“I have
left orders to be awakened at any time in case of national emergency,
even if I’m in a cabinet meeting.” ~ President Ronald Reagan
In fact the
United States operated under a continuous state of emergency from
1933 until 1976, according to By
Order Of The President by Phillip J. Cooper.
To correct
this ridiculous situation Congress passed The
National Emergencies Act (50 U.S.C. 1601–1651) in 1976
to stop open-ended states of national emergency and formalize Congressional
checks and balances on Presidential emergency powers. The act sets
a limit of two years on states of national emergency. It also imposes
certain "procedural formalities" on the President when
invoking such powers, and provides a means for Congress to countermand
a Presidential declaration of emergency and associated use of emergency
powers.
The perceived
need for the law arose from the scope and number of laws granting
special powers to the Executive in times of national emergency (or
public danger). Constitutional protections are subject to revocation
during a state of emergency including the right of habeas corpus.
In addition,
many provisions of statutory law – as many as 500 by one count
– are contingent on a state of national emergency. According
to a 1990
report to Congress 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 communication, regulate the operation of private enterprise,
restrict travel, and, in a variety of ways, control the lives of
United States citizens.
A popular penalty
in recent presidential edicts has been to block property transfers
of any offenders. There is never a mention of due process, of course.
When it comes to executive privilege justice is not only blind but
deaf and dumb.
A big part
of the problem is the assumed "executive powers" by presidents
who want to act like kings (naturally). From the founding of this
nation, American presidents have developed and used various types
of presidential or executive "directives." The best-known
directives are executive orders and presidential proclamations,
but many other documents have a similar function and effect. Presidential
directives have been raised to dangerous levels by Presidents William
Clinton and George W. Bush. Another excellent reference in this
area is With
A Stroke of the Pen by Kenneth R. Mayer. It includes a quote
from a Clinton advisor which described the strategy: "Stroke
of the pen . . . . law of the land. Kind of cool."
It was due
in part to concern that a declaration of "emergency" for
one purpose should not invoke every possible executive emergency
power that Congress in 1976 passed the National Emergencies Act.
Among other provisions, this act requires the President to declare
formally a national emergency and to specify the statutory authorities
to be used under such a declaration. The declaration must be published
in the Federal Register.
Wow, they really
tightened it up, didn’t they. The president must state what laws
are involved and the order must be published in the Federal Register
so that the Congress might act on it if it sees the need to countermand
the President. Don’t hold your breath – the US Congress has
never countermanded a presidential executive order, in fact recently
it has rarely stood up to "executive privilege" of any
kind. It’s simply not an issue, unfortunately. And according to
Phillip J. Cooper (cited above), although Congress provided in the
National Emergencies Act for the possibility of a legislative veto
that would terminate an emergency, the Supreme Court struck down
the legislative veto in 1983. So the President rules supreme! US
presidents hate Americans for their freedom, apparently, and seek
to reduce it.
In the case
of executive orders the president supposedly binds himself to do
only what’s in his order. Sure he does. The problem is that recent
presidents (principally Clinton and Bush-43) haven’t even obeyed
legislated laws and have issued "signing statements" to
that effect, so who says they would obey their own executive orders?
Might not a president just decide that certain additional steps
must be taken because of a national emergency?
In a national
emergency, one thing an unrestrained president might do is enact
martial law – call out the troops. Can the President impose
martial law on his own say-so? Well, yes, whenever he decides to.
US
CODE TITLE 10-332: Whenever the President considers that unlawful
obstructions, combinations, or assemblages, or rebellion against
the authority of the United States, make it impracticable to enforce
the laws of the United States in any State by the ordinary course
of judicial proceedings, he may call into Federal service such of
the militia of any State, and use such of the armed forces, as he
considers necessary to enforce those laws or to suppress the rebellion.
Note that the
President doesn’t even need a state of emergency to call out the
troops. But a state of emergency would help, and has customarily
been used by state governments after catastrophic acts of nature,
for example, to call up the National Guard and to ask for federal
support.
The new domestic
military command, NORTHCOM,
was set up for this purpose. NORTHCOM includes a task force which
consists of active, Guard and Reserve military members drawn from
all service branches, as well as civilian personnel, who are commanded
by a federalized National Guard general officer. From its mission
statement: "USNORTHCOM plans, organizes and executes homeland
defense and civil support missions."
Admiral
Michael Mullen, Chairman of the Joint Chiefs on NORTHCOM: “The
command also has maturing relationships with agencies inside our
country, the FBI for instance.”
