Executive Orders

excerpted from the book

Inside the Shadow Government

National Emergencies and the Cult of Secrecy

by Harry Helms

Feral House, 2003, paper

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The Communications Act of 1934 created the Federal Communications Commission and is the basic law governing electronic communications in the United States. Here is section 606(c) of the Act: "Upon proclamation by the President that there exists war or a threat of war or a state of public peril or disaster or other national emergency, or in order to preserve the neutrality of the United States, the President may suspend or amend, for such time as he may see fit, the rules and regulations applicable to any or all stations within the jurisdiction of the United States as prescribed by the Commission, and may cause the closing of any station for radio communication and the removal therefrom of its apparatus and equipment, or he may authorize the use or control of any such station and/or its apparatus and equipment by any department of the Government under such regulations as he may prescribe, upon just compensation to the owners."

Over the years, presidents have accumulated enormous powers to deal with national emergencies. Some of these powers, like those authorized in Section 606(c) of the Communications Act, have been granted ... by Congress. Others, like the detention of Japanese-American citizens by Executive Order 9066, have been, in effect, appropriated by various presidents through the issuance of executive orders justified by a national emergency... Using executive orders, presidents have suspended the constitutional right to a writ of habeas corpus, spent money without Congressional authorization, created entirely new federal agencies, forced banks to close, demonetized gold, seized mines, and control wages and prices.

Just what is a "national emergency"? That term does not appear in the Constitution, nor does it have a precise legal definition. In practice, a national emergency is whatever the president deems to be a national emergency. The result has been that the United States has been in an almost continual state of national emergency since March 6, 1933, when President Franklin Roosevelt declared a state of national emergency to deal with the Great Depression. When President George W. Bush was inaugurated in January, 2001, he inherited thirteen national emergencies declared by his predecessors.

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... the National Security Act of 1947 ... contained sweeping ... new powers for the president. Various continuing national emergencies brought about the issuance of ever more expansive executive orders. New systems of classification and official secrecy (many springing directly from the National Security Act of 1947) resulted in increasing government secrecy; eventually billions of dollars in annual federal spending would be kept secret from all but a few members of Congress. Secret plans were drafted for the U.S. military to take over most of the functions of civilian government in case of a national emergency. A huge secret infrastructure was built to protect and shelter the president and other key government leaders in case of a nuclear attack.

Many have never heard of these measures. Rather than have a complete and open debate about the new perils facing constitutional government after World War II, and the proposing of constitutional amendments to deal with those dangers, the whole matter was largely handled off the books. There were several reasons for this, but the strongest seems to have been an obsessive concern for a vaguely defined "national security."

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In the aftermath of World War II, national leaders-civilian and military alike-seem to have developed a strong distrust of the American people. Perhaps it was the paranoia over real and imagined spies that culminated in the Rosenberg trials and McCarthy hearings of the 1950s. Maybe it was a paternalistic belief that the will and morale of the American people would collapse if they had to ponder the horrific implications of a sudden nuclear attack. Or perhaps, more sinisterly, national leaders began to view the constitutional rights of Americans as placing the United States at a serious disadvantage in case of any conflict with the Soviet Union and its allies. Regardless of the reason(s), a consensus developed that plans for handling future national emergencies were not only necessary but also best kept secret from the public.

p18
The Shadow Government is nothing new and is strictly bipartisan. Its roots stretch back to the presidencies of Abraham Lincoln, Woodrow Wilson, and Franklin Roosevelt; its later architects include John Kennedy, Jimmy Carter, and Ronald Reagan. The Shadow Government includes secret facilities, presidential orders that create law without Congressional approval, classified projects and budgets, and numerous obscure provisions of various laws that give the president awesome powers in case of national emergency. Many elements of the Shadow Government might seem to violate the U.S. Constitution, but several of those same elements-such as the detention for any length of time of persons not charged with any crime-have been upheld by the U.S. Supreme Court. Much of the Shadow Government is unknown and classified; each year, Congress approves money for various projects whose very existence is unknown to all but a handful of Congressional leaders (and even those Congressional leaders know only the most cursory details of those projects and exercise virtually no oversight).

The Shadow Government is not controlled by any secret cabal- indeed, it is uncertain whether anyone or anything controls it. Wrapped in secrecy, it has been able to grow and mutate without scrutiny or accountability; perhaps even the president is unaware of its scope.

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One of President George W. Bush's responses to the September 11 attacks was the creation on October 8, 2001 of the Office of Homeland Security and the Homeland Security Council. The Office's mission is "to develop and coordinate the implementation of a comprehensive national strategy to secure the United States from terrorist threats or attacks." Its functions include coordinating the collection and analysis of terrorist threats against the United States, monitoring the activities of terrorists and terrorist groups within the United States, preparing responses to terrorist threats and attacks, ensuring protection of critical national infrastructure, coordinating recovery efforts, and planning Continuity of Government I (COG) programs...

