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Following a Catastrophe - Ensuring the Continuity of Government [Rush Transcript; Federal News Service]

Speakers: Jamie S. Gorelick, Member of the Continuity of Government Commission and Partner at Wilmerhale, Fred C. Iklé, Distinguished Scholar, Center for Strategic and International Studies, and Norman J. Ornstein, Senior Counselor of the Continuity of Government Commission and Resident Scholar at the American Enterprise Institute
Presider: Thomas E. Donilon, Partner, O'Melveny & Meyers LLP
November 7, 2007
Council on Foreign Relations


THOMAS E. DONILON:  Why don't we get started?  We can maximize the time for our discussion. 

My name is Tom Donilon.  I've been asked to moderate today's discussion.  The topic is entitled "Following a Catastrophe:  Ensuring the Continuity of Government."  I'll talk about that in just a minute.  Let me do just a very quick set of introductions and reminders along the council -- of the council way.  Most of -- all of you, I think, know those:  cellphones off; BlackBerries, other wireless devices.  Today we're on the record.  That's the ground rules.

For our discussion today, we're joined by three people who really don't need any introduction.  That's a cliche.  It happens to be absolutely true in this case.  And I'll do it very quickly, again, so we can maximize discussion time.

Down at my far left, Jamie Gorelick is one of America's leading lawyers; has vast experience, as I think everybody in this room knows, in law, government service and in corporate America.  She was deputy attorney general during the Clinton administration.  Prior to being deputy attorney general, she was general counsel at one of the world's largest law firms, the Department of Defense legal department.  She's been president of the D.C. Bar, was counselor to the secretary of Energy, has served on a number of -- does serve on a number of corporate boards and a number of advisory committee and commissions to the United States government, most notably the 9/11 commission.

Fred Ikle is a long and distinguished expert in the area of national security affairs and also has a long and distinguished history of government service.  Fred is currently a distinguished scholar at CSIS, engaged principally now, I think, in studies about the impact of technology on national security.  As I said, Fred's service to the United States goes back to the -- at least the Nixon and Ford administrations, I think, Fred, as head of the Arms Control and Disarmament Agency; was the coordinator of foreign affairs advisers during the Reagan campaign, which was the immediate cause of me losing my first job in 1980 and put out on the streets -- (laughs) -- right -- and of course was during the Reagan administration undersecretary for Policy at the Defense Department.

Norm Ornstein is one of America's best-known political scientists.  He's currently and has been for a long time resident scholar the American Enterprise Institute for public research.  Norm is also a political scientist -- in addition to being well-known, is a political scientist with impact, who cares deeply about American political institutions as anybody I have known.  He is a senior counselor to the Continuity of Government Commission and has been one of the driving forces behind addressing the issues we're going to discuss today.  Norm was one of the driving forces behind campaign finance reform and one of the principal craftspeople of the McCain-Feingold legislation.  He has over the last 30 years been a force behind reform in Congress and again is a political scientist with -- who cares and has high impact. 

I principally remember Norman as my first professor in the first hour of my first day of college, where he was my political science professor in Political Science 101.  Somehow the lines crossed on who looks older than whom -- (laughter) -- over the years, right?  (Chuckling.)  I'll try to pinpoint that.  But nonetheless, Norman is -- has been one of the most important influences in my life, and it's great to see him here today.

As I --

NORMAN J. ORNSTEIN:  An A student.  (Laughter.)

DONILON:  Yeah.  (Laughs.)

As I -- yeah, you know, after the laughter, you can -- after the, you know, kind of brown-nosing evidence you're seeing today -- (laughter) -- (laughs) -- I only honed those skills over the years, right, you know. 

Today, as I said, the topic is entitled "Following a Catastrophe:  Ensuring Continuity of Government."  And simply put, I think our discussion today focuses on the following task, and that is to attempt to get an assessment of how the United States government would react to, be able to function after a catastrophic attack that put in peril its fundamental institutions:  the presidency, the Congress, the judiciary and its election system.

For those of us in the room who work in corporate America, you wouldn't have a global corporation that didn't have a disaster recovery program that wasn't constantly reviewed, updated and tested.  Your auditors at a major public American company, that had global reach and that had data that it relied on and data centers and the core decision-making processes -- your auditors would insist on looking at that regularly, and you'd want to make sure you had a best-in-class system. 

The question presented for this discussion is, do we have a best-in-class system?  Do we have a system that can survive the kind of catastrophic attack that the United States might suffer?  And we certainly have seen the possibilities of that around 9/11. 

I'd like to start with Norman to do an assessment, and I thought we could try to do three things today.  Get an assessment of the problem, talk about steps that could be taken of a practical nature, and then maybe explore a little bit, in our half-hour discussion here before we open it up, why some of the obvious steps haven't been taken to strengthen the kind of response that America could have to a catastrophic attack. 

Norm is, as I said, was kind of the inspiration behind the Continuity of Government Commission, wrote in the pages of Roll Call shortly after the 9/11 attack about the problem of Congress operating in an effective way in the wake of such an attack.  So I thought I -- just to signal everybody, we'll start with Norman.  I think we'll go to Jamie to talk about some of the practical things that could be done, and Fred to comment on their presentations. 


