'(F) To facilitate military interoperability between the United States and its North Atlantic Treaty Organization (NATO) and other close allies'.
To read through sections of NDAA as below we see a US PRESIDENTIAL executive power of global trade becoming ALL that is American economic activity. There is today no US sovereign economic and industrial base that is NOT foreign trade---that does not deal with foreign nations 'friendly' with US FOREIGN ECONOMIC ZONES. All that is TECHNOLOGY ---falls under the MILITARY INDUSTRIAL BASE. All that is MOVING FORWARD in US cities deemed FOREIGN ECONOMIC ZONES-----is global technology industrial base.
So, here we see a document which tells a US PRESIDENT his/her duties/responsibilities according to NDAA----MILITARY COMPLEX. Here in Baltimore we have the global corporate campus footprint for a global CYBER-SECURITY complex all of which falls under global MILITARY COMPLEX.
' Thus, the President, in coordination with the Secretary, the Secretary of Defense, the Secretary of State, the Secretary of Energy, and the heads of other Federal agencies, as appropriate, should have a regular and robust process to identify the emerging and other types of critical technologies of concern and regulate their release to foreign persons as warranted regardless of the nature of the underlying transaction. Such identification efforts should draw upon the resources and expertise of all relevant parts of the United States Government, industry, and academia. These efforts should be in addition to traditional efforts to modernize and update the lists of controlled items under the multilateral export control regimes'.
Where there are lots of references to weapons programs----this NDAA of course handles all that is commercial technology----media----education----health ----environment-----ergo, all that is MOVING FORWARD as the only economy to be allowed in US FOREIGN ECONOMIC ZONES.
PART I—Authority and administration of controls
SEC. 1751. Short title.
This part may be cited as the “Export Controls Act of 2018”.
SEC. 1752. Statement of policy.
The following is the policy of the United States:
(1) To use export controls only after full consideration of the impact on the economy of the United States and only to the extent necessary--
(A) to restrict the export of items which would make a significant contribution to the military potential of any other country or combination of countries which would prove detrimental to the national security of the United States; and
(B) to restrict the export of items if necessary to further significantly the foreign policy of the United States or to fulfill its declared international obligations.
(2) The national security and foreign policy of the United States require that the export, reexport, and in-country transfer of items, and specific activities of United States persons, wherever located, be controlled for the following purposes:
(A) To control the release of items for use in--
(i) the proliferation of weapons of mass destruction or of conventional weapons;
(ii) the acquisition of destabilizing numbers or types of conventional weapons;
(iii) acts of terrorism;
(iv) military programs that could pose a threat to the security of the United States or its allies; or
(v) activities undertaken specifically to cause significant interference with or disruption of critical infrastructure.
(B) To preserve the qualitative military superiority of the United States.
(C) To strengthen the United States defense industrial base.
(D) To carry out the foreign policy of the United States, including the protection of human rights and the promotion of democracy.
(E) To carry out obligations and commitments under international agreements and arrangements, including multilateral export control regimes.
(F) To facilitate military interoperability between the United States and its North Atlantic Treaty Organization (NATO) and other close allies.
(G) To ensure national security controls are tailored to focus on those core technologies and other items that are capable of being used to pose a serious national security threat to the United States.
(3) The national security of the United States requires that the United States maintain its leadership in the science, technology, engineering, and manufacturing sectors, including foundational technology that is essential to innovation. Such leadership requires that United States persons are competitive in global markets. The impact of the implementation of this part on such leadership and competitiveness must be evaluated on an ongoing basis and applied in imposing controls under sections 1753 and 1754 to avoid negatively affecting such leadership.
(4) The national security and foreign policy of the United States require that the United States participate in multilateral organizations and agreements regarding export controls on items that are consistent with the policy of the United States, and take all the necessary steps to secure the adoption and consistent enforcement, by the governments of such countries, of export controls on items that are consistent with such policy.
(5) Export controls should be coordinated with the multilateral export control regimes. Export controls that are multilateral are most effective, and should be tailored to focus on those core technologies and other items that are capable of being used to pose a serious national security threat to the United States and its allies.
(6) Export controls applied unilaterally to items widely available from foreign sources generally are less effective in preventing end-users from acquiring those items. Application of unilateral export controls should be limited for purposes of protecting specific United States national security and foreign policy interests.
(7) The effective administration of export controls requires a clear understanding both inside and outside the United States Government of which items are controlled and an efficient process should be created to regularly update the controls, such as by adding or removing such items.
(8) The export control system must ensure that it is transparent, predictable, and timely, has the flexibility to be adapted to address new threats in the future, and allows seamless access to and sharing of export control information among all relevant United States national security and foreign policy agencies.
(9) Implementation and enforcement of United States export controls require robust capabilities in monitoring, intelligence, and investigation, appropriate penalties for violations, and the ability to swiftly interdict unapproved transfers.
(10) Export controls complement and are a critical element of the national security policies underlying the laws and regulations governing foreign direct investment in the United States, including controlling the transfer of critical technologies to certain foreign persons. Thus, the President, in coordination with the Secretary, the Secretary of Defense, the Secretary of State, the Secretary of Energy, and the heads of other Federal agencies, as appropriate, should have a regular and robust process to identify the emerging and other types of critical technologies of concern and regulate their release to foreign persons as warranted regardless of the nature of the underlying transaction. Such identification efforts should draw upon the resources and expertise of all relevant parts of the United States Government, industry, and academia. These efforts should be in addition to traditional efforts to modernize and update the lists of controlled items under the multilateral export control regimes.
(11) The authority under this part may be exercised only in furtherance of all of the objectives set forth in paragraphs (1) through (10).
SEC. 1753. Authority of the President.
(a) Authority.—In order to carry out the policy set forth in paragraphs (1) through (10) of section 1752, the President shall control--
(1) the export, reexport, and in-country transfer of items subject to the jurisdiction of the United States, whether by United States persons or by foreign persons; and
(2) the activities of United States persons, wherever located, relating to specific--
(A) nuclear explosive devices;
(C) chemical or biological weapons;
(D) whole plants for chemical weapons precursors;
(E) foreign maritime nuclear projects; and
(F) foreign military intelligence services.
(b) Requirements.—In exercising authority under this part to carry out the policy set forth in paragraphs (1) through (10) of section 1752, the President shall--
(1) regulate the export, reexport, and in-country transfer of items described in subsection (a)(1) of United States persons or foreign persons;
(2) regulate the activities described in subsection (a)(2) of United States persons, wherever located;
(3) seek to secure the cooperation of other governments and multilateral organizations to impose control systems that are consistent, to the extent possible, with the controls imposed under subsection (a);
(4) maintain the leadership of the United States in science, engineering, technology research and development, manufacturing, and foundational technology that is essential to innovation;
(5) protect United States technological advances by prohibiting unauthorized technology transfers to foreign persons in the United States or outside the United States, particularly with respect to countries that may pose a significant threat to the national security of the United States;
(6) strengthen the United States industrial base, both with respect to current and future defense requirements; and
(7) enforce the controls through means such as regulations, requirements for compliance, lists of controlled items, lists of foreign persons who threaten the national security or foreign policy of the United States, and guidance in a form that facilitates compliance by United States persons and foreign persons, in particular academic institutions, scientific and research establishments, and small- and medium-sized businesses.
(c) Application of controls.—The President shall impose controls over the export, reexport, or in-country transfer of items for purposes of the objectives described in subsections (b)(1) or (b)(2) without regard to the nature of the underlying transaction or any circumstances pertaining to the activity, including whether such export, reexport, or in-country transfer occurs pursuant to a purchase order or other contract requirement, voluntary decision, inter-company arrangement, marketing effort, or during a joint venture, joint development agreement, or similar collaborative agreement.
So, is having NATO/UNITED NATIONS military structures on US SOIL a violation of US Constitution specifically not allowing this? Well, according to an UNCONSTITUTIONAL AND ILLEGAL NDAA-----it is required.
Why are 'US' defense firms setting up assembly lines in INDIA? Well, US FOREIGN ECONOMIC ZONES are only for global foreign corporations-----
So, NDAA creates all kinds of supposed US sovereign security requirements while much of military manufacturing occurs in Foreign Economic Zones overseas. The NDAA defines US NATIONAL SECURITY as STEM----and NDAA directs the US PRESIDENT to assure a steady advancement of global technology deemed vital to security ----and makes clear no US citizen has a right to deny any 'friendly' nation the right to free market enterprise inside US FOREIGN ECONOMIC ZONES. We saw US national media make a point of this with NO BOYCOTTING ISRAEL-----of course that NO BOYCOTTING extends to any foreign nation tied to TRANS PACIFIC TRADE PACT.
IF THIS IS A DOCUMENT OUTLINING WHAT A US PRESIDENT MUST DO IN FOREIGN COMMERCE----WHAT POWER DOES THE 99% WE THE PEOPLE HAVE IN ELECTING A LEGISLATIVE REPRESENTATIVE?
Remember, this NDAA is not only foreign export trade-----it is interstate commerce as well.
Article I, Section 8, Clause 3:
[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
From Wikipedia, the free encyclopedia
The Commerce Clause describes an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress. It is common to see the individual components of the Commerce Clause referred to under specific terms: the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause.
Below we see a discussion on EXECUTIVE FOREIGN AFFAIRS POWER coming from a right wing think tank. The details of text inside NDAA turn what was a power of CONGRESS in regulating commerce with foreign nations-----to a power of EXECUTIVE with a COMMITTEE in controlling what is the entirety of GLOBAL TECHNOLOGY GLOBAL ENERGY GRID.
SEC. 1753. Authority of the President.
(a) Authority.—In order to carry out the policy set forth in paragraphs (1) through (10) of section 1752, the President shall control--
(1) the export, reexport, and in-country transfer of items subject to the jurisdiction of the United States, whether by United States persons or by foreign persons; and
This article is long but please glance through to understand what has been our US Constitutional policy towards foreign trade and how our elected Congress is central in regulating interstate and international commerce. REAL LEFT SOCIAL PROGRESSIVES have a different interpretation from this right wing discussion but at least this discussion sounds AMERICAN.
An Understanding of the Constitution's Foreign Affairs Power
November 18, 1986
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(Archived document, may contain errors)
AN UNDERSTANDING OF THE CONSTITUTION'S FOREIGN AFFAIRS POWER
by Thomas J. Campbell
On April.14,, 1986, elements of the United States Naval and Air Forces carried out military action against five targets within the sovereignty of Libya. The action was t aken upon the order of President Ronald Reagan, having consulted with leaders of both parties and both Houses of Congress, pursuant to the requirements of the War Powers Resolution. Substantial damage was inflicted upon the Libyan targets,. and two Americ an servicemen lost their lives.
On October 22, 1983, 6,000 United States troops, joined by 300 troops of Barbados and Jamaica, invaded the sovereign nation of Grenada and engaged over 600 Cuban troops and armed airport workers. The fighting was completed i n two days; all but 300 United States troops were withdrawn in one month after loss of American, Cuban, and Grenadian lives.
In the spring of 1980, President Carter ordered United States military forces into Iran in an unsuccessful attempt to rescue the American hostages. Substantial loss of life among the American servicemen resulted.
These three recent incidents raise a fundamental question for U.S. constitutional law in a modern world of terrorism and nuclear weapons. Terrorists operate with the suppor t of individual nations, yet under a hypocritical cloak of denial. The acts of terrorists in form, if not in substance, are thus deprived of the character of acts of war. And the actions taken by the President in response thus do not easily fit within the constitutional category of declaration of war, yet they are certainly warlike. What justification is there for such use of force, and how does the explanation fit within our constitutional structure?
The concept of total war, imminently creatable and, through nuclear weapons, universally destructive, tugs at another premise ofThomas J. Campbell is Professor of Law at Stanford University. He spoke at The Heritage Foundation on October 6, 1986.
This lecture is one in a series celebrating the bicentennial of the U.S. Constitution.
ISSN 0272-1155. Copyright 1986 by The Heritage Foundation.
our constitutional allocation of powers. The formal involvement of Congress in a declaration of war seems oddly out of place in a world where the war, and the world, could be over in less time than it takes to convene a joint session.
My remarks today are directed to the constitutional dimensions of the foreign affairs power. I hope to offer some perspective into the proper allocation of functions between the executive a nd the , legislative branches. It is my hope that, at the end, we will have a clearer understanding of why the actions of President Reagan in Grenada and Libya and of President Carter in Iran were each constitutional and in accordance with international l a w as that term has meaning in the U.S. Constitution. I hope that the resolution we reach will not be the despairing one reached by Senator Fulbright in 1961, with words that he lived greatly to regret, as he said: "I submit that the price of democratic su rvival in a world of aggressive totalitarianism is to give up some of the democratic luxuries of the past."TWO SOURCES OF FOREIGN AFFAIRS AUTHORITY
The Constitution., has certain explicit passages dealing with the foreign affairs power. Specifically, the President is given authority to make treaties, to which the Senate is given the authority to advise and consent (Article 11, Section 2). The President is made Commander-in-Chief of the Army and Navy (Article II, Section 2); but the Congress is given the a u thority to raise and support armies, and to provide and maintain a Navy (Article 1, Section 8, Clauses 12 and 13). The Congress alone is given the power to declare war* and--in a much overlooked provision--the Congress is given authority to define offense s against the law of nations and to set punishments for them (Article I, Section 8, Clause 10).
