No Comment — January 30, 2008, 9:04 am

An Anniversary to Ponder

Today marks an important anniversary. On January 30, 1933—seventy-five years ago today—the power of the state fell into the hands of Hitler and his Nazi party, what Germans know as the Machtergreifung, literally “seizure of power.” But was it a “seizure,” lacking all semblance of legitimacy? More clear-sighted historians, like Fritz Stern, use the term Machtübergabe, or transfer of power, which marks some important points: the Nazis fared well in the elections, not reaching a majority of course, but they were able to take the reins of power through an alliance with conservatives whose distaste for the liberal Weimar constitution was only slightly less than their own. While the Nazi hold on power was tenuous at first, within a single month, a terrorist attack affecting the most prominent building in the nation’s largest city would supply them with just the engine they needed to begin the process of demolishing the liberal Weimar Constitution and transforming the nation into a dictatorship, first authoritarian and then totalitarian in nature.


It is to the great credit of the modern German state that it marks the memory of these grim events today and in the coming months. But Germany honors the memory of those who suffered at the hands of the Nazis not as a simple act of atonement, but also as an act of admonishment for its own people and for nations beyond. The New York Times reports from Berlin:

Most countries celebrate the best in their pasts. Germany unrelentingly promotes its worst. The enormous Holocaust memorial that dominates a chunk of central Berlin was completed only after years of debate. But the building of monuments to the Nazi disgrace continues unabated. On Monday, Germany’s minister of culture, Bernd Neumann, announced that construction could begin in Berlin on two monuments: one near the Reichstag, to the murdered Gypsies, known here as the Sinti and the Roma; and another not far from the Brandenburg Gate, to gays and lesbians killed in the Holocaust.

In November Germany broke ground on the long-delayed Topography of Terror center at the site of the former Gestapo and SS headquarters. And in October, a huge new exhibition opened at the Bergen-Belsen concentration camp. At the Dachau camp, outside Munich, a new visitor center is set to open this summer. The city of Erfurt is planning a museum dedicated to the crematoriums. There are currently two exhibitions about the role of the German railways in delivering millions to their deaths. Wednesday is the 75th anniversary of the day Hitler and the Nazi Party took power in Germany, and the occasion has prompted a new round of soul-searching.

“Where in the world has one ever seen a nation that erects memorials to immortalize its own shame?” asked Avi Primor, the former Israeli ambassador to Germany, at an event in Erfurt on Friday commemorating the Holocaust and the liberation of Auschwitz. “Only the Germans had the bravery and the humility.” It is not just in edifices and exhibits that the effort to come to terms with this history marches on. The Federal Crime Office last year began investigating itself, trying to shine a light on the Nazi past of its founders after the end of the war. And this month Germany’s federal prosecutor overturned the guilty verdict of Marinus van der Lubbe, the Communist Dutchman executed on charges of setting the Reichstag fire; that event’s 75th anniversary is Feb. 27.

What merits recollection and study on this ominous date are not the personalities involved, but the techniques they employed. We should note that those tools continue to be used on the political stage in many nations around the world; moreover they are used for many of the same purposes, namely undermining constitutional guarantees of civil liberties.

The Machtübergabe marked the real beginning for the strangulation of a democratic state. The principal tool used was simple enough to identify: it was fear. Fear of a vaguely defined existential threat to the nation, from beyond its borders. Fear of the Soviet Bolsheviks, principally. They were presented as terrorists—and indeed, they openly embraced the use of terror as a political tool. And this fear was soon joined by many others, particularly the fear of an “inner” enemy within the nation’s borders, framed in terms of the most revolting racist stereotyping.

The ghost that stalked the world in the years between the wars roams once more, though certainly not in the most virulent form. In truth, it was never truly locked away, nor can it ever be. It is a part of the human condition which we can at best hope only to press to the margins. But the most effective tool to use against it is simple enough: it is memory. It behooves us to remember our history and our cumulative experiences. Historical consciousness is the only effective inoculation mankind knows.

As the anniversary arrives, I note an important essay that the German legal scholar Michael Stolleis has published in the December 2007 issue of Merkur under the heading “Fear Consumes the Soul.” Stolleis’s piece is in German, but it is worthy of a broader audience–in fact it needs to be read by Americans. I am translating and excerpting it here, but if you can manage it, read the original.

