PEADS Part 2 Sept. 3, 2022

 

In 2004, high-rank­ing staffers in the George W. Bush admin­is­tra­tion spear­headed a holistic review of the pres­id­ent’s emer­gency powers. Their goal was to refresh a set of secret plans known as “pres­id­en­tial emer­gency action docu­ments,” or PEADs, the continu­ity-of-govern­ment play­book that emerged under Pres­id­ent Dwight Eisen­hower as a response to the threat of nuclear war.

Those docu­ments had been revised previ­ously, but they took on new signi­fic­ance in the wake of 9/11. Their review was, as one Bush offi­cial saw it, an “urgent and compel­ling secur­ity effort, espe­cially in light of ongo­ing threats.”

Watchman comment: Well, look at the paragraph below. There are 6,000 pages of classified documents in the George W. Bush Presidential Library! I wonder who guards them? 

 

In response to Free­dom of Inform­a­tion Act requests, the George W. Bush Pres­id­en­tial Library turned over to the Bren­nan Center more than 500 pages gener­ated during this review and subsequent reviews in 2006 and 2008. (Another 6,000 pages were with­held in full because they are clas­si­fied.) The released records shed troub­ling new light on the powers that modern pres­id­ents claim they possess in moments of crisis — powers that appear to lack over­sight from Congress, the courts, or the public.

Origins

Faced with the possib­il­ity of a Soviet nuclear strike, mid- to late-20th-century pres­id­ents craf­ted a collec­tion of pre-planned emer­gency actions. Although none has ever been leaked, declas­si­fied, or deployed, we know that some early drafts rested on broad claims to inher­ent exec­ut­ive power. Offi­cial reports from the 1960s indic­ate that vari­ous PEADs author­ized the pres­id­ent to suspend habeas corpus, detain “danger­ous persons” within the United States, censor news media, and prevent inter­na­tional travel. (The Bren­nan Center’s repos­it­ory of related mater­i­als, span­ning the admin­is­tra­tions of 12 pres­id­ents, can be found here.) 

Beyond that period, however, our know­ledge of PEADs’ content fades. We have been left to wonder whether exist­ing docu­ments still green-light the viol­a­tion of Amer­ic­ans’ consti­tu­tional rights and civil liber­ties, or if modern sens­ib­il­it­ies and under­stand­ings of the law have moder­ated their approach.

Equipped with the latest tranche of pres­id­en­tial records, we now know that at least some of the most disturb­ing aspects of early–­Cold War emer­gency action docu­ments persisted as of 2008. Although the library with­held almost all substant­ive inform­a­tion about the PEADs under review, we have been able to recon­struct the broad contours of several of them.

Controlling commu­nic­a­tions

At least one of the docu­ments under review was designed to imple­ment the emer­gency author­it­ies contained in Section 706 of the Commu­nic­a­tions Act. During World War II, Congress gran­ted the pres­id­ent author­ity to shut down or seize control of “any facil­ity or station for wire commu­nic­a­tion” upon proclam­a­tion “that there exists a state or threat of war involving the United States.”

This fright­en­ingly expans­ive language was, at the time, hemmed in by Amer­ic­ans’ limited use of tele­phone calls and tele­grams. Today, however, a pres­id­ent will­ing to test the limits of his or her author­ity might inter­pret “wire commu­nic­a­tions” to encom­pass the inter­net — and there­fore claim a “kill switch” over vast swaths of elec­tronic commu­nic­a­tion.

And indeed, Bush admin­is­tra­tion offi­cials repeatedly high­lighted the stat­ute’s flex­ib­il­ity: it was “very broad,” as one offi­cial in the National Secur­ity Coun­cil scribbled, and it exten­ded “broader than common carri­ers in FCC [Federal Commu­nic­a­tions Commis­sion] juris[diction].”

Source: George W. Bush Pres­id­en­tial Library

Source: George W. Bush Pres­id­en­tial Library

Previ­ously, it was a matter of spec­u­la­tion as to whether any emer­gency action docu­ments purpor­ted to imple­ment this author­ity. But Bush offi­cials evid­ently examined at least one such docu­ment as part of their review, a Commu­nic­a­tions Act PEAD that appears to have pred­ated the admin­is­tra­tion. And the librar­y’s records suggest that the admin­is­tra­tion added three more docu­ments on the same subject.

