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American Coup: How a Terrified Government Is Destroying the Constitution
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American Coup: How a Terrified Government Is Destroying the Constitution

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by William M. Arkin

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A stunning exploration of the subtle erosion of freedom in an age of concocted fear and de facto military authority.

When we think of a military coup, the first image that comes to mind is a general, standing at a podium with a flag behind him, declaring the deposing of elected leaders and the institution of martial law.

Think again.



A stunning exploration of the subtle erosion of freedom in an age of concocted fear and de facto military authority.

When we think of a military coup, the first image that comes to mind is a general, standing at a podium with a flag behind him, declaring the deposing of elected leaders and the institution of martial law.

Think again.

In AMERICAN COUP, William Arkin reveals the desk-bound takeover of the highest reaches of government by a coterie of "grey men" of the national security establishment. Operating between the lines of the Constitution this powerful and unelected group fights to save the nation from "terror" and weapons of mass destruction while at the same time modifying and undermining the very essence of the country. Many books are written about secrecy, surveillance, and government law-breaking; none so powerfully expose the truth of everyday life in this state of war.

Editorial Reviews

Kirkus Reviews
National security expert Arkin (Divining Victory: Airpower in the 2006 Israel-Hezbollah War, 2011, etc.) follows up Top Secret America: The Rise of the New Security State (2011, co-authored with Dana Priest) with this report on America's secret government. The author contends that America's government functions as "a dual system." There are the "ABCs" of public law guided by the Constitution, and there are the "XYZs" functioning between the lines, "the charter of another realm." Arkin focuses part of his argument on the federal government's response to Hurricane Katrina in 2005. Alerted a week before the storm system arrived, he reports, the George W. Bush administration was discussing drafting a declaration of martial law under the terms of the Insurrection Act of 1807, and the author discusses Gov. Kathleen Blanco's opposition to federalization of the emergency response. Since Katrina, state governors have signed on to Barack Obama's "series of five integrated National Planning Frameworks covering the new buzzwords ‘prevention, protection, mitigation, response, and recovery.' " The author traces what the dual system is designed to do and how it performs, given the fallibility of the human agents tasked with executing it. He highlights the cascading failures of the federal response to Katrina, how the system evolved from the beginning, and what the legal possibilities may be for its current preventive and protective missions. The XYZs were born under Harry Truman and came of age during the Eisenhower administration. Arkin traces successive transformations, highlighting Bill Clinton's makeover as an enabler for subsequent actions by Bush and Obama. He provides useful backdrop in the form of discussions of martial law and how such relevant laws have been employed. A systematic discussion that provides a well-documented basis for assessing future developments.

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Little, Brown and Company
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American Coup

How a Terrified Government Is Destroying the Constitution

By William M. Arkin

Little, Brown and Company

Copyright © 2013 William M. Arkin
All rights reserved.
ISBN: 978-0-316-25124-2


Between the Lines

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


The sealed outer envelope identifies the sender: the Executive Office of the President. The name of the addressee—a Cabinet officer, an agency head, or one of their deputies—along with a unique number in the top right-hand corner, augmented by an unclassified short title of the contents, is on the bottom right. A second opaque envelope inside has a prominent security classification stamped on top and bottom, front and back, and the notation: "TO BE OPENED BY THE _____ [designated official]." Inside the double-sealed wrapping is a government Standard Form (SF) cover sheet: SF 706 for Top Secret and SF 712 for Sensitive Compartmented Information, clipped to the enclosures. If the contents are associated with an even more secret Special Access Program, or SAP, as it's called in the supersecret world, a specially colored and printed card stock is used.

Scores of such envelopes are scattered throughout the federal government, from the Pentagon to the Environmental Protection Agency, locked away in briefcases, in personal safes and office vaults, with duplicates located in bunkers and emergency relocation sites. The master index is cataloged at the office of the White House Counsel and at its subordinate Program Coordination Division. Every first Monday of the month, the sets of envelopes are inspected and inventoried. Once a year, the entire contents are reviewed and authenticated, any new, expired, or modified ones replaced.

