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Is the State of Emergency Superseding the US Constitution? Continuity of Government Planning, War and American Society

Published online by Cambridge University Press:  07 May 2025

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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 North had been handling plans for an emergency response to a nuclear attack (a legitimate concern). But press accounts alleged that the planning was for a more generalized suspension of the constitution at the president's determination.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution-NonCommercial-No Derivatives licence (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original work is unaltered and is properly cited. The written permission of Cambridge University Press must be obtained for commercial re-use or in order to create a derivative work.
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References

Notes

1 New York Times, July 14, 1987. 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. Rather than through legislation, it was created by Top Secret presidential fiat. In fact, Congress would have no role in the new wartime administration. ‘One of the awkward questions we faced,' said one of the participants, ‘was whether to reconstitute Congress after a nuclear attack. It was decided that no, it would be easier to operate without them.'” (James Bamford, A Pretext for War: 9/11, Iraq, and the Abuse of America's Intelligence Agencies [New York: Doubleday, 2004], 74); cf. James Mann, The Rise of the Vulcans: The History of Bush's War Cabinet [New York: Viking, 2004], 145). But key individuals in Congress were, such as Sen. Inouye of the Senate Intelligence Committee, were certainly aware of something.

2 Miami Herald, July 5, 1987. In October 1984 Jack Anderson reported that FEMA's plans would “suspend the Constitution and the Bill of Rights, effectively eliminate private property, abolish free enterprise, and generally clamp Americans in a totalitarian vise.”

3 Diana Reynolds, The Rise of the National Security State: FEMA and the NSC, Political Research Associates, Covert Action Information Bulletin, #33 (Winter 1990). “Earlier, Governor Reagan in California had authorized the development of a counterinsurgency plan (known as Cable Splicer) and exercises to deal with such crises, in conjunction with the U.S. Sixth Army and the Pentagon (Operation Garden Plot). The cadres developing Cable Splicer (headed by Louis Giuffrida), were with Reagan's elevation to the presidency transferred into FEMA. As head of FEMA, Giuffrida pursued plans for massive detention of dissidents; these became so extreme that even Reagan's attorney general, William French Smith, raised objections” (Scott, The Road to 9/11, 184; citing Gelbspan, Break-ins, 184).

4 Tim Weiner, New York Times, April 17, 1994.

5 Bamford, A Pretext for War, 74; cf. James Mann, The Rise of the Vulcans: The History of Bush's War Cabinet (New York: Viking, 2004), 138-45.

6 Tim Shorrock, Spies for hire: the secret world of intelligence outsourcing (New York: Simon & Schuster, 2008)., 78; Shirley Anne Warshaw, The co-presidency of Bush and Cheney (Stanford, Calif. : Stanford Politics and Policy, 2009), 162

7 The provisions of Executive Order 12656 of Nov. 18, 1988, appear at 53 FR 47491, 3 CFR, 1988 Comp., p. 585, link. The Washington Post (March 1, 2002) later claimed, falsely, that Executive Order 12656 dealt only with “a nuclear attack.” Earlier there was a similar misrepresentation in the New York Times (November 18, 1991).

8 Ross Gelbspan, Break-ins, Death Threats, and the FBI (Boston: South End Press, 1991), 184; cf. New York Times, November 18, 1991. REX 84 (short for Readiness Exercise 84) turned out to be part of a series of such exercises (now known as Continuity of Operations Exercises) that have continued under FEMA down into the Obama era. See for example the Department of Homeland Press Release, “DHS Conducts Continuity of Operations Exercise,” June 17, 2009, link.

9 In stressing the alteration of our present political milieu by an extra-governmental group, I do not intend to exonerate Congress. In 1981 Congress passed the Military Cooperation with Civilian Law Enforcement Agencies Act. According to a brilliant and prescient essay written by an Air Force Colonel at the National War College, the Act “was specifically intended to force reluctant military commanders to actively collaborate in police work” (Air Force Lt. Col. Charles E. Dunlap, “The Origins of the American Military Coup of 2012;” quoted in Harry G. Summers, The new world strategy: a military policy for America's future (New York: Simon & Schuster, 1995), 195.

10 9/11 Commission Report, 38, 326; Peter Dale Scott, The Road to 9/11: Wealth, Empire, and the Future of America (Berkeley and Los Angeles: University of California Press, 2007), 228-29.

11 Alfred Goldberg et al., Pentagon 9/11 (Washington: Department of Defense, 2007), 132.

12 Warshaw, The co-presidency of Bush and Cheney, 164-65; cf. Washington Post, March 1, 2002; Scott, Road to 9/11, 237. Warshaw took the characterization of “shadow government” from earlier reports by U.S. News and World Report in 1989, and CNN in 1991 (Warshaw, 162).

