A new Presidential Emergency Action Document, (PEAD), currently under review includes the emer­gency author­it­ies contained in Section 706 of the Commu­nic­a­tions Act when Congress gran­ted the pres­id­ent author­ity to shut down or seize control of “any facil­ity or station for wire commu­nic­a­tion” upon proclam­a­tion “that there exists a state or threat of war involving the United States.” This specified “wired communications” which at the time of Section 706, World War II, would limit the use of tele­phone calls and tele­grams. This document, as interpreted today, with tensions between Russia and China, can give the President a broad use of powers including the complete shutdown of the internet.

Today, however, a pres­id­ent can try the limits of author­ity to inter­pret “wire commu­nic­a­tions” to encom­pass the inter­net — and thus create a “kill switch” over all elec­tronic commu­nic­a­tions.

The Bush admin­is­tra­tion noted that the powers of Section 706 were “very broad,” as one offi­cial in the National Secur­ity Coun­cil scribbled, and it went beyond “broader than common carri­ers in FCC [Federal Commu­nic­a­tions Commis­sion] jurisdiction.”

As with any archival exped­i­tion, the silences are often the most telling. William Arkin, a noted expert on PEADs, reviewed the new mater­i­als disclosed by the library and observed that they relate primar­ily to civil agen­cies — few, if any, touch on the role of the milit­ary in times of crisis. He suggests that this “black side” would have been discussed at a higher level of clas­si­fic­a­tion. By implic­a­tion, the most daring claims to pres­id­en­tial power may have been entirely excluded from this tranche of docu­ments.

Notably missing from the records is any evid­ence that the Bush admin­is­tra­tion commu­nic­ated with Congress during its review. Pres­id­ents have traditionally kept PEADs secret, not only from the Amer­ican public but from lawmakers as well. The lack of disclos­ure effect­ively blocks a coequal branch of govern­ment from over­see­ing emer­gency proto­cols.

This blocks Congress.to serve its consti­tu­tional role as a check on the exec­ut­ive branch. What this means is there the possib­il­ity that Amer­ic­ans’ consti­tu­tional rights and the rule of law would be sacri­ficed in the name of emer­gency plan­ning.

Sen. Ed Markey has introduced the appropriately named REIGN Act is one that Congress should pass, which has been incor­por­ated into the Protect­ing Our Demo­cracy Act and the National Secur­ity Reforms and Account­ab­il­ity Act, which is designed to specifically bring these “shad­owy” powers to account.

About PEADS

Pres­id­en­tial Emer­gency Action Docu­ments (PEADs) are exec­ut­ive orders, proclam­a­tions, and messages to Congress that are prepared in anti­cip­a­tion of a range of emer­gency scen­arios, so that they are ready to sign and put into effect the moment one of those scen­arios comes to pass. First created during the Eisen­hower Admin­is­tra­tion as part of continu­ity-of-govern­ment plans in case of a nuclear attack, PEADs have since been expan­ded for use in other emer­gency situ­ations where the normal oper­a­tion of govern­ment is impaired. As one recent govern­ment docu­ment describes them, they are designed “to imple­ment extraordin­ary pres­id­en­tial author­ity in response to extraordin­ary situ­ations.”

PEADs are clas­si­fied “secret,” and no PEAD has ever been declas­si­fied or leaked. Indeed, it appears that they are not even subject to congres­sional over­sight. Although the law requires the exec­ut­ive branch to report even the most sens­it­ive covert milit­ary and intel­li­gence oper­a­tions to at least some members of Congress, there is no such disclos­ure require­ment for PEADs, and no evid­ence that the docu­ments have ever been shared with relev­ant congres­sional commit­tees.

Although PEADs them­selves remain a well-kept secret, over the years a number of unclas­si­fied or de-clas­si­fied docu­ments have become avail­able that discuss PEADs. Through these docu­ments, we know that there were 56 PEADs in effect as of 2017, up from 48 a couple of decades earlier. PEADs undergo peri­odic revi­sion; although we do not know what PEADs contain today, we know that PEADs in past years—

• Author­ized deten­tion of “alien enemies” and other “danger­ous persons” within the United States; (Like “white supremacists“)
• Suspen­ded the writ of habeas corpus by pres­id­en­tial order; (the guarantee against any detention that is forbidden by law – Jan 6?)
• Provided for vari­ous forms of martial law;
• Issued a general warrant permit­ting search and seizure of persons and prop­erty; (Sound Familiar?)
• Estab­lished milit­ary areas such as those created during World War II;
• Suspen­ded produc­tion of the Federal Register;
• Declared a State of War; (keep your eyes on Ukraine, China and Russia), and
• Author­ized censor­ship of news reports. (Sound Familiar?)

It sends chills up my spine to think that Joe Biden and a Democrat Congress even thinks about this. Oh wait….

This article may contain commentary which reflects the author’s opinion.