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How Many Warnings Does Congress Need Before Protecting Itself?

It’s déjà vu all over again. In incidents strikingly similar to one just before the Reagan funeral, when a plane carrying Kentucky Gov. Ernie Fletcher (R) strayed into restricted airspace in Washington, D.C., small planes have again sparked pandemonium on Capitol Hill. Last week, a Canadian plane lost radio contact and strayed briefly into restricted airspace, causing the Senate to briefly shut down and clear out. That was after the two pilots (called “Airheads” by a New York newspaper) made Washington a mess — brought to a standstill by a seeming terrorist threat that turned out to be a false alarm. But the scare required evacuation of the Capitol and the White House, with both Speaker Dennis Hastert (R-Ill.) and Vice President Cheney hustled off to undisclosed locations. [IMGCAP(1)]

The response of the federal authorities and the Capitol Police — scurrying around yelling at people to get out of the Capitol as fast and as far away as they could — reflected an understandable edginess. But it also reflected another, inexcusable reality: More than three and a half years since the Sept. 11, 2001, terrorist attacks, with Washington, D.C., remaining a prime target for terrorists and at the top of the wish list for al Qaeda, the only plan we have in place in the event of a serious terrorist attack is a four-word plan: Run for your lives! Or maybe a five-word plan: Run for your *&$##$ lives!”

Beyond that, nothing significant has been done to make sure we have our institutions of government running in the event of a serious terrorist attack. Soon after these jolts, I attended the memorial service for Lloyd Cutler, one of the great men of Washington’s 20th century. Cutler was totally dedicated to protecting, preserving and improving our governmental institutions. When he became aware of the problems of continuity of our government after 9/11, he threw himself into the process of finding solutions. He came to the same conclusion that I and the other disparate and distinguished Americans, from former Sen. Alan Simpson (R-Wyo.) and ex-Reps. Lynn Martin (R-Ill.), Bob Michel (R-Ill.) and Tom Foley (D-Wash.), former Deputy Attorney General Jamie Gorelick and ex-Health and Human Services Secretary Donna Shalala: Congress needs a plan to provide for emergency interim appointments in the event of widespread death or incapacitation caused by a terrorist attack, so that it could be up and running with a full or nearly full representation of its membership within days.

On the Wednesday morning of the first scare, both chambers were chock full of lawmakers, official morning business was under way on the floor, committee and subcommittee were meeting, and there was the usual bevy of press conferences and other events. If the plane had been a part of a terrorist attack, managed to evade the two F-16s scrambled and had hit the Capitol Dome, we could have had a full-blown disaster — hundreds of lawmakers dead or in burn units, Congress unable to function for months without working quorums. In the chaos, the vacuum would have been filled with a form of martial law, an entirely undesirable and unacceptable result. We have learned subsequently that if the plane had been faster or more formidable than a Cessna 150, it probably would have been able to reach the Capitol without being intercepted.

When I tell average Americans about this problem, the near-universal response is, “Do something about it!” When I tell them what Congress has done in the past 44 months, the reaction is disbelief. The House dawdled for years, and then passed, in a contentious, partisan setting, a poorly drafted, poorly constructed bill simply to expedite special elections in the event of the death of a large number of Members, with no constitutional plan to deal with the possibility of widespread incapacitation. Then, the House jammed through a blatantly unconstitutional and partisan rule to allow the Speaker to redefine the meaning of “quorum,” something that a wide consensus of scholars on the left and right agree was in direct contravention of the clear constitutional language on quorums.

The Senate, wisely, has refused to pass the special election lemon, preventing it from being enacted into law. But the Senate has done almost nothing to deal with its own problems. Although the Senate could function with many deaths, since it (unlike the House) can be replenished by gubernatorial appointments in most states, it has no plan at all for incapacitation, something that became clearly possible with the anthrax attack on the Senate just after 9/11. Thanks to the leadership of Sen. John Cornyn (R-Texas), the Judiciary subcommittee on the Constitution did pass in the last Congress, in a commendably bipartisan fashion, a constitutional amendment to deal with both widespread deaths and incapacitation. Then-Judiciary Chairman Orrin Hatch (R-Utah) did nothing to move the bill through the full committee, and nothing has been done to revive the issue in this Congress.

I expect that we will see more and more examples of how vulnerable Washington generally and Congress specifically are to another attack. And I expect that we will continue to get obduracy and partisan blindness from Hastert and indifference from Majority Leader Bill Frist (R-Tenn.).

The reasons for Congressional leaders’ inaction are clear: an unwillingness to confront the possibility of their own demise, a lack of leadership, the same superstition that often accompanies the failure of individuals or couples to write wills. But these are not reasonable excuses for an inexcusable dereliction of duty. How many more bullets will we dodge — even if they are false alarms caused by errant pilots — before Congress protects itself, the Constitution and the country from a clear and present danger?

Norman Ornstein is a resident scholar at the American Enterprise Institute.

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