" Absolute Power Corrupts Absolutely" Lord Acton
Hitler had Hans Frank and Carl Schmitt. George W. Bush has Alberto Gonzalez and John Yoo. They are a lovely bunch, and don't forget, Clarence Thomas is waiting in the wings.
Gonzales, Bush's nominee for attorney general is on the hot seat for his memo basically condoning torture and absolving the president from criminal charges for the torture and abuse of prisoners in the name of national security. Despite this, his nomination will likely be approved by the Republican majority in the United States Senate. But before the Judiciary Committee slams down its rubber stamp, the American people ought to take a closer look at the parallels between the legal policies promoted by Gonzales and others in the Bush administration, and those in Nazi Germany.
Hans Frank and Carl Schmitt, to a great extent, developed the legal and philosophical frameworks of the Third Reich, cloaking its actions in rule of law and justifying its crimes in the name of defense of the nation.
Frank, who had been Hitler's personal attorney and served as president of the German Academy of Law during Hitler's rise to power, built the German legal system for a war of aggression to benefit the homeland. In a speech before the Academy of German Law in November 1939 he said. "We are proud to have formulated our legal principals from the very beginning in such a way that they need not be changed in the case of war. For the rule, that right is that which is useful to the nation, and wrong is that which harms it." In other words, no legal norms, other than those that preserve the state itself, matter. Frank used this principle to justify the arrest without warrant ( not to mention murder) of tens of thousands of Jews and Russians as a threat to the homeland, and later to plunder the resources of Poland for the benefit of the homeland.
But it is in the writings of Carl Schmitt, a leading jurist, philosopher and Nazi party member whose work and writing provided much of the intellectual justification for Hitler's concentration of power, that even stronger parallels emerge. Schmitt wrote, " there exists no norm that is applicable to chaos." He contends that legal norms are only applicable in stable and peaceful situations, and not in times of war, "when the state confronted a mortal enemy with the threat of violent death at the hands of a hostile group". Schmitt contended that in such times, the actions of the leader were not subordinate to justice, but were the "highest justice." In other words, the law does not apply in times of war or other exceptions. And, as Schmitt wrote, "Sovereign is he who determines the exception."
Hitler and his underlings used Schmitt's writings to justify a war in Hitler's words of "unprecedented, unmerciful and unrelenting harshness," and in which " all officers will have to rid themselves of obsolete ideologies." Orders were issued severely limiting the military's martial courts, and virtually giving immunity to German forces for war crimes.
Sanford Levinson, a respected professor of law at the University of Texas, makes the case that Schmitt, known by some as the"Crown Jurist of the Third Reich" has emerged as the eminence grise of the Bush Administration. In his article, " Torture in Iraq and the Rule of Law in America,, published in Daedalus in the summer 2004 issue, Levinson contends that Bush administration lawyers seem completely willing to embrace George w. Bush as the de facto sovereign. This sentiment can be seen both in the 2002 Gonzales memo on torture and the Working Group Report submitted to Secretary Rumsfeld. Both documents argue that "the president enjoys complete discretion in conducting operations against hostile forces. " By their thinking, Levinson further argues, international and domestic laws against torture do not apply to the president. That is certainly the case the 2002 memo which states " In order to respect the President's inherent constitutional authority to manage a military campaign (federal laws against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander in Chief Authority. "
The Gonzales memo, much of which was apparently developed with substantial help of John Yoo, then a deputy assistant attorney general in office of the Legal Counsel and now a Berkeley Law Professor, is frighteningly close to the writings of Schmitt and the philosophies that guided the Third Reich. Gonzales writes that the president had called the war on terrorism "a new kind of war," which rendered "obsolete Geneva's strict limitations on the questioning of prisoners and renders quaint some of its provisions. And in endorsing a view of presidential power in which the president has "complete discretion" he is endorsing a view of presidential power that as Levinson says is "all to close to the power that Schmitt was willing to accord his own Fuhrer."
In doing so, Gonzales and others in the Bush administration have opened the gates to hell, making the torture and abuse at Abu Ghurayb and Guantanamo Bay possible. And while, in their attempts to push through the Gonzales nomination, the Bush administration has issued a new memorandum revising its position on torture ( what's next, Ron Zigler rising from the grave to say "that statement is no longer operational" ?) hundreds have been tortured and even killed, and the basic principles of law and morality that have governed the United States and made it a leader in they eyes of the free world have been undermined. It remains to be seen as to whether they will be held accountable for it. Apparently they believe that they are above the law.
ps- one thing Gonzales might want to remember, they hung Hans Frank
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