NSPD-51 and the Potential for a Coup d'Etat by National Emergency
By William H. White
October 30, 2007
Can you think of anyone better than George W. Bush with whom to entrust the dictatorial powers hinted at in NSPD-51? Or perhaps you are unwilling to trust anyone with such powers, even Bush. That is not a option in NATIONAL SECURITY PRESIDENTIAL DIRECTIVE 51 (NSPD-51), signed by Bush and released without comment by the White House on May 9, 2007. To quote from NSPD-51: “This policy establishes ‘National Essential Functions,’ prescribes continuity requirements for all executive departments and agencies, and provides guidance for State, local, territorial, and tribal governments, and private sector organizations in order to ensure a comprehensive and integrated national continuity program that will enhance the credibility of our national security posture and enable a more rapid and effective response to and recovery from a national emergency.” What one would expect, but for some additional details.
Under NSPD-51, only limited ‘National Essential Functions’ of government will continue, which may or may not include Congress and the courts. NSPD-51 assures us: “Enduring Constitutional Government means a cooperative effort among the executive, legislative, and judicial branches of the Federal Government, coordinated by the President, as a matter of comity with respect to the legislative and judicial branches...” This “matter of comity,” which usually refers to the informal and voluntary recognition of jurisdiction among courts, is a troublesomely ambiguous phrase in this context wherein the president determines this as he “coordinates.”
Unfortunately, NSPD-51 provides limited “guidance” to state and local governments, because it revoked the then existing Presidential Decision Directive 67 of October 21, 1998 ("Enduring Constitutional Government and Continuity of Government Operations"), including “all Annexes thereto.” And replaced them with NSPD-51, along with: “Annex A and the classified Continuity Annexes, attached hereto.” But then the rabbit disappears as NSPD-51 soldiers on: “This directive and the information contained herein shall be protected from unauthorized disclosure, provided that, except for Annex A, the Annexes attached to this directive are classified and shall be accorded appropriate handling, consistent with applicable Executive Orders.” In other words, all the details are secret and even the non secret “Annex A” remains undisclosed by the White House.
Having revoked on May 9, 2007 the nation’s then existing emergency plan for continued national governance, Bush’s NSPD-51 calls for: “The Plan shall be submitted to the President for approval not later than 90 days after the date of this directive.” One assumes, during this lapse in emergency plans, no emergency was expected, or at least presented less risk than leaving that old Clinton plan in place. Since the national media, except one story each in the Washington Post and Boston Globe, have ignored NSPD-51, Bush has not troubled us with any rational for this directive.
Especially if such explanations might raise needless interest in the decision to revoke the existing plan before finishing work on the new, which some might conclude serves only to rush the review process of what was among the most complex and sensitive plans in government, perhaps suggesting, given the administration’s candor issues, an attempt to slip something by the rest of us. And, with its planning record, mandating a new plan approval in 90 days borders on reckless, almost delusional optimism, if meant seriously. Clearly Bush believes he can do better than Clinton, whose administration labored for years on that old plan. Much of the old plan may even be in the new plan, who knows?
Among those of us who do not know are members of the House Committee on Homeland Security. The Bush administration has repeatedly denied the committee access to NSPD-51, about which Oregon Rep. Peter DeFazio (D) complained in a speech on the floor of the House of Representatives. What we do know is those 90 days passed without a new plan approval being announced, perhaps no plan gives the president exactly the maximum power and flexibility desired. Apparently, the "matter of comity" among the three branches of government referred to in NSPD-51does not include allowing NSPD-51 to be read by members of Congress, which the Congress, in a continuing pattern of acquiesce, has not challenged.
This almost entirely secret directive can be invoked when the president decides “any incident, 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” occurred. Bush alone will decide when he must assume this burden, though surely only upon prayerful contemplation during the time saved not having to consult Congress. In addition, because of a change to the Insurrection Act of 1807, enacted as part of the 439-page 2007 Defense Authorization Bill signed into law in October 2006, Bush need no longer obtain a governor’s consent to take control of a state’s national guard units. This same bill overturns the Posse Comitatus Act of 1878, which limited the use of US military forces within the United States for law enforcement. In addition, Bush issued an executive order on July 17, 2007 authorizing the government to seize the assets of anyone "undermining efforts to promote economic reconstruction and political reform in Iraq" under provisions of the International Emergency Economic Powers Act. Could this include critics of the Iraq war, whom Bush has repeatedly accused of undermining the war effort?