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State of Emer­gency and “Con­ti­nu­ity of Gov­ern­ment”: What is the Real Rea­son the Gov­ern­ment is Spy­ing on Americans?

Are Emer­gency Plans Meant Only for Nuclear War the Real Jus­ti­fi­ca­tion for Spying?

To under­stand the scope, extent and rea­son that the gov­ern­ment spies on all Amer­i­cans, you have to under­stand what has hap­pened to our Con­sti­tu­tional form of gov­ern­ment since 911.

Note: Some web-​links were updated, some still a work in progress on this site

State of Emergency

The United States has been in a declared state of emer­gency from Sep­tem­ber 2001, to the present. Specif­i­cally, on Sep­tem­ber 11, 2001, the gov­ern­ment declared a state of emer­gency. That declared state of emer­gency was for­mally put in writ­ing on 9-​14-​2001:

A national emer­gency exists by rea­son of the ter­ror­ist attacks at the World Trade Cen­ter, New York, New York, and the Pen­ta­gon, and the con­tin­u­ing and imme­di­ate threat of fur­ther attacks on the United States.

NOW, THERE­FORE, I, GEORGE W. BUSH, Pres­i­dent of the United States of Amer­ica, by virtue of the author­ity vested in me as Pres­i­dent by the Con­sti­tu­tion and the laws of the United States, I hereby declare that the national emer­gency has existed since Sep­tem­ber 11, 2001

Read or lis­ten to more

That declared state of emer­gency has con­tin­ued in full force and effect from 911 to the present. Pres­i­dent Bush kept it in place, and Pres­i­dent Obama has also.

For exam­ple, on Sep­tem­ber 9, 2011, Pres­i­dent Obama declared:

CON­TIN­U­A­TION OF NATIONAL EMER­GENCY DECLARED BY PROC. NO. 7463

Notice of Pres­i­dent of the United States, dated Sept. 9, 2011, 76 F.R. 56633, provided:

Con­sis­tent with sec­tion 202(d) of the National Emer­gen­cies Act, 50 U.S.C. 1622(d), I am con­tin­u­ing for 1 year the national emer­gency pre­vi­ously declared on Sep­tem­ber 14, 2001, in Procla­ma­tion 7463, with respect to the ter­ror­ist attacks of Sep­tem­ber 11, 2001, and the con­tin­u­ing and imme­di­ate threat of fur­ther attacks on the United States.

Because the ter­ror­ist threat con­tin­ues, the national emer­gency declared on Sep­tem­ber 14, 2001, and the pow­ers and author­i­ties adopted to deal with that emer­gency must con­tinue in effect beyond Sep­tem­ber 14, 2011. There­fore, I am con­tin­u­ing in effect for an addi­tional year the national emer­gency that was declared on Sep­tem­ber 14, 2001, with respect to the ter­ror­ist threat.

This notice shall be pub­lished in the Fed­eral Reg­is­ter and trans­mit­ted to the Congress.

The Wash­ing­ton Times wrote on Sep­tem­ber 18, 2001:

Sim­ply by pro­claim­ing a national emer­gency on Fri­day, Pres­i­dent Bush acti­vated some 500 dor­mant legal pro­vi­sions, includ­ing those allow­ing him to impose cen­sor­ship and mar­tial law.

The White House has kept sub­stan­tial infor­ma­tion con­cern­ing its pres­i­den­tial procla­ma­tions and direc­tives hid­den from Con­gress. For exam­ple, accord­ing to Steven After­good of the Fed­er­a­tion of Amer­i­can Sci­en­tists Project on Gov­ern­ment Secrecy:

Of the 54 National Secu­rity Pres­i­den­tial Direc­tives issued by the [George W.] Bush Admin­is­tra­tion to date, the titles of only about half have been pub­licly iden­ti­fied. There is descrip­tive mate­r­ial or actual text in the pub­lic domain for only about a third. In other words, there are dozens of undis­closed Pres­i­den­tial direc­tives that define U.S. national secu­rity pol­icy and task gov­ern­ment agen­cies, but whose sub­stance is unknown either to the pub­lic or, as a rule, to Congress.

