In "X-Files" one of the characters explains that "FEMA allows the White House to suspend constitutional government upon declaration of a national emergency. It allows creation of a non-elected government. "Think about that, Agent Mulder."
The Washington Post's federal column made fun of the claim, and quoted FEMA public affairs guidance about the movie that essentially paints those concerned with the agency's potential role as kooks. Says the FEMA spinhead: "it is not realistic to think that we can convince them otherwise and it is advisable not to enter into debate on the subject." FEMA suggests that officials can "emphatically state that FEMA does not have, never has had, nor will ever seek, the authority to suspend the Constitution."
This is just plain untrue. Not only have there been past plans for FEMA and the military to assume an extra-constitutional role, but a recent presidential directive suggest that it is still a possibility not far from the Clinton administration's thoughts. Presidential Decision Directive #63 on "critical infrastructure protection" specifically assigns FEMA the task of "continuity of government" services, the precise term used in previous plans for a anti-constitutional takeover in a time of crisis. Further, as with previous plans, the Clinton order is stunningly silent on any role in such an emergency for the legislative and judicial branches or for state and local government.
A recent article in the Army War College's journal Parameters, expresses what appears to be the dominant administration attitude on the matter:
"Strategic leaders can take solace in the lessons learned from military participation in domestic disaster relief, for the record indicates that legal niceties or strict construction of prohibited conduct will be a minor concern. The exigencies of the situation seem to overcome legal proscriptions arguably applicable to our soldiers' conduct. Pragmatism appears to prevail when American soldiers help their fellow citizens."
SOME HISTORY: In a July 1983 series in the San Francisco Examiner, two-time Pulitzer Prize winner Knut Royce reported that a presidential directive had been drafted by a few Carter administration personnel in 1979 to allow the military to take control of the government for 90 days in the event of an emergency. A caveat on page one of the directive said, "Keeping the government functioning after a nuclear war is a secret, costly project that detractors claim jeopardizes US traditions and saves a privileged few." According to Royce there was a heated debate within the Carter administration as to just what constituted an "emergency."
The issue arose again during the Iran-Contra affair, but even in the wake of all the copy on that scandal, the public got little sense of how far some America's soldiers of fortune were willing to go to achieve their ends. When the Iran-Contra hearings came close to the matter, chair Senator Inouye backed swiftly away. Here is an excerpt from those hearings. Oliver North is at the witness table:
REP BROOKS: Colonel North, in your work at the NSC, were you not assigned, at one time, to work on plans for the continuity of government in the event of a major disaster?With few exceptions, the media ignored what well could be the most startling revelation to have come out of the Iran/Contra affair, namely that high officials of the US government were planning a possible military/civilian coup. First among the exceptions was the Miami Herald, which on July 5, 1987, ran the story to which Jack Brooks referred. The article, by Alfonzo Chardy, revealed Oliver North's involvement in plans for the Federal Emergency Management Agency to take over federal, state and local functions during an ill-defined national emergency.
BRENDAN SULLIVAN: Mr. Chairman?
SEN INOUYE: I believe that question touches upon a highly sensitive and classified area so may I request that you not touch on that.
REP BROOKS: 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 the area in which he had worked. I believe that it was and I wanted to get his confirmation.
SEN INOUYE; 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
The Constitution does not directly address the question of what should happen in the midst of a major national catastrophe. But neither does it give the slightest support to notions of turning matters over to non-elected civilian or military officials with plenary powers. The best guide is to be found in Amendment Ten which states that the powers of the federal government are those delegated to it by the states and the people. The states and the people have not delegated the power of martial law. Thus in a true crisis (such as a nuclear attack) the answer seems quite plain: the country would be run as a loose confederation of fifty states until a legitimate federal government could be re-established. In the interim, the highest constitutional officials in the land would be the governors.
According to Chardy, the plan called for 'suspension of the Constitution, turning control of the government over to the Federal Management Agency, emergency appointment of military commanders to run state and local governments and declaration of martial law.' The proposal appears to have forgotten that Congress, legislatures and the judiciary even existed.
In a November 18, 1991 story, the New York Times elaborated:
"Acting outside the Constitution in the early 1980s, a secret federal agency established a line of succession to the presidency to assure continued government in the event of a devastating nuclear attack, current and former United States officials said today."
