Our state of emergency continues – Congress gets a failing grade

By Pam Barker | TLB staff writer/analyst

Announcing a state of emergency grants presidents and governments extraordinary powers above the Constitution and rule of law to deny citizens many basic rights. Is France leading the way in its recent announcement to extend its state of emergency indefinitely, or are we in the US already there?

Following the terrorist attacks last November in Paris, a state of emergency was promptly declared that was initially bumped from 12 days to 3 months. Last Friday from Davos, Manuel Valls, the French Prime Minister, announced that the state of emergency would continue indefinitely until Daesh (ISIS) was defeated. Obviously, this could take a very long time.

The updated state of emergency, which considerably expands police powers ‘around the firing of weapons, enabling nighttime raids, and loosening restrictions on searching and detaining suspected terrorists concerning house arrests’ is about to be written into the French constitution, coming amid concerns that the temporary exceptional powers to restrict certain rights and freedoms will become normalized and unable to be challenged legally.

The original state of emergency, which extends to its overseas territories, allows people deemed a threat to public order confined to house arrest and restricted social contact; any groups or organizations which similarly threaten public order may be closed. Premises can be searched without a warrant, and websites and social media judged to be inciting terrorism may be blocked. Youth deemed prey to jihadist influence may be sent to a form of reeducation centre. ‘Since November, police have conducted 3,189 raids and put 392 people under house arrest. Five terrorist investigations have been opened and only one person has gone to trial for terrorism’. Statistics like these, of course, hardly seem to justify the implementation of such measures.

Regarding the risk of government overreach, it’s worth remembering that expanded powers don’t just capture the bad guys that they’re meant to, amply illustrated in the French situation. During the UN COP21 climate conference just two weeks later outside of Paris, these powers were applied to place legitimate climate activists under house arrest to prevent public protest during the high-profile event. Not surprisingly, their lawyers have accused the French government of abusing its power.

“If French people want to live in a State which abides by the rule of law, they should be very worried. Because as soon as the state of emergency is provided for in the Constitution, the government and the police will have extensive powers,” Catherine Haguenaud-Moizard, a law professor at the university of Strasbourg told RFI.

What about the US? Where do we stand?

It turns out we, too, are living in a state of emergency – many of them, in fact, and that this state of affairs continues to go largely unchecked when it most certainly shouldn’t.

In a useful review of what these states of emergency are, many of them in force today relate to prohibiting transactions with and blocking property of many foreign governments and of those believed to be promoting conflicts or threatening US interests. Twenty-one historical emergencies have been renewed by Obama, to which he has added eleven of his own, a figure which doesn’t include those declared for natural disasters such as floods and tornados. Of note, he has chosen to renew one by Jimmy Carter concerning Iran, and has renewed George W. Bush’s Declaration of National Emergency six times following the 9/11 terrorist attacks.

According to Washington’s Blog, the choice to invoke a state of emergency (Bush in 2001) or continue with one (Obama) grants the President an extraordinarily broad range of powers. Said Frank Murray of The Washington Times immediately upon the heels of the September 11: ‘Simply by proclaiming a national emergency on Friday, President Bush activated some 500 dormant legal provisions, including those allowing him to impose censorship and martial law.’ Taken together, these legal provisions grant ‘enough authority to rule the country without reference to normal constitutional processes. Under the powers delegated by these statutes, the President 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 communications; regulate the operation of private enterprise; restrict travel; and, in a plethora of particular ways, control the lives of all American citizens.”

Says Kim Lane Scheppele, a professor at Princeton University, “What the National Emergencies Act does is like a toggle switch, and when the president flips it, he gets new powers. It’s like a magic wand. and there are very few constraints about how he turns it on.”

Some very interesting and disturbing specifics were reported after this declaration of emergency following 9/11, especially regarding the role of the CIA: ‘Since last Tuesday’s horrific attacks with four hijacked airliners took an estimated 6,000 lives at the World Trade Center and the Pentagon, the Senate has passed legislation to let law-enforcement personnel obtain private e-mails without a court order, to allow U.S. attorneys to approve wiretaps in terrorism cases, and to lift the longtime ban on CIA spying within the United States’.

The tendency to overreach and abuse those powers is crystal clear.

Worse still, however, is evidence that both the executive and legislative branches are not living up to their end of the bargain.

Presidential secrecy

First of all, the president’s office clearly doesn’t seek to disclose information on its presidential proclamations and directives. Reporting on the Bush administration, Stephen Aftergood in the Nieman Watchdog notes how only around a third of 54 presidential directives from the Bush administration have been made public:

Of the 54 National Security Presidential Directives issued by the Bush Administration to date, the titles of only about half have been publicly identified. There is descriptive material or actual text in the public domain for only about a third. In other words, there are dozens of undisclosed Presidential directives that define U.S. national security policy and task government agencies, but whose substance is unknown either to the public or, as a rule, to Congress. Given what we do know of the character of the present Administration, this whole mechanism of executive authority seems in need of public ventilation.

Invoking ‘national security’ concerns

In fact, any administration in today’s political climate only needs to invoke national security concerns in order to bury all manner of information that is in the public interest. The continuous state of emergency declared back in 2001 could have had deleterious effects on the economy and business by invoking just these concerns, concerns which were used by our very own banking cartel to hide its murky business from the public who would then be used to rescue them.

