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[ENGLISH] Comparison: USA PATRIOT Act and the Reichstag Fire Decree

2006-07-19 11 Kommentare

Die deutsche Originalversion gibt es hier

This is an translation into English done by myself. There will be errors, as English is not my native language. If you can, please go for the German version. As I try to stick as close to the German version as possible, the sentences will be very long (German generally uses long sentences, and additionally I tend to use very long sentences too). Sorry for that.

Finally, I found some time to compare the USA PATRIOT Act to another law, which is older and generally considered as adverse to democracy: The so-called Reichstag Fire Decree („Reichstagsbrandverordnung“), correctly called „Verordnung des Reichspräsidenten zum Schutz von Volk und Staat“ (according to Wikipedia, the translation in the English Wikipedia is „Order of the Reich President for the Protection of People and State“).

The comparison surely is not 100 per cent exact and meant more as „food for thought“ and not as a professional comparison by a histrican – as I am no historican. The Patriot Act is not the only danger to democracy, and in my opinion, also not the biggest. (please read the last paragraph of this text for more info about this).

If you find any mistakes, wrong information, notice that I left something out in the translation or left German paragraphs, do not understand something, etc.: please notify me via the comment function. Corrections are always welcome.

I want to make clear again that i neither want to compare the USA to the Third Reich nor Bush to Hitler. That comparison would be very inappropriate in my eyes. I also want to make clear that I do NOT think that the Patriot Act is as bad as the Reichstag Fire Decree. I am looking for similarities, not more, not less. I mainly want to show the danger caused by the Patriot Act.

Comparisons with Hitler, the Nazis and similar things are always to be taken cautiously and many refuse them as a matter of principle. (This is especially true in Germany, I do not know about the situation in the USA, but I hope noone abuses such comparisons lightly. This is a translation – I will not change it to reflect the situation in the US, so please keep that in mind.) Politicians are often forced to resign because of such comparisons, regardless of what small areas they compared. I do not consider this correct. Refusing such compatisons as a matter of principle should be avoided, however, theri thoughtless use should be avoided, too. I have been planning to write this comparison for an extended period of time, and I am not the only one seeing similarities between the Patriot Act and the Reichstag Fire Decree.

Discussion and Comments are welcome. (Please use English only, if you want to write in German go to the German version.) Please stay calm, friendly and objective. Insulting comments or comments containing things that might get me into legal trouble may be edited or deleted. (It is way easier to get into trouble in Germany, especially when working with such topics related to the Third Reich. DO NOT POST STUFF LIKE „Heil Hitler“ or „Heil Bush“!) I will try, however, to keep my intervention limited to replying to comments. If the comment function will be abused too much, I will be forced to disable it.


So, now to the topic

The name

Patriot Act

The exact name is: „USA PATRIOT Act“ – but this is only an abbreviation, more exactly a „Backronym“: First the abbreviation was invented, then its meaning, which is „Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001“. Wonderful name. The biggest problem is that most people only know the abbreviation (without knowing that it is one), and the abbreviation of course suggests that this act is „patriotic“ – and thus anyone who is against it is not patriotic, which is one of the worst things you can accuse an American of. (If this is wrong, please correct me – it might be stupid German prejudices!)

As the aim of the law the protection of the country and population from a danger (in this case terrorism) is given. Terrorism can be used today to justify nearly anything, after the fear created by the 9/11 attacks. This fear is (ab)used to justify anything and get the consent of the population.

Reichstag Fire Decree

In this case, the exact name is „Verordnung des Reichspräsidenten zum Schutz von Volk und Staat“, which means „Order of the Reich President for the Protection of People and State“. The name suggests here too that the aim of the order is to protect the Country from an imminent danger, in this case also terrorism.

Conclusion

Both regulations suggest in the name to aid in protecting the country, an euphemism is used to hide the true contents – the removal of basic/civil rights. The Patriot Act also uses patriotism to gain acceptance.

The occasion

Patriot Act

The 9/11 attacks were used as an occasion and to declare a threat to national security. „Of course“ it was „necessary“ to react to this threat „adequately“. The attacs were performed by terrorists according to the widely accepted opinion, although conspiration theories (the Wikipedia even has a category for them) say that the government performed the attacks to justify regulations like for example the Patriot Act and to get agreement for them.

Reichstag Fire Decree

The occasion was also an act of terrorism: The Reichstag was torched. Whether it was really one or more communist terrorist(s) or the NSDAP (Nazi Party) staged it to make takeover easier is still disputed today – but it was disputed also in 1933, when the Decree was created.

