On the morning of September 11, 2001, after terrorists toppled the World Trade Center towers, rammed a jet into the Pentagon, and were thought to be in control of an unknown number of additional planes, the National Security Council ordered the government to act as if the apocalypse was now. A series of secret orders, known collectively as Continuity of Government, or COG, zipped across the government’s classified computer and phone networks.
On cue, the Federal Emergency Management Agency’s Alternate National Warning Center in Olney, Md., sent emergency action alerts. The 1st Helicopter Squadron (code-named “Mussel”) swooped down to the National Mall from Andrews Air Force Base, grabbed congressional leaders, and rushed them to the Mount Weather Emergency Operations Center in Bluemont, Va. The Secret Service spirited first lady Laura Bush to a bunker beneath one of its buildings. An Army helicopter on standby at Davison Army Airfield, about 15 miles from the Pentagon, whisked the deputy Defense secretary, Paul Wolfowitz, to an enormous hardened bunker (code-named “Marconi”) deep within the Raven Rock Mountain Complex near Maryland’s border with Pennsylvania.
But 50 years of secret contingency planning, most of it drawn up with a U.S.-Soviet Union nuclear war in mind, had not anticipated a threat like the one that came on 9/11. No one had updated continuity-of-government plans for the Pax Americana. Communication nodes malfunctioned, leaving President Bush, who was in Florida, out of touch with the military and the White House at key points during the day. Hotlines, conference-call systems, and telephone circuits with built-in preemption capability—the key connections between all the moving parts—were unreliable.
The government couldn’t find Cabinet members; they and their security details were clueless about where to go. The Presidential Emergency Operations Center, or PEOC, three stories beneath the East Wing of the White House, was not always in contact with the president when it needed to be. For a time, the emergency center could not reach Defense Secretary Donald Rumsfeld, who was assisting with the rescue operations at the Pentagon, even though an officer or two from the Pentagon Communication Agency accompanied his personal protection detail.
That day did not cause an existential crisis for American government. The evacuation of key leaders from Washington worked well enough. But the problem was distilled by a furious phone call from Bush to PEOC at 10:08 a.m. demanding to know what the hell was going on. Fact is, the people there didn’t really know and weren’t equipped to find out.
Eventually, officials realized they had a major national-security threat that was independent of terrorism: Any major catastrophe in Washington could bring down the federal government, blurring chains of command and separating decision makers from intelligence. And if something truly catastrophic happened, they acknowledged, they would have no idea how to reconstitute government afterward.
PREPARING FOR THE WORST
Months before September 11, riding in a routine springtime motorcade in Washington, Bush had tried to make a telephone call from his limousine. Static. He couldn’t get a signal. When he arrived at the White House, he pointed to Joseph Hagin, his deputy chief of staff for operations—the man responsible for making the president go—and motioned him over. In no uncertain terms, Bush told Hagin that the president should be able to make a telephone call to anyone at any time. “He essentially said to me, ‘We need to fix this and fix it quickly.’ He asked, ‘What would we do if something really serious happened and this didn’t work?’ ” For the next seven years, Hagin led an extremely secret, multibillion-dollar effort to reconstitute the nation’s doomsday plans. He has never before given a formal interview on the subject.
Hagin had not finished the job by September 11. The day after, at a National Security Council meeting, Bush was “irate,” as one aide put it, about the failure in communication that caused the breakdown in the chain of command. To this day, senior members of the NSC do not know whether Bush gave Vice President Dick Cheney the authority to order planes shot down, as Cheney asserted. (Bush later said he did, in a conversation between the two before 10 a.m., but no evidence exists, and many members of the administration suspect that Bush gave Cheney no such blessing, though none would say so on the record.) The 9/11 commission, which was established to prepare a full account of the circumstances surrounding the terrorist attacks, including the government’s preparedness and response, noted only that the president’s and vice president’s recollections did not necessarily jibe with the notes taken by others who were with both men that morning.