13 Scott, Road to 9/11, 238, 240-41.

14 “The exercise anticipated civil disturbances, major demonstrations and strikes that would affect continuity of government and/or resource mobilization. To fight subversive activities, there was authorization for the military to implement government ordered movements of civilian populations at state and regional levels, the arrest of certain unidentified segments of the population, and the imposition of martial rule” (Diana Reynolds, “The Rise of the National Security State: FEMA and the NSC,” Political Research Associates, Covert Action Information Bulletin, #33 (Winter 1990).

15 “NSPD-9: Combating Terrorism,” Federation of American Scientists: “On April 1, 2004, the White House released the following characterization of this otherwise classified document: “The NSPD called on the Secretary of Defense to plan for military options ‘against Taliban targets in Afghanistan, including leadership, command-control, air and air defense, ground forces, and logistics.' The NSPD also called for plans ‘against al Qaeda and associated terrorist facilities in Afghanistan, including leadership, command-control-communications, training, and logistics facilities.'“

16 “NSPD-9: Combating Terrorism,” citing testimony of Donald Rumsfeld before 9/11 Commission, March 23, 2304. Cf. Richard Clarke, Against All Enemies, 237-38; Steve Coll, Ghost Wars (New York: Penguin, 2004), 574-76; 9/11 Commission Report, 212-14. A draft of the presidential directive had originally been circulated in June 2001 (9/11 Commission Report, 208). But the directive approved on September 4 was for covert action only (9/11 Commission Report, 213).

17 James Bamford, A Pretext for War, 287.

18 Jennifer Van Bergen, “The USA PATRIOT Act Was Planned Before 9/11,” Truthout.org, May 20, 2002. Van Bergen notes a parallel with the Patriot Act's predecessor, the Antiterrorism Act of 1996: “James X. Dempsey and David Cole state in their book, ‘Terrorism & the Constitution: Sacrificing Civil Liberties in the Name of National Security,' that the most troubling provisions of the pre-USAPA anti-terrorism laws, enacted in 1996 and expanded now by the USAPA, ‘were developed long before the bombings [i.e. the Oklahoma bombing of 1995] that triggered their final enactment.'”

19 Cf. Time, Nov. 26, 2001: “While Daschle, the Senate majority leader, could have been chosen as a representative of all Democrats or of the entire Senate, Leahy is a less obvious choice, most likely targeted for a specific reason. He is head of the Senate Judiciary Committee, which is involved in issues ranging from antitrust action to antiterror legislation” [emphasis added]. See also Anthony York, “Why Daschle and Leahy?” Salon, November 21, 2001.

20 Glenn Greenwald, “Vital unresolved anthrax questions and ABC News,” Salon, August 1, 2008.

21 Lew Dubose and Jake Bernstein, Vice: Dick Cheney and the Hijacking of the American Presidency (New York: Random House, 2006), 28: “Dick Cheney…would spend the rest of his career working to restore the Nixon vision of an all-powerful executive, by undoing the Watergate reforms that came out of the early seventies.”

22 Schwarz and Huq, Unchecked and Unbalanced, 174; emphasis added.

23 Lew Dubose and Jake Bernstein, Vice: Dick Cheney and the Hijacking of the American Presidency, 187-90; citing John Yoo memos of September 25, 2001 (“deploy”) and January 2002 (“do not protect”).

24 Department of Justice, “Review of the Terrorist Screening Center,” link.

25 Naomi Wolf, “Fascist America,” Guardian (London), April 24, 2007.

26 “Former U.S. Marine Placed On ‘No Fly’ List, Sues FBI,” NPR, August 5, 2010, link. Even my two-year old grandson and his family were taken aside for special questioning at the airport, because of his middle name, Yusuf.

27 Scott Shane, “American Man in Limbo on No-Fly List,” New York Times, June 16, 2010.

28 U.S. Department of Defense, “U.S. Northern Command,” link. Cf. John R. Brinkerhoff, PBS, Online Newshour, 9/27/02: “The United States itself is now for the first time since the War of 1812 a theater of war. That means that we should apply, in my view, the same kind of command structure in the United States that we apply in other theaters of war.” Brinkerhoff had earlier developed the martial law provisions of REX 84 in the Reagan era.

29 Shorrock, Spies for Hire, 344.

30 Julian Assange, “The spy who billed me twice,” Wikileaks. The March 2009 Army manual “US Army Concept of Operations for Police Intelligence Operations” contains phrases such as “It [fusion] does not have constraints that are emplaced on MI [Military Intelligence] activities within the US, because it operates under the auspice and oversight of the police discipline and standards.”

