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A proverbial Wolf in Sheep’s Clothing? The Dangers for Democracies in hurriedly introducing Emergency Powers

AIH399 MAKING HISTORY
DEAKIN UNIVERSITY

by Xavier Fowler

 

Executive Summary

  • Crisis in a democracy can persuade its citizens to (temporarily) sacrifice civil liberties and democratic traditions in order to achieve security and stability.
  • The 1933 ‘Reichstag Fire Decree’ and the 2001 USA Patriot Act are both incidences of governments imposing presumably temporary or emergency powers to secure (or restore) stability as quickly as possible.
  • If history is any indication, using the Reichstag Fire Decree as an example, the USA Patriot Act should be re-evaluated by the US government and its people as a potentially dangerous case of emergency power paving way for further civil rights breaches.

Introduction

During the early years of the Roman Republic, before the days of the Roman Empire and autocracy, the governance of the nation was appointed to the people’s representatives, the senate. In that time, power was shared in order to avoid individuals from taking supreme control. In 458 BC, however, the Republic came under threat by neighbouring factions and the senate authorised the nomination of a local politician named Cincinnatus as temporary dictator for a period of six months. Cincinnatus led a successful campaign against Rome’s enemies and saved the Republic from invasion. Awarded all the power of Rome, Cincinnatus disbanded his army, resigned as dictator, and gave power back to the senate, a mere 16 days after being called upon to serve. Much like the emergency powers handed to Cincinnatus in a time of crisis, the American government, following the 9/11 attacks in 2001, passed legislation known as the USA Patriot Act. This document would also afford temporary powers to law enforcement agencies to combat terrorism. More than a decade later, the Act remains in place across the United States.

The issue of emergency powers being granted to individuals or governments can be a troubling thought in regards to democratic nations. History is littered with incidents of affording (temporary) emergency powers to governments in times of crisis. It also is dotted with examples in which these powers were never voluntarily relinquished. Striking similarities are surfacing between the events surrounding the Patriot Act and those some 70 years prior in Germany during the Weimar Republic. After fears of a communist coup, Hitler convinced the people of Germany to grant him emergency powers at the cost of their civil liberties. This article investigates these similarities, the why and how of the adoption of the Patriot Act, and asks whether it is time to review its existence. Put another way, has the time come for Washington to restore power to the people just as Cincinnatus chose? And, if not, is the United States heading toward the slippery slope that Germany walked 80 years ago?

The Reichstag crisis, and the 9/11 attacks

On 27 February 1933, the Reichstag building, the home of the German federal parliament, caught ablaze. The fire engulfed the building throughout the night and into the morning. In the immediate aftermath, Adolf Hitler, the newly-appointed chancellor of Germany, and his Nazi Party laid the blame at the feet of Marinus van der Lubbe. They alleged that the Dutch communist had acted as part of a larger plot organised by the Communist Party in Germany (KPD) to overthrow the Weimar Republic. A month after their seizure of power, the Nazis suddenly had significant cause to act decisively against their chief political enemies the communists. Under pressure from Hitler, on the day immediately after the fire the German president Paul von Hindenburg signed the Decree of the Reich President for the Protection of the People and State, or what is better known as the ‘Reichstag Fire Decree’. This decree suspended all civil liberties of German citizens as a means of allowing the efficient and necessary round-up and arrest of communist traitors.

Some 68 years later, four commercial airliners were hijacked by 19 al-Qaeda based terrorists. The four planes were used for coordinated suicide attacks across the United States, with predetermined targets including the North and South Towers of the World Trade Centre in New York, the Pentagon in Virginia, and an intended attack on the United States Capitol Building in Washington DC (which crash landed in Pennsylvania.) The day witnessed close to 3000 civilian deaths and resulted in complete chaos and utter panic across the United States. To combat the widespread perceived threat of more terrorist attacks, the United States Congress passed emergency legislation to provide security for the nation. The Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act was signed into law by then president George W. Bush on 26 October 2001.

