Suspending the Constitution: Police State Uses Crises to Expand Its Lockdown Powers
By John W. Whitehead, The Rutherford Institute, March 24, 2020
“That was when they suspended the Constitution. They said it would be temporary. There wasn’t even any rioting in the streets. People stayed home at night, watching television, looking for some direction. There wasn’t even an enemy you could put your finger on.” — Margaret Atwood, The Handmaid’s Tale
You can always count on the government to take advantage of a crisis, legitimate or manufactured.
This coronavirus pandemic is no exception.
Not only are the federal and state governments unraveling the constitutional fabric of the nation with lockdown mandates that are sending the economy into a tailspin and wreaking havoc with our liberties, but they are also rendering the citizenry fully dependent on the government for financial handouts, medical intervention, protection and sustenance.
Unless we find some way to rein in the government’s power grabs, the fall-out will be epic.
Everything I have warned about for years—government overreach, invasive surveillance, martial law, abuse of powers, militarized police, weaponized technology used to track and control the citizenry, and so on—has coalesced into this present moment.
The government’s shameless exploitation of past national emergencies for its own nefarious purposes pales in comparison to what is presently unfolding.
It’s downright Machiavellian.
Deploying the same strategy it used with 9/11 to acquire greater powers under the USA Patriot Act, the police state—a.k.a. the shadow government, a.k.a. the Deep State—has been anticipating this moment for years, quietly assembling a wish list of lockdown powers that could be trotted out and approved at a moment’s notice.
It should surprise no one, then, that the Trump Administration has asked Congress to allow it to suspend parts of the Constitution whenever it deems it necessary during this coronavirus pandemic and “other” emergencies.
It’s that “other” emergencies part that should particularly give you pause, if not spur you to immediate action (by action, I mean a loud and vocal, apolitical, nonpartisan outcry and sustained, apolitical, nonpartisan resistance).
In fact, the Department of Justice (DOJ) has been quietly trotting out and testing a long laundry list of terrifying powers that override the Constitution.
We’re talking about lockdown powers (at both the federal and state level): the ability to suspend the Constitution, indefinitely detain American citizens, bypass the courts, quarantine whole communities or segments of the population, override the First Amendment by outlawing religious gatherings and assemblies of more than a few people, shut down entire industries and manipulate the economy, muzzle dissidents, “stop and seize any plane, train or automobile to stymie the spread of contagious disease,” reshape financial markets, create a digital currency (and thus further restrict the use of cash), determine who should live or die…
You’re getting the picture now, right?
These are powers the police state would desperately like to make permanent.
Specifically, the DOJ wants to be able to indefinitely detain American citizens without trial. The DOJ also wants to be able to pause court proceedings and suspend the statute of limitations on criminal and civil cases.
Both signify a clear violation of every right espoused in the Constitution, including habeas corpus.
Habeas corpus, a fundamental tenet of English common law that guards against arbitrary and lawless state action, does not appear anywhere in the Bill of Rights. Its importance was such that it was enshrined in the Constitution itself. And it is of such magnitude that all other rights, including those in the Bill of Rights, are dependent upon it. Without habeas corpus, the significance of all other rights crumbles.
The right of habeas corpus was important to the Framers of the Constitution because they knew from personal experience what it was like to be labeled enemy combatants, imprisoned indefinitely and not given the opportunity to appear before a neutral judge. Believing that such arbitrary imprisonment is “in all ages, the favorite and most formidable instrument of tyranny,” the Founders were all the more determined to protect Americans from such government abuses.
Translated as “you should have the body,” habeas corpus is a legal action, or writ, by which those imprisoned unlawfully can seek relief from their imprisonment. Derived from English common law, habeas corpus first appeared in the Magna Carta of 1215 and is the oldest human right in the history of English-speaking civilization. The doctrine of habeas corpus stems from the requirement that a government must either charge a person or let him go free.
While serving as President, Thomas Jefferson addressed the essential necessity of habeas corpus. In his first inaugural address on March 4, 1801, Jefferson said, “I know, indeed, that some honest men fear that a republican government cannot be strong; that this government is not strong enough.” But, said Jefferson, our nation was “the world’s best hope” and, because of our strong commitment to democracy, “the strongest government on earth.” Jefferson said that the sum of this basic belief was found in the “freedom of person under the protection of the habeas corpus; and trial by juries impartially selected. These principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation.”
Throughout the twentieth century, the importance of the right of habeas corpus has repeatedly been confirmed by the U.S. Supreme Court. Yet 200-plus years after America’s founders risked their lives to secure their freedoms, we find ourselves right back where we started, with a government determined to strip us of every vestige of our freedoms.
The DOJ’s latest request to Congress is merely a signal that the police state is ready to step out of the shadows, with the current national emergency being a convenient cover for their dastardly deeds.
Bear in mind, however, that these powers the Trump Administration, acting on orders from the police state, are officially asking Congress to recognize and authorize barely scratch the surface of the far-reaching powers the government has already unilaterally claimed for itself.
