Supplanting the US Constitution: War, National Emergency and 'Continuity of Government'

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by Peter Dale Scott: Opium
and the CIA: Can the US Triumph in the Drug-Addicted War inAfghanistan?



In 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

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:

Sullivan [North’s counsel, agitatedly]
: Mr. Chairman?

Daniel] Inouye
: I believe that question touches upon a highly
sensitive and classified area so may I request that you not touch
upon that?

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.

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

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:

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:

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.”

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.

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

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

22, 2010

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.

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