ORNSTEIN:  Thanks, Tom, and the answer to your question is, we do not have anywhere near sufficient plans in place for any of the institutions.  And it's unsettling frankly that six years after a warning signal with neon lights that continue to flash, we've done next to nothing in a fundamental way.  And the problems are there really on four fronts. 

They're there for ensuring that there is a Congress up an running as swiftly as possible after a devastating attack that could knock it out of business, keeping in mind that the Constitution says flatly that it requires a quorum of half the members to do any official business and that in this case, the House of representatives has the biggest problem in terms of getting up and running, that the Constitution says that all House members shall be elected.  And if there are vacancies, they're filled by special elections, that in good times, when we're doing one or two, take, on average, four months.  And you can't do an election overnight is the practical reality. 

And for the Senate of the United States, the problem which we saw highlighted itself after 9/11, where the 17th Amendment to the Constitution allows states to have their executives appoint interim senators to fill vacancies, something of course that we've seen many times.  That's if there are vacancies.  When we had the anthrax scare, it brought another problem right in front of us.  Which is, if that had been a serious, pointed, organized attack using high-grade, weapons-grade anthrax, gotten into the ventilation system of the Senate, we could have had 60 or 70 senators with serious problems, hospitalized for months or longer, no quorum. 

And of course, those Senate terms last for six years.  We've had instances: Karl Mundt of South Dakota and then more recently for almost a year, Tim Johnson being out.  For Mundt, it was about four or five years where he was effectively comatose.  So that's a major set of problems.

Presidential succession, which is done via statute.  The last time we amended the presidential succession process was 1947 when vice president -- then-President Truman went to Potsdam the year before with his secretary of State, Edward Stettinius, and saw some serious peril there and thought, you know, we really don't have an adequate process in place.  And so we revamped the presidential succession, but it is woefully inadequate to what we face today.  It also is a deeply flawed act in other ways that we might get into a little bit.

There's the Supreme Court.  On 9/11, just by eerie coincidence that morning the Judicial Conference of the United States was meeting at the Supreme Court.  All nine justices, the chief judges of the appeals courts, the major figures from the district courts -- virtually the entire leadership of the federal judiciary about 150 yards from the Capitol Dome.  It turned out with an interesting twist that several people who were there told me afterwards.  During the course of that meeting, three or four times, with Chief Justice Rehnquist presiding, people were coming up onto the dais and whispering in his ear and then they'd leave and then they'd come back, and eventually he just got up and left, didn't say anything, as they hustled him off to an undisclosed location, leaving the rest of the judiciary to fend for themselves not having any idea what was going on.

Now, you might think, well, the court is not as significant; it deals with matters only in a more passive fashion and much later on.  But if you think about the potential nightmare scenarios -- and unfortunately, there are many nightmare scenarios; the most nightmarish being something happening at an inaugural, where everybody who is in charge in the government is generally present and where you have the brief moment at noon on January 20th when everything is supposed to change, but incoming Cabinet members who are there in the line of succession are not yet sworn in, and outgoing Cabinet members are supposed to have submitted letters of resignation as of that day.

And the leaders of Congress, the speaker, the president pro tempore of the Senate are up on the stage with the incoming and outgoing presidents and vice presidents.  If you ended up with a fog of war there -- there are many other circumstances where there might be some disputes about who is actually supposed to take over -- you don't want to have a dozen courts of appeals out there offering different suggestions as to who actually should be in charge, and there we have nothing much in place except a statutory requirement, six of the nine justices to make a quorum.

The fourth area -- which we're only starting to think about in the last few years; we didn't really think much about with 9/11 -- is elections.  The -- of course, on 9/11 in New York the mayoral primary had been scheduled.  Some people had already gone out to vote.  The governor stepped in using his executive authority -- actually, it's not at all clear he had that executive authority, but no one disputed it -- and postponed that election.

But imagine if you had a disruption in one state, one city, a couple of places and you had to cancel, say, voting in Cleveland, something -- a decision that would be made by a partisan secretary of State, or in one or two key states, what are we going to do?  Who's going to make those decisions?  Are you going to hold a presidential election, where, in effect, a sizeable group of people who could determine the outcome of the election can't vote because of a threat or an attack?  Are we going to let them going to let them vote later when the outcome otherwise would be known?  These are issues that have not been adequately discussed, and there is no plan in place and no official in charge since elections are local matters to deal with something that could have the most enormous impact.

So most of these things we did not even think about in a serious way before 9/11.  We haven't thought about the prospect of an attack that could come without any notice and be devastating.  All the plans we had in place for succession with the Cold War that -- many of which have been scrapped in years since, obviously inadequate or gone, and all of them in serious need of a scrubbing to bring them up to a point where auditors -- good auditors would say we're set.

DONILON:  Thanks, Norm.  Just before we go to Jamie, then you would -- you believe, I take it, that that requires a range of steps, including constitutional amendments?

ORNSTEIN:  To deal with the problem in Congress, and I, for one -- and this is something that occurred to me with unfortunate clarity on the afternoon of September 11th.  I'd been at Dulles Airport that morning, got called off the jetway when my plane was about to take off when the second plane hit the World Trade Center, went home and watched, and when it became clear to me that United 93 -- after it crashed in Pennsylvania -- had been headed, I thought, certainly to the Capitol.  And I knew what happens on a day like that at the Capitol -- beautiful day, morning business, lots of people around -- just envisioning what could occur.  I thought, you know, we could be without a House for months and months, and that would mean martial law.  And it didn't much matter to me at that point who the attorney general was, but I don't want martial law, benign or not, for a period of months. 