In addition to these explicit provisions, there are also certain powers that flow merely from the fact that the United States is a sovereign nation. Justice Sut herland, writing in United States v._ C,drtiss-Wright E2Mort Corp., 29 U.S. 304, in 1937, observed that "The investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution."
This claim actually has much more ancient roots, going back for its clearest exposition to a famous debate between Alexander Hamilton and James Madison in 1793. England and France had gone to war in that year, and President George Washington had announced the United States, neutrality. At once, the Proclamation was challenged, in that nowhere in the Constitution is the President given the explicit authority to proclaim neutrality.
As you might suspect, Alexander Hamilton was first to the rescue. In a series of articles, he developed the theory that the executive power, vested in the President under Article II, inherently included the full panoply of rights in foreign affairs on behalf of the American colonists by the British Crown. Contrast this view with H a milton's earlier position, taken in Federalist 69, that the authority of Commander-in-Chief devolved upon the President substantially less power than-was enjoyed by the-British Monarch. - one reconciliation might be that additional powers with regard to t he Army and Navy are explicitly given to Congress; whereas the explicit grants of authority to Congress in foreign affairs deal only with treaties and the law of nations.
James Madison responded that the Congress more rightfully inherited these powers. Mos t important for our purposes, both men conceded that there were indeed powers inherent in the idea of sovereignty that were not spelled out in the Constitution. The only disagreement was which branch could exercise them, the President or Congress.
As to t he allocation of these unspecified powers between the Congress and the Executive, the latter has won out over the subsequent years. 'Madison himself switched sides on the issue when it was presented in a different context several years later. In large par t , this outcome was foretold by John Jay, in Federalist 64,. that the executive branch had inherent advantages over the legislative in the conduct of foreign affairs, drawing from its ability to act quickly and, if need be, in secret. Much of this developm e nt, over the subsequent two hundred years, owes its force as well to Napoleon's maxim, quoted by Justice Jackson in the steel seizure case, that."the tools belong to the man who can use them" (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)). T he President could use the inherent powers of sovereignty in foreign affairs, and so they became his.
A different result obtains in the domestic sphere. As the Supreme Court hastened to point out in the steel seizure case, as to domestic powers, there is n o basis for the assumption of residual power by the President: indeed, there is very little basis for residual power at all. And the Tenth Amendment explicitly reserves to the states those powers not granted to the federal government. All that devolved fr om the nature of sovereignty was in the foreign area; the domestic powers were divided by the Constitution between the branches of federal government with the residuum to the states.
I I. THE MODERN FOREIGN AFFAIRS POWERS
The distinction I have just outlined has direct application to the resolution of the problems initially posed: the allocation of3
power to deal with the modern problems of terrorism and nuclear weapons. The key, I suggest, is to analyze the power being asserted and analogize it, either t o an explicit constitutional grant of power, or to an inherent foreign affairs authority. Such a process of analogy allows both preserving the vital 'importance of the Framers' original intent and acceding to the modern realities they could only dimly hav e foreseen. Let us begin with powers analogizable to the explicit grants of authority. I wish to discuss two areas: 1) the power to declare war, and 2) the power to make treaties. The power to declare war has a modern day equivalent in the War Powers Resol ution. The power to conclude treaties has a modern day equivalent in the power to conclude executive agreements.
A. The Power to Declare War
The War Powers Resolution, adopted in 1973, requires the President to consult with the Congress "in every possible instance ... before introducing United States armed forces into hostilities." No later than 48 hours following any such introduction, and regularly thereafter, consultation with the Congress is required. Sixty days from the initial involvement of U.S. tr o ops, the President must withdraw them unless the Congress has explicitly authorized their continuance. This legislation is a modern day variety of the declaration of war. It has several advantages over the traditional declaration of war that are evident i n consideration of the Grenada invasion and the Libyan action of last April.
Bear in mind that declarations of war have often been much contested in the U.S. Congress with stibstantial time elapsing after the President's request. Pearl Harbor and the immed iately following declaration of war were exceptions rather than the rule. The Mexican War was debated for months, the First World War, for weeks.. It can safely be assumed that, in the examples at hand, a request for a declaration of war against Libya or against the regime of General Austin in Grenada would have engendered substantial delay and debate. All promise of surprise, so essential to each incident, would have been lost.
Even more dangerously, such delay would have created the opportunity for U.S. adversaries to ally themselves with Grenada or Libya. It can scarcely be doubted that, long before Congress had finished debating the question, Cuba would have allied itself with Grenada, and the Soviet Union with Cuba, to stand by the General Austin regi me in the event of an armed attack. And during the lengthy debate on a declaration of war against Libya, Syria and Iran, if not the Soviet Union, would have affirmed their solidarity with Colonel Qadhafi.4
To forget the dangers of pyramiding alliances in a context of threatened use of force is to lose much of the lesson learned at so great cost in August of 1914. By contrast,, both the Grenadian and Libyan incidents were commenced and virtually completed by the time the rest of the world knew of them. Of course, Cuba and the Soviet Union protested. But it is quite a different matter to protest a fair accompli than to add-one's-prestige to a game of mutual bluff with nuclear stakes.
But what of the Constitution? In the War Powers Resolution, we have a mode rnization of the declaration of war. It is an acceptable modification, in my view, because it is Congress that declares war, and it is Congress that established the consultation, notification, and duration requirements of the War Powers Act. Congress has r ecognized that, in the modern context, force must often be used without an overt declaration of war. Once hostilities commence, of course, there is no further need to exclude debate, and Congress has established a 60-day period as a rough cut for how long such debate might run.
American history has other examples of constitutional malleability: indeed, several of much more dubious legality. In 1845, for example, the Texas Republic was annexed to the United States by majority vote in both Houses, after a tr eaty between-the two republics failed to achieve the required two-thirds vote in the Senate. Hawaii was acquired in 1898 in similar fashion after a treaty with Great Britain failed in the Senate. The substitution of legislation for a treaty substantially cut down the constitutional role of the Senate; whereas here Congress as a whole is not altering the powers of either House.
The proposition I advance is that the action taken in Grenada and against Libya was, in all meaningful respects, war. Indeed, I bel ieve the United States is presently in a de facto state of war with Libya. In identical fashion, the United States was for ten years in a de facto state of war with North Vietnam. Even Senator Fulbright, Tho would have had it otherwise, admitted in 1967 t o the first session of the 90th Congress that "Joint resolutions such as those pertaining to Formosa, the Middle East, and the Gulf of Tonkin are a proper method of granting authority, provided that they are precise as to what is to be done and for what pe riod of time, and provided that they do in fact grant authority and not merely express approval of undefined action to be taken by the President."
The international law implications are profound. In that a state of war exists between Libya and the United S tates, as of the date agents of the Libyan government carried out armed attacks on United States military personnel in West Berlin, the strikes against the five Libyan targets became quite defensible within international law. The only objection might turn on the fact that there was no formal note5
delivered to the Libyans in advance of the bombing; however, if, as we believe, the hostilities were actually begun by Libya's bombing in West Berlin, U.S. rights of belligerence commenced at that time. Instead of taking this public position, however, the Administration has not sought to justify the April 14 actions as appropriate war measures. Yet that is just what they were. The U.S. was justified or not in taking the action, it-was-as a-response to armed att a ck against Americans. Each state has now used military force against the other. Neither America nor Libya appeals to any third party arbitrator in this dispute. That is what is commonly known as war. To try to fit within the U.N. Charter, furthermore, the United States has paid substantial costs in terms of world credibility. Article 51 guarantees "the inherent right of ... self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." But no one expects the Security Council to take charge of this situation. Sadly, that body has failed of the promise so many had for it in October 1945. The United States made no pretense of bringing the matt er before the Security Council. By trying to find justification within the confines of the U.N. Charter, the U.S. has given that document a higher status than present reality justifies andhas also left itself open to the charge of hypocrisy.
Where the War Powers Resolution covers action that would otherwise be properly analyzed under the explicit authority to declare war, I find it an acceptable modernization of that power, but the War Powers Resolution also has been utilized in a category of cases not ana logizable to declarations of war. There, I will have serious reservations with its use.
B. The Treaty Making Power But to continue with the topic of modern day analogies to explicit constitutional powers, how are we to interpret the practice of executive a greements? once again, our initial question is: Is the analogy closer to an explicit power, or to one of the reserved powers? The answer turns on what the substance of executive agreements has become. If these devices were limited to minor matters of cour t esy between nations, for example dealing with the treatment of diplomats, one might advance the analogy to the courtesy between 18th century sovereigns, and thus to the implied powers that passed to the president rather than to the Congress upon nationhoo d. The strongest of these rights would be the right to recognize a foreign sovereign, upheld as exclusively the prerogative of the president in the Pink and Belmont cases in the United States Supreme Court. (United6
States v. Belmont, 301 U.S. 324; Unite d States v. Pink, 315 U.S. 203 (1942).) But executive agreements have not been so limited. The fundamental charter dealing with commercial trade between eighty-one nations, including all the free economic powers, the so-called GATT (General Agreement on T a riffs and Trade) has force in American by dint of executive agreement. Does GATT have teeth as domestic law? It certainly does. GATT has been used to strike down the "Buy America" laws of several states. Yet GATT was never submitted to the Congress, never approved by anyone other than the President. The GATT, I submit, is a treaty, and its legitimacy thus turns on whether the executive agreement is an acceptable modernization of the treaty-making authority. Consider the executive agreement at issue in the P ink and Belmont cases. The agreement dealt not only with the American recognition of the Soviet Union, but with the legitimization and assignment of claims asserted by that government against United States citizens. As a result of an agreement between'Pre s ident Roosevelt and the Soviet Minister Litvinov, Americans citizens who came to this country to escape the system that had confiscated their property in Russia found the property they had taken with them to American suddenly forfeited--to the United Stat es, standing in the shoes of the .Soviet Union.
In these examples, is it adequate to use an executive agreement rather than a treaty? The executive agreement cuts out a crucial constitutional step: ratification by the Senate. Thus, under the War Powers Res olution, the executive agreement is not a recasting of governmental authority in such a way that achieves substantial advantages while preserving the fundamental constitutional values. It is a modern device at fundamental odds with the allocation of const itutional authority.
Justice Robert Jackson, when he was was Attorney General to President Roosevelt, saw this danger quite clearly. In an Attorney General's opinion as profound in its analysis of foreign affairs power as his later opinion in the steel sei zure case was for its analysis of domestic power, Jackson stated that no executive agreement could purport to bind for the future, commit the expenditure of money, or deal with an area other than the President's implied, not explicit, rights. (39 OP. 484 ( 1940).) One final point concludes this discussion of explicit powers in foreign affairs. The Constitution gives the President the authority to make treaties, and the Senate the power to advise, and consent to them. How do we allocate the right to terminat e treaties? Applying the method put forward here, terminating a treaty is more closely analogizable to adopting a treaty than it is to the implicit foreign affairs power. Of course, a treaty becomes void without more-ado upon
renunciation by the other party. This accords with international law of treaties, as well as the common law of contract. But if the United States wishes to renounce such a commitment, the procedure should involve the President and the Senate concurring as it did when the United S t ates took up an obligation. This issue has not yet gone to the Supreme Court. However,, the District of Columbia Circuit Court of-Appeals has held that the President acting alone may terminate a treaty. (Goldwater v. Carter, F.2d 697 (1979).) The context w as President Carter's unilateral abrogation of the Mutual Defense Treaty'with the Republic of China. To those result-oriented observers who might rejoice at this outcome, I would offer the sobering inference that, by precisely the same logic, President Re agan was within his rights to terminate unilaterally U.S. adherence to the jurisdiction of the World Court. The Senate should have had a constitutional role in both, or in neither.111. THE IMPLIED FOREIGN AFFAIRS POWER
We now consider a category of power that, however clear we are that it exists, is still dangerous: the implied foreign affairs power. I turn again to Justice Jackson: Loose and irresponsible use of adjectives colors all nonlegal and much legal discussion of presidential powers. ."Inherent" p owers, "implied" powers, "incidental" powers, "plenary" powers, "war" powers and "emergency" powers are used, often interchangeably and without fixed or ascertainable meanings. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J., Concu rring). To avoid this charge let me specify that I am here concerned with those powers that passed to the United States as a nation upon achieving independence, but that were not specified in the Constitution.
