The loss of the Polish President and other key leaders in the April 10th crash of their airliner while attempting to land in Smolensk, Russia seemed eerily juxtaposed to the Nuclear Security Summit with 47 nations, including 38 heads of state, which ended recently in Washington, D.C. Both raise a troubling question for the United States: how prepared are we to respond to a tragic and unexpected loss of our leaders?
Such a disaster is not unthinkable. Had the fourth plane on 9/11 reached its target - the Capitol or the White House - the unimaginable could have been reality. A nuclear dirty bomb - or even worse a small nuclear bomb itself - could kill from hundreds to hundreds of thousands. What if the unthinkable happens in the nation's capitol, while Congress is in session?
The Constitution, including one amendment, and complementary legislation, addresses the loss of the President and other key leaders. But are these provisions adequate?
Article II, Section 1 puts the Vice-President first in the line of succession and permits Congress to provide by law for cases where neither a President nor a Vice-President can serve. The most recent Congressional legislation, the Presidential Succession Act of 1947, puts the Speaker of the House and the President Pro Tempore of the Senate next in line, followed by Cabinet Secretaries, in the order in which their departments were established. The 25th Amendment, ratified in 1967, prescribes how to fill the office of the Vice-Presidency if its occupant becomes President (nomination by the new President and confirmation by majority vote of both Houses of Congress). There matters have stood, for more than four decades.
The prospect of a terrorist attack on government leaders suggests that current succession policies are as unthinking as such an attack seems unthinkable. The current solution was crafted before the age of terrorism and anticipates the loss of a few leaders at most. Yet how would we react to a President Nancy Pelosi or a President Harry Reid? How would we feel if the Congressional leader put into the presidency were of a different party than the elected president? How much legitimacy would a Cabinet Secretary, appointed yet elected by no one, have if she or he became president? Since neither the Constitution nor current law provides for election of a new president before the end of the elected president's term (by comparison, the Polish Constitution requires an election within 60 days of the loss of its president), how much legitimacy would any of these people have, especially if they ended up serving for a year or more? Might there be an inherent conflict of interest if a member of the legislature becomes the head of the executive branch? What if all the leaders in the line of succession were killed?
These questions are troubling enough, but the picture becomes more frightening if the precipitating event which new leaders must address is a weapon of mass destruction. The havoc would raise demands for dramatic if not draconian security measures that would severely test the Constitution itself, especially its guarantee of civil rights. Civil disobedience and/or civil unrest are equally possible in such an unprecedented tragedy. The aftermath of 9/11 offers both hopeful and troubling signs - we pulled together to support and grieve with each other, but questions of civil liberties and the use of torture to prevent more attacks still trouble many. How would our nation and our new leadership respond and how legitimate would the government's response be considered - especially in the fractured political climate which now characterizes America? Imagine if all this had to be addressed when Congress itself had lost many members, disrupting its own leadership and raising questions about its own capacity and legitimacy to act.
It is possible to think about these unthinkable scenarios. It's also important to derive reasoned responses and begin to move towards a national consensus on how we want ourselves and our government to behave. And it's far easier to do this now than in the midst of tragedy. In some nations, ethnicity or race holds the country together. In others, religion is the centripetal force. In still others, a shared historical tragedy binds people against threats and disruptions. In the United States, we are a people held together by a piece of parchment. The Constitution is the one unifying force that we rally behind when trouble strikes and look to for guidance on how to respond in a way faithful to who were are. Yet, without more work, if we look to the Constitution when the unthinkable happens, we could well find nothing thoughtful there.