WASHINGTON — Newly leaked documents have shed light on the executive branch’s covert plans for doomsday scenarios — like the aftermath of a nuclear attack — when the president can activate wartime powers for national security emergencies.
So far, public knowledge of what the government has put into these classified guidelines, which invoke emergency and wartime powers granted by Congress or claimed by presidents, has been limited to declassified descriptions of those developed at the start of the Cold War. At that time, they included such measures as the imposition of martial law, the arrest of those deemed dangerous, and the censorship of foreign news.
The contents of the modern guidelines — known as Presidential Emergency Action Documents — are unclear, as under the two-party administrations none have been made public or shown to Congress. But recently leaked documents, which relate to efforts by the George W. Bush administration to revise draft orders after the September 11, 2001, attacks, offer clues.
Several of the files, provided to the New York Times by the Brennan Center for Justice, show that the Bush-era effort has partly focused on legislation that allows the president to take control or shut down communications networks. in times of war. This suggests that the government may have crafted or revised such an ordinance in light of the explosive growth of the consumer Internet in the 1990s.
Highlighting how little lawmakers and the public can infer from this, another filing, from the summer of 2008, mentioned that Justice Department lawyers were reviewing an unidentified draft order in light of a recent opinion of the Supreme Court. The memo doesn’t specify the ruling, but the court had just issued landmark rulings on topics that could relate to government actions in an emergency — one on gun rights in the United States and the another on the rights of Guantánamo detainees to hearings.
“The bottom line is that these documents leave no doubt that the post-9/11 emergency action documents have direct and significant implications for Americans’ civil liberties,” said Elizabeth Goitein of the Brennan Center for Justice of New York University. “And yet, there is no oversight by Congress. And that is unacceptable. »
While it’s unclear how the guidelines have evolved since the later stages of the Cold War, Ms Goitein said they likely expanded to include other scenarios beyond a devastating nuclear attack. The documents show that subsequent releases grew from one category to seven, although their topics remain secret and fall under the purview of agencies with different areas of interest.
Newly leaked documents show there were 48 directives when the Bush administration took office; by 2008, that number had risen to 56. Vice President Dick Cheney’s office was involved in reviewing and “clearing” orders. The documents show no consultation with Congress.
Several Bush administration officials whose names were mentioned in the documents, speaking in the background to discuss matters that remain classified, described the effort as bureaucratic “good management.” That seemed prudent as the government refocused to focus on national security after the September 11 attacks, they said.
The Brennan Center for Justice, which collected documents on presidential emergency action documents, obtained the files under the Freedom of Information Act from the Bush Presidential Library. The disclosures constituted approximately 500 pages, while an additional approximately 6,000 pages were held as classified.
The disclosures come after the House passed a bill in December that would impose significant restrictions on executive power after the Trump years, including a provision that would require disclosure of emergency action documents to congressional overseers.
The bill, called the Protecting Our Democracy Act, is unlikely to pass the Senate, where Republicans can block it with a filibuster. But supporters of imposing new limits on presidential emergency powers, with some bipartisan support, plan to try later this year to tie a party to an annual defense authorization law that is seen as a legislation “must be adopted”.
It is not yet clear whether the provision on emergency action documents would be included in such a step. But Sen. Edward J. Markey, Democrat of Massachusetts, who drafted the provision as stand-alone legislation in 2020, said Congress had an opportunity to bring some responsibility to emergency planning.
“It is our duty as lawmakers to demand that the executive branch turn over documents so that Congress, as representatives of the American people, can assess the constitutionality of any future president’s attempt to exploit an emergency to assume extraordinary powers,” he said in a statement. at the Times.
Mr. Markey proposed his bill after President Donald J. Trump claimed he was exercising “total” authority in the early days of the coronavirus pandemic and declared a national emergency.
More is known about versions of the draft Emergency Action Orders from the 1950s and 1960s, as some were mentioned or described in memos that have since been declassified. For example, they included directives imposing versions of martial law, censoring news crossing the border and suspending court hearings for those detained. It is unclear if the current set includes similar actions.
Another early Emergency Action Ordinance, dating from the 1950s, was prepared to create military zones prohibiting certain categories of people. The directive echoed how the government barred Japanese and Japanese Americans from large swaths of the west coast during World War II, leading to their internment. In 1967, the Department of Justice recommended dropping that one, a memo declassified in 2019 shows.
“Large-scale criticism of the Japanese relocation program is well known and well founded,” the 1967 memo stated, adding, “It is seriously questionable whether a similar program should be authorized which would permit the removal or detention of American citizens as a group based solely on their race, religion, or national origin.
Other orders from this time included a declaration that a state of war existed, a directive to organize the convening of Congress at a secure site, and the creation of an agency empowered to impose sweeping controls on the economy. This agency, reporting to the president, could put in place controls such as requisitioning private property and allocating materials; impose wage, price and rent controls; rationing; and the settlement of labor disputes.
For several years, the Obama-era Justice Department mentioned in budget documents submitted to Congress that its Office of Legal Counsel began in 2012 to review the legality of the 56 Presidential Emergency Action Documents. In 2017, Trump’s Justice Department repeated that reference in its own budget request, after which it fell out of annual submissions.
But later budget documents did not reveal what other changes, if any, the Obama and Trump administrations made to them.