If you look at what Congress did in the weeks that followed, an enormous range of things, including authorizing the use of force, emergency appropriations to deal with that would -- there are some who believe that you can find ways around it without a constitutional amendment.  I believe we need an amendment that very simply would allow for temporary appointments until elections could be held that are real elections, where you can have a campaign and choices made, and for both Houses, for incapacitated members, until the incapacitated individuals can stand up and say, "I'm ready to come back."  For the presidential succession, for the court and for elections, this can all be done by statute. 

DONILON:  Jamie, so we've got a bad audit.  I think also you make -- I think the 9/11 commission found that in fact Flight 93 very much -- very likely could have been aimed at the Capitol as one of its targets.  We have a bad audit.  How should management think about it?

JAMIE S. GORELICK:  Well, you know, you think that with the kind of compelling case that Norm has made for action, that there would have been some.  So I thought I would look at, you know, why not?  Why haven't we done anything?  And what steps could one take?  I totally agree, and I'll come back to it, with Norm's assessment of where you would need a constitutional amendment and where not. 

But one of the first reactions to the commission's recommendation was  we shouldn't talk about it because it will alert the bad guys to our vulnerabilities.  Well, you know -- no, that's an argument that has been made, and it is an argument that has been made against discussing the need for cybersecurity, almost every vulnerability that we've tried to address as a country.  And I just think that we need to dispatch that.  If the Madrid bombings told us anything, it is that people who want to do harm are actually thoughtful about ways in which they might do it and are perfectly capable of taking advantage of timing.  So I think we need to be alert to that, but we need to dispatch it. 

Second, you have to think about each of the stakeholders and why they might feel that their ox might be gored here or that they would be giving up something substantial.  And the first point there is that there's a reason we have very few constitutional amendments.  People are very leery of making substantial changes in our system of governance.  And the menu of horribles that Norm has laid out actually would require changing many things, or possibly changing many things, simultaneously.  And that has -- that puts people on edge, and therefore they literally have done nothing. 

So my view is you really have to parse this and lay responsibility on each of the constituencies for their part of the puzzle. 

So the first is presidential succession.  You know, for 60 years, we have put members of Congress -- the leadership of Congress in the line of congressional -- presidential succession.  And one might well ask whether that makes sense given our political setup right now.  You know, imagine Newt Gingrich taking over for Bill Clinton or Nancy Pelosi for George Bush.  I mean, it just -- it would make more sense, I think, to the current political environment to keep it within the party and within the chain of command, if you will, of the Cabinet.  The contrary argument, of course, is, you know, who elected Condi Rice?  Why would you put a Cabinet member, who has not stood for election, in the line of succession?  I think that's a debate that you can have, that's a choice that you can have, and it's a statute that you can revisit, and you know, I think it ought to be revisited. 

The second is this romantic notion that people in the House have that they are the House of the people, and therefore you cannot sit in the House unless you've been elected.  It's somewhat disparaging of the process that exists for the Senate.  And I don't think it's because democracy is more important to the House than the Senate.  I think it is probably so because people assumed that you're going to have an election pretty soon anyway, you could have a special election, and how hard could this be? 

I agree with Norm that you have to have something equivalent to the appointment processes for the House that you now have for the Senate.  That, I think, would have to be done by constitutional amendment, but I think it needs to be put squarely on the House to debate this and discuss this. 

The states are -- and localities are responsible for elections.  And this is, I think, among the hardest issues to deal with, because each state has concerns about finality, concerns about cost.  It has its own short-term political concerns that people might not be able to get around.  And I think that this is a national problem that needs to be dealt with nationally.  And there should be a template for -- agreed upon by some conference of state officials similar to the commission that we had to look at our electoral process.  This is a national problem, and we need a national solution. 

And let's not forget the political parties, because in any number of Norm's scenarios, you have an issue for the political parties.  What if there is an assassination of the person who has been elected but not confirmed by the Electoral College in that space of time?  Who -- what happens then?  We've just not discussed this.  And that is a distinct possibility.  The time around elections and around transition is our time of greatest peril.  And the political parties thus have to be brought into this discussion. 

Of course, it is easier to act by statute than via constitutional amendment. I mean, just the process of a constitutional amendment is extremely difficult, and as I said at the outset, there are great antipathies toward changing the Constitution.  There are a number of things that could be done legislatively, but I think each of those parties needs to be brought to the table. 

Perhaps the simplest problem to address is the problem of the Supreme Court, and that's so for several reasons.  Although the Judicial Conference did gather together the leadership of the circuits and the district courts with the Supreme Court and they were in a place of maximum vulnerability on the day of 9/11, in general the courts are physically dispersed.  They have the power to issue writs generally, so that a court in California could actually issue a writ that would be applicable elsewhere; they are courts of general jurisdiction. 

However, the mechanism for replacing members of the Supreme Court so that you would have a quorum is not ideal for -- it's not ideal in any circumstances, because these are lifetime appointments, and to move in a hurried fashion to do something so important and of long-standing effect is probably not wise.