Article I, Section 1 of the United States Constitution says, " Legislative Powers granted herein shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." But no member of Congress voted to create the Office of Homeland Security. So how did it come into being?

Although not mentioned in the Constitution, executive orders issued by the president have the same legal effect as laws passed by Congress. In effect, then, they allow the president to legislate independently of | Congress. For example, Lincoln's Emancipation Proclamation was an executive order, as was his suspension of habeas corpus during the Civil War. Franklin Roosevelt used executive orders in 1933 to close all American banks and force citizens to turn in their gold coins and, in 1942, to intern American citizens of Japanese descent for the duration of World War II. In 1951, Harry Truman used an executive order to seize strikethreatened steel mills to prevent shortages that would endanger "national security." Richard Nixon used executive orders to impose wage and price controls in 1971. The Federal Emergency Management Agency (FEMA) was created not by Congress, but by an executive order of Jimmy Carter. George W. Bush's Executive Order 13228 created the Office of Homeland Security.

WHAT IS AN EXECUTIVE ORDER?

Article II of the United States Constitution defines the powers of the president. Accustomed as we are today to the impression that the president is the United States government, the seemingly weak powers given to him by the Constitution may come as a shock. Section 1 of Article II gives the president a vaguely defined "executive authority"-the authority to carry out the laws passed by Congress and as interpreted by the courts-and Section 3 of Article II charges him to "take Care that the Laws be faithfully executed." Section 2 of Article II gives him command of the armed forces. Many historians and constitutional scholars have argued that the intent of making the president commander in chief was not to give him wide-ranging powers but to ensure civilian control of the armed forces and prevent military leaders opposing the civilian government, as had happened in Europe.

In order to "take Care that the Law be faithfully executed," the president must order members of the executive branch to implement laws and act in ways that conform to the law. While the Constitution is silent on the president's authority to issue such orders, Supreme Court rulings have declared the president has implied powers to issue those orders to the executive branch necessary to discharge his constitutional responsibility to execute the law faithfully.

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Thirty days after publication, executive orders become as binding upon all affected parties as a law passed by Congress. Congress can overturn an executive order in the same way it can repeal a law, but by far the most common Congressional action is to approve retroactively the actions taken under executive orders. Federal courts also can overturn executive orders but rarely do.

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Congress has delegated so much authority to the president over I the years that determining the exact scope of presidential discretion is almost impossible. But it is clear that an astonishing amount of authority has been transferred to the president, especially in cases of "national `, emergency." ... the president has the authority to seize any radio transmitting equipment, including cell phones. Here again is the relevant text, section 606(c), of the Communications Act of 1934:

Upon proclamation by the President that there exists war or a threat of war or a state of public peril or disaster or other national emergency, or in order to preserve the neutrality of the United States, the President. . . may suspend or amend, for such time as he sees fit, the rules and regulations applicable to all stations. . . within the jurisdiction of the United States as prescribed by the Commission, and may cause the closing of any station for radio communication. . . and the removal of its apparatus and equipment, or he may authorize the use or control of any such station. . . and/or its apparatus and equipment by any department of the Government under such regulations as he may prescribe, upon just compensation to the owners.

That short section conveys breathtaking authority to the president in the event of a national emergency, authorizing him to take control of all radio and television stations in the United States, satellite communications, hobby radio stations such as ham radio and CB, and even pagers and cell phones-all fall under the legal definition of "radio communication." And there are similar "emergency" provisions, hidden in a multitude of laws enacted by Congress over the past several decades, which can be activated if the president declares a national emergency.

A trend in executive orders after World War II is to be as vague as possible in citing the legal basis for the order. Before World War II, presidents commonly cited a specific piece of legislation or section of the Constitution as justification for an order. Today, such justifications as "the authority vested in me as President by the Constitution and the laws of the United States" are common, making it difficult or impossible to ascertain whether the order has a valid legal basis.

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Lincoln's most controversial and wide-ranging action was his suspension of the right to a writ of habeas corpus, which prevents a person being arrested and held unless formally charged with a crime and brought to trial. Article I, Section 9 of the Constitution reads, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The inclusion of this right in the main body of the Constitution indicates its importance to the framers when compared with others (such as the rights to freedom of speech and freedom of religion) spelled out in the Bill of Rights as afterthoughts. This reflects the colonists' long and unhappy experience with English kings who suspended this right whenever they wanted to keep opponents and dissenters behind bars indefinitely.