Source: George W. Bush Pres­id­en­tial Library

Deten­tion author­ity

The records indic­ate that at least one pres­id­en­tial emer­gency action docu­ment pertained to the suspen­sion of habeas corpus. An internal memor­andum from June 2008 specified that a docu­ment under the Justice Depart­ment’s juris­dic­tion was “[s]till being revised by OLC [Office of Legal Coun­sel], in light of recent Supreme Court opin­ion.” Examin­ing the Court’s rulings over the previ­ous months, it is evid­ent that this must refer to the land­mark decision in Boumediene v. Bush, which recog­nized Guantanamo Bay pris­on­ers’ consti­tu­tional right to chal­lenge their deten­tion in court. This strongly suggests that the early–­Cold War PEADs purport­ing to suspend habeas corpus had survived, at least in some form, and were part of the Bush admin­is­tra­tion’s review. 

The result of the admin­is­tra­tion’s post-Boumediene revi­sion is unknown. Signi­fic­antly, though, it does­n’t appear that any emer­gency action docu­ments were with­drawn or cancelled. To the contrary, eight PEADs were added, bring­ing the total number to 56.

Source: George W. Bush Pres­id­en­tial Library

Inhib­it­ing the right to travel

Restrict­ing the use of U.S. pass­ports — a repor­ted feature of some early pres­id­en­tial emer­gency action docu­ments — remained on the table as of 2008. Records gener­ated by the Bush admin­is­tra­tion’s review high­lighted a provi­sion of law from 1978 that allows the govern­ment to curtail inter­na­tional move­ment based on “war,” “armed hostil­it­ies,” or “immin­ent danger to the public health or the phys­ical safety of United States trav­el­lers.”

Although pres­id­ents have used this stat­ute to ban travel to Lebanon, Iraq, Libya, and North Korea, a more sweep­ing abrog­a­tion of the right to travel would repres­ent a stark break from modern histor­ical prac­tice.

Source: George W. Bush Pres­id­en­tial Library

Trig­ger­ing other emer­gency powers

       Source: George W. Bush Pres­id­en­tial                   Library

The national emer­gency declared after 9/11 — which is still in effect today and contin­ues to prop up the United States’ milit­ary pres­ence across the globe — was cited in connec­tion with one or more PEADs.

A national emer­gency declar­a­tion unlocks enhanced author­it­ies contained in more than 120 provi­sions of law. Bush invoked several such author­it­ies, but several dozen others were — and still are — avail­able to the pres­id­ent as a result of Proclam­a­tion 7463. Presum­ably, the refer­ence to the proclam­a­tion during the admin­is­tra­tion’s review implies the exist­ence of docu­ments designed to imple­ment other stat­utory emer­gency powers, which run the gamut from anodyne to alarm­ing, nearly four years after the attacks.

As with any archival exped­i­tion, the silences are often the most telling. William Arkin, a noted expert on PEADs, reviewed the new mater­i­als disclosed by the library and observed that they relate primar­ily to civil agen­cies — few, if any, touch on the role of the milit­ary in times of crisis. He suggests that this “black side” would have been discussed at a higher level of clas­si­fic­a­tion. By implic­a­tion, the most daring claims to pres­id­en­tial power may have been entirely excluded from this tranche of docu­ments.

Also miss­ing from the records is any evid­ence that the Bush admin­is­tra­tion commu­nic­ated — much less collab­or­ated — with Congress during its review. We have previ­ously noted that pres­id­ents have kept PEADs secret, not only from the Amer­ican public but from lawmakers as well. This lack of disclos­ure effect­ively blocks a coequal branch of govern­ment from over­see­ing emer­gency proto­cols.

With Congress unable to serve its consti­tu­tional role as a check on the exec­ut­ive branch, there remains the possib­il­ity that modern PEADs, like their histor­ical prede­cessors, sacri­fice Amer­ic­ans’ consti­tu­tional rights and the rule of law in the name of emer­gency plan­ning. Congress should pass Sen. Ed Markey’s REIGN Act, which has been incor­por­ated into the Protect­ing Our Demo­cracy Act and the National Secur­ity Reforms and Account­ab­il­ity Act, to bring these shad­owy powers to account.