After the attacks, Hagin refocused his work to head off this sort of communications dysfunction in the next crisis. The goal: Move information to the president immediately—anywhere, regardless of place or time—about threats to the homeland. If the president couldn’t be reached, the Defense secretary had to be available to make decisions. The president could delegate his authority to the vice president—but Bush wanted to have the option to do so or not, something that aides got the strong impression he had not had on September 11 when Cheney jumped in decisively. No one blamed Cheney, who was steeped in Reagan-era continuity planning, but they recognized that the legitimacy of the presidency was at stake if the vice president had to improvise. What if the president needed to decide on a nuclear attack but couldn’t be reached?
“[Bush] said to me, ‘We need to fix this and fix it quickly.’ ” —Joseph Hagin, former White House deputy chief of staff for operations
“We worked quickly to reduce the time it took to get the president ready to make a call for Noble Eagle events,” a former Bush administration official told National Journal, referring to the combat air-patrol canopy over Washington. If a plane were to violate the air-defense zone, the president would receive instant briefings and could be connected to the National Military Command Center within minutes. Officials updated the technology of the nuclear-launch briefcase, the so-called football, and revised its accompanying folders to include contingency responses to a range of disasters.
The U.S. Northern Command, or Northcom, was launched in 2003 to oversee the defense of the country’s interior; it also took responsibility for the combat air patrols over Washington and for several units that perform classified missions related to homeland defense. Northcom, headquartered at the District of Columbia’s Fort McNair, was given shoot-down authority for airplanes across the country.
Working with the Energy Department, Northcom monitors a real-time radiation map of the Washington metropolitan area; almost every day, a department helicopter flies over sensitive areas to determine if the background levels have changed. Karl Horst, the commanding general of Joint Force Headquarters for the National Capital Region, told National Journal that Northcom is responsible for the antimissile batteries around Washington and for evacuating the government in catastrophic circumstances—by air, by ground, and by sea. A classified Concept of Operations plan known as Conplan 3600 spells out these functions.
For spiriting officials away, the government has more than a half-dozen command posts built into airplanes and more than a dozen transportable systems on the ground. Plans call for potentially stashing officials on submarines, aircraft carriers, and offshore bases—even in friendly foreign countries. Budget requests boosted the Secret Service’s budget by several hundred million dollars for emergency capabilities. The military established a second alternate command center on a base near the White House and a third bunker at the Pentagon.
It took several years and several hundred billion dollars to modernize the communications links between the president, the Cabinet, the military, and the bunkers—known informally as “the sites.” A number of redundant networks were put in place, run by a little-known agency called the National Communications System. Located in the Homeland Security Department, it manages a variety of secret projects, including one called SRAS, or Special Routing Arrangement Service, which gives government officials priority use of our communications systems in emergencies and acts as a hub to transmit emergency war orders. The National Security Council and the White House Military Office also manage a system of interlinked and redundant communications bunkers across the country that allow the president to communicate directly with, say, the director of the CIA or the FBI, wherever they are.
Hagin’s team modernized presidential relocation facilities, including the White House’s PEOC and the Raven Rock bunker that served as Cheney’s “undisclosed location.” Officials reopened several closed bunkers and constructed new ones in Colorado and Florida. Altogether, about a dozen formal presidential relocation facilities are stocked with six months’ worth of supplies. National Journal discovered a secret Defense Department agency responsible for COG acquisitions—the folks who make sure the bunkers have toilet paper. (The National Security Council asked NJ not to reveal its name because doing so would jeopardize the cover programs associated with other COG functions.) The agency operates out of a nondescript office building in Maryland.
It took two years to equip the president’s limousine with reliable, secure voice links to Royal Crown, the White House’s switchboard for classified communications. In 2004, Air Force One finally received teleconferencing capability—and live TV. The White House Communications Agency upgraded its Washington-area infrastructure and spent several years reconciling interoperability issues with the Secret Service. The communications agency surveyed major telecom carriers and found that one had much more capacity than the others; everyone got new phones. (National Journal was asked not to disclose the carrier.)
