An Ominous Parallel

By Jacob G. Hornberger
Hornberger’s Blog Index
Thursday, April 2, 2009
Courtesy Of The Future Of Freedom Foundation

What was momentous about the 9/11 attack was not the attack itself, given that there had been other terrorist attacks in response to U.S. foreign policy in the Middle East (e.g., the 1993 terrorist attacks on the World Trade Center, the USS Cole, and U.S. embassies in Kenya and Tanzania) but rather how U.S. officials used the 9/11 attack to assume “war on terrorism” powers. They were able to accomplish that through a clever sleight of hand in which they unilaterally converted terrorism from a crime to an act of war, enabling them to claim what were essentially dictatorial powers to wage war on terrorism.

It was a bold, revolutionary move that has transformed the relationship between the federal government and the American people.

As most everyone knows, because of the 9/11 attack the president and the Pentagon now wield the full power to wage war on terrorism all over the world, including here in the United States, given that the entire world is the battlefield in the war on terrorism.

That means that the president and the Pentagon now wield the power to do everything they’re doing in Iraq and Afghanistan here in the United States. Warrantless searches and seizures. Arbitrary arrests. Indefinite detentions. Kidnapping and rendition. Torture. Gun confiscation and gun control. Denial of trial by jury. Denial of due process of law.

It’s now all permissible so long it’s being done as part of the war on terrorism, a war that most everyone concedes is perpetual in nature. While this Damocles sword, by and large, has been sheathed for the time being here in the United States, if the U.S. were to face terrorist retaliation here at home for what U.S. troops are doing in Iraq and Afghanistan, everyone knows that President Obama and the military now possess the power to unsheathe the sword here at home should circumstances necessitate it.

Where did U.S. officials get the idea of using the 9/11 terrorist attack as a justification for assuming war on terrorism powers that ignore constitutional restraints and guarantees? One distinct possibility is that they got it from history, specifically German history.

In February 1933, terrorists committed an arson attack on the German parliament, a pivotal event in German history that became known as the Reichstag fire. The German police arrested and charged an immigrant named Marinus van der Lubbe and four of his associates, all of whom were communists.

Charging that Germany was now facing the twin threats of communism and terrorism, the German chancellor persuaded the German parliament to suspend civil liberties and to give him emergency powers. The suspension of rights was declared to be temporary, but given that communism and terrorism continued to threaten the national security of Germany, the suspension turned out to be permanent in nature.

What’s interesting is the contrast by which war on terrorism powers were acquired in each country in response to the terrorist threat to national security.

In Germany, the chancellor acquired his powers by persuading the German parliament to enact what became known as the Enabling Act.

Here in the United States, the president didn’t go to Congress to acquire his war on terrorism powers but instead did so by simply securing secret legal opinions from his legal advisors stating that since the U.S. government was now at war against the terrorists, the president could ignore constitutional restraints on power so long as he was operating in his role as a military commander-in-chief.

Ironically, the suspects in the German terrorist attack were put on trial in a German court, given that Germany viewed terrorism as a crime, not an act of war (as did the United States prior to 9/11). At the trial, some of the defendants were acquitted. In anger and outrage, the German chancellor established a special court known as the People’s Court that would have jurisdiction over future cases involving terrorism and treason, which would ensure that the terrorists would no longer be set free by the regular courts. The People’s Court was where Hans and Sophie Scholl and other members of the White Rose were put on trial and sentenced to die.

One can’t but wonder whether Germany’s People’s Court isn’t the inspiration for those U.S. officials who call for special courts, rather than U.S. federal courts, to try suspected terrorists here in the United States.

Since the war on terrorism is perpetual in nature, the obvious question arises: If the American people wish to restore the situation to where it was prior to 9/11 — that is, in which terrorism is treated as a crime and where the president and the Pentagon are once again subject to constitutional constraints in terrorism cases — how do they accomplish that?

That’s a good question.

Perhaps another question should first be asked and answered, however: How badly do Americans wish to restore their rights and freedoms and how badly do they wish to restore a limited-government republic to our land?

The answer to the second question might help answer the first.

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