This website is intended to be an easy-to-read, fully-sourced resource for Congress members, Senators, reporters, and others who wish to discover the current legal status of the United States of America.
The United States has been in a declared state of emergency from September 2001, to the present.
On September 11, 2001, the government declared a state of emergency. That declared state of emergency was formally put in writing on 9/14/2001:
That declared state of emergency has continued in full force and effect from 9/11 to the present. For example, the White House website states:"A national emergency exists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States.NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me as President by the Constitution and the laws of the United States, I hereby declare that the national emergency has existed since September 11, 2001 . . . ."
"Consistent with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing for 1 year the national emergency I declared on September 14, 2001, in Proclamation 7463, with respect to the terrorist attacks at the World Trade Center, New York, New York, the Pentagon, and aboard United Airlines flight 93, and the continuing and immediate threat of further attacks on the United States.
Because the terrorist threat continues, the national emergency declared on September 14, 2001, last extended on September 5, 2006, and the powers and authorities adopted to deal with that emergency, must continue in effect beyond September 14, 2007. Therefore, I am continuing in effect for an additional year the national emergency I declared on September 14, 2001, with respect to the terrorist threat."
A separate announcement on the White House website states:
See also this."Because the actions of these persons who commit, threaten to commit, or support terrorism continue to pose an unusual and extraordinary threat to the United States, the national emergency declared on September 23, 2001, and the measures adopted on that date to deal with that emergency, must continue in effect beyond September 23, 2007. Therefore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing for 1 year the national emergency with respect to persons who commit, threaten to commit, or support terrorism."
The Washington Times wrote on September 18, 2001:
"Simply by proclaiming a national emergency on Friday, President Bush activated some 500 dormant legal provisions, including those allowing him to impose censorship and martial law."
(Most or all of the emergency powers referred to by the above-quoted 1973 Senate report were revoked in the late 1970's by 50 U.S.C. Section 1601. However, presidents have made numerous declarations of emergency since then, and the declarations made by President Bush in September 2001 are still in effect).In 1973, the Senate created a Special Committee on the Termination of the National Emergency (subsequently redesignated the Special Committee on National Emergencies and Delegated Emergency Powers) to investigate the matter and to propose reforms. Ascertaining the continued existence of four presidential declarations of national emergency, the Special Committee (U.S. Senate 1973, p. iii) reported:
"These proclamations give force to 470 provisions of Federal law. . . . taken together, [they] confer enough authority to rule the country without reference to normal constitutional processes. Under the powers delegated by these statutes, the President may: seize property; organize and control the means of production; seize commodities; assign military forces abroad; institute martial law; seize and control all transportation and communications; regulate the operation of private enterprise; restrict travel; and, in a plethora of particular ways, control the lives of all American citizens."
It is also clear that the White House has kept substantial information concerning its presidential proclamations and directives hidden from Congress. For example, according to Steven Aftergood of the Federation of American Scientists Project on Government Secrecy:
"Of the 54 National Security Presidential Directives issued by the [George W.] Bush Administration to date, the titles of only about half have been publicly identified. There is descriptive material or actual text in the public domain for only about a third. In other words, there are dozens of undisclosed Presidential directives that define U.S. national security policy and task government agencies, but whose substance is unknown either to the public or, as a rule, to Congress."
Continuity of Government ("COG") measures were implemented on 9/11. For example, according to the 9/11 Commission Report, at page 38:
"At 9:59, an Air Force lieutenant colonel working in the White House Military Office joined the conference and stated he had just talked to Deputy National Security Advisor Stephen Hadley. The White House requested (1) the implementation of continuity of government measures, (2) fighter escorts for Air Force One, and (3) a fighter combat air patrol over Washington, D.C."Likewise, page 326 of the Report states:
"The secretary of defense directed the nation's armed forces to Defense Condition 3, an increased state of military readiness. For the first time in history, all nonemergency civilian aircraft in the United States were grounded, stranding tens of thousands of passengers across the country. Contingency plans for the continuity of government and the evacuation of leaders had been implemented."The Washington Post states that Vice President Richard Cheney initiated the COG plan on 9/11 (“From the bunker, Cheney officially implemented the emergency continuity of government orders . . . .”)See also footnotes cited therein and this webpage.
