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Former U.S. President George W. Bush speaks during a ceremony on May 7, 2021 in Juno Beach, Florida. (Photo: Cliff Hawkins/Getty Images)

New Documents Reveal Just How Much 'Emergency Power' the US Government Thinks It Might Have

Bush-era records released under the Freedom of Information Act raise concerns about the powers presidents might claim during crises, from suspending habeas corpus to implementing an internet kill switch.

In 2004, high-rank­ing staffers in the George W. Bush admin­is­tra­tion spear­headed a holistic review of the pres­id­ent's emer­gency powers. Their goal was to refresh a set of secret plans known as "pres­id­en­tial emer­gency action docu­ments," or PEADs, the continu­ity-of-govern­ment play­book that emerged under Pres­id­ent Dwight Eisen­hower as a response to the threat of nuclear war.

We have been left to wonder whether exist­ing docu­ments still green-light the viol­a­tion of Amer­ic­ans' consti­tu­tional rights and civil liber­ties, or if modern sens­ib­il­it­ies and under­stand­ings of the law have moder­ated their approach.

Those docu­ments had been revised previ­ously, but they took on new signi­fic­ance in the wake of 9/11. Their review was, as one Bush offi­cial saw it, an "urgent and compel­ling secur­ity effort, espe­cially in light of ongo­ing threats."

In response to Free­dom of Inform­a­tion Act requests, the George W. Bush Pres­id­en­tial Library turned over to the Bren­nan Center more than 500 pages gener­ated during this review and subsequent reviews in 2006 and 2008. (Another 6,000 pages were with­held in full because they are clas­si­fied.) The released records shed troub­ling new light on the powers that modern pres­id­ents claim they possess in moments of crisis—powers that appear to lack over­sight from Congress, the courts, or the public.

Origins

Faced with the possib­il­ity of a Soviet nuclear strike, mid- to late-20th-century pres­id­ents craf­ted a collec­tion of pre-planned emer­gency actions. Although none has ever been leaked, declas­si­fied, or deployed, we know that some early drafts rested on broad claims to inher­ent exec­ut­ive power. Offi­cial reports from the 1960s indic­ate that vari­ous PEADs author­ized the pres­id­ent to suspend habeas corpus, detain "danger­ous persons" within the United States, censor news media, and prevent inter­na­tional travel. (The Bren­nan Center's repos­it­ory of related mater­i­als, span­ning the admin­is­tra­tions of 12 pres­id­ents, can be found here.) 

Beyond that period, however, our know­ledge of PEADs' content fades. We have been left to wonder whether exist­ing docu­ments still green-light the viol­a­tion of Amer­ic­ans' consti­tu­tional rights and civil liber­ties, or if modern sens­ib­il­it­ies and under­stand­ings of the law have moder­ated their approach.

Equipped with the latest tranche of pres­id­en­tial records, we now know that at least some of the most disturb­ing aspects of early–­Cold War emer­gency action docu­ments persisted as of 2008. Although the library with­held almost all substant­ive inform­a­tion about the PEADs under review, we have been able to recon­struct the broad contours of several of them.

Controlling commu­nic­a­tions

At least one of the docu­ments under review was designed to imple­ment the emer­gency author­it­ies contained in Section 706 of the Commu­nic­a­tions Act. During World War II, Congress gran­ted the pres­id­ent author­ity to shut down or seize control of "any facil­ity or station for wire commu­nic­a­tion" upon proclam­a­tion "that there exists a state or threat of war involving the United States."

This fright­en­ingly expans­ive language was, at the time, hemmed in by Amer­ic­ans' limited use of tele­phone calls and tele­grams. Today, however, a pres­id­ent will­ing to test the limits of his or her author­ity might inter­pret "wire commu­nic­a­tions" to encom­pass the inter­net—and there­fore claim a "kill switch" over vast swaths of elec­tronic commu­nic­a­tion.

And indeed, Bush admin­is­tra­tion offi­cials repeatedly high­lighted the stat­ute's flex­ib­il­ity: it was "very broad," as one offi­cial in the National Secur­ity Coun­cil scribbled, and it exten­ded "broader than common carri­ers in FCC [Federal Commu­nic­a­tions Commis­sion] juris[diction]."

