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The Future is Not Set: Part 3

This is part three of four.  You can read part one here and two here.

Part 3: The “War on Terror”

The events of 9/11 2001 are the catalyst that dramatically reshaped the government’s handling of global terrorism.  Entire books are written about the laws that have been passed and civil liberties that have been restricted.  I couldn’t possibly do it justice (pun intended).  So we’ll take a narrow slice through two parts: Guantanamo and the National Defense Authorization Acts.  We’ll begin our discussion by looking at that great stain on our country in the new millinium, the Guantanamo prison camp.

Guantanamo & Habeas Corpus for non-US citizens

The Guantanamo detainee camp was setup specifically because of its questionable legal geographic position.  Guantanamo detention camp exists where it is precisely because President Bush did not want non-US citizen detainees to be granted habeas corpus relief in our courts and he did not want to ask congress to suspend habeas corpus.

By treaty Cuba maintains sovereignty over the base and as such the executive branch believed detainees held there were beyond the reach of the protections of the US constitution and court system.  The reasoning that the location was beyond the reach of the US constitution was based on the 1950 Johnson v. Eisentrager case.  Here the court decided German prisoners held in a U.S.-administered German prison were not entitled to habeas relief because:

he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.”

Initially the Guantanamo base was deemed similarly by the lower courts, but ultimately in 2004 in Rasul v. Bush the Supreme Court ruled detainees were entitled to habeas corpus relief.  The court found:

Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.”

The court then went on to assert a common-law right to grant the habeas corpus whit anywhere that is “consistent with the historical reach” of the whit:

Later cases confirmed that the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of “the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.””

Key point #9: The Supreme Court has, for now, asserted the power to hear petitions from those detained by our military, and for now the executive hasn’t completely ignored them, although it has fought the judicary every step of the way.

It is important to point out, that just having legal access to the courts does not make Guantanamo a good thing, nor does it mean the executive suddenly co-operative with the judiciary.  The government fights the courts every step of the way.  Detainees are tortured in way our constitution does not permit.  And the military courts are basically a sham with secret evidence.  Don’t forget, fellow US citizens, these are acts our government carries out in our name.  We are responsible for letting our government do this.  Guantanamo is a stain on our country.

To summarize, initially the government felt it not only had the authority to deem individuals enemy combatants and hold them indefinitely without trial, but that it also could keep non-US citizens beyond the reach of civilian courts.  Unlike the time of Lincoln, however, congress didn’t follow through with an explicit suspension of the whit of habeas corpus, and the Supreme Court, for now, has checked this power of the executive in this instance.

How the US government believes it can treat you today

So let’s explore how the US government will treat you in the present age.  Notably the answers to these questions come down to where (primarily) and who (secondarily) you are.

Non US citizens outside of US soil: This is the simplest case.  The executive branch of the US government can declare you an unlawful combatant, outside of the reach of the Geneva conventions, and believes, because of the right to self-defense, it can drop a bomb on you, imprison you indefinitely, torture and execute you.  It will even drop a bomb on you if you are a male of fighting age carrying a weapon, regardless of whether it has any evidence you intend to take up arms against the United States; just wrong place at the wrong time.  This targeted killing need not even be all that precise, with the US government believing that “collateral damage” (read: truly random innocent people) is justified.  What stops the US government from killing you?  Primarily it is where you are physically standing.  Sitting in the Ecuadorian Embassy in London?  You’re pretty safe.  Walking around the villages of Pakistan?  You’re fair game.  It is basically whatever the US government feels they can get away with.  Citizens of the world, be careful what you do, where you are, and what you say and write online.

US citizens outside of US soil: Let’s look at two illustrative cases: John Walker Lindh and Anwar Al-Awlaki.  The “American Taliban” John Walker Lindh was found in a Taliban prison in Afghanistan by Afgan militia forces working with the US.  It was never really clear that Mr. Lindh was fighting against the US, and not just fighting for the Taliban against the Northern Alliance.  The US military and CIA tortured and interrogated him without advising him of his rights as a US citizen.  Ultimately they decided to bring him back to the US for trial by civilian courts.   At the time, many politicians, including Hillary Clinton called him a traitor – tantamount to calling for the death penalty.  Ultimately, a deal was struck where Mr. Lindh avoided the death penalty, but also agreed to drop any charges of abuse by the US government.

