Hitler's Enabling Act, 23 March 1933

The Patriot Act

The U.S. Congress has just passed a law that fundamentally changes the rights and protections afforded people under the U.S. Constitution. The law is called the Military Commissions Act of 2006 (S.3930).

Sen. Arlen Specter of Pennsylvania, chairman of the Senate Judiciary Committee, said he knew the law violated the Constitution, as did others. That didn't stop them from voting for it. What is the significance of this new law?

Essentially, it provides legal cover for the executive branch of government to violate the rights of the people in the U.S. The law says that if the government suspects that someone is an enemy of the U.S. or gives material aid to someone who is an enemy, that person can be taken into custody and held indefinitely with no way of challenging his or her detention.

Only if the government decides to carry out a military trial -- a trial that is held in a way that is different from normal military trial procedures -- only then would that person have the ability to respond to being held in detention. This ability is also seriously limited by the way the new law modifies the processes and procedures that a person accused of a crime would have available.

The new law essentially gives the executive branch of government the ability to create its own processes and procedures for how it will behave. And it removes any oversight processes from the other two branches of the government.

This new law has been compared to the "Enabling Act" that Hitler used to consolidate fascism in Germany in March 1933.

Hitler was appointed Chancellor in Germany in January 1933. In February, there was a fire in the Reichstag (the German parliament building). There are many who believe the fire was set by the Nazis.

In March, using the fire as an excuse, Hitler had the Enabling Act passed by the Reichstag. The Enabling Act gave the executive branch of government in Germany the right to make the laws, bypassing the Reichstag. This required a change in the Constitution, and by using intimidation and force, Hitler got the two-thirds majority of votes in the Reichstag needed for a constitutional amendment. Hitler used the legal authority this gave him to outlaw opposition to the Nazis and fascism.

The events in Germany in 1933 strike a discomforting parallel with recent events in the U.S.

Bush was put into the presidency with the fraudulent election in 2000, which saw massive voter fraud and many people denied the right to vote.

On Sept 11, 2001, the World Trade Center was destroyed and the Bush administration opposed an investigation into the government's role in the events. When a commission was finally established to investigate what had happened, Henry Kissinger, an advisor and confidant to the president, was appointed as the head. When there was criticism that this was a crony appointment, Philip D. Zelikow, who had been on Bush's 2000-2001 transition team was made the executive director of the National Commission on Terrorist Attacks Upon the United States, aka the 9/11 Commission. He is now a top aide to Condoleezza Rice at the State Department and serious questions remain unanswered about what responsibility U.S. government officials may have had regarding 9/11.

Now, on Sept. 29, 2006, Congress has passed a law with characteristics similar to the Nazi Enabling Act. Both laws take legislative power and transfer it to the executive branch of the government.

In Germany, the Enabling Act required an amendment to the Constitution. In the U.S., the Military Commissions Act also requires a constitutional amendment, which requires that two-thirds of the Congress consider and approve the amendment and then a vote by the legislatures of two-thirds of the states to approve the amendment. An alternative means for seeking an amendment is to have two-thirds of the states call a constitutional convention, approve the amendment, and then vote in favor of the change.

Unlike Hitler, Bush didn't seek a constitutional amendment. Instead, he asked Congress to pass this fundamental change to the Constitution as a normal bill, and they complied.

The actual bill passed by Congress was 50 pages long.

It is doubtful that many of those in Congress who voted for the bill read or considered it with any seriousness. The bill also overrides a number of provisions in an earlier law passed by Congress, the Detainee Treatment Act, passed in 2005. This law limited what the government could do with regard to those who are being held at Guantanamo Bay.

On the day the Military Commissions bill was passed, discussion on the floor of the Senate went on for several hours and took up 276 pages in the Congressional Record, which reports on the actions and discussions in the Congress.

The passing of a bill by Congress that takes away significant rights from a whole group of people with so little attention to the seriousness of the event demonstrates the great weakness of the minimal democratic structures remaining in the U.S.

The trouble this new law can cause before the Supreme Court can rule on its constitutionality is great. If the Supreme Court ignores its obligations, as Congress has just done, then the continuing damage that the law can do will be very great.

During the discussion of the bill in the Senate, a discussion that the Congressional Record reports went on for 10 hours, several Senators spoke of serious problems with the bill.

One Senator, Russ Feingold from Wisconsin, explained how the bill invests unchecked power in the hands of the president and thereby undermines the foundation of the government. He explains:

"The rule of law is something deeper and more profound than the collection of laws that we have on paper … The rule of law tells us that no man is above the law -- and as an extension of that principle -- that no executive will be able to act unchecked by our legal system. Yet by stripping the habeas corpus rights of any individual who the executive branch decides to designate as an enemy combatant, that is precisely where we end up -- with an executive branch subject to no external check whatsoever, with an executive branch that is king."

In general, media coverage of the passing of the law focused on the politics involved, not on how the law represents a fundamental change in the Constitution.

Another important aspect of the law is that it undermines the oversight functions of the three branches of government, taking away the power of the judiciary and the legislature to oversee the executive, thereby inappropriately establishing an executive with a form of unbridled power.

The passage of the Military Commissions Act of 2006 (1) raises a serious challenge to those who are concerned about the present and future of democratic institutions in the U.S.

While few of the traditional media reported on the serious nature of the challenge to the Constitution represented by the passage of the law, some online comments about the law recognized the serious danger it represents to democracy and the threat it poses in the spread of fascism in the U.S.

In one online discussion, several commentators expressed the view that the passing of this law signaled the rise of dictatorship in the U.S. Others were amazed at how little attention the law has aroused. The one aspect of the law that drew some public attention has been the fact that the law denies the right of habeas corpus to people the government calls alien enemy combatants. (2) How the government determines this designation is left up to the president and so violates the fact that there must be procedures for government processes and oversight over those procedures.

Congress is specifically prohibited by the Constitution from suspending the privilege of the writ of habeas corpus. With this new law, Congress has put aside that part of the Constitution. In addition, it has increased the powers of the presidency, also in violation of constitutional checks and balances. These violations by Congress are setting the U.S. further along the road to a dictatorship of the executive branch of government, a hallmark of Fascism and Nazism. (3)