There’s a saying in many training communities, “The body will not go where the mind has not already been.” Another one you may have heard is the Five “P’s”, Proper Preparation Prevents Poor Performance. The idea is simple; if you do not prepare beforehand for a given situation, you will not be prepared when it happens. But what happens when government preparations move from proper to totalitarian?
Have you heard of “Presidential Emergency Action Documents” (PEADs)? More likely you’ve heard of a President’s “Emergency Powers”. These documents are plans created by various presidential administrations to prepare for various emergencies. Taking the form of executive orders, proclamations, and messages to Congress, the idea is that these PEADs can be put into effect on a moment’s notice. As with so many things in government, PEADs started as a good idea that has morphed into Sword of Damocles hanging over the rights so many of us cherish.
Presidential Emergency Action Documents
The Eisenhower administration had its own Sword of Damocles hanging over its head: Nuclear war. As part of the plans for the continuation of government in the event of a nuclear attack, President Eisenhower created the first of what became known as Presidential Emergency Action Documents. PEADs are classified as “secret”, and therefore the details are kept secret, not only from the public, but in many cases from Congress as well. However, these documents are periodically reviewed, and several de-classified notes from these reviews give us a hint at what’s inside. Research by The Brennan Center for Justice into previous PEADS gives us a glimpse into what presidents believe their “emergency powers” include.
- authorized detention of “alien enemies” and other “dangerous persons” within the United States;
- suspended the writ of habeas corpus by presidential order;
- provided for various forms of martial law;
- issued a general warrant permitting search and seizure of persons and property;
- established military areas such as those created during World War II;
- suspended production of the Federal Register;
- declared a State of War; and
- authorized censorship of news reports.
Let’s take a look at some of these assumed “powers” and where they came from.
President George W. Bush
For those of you who believe that the Republican Party’s goal is to protect your rights and liberty, I present the case of President George W. Bush. In 2004, 2006, and 2008, in the light of the 9/11 attacks, the George W. Bush Administration initiated a holistic review of their current PEADs. In response to a Freedom of Information, the George W. Bush Presidential Library turned over to the Brennan Center for Justice over 500 pages of information generated during the reviews. While the actual PEADs remain classified, the information gathered sheds a light on the disturbing powers a President may claim to have in an emergency.
Communications
Upon proclamation by the President that there exists a state or threat of war involving the United States, the President, if he deems it necessary in the interest of the national security and defense, may, during a period ending not later than six months after the termination of such state or threat of war and not later than such earlier date as the Congress by concurrent resolution may designate, (1) suspend or amend the rules and regulations applicable to any or all facilities or stations for wire communication within the jurisdiction of the United States as prescribed by the Commission, (2) cause the closing of any facility or station for wire communication and the removal therefrom of its apparatus and equipment, or (3) authorize the use or control of any such facility or station and its apparatus and equipment by any department of the Government under such regulations as he may prescribe, upon just compensation to the owners.
47 U.S.C. §606(d)
Under Article I, Section 8, Clause 11 of the Constitution of the United States, Congress is authorized to declare war, not the President. Yet here we see Congress once again delegating its power to the Executive Branch. Not only has Congress claimed the power to delegate its authority to another branch, but it claims the power to authorize that branch to violate the Constitution of the United States. The suspension of rules and regulation is one thing, but the closing or takeover of a private facility is a clear violation of the Fifth Amendment:
No person shall … be deprived of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment V
Should the President unilaterally proclaim that we are at war, or merely that there is a threat of war, your access to information can be shutdown or controlled by government. This law was enacted in 1942, which is why it specifically references “facilities or stations for wire communication”. But would a President today extend such an understanding to include the Internet? After all, at some point all Internet communications passes through “wire”, either copper or fibre-optic. Notes from the review of these documents during the George W. Bush Administration shows that they believed this act grants very broad powers in such an emergency.
For those of us who make a living by communicating via these facilities, our businesses would suddenly be controlled by Uncle Sam, extending the theft of both liberty and property even farther. Just imagine the dystopian future where an administration already sending examples of “misinformation” to social media companies, have the power to directly control them.
