>> the planning for continuity of operations that surround these issues. so let me introduce our panelists. i'll start with our panelists in

absentia and i want to make sure he's here. is akhil amar here. >> thank you, john. >> akhil is the sterling professor of law and political science at yale university. he teaches both at yale law school and at the college and was a clerk for steven breyer and the first circuit before coming to yale. he's author of several constitutional books, one on the bill of rights and one on the constitution, just the first the bill of rights creation and reconstruction and most recently america's constitution a biography. he's also an author of numerous articles and has testified in congress very strongly on this question of presidential succession and is as i said with james madison which i believe and the commission believes is correct. having congressional leaders in the line have succession is

unconstitutional. john feerick to my right has several important lines in his biography and he has something all of us wish we had. he has worked on these issues but he has also been a driving force behind an actual amendment in the constitution that addresses these matters. john worked very closely with senator birch bayh in getting the 25th amendment passed and that's a great clarification in the way the president -- the succession may take over -- successors may take over for presidents in times of incapacity and a vice president may be replaced. a new vice president may be confirmed and that, of course, we have seen in practice twice in very important ways in the 1970s. he's also the author of several books one more generally on presidential succession and a

very important book about the 25th amendment itself. he's been the dean of ford ham law and professor of law and teaches courses on the constitution there and he's working on and coming out with a follow-up book; is that correct? >> an update. >> an update of the 25th amendment book as well in the next year or so. turn third to jim mann who is the -- is an author in residence at sais at johns hopkins. he has been a journalist at the "los angeles times" serving in beijing, working national security issues and the author of a couple of important books. the most recent one "the rebellion of ronald reagan: a history of cold war" out in 2009. probably still looking good for, you know, early christmas gifts and stocking stuffers and also importantly the rise of the

vulcans and in that book as well as some other books he really does look at some of these continuity exercises that we have conducted over the years and those exercises work very closely with some of these legal and constitutional provisions that we talk about in the report. so what i'd like to do -- in that order turn to each of the three of them. then have some real discussion on the panel and then open it up to the general audience for some questions. so i'm going to turn it to akhil. >> thank you, john. can you all hear me? >> yes. >> wonderful. so as john mentioned this is itself an illustration of the idea that one can in principle be in the loop even if one is not in the district. so i can be part of this conversation and you can listen to me. i can listen to you and yet we are geographically apart and that's part of the idea of the presidential succession's report

is that we should have at least one has perhaps more than one person in the loop, in the line of succession knowing in real time what's happening on policy matters but not in the district itself should a mishap occur. before i go further, i do want to just express my deep gratitude to john fortier and to the commission in general for including me in this event. it's a special honor to be on the panel from john feerick whom i learned very much who's really the dean of this issue in more ways than one and tom mann, who's been a driving force on these matters. i just want to say a couple of things and then listen to the rest of you all and i look forward to a conversation. there are lots of policy reasons to remove congressional leaders

from the line of succession, the problem of party discontinuity. america votes for a republican president like ronald reagan or george bush and ends up instead with tip o'neill or a nancy pelosi or vice versa votes or votes for a democratic president and ends up with newt gingrich. these things aren't totally random. it's actually a temptation for somebody to affect massive regime change if that person knows by wiping out the president and vice president policy could shift decisively from one political party to another, really undermining what the american people thought they were voting for. when they voted for a president and that's not just a hypothetical. that's happened in american history even sometimes with balanced tickets between

presidents and vice presidents. you can affect a certain kind of regime change if you shift presidential power from abraham lincoln to andrew johnson or from one branch of the -- as john wilkes booth did or from one branch of the republican party, james garfield, to a different branch, chester arthur. when garfield was assassinated, he says i'm a stalwart and arthur will be president and in his pocket is a letter addressed to president arthur with suggestions who should be in arthur's cabinet. so this possibility of a shift from one political party to another in a crisis from martin sheen to john goodman for those of you who are west wing fans is a real one. it's a considerable policy concern. there are other policy

