Government In Denial

By Norman Ornstein
Thursday, July 12, 2007

The recent car-bomb threats in Britain were stark reminders that terrorists continue to probe for ways to attack us -- and not every attempt will fail or be repelled.

That this danger extends to the United States was made clearer in May when the White House announced National Security Presidential Directive 51 and Homeland Security Presidential Directive 20 to create a national continuity policy -- ensuring that federal agencies could still operate, with clear lines of authority, in the event of a devastating surprise attack on Washington.

These largely sensible directives have received only modest attention. Yet they spotlight the abject failure of our leaders in all three branches to make sure our Constitution remains intact if and when terrorists hit us again.

During the Cold War, elaborate top-secret plans existed, including bunkers for the president, vice president, Supreme Court justices and members of Congress. If nuclear missiles were launched by the Soviet Union, there would be 30 to 90 minutes' notice to evacuate top officials by plane, train or automobile.

On Sept. 11, 2001, the era of notice preceding attacks ended. This underscored the fact that none of our branches of government had plans to keep operating if hit in a serious way. An attack on Congress that killed or incapacitated a large number of members would mean no Congress for months. Each house needs half of its members to be present for a quorum to do any official business. The House of Representatives can replace deceased members only by special elections that take, on average, four months. The Senate, under the 17th Amendment, allows states (usually governors) to appoint replacements to fill vacancies, but neither house has a mechanism for replacing incapacitated members.

Presidential succession after the vice president is set by statute; every person in the line is based in Washington. The Supreme Court requires a quorum of six justices to function; if all or most of the justices are killed, there would be no Supreme Court until a president or acting president nominated successors and the Senate confirmed them. If an attack damaged all three branches, replenishing the court could take months or longer.

Consider the worst-case scenario: a suitcase nuclear attack at a presidential inauguration, with the outgoing and incoming president and vice president, most of Congress, and the Supreme Court present; the outgoing Cabinet scheduled to leave office; and no incoming Cabinet members yet confirmed. There would be chaos -- no clear president to take over, probably many Al Haig wannabes announcing that they were in charge, no quorum to reconstitute Congress, no court to sort out the conflicting claims.

This scenario may be unlikely -- but the new presidential directives make clear that it is not outlandish. In the aftermath of Sept. 11, I wrote a series of pieces pointing out the vacuum in governance that could be created by another attack. I helped create a Continuity of Government Commission, co-chaired by former senator Alan Simpson and the late Lloyd Cutler, former White House counsel, to consider and recommend reforms to ensure we could quickly constitute legitimate and representative institutions to keep our form of government functioning.

There were, and are, straightforward ways to do so: creating temporary appointments to ensure a representative legislative branch that can function until real and meaningful elections can occur to fill vacancies; revamping presidential succession to ensure that some designated figures are geographically dispersed; creating a temporary Supreme Court, consisting of the chief judges of the federal appeals courts, to adjudicate key constitutional issues until a regular court can be reconstituted.

But my efforts and those of others over the past five-plus years have been met with indifference or hostility. The response of congressional leaders, especially former House speaker Dennis Hastert, was aggressive opposition to serious consideration of any meaningful proposals and slapdash passage of poorly drafted and unworkable stopgap measures to quell the criticism. Former Senate majority leader Bill Frist had no interest. So far, their respective Democratic replacements, Nancy Pelosi and Harry Reid, have shown no greater proclivity to act.

Several times I raised the question of presidential succession directly with Vice President Cheney, to no avail. I discussed Supreme Court succession with Chief Justice John Roberts soon after he took the post. Roberts said, "I just got here, and you want me to deal with the issue of my demise?"

The lack of interest in continuity may stem from the same reasons some smart people refuse to create wills, even though failure to do so leaves behind horrific messes for their loved ones. Yet the threat is real. Our leaders' failure to establish plans to ensure that our Constitution survives is irresponsible. Do we really have to wait until the nightmare scenario becomes a reality to do something?

The writer is a resident scholar at the American Enterprise Institute and senior counselor to the Continuity of Government Commission.

© 2007 The Washington Post Company