Unofficially, the police state has been riding roughshod over the rule of law for years now without any pretense of being reined in or restricted in its power grabs by Congress, the courts or the citizenry.
As David C. Unger, observes in The Emergency State: America’s Pursuit of Absolute Security at All Costs:
“For seven decades we have been yielding our most basic liberties to a secretive, unaccountable emergency state – a vast but increasingly misdirected complex of national security institutions, reflexes, and beliefs that so define our present world that we forget that there was ever a different America. ... Life, liberty, and the pursuit of happiness have given way to permanent crisis management: to policing the planet and fighting preventative wars of ideological containment, usually on terrain chosen by, and favorable to, our enemies. Limited government and constitutional accountability have been shouldered aside by the kind of imperial presidency our constitutional system was explicitly designed to prevent.”
This rise of an “emergency state” that justifies all manner of government tyranny in the so-called name of national security is all happening according to schedule.
The civil unrest, the national emergencies, “unforeseen economic collapse, loss of functioning political and legal order, purposeful domestic resistance or insurgency, pervasive public health emergencies, and catastrophic natural and human disasters,” the government’s reliance on the armed forces to solve domestic political and social problems, the implicit declaration of martial law packaged as a well-meaning and overriding concern for the nation’s security: the powers-that-be have been planning and preparing for such a crisis for years now, not just with active shooter drills and lockdowns and checkpoints and heightened danger alerts, but with a sensory overload of militarized, battlefield images—in video games, in movies, on the news—that acclimate us to life in a police state.
Whether or not this particular crisis is of the government’s own making is not the point: to those for whom power and profit are everything, the end always justifies the means.
The seeds of this present madness were sown several decades ago when George W. Bush stealthily issued two presidential directives that granted the president the power to unilaterally declare a national emergency, which is loosely defined as “any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government functions.”
Comprising the country’s Continuity of Government (COG) plan, these directives (National Security Presidential Directive 51 and Homeland Security Presidential Directive 20), which do not need congressional approval, provide a skeletal outline of the actions the president will take in the event of a “national emergency.”
Mind you, that national emergency can take any form, can be manipulated for any purpose and can be used to justify any end goal—all on the say so of the president.
Just what sort of actions the president will take once he declares a national emergency can barely be discerned from the barebones directives. However, one thing is clear: in the event of a national emergency, the president will become a dictator because while the COG directives ensure the continuity of executive branch functions, they do not provide for repopulating or reconvening Congress or the Supreme Court.
Thus, a debilitating attack would give unchecked executive, legislative and judicial power to the executive branch and its unelected minions. The country would then be subjected to martial law by default, and the Constitution and the Bill of Rights would be suspended.
Originally devised as a plan for quickly restoring constitutional government, the COG concept arose during the Cold War. The fear was that a nuclear strike would paralyze the federal government.
These concerns continued into the 1980s.
Under President Ronald Reagan, an elaborate plan was created in which three teams consisting of a cabinet member, an executive chief of staff and military and intelligence officials would practice evacuating and directing a counter nuclear strike against the Soviet Union from a variety of high-tech, mobile command vehicles. If the president and vice president were both killed, one of these teams would take control, with the ranking cabinet official serving as president.
Among those Reagan handpicked to advise an inexperienced and potentially incompetent successor in a time of crisis were Congressman Dick Cheney and Donald Rumsfeld, then a business executive with G. D. Searle & Co. At least once a year during the 1980s, Cheney and Rumsfeld vanished on top-secret training missions, where each of the teams practiced evacuating and directing a counter nuclear strike against Russia.
This all changed after the attacks of September 11, 2001, when it became clear that the assumptions that drove COG planning during the Cold War no longer applied: there would be no warning against a so-called “terrorist” attack. Thus, instead of relying on part-time bureaucrats and evacuation schematics, the Bush administration permanently appointed executive officials, stationed outside the capital, to run a shadow government.
The U.S. military has reportedly already been given standby orders under COG for this present coronavirus pandemic.
The plans for the shadow government administered by those who run the Deep State are more elaborate than many realize. Massive underground bunkers the size of small cities are sprinkled throughout the country for the government elite to escape to in the event of a national emergency. Mount Weather, near Bluemont, Va., is one of a number of such facilities. Built into the side of a mountain, this bunker contains, among other things, a hospital, crematorium, dining and recreation areas, sleeping quarters, reservoirs of drinking and cooling water, an emergency power plant and a radio/television studio.
There is also an Office of the Presidency at Mount Weather, which regularly receives top-secret national security information from all the federal departments and agencies. This facility was largely unknown to everyone, including Congress, until it came to light in the mid-1970s. Military personnel connected to the bunker have refused to reveal any information about it, even before congressional committees. In fact, Congress has no oversight, budgetary or otherwise, on Mount Weather, and the specifics of the facility remain top-secret.