considerations about the seamlessness of transition in cases of temporary disability. can a congressional leader easily step in just for a brief period. when that brief period would require resignation from the speakership and from the house of representatives? so those are -- there are many policy considerations, i think, that counsel in favor of removing congress leaders from a line of succession. i just wanted to highlight a couple of constitutional considerations that re-enforce those policy considerations. james madison thought that putting congressional leaders in the line of succession was unconstitutional. maybe you don't think he was right, you know, although he was james madison. but even if there's any doubt, whatsoever, in your mind about

the correctness of james madison's proposition, i think just the mere existence of doubt, strong doubt, reasonable doubt, the fact that there are many thoughtful people, whether they all agree with madison, they at least think that madison a pretty good point, a pretty strong point even in the end they might be unsure that that in and of itself is a reason to remove congressionalees because we don't have any question even if it's not litigated but in public mind about the legitimacy of a transfer of power. we're talking about scenarios by hypothesis where the nation is in extremist where both the elected branch officials are for one or another out of action. could it be precipitated by a terrorist event or a national event? the country is reeling. the world is uncertain. markets are the precipice

perhaps of severe collapse because of massive uncertainty. someone steps forward and then the next story -- in the following days blogs and papers is, there's some question about the legitimacy of this transfer of power because there is a real argument that this statute is unconstitutional. that is very much to be avoided. second point, a constitutional point, whatever constitutional arguments james madison made, and he made many good ones, it seems to me, there are additional constitutional considerations arising after the 25th amendment where so many were so influential getting passed so the current presidential succession law which was adopted in 1947, even

if you thought appropriately disregarded the views of james madison in the original constitutional vision, the 1947 law did not indeed could not have really thought about how it would fit or not fit with a subsequent constitutional amendment adopted in the wake of president kennedy's assassination, the 25th amendment. there's various aspects of that 25th amendment that seems very much in tension with the current statutory regime of congressional people in the line of succession. let me mention a couple of things and i'll turn it back over to my fellow panelists. the 25th amendment is designed in large part preserve a kind of party continuity. you vote for one party for president and that's in theory what ideally you're going to get for the next four years. you vote for richard nixon and if you don't get richard nixon you get spiro agnew and if

something happens to him, you get someone who nixon picks and that's gerald ford and if something happens to ford, you get someone who ford picks and that's nelson rockefeller. this is what the 25th amendment provides, an apostolic linear succession from the president who has the mandate and did constitutionally way. you get republican policies for four years in the white house or for democratic presidents, four years of democratic policies. and that vision of the 25 amendment is most consistent with cabinet succession where you're getting someone really the elected -- the duly elected president hand-picked or someone who follows in that line. what's you get in cabinet succession. you do not get that with congressional succession. so if the president or vice president die or disabled

sequentially you're going to get party continuity but if they are taken out of action at the same time you get massive discontinuity in vision with the 25th amendment. the 25th amendment envisions a regime in which presidents are -- when the vice-presidency becomes vacant because the president is dead and the vice president steps up or the vice president has died or resigned, when you have a vacant vice-presidency, the 25th amendment vacancy can be filled by a presidential nomination and i think its spirit envision contemplate a pretty smooth and speedy confirmation of the new vice presidential nominee but the current succession statute gives the congressional party, if it's different from the presidential party, incentive to drag its heels and delay the confirmation of a successor

because if something happens in that window the congressional leaders, the other parties are going to be -- gain the white house even though they didn't win it at the last presidential election and that creates bad political incentives. incentives that you think are intentioned with the 25th amendment of a smooth-filling presidential vacancy. the 25th amendment theme which is inconsistent it seems to me is one under section 3 under the 25th amendment where in the event -- even a temporary presidential disabilities, a president going -- undergoing an operation or having some sort of illness that he's expected to -- or she's expected to recover from is a smooth transition to power back and forth between presidents and vice presidents. being able to hand off presidential power and it get handed back smoothly when the disability has ended.

