NEW SOLIDARITY

May 13, 1980 Page 8

Carl Schmitt Crown Jurist of Hitler's Germany and Carter's U.S.

by Barbara Boyd

The Reichstag fire that created the "emergency conditions" for Hitler's seizure of power: Said Schmitt: "The use of language is so far gone today that the legal is experienced only as something formal. Today, one can say of the Reichstag being dissolved that it is 'strictly legal' and yet in reality it is a coup d'etat." To Schmitt, Hitler embodied his concept of the "political" which can legally use the state and its agencies, including the courts, to vanquish the foe "whether real or imaginary."

The Federal Emergency Management Agency (FEMA), an extraconstitutional agency created by order of President Jimmy Carter, is in the process of assuming dictatorial control of the U.S. economy under manufactured "emergency" conditions. Anyone familiar with German Nazi legal history will recognize that the British oligarchists are repeating the same tricks they

used in designing the fascist legal coup d'etat of 1933this time in the United States. The hidden political agenda for Weimar Germany consisted of brainwashing the population to believe that hyperinflationary economic collapse, like that experienced by the United States today, could be solved with Reichsbank chairman Hjalmar Schacht's policies of zero technological growththe cannibalizing of the nation's human and industrial resources. The Nazi seizure of power was a "legal coup d'etat" engineered through the phony Reichstag fire that gave the Nazis an "emergency condition." The legal engineer for this project was Carl Schmitt, who for his labors in successively legally enacting each stage of German fascism, earned himself the title "Crown Jurist of the Third Reich." The "legal" character of all of Schmitt's doublespeak was more than adequately exposed in 1934, the year after Hitler took power, by Joseph Goebbels: We were not legal in order to be legal but in order to gain the possibility of acting illegally. "The Crown Jurist" Carl Schmitt's "legal" philosophy had three phases, replicating in toto the three stages of the Nazi economic and military machine. Schmitt was the ideologue and legal technician for the Nazi seizure of power based upon the "ungovernability" of democracies in emergency conditions. Precisely the same argument is put forward by Samuel Huntington, author of the Presidential Review Memorandum 32 that created FEMA. For the purpose of strengthening the Nazis in power, Schmitt rewrote the German penal code to allow for the final solution against all those defined as "useless eaters." Schmitt's final legal theory was developed as the weapon to mobilize a degraded and broken population for war against the Soviet Union the Volkgemeinshaft theory of the state. It is here that he returned to the "communal natural law" theories of Max Weber and Otto Gierke, that provided the theoretical underpinnings of the Weimar Constitution and were at the center of Hitler's Nazi ideology. According to this theory, all law exists in folk and ethnic groups, "self-determining' through concrete orders their future biological conditions of existence. As will be shown by Schmitt's biography, it is hardly accidental that Schmitt's Volkgemeinshaft theories are the basis of the Carter administra-

tion's concept of "limited sovereignty" used today in subversion operations against the Soviet Union and Third World and Arab nations. During the critical 1919-1927 period of the Weimar Republic, Carl Schmitt was successively a member of the Communist Party, the Social Democratic Party, the Democratic Party, the Catholic Centrist Party, the Centrist Party, the Nationalist Party, and finally the National Socialist Party. It is unlikely that these transformations represent a search for a political identity; Schmitt's career would rather indicate that he was carrying out profiling assignments. From his professorship in Jurisprudence at the University of Berlin, Schmitt was said to have influenced every law student then matriculating in Germany. Included among his most avid students were Herbert Marcuse, Franz Neumann, and Otto Kirchheimer. These three students, along with Theodore Adorno, first used the Frankfurt School and then Columbia University's Institute of Social Research as their base to create the counterculture in the United Statesa "culture" which derives its ideology from Schmitt's Volkgemeinshaft theory of the state. Zbigniew Brzezinski's mentor, the historian C. J. Friedrich, is also a dedicated Schmitt epigone. Schmitt, like the engineer of Nazi economics Hjalmar Schacht escaped punishment at Nuremberg, probably as the result of British intervention. Schmitt, in fact, was not even mentioned at Nuremberg, despite his authorship of the "penal provisions" that resulted in the murder of millions. Schacht found postwar employment in Egypt, repeating his brutal austerity German experiments for the International Monetary Fund against Third World nations. Schmitt retired peacefully to Plettenburg, where he was still writing on problems of international law in 1970 and serving as an adviser to Third World dictatorships. The Law of the Extraordinary Condition Carl Schmitt began his career in 1926 with the publication of the Concept of the Political, in which he laid the groundwork among political scientists, lawyers, and jurists for the Nazi ascension to power. As is typical of all psychological warfare projects, Schmitt's work is not original but is geared toward synthesizing various philosophies to manipulate the profiled weaknesses of the target population. In his book, The Concept of the Political, Schmitt sets out to prove that the ideals considered to be unique to democracy can be retained and brought to a