What is the bottom line here?
We are, for all intents and purposes, one crisis away from having a full-fledged authoritarian state emerge from the shadows, at which time democratic government will be dissolved and the country will be ruled by an unelected bureaucracy.
This is exactly the kind of mischief that Thomas Jefferson warned against when he cautioned, “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
Absolute power corrupts absolutely.
Thus far, we have at least pretended that the government abides by the Constitution.
Those who wrote our Constitution sought to ensure our freedoms by creating a document that protects our God-given rights at all times, even when we are engaged in war, whether that is a so-called war on terrorism, a so-called war on drugs, a so-called war on illegal immigration, or a so-called war on disease.
The attempts by each successive presidential administration to rule by fiat merely plays into the hands of those who would distort the government’s system of checks and balances and its constitutional separation of powers beyond all recognition.
Remember, these powers do not expire at the end of a president’s term. They remain on the books, just waiting to be used or abused by the next political demagogue.
So, too, every action taken by Trump and his predecessors to weaken the system of checks and balances, sidestep the rule of law, and expand the power of the executive branch of government has made us that much more vulnerable to those who would abuse those powers in the future.
Although the Constitution invests the President with very specific, limited powers, in recent years, American presidents (Trump, Obama, Bush, Clinton, etc.) have claimed the power to completely and almost unilaterally alter the landscape of this country for good or for ill.
The Trump Administration’s willingness to circumvent the Constitution by leaning heavily on the president’s so-called emergency powers constitutes a gross perversion of what limited power the Constitution affords the executive branch.
The powers amassed by each successive president through the negligence of Congress and the courts—powers which add up to a toolbox of terror for an imperial ruler—empower whomever occupies the Oval Office to act as a dictator, above the law and beyond any real accountability.
As law professor William P. Marshall explains, “every extraordinary use of power by one President expands the availability of executive branch power for use by future Presidents.” Moreover, it doesn’t even matter whether other presidents have chosen not to take advantage of any particular power, because “it is a President’s action in using power, rather than forsaking its use, that has the precedential significance.”
In other words, each successive president continues to add to his office’s list of extraordinary orders and directives, expanding the reach and power of the presidency and granting him- or herself near dictatorial powers.
This abuse of presidential powers has been going on for so long that it has become the norm, the Constitution be damned.
We no longer have a system of checks and balances.
“The system of checks and balances that the Framers envisioned now lacks effective checks and is no longer in balance,” concludes Marshall. “The implications of this are serious. The Framers designed a system of separation of powers to combat government excess and abuse and to curb incompetence. They also believed that, in the absence of an effective separation-of-powers structure, such ills would inevitably follow. Unfortunately, however, power once taken is not easily surrendered.”
All of the imperial powers amassed by Barack Obama and George W. Bush and now Trump—to kill American citizens without due process, to detain suspects (including American citizens) indefinitely, to strip Americans of their citizenship rights, to carry out mass surveillance on Americans without probable cause, to wage wars without congressional authorization, to suspend laws during wartime, to disregard laws with which he might disagree, to conduct secret wars and convene secret courts, to sanction torture, to sidestep the legislatures and courts with executive orders and signing statements, to direct the military to operate beyond the reach of the law, to establish a standing army on American soil, to operate a shadow government, to declare national emergencies for any manipulated reason, and to act as a dictator and a tyrant, above the law and beyond any real accountability—have become a permanent part of the president’s toolbox of terror.
These presidential powers—acquired through the use of executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements and which can be activated by any sitting president—enable past, president and future presidents to operate above the law and beyond the reach of the Constitution.
Think on this: the presidential election is right around the corner.
Suddenly, the improbable possibility of any incumbent president attempting to extend the police state’s stranglehold on power by using current events to justify postponing or doing away with an election—forfeiting the people’s rights to govern altogether—and establishing a totalitarian regime seems less far-fetched than it did even a few years ago.
The emergency state is now out in the open for all to see. Unfortunately, “we the people” refuse to see what’s before us. Most Americans, fearful and easily controlled, would sooner rouse themselves to fight for that last roll of toilet paper than they would their own freedoms.
This is how freedom dies.
We erect our own prison walls, and as our rights dwindle away, we forge our own chains of servitude to the police state.
Be warned, however: once you surrender your freedoms to the government—no matter how compelling the reason might be for doing so—you can never get them back.
As I make clear in my book Battlefield America: The War on the American People, no government willingly relinquishes power.
If we continue down this road, there can be no surprise about what awaits us at the end.
The America metamorphosing before our eyes is almost unrecognizable from the country I grew up in, and that’s not just tragic—it’s downright terrifying.
About the author: Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People is available at www.amazon.com. Whitehead can be contacted at firstname.lastname@example.org.
This article was originally published by The Rutherford Institute (rutherford.org) on March 24, 2020. Reprinted with permission. Copyright 2020 The Rutherford Institute