31 “Notice-Continuation of the National Emergency With Respect to Persons Who Commit, Threaten To Commit, or Support Terrorism,” Daily Compilation Of Presidential Documents “(”Author: Obama, Barack H“), September 16, 2010, link.

32 Humanitarian Law Project v. United States Department of Treasury.

33 Scott, The Road to 9/11: Wealth, Empire, and the Future of America (Berkeley and Los Angeles: University of California Press, 2007), 183-87.

34 Mann, Rise of the Vulcans, 142 (order); (Boulder, CO: Westview Press), pp. 59, 71, 102-104, and 158-178 (NSDD 55); Andrew Cockburn, Rumsfeld: His Rise, Fall, and Catastrophic Legacy (New York: Scribner, 2007), 88 (2001).

35 Andrew Cockburn, Rumsfeld: His Rise, Fall, and Catastrophic Legacy (New York: Scribner, 2007), 88.

36 Richard A. Clarke, Against All Enemies: Inside America's War on Terrorism (New York: Simon & Schuster, 2004), 8, 165-75.

37 Shorrock, Spies for hire, 72-75, 292-96. Warshaw and others have referred to the whole COG operation as “Project 908;” but on the basis of available evidence I believe that Project 908 was the construction program only, as opposed to the planning and exercises which also took place. Project 908 attracted the attention of Steve Emerson and other journalists in 1989, when it was revealed that there had been huge cost overruns, double billing for the same work, and eventually destruction of many key contract documents in the course of an Army investigation. The son of the Army general overseeing the project, former Congressman Rick Renzi, was eventually indicted in 2008 on related charges of extortion, fraud, money laundering and other crimes. Steven Emerson, “America's Doomsday Project,” U.S. News & World Report, August 7, 1989, 26-31. As of this writing, Rick Renzi's trial, which was scheduled to begin in March 2010, “has been postponed indefinitely” (Arizona Republic, March 16, 2010,

38 See e.g. Richard A. Clarke, Against All Enemies, 91.

39 See discussion in Scott, Road to 9/11, 223-36. There were reports that when Bush was airborne in Air force One on 9/11, there were connectivity problems forcing the president to use an ordinary cell phone (Paul Thompson, The Terror Timeline: Year by Year, Day by Day, Minute by Minute [NewYork: HarperCollins/Regan Books, 2004], 437). This may help explain why Air Force One eventually flew to Offutt Air Force Base near Omaha, where the E4-B “Doomsday Planes” are based.

40 CNN, September 11, 2007, video. On the CNN show 9/11 Commission Co-chair Lee Hamilton said he had a vague memory of the mystery plane story, but that it was never discussed by the 9/11 Commission. CNN promptly withdrew its 9/11 E-4B story from its website (“CNN Pulls 9/11 E4B ‘Doomsday’ Plane Video Over White House,” digg, September 13, 2007,

41 Federal Emergency Management Agency, Federal Continuity Directive 1, link. NSPD-51 also nullified PDD 67, Richard Clarke's COG directive of a decade earlier; and it referred to new “classified Continuity Annexes” which shall “be protected from unauthorized disclosure.”

42 Dennis Kucinich, David Swanson, Elizabeth De La Vega, The 35 Articles of Impeachment and the Case for Prosecuting George W. Bush ([Port Townsend, Wash.] : Feral House, [2008]), 81; Peter Dale Scott, “Congress, the Bush Administration and Continuity of Government Planning: The Showdown,” CounterPunch, March 31, 2008.

43 “Notice: Continuation of the National Emergency with Respect to Certain Terrorist Attacks,” Federal Register, September 12, 2007, link, emphasis added.

44 “Notice from the President on the Continuation of the National Emergency with Respect to Certain Terrorist Attacks:.…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, 2010. 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. BARACK OBAMA, THE WHITE HOUSE, September 10, 2010,” link.

45 This language overruled the specification in President Ford's Executive Order 11921 the same year, that, when a state of emergency was declared by the President, Congress could not review the matter for a period of six months.

46 Cf. Peter Dale Scott and Dam Hamburg, “To All Readers: Help Force Congress To Observe the Law on National Emergencies!!!,” 911Truth.org, March 24, 2009, link.

47 Peter Dale Scott, “To All Readers: Help Force Congress To Observe the Law on National Emergencies!!!” (with Dan Hamburg), http.//www.truth.org, March 24, 2009.

48 White House Press Release, September 10, 2009, link. A press briefing by Obama's spokesman Robert Gibbs the same day did not mention the extension.

49 White House Press Release, September 10, 2010, link.

50 James Mann, Rise of the Vulcans, 145.

51 CNN Special Assignment, November 17, 1991.