Supplanting the US Constitution: War,
National Emergency and 'Continuity of Government'
by Peter Dale ScottIn 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
these were emergency plans to suspend the American constitution in the
event of a nuclear attack (a legitimate concern). But press accounts
alleged that the planning was for a more generalized suspension of the
constitution.
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.
But we have never heard if there was or was not an executive session, or
if the rest of Congress was ever aware of the matter. According to James
Bamford, “The existence of the secret government was so closely held
that Congress was completely bypassed.” (Key individuals in Congress
were almost certainly aware.)
Brooks was responding to a story by Alfonzo Chardy in the Miami Herald.
Chardy’s story alleged that Oliver North was involved with the Federal
Emergency Management Agency (FEMA) in plans to take over federal, state
and local functions during a national emergency. This planning for
“Continuity of Government” (COG) called for “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.”
To my knowledge no one in the public (including myself) attached enough
importance to the Chardy story. Chardy himself suggested that Reagan’s
Attorney General, William French Smith, had intervened to stop the COG
plan from being presented to the President. 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.”
To say that nuclear attack planning was over was correct, but this
statement was also very misleading. On the basis of Weiner’s report, the
first two books on COG planning, by James Bamford and James Mann, books
otherwise excellent and well-informed, reported that COG planning had
been abandoned. They were wrong.
Mann and Bamford did report that, from the beginning, two of the key COG
planners on the secret committee were Dick Cheney and Donald Rumsfeld,
the two men who implemented COG under 9/11. What they and Weiner did not
report was that under Reagan 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.”
In other words extraordinary emergency measures, originally designed for
an America devastated in a nuclear attack, were now to be applied to
anything the White House considered an emergency. Thus Cheney and
Rumsfeld continued their secret planning when Clinton was president;
both men, both Republicans, were heads of major corporations and not
even in the government at that time. Moreover, Andrew Cockburn claims
that the Clinton administration, according to a Pentagon source, had “no
idea what was going on.” (As I shall explain later, this sweeping claim
needs some qualification.)
The expanded application of COG to any emergency was 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.
Clearly 9/11 met the conditions for the imposition of COG measures, and
we know for certain that COG planning was instituted 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. 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.
What few have recognized is that, nearly a decade later, some aspects of
COG remain in effect. COG plans are still authorized by a proclamation
of emergency that has been extended each year by presidential authority,
most recently by President Obama in September 2009. COG plans are also
the probable source for the 1000-page Patriot Act presented to Congress
five days after 9/11, and also for the Department of Homeland Security’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.
At the same time we have seen the implementation of the plans outlined
by Chardy in 1987: the warrantless detentions that Oliver North had
planned for in Rex 1984, the warrantless eavesdropping that is their
logical counterpart, and the militarization of the domestic United
States under a new military command, NORTHCOM. Through NORTHCOM the U.S.
Army now is engaged with local enforcement to control America, in the
same way that through CENTCOM it is engaged with local enforcement to
control Afghanistan and Iraq.
We learned that COG planning was still active in 2007, when President
Bush issued National Security Presidential Directive 51 (NSPD 51). This,
for the sixth time, extended for one year the emergency proclaimed on
September 14, 2001. It empowered the President to personally ensure
"continuity of government" in the event of any "catastrophic emergency."
He announced that NSPD 51 contains "classified Continuity Annexes" which
shall "be protected from unauthorized disclosure." Under pressure from
his 911truth constituents, Congressman Peter DeFazio of the Homeland
Security Committee twice requested to see these Annexes, the second time
in a letter signed by the Chair of his committee. His request was
denied.
The National Emergencies Act, one of the post-Watergate reforms that
Vice-President Cheney so abhorred, specifies that: “Not later than six
months after a national emergency is declared, and not later than the
end of each six-month period thereafter that such emergency continues,
each House of Congress shall meet to consider a vote on a joint
resolution to determine whether that emergency shall be terminated” (50
U.S.C. 1622, 2002). Yet in nine years Congress has not once met to
discuss the State of Emergency declared by George W. Bush in response to
9/11, a State of Emergency that remains in effect today. Appeals to the
Congress to meet its responsibilities to review COG have fallen on deaf
ears.
Former Congressman Dan Hamburg and I appealed publicly last year, both
to Obama to terminate the emergency, and to Congress to hold the
hearings required of them by statute. But Obama, without discussion,
extended the 9/11 Emergency again on September 10, 2009; and Congress
has continued to ignore its statutory obligations. One Congressman
explained to a constituent that the provisions of the National
Emergencies Act have now been rendered inoperative by COG. If true, this
would seem to justify Chardy’s description of COG as suspension of the
Constitution. Are there other parts of the Constitution that have been
suspended? We do not know, and the Chair of the Homeland Security
Committee has been told he cannot find out.
Plans drafted by a secret committee, including corporation heads not in
the government, have provided rules that allegedly override public law
and the separation of powers that is at the heart of the Constitution.
Congress is derelict in addressing this situation. Even Congressman
Kucinich, the one Congressman I have met, will not answer my
communications on this subject.
Yet as I see it, the only authorization for the COG planning was a
secret decision by President Reagan (NSDD 55 of September 14, 1982)
which in effect federalized the counterinsurgency planning (called Cable
Splicer), which he had authorized in California when governor there.