These two crises, which plunged democratic nations into chaos, resulted in the passing of emergency legislation to combat perceived threats against the security of their respective states. Both laws provided enhanced power to intelligence agencies at the cost of civil liberties of local citizens. There is no doubt that, in order to convince the general public that these measures were necessary, both the German and American governments had to capitalize on the mass fear and hysteria of the crisis they faced. Indeed, it is fear that persuades democratic citizens, who typically value freedom above all else, to passively surrender precious civil liberties to their governments in order to achieve or regain a sense of security.

The fear of a communist takeover in Weimar Germany allowed a political animal such as Hitler to gain extreme powers. The official account of the fire stated that the ‘burning of the Reichstag was intended to be a signal for a bloody uprising and civil war’, further adding that it was to be followed by additional ‘acts of terrorism’. Nazi newspapers spread fear among the populace by making wild accusations of a supposed communist coup, despite the fact that Marinus van der Lubbe repeatedly claimed up to his execution in January 1934 that he had acted alone in causing the fire.

Mass panic also gripped the United States in the aftermath of September 11.  In the following days, hate crimes were committed against Muslims and the economy plummeted to its lowest ebb since the Great Depression. Much like the events surrounding the 1941 Japanese bombing of Pearl Harbor, in which Congress was given overwhelming support to wage war against Japan, the United States government was given similar approval to, in Bush’s words, ‘defend a great nation’. President Bush’s approval ratings soared to around 90 percent, and it seemed the public would do anything to prevent terrorism from striking American soil again.

The images of iconic buildings such as the Reichstag in Berlin and the twin towers of the World Trade Centre in New York coming under attack caused mass panic among citizens. These buildings represented symbols of freedom and power in their respective nations and in the minds of its people. It was this fear that allowed both the Nazi and American governments to adopt such extreme measures in the Reichstag Fire Decree and the USA PATRIOT Act, and ultimately to remove many of those freedoms and much of that power from the people’s hands.

The responses

The Reichstag Fire Decree and the Patriot Act both were legislated responses to a crisis, and both restricted personal freedoms of individual citizens. This was done, ostensibly, to prevent further acts of terrorism against the nation state. Germany, under the Weimar Republic, was a fledgling liberal democracy. In the aftermath of the First World War, and burdened with the guilt associated with the Treaty of Versailles, democracy would always be on shaky ground. The Reichstag fire presented an opportunity for Hitler and the Nazis to rid Germany of what they perceived as a flawed system. Nazi ideology always had viewed democracy as a weak and corrupt system. Through the Reichstag Fire Decree, Hitler had no issue with destroying all the elements of German-styled democracy.

The Reichstag Fire Decree constituted six articles. The first article suspended the civil liberties of citizens that were guaranteed under the Weimar Constitution. These included freedom of expression, freedom of press, public assembly, privacy of post and telephone, property and home (all cornerstones of a functioning democracy). Articles 4 and 5 established severe and brutal punishment for offences, including the death penalty. And the sixth article informed citizens that these new policies came into effect immediately. Three weeks later, the Nazis went even a step further and on 23 March 1933 implemented the so-called Enabling Act (formally titled the Law to Remedy the Distress of the People and the Reich). This piece of legislation effectively neutralised the parliament as a political force and granted the Cabinet unchecked law-making powers for the next four years, also allowing departures from the Weimar Constitution. The Reichstag Fire Decree and the Enabling Act both took power away from the people and handed it directly into Hitler’s grasp. The seeds of his fascist dictatorship had started to bloom.

Whereas the legislation involved with the USA Patriot Act took different form, much like the Reichstag Fire Decree it curtailed civil liberties held so dear in American democratic society while conversely placing greater power in the hands of authorities. Title I of the Act authorises measures to enhance the ability of intelligence agencies to prevent further terrorist attacks. This includes increased funding for the FBI and expanding presidential authority in the event of any future terrorist attacks. Title II involves ‘Enhanced Surveillances Procedures’ and covers the surveillance of anyone suspected of terrorist activities. Title II has garnered arguably the most controversy due to its encroachment on civilian privacy. It enables the increased usage of wiretapping and expansion of easily obtained search warrants. These ‘sneak and peak’ warrants allow for delayed notification of the execution of search warrants. Outcry against Title II also surrounded the power of the FBI to require any tangible things (books, records, papers, documents) for investigation with suspected terrorism links. Title IV resembles something close to that of a Gestapo or KGB tactic. It allows authorities who suspect foreigners of terrorist links to be detained for 90 days or up to 6 months once they are deemed to be a significant threat to national security.

