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Mary L. G. Theroux Headshot

Emergency Powers Spell Corrosion of Liberty and Safety

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Last week there was a great deal of outraged reaction to the news that President Obama quietly signed Executive Order 13618, which provides the Department of Homeland Security with emergency powers over civilian telecommunications, including private telephone, cellular, and wireless networks. Defenders of the Order point out that it simply extends earlier executive orders signed by President Reagan in 1984 and renewed by President George W. Bush in 2003, granting governmental agencies the power to establish emergency communications systems for use in the event of a nuclear strike or act of terrorism.

Critics of Obama's extension of these emergency powers over private communications networks are referred to the 1934 Communications Act, which authorizes the president to "cause the closing of any facility or station for wire communication" and gives him "control of any such facility or station" if a state of war -- or the threat of one -- exists.

Yet, President Obama also faced similar opposition to his signing of the National Defense Resources Preparedness Executive Order earlier this spring, which gives the president virtually complete control over the entire U.S. economy -- including energy, transportation, human resources, raw materials -- upon his or her declaration that "national defense" requires doing so. This move, as Obama's defenders were quick to point out, was simply an extension of the Defense Production Act of 1950, which has been reauthorized and amended to be continuously in force ever since. Thus, while it, too, provides the president absolute, totalitarian powers over the private sector, there's little new in this latest iteration.

In fact, when we pause to consider every "unprecedented" extension of executive power, we find precedents galore. The oft'-decried USA PATRIOT Act, which President Obama himself had promised to abolish but opted instead to extend, was itself rooted in Clinton-era "anti-terrorist" legislation that weakened individual privacy protections and loosened judicial oversight of domestic spying activities.

So why the excitement now over what are essentially simply instances of executive power-creep?

For one thing, there are so many more Executive Orders being issued. During the whole of World War II, Presidents Roosevelt and Truman issued just seven, and even Richard Nixon issued only one. Fast-forward thirty years to the George W. Bush administration, which issued 62 over his eight years in the White House. President Obama will likely topple this number in his first term alone, having already issued 61.

And perhaps it's our increasing awareness that the bar for what constitutes a "national emergency" has been lowered considerably. These gray areas, exemplified by the U.N. Security Council's admission that it is unable to clearly define "terrorism," makes it that much more likely that a president would actually invoke these powers with less provocation than in previous eras when there was a greater shared understanding of what should precipitate such extreme measures. Most of these powers can be traced to the Cold War era, when everyone knew what threat would trigger transforming the U.S. into a fascist economy and activate the Emergency Broadcast System: nuclear attack.

Today, under the guise of the "War on Terror," civil liberties have been preemptively stripped at a galloping pace under the flimsiest of supposed threats. If a Nobel Peace Prize-winning president would sign -- in the absence of an immediate threat -- the National Defense Authorization Act for 2012 which provides for the indefinite detention of any American citizen without charge or trial, then it takes little imagination to assume that he or a future commander-in-chief would not hesitate to shut down civilian Internet access or private cell service in the name of preventing communications among terrorists, or against the threat of civic unrest.

Lest you think I'm engaging in hyperbole, consider the precedent set last year in San Francisco, arguably the most liberal, civil rights-conscious city in the country. Yet last August, the acting director of the Bay Area Rapid Transit (BART) system preemptively blocked all access to private cell phone communication by anyone in four public BART stations because he believed protestors planned to use cell communications to coordinate their protests. He was able to shut off cell access solely on his own authority. When questioned, the director defended his actions by citing a 1969 ruling, under which "you can put public safety above free speech." Even in this supposed cradle of civil liberties, the post-incident debate concentrated on defining conditions that would allow for these measures to be taken again in the future, rather than calling into question whether such preemptive action ought ever be taken.

Ironically, such emergency powers, ostensibly necessary to preserve our security, may in practice actually render us less secure. As the history of war -- from the British experience in the American Revolution to recent Soviet and American experience in Afghanistan -- has shown, there is no harder fight to win than one against active civilian resistance. But a population isolated from information other than through official -- and thus less free-flowing -- channels would be far less equipped to respond quickly to and resist attack; any enemy would likely have an easier job of prevailing.

As a case in point, on 9/11 the critical difference between Flight 93's failure to reach its target and the successful strikes of the other three flights was the access of Flight 93's passengers to cell phone communication. Informed through these calls of what was happening in New York and at the Pentagon, passengers onboard Flight 93 chose not to follow the standard operating procedure of cooperating with their hijackers. Instead, the passengers organized and carried out the successful assault on the cockpit that led to the plane's crashing into a Pennsylvania field, preventing an untold number of additional deaths had the flight reached its destination.

Had Executive Order 13618 been enacted prior to 9/11, and had the president invoked it to take control of private cell communications in an attempt to restrict the terrorists' communications with one another, Flight 93 might well instead have been the fourth plane to hit its intended target: likely, the White House or U.S. Capitol Building. Thus, the question: Do emergency powers make us all less safe?

Supporters of George W. Bush who protest President Obama's extension of Executive Orders need to remember that they established the precedent of concentrating power within the Executive branch under the guise of "emergency". Likewise, President Obama's supporters might wish to also bear in mind that powers vested in one Executive are available to, and invariably extended by the next. Do they really want any president to be able to indefinitely detain vaguely-defined "suspects" at his or her sole discretion?

For above all, no one can anticipate whose hand will be at the switch in the future, to what unforeseen ends such powers may be used, or what unintended consequences may result. Perhaps it's thus time for a serious reconsideration of the entire trend to government by decree.

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