Con­ti­nu­ity of Government

Con­ti­nu­ity of Gov­ern­ment (“COG”) mea­sures were imple­mented on 911. For exam­ple, accord­ing to the 911 Com­mis­sion Report, at page 38:

At 9:59, an Air Force lieu­tenant colonel work­ing in the White House Mil­i­tary Office joined the con­fer­ence and stated he had just talked to Deputy National Secu­rity Advi­sor Stephen Hadley. The White House requested (1) the imple­men­ta­tion of con­ti­nu­ity of gov­ern­ment mea­sures, (2) fighter escorts for Air Force One, and (3) a fighter com­bat air patrol over Wash­ing­ton, D.C.

Like­wise, page 326 of the Report states:

The sec­re­tary of defense directed the nation’s armed forces to Defense Con­di­tion 3, an increased state of mil­i­tary readi­ness. For the first time in his­tory, all non­emer­gency civil­ian air­craft in the United States were grounded, strand­ing tens of thou­sands of pas­sen­gers across the coun­try. Con­tin­gency plans for the con­ti­nu­ity of gov­ern­ment and the evac­u­a­tion of lead­ers had been implemented.

The Wash­ing­ton Post notes that Vice Pres­i­dent Dick Cheney ini­ti­ated the COG plan on 911:

From the bunker, Cheney offi­cially imple­mented the emer­gency con­ti­nu­ity of gov­ern­ment orders …

(See also foot­notes cited therein and this web­page.)

CNN reported that – 6 months later – the plans were still in place:

Because Bush has decided to leave the oper­a­tion in place, agen­cies includ­ing the White House and top civil­ian Cab­i­net depart­ments have rotated per­son­nel involved, and are dis­cussing ways to staff such a con­tin­gency oper­a­tion under the assump­tion it will be in place indef­i­nitely, this offi­cial said.

Sim­i­larly, the Wash­ing­ton Post reported in March 2002 that “the shadow gov­ern­ment has evolved into an indef­i­nite pre­cau­tion.” The same arti­cle goes on to state:

Assess­ment of ter­ror­ist risks per­suaded the White House to remake the pro­gram as a per­ma­nent fea­ture of ‘the new real­ity, based on what the threat looks like,’ a senior deci­sion­maker said.

As CBS pointed out, vir­tu­ally none of the Con­gres­sional lead­er­ship knew that the COG had been imple­mented or was still in exis­tence as of March 2002:

Key con­gres­sional lead­ers say they didn’t know Pres­i­dent Bush had estab­lished a “shadow gov­ern­ment,” mov­ing dozens of senior civil­ian man­agers to secret under­ground loca­tions out­side Wash­ing­ton to ensure that the fed­eral gov­ern­ment could sur­vive a dev­as­tat­ing ter­ror­ist attack on the nation’s cap­i­tal, The Wash­ing­ton Post says in its Sat­ur­day editions.

Sen­ate Major­ity Leader Thomas A. Daschle (D-S.D.) told the Post he had not been informed by the White House about the role, loca­tion or even the exis­tence of the shadow gov­ern­ment that the admin­is­tra­tion began to deploy the morn­ing of the Sept. 11 hijackings.

An aide to House Minor­ity Leader Richard A. Gephardt (D-​Mo.) said he was also unaware of the administration’s move.

Among Congress’s GOP lead­er­ship, aides to House Speaker J. Den­nis Hastert (Ill.), sec­ond in line to suc­ceed the pres­i­dent if he became inca­pac­i­tated, and to Sen­ate Minor­ity Leader Trent Lott (Miss.) said they were not sure whether they knew.

Aides to Sen. Robert C. Byrd (D-​W. Va.) said he had not been told. As Sen­ate pres­i­dent pro tem­pore, he is in line to become pres­i­dent after the House speaker.

Sim­i­larly, the above-​cited CNN arti­cle states:

Sen­ate Major­ity Leader Tom Daschle, D-​South Dakota, said Fri­day he can’t say much about the plan.