The most sensitive correspondence is made up of one-of-a-kind letters written to the vice president, Cabinet members, agency heads, and even some private citizens—"Emergency Designees"—each document (affixed with the president's signature and seal) expressing the president's wishes and assigning the bearer some specific delegation of responsibility under circumstances of national calamity.

A level down on the hierarchy, the remaining envelopes contain Presidential Emergency Action Documents (or PEADs), similar yet more broadly written delegations and orders to government agencies and military commands. They include standby legal authorities and not-yet-issued executive orders prewritten to guide the nation during an emergency. One step below the PEADs in sensitivity are emergency action packages (EAPs), and one step below the EAPs are major emergency actions (MEAs)—both commonly called "emergency actions"—each in turn subject to wider and wider circulation but still as tightly controlled. All of these, too, are collected and processed at the Program Coordination Division. Regardless of acronym, none of these instructions are meant for either public consumption or legislative affirmation and codification.

They do, however, presumably have the public in mind: what is formally known as "emergency action" was first introduced during the Truman administration in 1952, but what is the antecedent of today's Program was really created by President Eisenhower, the first president to grapple with the real possibility of rapid global annihilation. The Program was never one place or one person, one administration or one party, or one side of the political spectrum.

If, it was posited, Washington were wiped out in a Soviet nuclear attack, with presumably the federal government gone as well, implementation of the Program would be essential if the United States was to survive. In fact, the Soviet Union might forgo a first strike in the first place if it couldn't guarantee itself a crippling blow on America. At least that was the Cold War theory. The scores of secret presidential instructions were a start in preassigning the responsibility for decision-making, mobilization, and constitutional governance. But there was no way then, and even less way today, that letters from the Oval Office could cover all contingencies and complexities.

Preventing a Soviet strike was predicated on the fact that even if Washington lay in ruins, administration would continue—if not "the Administration." Regardless of who is president or the political status of the nation, regardless of ongoing visible or invisible wars, regardless of the likelihood of attack, the Program would endure, a living organism of documents and envelopes continually being drafted, reviewed, redrafted, approved, signed, and distributed, a hush-hush back-and-forth played out by a select class of national security professionals—executive branch elites, some known officially, others unofficially, as "executive agents"—a system of governance that exists to preserve constitutional government while at the same time existing between the lines of the Constitution.

From Eisenhower to George H. W. Bush, the Cold War meant massive amounts of resources devoted to civil defense. In practice, this entailed not just military buildup but the development of a class of government experts outside public institutions and beyond constitutional rules. The fact that these men were unelected was seen by many of them as a plus: they were above the political fray, rationalists in an age of equilibriums and zero sums. And because the arrow of history meant ever-increasing complexity, their expertise made them ever more essential. Surely America would want its most experienced, most prepared, most practiced citizens at the controls come disaster.

Providing for the common defense is so basic a government obligation that the framers explicitly said so in the Preamble to the Constitution. When George Washington became the first president in 1789, "common defense" meant defending against Native Americans or foreign invasion. Military forces—and this included various state militias—were raised to defend the country against England, France, and Spain, the latter two holding claim to huge tracts of what is today the United States. When the threat of an external enemy disappeared, "common defense" became "national defense," a term that persisted until 1945, when Congress decided that the word "security" connoted an activity more expansive than just military affairs.

And it did. The National Security Act was passed just two years later, creating the underpinning of today's federal organization. There were already a multitude of nonmilitary agencies—the FBI, the Coast Guard, the Secret Service, the Central Intelligence Group (predecessor of the independent CIA), and the Atomic Energy Commission—with a hand in the constitutionally invisible. The new legislation expanded the cloak; lines like "such other functions and duties as assigned" in the National Security Act of 1947 would be used to codify CIA covert action without ever mentioning a mission, yet while academic and policy volumes galore explored the nuclear chokehold and covert operations abroad, the implications for domestic action and the domestic exceptions were hardly even noticed.