higher order of existence in a totalitarian system. He utilizes the radical democratic constitution of Weimar Germany as his straw man. The Weimar Constitution was nothing but a veil for compromises among capitalist interests and big business, and a parliamentary government only that represented the "partial will" of the people, according to Schmitt. The essence of democracy is the identity between the ruler and the ruled and the substance of democracy is not freedom but equality. In the emergency economic conditions then determining Germany's existence, Schmitt argues, the myths of parliamentary democracy have resulted in the total inability of the government to respond to crisisexcept through the decree powers of Article 48. Article 48 allowed the Reichpresident to dissolve all constitutional guarantees under "emergency conditions." The existence of Article 48 and its relentless use by German presidents mean, contends Schmitt, that there are in reality two constitutionsone geared to the reality of the emergency condition, and the old pluralistic Weimar Constitution. Democracy, precisely because it is ineffective, degrades the essence, and destroys any possibility of a national purpose. What is needed is a superior category of "equality" and "identity between the ruler and the ruled," and such a category will preserve the ''ideals" of democracy while allowing for the survival of the German nation. Schmitt plagiarizes liberally from the "power" mythologies of Hobbes, Nietzsche, Sorel, and Weber to ideologically dress up the dull biological determinism which otherwise lurks as the justification for his next set of conclusions. The fundamental question for any state and therefore any people is its existence. Therefore, in a fit of academic sophistry, Schmitt invents the concept of the "political" as the category determining this reality. The "political" is the relationship between the friend and the foe, since the fundamental presumption of all human acts, and thus the acts of the state, is the possibility of conflict, of war for survival at any moment. The foe is the stranger, the outsider with whom it is possible to come into conflict. Successful politics and heroic states are those which successfully vanquish the foe. It is only in a condition of war that the relationship between reality and epistemology for any nation can be tested, and it is only in the "extraordinary" condition that the concept of the "political" comes fully into force.

Schmitt utilizes these paranoid tautologies and the "warrior" motif, otherwise utilized consistently in post-World War I British psychological warfare, to argue that there are two conditions of law flowing from his concept of the political. In the "ordinary" condition of peace, the norms of constitutional law and the common law flowing from it are perfectly applicable. In the "extraordinary condition" in which battle with the foe is building or about to take place, the "decisionism" of the heroic sovereign must replace these static rules regardless of previous "legal" conditions. In the "extraordinary" condition, democracy alienates the possibility of the ''equally well-bred' condition of the ruler and the ruled vanquishing the foe by its insistence on the partially informed will of the majority of the people. Its static laws and norms are impotent in response to the "extraordinary" condition. Put another way by Schmitt in his subsequent polemic against Weimar called Leglitatat and Legitimitat: I hold Otto Kirchheimer's formulation of the theory about legality and legitimacy as correct where he says that the legitimacy of parliamentary democracy only consists of its legality and that today obviously the legal barrier is identified with legitimacy. The use of language is so far gone today that the legal is experienced as something only formal. Today, one can, without experiencing any refutation, say of the Reichstag being dissolved that it is "strictly legal" and yet in reality it is a coup d'etat. The Making of the Totalitarian State Hitler, of course, assumed power in 1933 through the use of Article 48 following the Reichstag fire incident. All constitutional guarantees of freedom were banished, and all legislative power was placed in the cabinet. However, much more was necessary to break the German population. With Hjalmar Schacht in the process of creating the most efficient economic cannibalization project in world history as economics minister, Schmitt proposed the theory of "qualitative" totalitarianism as its correspondent political system. To do this, he simply inserted new terms into the conceptual outline introduced in the Concept of the Politicalthe Fuehrer is now the "political" and uses the state and its agencies, including the courts,

to vanquish the foe. All power resides in the will of the sovereign who, in turn, expresses the will of the people.

