Is the State of Emergency Superseding our Constitution?

In July 1987, during the Iran-Contra Hearings grilling of Oliver North, the American public got a glimpse of “highly sensitive” emergency planning North had been involved in. Ostensibly North had been handling plans for an emergency response to a nuclear attack (a legitimate concern). But press accounts alleged that the planning was for a more generalized suspension of the constitution at the president’s determination.

 As part of its routine Iran-contra coverage, the following exchange was printed in the New York Times, but without journalistic comment or follow-up:

 [Congressman Jack] Brooks: Colonel North, in your work at the N.S.C. were you not assigned, at one time, to work on plans for the continuity of government in the event of a major disaster? 

Both North’s attorney and Sen. Daniel Inouye, the Democratic Chair of the Committee, responded in a way that showed they were aware of the issue: 

Brendan Sullivan [North's counsel, agitatedly]: Mr. Chairman?

[Senator Daniel] Inouye: I believe that question touches upon a highly sensitive and classified area so may I request that you not touch upon that?

Brooks: I was particularly concerned, Mr. Chairman, because I read in Miami papers, and several others, that there had been a plan developed, by that same agency, a contingency plan in the event of emergency, that would suspend the American constitution. And I was deeply concerned about it and wondered if that was an area in which he had worked. I believe that it was and I wanted to get his confirmation.

Inouye: May I most respectfully request that that matter not be touched upon at this stage. If we wish to get into this, I'm certain arrangements can be made for an executive session.[1]

Brooks was responding to a story by Alfonzo Chardy in the Miami Herald. about Oliver North’s involvement with the Federal Emergency Management Agency (FEMA) in planning for “Continuity of Government” (COG). According to Chardy, the plans envisaged “suspension of the Constitution, turning control of the government over to the Federal Emergency Management Agency, emergency appointment of military commanders to run state and local governments and declaration of martial law during a national crisis.”[2]

Reagan had installed at FEMA a counterinsurgency team that he had already assembled as governor of California. The team was headed by Army Col. Louis Giuffrida, who had attracted Reagan’s attention by a paper he had written while at the US Army War College, advocating the forcible warrantless detention of millions of black Americans in concentration camps.“ Reagan first installed Giuffrida as head of the California National Guard, and called on him “to design Operation Cable Splicer. … martial law plans to legitimize the arrest and detention of anti-Vietnam war activists and other political dissidents.”[3] 

These plans were refined with the assistance of British counterinsurgency expert Sir Robert Thompson, who had used massive detention and deportations to deal with the 1950s Communist insurgency in what is now Malaysia.

At the time few people (including myself) attached much importance to the Chardy story about COG. Chardy himself suggested that Reagan’s Attorney General, William French Smith, had intervened to stop the COG plan from being presented to the President, and in 1985 Giuffrida was forced out of office for having spent government money to build a private residence. But COG planning not only continued, it expanded. 

Seven years later, in 1994, Tim Weiner reported in the New York Times that what he called “The Doomsday Project” – the search for “ways to keep the Government running after a sustained nuclear attack on Washington” –had “less than six months to live.”[4] 

Weiner’s language was technically correct, but also very misleading. In fact COG planning now simply continued with a new target, terrorism. On the basis of Weiner’s article, the first two books to discuss COG planning, by James Bamford and James Mann, both reported that COG planning had been abandoned.[5] Recently Tim Shorrock in 2008 repeated that “the COG program was abandoned during the Clinton administration,” and Shirley Anne Warshaw in 2009 wrote that “the Clinton administration… shut down the super-secret Project.”[6] But on this narrow point, all these otherwise excellent and well-informed authors were wrong.

What Weiner and these authors did not report was that in the final months of Reagan’s presidency the purpose of COG planning had officially changed: it was no longer for arrangements “after a nuclear war,” but for any "national security emergency." This was defined in Executive Order 12656 of 1988 as: “any occurrence, including natural disaster, military attack, technological emergency, or other emergency, that seriously degrades or seriously threatens the national security of the United States.”[7] In this way a totally legitimate program dating back to Eisenhower, of planning extraordinary emergency measures for an America devastated in a nuclear attack, was now converted to confer equivalent secret powers on the White House, for anything it considered an emergency.

