Continuity of Government: Is the State of Emergency Superseding our Constitution?
by Prof. Peter Dale Scott
November 24, 2010
Is the State of Emergency Superseding our Constitution? Address to Commonwealth Club, San Francisco, November 23, 2010)
In July 1987, during the Iran-Contra Hearings grilling of Oliver North, the American public got a glimpse of “highly sensitive” emergency planning North had been involved in. Ostensibly North had been handling plans for an emergency response to a nuclear attack (a legitimate concern). But press accounts alleged that the planning was for a more generalized suspension of the constitution at the president’s determination.
As part of its routine Iran-contra coverage, the following exchange was printed in the New York Times, but without journalistic comment or follow-up:
[Congressman Jack] Brooks: Colonel North, in your work at the N.S.C. were you not assigned, at one time, to work on plans for the continuity of government in the event of a major disaster?
Both North’s attorney and Sen. Daniel Inouye, the Democratic Chair of the Committee, responded in a way that showed they were aware of the issue:
Brendan Sullivan [North's counsel, agitatedly]: Mr. Chairman?
[Senator Daniel] Inouye: I believe that question touches upon a highly sensitive and classified area so may I request that you not touch upon that?
Brooks: I was particularly concerned, Mr. Chairman, because I read in Miami papers, and several others, that there had been a plan developed, by that same agency, a contingency plan in the event of emergency, that would suspend the American constitution. And I was deeply concerned about it and wondered if that was an area in which he had worked. I believe that it was and I wanted to get his confirmation.
Inouye: May I most respectfully request that that matter not be touched upon at this stage. If we wish to get into this, I’m certain arrangements can be made for an executive session.
Brooks was responding to a story by Alfonzo Chardy in the Miami Herald. about Oliver North’s involvement with the Federal Emergency Management Agency (FEMA) in planning for “Continuity of Government” (COG). According to Chardy, the plans envisaged “suspension of the Constitution, turning control of the government over to the Federal Emergency Management Agency, emergency appointment of military commanders to run state and local governments and declaration of martial law during a national crisis.”
Reagan had installed at FEMA a counterinsurgency team that he had already assembled as governor of California. The team was headed by Army Col. Louis Giuffrida, who had attracted Reagan’s attention by a paper he had written while at the US Army War College, advocating the forcible warrantless detention of millions of black Americans in concentration camps.“ Reagan first installed Giuffrida as head of the California National Guard, and called on him “to design Operation Cable Splicer. … martial law plans to legitimize the arrest and detention of anti-Vietnam war activists and other political dissidents.” These plans were refined with the assistance of British counterinsurgency expert Sir Robert Thompson, who had used massive detention and deportations to deal with the 1950s Communist insurgency in what is now Malaysia.
At the time few people (including myself) attached much importance to the Chardy story about COG. Chardy himself suggested that Reagan’s Attorney General, William French Smith, had intervened to stop the COG plan from being presented to the President, and in 1985 Giuffrida was forced out of office for having spent government money to build a private residence. But COG planning not only continued, it expanded.