Friday, September 22, 2006


Library Journal:
Central to Evans's analysis is how the "normative" state, which is governed by the rule of law and defined procedures, was replaced by the "prerogative" state, which was run by decree. Indeed, Hitler took prerogative rule to a new level when he enabled his followers to carry out arbitrary actions, which, if they pleased him in meeting his policy goals, would then be made legal retroactively. ~ (book review)

Glenn Greenwald (bold emphasis mine):
One thing to watch out for is whether this will be the same template used in the warrantless eavesdropping context - namely, that the "maverick, dissident, independent Republicans" who are "fighting" against the White House suddenly reach a "compromise" with the Bush administration that is slightly short of the Specter bill but nonetheless gives the White House virtually everything it wants - including legalizing warrantless eavesdropping on Americans with full discretion.

Then, Republicans dramatically join together as One and celebrate the victory they won in the war on terror, creating the appearance that they compromised, all while remaining tough-on-terrorism and protective of our civil liberties, while Democrats sit quietly and meekly on the sidelines, invisible, irrelevant and impotent. In other words, we will see the sequel to the sadly predictable spectacle which Digby predicted would occur with the interrogation debate and which, as Digby insightfully explains, is exactly what has now happened.

The systematic One:
Nazi Gleichschaltung
By Dr Edgar Feuchtwanger
new perspective Vol 7, No 2

As a totalitarian regime the Third Reich developed its own language, a perversion of the German language. The control of hearts and minds, to which totalitarian political systems aspire, necessitates such a perversion of the normal use of language. Meaning is twisted and distorted in such a way that the citizens of a totalitarian state can no longer distinguish truth from falsehood. They are reduced to such a state of confusion and impotence that they can be fully manipulated by the dictatorial government. George Orwell’s famous books 1984 and Animal Farm are the classic fictional statements of this aspect of totalitarianism. In 1984 there is a Ministry of Truth, modelled on the Ministry of Propaganda and Popular Enlightenment established by Goebbels.

Gleichschaltung is an example from the early days of the Nazi dictatorship of this use of language to manipulate and confuse. It is a word rarely to be found in older German dictionaries. ‘Gleich’ means equal, ‘Schaltung’ means switch, as in an electrical switch; Gleichschaltung therefore means switching on to the same track or wavelength, or, to put it in one word, alignment or co-ordination. It became, in 1933, the word for the process by which all organisations and associations existing in society were nazified and some, such as the political parties and the trade unions, were simply suppressed. The word was meant to hide the fact that what was going on was in flagrant breach of all previous notions of freedom, civil rights and self-government.

"The control of hearts and minds, to which totalitarian political systems aspire, necessitates such a perversion of the normal use of language. Meaning is twisted and distorted in such a way that the citizens of a totalitarian state can no longer distinguish truth from falsehood."

4 Washington Post:
The two leading candidates for U.S. Senate in Maryland have not agreed on much during their campaign. But yesterday, they agreed that a radio advertisement sponsored by a national group for black Republicans should be pulled off the air.

In the 60-second ad, two women discuss black history, saying Democrats "passed those black codes and Jim Crow laws" and "started the Ku Klux Klan."

the party progamme:
The National Socialist ideology, especially as expressed in the Party programme and in the speeches of our leader, is the basis for interpreting legal sources. ~ (Hans Frank, Reich Commissioner for Justice and head of the Nazi Lawyers' League)

John Yoo:
But the president has broader goals than even fighting terrorism - he has long intended to make reinvigorating the presidency a priority. Vice President Dick Cheney has rightly deplored the "erosion of the powers and the ability of the president of the United States to do his job" and noted that "we are weaker today as an institution because of the unwise compromises that have been made over the last 30 to 35 years."


A reinvigorated presidency enrages President Bush’s critics, who seem to believe that the Constitution created a system of judicial or congressional supremacy. Perhaps this is to be expected of the generation of legislators that views the presidency through the lens of Vietnam and Watergate. But the founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action, just as executive overreaching is to be checked by the courts and Congress. ~ (NY Times OP-ED, Sunday 17 sept. 2006)

The Unitary Executive:
The authority of the Leader is total and all embracing: within it all resources available to the body politic emerge; it covers every facet of the life of the people; it embraces all members of the German community pledged to loyalty and obedience to the Leader. The Leader's authority is subject to no checks or controls; it is circumscribed by no private preserve of jealously guarded individual rights; it is free and idependent, overriding and unfettered." - (Ernst Rudolf Huber, Nazi Party constitutional lawyer, 1939.)

The 'perogative state':
There existed what the exiled political scientist Ernst Fraenkel called The Dual State, to quote the title of his famous book, published in the USA in 1941. On the one hand was the 'normative state', bound by rules, procedures, laws and conventions, and consisting of formal institutions such as the Reich Chancellary, the Ministries, local authorities and so on, and on the other there was the 'perogative state', an essentially extra-legal system that derived its legitimation entirely from the supra-legal authority of the Leader. Theorists like Huber distinguished carefully between 'the authority of the state and the authority of the Leader', and made it clear that the latter always had precedence over the former. Thus formally illegal acts such as the murders committed in the 'Night of the Long Knives' were sanctioned by the Leader's authority and so in fact were not illegal at all. The arrests, imprisonments and murders had been carried out not by the police or the regular law enforcement agencies but by the SS, and the formal apparatus of the law and the state almost fell over itself in the rush to give these acts of violence the approval of law. This was a graphic demonstration of the fact that there was increasingly little serious conflict between the 'normative' and 'perogative' systems in Nazi Germany. The former had to defer more and more to the latter, and as time went on it became increasingly permeated by its spirit; rules were relaxed, laws dispensed with, scruples abandoned. ~ (Richard Evans, The Third Reich in Power; page 45, chapter: "The Police State")

Geneva Conventions "Agreement Upon Common Article 3."
"Three of the Most Significant Problems with the "Compromise"
by Marty Lederman:

2. Equally alarming is section 7 of the "compromise" bill, which would purport to prevent any person -- alien or citizen, overseas or in the U.S. -- from so much as invoking the Geneva Conventions -- any provision in any of those Conventions -- "in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party, as a source of rights, in any court of the United States or its States or territories."

Apparently, this not only would foreclose the possibility of a private cause of action under Geneva -- even solely for injunctive or declaratory relief -- but, more ominously, would also prevent any litigant from so much as raising Geneva as a ground for relief in any properly filed lawsuit . . . even when, as in Hamdan, one or more provisions of Geneva determine the scope and effect of federal statutory law.

What this means, in effect, is that the President's interpretation and application of the Geneva Conventions will be virtually unreviewable, no matter who the affected parties may be, in this and other armed conflicts, now and in the future . . . across the board.


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