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.