The Enabling Acts

The country was torn by political divisions; a dramatic attack on the capitol itself just six days before the elections raised tensions and fears. The President received emergency powers to protect the nation, including the power to suspend civil liberties and habeas corpus; but the government required additional tools for the fight. A new law granted temporary legislative powers to the executive branch. Able to rule by decree, Chancellor Adolf Hitler finally had the authority necessary to save the homeland.

On February 27, 1933, the Reichstag building, the seat of German government, was destroyed by arson. The fire was portrayed as the beginning of a communist revolution. With the fate of the nation at stake, the Enabling Act “to remedy the distress of the people” came to a vote. The Act was a model of concision, less that 250 words long (in English) and complete with a “sunset” provision. Hitler spoke in favor of the measure, promising to use the powers of his position only for vital issues and emphasizing the Christian nature of the German culture. The Act passed by a vote of 441 to 84. Only the Social Democrats voted against it, and they wouldn’t be around much longer anyway.

Of course, no one could have foreseen that the ongoing threats facing Germany would compel two formal extensions of the Act. By then, Hitler’s opponents had been eliminated; and the legislature was a vestigial organ of government. Thus, it was with uncanny prescience that Joseph Goebbels wrote after passage of the Enabling Act:

“The authority of the Führer has now been wholly established. Votes are no longer taken. The Führer decides. All this is going much faster than we had dared to hope.”

In a 1934 speech, Rudolph Hess explained his support for Hitler by declaring that the Führer was “the instrument of the will of a higher power.”

While it is comforting to know that Hitler took power legally and expeditiously, that’s not what I wanted to write about. I had in mind an entirely unrelated topic, a 2001 memo on presidential powers written by then-Deputy Assistant Attorney General John Yoo.

After analyzing the text of the Constitution and the history of relevant cases, Yoo concluded that:

the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001…

Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon…

Furthermore, neither the War Powers Resolution nor the Joint Resolution:

can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make. (Emphasis added.)

In a footnote, Yoo observed that in exercising his military powers:

the President’s decisions are for him alone and are unreviewable.

There it is in a nutshell. This argument, in one form or another, underpins the neo-conservative view of the unitary executive. With no limits on the President’s determinations of the threat or methods of response, and no review possible by Congress or the courts, what can he not do? Jail people indefinitely? Have them tortured? Order searches without warrants? Can he force people into slavery?

And if the war drags on as promised, what will the next Presidents do? On February 2, Donald Rumsfeld delivered a speech before the National Press Club titled “The Long War” in which he explained that the so-called war on terror could last decades. If there are no limits on presidential powers in time of war, and the war goes on indefinitely, isn’t the President effectively a dictator?

Alas, it seems I have digressed again. I actually intended to write about a psychology paper by Florette Cohen and Daniel M. Ogilvie of Rutgers University; Sheldon Solomon of Skidmore College; Jeff Greenberg of the University of Arizona; and Tom Pyszczynski of the University of Colorado at Colorado Springs.

The paper is titled “American Roulette: The Effect of Reminders of Death on Support for George W. Bush in the 2004 Presidential Election.” Commenting on the impact of the bin Laden video which appeared shortly before the 2004 elections, the authors noted that:

From a terror management perspective, the United States’ electorate was exposed to a wide-ranging multidimensional mortality salience induction.

In other words, the voters were reminded that they could be killed. Dick Cheney reiterated the message, implying that his re-election was a critical factor in preventing future terrorist attacks. The authors wrote that:

Allegiance to charismatic leaders may be one particularly effective mode of terror management. In Escape from Freedom, Eric Fromm (1941) proposed that loyalty to charismatic leaders results from a defensive need to feel a part of a larger whole, and surrendering one’s freedom to a larger-than-life leader can serve as a source of self-worth and meaning in life. Ernest Becker (The Denial of Death, 1973) posited that when mainstream worldviews are not serving people’s need for psychological security, concerns about mortality impel people to devote their psychological resources to following charismatic leaders who bolster their self-worth by making them feel that they are valued participants in a great mission to heroically triumph over evil.

Well, that’s exactly what left-wing academics would say, isn’t it? And in any case, another video from Osama bin Laden has been released, promising more attacks. Elections are coming. That should be uppermost in my mind; but for some reason, I’ve been thinking about the Constitution Restoration Act. It would forbid federal court review of certain cases decided by an element of government’s acknowledgment of God as the sovereign source of law.

The idea of criminalizing judicial review is brilliant; and I have no doubt Bush, Jr. would sign the Act if it passed. But it still requires legislators willing to vote for it — courageous men who will dismantle the antiquated system of checks and balances created by our paranoid founders. And we need judges prepared to uphold the Act, at least initially, or submit to it as the case may be — judges with a strong view of broad executive authority. That’s why I sat down to write about neo-con notions of a permanent Republican majority. It’s probably possible with electronic voting machines, but why would they wish such a thing?

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Coretta

News accounts have paid tribute to Coretta King and her husband, the Reverend Doctor Martin Luther King, Jr. On matters of great importance, however, modern American media have an irritating way of saying very little at great length. You can digest the details in the newspapers and on tv; but the photos were cropped long ago and the most important passages were deleted.

The first U.S. military intelligence files on the King family were opened in 1917. Spy operations were initiated against black social organizations and especially against black churches, which were viewed as prime sources of information about the black community. Three generations of the King family produced ministers who served the Ebenezer Baptist Church in Atlanta, Georgia. It was inevitable that they would fall under scrutiny.

