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Previously classified files obtained by the Brennan Center for Justice reveal that the 2004 George W. Bush administration conducted a holistic review of the president's emergency powers, with the goal of modernizing a set of secret plans for continuity-of-government in a nuclear war.

The George W. Bush Presidential Library turned over 500 out of 6,000 pages of the documents, known as "presidential emergency action documents" (PEADs), which "shed troub­ling new light on the powers that modern pres­id­ents claim they possess in moments of crisis," according to the Brennan Center, which obtained the records through a Freedom of Information Act (FOIA) request.

PEADs were created during the cold war, when the chance of a Soviet nuclear strike was at its peak. Early drafts reportedly rested on broad interpretations of executive powers. According to official reports from the 1960s, various PEADs authorized the president to enact measures such as suspending habeas corpus, to detain "dangerous persons" within the country, to censor news media, and to prevent international travel.

In light if 9/11, one Bush administration official viewed updating the PEADs an "urgent and compel­ling secur­ity effort, espe­cially in light of ongo­ing threats."

While the Brennan Center was unable to obtain more recent PEADs, the documents show "some of the most disturbing aspects of early-Cold War emergency action documents" were maintained at least throughout 2008.

Here are the specific findings via the Brennan Center:

Controlling commu­nic­a­tions

At least one of the docu­ments under review was designed to imple­ment the emer­gency author­it­ies contained in Section 706 of the Commu­nic­a­tions Act. During World War II, 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 fright­en­ingly expans­ive language was, at the time, hemmed in by Amer­ic­ans’ limited use of tele­phone calls and tele­grams. Today, however, a pres­id­ent will­ing to test the limits of his or her author­ity might inter­pret “wire commu­nic­a­tions” to encom­pass the inter­net — and there­fore claim a “kill switch” over vast swaths of elec­tronic commu­nic­a­tion.

And indeed, Bush admin­is­tra­tion offi­cials repeatedly high­lighted the stat­ute’s flex­ib­il­ity: it was “very broad,” as one offi­cial in the National Secur­ity Coun­cil scribbled, and it exten­ded “broader than common carri­ers in FCC [Federal Commu­nic­a­tions Commis­sion] juris[diction].”

Previ­ously, it was a matter of spec­u­la­tion as to whether any emer­gency action docu­ments purpor­ted to imple­ment this author­ity. But Bush offi­cials evid­ently examined at least one such docu­ment as part of their review, a Commu­nic­a­tions Act PEAD that appears to have pred­ated the admin­is­tra­tion. And the librar­y’s records suggest that the admin­is­tra­tion added three more docu­ments on the same subject.

Deten­tion author­ity

The records indic­ate that at least one pres­id­en­tial emer­gency action docu­ment pertained to the suspen­sion of habeas corpus. An internal memor­andum from June 2008 specified that a docu­ment under the Justice Depart­ment’s juris­dic­tion was “[s]till being revised by OLC [Office of Legal Coun­sel], in light of recent Supreme Court opin­ion.” Examin­ing the Court’s rulings over the previ­ous months, it is evid­ent that this must refer to the land­mark decision in Boumediene v. Bush, which recog­nized Guantanamo Bay pris­on­ers’ consti­tu­tional right to chal­lenge their deten­tion in court. This strongly suggests that the early–­Cold War PEADs purport­ing to suspend habeas corpus had survived, at least in some form, and were part of the Bush admin­is­tra­tion’s review. 

The result of the admin­is­tra­tion’s post-Boumediene revi­sion is unknown. Signi­fic­antly, though, it does­n’t appear that any emer­gency action docu­ments were with­drawn or cancelled. To the contrary, eight PEADs were added, bring­ing the total number to 56.

Inhib­it­ing the right to travel

Restrict­ing the use of U.S. pass­ports — a repor­ted feature of some early pres­id­en­tial emer­gency action docu­ments — remained on the table as of 2008. Records gener­ated by the Bush admin­is­tra­tion’s review high­lighted a provi­sion of law from 1978 that allows the govern­ment to curtail inter­na­tional move­ment based on “war,” “armed hostil­it­ies,” or “immin­ent danger to the public health or the phys­ical safety of United States trav­el­lers.”

Although pres­id­ents have used this stat­ute to ban travel to Lebanon, Iraq, Libya, and North Korea, a more sweep­ing abrog­a­tion of the right to travel would repres­ent a stark break from modern histor­ical prac­tice.

Trig­ger­ing other emer­gency powers

The national emer­gency declared after 9/11 — which is still in effect today and contin­ues to prop up the United States’ milit­ary pres­ence across the globe — was cited in connec­tion with one or more PEADs.

A national emer­gency declar­a­tion unlocks enhanced author­it­ies contained in more than 120 provi­sions of law. Bush invoked several such author­it­ies, but several dozen others were — and still are — avail­able to the pres­id­ent as a result of Proclam­a­tion 7463. Presum­ably, the refer­ence to the proclam­a­tion during the admin­is­tra­tion’s review implies the exist­ence of docu­ments designed to imple­ment other stat­utory emer­gency powers, which run the gamut from anodyne to alarm­ing, nearly four years after the attacks.

• • •

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.

Also miss­ing from the records is any evid­ence that the Bush admin­is­tra­tion commu­nic­ated — much less collab­or­ated — with Congress during its review. We have previ­ously noted that pres­id­ents have kept PEADs secret, not only from the Amer­ican public but from lawmakers as well. This lack of disclos­ure effect­ively blocks a coequal branch of govern­ment from over­see­ing emer­gency proto­cols.

With Congress unable to serve its consti­tu­tional role as a check on the exec­ut­ive branch, there remains the possib­il­ity that modern PEADs, like their histor­ical prede­cessors, sacri­fice Amer­ic­ans’ consti­tu­tional rights and the rule of law in the name of emer­gency plan­ning. Congress should pass Sen. Ed Markey’s REIGN Act, which has been incor­por­ated into the Protect­ing Our Demo­cracy Act and the National Secur­ity Reforms and Account­ab­il­ity Act, to bring these shad­owy powers to account.