As "common defense" and even "national defense" as terms disappeared, "civil defense" lingered on. Ironically, the first government office created, even before Pearl Harbor, was called the Office of Civilian Defense, but that soon changed. In the words of one official history, from the very beginning three sets of enduring conflicts colored the discussion: the place of civil defense in the national security; the division of responsibility (and the relationship) between the federal government and state and local governments; and the question of extraordinary powers. Truman's National Security Resources Board initially asserted that state and local governments would become the "field army" of civil defense, but the states balked and big-city mayors decried the absurdity of mass evacuation. Subsequently, a Forty Years' War began over the value and loci of civil defense in the nuclear age. Schemes of fallout shelters and mass evacuation and "highways for the national defense" barely survived spates of disgust at the national icon of government absurdity. In the twenty-five years between passage of the 1950 Civil Defense Act and the end of the messiness of Vietnam, "little firm agreement on, or widespread understanding of, the most appropriate ways to organize either the functions of planning and preparation or the emergency operations that would be required in the event of an attack" was concluded.

Civil defense as a concept, then, has muddied the waters from the beginning of the modern era because "civil defense" has always been meant to boost public morale and mobilization, in the process mixing what is practical and mystical, what is military and what is civilian, a fuzziness accentuated in the heightened mania of the post-9/11 world.

The declaration of martial law in New Orleans probably helped to save the United States of America.

Not in 2005 during Hurricane Katrina, but in 1815, when Louisiana, barely three years young as the eighteenth state of the Union, became the final battlefield in the War of 1812. Superior British forces who were emboldened after repeatedly triumphing against militia and federal troops alike, after successfully attacking the nation's capital and torching the Capitol and the White House, and now reinforced by battle-hardened men with the end of the Napoleonic war, were headed for New Orleans. Believing that the odd mixture of whites, Creoles, and free blacks in New Orleans would prefer independence or even a return to colonial rule to staying part of the United States, the British plan was to move up the Mississippi River from the Gulf of Mexico, severing the north-south supply route and separating the west.

General Andrew Jackson—Old Hickory—arrived on December 2, 1814, to command the city's defenses. When the Louisiana legislature hesitated to suspend the writ of habeas corpus (the legal right to be brought before a judge after arrest), and fearing that they might capitulate to the British, Jackson proclaimed "strict martial law," placing all policing and civil matters under his authority. Jackson forbade the legislature to convene and ordered the governor of Louisiana to take field command of the militia in federal service. Everyone entering the city had to check in with Jackson's adjutant general, and no one was allowed to depart without his or his staff's approval. No vessels were permitted to leave the surrounding waters without approval. Streetlamps were to be extinguished at 9 p.m., and a strict curfew was imposed.

Jackson cobbled under his command the most unlikely collection: US Marines, two regiments of federal infantry, navy vessels and gunboats; Louisiana, Kentucky, Mississippi, and Tennessee militia; New Orleans riflemen and volunteers; French exiles from Napoleon's army; "free men of color" from Santo Domingo and Haiti; a company of Choctaw Indians; even pirates from Jean Lafitte's Baratarians, until then enemies of the United States but now partners in its defense. Under martial law, every able-bodied man except British subjects was called to do his duty; even the old and infirm were formed into reserve units or compelled to join the police force. Some out-of-state volunteers arrived without arms or uniforms; under martial law Jackson directed the mayor to have houses searched for arms, taxing the population to buy woolens to clothe the newcomers.

In fierce fighting from December 24 through January 8, thousands on both sides were killed and wounded. Peace between the two nations was actually negotiated in Belgium in the middle of the battle, but official word did not reach Jackson and he kept the militia and the city of New Orleans under martial law until March 12, 1815. The war now over, Louisiana state legislator Louis Louaillier questioned the continuation of martial law. Jackson would hear none of it, still wary of a British return and not completely trusting the loyalty of the local Creole population. He ordered "French subjects" to leave New Orleans. Louaillier fired back in a newspaper article: "It is high time that ... the citizens of the state should return to the full enjoyment of their rights ... we are indebted to Gen. Jackson for the preservation of our city and the defeat of the British, we do not feel much inclined ... to sacrifice any of our privileges...."