It is clear that the planning by Cheney, Rumsfeld and others in the last
two decades was not confined to an immediate response to 9/11. The
1000-page Patriot Act, dropped on Congress as promptly as the Tonkin
Gulf Resolution had been back in 1964, is still with us; Congress has
never seriously challenged it, and Obama quietly extended it on February
27 of this year.
We should not forget that the Patriot Act was only passed after lethal
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. Someone – we still do not know who – must have planned those
anthrax letters well in advance. This is a fact most Americans do not
want to think about.
Someone also must have planned the unusual number of war games taking
place on 9/11. COG planners and FEMA had been involved in war games
planning over the previous two decades; and on 9/11 FEMA was again
involved with other agencies in preparing for Operation Tripod, a
bioterrorism exercise in New York City.
Someone also must have planned the new more restrictive instructions, on
June 1, 2001, determining that military interceptions of hijacked
aircraft had to be approved “at the highest levels of government” (i.e.
the President, Vice-President, or Secretary of Defense). The Report
attributes this order to a JCS Memo of June 1, 2001, entitled “Aircraft
Piracy (Hijacking) and Destruction of Derelict Airborne Objects.” But
the written requirements had been less restrictive before June 1, 2001,
and I am informed that the change was quietly revoked the following
December.
In The Road to 9/11 I suggest the change in the JCS memo came from the
National Preparedness Review in which President Bush authorized
Vice-President Cheney, together with FEMA, “to tackle the… task of
dealing with terrorist attacks.” Not noticed by the press was the fact
that Cheney and FEMA had already been working on COG planning as a team
throughout the 1980s and 1990s.
As I wrote above, it is necessary to qualify a Pentagon official’s claim
(to author Andrew Cockburn) that the Clinton administration had “no idea
what was going on” in COG. Let me quote from my response to Cockburn’s
book in my own, The Road to 9/11:
[Weiner’s] article persuaded authors James Mann and James Bamford that
Reagan’s COG plans had now been abandoned, because “there was, it
seemed, no longer any enemy in the world capable of . . . decapitating
America’s leadership.” In fact, however, only one phase of COG planning
had been terminated, a Pentagon program for response to a nuclear
attack. Instead, according to author Andrew Cockburn, a new target was
found:
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.”
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.” 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.
The Pentagon official’s description of a “secret government-in-waiting”
(which still included both Cheney and Rumsfeld) is very close to the
standard definition of a cabal, as a group of persons secretly united to
bring about a change or overthrow of government. In the same era Cheney
and Rumsfeld projected change also by their public lobbying, through the
Project for the New American Century, for a more militant Middle East
policy. In light of how COG was actually implemented in 2001, one can
legitimately suspect that, however interested this group had been in
continuity of government under Reagan, under Clinton the focus of
Cheney’s and Rumsfeld’s COG planning was now a change of government.
Understandably there is great psychological resistance to the
extraordinary claim that Cheney and Rumsfeld, even when not in
government, were able to help plan successfully for constitutional
modifications, which they themselves implemented when back in power.
Most people cannot bring themselves even to believe the second, known
half of this claim: that on September 11, 2001, COG plans overriding the
constitution were indeed implemented. This is why the first two print
reviews of The Road to 9/11, both favorable and intelligently written,
both reported that I speculated that COG had been imposed on 9/11. No,
it was not a speculation: the 9/11 Commission Report twice confirms that
COG was instituted on the authority of a phone call between Bush and
Cheney of which they could find no record. No record, I did speculate,
because it took place on a secure COG phone outside the presidential
bunker – with such a high classification that the 9/11 Commission was
never supplied the phone records.
A footnote in the 9/11 Report says
“The 9/11 crisis tested the U.S. government’s plans and capabilities to
ensure the continuity of constitutional government and the continuity of
government operations. We did not investigate this topic, except as
needed to understand the activities and communications of key officials
on 9/11. The Chair, Vice Chair, and senior staff were briefed on the
general nature and implementation of these continuity plans.
The other footnotes confirm that no information from COG files was used
to document the 9/11 Report. At a minimum these files might resolve the
mystery of the missing phone call which simultaneously authorized COG,
and (in consequence) determined that Bush should continue to stay out of
Washington. I suspect that they might tell us a great deal more.
What is the first step out of this current state of affairs, in which
the constitution has in effect been superseded by a higher, if less
legitimate authority? I submit that it is to get Congress to do what the
law requires, and determine whether our present proclamation of
emergency “shall be terminated” (50 U.S.C. 1622, 2002).
An earlier polite, judiciously worded appeal to this effect failed. It
may be necessary to raise the issue in a larger, albeit more
controversial context: the scandal that a small cabal was able to
supersede the Constitution, and Congress has failed, despite repeated
requests, to do anything about it. I would hope that Americans concerned
about this matter would raise it with all the congressional candidates
in the forthcoming elections. At a minimum, candidates should promise to
call for a full discussion of the proclaimed national emergency, as the
law requires.
This is reprinted from
Global Research..
Go to
the original for footnotes.
May 22, 2010
Peter Dale Scott, a former Canadian diplomat and English Professor at
the University of California, Berkeley, is the author of
Drugs Oil and War,
The Road to 9/11, and
The War Conspiracy: JFK, 9/11, and the Deep Politics of War..
His book, Fueling America's War Machine: Deep Politics and the CIA’s
Global Drug Connection is in press, due Fall 2010 from Rowman &
Littlefield.
Copyright © 2010 Peter Dale Scott,
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