A Vast Array of Emergency Powers. Zero Self-Control.

A Vast Array of Emergency Powers. Zero Self-Control.

A Vast Array of Emergency Powers. Zero Self-Control.

Trump’s disregard for democracy is so blatant, top military leaders have started to intervene.


As the extraordinary events of the past week have unfolded, I find myself experiencing time in increasingly strange ways. On the one hand, every minute of every hour seems an eternity, an endless loop of danger and uncertainty and increasing tension, from the streets of every major city in America to the halls of power in D.C.

On the other hand, precisely because so much is happening so fast, time is whirring by, as if stuck in fast-forward: from the mass outpouring of black-led protests to Trump’s threat to impose a military response against protesters, governors activating the National Guard, mayors imposing curfews, and Jim Mattis and an array of other former high-ranking military brass condemning Donald Trump’s threat to unleash the military, in the most damning of tones. This week, the Signal and the Noise blended and became one.

Despite the risks of contracting the novel coronavirus, vast numbers of Americans have masked up and taken to the streets to bear moral witness to the unbearable police lynching of George Floyd in Minneapolis, and to white supremacy and police brutality more generally. Most of the protests have been peaceful. Some, however, have been taken over by those with a largely nonpolitical, violent agenda.

As anyone who has been watching TV this past week will have seen, there has been widespread looting from coast to coast, some possibly carried out by chaos-makers on either end of the political spectrum. Some has been carried out by people who have simply had enough of feeling downtrodden and unvalued, brutalized by the forces of the state and looked on with fear—or, worse, just ignored—by vast numbers of their fellow-citizens. Some looting has been performed for reasons that are not ideological, and don’t really have much, or even anything, to do with Floyd’s murder.

The spasm of looting surely must be related to the vast economic despair now coursing through a country with nearly 43 million unemployed, tens of millions hungry or food insecure, and millions at risk of losing the roofs over their heads. It must have at least in part been triggered by the massive psychological pressures of months of mandated stay-in-place orders, along with the complete eradication of all normal stress releasers, from watching sports events to hearing live music, from eating out at restaurants to watching movies at the theater, from dating and hooking up to going to the gym, to gambling in casinos, to praying at places of worship, to traveling, to playing basketball in the local park. We have been forced into a waking hibernation, a society-wide sleep terror, and it has driven us to the breaking point.

There is, and always has been, in rioting an element of the performative, the explosive release of pent-up pressures. The historian of riots George Rudé, in his classic 1964 book The Crowd in History, 1730-1848, wrote that rioters throughout history have often expressed themselves by “breaking windows, wrecking machinery, storming markets, burning their enemies of the moment in effigy, and ‘pulling down’ their houses, farms, fences, mills, or pubs.” That performative element was true in England and France, the two countries he focused on, and it’s certainly true in the United States, a country that has had more than its fair share of riotous outbreaks over the last two and half centuries.

America is a country peculiarly wedded to the spectacle, to entertainment, to baubles and distractions. And yet, for months on end, we have been deprived by a pandemic emergency of all of our public spectacles except one: the endless, narcissistic prattle of Donald J. Trump, as he churns up our worst societal instincts and panders to our basest behaviors, as he seeks to divide us all again and again. Stuck in our homes, with nothing else to divert us, we watched and watched and watched. And, as a country, we lost our goddamn minds.

Then, the video of George Floyd’s murder surfaced. It was the match that lit everything up, that served to blow the lid off our collective pressure cooker. Black activists took to the street, refusing to let this stand. Their resistance, and police departments’ reactions, shocked many of us out of our stupor. Stung back to life again, we flooded, by the tens and then the hundreds of thousands, into the street, to express our collective outrage—to reclaim, in a public setting, our sense of being human.

When mass protests began—first in Minneapolis and then in a growing number of other cities—one could practically see Trump’s twisted mind sorting through his options for sowing further mayhem, for roiling already deeply disturbed waters. After a weekend of growing chaos and rampant police brutality, Trump began openly demanding US military involvement to put down the “thugs” and the “far-left” agitators. He began pressuring governors to accept his offers of army intervention, and began calling for extraordinarily lengthy prison sentences for looters (presumably by invoking the same emergency provisions of the federal code, enacted in 1948, that allowed past administrations to seek multi-decade prison sentences for protesters against the Vietnam War and anti-nuclear activists). He began laying the groundwork to declare a national emergency that would allow him to activate the troops.