A solution to this has been proposed by my partner, Randy Moss, who was the head of the Office of Legal Counsel in the Clinton administration, or one of them.  And he has proposed a fairly simple solution, which is that there be established an emergency intermediate court that could resolve disputes among the circuits, which is the most important -- among the most important of the responsibilities of the Supreme Court, for the period of time in which there is not a quorum in the Supreme Court.  That could be done by statute, and it would have limited impact.  It could be cabined so that people would be less anxious than they might be about some of these other -- some of these other changes.

The final point I would make on implementation is this.  The focus on the election process also should have us focus on the transition process. We know from intelligence that we've gathered that there has been a focus on our transition, and we know, those of us who've done transitions, that they're ugly; that you walk into the White House with essentially nothing available to you.  And thoughtful people have made very concrete suggestions about how to handle a transition that could be of great benefit to the country as we think about this constellation of issues.  And I would urge the people who've been interested enough to show up here at 8 in the morning to get involved in that discussion as well.

DONILON:  Thanks, Amy.

Fred, your reaction to some of the ideas that have been put on the table, additional practical responses to the assessment that Norm and Jamie have laid out?

FRED IKLE:  Right.  Well, Norm has told us about what ought we do, and Jamie, how difficult it is to do it.  And why is that so?  It in part has to do with the -- well, the focus of the body politic and government people.  And what you have here is that we do a lot of our planning by looking in the rear view mirror.  We haven't experienced something like this.  We've experienced 9/11, so we focus on a 9/11-type attack. 

Also, people in this area don't -- you know, we do a lot for the bird flu.  How likely is the bird flu?  We don't know.  We do a lot for terrorism against airplanes.  How likely is that?  We don't know.  We don't know how likely is this kind of an attack. 

What is not sufficiently recognized is that if there's a motivation to attack, and you just touched on it towards the end of your remarks -- to eliminate our government, our constitutional government, thereby weaken our response to a larger attack that might follow the strike against our constitutional government -- it could be quite strong and from a clever enemy, and if the country -- our country is in a situation where we're already divided, like we are today a bit about what to do about crazy Ahmadinejad with his ICBMs, which he doesn't have yet, and what to do in Iraq and so on, in contrast to the united -- rather united population we had after Pearl Harbor.  And then, of course, Roosevelt was greatly helped by Hitler's great mistake of declaring war, but he couldn't have made it without -- without declaring war, without the declaration of war by Hitler, also probably (could ?) have moved ahead because the government was united.

So I think we ought to think about the importance also -- we discussed should this be public or not, and this is on the record -- the importance of indicating that we are prepared to cope with it even though it may be not fully developed in legal terms.

What we have had, actually, in 9/11 is an attack to inflict harm, destroy some of the icons, and what you have had in future attacks is probably attacks against the government, but in part it's been just to inflict casualties and harm.  And a lot of the focus about the threat of a nuclear weapon, terrorist attack is how many casualties.  There's less focus on depriving us of our government -- what I called in a book last year, annihilation from within -- that an enemy really wants to take our constitutional government so that we -- whatever's left of the organizations in this country malfunction and strongly dispute it as being illegal, illicit; the successor to the elected president, the secretary of Agriculture or whatever, is taking on powers which was never granted to him, and so you have a very divided country that's going to respond to this attack.  And that could make it attractive to certain types of enemies.

The -- I think if we realize that the probability of this event is unpredictable like all the other probabilities -- we do spend money on the other probabilities; we spend time on it -- this is not a question of a lot of money.  (Inaudible) -- spend billions as we do in other terrorist defenses.  It's an organizational question, and we should be able to put our minds together to do it in a way that hopefully minimizes the need for constitutional amendments and is bipartisan -- that's very important.

And it so happens -- and I think I got this idea from Norm -- that the period now we're entering is the ideal period.  A president is not up for re-election; he's not campaigning for himself.  We'll have a change in government, but it's not clear which way it will go, and we could fix it in a bipartisan way without favoring one side or the other.  That may be a way of doing it, and if we can press the people -- and so many are here -- either in executive branch or working in Congress that we should grab this period the next few months to make these changes, we might get there.

DONILON:  I think that's a very important point about the timing of the discussion.  It would be a very good gift from this government to the next, I think, to address some of these issues.  I also think that the point you made about not only having a system in place that is effective in terms of governing, but legitimate is a very critical point on this.

Questions from the floor, comments?  I think we have microphones.  It would be great if people would wait for those microphones, and just state your name and affiliation and your comment and question and we'll -- and to whom you wish to direct it, and we'll move on here.


QUESTIONER:  Thank you.  Russ Demming (sp), teaching at SAIS.  Thank you for -- you've all made a very compelling case that something needs to be done.  What is the best vehicle for this?  Is a commission -- a special commission to undertake this?  I know that Jamie is a member of continuity of government commission.  What is that?  Does it do anything?

GORELICK:  Norm created it so.  (Laughter.)

DONILON:  Yeah, why don't we have Norm -- why don't we have Norm comment on it.  Norm's going to answer the question.  What is that?  (Light laughter.)

