The Last Roundup
Martial Law and Overriding the
Constitution in the Event of a Terrorist Attack
by Christopher Ketcham, Radar
In the spring of 2007, a retired senior
official in the U.S. Justice Department sat before Congress and
told a story so odd and ominous, it could have sprung from the
pages of a pulp political thriller. It was about a principled
bureaucrat struggling to protect his country from a highly classified
program with sinister implications. Rife with high drama, it included
a car chase through the streets of Washington, D.C., and a tense
meeting at the White House, where the president's henchmen made
the bureaucrat so nervous that he demanded a neutral witness be
The bureaucrat was James Comey, John Ashcroft's
second-in-command at the Department of Justice during Bush's first
term. Comey had been a loyal political foot soldier of the Republican
Party for many years. Yet in his testimony before the Senate Judiciary
Committee, he described how he had grown increasingly uneasy reviewing
the Bush administration's various domestic surveillance and spying
programs. Much of his testimony centered on an operation so clandestine
he wasn't allowed to name it or even describe what it did. He
did say, however, that he and Ashcroft had discussed the program
in March 2004, trying to decide whether it was legal under federal
statutes. Shortly before the certification deadline, Ashcroft
fell ill with pancreatitis, making Comey acting attorney general,
and Comey opted not to certify the program. When he communicated
his decision to the White House, Bush's men told him, in so many
words, to take his concerns and stuff them in an undisclosed location.
Comey refused to knuckle under, and the
dispute came to a head on the cold night of March 10, 2004, hours
before the program's authorization was to expire. At the time,
Ashcroft was in intensive care at George Washington Hospital following
emergency surgery. Apparently, at the behest of President Bush
himself, the White House tried, in Comey's words, "to take
advantage of a very sick man," sending Chief of Staff Andrew
Card and then-White House counsel Alberto Gonzales on a mission
to Ashcroft's sickroom to persuade the heavily doped attorney
general to override his deputy. Apprised of their mission, Comey,
accompanied by a full security detail, jumped in his car, raced
through the streets of the capital, lights blazing, and "literally
ran" up the hospital stairs to beat them there.
Minutes later, Gonzales and Card arrived
with an envelope filled with the requisite forms. Ashcroft, even
in his stupor, did not fall for their heavy-handed ploy. "I'm
not the attorney general," Ashcroft told Bush's men. "There"-he
pointed weakly to Comey-"is the attorney general." Gonzales
and Card were furious, departing without even acknowledging Comey's
presence in the room. The following day, the classified domestic
spying program that Comey found so disturbing went forward at
the demand of the White House-"without a signature from the
Department of Justice attesting as to its legality," he testified.
What was the mysterious program that had
so alarmed Comey? Political blogs buzzed for weeks with speculation.
Though Comey testified that the program was subsequently readjusted
to satisfy his concerns, one can't help wondering whether the
unspecified alteration would satisfy constitutional experts, or
even average citizens. Faced with push-back from his bosses at
the White House, did he simply relent and accept a token concession?
Two months after Comey's testimony to Congress, the New York
Times reported a tantalizing detail: The program that prompted
him "to threaten resignation involved computer searches through
massive electronic databases." The larger mystery remained
intact, however. "It is not known precisely why searching
the databases, or data mining, raised such a furious legal debate,"
the article conceded.
Another clue came from a rather unexpected
source: President Bush himself. Addressing the nation from the
Oval Office in 2005 after the first disclosures of the NSA's warrantless
electronic surveillance became public, Bush insisted that the
spying program in question was reviewed "every 45 days"
as part of planning to assess threats to "the continuity
of our government."
Few Americans-professional journalists
included-know anything about so-called Continuity of Government
(COG) programs, so it's no surprise that the president's passing
reference received almost no attention. COG resides in a nebulous
legal realm, encompassing national emergency plans that would
trigger the takeover of the country by extra-constitutional forces-and
effectively suspend the republic. In short, it's a road map for
While Comey, who left the Department of
Justice in 2005, has steadfastly refused to comment further on
the matter, a number of former government employees and intelligence
sources with independent knowledge of domestic surveillance operations
claim the program that caused the flap between Comey and the White
House was related to a database of Americans who might be considered
potential threats in the event of a national emergency. Sources
familiar with the program say that the government's data gathering
has been overzealous and probably conducted in violation of federal
law and the protection from unreasonable search and seizure guaranteed
by the Fourth Amendment.