In 1917, the government was concerned that the Huns would turn our colored people against us in World War I — a notion that reeks of white guilt and the suppressed recognition that the black community harbored legitimate grievances. Domestic spying continued in World War II because the Japanese might have roused our negroes. And during the Vietnam War, of course, we faced the danger of communists stirring up our blacks. When you ponder the issue of warrantless domestic surveillance today, remember that there are black Muslims; and they are very high on the list of those who must be watched.

The military intelligence file on Martin Luther King, Jr. was opened in 1947, when he was eighteen. He was considered a curiousity rather than a threat until 1957, when he attended the Highlander Folk School in Monteagle, Tennessee. He was watched ever more closely after that. When Dr. King was in New York, he was monitored by 108th Military Intelligence Group, in Los Angeles by the 115th, in Washington by the 116th, in Europe by the 66th, and so on. When he visited Memphis in March and April of 1968, his hotel room was bugged by the 902nd M.I.G. Civil rights organizations in Memphis were infiltrated by the 111th M.I.G. In April of 1968, there were at least three military operations underway in and around Memphis, Tennessee.

On April 4th, 1968 — one year to the day after his first major speech against the war in Vietnam — a joint operation involving the Memphis police, the Federal Bureau of Investigation, and the United States Army killed Dr. King.


A “lone assassin” named James Ray was duly convicted and the cover-up went into high gear. In a memo dated March 11, 1969, F.B.I. Assistant Director Cartha DeLoach wrote:

… I would like to suggest that the Director allow us to choose a friendly, capable author, or the Reader’s Digest, and proceed with a book based on this case.

A carefully written factual book would do much to preserve the true history of this case. While it will not dispel or put down future rumors, it would certainly help to have a book of this nature on college and high school library shelves so that the future would be protected.*

The F.B.I. launched a smear campaign to defame Dr. King and marginalize critics of the investigation, starting with Coretta. DeLoach suggested a friendly media contact should be told that Coretta King and Ralph Abernathy were “plotting” to garner media attention and “keep the money coming in to Mrs. King” by claiming a conspiracy was behind the assassination.

For a quarter of a century, details of the killing steadily emerged, only to be downplayed or ignored. Then, in December of 1993, on Prime Time with Sam Donaldson, Loyd Jowers confessed his role in the murder of Dr. King.

Jowers was a former policeman turned restauranteur. He once owned Jim’s Grill, on South Main Street in Memphis. The back door of Jim’s Grill opened onto a vacant lot overlooking the Lorraine Motel where King was shot. Jowers said he was paid $100,000 for his help by Memphis businessman Frank Camille Liberto. Jowers alleged the involvment of James Barger, his former partner on the force, and officer Earl Clark, a long-time friend of Jowers. Jowers also alleged the participation of Marrell McCullough, from the 111th M.I.G., working as an undercover Memphis policeman. You’ve already seen a picture of McCullough and you didn’t even know it. He’s on Andrew Young’s left in the photo above.

Although Jowers had confessed to a capital offense for which there is no statute of limitations, he was not questioned by Memphis authorities or the F.B.I. Why generate a record? Jowers was old and ill. All they had to do was wait.

But there was still Coretta King.

The King family declared that James Ray was innocent, and Coretta King asked President Clinton for a new, open inquiry into the death of her husband — a Truth Commission, modeled on the reconciliation process adopted in South Africa to heal the wounds of apartheid. Instead, the Justice Department conducted a narrow inquiry that answered no questions and attacked critics. “Shut up,” the Department explained. In some quarters, Coretta King was characterized as a pathetic figure who had fallen under the spell of conspiracy theorists. On the 30th anniversary of the assassination, The New York Times claimed falsely that Ray had admitted firing the shot which killed King. The paper bemoaned the doubtful “fact” that:

A certain awkwardness attends this year’s commemoration. The King family, which remained in Atlanta for services there, has embraced Mr. Ray’s claim of innocence and his contention that he was, at most, an unwitting tool of a conspiracy that authorities have either failed to uncover or refused to unmask… (Steve Barnes, “Young and Old, of Varied Colors, Honor Dr. King,” The New York Times, 4/5/1998)

Who would find the King family’s position awkward?

The King family filed a civil suit against Jowers, seeking $100 in damages. On December 8, 1999, Jowers was found guilty. The New York Times reported the verdict on December 9, on page A23, next to the weather and the national classified ads. The story concluded with a broad slap at the King family, the judge, the attorneys, and the jury by quoting author Gerald Posner**:

It distresses me greatly that the legal system was used in such a callous and farcical manner in Memphis. If the King family wanted a rubber stamp of their own view of the facts, they got it.

On December 10, the Times ran a second article with more psycho-babble from Posner. People “want to embrace the sweeping conspiracy theory” because “it matches the stature of the man and somehow gives even more meaning and power to his death.”

James Ray died in prison on April 23, 1998. Loyd Jowers died on May 20, 2000.

Coretta King died on January 31, 2006. Sadly, it is a measure of her importance that in the years to come, she will be intermittently and respectfully ridiculed when the subject of her husband’s murder arises.


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* The Bureau selected Gerold Frank, who wrote An American Death — the King assassination equivalent of the Warren Report on the murder of John Kennedy.
** Posner wrote Killing the Dream — the King assassination equivalent of the House Select Committee’s 1979 report on the murder of John Kennedy.