We have not been informed at all about the role of the shadow gov­ern­ment or its where­abouts or what par­tic­u­lar respon­si­bil­i­ties they have and when they would kick in, but we look for­ward to work with the admin­is­tra­tion to get addi­tional infor­ma­tion on that.”

Indeed, the White House has specif­i­cally refused to share infor­ma­tion about Con­ti­nu­ity of Gov­ern­ment plans with the Home­land Secu­rity Com­mit­tee of the U.S. Con­gress, even though that Com­mit­tee has proper secu­rity clear­ance to hear the full details of all COG plans.

Specif­i­cally, in the sum­mer 2007, Con­gress­man Peter DeFazio, on the Home­land Secu­rity Com­mit­tee (and so with proper secu­rity access to be briefed on COG issues), inquired about con­ti­nu­ity of gov­ern­ment plans, and was refused access. Indeed, DeFazio told Con­gress that the entire Home­land Secu­rity Com­mit­tee of the U.S. Con­gress has been denied access to the plans by the White House.

(Or here is the tran­script).

The Home­land Secu­rity Com­mit­tee has full clear­ance to view all infor­ma­tion about COG plans.

DeFazio con­cluded: “Maybe the peo­ple who think there’s a con­spir­acy out there are right”.

Uni­ver­sity of Cal­i­for­nia Berke­ley Pro­fes­sor Emer­i­tus Peter Dale Scott points out that – whether or not COG plans are still in effect – the refusal of the exec­u­tive branch to dis­close their details to Con­gress means that the Con­sti­tu­tional sys­tem of checks and bal­ances has already been gravely injured:

If mem­bers of the Home­land Secu­rity Com­mit­tee can­not enforce their right to read secret plans of the Exec­u­tive Branch, then the sys­tems of checks and bal­ances estab­lished by the U.S. Con­sti­tu­tion would seem to be failing.

To put it another way, if the White House is suc­cess­ful in frus­trat­ing DeFazio, then Con­ti­nu­ity of Gov­ern­ment plan­ning has arguably already super­seded the Con­sti­tu­tion as a higher author­ity.

Indeed, con­ti­nu­ity of gov­ern­ment plans are specif­i­cally defined to do the following:

  • Top lead­ers of the “new gov­ern­ment” called for in the COG would entirely or largely go into hid­ing, and would gov­ern in hid­den locations
  • Those within the new gov­ern­ment would know what was going on. But those in the “old gov­ern­ment” – that is, the one cre­ated by the framers of the Con­sti­tu­tion – would not nec­es­sar­ily know the details of what was happening
  • Nor­mal laws and legal processes might largely be sus­pended, or super­seded by secre­tive judi­cial forums
  • The media might be ordered by strict laws – pun­ish­able by trea­son – to only pro­mote sto­ries autho­rized by the new government

See this, this and this.

Could the White House have main­tained COG oper­a­tions to the present day?

I don’t know, but the fol­low­ing sec­tion from the above-​cited CNN arti­cle is not very reassuring:

Bush trig­gered the pre­cau­tions in the hours after the Sep­tem­ber 11 strikes, and has left them in place because of con­tin­u­ing U.S. intel­li­gence sug­gest­ing a pos­si­ble threat.

Con­cerns that al Qaeda could have gained access to a crude nuclear device “were a major fac­tor” in the president’s deci­sion, the offi­cial said. “The threat of some form of cat­a­strophic event is the trig­ger,” this offi­cial said.

This same offi­cial went on to say that the U.S. had no con­fir­ma­tion — “and no solid evi­dence” — that al Qaeda had such a nuclear device and also acknowl­edged that the “con­sen­sus” among top U.S. offi­cials was that the prospect was “quite low.”

Still, the offi­cials said Bush and other top White House offi­cials includ­ing Cheney were adamant that the gov­ern­ment take pre­cau­tions designed to make sure gov­ern­ment func­tions rang­ing from civil defense to trans­porta­tion and agri­cul­tural pro­duc­tion could be man­aged in the event Wash­ing­ton was the tar­get of a major strike.