Nor am I speaking of the power over foreign co mmerce that the Constitution vests in the Congress, and which the Congress, with appropriate specificity, may delegate to the President. Such power is granted, for example, in the Trading with the Enemy Act, and the International Economic Emergency Powers Act, both of which convey exceptional power over interstate and foreign commerce to the President in order to achieve foreign policy objectives. Those powers are worthy of study, but in a different presentation, one dealing with delegation. Today, our sub ject is separation of powers. What are the powers implicitly given to the President, so that no further word from Congress is necessary, and no restricting word from
Congress is effective? That latter qualification is critical: we are dealing with power s that, though implied, are as much into the President's authority as, say, the pardoning power: so that any congressional attempt to condition or restrict them would be unconstitutional. We are not here concerned with concurrent power, such as the Presid e nt and Congress possess with regard to interstate or foreign commerce. In answering the question, a natural starting point is the list of powers possessed by sovereign nations as of the time of America's founding. These would include at least these three: 1) the right to protect the safety of citizens abroad, 2) the right to respond with military force to aggression, whether from states or from international criminals, and 3) the right to carry on diplomacy with foreign states, including the rights to accr e dit their ministers and to grant or withhold recognition of foreign governments. Every nation -exercising sovereignty as of 1789 displayed at least those characteristics in its external dealings. Each of these implied rights has important modern applicati o ns. The right to protect the safety of citizens and their property was early recognized by Chief Justice John Marshall (see Schooner Exchange v. McFaddon, 7 Cranch 116, 136 (1812)); and as was eloquently restated in 1860 by Justice Nelson: As respects the interposition of the executive abroad,, for the protection of the lives or property of the citizen, the duty must, of necessity, rest in the discretion of the President. Acts of lawless violence, or of threatened violence to the citizen or his property, c annot be anticipated and provided for ... the great object and duty of government is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home. (Durand v. Hollins, 4 Blatch 451, 454 (1860).)
When Leon Klinghof fer was isolated from the other passengers on the Achille Lauro, murdered, and thrown into the Mediterranean, he was killed because he was an American, as well as because he was a Jew. When Robert Stetham was marched to the front of TWA Flight 847, beaten , killed, and thrown to the pavement in Beirut, he was killed because he was an American and a member of the U.S. Armed Services. To our frustration and regret, the killers of Robert Stetham have blended back into the anarchy called Beirut. But the killers of Leon Klinghoffer were pursued and intercepted over the Mediterranean by United States Navy jets. The one reservation upon that proud episode was the cowardice of the Italian government when, in contravention of their treaty obligations, they allowed Ab u Abbas out of custody within 24 hours. It is noteworthy that the Italian court hearing the case has since issued an arrest warrant for Mr. Abbas.
In the Achille Lauro action, was the President bound by the War Powers Resolution? The terms of the Resolu tion might fit the event, in that U.S. forces were introduced into a situation "where imminent involvement in hostilities is clearly indicated by the circumstances." Yet, I submit, any attempt to bind the President's action in such a situation, by an adva n ce consultation or maximum duration requirement, directly interferes with a major category of implied foreign affairs power. Here, unlike the declaration of war power, Congress has not been given an explicit role; and any attempted extension of congressio n al authority is as unconstitutional as though Congress were to direct a federal judge which way to rule. Likewise, President Carter's unsuccessful attempt to rescue the U.S. hostages in Tehran was squarely within this branch of implied power: to protect t h e lives of Americans invited into a foreign country and to seek their rescue. President Carter was right not to inform the Congress in advance because the extension of the War Powers Resolution to such a presidential action would have been an unconstituti onal infringement on executive action. However, I must note that President Carter defended his failure to comply on the basis of what were termed "extraordinary operational needs."
Consider the second category: a nation's right to respond to aggression, wh ether from another state or from an international criminal. This right exists in the absence of any explicit constitutional provision; it would be hard to conceive nationhood without this right. President Wilson recognized the need to arm U.S. merchant sh i ps against submarine attacks prior to America's entry into World War I. A bill to this precise effect had been introduced in Congress, but had failed. -' Woodrow Wilson went ahead under his own authority. Had this been a matter of domestic action, under t h e principles of the steel seizure case, the fact that the Congress had considered authorizing such activity and chosen not to do so would count strongly against the President's action. But, unlike domestic authority, we are here drawing upon implied autho rity in the international relations field; and not only is congressional authorization unnecessary, congressional prohibition is unconstitutional.
An even earlier example, and one with eerie modern day implications, is provided by President Jefferson's tre atment of attacks upon American naval vessels by the Sultan of Tripoli. Pirates operating out of Tripoli were pursued and hanged, under President Jefferson's order. But Tripalitan naval vessels themselves were not pursued, unless they had attacked first. The power asserted by President Jefferson was the right to respond to attack from a foreign power, and the right to pursue international criminals such as pirates, even into foreign territory, if in hot pursuit. In
1 0 -
summarizing these precedents, the Senate Foreign Relations Committee in 1967 observed during the first session of the 90th Congress,
During the 19th century American Armed Forces were used by the President on his own authority for such purposes as suppressing piracy, suppressing the slave trade by American ships,, "hot pursuit" of criminals across frontiers, and protecting American lives'and property-in backward areas-or areas where government had broken down. Such limited uses of force without authorization by Congress, not involving the initiation of hostilities against foreign governments, came to be accepted practice, sanctioned by usage though not explicitly by the Constitution."
In the modern context, the parallels are all too obvious. The power to deploy counterterrorist forces anywh ere in the world is the modern day equivalent of commissioning naval vessels to seize and hang pirates. 'The President should exercise that authority without the hesitation imposed by the War Powers Resolution.
Lastly, the President has the implied right to carry on diplomacy, including the accreditation of foreign ministers and thus the recognition of foreign governments. President Washington took no consultation with the Congress in his handling of the Citizen Genet affair, and the power has been exerci sed unilaterally by the.President ever since.
From the earliest times, Presidents have used the recognition power as a way of choosing sides in civil wars or wars to emerge from colonialism. Often, aid has gone beyond mere recognition and has included the provision of arms to one side. Here, the unilateral power ends.
Should the President choose to recognize the government of Arturo Cruz in Nicaragua, Jonas Savimbi in Angola, or the Mujahideen in Afghanistan, it would be entirely within his prerogative to do so. The provision of money and support, however, would require appropriation power; and there we run into an explicit constitutional grant of power to the Congress. Hence, it would be quite constitutional for the Congress to cut off funds to support th ese rival regimes, but quite unconstitutional for Congress to tie any executive branch appropriation to a condition that diplomatic support forany of these rival regimes be terminated.
The implied foreign affairs powers have important limits. First of all, one simply does not make them up. One starts the inquiry with the practice of sovereigns as of the time of the independence of the United States, for these are the powers that the United States as a nation obtained. What about attributes of sovereignty t hat have disappeared from the practice of nations since 1776? Can we make a
study of the law of nations, and derive newfound limits to the inherent foreign affairs power?
For the United States, the answer is clearly no, any more than a subsequent statute could abolish the Supreme Court. The inherent foreign affairs powers are no less constitutional for being implied and can only be given up by constitutional amendment.
Yet this concept has been roundly misunderstood by reason of an excessively broad Supreme Court statement in 1900. 1 refer to the statement by Justice Gray in the Paquete Habana, that
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction .... For this purpose, wh ere there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, re search and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. 175 U.S. 677 (1900).
Justice Gray cites no authority for this sweeping conclusion. As much as any law professor delights in learning that, by year s of labor, research, and experience, his views might be made part of the law of the land, I fundamentally reject this conclusion. Indeed, any scholar who reads the Paguete Habana must concede that the statement is dicta.
But as a source of mischief, the Paquete Habana is unparalleled. Treaties to which the United States is not a party are cited, writings of distinguished international scholars with no background in U.S. constitutional law are proffered, and resolutions of the United Nations General Assem bly are relied upon, all to prove some proposition of international law that supposedly binds the United States. From a constitutional point of view, it cannot be.
The first limitation, therefore, is a conscientious search for the claimed authority in the practices of nations as of the time of American independence. A second limitation is this: One must always yield to an explicit grant of constitutional authority.
The expenditure power is one example. Another example is the power to dispose of property, v ested in the Congress by Article IV, Section 3, Clause 2. Hence, as right as that action was, it was unconstitutional for President Roosevelt to agree with Winston Churchill to swap fifty American destroyers for 99-year leases on military bases on British territory in North America and the Caribbean. The matter should have been submitted to Congress. It was- 12 -
for Congress, not the President, to decide whether that was fair value or not.
There is another explicit source of power that might bind the e xecutive agreement authority: The constitutional grant to Congress "To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." To the extent an implied foreign affairs power of the executive is defined in terms of an offense against the law of nations, Congress thus has the power to define, and thereby limit, that authority. This could be a.check on some of the broader claims of implied foreign affairs power, though Congress has never used this authorit y . Of the three implied rights I have discussed, only the second would conceivably be affected by exercise of this power: the right to respond to aggression from other states or from international criminals. Though I cannot conceive of its happening, the C o ngress could define offenses against the law of nations so as to exclude piracy or hostage-taking. (Incidentally, I derive additional support for my castigation of Justice Gray's Paquete Habana dicta from this clause. our constitution, I maintain, conceiv e s of no other law binding on our government than the Constitution itself, treaties, and statutes. The law of nations can become part of our law, therefore, only by being explicitly legislated. My view is supported, I submit, by this clause in the Constitu tion, in which the Framers appear to say: IW3 to the law of nations,, we shall leave that to the Congress to define, as and when it may wish to do so.")IV. CONCLUSION--THE PROBLEM OF THE FAIT ACCOMPLI
To review, my thesis is that the recent strains in the exercise of United States foreign policy authority can be usefully analyzed by analogy. If the practice is fundamentally similar to the power explicitly granted by the Constitution, then the branches involved in that power must be involved. If the practi c e is fundamentally similar to an implied foreign affairs power, then it-is for the executive alone to exercise. The April 14 action in Libya was analogizable to war. It was with good reason that we did not formally debate and then declare war; the War Pow ers Resolution was properly invoked as a surrogate for those procedures.
The Iranian hostage rescue was analogizable to an implied right to protect Americans from harm abroad and was exercisable by the President alone. That President Carter chose to comply even with part of the Resolution reflected a desirable, but not constitutionally compelled, degree of sharing with the Congress.
The interception of the Achille Lauro hijackers was the sam e. President Reagan was doing what presidents have done since the
founding of our nation and what sovereigns have the right to do: to pursue pirates in their attempt to escape.
The stationing of marines in Beirut,, with the approval of the Lebanese government, to protect our embassy and our citizens, was analogiza ble to an inherent foreign affairs authority of the executive. Congressional insistence on a 60-day duration for their presence, under the War Powers Resolution, was unconstitutional, and, as it turned out, a sign taken by our adversaries of a nonpermanen t commitment on our part.
Executive agreements that deal only with the implied foreign affairs powers of the President may be concluded. Adherence to Robert Jackson's criteria guarantees that such executive agreements are just what would be analogizable to the attributes of a head of state as of the time of American independence. Executive agreements that go beyond those limits, to matters traditionally dealt with by treaties, are usurpations of the Senate's prerogative.
Yet I must admit that my analogies are not always easy. There are cases that fall dangerously in between. For example, what starts out as a proper exercise of implied power might very well lead to a state of war. The interception of the Achille Lauro hijackers interfered with Egypt's right to free passage over the seas. The U.S. went to war over just that principle in 1812. Had Egypt chosen to consider this a provocation, it could have declared war on the United States. Then, what had started out as a legitimate function purely by the Presi dent would have become a cause for war, in which the Congress was effectively given no role.
Exercises in the Gulf of Sidra pose the same problem. The President has the right, as Commander-in-Chief, to order U.S. naval vessels'anywhere in international wat ers for exercises. No serious legal scholar denies that the Gulf of Sidra is international water. However, of all that can said against Colonel-Qadhafi, being a serious legal scholar is not one. He has chosen to attack U.S. planes flying over these waters . Thus, from the legitimate, exclusively presidential decision to exercise our Navy in that Gulf, a state of war could result.
Hence, it might be argued, the War Powers Resolution should compel presidential consultation in advance of such maneuvers, and a limit to their duration.
This problem was foreseen by Hamilton, as early as 1793. In the same series of papers I alluded to before, he recognized that there was a "right of the executive, in certain cases, to determine the condition of the nation, though it may, in its consequences, affect the exercise of power of the legislature to declare war .... The executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decision."
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The solution, I feel sure, is not to restrict our country's legitimate rights in foreign affairs, but for the President to add a heavy measure of caution and good judgment when a fait accompli might arise. To take the contrary view is to surrender. To say that the President may not direct U.S. naval vessels without congressional authorization, because Colonel Qadhafi might take that as a pretext for war, is to reward Colonel Qadhafi with a veto power accorded to no branch of our government.
To compe l the President to consult with the Congress when the opportunity presents itself to capture the murderers of Leon Klinghoffer is to renounce part of the sovereignty we have as a nation. Taking into account the remote chance that Egypt would treat that in terception as an act of war, the President invoked a legitimate incident of American sovereignty, which it was his to assert under our Constitution.
