The Danger of Emergency Powers: A History Lesson

Below is the second of three reposts in this election season on politics. (The third repost will be on November 1.) The present essay was posted on October 7, 2020, six months after the beginning of what I subsequently labelled covid totalitarianism. I used the terms in seven essays posted in 2021 and ’22.
 
 
Emergency powers, as we have learned in the past six months, are dangerous. Any little tyrant in our local mayoral or gubernatorial office can suspend individual rights at the drop of a hat—or virus—in the name of the emergency.
 
In 1933 Adolf Hitler became dictator of Germany through “emergency powers.” Let’s briefly review how that happened.
 
In 1932 in a round of parliamentary voting, the Nazi Party lost to Paul von Hindenburg, World War I hero and president of the Weimar Republic since 1925. The Nazis, however, won a strong second place. After Hitler withdrew support for Hindenburg a third round of voting in November gave the Nazi Party the largest Reichstag share at 33%. Two prominent politicians and a “letter signed by 22 important representatives of industry” urged Hindenburg (1, 2) to appoint Hitler as chancellor. Hitler immediately gave Hermann Göring a cabinet position in charge of the police, which soon became the State Secret Police, or Gestapo.
 
Emergency powers soon followed. In February 1933 the Reichstag (parliament) building burned, blamed by Göring on the communists, but some historians insist it was started by the Nazis. Hitler then persuaded Hindenburg to issue the Reichstag Fire Decree that eliminated many civil rights, including freedom of speech, press, and assembly, banned the communist party, and allowed detention without trial. (Hindenburg at the time was 85 and said by some to be senile.)
 
In one fell swoop, Hitler acquired dictatorial power. In March, with dissenters surrounded and intimidated by Nazi brownshirts (SA) and protection squad (SS), the Reichstag passed the Enabling Act to give Hitler “temporary” power to rule by emergency decree.
 
For the next sixteen or so months, which included book burnings, purges, and other forms of rioting and “cancel culture,” Hitler remained deferential in public to Hindenburg. After the latter died in August 1934, the chancellor eliminated the presidency, solidifying his dictatorship through the 1934 referendum, achieved similarly to the Reichstag vote with “widespread intimidation.”
 
It was in this manner that Adolf Hitler was elected dictator of Germany.
 
In our present cultural and political atmosphere, news commentator Bill O’Reilly recently wrote that the current Democratic presidential candidate [Joe Biden] “is Paul von Hindenburg in 1932 Germany. An old guy who is malleable.” In 1933 and ’34, Hindenburg’s shaper readily persuaded him to grant emergency powers, paving the way to full dictatorship.
 
Are we there yet? Are we heading down that path?
 
Emergency powers are dangerous and no one, least of all our political leaders, should have them. Individual rights are inviolate and absolute. They should never be suspended, whether the excuse is a pandemic or an insurrection or invasion. There is and can be no justification. This includes the suspension of habeas corpus, which unfortunately is allowed in the US Constitution.
 
In a free society no one has the right to force you to stay home during a pandemic or to force you to wear a hazmat suit (or mask) if you go out into public places. If you are so afraid of getting infected, you should stay home and avoid other people. If we had a society with a sound and stable legal system and you are infected knowingly and willfully by someone, you will likely have legal standing to sue or press charges—and with such a system you can expect most other people, lest they be sued or have charges pressed against them, to mind their manners when sick. A free society means you are free to choose and exercise in action your best judgment. We are all fully capable of doing just that. We ain’t stupid.
 
Emergency powers, even if, or especially when, they are declared to be “temporary,” lead inevitably to expansion of those powers. As in the case of Hitler, there seldom is a retraction or reduction of powers.*
 
Associated sometimes with emergency powers is the notion of martial law. Alan Dershowitz points out that the US Constitution says nothing about either, though, he writes, both were prevalent at the time of the country’s founding. Martial law, he says, is a contradiction in terms, because if the military is brought in, “then it is not law. It is power.” Other definitions have said martial law means the substitution of military for civil law.
 
