starting with a transition project and continuing now to this continuity of government. so i'm delighted to be here and delighted to have three members of the continuity of government commission here to segue a bit from what's the problem, what is to be done to focusing a bit, if not exclusively on how in the world to do it. norm, i think, mentioned that it's been eight years since 9/11. it was hours after the attack that the concern about continuity first arose in the mind of norm and brian baird and some others, efforts were begun almost immediately and yet over

the years relatively little has happened and what has happened in congress, i would argue is -- has been perhaps at best neutral, having no impact and at worse, more harm than good. martin frost knows well the obstacles on capitol hill having listened to the concerns of some members of congress that it would be a travesty of the constitution and of our system of constitutional government to allow for any temporary appointments to the house of representatives violating the notion that anyone who enters the body has been elected by their constituents and further

making the argument of the distinctive difference between the house and the senate, although, it seems to not take into account a constitutional amendment that provided for the direct election of senators, but that's another story. there also is, of course, the sort of continuing problem of how in the world do you remove the speaker of the house and the president pro tem in the line of succession without implicitly criticizing or diminishing them and, therefore, setting up political obstacles that seem to be insurmountable in getting anything actually accomplished. so our task in this panel in part at least is to -- is to

look back and look ahead to simply ask the question, one, are we right? have we got a rough sense of the seriousness of the problems and the ways to deal with it in a statutory sense with respect to presidential succession but perhaps in a constitutional amendment sense to encompass the broader issues that include the congress. and if so, how do we make the months and the years ahead more productive than the ones since 9/11. that's our task. we have a wonderful group of àthank you all for coming to join us again. we're going to proceed in the order in which they're listed in the program. martin frost now an attorney,

but we know him as a long time influential member of the house of representatives, chairman of the -- of the caucus, ranking member on the rules committee, a dean of the texas delegation, a very important and constructive member of congress who actually was involved in many of the discussions after 9/11 about what to do on the continuity front. jamie ganelli has served in numerous capacities of in government as deputy attorney general, as general counsel of the department of defense, a

member of the 9/11 commission. it goes on and on. jim immediately to my right who is the solicitor general of the state of texas has managed to practice as well in all three branches of the federal government. as a clerk in the appellate courts, including serving -- working for justice clarence thomas in the supreme court on the executive side on the department of justice and on capitol hill in the senate working for senator john cornyn and deeply involved in continuity issues in both the congress and in the presidency

and finally, my dear colleague, norman ornstein who was present at the creation of the contemporary efforts to deal responsibly with the continuity issue. martin, why don't you kick us off. >> well, thank you. and i had the interesting task of being cochair of a special task force that the congressional leadership set up on this subject after 9/11. and y'all, of course, both participated in that. and i have some observations from having been through that experience. first of all, the first thing that this commission or anyone has to do is to convince the congressional leadership, bipartisan, bicameral that this is something worth spending their time on and the frustration we had is that the leadership of neither party of neither house felt that this was an important issue and so we could not convince the

democratic leadership or the republican leadership to really invest any capital in trying to address this problem. now y'all got to figure out how you go to the -- you have different leaders now than you did right after 9/11 and how you convinced the current speaker and the current majority leader and the current minority leaders that this really should be dealt with. the biggest obstacle in the house was that you had a very stubborn chairman of the judiciary committee, my friend, jim sensenbrenner who would not cooperate. and he had his own reasons he felt his view of the constitution and you didn't have the leadership to say mr. chairman we really have to do this, you know, we have to figure this out. they wouldn't pick a fight with jim sensenbrenner and nothing would happen. and specifically on a couple of issues, he was against large

members of congress who were killed. and interim appointments and going to what was discussed at the beginning, the question that the only way anyone ever has served in the house of representatives is buy election. of course, this is all a historical accident that senators can be appointed when a senator dies and house members can. the reason senator members were initially appointed in the first part of our history and only became elected later and so you had a tradition of appointing united states senators but not a tradition of house members. somehow you have to overcome that and the united states has to be amended so that if large numbers of the house are killed, are permanently incapacitated that they can be replaced by appointments by their governors of their states. it's the only thing that makes any sense. secondly, on the question of congressional succession, i don't support taking congressional leaders out of the line of succession.

