The secret powers of the presidency

Excerpts from "The Enemies Briefcase," an essay by Andrew Cockburn in the November 2020 issue of The Atlantic:

“Presidential emergency action documents,” or PEADs, [are] orders that authorize a broad range of mortal assaults on our civil liberties. In the words of a rare declassified official description, the documents outline how to “implement extraordinary presidential authority in response to extraordinary situations”—by imposing martial law, suspending habeas corpus, seizing control of the internet, imposing censorship, and incarcerating so-called subversives, among other repressive measures. “We know about the nuclear briefcase that carries the launch codes,” Joel McCleary, a White House official in the Carter Administration, told me. “But over at the Office of Legal Counsel at the Justice Department there’s a list of all the so-called enemies of the state who would be rounded up in an emergency. I’ve heard it called the ‘enemies briefcase.’ ”

These chilling directives have been silently proliferating since the dawn of the Cold War as an integral part of the hugely elaborate and expensive Continuity of Government (COG) program, a mechanism to 

preserve state authority (complete with well-provisioned underground bunkers for leaders) in the event of a nuclear holocaust. Compiled without any authorization from Congress, the emergency provisions long escaped public discussion—that is, until Donald Trump started to brag about them. “I have the right to do a lot of things that people don’t even know about,” he boasted in March, ominously echoing his interpretation of Article II of the Constitution, which, he has claimed, gives him “the right to do whatever I want as president.” He has also declared his “absolute right” to build a border wall, whatever Congress thinks, and even floated the possibility of delaying the election “until people can properly, securely, and safely vote.”

“This really is one of the best-kept secrets in Washington,” Elizabeth Goitein, the co-director of the Liberty and National Security Program at NYU’s Brennan Center for Justice, told me...

Part of what makes the existence of PEADs so alarming is the fact that the president already has a different arsenal of emergency powers at his disposal. Unlike PEADs, which are not themselves laws, these powers have been obligingly granted (and often subsequently forgotten) by Congress. They come into force once a president declares a state of emergency related to whatever crisis is at hand, though the link is often tenuous indeed. For example, to fight the war in Vietnam, Lyndon Johnson used emergency powers originally granted to Harry Truman for the Korean War. As Goitein has written, the moment a president declares a “national emergency”—which he can do whenever he likes—more than one hundred special provisions become available, including freezing Americans’ bank accounts or deploying troops domestically. One provision even permits a president to suspend the ban on testing chemical and biological weapons on human subjects...

As he learned how the FBI had also attempted to destroy the civil-rights movement, Schwarz came to believe that, compared with the CIA, “the FBI was the greater danger to American democracy,” especially when deployed in the political service of a chief executive. Johnson, for example, had directed a “special squad” in the FBI to spy and report on opposition groups during the 1964 Democratic National Convention. “It’s a tendency among presidents to say, ‘Gosh, we have these resources, let’s use them,’ ” said Schwarz. “If you have power, you can get more.”..

The committee concluded that a president could “seize property and commodities, seize control of transport and communications, organize and control the means of production, assign military forces abroad, and restrict travel”—a state of affairs that the committee reasonably described as “dangerous.”..

Ronald Reagan presided over a wide-ranging covert operation in Nicaragua... George H. W. Bush attacked Panama without congressional approval ... only a few years later, while Clinton would do the same in Serbia. George W. Bush used congressional authorization for military force against Al Qaeda after 9/11 to occupy Iraq, illegally wiretapping Americans all the while. Barack Obama broke new extra-constitutional ground in ordering the execution by drone of a U.S. citizen. None suffered more than brief censure, and all are now remembered with respect, even reverence...

Much more at the link.