On Monday, military helicopters whirred low over demonstrators in D.C., using crowd control tactics honed in urban warfare in Afghanistan and Iraq. Police officers gassed and beat nonviolent crowds, simply to clear a path for Trump to strut, caudillo-like, to a nearby church. There, he waved a Bible and pledged to be “your law-and-order president.” It looked, that night, as if he were about to declare martial law—and to start utilizing the vast array of emergency powers that the Constitution and, over the centuries, Congress, have delegated to the Executive Branch.

These powers are contained in provisions of the Constitution, as well as in laws such as the 1807 Insurrection Act; the 1934 Communications Act, and its World War II amendments; the 1976 National Emergencies Act; and the 1977 International Emergency Economic Powers Act. They are also detailed in a series of secret Presidential Emergency Action Documents (PEADS) that were first generated during the Eisenhower presidency to keep continuity of government in place should the country experience a nuclear attack. PEADS have never officially been published, but over the years a series of investigations have hinted at their scope: They seem to provide for the suspension of habeas corpus, the declaration of martial law, the rounding up and detention of lists of “subversives,” and a range of other tools familiar to strongman regimes over the course of history.

As the Brennan Center for Justice and others have delineated, these acts give presidents utterly extraordinary, personalized powers, should they decide to embrace them. During the Civil War, Lincoln suspended habeas corpus. During World War II, FDR signed the notorious Executive Order 9066, forcing Japanese-Americans on the West Coast into internment camps.

The emergency powers available to the president have exponentially grown since then. There are now at least 136 statutory powers that give the president the power to do everything from shutting down hostile media entities and blocking access to specific websites to freezing the bank accounts and seizing the passports of US nationals deemed to be cooperating with foreign entities to undermine US security.

In a remarkably prescient article published in The Atlantic in January 2019, the Brennan Center’s Elizabeth Goitein laid out a series of scenarios in which a politically vulnerable Trump—operating in the aftermath of impeachment and against a backdrop of a public health crisis, an economic collapse, and massive civic unrest—could decide to essentially go to war against his domestic enemies by embracing these emergency powers. Trump’s actions this past week are so stunningly similar to those Goitein outlined that one can’t help but wonder if he is, quite literally, hewing to her hypothetical playbook.

Many of the armed forces’ most senior figures, as well as all four living ex-presidents, have now mounted public interventions. In the days following Trump’s church photo op, the military top brass seems to have revolted. Secretary of Defense Mark Esper has come out against using the US military against protesters. Ex-chairman of the Joint Chiefs of Staff Mike Mullen published an op-ed denouncing Trump’s actions. Ex–defense secretary James Mattis has published what must surely rank as the most damning and damaging statement by an erstwhile cabinet minister against a president in all of US history. The current head of the Joint Chiefs, Gen. Mark Milley, wrote a memo to the heads of all branches of the armed forces, pointedly reminding them that they have all sworn an oath to uphold the Constitution and the rights contained therein. And Gen. John Allen, former commander of US forces in Afghanistan, wrote that Trump’s actions were so dangerous they might well “signal the beginning of the end of the American experiment.”

These top brass aren’t just worried that the men and women of the US military will be dragged into the middle of an American crack-up. They are also clearly concerned that the vast emergency powers at the president’s disposal could be invoked by a ruthless, unstable sociopath—a man sinking in the opinion polls—in a way that will permanently shatter what remains of the country’s democratic structures. They are worried that the United States’ unique place in the world’s consciousness will be destroyed, autocracy will snuff out democracy, and the country will descend into violent chaos and strife.

The emergency powers statutes were, theoretically, developed over the decades to allow governments to protect the country’s democracy. Trump is now, quite clearly, readying to use them to snuff out that democracy and further entrench his fetid, kleptocratic regime. He hasn’t yet made his full emergency powers grab. Make no mistake, however: The peril is all too real. He can be stopped, and his dark vision never fulfilled, but only if enough of us continue to resist—and if enough people in positions of power refuse to obey illegal orders.

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