The program was called "Continuity of Government." In the words of a report by the Fund for Constitutional Government, "succession or succession-by-designation would be implemented by unknown and perhaps unelected persons who would pick three potential successor presidents in advance of an emergency. These potential successors to the Oval Office may not be elected, and they are not confirmed by Congress.
According to CNN, the list eventually grew to 17 names and included Howard Baker, Richard Helms, Jeanne Kirkpatrick James Schlesinger, Richard Thornberg, Edwin Meese, Tip O'Neil, and Richard Chaney.
The plan was not even limited to a nuclear attack but included any "national security emergency" which was defined as:
"Any occurrence, including natural disaster, military attack, technological or other emergency, that seriously degrades or seriously threatens the national security of the United States."
This bizarre scheme was dismissed in many Washington quarters as further evidence of the loony quality of the whole Iran/contra affair. One FEMA official called it a lot of crap while a representative for Attorney General Meese described it as 'bullshit."
The problem is that there is a long history of compatibility between madness and totalitarian takeovers, Adolph Hitler being a prime but far from lone example. Further, there is plenty of evidence in this case that the planning was far more than simply an off-the-wall brainstorm. At least one report found that the US Army had even gone so far as to draft a legal document providing justifications for martial law.
Nor was the planning limited to crises involving the total breakdown of society as in the aftermath of a nuclear attack. Among the justifiable uses of martial law were "national opposition to a US military invasion abroad" and widespread internal dissent.
At least one high government official took the plan seriously enough to vigorously oppose it. In a August 1984 letter to NSC chair Robert McFarlane, Attorney General William French Smith wrote:
"I believe that the role assigned to the Federal Emergency Management Agency in the revised Executive Order exceeds its proper function as a coordinating agency for emergency preparedness . . . This department and others have repeatedly raised serious policy and legal objections to the creation of an 'emergency czar' role for FEMA."
FEMA was clearly out of control. Another memo, written in 1982 to then FEMA director Louis Giuffrida and given only tightly restricted circulation even within the agency, made this astonishing assertion:
"Over the long term, the peacetime action programs of FEMA and other departments and agencies have the effect of making the conceivable need for military takeover less and less as time goes by. A fully implemented civil defense program may not now be regarded as a substitute for martial law, nor could it be so marketed, but if successful in its execution it could have that effect."
The memo essentially proposed that the American people would rather be taken over by FEMA than by the military. When those are the options on the table, you know you're in trouble.
The head of FEMA until 1985, Giuffrida also once wrote a paper on the Legal Aspects of Managing Disorders. Here is some of what he said:
"No constitution, no statute or ordinance can authorize Martial Rule. [It commences] upon a determination (not a declaration) by the senior military commander that the civil government must be replaced because it is no longer functioning anyway . . . The significance of Martial Rule in civil disorders is that it shifts control from civilians and to the military completely and without the necessity of a declaration, proclamation or other form of public manifestation . . . As stated above, Martial Rule is limited only by the principle of necessary force."
Those words come from a time when Giuffrida was the head of then-Governor Reagan's California Specialized Training Institute, a National Guard school. It was not, for Giuffrida, a new thought. In 1970 he had written a paper for the Army War College in which he called for martial law in case of a national uprising by black militants. Among his ideas were "assembly centers or relocation camps" for at least 21 million "American Negroes."
During 1968 and 1972, Reagan ran a series of war games in California called Cable Splicer, which involved the Guard, state and local police, and the US Sixth Army. Details of this operation were reported in 1975 in a story by Ron Ridenour of the New Times, an Arizona alternative paper, and later exhumed by Dave Lindorff in the Village Voice.
Cable Splicer, it turned out, was a training exercise for martial law. The man in charge was none other than Edwin Meese, then Reagan's executive secretary. At one point, Meese told the Cable Splicer combatants:
"This is an operation, this is an exercise, this is an objective which is going forward because in the long run . . . it is the only way that will be able to prevail [against anti-war protests.]"
Addressing the kickoff of Cable Splicer, Governor Reagan told some 500 military and police officers:
"You know, there are people in the state who, if they could see this gathering right now and my presence here, would decide their worst fears and convictions had been realized -- I was planning a military takeover."
The Reaganites were not, however, the only ones with such thoughts. Consider this from a NSC directive written by Frank Carlucci in 1981:
"Normally a state of martial law will be proclaimed by the President. However, in the absence of such action by the President, a senior military commander may impose martial law in an area of his command where there had been a complete breakdown in the exercise of government functions by local civilian authorities."