Conclusion

In both cases an act of terrorism served the purpose of persuading the scared population that such a law or decree was necessary and desirable. However, the 9/11 attacks were real with very high probability – or at least this is today, approx. 5 years after the Patriot Act, the public opinion – while the torching of the Reichstag was immediately highly contested and is it up to today.

The development

Patriot Act

The Patriot Act was first passed reguraly as a law, but was later amended by the President by a „military order“, which leglized the camp of Guantánamo Bay: Suspected terrorists since then have nearly no rights and can be held without a trial and without the right to consult a lawyer. This conflicts with any form of a constitutional state. The way the Patriot Act was passed was the way specified by the constitution and thus formally completely correct. The resulting practices however were forbidden by the US Supreme Court (I think it was the Supreme Court, please correct me if I translated it wrongly). Unfortunately, this ruling did not yet lead to a stop of using such practices.

Reichstag Fire Decree

The Reichstag Fire Decree was just, well, decreed by the Reich President of that time, Hindenburg, so it was not decided upon by a parliament or something like that. The possibility of decreeing such decrees was allowed in the constitution in case of an national emergency (which was simply declared). For this reason, even this decree was formally legitimated.

Conclusion

The Patriot Act got legitimated by passing it the regular way a law is passed, while the Reichstag Fire Decree was legitimated only formally by using a loophole in the constitution. However, the extenstion of the Patriot Act which violates human rights happend via an order too, so it is also only formally legitimated.

The lenght and structure

While the Reichstag Fire Decree is very short and clear, the Patriot Act is a giant monster in juristic English, which one just cannot be completely read, regardless of his good will to do so. The table of content itself is way longer than the whole Reichstag Fire Decree. This probabla serves the purpose to ensure noone reads the whole thing and that the law passes the voting without trouble. Additionally, the Patriot Act refers to other laws being changed by it, while making sure that noone can understand anything without finding and reading the law being changed. I did not have the time and endurance to look up all the laws.

The content

Reichstag Fire Decree

The Reichstag Fire Decree removed many basic rights, but also makes that clear.

Translation from http://en.wikipedia.org/wiki/Reichstag_Fire_Decree, where you can also find the original German wording:

Articles 114, 115, 117, 118, 123, 124 and 153 of the Constitution of the German Empire are suspended until further notice. It is therefore permissible to restrict the rights of personal freedom [ habeas corpus ], freedom of opinion, including the freedom of the press, the freedom to organize and assemble, 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.

If someone resists, his property can be confiscated and he can be sentenced to death. Penalties for „terrorism“ of many kinds were drastically increased.

But that is nearly all the decree says.

Patriot Act

I cannot summarize the complete content of the Patriot Act because of the overwhelming length. I will try to list the most important points. There are also some things contained in the Patriot Act that are not very interesting if you compare it to the main points, like for example regulations about financial support for the relatives von 9/11 victims. Through some undeniably positive things like these regulations resistance against the Patriot Act is made harder. Many rights are being shortened, primarily in the privacy sector. Wiretapping is made easier, DNA-Test can be made without many problems, banking confidentiality is nearly removed and house searches and confiscations are made a lot easier. The Secret Service gets granted a lot more rights. All this are the small things.

Nicely hidden in the mass of text the Patriot Act consists of to make it harder to find (I missed them too the first time I checked), are the really interesting things. Suspected terrorsists are to be detained, penalties for „terrorism“ of many kinds were drastically increased. House searches are easier – the owner of the house that was searches does not get told about the searcherers, at least not immediately.

Conclusion

By the exact definition of the restrictions made by the Patriot Act they are not that big and arbitrary like the ones from the Reichstag Fire Decree. However, the true aim of the Patriot Act is also hidden by the sheer mass of text. The Patriot Act also limits important basic and civil rights, although the limitations made by the Reichstag Fire Decree have of course been a lot bigger.

Consequences

Reichstag Fire Decree

Based on the Reichstag Fire Decree, all over the country members of the KPD (German communistic party) were arrested, as well as other persons the Nazis did not like. This way, the resistance against Hitlers takeover was efficiently reduced. Arbitrariness arose, the dictatorship stood.

Patriot Act

The Patriot Act is willingly used to control critics and cause trouble to them, while it is however also used against real terrorism. Unfortunately this often happens under violation of basic and human rights.

Conclusion

The consequences of the Patriot Act are by far not that big as that of the Reichstag Fire Decree, as also the extent of the provisions was not that big. However, also the Patriot Act openend the door for many forms of arbitrariness.

