Relyea, Harold C.

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1 Proclamation 7463, Federal Register, vol. 66, Sept. 18, 2001, pp. 48197-48199.2 See James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents,vol. 1 (New York: Bureau of National Literature, 1897), pp. 149-154; for the underlying statutefor the President’s proclamation, see 1 Stat. 264-265.Congressional Research Service ˜ The Library of CongressCRS Report for CongressReceived through the CRS WebOrder Code RS21017Updated January 7, 2005Terrorist Attacks and National Emergencies Act DeclarationsHarold C. RelyeaSpecialist in American National GovernmentGovernment and Finance DivisionSummaryAs part of his response to the September 11, 2001, terrorist attacks on the WorldTrade Center and the Pentagon, President George W. Bush formally declared nationalemergencies on September 14 and 23 pursuant to the National Emergencies Act.  ThePresident’s actions follow a long-standing tradition of alerting the nation to a crisisthreatening public order and constitutional government.  Currently,  such declarationsalso allow the President to make use of activated authority on a selective basis, asappropriate for responding to an emergency.  Updated as events recommend, this reportchronicles the actions taken by President Bush pursuant to his national emergencydeclarations, as well the issuance of additional such declarations concerning terrorism.Terrorist attacks against the World Trade Center in New York City and the Pentagonin Washington, D.C., on September 11, 2001, prompted President George W. Bush todeclare a national emergency on September 14.1  His action followed a long-standingtradition, dating, in the federal experience, to August 17, 1794, when President GeorgeWashington issued a proclamation calling forth the militia to suppress rebelliousopposition to the collection of an excise tax on whiskey in locales of westernPennsylvania, Virginia, and the Carolinas.2  Washington took personal command of theforces organized to put down the “Whiskey Rebellion.”Until the crisis of World War I, Presidents utilized emergency powers at their owndiscretion.  Proclamations announced the exercise of exigency authority.  However,during World War I and thereafter, Chief Executives had available to them a growingbody of standby emergency authority that became operative upon the issuance of aproclamation declaring a condition of national emergency.  Sometimes suchproclamations confined the matter of crisis to a specific policy sphere, and sometimesCRS-23  See U.S. Congress, Senate Special Committee on National Emergencies and DelegatedEmergency Powers, A Brief History of Emergency Powers in the United States, committee print,93rd Cong., 2nd sess. (Washington: GPO, 1974); U.S. Congress, Senate Special Committee onNational Emergencies and Delegated Emergency Powers, A Recommended National EmergenciesAct, 93rd Cong., 2nd sess., S.Rept. 93-1170 (Washington: GPO, 1974); U.S. Congress, SenateSpecial Committee on National Emergencies and Delegated Emergency Powers, ExecutiveOrders in Times of War and National Emergency, committee print, 93rd Cong., 2nd sess.(Washington: GPO, 1974); U.S. Congress, Senate Special Committee on the Termination of theNational Emergency, Emergency Powers Statutes, 93rd  Cong., 1st sess., S.Rept. 93-549(Washington: GPO, 1973); U.S. Congress, Senate Special Committee on the Termination of theNational Emergency, National Emergency, 3 parts, hearings, 93rd Cong., 1st sess., Apr. 11-12, July24, and Nov. 28, 1973 (Washington: GPO,  1973).4 See U.S. Congress, Senate Special Committee on National Emergencies and DelegatedEmergency Powers, National Emergencies and Delegated Emergency Powers, 94th Cong., 2ndsess., S.Rept. 94-922 (Washington: GPO, 1976).5 90 Stat. 1255; 50 U.S.C. 1601-1651 (1988); see U.S. Congress, Senate Committee onGovernment Operations and Special Committee on National Emergencies and DelegatedEmergency Powers, The National Emergencies Act (Public Law 94-412).  Source Book:Legislative History, Texts, and Other Documents, committee print, 94th Cong., 2nd sess.(Washington: GPO, 1976).they placed no limitation whatsoever on the pronouncement.  These activations of standbyemergency authority remained acceptable practice until the era of the Vietnam war.Growing public and congressional displeasure with the President’s exercise of hiswar powers and deepening U.S. involvement in hostilities in Vietnam prompted interestin a variety of related matters.  