Monday, July 19, 2004

John Dean: What If Terrorists Strike After the Election? 

Without so much as a hint of paranoia (well, maybe a hint), John Dean examines the possible legal consequences of a terrorist strike intended to disrupt the American electoral process. Postponement of the election will not happen, he says, because it has no basis in law. An attack on one or both of the nominating conventions would be disruptive but not fatal to the democratic process, since both parties have established rules for replacing candidates should the need arise. An attack on the day of the election is more likely; it could influence the election's outcome by scaring voters away from their polling places, especially in swing states. (However, calls on the Department of Homeland Security to "ensure that there are adequate protections for voters and voting machines" have met with little or no response.)

But the terrorists could truly throw the nation into a state of chaos, Dean argues, by striking after the election -- because the laws covering continuity of government under such extraordinary circumstances are woefully inadequate:
"If terrorists were to kill the president-elect and vice president-elect between Election Day and inauguration day, our country would face a chaotic situation," [AEI analysts] Fortier and Ornstein point out. They add, "If the attack occurred before the electoral college casts its votes in December, the major parties might be called on to submit new nominees who had not stood for popular election." (Emphasis added.)

The say "might" advisedly. No one knows what would happen in such an event. There is no law. There is no precedent. Nonetheless, Fortier and Ornstein call on the both political parties "to specify ways to select replacements." While that hardly solves the problem, it is a start.

Say that Senators John Kerry and John Edwards prevail over George Bush and Dick Cheney in November, but the newly elected president and vice president are killed in a terror attack before their inaugurations on January 20, 2005. Could the DNC select a new president and vice president?

Since there is absolutely no law that would entitle the DNC to do so, no one knows. Given what happened in Florida in 2000, does anyone believe Bush and Cheney would simply leave the White House and let the DNC select their successors?

On the other hand, say a terror attack took out Bush and Cheney after they had won reelection. The existing -- and woefully deficient -- succession statute would make Speaker of the House Denny Hastert the President of the United States. And that situation would last until at least January 20, 2005, even if the Democratic party had won control of Congress in the 2004 elections - since during that time period, the new Congress would not yet have been formed.

In short, a terror attack could easily take the presidency into uncharted territory. What if President Hastert vetoed any law that would replace him, under a law passed by a new Democratic-controlled Congress? And what if the Republicans had enough votes to thwart a veto override? . . . .

Fortier and Ornstein call the Inauguration "the single most vulnerable time for our democracy." Not only are all the key figures of our government (outgoing and incoming) present at an Inauguration, but the sitting president's (and vice president's) term is expiring, as are the terms of his cabinet. Meanwhile, the new president has yet to have his cabinet confirmed.

A terror attack at the Inauguration swearing-in would create more than havoc. It would decapitate the Federal Government. By contrast, in a State of the Union address, a member of the president's cabinet always stays away to provide for an orderly succession if the unthinkable happens. But come January 20, there is no one left to provide for an orderly succession.

The Bush Administration has ignored all these problems -- all of which have been on the table since 9/11. Why? It would be cynical to suggest that they believe they might politically benefit from any of these untoward events. But it might also be accurate.

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