that can't happen with presidential succession because someone can't be both speaker of the house and the member of congress on the one hand and the acting president of the united states, the current statute requires and i think properly so constitutionally requires the congressional leaders if they're going to step up to become acting presidents, have to step down from their positions in congress but that creates real difficulty if it's just a temporary transition. john goodman and the west wing episode have to give up his congressional position without knowing whether martin sheen's disability is going to be short or long. that is not a problem. the smooth transition back and forth can easily happen with a cabinet officer because a sensible new statute does not -- need not require that the cabinet officer give up his cabinet position even as she or he steps up to wield temporary

power in a temporary disability situation. they can be secretary of state and acting president and when the disability is eliminated they can go back to secretary of state. it's much smoother and more seamless. so again even if you don't think -- if you're not persuaded that james madison was absolutely correct, even if you think it's pretty plausible to think that he got it right, that's the reason, i think, for change in the statute and the second set of reasons even if you think the congress made the right call in 1947, a subsequent constitutional amendment, the 25th amendment is really in tension in many ways with the current statutory regime of congressional leaders in the line of succession and with that, i thank you very much and look forward to hearing my colleagues. >> thank you, akhil. i'm going to turn to john feerick. if i could add one anecdote. he mentioned a question of a party in congress perhaps dragging its feet not to appoint

a vice president to fill a vacancy. well, i have in my files some transition memos for the carl albert presidency. and those transition memos were written by ted sorenson at the request of some members of the democratic congress who at the time saw spiro agnew had left the vice-presidency. there was some thought that they could delay on gerald ford. richard nixon was near to being on the ropes and perhaps the democrats, carl albert being the speaker of the house could take the presidency himself and there were some very details thinkings of how to present the new presidency to the american people. i think as akhil's point is, this is not a good incentive, one if it was time to remove richard nixon, one might have gone down the line to the secretary of state and others in the cabinet of the nixon administration but you wouldn't have had the parts to take over in that case, not fulfilled but envisioned by some measures.

so i'm going to turn to john feerick. >> excuse me. thank you for the invitation to comment on your report on presidential succession. let me say that the continuity of government commission plays an exceedingly important role in studying and calling attention to and making recommendations on subjects bearing on continuity and government. the report issued today highlights problems that predate september 11, 2001, but have come in to sharper focus because of that tragic event in american history. another tragedy the assassination of president kennedy revealed flaws in the system also then not new but that event led to its -- to a major step forward with the adoption of the 25th amendment. looking broadly at our system of presidential successtion, i believe our constitutional and statutetorial precedence has done a good job in protecting

the american people in crises but we need to study them that they are as good as they can had been the federalists said that a primary end of civil society is the safety and security of the people. without which our liberties are unable to flourish. a system of presidential succession, i suggest, has served us well in providing such safety and security. it has enabled us to move forward even in the most dramatic of circumstances such as the death of a president or resignations of an elected president and vice president. what should we expect of a system of presidential succession it might be asked? some features that are important to me are providing stability and order in the transition of power, allowing for the continuity of government and respecting in its functioning constitutional principles that people must understand our system and have confidence in its elements and application. the report issued today is

impressive in scope and detail. in a relatively brief document it provides an important overview of the history and provisions on presidential succession. it identifies major problems and proposes reasonable if not in some respects creative measures to address these problems. i make these comments and offer these observations concerning the recommendations contained in this report. the removal of the legislative leaders from a line of succession as a policy matter is long overdo in my humble opinion. the principal reason as i see it it's not that they can't do a job but allow a continuity of power and administration in a time of crisis. a quick shift in party control of the government as the report notes is not likely to promote stability and order. there exists as well legal issues and you've heard about

those issues from professor amar associated with whether legislative leaders or officers within the contemplation of the constitution and, therefore, eligible for succession roles given a long history with the legislative leaders being in the line of succession, however, i would accept these legal risk if i thought the policy reasons were not compelling as i do. this is because the constitution is not without its ambiguities in the analysis of the officer question. and i'd also note contextually at the time the constitution was adopted the idea of a legislative officer and i put a quote around officer coming to the center of power after the removal of a governor and -- lieutenant governor or deputy governor, if one were to look at succession of the colonies or look at succession as reflected in the early state constitutions with respect to those states

