Congress Must Be Prepared for the Worst to Protect Americans

Our legislative branch needs to learn from what almost happened on 9/11. Anything less is a grave disservice to the country.

After final votes were cast, members of Congress walk down the steps of the House of Representatives on Capitol Hill in Washington, Friday, Aug. 2, 2013, as they leave for a five-week recess.
National Journal
Norm Ornstein
Sept. 11, 2013, 5:30 p.m.

I write this on the bright and sunny morn­ing of Sept. 11. Ex­actly 12 years ago, I was on my way to Dulles Air­port. As I drove on the ac­cess road, con­vert­ible top down, I marveled at the beauty of the day. When I parked and went in­side to get my board­ing pass, the counter was abuzz with the news that, ap­par­ently, a small plane had wandered off course and hit the World Trade Cen­ter. I took the van across to the United ter­min­al, and watched the news cov­er­age for a bit while I waited to board my plane — and saw the news that a second plane had hit the towers.

On the jet bridge, we were stopped and turned back — air traffic had been frozen as it be­came clear that this was not some er­rant pi­lot but something big­ger. I re­trieved my car and drove home, and turned on the tele­vi­sion and watched, trans­fixed and hor­ri­fied.

By late af­ter­noon, the news was that United Flight 93 had crashed in Pennsylvania and that brave pas­sen­gers had thwarted hi­jack­ers from their ter­ror­ist mis­sion. What made UA 93 dif­fer­ent from the oth­er flights that hit the Pentagon and the Twin Towers? It had left Ne­wark, N.J., 45 minutes late, giv­ing its pas­sen­gers an op­por­tun­ity to com­mu­nic­ate with the out­side world and learn that they were a part of a sui­cid­al ter­ror­ist plot, not a stand­ard hi­jack­ing.

United 93 had been sched­uled to leave at the same time as the flight that dev­ast­ated the Pentagon. If it had not been delayed, the odds are that it would have reached its des­tin­a­tion, which, I cal­cu­lated that day, would likely have been the sym­bol of Amer­ic­an demo­cracy, the Cap­it­ol of the United States. That beau­ti­ful morn­ing, the House of Rep­res­ent­at­ives was in a pro forma ses­sion, but the build­ing and its en­virons were filled with mem­bers; in the pre-se­cur­ity era, people were gathered on the steps, law­makers were hold­ing press events out­side on the lawn, and sev­er­al com­mit­tees were meet­ing in­side. If a gi­ant com­mer­cial air­liner loaded with jet fuel had hit the cast-iron dome, the build­ing would have col­lapsed, and a com­bin­a­tion of mol­ten met­al, large chunks of marble, and burn­ing fuel would have rained down on the people in­side and out.

Those im­ages went through my mind that af­ter­noon — along with a nag­ging thought: What if a ma­jor­ity of mem­bers of the House were killed or miss­ing un­der the rubble? The Con­sti­tu­tion is un­am­bigu­ous about the quor­um re­quired to do any of­fi­cial busi­ness — half of the mem­bers of the House or Sen­ate. So I ima­gined what would hap­pen in Amer­ica after this hor­rif­ic at­tack if there were no Con­gress. The House can only fill va­can­cies via spe­cial elec­tion — and my re­search showed that those in­di­vidu­al con­tests took on av­er­age four months, un­der the most pla­cid of cir­cum­stances. A coun­try without a Con­gress for many months would mean the equi­val­ent of mar­tial law, with de­cisions about go­ing to war, sus­pend­ing habeas cor­pus, and im­ple­ment­ing dra­coni­an se­cur­ity meas­ures done by ex­ec­ut­ive fi­at or with some jerry-rigged ex­tra-con­sti­tu­tion­al im­pro­visa­tion. There would be no reg­u­lar means to ap­pro­pri­ate money for emer­gency dis­aster re­lief in New York or Vir­gin­ia.