As is appar­ent from a brief review of the news, the gov­ern­ment has, since 9/​11, con­tin­u­ously stated that there is a ter­ror­ist threat of a nuclear device or dirty bomb. That alone infers that COG plans could, hypo­thet­i­cally, still be in effect, just like the state of emer­gency is still in effect and has never been listed.

Indeed, Pres­i­dent Bush said on Decem­ber 17, 2005, 4 years after 911:

The autho­riza­tion I gave the National Secu­rity Agency after Sept. 11 helped address that prob­lem in a way that is fully con­sis­tent with my con­sti­tu­tional respon­si­bil­i­ties and authorities.

The activ­i­ties I have autho­rized make it more likely that killers like these 911 hijack­ers will be iden­ti­fied and located in time.

And the activ­i­ties con­ducted under this autho­riza­tion have helped detect and pre­vent pos­si­ble ter­ror­ist attacks in the United States and abroad.

The activ­i­ties I autho­rized are reviewed approx­i­mately every 45 days. Each review is based on a fresh intel­li­gence assess­ment of ter­ror­ist threats to the con­ti­nu­ity of our gov­ern­ment and the threat of cat­a­strophic dam­age to our homeland.

Dur­ing each assess­ment, pre­vi­ous activ­i­ties under the autho­riza­tion are reviewed. The review includes approval by our nation’s top legal offi­cials, includ­ing the attor­ney gen­eral and the coun­sel to the president.

I have reau­tho­rized this pro­gram more than 30 times since the Sept. 11 attacks [45 days times 30 equals approx­i­mately 4 years] and I intend to do so for as long as our nation faces a con­tin­u­ing threat from Al Qaeda and related groups.

The N.S.A.’s activ­i­ties under this autho­riza­tion are thor­oughly reviewed by the Jus­tice Depart­ment and N.S.A.’s top legal offi­cials, includ­ing N.S.A.’s gen­eral coun­sel and inspec­tor general.

In other words, it appears that as of Decem­ber 2005, COG plans had never been rescincded, but had been con­ti­nously renewed every 45 days, and .

In 2008, Tim Shorrock wrote at Salon:

A con­tem­po­rary ver­sion of the Con­ti­nu­ity of Gov­ern­ment pro­gram was put into play in the hours after the 911 ter­ror­ist attacks, when Vice Pres­i­dent Cheney and senior mem­bers of Con­gress were dis­persed to “undis­closed loca­tions” to main­tain gov­ern­ment func­tions. It was dur­ing this emer­gency period, Hamil­ton and other for­mer gov­ern­ment offi­cials believe, that Pres­i­dent Bush may have autho­rized the NSA to begin actively using the Main Core data­base for domes­tic sur­veil­lance [more on Main Core below]. One indi­ca­tor they cite is a state­ment by Bush in Decem­ber 2005, after the New York Times had revealed the NSA’s war­rant­less wire­tap­ping, in which he made a rare ref­er­ence to the emer­gency pro­gram: The Jus­tice Department’s legal reviews of the NSA activ­ity, Bush said, were based on “fresh intel­li­gence assess­ment of ter­ror­ist threats to the con­ti­nu­ity of our government.”

In 2007, Pres­i­dent Bush issued Pres­i­den­tial Direc­tive NSPD-​51, which pur­ported to change Con­ti­nu­ity of Gov­ern­ment plans. NSPD51 is odd because:

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.

  • As a reporter for Slate con­cluded after ana­lyz­ing NSPD-​51:

I see noth­ing in the [COG doc­u­ment enti­tled pres­i­den­tial direc­tive NSPD51] to pre­vent even a “local­ized” for­est fire or hur­ri­cane from giv­ing the pres­i­dent the right to throw long-​established con­sti­tu­tional gov­ern­ment out the window

  • White House spokesman Gor­don John­droe said that “because of the attacks of Sept. 11, 2001, the Amer­i­can pub­lic needs no expla­na­tion of [Con­ti­nu­ity of Gov­ern­ment] plans”

This is all the more bizarre when you real­ize that COG plans were orig­i­nally cre­ated solely to respond to a decap­i­tat­ing nuclear strike which killed our civil­ian lead­ers. (It was sub­se­quently expanded decades before 911 into a multi-​purpose plan by our good friends Dick Cheney and Don­ald Rums­feld. See this, this and this.)