Continuity of Government Measures Were Kept in Effect For Several Months, At The Least; Congress Was Kept In the Dark
CNN reports that -- 6 months later --
Because Bush has decided to leave the operation in place, agencies including the White House and top civilian Cabinet departments have rotated personnel involved, and are discussing ways to staff such a contingency operation under the assumption it will be in place indefinitely, this official said.Similarly, the Washington Post stated in March 2002 that "the shadow government has evolved into an indefinite precaution." The same article goes on to state:
"... assessment of terrorist risks persuaded the White House to remake the program as a permanent feature of 'the new reality, based on what the threat looks like,' a senior decisionmaker said."As a CBS article makes clear, virtually none of the Congressional leadership knew that the COG had been implemented or was still in existence as of March 2002:
Key congressional leaders say they didn’t know President Bush had established a “shadow government,” moving dozens of senior civilian managers to secret underground locations outside Washington to ensure that the federal government could survive a devastating terrorist attack on the nation's capital, The Washington Post says in its Saturday editions.Similarly, the above-cited CNN article states :
Senate Majority Leader Thomas A. Daschle (D-S.D.) told the Post he had not been informed by the White House about the role, location or even the existence of the shadow government that the administration began to deploy the morning of the Sept. 11 hijackings.
An aide to House Minority Leader Richard A. Gephardt (D-Mo.) said he was also unaware of the administration's move.
Among Congress's GOP leadership, aides to House Speaker J. Dennis Hastert (Ill.), second in line to succeed the president if he became incapacitated, and to Senate Minority Leader Trent Lott (Miss.) said they were not sure whether they knew.
Aides to Sen. Robert C. Byrd (D-W. Va.) said he had not been told. As Senate president pro tempore, he is in line to become president after the House speaker.
Senate Majority Leader Tom Daschle, D-South Dakota, said Friday he can't say much about the plan.
"We have not been informed at all about the role of the shadow government or its whereabouts or what particular responsibilities they have and when they would kick in, but we look forward to work with the administration to get additional information on that."
Indeed, as documented below, the White House has specifically refused to share information about Continuity of Government plans with the Homeland Security Committee of the U.S. Congress, even though that Committee has proper security clearance to hear the full details of all COG plans.
What Are Continuity of Government Plans?
Continuity of government plans are contingency plans which create a new government in the case of an alleged threat to the ability of the American government to continue operations. America's COG plans were created to deal with nuclear war, but they have been discussed in many other contexts as well.
What would things look like if the COG plans were already being implemented?
- Top leaders of the “new government” called for in the COG would entirely or largely go into hiding, and would govern in hidden locations
- Those within the new government would know what was going on. But those in the “old government” – that is, the one created by the framers of the Constitution – would not necessarily know the details of what was happening
- Normal laws and legal processes might largely be suspended, or superseded by secretive judicial forums
- The media might be ordered by strict laws – punishable by treason – to only promote stories authorized by the new government
Therefore, COG plans are of vital importance to America, because their implementation suspends the normal Constitutional form of government, separation of powers, and traditional American rights.
Could the White House have maintained COG operations to the present day? One hint may be contained in the above-cited CNN article:
Bush triggered the precautions in the hours after the September 11 strikes, and has left them in place because of continuing U.S. intelligence suggesting a possible threat.
Concerns that al Qaeda could have gained access to a crude nuclear device "were a major factor" in the president's decision, the official said. "The threat of some form of catastrophic event is the trigger," this official said.
This same official went on to say that the U.S. had no confirmation -- "and no solid evidence" -- that al Qaeda had such a nuclear device and also acknowledged that the "consensus" among top U.S. officials was that the prospect was "quite low."
Still, the officials said Bush and other top White House officials including Cheney were adamant that the government take precautions designed to make sure government functions ranging from civil defense to transportation and agricultural production could be managed in the event Washington was the target of a major strike.
As is apparent from a brief review of the news, the government has, since 9/11, continuously stated that there is a terrorist threat of a nuclear device or dirty bomb. That alone infers that COG plans may still be in effect.
In addition, one of the top investigative journalists in the country, Larisa Alexandrovna (the lead journalist at Raw Story), writing about the 2001 Department of Justice memorandum that found that the Fourth Amendment had no application to domestic military operations, wrote:
"it seems to me that this administration has justified its crimes by NOT suspending the state of emergency that went up on September 11, 2001. They are using emergency powers if you look at the whole of the spying, military actions inside the US, etc. I would wager that if asked, this administration will admit that we have been in a state of emergency for their tenure in office."Alexandrovna not only believes that we have been in a state of emergency since 2001 (which the White House itself has verified, see above), but that the government has been using its emergency powers -- i.e. powers justified by a state of emergency -- in spying, carrying out military actions inside the U.S. (see this), and taking other extra-Constitutional actions.
Is that why the government:
- Suspended habeas corpus?
- Has been spying on Americans?
- Is training pastors to preach obedience to martial law?
As one writer notes:
A contemporary version of the Continuity of Government program was put into play in the hours after the 9/11 terrorist attacks, when Vice President Cheney and senior members of Congress were dispersed to "undisclosed locations" to maintain government functions. It was during this emergency period, Hamilton and other former government officials believe, that President Bush may have authorized the NSA to begin actively using the Main Core database for domestic surveillance. One indicator they cite is a statement by Bush in December 2005, after the New York Times had revealed the NSA's warrantless wiretapping, in which he made a rare reference to the emergency program: The Justice Department's legal reviews of the NSA activity, Bush said, were based on "fresh intelligence assessment of terrorist threats to the continuity of our government."Remember also that provisions of the Homegrown Terrorism are already being implemented, even though the Senate has not yet approved that law (and see this). How could that happen if COG plans were not in effect?