Many of the assets that FEMA uses to mitigate and respond to disasters have classified functions that kick in when COG plans are executed. The number of programs is secret, but the government has secure facilities at every Cabinet headquarters and relocation site that contain protected vaults stocked with bright red binders. The binders spell out the COG plans for the department. The security officers who guard the vaults and safes are paid by their departments, but they actually report to the White House Military Office.
Presidential helicopters are a weak link in the chain of command. Officially, the HMX-1 squadron, based in Quantico, Va., has at least 17 working helos. The reality is that a large number are used for spare parts. The copters are 30 years old, and President Obama killed a follow-on program because it was more than $1 billion over budget. Back when Bush was on board, the helicopters experienced two power failures and one communications breakdown. Designed for 14 passengers, many of the choppers seat only 10 because of bulky emergency communication equipment and countermeasures. (The Secret Service, which supervises presidential COG programs, declined to comment, and the Marine Corps referred requests for comment to the White House.) A White House official said that Obama endorses a reasonably priced alternative and that it is on track.
The secret COG apparatus is huge: One former government official with knowledge of the budget estimates that continuity-of-government programs have cost $20 billion over the past 10 years. When Obama took office, he asked for a full accounting. A six-month study concluded that although the COG expansion made it much likelier that the president and the Cabinet members could be safely hidden and protected, the plans did not sufficiently address what happened next—when Cabinet secretaries had to figure out how to respond to a paralyzing influenza pandemic, for example. Would state governments follow federal orders? Would private companies allow the executive branch to take over their operations and carry out orders? Who had the telephone numbers of the superintendents of major school districts so that the president could call and personally request that a system be shut down if a state refused to do so?
Obama has kept the COG infrastructure intact for now. According to administration officials, he has also pushed to link its functions with the rest of the government’s catastrophe planning. Last year, the administration held what it called the biggest continuity-of-government exercise since September 11; top White House officials were evacuated, as were members of the Cabinet and their senior aides. “The goal was to see how we could all get off-site and still communicate,” a senior official said. Obama participated from the White House Situation Room. An annual tabletop exercise called Eagle Horizon, which envisions multiple simultaneous catastrophes, included more participants in 2010 than any other exercise of its kind before, according to a FEMA official.
Hagin said he did not intend to criticize the Obama administration, and he informed the NSC about his cooperation with National Journal. But he also told NJ that he observes a sense of drift in all branches of government as the passage of time since September 11 draws focus from emergency preparedness. He worries that COG programs, which have large but classified budgets, face pressure to slash spending. “The continuity-of-government programs took on an urgency [on September 11] that they certainly had not held since the fall of the Berlin Wall and possibly at any time since the Cuban missile crisis,” Hagin told National Journal. No matter the cost, the Bush administration was determined to take them seriously. It was forced to.
SEPARATION OF POWERS
Decapitation attacks from terrorists or natural disasters that could paralyze Washington are low-probability, high-impact events. It’s hard to protect against them, let alone figure out how to pay for those protections. Resources are finite. When a military asset is deployed as a backup communication system to another backup communication system on the chance that an improbable event might happen, that asset is not available to support troops in actual combat. These are legitimate trade-offs that should be debated.
Yet, by definition, very few people have a bird’s-eye view of the COG programs from which to debate them. And because they are enmeshed in questions about the Constitution and the separation of powers, Congress has very little oversight for them. The National Security Council controls these “Special Access Programs,” and virtually everything about them is orally briefed to a few select members of Congress. Not even the chairs of the Homeland Security committees are privy to all the details. Consequently, almost no debate about COG takes place—how much it costs and what assumptions govern its implementation. And it is not even clear which branch of government should have authority over continuity of government.
In 2007, Bush issued a homeland-security presidential directive that consolidated COG functions in the White House because FEMA was having trouble interacting with the Defense Department on crucial, classified issues. That directive also established, in public, the dual assumptions that guided Bush’s planning. The branches, led by the executive, would work together to prepare for catastrophes, but the executive branch would exercise unilateral authority to make sure that eight “national essential functions”—from “providing leadership visible to the nation and the world” to stabilizing the economy—continued to operate throughout a major emergency.
