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Obama Renews Bush's 9/11 State of Emergency

Lewis SeilerDan Hamburg

On September 10th, President Obama reinstituted the national State of Emergency first declared by George W. Bush on September 14, 2001 by placing the following language in the Federal Register.

The terrorist threat that led to the declaration on September 14, 2001, of a national emergency continues. For this reason, I have determined that it is necessary to continue in effect after September 14, 2009, the national emergency with respect to the terrorist threat.

    As Dr. Harold C. Relyea, a specialist in national government with the Congressional Research Service (CRS) of the Library of Congress, has written, “when the President formally declares a national emergency, he may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens.”

    Yet, while Dr. Relyea opines that Congress and the judiciary, as well as public opinion, “can restrain the executive regarding emergency powers,” nothing of the sort has occurred. 

    Under the 1976 National Emergencies Act (50 U.S.C. 1601-1651), Congress is required to review presidentially declared emergencies.  Specifically, “not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated.”  Over the past eight years, Congress has failed to obey its own law, a fact that casts doubt on the legality of the state of emergency.

    As far as public opinion is concerned, how many Americans are even aware that a state of emergency even exists.  For that matter, how many members of Congress know?

    Homeland Security Committee member Peter DeFazio (D-OR) took to the House floor in late 2007 to express his anger at being denied access to an executive branch document (National Security Presidential Directive 51 or NSPD-51) that "establish[es] a comprehensive national policy for the continuity of federal government structures" in a national emergency.

    The New York Times, in a 2007 editorial titled “Making Martial Law Easier”, offered these words regarding NSPD-51:  “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.”

    It’s noteworthy that this particular Times editorial was written a year before NorthCom, “unified combatant command of the U.S. military” covering the U.S., Canada and Mexico, began stationing troops on U.S. soil.  Established a year after 9/11, NorthCom is the first such command to cover the “domestic battlefield.” It is charged with “the protection of the United States homeland, and the support of local, state, and federal authorities.”

    In 1878, Congress passed the Posse Comitatus Act with the intention of substantially limiting the powers of the federal government to use the military for law enforcement.  By 2008, however, the 3rd infantry’s 1st brigade combat team (BCT) had been stationed at Fort Stewart, Georgia.  This force, known, as the Consequence Management Response Force (CCMRF) “may be called upon to help with civil unrest and crowd control or to deal with potentially horrific scenarios.”  Plans for the stationing of more brigades are swiftly being enacted.  As the Army Times pointed out, “This mission marks the first time an active unit of the U.S. military has been given a domestic assignment.” 

    The demise of posse comitatus—a critical protection for ordinary citizens from the predations of overreaching government—has occurred without media comment or public resistance.

    Despite campaign pronouncements that cheered civil libertarians, President Obama has largely maintained Bush era policies regarding rendition/torture, surveillance and preventive detention.  The denial of what has often been called “the Great Writ” of habeus corpus should send a shudder down the spine of every American citizen.  The United States Constitution states in Article 1 Section 5 that “the privilege of the writ of habeus corpus shall not be suspended, unless when in Cases of rebellion or Invasion the public safety may require it.”  The Obama administration is essentially arguing that the United States is currently in a state of resisting foreign invasion a full eight years after the attacks of 9/11!

    This is ludicrous.  Dr. Relyea argues that Congress and the judiciary, as “co-equal branches of constitutional government,” serve as a check on the executive power.  As we have seen, Congress has either been shut out of this process, or, as in so many cases, it has capitulated.  Dr. Relyea then offers that public opinion can restrain the executive.  But the public doesn’t even know they’re living under a state of emergency.  The media doesn’t report it, and the government is certainly not in the business of providing information that might raise the hackles of real Americans.

    It’s time for the American people to rise to this challenge.  Write your member of Congress, and your senators.  Tell them to obey their own laws.  Tell them to end this phony and treacherous state of emergency that imperils the freedom of us all.

    Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.

    Lewis Seiler

    Lewis Seiler is president of Voice of the Environment.

    Dan Hamburg

    Dan Hamburg, a former US congressman from California, is executive director of Voice of the Environment..

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