And the issue of the federal government’s continuity is not confined to Congress. Consider the replacement of senior officials in U.S. Government agencies and departments. Before being appointed by the President, all prospective senior officials must fill out questionnaires to obtain White House clearance—a process that can be time-consuming, infuriating, and insulting. Did you pay the Social Security taxes for the boy who mows your lawn? Will you divest yourself of all assets that could be construed as a conflict of interest? When the White House apparatchiks are finally satisfied with the answers, the nominee must repeat the whole process to be confirmed by the Senate, instead of being allowed to simply provide a copy of the questions already answered. The nominee has to fill out dozens of additional questionnaires targeting the same issues, but—as if meant to double the workload—using different formats.
How will the President replace cabinet members and other senior officials the morning after an anthrax attack or nuclear bomb has killed half the senior officials in Washington? Unless that question has been answered in advance, the President will confront a disastrous dilemma: either wait months until all the forms have been filled out, reviewed, and the confirmation hearings completed; or, more likely, make “interim” appointments, whether legal or not, and navigate with a substitute “cabinet” that lacks constitutional and political approval at precisely the time when the government’s legitimacy and legal continuity are of transcendent importance. This is not a problem that requires a study; it has been studied, and it cries for implementation.8 A tiny drop of foresight and a flyspeck of courage in Congress would solve it.
3. MOBILIZATION LAWS Established democracies generally have laws empowering the president (or prime minister) to restore law and order and strengthen the country’s security in the event of an insurrection or armed attack. The U.S. president has several options for dealing with national emergencies. And as Paul Schott Stevens has explained, the legal restrictions on the President’s use of military forces in domestic emergencies have frequently been exaggerated, sometimes deliberately by defense officials, in order to prevent military forces being diverted from overseas missions.9 But what would really be needed in this unique emergency is something akin to a Declaration of War. As envisaged in the Constitution, only Congress can declare war. Last used in World War II, the old-fashioned Declaration of War is far more powerful and comprehensive than any of the President’s current emergency authorities. It automatically triggers a host of provisions in the U.S. legal code to support the armed services and provide for industrial mobilization. As part of the Ultimate Emergency Plan that I am suggesting here, a carefully prepared, new presidential emergency declaration could incorporate some of the still useful legal ramifications of the Declaration of War. Of course, the President’s authority to issue such an expanded Declaration would have to be legislated by Congress in advance of any mass destruction attack. And when issued it ought to require congressional approval as soon as Congress could function again. But having such a law ready would be of enormous help in managing the extreme crisis.
Indeed, the existence of some such presidential authority might help deter the attack. It is important that anarchists and terrorists be told in advance they cannot annihilate America with a nuclear or biological attack. They might, to be sure, inflict horrifying destruction, casualties, and pain. But if the President (or his successor) is empowered to instantly marshal all of America’s strength based on a firm constitutional and legal foundation, the attack would be unlikely to attain its objectives. The final outcome would more likely include the extermination of the individuals who employed the mass destruction weapon, together with all their instigators, financiers, and supporting arms peddlers.
Many thoughtful people are concerned that increased government powers in an emergency will undermine civil liberties, privacy, and human rights. Michael Ignatieff’s recent book The Lesser Evil: Political Ethics in the Age of Terror has a great deal to contribute on this important problem. It sets forth a nuanced agenda for combining an aggressive war against terrorism with maintenance of democratic institutions. Emergency powers should be carefully designed to preserve essential rights wherever possible and to ensure the restoration of rights when the threat has receded. In the situation where mass destruction weapons have already been used, or are about to be used, most people would want the government to have all the intrusive and “oppressive” powers needed to protect the democratic nation from being destroyed. Which makes it all the more important that legislators draft, and upon careful review adopt, emergency powers beforehand. After the cataclysm, it would be impossible to create the delicate balance between what’s immediately needed for survival and what’s desirable for the democratic future. A news leak in December 2005 about warrantless wiretaps of U.S. citizens has led to a flood of criticism in the media and angry debate in Congress. That’s how democracy must work. But a calamity far worse than 9/11 (which was the event that led to these wiretaps) might strike Washington, and it would behoove Congress—after all its backward-looking debate about warrantless wiretaps—to turn around and look ahead.
The new emergency declaration should also include provisions for industrial mobilization. Administrative preparations by the Roosevelt administration in 1940–41 helped greatly in accomplishing America’s enormous mobilization after the Pearl Harbor attack. In August 1941, President Roosevelt established the Supply, Priorities, and Allocation Board, charged with dividing available materials among military and civilian needs. After December 7, 1941, the automotive industry rapidly shifted its plants and labor force to the production of tanks.10 For the kind of attack considered here, the standby authorities for