This expanded application of COG was apparently envisaged as early as 1984, when, according to Boston Globe reporter Ross Gelbspan,

Lt. Col. Oliver North was working with officials of the Federal Emergency Management Agency . . . to draw up a secret contingency plan to surveil political dissenters and to arrange for the detention of hundreds of thousands of undocumented aliens in case of an unspecified national emergency. The plan, part of which was codenamed Rex 84, called for the suspension of the Constitution under a number of scenarios, including a U.S. invasion of Nicaragua.[8]

In other words, extreme measures, designed originally to deal with an externally directed and devastating nuclear attack, were being secretly modified by a non-governmental group to deal with domestic dissenters: a situation that still pertains today.[9]


The Implementation of COG on 9/11

Clearly 9/11 met the conditions for the implementation of COG measures, and we know for certain that COG plans were implemented on that day in 2001, before the last plane had crashed in Pennsylvania. The 9/11 Report confirms this twice, on pages 38 and 326.[10]It was under the auspices of COG that Bush stayed out of Washington on that day, and other government leaders like Paul Wolfowitz were swiftly evacuated to Site R, inside a hollowed out mountain near Camp David.[11]

But the implementation of COG went beyond short-term responses, to the installation of what Professor Shirley Anne Warshaw calls a ninety-day alternative “shadow government” outside Washington.

Cheney jumped into action in his bunker beneath the east Wing to ensure continuity in government. He immediately began to create his shadow government by ordering one hundred mid-level executive officials to move to specially designated underground bunkers and stay there twenty-four hours a day.

They would not be rotated out, he informed them, for ninety days, since there was evidence, he hinted, that the terrorist organization al-Qa’ida, which had masterminded the attack, had nuclear weapons. The shadow government, as a result, needed to be ready to take over the government from the bunkers.[12] 

These ninety days saw the swift implementation of the key features attributed to COG planning by Gelbspan and Chardy in the 1980s: warrantless detentions, warrantless deportations, and the warrantless eavesdropping that is their logical counterpart. The clearest example was the administration’s Project Endgame -- a ten-year plan, initiated in September 2001, to expand detention camps, at a cost of $400 million in Fiscal Year 2007 alone.[13] This implemented the central feature of the massive detention exercise, Rex 84, conducted by Louis Giuffrida and Oliver North in 1984.[14]

There was also a flurry of other rapid moves to restructure America’s external and domestic structures – so many that today I can mention only a few. Before doing so I should acknowledge the obvious: that enhanced measures to deal with terrorism are needed, and for some of them we should all be grateful. We should acknowledge also, however, that the most significant achievements against terrorism have been the result of traditional intelligence and police work. As for the War on Terror, the most prominent achievement of Cheney’s ninety days, many experts have asserted that it has created far more terrorists than it has disposed of.

On September 20, 2001, Bush launched the war on terror in a televised address to a joint session of congress, when he said, "Our 'war on terror' begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated." Today we now have about 100,000 US troops in Afghanistan, to deal with an officially estimated 60 members of Al Qaeda. The predictable result has been an expansion of terrorist activities in Somalia, Yemen, and above all Pakistan.

The war on terror was administratively implemented in three National Security Presidential Directives, NSPDs 7, 8, and 9. All three are classified, and the topics of two of them are unknown. The third, NSPD 9 of October 25, 2001, directed the Secretary of Defense to plan military options against both Taliban and al Qaeda targets in Afghanistan.[15]

The October date is misleading. A version of the directive calling for covert action in Afghanistan had been approved by principals on September 4, 2001, one week before 9/11.[16] An enhanced plan for military action in Afghanistan, had been approved by Bush on September 17; and the same document “directed the Pentagon to begin planning military options for an invasion of Iraq.”[17]

Perhaps the most significant domestic product from Cheney’s trimester mirabilis was the Patriot Act of October 25, 2001. Congress was given only one week to pass this 340-page bill, which in the opinion of researchers “was already written and ready to go long before September 11th.”[18] In 2007 the Justice Department acknowledged that FBI agents had abused the Patriot Act more than 1000 times.

