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[The Perils of Emergency, Part One] • On May 9, 2007 the White House quietly issued a press release announcing a new National Security and Homeland Security Presidential Directive. Designated as both NSPD-51 and HSPD-20, the document details a revised strategy for the continuity of federal government in the event of a “catastrophic emergency,†dramatically restructuring the existing plan set forth by the Clinton administration. With a stroke of his pen, George W. Bush added his signature and thus empowered the Office of the President with autocratic authority over widespread aspects of American life, public and private.
As stated in the opening paragraph under the header “Purpose,†this directive lays down emergency operational requirements for all federal entities and outlines an administrative system that will offer “guidance for State, local, territorial, and tribal governments, and private sector organizations in order to ensure a comprehensive and integrated national continuity program.†Precisely what manner of “guidance†will be provided is left unclear, except that all such prescriptions are to be consolidated and issued under the authority of a newly christened appointee called a National Continuity Coordinator. Upon the declaration of a national emergency (as observed and proclaimed by the President) this weighty position shall be filled by the Assistant to the President for Homeland Security and Counterterrorism (APHS/CT) – a relatively obscure, unelected official.
Alongside the Coordinator, the Assistant to the President for National Security Affairs (APNSA) will aid in the considerable task of organizing and directing the entirety of the nation’s functions; in addition, a Continuity Policy Coordination Committee (CPCC) will comprise the “day-to-day forum for such policy coordination.†This Committee is to be chaired (and presumably, staffed) from within the ranks of the Homeland Security Council, by persons chosen at the discretion of the Coordinator. Furthermore, the directive specifies the Secretary of Homeland Security (in a role that seems to overlap with the Coordinator’s) as the “lead agent for coordinating overall continuity operations and activities of executive departments and activities.†At the top of the provisional hierarchy sits the President, who shall ultimately “lead the activities of the Federal Government for ensuring constitutional government.â€
Exactly how a common instrument of executive decree could seemingly grant such sweeping powers to a single person is an important question. Very little attention has been granted to this latest directive in the press, with only a handful of newspapers and firebrand blogs speculating on its possible implications. Were the story to break into the mainstream, it has the real potential to prove more incendiary than Abu Ghraib, Gitmo, or Cheney’s shotgun snafu. Barack and Hillary would scramble to craft the catchiest talking points, descrying the despotic inclinations of the Bush regime, and the liberal punditry would surely choke on its own rage in bleating out polemics against this brazen bid for ultimate rule. What many Americans would be surprised to learn is that, contrary to various other Bush-era malfeasances, the extensive autonomous authority so casually bestowed by this directive is within the bounds of executive privilege, following a tradition of supremacy that has become intrinsic to the Office of the President.
A More Perfect Union?
The Constitution of the United States represents a crowning achievement in democratic governance and an organizational touchstone for modern republics around the world. America’s founding fathers displayed remarkable conscience and prescience in their framing of a new society, egalitarian in its ideals and balanced in structure, to deliver the promise of liberty and happiness for all mankind. (We’ll take the popular stance and not begrudge them their gender bias or slaveholding in this assessment.) Yet though they were revolutionaries, pitted against the British Crown, Jefferson and his cohorts remained smitten with a bit of Old World nostalgia as evinced in their insistence on a Chief Executive at the helm of the nation.
Their vision of representative democracy wasn’t entirely novel. In his excellent book The Last Hours of Ancient Sunlight, Thom Hartmann recounts how a delegation of Iroquois tribesmen were in attendance as guests of Benjamin Franklin during the Albany Plan of Union in 1754, where the early drafts of a constitutional framework were imagined. The colonists recognized the wisdom in the natives’ traditional ways of governing, and they adopted into their own design its self-regulating system of checks and balances achieved through a high court and dual legislature. Unable to shake the ghosts of their royal allegiance, however, they opted to deviate from the Iroquois Confederacy’s time-honored arrangement by adding an executive branch and its “surrogate king,†the President. Rather than conducting the affairs of the nation purely by majority rule, the final decisions of the American government would effectively rest in the hands of a single man.