Lincoln revoked the right to a writ of habeas corpus on April 21, 1861, in the following order to Winfield Scott, then General-in-Chief of the Army: "You are engaged in suppressing an insurrection against the laws of the United States. If at any point on or in the vicinity of the military line which is now used between the city of Philadelphia via Perryville, Annapolis City and Annapolis Junction you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally or through the officer in command at the point where the resistance occurs are authorized to suspend the writ." This order gave Lincoln and his military commanders unlimited powers to arrest and detain anyone they wanted; persons detained had, as a practical matter, no legal rights.

The immediate targets of Lincoln's order were not, as the order implied, rebellious Southerners, but the state legislature of Maryland. Several members were known Southern sympathizers, and there was fear that Maryland might also vote to secede. The fear was justified; the legislature had rejected Lincoln's April 15 order for men from its state militia, calling it unconstitutional. After Lincoln's order of April 27, the first arrests included thirty-one of the legislators along with the mayor of Baltimore and a congressman from the state. The governor of Maryland resigned under threat of arrest, and the Army (presumably with Lincoln's approval) installed a pro-union replacement for him for the rest of the Civil War. Lincoln later extended the order suspending the writ of habeas corpus to the entire United States; its principal targets were not Confederate saboteurs or spies but northerners who opposed the war or the draft (especially newspaper editors and writers).

The most notorious target of Lincoln's order was Clement Vallandigham, a congressman from Ohio who opposed the war and called for a negotiated end to it. He was defeated for re-election in 1862. On May 1, 1863, he made a speech in Mount Vernon, Ohio against "the wicked, cruel, and unnecessary war," charging that "the men in power are attempting to establish a despotism in this country, more cruel and more Oppressive than ever existed before." A few days later, soldiers under the command of General Ambrose Burnside raided Vallandigham's farm in the middle of the night, taking him prisoner and charging him with declaring sympathies for the enemy." Instead of being tried in a civilian court, Vallandigham was tried before a military tribunal and sentenced to prison for the remainder of the war. Lincoln commuted his sentence, and-in a move that had no legal foundation or precedent in American jurisprudence-ordered him banished to the Confederacy. Vallandigham managed to make his way to Canada, and in 1864 received the Democratic nomination for governor of Ohio and almost won. (He is said to be the inspiration for Edward Everett Hale's story "The Man Without a Country.")

Lincoln's suspension of the writ of habeas corpus eventually resulted in his issuing an arrest order for the chief justice of the U.S. Supreme Court. In May 1861 John Merryman was arrested by U.S. troops at his farm near Cockeysville, Maryland. A Southern sympathizer, Merryman was implicated in a plot to burn railroad bridges in Maryland. He was taken to Fort McHenry and held without charge. Roger B. Taney, Chief Justice of the U.S. Supreme Court, was also the sitting federal circuit court judge for the district that included Maryland. He issued a writ of habeas corpus to General George Cadwalader directing that Merryman be either formally charged or released. Using President Lincoln's order as his authority, Cadwalader refused. Taney then found Cadwalader in contempt of court. In his ruling, ex parte Merryman, Taney made the telling argument that the power to suspend habeas corpus is part of Article I of the Constitution, which enumerates the powers and responsibilities of Congress. Article II, which defines the powers and duties of the president, makes no mention of it. As Taney wrote, "A state of rebellion is the only time when Congress could declare the writ removed. . . This Article is devoted to the legislative department of the United States, and has not the slightest reference to the executive branch."

Lincoln, enraged by Taney's ruling, ordered General Cadwalader and other military leaders to ignore it. Taney briefly considered organizing a posse of federal marshals to arrest Cadwalader, but decided against this to avoid massive bloodshed. But Lincoln, suspecting that Taney harbored sympathies for the Confederacy, ordered Federal Marshal Ward Hill Lamon to arrest him. Lamon had misgivings about trying to arrest the nation's top judge, and conveyed those doubts to Lincoln. In his diary, Lamon wrote that Lincoln told him to use his own discretion about making the arrest until he received orders to the contrary. Lamon decided not to arrest Taney until ordered to do so, and Lincoln did not pursue the matter.

Lincoln's suspension of habeas corpus drew international attention. A British publication, Macmillan Magazine, editorialized in 1862 that "there is no Parliamentary (congressional) authority whatever for what has been done. It has simply been done on Mr. Lincoln's fiat. At his simple bidding, acting by no authority but his own pleasure, in plain defiance of the provisions of the Constitution, the Habeas Corpus Act has been suspended, the press muzzled, and judges prevented by armed men from enforcing on the citizens' behalf the laws to which they and the President alike have sworn."

