By Bill Durland, J.D., Ph.D.
Attorney at Law and Professor of Philosophy

"Restraint in public expression is the wiser course. To respond with
patience does not mean appeasement." Dwight D. Eisenhower, Dec. 3, 1956 on
the powers of the President.

I never thought the day would come when many of the international,
constitutional and criminal law principles I learned at Georgetown
University Law Center in the 1950s would no longer exist. But that's where
we are today, presenting us with a terrorizing prognosis: Will we
irrevocably lose the 200 plus years evolvement of a peoples' state for the
quick fix, short term, instant gratification (for the powers that be) of a
police state? Is the new judicial principle "suspicion is conviction"
overriding all these judicial principles I knew? Does it affirm a policy of
"break the law but don't get caught"?
Thirty-eight years learning on the job by the Israelis in their occupation
of Palestine and parts of Syria and Lebanon, have created a laboratory for
such a process. The U.S. had only to apply it as we have done in
Afghanistan, Pakistan, Iraq, Iran and the internal U.S.
How did this new American state come about? What does it look like and
how can we stop it? These are the immediate questions before us as justice
and peace - the principles of the PPJPC - and nonviolence its traditional
process, are imminently threatened from within as well as without.
The focal point recently on the move from people to police, democracy to
dictatorship, is the use and abuse of Presidential power by spying
unconstitutionally on American citizens in the name of our need for personal
protection. That paternalistic idea that somehow the President protects us
or that we owe all our freedoms to our brave military forces, is patently
At least that wasn't the way James Madison looked at it. Check him out
again in the historical record of the Constitutional Convention of 1787 on
his and others' thoughts of the military-police state, the status quo in
Europe in those years. Madison, however, came up with a structure for a new
radical republic intelligently designed to thwart takeovers by the new U.S.
government with what he called "factions". The chief suspect then was the
executive, who was called king or emperor and who would, in America, be
replaced by a much-diminished Presidency. His idea was that democracy needed
people of virtue for it to work in a republic. But knowing such people are
always in short supply, two radical components of political philosophy
described, by Montesquieu, Locke and others and perfected in practice by
Madison's efforts, would be our real protection. Madison feared even a
standing army, and these doctrines of the separation of powers into (1)
three horizontal parts - executive, legislative and judicial, (2) and their
diversification even more drastically imposed vertically by creating several
levels of government - national, state and local, called federalism, would
win the day. No one could ever again easily get all the power, as kings and
clerics had done to everyone's detriment in medieval western history.
So it's good to see what we got. Most of us don't remember, or even know
about the basis of that which Bush is presently dismantling. So how does
that relate to executive spying, torturing, aggressive war making, and such?
We are faced with the intentional destruction of an entire democratic
system, described above, by the very power most feared in the beginning -
the executive power - which at present is held by George W. Bush. Besides
creating a fourth branch of government - the S.S.S. (a Secret Spying
Service) - he seeks all power described above for himself or his allies, the
corporations, extreme religionists, and militarists. He is operating on two
fronts, one to dismantle all federal power and rights in the social sector
while enhancing all police, military, and foreign policy power to himself or
his factions named above.
Let's ponder what "history is prologue" means for a moment - words
carved in stone on the National Archives building. We are aware of the gross
national illegalities of spying on Americans without a warrant, reminiscent
of the Alien and Sedition laws early in our history, and now the bombing of
our allies, killing innocent persons in the hope of catching in the net of
such violence one Al Qaeda member. History is prologue means that it all
happened before and we need to recheck the past; it may be a good picture of
the future. Take, for example, the German Enabling Act of 1933 proposed by
Adolph Hitler. The legislative branch of the still free and democratic
German government met to consider his request for a "law for removing the
distress of the people and Reich". Much like Bush's request of our own
congress in 2001 and 2002 for increased executive powers to combat terrorism
and to allow for preemptive war making without further legislative or
judicial control. Like Hitler's Enabling Act, the congressional resolution
was short, only a few paragraphs, but in both cases powers were transferred
from the legislative and judicial branches to the executive branch. The
government, Hitler promised, "would make use of these powers only insofar as
