Detainee Bill and the Dawning of a Fascist America

As Steve Douglas notes, “the Schmittian drives for the arrogation of all power into the hands of a ‘unitary executive’ Presidential dictatorship,” in the case of both Hitler and Bush, are “essentially, identical.” In the wake of the Reichstag fire in early 1933, blamed on the Comintern, Hitler and the Nazis, with “the support of a terrified populace … suspended civil rights and civil liberties, fattened their war machine and rode the fascist tide into a full-blown dictatorship,” writes Harvey Wasserman.

After the Reichstag fire, Paul von Hindenburg signed the fateful emergency decree, thus providing Hitler’s SA and SS with the legality required to round up the opposition and throw them in makeshift concentration camps run by local Gauleiters and SA leaders. “The rest, as they say, is history,” notes Wasserman.

Bush, or rather his neocons, who subscribe to the Schmittian drive “for the arrogation of all power into the hands of a ‘unitary executive’ Presidential dictatorship,” have their own gesetzvertretende Verordnungen or “law-substituting decrees,” or rather Constitution-substituting decrees, in particular scrubbing the Fourteenth Amendment.

“The military trials bill approved by Congress lends legislative support for the first time to broad rules for the detention, interrogation, prosecution and trials of terrorism suspects far different from those in the familiar American criminal justice system,” explains the Washington Post. “President Bush’s argument that the government requires extraordinary power to respond to the unusual threat of terrorism helped him win final support for a system of military trials with highly truncated defendant’s rights…. Included in the bill, passed by Republican majorities in the Senate yesterday and the House on Wednesday are unique rules that bar terrorism suspects from challenging their detention or treatment through traditional habeas corpus petitions. They allow prosecutors, under certain conditions, to use evidence collected through hearsay or coercion to seek criminal convictions.”

Naturally, we are told this “arrogation of all power into the hands” of the unitary decider will apply only to “foreign nationals,” that is to say Muslims. Hitler said much the same.

The enemies of the fatherland were foreigners—and their German fellow travelers—members of the comintern (communist international), Hitler declared, and such subversion required austere measures, including interning thousands in concentration camps, subjecting them to interrogation, torture, and summary execution.

As Marty Lederman points out, the so-called “military commissions bill,” if read literally, “means that if the Pentagon says you’re an unlawful enemy combatant—using whatever criteria they wish—then as far as Congress, and U.S. law, is concerned, you are one, whether or not you have had any connection to ‘hostilities’ at all.”



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Siege Heil!

 

For those who have never heard of Carl Schmitt.

On Dictatorship (1921)

In 1921, Schmitt became a professor at the University of Greifswald, where he published his essay "Die Diktatur" ("On Dictatorship"), in which he discussed the foundations of the newly-established Weimar Republic, emphasising the office of the Reichspräsident. For Schmitt, a strong dictatorship could embody the will of the people more effectively than any legislative body, as it can be decisive, whereas parliaments inevitably involve discussion and compromise:


“If the constitution of a state is democratic, then every exceptional negation of democratic principles, every exercise of state power independent of the approval of the majority, can be called dictatorship.”


For Schmitt, every government capable of decisive action must include a dictatorial element within its constitution. Although the German concept of Ausnahmezustand is best translated as state of emergency, it literally means state of exception, which Schmitt contends frees the executive from any legal restraints to its power that would normally apply. The use of the term "exceptional" has to be underlined here: Schmitt defines sovereignty as the power to decide the instauration of state of exception, as Giorgio Agamben has noted. According to Agamben, Schmitt's conceptualization of the "state of exception" as belonging to the core-concept of sovereignty was a response to Walter Benjamin's concept of a "pure" or "revolutionary" violence, which didn't enter into any relationship whatsoever with right. Through the state of exception, Carl Schmitt included all types of violence under right, linking right & life (zoe) together, and thus transforming the juridical system into a "death machine", creating an Homo sacer.


Schmitt opposed what he called "chief constable dictature", or the declaration of a state of emergency in order to save the legal order (a temporary suspension of law, defined itself by moral or legal right): the state of emergency is limited (even if a posteriori, by law), to "sovereign dictature", in which law was suspended, as in the classical state of exception, not to "save the Constitution", but rather to create another Constitution. This is how he theorized Hitler's continual suspension of the legal constitutional order during the Third Reich (The Weimar Republic's Constitution was never abrogated, underlined Giorgio Agamben; rather, it was "suspended" for four years first at February 28, 1933 Reichstag Fire Decree and the suspension was renewed every four years similar to a - continual - state of emergency).