We should not forget that the Patriot Act was only passed after lethal weapons-grade anthrax letters were mailed to two crucial Democratic Senators  – Senators Daschle and Leahy – who had initially questioned the bill. After the anthrax letters, however, they withdrew their initial opposition.[19] Someone -- we still do not know who – must have planned those anthrax letters well in advance.[20] This is a fact most Americans do not want to think about.

It is generally agreed that, of the three men in National Command Authority on 9/11, Cheney was the ideologue most committed to restoring a presidency that had been weakened by Watergate.[21] Cheney had already declared in his Iran-Contra Minority Report of 1987 his belief that “the Chief Executive will on occasion feel duty bound to assert monarchical notions of prerogative that will permit him to exceed the law.”[22] And as Vice-President Cheney, along with Cheney’s assistant David Addington and Cheney’s appointee John Yoo, established the legal apparatus for declaring that the President had the prerogative power to “deploy military forces preemptively,” and that “the Geneva Conventions and other international agreements against torture ‘do not protect members of the al Qaeda organization.”[23]

By Executive Order 13228 of October 8, 2001, the President established an Office of Homeland Security within the presidential Executive Office. This has engendered in turn the DHS, now the third largest US Cabinet Department, and also a series of Homeland Security Presidential Directives. For example Homeland Security Presidential Directive-6 (HSPD-6) of September 16, 2003, created a Terrorism Screening Center (TSC), to “consolidate the Government’s approach to terrorism screening.”[24]

Since then we have become inured to repeated stories about nonviolent individuals who are prevented from boarding airplanes, because their names are in TSC computers on the No Fly List and the Terrorist Watch List. Senator Ted Kennedy testified in Congress that he had been repeatedly delayed at airports because a “T Kennedy” was on the No Fly List. Until July 2008, Nelson Mandela was also on the list. CBC News in Canada reported in 2008 that “A Quebec businessman whose name is … on the U.S. Department of Homeland Security's flight passenger watch list has decided to change his name to avoid lengthy security hassles at the airport.”[25]

In addition to the No Fly List, with 4000 names in 2009 and 8000 today, some people are prevented from flying because they are on the Terrorist Watch List, a much longer list which contained over one million names as of summer 2010. This is why Walter F. Murphy, a noted professor of constitutional law, was detained in 2007 on his journey to lecture, ironically, about his book Constitutional Democracy. According to Professor Murphy, he was asked by an airline employee,

"Have you been in any peace marches? We ban a lot of people from flying because of that" ….”I explained," said Murphy, "that I had not so marched but had, in September 2006, given a lecture at Princeton, televised and put on the web, highly critical of George Bush for his many violations of the constitution." "That'll do it," the man said.[26]

In the end these cases were resolved satisfactorily. But you risk permanent deportation if you have an Arabic-sounding name. The ACLU is suing on behalf of Ayman Latif, not just a U.S. citizen but a disabled U.S. Marine veteran, who under Obama has been stranded in Egypt for months, because, on orders from the U.S. Embassy, he has not been able to board a plane to come home.

This is a real hardship case: Latif told NPR that “because I missed my appointments in the U.S. to be evaluated [as a disabled vet], now the VA administration is saying that they're going to cut my benefits from what they are now to zero.” On the same program Stewart Baker, a former assistant secretary for policy with the Department of Homeland Security, vigorously defended the No Fly List. But when asked if there is “any legal authority by which the United States can say to a citizen who is abroad, you may not return to this country?” Baker replied, “I know of none.”[27] This did not seem to concern him.

Ayman Latif’s case is far from unique. According to the New York Times,  

Advocacy groups say they are trying to help Americans stranded in Yemen, Egypt, Colombia and Croatia, among other countries. At least one American, Raymond Earl Knaeble IV, who studied in Yemen and is now in Colombia, was returned to Colombia by the Mexican authorities after he sought to cross the border into the United States, the groups say.[28]


The Militarization of American Law Enforcement

Another post-9/11 innovation from the Giuffrida-Oliver North COG plans was the militarization of domestic United States law enforcement in 2002, under a new military command, NORTHCOM.[29]  Through NORTHCOM the U.S. Army now is engaged with local enforcement in the surveillance and counter-terrorism planning of America, in the same way that through CENTCOM it is engaged with local enforcement to police Iraq. Of course army platoons do not patrol roads and break down the doors of homes, as they do in Iraq or Afghanistan. But behind the scenes, in so-called fusion centers, the military, the FBI, state police, along with private intelligence corporations like SAIC, maintain and analyze data to identify potential threats to those in power.[30]

These fusion centers “have been internally promoted by the US Army as means to avoid restrictions preventing the military from spying on the domestic population.”[31] In other words, administrative arrangements have been used to fulfill Giuffrida’s plans of circumventing the Posse Comitatus Acts on the statute books, without repealing them.


