Continuity of Government: Is the State of Emergency Superseding our Constitution?

Published on Global, by Prof. Peter Dale Scott, November 24, 2010.

… The Proclamation of Permanent Emergencies:

Finally, still in the 90-day “shadow government” period after 9/11, President Bush proclaimed two important emergencies that are still in force today.

  • 1) On September 14, 2001, Bush issued Proclamation 7463 (“Declaration of National Emergency by Reason of Certain Terrorist Attacks”) together with Executive Order 13223 (“Ordering the Ready Reserve of the Armed Forces To Active Duty”). As we shall see, the terms of this proclamation were significantly expanded when it was renewed in 2007.
  • 2) “On September 23, 2001, by Executive Order 13224, the President declared a national emergency with respect to persons who commit, threaten to commit, or support terrorism, pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701-1706).”[32] This gave the president the power to confiscate without trial or warning the property of individuals providing funds to entities, such as charitable foundations, which were judged to be supporting terrorism. The Executive Order initially blocked property of twenty-seven designated terrorists. But the list has become enormous. When I last looked at it, on November 18, 2010, the list included 87 pages just for the letter A. 

A lawsuit has been instituted, asserting that the designation of alleged terrorists was arbitrary; and a lower court agreed that the president’s designation authority is unconstitutionally vague.[33] The case is under appeal.

Cheney and Rumsfeld on the Secret Committee to Plan COG: … //

… COG, The National Emergency, and the National Emergencies Act:

I mentioned earlier that the Proclamation of a national emergency, issued by Bush on September 14, 2001, and since renewed annually to this day, changed significantly in 2007. All previous annual renewals had enumerated the emergency measures that were being renewed, for example “the measures taken on September 14, 2001, November 16, 2001, and January 16, 2002.” After Bush issued NSPD-51 of 2007, with its “new vision” and its new classified COG Annexes, the next renewal of the Emergency proclamation replaced the previous specific enumerations with a more sweeping general sentence:

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.[46]

“The powers and authorities adopted to deal with that emergency.” This language is so vague, it is hard to see how it could not cover the “classified continuity annexes” of NSPD-51 as well. If so, the public proclamation was now proclaiming the continuation of a secret. (The two renewals of the Emergency by Barack Obama do not repeat this language from 2007, but likewise fail to enumerate just what powers are being extended.)[47]

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).[48] The law does not permit Congress to review an emergency; it requires Congress to review it.

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, even now that the Congress is dominated by Democrats.[49]

Former Congressman Dan Hamburg and I appealed publicly in 2009, both to President Obama to terminate the emergency, and to Congress to hold the hearings required of them by statute.[50] But Obama, without discussion, extended the 9/11 Emergency again on September 10, 2009,[51] and again a year later.[52] Meanwhile 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 indicate that the constitutional system of checks and balances no longer applies, and also that secret decrees now override public legislation.

Understandably many people tend to repress the extraordinary facts that Cheney and Rumsfeld were able to

  • 1) help plan successfully for constitutional modifications, when not in government, and
  • 2) implement these same changes themselves when back in power.

The first of these facts gives us a glimpse of an on-going power realm independent of the publicly acknowledged state. In the words of James Mann, “Cheney and Rumsfeld were, in a sense, a part of the permanent, though hidden, national security apparatus of the United States, inhabitants of a world in which Presidents come and go, but America always keeps on fighting.”[53] A CNN Special Assignment assessment of the COG planners was even more dramatic: ““In the United States of America there is a hidden government about which you know nothing.”[54]

What is the first step out of this current state of affairs, in which the constitution appears to have 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).

As part of this procedure, Congress should find whether secret COG powers, never submitted to Congress or seen by it, are among “the powers and authorities” which Bush in 2007 included in his prolongation of the 2001 emergency.

This is not a technical or procedural detail. It is a test of whether the United States continues to be governed by its laws and constitution, or whether, as has been alleged, the laws and constitution have now in places been superseded by COG.

And hopefully Congress would look at the activities of Cheney’s ninety days of COG shadow government in 2001, and their relationship to the genesis of the Patriot Act, the ten-year program for detention camps, and the permanent militarization of US domestic law enforcement. (full long text and Notes 1 – 54).

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