Saturday, February 13 2010 - 9/11 Consequences
Yes, America is Still in an Official State of Emergency
February 9, 2010
A reader asked whether the U.S. is still in an official state of emergency,
and if so, what that means.
The answer is yes, we are still in a state of emergency.
On September 11, 2001, the government declared a state of emergency. That
declared state of emergency was formally put
in writing on 9/14/2001:
"A national emergency exists by reason of the terrorist attacks at
the World Trade Center, New York, New York, and the Pentagon, and the continuing
and immediate threat of further attacks on the United States.
NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America,
by virtue of the authority vested in me as President by the Constitution
and the laws of the United States, I hereby declare that the national emergency
has existed since September 11, 2001 . . . ."
That declared state of emergency has continued in full force and effect
from 9/11 [throughout the Bush administration] to the present.
On September 10 2009, President Obama continued the state of emergency:
The terrorist threat that led to the declaration on September 14, 2001,
of a national emergency continues. For this reason, I have determined that
it is necessary to continue in effect after September 14, 2009, the national
emergency with respect to the terrorist threat.
Does a State of Emergency Really Mean Anything?
Does a state of emergency really mean anything?
Yes, it does:
The Washington Times wrote
on September 18, 2001:
"Simply by proclaiming a national emergency on Friday, President Bush
activated some 500 dormant legal provisions, including those allowing him
to impose censorship and martial law."
Is the Times correct? Well, it is clear that pre-9/11 declarations
of national emergency have authorized martial law. For example, as summarized
by a former fellow for the Hoover Institution and the National Science Foundation,
and the recipient of numerous awards, including the Gary Schlarbaum Award for
Lifetime Defense of Liberty, Thomas Szasz Award for Outstanding Contributions
to the Cause of Civil Liberties, Lysander Spooner Award for Advancing the Literature
of Liberty and Templeton Honor Rolls Award on Education in a Free Society:
In 1973, the Senate created a Special Committee on the Termination of the
National Emergency (subsequently redesignated the Special Committee on National
Emergencies and Delegated Emergency Powers) to investigate the matter and
to propose reforms. Ascertaining the continued existence of four presidential
declarations of national emergency, the Special Committee (U.S. Senate 1973,
p. iii) reported:
"These proclamations give force to 470 provisions of Federal law.
. . . taken together, [they] confer enough authority to rule the country
without reference to normal constitutional processes. Under the powers
delegated by these statutes, the President may: seize property; organize
and control the means of production; seize commodities; assign military
forces abroad; institute martial law; seize and control all transportation
and communications; regulate the operation of private enterprise; restrict
travel; and, in a plethora of particular ways, control the lives of all
(Most or all of the emergency powers referred to by the above-quoted 1973
Senate report were revoked in the late 1970's by 50 U.S.C. Section 1601. However,
presidents have made numerous declarations of emergency since then, and the
declarations made by President Bush in September 2001 are still in effect).
It is also clear that the White House has kept substantial information concerning
its presidential proclamations and directives hidden from Congress. For example,
according to Steven Aftergood of the Federation of American Scientists Project
on Government Secrecy:
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."
As former United States congressman Dan Hamburg wrote in October:
While ... Congress and the judiciary, as well as public opinion, "can
restrain the executive regarding emergency powers,' nothing of the sort
Under the 1976 National Emergencies Act (50 U.S.C. 1601-1651), Congress
is required to review presidentially declared emergencies. Specifically, "not
later than six months after a national emergency is declared, and not later
than the end of each six-month period thereafter that such emergency continues,
each House of Congress shall meet to consider a vote on a joint resolution
to determine whether that emergency shall be terminated.' Over the past
eight years, Congress has failed to obey its own law, a fact that casts doubt
on the legality of the state of emergency.
As far as public opinion is concerned, how many Americans are even aware
that a state of emergency even exists. For that matter, how many members of
Congress know? ...
The Obama administration is essentially arguing that the United States is
currently in a state of resisting foreign invasion a full eight years after
the attacks of 9/11!
This is ludicrous. [Dr. Harold C. Relyea, a specialist in national government
with the Congressional Research Service (CRS) of the Library of Congress]
argues that Congress and the judiciary, as "co-equal branches of constitutional
government,' serve as a check on the executive power. As we have seen,
Congress has either been shut out of this process, or, as in so many cases,
it has capitulated. Dr. Relyea then offers that public opinion can restrain
the executive. But the public doesn't even know they're living
under a state of emergency. The media doesn't report it, and the government
is certainly not in the business of providing information that might raise
the hackles of real Americans.
It's time for the American people to rise to this challenge. Write
your member of Congress, and your senators. Tell them to obey their own laws.
Tell them to end this phony and treacherous state of emergency that imperils
the freedom of us all.
Hamburg's must-read article also discusses the suspension of Possse Comitatus,
the operation of Northcom inside the U.S., and the refusal of the Department
of Homeland Security to provide information on the state of emergency to Congress
or even to Congress members on the Homeland Security committee with the highest
The Effect of a State of Emergency on the Economy and Business
The continuous state of emergency in effect from September 2001 to the present
may have had a substantial affect on the economy and business.