No form of martial law, however, in a truly free society is ever appropriate. And I don’t believe it has been used in the United States. Whenever the national guard or military has been called out, their use has been to assist the police, to detain the violators of rights who are attacking person and property. In the process their purpose is to restore peace and order. Once the criminal violators are detained, the police can hold them for prosecution and incarceration.
 
Curfew? Aside from being a violation of rights, why? As a practical matter, you capture the law breakers, thereby making the streets safe again.
 
The use of emergency powers, martial law, and curfew are all confessions by politicians that they cannot maintain law and order with their own police.
 
Or, they are smokescreens for the expansion of power to establish a more authoritarian government. As did Hitler!
 
Can it happen here? Are the parallels sound? One-party rule, censorship, big business support and encouragement of dictatorial powers??
 
 
* See Jeffrey Tucker on “Lockdown: The New Totalitarianism.” Some true believers are already salivating over the pandemic lockdowns as dress rehearsal for total state control to enforce “climate change” decrees. Tucker, pointing out that the essence of “lockdownism” is puritanism, quotes none other than Anthony Fauci on the future of pandemic totalitarianism: “Living in greater harmony with nature will require changes in human behavior.” This simple statement is a double whammy: we in solidarity with the rabidly radical and toxic environmentalists apparently will be expected to sacrifice ourselves to trees and rocks and we must in addition transform ourselves into the utopian New Man (of Karl Marx, though the notion predates Marx).

The Danger of Emergency Powers: A History Lesson

Emergency powers, as we have learned in the past six months, are dangerous. Any little tyrant in our local mayoral or gubernatorial office can suspend individual rights at the drop of a hat—or virus—in the name of the emergency.

In 1933 Adolf Hitler became dictator of Germany through “emergency powers.” Let’s briefly review how that happened.

In 1932 in a round of parliamentary voting, the Nazi Party lost to Paul von Hindenburg, World War I hero and president of the Weimar Republic since 1925. The Nazis, however, won a strong second place. After Hitler withdrew support for Hindenburg a third round of voting in November gave the Nazi Party the largest Reichstag share at 33%. Two prominent politicians and a “letter signed by 22 important representatives of industry” urged Hindenburg (1, 2) to appoint Hitler as chancellor. Hitler immediately gave Hermann Göring a cabinet position in charge of the police, which soon became the State Secret Police, or Gestapo.

Emergency powers soon followed. In February 1933 the Reichstag (parliament) building burned, blamed by Göring on the communists, but some historians insist it was started by the Nazis. Hitler then persuaded Hindenburg to issue the Reichstag Fire Decree that eliminated many civil rights, including freedom of speech, press, and assembly, banned the communist party, and allowed detention without trial. (Hindenburg at the time was 85 and said by some to be senile.)

In one fell swoop, Hitler acquired dictatorial power. In March, with dissenters surrounded and intimidated by Nazi brownshirts (SA) and protection squad (SS), the Reichstag passed the Enabling Act to give Hitler “temporary” power to rule by emergency decree.

For the next sixteen or so months, which included book burnings, purges, and other forms of rioting and "cancel culture," Hitler remained deferential in public to Hindenburg. After the latter died in August 1934, the chancellor eliminated the presidency, solidifying his dictatorship through the 1934 referendum, achieved similarly to the Reichstag vote with “widespread intimidation.”

It was in this manner that Adolf Hitler was elected dictator of Germany.

In our present cultural and political atmosphere, news commentator Bill O’Reilly recently wrote that the current Democratic presidential candidate “is Paul von Hindenburg in 1932 Germany. An old guy who is malleable.” In 1933 and ’34, Hindenburg’s shaper readily persuaded him to grant emergency powers, paving the way to full dictatorship.

Are we there yet? Are we heading down that path?

Emergency powers are dangerous and no one, least of all our political leaders, should have them. Individual rights are inviolate and absolute. They should never be suspended, whether the excuse is a pandemic or an insurrection or invasion. There is and can be no justification. This includes the suspension of habeas corpus, which unfortunately is allowed in the US Constitution.