first of all, you probably won't get anything passed if you take them out. secondly, i think it makes good sense to have congressional leaders in the line of succession. they've dealt with a wide range of issues in their current positions. most of them -- you don't get to be a leader in congress without having served many years in the legislative branch. i do think there's a technical issue you could very easily address that is recommended in the report that you designate the majority leader as president pro tem so you don't have a situation with an aging president pro tem -- i don't remember carl hayden sitting behind lyndon johnson after -- when johnson took over the presidency, and you had mccormick and hayden as the two people sitting behind the president when he was giving -- speaking to a joint session of congress and it sent chills through everybody. so you should -- clearly, the majority should be in the line of succession and he's not an officer of the -- official

officer of the senate so you make him an official officer by changing the rules and make him a president pro tem. that's a relatively minor fix. i have a mixed view in terms of designating people outside of d.c. i can understand why that's necessary. my preference would be to continue to have the cabinet be in the line of succession, though, you should reorder the priorities of the cabinet members. it shouldn't just be an accident in terms of the creation, the time that the cabinet position was created. there are good reasons to put the secretary of homeland security fairly high up, maybe not in the top four but maybe at the fifth or sixth. and the real problem here is that you do have different individuals, different personalities, different backgrounds in the cabinet and i don't know if you could reorder -- have some procedure where you would reorder this at

the beginning of each term. clearly, the fact that you have two governors in the cabinet right now, governor sebelius and governor napolitano who are very low in the line of succession but it would make sense if you were going to have this proceed through the cabinet to have them higher in the line of succession than they currently are. the difficulty clearly in our commission that i worked on early on -- clearly, initially identified this bumping procedure where a subsequently elected speaker could replace someone who had been sworn in as president, that has to be changed. that simply cannot be permitted to stand. once someone becomes president in the line of succession, they should continue holding that office until the next election. they shouldn't be bumped by someone elected by the speaker who's died. these are all very constructive things. we ought to come up with some solutions that make sense but

unless this group or others can convince the congressional leadership that this is an important thing that needs to be dealt with, it's never going to happen. you would think that right after 9/11 that you would have had the attention of the congressional leadership but that did not turn out to be the case and the problem is that congressional leaders are awfully busy trying to enact the president's agenda if they happen to be of the same party of the president or fighting the president's jeeb n in -- agenda if they are in an opposite party and i don't know how you make this into a priority item but somehow -- the country has to convince the people who control the levels of power in congress that action needs to be taken on this. i'll be glad to stop and comment on what other people have to say. >> martin, thank you very much. jamie? >> well, let me pick up where martin left off and my answer to the question what will prompt

congressional leaders to take on this issue is another event. you know, we just have short memories here in this country and we move on to the next issue and we're just not focusing on or remembering the lessons of our experience of 9/11. so i'd like to just echo a couple of points that were made in the earlier panel and by martin and give some examples of issues that i think we really need to take account of. akhil and others made the point that we need to have a debate and we need to have a plan and we need to have it ratified so it is legitimate. one of the ways that you deal with the threat of terror is to take out the terrifying consequence or to minimize the terrifying consequence. one of the terrifying consequences is chaos. and if you have an agreed-upon

and legitimately held order, you diminish the power of terrorism itself. and we can see that in the planning for wmd events and we should see it here in planning for succession in leadership. i want to underscore the importance of a sense of legitimacy. this issue is brought home to me in one of our staff reports leading up to the ultimate 9/11 commission report. in that report, we discussed the reaction in the white house post-9/11. it was one of our last reports, and the way in which the commission worked was that the staff would develop a review of the facts and present that view to the commission as a prelude to witnesses that we would hear in the hearings. and for this particular report, the staff among other things