Al-Awlaki, a US citizen, was producing online propaganda for Al Qaeda to help find recruits.  A targeted drone strike was used to execute him.  President Obama personally signed off on the killing.  Attorney General Eric Holder went on to outline when the US government believes it can execute you without trial.  Cynically, Holder argued the deliberations by the executive branch of government alone amounted to “due process”.  Once the executive has decided you are an “imminent threat”, which may not actually be all that imminent as the case of Al-Awlaki shows, that is enough to justify killing you.

What is the difference between Lindh and Al-Awlaki?  At least two: (1) Lindh was presented alive to the US military.  Like it or not, people view the impersonal killing of a person through a black and white video stream differently than putting a gun to someone’s head.  Both have the same outcome, but the impersonal nature of drone killing makes it easier to carry out.  Take a look at the two links above and decide if you were the actor in each case, would piloting that drone be psychologically easier than executing the convicted spy?  Not saying it wouldn’t have some effect on you, but the physical distance and impersonal nature of the images matters; (2) Lindh is caucasian and Al-Awlaki is not.  Just as it was easier to violate the civil liberties of those of Japanese ancestry, it is easier for us to kill “the other”.

Key point #10: Outside of territory under US sovereign control, the President can declare you an imminent threat, and without trial have you killed.  It doesn’t matter what citiizenship you hold.

Non-US citizens on US soil: Soon after 9/11 congress passed an Authorization for Use of Military Force (AUMF) 2001.  This authorization permitted the executive to take action against those it deemed terrorists who participated in 9/11 wherever they may be, including on US soil.  This essentially remains the law of the land through the continued enactment of the National Defense Authorization Acts, which expanded the AUMF provision by dropping the requirement that it be solely related to 9/11.  These acts allow for the executive alone to determine that you are a terrorist threat and apply military justice to you, including indefinite detention.  Versions of this bill that did not pass nearly required that military justice be used, but in the end it became an option not a requirement.  President Obama issued a directive on interpreting the act which outlines when a detainee should be tried in civilian courts, and among the list of reasons is if the conduct in question occurred in the United States.  Keep in mind, however, this order can be changed by future administrations.

US citizens on US soil: The National Defense Authorization Act applies to US citizens just as it applies to non-US citizens.  The President has the authority to declare you a terrorist and apply military justice, which includes indefinite detention without trial.  An example of this is Josè Padilla, held under the original AUMF.  In 2002 President Bush declared him an enemy combatant after his arrest in Chicago, and he was held and tortured for three years by the military.  Eventually, under pressure from civil libertarian groups, and likely to avoid losing key court cases that may have restricted further executive powers, the administration moved Padilla to the civilian court system.  Notably, and unfortunately, the 4th Circuit Court of Appeals ruled the President did have the authority to hold Padilla indefinitely without trial, and that ruling still stands because the government cleverly moved Padilla out of the military and into the civilian justice system to avoid the Supreme Court being able to rule on his case and possibly setting a precedent that the government’s actions were unconstitutional.

Key point #10: Inside of the United States, the President, without any court oversight, can decide you are a terrorist and subject you to military justice, which can include indefinite detention and torture.

To summarize, outside of US soil the President can declare you an enemy of the state and have you killed if the executive branch alone convinces itself that you are a “imminent threat”.  It doesn’t matter if you are a US citizen or not, if they decide you are a threat to the United States you can be executed without trial.  Inside of the United States, whether you are a US citizen, permanent resident, or visitor, you can be declared an enemy combatant, and subject to military, not civilian justice, and this can include indefinite detention and torture.  You do have the right to a military trial, but the government will use evidence against you that you cannot even see.

The Future is Not Set: Part 2

This is part 2 of the series.  Part 1 is here.

A History of Denying your Rights in the US

One might be tempted to argue that the US is different and what occurred in Germany cannot happen here.  American Exceptionalism is built into our psyche after all.  So let’s turn to US history and law and see what has happened here.