Does COG Explain the Per­va­sive Spy­ing on Americans?

5 years ago, inves­tiga­tive reporter Christo­pher Ketcham dis­closed the spy­ing which was con­firmed last week by whistle­blower Edward Snowden:

The fol­low­ing infor­ma­tion seems to be fair game for col­lec­tion with­out a war­rant: the e-​mail addresses you send to and receive from, and the sub­ject lines of those mes­sages; the phone num­bers you dial, the num­bers that dial in to your line, and the dura­tions of the calls; the Inter­net sites you visit and the key­words in your Web searches; the des­ti­na­tions of the air­line tick­ets you buy; the amounts and loca­tions of your ATM with­drawals; and the goods and ser­vices you pur­chase on credit cards. All of this infor­ma­tion is archived on gov­ern­ment super­com­put­ers and, accord­ing to sources, also fed into the Main Core database.

Given that Ketcham was proven right, let’s see what else he reported:

Given that Ketcham was right about the basics, let’s hear what else the out­stand­ing inves­tiga­tive jour­nal­ist said in 2008:

There exists a data­base of Amer­i­cans, who, often for the slight­est and most triv­ial rea­son, are con­sid­ered unfriendly, and who, in a time of panic, might be incar­cer­ated. The data­base can iden­tify and locate per­ceived ‘ene­mies of the state’ almost instan­ta­neously.” He and other sources tell Radar that the data­base is some­times referred to by the code name Main Core. One knowl­edge­able source claims that 8 mil­lion Amer­i­cans are now listed in Main Core as poten­tially sus­pect. In the event of a national emer­gency, these peo­ple could be sub­ject to every­thing from height­ened sur­veil­lance and track­ing to direct ques­tion­ing and pos­si­bly even detention.”

***

Accord­ing to one news report, even “national oppo­si­tion to U.S. mil­i­tary inva­sion abroad” could be a trig­ger [for mar­tial law ].

***

When COG plans are shrouded in extreme secrecy, effec­tively unreg­u­lated by Con­gress or the courts, and mar­ried to an over­reach­ing sur­veil­lance state — as seems to be the case with Main Core—even sober observers must weigh whether the pro­tec­tions put in place by the fed­eral gov­ern­ment are becom­ing more dan­ger­ous to Amer­ica than any out­side threat.

Another well-​informed source — a for­mer mil­i­tary oper­a­tive reg­u­larly briefed by mem­bers of the intel­li­gence com­mu­nity — says this par­tic­u­lar pro­gram has roots going back at least to the 1980s and was set up with help from the Defense Intel­li­gence Agency. He has been told that the pro­gram uti­lizes soft­ware that makes pre­dic­tive judg­ments of tar­gets’ behav­ior and tracks their cir­cle of asso­ci­a­tions with “social net­work analy­sis” and arti­fi­cial intel­li­gence mod­el­ing tools.

***

A for­mer NSA offi­cer tells Radar that the Trea­sury Department’s Finan­cial Crimes Enforce­ment Net­work, using an electronic-​funds trans­fer sur­veil­lance pro­gram, also con­tributes data to Main Core, as does a Pen­ta­gon pro­gram that was cre­ated in 2002 to mon­i­tor anti­war pro­test­ers and envi­ron­men­tal activists such as Green­peace.

***

If pre­vi­ous FEMA and FBI lists are any indi­ca­tion, the Main Core data­base includes dis­si­dents and activists of var­i­ous stripes, polit­i­cal and tax pro­test­ers, lawyers and pro­fes­sors, pub­lish­ers and jour­nal­ists, gun own­ers, ille­gal aliens, for­eign nation­als, and a great many other harm­less, aver­age peo­ple.