Final conclusion

Many aspects of the creation and form of the Patriot Act actually allow connections with the Reichstag Fire Decree. Although the Reichstag Fire Decree surely went a less legitimate way than the Patriot Act, both regulations were created by means that were not completely proper. The content of the Patriot Act by far not comparable with the Reichstag Fire decree. However, it still weakens many essential basic rights, allows abuse and moves the country a step farther from being a constitutional state and a step closer to a totalitarian police state. However, the regulations of the Patriot Act are less grave than the ones of the Reichstag fire decree – even I have to admit that. Especially the consequences differ: the extend in which the Reichstag Fire Decree was abused, was just unbelieveable and lead to a dictatorship within a few months. The Patriot Act is in force now for a few years, and despite the incredible violations of human righst in the so democratic and freedom-loving USA neither the abuse went to such an extent nor did the USA turn into a dictatorship. No, I do not think the Patriot Act is a good idea – I still consider it very bad and a clear step into the wrong direction. But it is not as bad as the Reichstag Fire Decree. One could see it as a weaker form of it, though.

But: Only because no dictatorship arose yet, there is no reason to feel safe, lean back and think all danger is over: what did not happen yet, could (in this case unfortunately) still happen tomorrow! You have to keep in mind that the Patriot Act is by far not the only thing (the Reichstag Fire Decree also was only a small part in a big setup). Many much less known regulations, partially only orders of the President, also lead to considerable restrictions in freedom. These regulations are the real danger, especially beause they are not very well known and for this reason, not discussed in public. They can, for example, cause many things happen in secrecy and then everything gets noticed when it is already too late. I have already written a post about an example for this, which also contains some closing words about democracy, terrorism and law enforcement. Therefore, I ask anyone who managed to stick with me trough this lenghty comparison to read the article too. It is just one on-screen page. This is the original German version. The translation goes here:

Both in the USA and in Germany every citizen has the right to get told what information are stored about him if he asks. Theoretically. Someone thought, why not, and wrote such a query to the NSA. Well, it showed up fast how easily such rights can be limited even in constitutional states. As you can reas in the persons post Getting My Records from the NSA, the query was rejected with reference to an so-called „Executive Order“ of the President, which can be read here. (It looks that the US President is able to issue orders that have law-like status, which luckily is not possible in Germany because history taught us that this is not really good for a democracy.) On the one hand, it was to be expected that the query will be declined, however, it nicely shows, how easily a constituional state might turn into a police state, and that this should be avoided. Luckily there is a rule in the USA too that the President may be re-elected only once – and this cannot be easily circumvented, I guess – then people would notice that there is something rotten.

There is always the risk that exactly such regulations, that are supposed to protect democracy, destroy the democracy. Then terrorists do not have to do attacks anymore. Only by the fear (which is where the name „terrorist“ comes from, as „terror“ means fear in latin) they spread they reach their aim: The democracy destroys itself. That is the aim of terrorists. As cruel as it may sound: The aim of attacks is not to cause direct damage by killing a few hunderd people. Every week over one hundred peope die from car accidents in Germany alone. The aim of terrorist attacks is more to cause indirect damage by spreading fear and making the people feel unsafe, vulnerable. And for this reason, it is always necessary to think wheter these restricions are worth it. And in my opinion, in most cases they are’nt. They are probably meant well, but they contain a danger that is not worth it. The ruling of the Bundesverfassungsgericht (Court that checks if laws comply with the Grundgesetz, the German constitution) in regards to the so-called „Rasterfahndung“ (All people that match certain criteria, for example all white males approx. 1,70m high from 20-30 years living in one are investigated to find terrorists. The Bundesverfassungsgericht strictliy limited the use of this.) clearly said it: Absolute safety cannot be achieved and must not be aimed for, because this would lead to too big restrictions in personal freedom. Of course the basic and civil rights make it harder to prosecute criminals. But they protect from a much bigger danger. And for this reason, they should not be restricted at all. Never.

Thank you very much for taking the time to read this.

UPDATE: I forgot to mention that the USA like to put political pressure onto other countries in order to make them satisfy their hunger for data of other people or other interests, and that they often do not care about international treaties or the laws of the countries they force to do something. Examples are the confiscation of the Piratebay servers in Sweden which probably violated Swedish law and happened only because the US government forced the Swedish government to make the police confiscate the servers, the passenger data forwarding which is highly contested in Europe (every airline has to provide the US with a lot of information about any passenger going to the US), and it ignores the banking confidentiality of other countries.

if you like this. you can digg it here