Background

The US constitution puts in place a system of government with a President, a legislative and a judicial system where powers are expressly prescribed for each of these branches of government.  Over time, each of these institutions has flexed and increased their powers by claiming additional powers were implied to them in the constitution.  For example, the constitution does not expressly give the President the right to wage a “police action”, instead expressly granting the ability to declare war to congress.  But Presidents have argued the need for speedy action and the fact that the military answers to the executive branch, implies that the President can deploy military forces without an explicit war declaration.  Sometimes these “police actions” are really wars by any other name (e.g. Vietnam).  This difference between express and implied powers will become important shortly.

Notably, the fact that our courts can strike down laws passed by the legislative branch and signed by the President is also an implied power.  The constitution does not expressly give this authority to the judiciary, but instead the Supreme Court gradually gained it.  By 1803 the power to strike down laws was claimed in the Marbury vs. Madison case.  The reasoning the court used is that judges were required by Article 6 of the constitution to swear an oath to uphold the constitution.  Thus applying laws contrary to the constitution would violate this oath.  That’s pretty darn subtle if you think about it!  Nevertheless, that is what unpins the concept of judicial review that we hold so dear in this country.  (By the way, it is also the reasoning that some far-right militia groups use to ignore laws they feel are contrary to the constitution.)

The judiciary can, and does, invalidate laws and executive actions, if they believe they are contrary to the constitution; i.e., that they infringe on your rights.  When our system of government wants to take actions that violate these rights and have it be legitimate within the framework of the constitution, it has to first suspend the court system.

Habeas corpus, and denying access to the courts

A key provision for a free people is the right to habeas corpus.  Essentially this is the right to petition the judiciary for regress.  If you are held by the government, you petition the court for habeas corpus relief and the court can issue a whit (order) to the government to produce you before it.  Without this right you could simply be stuck in a jail and left there.  When Hitler pushed through the Reirchstag Fire Decree it granted the government the right to suspend habeas corpus.

The framers of the US constitution believed there was a need to suspend habeas corpus at times.  Their thinking is enshrined in Article 1, Section 9, Clause 2 of the constitution and reads “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”  Some constitutional framers, such as Luther Martin, argued against having this clause in at all suggesting it opened an “engine of oppression”.

Expanding the authority of the President

Controversially, the statement about the suspension of habeas corpus is contained in the legislative, and not executive or judiciary sections of the constitution.  The first real suspension of habeas corpus was done by Abraham Lincoln without congressional approval.  Yes, that Abraham Lincoln.  He’s the first one to take away your rights as a US citizen and to do so without the clear express authority of the constitution behind him.  The case is very interesting, and worth dwelling on for a bit.

In April of 1861, at the outbreak of the Civil War, Lincoln was moving troops to Washington DC.  Maryland chose to be with the union, but sentiments in the state were mixed.  The governor of Maryland asked Lincoln not to move union troops through the state, and went so far as to deploy the state militia (National Guard) to destroy key bridges in the state that would be used to move troops.  Lincoln had many guardsmen arrested, as well as several Maryland officials (police, a judge, etc) and authorized the suspension of habeas corpus by the military.  These individuals were detained by the military as what we now call unlawful combattants.

One of the Maryland guardsmen arrested, Merrymand, petitioned the court for habeas corpus relief.  The court issued a whit and sent a federal marshal to Fort McHenry where he was being held.  Major Morris and the military at the fort denied the marshal’s entry and continued to hold Merrymand.  Merrymand appealed to the supreme court and Justice Taney on that court again issued a whit ordering Merrymand be brought before the court.  This whit was also ignored by the military and by Lincoln.