In a free society no one has the right to force you to stay home during a pandemic or to force you to wear a hazmat suit (or mask) if you go out into public places. If you are so afraid of getting infected, you should stay home and avoid other people. If we had a society with a sound and stable legal system and you are infected knowingly and willfully by someone, you will likely have legal standing to sue or press charges—and with such a system you can expect most other people, lest they be sued or have charges pressed against them, to mind their manners when sick. A free society means you are free to choose and exercise in action your best judgment. We are all fully capable of doing just that. We ain’t stupid.

Emergency powers, even if, or especially when, they are declared to be “temporary,” lead inevitably to expansion of those powers. As in the case of Hitler, there seldom is a retraction or reduction of powers.*

Associated sometimes with emergency powers is the notion of martial law. Alan Dershowitz points out that the US Constitution says nothing about either, though, he writes, both were prevalent at the time of the country’s founding. Martial law, he says, is a contradiction in terms, because if the military is brought in, “then it is not law. It is power.” Other definitions have said martial law means the substitution of military for civil law.

No form of martial law, however, in a truly free society is ever appropriate. And I don’t believe it has been used in the United States. Whenever the national guard or military has been called out, their use has been to assist the police, to detain the violators of rights who are attacking person and property. In the process their purpose is to restore peace and order. Once the criminal violators are detained, the police can hold them for prosecution and incarceration.

Curfew? Aside from being a violation of rights, why? As a practical matter, you capture the law breakers, thereby making the streets safe again.

The use of emergency powers, martial law, and curfew are all confessions by politicians that they cannot maintain law and order with their own police.

Or, they are smokescreens for the expansion of power to establish a more authoritarian government. As did Hitler!

Can it happen here? Are the parallels sound? One-party rule, censorship, big business support and encouragement of dictatorial powers??


* See Jeffrey Tucker on “Lockdown: The New Totalitarianism.” Some true believers are already salivating over the pandemic lockdowns as dress rehearsal for total state control to enforce “climate change” decrees. Tucker, pointing out that the essence of “lockdownism” is puritanism, quotes none other than Anthony Fauci on the future of pandemic totalitarianism: “Living in greater harmony with nature will require changes in human behavior.” This simple statement is a double whammy: (1) we in solidarity with the rabidly radical and toxic environmentalists apparently will be expected to sacrifice ourselves to trees and rocks and (2) we must in addition transform ourselves into the utopian New Man (of Karl Marx, though the notion predates Marx).
 

Intellectual Cowardice and Pre-Censorship as the Expressway to Dictatorship

Ayn Rand identified the four characteristics of dictatorship: “one-party rule—executions without trial or with a mock trial, for political offenses—the nationalization or expropriation of private property—and censorship.”*

The United States today is not there—yet. But it has elements of all four characteristics and speculation in some quarters says that a November election loss of our current president could fast-track the path to dictatorship, especially if one-party rule becomes established at the national level.

We have not had executions for political offenses, though we do have and have had considerable prosecutorial misconduct, including threats and actual use of solitary confinement along with pressure on witnesses not just to “sing,” to use Alan Dershowitz’s choice words (1; Applying Principles, pp. 68-70), but also to “compose.” Nationalization and expropriation? Some, but most occurs insidiously through creeping, and in some cases galloping, controls and regulations.

Censorship is the most concerning issue, because, as Rand puts it, “censorship is the tombstone of a free country.” Freedom of speech,” she says, is “the dividing line . . . between a ‘mixed economy’ and dictatorship” (“The Fascist New Frontier,” loc. 1684, The Ayn Rand Column.)

Today, we are working our way through that dividing line with a series of preludes to censorship, or pre-censorship actions, that are strictly speaking not censorship. Freedom of speech presupposes property rights, which means property owners have the right to deny what you may write or say on their property. Censorship is always an action by the government to silence dissent. Though the Federal Communications Commission exercises extensive control over the broadcast media, the print media are still relatively untouched by the government. Yes, exceptions can be found, but we are all still predominantly free to publish and speak freely on our own or as agreed to by a publisher or venue operator.

The most overt form of censorship would be an official bureau of the government, perhaps at the cabinet level and perhaps called “The Department of Truth and Social Justice,” that dictates what can and cannot be written or spoken. The preludes to censorship less overtly involve government and in some cases are performed entirely by private individuals or organizations. Preludes to censorship are more devious, as their goal is to soften citizens up and get them to accept the overt form.