The problem of the fait accompli is always present in foreign affairs; for a crisis, or a war, can be start ed by one actor alone. It is no criticism of the theory I have been expounding, or of the United States Constitution, that a head of state can precipitate the most serious international consequences.
A head of state who lacked the capacity would lack as w ell the will and the means to carry out a nation's principles and interests. This ancient doctrine has only grown more true as our world responds to the new crisis of nuclear threat and a revival of the old crisis of the international-pirate. It is a stre ngth of our Constitution that it allows us ways of accommodating both strains, while still preserving the separation of powers that is the genius of the American system of government and the guarantor of the American system of rights.*
* The author refers the reader to the treatise, "The President: Off ice and Powers 1787-1948, History and Analysis of Practice and Opinion" by Professor Edward S. Corwin (1948), for corroboration of several of the historical events described in the text.
Here we see our US national media letting our US 99% WE THE PEOPLE KNOW that MOVING FORWARD all US industrial economy will be tied to GLOBAL ENERGY AND TECHNOLOGY ONE WORLD ONE GRID-----AND all that is energy and technology grid is NATIONAL SECURITY. What global banking 1% CLINTON/BUSH/OBAMA did using this NDAA combined with Clinton era definition of US FOREIGN ECONOMIC ZONE------to completely place in the hands of US EXECUTIVE BRANCH/PRESIDENT to control all aspects of commerce inside US FOREIGN ECONOMIC ZONES without any need for our REPRESENTATIVE CONGRESS OR STATES' RIGHTS.
All of this is obviously UNCONSTITUTIONAL and an illegal attack on our US representative government and can be VOIDED.
When our national media FAKE ACTIVISTS fight over two sections in this NDAA indeed serious----the ending of DUE PROCESS and ability to arrest and detain any US citizen without reason----and not mention how NDAA completely kills any control over US domestic, sovereign economy-----
DO WE HAVE ANY SOVEREIGN RIGHTS WHEN ALL THAT IS US SOVEREIGN LAND IS DEEMED A FOREIGN ECONOMIC ZONE UNDER NDAA PRESIDENTIAL DICTATOR CONTROL?
Strengthening the Security and Resilience of the Nation's...
Jul 2, 2018 ... A secure and resilient power grid is vital to national security, ... As a science, technology, and energy security agency, DOE takes a ... and support of Puerto Rico and the U.S. Virgin Islands for long-term resiliency improvement.
America's Electric Grid Is a Matter of National Security | The...
Oct 17, 2018 ... America's Electric Grid Is a Matter of National Security ... renewable energy and they are using advanced technologies like Bloom Energy fuel ...
National Security and Assured US Electrical Power - CNA
between climate, energy, and national security, and has brought its vast operational, tactical, and strategic ... We have the technology to build a grid that is .
The Role of Advanced Energy in National Security and a Resilient ...
Oct 18, 2018 ... The Role of Advanced Energy in National Security and a Resilient Grid ... and national security—the latter all the more acute in relation to US military ... cells and digital energy technologies play in enhancing grid performance ...
US power grid needs defense against looming cyber attacks |...
Mar 23, 2018 ... US power grid needs defense against looming cyber attacks ... The Departments of Energy and Homeland Security identified the grid's ... designs and technologies to protect our grid and to provide states the tools they need to ...
America must get serious about nuclear energy and national...
Jul 31, 2018 ... The technological overlap between the reactors that power our submarines ... Tags John Warner Nuclear energy Power grid National security.
The Role of Renewable Energy in National Security - American ...
Oct 1, 2018 ... technologies, such as storage, can be combined to form self-sustaining microgrids. ... grounds of national security and grid resilience.
Modernizing the U.S. Energy Grid | Council on Foreign Relations
Jan 26, 2016 ... The U.S. electric grid dates back to 1882, the year that Thomas Edison .... improving battery technology, the costs of going off the grid are likely to remain .... The National Security Agency reports growing cyber intrusions by ...
Electricity and Smart Grid | ORNL - Oak Ridge National Laboratory
America's safety, security, and overall health and vitality depend on the ... ORNL expertise and technologies support the grid's need for energy storage, ...
How Secure Is Our Smart Grid? - Government Technology
Feb 26, 2017 ... The U.S. Department of Energy released an alarming report in January ... is eager to build infrastructure and appear strong on national security, ...
Who supports GLOBAL TECHNOLOGY GRID and all its industries as GREEN, SUSTAINABLE, SOCIAL JUSTICE? Chris Hedges, ACLU and all those far-right wing 5% freemason/Greek players pretending to be fighting NDAA.
How Secure Is Our Smart Grid?
The U.S. Department of Energy released an alarming report in January 2017, saying that the U.S. electric grid is in imminent danger from a cyberattack. So where have we been, where are we now, and where are we going regarding smart grid security?by Dan Lohrmann / February 26, 2017
Over the past several months, alarm bells have been going off regarding potential attacks against the U.S. electrical grid. Consider these recent media headlines:
The Wall Street Journal: Cyberattacks Raise Alarm for U.S. Power Grid — Excerpt: “Cyberattacks that have knocked out electric utilities in Ukraine, including one suspected hack earlier this month, have renewed concern that computer criminals could take down portions of the U.S. power grid.”
U.S. News & World Report: Cybersecurity of the Power Grid: A Growing Challenge — Excerpt: "Until 2015, the threat was hypothetical. But now we know cyberattacks can penetrate electricity grid control networks, shutting down power to large numbers of people. It happened in Ukraine in 2015 and again in 2016, and it could happen here in the U.S., too."
BuzzFeed News: Here’s Why Trump Takes The Blackout Doomsday Scenario Seriously — Excerpt: “The Obama administration’s Energy Department announced $3.9 billion in ‘smart grid’ funding available to the nation’s utilities in 2009, largely for upgrades to defeat normal blackouts and permit home meters to talk back to power companies, but these EMP hawks still warn the overall grid is vulnerable to a knockout punch. Now under President Trump, who is eager to build infrastructure and appear strong on national security, they may finally have an ally in the White House.”
Bloomberg News: U.S. Grid in ‘Imminent Danger’ From Cyber-Attack, Study Says — Excerpt: “The U.S. Energy Department says the electricity system ‘faces imminent danger’ from cyber-attacks, which are growing more frequent and sophisticated, but grid operators say they are already on top of the problem.In the department’s landmark Quadrennial Energy Review, it warned that a widespread power outage caused by a cyberattack could undermine 'critical defense infrastructure' as well as much of the economy and place at risk the health and safety of millions of citizens. The report comes amid increased concern over cybersecurity risks as U.S. intelligence agencies say Russian hacking was aimed at influencing the 2016 presidential election.”
The U.S. Energy Department’s 494-page report was released during the final days of the Obama administration, and it offered this clear warning for 2017 and beyond: "Cyber threats to the electricity system are increasing in sophistication, magnitude, and frequency. The current cybersecurity landscape is characterized by rapidly evolving threats and vulnerabilities, juxtaposed against the slower-moving deployment of defense measures."
The new report offered a long list of key findings for policymakers, and here are a few:
- Advanced metering infrastructure has had a significant impact on the nature of interactions between the electricity consumer and the electric system, allowing two-way flow of both electricity and information and enabling the integration of assets behind the meter into the larger electric grid.
- Interconnection standards and interoperability are critical requirements for seamless integration of grid connected devices, appliances, and building energy management systems, without which grid modernization and further energy efficiency gains may be hindered.
- Evolving consumer preferences for electricity services are creating new opportunities.
- The convergence of the electric grid with information and communications technology creates a platform for value creation and the provision of new services beyond energy.
- There is enormous potential for electric end-use efficiency improvement based on (1) technical analyses, and (2) the differences in energy efficiency performance between states and utilities with and without ambitious electric end-use efficiency policies and programs.
- There are no commonly used metrics for measuring grid resilience. Several resilience metrics and measures have been proposed; however, there has been no coordinated industry or government initiative to develop a consensus on or implement standardized resilience metrics.
- Low-income and minority communities are disproportionately impacted by disaster-related damage to critical infrastructure. These communities with fewer resources may not have the means to mitigate or adapt to natural disasters and disproportionately rely on public services, including community shelters, during disasters.
How Did We Get Here? A Short Smart Grid History Lesson
Back in 2010, Scientific American, in an article on Securing the Smart Grid, articulated the new cybersecurity challenges posed by our 21st-century power distribution: “Unlike the traditional power grid, a 'smart' grid is designed to accommodate a two-way flow of both electricity and data. This creates great promise, including lower energy prices, increased use of renewable resources and, it is hoped, fewer brownouts and blackouts. But a smart grid also poses several potential security problems — networked meter data, power companies' computers and those of customers could all be vulnerable to tampering.”
Maintaining resilient electrical power generation and distribution are essential elements in protecting every critical infrastructure area. The Department of Homeland Security houses the national response plans for critical infrastructure protection, and all of the sector-specific plans are inter-related in some way with the use of electrical power.
I wrote a CSO Magazine blog on how the federal government promised smart grid security back in 2009, and the key questions still remain the same in 2017 — even if the hacker scope of challenges have evolved.
Eight years ago I wrote: “One central question remains: Will the ‘smart grid’ be smart enough to stop hackers? Or in pragmatic layman's terms, can those ‘smart customer meters’ conserve energy, eliminate the need for the ‘meter man’ to keep running around our neighborhoods, allow us to turn down the home air conditioning from work and allow us to remotely start our ovens to get casseroles ready for dinner — without creating any ‘back doors’ for the inevitable bad guys?"
While there are tremendous global opportunities for smart grid advances and smart city innovations, the hackers could derail progress very quickly causing a major setback in smart grid technology adoption.
An Industry Discussion on YouTube
This past week, I was given the honor and privilege of participating in an online discussion led by IBM on 'Keeping the Lights On — Cybersecurity and the Power Grid.' The questions discussed included:
— What emerging technologies and factors make power grid security such a priority today?
— What are some of the challenges utilities face when trying to secure the power grid and how can they overcome them?
— As utilities incorporate sensors and data from outside their private supervisory control, how do they manage the trust factor?
— How to best incorporate cybersecurity concerns into the overall security plan for energy and utility companies.
— What’s the role of government in helping to secure our power grids?
Besides myself, the roundtable discussion participants included:
— Steven Collier, Director of Smart Grid Strategies, Milsoft Utility Solutions
— Morgan Wright, Cyberterrorism and Cybercrime Analyst, and Principal, Morgan Wright LLC
— Bob Stasio, Senior Product Manager of Cyber Analysis with IBM i2 Safer Planet
The U.S. Department of Energy report highlighted the fact that the majority of electric outages in the USA come from weather-related incidents.
Indeed, I remember the follow-up actions that we took after the northeast power outage of 2003 (in Michigan), such as installing two new data center generators for critical systems, were essential steps to keeping the lights on during weather-related outages in 2004. I recapped some of these actions in 2013.
But many experts believe that the next round of grid outages could look more like the recent Shamoon malware attacks that hit Gulf State organizations from November 2016 to January 2017.
I am not prepared to predict a major power outage this year, since many cyberexperts have been wrong about this for several years now. Nevertheless, public- and private-sector organizations need to be preparing now for this likely incident.
We cover many smart grid opportunities, challenges and recommendations in the YouTube panel, so I urge you to listen and learn about what your government can be doing now to prepare.
CHRIS HEDGES---that Pulitzer prize-winning global banking 1% freemason STAR who is in national media going to US SUPREME COURT to fight against the overreach of NDAA----which is the entirety of global ENERGY/TECHNOLOGY GRID---is the very political group ----GLOBAL GREEN CORPORATION PARTY telling us all this is 99% populist social benefit.
THERE IS NO SEPARATING THE NDAA----FROM GLOBAL ENERGY/TECHNOLOGY GRID----KNOWING NDAA HANDS ALL POWER OF GLOBAL AND INTERSTATE COMMERCE TO A SINGLE PRESIDENT AS EXECUTIVE----DICTATOR
So, all those global banking 5% OUR REVOLUTION FAKE left populists are 100% behind ONE WORLD ONE TECHNOLOGY/ENERGY GRID---ergo, NDAA handing all power of commerce to ONE DICTATOR.
These are the peace, love, and understanding FAKE 'left' populists really being far-right wing extreme wealth extreme poverty LIBERTARIAN MARXISTS.
A Chris Hedges or ALCU going to US SUPREME COURT over two sections of NDAA did absolutely NOTHING to stop what they pretend to be fighting. That's why global banking 5% OUR REVOLUTION for only the global 1% is FAR-RIGHT---and not 'LEFTIST'
Hedges interviews Maryland Green U.S. Senate candidate Flowers
Posted on April 12, 2016 by GPW
Chris Hedges interviewed Maryland Green Party U.S. Senate candidate Margaret Flowers on a recent edition of teleSUR’s Days of Revolt, discussing corporate corruption, single-payer healthcare, guaranteed basic income, and other issues.