According to a senior government official
who served with high-level security clearances in five administrations,
"There exists a database of Americans, who, often for the
slightest and most trivial reason, are considered unfriendly,
and who, in a time of panic, might be incarcerated. The database
can identify and locate perceived 'enemies of the state' almost
instantaneously." He and other sources tell Radar
that the database is sometimes referred to by the code name Main
Core. One knowledgeable source claims that 8 million Americans
are now listed in Main Core as potentially suspect. In the event
of a national emergency, these people could be subject to everything
from heightened surveillance and tracking to direct questioning
and possibly even detention.
Of course, federal law is somewhat vague
as to what might constitute a "national emergency."
Executive orders issued over the last three decades define it
as a "natural disaster, military attack, [or] technological
or other emergency," while Department of Defense documents
include eventualities like "riots, acts of violence, insurrections,
unlawful obstructions or assemblages, [and] disorder prejudicial
to public law and order." According to one news report, even
"national opposition to U.S. military invasion abroad"
could be a trigger.
Let's imagine a harrowing scenario: coordinated
bombings in several American cities culminating in a major blast-say,
a suitcase nuke-in New York City. Thousands of civilians are dead.
Commerce is paralyzed. A state of emergency is declared by the
president. Continuity of Governance plans that were developed
during the Cold War and have been aggressively revised since 9/11
go into effect. Surviving government officials are shuttled to
protected underground complexes carved into the hills of Maryland,
Virginia, and Pennsylvania. Power shifts to a "parallel government"
that consists of scores of secretly preselected officials. (As
far back as the 1980s, Donald Rumsfeld, then CEO of a pharmaceutical
company, and Dick Cheney, then a congressman from Wyoming, were
slated to step into key positions during a declared emergency.)
The executive branch is the sole and absolute seat of authority,
with Congress and the judiciary relegated to advisory roles at
best. The country becomes, within a matter of hours, a police
Interestingly, plans drawn up during the
Reagan administration suggest this parallel government would be
ruling under authority given by law to the Federal Emergency Management
Agency, home of the same hapless bunch that recently proved themselves
unable to distribute water to desperate hurricane victims. The
agency's incompetence in tackling natural disasters is less surprising
when one considers that, since its inception in the 1970s, much
of its focus has been on planning for the survival of the federal
government in the wake of a decapitating nuclear strike.
Under law, during a national emergency,
FEMA and its parent organization, the Department of Homeland Security,
would be empowered to seize private and public property, all forms
of transport, and all food supplies. The agency could dispatch
military commanders to run state and local governments, and it
could order the arrest of citizens without a warrant, holding
them without trial for as long as the acting government deems
necessary. From the comfortable perspective of peaceful times,
such behavior by the government may seem farfetched. But it was
not so very long ago that FDR ordered 120,000 Japanese-Americans-everyone
from infants to the elderly-be held in detention camps for the
duration of World War II. This is widely regarded as a shameful
moment in U.S. history, a lesson learned. But a long trail of
federal documents indicates that the possibility of large-scale
detention has never quite been abandoned by federal authorities.
Around the time of the 1968 race riots, for instance, a paper
drawn up at the U.S. Army War College detailed plans for rounding
up millions of "militants" and "American negroes"
who were to be held at "assembly centers or relocation camps."
In the late 1980s, the Austin American-Statesman and other
publications reported the existence of 10 detention camp sites
on military facilities nationwide, where hundreds of thousands
of people could be held in the event of domestic political upheaval.