Read one way, the directive implies that, in an emergency, the executive branch has the authority to ignore Congress and the judiciary if it wants to. The body of law that governs national emergencies can certainly be interpreted that way. Many statutes and unclassified orders expand the authority of the military to carry out executive functions that amount to martial law (contravening the Posse Comitatus Act of 1878, which restricts what the military can do on American soil).
The directives even spell out what happens if someone lower in the line of succession takes advantage of uncertainty to assume presidential authority.
Executive Order 9066, signed by President Franklin Roosevelt, allows the military to establish operational zones inside the United States during emergencies. Nixon’s Executive Order 11490 allows for the emergency “control of enemies and other aliens” within U.S. borders—and for the Securities and Exchange Commission to shut down the stock markets. The National Emergencies Act in 1976 gives the president broad powers that the Army believes allow the commander in chief to “regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens,” according to a 2010 Army legal document obtained by National Journal.
Then there’s the Insurrection Act, which gives the president the power to use the military to forcibly contain “civil disturbances.” The rules of engagement are classified but “restrictive in nature,” according to the Army document. An “execute order” issued by the chairman of the Joint Chiefs of Staff in 2009 lays out some scenarios in which the military can use force, even without permission from higher authorities—usually when no federal law-enforcement officials are available, and lives and property are in imminent danger.
The military can even make arrests under those circumstances, under 10 USC 382. Title 10, Section 374 (b) 2 of the U.S. code permits the Defense Department to provide technological and personnel support to law-enforcement agencies. Under Title 18 of the code, the attorney general can request significant military assistance for containing and mitigating civil disturbances. Other laws permit emergency quarantines, too.
The most sensitive parts of continuity of government—the ones that expand executive power most conspicuously—are very closely held. They’ve been completely revised, according to several officials who have read them, for an era when state governments feel confident exercising their own power and when some Americans are predisposed to suspect martial-law scenarios. Classified executive orders spell out a range of powers the president can assume in the event of an incident of national significance. (Since 1958, one of these documents has provided for the suspension of habeas corpus for citizens on “security” lists at the time of a crisis.)
According to people who have seen them, the COG plans include draft presidential emergency-action directives, or PEADs, under which White House lawyers can fill in the blanks—in the case of “x,” the president may do “y.” But it’s unclear whether, during an emergency, these orders would be recognized by the federal agency or officials they’re directed to, or by state governments, or even by the American people. The Bush-era COG plans were based on the commonsense premise that no post-disaster government would be legitimate unless people perceived it to be a valid expression of their will and the constitutional balancing of powers among the branches. The Bush White House encouraged the federal branches to plan together.
The COG plans also include, however, directives for scenarios in which one or two branches of government cannot function. “As we would go through functions, we would realize, ‘Oh shit, that’s going to be a challenge because Congress can’t constitute a quo-rum,’ ” one of Hagin’s colleagues said. “So our plans were written from an operational concern about our ability to perform their role, and what flows from the executive branch in those situations is the scenario where they can’t [perform].”
COG planners are particularly worried about how to reconstruct a government whose authority people will respect. That wasn’t a problem when President Truman first confronted the prospect of a nuclear doomsday. During his presidency, military officers wrote plans for a postcrisis government that the public would almost certainly have accepted as legitimate. People of that era did not conceive of a six-decade-long diminution of trust in the presidency—or in all large institutions. They did not consider the idea that a malfunctioning Congress could affect the way Americans respond to emergency powers because no one would be able to check the president. Back then, functions mattered more than personality. That is, if the president were killed, it would be sufficient that his successor (whoever that might be) could press the right buttons to launch nuclear weapons.
By September 11, 2001, that 1940s-era system was inadequate because the world had calmed down. The idea that terrorists could decapitate the government was within the realm of imagination, but it was not something that preoccupied Washington. CIA Director Leon Panetta, who was President Clinton’s chief of staff, told National Journal that he recalls being introduced to the bunker facilities underneath the White House and participating in a few exercises, but says he had no cause to spend much time on continuity-of-government scenarios.