Congressional Campaigns, State Party News, State Wide Elections Chris Hedges, Margaret Flowers, Maryland
Stein tells Hedges that “power concedes nothing without a demand”
Posted on February 24, 2016 by GPW
The second part of Chris Hedges’s interview with Green Party presidential candidate Jill Stein for his teleSUR program Days of Revolt is now available online. The segment, Hedges said, focuses on “what the solution is. What the response should be, for those of us who care about reclaiming our democracy and creating an equitable, fair, and just society.”
Stein said, “You have to fire on all cylinders all the time. And that’s the advantage of a political party, is that it has a diverse set of goals and tools to use. And a movement is that even further the political aspect challenges power, as Frederick Douglass says we must do. Power concedes nothing without a demand, and running elections is a way to bring that demand right there to the halls of power. You have to do that. And we need movements, justice movements, built around the critical issues. Whether it’s immigrant rights or students getting out of debt, or Black Lives Matter, living wages, unions, workers, et cetera.”
Presidential Campaign Chris Hedges, Jill Stein
Hedges says only Stein understands need for “a global movement”
Posted on February 21, 2016 by GPW
HedgesJournalist and activist Chris Hedges says in a TruthDig essay that he supports Green Party candidate Jill Stein for president “because she understands that this is primarily about building a global movement, not about participating in an election. She, unlike Bernie Sanders, knows that this movement will never be realized within the Democratic Party or by paying deference to the power elites, the Israel lobby or the arms industry and the military establishment.”
Hedges goes on to say that Stein ”
grasps that until we name and destroy the evil of militarism and imperialism, genuine social and political reform, indeed democracy, is impossible. She does not want to work within the corporate establishment. She wants to dismantle it. And all the pundits who tell us not to waste our vote miss the point. It is time to stop playing the game.”
Presidential Campaign Chris Hedges, Jill Stein
Stein discusses “extremely corrupt” political system with teleSUR’s Hedges
Posted on February 17, 2016 by GPW
Chris Hedges interviewed Green Party presidential candidate Jill Stein for his teleSUR program Days of Revolt, with the first half of the two-part interview now available. Hedges said that in the first part, “we’re going to diagnose the political landscape, how it works, what impediments are there. And in the second part we’re going to present what we hope is a prognosis, a response, to the political reality that we face.”
Stein said of the current American political system, “It is extremely corrupt. It serves the interests of oligarchy. It puts people, planet, and peace — it subjugates those critical things to profit. We have a political system which is funded and therefore accountable to predatory banks and fossil fuel giants and war profiteers. … In the words of Chief Justice Louis Brandeis a century ago, you can either have a democracy or you can have vast concentrations of wealth. You can’t have both.”
Presidential Campaign Chris Hedges, Jill Stein
Stein says corporate/political “leviathan” is collapsing
Posted on October 6, 2015 by GPW
votegreenChris Hedges writes at Truthdig about his recent meeting with Green Party presidential candidate Jill Stein and Gayle McLaughlin, the former Green Party mayor of Richmond, California.
Stein told Hedges, “A hostile corporate force occupies us all. Corporations are polluting our air and our water. They are degrading our jobs or exporting them. … But the leviathan is so over-zealous, so heavy-handed and so overfunded that it is beginning to self-destruct. … A recent Wall Street Journal poll shows that 50% of Americans no longer identify as being either Democrat or Republican. The system is crumbling from its own internal decrepitude. Our push is to try and help that happen.”
General, Presidential Campaign Chris Hedges, Gayle McLaughlin, Jill Stein
Stein to appear at California “Calling All Rebels” event
Posted on September 14, 2015 by GPW
chrishedges_flyer_final_webOn Sunday, September 20, the Green Party of Orange County is hosting Calling All Rebels, an event featuring music and speakers, at the Delhi Center in Santa Ana, California.
The headliner is author Chris Hedges of The Nation and Truthdig. Green Party presidential candidate Jill Stein will speak immediately before Hedges. Gayle McLaughlin, a Green who served as mayor of Richmond, California, from 2007 until earlier this year, is also scheduled to speak.
General California, Chris Hedges, Gayle McLaughlin, Green Party of Orange County, Jill Stein
Leading peace advocates issue urgent call to support Jill Stein matching funds drive
Posted on June 26, 2012 by Dave Schwab
From an email sent out by Jill Stein for President:
URGENT! PLEASE FORWARD WIDELY!
FROM: David Swanson, Medea Benjamin, Leah Bolger, Bruce Gagnon, Chris Hedges, George Martin and Kevin Zeese
Dear Friends in the Peace Movement,
We can’t afford to let this opportunity slip by. By taking action over the next five days the peace community has a chance to inject a compelling and courageous peace advocate into the 2012 presidential campaign, to have a voice in the national debate over war, militarism, and military spending.
You know what is going to happen if we leave this election up to the two major party candidates. President Obama will defend his troop surges, his excessive Pentagon budgets, his preparations for war with Iran, his escalation of the drone wars, his crackdowns on whistleblowers, his indefinite detention policy, and his new role as manager of the White House assassination list. Mitt Romney will not question these policies, but will promise to pursue them with even more enthusiasm. In debates and interviews, the American people will have the Big Lie drilled into their consciousness: that our nation must accept escalating military engagement and must visit worldwide violence against all who defy the U.S. government.
Continue Reading →
Presidential Campaign Barack Obama, Bruce Gagnon, Chris Hedges, David Swanson, George Martin, Jill Stein, Kevin Zeese, Leah Bolger, Medea Benjamin, mitt romney, Presidential Campaign
Chris Hedges: Green Party among few groups working for peace
Posted on May 5, 2010 by Dave Schwab
Chris Hedges, Pulitzer Prize-winning journalist and war correspondent, makes favorable mention of the Green Party in his recent column for Truthdig about the state of the peace movement, “No One Cares”.
We sustain these wars, which have no real popular support, by borrowing trillions of dollars that can never be repaid, even as we close schools, states go into bankruptcy, social services are cut, our infrastructure crumbles, tens of millions of Americans are reduced to poverty, and real unemployment approaches 17 percent. Collective, suicidal inertia rolls us forward toward national insolvency and the collapse of empire. And we do not protest. The peace movement, despite the heroic efforts of a handful of groups such as Iraq Veterans Against the War, the Green Party and Code Pink, is dead.
Peace & Non-Violence Chris Hedges, Code Pink, Iraq Veterans Against the War
“How the corporations broke Ralph Nader and America, too”
Posted on April 6, 2010 by Dave Schwab
Pulitzer Prize-winning journalist Chris Hedges has written an article for Truthdig chronicling how Ralph Nader’s quest for a better society was overpowered by a coordinated corporate takeover of the media and political establishment. Ralph Nader was the Green Party candidate for president in 1996 and 2000, when he was scapegoated by Democratic Party pundits (see the documentary “An Unreasonable Man”) for the Republican Party’s theft of the election (see the documentary “American Blackout”).
“The press in the 1980s would say ‘why should we cover you?’ ” Nader went on. “ ‘Who is your base in Congress?’ I used to be known as someone who could trigger a congressional hearing pretty fast in the House and Senate. They started looking towards the neoliberals and neocons and the deregulation mania. We put out two reports on the benefits of regulation and they too disappeared. They did not get covered at all. This was about the same the time that [former U.S. Rep.] Tony Coelho taught the Democrats, starting in 1979 when he was head of the House Campaign Finance Committee, to start raising big-time money from corporate interests. And they did. It had a magical influence. It is the best example I have of the impact of money. The more money they raised the less interested they were in any of these popular issues.”…
Nader, locked out of the legislative process, decided to send a message to the Democrats. He went to New Hampshire and Massachusetts during the 1992 primaries and ran as “none of the above.” In 1996 he allowed the Green Party to put his name on the ballot before running hard in 2000 in an effort that spooked the Democratic Party. The Democrats, fearful of his grass-roots campaign, blamed him for the election of George W. Bush, an absurdity that found fertile ground among those who had abandoned rational inquiry for the thought-terminating clichés of television.
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General Chris Hedges, Ralph Nader
Chris Hedges interviews Cynthia McKinney: “Our country has been hijacked”
Posted on March 29, 2010 by Dave Schwab
In an article for Truthdig entitled “Is America ‘Yearning for Fascism?'”, Pulitzer Prize-winning journalist Chris Hedges quoted extensively from Cynthia McKinney, the 2008 Green Party candidate for president.
“We are ruled not by two parties but one party,” Cynthia McKinney, who ran for president on the Green Party ticket, told me. “It is the party of money and war. Our country has been hijacked. And we have to take the country away from those who have hijacked it. The only question now is whose revolution gets funded.”…
“It is time for us to stop talking about right and left,” McKinney told me. “The old political paradigm that serves the interests of the people who put us in this predicament will not be the paradigm that gets us out of this. I am a child of the South. Janet Napolitano tells me I need to be afraid of people who are labeled white supremacists but I was raised around white supremacists. I am not afraid of white supremacists. I am concerned about my own government. The Patriot Act did not come from the white supremacists, it came from the White House and Congress. Citizens United did not come from white supremacists, it came from the Supreme Court. Our problem is a problem of governance. I am willing to reach across traditional barriers that have been skillfully constructed by people who benefit from the way the system is organized.”
SEC. 1772. Statement of policy.
Congress declares it is the policy of the United States--
(1) to oppose restrictive trade practices or boycotts fostered or imposed by any foreign country against other countries friendly to the United States or against any United States person;
What are being called US CORPORATIONS----having long ago been merged and consolidated to being global multi-national corporations have moved overseas to FOREIGN ECONOMIC ZONES in most third world nations. Everywhere there is a US CORPORATION there is a designation of 'FRIENDLY NATION'. Below we see what made US national media headlines ----ANTI-BOYCOTTING OF ISRAEL when NDAA makes it impossible for any US 99% of WE THE PEOPLE to choose to keep any foreign corporation out of our local communities for any reason. Not only ISRAEL----but all foreign nations partnered with WORLD BANK/UNITED NATIONS.
“Control of proprietary technologies is a major consideration for all companies exploring public and private defense partnerships,” the business lobby, which represents 400 firms, said in the Aug. 3 letter, reviewed by Reuters and previously unreported.
So, we are told it is a national security issue for US military corporations CHOOSING to take military manufacturing overseas-----ergo, NDAA falls into place.
HITLER during pre-Weimar Germany had the same legislative dismantling of Germany's constitution ending with his having TOTAL CONTROL over Germany's commerce, industrial base acting the DICTATOR in turning all of Germany's industrial base into MILITARY OPERATIONS.
This section of NDAA tells our US 99% of WE THE PEOPLE that we have no control over our local domestic economic development ---no keeping those global foreign corporations out of US FOREIGN ECONOMIC ZONES.
SEC. 1772. Statement of policy.
Congress declares it is the policy of the United States--
(1) to oppose restrictive trade practices or boycotts fostered or imposed by any foreign country against other countries friendly to the United States or against any United States person;
(2) to encourage and, in specified cases, require United States persons engaged in the export of goods or technology or other information to refuse to take actions, including furnishing information or entering into or implementing agreements, which have the effect of furthering or supporting the restrictive trade practices or boycotts fostered or imposed by any foreign country against a country friendly to the United States or any United States person; and
(3) to foster international cooperation and the development of international rules and institutions to assure reasonable access to world supplies.
SEC. 1773. Foreign boycotts.
(a) Prohibitions and exceptions.—
(1) PROHIBITIONS.—For the purpose of implementing the policies set forth in section 1772, the President shall issue regulations prohibiting any United States person, with respect to that person’s activities in the interstate or foreign commerce of the United States, from taking or knowingly agreeing to take any of the following actions with intent to comply with, further, or support any boycott fostered or imposed by any foreign country, against a country which is friendly to the United States and which is not itself the object of any form of boycott pursuant to United States law or regulation:
(A) Refusing, or requiring any other person to refuse, to do business with or in the boycotted country, with any business concern organized under the laws of the boycotted country, with any national or resident of the boycotted country, or with any other person, pursuant to an agreement with, a requirement of, or a request from or on behalf of the boycotting country. The mere absence of a business relationship with or in the boycotted country with any business concern organized under the laws of the boycotted country, with any national or resident of the boycotted country, or with any other person, does not indicate the existence of the intent required to establish a violation of regulations issued to carry out this subparagraph.
(B) Refusing, or requiring any other person to refuse, to employ or otherwise discriminating against any United States person on the basis of race, religion, sex, or national origin of that person or of any owner, officer, director, or employee of such person.
(C) Furnishing information with respect to the race, religion, sex, or national origin of any United States person or of any owner, officer, director, or employee of such person.