Title V amended the DNA Analysis Backlog Elimination Act (2000) to include terrorism and, much like Title II, has generated considerable controversy. This primarily was due to its allowance of FBI and CIA operatives to send letters to various organisations demanding records and data of individuals. These letters required no probable cause of judicial oversight and contained a gag order, preventing the recipient of the letter from disclosing its existence. Title VIII broadened the definitions of what, exactly, constitutes a terrorist and terrorism. New penalties also were created for these new definitions of terrorism. The title highlighted those who attack mass transport systems, undoubtedly reflecting the use of commercial airliners in 9/11. Title VIII also attempted to convict those of providing ‘expert advice or assistance’ to terrorists, but the US Federal Court found this unconstitutional and too vague and that a person could break this law unknowingly, so it was re-worded.

The legislative acts known as the Reichstag Fire Decree and the Patriot Act both resemble those of emergency powers adopted by a government in a time of crisis. Yet these acts, both curtailing specific civil liberties in supposed democratic nations, remained in effect long after their respective crisis was resolved.

A slippery slope?

The Reichstag Fire Decree and the Patriot Act are fundamentally different documents, yet both contain a number of striking similarities that should concern today’s US citizens. The restrictions of civil liberties in the Reichstag Fire Decree are obviously more stringent than those of the Patriot Act, yet there still remains a case for comparing the two. The Reichstag Fire Decree took a broader approach to restricting freedoms. It declared the government’s power ‘to restrict the rights of personal freedom, freedom of expression, including freedom of press, the freedom to organise and assemble’ and so on. The Patriot Act delves into more specific details of the enhanced power of intelligence agencies. Similarities, however, begin to surface when discussing restrictions on of personal privacy. Here we find a connection as the Reichstag Fire Decree included restrictions on freedoms of ‘privacy of postal, telegraphic and telephonic communications’. This can be mirrored in Title II of the Patriot Act, where intelligence agencies gain greater access to wiretapping and personal records.

Another comparison can be made in reference to search warrants. The Reichstag Fire Decree clearly stated that ‘warrants for house searches…are also permissible beyond the legal limits otherwise prescribed’. This easy access to warrants reflects the creation of ‘sneak and peak’ warrants instituted under the Patriot Act as discussed earlier. Finally, the laws permitted under Title IV of the Patriot Act, which legalise detainment of suspected terrorists, represent a version of the vast and ruthless incarceration of suspected enemies under the Nazi regime over the course of its time in power.

Due to the highly controversial nature of the Patriot Act and its violations against individual liberties, many have argued that it is time to limit its power or do away with the Act altogether. If history teaches us anything about emergencies powers, the longer they are held, the more engrained they become in society and less likely they will be rescinded. With Hitler’s passing of the Reichstag Fire Decree and the Enabling Act, there proved to be no turning back for democratic Germany. Within a few weeks, the KPD was outlawed and over 10,000 arrests took place across the state of Prussia alone. After federal president Paul von Hindenburg’s death in 1934, all power belonged to the Führer and the Nazi party. The Act would be continually passed during the Nazi era and became a cornerstone of Hitler’s power despite the relative stability under early Nazi rule. His dictatorship reigned supreme over the people; there were no checks and balances due to the unlimited power assigned to him in these decrees. He led Germany and the world into the most destructive conflict in human history, because nobody could or was willing to stand up against his unchecked power. As of 2012, the Patriot Act remains in effect across the United States. The Act was set to expire on 8 February 2011, yet another extension was granted by a Congressional vote of 275-144. Likewise, on the 26 May 2011, president Barack Obama signed a four-year extension of three key aspects of the Act. It has been 10 years since the terrorist attacks against the United States by Islamic extremists.

