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.)