At this point in our history, we have what we now call a constitutional crisis.  The suspension of habeas corpus, which is supposed to be carried out by congress, has instead been ordered and carried out by the executive.  The executive has even denied an order from a sitting Supreme Court justice.  There are two bits of wiggle room left, however.  First, at the time, Supreme Court justices had a day job.  It wasn’t like today where justices only conduct Supreme Court functions.  Justice Taney was also on the State Supreme Court for Maryland.  It was argued at the time, and is argued to this day, that his order granting habeas corpus was him acting in his State Supreme Court role, and not his Federal Supreme Court role.  While the wording of his order was ambiguous, I find this argument a stretch.  The second argument made was, just as with a “police action”, Lincoln had to act fast. As we do today, the legislative branch does not meet fulltime, and even when it is in session, does not always act quickly.  The argument Lincoln made was the structure of the constitution gave him the implied power to suspend habeas corpus.  This argument was contentious in the day, but less of a stretch.  Eventually congress met and passed a suspension of habeas corpus act that also indemnified Lincoln and the military officers involved for their actions in ignoring the orders from the court, prior to the act being passed.

Key point #5: The President can act alone to suspend habeas corpus, at least for a few months.  The fact that the suspension language is in the legislative section of the constitution is irrelevant.

Denying all civil rights: WWII & Internment of US citizens

The US Congress responded to the Pearl Harbor attack by declaring war with Japan on December 8th 1941, and three days later, on the same day that Germany declared war with the United States, by declaring war with Germany.  Two months later, on February 19th 1942, President Roosevelt issued Executive Order 9066 which authorized the military to designate “military areas”, and to restrict the rights of people, including US citizens, within those areas.  Quickly a “military area” that encompassed approximately 100 miles landward of the entire west coast of the continental United States was setup.

Internment of people of Japanese decent within this zone was not immediately carried out.  The initial order (March 2nd 1942 – Public Proclamation 1) , simply ordered citizens who are subject to the 9066 order, to register a change of address if they moved.  Thousands of US citizens and residents fled the zone.  Soon after, additional restrictions (curfews, freezing of assets) were put in place, and on March 27th 1942 leaving the zone was prohibited.  About a month later, on May 3rd 1942 the interment began with Civilian Exclusion Order #34.  Anyone of Japanese decent still in the zone was forcibly relocated to a military run detainment camp.  About 5,000 people left the zone prior to the interment, but nearly 120,000 did not.  About 80,000 were US citizens, and nearly all were of Japanese ancestry.  Although 9066 was used against a few hundred individuals of German and Italian ancestry, including citizens, the racist nature of the order and its use is clear.

Interestingly, 9066 did not suspend habeas corpus.  What makes this peculiar, is a suspension of habeas corpus would permit detainment (imprisonment) without civilian court oversight.  Instead 9066 contained explicit direction on the care that those detained would receive.  It is as if Roosevelt did not want to ask congress to suspend habeas corpus or go so far as Lincoln and suspend it with implied powers.  Yet, he authorized the military to suspend citizen’s basic civil rights directly, while leaving civilian court oversight in place.  Such executive power is not granted anywhere in the constitution, but Roosevelt had a trump card:  as you can imagine the legality of the 9066 was challenged but in the 1940’s era courts all such challenges failed.  In Korematsu vs. United States the Supreme Court declared the internment legal by a 6-3 vote.  Important for those keeping score, all six of the Roosevelt appointees to the supreme court voted affirmatively.

We still look back on these cases and wonder what would we do in a similar situation.  Acting Solicitor General Neal Katyal on May 20th 2011 denounced the actions the justice department took at the time.  More reflective statements from Chief Justice Rehnquist (1988) and Justice Scalia (2014) suggest they felt the decision was wrong, but that in war-time, Presidents and Supreme Courts could reach the same conclusion again.  In effect, these two Justices are suggesting that war makes people do things they may later regret, but that’s just the way it is.

The Korematsu case has not been reversed and is still the law of the land.  Technically, the President can still designate you a potential threat to the security of the United States and put you in preventive detention even if you are a US citizen and even if you are on US soil.  But of course you would challenge it and at least so far in this story so far, you have the right to habeas corpus.  The judiciary would have to sign off on the government taking away your civil rights.

Key point #7: Your liberty is not an inalienable right as guaranteed by the constitution anymore.  If the popular sentiment is you should be pre-emptively detained or have other civil rights restricted, then the government will do this to you and the courts will not save you.