Meanwhile, the plans themselves were relics. Most were minor revisions to the Eisenhower administration’s Code of Emergency Federal Regulations blueprints. Those secret documents emphasized fixing immediate problems like food shortages and rioting rather than ensuring that legitimate elected officials could solve problems and mitigate the potential for an extended crisis.
“I feel very confident that we can reconstitute the legislative process.” —Senate Sergeant-at-Arms Terrance Gainer
The Presidential Succession Act of 1947 spells out procedures to ensure that constitutional government endures, but it is full of holes. In the scenario imagined by the statute—no president, no vice president, no speaker of the House, and no president pro tempore of the Senate—the secretary of State becomes president either until the end of the current president’s term in office or until someone higher in the chain of command suddenly reappears or recovers from injuries and is able to discharge the powers of office. (After the secretary of State, the chain of succession proceeds through the Cabinet, based on when the departments were created.)
Imagine that some lower officeholder takes power for a time, and then the vice president recovers from an injury. As soon as the VP wants, he or she can “bump” the acting president—or not, if the VP doesn’t want to. Constitutional scholars don’t like this provision because it provides incentives for all sorts of mischief (someone could be bumped just as a particular piece of legislation needed the president’s signature) and relies on the assumption that national leaders are willing to completely surrender the attachments of their political party and their personal agenda.
Another problem is that, in a catastrophic emergency, the people who need to know who is in charge might not be able to find this out immediately. In particular, the Secret Service and the officials who execute lawful orders from the National Command Authority (which is another name for the commander in chief’s executive powers) might be paralyzed by a communications breakdown, despite all the systems. If confusion persists about who’s alive and who’s dead—and if, for example, the Defense secretary and the chairman of the Joint Chiefs of Staff are out of the country or incommunicado—the confusion could be deadly.
Maybe the secretary of Defense, if he doesn’t have contact with anyone above him in the chain of command, assumes that he is the acting president. Maybe the vice president will do the same if he can’t reach the president, or if the Secret Service doesn’t know whether the president is alive. These are extremely unlikely scenarios, but what happens if two people act as if they’re in control?
The PEADs provide Cabinet secretaries, White House aides, and other senior officials with what amount to checklists: Have you called here? Have you waited for “x” amount of time? Are you sure that FEMA hasn’t done “y”? After they answer the questions, the checklists then empower the officials to temporarily assume certain presidential authority to make sure that the government can function. The directives even spell out what happens if someone lower in the line of succession takes advantage of uncertainty to assume presidential authority. The documents are written, essentially, to deal with possible coups d’état.
These scenarios are improbable, but the confusion around them is not. Confusion played out for real in 1981 during the attempted assassination of President Reagan. In the chaos after the president was shot, Secretary of State Alexander Haig declared that he was in charge. The secretary had apparently forgotten that the vice president, the speaker of the House, and the president pro tempore of the Senate were above him in the line of succession. (Haig later insisted that he meant to say that he was in charge of just the White House and its immediate executive functions until Vice President George H.W. Bush could return to Washington.)
Reagan’s “biscuit”—his nuclear-command code-verification card—remained in the custody of the FBI for a period of time after the shooting, even though Bush was connected to the National Military Command Center at all times. There was no abrogation of the National Command Authority, and yet the American people were treated to scenes that seemed to show an executive branch out of control.
Possibilities like these keep planners up at night. Hagin and others believe that an alive, alert, in-touch elected president of the United States will have an enormous calming effect on the American people during a major calamity. But in an age where some people seem to doubt the legitimacy of presidents even before they take office (Bush lost the popular vote in 2000, and a quarter of Americans still think that Obama was not born in the United States), it’s hardly clear that the public would accept Vice President Joe Biden or Speaker John Boehner as chief executive. Norman Ornstein of the American Enterprise Institute and other scholars believe that a government run by someone who is unelected or someone without a Congress to provide a check wouldn’t be seen as legitimate even if the levers of government worked.
WHOLE OF GOVERNMENT
In the end, continuity of government relies as much on the other two branches of government as on the executive. But the different habits and prerogatives of each are difficult to bridge. Virtually every former and current official contacted by National Journal is confident that the executive branch is well prepared to handle almost anything. But they said that Congress and the judicial branch might not be.
