Military Commissions: Our Own Volksgerichtshof

Today's post was going to be about how the judiciary in this country was being destroyed by the other two branches of our government. On the one hand we read about how Attorney General Alberto Gonzales is threatening the courts with a complete restructuring unless they fall in line with the demands of the executive branch. On the other, we have former House Speaker Newt Gingrich explaining how the courts need to be overridden if they don't interpret the laws in a way that more closely reflects the "will of the people." Of course, the "will of the people" is just an excuse to allow for the overriding of Supreme Court decisions. I thought to myself that these were surely signs that our new one-party government was pushing to decimate any and all judicial review of their actions.

 

You see, in the 1930s, Adolf Hitler ran up against the same sort of problems while building his own fascist government in Germany. In order to accomplish his goal of a total police state, characterized by arbitrary arrest and imprisonment of political and ideological opponents in concentration camps, the existing judicial system had to be done away with. To do this, he had to create another judicial system to deal with those placed under "protective custody." Let's turn to this web page for a proper explanation:

In Nazi terminology, protective custody meant the arrest--without judicial review--of real and potential opponents of the regime. "Protective custody" prisoners were not confined within the normal prison system but in concentration camps under the exclusive authority of the SS (Schutzstaffel; the elite guard of the Nazi state).

 

The Third Reich has been called a dual state, since the normal judicial system coexisted with the arbitrary power of Hitler and the police. Yet, like most areas of public life after the Nazi rise to power in 1933, the German system of justice underwent "coordination" (alignment with Nazi goals). All professional associations involved with the administration of justice were merged into the National Socialist League of German Jurists....

The article continues:

Hitler determined to increase the political reliability of the courts. In 1933 he established special courts throughout Germany to try politically sensitive cases. Dissatisfied with the 'not guilty' verdicts rendered by the Supreme Court (Reichsgericht) in the Reichstag Fire Trial, Hitler ordered the creation of the People's Court (Volksgerichtshof) in Berlin in 1934 to try treason and other important "political cases." Under Roland Freisler, the People's Court became part of the Nazi system of terror, condemning tens of thousands of people as "Volk Vermin" and thousands more to death for "Volk Treason." The trial and sentencing of those accused of complicity in the July Plot, the attempt to kill Hitler in July 1944, was especially unjust. 

All the indicators seem to be pointing to the creation of a "People's Court" here in the United States. What was really scary was to discover that I wasn't the only one to pick up on this, either. Jacob G. Hornberger had also written about this very topic in his September 27th editorial posted to his website, The Future of Freedom Foundation, titled Decimating the Constitution with Military Tribunals. In it, he explains:

As I pointed out in my article “How Hitler Became a Dictator,” after the terrorist strike on the Reichstag, which enabled Hitler to secure the Enabling Act that temporarily suspended civil liberties in Germany, a German judge, while convicting one of the defendants, acquitted others, much to Hitler’s chagrin and disapproval. After all, they were obviously “terrorists.” How dare that German judge find them not guilty?

 

So, Hitler decided to implement a new “independent” judicial system within Germany to try terrorists and traitors. Known as the “People’s Court,” it became nothing more than a judicial lapdog to carry out prosecutions, convictions, and punishments in accordance with Hitler’s will. In fact, it was the infamous People’s Court that convicted German college students Hans and Sophie Scholl and their friends in the White Rose organization and quickly tried and executed them (3 days after their arrest) for treason for distributing antiwar and anti-government pamphlets.

That's when it occurred to me that Gonzales and Gingrich weren't actually trying to set up their version of a People's Court, they were telling the existing Court's to not interfere with their newly created courts founded under the Military Commissions Act of 2006 (pdf). They were like a couple of wolves guarding a fresh kill from outsiders. With the passage of The MCA, a whole new set of "courts" were created to try "unlawful enemy combatants" that would for the most part be independent from any judicial review. These new courts--actually called commissions--would try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission. Furthermore, these newly-created commissions limit the accused rights. Reading from the MCA, we learn that (citing the more relevant parts):

(d) INAPPLICABILITY OF CERTAIN PROVISIONS.
(1) The following provisions of this title shall not apply to trial by military commission under this chapter:
(A) Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts-martial relating to speedy trial.
(B) Sections 831(a), (b), and (d) (articles 31(a), (b), and (d) of the Uniform Code of Military Justice), relating to compulsory self-incrimination.
(C) Section 832 (article 32 of the Uniform Code of Military Justice), relating to pretrial investigation.

...

(g) GENEVA CONVENTIONS NOT ESTABLISHING SOURCE OF RIGHTS.
No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.

There's been a number of articles written on what you can expect if you find yourself staring down the barrel of a military commission, so I won't bother rehashing those finer points here. The point I want to make is that we're, as a nation, well on our way to embracing fascism in the United States unless we stop it now. I have to wonder if one would find articles in Germany's newspapers (circa 1930's) written by concerned Germans warning their fellow countrymen they were headed towards a dictatorship unless they stood up for their rights and the rule of law. If you take the time to read the lessons History has to offer on this subject and compare those lessons to what we see going on right now in this country, it really is chilling how far down this road we have traveled.

 

"The only thing necessary for the triumph of evil is for good men to do nothing."
~Edmund Burke