More such facilities were commissioned in 2006, when Kellogg Brown
& Root-then a subsidiary of Halliburton-was handed a $385
million contract to establish "temporary detention and processing
capabilities" for the Department of Homeland Security. The
contract is short on details, stating only that the facilities
would be used for "an emergency influx of immigrants, or
to support the rapid development of new programs." Just what
those "new programs" might be is not specified.
In the days after our hypothetical terror
attack, events might play out like this: With the population gripped
by fear and anger, authorities undertake unprecedented actions
in the name of public safety. Officials at the Department of Homeland
Security begin actively scrutinizing people who-for a tremendously
broad set of reasons-have been flagged in Main Core as potential
domestic threats. Some of these individuals might receive a letter
or a phone call, others a request to register with local authorities.
Still others might hear a knock on the door and find police or
armed soldiers outside. In some instances, the authorities might
just ask a few questions. Other suspects might be arrested and
escorted to federal holding facilities, where they could be detained
without counsel until the state of emergency is no longer in effect.
It is, of course, appropriate for any
government to plan for the worst. But when COG plans are shrouded
in extreme secrecy, effectively unregulated by Congress or the
courts, and married to an overreaching surveillance state-as seems
to be the case with Main Core-even sober observers must weigh
whether the protections put in place by the federal government
are becoming more dangerous to America than any outside threat.
Another well-informed source-a former
military operative regularly briefed by members of the intelligence
community-says this particular program has roots going back at
least to the 1980s and was set up with help from the Defense Intelligence
Agency. He has been told that the program utilizes software that
makes predictive judgments of targets' behavior and tracks their
circle of associations with "social network analysis"
and artificial intelligence modeling tools.
"The more data you have on a particular
target, the better [the software] can predict what the target
will do, where the target will go, who it will turn to for help,"
he says. "Main Core is the table of contents for all the
illegal information that the U.S. government has [compiled] on
specific targets." An intelligence expert who has been briefed
by high-level contacts in the Department of Homeland Security
confirms that a database of this sort exists, but adds that "it
is less a mega-database than a way to search numerous other agency
databases at the same time."
A host of publicly disclosed programs,
sources say, now supply data to Main Core. Most notable are the
NSA domestic surveillance programs, initiated in the wake of 9/11,
typically referred to in press reports as "warrantless wiretapping."
In March, a front-page article in the Wall Street Journal
shed further light onto the extraordinarily invasive scope of
the NSA efforts: According to the Journal, the government
can now electronically monitor "huge volumes of records of
domestic e-mails and Internet searches, as well as bank transfers,
credit card transactions, travel, and telephone records."
Authorities employ "sophisticated software programs"
to sift through the data, searching for "suspicious patterns."
In effect, the program is a mass catalog of the private lives
of Americans. And it's notable that the article hints at the possibility
of programs like Main Core. "The [NSA] effort also ties into
data from an ad-hoc collection of so-called black programs whose
existence is undisclosed," the Journal reported, quoting
unnamed officials. "Many of the programs in various agencies
began years before the 9/11 attacks but have since been given
The following information seems to be
fair game for collection without a warrant: the e-mail addresses
you send to and receive from, and the subject lines of those messages;
the phone numbers you dial, the numbers that dial in to your line,
and the durations of the calls; the Internet sites you visit and
the keywords in your Web searches; the destinations of the airline
tickets you buy; the amounts and locations of your ATM withdrawals;
and the goods and services you purchase on credit cards. All of
this information is archived on government supercomputers and,
according to sources, also fed into the Main Core database.
Main Core also allegedly draws on four
smaller databases that, in turn, cull from federal, state, and
local "intelligence" reports; print and broadcast media;
financial records; "commercial databases"; and unidentified
"private sector entities." Additional information comes
from a database known as the Terrorist Identities Datamart Environment,
which generates watch lists from the Office of the Director of
National Intelligence for use by airlines, law enforcement, and
border posts. According to the Washington Post, the Terrorist
Identities list has quadrupled in size between 2003 and 2007 to
include about 435,000 names. The FBI's Terrorist Screening Center
border crossing list, which listed 755,000 persons as of fall
2007, grows by 200,000 names a year. A former NSA officer tells
Radar that the Treasury Department's Financial Crimes Enforcement
Network, using an electronic-funds transfer surveillance program,
also contributes data to Main Core, as does a Pentagon program
that was created in 2002 to monitor anti-war protestors and environmental
activists such as Greenpeace.