ORNSTEIN:  Yeah.  The -- as Tom mentioned, the first piece I wrote on this was just a couple of weeks after 9/11 in a column I write in Roll Call, and at that point I said let's get this conversation started right away.  And what I hoped would happen is that the congressional leaders would have picked some individuals inside and outside just to talk about the problems and what might be done.  Nothing happened there for many months, and after a significant amount of public attention given, trying in part just to embarrass them into doing something, Speaker Hastert quite reluctantly put together a task force that was headed up by then-Representatives Chris Cox and Martin Frost.  And they actually did a pretty good job, but they were told, you know, don't consider anything other than minor tinkering. 

After a few months, Lloyd Cutler, the late, great, Lloyd Cutler called me up and said, "We've got to do something more on this."  And from that, we created a continuity of government commission, co-chaired by Lloyd and Alan Simpson with a group of very distinguished Americans like Jamie Gorelick. 

And we held public hearings, did serious deliberation, tried to jump-start the process, issued a report on Congress -- another one forthcoming on presidential succession -- you know, as much as anything to go through in a systematic way what the problems were, what potential solutions were, and then you also want to look at what the unintended consequences would be of anything that you wanted to do and put something out there on the table so we could jump-start a deliberative process. 

I think the report -- we still have a website up, marvelous stuff, but there's only so much a commission can do if you do not have the will or momentum from the major actors in the institutions who accept their own fiduciary responsibility to protect and extend themselves.  That continues to be a deficit.

DONILON:  Fred, do you have a comment on the mechanism?

IKLE:  Yeah.   My concern is the net outcome of commissions very often is to create another commission.  And I would think of something slightly more mischievous to get this going. 

The military have good procedures for succession, by and large, and if your public and people in Congress learn about work being done somewhere in the Pentagon, maybe, or some military installation, about martial law -- which is an ill-defined thing, by the way, it's not a clear legal arrangement -- martial law for this continuity -- for this discontinuity of government as a temporary fix until the executive branch and Congress have fixed it in a proper way, and start building it up and let the public know it's coming, it's being done, ask your congressman to get going on the right legal solution but we need something as a substitute -- this may drive it forward.


QUESTIONER:  Heather Kiriakou. One thing I was wondering is the ripple effect also to some of the other government agencies should such a catastrophic event occur.  Some things that CIA deals with is the presidential daily brief.  You know, a select number of individuals receive our most sensitive intelligence every day.

Should there be such a catastrophic event, it's unclear then who should receive this information.  And also, on something that would be a statutory requirement, who is responsible for doing covert action?  Has any of these issues been discussed and what do you think about them?

DONILON:  Jamie, why don't you take that.

GORELICK:  Yeah.  Well, as a legal matter, each one of those would follow literally as a ripple effect from the decision on succession.  So it's my assumption that the flow of intelligence, and the authority for approving such things as covert actions, would flow from whoever is in the line of succession to be president.  So I don't think you'd want to jerry rig some other procedures.  I mean, you have to decide the main question, which is who is running the executive branch in a period of turmoil such as the one that we've discussed.

ORNSTEIN:  Well, I do think that -- I could be wrong about this, but the covert findings issues require congressional consultation as well.

GORELICK:  They require notification, so you'd have to -- you'd have to determine, you know, there are notifications that go to Congress of covert actions.  And depending on the nature of them, there are protocols for who gets notified.  So certainly that piece of it you'd have to -- you'd have to decide as well.  Again, you know, presumably that would flow from your congressional succession planning.

DONILON:  In the middle here.

Q I'm Mark Reisch (sp), Encino Global Strategy Project.

I was wondering:  What lessons can you draw from history -- perhaps our own history, maybe the Civil War or ancient at the time of the Roman Republic -- the concept of the dictator in Cincinnatus -- as just examples that we can draw upon.

DONILON:  Norm, you all looked at a lot of history on this.

ORNSTEIN:  Well, there are a couple of points to make here.  The first is this lack of attention.  In effect, the inability to execute a will is unfortunately something -- is an example of history repeating itself.

We've had other periods in American history where we actually operated -- or let me use a different analogy.  Like driving a racecar without any insurance where we operated in a very precarious situation -- long periods of time, for example, when we had no vice presidential succession in place, as we have now done with a constitutional amendment -- a president died or was assassinated, the vice president took over, nobody behind him in presidential succession, leaving the president pro tempore of the Senate and the speaker of the House as the only ones there.  And Congress out of session for lengthy periods of time, so no safety net whatsoever.

That was changed only after we had a couple of instances where we barely dodged the bullet.  After President Garfield was assassinated, that finally brought a change in presidential succession to create a little bit more of a safety net.  You could look at Lincoln's assassination and right before that, the plans that many terrorists had, basically, to try and decapitate the government by getting rid of everybody who was in the line of succession.  This has happened before.

Now, at the same time, you can look at what occurs when you do get something that's the equivalent of martial law or you have a vacuum and somebody steps in and takes over power.  And it's not a pretty picture, frankly.  So what history tells us is that -- what history told us as we started the commission -- was this was not going to be an easy process.  Obvious as it seems that we ought to be doing something, that it wasn't going to happen very easily and that the consequences of not acting were very, very dire -- given how humans behave in times of crisis.

