By Matthew Rothschild, The
Progressive. Posted
June 9, 2007.
The ACLU isn’t worried about the new presidential directive,
but I still am.
Editor's note: After writing about the White House's issuance
of a "National Continuity Policy" on May 9 which
entrusts President Bush to lead the entire federal government,
not just the Executive Branch, to ensure "constitutional
government" in the case of a "catastrophic emergency," Progressive
magazine editor Matthew Rothschild has followed up after consulting
with the ACLU to see what they thought about it. (For another
take on the National Continuity Policy, read Marjorie Cohn's
article, "Don't We Have a Constitution, Not a King?")
A note of caution since I wrote about Bush's plans to anoint
himself the insurer of constitutional government in the event
of emergency.
I decided to see what the American Civil Liberties Union thought
of the May 9 release of the National Security Presidential
Directive, and to my surprise, the ACLU did not seem that concerned
about it.
"These presidential directives on the continuity of government
have existed for a long time," says Mike German, ACLU
policy counsel. "All it does is establish that they should
have a policy and coordinate that policy with legislative and
judiciary. It doesn't change the order of succession, or anything
like that."
Plus, he praised the Bush Administration for making the document
public, since previous ones have remained classified.
"I'm glad they made it public," he says. "The
fact that this was done in an open and transparent manner should
be applauded."
As to the substance of the document: "It's impossible
to know whether this is an attempt to usurp some authority
that had otherwise not been contemplated by law," German
says.
It certainly is curious as to why the Bush Administration
released the document. The last paragraph is entitled "Security," and
it states: "This directive and the information contained
herein shall be protected form unauthorized disclosure, provided
that, except for Annex A, the Annex's attached to this directive
are classified."
But whatever the reason for the disclosure, the document is
not reassuring, especially given Bush's demonstrated disdain
for the Constitution.
Take his approval of warrantless NSA domestic spying. U.S.
District Judge Anna Diggs Taylor ruled that it "undisputedly" violates
the Fourth Amendment, "undisputedly" violates the
Foreign Intelligence Surveillance Act, violates the First Amendment,
and violates the separation of powers. Not mincing any words,
she added: "The Constitution itself has been violated."
Or take his policy of denying U.S. citizens due process. Justice
Sandra Day O'Connor, writing for the Supreme Court in the Hamdi
case, said the President does not have a blank check in times
of war. "We necessarily reject the Government's assertion
that separation of powers principles mandate a heavily circumscribed
role for the courts," O'Connor wrote. And she explicitly
warned about an Executive Branch approach that "serves
only to condense power into a single branch of government."
Condensing power into a single branch is precisely what concerns
me about Bush's new directive.
The directive also uses fudge words that President Bush was
fond of while he was trying to find ways to justify torture.
The continuity of government directive says it will be implemented
in a manner "consistent with" the Constitution and "consistent
with applicable law."
Compare that with Bush's February 7, 2002, order governing
the treatment of detainees: "The war against terrorism
ushers in a new paradigm. . . . Our nation recognizes that
this new paradigm -- ushered in not by us, but by terrorists
-- requires new thinking in the law of war, but thinking that
should nevertheless be consistent with the principles of Geneva."
In that context, Bush used the phrase "consistent with" to
justify actions that were antithetical to the Geneva Conventions.
You have to wonder whether he's using that phrase in a similar
way when it comes to the Constitution in times of an emergency.
What's more, there are the comments by former high-ranking
officials in the Bush Administration who have said that martial
law is coming if we're attacked again.
Wayne Downing was Bush's deputy national security adviser
for counterterrorism under Condoleezza Rice early in the first
term. On December 24, 2002, six months after he retired, he
told The Washington Post: "The United States may have
to declare martial law someday in the case of a devastating
attack with weapons of mass destruction causing tens of thousands
of casualties. This could mean that the military would be given
the authority to impose curfews, protect businesses and communities,
even make arrests."
General Tommy Franks, who led the Iraq invasion, told Cigar
Aficionado in December 2003 that if terrorists attack us again,
this time with a weapon of mass destruction, it will cause
the "population to question our own Constitution and to
begin to militarize our country in order to avoid a repeat
of another mass-casualty-producing event. Which, in fact, then
begins to potentially unravel the fabric of our Constitution."
Downing and Franks aren't the only former officials talking
about martial law.
On April 7, 2004, Ted Koppel hosted a Nightline program on
the very subject.
He said if Washington, D.C., is attacked, "Aren't we
left for at least the foreseeable future with some sort of
martial law anyway?"
Kenneth Duberstein, Reagan's chief of staff, responded: "You
have to suspend rights."
Richard Clarke, who was Clinton's counterterrorism expert
and was in the Bush Administration on 9/11, responded: "There
would be a period of, for lack of a better term, something
like martial law."
One month later, Koppel spoke at the University of California-Berkeley
commencement and again addressed the martial law issue quite
frankly: "Do not doubt for a moment that, at some point,
during the next few years, one or the other of those weapons
[chemical, biological, or nuclear] will almost certainly be
used in an act of terrorism against the United States . . .
in the United States. Then the time for discussing our civil
liberties will be over. More than likely, the use of a chemical
or biological weapon in a terrorist attack against the U.S.
homeland would lead to the imposition of martial law. For how
long and under what circumstances it would be lifted again
has, to the best of my knowledge, never even been publicly
addressed. But understand that the most implacable enemy of
our civil liberties is fear. What we will do after the next
terrorist attack is not a conversation that should be deferred."
So why is it being deferred?
Why is Congress not taking up the urgent need to hold hearings
on this very subject?
Here are two more reasons to be worried.
The Northern Command, Northcom, created by Bush, already has
plans to militarize the United States in the event of an attack.
"The new plans provide for what several senior officers
acknowledged is the likelihood that the military will have
to take charge in some situations, especially when dealing
with mass-casualty attacks," Bradley Graham wrote in The
Washington Post on August 8, 2005.
Then there is the revision to the Posse Comitatus Act, which
Bush whisked through last October.
In an editorial on February 19 of this year, aptly entitled "Making
Martial Law Easier," The New York Times wrote: "Beyond
cases of actual insurrection, the President may now use military
troops as a domestic police force in response to a natural
disaster, a disease outbreak, terrorist attack, or to any 'other
condition.' Changes of this magnitude should be made only after
a thorough public airing. But these new Presidential powers
were slipped into the law without hearings or public debate."
Interestingly, some in the Bush Justice Department didn't
believe this Congressional change was even necessary. On October
23, 2001, then-Deputy Assistant Attorney General John C. Yoo
and Robert J. Delahunty, then-special counsel in the Office
of Legal Counsel, wrote a memo to Alberto Gonzales, then-White
House Counsel, and William Haynes II, then-general counsel
for the Pentagon: "We recently opined that the Posse Comitatus
Act, 18 USCs.1385 (1994), which generally prohibits the use
of Armed Forces for law enforcement purposes absent constitutional
or statutory authority to do so, does not forbid the use of
military force for the military purpose of preventing and deterring
terrorism within the United States."
Now Congress has given Bush and the Pentagon this power anyway.
I hope the ACLU is correct, and that Bush's May 9 directive
is nothing to worry about.
But given all that we know about the Bush Administration,
I, for one, am not convinced.
What I am convinced of, however, is the need for Congressional
hearings on this subject -- before it's too late.
Matthew Rothschild is the editor of The Progressive.
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