Senator Charles Mathias, together with Senator FrankChurch, sought to establish a Senate special committee to study administration relianceon a 1950 proclamation of national emergency to prosecute the Vietnam war.  Initiallychartered in June 1972 with Mathias and Church as cochairmen, the study panelsubsequently produced various studies and assessments.3  Among other discoveries, thecommittee, after reviewing the United States Code and uncodified emergency powersstatutes, identified 470 provisions of federal law that delegated extraordinary authority tothe executive in time of national emergency.  It also found that there was no process forautomatically terminating outstanding national emergency proclamations.  Thus, the panelbegan developing legislation containing a formula for regulating emergency declarationsin the future and otherwise adjusting the body of statutorily delegated emergency powersby abolishing some provisions, relegating others to permanent status, and continuingothers in a standby capacity.  Its final report, offering findings and recommendations, wasissued in May 1976.4The National Emergencies ActAs early as July 1974, the special committee had unanimously recommendedlegislation establishing a procedure for presidential declaration and congressionalregulation of a national emergency.  Introduced in the Senate the following month, themeasure, after negotiation with the executive branch and further refinement, was clearedfor President Gerald Ford’s signature on September 14, 1976.5CRS-36  See Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).7  See 99 Stat. 405, 448.8  See CRS Report RL31133, Declarations of War and Authorizations for the Use of MilitaryForce: Background and Legal Implications, by David M. Ackerman and Richard F. Grimmett,pp. 36-55.As enacted, the National Emergencies Act consisted of five titles.  The first of thesegenerally returned all standby statutory delegations of emergency power, activated by anoutstanding declaration of national emergency, to a dormant state two years after thestatute’s approval.  However, the act did not cancel outstanding 1933, 1950, 1970, and1971 national emergency proclamations, because these were issued by the Presidentpursuant to his Article II constitutional authority.  Nevertheless, it did render themineffective by returning to dormancy the statutory authorities they had activated, therebynecessitating a new declaration to activate standby statutory emergency authorities.Title II provided a procedure for future declarations of national emergency by thePresident and prescribed arrangements for their congressional regulation.  The statuteestablished an exclusive means for declaring a national emergency.  Furthermore,emergency declarations were to terminate automatically after one year unless formallycontinued for another year by the President, but could be terminated earlier by either thePresident or Congress.  Originally, the prescribed method for congressional terminationof a declared national emergency was a concurrent resolution adopted by both houses ofCongress.  This type of so-called “legislative veto” was effectively invalidated by theSupreme Court in 1983.6  The National Emergencies Act was amended in 1985 tosubstitute a joint resolution as the vehicle for rescinding a national emergencydeclaration.7When declaring a national emergency, the President must indicate, according to TitleIII, the powers and authorities being activated to respond to the exigency at hand.  Arecent CRS compilation identifies almost 160 provisions of law that may be activated byan emergency proclamation.8  They include authority to prosecute and punish anyone whowillfully makes or conspires to make defective war material (18 U.S.C. 2154),  to waivethe written application requirement for radio station licenses and renewals (47 U.S.C.308), to release national defense stockpile materials (50 U.S.C. 98f(a)(2)), to controlvessels in territorial waters (50 U.S.C. 191), and to regulate or prohibit any transactionsin foreign exchange, bank transfers of credit or payments involving any interest of anyforeign country or a national thereof, or transactions involving any property in which anyforeign country or a national thereof has any interest (50 U.S.C. 1702).Certain presidential accountability and reporting requirements regarding nationalemergency declarations were specified in Title IV, and the repeal and continuation ofvarious statutory provisions delegating emergency powers was accomplished in Title V.Initial use of the act occurred in November 1979 in response to the U.S. embassybeing seized and its personnel being taken hostage in Tehran, Iran.  