(D) Furnishing information about whether any person has, has had, or proposes to have any business relationship (including a relationship by way of sale, purchase, legal or commercial representation, shipping or other transport, insurance, investment, or supply) with or in the boycotted country, with any business concern organized under the laws of the boycotted country, with any national or resident of the boycotted country, or with any other person which is known or believed to be restricted from having any business relationship with or in the boycotting country. Nothing in this subparagraph shall prohibit the furnishing of normal business information in a commercial context as defined by the Secretary.
(E) Furnishing information about whether any person is a member of, has made contributions to, or is otherwise associated with or involved in the activities of any charitable or fraternal organization which supports the boycotted country.
(F) Paying, honoring, confirming, or otherwise implementing a letter of credit which contains any condition or requirement compliance with which is prohibited by regulations issued pursuant to this paragraph, and no United States person shall, as a result of the application of this paragraph, be obligated to pay or otherwise honor or implement such letter of credit.
We never understood why ACLU targeted this ANTI-ISRAEL clause of NDAA BOYCOTT policy when the entire ANTI-BOYCOTT policy of NDAA includes all foreign nations considered 'friendly'. The only reason we see is global banking 1% creating yet another population tension.
Of course political boycotts are protected by our US Constitution but more importantly is the US Constitutional COMMERCE CLAUSE that gives our US 99% WE THE PEOPLE through elected officials---through STATES' RIGHTS to control our local, domestic economies deciding if or whether a global foreign corporation will be built.
The US ACLU refuses to fight the Clinton-era definition of US FOREIGN ECONOMIC ZONES which global banking 1% are using to ignore ALL our US Constitutional rights and sovereign economic rights.
NDAA ANTI-BOYCOTT policies not only forbid our PROTESTING a nation ---but it forbids our keeping any foreign corporation out of our communities.
Chris Hedges et al fighting in US SUPREME COURT the NDAA policies taking away our sovereign status as citizens in DUE PROCESS AND ARREST----are ignoring the GORILLA-IN-ROOM issues tied to ONE WORLD ONE ENERGY/TECHNOLOGY GRID.
PART II—ANTI-BOYCOTT ACT OF 2018
Sec. 1771. Short title.
Sec. 1772. Statement of policy.
Sec. 1773. Foreign boycotts.
Sec. 1774. Enforcement.
The New Israel Anti-Boycott Act Is Still Unconstitutional
By Brian Hauss, Staff Attorney, ACLU Speech, Privacy, and Technology Project
March 7, 2018 | 4:45 PM
Over the weekend, two senators introduced changes to the Israel Anti-Boycott Act, which would criminalize participation in certain political boycotts targeting Israel. The changes attempt to address the civil liberties concerns raised by the ACLU and other groups.
Unfortunately, the revised bill still violates the First Amendment. It does so by unconstitutionally penalizing Americans who participate in political boycotts of companies doing business in Israel and its settlements in the occupied Palestinian territories, if those boycotts were called for by international governmental organizations like the United Nations.
This is impermissible. Political boycotts are fully protected by the First Amendment. The Supreme Court made that clear when it recognized, in a landmark 1982 decision called NAACP v. Claiborne Hardware, that the Constitution protected a 1960s boycott of white-owned businesses in Mississippi. If the Israel Anti-Boycott Act were to pass and take effect, we would strongly consider challenging it in court.
The Israel Anti-Boycott Act seeks to amend a 1970s law known as the Export Administration Act. That law was passed in response to the Arab League’s boycott of Israel, which required U.S. businesses to boycott Israel as a condition of doing business with Arab League countries. To prevent foreign countries from bullying U.S. businesses into these compulsory boycotts, the EAA prohibited U.S. companies from entering into agreements with foreign governments to boycott countries friendly to the United States. Whereas the EAA was meant to protect U.S. companies from these compulsory boycotts, the Israel Anti-Boycott Act seeks to dictate the political activities Americans can and can’t engage in. It does so by imposing civil and criminal penalties on American organizations that participate in political boycotts called for by international organizations.
The revised Israel Anti-Boycott Act, amended by Sens. Ben Cardin (D-Md.) and Rob Portman (R-Ohio), does contain several significant improvements from the original draft. For example, the bill now makes clear that Americans cannot be imprisoned for their boycott participation. It also provides that speech critical of Israel cannot be used to open an investigation against an individual or as evidence that the person violated the law. These changes alleviate some of the gravest dangers posed by the bill.
But this latest version would still allow people who boycott to be slapped with criminal financial penalties. It suffers from the same fundamental flaw as the original draft by criminalizing participation in constitutionally protected boycotts. In fact, the bill’s sponsors openly admit that it was designed for this purpose. In the press release accompanying its announcement, Sen. Mike Crapo (R-Idaho) described the bill as an attempt to “combat Boycott, Divestment, and Sanctions (BDS) efforts targeting Israel.” Sen. Sherrod Brown (D-Ohio) also characterized the bill as “anti-BDS legislation.” Although the bill states that “[n]othing in this Act . . . shall be construed to diminish or infringe upon any right protected under the First Amendment,” these words rings hollow in light of the bill’s obvious purpose.
The Israel Anti-Boycott Act cannot be viewed in isolation. It is part of a sustained legislative campaign in the state and federal governments to suppress boycotts of Israel. Just a few weeks ago, a federal court in Kansas agreed with the ACLU’s First Amendment challenge to a law requiring state contractors to certify that they are not participating in boycotts of Israel. The court recognized that the Kansas state government could not constitutionally suppress our client’s boycott to silence one side in the public debate over the Israeli-Palestinian conflict. In halting enforcement of the law, the court held that our client’s boycott of Israel:
“is protected for the same reason as the boycotters’ conduct in [NAACP v. Claiborne Hardware] was protected. . . . Namely, its organizers have banded together to express collectively their dissatisfaction with the injustice and violence they perceive, as experienced by both Palestinian and Israeli citizens.”
From the campaign to divest from apartheid South Africa to the recent boycott against the National Rifle Association, boycotts have always been a key feature of American politics. If state and federal governments could outlaw boycotts they don’t like, all sorts of social movements would suffer. Whatever their views are on Israel and Palestine, members of Congress should recognize that the Israel Anti-Boycott Act threatens fundamental First Amendment values. We urge them to oppose it.
'Ikeda’s article is an unusual example in the Japanese press of criticism of a reigning government through direct historical comparison with a fascist regime of another country'.
Boy, I wish all those ANTIFA anti-fascists would get busy getting rid of all far-right wing global banking 5% freemason/Greek pols and players who are of course those HITLER/STALIN FASCISTS.
PRE-WEIMAR CLINTON/BUSH/OBAMA installed the same pre-Weimar constitution while dismantling our US Constitution these few decades. First, totally ignoring the US Constitution using EXECUTIVE ORDER----then with modifications of NDAA as our global private military complex was made our entire US ECONOMIC BASE.
So, NDAA thanks to headliner JOHN MCCAIN ----is HITLER'S dismantling of Germany's Constitution creating his DICTATORSHIP.
It's important to see this is not only happening to US------below we see JAPAN----as all TRANS PACIFIC TRADE PACT nations as well as those tied to UNITED NATIONS are being forced into what is ONE WORLD ONE GOVERNANCE -----GLOBAL TECHNOLOGY/ENERGY GRID as global private military industrial complex.
This is how we KNOW-----these NDAA/US FOREIGN ECONOMIC ZONE structures are NOT American----they are not simply tweaking our US Constitution----global banking 1% OLD WORLD KINGS AND QUEENS KNIGHTS OF MALTA TRIBE OF JUDAH are replacing our sovereign constitution with a global MILITARY JUNTA HITLER FASCIST constitution.
Well, Germany had its CLINTON/BUSH/OBAMAs working for global banking 1% OLD WORLD KINGS AND QUEENS as today
How did a highly democratic constitution produce the Hitler dictatorship?
Weimar Constitution booklet Hitler before Reichstag, 1933'
As JAPAN MOVES FORWARD to Hitler fascist constitution so too Western Europe---so too Eastern Europe as WW 3 and worldwide civil unrest is unleashed by global banking 1% OLD WORLD KINGS AND QUEENS.
Hitler's dismantling of the constitution and the current path of Japan's Abe administration: What lessons can we draw from history?
Translation and Introduction by Caroline Norma
August 15, 2016
Volume 14 | Issue 16 | Number 8
Ikeda Hiroshi wrote an important opinion piece for the Tokyo Shimbun newspaper on February 26, 2016. Ikeda is a Kyoto University emeritus professor of German literature who has devoted his career to researching fascism. His numerous books include The Weimar Constitution and Hitler. Ikeda published this Tokyo Shimbun article at a tumultuous time in Japanese society: the government had shortly before pushed through state secrets and national security laws, and overridden the constitution to allow overseas military deployment. In response, mass rallies were staged outside the Diet building. In this climate, Ikeda’s article is an unusual example in the Japanese press of criticism of a reigning government through direct historical comparison with a fascist regime of another country. At the request of the Asia-Pacific Journal: Japan Focus, Ikeda provided an original, expanded article on this theme. This article is particularly significant now that both houses of the Japanese Diet have two-thirds of their members supporting constitutional revision after the July 10 Upper House election, and Abe talks about starting debate this fall, with priority given to a emergency decree clause.
and Hitler Nazism as Fiction
Midway through last year, Japan’s Abe Shinzo government ignored the opposition and alarm of public opinion to enact a set of laws called “national security-related laws.”
The peace provisions of Japan's constitution contained in the Preamble and Article 9, stipulating no maintenance of armed forces and renunciation of war, had already been greatly diminished through the enactment of various laws. However, the laws enacted by the Abe government last year directly violate the constitution's prohibition of the “use of force as means of settling international disputes,” and allows the Self-Defense Forces to use weapons to engage in acts of war overseas in the name of the “right to collective self-defense.” This decision contradicts the policy of Abe’s own party, the LDP, as its past administrations had consistently regarded such reinterpretation of the constitution “unacceptable.” With this decision, Japan now finds itself a country capable of going to war, without amending the constitution; thus breaching it.
This assault on Japan's constitution by Abe’s LDP/Komeito coalition government is in many respects redolent of the historical precedence of Hitler's assault on the Weimar Constitution. Of course, drawing parallels between contemporary and historical events must be undertaken with extreme caution: a fearmongering cry like “a wolf is coming!” or simplistically labelling Abe another Hitler distracts public attention from what is really happening and risks misguided responses to it. There are lessons we can nonetheless draw from history, and in fact must. We need to set aside demagoguery, and instead look back on history in a clinical way to learn its lessons and use them for appropriate decisions and actions.
Hitler came into office via a legitimate election during the Weimar Era
Today, Adolf Hitler and the Nazi Party he led are remembered only in negative terms, because they are remembered for their perpetration of the world's most horrific atrocities, which include the suppression of political opponents, the Holocaust against Jews and Roma, massacre of social minorities such as the disabled, those who suffered genetic diseases and those who evaded work, whom Nazis called “not worthy of living,” as well as for their aggressive war and killing of civilians. However, as is well known by now, Hitler and the Nazi Party did not come to power through coup or conspiracy. The party was simply voted number one in an official parliamentary election, and Hitler, as head of the party, was appointed prime minister by the president. In other words, he was chosen by the German constituency. Furthermore, this election was held under the Weimar Constitution, which is viewed even today as one of the most democratic constitutions in history. The Weimar Constitution contained human rights provisions inherited by the current Japanese constitution. It included protections such as freedom of thought and creed, freedom of speech and press, freedom of assembly and association, secrecy of communication, freedom of residence, and freedom from bondage (i.e., prohibition of arrest without a warrant).
We might be perplexed by the fact that Hitler's dictatorship arose in the context of a constitution containing these kinds of provisions, but a careful examination of the transition from the Weimar Republic to Hitler’s Germany will make understandable why such a historical process was possible. This process in fact raises serious concern over the current Japanese political and social situation.
There were many political parties in the Weimar Republic, and each had its own stable constituency base. Over the fourteen years of the Republic, no single party had a parliamentary majority; not even the Socialdemocratic Party of Germany, which was the strongest party for a long period of time. This is vastly different from the situation in Japan where the LDP and its predecessors have held parliamentary majority for nearly all of the post-war period. The Nazi party started out as a regional political party, and swiftly expanded its support base. Soon it became Germany's largest party, and seized the reins of power. But it still never held a parliamentary majority. When Hitler came to power on 30 January 1933, it had only one third of total votes and the same ratio of seats. This was why Hitler was only able to secure two Nazi Party members in the 12-person cabinet other than himself. But Hitler dissolved the parliament two days after assuming power, and held a repeat-election on 5 March 1933. Nevertheless, even though Hitler’s control of the police force allowed him to significantly impede the electoral activities of opponents, the Nazi Party still achieved only 44 per cent of the vote, and 288 seats in a 647-seat parliament.
Notable is the fact this repeat-election result is similar to that recorded in the proportional representation district of Japan’s latest Lower House election in December 2014, in which the LDP/Komeito coalition received around 47 per cent of the total vote. National elections in Japan are decided on both single-seat and proportional representation districts. Proportional representation districts accurately reflect the voter party support, but the coalition’s win in many single-seat districts led to its overwhelming victory. In fact, Abe’s coalition government really has less than majority voter support (i.e. 47 per cent).