that elected governors, you would see that a legislative person emerging after the demise of the governor if that be the case or the deputy governor be the case was not out of the understanding of the framers of the constitution. i just note contextually but as i say, i think the thrust of this report and the emphasis of professor amar correctly gave to a policy in and i have itself i think strongly urges for the adoption of the recommendations set forth in this report. the idea of adding to the line of succession those from outside of washington has merit and appeal. as i noted in my own writing 45 years ago. i wonder, however, whether it is wise to reduce the number of

cabinet members in the line to four as suggested in the report. i suggest that the very scenarios in the report make a case for a longer line of succession and, therefore, the continuation of all the cabinet members in the line of succession. this would be in keeping with history and consistent with the use of the entire cabinet in the determination of presidential inability under the 25th amendment. the recommendation in the report is certainly correct that the 1947 statute needs to be clarified as to whether or not acting secretaries are included in the line of succession assuming the current line is maintained. i can go either way on this one influenced in part by the reaching the 25th amendment including acting secretaries where there might not be a head of department in the determination of presidential ability. i note unless your report that acting secretaries may be

serving as the heads of departments inpre prpr prpre -- preinauguration. this makes even more important the recommendations of the report as to facilitating the aappointment of the new cabinet. under the succession act of 1947 and not deal with the preinauguration period along the lines of this report could be imprudent. reducing the time period between the casting of electoral votes and a formal declaration of congress is right but i have two observations. is it necessary to have more than a few days between the two events in order to handle any resulting court litigation that would flow from the votes of electors and even when we're in

the flow of the electoral college area, should we do more in the electoral college where we can have popular vote elocalors and sanction a challenge by congress of an antique one state-one vote formula, of course, i realize the mandate of the commission may not reach that far. the recommendation of a special election is intriguing but raises questions for further consideration such as whether an election in five months under an electoral college and political party system would actually work is too soon and stabilizing enough in that election cycle would be over another election signing -- would be back. basically, i'm suggesting that where there is no president and vice president, within the first

two years of a presidential term, leaving the system exactly where it is at the present time rather than moving toward a system of a special presidential election but if one were to move toward a system of a special presidential election at that point, there is an issue, maybe a constitutional issue, certainly those in 1886 that put the cabinet in the succession law thought there was an issue as the duration of a presidential's term flowing from such a special election. the members of congress that debated the cabinet line of succession and put it into the succession law in 1886 removing the president pro tem and speaker from the then-law, the law of 1792, thought that a special election would have to respect the four-year term of

the constitution. i just would note that issue but i think the recommendation is an interesting recommendation. it should be out there as it will be for discussion and consideration, but i do think there are a lot of issues with the -- that particular question of whether or not to have a special election. i find interesting the recommendations contained in the report and presidential incapacity. the suggestion of using the other body provision of section 4 of the 25th amendment as a contingency of sorts if the cabinet were unavailable through death or incapacity appears to me at least to allow for the existence of two bodies existing at the same time, even though different purposes. i reserve my own judgment on that one as to consistency with

the language and history of the other body provision of the 25th amendment. the report is correct to note, however, that the other body provision of section 4 of the amendment allows for the replacement of the cabinet as the determinant body in the case of inability. the suggestion of congress providing guidance to lower officials in a line of succession who have to deal with presidential inabilities is understandable. but i'm not sure how far congress can go under provisions of article 2 and the 20th amendment that allow for the appointment of officers to serve in the line of succession. they will have their responsibility, their judgment and how much congress can surround that with guidance, i think, raises questions that need to be discussed and focused on.

