New Documents Illuminate the President’s Secret, Unchecked Emergency PowersBush-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.
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.
Controlling communicationsAt 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].”
Detention authorityThe 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 “still 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 travelRestricting 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 Lebanon, Iraq, Libya, and North Korea, a more sweeping abrogation of the right to travel would represent a stark break from modern historical practice.
https://www.brennancenter.org/our-work/analysis-opinion/new-documents-illuminate-presidents-secret-unchecked-emergency-powers