If previous FEMA and FBI lists are any
indication, the Main Core database includes dissidents and activists
of various stripes, political and tax protestors, lawyers and
professors, publishers and journalists, gun owners, illegal aliens,
foreign nationals, and a great many other harmless, average people.
A veteran CIA intelligence analyst who
maintains active high-level clearances and serves as an advisor
to the Department of Defense in the field of emerging technology
tells Radar that during the 2004 hospital room drama, James
Comey expressed concern over how this secret database was being
used "to accumulate otherwise private data on non-targeted
U.S. citizens for use at a future time." Though not specifically
familiar with the name Main Core, he adds, "What was being
requested of Comey for legal approval was exactly what a Main
Core story would be." A source regularly briefed by people
inside the intelligence community adds: "Comey had discovered
that President Bush had authorized NSA to use a highly classified
and compartmentalized Continuity of Government database on Americans
in computerized searches of its domestic intercepts. [Comey] had
concluded that the use of that 'Main Core' database compromised
the legality of the overall NSA domestic surveillance project."
If Main Core does exist, says Philip Giraldi,
a former CIA counterterrorism officer and an outspoken critic
of the agency, the Department of Homeland Security (DHS) is its
likely home. "If a master list is being compiled, it would
have to be in a place where there are no legal issues"-the
CIA and FBI would be restricted by oversight and accountability
laws-"so I suspect it is at DHS, which as far as I know operates
with no such restraints." Giraldi notes that DHS already
maintains a central list of suspected terrorists and has been
freely adding people who pose no reasonable threat to domestic
security. "It's clear that DHS has the mandate for controlling
and owning master lists. The process is not transparent, and the
criteria for getting on the list are not clear." Giraldi
continues, "I am certain that the content of such a master
list [as Main Core] would not be carefully vetted, and there would
be many names on it for many reasons-quite likely, including the
two of us."
Would Main Core in fact be legal? According
to constitutional scholar Bruce Fein, who served as associate
deputy attorney general under Ronald Reagan, the question of legality
is murky: "In the event of a national emergency, the executive
branch simply assumes these powers"-the powers to collect
domestic intelligence and draw up detention lists, for example-"
if Congress doesn't explicitly prohibit it. It's really up to
Congress to put these things to rest, and Congress has not done
so." Fein adds that it is virtually impossible to contest
the legality of these kinds of data collection and spy programs
in court "when there are no criminal prosecutions and [there
is] no notice to persons on the president's 'enemies list.' That
means if Congress remains invertebrate, the law will be whatever
the president says it is-even in secret. He will be the judge
on his own powers and invariably rule in his own favor."
The veteran CIA intelligence analyst notes
that Comey's suggestion that the offending elements of the program
were dropped could be misleading: "Bush [may have gone ahead
and] signed it as a National Intelligence Finding anyway."
But even if we never face a national emergency,
the mere existence of the database is a matter of concern. "The
capacity for future use of this information against the American
people is so great as to be virtually unfathomable," the
senior government official says.
In any case, mass watch lists of domestic
citizens may do nothing to make us safer from terrorism. Jeff
Jonas, chief scientist at IBM, a world renowned expert in data
mining, contends that such efforts won't prevent terrorist conspiracies.
"Because there is so little historical terrorist event data,"
Jonas tells Radar, "there is not enough volume to
create precise predictions."
The overzealous compilation of a domestic
watch list is not unique in post-war American history. In 1950,
the FBI, under the notoriously paranoid J. Edgar Hoover, began
to "accumulate the names, identities, and activities"
of suspect American citizens in a rapidly expanding "security
index," according to declassified documents. In a letter
to the Truman White House, Hoover stated that in the event of
certain emergency situations, suspect individuals would be held
in detention camps overseen by "the National Military Establishment."