For example, the details of the AIG bailout back in 2010 were allowed to be kept secret as per the Federal Reserve’s wishes to preserve national security. Bush also conferred the power on his advisor, John Negroponte, not to disclose accounting practices of publicly-traded companies in the name of national security. And outrageously, Congressmen Brad Sherman and Paul Kanjorski told how the government threatened martial law if the TARP (Troubled Asset Relief Program) program back in 2008 wasn’t passed, a measure which would allow the government to buy assets and equity from financial institutions that got themselves into trouble by their very own actions.

Says Washington’s Blog, ‘most of the Fed and Treasury’s looting of America to funnel trillions in bailouts, loans, guarantees, and other favors to the too big to fails was done under the justification of an “emergency”.

And Congress?

The National Emergencies Act of 1976 obligates Congress to review all presidentially declared emergencies after a 6-month period. Designed to prevent unending states of emergency, the Act formalizes the powers of Congress to rein in the executive. Yet remarkably, this has never happened, which may very well call into question the legal status of the emergency. As Lewis Seiler and Dan Hamburg point out, ‘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’.

Back in 2008, Senator Patrick Leahy (D-Vt.) revealed the extent to which Congress just went along with the state-of-emergency rhetoric of the Bush administration post 9/11. Said Glenn Thrush of Politico:

Sen. Patrick Leahy (D-Vt.) says he’s seen this movie before: The Bush administration, citing an unprecedented national threat, puts the hammer on Congress to ram through gargantuan legislation with a minimum of review — and the murkiest of repercussions … if we learned anything from right after 9/11, it’s that the biggest mistake is to pass anything they ask for just because it’s an emergency,” Leahy says.

The Senate Judiciary Committee chairman knows of what he speaks. He sponsored the original Patriot Act, only to feel betrayed later when the Bush administration used it to justify domestic wiretapping.

So where does that leave us? Congress, at least on the Democratic side, seems to have learned a valuable lesson on caving in to presidential authority but is it still caving in? As we’ve seen, the answer is a resounding yes.

Washington’s Blog gives us a clear historical account through the seventies and eighties of Congress’ power to revoke a state of emergency despite some sneaky manœuvring from both the Supreme Court and the President’s office:

Specifically, the National Emergencies Act, 50 U.S.C. Sections 1601-1651 (passed in 1976), gives Congress the power to countermand a presidential declaration of national emergency. Indeed, in 1976, Congress rescinded all of the declarations of national emergency made since World War II, as many of them had been on the books for years and were giving the executive unrestricted powers which were undermining the Constitution.

In 1983, the Supreme Court struck down a portion of Congress’ power to countermand a declaration of national emergency. But Congress got around that ruling by amending the National Emergencies Act in 1985 to confirm Congress’ power to countermand – through a joint resolution between the House and Senate – a declaration of emergency by the president (see this).

Moreover, in 2007, the Bush Administration tried to ignore the National Emergencies Act by issuing National Security and Homeland Security Presidential Directive 51. But that dog won’t hunt. The Constitution does not allow the president to unilaterally cut Congress out of the picture.

Congressional inertia is indeed a worry; the system of checks and balances on presidential power is clearly not working as it’s intended to.

Public Adaptation

What is even more disturbing is the passive acceptance unending states of emergency tend to produce in the public psyche. Higgs and Twight reach the conclusion that, for several rather complex reasons, ‘rights taken over by governmental officials during an emergency are unlikely to revert fully to their previous holders when normal times return.’ People psychologically adapt to the new status quo that living under a state of emergency produces:

At an early stage the government, responding to an urgent and widespread insistence that it “do something,” takes over rights previously held by private citizens; when the crisis wanes, public attitudes—the dominant ideology, some would say—have been so altered by the experience of governmental controls and the pervasive adaptations of behavior and thinking to those controls that public support for the recovery of the private rights is insufficient to produce their full restoration. While the hard residues of crisis-spawned laws, administrative agencies, and constitutional pronouncements are important, ultimately the most significant consequence of the emergency experience is the ideological change it fosters. As William Graham Sumner (1934, p. 473) wrote, “it is not possible to experiment with a society and just drop the experiment whenever we choose. The experiment enters into the life of the society and never can be got out again.”

So on the one hand, Congress has resoundingly failed to protect the citizens’ interests under the Constitution:

Even as Congress has delegated emergency powers to the president, it has provided almost no oversight. The 1976 law requires each house of Congress to meet within six months of an emergency to vote it up or down. That’s never happened.

And on the other, the public doesn’t even know about this abysmal state of affairs because, predictably, neither the MSM nor the government is bothering to inform them:

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.

As much as I’d like to finish on an upbeat note or sound some sort of rallying cry, I have serious doubts that enough of us can see beyond the media hype around events like Trump’s no-show in last night’s presidential debate or the heavy media slant against what the militiamen’s stand in Burns, Oregon is fundamentally all about. After all, there are some pretty sophisticated forces working around and against us.

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About the author:

Pam Barker is a TLB staff writer/analyst. She has an extensive background in the educational system of several countries at the college and university level as a teacher and administrator.