finally, the recommendations in this report concerning fixing the preelection and inaugural time periods i agree with and commend. and that's it. i look forward to continuing these discussions with you. thank you. >> thank you. [applause] >> did you want to mention the anniversary that you noted to me as well? john has a historical -- >> well, when professor amar made reference to garfield and arthur, i believe today is the anniversary of the shooting of -- you'll have to check me on that. it's either july one or july 2121, 1881. it's just a historical note. >> thanks very much. i'm in a little different

position. i'm a journalist and author. and in a funny position because the main problem that caused me to write about presidential succession is addressed by the very issuance of this report and in that sense is taken care of as i'll later explain and yet i'm here to warn about some of the solutions that the report comes up with which i think has some problems. i'll say, you know, as a journalist and author, the issue of succession comes up year in and year out in funny ways. this is not just -- not just with the cabinet member who's absent from the state of the union address and the one that brought it home to me just over 10 years ago i was as a correspondent interested in asia about to go with president clinton on a trip to asia at the

end of 1998 and at the last minute president clinton didn't go because he stayed back to take some military action against iraq, actually. we're talking about a military action of a couple days, not six years. vice president gore went instead and the same five or six reporters who were going to gee on air force one went with vice president gore who welcomed us to the plane and began showing us around the plane with great relish, you know, this was a new air force one. look at this. look at this. and finally explained something that should have occurred to me, which is that while many, many other members of the clinton administration had flown on air force one with president clinton the vice president was never allowed to, for reasons of continuity of government and so i can claim to have been among the only people to have flown on air force one with al gore.

i got into the serious issue of continuity of government in writing the book "rise of the vulcans." i was at the time looking at the careers of all the senior members of the george w. bush administration and was pointed by several people -- several people remembered both vice president cheney and secretary of defense rumsfeld, not in those jobs but years earlier in a program they took part in in the 1980s, the continuity of government exercises established by the reagan administration. this was again at a peak of cold war tensions with the soviet union. the issue was what would happen if there was a soviet attack on the united states, on washington in which several top officers were killed and the response of the reagan administration was to

set up a secret program with elaborate exercises in which three different teams were established to -- they actually ran drills, teams of -- i forget 30 to 45 career officials who would know how to run the government and they needed someone to be in charge of each team so they appointed several people who knew how the federal government ran and then they would take a cabinet member. now the cabinet member could be someone like secretary of agriculture john block, for example. someone who didn't know national security. but the person who would really know how to run the show would be a former white house chief of staff and both dick cheney and don rumsfeld who both served as white house chief of staff for part of these exercises. and the other interesting part of them to me and of relevance still of other issues i'll talk about is that they would go to different places each time. sometimes abandoned school

yards? why? they did that because the earlier responses of the 1950s had been to create these famous bunkers outside of washington in virginia, mount weather it was called. there's country near camp david. and by the 1980s, 30 years later, the fear was that nuclear weapons could damage or somehow get to these fixed facilities. so the idea was mobility, surprise and so on. and as i looked into this, i wrote about this at some length. and the thing that bothered me the most was that there was no constitutional or legal basis for this. congress was not part of it. this is not a procedure that congress set up. congress was taken out of the legal line of succession. this was a procedure that was

set up entirely from within the executive branch of government without ever checking in with congress. and, you know, when i say this process of the commission and its recommendations is important and to be congratulated, it's because this is now a public -- you are and hopefully are working with congress on actually addressing a procedure rather than simply having one which is set up without congressional authorization from within an executive branch. i mean, the program of the '80s was actually not the creation so much of president reagan himself but of the nsc bureaucracy. vice president bush played a role but the lead operations officer on this was someone named oliver north. that would be the guy who later

went on to be in charge of iran contra. so you all are addressing this. you're making this -- you're giving consideration of the issues in a public way. and that to me is all to the good. when i look at the report, i find my own reaction is to find some important problems that are addressed in important ways, very specific problems that i find are addressed well. certainly, as you suggest, you want to get the president pro tem of the senate out of the line of succession. the idea that a senator who has a job by virtue of his age should be in the line of succession is something that should be fixed and fixed as soon as possible.