There are several degrees of pre-censorship.

The most glaring, because it involves the legal system, is nonobjective law. An abundance of vague and overly broad laws gives us what I call dictatorship by excessive law. Such laws are what enabled Stalin’s chief of secret police to boast, “Show me the man and I’ll find you the crime” (Applying Principles, pp. 68-70; 2). When thousands of such laws are on the books, anyone can be arrested for anything, making it especially easy to silence dissent. (I include judicial gag orders in this category, because of the arbitrariness of many judges.) Nonobjective law plays no small part in today’s federal prosecutorial misconduct.

Nonobjective law in turn supports scapegoating, the ancient practice of blaming one person or one group of people for the flaws and mistakes of ruling elites who thereby can claim moral superiority. Nonobjective law makes it easier then to legalize and justify purges and pogroms.

Both nonobjective law and scapegoating, as Ayn Rand points out, are required to sustain a dictatorship. “In Soviet Russia,” says Rand, “the scapegoat was the bourgeoisie; in Nazi Germany, it was the Jewish people; in America, it is the businessmen.” And it still is business people, though some are promoting and funding the enemies of capitalism and the country’s march to dictatorship. Fools that they are, they don’t seem to believe, or know about, Lenin’s warning: “The capitalists will sell us the rope with which we will hang them.”

But today’s scapegoats are also “unwoke” whites, Asians, and, unfortunately, again, Jews (not to mention any black person who rejects “wokeness.”)

Publicly funded educational institutions are a second form of pre-censorship, as they are obligated, but woefully fail, to uphold the First Amendment of the US Constitution. The same applies to private institutions that have “freedom of speech” clauses in their charters. These institutions that fail to protect free speech on their campuses, by default, are performing a role similar to that of government censor. Fortunately, the Foundation for Individual Rights in Education is waging major legal battles to defend teachers and students and their First Amendment rights.

Other pre-censorship actions silence dissent without any apparent government intervention. They appear to be, and often are, actions of private individuals or organizations to exclude opinions with which they do not agree. Though difficult to find, government interventions may be present in some cases.

Social media exclusion is one such prelude that enjoys a government intervention. Section 230 of the 1996 Communications Decency Act labels “interactive computer service[s]” forums for “political discourse” and, at the same time, exempts them from the legal liabilities of publishers. Yet some of these “forums” also perform the functions of publishers by canceling political discourse they do not agree with. This, critics point out, allows social media to be both private forums and de facto government censors.

Two additional preludes to censorship were identified by Philosopher Bertrand Russell. He states that “legal penalties [government censorship] are . . . the least of the obstacles to freedom of thoughts.” The two greater obstacles, though I would dispute Russell’s ranking (government censorship can silence all dissent), are “economic penalties and distortion of evidence.”

Economic penalties restrict or prevent writers, speakers, and teachers from writing, speaking, and teaching—ultimately from earning a living. This includes today’s politically correct cancel culture and disinvitations, not to mention the deliberate refusal to acknowledge alternative points of view, along with character assassinations, that is, guilt by accusation or outright lies to have writers, speakers, and teachers removed from their professions. Character assassination under Marx and Engels, as Ludwig von Mises points out, became literal assassination under Lenin.

Distortion of evidence, Russell’s second obstacle, refers to smears and Goebbelsian propaganda (1, 2). Smears are the first half of the ad hominem fallacy—“Mr. X is immoral,” in infinite variations—with no pretensions to a follow-up argument that Mr. X’s ideas are false. In our postmodern age, reason, logic, and facts and truth are out. Instead, Goebbelsian yelping is all that is left and the yelping, unfortunately, as philosopher Stephen Hicks pointed out (1, p. 200; Applying Principles, pp. 33-36), performs the role of Iago to the Enlightenment’s Othello, namely to inject doubt into modernity’s values and “let that doubt work like a slow poison.”

In a proposed preface to Animal Farm, George Orwell’s 1945 USSR allegory, Orwell described a number of Goebbelsian preludes to censorship that were used in England during World War II. The preface, however, titled “The Freedom of the Press,” was vetoed by his publisher and was not known to exist until 1972.