Perhaps the only thing stopping this from occurring routinely is the fear the government has that without a sufficient reason the courts would formally rule against it, removing this as yet unchecked power.  We’ll return to this concept shortly when we look at the present “war on terror”, but for now we must dive into a different aspect of law where the actions in WWII are telling and chilling.

Lists & the Alien and Sedition Acts

The detention of US citizens and residents of Japanese ancestry is the more famous internment that Roosevelt ordered, but there was another detention that occurred immediately after December 7th 1941.  This detention relied on a very old law, the Alien Enemies Act of 1798.

The Alien Enemies Act of 1798 dates back, obviously, to the time just after the end of the revolutionary war.  During the revolution France (a monarchy at the time) loaned the United States considerable sums of money to prosecute the war, as we were fighting the British.  Then in 1789 the French revolution began.  Eventually the United States decided to try to wiggle out of its debt, arguing that the loan came from the now deposed monarchy and not the current French government.  The French didn’t really agree and started to capture US flagged merchant vessels, and selling their cargo.  Eventually the US navy and marine corps were formed and the French and US had what is rather politely called the “Quasi-War”.  It is during this endeavor that the US congress passed a collection of laws aimed at French nationals residing in the country.  Some of these laws, such as the Alien Friends Act authorized the President to imprison non-US citizens that were deemed dangerous.  The Alien Enemies Act authorized the President to imprison non-US citizens if they were from a country we were actively at war with.  Finally the Sedition Act of 1798 made it a criminal act to falsely criticize the government, even for US citizens.  The sedition act was used by the government to throw several newspaper editors in jail.

The Alien Friends Act and Sedition Act sunsetted in 1801 and 1800 respectably.  The Alien Enemies Act is with us to this day, and was used both in WWI and WWII to detain non-US citizens residing in the country.

Prior to the start of WWII for the United States, the FBI headed by J. E. Hoover maintained a “Custodial Detention” list.  Essentially people who Hoover thought were enemies of the United States, and he had a pretty broad definition for this.  The Office of Naval Intelligence also maintained lists of suspicious organizations and who belonged to them.  This is the origin of the term A, B and C list.  The “A” list contained actual Japanese government officers (consulate personal, etc).  The “B” list were things like companies that made items useful for the Japanese war effort.  The “C” list was basically everything else, such as Japanese cultural organizations.  After war broke out the FBI and Navy Intelligence lists were combined and ultimately 31,899 people were detained.  Fairly detailed records of this internment exists: 17,447 were Japanese; 11,507 were German; 2,730 were Italian; and 185 of some other ancestry.  Again, note the racist skew towards applying the law mostly to those of Japanese ancestory.  After the war many of these individuals, from all nationalities, were deported.

Key point #8: If you are not a US citizen, if the government decides it is at war with your country, then you can be pre-emptively detained for your heritage.

The original Alien Enemies Act applies to you if you are not a citizen of the US and you are a “natives, citizens, denizens, or subjects” of the “nation or government” that there is a “declared war” with. After the culmination of a treaty with the nation or goverment in question is made or after the President has decided a “reasonable time” has passed, the act no longer applies.  The court has not decided what a “reasonable time” is, and in 1948 in the Ledecke v. Watkins case decided the act exists even after the cessation of hostilities.  In that case, a German national was still being held prisoner by the US on Ellis Island, yes that Ellis Island with the Statue of Liberty on it.  The court ruled by 5-4 his detention and deportation was still lawful because there was still a “declared war”.

Summary of Part 2

In this section we’ve explored older aspects of US history and law.  We’ve found that our institutions, courts, executives and legislators, have stretched and pulled the constitution to serve them and the times.  Some of these stretches, such as the idea of judicial review, we hold dear to this day.  Others, such as the ability to preventably detain US citizens in times of war because of your heritage, we consider a stain on our history.  And still others, such as the lack of civil rights for non-citizens in times of war divide us still.  Ultimately we depend on our courts to protect our basic liberties.  But in times of crisis even that notable institution can either be ignored by the executive or will fail us outright.

The Future is Not Set: Part 1

Note: this is part one of four of a very long blog post.  I decided rather than wait for it all to be finished to just serialize out the pieces I have mostly done. I’ll post Part 2 next week.