Intriguingly, in the two cases discussed — and, indeed, in most cases where emergency powers are undertaken by governments — emergency legislation was achieved through legal avenues. The Reichstag Fire Decree was invoked under the presidential powers in Article 48 of the Weimar Constitution, which allowed Hindenburg to take any measure to provide public security without parliamentary approval. The Patriot Act was passed through the US Congress and signed by then president George W. Bush. Governments make these laws and enforce them; ultimately, however, they have no true authority unless the people choose to accept them.

But perhaps Americans do not want these laws overturned. Writer HL Mencken argues that ‘most people want security in this world, not liberty’. The absence of a significant terrorist attack against the United States, similar to 9/11, may justify the extreme measures undertaken in the Patriot Act. Four years after the measures of the Act were adopted, a poll was taken by ABC news. It stated that 59 percent of Americans favoured extending the Bill. Furthermore, a Pew’s research poll suggests that the percentage of Americans who consider the Patriot Act ‘a necessary tool that helps government find terrorists’ has increased from 33 percent in 2004 to 42 percent February 2011. The poll also concluded that the percentage of those who believe that Act ‘goes too far and poses a threat to civil liberties’ has decreased from 39 percent in 2004 to 34 percent February 2011. Perhaps, then, polls such as these show that people, even those from democracies that claim to value freedom above all else, now prioritise security in the wake of 9/11.

If Americans truly wish to continue with the Patriot Act, they must walk the road carefully. Giving up freedoms, however small or insignificant, for ‘temporary’ security is a slippery slope. Weimar Germany’s willingness to relinquish civil liberties because of fear of instability ultimately led to its domination under fascism and tyrannical rule.  Some may argue that making close parallels between the emergency legislation of the Reichstag Fire Decree and the Patriot Act leads to unfair comparisons. Some may argue the civil liberties restricted in the Reichstag Fire Decree far outweigh those in the United States under the Patriot Act. Some may argue restrictions of freedom of speech, press, and assembly would not stand in a traditionally democratic society, such as the United States, the way they did in Weimar Germany where democracy was barely more than a decade old. The longer this Patriot Act is in place, however, the greater the risk of citizens becoming passive or accepting of these supposedly ‘temporary’ emergency powers.

Conclusion

The great American patriot Benjamin Franklin once wrote that they ‘who give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety’. The United States should take a lesson from history. The people of Germany gave up civil liberty and democracy to secure their safety and it set off a chain reaction that led to the destruction of their country and countrymen. This is not to say that the United States will wage war and genocide across the world as the Nazis once did. But, by continually reauthorizing the Patriot Act, Americans are going against all the things that make their nation the self-proclaimed ‘brightest beacon for freedom’ in the world. Just like the way Cincinnatus demonstrated willingness to surrender emergency powers, the time has come for Washington to review its stance on its own power. More importantly, however, the people of the United States must remind themselves that they are a democracy. It is high time they consider whether the Patriot Act is a temporarily necessary tool to combat acts of terrorism, or an expanding avenue for its government to exercise tyrannical authority. You cannot save democracy by giving up the very foundations upon which it is built.

 

 

Selected further reading:

Inside 9/11: Zero Hour, National Geographic Channel, United States, 2005.

Hitler: the Rise of Evil, Alliance Atlantis, Canada, 2003.

Simon Montefiore, Speeches that changed the world, Quercus Publishing Lmt, London, 2005.

ABC Patriot Act poll: http://abcnews.go.com/US/PollVault/story?id=833703#.UHOj7k1vBX0

Patriot Act poll: http://bpr.berkeley.edu/2011/03/the-patriot-act-security-tool-or-big-brother-2011/

© APH Network and contributors 2012. All rights reserved.

 

Citation: Xavier Fowler, A proverbial Wolf in Sheep’s Clothing? The Dangers for Democracies in hurriedly introducing Emergency Powers. Australian Policy and History. October 2012.

URL: http://www.aph.org.au/a-proverbial-wolf

Permanent link to this article: http://aph.org.au/a-proverbial-wolf