Libels, double standards, suppression of criticism, and flagrant sins of omission during Orwell’s time all came from the press and intellectuals, not the UK government’s Ministry of Information. Their goal was not to offend Stalinist Russia. “In this country,” Orwell writes, “intellectual cowardice is the worst enemy a writer or journalist has to face.” Fear of public opinion, he says, is motivator of the press’s and intellectuals’ cowardice.

“Hardly anyone will print an attack on Stalin,” continues Orwell, “but it is quite safe to attack Churchill . . . . Anyone who challenges the prevailing orthodoxy finds himself silenced with surprising effectiveness.” Orwell called it “veiled censorship” when the government was not involved.

Orwell concludes, “These people [the press, intellectuals, and all the other gutless compromisers] don’t see that if you encourage totalitarian methods, the time may come when they will be used against you instead of for you.”

Final word about our current plight: “non-negotiable demands” left over from the 1960s and transported to the present, threats, intimidation, riots, arson, bombings, and other forms of violence, whether performed by private individuals and organizations or with the sanction of government officials, constitute totalitarian attempts to stage a putsch, the result of which would be the end of free speech and the establishment of dictatorship.

* The recent shutdown mania has given us a taste of dictatorship, stemming mostly from our Progressive mayors and governors. “Airtight,” the working title of Ayn Rand’s first novel We the Living, is an apt description of what it feels like under dictatorship. Rand’s main character shouts at her communist antagonist (p. 385): “You've driven us all into an iron cellar and you've closed all doors, and you've locked us airtight, airtight till the blood vessels of our spirits burst!” (“Sensory deprivation” is how prisoners have described their time locked away.)

Sovietization of Federal Law—Part Two

In 2013 I posted “The Sovietization of Federal Law” (Applying Principles, pp. 68-70), featuring a book by Boston criminal defense attorney Harvey Silverglate: Three Felonies a Day: How the Feds Target the Innocent. I cited the foreword by Harvard law professor Alan Dershowitz who quoted Joseph Stalin’s head of secret police, Levrenti Beria, saying “Show me the man and I’ll find you the crime.”

This in essence is the theme of Silverglate’s book: non-objective federal laws are so vague and overly broad that prosecutors can find any law to use against any of us, perhaps up to three times a day.

Silverglate is back with a new book, coauthored by appellate lawyer Sidney Powell. The book is Conviction Machine: Standing Up to Federal Prosecutorial Abuse. It is a series of horror stories, nine chapters, to be exact. Here is the gist of each one.

Catch 22. Don’t talk to FBI agents unless you can record the interview, which they almost never allow, and your attorney is present. Typically, one agent takes notes (yes! in the age of electronic recording) while the other interviews. Selectively edited summaries are often what are turned over to defense attorneys. Agents may tell you that the interview is informal, so you don’t need counsel, and they may show up at your door unannounced.

There’s Nothing Grand about Grand Juries. Don’t talk to grand juries, if you can help it, even if you are just a witness. The prosecutor controls the entire process with sole aim of getting an indictment, about 95% of the time. It will be just you, the prosecutor, and up to twenty-three jurors. No counsel, especially defense attorneys, are allowed in. (You can pause and request to go outside to consult with your lawyer, but that will be a bad sign to the jury.) If you are a witness and the prosecutor does not like your testimony, you can be upgraded to a subject of interest or even to a target for indictment.

Acts of God. Prosecutors control discovery, which means the release of exculpatory evidence. They determine what is “material” to the defense, often cherry-picking what to hand over. See my March post. Also, see the Bernard Baran and Duke lacrosse cases.

What Does the Law Require of Us? Criminal intent, or mens rea, is often no longer required to be proven in alleged federal crimes. If an act did in fact occur, that’s all the proof needed to secure a conviction. The attitude of many federal prosecutors is that white collar targets are essentially the same as mobster thugs.

Plea Bargaining. Enormous pressure is brought on defendants to encourage pleading to a lesser crime regardless of guilt or innocence. Prosecutors often “concoct” crimes by piecing together vague portions of two statutes. Defendants take the pleas because it gets the horror over with and prosecutors like the deals because it gives them another notch in their six shooters. Losing at trial for the defendant may result in a longer sentence than would result from a plea bargain.