Hagin says he did what he could. He furnished the House speaker with a plane containing secure communications, and he offered to help pay for judiciary’s separate and unrelated “marshal’s office”—which protects Supreme Court justices when they are outside the District as well as federal judges across the country—to modernize its COG plans. (Continuity-of-government planning for justices and the Court itself is handled by this marshal’s office, which did not return a phone call seeking comment.)
Ornstein has long complained about the American political system’s inability to conceive of the questions that would arise if many members of Congress were killed—or if Congress were unable to function at all.
Then there’s the problem of constitutional succession. The president pro tempore of the Senate, who is customarily the longest-serving—and oldest—member of the majority party, is fourth in line to the presidency. The majority leader of the Senate, who is much more familiar with the policy decisions that would need to be made in an emergency, is nowhere in the line of succession.
Had a decapitation strike taken out Bush, Cheney, and the speaker of the House in 2001, the octogenarian Sen. Robert Byrd, D-W.Va., would have become president, and his staff could have taken over the government. Currently, 86-year-old Sen. Daniel Inouye, D-Hawaii, fills that post. Senior officials in the Bush and Obama administrations say they have privately expressed concern to Senate Majority Leader Harry Reid about the role of the president pro tempore. Reid has not been responsive, these officials say. The majority leader’s office declined to comment, but a simple Senate rules change could fix this quirk.
The Constitution itself is another problem. When a senator dies, the appropriate state government usually acts quickly to appoint a successor, but House seats remain vacant until a special election is held. After a crisis, the Senate could reconstitute itself much more quickly than the House could. If a catastrophe happened to wipe out most of Congress tomorrow, Democrats would quickly be running Capitol Hill again. The Republicans’ control of the House—if the lower chamber were able to function at all—would be wiped away.
According to several congressional officials, members and their staffs pay little attention to the subject of continuity. But Terrance Gainer, the Senate sergeant-at-arms and the former head of the U.S. Capitol Police, insists that the legislative branch’s continuity-of-government planning is robust and dynamic. “The notion that we aren’t prepared speaks highly of the classified system that we have in place,” he said. The plans are “well formed and well rehearsed,” Gainer said. “Whether something happens to one building on Capitol Hill, whether Washington, D.C., as a whole isn’t available to us, whether it is something more catastrophic … I feel very confident that we can reconstitute the legislative process.”
Gainer is briefed on COG planning at least once every two weeks, he says, as is Phillip D. Morse, his counterpart at the Capitol Police, which is responsible for the Capitol complex and the security of the House of Representatives. Their teams have rehearsed such nuances as how to physically deliver legislation if the president is somewhere else. “Our main goal is to make sure that Congress can do substantive, meaningful legislation,” Gainer said.
Others briefed on Congress’s plans are skeptical. One official privy to recent congressional COG plans said that members have never been subject to a call-tree exercise, which is the staple of continuity planning. “No one has ever sat down from a secure site and tried to call every member of Congress in their districts to see the response rate,” the official said. “I know it takes time to do this, and I know that it’s not in the nature of Congress to be closed and secretive about these things, but we have to do them.”
Speaker Boehner has asked his chief of staff, Barry Jackson, who became familiar with COG plans as an official in the Bush White House, to assess congressional readiness, a senior Republican aide said. In Ornstein’s assessment, the legislature’s continuity-of-government planning is “a classic case of avoiding short-term discomfort to insure against small chance of devastating long-term catastrophe.”
“The farther we get away from September 11,” Hagin said, “the more memories start to fade. No president, current or future, should want to be in a position to struggle to communicate effectively because the technology was not there in a critical national emergency. We learned that the hard way, and we suffered through a time with an inadequate system.”
On the night of 9/11, members of Congress memorably gathered on the Capitol steps to sing “God Bless America.” It was a sign to all that the Republic was strong. But what if there is no Congress to gather and give that sign? The legislative branch lags behind the executive branch in considering that possibility. The legitimacy of what the government does in a crisis is at stake.
This article appears in the April 9, 2011 edition of National Journal Magazine.