Terrorist Attacks and National Emergencies Act Declarations
Released: 2005-01-07T00:00:00

RS21017 -- Terrorist Attacks and National Emergencies Act Declarations

Updated January 7, 2005

The National Emergencies Act

As early as July 1974, the special committee had unanimously recommended legislation establishing a procedure for presidentialdeclaration and congressional regulation of a national emergency. Introduced in the Senate the following month,the measure, afternegotiation with the executive branch and further refinement, was cleared for President Gerald Ford's signature onSeptember 14,1976. (5)

As enacted, the National Emergencies Act consisted of five titles. The first of these generally returned all standby statutorydelegations of emergency power, activated by an outstanding declaration of national emergency, to a dormant statetwo years after thestatute's approval. However, the act did not cancel outstanding 1933, 1950, 1970, and 1971 national emergencyproclamations,because these were issued by the President pursuant to his Article II constitutional authority. Nevertheless, it didrender themineffective by returning to dormancy the statutory authorities they had activated, thereby necessitating a newdeclaration to activatestandby statutory emergency authorities.

Title II provided a procedure for future declarations of national emergency by the President and prescribed arrangements for theircongressional regulation. The statute established an exclusive means for declaring a national emergency. Furthermore, emergencydeclarations were to terminate automatically after one year unless formally continued for another year by thePresident, but could beterminated earlier by either the President or Congress. Originally, the prescribed method for congressionaltermination of a declarednational emergency was a concurrent resolution adopted by both houses of Congress. This type of so-called"legislative veto" waseffectively invalidated by the Supreme Court in 1983. (6) The National Emergencies Act was amended in 1985 to substitute a jointresolution as the vehicle for rescinding a national emergency declaration. (7)

When declaring a national emergency, the President must indicate, according to Title III, the powers and authorities being activated torespond to the exigency at hand. A recent CRS compilation identifies almost 160 provisions of law that may beactivated by anemergency proclamation. (8) They include authorityto prosecute and punish anyone who willfully makes or conspires to makedefective war material (18 U.S.C. 2154), to waive the written application requirement for radio station licenses andrenewals (47U.S.C. 308), to release national defense stockpile materials (50 U.S.C. 98f(a)(2)), to control vessels in territorialwaters (50 U.S.C.191), and to regulate or prohibit any transactions in foreign exchange, bank transfers of credit or payments involvingany interest ofany foreign country or a national thereof, or transactions involving any property in which any foreign country or anational thereof hasany interest (50 U.S.C. 1702).

Certain presidential accountability and reporting requirements regarding national emergency declarations were specified in Title IV,and the repeal and continuation of various statutory provisions delegating emergency powers was accomplished inTitle V.

Initial use of the act occurred in November 1979 in response to the U.S. embassy being seized and its personnel being taken hostagein Tehran, Iran. The proclaimed national emergency activated authority for the seizure of Iranian governmentproperty, includingassets, and prohibition of economic transactions with Iran. Such national emergency actions were also subsequentlytaken againstNicaragua, South Africa, Libya, Panama, Iraq, Haiti, Serbia, Montenegro, Bosnia, Herzegovina, Burma, and Sudan. On severaloccasions since 1983, when the Export Administration Act of 1979 automatically expired and awaitedreauthorization, nationalemergencies were declared to activate authority by which to continue the operative status of the statute's exportcontrol regulations. To date, over 30 national emergencies have been declared pursuant to the National Emergencies Act, and about adozen of these havebeen subsequently terminated. (9)

Responding to Terrorist Attacks

Prior to the September 14, 2001, national emergency declaration of President George W. Bush in response to terrorist attacks in NewYork City and Washington, D.C., President William Clinton had declared a January 1995 national emergencyrelative to prohibitingtransactions with terrorists who threaten to disrupt the Middle East peace process. Such transactions includedassisting in,sponsoring, or providing financial, material, or technological support for, or services in support of, acts of violenceby terrorists.