The Proclamation of Permanent Emergencies

Finally, still in the 90-day “shadow government” period after 9/11, President Bush proclaimed two important emergencies that are still in force today.

1) On September 14, 2001, Bush issued Proclamation 7463 (“Declaration of National Emergency by Reason of Certain Terrorist Attacks”) together with Executive Order 13223 (“Ordering the Ready Reserve of the Armed Forces To Active Duty”). As we shall see, the terms of this proclamation were significantly expanded when it was renewed in 2007.

 2) “On September 23, 2001, by Executive Order 13224, the President declared a national emergency with respect to persons who commit, threaten to commit, or support terrorism, pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701-1706).”[32] This gave the president the power to confiscate without trial or warning the property of individuals providing funds to entities, such as charitable foundations, which were judged to be supporting terrorism. The Executive Order initially blocked property of twenty-seven designated terrorists. But the list has become enormous. When I last looked at it, on November 18, 2010, the list included 87 pages just for the letter A.

A lawsuit has been instituted, asserting that the designation of alleged terrorists was arbitrary; and a lower court agreed that the president's designation authority is unconstitutionally vague.[33] The case is under appeal.


Cheney and Rumsfeld on the Secret Committee to Plan COG

From its beginning in 1982, two of the key planners on the secret COG planning committee were Dick Cheney and Donald Rumsfeld, the same two men who implemented COG on 9/11.[34] The committee had been established by Reagan under a secret executive order (NSDD 55 of September 14, 1982). Despite what Weiner implied, the committee continued to meet without interruption until the George W. Bush presidency in 2001.[35] 

Thus Cheney and Rumsfeld continued their secret planning when Clinton was president; even after both men, both Republicans, were by that time heads of major corporations and not in the government. Moreover, Andrew Cockburn claims that the Clinton administration, according to a Pentagon source, had “no idea what was going on.”

Although the exercises continued, still budgeted at over $200 million a year in the Clinton era, the vanished Soviets were now replaced by terrorists. . . . There were other changes, too. In earlier times the specialists selected to run the “shadow government” had been drawn from across the political spectrum, Democrats and Republicans alike. But now, down in the bunkers, Rumsfeld found himself in politically congenial company, the players’ roster being filled almost exclusively with Republican hawks. . . .“You could say this was a secret government-in-waiting. The Clinton administration was extraordinarily inattentive, [they had] no idea what was going on.”[36]  

Cockburn’s account requires some qualification. Richard Clarke, a Clinton Democrat, makes it clear that he participated in the COG games in the 1990s and indeed drafted Clinton’s Presidential Decision Directive (PDD) 67 on “Enduring Constitutional Government and Continuity of Government.”[37] But COG planning involved different teams for different purposes. It is quite possible that the Pentagon official was describing the Department of Defense team dealing with retaliation. 

It is important to understand that the COG “Doomsday Project” in the 1980s involved more than planning and exercises. It also oversaw “Project 908,” the construction of a multibillion infrastructure for an alternative government. The key element of this was an $8 billion communications and logistics program headquartered at Fort Huachuca, Arizona, the headquarters for Army Intelligence.[38]

Project 908 attracted the attention of Steve Emerson and other journalists in 1989, when it was revealed that there had been huge cost overruns, double billing for the same work, and eventually destruction of many key contracts documents in the course of an Army investigation. The son of the Army general overseeing the project, former Congressman Rick Renzi, was eventually indicted in 2008 on related charges of extortion, fraud, money laundering and other crimes.[39]

But despite initial failures in the communications network, it was ready to be put into operation and utilized on September 11, 2001 by Vice-President Cheney.[40] Key commands, including the implementation of COG itself, appear to have been made over this highest-classification security network.[41

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