America's Nuremberg Laws
The End of the U.S. as a Civilized
by Ted Rall
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