"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 ALREADY Superseded the Constitution as a Higher Authority"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if the White House is successful in frustrating DeFazio, then Continuity of Government planning has arguably already superseded the Constitution as a higher authority."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Professor Scott's point that COG planning may have already superseded the Constitution can be summarized by making an analogy.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.

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.

disapponted this issue doesn't get more response.

I used to think that one difference between the truth and peace movements was that truthers were more worried about martial law. This parallels the focus of opposition to killing foreign citizens with the focus of domestic genocide. I guess I'm wrong. So many truthers, who risk their lives doing relatively trivial actions, don't believe the danger we might already be in.

The argument used against such thinking is that we need to claim it is safe and easy to be active as a truther. If there's no martial law, it IS safe and easy. If there is martial law, people who put in 1000 hours a year will die next to those who put in 10 hours total.

If truthers agreed they were risking their lives, they would see more value of daring AND polite actions. If we have all the time in the world, there's less impetus for daring.

I'm not opposed to challenging federal officials on video with GW's questions, but I'd prefer a more heartfelt approach. I mean trying to meet with DHS officials to convince them not to kill truthers. It will be difficult to get meeting with DHS staffers, but the people refusing to let us tell them we deserve to live is even more reasonable. See my action idea #4 at 911courage.org


Another great article on COG!

This is the very kind of article on COG I like to see, GW! It's well-written and attempts to narrow the focus of what COG means for our country!

The Executive's secrecy affords them some distance. If you're attempting to formulate a solution to a problem, but can only infer the variables you spend quite a bit of time piecing it together! This keeps the executive at an advantage over the people.

The reference to Sen. Russ Feingold's comment is excellent:

"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. ""

Again, I support GW's continued efforts in this area. I suspect, the more we find out similar to Feingold's observation above, the more disconcerting the reality of a legal groundwork already in place that deprives us of our freedom!

This is the most important issue by far--has COG already suspended the Constitution and what legal groundwork for a return to Constitutional government exists at this time?

...don't believe them!


How to go about confirming that COG (Continuity of Government) is actually, demonstrably, unfortunately active and in effect?

If such detail so specific was actually attainable, sold enough to satisfy the most discerning among us, and persuasive enough to turn many more of the remaining skeptical, what would/should we in this position do with such knowledge? (David, I suspect this is why the debate and open discussion is still so soft and quiet.)

And, what might we imagine as possible repercussions/retaliations from the Powers That Be when the situation becomes far less ambiguous? (Why BOTH sides of the question are so nervous.)

There is clearly no realistic and genuine promise of reward nor protection that can be offered in return for confirming such a situation. The closest one might get to convincing the confirmer to do so... is probably based on conscience, character, ones own self-worth and their level of respect for the dignity within ALL others. At a glance, that seems a VERY high bar of traits, to then combine with the rarity of character for that same person being in a such a position to actually know such a critical status of COG.

Regardless that we may formulate such questions, how we proceed with likely uncomfortable answers is something both the confirmer AND novice alike would much wish to know beforehand. Wish as we might... it seems an even more difficult prediction to make.

This bar is quickly getting higher than confessions of a 9/11 trigger man even. Yes?

Two parts of history that might be useful in warming a prospective candidate up this bar of confirmation... might first be built on the example of COG slips in the Church and Iran/Contra hearings, then upon the transition dynamics and public words of the CIA's Tenet/Goss/Hayden.

George Tenet may have inadvertently (actually, I think it simply doesn't matter what his intent was if any) left a door cracked open for the public eye to catch a glimpse through. Porter Goss then confirmed to the public's ear, that such an Agency is explicitly loyal first to the office of President... and implicitly therefore, to no one else. Michael Vincent Hayden then trumped them all with his dashingly clever reading of the supremacy of his power to reason, over his difficulty in calculating probability (a substantial evisceration of the Forth Amendment by nothing more easy than a press briefing).

So now dear candidate, understand that two fold... The Public's access to human intelligence is formidable... determined, and better than just ambulatory (meaning that we have legs that still work well)... and secondly... we have a rather damming collection of evidence that does not shine a flattering light upon this particular Government now in question.

The Bar will only move higher... who "in the know" is going to jump for it before it's finally out of reach?