Initially, as William K. Black - senior regulator during the S&L crisis,
professor of Economics and Law, and an expert on white collar financial crime
- has repeatedly pointed out, the government knew about an epidemic of mortgage
fraud a long time ago. For example, the FBI warned of an "epidemic"
of mortgage fraud in 2004. However, the FBI, DOJ and other government agencies
putted their agents off of financial fraud investigation and forced them to
focus on terrorism instead. See this and this
And as Reuters noted last week:
U.S. securities regulators originally treated the New York Federal Reserve's
bid to keep secret many of the details of the American International Group
bailout like a request to protect matters of national security,
according to emails obtained by Reuters.
The national security claim may seem outlandish, but it is nothing new.
As Business Week wrote on May 23, 2006:
President George W. Bush has bestowed on his intelligence czar, John Negroponte,
broad authority, in the name of national security,
to excuse publicly traded companies from their usual accounting and securities-disclosure
In other words, national security has been discussed for years as a basis of
keeping normal accounting and securities-related disclosures secret. While "national
security" and a state of "national emergency" may not be exactly
the same, they are variations of a single theme - an existential threat to our
nation - which has dominated American since September 11.
Similarly, Congressman Brad Sherman, Congressman Paul Kanjorski and Senator
James Inhofe all say that the government warned of martial law if Tarp wasn't
* Senator Leahy said
"If we learned anything from 9/11, the biggest mistake is to pass anything
they ask for just because it's an emergency"
* The New York Times wrote:
"The rescue is being sold as a must-have emergency measure by an
administration with a controversial record when it comes to asking Congress
for special authority in time of duress."
Mr. Paulson has argued that the powers he seeks are necessary to chase
away the wolf howling at the door: a potentially swift shredding of the
American financial system. That would be catastrophic for everyone, he argues,
not only banks, but also ordinary Americans who depend on their finances
to buy homes and cars, and to pay for college.
Some are suspicious of Mr. Paulson's characterizations, finding
in his warnings and demands for extraordinary powers a parallel with the
way the Bush administration gained authority for the war in Iraq. Then,
the White House suggested that mushroom clouds could accompany Congress's
failure to act. This time, it is financial Armageddon supposedly on the
"This is scare tactics to try to do something that's in the
private but not the public interest,' said Allan Meltzer, a former
economic adviser to President Reagan, and an expert on monetary policy at
the Carnegie Mellon Tepper School of Business. "It's terrible.'
Most of the Fed and Treasury's looting of America to funnel trillions in bailouts,
loans, guarantees, and other favors to the too big to fails was done under the
justification of an "emergency".
I don't know whether the official declaration of a "state of emergency"
in effect from September 2001 to today was directly used for financial looting.
But again, the fear of an existential threat to our country was used to justify
And many people allege that the government has taken drastic steps to manipulate
market prices. If true, the president's ability to use emergency powers to "stabilize
the markets" no doubt makes manipulation easier.
Congress Has the Power to Revoke the State of Emergency
A note to Congressional staffers: Congressman Hamburg is right. Congress does
have the power to revoke the state of emergency.
Specifically, the National Emergencies Act, 50 U.S.C. Sections 1601-1651 (passed
in 1976), gives Congress the power to countermand a presidential declaration
of national emergency. Indeed, in 1976, Congress rescinded all of the declarations
of national emergency made since World War II, as many of them had been on the
books for years and were giving the executive unrestricted powers which were
undermining the Constitution.
In 1983, the Supreme Court struck down a portion of Congress' power to countermand
a declaration of national emergency. But Congress got around that ruling by
amending the National Emergencies Act in 1985 to confirm Congress' power to
countermand - through a joint resolution between the House and Senate - a declaration
of emergency by the president (see this).
Moreover, in 2007, the Bush Administration tried to ignore the National Emergencies
Act by issuing National Security and Homeland Security Presidential Directive
51. But that dog won't hunt. The Constitution does not allow the president to
unilaterally cut Congress out of the picture.
As former Chicago Federal Reserve economist and Senior Morningstar equity analyst
William Bergman wrote in 2001:
Lord Acton's famous saying that 'power corrupts, and absolute
power corrupts absolutely' provides a valuable warning. In light of
the sweeping powers seemingly provided by statutes like 12 U.S.C. 95a and
12 U.S.C. 95(a), those who care about democratic principles and freedom may
wish to monitor the implications of these and other laws for government choices
before conditions arise giving rise to assertions of emergency authority,
in addition to behavior arising amidst an emergency itself. This study could
usefully include a renewed assessment of the constitutionality of these and
other emergency statutes, as well as more fundamental review of their welfare
implications per se, including work along the lines produced for the Senate
Special Committee to Terminate the National Emergency in 1973.[i]
[i] See for example Special Committee on the Termination of the National
Emergency, "Emergency Powers Statutes: Provisions of Federal Law Now
in Effect Delegating to the Executive Extraordinary Authority In Time of National
Emergency.' United States Senate Report 93-549; November 19, 1973.