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].”
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.
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.
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
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.
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