A vet­eran CIA intel­li­gence ana­lyst who main­tains active high-​level clear­ances and serves as an advi­sor to the Depart­ment of Defense in the field of emerg­ing tech­nol­ogy tells Radar that dur­ing the 2004 hos­pi­tal room drama, [cur­rent nom­i­nee to head the FBI, and for­mer Deputy Attor­ney Gen­eral] James Comey expressed con­cern over how this secret data­base was being used “to accu­mu­late oth­er­wise pri­vate data on non-​targeted U.S. cit­i­zens for use at a future time.” [Snow­den and high-​level NSA whistle­blower William Bin­ney have since con­firmed this] …. A source reg­u­larly briefed by peo­ple inside the intel­li­gence com­mu­nity adds: “Comey had dis­cov­ered that Pres­i­dent Bush had autho­rized NSA to use a highly clas­si­fied and com­part­men­tal­ized Con­ti­nu­ity of Gov­ern­ment data­base on Amer­i­cans in com­put­er­ized searches of its domes­tic inter­cepts. [Comey] had con­cluded that the use of that ‘Main Core’ data­base com­pro­mised the legal­ity of the over­all NSA domes­tic sur­veil­lance project.”

***

The vet­eran CIA intel­li­gence ana­lyst notes that Comey’s sug­ges­tion that the offend­ing ele­ments of the pro­gram were dropped could be mis­lead­ing: “Bush [may have gone ahead and] signed it as a National Intel­li­gence Find­ing any­way.” But even if we never face a national emer­gency, the mere exis­tence of the data­base is a mat­ter of con­cern. “The capac­ity for future use of this infor­ma­tion against the Amer­i­can peo­ple is so great as to be vir­tu­ally unfath­omable,” the senior gov­ern­ment offi­cial says.

In any case, mass watch lists of domes­tic cit­i­zens may do noth­ing to make us safer from ter­ror­ism. Jeff Jonas, chief sci­en­tist at IBM, a world-​renowned expert in data min­ing, con­tends that such efforts won’t pre­vent ter­ror­ist con­spir­a­cies. “Because there is so lit­tle his­tor­i­cal ter­ror­ist event data,” Jonas tells Radar, “there is not enough vol­ume to cre­ate pre­cise predictions.”

***

[J. Edgar Hoover’s] FBI “secu­rity index” was allegedly main­tained and updated into the 1980s, when it was report­edly trans­ferred to the con­trol of none other than FEMA (though the FBI denied this at the time).

FEMA, how­ever — then known as the Fed­eral Pre­pared­ness Agency — already had its own domes­tic sur­veil­lance sys­tem in place, accord­ing to a 1975 inves­ti­ga­tion by Sen­a­tor John V. Tun­ney of Cal­i­for­nia. Tun­ney, the son of heavy­weight box­ing cham­pion Gene Tun­ney and the inspi­ra­tion for Robert Redford’s char­ac­ter in the film The Can­di­date, found that the agency main­tained elec­tronic dossiers on at least 100,000 Amer­i­cans that con­tained infor­ma­tion gleaned from wide-​ranging com­put­er­ized sur­veil­lance. The data­base was located in the agency’s secret under­ground city at Mount Weather, near the town of Blue­mont, Vir­ginia. [One of the main head­quar­ter of COG oper­a­tions.] The senator’s find­ings were con­firmed in a 1976 inves­ti­ga­tion by the Pro­gres­sive mag­a­zine, which found that the Mount Weather com­put­ers “can obtain mil­lions of pieces [of] infor­ma­tion on the per­sonal lives of Amer­i­can cit­i­zens by tap­ping the data stored at any of the 96 Fed­eral Relo­ca­tion Cen­ters” — a ref­er­ence to other clas­si­fied facil­i­ties. Accord­ing to the Pro­gres­sive, Mount Weather’s data­bases were run “with­out any set of stated rules or reg­u­la­tions. Its sur­veil­lance pro­gram remains secret even from the lead­ers of the House and the Sen­ate.”