In his national emergency declaration, President Bush did not activate, as one newspaper erroneously reported, "some 500 dormantlegal provisions, including those allowing him to impose censorship and martial law." (10) Instead, his declaration, in accordance withthe requirements of the National Emergencies Act, selectively activated the following statutory authorities, whichwere specified inthe President's national emergency 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 law relating to the promotion,involuntaryretirement, or separation of commissioned officers of the Army, Navy, Air Force, Marine Corps, or Coast GuardReserve.

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-strength limitation with respect to thatfiscal yearprescribed by law for any military or civilian component 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 sections of Title 10, United StatesCode, concerningthe authorized strength of commissioned officers on active duty in senior grades, the distribution of commissionedofficers on activeduty in general officer or flag officer grades, and the authorized strength of commissioned officers on active dutyin general officer orflag officer grades.

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 beyond the number for whichfunds have beenappropriated 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 sections of Title 10, United StatesCode, concerningthe authorized strengths of armed forces reserve commissioned officers in an active status, reserve general and flagofficers in anactive status, and filling senior Army and Air Force Reserve commissioned officer vacancies.

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 to active 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 list to 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. 13223 of September 14, 2001. (11)

On September 23, 2001, President Bush again declared a national emergency, invoked the International Emergency Economic PowersAct (IEEPA), (12) and ordered its implementationto block property and prohibit transactions with persons who commit, threaten tocommit, or support terrorism. (13) The IEEPAauthorizes the President to regulate or prohibit any transactions in foreign exchange,bank transfers of credit or payments involving any interest of any foreign country or a national thereof, ortransactions involving anyproperty in which any foreign country or a national thereof has any interest. Earlier, President Clinton had declareda nationalemergency and invoked the IEEPA to prohibit transactions with terrorists who threatened to disrupt the Middle Eastpeace process. (14)

On November 16, 2001, President Bush, pursuant to his September 14 declaration of a national emergency, issued E.O. 13235invoking the emergency construction authority and making it available for implementation by the Secretary ofDefense and, at theSecretary's discretion, to the secretaries of the military departments. (15) This authority, found at 10 U.S.C. 2808, authorizes theSecretary of Defense, in time of declared war or national emergency declared by the President, and without regardto any otherprovision of law, to undertake military construction projects and to authorize the secretaries of the militarydepartments to undertakesuch construction projects, not otherwise authorized by law, as are necessary to support use of the armed forces. Such constructionprojects may be undertaken only within the total amount of funds that have been appropriated for militaryconstruction, includingfunds appropriated for family housing, that have not been obligated.

With E.O. 13253 of January 16, 2002, President Bush amended E.O. 13223, which ordered the Ready Reserve to active duty. Theamendments extended certain authorities to the Secretary of Transportation relative to Coast Guard personnel. (16)

Intervention in Iraq

Growing out of U.S. intervention in Iraq, which has been justified, in part, by the Bush Administration as an action against al Qaedalocated there and a regime tied to and harboring such terrorists, President Bush issued E.O. 13303 of May 22, 2003,declaring anational emergency for purposes of protecting the development fund for Iraq and certain other property in whichIraq has aninterest. (17) A primary authority activated in thisregard is the International Emergency Economic Powers Act. This emergencydeclaration was designed to protect property and interests in property apart from protections emanating from anearlier emergencydeclaration made with E.O. 12722 of August 2, 1990.

On December 17, 2003, President Bush, pursuant to his national emergency declaration of September 14, 2001, issued E.O. 13321invoking 10 U.S.C. 603, which authorizes the President to appoint qualified persons to any officer grade in thearmed forces. (18) Thisauthority was made available to the Secretary of Defense in accordance with the terms of the statutory provision andE.O. 12396concerning defense officer personnel management. (19)

Further actions by the President pursuant to his September 14 and 23, 2001, national emergency declarations, and the issuance ofadditional such declarations concerning terrorism, will be chronicled in this report as they occur.