Additionally, Vice President Cheney’s recent claim that his office is not part of the Executive branch of government may be one more piece of circumstantial evidence that COG plans are still be in effect, with Cheney a participant in the extra-constitutional government. Specifically, last summer, Cheney’s office stated that “the Vice President's office is not an 'entity within the executive branch”. As summarized in Time Magazine:
“Vice President Dick Cheney has been resisting even his own Executive Branch's efforts to find out what kind of secret material his office has been stashing away over the last four years.Cheney's office, according to a story first reported by the Chicago Tribune, has resisted attempts by a tiny federal agency to compile information — in accordance with an executive order signed by George Bush himself — on the classified documents being held by the Vice President's operation. Cheney's office argued that the Vice President's office, because it has both executive and legislative branch duties, is exempt from the order.”It is, of course, possible that Cheney’s response to the request for documents is simply based upon a desire to avoid handing over documents. However, given that Cheney has been instrumental in creating and practicing Continuity of Government plans for 20 years, and the increasingly strong circumstantial evidence that Continuity of Government plans are currently in effect, Cheney’s statement that he is not within the Executive branch, and that he is also part of the legislative, may be based on his being a key participant in a COG government. In other words, COG leaders, such as perhaps Cheney, would have key roles not only in the executive, but also the legislative branch, to the extent those “branches” (separation of powers is apparently not part of the COG plans) even exist. See this.
Presidential Directive NSPD-51
In 2007, President Bush issued Presidential Directive NSPD-51, which purported to change Continuity of Government plans. I have argued elsewhere that issuance of NSPD-51 does not prove that Continuity of Government plans are not in effect currently.
However, even if COG plans are not currently in effect, and were somehow secretly rescinded between September 2001 and the present despite the continuing declaration of state of emergency, it is important to note the following:
- NSPD51 was passed without Congressional input
- Indeed, implementation of COG has been continuously hidden from Congress
- Even the New York Times wrote in an editorial:
“Beyond cases of actual insurrection, the President may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack, or to any ‘other condition.’ Changes of this magnitude should be made only after a thorough public airing. But these new Presidential powers were slipped into the law without hearings or public debate.”
Indeed, in the summer 2007, Congressman Peter DeFazio, on the Homeland Security Committee (and so with proper security access to be briefed on COG issues), inquired about continuity of government plans, and was refused access. Indeed, DeFazio told Congress that the entire Homeland Security Committee of the U.S. Congress has been denied access to the plans by the White House (video; or here is the transcript). The Homeland Security Committee has full clearance to view all information about COG plans. DeFazio concluded: "Maybe the people who think there’s a conspiracy out there are right”.Everyone from "conservative activist Jerome Corsi [to] Marjorie Cohn of the [liberal] National Lawyer's Guild have interpreted [the COG plans contained in Presidential Directive NSPD-51] as a break from Constitutional law ...."
As a reporter for Slate concluded after analyzing NSPD-51: White House spokesman Gordon Johndroe said that "because of the attacks of Sept. 11, 2001, the American public needs no explanation of [Continuity of Government] plans"
As University of California Berkeley Professor Emeritus Peter Dale Scott has warned:
Given the above, even under a best-case scenario -- that is, assuming that COG plans are not currently still in effect -- it is urgent that Congress and the public pay attention to this issue. Congress, the Courts, and the American people must demand that any and all COG plans be rescinded to the extent they:"If members of the Homeland Security Committee cannot enforce their right to read secret plans of the Executive Branch, then the systems of checks and balances established by the U.S. Constitution would seem to be failing.
To put it another way, if the White House is successful in frustrating DeFazio, then Continuity of Government planning has arguably already superseded the Constitution as a higher authority."
(1) allow the plans to be unilaterally implemented without adequate justification by the White House (e.g. a local fire);
(2) do not have strict time limits, so that they are terminated the minute they are no longer absolutely necessary for the survival of our country;
(3) do not include Congress in the planning process; or
What Should We Do Now?(4) unnecessarily destroy Constitutional protections, when our country could still be protected if such protections were respected.
Who will demand that the Constitution is respected? The hard reality is that the White House will not agree to follow the Constitution and the rule of law, or even to disclose whether or not the COG plans which were implemented on 9/11 are still in effect, unless the public demands it. It is up to us.
Professor Scott stresses the importance of public pressure in this regard:
"Will Congress insist on its right of review COG? The answer to this question will depend on discussion in the blogosphere, the degree of pressure exerted by the electorate on their representatives, and the questions asked the men and women who would be president."