By 1960, a congressional investigation later revealed, the FBI
list of suspicious persons included "professors, teachers,
and educators; labor-union organizers and leaders; writers, lecturers,
newsmen, and others in the mass-media field; lawyers, doctors,
and scientists; other potentially influential persons on a local
or national level; [and] individuals who could potentially furnish
financial or material aid" to unnamed "subversive elements."
This same FBI "security index" was allegedly maintained
and updated into the 1980s, when it was reportedly transferred
to the control of none other than FEMA (though the FBI denied
this at the time).
FEMA, however-then known as the Federal
Preparedness Agency-already had its own domestic surveillance
system in place, according to a 1975 investigation by Senator
John V. Tunney of California. Tunney, the son of heavyweight boxing
champion Gene Tunney and the inspiration for Robert Redford's
character in the film The Candidate, found that the agency
maintained electronic dossiers on at least 100,000 Americans,
which contained information gleaned from wideranging computerized
surveillance. The database was located in the agency's secret
underground city at Mount Weather, near the town of Bluemont,
Virginia. The senator's findings were confirmed in a 1976 investigation
by the Progressive magazine, which found that the Mount
Weather computers "can obtain millions of pieces [of] information
on the personal lives of American citizens by tapping the data
stored at any of the 96 Federal Relocation Centers"-a reference
to other classified facilities. According to the Progressive,
Mount Weather's databases were run "without any set of stated
rules or regulations. Its surveillance program remains secret
even from the leaders of the House and the Senate."
Ten years later, a new round of government
martial law plans came to light. A report in the Miami Herald
contended that Reagan loyalist and Iran-Contra conspirator Colonel
Oliver North had spearheaded the development of a "secret
contingency plan,"-code named REX 84-which called "for
suspension of the Constitution, turning control of the United
States over to FEMA, [and the] appointment of military commanders
to run_state and local governments." The North plan also
reportedly called for the detention of upwards of 400,000 illegal
aliens and an undisclosed number of American citizens in at least
10 military facilities maintained as potential holding camps.
North's program was so sensitive in nature
that when Texas Congressman Jack Brooks attempted to question
North about it during the 1987 Iran-Contra hearings, he was rebuffed
even by his fellow legislators. "I read in Miami papers and
several others that there had been a plan by that same agency
[FEMA] that would suspend the American Constitution," Brooks
said. "I was deeply concerned about that and wondered if
that was the area in which he [North] had worked." Senator
Daniel Inouye, chairman of the Senate Select Committee on Iran,
immediately cut off his colleague, saying, "That question
touches upon a highly sensitive and classified area, so may I
request that you not touch upon that, sir." Though Brooks
pushed for an answer, the line of questioning was not allowed
magazine turned up additional damaging information, revealing
in 1993 that North, operating from a secure White House site,
allegedly employed a software database program called PROMIS (ostensibly
as part of the REX 84 plan). PROMIS, which has a strange and controversial
history, was designed to track individuals-prisoners, for example-by
pulling together information from disparate databases into a single
record. According to Wired, "Using the computers in
his command center, North tracked dissidents and potential troublemakers
within the United States. Compared to PROMIS, Richard Nixon's
enemies list or Senator Joe McCarthy's blacklist looks downright
crude." Sources have suggested to Radar that government databases
tracking Americans today, including Main Core, could still have
PROMIS based legacy code from the days when North was running
In the wake of 9/11, domestic surveillance
programs of all sorts expanded dramatically. As one well-placed
source in the intelligence community puts it, "The gloves
seemed to come off." What is not yet clear is what sort of
still-undisclosed programs may have been authorized by the Bush
White House. Marty Lederman, a high-level official at the Department
of Justice under Clinton, writing on a law blog last year, wondered,
"How extreme were the programs they implemented [after 9/11]?
How egregious was the lawbreaking?" Congress has tried, and
mostly failed, to find out.
In July 2007 and again last August, Rep.