As Hartmann notes: “[The founding fathers] also decided to ignore the Iroquois rule, which persists to this day, that all decisions of ‘importance’ (such as waging war, changing national boundaries, altering relationships with other tribes, etc.) must be submitted to the local electorate by the elected representatives for discussion, debate, and decision. Instead, they created the system we now have where such decisions are made daily without consulting the electorate.â€
So it was from the very outset that the lofty pillars of the ultimate democracy were built upon the tenuous foundation of a centralized executive power. No sooner had the inaugural President taken oath than the implied privileges of the Chief Executive began to materialize and assert their dominance. George Washington was the first to employ presidential directives, signing pronouncements that set national policy or commanded certain actions within the nascent federal bureaucracy. His second such decree was a proclamation (one of the most common kinds of directives) heralding November 26th as “a day of public thanksgiving.†Successive Presidents issued similar edicts throughout the next century, but it wasn’t until Abraham Lincoln took office that any efforts were made to classify and record these instruments.
From 1862 onwards, all documents of Presidential decree identified as “executive orders†were sequentially numbered. Additionally, the passage of the Federal Records Act of 1935 required (with a few exceptions) the publication of all executive orders and proclamations in the Federal Register. Despite their transparency to the public, these tools of Presidential prerogative invest the Chief Executive with considerable clout over national affairs that can have far-reaching effects on the lives of American citizens. A Congressional Research Service (CRS) report chronicling the history of presidential directives notes that, through these instruments, a President may wield “magisterial or executive power not unlike that of a monarch.â€
This power isn’t always used subtly. It was through an executive order, for example, that Franklin Roosevelt commanded the removal of thousands of Japanese-Americans to internment camps in 1942, an act of racial discrimination that was later validated by the Supreme Court. More recently, George W. Bush revived an antiquated type of directive called a Military Order to authorize the use of military tribunals in the trying of “enemy combatants†who are sometimes held for years without charges. While these injunctions are subject to overrule by Congressional or judicial review, they nonetheless dictate immediate action and generally have “the force of law.â€
A Frightened New World
The various forms and functions of presidential directives remained relatively static until the administration of Harry S. Truman, when the first paranoid waves of the Cold War began to ripple through the American psyche. With the formation of the National Security Council (NSC) in 1947, United States federal policy grew increasingly possessed by concerns of terrorism and espionage, and an escalating host of threats – foreign and domestic, proven and perceived – came to dominate the national attention. Fears of communist plots and imminent nuclear attack necessitated a new breed of executive controls. To combat the looming specter of Communist aggression, Security Council officials developed strategies of protection, preemption, and prosecution for every conceivable front. The NSC’s recommendations made their way to the President’s desk, were usually approved, and promptly implemented following the pattern of an executive order. These documents played a critical role in shaping US policies on such highly sensitive matters as nuclear proliferation, foreign arms deals, covert international ops, and psychological warfare. By the Kennedy Presidency, security decisions mandated through NSC policy papers had evolved into a new class of executive instrument: National Security Directives (NSD).
At the end of Lyndon Johnson’s tenure, around 370 NSDs had been filed and put into action under the label of National Security Action Memoranda. Nixon continued this technique of de facto lawmaking with his own designations of directives (National Security Study Memoranda and National Security Decision Memoranda), which were also employed by Gerald Ford.[1] Each succeeding administration has followed this model with instruments of their own design, contriving new (usually ill-defined) rules of usage along with the personalized titles. Unlike earlier forms of executive devices which require publication, national security directives are often strictly classified government secrets and remain so unless, after much time has passed, an ex-President’s library deigns to release them to the public as a gesture of good faith. Indeed, even the official number of security directives is unknown for the Clinton and current Bush administrations. The unilateral and hidden nature of these instruments raises obvious concerns about their inherent lack of oversight. Efforts within Congress to mandate the publication of NSDs in the Federal Register have so far been unsuccessful; as it stands, national security directives operate entirely outside the scrutiny of legislators or the Supreme Court.[2]
The historically sanctioned privilege enjoyed by the Chief Executive for nearly two centuries had shifted into a shadowy and uninhibited domain, borne out of the fearful, suspicious climate of the Cold War. While Red Scare-tactics and the menace of Soviet nukes surrendered to the triumphs of American consumer culture, the Office of the Presidency continued to rule by machinations, far outside the purview of Congress and the American constituency. Legal grounds for some of this executive license have been argued from the Commander-in-Chief and “faithful execution of the laws†clauses of the Constitution (often cited as justification for presidential directives), yet it is within the context of a national emergency that the autocracy of the Office can be fully realized.