Prior to Trump being elected, back when everyone around me lived in a bubble of incredulity at the Republican candidate, conversations about the election would invariably pause at an ominous statement, “The problem isn’t just Trump, it’s the near majority of Americans who would vote for him.  Those voters aren’t going away.

Now that Trump is the president-elect many of us are deeply worried for the state of the country.  The truth is we should have been worried before the election.  Nationalism, Fascism, Alt-Right, whatever you want to call it has been on the rise in western democracies for a decade.  The National Front in France, which garnered 10% of the regional council votes in 1986, has steadily risen to 28% of the vote in 2015.  Freedom Party of Austria went from 10% of the national election results in 1986 to 21% in 2013, and nearly won the presidential election in 2016 (46%).  Nationalistic political parties now command European parliamentary seats (Country – Percent of vote from citizens of that country): National Front (France – 25%), Party for Freedom (Dutch – 13%), Freedom Party of Austria (Austria – 20%), Flemish Interest (Belgium – 4%), Congress of the new Right (Poland – 7%), Alternative for Germany (Germany – 7%).  These parties have joined together to form the “Europe of Nations and Freedom” voting block.  Their platforms will now be familiar to American voters: administrative detention (imprisonment to “prevent” crime), a strong stance against immigration, and a general skepticism of globalist institutions and policies;  [insert your country here]-first rhetoric.

The clearest writing on the wall that liberial (in the broad sense of the word) Americans chose to ignore is Brexit.  Just as with the 2016 presidential race, the pundits and pollsters were caught blindsided.  No one expected 52% of the UK population to vote to leave the EU, particularly when most polls were running 5% below this mark.  The hand wringing that occurred afterwards is familiar: Did pollsters have the sample correct?  Was the media and political leadership tone-deaf?  Are people not willing to fess up to being racist to a pollster?  The attempt to ignore the true scope of the loss is also familiar: a bare majority isn’t a clear mandate (“Trump lost the popular vote”), many of the Ramainders in The City didn’t bother to vote anyway because they never expected to lose (“Democrats didn’t go to the polls”), a vote for Brexit is a vote against immigrants (“Hillary lost because she is a woman”).  To cling to these explanations is to ignore the broader picture of what is going on globally in western democracies.

The Rise of Nationalism in the 1920s and 30s

To make sense of these times I’ve spent a lot of time looking to the most famous and extreme example of nationalism in the 20th century — the rise of the Nazi party in Germany.  The National Socialist German Worker’s Party (NSDAP) went from a fringe party in 1924 (6.5% of the vote), declining further to 2.6% in 1928 to a stunning rise (1930 – 18.3%) and then 37.3% in July of 1932 and 33.1% in November of 1932.  At this point Hitler was appointed Chancellor of Germany and a coalition government with the Germany National People’s Party (DNVP) was formed.  The DNVP can be summarized as nationalism-light, and competed with the NSDAP for the Chancellorship.

Key point #1: Hitler was elected.  He did not come by the Chancellorship through a coup d’Ètat.  And moreover the combined NSDAP (33%) and DNVP (8.3%) vote did not even break the 50% mark.  When a sizable minority of your countrymen want a nationalist government, you have a real problem on your hands.

Hitler did not come to power in a vacuum.  Nationalism was on the rise in the 20’s and 30’s throughout Europe.  The Fascist in Italy went from a failing political party in 1919 to a march on Rome with less than 1% of the population in 1922 that overthrew the government.  Franco’s government in Spain traces its roots to the Falange Española de la JONS in 1933.  Austria had the Fatherland Front also in 1933.  Greece came under Fascist rule in 1936 with the 4th of August Regime.  Sanation came to power in Poland with a coup d’Ètat in 1926.  Norway had the Nasjonal Samling which never managed to garner more than 2.5% of the vote, yet coarsened the political dialogue and opened the door for the subsequent Nazi invasion.

Key point #2: Nationalism comes as a global wave in the western world.   The United States in 2016 isn’t unique, and now we see, isn’t immune.