Jackson ordered Louaillier arrested on charges of inciting mutiny and disaffection in the army. A federal judge ordered him released, but the general refused. Louaillier's lawyer obtained a writ of habeas corpus, and a US District Court judge hearing the case ruled that martial law was no longer authorized. Jackson responded by having the judge arrested and jailed for his alleged complicity in aiding and abetting mutiny. Louaillier was later acquitted, the final taste of martial law coming when the court ordered Jackson to pay a $1,000 fine for contempt. Once revered, Old Hickory was now in such poor repute that the Louisiana legislature's resolution thanking the troops for their defense of New Orleans did not even mention the commanding general.

One hundred and twenty-six years later, martial law looked much the same. On December 7, 1941, after the Japanese attack on Pearl Harbor, Hawaii's territorial governor, Joseph B. Poindexter, declared martial law on the islands and suspended the writ of habeas corpus. Under Poindexter's order, approved by President Roosevelt five days later, military courts were given the power to decide cases without following the rules of evidence or sentencing laws in determining penalties. Walter C. Short, commanding general of the territorial command, issued a proclamation announcing that he was assuming the position of military governor of all of Hawaii. Around the territory's main islands, army troops took up positions, airports were occupied by the military, beaches were covered with obstacles, blackouts and curfews were extended; there was even censorship of news and mail. All courts were closed, and military personnel were authorized to arrest, try, and convict civilians in all matters of what was formerly civil law. And of course Japanese-owned businesses and publications were shut down completely; residents considered dangerous or suspicious were detained; citizens of Japanese descent were required to register. (Only the presence of over 100,000 Japanese-Americans in the Hawaiian territory stood in the way of a plan to expel them all.) The period of martial law that the governor assured everyone would only last a short time continued until October 24, 1944—three years—and Hawaii was designated a military area with limited civil law until July 11, 1945.

As in New Orleans in 1815, though, the judiciary was quick to question the extent and duration of martial law and particularly the application of military courts to civilians. In the case of Lloyd Duncan, a civilian shipfitter charged and sentenced for assaulting two military guards at the Pearl Harbor naval shipyard, the United States Supreme Court later heard his challenge under habeas corpus. The court held that extension of martial law so long after the threat of invasion ceased was intrinsically illegal; indeed, Chief Justice Harlan F. Stone stated in a concurring opinion that if the bars and restaurants could reopen within two months after the attack on Pearl Harbor, it was hard to see why the courts could not also reopen.

Martial law was declared again in New Orleans during Hurricane Katrina. Mayor C. Ray Nagin signed an executive order officially giving the city government the authority to commandeer or use any private property; to direct and compel evacuation; to suspend or limit the sale of alcoholic beverages, firearms, explosives, and combustibles. "It ... empowered us to take all necessary steps to ensure that no looting or arson occurred and it gave me the power to suspend any ordinance that was in effect," Nagin later wrote, giving power as well "to the police chief to take command and control of all law enforcement and military officers in the city."

Of course it did nothing of the sort. The mayor of New Orleans didn't have the authority to command any military officer—National Guard or federal—and no mayor can lawfully order martial law in America. Soon enough, however, the news media reported that "martial law" had indeed been declared, a tidbit picked up by watch officers at the befuddled Homeland Security Operations Center in northern Virginia, who rushed to inform the White House Situation Room. Two hours later, the watch officers came back with their tails between their legs. A law enforcement emergency had been declared, not martial law. The mayor could order closings, set curfews, and suspend liquor sales, but civil law persisted.


Excerpted from American Coup by William M. Arkin. Copyright © 2013 William M. Arkin. Excerpted by permission of Little, Brown and Company.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Meet the Author

William Arkin is one of America's premier military experts, having served in Army intelligence in West Berlin during the Cold War. Since then, he has written more than a dozen books, briefed hundreds of top military, intelligence and government officials, and been a part of countless exposés. Working for the Washington Post, he conceived and co-authored the landmark "Top Secret America" investigation, and co-wrote the national bestseller of the same name with colleague Dana Priest. He lives in Vermont.

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American Coup: How a Terrified Government Is Destroying the Constitution 5 out of 5 based on 0 ratings. 1 reviews.
Anonymous More than 1 year ago
I thought this was going to be academic or even left-liberal, but found it a surprisingly quick read, with 100 pages of notes at the end! Scary and edifying about Washington's way of looking at, not the world, but the United States.