As soon as a President proclaims a state of national emergency, a vast and nebulous arsenal of “emergency powers†comes instantly at his disposal. According to a CRS paper on the topic, a President officiating during this period “may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens.†These impressive powers are derived in part from Article II of the Constitution and, to a greater extent, from scores of permissions mentioned in statutory law. Much is left open to executive interpretation, however; as has been the trend among Chief Executives, “the authority of a President is largely determined by the President himself.â€
Throughout most of the twentieth century, Presidents used these powers with abandon as there was neither protocol in place for oversight, nor limits set on the duration of emergency status. By the time the National Emergency Act was passed in 1976, the United States was functioning in a “state of emergency†four times over. This had allowed sitting Presidents carte blanche over the country’s affairs for more than four decades, going back to the first extant declaration from Franklin Roosevelt in 1933. Under the new restrictions, an emergency was set to expire automatically after one year unless explicitly renewed by the President. The act also gathered and codified 470 statutory references to exigency authority, prescribed the proper means of declaring emergencies, and established a procedure for Congress to annul emergency conditions. Despite these formalities, the broad swath of influence made available to a President during an emergency was left largely untouched.
Hiding in the Shadows
The terrorist attacks of September 11, 2001 rekindled an inferno of domestic security concerns that had died to a smolder since the collapse of the Soviet Union. Within three days of the assault, George W. Bush declared a national emergency, denoting the “continuing and immediate threat of further attacks on the United States.†As the world looked on solemnly at images of Ground Zero rescue workers sifting the rubble for survivors, miles away and several feet underground a long-dormant vestige of Cold War protectionism was being brought back to life. Known as the “Continuity of Operations Plan†(or COG, for Continuity of Government), this covert stratagem is a cherished piece of conspiracy theorist lore. According to the Plan, in case of an incapacitating catastrophe in Washington, facilities at undisclosed subterranean locations on the East Coast are in place to allow for the remote performance of “National Essential Functions†(NEFs). As reported by the Washington Post, this moribund scheme went into effect for the very first time in the hours following the 9/11 attacks and has since continued in perpetuity, establishing a shadow government on retainer awaiting some impending disaster. The bunkers are being maintained in permanent “ready†mode, staffed by a rotating contingent of senior-level civilians from within the Bush administration.
Continuity of Government plans were conceived in an era of bomb shelters and air-raid drills; as these concerns died away, the once state-of-the-art bunkers built to defend the fate of America were also forgotten, abandoned to history as anachronistic curiosities. While a series of clandestine COG exercises continued throughout the Reagan years (involving Senator Dick Cheney and a civilian Donald Rumsfeld), the collapse of the Soviet Union obviated the need for these elaborate programs.[3] It wasn’t until the millennial tensions of Y2K that contingencies for catastrophic events regained currency in the White House.
In a confidential security instrument labeled Presidential Decision Directive 67 (“Enduring Constitutional Government and Continuity of Government Operationsâ€), President Clinton revivified the Cold War program of COG relocation, expanding it drastically to include representatives from nearly every department and agency. The Federal Emergency Management Agency (FEMA) was charged with overseeing the ambitious repositioning plan, to be accomplished within twelve hours of an emergency dictum. 9/11 served as the Plan’s trial run, and the results were dreadful. While Vice President Cheney and a select group of officials choppered to safety in disaster-proof bunkers, the extensive network of federal representatives slated for evacuation were left behind. Those that did make it to the site discovered a largely inoperative system of outdated technology and long-neglected equipment. Were the conditions of the Washington attack more catastrophic, the federal government would have been in shambles.
The Bush administration responded to this failure with a renewed obsession in continuity planning. A massive overhaul of the program began, including the creation of an emergency broadcast system called COGCON to alert officials of COG initiation via Blackberries and mobile devices. The above-mentioned shadow government immediately took up permanent residence in the underground control centers, which were in turn updated to modern standards of computer technology and wireless communication. With the system and personnel brought up to speed, the government conducted a series of three colossal COG exercises (bearing the titles Pinnacle and Forward Challenge) to test the effectiveness of the revamped operation. Even orchestrated disasters, it seems, are beyond the management capabilities of FEMA. Marred by widespread confusion and disorder, these pre-planned drills have only served to underscore the near impossibility of relocating such a broad representation of ancillary federal offices.