Peter DeFazio, a Democrat from Oregon and a senior member of the
House Homeland Security Committee, sought access to the "classified
annexes" of the Bush administration's Continuity of Government
program. DeFazio's interest was prompted by Homeland Security
Presidential Directive 20 (also known as NSPD-51), issued in May
2007, which reserves for the executive branch the sole authority
to decide what constitutes a national emergency and to determine
when the emergency is over. DeFazio found this unnerving.
But he and other leaders of the Homeland
Security Committee, including Chairman Bennie Thompson, a Mississippi
Democrat, were denied a review of the Continuity of Government
classified annexes. To this day, their calls for disclosure have
been ignored by the White House. In a press release issued last
August, DeFazio went public with his concerns that the NSPD-51
Continuity of Government plans are "extra-constitutional
or unconstitutional." Around the same time, he told the Oregonian,
"Maybe the people who think there's a conspiracy out there
Congress itself has recently widened the
path for both extra-constitutional detentions by the White House
and the domestic use of military force during a national emergency.
The Military Commissions Act of 2006 effectively suspended habeas
corpus and freed up the executive branch to designate any American
citizen an "enemy combatant" forfeiting all privileges
accorded under the Bill of Rights. The John Warner National Defense
Authorization Act, also passed in 2006, included a last-minute
rider titled "Use of the Armed Forces in Major Public Emergencies,"
which allowed the deployment of U.S. military units not just to
put down domestic insurrections-as permitted under posse comitatus
and the Insurrection Act of 1807-but also to deal with a wide
range of calamities, including "natural disaster, epidemic,
or other serious public health emergency, terrorist attack, or
More troubling, in 2002, Congress authorized
funding for the U.S. Northern Command, or NORTHCOM, which, according
to Washington Post military intelligence_expert William
Arkin, "allows for emergency military operations in the United
States without civilian supervision or control."
"We are at the edge of a cliff and
we're about to fall off," says constitutional lawyer and
former Reagan administration official Bruce Fein. "To a national
emergency planner, everybody looks like a danger to stability.
There's no doubt that Congress would have the authority to denounce
all this-for example, to refuse to appropriate money for the preparation
of a list of U.S. citizens to be detained in the event of martial
law. But Congress is the invertebrate branch. They say, 'We have
to be cautious.' The same old crap you associate with cowards.
None of this will change under a Democratic administration, unless
you have exceptional statesmanship and the courage to stand up
and say, 'You know, democracies accept certain risks that tyrannies
do not.' "
As of this writing, DeFazio, Thompson,
and the other 433 members of the House are debating the so-called
Protect America Act, after a similar bill passed in the Senate.
Despite its name, the act offers no protection for U.S. citizens;
instead, it would immunize from litigation U.S. telecom giants
for colluding with the government in the surveillance of Americans
to feed the hungry maw of databases like Main Core. The Protect
America Act would legalize programs that appear to be unconstitutional.
Meanwhile, the mystery of James Comey's
testimony has disappeared in the morass of election year coverage.
None of the leading presidential candidates have been asked the
questions that are so profoundly pertinent to the future of the
country: As president, will you continue aggressive domestic surveillance
programs in the vein of the Bush administration? Will you release
the COG blueprints that Representatives DeFazio and Thompson were
not allowed to read? What does it suggest about the state of the
nation that the U.S. is now ranked by worldwide civil liberties
groups as an "endemic surveillance society," alongside
repressive regimes such as China and Russia? How can a democracy
thrive with a massive apparatus of spying technology deployed
against every act of political expression, private or public?
(Radar put these questions to spokespeople for the McCain,
Obama, and Clinton campaigns, but at press time had yet to receive
These days, it's rare to hear a voice
like that of Senator Frank Church, who in the 1970s led the explosive
investigations into U.S. domestic intelligence crimes that prompted
the very reforms now being eroded. "The technological capacity
that the intelligence community has given the government could
enable it to impose total tyranny," Church pointed out in
1975. "And there would be no way to fight back, because the
most careful effort to combine together in resistance to the government,
no matter how privately it was done, is within the reach of the
government to know."