The proclaimednational emergency activated authority for the seizure of Iranian government property,including assets, and prohibition of economic transactions with Iran.  Such nationalemergency actions were also subsequently taken against Nicaragua, South Africa, Libya,CRS-49 See CRS Report 98-505, National Emergency Powers, by Harold C. Relyea.10 Frank J. Murray, “Wartime Presidential Powers Supersede Liberties,” Washington Times, Sept.18, 2001, pp. A1, A12.Panama, Iraq, Haiti, Serbia, Montenegro, Bosnia, Herzegovina, Burma, and Sudan.  Onseveral occasions since 1983, when the Export Administration Act of 1979 automaticallyexpired and awaited reauthorization, national emergencies were declared to activateauthority by which to continue the operative status of the statute’s export controlregulations.  To date, over 30 national emergencies have been declared pursuant to theNational Emergencies Act, and about a dozen of these have been subsequentlyterminated.9Responding to Terrorist AttacksPrior to the September 14, 2001, national emergency declaration of President GeorgeW. Bush in response to terrorist attacks in New York City and Washington, D.C.,President William Clinton had declared a January 1995 national emergency relative toprohibiting transactions with terrorists who threaten to disrupt the Middle East peaceprocess.  Such transactions included assisting in, sponsoring, or providing financial,material, or technological support for, or services in support of, acts of violence byterrorists.In his national emergency declaration, President Bush did not activate, as onenewspaper erroneously reported, “some 500 dormant legal provisions, including thoseallowing him to impose censorship and martial law.”10  Instead, his declaration, inaccordance with the requirements of the National Emergencies Act, selectively activatedthe following statutory authorities, which were specified in the President’s nationalemergency proclamation.10 U.S.C. 123.  Authorizes the President, in time or war or national emergencydeclared by Congress or the President, to suspend the operation of any provision of lawrelating to the promotion, involuntary retirement, or separation of commissioned officersof the Army, Navy, Air Force, Marine Corps, or Coast Guard Reserve.10 U.S.C. 123a.  Authorizes the President, at the end of any fiscal year when thereis in effect a war or national emergency, to defer the effectiveness of any end-strengthlimitation with respect to that fiscal year prescribed by law for any military or civiliancomponent of the armed forces or of the Department of Defense.10 U.S.C. 527.  Authorizes the President, in time or war or national emergencydeclared by Congress or the President, to suspend the operation of three specified sectionsof Title 10, United States Code, concerning the authorized strength of commissionedofficers on active duty in senior grades, the distribution of commissioned officers onactive duty in general officer or flag officer grades, and the authorized strength ofcommissioned officers on active duty in general officer or flag officer grades.CRS-511 E.O. 13223, Federal Register, vol. 66, Sept. 18, 2001, pp. 48201-48202.12 50 U.S.C. 1701-1706.13 E.O. 13224, Federal Register, vol. 66, Sept. 25, 2001, pp. 49079-49082.14 E.O. 12947, 3 C.F.R., 1995 Comp., pp. 319-320.10 U.S.C. 2201(c).  Authorizes the President to make a determination that it isnecessary to increase the number of members of the armed services on active duty beyondthe number for which funds have been appropriated for the Department of Defense.10 U.S.C. 12006.  Authorizes the President, in time of war or national emergencydeclared by Congress or the President, to suspend the operation of three specified sectionsof Title 10, United States Code, concerning the authorized strengths of armed forcesreserve commissioned officers in an active status, reserve general and flag officers in anactive status, and filling senior Army and Air Force Reserve commissioned officervacancies.10 U.S.C. 12302.  Authorizes the President, in time of national emergency declaredby the President, to call members of the Ready Reserve to active duty.14 U.S.C. 331.  