September 11, 2001 is not just the central date of recent American history. It has decisively transformed the intellectual climate of the liberal and democratic states of the West. After further attacks occurred in Europe, or were narrowly avoided, fear is on the prowl. Its password is “terrorism,” the wish that commands all is called “security,” and the enemy it identifies is “Islam.” In this climate head scarves, sacrifices, the construction of mosques and Muslim religious instruction become the embattled basic questions. The secret service, the police, the customs officials and the armed forces prepare for battle. The citizen is taught that he must sacrifice freedom if he wants more security; at least he must be willing to part with the privacy of his personal data. Data privacy, once the paradigm of a free society, suddenly takes on the appearance of a quaint piece of furniture from a by-gone era, a time in which we could afford a bit of privacy. Now we must close ranks, they tell us, and all prepare for the battle and the sacrifice of our own lives.

No one in America who heard President Bush’s State of the Union Address on Monday night, or who has listened to any of the Republican presidential debates, could mistake the message that Stolleis encapsulates here. It is the essential clarion call of the Bush Administration. But reading on, I see that he references only materials published in Germany and debate within his own country. The language used, the images mustered, have painful historical parallels for Germans. But they might as well be a simple translation of the debate from the United States.

The dialogue is not limited to the political world, for it resonates in academia as well. Political scientists and lawyers foraging for the models for a national security state, turn to the same sources. “The Leviathan is summoned in its primal function, as guarantor of security, and the qualities of rule-of-law state and civil rights appear only to be troublesome appendages. In spite of, or rather precisely because of the globalization of terror, the concept of national sovereignty once more finds its defenders, who find the right moment to remind us that in time of exigency, the state may kill its own citizens.”

And so we make the inevitable bridge from fear, to destruction of civil rights, to the power of arbitrary detention to torture. The rise of an authoritarian and then a totalitarian state is always linked to torture, in fact. And Stolleis comes to the debate that was unleashed in Germany in 1996 by a Frankfurt police investigation, in which the use of torture was defended to save a life. It was a familiar case for American TV viewers. After all, we have an entire TV series, Fox’s “24,” which is premised on the wonderful blessing of torture—teaching us how essential to our security it is. Germany has not embraced torture, however. And most Germans will read of Attorney General Mukasey’s disgraceful testimony today on the subject of torture and wonder: What happened to these Americans? What caused them to change? What led them to betray the values for which they fought in World War II, and which we accepted when the war ended?

But the dark, threatening seeds of that change have made their appearance in Germany as well. Stolleis reviews a book by the Cologne law professor Otto Depenheuer, Selbstbehauptung des Rechtsstaates (2007), which sounds like John Yoo rendered into German. But indeed, I have often wondered, reading John Yoo, whether German was not in fact the original language. For Depenheuer, civil liberties and the concept of the rule of law are “draperies that cloak the fundamental security function of the state.” He values the decisive, brave political leaders who are prepared to brush them all aside in the interest of the idol of national security. For Depenheuer, torture is no object, and neither is the brisk use of lethal force when a threat is perceived. He bemoans our “self-satisfied, hedonistic culture.” And not surprisingly, Depenheuer’s book is laced with citations to the crown jurist of Germany in the thirties, Carl Schmitt (Yoo’s books are likewise chock full of Schmitt’s ideas, but he seems a bit hesitant to attribute them to their author). Again, a tie to the fateful Machtübergabe, for when the Nazis took charge they turned to the self-described “conservative Catholic” Schmitt to give them a legal master plan for the destruction of liberal democracy, and he was only too happy to accommodate their request. Criticizing and taking down liberalism in the interest of robust security had, after all, been his life’s passion.

Stolleis raises the right question and he answers it. “Just how viable is this chimera concocted from Carl Schmitt and the remains of a constitutional democracy? A state that pumps itself up with this sort of violence and threat potential had abdicated its role as a constitutional democracy—for that requires shared powers, distancing and the protection of civil liberties.”

And Stolleis closes in what might pass for a quotation from an American President, Dwight David Eisenhower. He felt that the nation’s concern for security in the mid-fifties was going to lead us to spend ourselves into a catastrophe, and he had a fitting retort. “If you want total security,” Ike said, “go to prison.” It sounded glib to some, but Ike made clear that he was convinced the maniacal concerns about security would lead to the destruction of democracy, the end of the traits that defined America as a nation–just as had happened in Europe between the wars.

But here are Stolleis’s words, and they merit being read on this day, marking the Machtübergabe, for they present the essential historical lesson to be distilled from that dark period in human history:

A free society that wishes to remain free must learn to cope with danger. It must bear danger, when necessary, without running immediately to call the national security state, the police and the military. Only a self-conscious society, which desists from issuing supplementary plenary powers to the state security agencies every time a threat arises, will be able to conquer its inner fear. When sacrifices must be made, then we should be able to complain about them privately and publicly. But we have no need of a metaphysics of sacrifice, much less a political theory of the sacrifice of citizens, furnished with the incense of dulce et decorum est pro patria mori.

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