Abe securing prime ministership on 24 December 2014
In contrast to the Japanese electoral system in which the single-seat constituency system works overwhelmingly in favour of the ruling party, the German electoral system during the Weimar Era was one that eminently reflected the will of the people. It comprised nationwide proportional representation, where people voted for the party of their choice, and each party gained one seat for every 60,000 votes attained. Voter turnout for national elections was generally very high during the Weimar Era, ranging from around 75 to 90 per cent. The election on 5 March 1933 (effectively the last election held in the Weimar Republic) recorded a voter turnout of 88.7 per cent, and the 44 per cent of the votes that the Nazi Party gained, which gave them 288 representatives in the parliament, was an objective reflection of the will of the people. In other words, while the Nazi Party attracted the greatest number of votes of any party, they still did not attract the majority of cast votes. In spite of this, Hitler was nonetheless able to forge political dictatorship. We should keep this fact in mind when we reflect on the current Abe government
How did a highly democratic constitution produce the Hitler dictatorship?
Weimar Constitution booklet Hitler before Reichstag, 1933
A lesson we might learn from the election of both the Hitler and Abe governments is that even minority-elected parties can, once they are in power, implement a political program largely opposed by the population. Hitler’s Nazi Party and Abe’s LDP, for better or for worse, became leading parties in national elections, by gaining the most number of seats. But how did Hitler’s Nazi Party become the leading party? Who supported them?
The Nazi Party came to national prominence as a result of success in the national election of September 1930. In this election, the Nazi Party, which had previously held only 12 seats, suddenly gained 107 seats and became the second leading party in the parliament. This result was a product of the world economic crash that started in October 1929. Up until the crash, Germany had been slowly moving toward post-war reconstruction after the Great War, but the Great Depression brought that to a halt. Unemployment soared and societal instability spread. In this climate, the Nazi Party’s exhortation to “make Germany strong again” through Hitler’s strong, decisive and action-oriented leadership was a vote winner. In 1932, the year prior to the Nazi Party’s election, unemployment in Germany reached 44.4 per cent. In the July election, on the basis of campaign sloganeering to “eliminate unemployment,” the Nazi Party attracted 37.4 per cent of the vote, which made the party the largest in the parliament. The Party received less support in the subsequent election of November that year, dropping to 33.1 per cent of the vote, but still retained majority-party status, and so the president was forced to appoint Hitler, as the head of the Nazi Party, to the prime ministership of Germany on 30 January 1933.
So who voted for the Nazi Party? It was not unemployed voters. Their votes went to the Communist Party. It was actually employed voters who feared unemployment who voted for the Nazi Party. This fact is redolent of the strategy of the Abe government who came to power on the basis of campaigns targeting voters fearful of unemployment and uncertain about the future who responded to the party’s pre-emptive “Three Arrow” and “New Three Arrow” approaches to economic policy-making.
Hitler’s Nazi Party garnered votes through stoking fear among voters over straw-man enemies who were attacked as stealing local jobs and causing mass unemployment. On this basis, a combative and discriminatory mindset towards Jews spread among the population, and the path towards the Holocaust was laid. Jews in actual fact comprised just 0.9 per cent of the German population at the time, so attributing them responsibility for 44-per-cent unemployment rates was nonsensical. This kind of demagoguery is similarly seen in the tactics of the Abe administration in its demonising of Korea and China, which has generated a groundswell of xenophobic feeling towards foreign nationals in Japan. This has bubbled to the surface in the form of public abuse of resident Koreans in Japan. We find ourselves easily moved to hatred the harder our lives become and the more uncertain we become about our immediate future in Japan.
Rather than pointing out these intersections of comparison between the Abe and Hitler regimes, I believe there is more value in critically examining how we came to be led by these leaders. The German people in the Weimar Era, our predecessors in history, followed Hitler and allowed the Weimar Republic to give birth to Hitler’s dictatorship.
At the same time as rejecting the Weimar Constitution, Hitler was eager to amend it. However, he was unable to secure the two-thirds majority in parliament needed after the March 1933 repeat-election to succeed in this. Accordingly, he pushed through the new parliament a law, so-called “Enabling Act”. This law would deprive the parliament of lawmaking powers and grant them to the government. Not even post-hoc approval from the parliament was required. The prime minister’s assent was all that was required, and this was Hitler. Article 2 of the Enabling Act even allowed the government to enact laws that violated the constitution. With the enactment of the Enabling Act, the Weimar republic was destroyed and dictatorship under Hitler’s Nazi Party became legally the state of affairs.
Why did the parliament allow the Enabling Act to pass?
Why did the Nazi Party gain more seats in the March 1933 election to stay as the leading party, even though constitutional overthrow by the Nazi Party was anticipated as its outcome? We need to consider two historical facts in order to answer these questions.
First, one political party played a critical role in the passage of this law. Under the Weimar Constitution, any bill that would require constitutional revision or amendment would require attendance of two-thirds of the parliament and two-thirds of votes among them. The Nazi Party did not have the numbers to make up two-thirds of the parliament even with support from its nearest right-wing supporting parties. This two-thirds majority was achieved, rather, because the Catholic-aligned German Central Party, which was part of the pro-constitution Weimar Coalition, chose to follow Hitler just before the voting on the bill, out of concern for their self-preservation. It broke a parliamentary boycott and voted in support of the Enabling Act. This historical scenario is perhaps reminiscent of conditions in Japan in the current day.
Once Hitler gained complete control over the legislature, he enacted a law banning the convening of any new political parties other than the Nazi Party and banned existing parties. The German Central Party, which sold out its principles and acted to secure its political power by following Hitler, was also dismantled.
National Security Law bill forcibly passed in Upper House, 17 September 2015
Here is another historical fact that would address the question of why the Nazi Party won the March election in the first place. Even before the enactment of the Enabling Act, Hitler had begun political manoeuvering for constitutional destruction. The Abe government’s forceful enactment of the National Security Laws in September 2015, as many commentators have observed, was an important step towards dismantling the Japanese constitution that was comparable to Hitler’s passing of the Enabling Act. However, for Hitler, the Enabling Act was not the only way to destroy the Weimar Constitution. Nor will it be for the Abe government to destroy the constitution only with the National Security Laws
The Presidential Emergency Decree and the LDP’s proposed constitutional amendments
While the Weimar constitution is seen as one of the most democratic in the world, it nonetheless contained Article 48, which allowed exceptional powers to be awarded to the president, called “presidential emergency decree.” Article 48 specified, “If public security and order are seriously disturbed or endangered within the German Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces.” In order to facilitate this power, the rights enshrined in the constitution could be temporarily suspended, either in whole or in part. Hitler and the Nazi Party, once they were in power, were able to forcefully intervene in the national parliamentary election by exercising this “emergency decree” on two occasions. The first presidential emergency decree that Hitler made President Hindenberg declare banned criticism of the government or the Nazi Party and strikes, and prohibited any associations or publications that opposed these measures. As a result, opposition party election campaigns were curtailed. The burning of the Reichstag that occurred a week before election day became the second pretence for declaration of emergency powers. This time it was declared that anyone plotting or abetting the murder of the president or officials of the government was to be either executed or imprisoned for life, or at least for 15 years. On the contrived basis that the arsonist was a communist, the Communist Party was banned and arrest warrants issued for all of its candidates in the national election. “Plotting” and “abetting” were obviously suspicions very easily manufactured by police and prosecutors. These two instances of emergency decrees cleared a path for the Enabling Act, and they were nothing but political violence that dealt a fatal blow to the Weimar Constitution.
The eagerness of the Abe government to amend the Japanese constitution is a fact not irrelevant to this history of past atrocities by Hitler and the Nazi Party. The constitution amendment drafted by the LDP in 2012 contained Articles 98 and 99 that permit the declaration of a state of emergency and related measures. Article 98 permits the prime minister “to declare a state of emergency, in accordance with law and with the approval of the cabinet, in cases where the country is under attack by external elements, internal order has broken down, large-scale natural disasters have occurred such as earthquakes, or other situations determined by law.” Once a state of emergency has been declared, Article 99 further allows the cabinet to, “in accordance with law, make directives that have the force of law, and the prime minister to make budgetary allocations to support them. Local government bodies can also be directed to carry them out.”
Hitler solicited public support at a time of mass unemployment and failure to achieve post-war reconstruction in Germany. He appealed to an idea of Germany as a proudly historic and cultured nation that had been punished for losing the Great War through the treaty of Versailles. Prime Minister Abe succeeds and reinforces the LDP’s long-standing claim that the Japanese constitution was forced upon the nation by the victors of war, and he makes it clear that he wants to see constitutional revision while in office. He broadcasts the view that emergency decrees are a natural part of any country’s constitution, but the Constitution of Japan shows to the world Japan’s determination to realize “peace without resorting to war” by stipulating unnatural (unusual) clauses. But the fact that Japan’s constitution does not have an emergency decree clause, which existed even in the Weimar Constitution and paved the way to Hitler’s dictatorship, is a reflection of the constitution’s fundamental principle of no maintenance of armed forces and its renunciation of war.
Who comprises the polity and society? — The meaning of Article 12 of Japan’s constitution
As Hitler seized the reins of political power and full lawmaking powers, he in fact resolved the horrendous problem of mass unemployment in just a few years. Hitler enjoyed only minority support from the German population when he took office, but his popularity increased markedly year by year. Even after the innumerable atrocities by the Nazis were revealed after Germany’s defeat, the majority of people in Germany who lived under Hitler’s regime reflected on that time as a golden age of stability and fulfilment. This was in spite of the fact that the period was one in which Germany’s minorities had both their freedoms and their lives stripped away.
German society in the immediate aftermath of war generally believed that the atrocities and the wartime invasions had been perpetrated by Hitler and the Nazi Party, and that the German people were rather victims of this fact. Either the population was kept in the dark, or it was deceived about these realities. This viewpoint is similar to the general one held by Japanese people still today that the Asia-Pacific War was perpetrated by a tripartite group of the military, business conglomerates, and nationalists.
There is some reason for German people to have continued to see the Nazi era as a golden age after the war. Hitler’s administration not only solved the employment problem, but it also created a society that was meaningful for many citizens. The Nazi Party created volunteer programs which were largely responsible for the decline in unemployment. The Nazi Party, inheriting the policies of the Weimar government, put the unemployed to work under the banner of self-directed labour service, and youth were encouraged to join. On this basis, many citizens came to feel that it was their duty to devote their voluntary efforts and their spirit of social contribution to Germany’s emergence from economic depression, and the German society as a whole developed a sense of pride in doing so. The volunteer labour service scheme did not itself reduce unemployment, but rather allowed the construction and primary industries to employ labour at exceptionally low wages (tips only), and to profit accordingly. On the basis of this profit acquired over time, these industries were eventually able to employ full-time workers. This process is essentially similar to the current situation in Japan where nominal unemployment rates have been declining as the companies retain earnings and increase temporary workers in the midst of widening poverty and inequality.
With a spirit of volunteerism permeating German society, the Hitler government in June 1935 legislated the “imperial labour service” (Reichsarbeitsdienst) system to replace voluntary labour service, making citizens between ages 18 and 25 become liable for six months of volunteer labour. The most notable among such construction projects in which workers received an allowance less than one fifteenth of the legal wage was the Autobahn.
Parallel to this, during the winter period when unemployed and impoverished families had the most difficulty surviving, the Hitler government established a “winter rescue scheme” of volunteerism under the sloganeering banner of “all citizens” supporting those in need. Germans independently mobilised to support the scheme through raising funds and donating goods. In addition, there were many other volunteer opportunities established in all aspects of German society for all citizens. This was how German citizens became the authors of major national infrastructure, and actors in their own society. Germany under the Nazis had a mirror outlook to what Abe now wants for Japan: a “one-hundred million all-active society [一億総活躍社会].” The establishment of the “imperial labour service law,” which stipulated labour service duties in replacement of voluntary labour service, came three months after the reinstatement of the draft and so the abandoning of the constraint of Treaty of Versailles.
I have described Hitler’s path because it should not be repeated in contemporary Japan. I do not mean to suggest that 1930s’ Germany is being replayed in Japan today, but, rather, to emphasise the fact that we are the ones responsible for not allowing it to be replayed. The German citizens of the Weimar Republic were unable to give effect to the Weimar Constitution in spite of its acknowledged democratic provisions.
These citizens entrusted the politician Hitler with sole responsibility for getting the country out of crisis. When we Japanese citizens try to choose a different path from this, we must first look to our own constitution. Contemporary advocates of Japan’s constitution are wont to argue that the constitution fetters policymakers and people in power, and makes them, rather than the people, liable for their actions. However, Article 12 of Japan’s constitution says that the “freedoms and rights guaranteed to the people by this Constitution shall be maintained by the constant endeavour of the people.” The duty and responsibility to protect and realize our own freedoms and rights do not lie in policymakers and politicians, but in ourselves. Parliamentary democracy is not about entrusting all powers to elected members.