DONILON:  Fred, any comment on historical --

IKLE:  Yes -- a quick one.  I worked on -- I was participating in a Defense (design support ?) in the mid-'90s about terrorism -- transnational terrorism -- and as I was going through the sort of preparatory papers that we had, and analyses, I saw a sudden change.  Suddenly, this thing became serious.  What happened?  It was the Japanese cult, Aum Shinrikyo, that used very advanced poison gas trying to eliminate the Japanese government, which was the purpose of it.  Of course, it was so badly handled nothing came through.  But again, the rearview mirror gave you the impetus to do something.  And that was really -- we have to try to hang onto something where we can point to an event that came close to happening or that happened in some other countries.  Things happening in Europe that we might point to and might stimulate -- help stimulate reaction on our side.

DONILON:  How about -- we'll go right here in the corner here.  Thank you.

Q Thank you.  I'm Tom Wilkerson from the Naval Institute.

Two of you served in government.  All of you are scholars of our democratic process.  You've made -- I'm not a lawyer, but you've made -- at least to my inexperienced ears -- a very compelling case that there's something we should do and 9/11 has given us an example of what could be done to us.  So why isn't anyone listening?  I mean, you all have served in government, so when you talk to who were your succession, who now lead the government in those three branches, and make this compelling case, why do we get the -- as we say in the military -- the maintenance officer's salute?

GORELICK:  Well, I tried to speak to that some.  I think that there is inertia.  There is -- it's too hard.  There is the worry about the short-term political, you know, assumptions that is looking at what these changes might affect if you contemplate an event happening today.  And then there is what I mentioned earlier:  We have not tinkered with our system much, because people don't know what the consequences would be and they're afraid of it.  And this would require tinkering with everything.  And I think it's scary to people.

But what we're trying to do is force the issue.  I'm not so sure I love Fred's idea of forcing the issue by creating the perception that we're going to have military law, but it is inventive and mischievous.  But my view is you need to put this back to each element that has fiduciary responsibility.

ORNSTEIN:  Let me just add that -- you know, I can understand why rank and file members of Congress or even many people in the executive wouldn't act.  And it really is the same as so many very smart and capable people I know who do not write a will.  You've got children.  You travel.  You've got, you know, questions that could leave them in wrenching situations over custody.  You know, things that make a compelling case and yet people find a million reasons not to write a will.  They're superstitious that maybe it will hasten their own demise.  It raises all kinds of questions:  Will it be your sister or my brother who will get custody of our kids -- so people don't want to do it. 

The frustration for me flows from the top.  I understand that, but if you are the speaker of the House or the majority leader of the Senate or the president of the United States, or the vice president of the United States, you have a different fiduciary responsibility.  You've got to rise above that, overcome the inertia and protect the basic character of your own institutions. 

And I had great frustration getting Speaker Hastert to care about this.  When he finally did care about it, it was because some of his own party members decided to dig in their heels against doing anything significant, because they didn't want to challenge the elective capacity of the United States House of Representatives.  I got nothing but indifference from Senate Majority Leader Frist.  And I haven't found that much difference now under Senator Reid or Speaker Pelosi, although they're at least paying a little more lip service, but nothing more than lip service.

ORNSTEIN:  Let me make, if I could, one follow-on.

Before you dismiss Mr. Eclay's (sp) comment about the military too quickly, you might want to revisit what really went down in Katrina because you don't have to eliminate the government for it to be paralyzed.


ORNSTEIN:  And what we saw down there is when it came down to things, that which remained was -- as an institution which was the only one that could impose order and provide support services turned out to be the United States military.  In the absence of anything else, I doubt very seriously that any foreign interloper could eliminate enough of that military that it couldn't again do that if there were someone who would ask for it in extremis. 

DONILON:  In the back.

QUESTIONER:  Good morning.  I'm Kevin O'Frey (sp) from the Palisades Group.

Following up on a conversation about martial law, the first time Norm Ornstein mentioned it, I sort of had followed you all the way and then got very uncomfortable, and every time it's come up, I've gotten uncomfortable.   Having looked at this, I would urge that we talk about the use of military force in the domestic environment and not about martial law because it's a red herring.  It's very hard to imagine any scenario where the executive branch would be decapitated completely -- there'd be no line of succession and a military ruler would take over or somebody would take, you know, constitutional authority wearing the uniform. 

So I guess -- with respect to the commission, I'm urging that you delineate between the notion of martial law -- which I think is a boogeyman -- and really issues of separation of powers and the use of military force -- which in Katrina, we didn't use force.  We used to military to restore order, and I don't think it was even under the Restoration Act.  There was -- you know, supporting a -- I don't think we had the attorney general involved in that, but I urge a little bit more caution until we talk to that

GORELICK:  Let me speak to that.

I mean, there are well-worn methodologies for utilizing the military in a wide variety of circumstances and they are rehearsed and they are understood.  I, however, don't think that it is crazy to assume for the purposes of planning a level of disarray in which the chain of command is not at all clear and in which our military leaders say, "We have the capacities to restore order.  We don't know who we're responding to, and therefore we're going to go ahead and do it." 