Oh goody, domestic
military forces which are ready to provide "civil support"
have "maturing relationships" with organizations that
spy on US citizens and keep files on them. But what about the Posse
Comitatus Act (Title 18, U.S. Code, Section 1385), which states:
"Whoever, except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress, willfully uses
any part of the Army or the Air Force as a posse comitatus or otherwise
to execute the laws shall be fined under this title or imprisoned
not more than two years, or both." Posse Comitatus is supposed
to keep troops in the barracks regarding domestic situations, right?
Well, no, according
to Homeland
Security: "The Posse Comitatus Act is often cited as a
major constraint on the use of the military services to participate
in homeland security, counterterrorism, civil disturbances, and
similar domestic duties. It is widely believed that this law prohibits
the Army, Navy, Air Force, and Marine Corps from performing any
kind of police work or assisting law enforcement agencies to enforce
the law. This belief, however, is not exactly correct. . . . The biggest
error is the common assertion that the Posses Comitatus Act was
enacted to prevent the military services from acting as a national
police force."
So the bottom
line is that we’d better pay attention when a national emergency
is declared, right?
That’s right,
in fact pay attention fourteen times. There are currently fourteen
(14) national emergencies in effect in the United States. Here they
are, with their topics, listed chronologically in order of their
last annual renewal (they seem perpetual):
Western
Balkans – "(i) extremist violence in the Republic
of Macedonia and elsewhere in the Western Balkans region, or (ii)
acts obstructing implementation of the Dayton Accords in Bosnia"
Former
Liberian regime of Charles Taylor – "blocking of property
of certain persons associated with the former Liberian regime of
Charles Taylor"
Terrorism
– after 9/11 "constitute an unusual and extraordinary
threat to the national security, foreign policy, and economy of
the United States" [Note: Current Homeland Security position:
"At this time there is no credible information warning of an
imminent, specific threat to the homeland."]
Colombian
Narcotics Traffickers – "to deal with the unusual
and extraordinary threat to the national security, foreign policy,
and economy of the United States constituted by the actions of significant
narcotics traffickers centered in Colombia"
Democratic
Republic of the Congo – "blocking the property of
certain persons contributing to the conflict in that country"
Sudan
– "the unusual and extraordinary threat to the national
security and foreign policy of the United States constituted by
the actions and policies of the Government of Sudan"
Iran
– "the unusual and extraordinary threat to the national
security, foreign policy, and economy of the United States constituted
by the situation in Iran"
Weapons
of mass destruction – "the unusual and extraordinary
threat to the national security, foreign policy, and economy of
the United States posed by the proliferation of nuclear, biological,
and chemical weapons "weapons of mass destruction" and
the means of delivering such weapons"
Middle
East Terrorists – "the unusual and extraordinary threat
to the national security, foreign policy, and economy of the United
States constituted by grave acts of violence committed by foreign
terrorists who threaten to disrupt the Middle East peace process"
Cote
d’Ivoire – "blocking the property of certain persons
contributing to the conflict in Côte d’Ivoire"
Cuba
– "to address the disturbance or threatened disturbance
of international relations caused by the February 24, 1996, destruction
by the Cuban government of two unarmed U.S.-registered civilian
aircraft in international airspace north of Cuba"
Syria
– "the Government of Syria continues to engage in certain
conduct that formed the basis for the national emergency declared
in Executive Order 13338 of May 11, 2004, including but not limited
to undermining efforts with respect to the stabilization of Iraq"
Zimbabwe
– "blocked the property of persons undermining democratic
processes or institutions in Zimbabwe"
Burma
– "additional steps with respect to the national emergency
declared in Executive Order 13047 of May 20, 1997"
These are the
fourteen US "national emergencies" that George W. Bush
has annually renewed with his signature within the past year, without
a peep from Congress. Now obviously these are not truly national
emergencies. They are fakes, dictated by a phony President, acceded
to by a rubber-stamp Congress and abetted by a dictator-loving Supreme
Court. The United States is in no way extraordinarily threatened
by the Government of Sudan. But these Presidential decrees do have
some purposes, don’t they? First, they are ploys to give the US
government some power it wouldn’t ordinarily have. Secondly, they
are meant to frighten US citizens about terrorism, among other things.
(Terror means fright and the goal of terrorists is to frighten,
so what does that tell you?) Thirdly, they might provide a President,
a "Decider," some basis for military or other action against
US citizens. Okay, not under a Balkans or Liberian "national
emergency," but how about WMD or terrorism? Or Iran?
Fourteen (not
exactly) US national emergencies. Sleep on, America.
June
5, 2008
Don
Bacon [send him mail]
is a retired army officer who founded the Smedley
Butler Society several years ago because, as General Butler
said, “war is a racket.”
