"Continuity of Government Planning has ... Already Superseded the Constitution as a Higher Authority"

UC Berkeley Professor Emeritus Peter Dale Scott has warned:

"If members of the Homeland Security Committee cannot enforce their right to read secret plans of the Executive Branch, then the systems of checks and balances established by the U.S. Constitution would seem to be failing.

To put it another way, if the White House is successful in frustrating DeFazio, then Continuity of Government planning has arguably already superseded the Constitution as a higher authority."

What's he talking about?

Well, in the summer 2007, Congressman Peter DeFazio, on the Homeland Security Committee (and so with proper security access to be briefed on COG issues), inquired about continuity of government plans, and was refused access. Indeed, DeFazio told Congress that the entire Homeland Security Committee of the U.S. Congress has been denied access to the plans by the White House (video; or here is the transcript). The Homeland Security Committee has full clearance to view all information about COG plans. DeFazio concluded: "Maybe the people who think there’s a conspiracy out there are right”.

Professor Scott's point that COG planning may have already superseded the Constitution can be summarized by making an analogy. Let's assume that the police are not supposed to seize and sell a suspect's house unless a court has held a full trial and found that person guilty of a certain offense. And let's say that the police seize and sell somebody's house, but that the suspect's relatives cannot find any record that there has been a trial, let alone a finding of guilt by the court.

Let's say they go to the City Council (which is the local counterpart of the U.S. Congress -- that is, part of the legislative branch), and the City Council asks the police if the suspect was found guilty by the court. If the police refuse to even answer the City Council's question, that shows that the rule of law has broken down. In other words, whether or not there was a trial and a guilty verdict, the failure of the police to answer the question shows that the police (part of the executive branch) are acting outside of the law by failing to respect the separation of powers between the police and the City Council.

As Steven Aftergood, of the Federation of American Scientists Project on Government Secrecy, notes:

"Of the 54 National Security Presidential Directives issued by the [George W.] 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."

Similarly, Senator Russ Feingold, a member of the Senate Intelligence and Judiciary committees, wrote yesterday in the Los Angeles Times:

"The memos on torture policy that have been released or leaked hint at a much bigger body of law about which we know virtually nothing. The Yoo memo was filled with references to other Justice Department memos that have yet to see the light of day, on subjects including the government's ability to detain U.S. citizens without congressional authorization and the government's ability to bypass the 4th Amendment in domestic military operations.

Another body of secret law involves the Foreign Intelligence Surveillance Act (FISA). In 1978, Congress created the special FISA court to review the government's requests for wiretaps in intelligence investigations, which is -- and should be -- done behind closed doors. But with changes in technology and with this administration's efforts to expand its surveillance powers, the court today is doing more than just reviewing warrant applications. It is issuing important interpretations of FISA that have effectively made new law.

These interpretations deeply affect Americans' privacy rights, and yet Americans don't know about them because they are not allowed to see them. Very few members of Congress have been allowed to see them either. When the Senate recently approved some broad and controversial changes to FISA, almost none of the senators voting on the bill could know what the law currently is.

The code of secrecy also extends to yet another body of law: changes to executive orders. The administration takes the position that a president can "waive" or "modify" a published executive order without any public notice -- simply by not following it. It's every president's prerogative to change an executive order, but doing so without public notice works a secret change in the law. And, because the published order stays on the books, Congress and the public have no idea that it's no longer in effect. We don't know how many of these covert changes have been made by this administration or, for that matter, by past administrations.

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Keeping the law secret doesn't enhance national security, but it does give the government free rein to operate without oversight or accountability. Even the congressional intelligence committees, which are supposed to oversee the intelligence community, have been denied access to some of these legal opinions.

Congress should pass legislation to require the administration to alert Congress when the law created by Justice Department opinions ignores or even violates the laws passed by Congress, and to require public notice when it is waiving or modifying a published executive order. Congress and the public shouldn't have to wonder whether the executive branch is following the laws that are on the books or some other, secret law."

Like all important political issues of the day, the government will not agree to to the right thing unless the public demands it. The White House will not agree to follow the Constitution and the rule of law, or even to disclose whether or not the COG plans which were implemented on 9/11 are still in effect, unless the public demands it. Professor Scott stresses the importance of citizen activism in this regard:

"Will Congress insist on its right of review COG? The answer to this question will depend on discussion in the blogosphere, the degree of pressure exerted by the electorate on their representatives, and the questions asked the men and women who would be president."

I join Professor Scott's call for public input, and urge We Are Change - style citizen activism regarding COG. Specifically, I urge people to bring videocameras and to ask Congress people, White House officials and spokespeople, judges, and every other high-level official whether COG plans are currently in effect, to film their responses, and to post the video on the Web.