And the reason I say it's not crazy to think about that level of disarray is that there wasn't that decapitation of the executive branch on 9/11 and there was disarray.  The chain of command was completely obliterated.  Nothing happened as it should have happened because the president was gone.  The secretary of Defense said that himself, and so you had literally the vice president speaking directly to the -- or thinking he was speaking, anyway -- directly to the commander of NORAD to take action.  That's not the way it's supposed to work, and that's with nothing hitting anybody. 

So I actually think that it is prudent to think about disarray if some element of our government or more than one element of our government is actually attacked, because if I'm a senior military leader and I know I'm the only grown-up left, I might say, "I don't know who to respond to, but I can't let X continue."  So I think that it is -- we need to continue to contemplate that.  I don't think it's a complete boogeyman. 

ORNSTEIN:  Let me both second that, but also indicate that when I first mentioned martial law, that's not what I had in mind.  What I had in mind was a president acting as a unitary executive without any check or balance.  In the weeks after 9/11, Congress passed a resolution authorizing military force and at least at the end of it had the War Powers Act remains intact.  There was at least a fig leaf of a check and balance there.  I -- the Patriot Act that was implemented, whether you like it or don't like it, was a far more significant check than if the attorney general on his own had basically said, "Here's what we're going to do."  And of course, the Patriot Act had a sunset provision into it, building in the notion that whatever we do here or whatever excesses occur, that we'll end at a certain point and we'll at least revisit it.  That would not have happened had there been no Congress.

So there are two things here. There's martial law where one branch of government takes over and basically assumes the functions of other branches of government.  There is a kind of martial law where you have the military stepping in because all the other elected or constitutional branches are in disarray or decapitated.  And they're two separate issues, both compelling. 

DONILON:  Why don't we try next to Ross (ph) here and then one down, and then Bill and --

QUESTIONER:  Charlie Vichardis (ph), CB Grayson Company (ph).

First of all, I want to commend Norm and Jamie for working on this thing.  I worked on this program here in -- when the Reagan administration resurrected this whole COD program in the early 1990s, and Fred was very much a part of that.  And at that time, you couldn't even talk.  There was an existing program here underway.  We addressed many of the same issues then in succession.  None of us who worked on the program ever thought it ever going to work because we all had to deploy to mobile sites around the country and kiss your wife goodbye, and hope she would survive the nuclear attack.  And if she didn't, you'd left her some forwarding address she'd write a postcard to to match up to at some later date.  So you knew it wasn't going to work at that particular point in time.

I'd just come off a commission that I think is just one of the few commissions that really works in government, and that is the Base Realignment Commission.  And that is one of the commissions that has the force of law, and its recommendations to go the Congress, and unless the Congress votes it down, it becomes law.  And I would suggest that's probably what we really need in something like this case here or else it's -- 20 years from now, we'll be up here having breakfast again and be talking about the same subject.

I don't have a question.  (Laughter.)

QUESTIONER:  Hi, I'm Bob Murray, CNA.

I think this has been a tremendous conversation this morning, and also congratulate you for putting this effort there.  It seemed to me that there was a -- that there is a great strength in the point that Norm Ornstein made about temporary appointments by the states.  And that states have the advantage if they're controlling elections and being dispersed and relatively -- (audio break) -- and also sources of legitimacy.  So I wondered whether you were getting any reaction or had approached any of the governors, for instance.  Are they talking about this at all?  Because they would actually have to implement some of your ideas and that in some ways, it might be the easiest thing to fix if we could work out -- the House and maybe the Senate if we could work out this system of temporary appointments.  Still messy, but perhaps able to be worked out so that you could have a functioning legislature at least, even if the secretary of Agriculture is still the president.

QUESTIONER:  That was one of your recommendations --


QUESTIONER:  any reaction from the governors?

ORNSTEIN:  Yeah, and actually -- you know, a number of governors were very happy to consider this and to do it.  I got reactions from a number of state legislators.  There have been states -- Delaware was a very interesting example -- that had put their succession plans in place during the Cold War, and Delaware had a process in place where the members of the legislature would designate a group of three to six people as potential successors.  And then if something happened, the governor would choose from among that list.  So you at least get some political check in place. 

The reaction that I got from many members of Congress was an interesting one because instead of looking at this in the broadest sense, they looked at it from their own narrow parochial perspective and it was, "I'll be damned if I'm going to let this son of a bitch pick my successor!" -- pointing to his own governor at that particular point in time.  And I said, "One, you'll be dead, so, you know, not to worry; and two, can't you think of this in the larger context?  And do you really think that governors that we have under a situation of utter catastrophe in the country would say, What a great opportunity to take advantage for political leverage?  It's just not going to happen.  But it's another part of human nature. 

DONILON:  (Off mike.)

QUESTIONER:  Thank you.  Jill Sugar (ph). 

I'm clearly very struck by the comments that everyone has made and Jamie's points about the total disarray which clearly, given your work, you're very familiar with in terms of 9/11.  But I was also thinking back to something on a more simple level of even the day that Alexander Haig came to the White House Press Room and -- sort of the "I'm in charge."  And therefore thinking that so much of it has to do with the credibility and what this means to the American public, and the faith that government is going to have a continuity.  And what I'm wondering is -- this probably is something that has been contemplated, but if not, it seems to me that one of the difficulties -- as Norm has pointed out -- is having people who are still in office trying to make these decisions about themselves. 