A Catalyst

In early 1933 Hitler (leader of the NSDAP) was Chancellor and Papen (leader of the DNVP) Vice Chancellor.  Germany still had a functioning democracy and a constitution that guaranteed certain fundamental rights – habeas corpus, freedom of the press, freedom of speech and association, and protections against the government seizing property or warrantless searches.

And then a terrorist strike happened.

Early on the morning of February 27th, 1933 the Reichstagsbrandveordnung, essentially the house where the government met, caught fire.  The fire was blamed on members of the KDP (communists).  In response, Hitler, who had been Chancellor for only one month, argued such an extraordinary event (“9/11”) was a clear sign the KDP communists (“Al Queda”) needed to be delt with as they presented a clear threat to the government, and hence the Reirchstag Fire Decree (“Patriot Act”) was necessary.

Key point #3: Politicians will exploit your fear because they know it’s when you are most likely willing to bargain away your principles.

The next few steps you can almost predict, but the timing of them is key to pay attention to.  Within two weeks the Nazi’s used the suspension of civil liberties to round-up and imprison nearly 10,000 of their enemies.  Unfavorable news and politicking were suppressed.  Then almost immediately afterwards, on March 5th 1933 the Germans voted again.  This time the NSDAP party increased their vote share to 43.9%.  Still a minority.

Having not achieved a legislative majority outright, Hitler continued to capitalize on the “communist threat”.  On March 24th 1933, less than three weeks after elections, the German government passed the Enabling Act.  This act essentially abdicated the role of the German parliament (the Reichstag and Reichstrat as it is known).  Except for limited restrictions, such as the need for it to be renewed, it gave the Hitler government free rein to pass laws and even change the constitution.  Hitler and the NSDAP did not think they would have the 2/3’s votes necessary to pass it, so they set about changing the rules and intimidating representatives.  But at the end of the day they cut a deal with the German Center Party (Zentrum) and passed the act.  By July the Nazis used their dictatorial powers to outlaw all other political parties and within a year the cabinet was effectively not being consulted anymore.  Hitler had become the dictator he always wanted to be.

Key point #4: Nations can change in the blink of an eye.  Hitler went from a contender (July 1932), to Chancellor (January 1933) to effective Dictator (March – July 1933) in less than a year.

This post is continued with Part two, available here.

Understanding the West: A primer for my eastern friends

SouthernIdaho
Idaho

I have lived my entire life in the West.  By that I mean, the western half of the United States. After marrying (twice) into eastern familes and spending a good deal of time traveling along the eastern half of the country, I’ve concluded many people just don’t get the west. I also find many people outside of the United States are genuinely confounded by Americans, and especially westerners.  Here’s my attempt at explaining the west and its people.  Before I do I feel the need to put some caveats on it.

The west is not homogenious.  If you live in Seattle or San Francisco there are aspects of being “a westerner” that are quite different from Yakima or the planes of Wyoming.  My thesis, however, is there are core threads of an ethos and outlook that is common to people of both regions.

My view is limited.  Geographically I grew up in a track home in Orange County (south of Los Angeles).  I spent nine years in the north central valley of California (“norcal”) in a college town (Davis).  Then thirteen years in the city of Seattle.  Finally for the last couple of years I live in rural Washington (Whidbey Island) but still commute to work in Seattle.  Time wise, I’m 41.  I feel like the world has changed a lot in my “concious time”, but surely someone who is 61 or 81 will have experienced a greater breadth of change.

My view is not that limited.  I’m equally at home in the grit of the city, farm country, the desert and along the ocean.  I’ve traveled all over the west and a good part of the world as well.  I feel like I have something to say on what the west is all about.

The Romantic West

With the caveats out of the way, let me address what I feel are some guiding ethos of the west.

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Bear Tooth Highway, Montana

The West is vast.

The western half of the united states really is big, and compared to the east, mostly sparsely populated.  You can leave Seattle and within an hour start walking into the wilderness and see no one and experiene no man made structure or presence of any kind, for days on end.  The same is true if you head east from Reno, Pheonix or Albuquerque; west from Denver, Cody or Missoula.  This still untamed land is the heart of the west.  Few now will set off into these wilds for longer than a weekend.  Fewer still leave their cell phone behind.  But the wild land is there, ready to receive us when we are in need of some place to study our own soul.  In the east and throughout much of Europe and Asia I’ve never felt the same ability to escape; maybe I just havent been to the right places, but more often than not a cafe is at the end of the trail.  A friendly voice switches from German or Dutch to English to greet me along the way.