looked at the conduct of the vice president and others who were in the white house on the day of the 9/11, their communications with the president, how orders were given, how orders were received and we also look among other things at the desire on the part of some to look at whether saddam hussein had been to blame for 9/11 and participated. so the staff report had many issues but many of them -- one of them was this issue of the immediate aftermath and the staff -- the staff's factual layout appeared to suggest pretty strongly that the vice president had given shoot-down orders without having first cleared those orders with the president. and another issue -- another set of factual findings that the staff surfaced was that there

was no intelligence linking saddam hussein to the events of 9/11. as a matter of practice, we vetted our staff reports with the white house before presenting them for the purposes of clearing any classified information but it was always the case that the white house would then also take the opportunity to give us comments on various elements of the reports and they basically had not said much about the connection of saddam hussein and 9/11 or the lack thereof which was kind of stunning to me, very surprising to me that of these two issues it would choose the former rather than the latter. i should note that after the

hear when the press announced the saddam hussein finding, the white house was much more active on that. but it drove home to me how sensitive we are about who position the right to exercise what authority. i would have thought myself that it was a good thing that the vice president felt free to give a shoot-down order in an emergency circumstance when the president -- when communications with the president were not as good as they should and there was enormous sensitively around this issue. we'll never know what happens. the board lays out the facts as it does and i'm not here to rehearse that but simply to remind you of how sensitive people are about who has what authority and, thus, the importance of really landing this issue after as martin says a public debate.

the second a little bit of color i would like to lay out for you as a predicate to thinking about this report are the human factors that you can see playing out in an emergency and particularly the emergency of 9/11. and the first factor is just how human human beings are. we had elaborate plans. we're taking members of congress and particularly the leadership out of places of danger into places of safety so that we would have continuity of government. i can't tell you how many members of congress and senators would not go. why? because they wanted to see if their families were okay. they wanted to be with their families. that's a completely human and understandable response, utterly ignored in our planning.

the second point i would make is that you cannot underestimate the fog of war which is why you have to have blistering clarity about what's going to happen. rememb rudy gilani put his command center at the base of the world trade center and it collapsed. the building in which it was collapsed. second, the secretary of defense is directly in the chain of command. in an emergency like we had on 9/11. and yet secretary rumsfeld did not come to the command center until all the planes were down. until the entire event was long over. at first he thought he didn't need to come. that it would be handled in the

ordinary course. and then when the plane hit the pentagon, he went out to help. again, a very human instinct but indeed we had no phone call, not the faa's call, not the nsc's call, not the pentagon's call were all the relevant players were on the phone. you had an faa call with the faa folks and dod call with the dod folks. nobody had the secretary of defense. and only some of them were plugged into the vice president. so having -- having real clarity is very important and making sure that we have all joined hands around that clarity is critical for a sense of legitimate si. -- legitimacy. let me make a couple of comments on some of the debates we had here, do we have individuals in

the line of succession who were outside of washington? i think we can't trivialize the possibility that washington is not functioning. and we just to have come to grips with that. now, you can send a cabinet member out of town and have a schedule and do it that way. you could. and then the question is, how far down in that cabinet do you go to make sure you have the right expertise and executive authority to be viewed as a legitimate leader if you are the one that is out of town. reminding you that our cabinet is now huge. it barely fits around the cabinet table because so many people have negotiated for cabinet status that it is a highly watered-down credential, i would say.

the second is the issue of acting secretaries. and i would just make the comment that not everybody deputy is nick katzenbach we have several people who could be skilled secretaries i say this as one of the deputies in the four agencies that would be in that chain, you know, it would -- it would have given me no end of pleasure to be in the line of presidential succession but nevertheless, i certainly pause over the notion that we should include all acting secretaries. >> thank you, jamie. jim? >> well, i want to begin by thanking both the american enterprise institute and the brookings institution for establishing the commission and for putting together today's event. we've heard a lot of talk this morning about the founding fathers. i think it's fair to say that the combination of norm orstein

and tom mann and john fortier there are part of this continuity government that is so important and i'm glad to be here and with my very distinguished copanelists. this is a very strong report that the commission has issued today. and i would really commend everyone who has a chance to read it, both in the room and if you have a hard copy or i think it's on the website or soon to be on the website -- it's a very easy read. it actually opens with a very stirring, dramatic narrative that to me reads kind of like a seasoned synopsis of the television show "24." i flew here from texas expecting to get a chance to meet kiefer sutherland who i assumed might be keynoting the event. but it is a very important report and the substance of the report, of course, is what we're really focusing on today. these are very real issues that we face including some very