This also seems to me to be an issue that needs a very high level of focus and respect.  And what I'm wondering is, has there been any thought given to people such as former President Bush, Clinton, Sandra Day O'Connor, Tom Daschle, George Mitchell, Bob Dole -- having them discuss this and come up -- particularly as we enter this election period -- something that is ready or at least being contemplated for the next administration, but dealt with at that level of attention with people like you -- you, Norm, Jamie and Fred and others, Tom, being engaged? 

DONILON:  I'm tempted to put all the Haig questions to Fred.  (Laughter.) 

But is there are any comment on the idea of a sort of --

IKLE:  Well, Richard Owen (sp), I think, has written on that -- he's written notes on it.  And it wasn't quite as serious as it looked.  It was really more -- a bit flamboyant -- you know, in a tense meeting.  It didn't create a crisis.  The vice president was on his way to come into Washington. 

GORELICK:  Yeah, but I -- I think -- you know, it's interesting to see how statesman-like people become -- immediately after leaving office and can see the bigger picture in a way that Jill suggests.  It's -- I think that it's actually a very good idea to get people who understand the stakes and who can -- and who've taken a step back to be involved.  Now getting that kind of collection of people around a table is extremely difficult, but you can imagine doing it for Congress separately, for example and calling upon people who have recently served and have, you know, reverence for the institution and continuing concern about our security.

MS.    :  (Off mike.)


You know, I -- just one comment on the Haig business.  As I've traveled around the country in the -- over the last six years and have talked about this issue, it is amazing how that continues to resonate with people.  When you mention it, everybody just sort of -- the eyes light up.  Poor Al Haig will be remembered first for that because that really stuck with people and it's the most effective way of dramatizing this issue, actually, in some respects.

I've talked to Tom Daschle, who's a statesman, and Bob Dole, who also is a statesman and continues to be deeply involved, although Bob is now 84 and threw himself into the Dole-Shalala Commission, which was a -- actually a shining example of how a commission can work well.  And I think he can get involved as well.  Getting -- when we first created the Continuity of Government Commission, Presidents Ford and Carter were honorary co-chairs as they did on so many things, but didn't play any active role and that was part of the deal that they would be honorary co-chairs.  Getting Presidents Clinton and Bush involved is a particularly interesting idea and I think very much worth pursuing.


QUESTIONER:  Dan Tarullo from Georgetown Law School.  Thanks, Tom.

I have a brief comment and then a question.  The comment kind of amplifies on Jamie's observations of why this doesn't happen.  I mean, constitutionalizing has throughout our history been an incremental exercise.  You know, even the creation of the Constitution was moving from where we were under the Articles of Confederation to some things that people wanted to change, and each amendment has been people saying, "Well, do we like this, and if we don't, how do we change it?"  Whereas what you folks on the panel are contemplating is a potentially radical discontinuity where everything is sort of up for grabs.  And I think that means that basic questions become implicated again and everybody's fighting about basic questions.

Are you worried most about -- as Norm seems to be -- about somebody kind of seizing control or are you worried most about paralysis, where you have too many checks and balances -- people are unable to function?  And I guess in response to your question, Thomas, about what can be done, I'm struck by how little writing and discussion there is of this set of issues outside of Washington and the people sitting at the front of the table.  I mean, I unfortunately have to look at writing by law professors who want to -- or people want to go into law faculties every year haven't seen anything on this.  You know, everybody's writing on Article II powers, everybody's writing on civil liberties in a time of anti-terrorist activities.  Nobody's writing on this.  So it's got to kind of get outside the beltway, I think, to have any shot at picking up. That's number one.

The question is, I was a bit surprised at the degree to which this was a constitutional law professor's dream discussion.  What about the rest of the government?  Because I -- that's -- you know, using Tom's analogy, we have a very headquarters-heavy operation here with the exception of the judiciary, which Jamie pointed out.  And I add the Federal Reserve, which is -- has high-ranking people throughout the country and the military, to some degree.  Most of the rest of our government has all its nerve centers within seven miles of where we're sitting right now.  And I'm not talking about the secretary of Transportation.  I'm talking about all the assistant secretaries and the deputy assistant secretaries of Transportation and Energy and the like.  It -- how much contingency planning has been done for those important but non-symbolic functions of government after a genuine catastrophe in Washington? 


IKLE:  Well, quite a lot has been done in the military, really.  You know, we have NORTHCOM now.  We didn't have to sing for it for this republic here and changes happened as a result of Katrina, when all of the military was accepted by the Defense Department then and or disasters.  But to look at this more broadly, a continued two-pronged approach certainly move us forward.  And I like the recommendation of the Base Realignment Commission -- (off mike) -- as a commission that it can give us that power then to get something done.

Second -- parallel to that -- one could -- and this could be done internally in the Defense Department or the military establishment -- encourage them toward -- do further work.  And a lot of work has been done about the passe comitatus act, which often is interpreted as an excuse to do nothing to scratch the back of all these legislative pieces we have lying around to integrate these into preparing a legalized response by the military to such a crisis.  You move forward and there's two -- and there's two roads, you may more likely get something when there's at least two approaches -- may compete with each other and drive each other forward. 

DONILON:  That'll have to be the last word, in keeping with the council commitment to end on time for its events.

Thank you all very much.  It was terrific. (Applause.)









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