call this the strom thurmond provision if you want but one way or the other that's all to the good. your recommendations on the inaugural are good. your recommendations on changing the strange procedure of bumping where one person can, you know -- where one person in the line of succession can bump another as people recover from problems and so on. that's all to the good. i want to reserve judgment on one of your most important recommendations which is to get congress out of the line of succession. i haven't really thought that through enough. i have some reservations about that because i'm not sure it's necessary. you are making good points. i will say as a constitutional matter there seems to be some confusion of what the

constitutional issues are. certainly, the framers of the constitution were not worried about a change in parties. because, you know, they didn't exist at the time so it's not -- that's not -- that's a policy question. that's not a constitutional question. and i don't know -- i'm not persuaded of the need to do that but i think you are making good arguments on that. i want to turn for the last few minutes to the single provision which i have the greatest problems with and that's the provisions to set up new officers outside of washington in the line of succession. because i do have -- i think that creates new problems and that the problems it's meant to address could be fixed in other

ways. let's look at this. the suggestion is that there be several -- four or whatever new positions created either of former senior federal officials or perhaps governors who would be in the line of succession. and that they would be ahead of existing cabinet members of all but the top four existing cabinet members. well, let's look at some of the people being suggested. first of all, governors. i can't help but start by saying what if the governor is in argentina. but, you know, how are we going to choose which states the governors are from, small states would be against big state governors. who chooses them? governors themselves have political ambitions. you talk of the political

ambitions of the speaker of the house, for example, many governors are interested in running for president in the future and, in fact, i would say -- i would remind you that governors are well represented -- former governors are well represented in the cabinet often including in this administration. i mean, the source of people who might be chosen as governors in this -- for these special jobs now are precisely the kinds of people who are in the cabinet. janet napolitano, for example, katherine sebelius. former officials, well, that sounds nicer than i think it might turn out to be. i'm reluctant to give former presidents and former vice presidents an ambiguous new role in the national security apparatus.

i think we've got a system that works just great the way it is. we have former presidents and vice-presidents taking on the roles that they choose but without -- if it's a vice president, a former vice president might be interested in running for president again but one way or the other, i have trouble seeing -- does the president of the united states -- he's the person who's going to choose the people in these jobs. does he choose someone who might be a rival? does he not? let's take history of the last three or four months. i'm among the people who think vice president -- former vice president cheney or president jimmy carter or any former president or vice president has the right to say what he thinks and express his views in public.

that, you know, there's no obligation to shut up. but we're now going to give people access to new security information on which they can say, my reading of the national security is that the new administration has weakened national security, i just see a lot of problems there. the president -- the new president who chooses the people for these positions is himself faced with a dilemma, okay? so if we're going to have four new federal officials in the line of succession above most of the cabinet members, first of all, this downgrades the existing cabinet members. do you choose someone in line for a top federal job to run a cabinet position or maybe they'd rather stay in home state and be sixth in line of succession. and above all, i'm not sure i see the need for this.

we have a system now which is carried out as fran townsend has said -- there are procedures that take -- that are in operation at the time of the state of the union, inauguration, and other times where a cabinet member is out of town. we can have a cabinet member out of town nearly permanently. you know, just one at a time. you know, the cabinet members might like that, a requirement that, you know, one week out of 8 or 10 during the year they're required to work out of town. it's certainly workable anyway. >> buenos aries. >> well, that's -- and, you know, they can claim that they're checking, you know, the sentiments outside of

washington. i just don't see why setting up four or so new federal jobs -- to me it creates more problems than it fixes. so to me, i would extend the existing procedures for -- with the existing line of succession rather than create new jobs within the line of succession. thanks. >> thank you. thank you to all the panelists. as you can see we didn't make this panel to be a panel of people who are officially associated with the commission to endorse every recommendation. in fact, i hear some of the arguments that we had in the internal commission. there are weighing some issues if you push in one direction maybe you move in the other direction. you know, i think the commissioned some answers to these things and wanted to move in certain directions. just one point on one of the