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Puget Sound, Washington

Rugged Individualism.

This is perhaps the least well understood characheristic of the westerner and of Americans generally.  In the 1800’s, moving West was not a decision people took casually.  Moreover, it wasn’t as if you went west because things were working out for you.  While some wealthy and successful individauls went west hoping to become more wealthy and more successful, most everyone else did so precisely because their life in the east wasn’t going so well.  One can only imagine the conversation between husband and wife went something like this:

“Hey babe, we just aren’t making it here.  It’s been three years now and we are still living with your parents.  I’ve heard about this place, they call it South Dakota.  Land is free!  They say all you have to do is spread seed on the ground and it will grow strong from the sweet smelling rain and shinning sun.  The Smith’s are headed there next month and we could join them.  We have just enough saved up that we could make the journey.  I know a guy with a wagon he wants to sell.  We could take your daddy’s horse.  We’d pack everything we need to make a fresh start, a new life there.  I really think we can be successful there.”

“I hear there are indians out there?  And will I ever see my family again?”

“Sure babe, of course we’ll be back to visit.  And don’t worry about the indians.  Trust me.”

And so they went.  That’s a whole lot of gumption.  To put that in perspective, imagine if you were having trouble finding a job out of college and you decide your best choice is to sell everything you own, buy a tent, a rifle and a few hundred pounds of canned food and head to the far north of Alaska.  The federal homestead act expired in the 80’s but the state will sell you a chunk of land for less than the price of a used car.  There’s no fear that fellow humanoids will come marauding through your camp, becuase hey, you really did steal their land, but there’s some hefty size bears that will be non too plussed to see you.

Actually, that doesn’t sound half bad to me.  And there in lies my point: that spirit of being able to gather together everything you need for the rest of your life, pack it all up and head into the great unknown lives on in the west.  It is passed down from generation to generation, and while it is surely diluted over the past couple hundred years, there’s enough of it left that it still profoundly shapes the culture and politics of the west.  Most of us will never up root our physical lives in the way our ancestors did, but many of us will use that inner spirit to perform similarly challenging pursuits.  I believe there’s a reason Silicon Valley is in the west.  It takes people with gumption to quit their jobs and bet everything they have on some new online venture.  And to do it over and over again until they finally succeed.

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South Dakota

Come as you are

The west is full of people not like you.  The west will make you question your prejudicious.  That girl with the full body tattoo and blue hair?  She works for Amazon running operational security.  At home with her friends she likes to bake huckleberry pies and run tough mudders.  That dude in the business suit isn’t a wall street type, he sells used cars and goes to a new-age baptist church on the weekends.  That person who you can’t quite pin what gender they are, despite the foot high rainbow mohawk, skull rings and knee high boots, ordering a triple espresso and a brownie at the coffee shop?  Amazon again. Has two pugs at home, a boyfriend of five years and a girlfriend of ten.  Don’t worry if your mind is blown, keep reading.  If you want to survive out here and be happy you have to be comfortable breaking bread with all these folks.  And you know what?  They are all pretty cool, just ask them a question.

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A friend of mine once described the east coast to me thusly: “Suppose your kid sucks at baseball, so the little league coach benches him all season.  You know your kid isn’t any good, but hey, he’s your kid and you’d like to give him that experience of actually being in the game.  On the west coast you can go talk to the coach and they’d say, sure, we’ll put him/her in right field for an inning, no sweat.  On the east coast the coach would tell you to ‘Go form your own league!'”  To me that story has summed up a lot about the west.  After all it’s just a little league game.  Why not let the kid play, is it really that important?

Conclusion

And there in lies the west.  It is a place where you can still disappear into nowhere to find yourself, a place colonized by riffraff that has left behind a sense of adventure among us, and a place accepting of you in all of your strangeness.  Sounds awesome right?