‘Kill Switch And Detentions’: FOIA Docs Reveal Government Plans – POTUS Emergency Powers



The George W. Bush Presidential Library has turned over 500 of the 6,000 pages of documents, known as the “Presidential Emergency Action Documents” (PEAD), which “shed disturbing new light on the powers that modern presidents claim to possess in times of crisis,” according to the Brennan Center, which obtained the records through a Freedom of Information Act (FOIA) request.

PEADs were created during the Cold War, when the risk of a Soviet nuclear strike was at its peak. Early drafts would have relied on broad interpretations of executive powers. According to official reports from the 1960s, various PEADs authorized the President to adopt measures such as suspend habeas corpus, detain “dangerous people” in the country, censor the media and prevent international travel.

In light of 9/11, a Bush administration official viewed updating the PEADs as “an urgent and compelling security effort, especially in light of ongoing threats.”

While the Brennan Center was unable to obtain more recent PEADs, the documents show that “some of the most disturbing aspects of early Cold War emergency action documents” have been maintained at the less throughout 2008.

Here are the specific results via the Brennan Center:

Control communications

At least one of the documents reviewed sought to implement the emergency powers contained in Section 706 of the Communications Act. During World War II, Congress granted the President the power to shut down or take control of “any wired communications facility or station” upon proclamation “that there exists a condition or threat of war involving the United States “.

This frighteningly expansive language was, at the time, hampered by Americans’ limited use of telephone calls and telegrams. Today, however, a president eager to test the limits of his authority could interpret “wired communications” to encompass the internet – and thus claim a “kill switch” over vast swaths of electronic communication.

And indeed, Bush administration officials repeatedly emphasized the law’s flexibility: it was “very broad,” as one National Security Council official scribbled, and it stretched “wider than FCC Common Carriers”. [Federal Commu­nic­a­tions Commis­sion] juris[diction].”

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Previously, it was a matter of speculation as to whether emergency action documents claimed to implement this authority. But Bush officials evidently reviewed at least one of those documents as part of their review, a PEAD communications law that appears to predate the administration. And library records suggest the administration added three more documents on the same topic.

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Detention authority

Records indicate that at least one presidential emergency action document concerned the suspension of habeas corpus. An internal memo from June 2008 stated that a document under the jurisdiction of the Department of Justice was “[s]until reviewed by OLC [Office of Legal Coun­sel], in light of the recent opinion of the Supreme Court. Looking at the judgments of the Court over the previous months, it is obvious that this must refer to the historic decision of Boumediene c. Bush, which recognized the constitutional right of Guantanamo Bay prisoners to challenge their detention in court. This strongly suggests that the early Cold War PEADs supposed to suspend habeas corpus had survived, at least in some form, and were part of the Bush administration’s review.

The result of post-administrationBoumediene the revision is unknown. Significantly, however, it does not appear that any emergency action documents have been withdrawn or rescinded. On the contrary, eight PEADs were added, bringing the total number to 56.

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Obstructing the right to travel

The restriction on the use of U.S. passports—a reported feature of some early presidential emergency action documents—remained on the table in 2008. Documents generated by the Bush administration’s review highlighted a provision of the 1978 act that allows the government to restrict international movement on the basis of “war”, “armed hostilities”, or “imminent danger to the public health or physical safety of American travelers”.

Although presidents have used this law to ban travel to Lebanon, Iraq, Libya and North Korea, a more sweeping repeal of the right to travel would represent a radical departure from modern historical practice.

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Trigger other emergency powers

The national emergency declared after 9/11—which is still in effect today and continues to support the United States military presence around the world—has been cited in connection with one or more PEADs.

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A declaration of national emergency unlocks enhanced powers contained in more than 120 provisions of the law. Bush invoked several of these authorities, but several dozen more were—and still are—at the president’s disposal as a result of Proclamation 7463. Presumably, the reference to the proclamation when discussing the administration implies the existence of documents designed to implement other statutory emergency powers. , which range from the trivial to the alarming, nearly four years after the attacks.

• • •

As in any archival expedition, the silences are often the most revealing. William Arkin, a noted expert on PEADs, reviewed the new documents leaked by the library and observed that they mainly concern civilian agencies – few, if any, address the role of the military in times of crisis. . He suggests that this “dark side” would have been discussed at a higher level of classification. By implication, the most daring claims to presidential power may have been excluded entirely from this tranche of documents.

Also missing from the records is any evidence that the Bush administration communicated — let alone cooperated — with Congress during its review. We have already noted that presidents have kept the PEAD secret, not only from the American public but also from lawmakers. This lack of disclosure effectively prevents an equal branch of government from overseeing emergency protocols.

With Congress unable to fulfill its constitutional role of checks and balances on the executive, there remains the possibility that modern MDPs, like their historic predecessors, will sacrifice Americans’ constitutional rights and the rule of law in the name of contingency planning. . Congress should pass Sen. Ed Markey’s REIGN Act, which has been incorporated into the Protecting Our Democracy Act and the National Security Reforms and Accountability Act, to account for these shadowy powers.


(TLB) published this ZeroHedge article as compiled and written by Tyler Durden

Featured header image (modified) Credit: Whitehouse/Secret/BCJ/Melodie Yvonne/Getty

Emphasis Added by Editors (TLB)


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