recommendations that jim mentioned about -- on the last point about the cabinet members or the new positions outside of washington. we do recommend that the president appoint these people and that the senate confirm so it wouldn't necessarily be a neutral criterion on governors of the old estate or the big estate. those are very reasonable arguments against that. i'm going to open this up and hope that the panelists will talk among themselves. if anyone wants to react to each other's comments and then i'm going to open it up to the general audience. >> thanks, john. it's akhil here. just a couple of quick thoughts. i agree that the framers of the constitution, of the original constitution weren't quite focused on party continuity. james madison thought there were additional -- there were all sorts of constitutional arguments above and beyond party

continuity that rendered congressional participation in succession unconstitutional. what i do want to say is partly continuity isn't just the policy concern even if it wasn't part of the original constitutional's concern. it ratifies an idea of national presidential parties. the 25th amendment seems to me to be an amendment very much embracing a party model of presidential power. these today are constitutional considerations in addition to the policy considerations even if james madison wasn't talking about them and didn't even need them to make the case in my view a very pervasive case that he made in 1790. the second and only other point i want to make about having some people outside washington, d.c.

in the line of succession -- baseball purists still haven't reconciled themselves to the designated hitter perhaps. but i think you can think of these people outside of d.c. as kind of a designated hitter model. some baseball teams has one person whose only job is to be a base runner in the late innings or a closer to deal with left-handed batters in the last inning. the reason that i think maybe former presidents or former secretaries of state might suitably be appropriate people to be nominated by a president to be these contingent people outside of washington, d.c. is you have to understand when you have a double death or double disability we're in an extreme

situation. you have to realize we're in such a situation. any amount of comfort and security that you can convey to the american people, to world leaders, to the markets, i think, would be to the good and someone who's done it before. who's already served as president or as secretary of state, i think could be -- and who knows what it is to be president really could be a perfect designated hitter-like person to do one unique function and, of course, as john fortier mentioned, the president of the united states would be the person making the decision about who this designated hitter would be and the person would be subject to senate confirmation but i'm imagining someone who doesn't need a lot of on-the-job training that she or he already knows how to do the job and frankly that's not true of lower cabinet officials. they don't quite have the credibility or the experience

perhaps in these crises to step up and reassure everyone to the same degree that perhaps a former president or secretary of state or some really very considerable person nominated by the president, confirmed by the senate do this one very unusual thing in a low probability scenario would be able to do. >> if i could just comment a little bit and turn to jim, too. both john feerick and jim mann had some criticisms of this proposal where we recommended taking out the lower level cabinet members, those below the big four and jim more generally worried about bringing in these new people into the line. we weighed those things together. akhil mentioned this is an extraordinary circumstance of the president and vice president have died at the same time. actually, it's more extraordinary than that in that it's that the president, the vice president, the secretary of state, the secretary of treasury, the secretary of

defense and the attorney general are all gone and now we are looking for number 7. we've cut out congress. we're looking for somebody way down the line. something extraordinary has happened. and here we weighed both the question of wanting to make sure people were outside of washington -- that somebody was around and jim may be right there's certainly ways to operationally have people in different places and that may be part of the solution. but then we also asked the question about these lower level cabinet members and i'm not denigrating anyone in particular but certainly the positions themselves are not picked for the same sort of national security reasons. they're not picked maybe at people quite the same level one thinks of succeeding to the presidency and we saw that something as a substitute so john has a point about the line being shorter but we thought that this might be a group that brings a little more to the table and is outside of washington weighing those different factors.

>> well, let me say on the designated hitters if we're going to use the baseball analogy, those baseball fans know are not necessarily the happiest people on the baseball team. [laughter] >> and more to the -- more to politics, vice presidents as we all know through much of american history have tried to figure out what they're job is, their main job is to be in the line of succession and day in and day out they're not quite sure beyond that they're supposed to do. you know, we are creating third, fourth, fifth, and sixth vice presidents. on the possibility that all six of the top cabinet -- the senior officers, vice president, president and president and vice president and four top officers