frighteningly real nightmare scenarios and i think it's clear we need reform and i'm glad we had that first panel to really focus on some of these reform issues. i want to focus my remarks kind of following up on my predecessors here on this panel because what i found particularly striking about the report -- even once you set aside the substantive issues and what i found striking and even perhaps alarming about the report is seeing just how often throughout our nation's history congress has seemed to make some of these changes to the presidential succession statute based at least as much about politics as principle. and i think that's what congressman frost was trying to remind us today. we saw this, in fact, in the very first act in our nation's history. the very first time we dealt with presidential succession. during the second congress we sought to exclude cabinet officers from that line of succession and this effort was essentially led as i understand

by opponents of thomas jefferson, our first secretary of state. and so i do want to focus my time here on some of the political realities and constraints that, unfortunately, we have to deal with because otherwise they may stand in the way of wise reform. and it's hard enough as we talked about especially as time passes -- it's hard enough to get folks to pay attention to this issue at all. and yet when we do get folks' attention it's even then in that remote situation, it's hard to get past the politics and on to the principle. i recall during my time working for senator cornyn we decided well, let's working with the commission folks we wanted to start with maybe some sort of modest incremental steps, try to make some bite size changes and try to maybe build some momentum for the cause and so we began with what we frankly thought was a straightforward, easy sell, a nonbinding sense of the senate resolution, a resolution that

would simply encourage every outgoing president to nominate and with the senate's consent to appoint all the cabinet members of the incoming president and to do so before inauguration, not right after with the incoming president doing it but having the outgoing president doing it before and that way what you would have is in the event of a tragic inauguration day catastrophe, terrorist attack at least you would have all of your cabinet successors being of the new administration, not the old one to avoid some of the party disruption that akhil amir. there would be an attempt to launch an inauguration day attack to overturn the effects of an election. we thought it was a nonbinding election and we in senator cornyn's office put this forth and came up with what we thought was a very creative name for the

protocol. we called it the cornyn protocol. unfortunately, the cornyn protocol was never approved by the senate. and i know what some of you may be thinking. it must have been a partisan democrat who stopped senator cornyn his moment of glory. wrong. we learned it was senator ted stevens who placed the hold that prevented our fine resolution from being approved by the senate by unanimous consent. now, why would he do that? we never actually got an official response. they never returned my calls, frankly. but i later learned from a staffer that the office essentially feared that this was really step one in a larger ambition to remove the senate president pro tem from the line of succession. now, of course, we did have to plead guilty to that charge. i know we've had some very robust debate on this issue. i think it was our view that the presence of congressional leadership in the presidential

line of succession is arguably probably constitutional and in our view certainly unwise. but what struck me most about this development was this. you know, it seems highly unlikely and certainly we hope it would be extremely unlikely that a speaker or a senate president pro tem would ever actually succeed to the presidency, at least outside of an episode of the "west wing." everyone knows that. and we hope that would be an unlikely occurrence. but the fact is, just the mere fact of being a member of the line of succession, that is a valuable, prestigious thing, a credential that people may be understandably proud of as we just heard and so, therefore, because it's perhaps valuable, it's a source for robust political jockeying. we saw this also in the debate over where to place the secretary of homeland security in the line of succession. you can certainly imagine a good argument that you should place dhs somewhere in the middle or even high up in the line of succession.

it's the fact that it's a sensitive, national security position and also the fact that dhs really isn't a completely new department. it's really a reassembling of parts of established departments. at the end the pressures were too great and dhs comes after veterans affairs so we have to deal with the political constraints. i could not agree more with the congressman that we have some wise reforms here the real question is how do we get them done? unfortunately, i don't have any grand solutions to offer. mainly, i just want to try to focus attention on this concern because i think that the commission really does have it right on the policy and it's a matter of figuring out the implementation. ..