Detentions
Shortly after the Supreme Court opinion in Boumediene v. Bush that recognized the rights of prisoners in Guantanamo Bay to have their detentions reviewed by a court, an internal memo from the Bush Administration showed that one of the PEADs was being reviewed in light of a recent opinion. While not positive proof, it certainly does imply that the administration had plans to suspend habeas corpus, a power the Constitution leaves in the hands of Congress, since it exists in Article I, where Congress is created. Furthermore, the privilege of Habeas Corpus can only be suspended in cases of rebellion or invasion, not in a “national emergency”.
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
U.S. Constitution, Article I, Section 9, Clause 2
Travel
Did you know there is a law that allows the federal government to restrict travel to certain countries?
Unless authorized by law, a passport may not be designated as restricted for travel to or for use in any country other than a country with which the United States is at war, where armed hostilities are in progress, or where there is imminent danger to the public health or the physical safety of United States travellers.
22 U.S.C. §211a
Notes from the George W. Bush Presidential Library shows not only that they were aware of the law, but they highlighted it during their PEADs review. Doesn’t it make you wonder under what circumstances a President would be prepared to restrict travel? Would it be limited to foreign travel or would a President claim the power to restrict interstate travel as well?
National State of Emergency
Some of you may be thinking “OK, these are serious, but they’re only for national emergencies. We’re OK at the moment.” Wrong. America has been in a persistent state of “national emergency” since 2001.
A national emergency exists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States.
Proclamation 7463—Declaration of National Emergency by Reason of Certain Terrorist Attacks, September 14, 2001
Now, Therefore, I, George W. Bush,
President of the United States of America, by virtue of the authority vested in me as President by the Constitution and the laws of the United States, I hereby declare that the national emergency has existed since September 11, 2001, and, pursuant to the National Emergencies Act (50 U.S.C. 1601 et seq.), I intend to utilize the following statutes:…
This proclamation has never been rescinded, so we are still in the state of “national emergency” that started with the 9/11 attacks.
A very funny thing happened on the way to this state of national emergency. You see, President George W. Bush proclaimed that, “by virtue of the authority vested in me as President by the Constitution and the laws of the United States, I hereby declare that the national emergency has existed since September 11, 2001”. Yet nothing in the Constitution delegates to the United States, much less its President, the power to declare a national emergency. Since that power is not delegated to the United States, and neither is it prohibited to the states, then that particular power remains with the states. Whether or not it should be a state power, can and should be discussed. Before such sweeping power is simply handed over to Washington, D.C., We the People, through our states, ought to put some restrictions and limitations on that power.
Conclusion
When does a President become a King?
An officer appointed or elected to govern a province or territory, or to administer the government of a nation.
President, Webster’s 1828 Dictionary
The difference between a President and a King is more than just an election; after all, there is such a thing as an elected king. The role of the President is to administer the government. In the United States, the President’s power to govern is supposed to be limited by the Constitution and laws of the United States. Compare that to a king:
The chief or sovereign of a nation; a man invested with supreme authority over a nation, tribe or country; a monarch. Kings are absolute monarchs, when they possess the powers of government without control, or the entire sovereignty over a nation;
King, Webster’s 1828 Dictionary
So when the office of President becomes more than the administrator of government, when the office is invested with supreme authority, that office ceases to be a president and instead becomes a king. And when the office of President assumes absolute control over the government, creating laws and administrative courts, the President becomes an absolute monarch. When the President, with the stoke of a pen, can overrule the Constitution and laws of the United States, he morphs from an absolute monarch into despotic dictator.
America stands on the precipice. Multiple presidential administrations have set in place rules and orders to effectively take over and rule this country. They did this behind closed doors, not even letting Congress know what their plans are. All it would take is the right person and the right conditions, for someone in the office of President to declare a national emergency and activate these despotic powers. George Washington warned us:
The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.
George Washington’s Farewell Address, 1796
They say never let a crisis go to waste. Well, unless the American people wake up and regain control of their government, all it will take for freedom and liberty in America to disappear is the right crisis to present itself.