all die. it seems to be remote. on the other hand, it gives the -- you know, the president the problem of choosing from among former presidents and vice presidents and governors. it provides a kind of standing for former presidents and vice presidents to reemerge with a current role. i would point out that in the event of a catastrophe, that the country tends to rally around whoever is in charge. we certainly discovered that after 9/11. and that to me this is an entirely -- it's a very remote

and yet unnecessary procedure. you know, i would strongly oppose it. >> just one point. i must say i find this report is terrific in generating the kind of discussion you've heard from my colleagues and that's in and of itself going to be a major contribution. you're going to force hopefully a lot more focus on these subjects. i was thinking to myself that if you -- if you -- and again, i just read the report a few times in preparation for this panel and i'm revolving myself, i suppose, because of the book update in this subject that i thought i had graduated from a long time ago. and it seemed to be true and back to it 'cause it's so important and interesting.

i think i would give a little more consideration in dropping the acting secretaries. let's take your recommendation of the top four. if the number two person in the state department -- the number two person in the a.g.'s office were not dropped in the line of succession you start rendering more remote the possibility of what you worry about, everybody being wiped out 'cause now you have more people in the line of succession. and my recollection is that your commission member was undersecretary of, i think, the state department. you'll have to double-check me on that. and if it came to him having to step forward, he would have done a very fine job under the circumstances. and also in the federal law at that, under 5 u.s.c. there's a

provision that specifically says that the first assistant takes over in the absence of or death or other vacancy of the head of the department and the 25th amendment in terms of conferring authority in the cabinet along with the vice president declare a president disabled specifically in the legislative history and you've seen it; you know it. contemplates the acting secretary stepping up to be in place of the head of the department where there's no good head of the department. as i say, what your report's going to do, i think, is produce maybe a lot of ideas and suggestions and at the end of the day if something emerges from the process, you would have made a major contribution so i salute you. >> i will -- i'm not going to answer every objection where we

have a panel coming up which will probably talk about some of these issues. do we have any other comments from the panelists. right here, you can identify yourself when the mic comes. >> john wallstetter senior fellow discovery institute. wouldn't you be able to solve a fair amount of the problem with the following simple requirement in any meaning which has -- let's say four of the big six or all of the big six present, meaning president, vice president, and the four top cabinet secretaries in the line of succession? they have to take place in an underground facility that is reinforced because if you're talking about a nuclear blast, it is not going to take out somebody, particularly, if it's a small device, it will wipe out the mall and a whole bunch of

buildings, kill 150, or 100,000 people on the surface but if you are in a bunker at the white house or at the treasury department and you were 100 feet down, you will survive. and that, therefore, with some modification and also taking into account, for example, on some ceremonial occasions that you can have people -- a helicopter right away. they can have a helicopter where you can have a chance of people getting taken all at one time. there's a related problem -- i took a quick look at your scenario. the first thing that's going to happen after that is marshall law. somebody is going to be taking command in the streets. and you need a provision that deals with marshall law that whomever takes command, whether it's the president if he survives or someone else there will be marshall law after a

nuclear event or a big wmd event whether you call it that or not you get 30 days maximum for -- it's half the period of the war powers act to commit forces overseas where whoever has marshall law gets it whether it's the president or some senior surviving commander. after that you have to go to some sort of a congress and get 90-day extensions at a time. but some sort of procedure to bound marshall law as well because you're going to have that after an event like that. >> i'll take on the first. i'm not sure what to say on the second. and jim brought up this point and we as the commission not opposed but for the idea of operationally trying to make sure the in the line of succession are not all together, are not in danger and that, of course, does go on today. and this is, you know, the most extreme possibility for which we feel the need to have some

people outside of washington is we hope very remote and extreme. i'm not sure your scenario completely deals with an underground bunker wouldn't stop someone with an infectious disease that would put upon us is biological weapon from infecting the others. it's not as simple as putting it down. your point is well-taken. it's complementary to what we say. if you think it's sufficient, we may not need to do this but it's something that we are generally in favor of the operation of. anybody else want to jump in? do we have another question. if not we can turn to the second panel. so i'm going to turn it to tom mann who's going to moderate the second panel. [applause] [inaudible conversations]