Guest Post: America Might Be a More Gilded Cage than Egypt … But It Still Looks Like a Cage

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As the New York Times’ Lede wrote yesterday:

Here is an excerpt from “Why It Is Wrong to Believe a Word Mubarak said,” one Egyptian activist’s detailed response to President Hosni Mubarak’s speech on Tuesday:

What has Mubarak left out in his speech:

1. Emergency law is still effective, which means oppression, brutality, arrests, and torture will continue. How can you have any hope for fair democratic elections under emergency law where the police have absolute power?

America is obviously very different from Egypt. Or is it?

Let’s honestly compare and contrast the situation in the United States.

State of Emergency

The United States has been in a declared state of emergency from September 2001, to the present. Specifically, 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:

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 . . . .

That declared state of emergency has continued in full force and effect from 9/11 to the present. President Bush kept it in place, and President Obama has also.

For example, on September 10, 2009, President Obama issued his continuation of the declaration of national emergency:

CONTINUATION OF NATIONAL EMERGENCY DECLARED BY PROC. NO. 7463
Notice of President of the United States, dated Sept. 10, 2009, 74 F.R. 46883, provided:

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 declared on September 14, 2001, in Proclamation 7463, with respect to the terrorist attacks of September 11, 2001, 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, and the powers and authorities adopted to deal with that emergency, must continue in effect beyond September 14, 2009. Therefore, I am continuing in effect for an additional year the national emergency the former President declared on September 14, 2001, with respect to the terrorist threat.

This notice shall be published in the Federal Register and transmitted to the Congress.
Barack Obama.

An on September 10, 2010, President Obama declared

:

Section 202(d) of the National Emergencies Act, 50 U.S.C. 1622(d), provides for the automatic termination of a national emergency unless, prior to the anniversary date of its declaration, the President publishes in the Federal Register and transmits to the Congress a notice stating that the emergency is to continue in effect beyond the anniversary date. Consistent with this provision, I have sent to the Federal Register the enclosed notice, stating that the emergency declared with respect to the terrorist attacks on the United States of September 11, 2001, is to continue in effect for an additional year.

The terrorist threat that led to the declaration on September 14, 2001, of a national emergency continues. For this reason, I have determined that it is necessary to continue in effect after September 14, 2010, the national emergency with respect to the terrorist threat.

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.

Is the Times correct? Well, it is clear that pre-9/11 declarations of national emergency have authorized martial law. For example, as summarized by a former fellow for the Hoover Institution and the National Science Foundation, and the recipient of numerous awards, including the Gary Schlarbaum Award for Lifetime Defense of Liberty, Thomas Szasz Award for Outstanding Contributions to the Cause of Civil Liberties, Lysander Spooner Award for Advancing the Literature of Liberty and Templeton Honor Rolls Award on Education in a Free Society:

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.

(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).

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

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 notes 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.

CNN reported that – 6 months later – the plans were still in place:

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 reported 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 CBS pointed out, 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.

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.

Similarly, the above-cited CNN article states:

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, 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.
Specifically, 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”.

As University of California Berkeley Professor Emeritus Peter Dale Scott warned:

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.

Indeed, continuity of government plans are specifically defined to do the following:

• 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

See this, this and this.

Could the White House have maintained COG operations to the present day?

I don’t know, but the following section from the above-cited CNN article is not very reassuring:

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 could, hypothetically, still be in effect, just like the state of emergency is still in effect and has never been listed.

In addition, investigative reporter Larisa Alexandrovna (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.

As Tim Shorrock wrote at Salon:

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.”

In 2007, President Bush issued Presidential Directive NSPD-51, which purported to change Continuity of Government plans. NSPD51 is odd because:

• NSPD51 was passed without Congressional input
• 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.

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:

I see nothing in the [COG document entitled presidential directive NSPD51] to prevent even a “localized” forest fire or hurricane from giving the president the right to throw long-established constitutional government out the window

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”

Much Ado About Nothing?

This may seem like much ado about nothing. But as I pointed out last September:

According to Department of Defense training manuals, protest is considered “low-level terrorism”. And see this, this and this.An FBI memo also labels peace protesters as “terrorists”.

Indeed, police have been terrorizing children, little old ladies and other “dangerous” people who attempted to protest peacefully.

And a 2003 FBI memo describes protesters’ use of videotaping as an “intimidation” technique, even though – as the ACLU points out – “Most mainstream demonstrators often use videotape during protests to document law enforcement activity and, more importantly, deter police from acting outside the law.” The FBI appears to be objecting to the use of cameras to document unlawful behavior by law enforcement itself.

The Internet has been labeled as a breeding ground for terrorists, with anyone who questions the government’s versions of history being especially equated with terrorists.

The government is also using anti-terrorism laws to keep people from learning what pollutants are in their own community. See this, this, this and this.

Claims of “national security” are also used to keep basic financial information – such as who got bailout money – secret. That might not bode for particularly warm and friendly treatment for someone persistently demanding the release of such information.

The state of Missouri tried to label as terrorists current Congressman Ron Paul and his supporters, former Congressman Bob Barr, libertarians in general, anyone who holds gold, and a host of other people.

And according to a law school professor, pursuant to the Military Commissions Act:

Anyone who … speaks out against the government’s policies could be declared an “unlawful enemy combatant” and imprisoned indefinitely. That includes American citizens.

And see this.

So the U.S. might be a much more gilded cage than Egypt … but it still looks like a cage.

Didn’t 9/11 Change Everything?

Many have claimed that 9/11 changed everything, and Americans can no longer abide by the idealistic ideas set forth in the Constitution.

However:

• The government’s spying on Americans began before 9/11 (confirmed here and here. And see this)

• The Afghanistan war was planned before 9/11 (see this and this)

• The decision to launch the Iraq war was made before 9/11. Indeed, former CIA director George Tenet said that the White House wanted to invade Iraq long before 9/11, and inserted “crap” in its justifications for invading Iraq. Former Treasury Secretary Paul O’Neill – who sat on the National Security Council – also says that Bush planned the Iraq war before9/11. And top British officials say that the U.S. discussed Iraq regime change one month after Bush took office

• Cheney apparently even made Iraqi’s oil fields a national security priority before 9/11

• Cheney dreamed of giving the White House the powers of a monarch long before 9/11

• Cheney and Rumsfeld actively generated fake intelligence which exaggerated the threat from an enemy in order to justify huge amounts of military spending long before 9/11. And see this

• The decision to threaten to bomb Iran was made before 9/11

• It was known long before 9/11 that torture doesn’t work to produce accurate intelligence, but is an effective way to terrorize people