An Offer He Can’t Refuse. Informants and witnesses are offered attractive deals—reduced sentences or none at all—to encourage them not just to sing, in the words of Professor Dershowitz, but also to compose. Such deals would be called extortion, bribery, or obstruction of justice, if offered by a witness or defendant. And often the knowledge of such deals offered by prosecutors are excluded from court testimony.

Prosecutorial Misconduct. The subtitle of this chapter is “Who Will Prosecute the Prosecutor?” Good question. Apparently, no one. Prosecutors pile on the charges, not just one or two, but ten, thirty, seventy, and in some cases over one hundred. That way they know they will get at least one or a few definite judgments. Coauthor Powell says that her bosses, in the Department of Justice (DOJ) during her younger years of training, would urge prosecutors not to pile on the charges, but to select their four or five best and run with those. Prosecutors also don’t hesitate to strong-arm—as in threaten to indict or actually indict—family members. Wives, sons, brothers, elderly parents have all been intimidated by these guardians of the law. And, of course, prosecutors can and have ordered pre-dawn raids complete with SWAT teams and television cameras; they relish “perp walks” (in front of cameras), but get judges to issue gag orders against defendants. Does police state come to mind? And one more thing: prosecutors have absolute immunity, which means they cannot be sued! (See this for Silverglate’s commentary on how in 1990 the then head of the DOJ’s criminal division Robert Mueller tried to entrap Silverglate.)

Where Have All the Judges Gone? In other words, where is judicial oversight, which federal judges have the constitutional power to use. Such as, throwing out frivolous cases, based on vague and overly broad statutes; exercising judicial control over the zealous prosecutors who gleefully use perjury traps and that catch-all, when all else fails, obstruction of justice; and refusing to send defendants to solitary confinement, which the ACLU and United Nations both have declared to be torture. Unfortunately, the judges side more often with prosecutors than Lady Justice. (Many judges are former prosecutors.)

Once Is Not Enough. Habeas corpus, often used as an appeal for retrial after new evidence has been discovered while in prison, and coram nobis, used as an appeal after completion of a sentence to clear the defendant’s name, have both been severely narrowed such that it is extremely difficult to secure an order for retrial or dismissal of the original charges. And retrial, incidentally, must be done in front of the original trial judge, on the assumption that the trial judge will gladly admit his or her mistakes!


The final chapter concludes with an abundance of recommendations, aimed at correcting all of the above, ranging from encouraging judges to become the adults in the room to requiring Congress to be more scrupulous and precise when drafting and passing new laws. Judges, in particular, at the federal and appellate levels, the authors say, should have at least twenty years of experience practicing law before being appointed and that should include several years as criminal defense attorneys. They also recommend term limits for Congress.

Professor Dershowitz, in the foreword to Three Felonies a Day, states that criminal law at the time of the American Revolution was assumed to be so simple that it could be read and understood while running.*

Unfortunately, we are a long way from that simplicity. And we have a long way to go to get back to it.**


*Ayn Rand stated the principle simply: don’t initiate physical force (which includes fraud) against anyone, and that principle is embedded in the Bill of Rights. What we need is precise definition of the laws—but that would require a cultural commitment to reason, logic, and objectivity, which the postmodern academics are not about to return to.

**One issue not covered in Conviction Machine, but is in Professor Dershowitz’s Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo is the notion of “litigation privilege.” It says witnesses who file court papers are protected from defamation lawsuits, which means they can say most anything. Such filings are usually available to the press, which explains why we often see scurrilous headlines about prominent people being prosecuted. The prominent people have no recourse to defend themselves. They are guilty “by accusation.”

The Sovietization of Federal Law

“Show me the man and I’ll find you the crime.”

That paean to non-objective law is attributed to Lavrenti Beria, Joseph Stalin’s chief of secret police. It is cited by Harvard Law School professor Alan Dershowitz in his foreword to Three Felonies a Day: How the Feds Target the Innocent, by Harvey Silverglate (p. xxxvi).