Hitler demanded from the German citizenry full powers through the Enabling Act, and forced it upon the citizenry. The LDP too, in its constitution revision bill, is attempting to mandate full transition of powers to the government on the pretext of “emergency situations.” We must not merely chant the maintenance of Japan’s post-war constitution. Rather, in order to overturn the current situation that is in breach of the constitution and enact the spirit of the constitution in real terms, we must become ourselves actors in our own political system and society. This alone, moreover, is not enough. The German people became actors in this way through volunteer activity, even while they were being used, manipulated and controlled. Their exuberance stopped them from seeing the minorities who were being concurrently bullied and killed. We, in contrast, can turn our minds to these social minority groups and see the things that the current government cannot see in its overwhelming majority power. We must see ourselves as having that kind of social agency. We may be small in numbers, but we have a particular duty to resist the arrogance and violence of the majority. Democratic society can realise its democratic nature only through the efforts of minority groups. The history of the progression of Hitler and the Nazis to become Germany’s ruling party teaches us this lesson now more than ever.
Japanese original text is available
Ikeda Hiroshi is a Kyoto University emeritus professor of German literature who has devoted his career to researching fascism. His numerous books include The Weimar Constitution and Hitler.
Dr Caroline Norma lectures at RMIT University and authored The Japanese comfort women and sexual slavery during the China and Pacific Wars (Bloomsbury, 2016).
Created by DataMomentum
The NDAA is THE ENABLING ACT ------the pols and players installing NDAA were global banking 5% freemason/Greek black, white, and brown players CLINTON/BUSH/OBAMA.
THE ENABLING ACT made Germany's legislature, courts, and executive offices other than PRESIDENT HITLER irrelevant. This is what made THE MADMAN HITLER so powerful and he did not do this himself. TRUMP/PENCE today are simply MOVING FORWARD the stage set by OBAMA ERA----to become that MADMAN HITLER/STALIN.
So, does t help to take to US SUPREME COURT one policy inside this super-duper NDAA? Of course not. These policy stances are woven throughout this massive global banking 1% OLD WORLD KINGS AND QUEENS' structure. NDAA as US FOREIGN ECONOMIC ZONE policies as a whole are ILLEGAL, UNCONSTITUTIONAL an attack on our US sovereignty---the rights of all US 99% WE THE PEOPLE and our new to US immigrants as they will be treated here in US as they are in FOREIGN ECONOMIC ZONES overseas.
DOES IT MATTER IF WE VOTE IN A US ELECTION----NO
DOES IT MATTER IF NEW IMMIGRANTS NOT US CITIZENS VOTE IN US ELECTIONS----NO
WILL ALL THIS ENABLING ACT DISAPPEAR AFTER A FEW DECADES OF HITLER/STALIN BRUTAL FASCISM------NO
This was written in 2006 just as ROBBER BARON massive frauds were sacking and looting our American wealth.
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September 1, 2006
Whenever U.S. officials wish to demonize someone, they inevitably compare him to Adolf Hitler. The message immediately resonates with people because everyone knows that Hitler was a brutal dictator.
But how many people know how Hitler actually became a dictator? My bet is, very few. I’d also bet that more than a few people would be surprised at how he pulled it off, especially given that after World War I Germany had become a democratic republic.
The story of how Hitler became a dictator is set forth in The Rise and Fall of the Third Reich, by William Shirer, on which this article is based.
In the presidential election held on March 13, 1932, there were four candidates: the incumbent, Field Marshall Paul von Hindenburg, Hitler, and two minor candidates, Ernst Thaelmann and Theodore Duesterberg. The results were:
Hindenburg 49.6 percent Hitler 30.1 percent Thaelmann 13.2 percent Duesterberg 6.8 percent
At the risk of belaboring the obvious, almost 70 percent of the German people voted against Hitler, causing his supporter Joseph Goebbels, who would later become Hitler’s minister of propaganda, to lament in his journal, “We’re beaten; terrible outlook. Party circles badly depressed and dejected.”
Since Hindenberg had not received a majority of the vote, however, a runoff election had to be held among the top three vote-getters. On April 19, 1932, the runoff results were:
Hindenburg 53.0 percent Hitler 36.8 percent Thaelmann 10.2 percent
Thus, even though Hitler’s vote total had risen, he still had been decisively rejected by the German people.
On June 1, 1932, Hindenberg appointed Franz von Papen as chancellor of Germany, whom Shirer described as an “unexpected and ludicrous figure.” Papen immediately dissolved the Reichstag (the national congress) and called for new elections, the third legislative election in five months.
Hitler and his fellow members of the National Socialist (Nazi) Party, who were determined to bring down the republic and establish dictatorial rule in Germany, did everything they could to create chaos in the streets, including initiating political violence and murder. The situation got so bad that martial law was proclaimed in Berlin.
Even though Hitler had badly lost the presidential election, he was drawing ever-larger crowds during the congressional election. As Shirer points out,
In one day, July 27, he spoke to 60,000 persons in Brandenburg, to nearly as many in Potsdam, and that evening to 120,000 massed in the giant Grunewald Stadium in Berlin while outside an additional 100,000 heard his voice by loudspeaker.
Hitler’s rise to power
The July 31, 1932, election produced a major victory for Hitler’s National Socialist Party. The party won 230 seats in the Reichstag, making it Germany’s largest political party, but it still fell short of a majority in the 608-member body.
On the basis of that victory, Hitler demanded that President Hindenburg appoint him chancellor and place him in complete control of the state. Otto von Meissner, who worked for Hindenburg, later testified at Nuremberg,
Hindenburg replied that because of the tense situation he could not in good conscience risk transferring the power of government to a new party such as the National Socialists, which did not command a majority and which was intolerant, noisy and undisciplined.
Political deadlocks in the Reichstag soon brought a new election, this one in November 6, 1932. In that election, the Nazis lost two million votes and 34 seats. Thus, even though the National Socialist Party was still the largest political party, it had clearly lost ground among the voters.
Attempting to remedy the chaos and the deadlocks, Hindenburg fired Papen and appointed an army general named Kurt von Schleicher as the new German chancellor. Unable to secure a majority coalition in the Reichstag, however, Schleicher finally tendered his resignation to Hindenburg, 57 days after he had been appointed.
On January 30, 1933, President Hindenburg appointed Adolf Hitler chancellor of Germany. Although the National Socialists never captured more than 37 percent of the national vote, and even though they still held a minority of cabinet posts and fewer than 50 percent of the seats in the Reichstag, Hitler and the Nazis set out to consolidate their power. With Hitler as chancellor, that proved to be a fairly easy task.
The Reichstag fire
On February 27, Hitler was enjoying supper at the Goebbels home when the telephone rang with an emergency message: “The Reichstag is on fire!” Hitler and Goebbels rushed to the fire, where they encountered Hermann Goering, who would later become Hitler’s air minister. Goering was shouting at the top of his lungs,
This is the beginning of the Communist revolution!
We must not wait a minute. We will show no mercy. Every Communist official must be shot, where he is found. Every Communist deputy must this very day be strung up.
The day after the fire, the Prussian government announced that it had found communist publications stating,
Government buildings, museums, mansions and essential plants were to be burned down… . Women and children were to be sent in front of terrorist groups…. The burning of the Reichstag was to be the signal for a bloody insurrection and civil war…. It has been ascertained that today was to have seen throughout Germany terrorist acts against individual persons, against private property, and against the life and limb of the peaceful population, and also the beginning of general civil war.
KEEP IN MIND ALL THIS WAS GLOBAL BANKING 1% OLD WORLD KINGS AND QUEENS KNIGHTS OF MALTA TRIBE OF JUDAH ----THE 5% FREEMASON/GREEK CIVIL UNREST CIVIL WAR PLAYERS AND WE CAN ASSUME GERMANY'S ELECTIONS WERE RIGGED AS OUR US ELECTIONS TODAY.
So how was Goering so certain that the fire had been set by communist terrorists? Arrested on the spot was a Dutch communist named Marinus van der Lubbe. Most historians now believe that van der Lubbe was actually duped by the Nazis into setting the fire and probably was even assisted by them, without his realizing it.
Why would Hitler and his associates turn a blind eye to an impending terrorist attack on their national congressional building or actually assist with such a horrific deed? Because they knew what government officials have known throughout history — that during extreme national emergencies, people are most scared and thus much more willing to surrender their liberties in return for “security.” And that’s exactly what happened during the Reichstag terrorist crisis.
DOESN'T THAT SOUND JUST LIKE 9/11 TERRORIST ATTACKS UNLEASHING BUSH ERA HOMELAND SECURITY? HOW FASCIST WAS THAT!
Suspending civil liberties
The day after the fire, Hitler persuaded President Hindenburg to issue a decree entitled, “For the Protection of the People and the State.” Justified as a “defensive measure against Communist acts of violence endangering the state,” the decree suspended the constitutional guarantees pertaining to civil liberties:
Restrictions on personal liberty, on the right of free expression of opinion, including freedom of the press; on the rights of assembly and association; and violations of the privacy of postal, telegraphic and telephonic communications; and warrants for house searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.
Two weeks after the Reichstag fire, Hitler requested the Reichstag to temporarily delegate its powers to him so that he could adequately deal with the crisis. Denouncing opponents to his request, Hitler shouted, “Germany will be free, but not through you!” When the vote was taken, the result was 441 for and 84 against, giving Hitler the two-thirds majority he needed to suspend the German constitution. On March 23, 1933, what has gone down in German history as the “Enabling Act” made Hitler dictator of Germany, freed of all legislative and constitutional constraints.
The judiciary under Hitler
One of the most dramatic consequences was in the judicial arena. Shirer points out,
Under the Weimar Constitution judges were independent, subject only to the law, protected from arbitrary removal and bound at least in theory by Article 109 to safeguard equality before the law.
In fact, in the Reichstag terrorist case, while the court convicted van der Lubbe of the crime (who was executed), three other defendants, all communists, were acquitted, which infuriated Hitler and Goering. Within a month, the Nazis had transferred jurisdiction over treason cases from the Supreme Court to a new People’s Court, which, as Shirer points out,
soon became the most dreaded tribunal in the land. It consisted of two professional judges and five others chosen from among party officials, the S.S. and the armed forces, thus giving the latter a majority vote. There was no appeal from its decisions or sentences and usually its sessions were held in camera. Occasionally, however, for propaganda purposes when relatively light sentences were to be given, the foreign correspondents were invited to attend.
One of the Reichstag terrorist defendants, who had angered Goering during the trial with a severe cross-examination of Goering, did not benefit from his acquittal. Shirer explains:
The German communist leader was immediately taken into “protective custody,” where he remained until his death during the second war.
In addition to the People’s Court, which handled treason cases, the Nazis also set up the Special Court, which handled cases of political crimes or “insidious attacks against the government.” These courts
consisted of three judges, who invariably had to be trusted party members, without a jury. A Nazi prosecutor had the choice of bringing action in such cases before either an ordinary court or the Special Court, and invariably he chose the latter, for obvious reasons. Defense lawyers before this court, as before the Volksgerichtshof, had to be approved by Nazi officials. Sometimes even if they were approved they fared badly. Thus the lawyers who attempted to represent the widow of Dr. Klausener, the Catholic Action leader murdered in the Blood Purge, in her suit for damages against the State were whisked off to Sachsenhausen concentration camp, where they were kept until they formally withdrew the action.
Even lenient treatment by the Special Court was no guarantee for the defendant, however, as Pastor Martin Niemoeller discovered when he was acquitted of major political charges and sentenced to time served for minor charges. Leaving the courtroom, Niemoeller was taken into custody by the Gestapo and taken to a concentration camp.
The Nazis also implemented a legal concept called Schutzhaft or “protective custody” which enabled them to arrest and incarcerate people without charging them with a crime. As Shirer put it,
Protective custody did not protect a man from possible harm, as it did in more civilized countries. It punished him by putting him behind barbed wire.
On August 2, 1934, Hindenburg died, and the title of president was abolished. Hitler’s title became Fhrer and Reich Chancellor. Not surprisingly, he used the initial four-year “temporary” grant of emergency powers that had been given to him by the Enabling Act to consolidate his omnipotent control over the entire country.
Accepting the new order
Oddly enough, even though his dictatorship very quickly became complete, Hitler returned to the Reichstag every four years to renew the “temporary” delegation of emergency powers that it had given him to deal with the Reichstag-arson crisis. Needless to say, the Reichstag rubber-stamped each of his requests.
For their part, the German people quickly accepted the new order of things. Keep in mind that the average non-Jewish German was pretty much unaffected by the new laws and decrees. As long as a German citizen kept his head down, worked hard, took care of his family, sent his children to the public schools and the Hitler Youth organization, and, most important, didn’t involve himself in political dissent against the government, a visit by the Gestapo was very unlikely.