Previ­ously, it was a matter of spec­u­la­tion as to whether any emer­gency action docu­ments purpor­ted to imple­ment this author­ity. But Bush offi­cials evid­ently examined at least one such docu­ment as part of their review, a Commu­nic­a­tions Act PEAD that appears to have pred­ated the admin­is­tra­tion. And the librar­y's records suggest that the admin­is­tra­tion added three more docu­ments on the same subject.

Deten­tion author­ity

The records indic­ate that at least one pres­id­en­tial emer­gency action docu­ment pertained to the suspen­sion of habeas corpus. An internal memor­andum from June 2008 specified that a docu­ment under the Justice Depart­ment's juris­dic­tion was "[s]till being revised by OLC [Office of Legal Coun­sel], in light of recent Supreme Court opin­ion." Examin­ing the Court's rulings over the previ­ous months, it is evid­ent that this must refer to the land­mark decision in Boumediene v. Bush, which recog­nized Guantanamo Bay pris­on­ers' consti­tu­tional right to chal­lenge their deten­tion in court. This strongly suggests that the early–­Cold War PEADs purport­ing to suspend habeas corpus had survived, at least in some form, and were part of the Bush admin­is­tra­tion's review. 

The result of the admin­is­tra­tion's post-Boumediene revi­sion is unknown. Signi­fic­antly, though, it does­n't appear that any emer­gency action docu­ments were with­drawn or cancelled. To the contrary, eight PEADs were added, bring­ing the total number to 56.

Inhib­it­ing the right to travel

Restrict­ing the use of U.S. pass­ports—a repor­ted feature of some early pres­id­en­tial emer­gency action docu­ments—remained on the table as of 2008. Records gener­ated by the Bush admin­is­tra­tion's review high­lighted a provi­sion of law from 1978 that allows the govern­ment to curtail inter­na­tional move­ment based on "war," "armed hostil­it­ies," or "immin­ent danger to the public health or the phys­ical safety of United States trav­el­lers."

Although pres­id­ents have used this stat­ute to ban travel to LebanonIraqLibya, and North Korea, a more sweep­ing abrog­a­tion of the right to travel would repres­ent a stark break from modern histor­ical prac­tice.

Trig­ger­ing other emer­gency powers

The national emer­gency declared after 9/11 — which is still in effect today and contin­ues to prop up the United States' milit­ary pres­ence across the globe—was cited in connec­tion with one or more PEADs.

A national emer­gency declar­a­tion unlocks enhanced author­it­ies contained in more than 120 provi­sions of law. Bush invoked several such author­it­ies, but several dozen others were—and still are—avail­able to the pres­id­ent as a result of Proclam­a­tion 7463. Presum­ably, the refer­ence to the proclam­a­tion during the admin­is­tra­tion's review implies the exist­ence of docu­ments designed to imple­ment other stat­utory emer­gency powers, which run the gamut from anodyne to alarm­ing, nearly four years after the attacks.

As with any archival exped­i­tion, the silences are often the most telling. William Arkin, a noted expert on PEADs, reviewed the new mater­i­als disclosed by the library and observed that they relate primar­ily to civil agen­cies—few, if any, touch on the role of the milit­ary in times of crisis. He suggests that this "black side" would have been discussed at a higher level of clas­si­fic­a­tion. By implic­a­tion, the most daring claims to pres­id­en­tial power may have been entirely excluded from this tranche of docu­ments.

Also miss­ing from the records is any evid­ence that the Bush admin­is­tra­tion commu­nic­ated—much less collab­or­ated—with Congress during its review. We have previ­ously noted that pres­id­ents have kept PEADs secret, not only from the Amer­ican public but from lawmakers as well. This lack of disclos­ure effect­ively blocks a coequal branch of govern­ment from over­see­ing emer­gency proto­cols.

With Congress unable to serve its consti­tu­tional role as a check on the exec­ut­ive branch, there remains the possib­il­ity that modern PEADs, like their histor­ical prede­cessors, sacri­fice Amer­ic­ans' consti­tu­tional rights and the rule of law in the name of emer­gency plan­ning. Congress should pass Sen. Ed Markey's REIGN Act, which has been incor­por­ated into the Protect­ing Our Demo­cracy Act and the National Secur­ity Reforms and Account­ab­il­ity Act, to bring these shad­owy powers to account.


© 2021 Brennan Center for Justice
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Benjamin Waldman

Benjamin Waldman is a Research and Program Associate in the Liberty & National Security Program.

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