Authorizes the Secretary of Transportation, in time of war ornational emergency, to order any regular officer of the Coast Guard on the retired list toactive duty.14 U.S.C. 359.  Authorizes the Commandant of the Coast Guard, in time of war ornational emergency, to order any enlisted member of the Coast Guard on the retired listto active duty.14 U.S.C. 367.  Authorizes the Secretary of Transportation to detain enlistedmembers of the Coast Guard beyond their terms of enlistment.President Bush directed and delegated the exercise of this authority with E.O. 13223of September 14, 2001.11On September 23, 2001, President Bush again declared a national emergency,invoked the International Emergency Economic Powers Act (IEEPA),12 and ordered itsimplementation to block property and prohibit transactions with persons who commit,threaten to commit, or support terrorism.13  The IEEPA authorizes the President toregulate or prohibit any transactions in foreign exchange, bank transfers of credit orpayments involving any interest of any foreign country or a national thereof, ortransactions involving any property in which any foreign country or a national thereof hasany interest.  Earlier, President Clinton had declared a national emergency and invokedthe IEEPA to prohibit transactions with terrorists who threatened to disrupt the MiddleEast peace process.14On November 16, 2001, President Bush, pursuant to his September 14 declarationof a national emergency, issued E.O. 13235 invoking the emergency constructionauthority and making it available for implementation by the Secretary of Defense and, atCRS-615 E.O. 13235, Federal Register, vol. 66, Nov. 20, 2001, p. 58343.16 E.O. 13253, Federal Register, vol. 67, Jan. 18, 2002, p. 2791.17 E.O. 13303, Federal Register, vol. 68, May 28, 2003, pp. 31931-31932.18 E.O. 13321, Federal Register, vol. 68, Dec. 23, 2003, p. 74465.19 E.O. 12396, 3 C.F.R., 1982 Comp., pp. 234-235.the Secretary’s discretion, to the secretaries of the military departments.15  This authority,found at 10 U.S.C. 2808, authorizes the Secretary of Defense, in time of declared war ornational emergency declared by the President, and without regard to any other provisionof law, to undertake military construction projects and to authorize the secretaries of themilitary departments to undertake such construction projects, not otherwise authorized bylaw, as are necessary to support use of the armed forces.  Such construction projects maybe undertaken only within the total amount of funds that have been appropriated formilitary construction, including funds appropriated for family housing, that have not beenobligated.With E.O. 13253 of January 16, 2002, President Bush amended E.O. 13223, whichordered the Ready Reserve to active duty.  The amendments extended certain authoritiesto the Secretary of Transportation relative to Coast Guard personnel.16Intervention in IraqGrowing out of U.S. intervention in Iraq, which has been justified, in part, by theBush Administration as an action against al Qaeda located there and a regime tied to andharboring such terrorists, President Bush issued E.O. 13303 of May 22, 2003, declaringa national emergency for purposes of protecting the development fund for Iraq and certainother property in which Iraq has an interest.17  A primary authority activated in this regardis the International Emergency Economic Powers Act.  This emergency declaration wasdesigned to protect property and interests in property apart from protections emanatingfrom an earlier emergency declaration made with E.O. 12722 of August 2, 1990.On December 17, 2003, President Bush, pursuant to his national emergencydeclaration of September 14, 2001, issued E.O. 13321 invoking 10 U.S.C. 603, whichauthorizes the President to appoint qualified persons to any officer grade in the armedforces.18  This authority was made available to the Secretary of Defense in accordancewith the terms of the statutory provision and E.O. 12396 concerning defense officerpersonnel management.19 Further actions by the President pursuant to his September 14 and 23, 2001, nationalemergency declarations, and the issuance of additional such declarations concerningterrorism, will be chronicled in this report as they occur.

Terrorist Attacks and National Emergencies Act Declarations

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Terrorist Attacks and National Emergencies Act Declarations

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