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. 16011651) 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