Schmitt consolidated the Nazi rule with the creation of people's courts, which superseded the authority of the constitutionally mandated judiciary, and from which there was no appeal.

Qualitative totalitarianism regulates the "concrete" situation in two ways according to Schmitt. First, through a strong authoritarian state structure it rids the state of enemies and crushes the pluralistic and heteronomic forces which prevent a wartime mobilization against the foe. Second, it distinguishes itself from quantitative totalitarianism by providing for the continued existence of laissez-faire capitalism. This is the same bill of goods being sold to American free-enterprisers today who believe the magical invocation of such words means they have some control over the actual economic situation. The implementation of ''qualitative totalitarianism" did not come by a singleact fiat by Hitler. In the early years, the regime was not yet strong enough, externally or internally, to take such direct measures. The Nazi government resorted to methods outside the legal process, methods which would act to totally subvert that process. Schmitt chose two mechanisms to consolidate the dictatorshipthe reorganization of the judiciary and the substantive rewriting of the German penal code.

The target of the sweeping reorganization of the judicial system by decree in the 1933-1934 period was the recalcitrant independence of the German judiciary, which, for example, acquitted the Reichstag fire defendants in 1934. Through these decrees, a system of extraordinary courts was created with exclusive jurisdiction over all national security, military, and public welfare issues-issues that existed in the realm of the "political". There was no appeal from these courts. No regular judge would ever again hear the central constitutional issues of the German nation. The new penal code, written by Schmitt, became the system of organized terror for which the special courts sat as the silent administrators. Schmitt termed his innovation the "volitional" theory of law.

"Once conscience becomes a problem of cattle breeding, moral problems lose their inescapability," the quality that Schmitt said made his legal system superior.

According to this doctrine "liberal law" distinguishes between law and morality and therefore abrogates its responsibility to the "political." The efficacy of all law is "war measures to be rid of the enemy," Schmitt states, and in the Nazi state there will be no distinction between criminal intent to commit crimes and objective acts of crime itself. Therefore, any act which if consummated would lead to a crime against the Reich, is punishable by law. In this first reformulation of the penal code, the field for the application of treason and high treason was vastly enlarged by investing the most preparatory and auxiliary acts with the character of treason. The range of application of the death penalty, in the past restricted to certain cases of homicide, was greatly expanded.

More significant, however, is the brainwashing directed at the German judiciary and population by the application of the new code. For example, judges with the Reich Ministry of Justice, with the SS standing over them, were expected to apply the following provision: Whoever commits an act which the law declares as punishable or which deserves punishment according to the sound sentiment of the people . . . shall be punished. If no specific penal law can be applied to this act, then it shall be punished according to the law whose underlying spirit can be most readily applied to the act. It is obvious then, that Schmitt's reforms are not "law" in any sense, but naked terror and brainwashing. There are no ruling norms, no societal definitions by which to judge human actions. The identification of "law and morality" was put forward as Schachtian economics and legal terror degraded both to the most primitive and savage condition. Herman Heller, a German historian, commented on Schmitt and Hitler's trumpeting of the "superiority" of their legal system by stating: "Once conscience becomes a problem of cattle breeding, moral problems lose their inescapability." The volitional theory of law was appropriately named as the method for totally breaking the will of the German population. Volkgemeinshaft Theory The Final Stage of Brainwashing It is a tribute to the psychological resistance of the German nation that it took the horrors of the radical Weimar Democracy, the Nazi ascension to power, and the brutal extermination policies of the totalitarian state, to finally pave the way for the legal implementation of Hitler's full ideology the Volkgemeinshaft state or fascism freely and "democratically" accepted by the population. The necessities of such a transition were posed by the economic requirements for war against the Soviet Union as Schachtian economics had totally depleted the German economy. It is obviously impossible to mobilize a nation for war under the principle of naked repression existing in the totalitarian system. Volkgemeinshaft legal theory as expounded by Carl Schmitt is based on what he calls "communal natural law" principles. In reality, Volkgemeinshaft theory is the perfection of what psychological warfare experts term the "leaderless group" psychologically broken human populations "democrat-

