Nobody would argue with the notion that the government needs to have contingency plans for disasters, and those contingency plans, in today's world, need to include the possibility of the entire government in Washington being wiped out. The question is, why all the secrecy? If anything, letting an enemy know that America has plans in place to continue with its democratic form of government, no matter what heinous attacks are mounted against it, might act as a deterrent.

To many legal scholars, the administration's martial law planning, together with the USA PATRIOT Act passed last October (under which anything defined as "aiding terrorists" or "threatening lives or property" could lead to 10 years in jail), cast the shadow government in a more ominous light.

The Center for Constitutional Rights' Ratner thinks it's possible there may not ever be a formal proclamation of martial law, in the sense of having the military take over the running or the policing of the country. It could be more of a creeping thing. "If you view martial law as a bundle of rights that get denied, then some of it is here already, with military tribunals and detentions without charges," says Ratner, who is currently suing the government over its internment of Afghan combatants at Guantanamo Bay in Cuba, and its plans for military tribunals instead of court trials. But eventually, Ratner says, "under martial law any dissent and you get taken off right away."

Even during the Clinton administration, thanks to the war on drugs, the Pentagon and the White House found creative ways to get around the letter of the Posse Comitatus Act. For example, soldiers have been sent to beef up security at border crossing points. It turns out they aren't being considered to be in violation of Posse Comitatus because officially they are not armed, and are thus not considered by the Pentagon and the Justice Department to be real soldiers.

But what about the Supreme Court, that final arbiter of and check on executive power? Wouldn't it guard against executive rule or martial law? In fact, only once out of the 100 times the U.S. military has declared some form of martial law has the Supreme Court stepped in to lift it. That was in 1946 in Hawaii.

"The concept of martial law is fairly wide open," says Prof. Jordan Paust, a law professor at Catholic University's Columbus School of Law and a former judge advocate general in the Army. "I don't think that the Supreme Court has ever acted to limit a lot of evil things that could happen. I really don't know what restraints there are. I just don't think that we've had enough attention paid to this issue, and that's a concern."

Adds Ratner, "The courts have been very reluctant to do anything about martial law or executive power when military action is ongoing." Meanwhile, with a war on and fears of terrorism at home, there seems to be little public concern about either secret government or encroachments on civil liberties.

"It's a sad thing," says the politically conservative Olson. "Today the American people are so trusting of people in authority and in government that it never dawns on them that these might not be men and women of goodwill."

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