It's springtime in American politics. It's only early March, but there's a giddy, hopeful feeling to this election season, a sense that new leadership is blossoming. We could have a Democrat in the White House next year. But winter isn't over yet and we need to balance our hope with a little fear. In 2000 Bush and Cheney stole the election in Florida. In 2004 they played dirty tricks in Ohio. In 2008 could they go one step further -- and suspend the election altogether?
The necessary architecture may already be in place. On May 4 last year, the White House issued the National Security and Homeland Security Presidential Directive, key parts of which remain classified and hence shrouded from public view. The directive outlines procedures to respond to a "catastrophic emergency," defined broadly as "any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government functions." Of course previous administrations also had emergency plans. But the Bush directive transfers power from the Federal Emergency Management Agency (FEMA) to the White House, where the Assistant to the President for Homeland Security and Counterterrorism is assigned the job of "National Continuity Coordinator".
The unclassified part of the directive reveals little about who would have the authority to invoke emergency powers during a catastrophe. Nor does it refer to existing laws, such as the National Emergencies Act, that establish congressional checks on the executive's power to impose martial law or other extraordinary measures. Its wording is ambiguous - the directive shall be implemented "consistent with applicable law," without making clear which laws are "applicable". "The Bush legal team has pushed a controversial theory that the Constitution gives the president an unwritten power to disobey laws at his own discretion to protect national security," writes Charlie Savage in the Boston Globe. He quotes legal specialists who describe the vagueness of the new directive as "troubling".
Also troubling is the Department of Homeland Security's $385 million contract awarded to Halliburton subsidiary Kellogg, Brown and Root in January 2006 to build temporary detention facilities. According to a Halliburton press release, the contract provides for augmenting existing immigration detention facilities in the event of "an emergency influx of immigrants into the U.S., or to support the rapid development of new programs." It also includes the development of a plan "to react to a national emergency, such as a national disaster." Construction would commence only after an "emergency" is declared. While immigrants appear to be the main target, one cannot rule out the possibility that the detention centers could be used as holding pens for dissidents during a proclaimed emergency. Recent crackdowns on illegal immigrants have included military-style night raids on homes and factories. Are we getting softened up for the expansion of police state tactics?
But perhaps the most important card the Bush administration holds in its deck is a stacked conservative majority on the Supreme Court. In 2000 the Court turned a blind eye to the theft of Al Gore's electoral victory in Florida. Should we expect better today? Just last month the Court refused to review the ACLU's legal challenge to the Bush administration's warrantless electronic surveillance program. Can we depend on the Court to challenge emergency rule and a suspension of elections?
Even with this architecture in place, the Bush administration would need a trigger to declare a state of emergency. One can imagine several possible scenarios:
War with Iran - unfortunately, not so far-fetched. The National Intelligence Estimate released in December concluded that Iran halted its nuclear weapons program back in 2003. But when have Bush and Cheney ever based their foreign policy decisions on evidence? Moreover, the most important reason they want to attack Iran is to control the flow of oil through the Persian Gulf, nukes or no nukes.
The assassination of a presidential candidate. Obama evokes memories of JFK and Martin Luther King. The bullet could come from a lone racist, a terrorist, or an agent of a state. The threat is real. The Secret Service knows it and so should we.
A terrorist strike, on the scale of 9/11 or worse. Again, not so far-fetched. Bush and Cheney have been Osama bin Laden's greatest recruiters, making the U.S. appear to be the enemy of millions across the world. Al Qaeda may consider that regime change in the U.S. is not in their interest.
With the right spin, any of these events might be construed as a "catastrophic emergency."
These worst-case scenarios probably will not come to pass. We'll probably all be able to sleep peacefully in our beds in the early hours of November 5, after watching the election results on TV. The value of worst-case scenarios lies not in their accurate prediction of events, but rather in what they tell us about the risks we face. We shouldn't let hope make us naíve. We need to be alert, our vision razor-sharp. The price of liberty is eternal vigilance. It could be the price of elections, too. Let's not count our spring flowers before they bloom.