Discontinuing Democracy
One of the most apparent post-9/11 transformations came with the establishment of the Department of Homeland Security. Created by act of Congress in 2002, this Cabinet-level organization boasts the third largest departmental staff (after the Department of Defense and Department of Veterans Affairs) and represents a monumental reallocation of responsibility within the federal government. Its chief duty – to ensure the protection of the “Homeland†of the United States from terrorist aggression – takes place within the domestic sphere of the nation, including such arenas as airport security and the integrity of the Post Office. Civil liberties defenders have raised concerns that Americans’ rights to privacy are jeopardized by the DHS, pointing to allegations of domestic surveillance under the new department. Such measures, the government counters, are unfortunately necessary within a new paradigm of constant terrorist threat. In order to facilitate policy decisions in this field, George W. Bush initiated a new classification of directives called Homeland Security Presidential Directives (HSPD). Much like NSPDs, these instruments are not obligated to public disclosure and imply a dramatic capacity for executive control over national affairs.
HSPD-20 (alternately known as NSPD-51) is the Bush administration’s latest documented use of this new executive tool. As stated earlier, it outlines an updated National Continuity Policy that differs markedly from the preexisting arrangement under Clinton’s PDD-67. For starters, the Bush plan follows a recent order removing FEMA from its administrative role in COG operations, to be supplanted by officials from the Homeland Security Department. Another dramatic revision introduces a National Continuity Coordinator to develop and oversee the Continuity of Operations (COOP) for all executive departments and agencies. Previously, these offices were obliged to formulate and enact their own contingency plans independently – a sensible approach when dealing with such a sprawling, complex bureaucracy. On top of her usual responsibilities as Counterterrorism advisor, Coordinator Frances Fragos Townsend must develop and submit a cohesive National Continuity Implementation Plan to the President before a deadline of August 10, 2007. In light of the recent botched COG exercises under the individuated Clinton scheme, it seems wholly unrealistic that a small cadre of security officials should be expected to successfully design, implement and supervise the emergency operations of every aspect of the United States government. Perhaps it isn’t meant to be feasible.
Reporter Jerome Corsi voiced one of the first objections to the new plan in a May 23 column on the traditionalist-conservative website WorldNetDaily. According to Corsi, this directive appears to “supersede the National Emergency Act by creating the new position of National Continuity Coordinator without any specific act of Congress authorizing the position.†Corsi goes on to suggest, “The language of the May 9 directive appears to negate any requirement that the president submit to Congress a determination that a national emergency exists, suggesting instead that the powers of the executive order can be implemented without any congressional approval or oversight.†As we have seen, however, the powers of executive decree are ultimately unrestricted in this regard; as long as Bush formally declares the existence of an emergency by proclamation, he remains within the legal bounds of his Office. Congress or the courts may, of course, attempt to countermand the directive, but this is not likely to be successful (or even possible) during a time of serious crisis. Unless these moves are made now, before such an event occurs, HSPD-20 remains the law of the land.
While Corsi’s fears of an ineffectual Congress are reasonable, a Washington Post piece by Spencer S. Hsu (published the day after the directive was announced) intuits a different transfer of power in the new continuity plan. Paraphrasing sources from within the Bush administration, Hsu notes, “the directive formalizes a shift of authority away from the Department of Homeland Security to the White House.†This is clearly discernable in the explicit mention of the Chief Executive leading the provisional government. Furthermore, the person currently slated to fill the position of National Continuity Coordinator is Frances Townsend – an exceptionally close advisor to the President who shares his philosophy intimately. But greater than any organizational or semantic scheming, it is within the very context of Continuity of Government operations that the Chief Executive derives his ultimate supremacy – that is, a national emergency and its concomitant Presidential powers.
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How might these powers be used to subvert the aims of democracy? Some critics have suggested that, reluctant to relinquish control in 2008, the Bush administration may proclaim a national emergency to annul the approaching Presidential election. Perhaps, others have speculated, the White House is preparing for some upcoming “terrorist†event in the near future as a pretext to declare martial law and launch further military campaigns in the Middle East. And, of course, a combination of the two scenarios seems equally plausible.
Consider this: Prior to the May 9 directive, President Clinton’s PDD-67 was the operative continuity arrangement throughout the entire campaign of the War on Terror. For an administration so concerned with protecting the Homeland and securing our national interests against attack, it seems a peculiarly belated move to attempt such a dramatic overhaul of the Continuity of Government plan now, with just over a year left in this second term of office. If such adjustments were truly necessary for the safety of the federal government, surely they would have been undertaken before the end of 2001, along with the drafting of the Patriot Act and the formation of the DHS. Why would President Bush wait until this late hour – during the final possible months of his tenure – to make these seemingly important changes?