To my hor­ror, I real­ized that the United States had no plans in place to deal with a sur­prise ter­ror­ist at­tack, for any of the branches of gov­ern­ment. The Pres­id­en­tial Suc­ces­sion Act of 1947 was an­ti­quated and poorly de­signed. The Su­preme Court had only a stat­utory quor­um re­quire­ment of six; if it fell be­low that num­ber, crit­ic­al de­cisions about leg­al­ity or con­sti­tu­tion­al­ity of ac­tions would fall to one or more of the 14 Ap­peals Courts. The Sen­ate does have, for most states, ex­ec­ut­ive ap­point­ments to fill va­can­cies — but as the sub­sequent an­thrax at­tacks demon­strated, if, say, 60 sen­at­ors were in in­tens­ive care for weeks or months with in­hal­a­tion an­thrax, there would be no va­can­cies and no quor­um.

I wrote a column in Roll Call shortly there­after on this sub­ject. Then-Rep. Bri­an Baird of Wash­ing­ton con­tac­ted me — he had come to the same con­clu­sion in the chaos on Cap­it­ol Hill that day, and we formed an al­li­ance to do something about it. Sen. John Cornyn of Texas and Jim Ho, his tal­en­ted chief coun­sel on the Ju­di­ciary Sub­com­mit­tee on the Con­sti­tu­tion, joined our ef­forts. Shortly there­after, Tom Mann of Brook­ings, my col­league John Forti­er, and I were able to cre­ate a Con­tinu­ity of Gov­ern­ment Com­mis­sion co­chaired by former Sen. Alan Simpson and former White House Coun­sel Lloyd Cut­ler, to de­vise re­com­mend­a­tions to en­sure the con­tinu­ity of the Amer­ic­an con­sti­tu­tion­al sys­tem in the event of an­oth­er dis­astrous at­tack.

That is a long pre­amble to get to the con­clu­sion in what has be­come for me a frus­trat­ing an­nu­al column. Twelve years later, our ef­forts have res­ul­ted in … noth­ing of con­sequence. What is needed is, first, a con­sti­tu­tion­al amend­ment to al­low emer­gency in­ter­im ap­point­ments to the House and Sen­ate triggered only if there is a massive at­tack that dis­rupts the op­er­a­tion of Con­gress — ap­point­ments that would end as soon as va­can­cies can be filled via real and mean­ing­ful elec­tions, or when in­ca­pa­cit­ated law­makers are able to re­turn to their du­ties. Second, we need a re­vamp of the Pres­id­en­tial Suc­ces­sion Act to fit mod­ern times. Third, we need to cre­ate by stat­ute an Emer­gency In­ter­im Court of Ap­peals to act as a fill-in for the Su­preme Court in the event that it is dis­abled by an at­tack. In my view, the best way to people it would be with the chief judges of all the Ap­peals Courts along with any avail­able mem­bers of the Su­preme Court.

Con­gress — and that means the lead­ers of both parties in both houses — has re­acted to this gap in plan­ning with in­dif­fer­ence or hos­til­ity. Why? One reas­on is hu­man nature, just like the un­will­ing­ness of smart people to write wills out of a su­per­sti­tion that it could ac­tu­ally trig­ger dis­aster and be­cause of re­luct­ance to raise del­ic­ate is­sues such as child cus­tody. An­oth­er reas­on is that many House mem­bers have a vis­cer­al re­ac­tion against any­one be­ing ap­poin­ted to serve in the cham­ber be­cause — un­like the Sen­ate — its mem­bers have al­ways been elec­ted. The third reas­on is gen­er­al in­er­tia, a fail­ing that is in­her­ent in Con­gress.

I can ex­plain in­ac­tion, but I can’t con­done it. Con­gress, for a dozen years now, has done a grave dis­ser­vice to the Amer­ic­an people and the sanc­tity of the Con­sti­tu­tion. It is long past time to rec­ti­fy that.

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