Lincoln was not rebuked for his actions until after his death. In 1866, the Supreme Court ruled in ex parte Milligan that it was unconstitutional to suspend the right to a writ of habeas corpus or to establish a system of military detentions and trials anywhere civil courts were still functioning. This Court undermined this decision, however, when it upheld President Franklin Roosevelt's Executive Order 9066 authorizing internment of Japanese Americans during World War II.

Lincoln's best known executive order is the Emancipation Proclamation, issued on January 1, 1863...

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THE EXECUTIVE ORDERS OF FRANKLIN ROOSEVELT

The Democratic Party had a majority of 334 to 89 in the House of Representatives and 75 to 17 in the Senate when Franklin Roosevelt was inaugurated, and the margin of his victory indicated widespread public support for far-reaching measures to fight the Great Depression. But the new president made it clear in his March 4, 1933 inaugural address that he wanted more power:

It is to be hoped that the normal balance of executive and legislative authority may be wholly adequate to meet the unprecedented task before us. But it may be that an unprecedented demand and need for action may call for temporary departure from that normal balance of public procedure. I am prepared under my constitutional duty to recommend the measures that a stricken nation in the midst of a stricken world may require. But in the event that Congress shall fail to take one of these two courses, and in the event that the national emergency is still critical, I shall not evade the clear course of duty that will then confront me. I shall ask the Congress for the one remaining instrument to meet the crisis-broad executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.

That passage neatly summarizes the attitude toward presidential power and its exercise through executive orders that Franklin Roosevelt repeatedly displayed throughout his presidency. Not even Lincoln legislated (some would say "dictated") through executive orders as Franklin Roosevelt did. Much of the potential for presidential abuse of executive orders arises directly from precedents set by Roosevelt during I his twelve years in the White House.

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But none of Roosevelt's other executive orders equaled the impact of Executive Order 9066. No other better illustrates the awesome power of executive orders, their potential for abuse, and how seemingly innocuous text can have fearsome applications.

EXECUTIVE ORDER 9066

Appendix A reproduces Executive Order 9066, issued on February 19, 1942. Its language gives little reason to suspect that it would entail the internment of over 110,000 persons of Japanese descent, including 77,000 American citizens, for the duration of World War II. That is no accident; Executive Order 9066 was expressed vaguely to avoid provoking organized resistance. And, in the now traditional pattern of executive orders, Congress later passed legislation validating it.

Executive Order 9066 originated in the rabid anti-Japanese hysteria that followed the bombing of Pearl Harbor. In the first few days following the attack, General John L. DeWitt, commander of the Western Defense Command, sent a report to President Roosevelt accusing Japanese Americans of engaging in espionage and disloyal conduct. His suspicion of Japanese Americans was purely racist, and his report the work of a bewildered mind; he took the total lack of evidence of such JapaneseAmerican disloyalty or sabotage as proof of their guilt. In DeWitt's convoluted words: "[t]he Japanese race is an enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become 'Americanized,' the racial strains are undiluted. . . The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken." Newspapers also did their part to feed mass racist hysteria. The Los Angeles Times editorialized, "[a] viper is nonetheless a viper wherever the egg is hatched, so a Japanese American-born of Japanese parents- grows up to be a Japanese, not an American."

The implementation of Executive Order 9066 was draconian. Posters headlined "INSTRUCTIONS TO ALL PERSONS OF JAPANESE ANCESTRY" appeared in Los Angeles, San Francisco, and other cities with large Japanese-American populations, ordering Japanese Americans to report to "control stations." They were forbidden more than two suitcases per person, and permitted only such necessities as clothing, toiletries, and food. Those who reported to the control centers were then relocated to various internment camps. The most famous of these was Manzanar, located on Highway 395 along the eastern slopes of California's Sierra Nevada Mountains. Nine other camps were scattered through the western United States. Most Japanese Americans interned at the various camps did not have time to close their businesses, store their property, or otherwise settle their affairs. As a result, most internees incurred significant financial losses.

The sole criterion for internment under Executive Order 9066 was race. Most affected Japanese Americans were born in the United States and had never been to Japan. Even Japanese Americans who had been adopted and raised by white families-and who could not speak or write a word of Japanese-were swept up by Roosevelt's order.

While it did not single out Japanese Americans explicitly, in practice it applied only to them. German and Italian nationals were interned during World War II, but never any German-American or Italian-American citizens. If President Roosevelt and General DeWitt had any reason for their apparent belief that German Americans and Italian Americans were less prone to disloyalty than Japanese Americans, it must have been simple racism.

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Franklin Roosevelt was president for a little over twelve years. that time, he issued 3,723 executive orders, a figure greater than the total issued by all succeeding presidents through the end of the Clinton administration.

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