Is Martial Law Around the Corner?

Editor's note: After writing about the White House's issuance of a "National Continuity Policy" on May 9 which entrusts President Bush to lead the entire federal government, not just the Executive Branch, to ensure "constitutional government" in the case of a "catastrophic emergency," Progressive magazine editor Matthew Rothschild has followed up after consulting with the ACLU to see what they thought about it. (For another take on the National Continuity Policy, read Marjorie Cohn's article, "Don't We Have a Constitution, Not a King?")

A note of caution since I wrote about Bush's plans to anoint himself the insurer of constitutional government in the event of emergency.

I decided to see what the American Civil Liberties Union thought of the May 9 release of the National Security Presidential Directive, and to my surprise, the ACLU did not seem that concerned about it.

"These presidential directives on the continuity of government have existed for a long time," says Mike German, ACLU policy counsel. "All it does is establish that they should have a policy and coordinate that policy with legislative and judiciary. It doesn't change the order of succession, or anything like that."

Plus, he praised the Bush Administration for making the document public, since previous ones have remained classified.

"I'm glad they made it public," he says. "The fact that this was done in an open and transparent manner should be applauded."

As to the substance of the document: "It's impossible to know whether this is an attempt to usurp some authority that had otherwise not been contemplated by law," German says.

It certainly is curious as to why the Bush Administration released the document. The last paragraph is entitled "Security," and it states: "This directive and the information contained herein shall be protected form unauthorized disclosure, provided that, except for Annex A, the Annex's attached to this directive are classified."

But whatever the reason for the disclosure, the document is not reassuring, especially given Bush's demonstrated disdain for the Constitution.

Take his approval of warrantless NSA domestic spying. U.S. District Judge Anna Diggs Taylor ruled that it "undisputedly" violates the Fourth Amendment, "undisputedly" violates the Foreign Intelligence Surveillance Act, violates the First Amendment, and violates the separation of powers. Not mincing any words, she added: "The Constitution itself has been violated."

Or take his policy of denying U.S. citizens due process. Justice Sandra Day O'Connor, writing for the Supreme Court in the Hamdi case, said the President does not have a blank check in times of war. "We necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts," O'Connor wrote. And she explicitly warned about an Executive Branch approach that "serves only to condense power into a single branch of government."

Condensing power into a single branch is precisely what concerns me about Bush's new directive.

The directive also uses fudge words that President Bush was fond of while he was trying to find ways to justify torture. The continuity of government directive says it will be implemented in a manner "consistent with" the Constitution and "consistent with applicable law."

Compare that with Bush's February 7, 2002, order governing the treatment of detainees: "The war against terrorism ushers in a new paradigm. . . . Our nation recognizes that this new paradigm -- ushered in not by us, but by terrorists -- requires new thinking in the law of war, but thinking that should nevertheless be consistent with the principles of Geneva."

In that context, Bush used the phrase "consistent with" to justify actions that were antithetical to the Geneva Conventions.