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NSPD-51 and the Potential for a Coup d'Etat by National Emergency

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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?

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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?

When might Bush invoke NSPD-51? My own guess would be Spring ‘08, after Bush is "forced" to attack Iran, perhaps with nuclear weapons, and Iran then fails to cooperate, attacking US ships in the Gulf and Mediterranean instead of accepting our offers of assistance. Even if Iran denied Bush his basic objective by refusing to be goaded into reacting beyond its own borders, the resulting global economic chaos and spontaneous popular reactions beyond Iran could compel Bush to invoke NSPD-51, quite apart from whatever our new enemy might undertake. On the other hand, under NSPD-51 any provocation of Bush could lead to him creating a pretext for declaring a national emergency. For example, Ralph Nader quotes Massachusetts Rep. John W. Olver (D), who has a PhD from MIT, when presented with the votes of 13 Town Meetings [real Town Meetings, not the media events staged for candidate performances] in Olver's congressional district calling for impeachment of Cheney and Bush, Olver responded that he opposed any impeachment move against Bush because "the current autocratic executive [Bush] would attack Iran from the air, declare a national emergency, institute marshal law, and call off the 2008 elections were the Democrats to initiate impeachment."

Should Bush declare a national emergency and begin exercising the many powers available to him in law, and the ever expanding powers claimed by fiat, the nation would cross into a world increasingly difficult to predict, largely beyond our national experience, except perhaps for our revolution and civil war, subject to ad hoc, unchecked decision making, with genuine rule of law no longer an available guide. It would likely become increasingly difficult, in the absence of reliable information, to understand and deal with the originating crisis, however real or contrived. And to distinguish it from the difficulties arising from the declaration of a national emergency itself. However, this sort of thing has sadly occurred in many other countries, with the result here likely to be not much different: a self-sustaining crisis, in which the chief rationales for continuing the national emergency are the effects of the national emergency themselves, compounded by errors in governance and crimes by those who seized power, sustained by their fear for what would happen to them should they give it up. The longer term prospect would likely include national decline and insurrection, with an even more unpredictable array of international consequences starting with a widening war.

In the short term, one can imagine Congress, demonstrating its usual wisdom and courage, expressing concern about the clearly large, though secret, number of American citizens "detained," surprise at the scope of property and asset seizures, discomfort with the pace of executions under the Military Commissions Act of 2006, and outrage at being locked out of its capital offices due to a classified biological threat of undetermined duration, thus preventing Congress from voting to set benchmarks for Iran and to demand our readmission to NATO. But Congress would likely find some comfort in the "delay" of the 2008 elections, given Bush's decision to allow all incumbents, including those temporarily detained, to remain in office, which many in Congress would praise for its "unifying bipartisan comity," and await the president's determination when it is safe for Congress and the Supreme Court to actually meet again. Just as many in corporate American would appreciate the need to "delay" collecting capital gains and corporate taxes in the interests of helping the economy in a time of national crisis. Besides, how could anyone resist the perfectly Orwellian logic of declaring a dictatorship to insure "Constitutional Continuity" for the “homeland,” while setting aside the actual Constitution of the United States?

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Whatever unknowable future a declaration of national emergency might bring, clearly many are going to be profoundly unhappy with such a turn of events. And that may be why Kellogg Brown & Root, a Halliburton subsidiary, is already building detention centers around the nation to “support the rapid development of new programs” that could accommodate those incompatible with Constitutional Continuity, the dead-enders who actually protest or resist, plus the usual suspects who might think to object.

But how would all those potential incompatibles, certainly tens of thousands and likely far more, find their way to an appropriate detention center? After all, the Bush administration has managed to prosecute only a handful of businesses for hiring illegal aliens who number in the millions. Its clearly a matter of priorities. So, despite such distractions as hurricane Katrina, the Justice Department has been conducting mass arrest exercises code named Operation Falcon, whereby thousands of law enforcement officers from federal, state, county and local agencies arrested some 10,000 individuals within seven days, working from lists provided by the U.S. Marshall’s Service, all coordinated to commence across the country simultaneously. Since practice makes perfect, three mass arrest exercises have been conduced: Two national (Falcon I April 4-10, 2005 arresting 10,340; Falcon II April 17-23, 2006 arresting 9,037); and one “eastern half of the country” (Falcon III October 22-28, 2006 arresting 10,733).

What can not be found among these data is mention of any legitimate law enforcement purpose served by these mass arrests. While some arrested were serious criminals, most were of the unanswered warrantee and support payment delinquent sort, soon released. The important element here appears to be getting operational experience and, perhaps most critically, habituating state and local police agencies to conducting mass arrests from lists provided by the federal government. In the eastern regional Falcon III alone, 103 state agencies, 430 county sheriff's offices/departments and 482 police departments did just that according to the U.S. Marshals Service web site. At the current pace, perhaps Falcon IV, for the western half of the U.S., will be the last drill and then the real thing: Operation Falcon V.

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William H. White is Director of Voters for None of the Above

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