***

Wired mag­a­zine turned up addi­tional dam­ag­ing infor­ma­tion, reveal­ing in 1993 that [Oliver] North, oper­at­ing from a secure White House site, allegedly employed a soft­ware data­base pro­gram called PROMIS (osten­si­bly as part of the REX 84 plan). PROMIS, which has a strange and con­tro­ver­sial his­tory, was designed to track indi­vid­u­als — pris­on­ers, for exam­ple — by pulling together infor­ma­tion from dis­parate data­bases into a sin­gle record. Accord­ing to Wired, “Using the com­put­ers in his com­mand cen­ter, North tracked dis­si­dents and poten­tial trou­ble­mak­ers within the United States. Com­pared to PROMIS, Richard Nixon’s ene­mies list or Sen­a­tor Joe McCarthy’s black­list look down­right crude.” Sources have sug­gested to Radar that gov­ern­ment data­bases track­ing Amer­i­cans today, includ­ing Main Core, could still have PROMIS-​based legacy code from the days when North was run­ning his programs.

***

Marty Led­er­man, a high-​level offi­cial at the Depart­ment of Jus­tice under Clin­ton, writ­ing on a law blog last year, won­dered, “How extreme were the pro­grams they imple­mented [after 9/​11]? How egre­gious was the law­break­ing?” Con­gress has tried, and mostly failed, to find out.

***

We are at the edge of a cliff and we’re about to fall off,” says con­sti­tu­tional lawyer and for­mer Rea­gan admin­is­tra­tion offi­cial Bruce Fein. “To a national emer­gency plan­ner, every­body looks like a dan­ger to sta­bil­ity. There’s no doubt that Con­gress would have the author­ity to denounce all this — for exam­ple, to refuse to appro­pri­ate money for the prepa­ra­tion of a list of U.S. cit­i­zens to be detained in the event of mar­tial law. But Con­gress is the inver­te­brate branch.

***

UPDATE [from Ketcham]: Since this arti­cle went to press, sev­eral doc­u­ments have emerged to sug­gest the story has longer legs than we thought. Most trou­bling among these is an Octo­ber 2001 Jus­tice Depart­ment memo that detailed the extra-​constitutional pow­ers the U.S. mil­i­tary might invoke dur­ing domes­tic oper­a­tions fol­low­ing a ter­ror­ist attack. In the memo, John Yoo, then deputy assis­tant attor­ney gen­eral, “con­cluded that the Fourth Amend­ment had no appli­ca­tion to domes­tic mil­i­tary oper­a­tions.” (Yoo, as most read­ers know, is author of the infa­mous Tor­ture Memo that, in bizarro fash­ion, rejig­gers the def­i­n­i­tion of “legal” tor­ture to allow pretty much any­thing short of mur­der.) In the Octo­ber 2001 memo, Yoo refers to a clas­si­fied DOJ doc­u­ment titled “Author­ity for Use of Mil­i­tary Force to Com­bat Ter­ror­ist Activ­i­ties Within the United States.” Accord­ing to the Asso­ci­ated Press, “Exactly what domes­tic mil­i­tary action was cov­ered by the Octo­ber memo is unclear. But fed­eral doc­u­ments indi­cate that the memo relates to the National Secu­rity Agency’s Ter­ror­ist Sur­veil­lance Pro­gram.” Attor­ney Gen­eral John Mukasey last month refused to clar­ify before Con­gress whether the Yoo memo was still in force.

Amer­i­cans have the right to know whether a COG pro­gram is still in effect, and whether the spy­ing on our phone calls and Inter­net usage stems from such COG plans. Indeed, 911 was a hor­ri­ble blow, but it was not a decap­i­tat­ing nuclear strike on our lead­ers … so COG and the state of emer­gency should be lifted.

If COG plans are not still in effect, we have the right to demand that “ene­mies lists” and spy­ing capa­bil­i­ties devel­oped for the pur­pose of respond­ing to a nuclear war be dis­carded , as we have not been hit by nuclear weapons … and our civil­ian lead­ers – on Cap­i­tal Hill, the White House, and the judi­ciary – are still alive and able to govern.

Edi­tor note: So this all started because of 911, But we can’t ask any hard ques­tions about 911

Also see this.

Note: Some links were updated on this site

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