries, without any consideration, the means which were granted to us in the times of opposition."

A leading Nazi writer on Constitutional Law, Ernst Rudolf Huber, later wrote of this period: "The parliamentary battle of the NSDAP had the single purpose of destroying the parliamentary system from within through its own methods. It was necessary above all to make formal use of the possibilities of the party-state system but to refuse real cooperation and thereby to render the parliamentary system, which is by nature dependent upon the responsible cooperation of the opposition, incapable of action."

And today, GOP appointees like Gonzales and Alito and virtually all GOP elected and appointed officials think – and act – exactly like Hitler, Himmler, Goebbels and Franz Gurtner in this respect and no longer have to care whether their actions are legal or not, as they impose the "Rule of Bush." And their actions are just as "legal" as Hitler's was in 1933. 

 

Appendix: Step by Step Into Tyranny
Here are a few milestones on Bush's long march to presidential dictatorship – a coup d'etat carried out in broad daylight, as these quotes from the mainstream media attest.

Gonzales Cautions Judges on Interfering

"Washington (Friday 29 September 2006) -- Attorney General Alberto Gonzales, who is defending President Bush's anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president's judgments in wartime. He said the Constitution makes the president commander in chief and the Supreme Court has long recognized the president's pre-eminent role in foreign affairs."

 

High Court Backs Police No-Knock Searches
"WASHINGTON (June 15, 2006) - The Supreme Court ruled Thursday that police armed with a warrant can barge into homes and seize evidence even if they don't knock, a huge government victory that was decided by President Bush's new justices.

"Dissenting justices predicted that police will now feel free to ignore previous court rulings that officers with search warrants must knock and announce themselves or run afoul of the Constitution's Fourth Amendment ban on unreasonable searches.

"It weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection," Justice Stephen Breyer wrote."

Bush challenges hundreds of laws; President cites powers of his office
"WASHINGTON (April 30, 2006) --  President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.

"Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ''whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

"Phillip Cooper, a Portland State University law professor who has studied the executive power claims Bush made during his first term, said Bush and his legal team have spent the past five years quietly working to concentrate ever more governmental power into the White House.

'''There is no question that this administration has been involved in a very carefully thought-out, systematic process of expanding presidential power at the expense of the other branches of government,' Cooper said. '@This is really big, very expansive, and very significant.'"

"Gonzales 'Legalized' Torture"
"WASHINGTON, (Jan. 4, 2005) - Alberto R. Gonzales, the White House counsel, intervened directly with Justice Department lawyers in 2002 to obtain a legal ruling on the extent of the president's authority to permit extreme interrogation practices in the name of national security.

"A request by Mr. Gonzales produced the Justice Department memorandum of Aug. 1, 2002, which defined torture narrowly and said that Mr. Bush could circumvent domestic and international prohibitions against torture in the name of national security. The issue was whether al Qaeda and Taliban fighters captured on the battlefield in Afghanistan should be accorded the Geneva Conventions' human rights protections.

"Gonzales, after reviewing a legal brief from the Justice Department's Office of Legal Counsel, advised Bush verbally on Jan. 18, 2002, that he had authority to exempt the detainees from such protections. Bush agreed, reversing a decades-old policy aimed in part at ensuring equal treatment for U.S. military detainees around the world. Rumsfeld issued an order the next day to commanders that detainees would receive such protections only "to the extent appropriate and consistent with military necessity."

"On January 25, 2002, Gonzales wrote a memo to President Bush arguing that the terrorism fight 'renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.'

'''My judgment was ... that it would not apply to al-Qaida or others - as they weren't a signatory to the convention,' he said.

"When the text was leaked to the public last summer, it attracted scorn from military lawyers and human rights experts worldwide. Nigel Rodley, a British lawyer who served as the special U.N. reporter on torture and inhumane treatment from 1993 to 2001, remarked that its underlying doctrine "sounds like the discredited legal theories used by Latin American countries" to justify repression." End of Quote

Gonzales "Legalized" Repression.
"WASHINGTON (Feb. 6, 2006) -- Attorney General Alberto Gonzales insisted Monday that President Bush was "acting with authority" both under the Constitution and federal law in eavesdropping on Americans without warrants. In a statement prepared for the hearing, Gonzales called the monitoring program "reasonable" and "lawful."

"Gonzales, who was not sworn in, told the committee, 'As the president has explained, the terrorist surveillance program operated by the (electronic-monitoring National Security Agency) requires the maximum in speed and agility, since even a very short delay may make the difference between success and failure in preventing the next attack.'

"His arguments reiterated those defending President Bush's decision to allow the NSA to eavesdrop, without first obtaining warrants, on people inside the United States whose calls or e-mails may be linked to terrorism.

"But in his prepared remarks, Gonzales said he could not discuss how the program works, as skeptics of the program have demanded. 'An open discussion of the operational details of this program would put the lives of Americans at risk,' he said.

"Gonzales argued that Congress did, in fact, authorize the president in September 2001 to use military force in the war on terror. He noted that the legislation 'calls on the president to protect Americans both 'at home and abroad,'" and 'to take action to prevent further terrorist attacks 'against the United States.'

"But congressional Democrats have said they did not intend to order domestic surveillance."


And so - as they used to say in Al Capone's Chicago: "the fix is in."


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