ically" brainwashing themselves into the depths of further degradation on behalf of an already internalized irrational psychological master. In Schmitt's articulation of this principle, the only universal principle of law is the "law" of the communities, of the specific folk and ethnic groups which exist in various populations and which think in "concrete" orders regarding the future reproduction of their biological existence. Among such ethnic groups, there exist among individuals harmonious ordering principles based on nature. Law therefore originates and takes its form from the spontaneous impulses of the members of the community. Communal natural law rejects Reason, if Reason questions the legitimacy of those biological instincts, upon whose sanction communal law is based. The validity of communal law is limited to the persons under it. The communal consciousness to which it owes its existence emerges only in the course of differentiation from other communities, in the course of war with the foe. The state is merely the superficial form of the essential unity of all Volksgenossen (ethnic comrades) and therefore an organic phenomenon derived from the biological ethnic community. It is the Nazi state apparatus, however, which under communal natural law decides what a community is, since this is a decision only appropriate for the "political." Therefore all communities are actually controlled by it. Schmitt could not have been more explicit about the intent of this construct as a war mobilization tool. If communally oriented attitudes are intensified by the existence of an actual or imagined enemy, then the preservation of the ethnic community is favored by the existence of an enemy whose hostility endures as long as the ethnic community itself. It does not matter whether the enemy is real or imaginary. . . The continuous existence of an enemy is a substitute for a rational goal. War is the source of everything. The form of the state as a whole is determined by the nature of total war; . . . the total war however obtains its meaning from the total enemy. To meet the exigencies of his new definition of political reality. Schmitt once again reformed the "Penal law," calling his new code the "phenomenological school of law." According to this theory every criminal

has a concrete personality. A thief may not have ever committed a theft, but there is in existence a whole class of people with "thieflike" personalities. The judge is to make decisions on all persons rounded up and brought before him on the basis of his "intuition" of the person's "concrete personality" and the intuition of the judgment of the people and the Fuehrer on such a personality in each particular case. Volkgemeinshaft theory also formed the basis for Schmitt's writings on international law, which were used to justify the Nazi invasions of Poland and Eastern Europe. Each folk group finds its principal international rights in the right of living space, lebensraum and self-determination. The Versailles Treaty had violated the German right to living space. Furthermore, the treaty had erected false state boundaries on the habitats of various folk groups. Since individuals find their identity by participation in the identity of their ethnic group, these boundaries destroy the basis for human rights and freedom. Because Germany represented the superior ethnic group, having earned that distinction by its ability to vanquish the foe, Germany benevolently had the responsibility for establishing the conditions by which other folk groups could participate in their "primeval folk essence." This theory of limited sovereignty, has flowered to unlimited application in U.S. foreign policy today with the Carter administration's attitude toward the "folk identity" of the barbarous Khomeini dictatorship as one example. To date, the imposition of Schachtian economics and accompanying forms of satanic cults in the United States has not required such Herculean linguistic labors as those embodied in the career of Carl Schmitt. Consider, for example, the fact that as of this date, all U.S. federal judges have been systematically schooled in Schachtian economics by Milton Friedman, a man who professes his admiration for the Nazi economics minister. The excuse for this brainwashing was the alleged fact that no U.S. judge understood the complexities of economic litigation before them under conditions of economic collapse. Friedman's sessions with the guardians of the U.S. Constitution were therefore organized by the American Bar Association. Is it necessary, then to invent a "volitional theory of law" to undermine the "independence" of the judiciary? Consider also that there are presently pending before Congress two bills which compound the Orwellian fascism inherent in the existence of FEMA.

Senate Bill 1722, the reform of the U.S. criminal code, decriminalizes marijuana use, sexual abuse, sodomy, and any other area of "individual freedom" to destroy the human mind. Is systematic terror necessary in a society that encourages menticide or "right to die" euthanasia? Another measure now before the Senate establishes special national security courts to deal with all issues that might arise from the imposition of the security interests of the United States, including the use of political intelligence agencies against American citizens. In light of the legal history of Nazi Germany, the United States has little time to tolerate the 'dual' constitutional situation implied by the existence and activities of the Federal Emergency Management Agency. How long do you think it will be before the "emergency" situation you are tolerating forms the basis for the actual consolidation of a fascist state? Fascism in Germany was a step-by-step process of the gutting of democratic institutions, precisely as is now occurring in the United States.