they are essential for carrying out vitally necessary measures." Neither the
existence of the legislature, nor of the federal state was threatened, he
claimed, and that the rights of all church denominations would remain equal.
"The number of cases in which an internal necessity exists for having
recourse to such a law, is, in itself, a limited one", Hitler said. Doesn't
that sound familiar? Is it not the same spin used to pass the Patriot Act
and then later attempt to make it permanent, as well as the terrorism and
war making resolutions Bush wanted and got in 2001 and 2002?
One leader of the Social Democratic Party spoke out when dozens of
people were detained under the new emergency law. The Social Democrats were
accused of being "weak". Cheney has said that speaking out against the
government's war in Iraq is a "sign of weakness.". Nietzsche's "Superman" is
Cheney's sickly model. The Catholic Center Party cast their votes in favor
of Hitler providing the majority - 441 to 84. The 84 were all Social
Democrats. William Shirer, in his seminal The Rise and Fall of the Third
Reich summarizes the above and concludes by stating: "It was the Enabling
Act alone which formed the basis for Hitler's dictatorship". In spite of the
philosophical warnings of St. Thomas Aquinas and John Locke, who proclaimed
that an unjust law is no law at all and need not be obeyed, the Germans
obeyed and Americans do so now as well. But is all of this a gross
overstatement? I don't think so. Our leaders have learned to be a little bit
more subtle and sophisticated. A friend of mine said recently, speaking with
absolute certainty, "Bush is no Hitler". No, not in appearance, but that's
irrelevant. The devil is in the details.
The U.S. Congress directed Bush, at his request, "to use all necessary
and appropriate force" which his Attorney General claims "would include
listening in on suspected terrorists" without legal warrants. The statement
assumes that there is always a suspected terrorist included in every
conversation spied upon, which of course is false, and certainly not proved.
Just recently a former Attorney General, a Republican, stated that beyond
the illegalities the program has not worked but only harmed innocent
American citizens. But Bush claims he has a "right to act outside the
framework". Hitler claimed he had the right "to deviate from the
Constitution". Both claim these immense powers would be used only to protect
the people and that they were directed against "extremists". Restrictions on
personal liberty, the rights of free expression and assembly, telephonic
communications and without warrants "are also permissible", Hitler said, and
stressed the need to limit "judicial thinking". Bush hopes that limited
judicial thinking will allow "random searches" of millions of people looked
for on the Internet. Google has refused. Yahoo caved.
This brings us to the recent interplay with judicial thinking of the
President and his chosen judicial representatives. The astonishing judicial
acts of newly appointed Chief Justice Roberts while an appellate judge are a
revelation. In Hamdan v, Rumsfeld Judge Roberts overruled a U.S. District
Court decision "without reservation". In his ruling, he stated that: 1)
Civilian courts may not interfere with Bush's executive power to detain
citizens and others without trial or legal representation or other
constitutional protections. 2) Bush's powers, recently obtained, he said, do
not violate the principle of the separation of powers. 3) International law
may not be used as a defense in these matters. 4) The great Writ of Habeas
Corpus is limited as well. He is now our Chief Justice, but he wrote this
startling opinion the day after an interview with "the Leader", Bush, who
told him that he would be chosen to be the next Chief Justice of the U.S.
Supreme Court. Nominee Alito, who also supports executive war powers
extremism, will be next to join Roberts, thereby ending judicial
independence, as we have known it.
"Bush is no Hitler?" Maybe not, but the U.S.A. is becoming Hitlerian. What
do we do about it?
There is always the alternative when the times get tough to join the
powers, to look for acceptance and respectability and popularity, to be part
of the mainstream. But until our mainstream changes its comfortable
adaptation to Bush¹s ways, we must stand together, even if only a remnant,
against the ways of nations, which seek abuse of power. The choice is ours -
people or police state? Hesitate, equivocate or adjust, and our valued
constitutional structures protecting us from unvirtuous leaders will be lost
indefinitely. If history is prologue, we are only at the very beginning of a
NAZI repetition, which has been going on elsewhere for some period of time.
It's not too late, but as with another Bush fallacy, a failure to confront
global warming, the day will come when the chance to regain our freedoms
will have become unreachable and the end of American democracy will be our

About the Author: Bill Durland is a civil rights attorney, Professor of Philosophy, 
a formerNSA intelligence analyst, and a member of the Pikes Peace Justice 
and Peace Commission and ACLU.