And now, consider this: Clinton’s PDD-67 was, and still remains, a strictly classified document. Our only glimpse into the structure of his Continuity of Government scheme comes from a memorandum circulated among federal officials that explains the requirements for compliance according to the revised Plan. Labeled “Federal Preparedness Circular†(FPC-65), the memo announces as its Purpose, to provide “guidance to Federal Executive Branch departments and agencies for use in developing viable and executable contingency plans for the continuity of operations (COOP).†While this document serves as a tiny window into the covert activities of an increasingly secretive federal government, it also underscores an important point: Continuity of Government planning, along with untold other executive branch intrigues, are almost uniformly “Top Secret†initiatives. It does not behoove the White House to make such things publicly known – unless there is some certain benefit in doing so.
The Bush directive, however, is quite unclassified, albeit strangely unnoticed in the Press. Its ominous implications and portentous language make no mistake about what scope of influence the President is entitled to encompass in a time of emergency. For the first time in an authoritative document, the vast body of dictatorial powers tacitly held by a Chief Executive is laid out in clear, unbending words. He is authorized to exert control over “State, local, territorial, and tribal governments, and private sector organizations.†He is granted the exclusive right to determine when a crisis constitutes a “catastrophic emergency,†following broad guidelines that include “any event, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government functions.†This could be a flooded city in Louisiana or an atomic blast in Israel.
Furthermore, within the COG arrangement, the President is beholden to no other authority and is only obliged to cooperate with the rest of the government “as a matter of comity with respect to the legislative and judicial branches and with proper respect for the constitutional separation of powers among the branches.†In this context, comity means “courtesy,†to be understood in the same way that the US extends comity towards the policies of foreign governments – that is to say, according to its whims. There is something profoundly unsettling about the candor and transparency present here.
If President Clinton, and all previous administrations, saw the need to keep these continuity documents confidential, why has this latest security directive been made public? And why is it suddenly appearing now, nearly six years after the 9/11 attacks? If we must speculate, maybe there is indeed some imminent catastrophe approaching, known in advance by the administration. And perhaps it might fall, quite opportunely, around November of 2008, thus instituting the COG plan and precluding the ability to hold Presidential elections.
By disclosing the drastic measures that would take effect under the new continuity plan, the Bush administration effectively exonerates itself from any future claims of subterfuge or accusations of ruling by junta. All has been performed according to the traditional functioning of the executive branch, and the fateful directive itself has been made available for scrutiny prior to its activation. If Congress or the courts deem it unconstitutional, they are free to dispute it according to the law. Yet as soon as it is in play, all power rests with the President.
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In the Declaration of Independence, the patriots of the Revolution left instructions to their American progeny that, if there ever comes a time when the institution of democratic government “evinces a design to reduce them to absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for future security.â€
Such a design has now been set before us, should we choose to perceive it.
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Notes:
[1] Nixon and his national security advisor, Henry Kissinger, relied heavily on national security instruments in their strategic policies on domestic security issues and the Vietnam War. However, as the Congressional Research Service notes, “according to a Kissinger biographer, ‘the most important decisions were made without informing the bureaucracy, and without the use of NSSMs or NSDMs.’†Executive authority apparently needn’t even be burdened with recording its decisions in strictly classified documents.
[2] A recent study by Vikki Gordon in the June 2007 edition of Presidential Studies Quarterly does an outstanding job of examining the history of NSDs, finding that “the use of national security directives poses particular challenges to the abilities of both Congress and the courts to constrain effectively the president's power to act unilaterally in setting public policy.†Read the full text of the article here.
[3] In the March 2004 issue of The Atlantic, James Mann reports on the covert Continuity of Government program run under the Reagan administration. As former Cabinet officials under the Ford administration, Dick Cheney and Donald Rumsfeld were closely involved in the exercises, which served primarily to secure a new line of Presidential succession during a nuclear attack. Congress was not informed of this arrangement, as it was felt the traditional pattern of succession might prove cumbersome in the critical moments following an attack. Mann concludes with this incisive observation about Cheney and Rumsfeld: "Their participation in the extra-constitutional continuity-of-government exercises, remarkable in its own right, also demonstrates a broad, underlying truth about these two men. For three decades, from the Ford Administration onward, even when they were out of the executive branch of government, they were never far away. They stayed in touch with defense, military, and intelligence officials, who regularly called upon them. They were, in a sense, a part of the permanent hidden national-security apparatus of the United States—inhabitants of a world in which Presidents come and go, but America keeps on fighting."
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